HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Criminal Appeal No. 352 / 2009 [ENTITY] s/o Maga Ram, aged 40 years, b/c Nat, r/o Kankray, P.S.Bhawanda, District Nagore. (presently lodged in Central Jail, Jodhpur) Appellant Versus [ENTITY] Respondent For Appellant(s) : Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY], Public Prosecutor HON'BLE MR. JUSTICE [ENTITY]
HON'BLE DR. JUSTICE [ENTITY] Judgment Per Hon'ble Mr.[ENTITY],J.
24th April, 2018
1. This appeal is directed against judgment dated 28.2.09 passed by the Additional Session Judge (Fast Track) No.2, Jodhpur in [CASE NUMBER], whereby the appellant accused has been convicted for offence under [SECTION] [ACT] and sentenced to suffer life imprisonment with fine Rs.1,000/-; in default to further undergo rigorous imprisonment for two months.
2. Precisely, the prosecution case unfolded during the trial is that on 25.9.08 at 1 P.M. the complainant Smt. [ENTITY] (P.W.-9) went to Stone Park at some distance from her hut for the purpose of breaking 'kankari' (stone). Her husband was sleeping in the hut (2 of 10) [[CASE NUMBER]] and her minor daughter 'X' (name withheld to protect her identity) was playing under the neem tree and her another daughter [ENTITY] (P.W.-8) and son [ENTITY] (P.W.-11) were also there. His son [ENTITY] rushed to her and told her that [ENTITY] is beating 'X' in nearby 'nala' (drain). On this, when she rushed near the hut, she heard the scream of her minor daughter in nearby cement drain. She and her daughter [ENTITY] saw in the drain that [ENTITY] had naked, her daughter and himself in naked condition, committed rape on her. She and her daughter [ENTITY] took out her daughter from beneath of [ENTITY]. She was ailing and blood was oozing out from her private parts then she took her daughter to Police Station. When she rescued her daughter from the hold of [ENTITY], he rushed towards jungle.
3. P.W.9-Smt. [ENTITY] narrated the incident orally as aforesaid, which was reduced in writing by the police vide Ex.P/13 and registered the FIR (Ex.P/14) for offence under [SECTION] [ACT] and the investigation commenced.
4. During the investigation, the medical examination of the prosecutrix and the accused were conducted, necessary memos were drawn and the statements of witnesses were recorded under [SECTION] [ACT] Blood stained plastic sack was seized. The accused [ENTITY] was arrested. At the instance of accused [ENTITY], his blood stained pant was recovered. Blood smeared plastic sack and pant were sent for examination to Forensic Science Laboratory (FSL) and reported was obtained.
5. After completion of the investigation, the police filed the charge sheet against the accused [ENTITY] under Section 376 (3 of 10) [[CASE NUMBER]] (2)(f) [ACT] for committing rape on the girl below 12 years, before the Judicial Magistrate No.5, Jodhpur. The matter was committed to the Sessions Judge, Jodhpur, which was later transferred to the court of Additional Sessions Judge (Fast Track) No.2, Jodhpur.
6. The charge was framed against the accused [ENTITY] for offence under [SECTION] [ACT]. He denied the charges and claimed trial.
7. During the trial, prosecution in support of its case examined as many as 13 witnesses (P.W.-1 to P.W.-13) and produced the documentary evidence (Ex.P/1 to P/22). No evidence was led by the appellant in his defence.
8. The appellant accused was examined under [SECTION] [ACT], wherein he denied his involvement in the commission of the offence, stating that he had not committed rape on prosecutrix, he was not capable of sexual intercourse, he had got no residence in Jodhpur, he didn't go to the drain, he had no knowledge as to who had thrown prosecutrix in the drain, some girl was screaming, he was going by that side, went to rescue, seeing him alone at the place of occurrence doubt of committing rape was casted upon him.
9. After due consideration of the evidence on record and the submissions of the counsel for the accused and the Public Prosecutor, the trial Judge arrived at the finding on the basis of the evidence on record, it stands established beyond doubt that the appellant accused committed rape on prosecutrix, who is 4-5 years minor child and accordingly, sentenced him as indicated above. Hence, this appeal.
(4 of 10) [[CASE NUMBER]]
10. At the outset, learned counsel appearing for the appellant submitted that the appellant does not want to press the challenge to the impugned judgment to the extent of appellant being convicted for offence under [SECTION] [ACT], on the basis of the evidence on record. Learned counsel confined his arguments only to the quantum of punishment to be meted out to the appellant.
