IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1217 OF 2003 CRIMINAL APPEAL NO. 1217 OF 2003 CRIMINAL APPEAL NO. 1217 OF 2003 Nitin Pandit Sapkar ) Aged 19 years, Occ.Fitter, ) Residing at Hingne Home Colony, ) Karve Nagar, Pune ) (At present in Yerawada Central ) Prison, Pune) ) ...Appellant (Orig.Accused) vs. The State of Maharashtra ...Respondent Mr.R.S. Mohite for the Appellant. Mr.S.S. Pednekar, APP for the State. Ms.Rebecca Gonsalves with Mr.Vijay Hiremath for Intervenor. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : OCTOBER 22, 2008 DATED : OCTOBER 22, 2008 DATED : OCTOBER 22, 2008 ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. Heard the learned Counsel for the appellant, the learned APP for the State and the learned Counsel for the complainant. 2. The appellant is challenging the judgment and order passed by the 10th Additional Sessions Court, Pune, in Sessions Case No.487/2002. By the said judgment and order dated 30th August, 2003, the trial court was pleased to convict the accused-the appellant - 2 - herein for the offences punishable under Sections 376(2)(f), 354 and 506 of the IPC and sentenced him to suffer RI for 10 years and one year, respectively. 3. Prosecution case in brief is that the prosecutrix who was a young girl of 8 years of age was residing with her parents in Karve Nagar, Pune. Her mother complainant Anita Sutar was a housewife doing the domestic work and she was living with her husband and two daughters. The prosecutrix was the youngest daughter. The complainant Anita had two other daughters who were elder to the prosecutrix. Accused Nitin Sapkar who was 19 years old on the date of incident was living in front of their house alongwith his parents. 4. The prosecution case is that on 14th September, 2002, the prosecutrix had gone out of the house to play with her friend Leena and at that time, accused Nitin called the prosecutrix inside his house and told her he would give her Marbles and when she went inside the house, he removed her knicker and licked her private part. While he was removing her petticoat, her friend - 3 - called her and at that time, the accused released the prosecutrix. The prosecutrix returned home and informed her mother about the incident. Her mother immediately questioned the accused about the incident. According to the complainant, he confessed about the incident and ran away. The complainant informed her brother-in-law Rajaram and her neighbour Padmini Kankare, Ashok Joshi and Sham and she alongwith the prosecutrix went to the Alankar Police Chowky and lodged a complaint at Exhibit-16 against the accused. Accordingly, an offence was registered against the accused being CR No.328/2002 under Sections 354, 509 of the IPC. Accused was arrested on 15th September, 2002 and he was sent for medical examination. Medical report was submitted at Exhibit 32. 5. Thereafter, a supplementary statement of the complainant was recorded on 16th September, 2002. In the supplementary statement, complainant Anita informed the police that about 8 days before the first complaint, the accused had called the prosecutrix and had committed rape on her and this fact was told by the prosecutrix to - 4 - the complainant on 16th September. The prosecutrix was thereafter sent to Sassoon Hospital for medical examination. Clothes were also produced by the father of the prosecutrix on 16th September, 2002. Spot panchanama was prepared thereafter and seized muddemal was sent for Chemical Analyser’s report and after the investigation was over, offence of Section 376 was added to the initial complaint which was filed on 14th September, 2002 for the offence under Sections 354, 506 of the IPC. Thereafter, a charge-sheet was filed against the accused. Prosecution examined six witnesses, viz. PW 1 Anita Sutar - complainant and mother of the prosecutrix, PW 2 Ankita Sutar - prosecutrix, PW 3 Dr.Bhushan B. Rao - Medical Officer, PW 4 Pandurang B. Dangar who was the panch witness, PW 5 Ramchandra S. Kadam - Investigating Officer who carried out the investigation and PW 6 Popatrao N. Bhagat who was Police Hawaldar. The trial court on the basis of this evidence held that the prosecution had proved beyond reasonable doubt that the appellant had committed the offence of rape and taking into consideration the provisions of Section 376(2)(f) - 5 - imposed the minimum sentence of 10 years for the said offence and also convicted him for the offence under Section 506 for a period of one year. 6. Shri Mohite, learned Counsel appearing on behalf of the appellant submitted the conduct of the prosecutrix and her mother was unnatural and therefore, the prosecution version should not be relied upon. It was submitted that because of the unnatural conduct on the part of the prosecutrix who had narrated the incident to her mother on 14th September, 2002 of molestation and after a lapse of 2 days, she had informed her mother about the incident which had taken place on 6th September, 2002 which was a more serious offence of rape. He also submitted that when the second complaint was filed, three social workers had accompanied the complainant which indicated that the improvement had been made in the earlier complaint dated 14th September, 2002 at the behest of some other person. He invited my attention to deposition of PW 1 Anita and also deposition of PW 2 Ankita - prosecutrix and invited my attention to the improvements which are made by these - 6 - witnesses. He submitted that it was unlikely