11. Learned counsel submitted that the imposition of punishment of life imprisonment upon the appellant is against the principles of sentencing evolved by the Court over the years. Learned counsel submitted that on the facts and in the circumstances of the case where the appellant has not indulged in beating the minor girl or causing any other harm, the award of life imprisonment, which is the maximum punishment prescribed, is not warranted. Learned counsel would submit that the conduct of the appellant during his stay in Jail was good and taking into consideration his good conduct, he has even been assigned duties of watchman and thus, a lenient view needs to be taken and the sentenced awarded deserves to be altered from life imprisonment to punishment of ten years rigorous imprisonment. In support of the contention, learned counsel has relied upon the decisions of the Supreme Court in the matters of '[PRECEDENT] and '[PRECEDENT] and Bench decisions of this Court in the matters of 'Yogendra Singh @ Bablu & Anr. Vs. [ENTITY]' 2015(2) Cr.L.R. (Raj.) 649, '[ENTITY] @ Johny v. [ENTITY]' (D.B. Criminal Jail Appeal (5 of 10) [[CASE NUMBER]] No.1692/2007, decided on 29.1.15) and 'Sohan Lal v. [ENTITY]' (D.B. Criminal Appeal No.13/2006, decided on 18.2.15).
12. On the other hand, learned Public Prosecutor submitted that the appellant has been held guilty of committing rape on the prosecutrix, a minor girl of 4 years and therefore, there is absolutely no reason why the court should take a lenient view and reduce the sentence awarded by the trial Judge.
13. We have considered the rival submissions and perused the material on record.
14. In view of the appellant giving up the challenge to the finding of guilt recorded by the learned trial Judge, we need not go into the findings regarding conviction of the appellant for offence under [SECTION] [ACT]. The only question survives for consideration of this court is whether for the charge proved against the appellant, the sentence of life imprisonment awarded by the trial Judge is just and proper or the same deserves to be altered being excessive.
15. In [PRECEDENT]'s case (supra), where the accused was held guilty for offence under [SECTION] [ACT] for committing rape on 7 years old girl and was awarded life imprisonment by the trial Judge and confirmed by the High Court, the Supreme Court observed:
"11. Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of [SECTION] [ACT], we feel that the ends of justice would be met (6 of 10) [[CASE NUMBER]] by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years."
16. In [PRECEDENT]'s case (supra), the Hon'ble Supreme Court while dealing with a matter regarding conviction for offence under [SECTION] B [ACT], wherein the accused was sentenced to suffer maximum punishment of life imprisonment relying upon the principles of sentencing evolved by the court over the years in context of death penalty, observed:
"12. Are we to understand that the quest and search for a sound jurisprudential basis for imposing a particular sentence on an offender is destined to remain elusive and the sentencing parameters in this country are bound to remain Judge-centric? The issue though predominantly dealt with in the context of cases involving the death penalty has tremendous significance to the Criminal Jurisprudence of the country inasmuch as in addition to the numerous offences under various special laws in force, hundreds of offences are enumerated in the [ACT], punishment for which could extend from a single day to 10 years or even for life, a situation made possible by the use of the seemingly same expressions in different provisions of the [ACT] as noticed in the opening part of this order.
13. As noticed, the "net value" of the huge number of in-depth exercises performed since [ENTITY] has been effectively and systematically culled out in [ENTITY] and [ENTITY]. The identified principles could provide a sound objective basis for sentencing thereby minimising individualised and Judge-centric perspectives. Such principles bear a fair amount of affinity to the principles applied in foreign jurisdictions, a resume of which is available in the decision of this Court in [PRECEDENT]. The difference is not in the identity of the principles: it lies in the realm of application thereof to individual situations. While in India application of the principles is left to the Judge hearing the case, in certain foreign jurisdictions such principles are formulated under the authority of the statute and are applied on principles of categorisation of offences which approach, however, has been found by the Constitution Bench in [ENTITY] to be inappropriate to our system. The principles being clearly evolved and securely entrenched, perhaps, the answer lies in consistency in approach.
(7 of 10) [[CASE NUMBER]]
14. To revert to the main stream of the case, we see no reason as to why the principles of sentencing evolved by this Court over the years though largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing Judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, we are reminded of the age-old infallible logic that what is good to one situation would hold to be equally good to another like situation. Besides, para 163(italicised portion) of [ENTITY], reproduced earlier (see at SCC p.385-f, above), bears testimony to the above fact."
17. In '[PRECEDENT], the Hon'ble Supreme Court while considering the elaborate principles of sentencing laid down in [ENTITY] vs. State of Punjab', (1980) 2 SCC 684 and '[ENTITY] & Ors. vs. State of Punjab', (1983) 3 SCC 470, while dealing with the question of death sentence, observed that the cumulative effect of both aggravating and mitigating circumstances need to be taken into account while awarding the sentence. The court observed :
"76. The law enunciated by this Court in its recent Judgments, as already noticed adds and elaborates the principles that were stated in [ENTITY] and thereafter, in [ENTITY]. The aforesaid Judgments, primarily dissect these principles into two different compartments-one being the "aggravating circumstances" while the other being the "mitigating circumstances". The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated Under [SECTION] [ACT]."
The court while enumerating certain aggravating and (8 of 10) [[CASE NUMBER]] mitigating circumstances and determining the questions relatable to sentencing policy further observed:
"79. The court then would a draw a balance sheet of aggravating and mitigating circumstances. Both aspects have to be given their respective weightage. The court has to strike a balance between the two and see towards which side the scale/balance of justice tilts. The principle of proportion between the crime and the punishment is the principle of "just deserts" that serves as the foundation of every criminal sentence that is justifiable. In other words, the "doctrine of proportionality" has a valuable application to the sentencing policy under the Indian criminal jurisprudence. Thus, the court will not only have to examine what is just but also as to what the Accused deserves keeping in view the impact on the society at large.
80. Every punishment imposed is bound to have its effect not only on the Accused alone, but also on the society as a whole. Thus, the courts should consider retributive and deterrent aspect of punishment while imposing the extreme punishment of death."
18. In [ENTITY]'s case (supra), where the charge of committing rape of prosecutrix, 4 years old girl, was found proved and the trial Judge while convicting the appellant under [SECTION] [ACT] sentenced him to suffer life imprisonment with fine Rs.500/-; in default to further undergo three months of simple imprisonment, a Bench of this court observing that there was no aggravating circumstances beyond the age of the prosecutrix and the accused happens to be a young man aged about 31 years when the occurrence occurred, reduced the maximum punishment awarded to 10 years rigorous imprisonment while maintaining the order imposing the fine.
19. In [PRECEDENT]'s case (supra), this court while following the decisions of the Supreme Court in [PRECEDENT]'s case (supra) and [PRECEDENT] [PRECEDENT]'s case (supra), where the appellant therein was found guilty of committing rape on the prosecutrix, a minor girl, in absence of any other aggravating circumstances beyond the age of the victim reduced the sentence awarded from life imprisonment to ten years.
20. In the instant case undoubtedly the appellant accused is found guilty of committing rape on a minor girl of 4 years, which by itself is a brutal act. But then, there is no other violence involved in commission of the offence. It is not the prosecution case that the appellant is a habitual offender. No other criminal case is alleged to be pending against him. The conduct of the appellant in jail has been satisfactory. Thus, taking into consideration the aggravating and mitigating circumstances following the view taken by the Hon'ble Supreme Court in [PRECEDENT]'s case (supra) and by this court in [ENTITY]'s case and [PRECEDENT]'s case (supra), we consider it appropriate to modify the order on sentence and reduce the sentence of life imprisonment awarded by the learned trial Judge to rigorous imprisonment for ten years.
21. In the result, the appeal is partly allowed. The conviction of the appellant for offence under [SECTION] [ACT] is maintained. However, the order of sentence is modified in terms that instead of life imprisonment, the appellant shall be sentenced to rigorous imprisonment for ten years. The order with regard to the fine passed by the learned trial Judge shall remain unaltered. If the appellant has already undergone the sentence awarded, he shall be released forthwith else, he will undergo the remaining (10 of 10) [[CASE NUMBER]] sentence. On the appellant being released, his bail bonds shall stand discharged. However, the appellant shall furnish personal bond in sum of Rs.25,000/- and a surety of the like amount to the satisfaction of the learned trial Judge in terms of provisions of [SECTION] [ACT], which shall remain in force for six months. ([ENTITY]), J. ([ENTITY]), J. aditya/