that the prosecutrix would not reveal the earlier incident which was far more serious than the subsequent which was allegedly took place on 14th September, 2002. He invited my attention to the Medical Certificate in which the Doctor had given a certificate and had noted that the general behaviour of the prosecutrix was normal. There was no bleeding. There was no injury to the fourchette, perneum, cervix. He, however, had stated in his certificate that hymen shown circular tear and that the vagina was inflamed and minor contusion was present on labia minora. He submitted that the age of the tear of the vagina, however, was not mentioned. It was also not mentioned what was the age of the vaginal inflammation. He also submitted that on the medical examination of the accused, there was no injuries found on his person or on his private parts. He further submitted that the complainant had admitted in the cross-examination that she had taken a loan of Rs.3000/- from the mother of the accused. He further invited my attention to the cross-examination of the complainant and pointed out that the complainant had admitted that 4 - 7 - to 5 days prior to 14.9.2002, Ankita was ill and was having a temperature. He also pointed out that the complainant had admitted that prosecutrix Ankita was ill having abdominal pain and urination trouble. He submitted that therefore, the contusion on the labia minora was possible due to irritation. He, therefore, submitted that the prosecutrix had not proved beyond reasonable doubt that the appellant had committed the said offence. He has further invited my attention to the opinion given by Cox in his book of Medical Jurisprudence and Toxicology. He submitted that the author has given an opinion that if the insertion of penis goes beyond the vulva, the tearing and damage of the tissues are so extreme and in such cases there is real danger to life. He submitted that in the present case, however, there was no bleeding, no injury and the inflammation in the vagina and the contusion could be attributed to the urinary infection which was admitted by the complainant. 7. The learned APP, on the other hand, submitted that there was no reason for child of 8 years of age to - 8 - depose falsely about the incident of rape and the subsequent incident of molestation. He submitted that in such cases, delay in filing the FIR is not mandatory since the parents of the child are reluctant to report such an incident to the police. He submitted that the evidence of the prosecutrix was clearly supported by the medical evidence which clearly showed that there was penetration and there was clear tear of hymen. He submitted that the improvements or contradictions in the statement of the complainant and the prosecutrix, if any, were very minor and it did not shake the testimony of the prosecutrix. 8. In my view, the submission made by the learned Counsel for the appellant cannot be accepted. Though it is no doubt true that the sequence of events as narrated by the complainant is rather absolutely strange, the fact remains that one has to take into consideration the tender age of the prosecutrix who was merely 8 years of age when the said incident had taken place. The mental frame-up of the child differs from person to person and it is quite possible that the prosecutrix was afraid of - 9 - disclosing the first incident to the mother on account of threat given by the accused and only after the incident had happened for the second time, she came and reported this fact to her mother. It is true that on the second occasion when the complaint was filed, three social workers had accompanied the complainant. Though this fact was initially denied by the complainant in the cross-examination of the Investigating Officer and the complainant herself, it has been brought on record that when the second additional statement was recorded, three social workers viz. one Mangalatai and 2 others of Mahila Mandal were present when the complaint was recorded. It is true that the Investigating Officer has denied the suggestion of the supplementary statement was recorded under pressure of Mangalatai. However, it has to be noted from the mere presence of social workers, inference cannot be drawn that on account of the pressure exerted by such persons, the Investigating Officer added serious offence under Section 376(2)(f). In the present case, the medical evidence clearly supports the prosecution case. It is not in dispute that the age of the girl was 8 years. Ossification test - 10 - which is conducted by the Medical Authority clearly indicates that the age of the girl was 8 years. Though no bleeding was found by the doctor on examining her, there is a clear observation that there was circular tear in the hymen alongwith inflammation of vagina and minor contusion on the labia minora. The Doctor also has given an opinion that there was penetration in the vagina. He also stated that because of vaginal penetration, the vagina was inflamed and there was minor contusion in the inner side of vaginal labia minora. Though much stress was given by the appellant on the admission given by the appellant in cross-examination that contusion was possible as a result of itching with the finger, the suggestion that there was no vaginal penetration was denied by the doctor. So even if the minor contusion of the labia minora is not accepted, there is a clear indication of penetration of the vagina on the account of tear in the hymen. It is now settled position is in law that the penis if it is slightly penetrated, action of rape is complete. In a catena of cases, it has been held that once penetration is proved, it is possible that there would no injuries on account - 11 - of several factors and absence of injury cannot be a ground for discarding the testimony of the prosecution. Taking into consideration, therefore, the evidence of the prosecutrix and the complainant, in my view, the trial court was justified in convicting the accused for the offence punishable under Section 376(2)(f) and Section 506 of the IPC. 9. On the question of sentence, Shri Mohite, learned Counsel appearing on behalf of the appellant submitted that this Court may award sentence below the minimum sentence which is permissible under Section 376. He first of all submitted that the accused was admittedly 19 years of age and that he had undergone more than 6 years of sentence. He submitted that there were no injuries on the person of the prosecutrix and that there was no bleeding. He also submitted that the prosecutrix had living a normal life even after the first incident of rape on 6th September, 2002. He submitted that it is indicated that the accused had not acted in an unduly harsh or cruel manner. He submitted that though the minimum sentence which was prescribed - 12 - for offence under Section 376(2)(f) was 10 years, the legislature in its wisdom has given discretion to the court to award the sentence less than 10 years by giving adequate and special reasons. He submitted that however, there was no judgment which indicated what would be the adequate or special reason that would be awarded. He submitted that the said reasons, therefore, would depend upon the facts of each case. In support of the said submission, he relied on three judgments. Firstly, he relied on the judgment in the case of State State State of Chattisgarh vs. Derha, reported in (2004) 9 SCC 699 of Chattisgarh vs. Derha, reported in (2004) 9 SCC 699 of Chattisgarh vs. Derha, reported in (2004) 9 SCC 699. He submitted that in the said case, the age of the accused was 18 years and the age of the prosecutrix was 8 years. He invited my attention to para 8 of the said judgment wherein taking into consideration the sentence of six and half years undergone by the accused and on account of his age, the sentence was reduced to 10 years. He also invited my attention to the judgment in the case of Phul Singh vs. State of Haryana, reported Phul Singh vs. State of Haryana, reported Phul Singh vs. State of Haryana, reported in (1979) 4 SCC 413 in (1979) 4 SCC 413 in (1979) 4 SCC 413. He also invited my attention to the observations made by the Apex Court in respect of the sentencing policy which had to be taken into - 13 - consideration by the court in such cases. He invited my attention to para 7 of the said judgment wherein the Apex Court had noted that the accused was 22 years of age with no criminal antecedents except the offence for which he was convicted and had awarded 4 years of sentence. He also relied on the judgment of Himachal Pradesh High Court in the case of Shri Avtar Singh vs. Shri Avtar Singh vs. Shri Avtar Singh vs. State of Himachal Pradesh, reported in Crimes State of Himachal Pradesh, reported in Crimes State of Himachal Pradesh, reported in Crimes Vol.III-1984(1) Page 636. Vol.III-1984(1) Page 636. Vol.III-1984(1) Page 636. In this case also, the sentence was reduced from 10 years to 7 years RI. 10. On the other hand, the learned APP appearing on behalf of the State submitted that it was the duty of the court to impose on the person found guilty the punishment prescribed by law. He submitted that the Apex Court in a catena of cases had held that in case of sexual crime against women and more particularly in cases of offence of such a nature, a person committing the offence should be awarded heavy punishment. In support of the said submission, he relied on the judgment of the Apex Court in the case of State of M.P. State of M.P. State of M.P. vs. Babulal, reported in (2008) 1 SCC Page 234 vs. Babulal, reported in (2008) 1 SCC Page 234 vs. Babulal, reported in (2008) 1 SCC Page 234. He - 14 - also relied on the judgments of the Supreme Court in the case of State of Karnataka 2000, Appellant v. State of Karnataka 2000, Appellant v. State of Karnataka 2000, Appellant v. Krishnappa, Respondent, reported in 2000 Criminal Law Krishnappa, Respondent, reported in 2000 Criminal Law Krishnappa, Respondent, reported in 2000 Criminal Law Journal 1793 Journal 1793 Journal 1793 and in the case of State of M.P. v/s. State of M.P. v/s. State of M.P. v/s. Santosh Kumar, reported in 2006 ALL MR (Cri) 2370 Santosh Kumar, reported in 2006 ALL MR (Cri) 2370 Santosh Kumar, reported in 2006 ALL MR (Cri) 2370 (S.C.). (S.C.). (S.C.). 11. The learned Counsel for the Intervenor invited my attention to the judgment of the Apex Court in the case of State of Rajasthan vs Madan Singh. State of Rajasthan vs Madan Singh. State of Rajasthan vs Madan Singh. He also invited my attention to the judgment of the Apex Court in the case of State of Andhra Pradesh, Appellant vs. State of Andhra Pradesh, Appellant vs. State of Andhra Pradesh, Appellant vs. Polamala Raju alias Rajarao, Respondent, reported in Polamala Raju alias Rajarao, Respondent, reported in Polamala Raju alias Rajarao, Respondent, reported in 2000 Criminal Law Journal 4014 2000 Criminal Law Journal 4014 2000 Criminal Law Journal 4014 and the judgment of the Division Bench of this Court in the case of Ramesh @ Ramesh @ Ramesh @ Lalya Anand Jagtap vs. State of Maharashtra Lalya Anand Jagtap vs. State of Maharashtra Lalya Anand Jagtap vs. State of Maharashtra reported in 2001 ALL MR (Cri) 209. 2001 ALL MR (Cri) 209. 2001 ALL MR (Cri) 209. He further invited my attention to the judgment of the Apex Court in the case of Shri Shri Shri Bodhisattwa Gautam, Petitioner v. Subra Chakraborty, Bodhisattwa Gautam, Petitioner v. Subra Chakraborty, Bodhisattwa Gautam, Petitioner v. Subra Chakraborty, Respondent, reported in AIR 1996 SC 922 Respondent, reported in AIR 1996 SC 922 Respondent, reported in AIR 1996 SC 922 and the judgment in the case of State of Rajasthan, Appellant vs. Om State of Rajasthan, Appellant vs. Om State of Rajasthan, Appellant vs. Om Prakash, Respondent, reported in 2002 Cri.Law Journal Prakash, Respondent, reported in 2002 Cri.Law Journal Prakash, Respondent, reported in 2002 Cri.Law Journal - 15 - 2951. 2951. 2951. 12. Before I consider the rival submission on the question of sentence which is to be awarded to the appellant, it would be fruitful to have a look at the observations of this Court and the Apex Court on this aspect of the case. In a recent judgment, the Apex Court in the State of M.P. vs. Babulal (supra) State of M.P. vs. Babulal (supra) State of M.P. vs. Babulal (supra) has taken into consideration the question relating to adequacy of sentence. In para 23 of the order, it is observed by the Apex Court that once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. It is further observed that the award of sentence is also consequential one and incidental to conviction. In para 24, the Apex court has quoted the Halsbury’s Law of England (4th Edn., Vol.11, Para 482) thus : "482. Object of punishment.- The aims of The aims of The aims of punishment are now considered to be retribution, punishment are now considered to be retribution, punishment are now considered to be retribution, justice, deterrence, reformation and protection justice, deterrence, reformation and protection justice, deterrence, reformation and protection - 16 - and modern sentencing policy reflects a and modern sentencing policy reflects a and modern sentencing policy reflects a combination of several or all of these aims. combination of several or all of these aims. combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration - 17 - when sentences are being decided." (emphasis supplied) . In para 25, it is observed as under :- "In justice-delivery system, sentencing is indeed a difficult and complex question. Every court must be conscious and mindful of proportion between an offence committed and penalty imposed as also its impact on society in general and the victim of the crime in particular." 13. In para 27 of the judgment, the Apex Court has noted the doctrine of proportionality in prescribing sentences according to culpability of criminal conduct. The Apex court has taken into consideration the facts which have to be taken into consideration while awarding sentence. In para 27, it is observed as under : " xxxxxxxxxxxx. Sentencing is thus a delicate - 18 - task which requires skill, talent and consideration of several factors, such as, the nature of offence, circumstances-extenuating or aggravating-in which it was committed, prior criminal record of the offender, if any, age and background of the criminal with reference to education, home life, social adjustment, emotional and mental condition, prospects of his reformation and rehabilitation, etc. All these and similar other considerations can, hopefully and legimately, tilt the scale on the propriety of sentence." 14. The Apex Court thereafter in para 33 has noted that the court can impose less than the minimum sentence of seven years’ to record "adequate and special reasons". In para 33, it is observed as under :- "33. The proviso to sub-section (1) of Section 376 IPC thus enjoins the court if it imposes less than the minimum sentence of seven years’ rigorous imprisonment on an offender of - 19 - rape to record "adequate and special reasons" in the judgment. Recording of reasons is, therefore, sine qua non or condition precedent for imposing sentence less than the minimum required by law. Moreover, such reasons must be both (i) "adequate", and (ii) "special". What is "adequate" and "special" would depend upon several factors and no straitjacket formula can be laid down as a rule of law of universal application." 15. The Apex Court, therefore, has accepted the contention that the Court does have the discretion to award the sentence which is less than the minimum sentence provided adequate and special reasons are recorded. In the said case, the Apex Court observed that the reasons given by the High Court for awarding lesser sentence were not special and also were not adequate reasons. The Apex court observed that there are two reasons given by the High Court (1) the respondent was an illiterate agriculturist from rural area", and (2) an amount of fine of Rs.2500/- was - 20 - imposed on him. Apart from the said two reasons, no other reason had been mentioned in the judgment. The Apex Court observed that the said reason, therefore, was neither special nor adequate. The order of the High Court was set aside and the judgment and order passed by the trial court was confirmed. 16. It would be fruitful also to consider the observations of the Apex Court in the case of Phul Singh Phul Singh Phul Singh (supra) (supra) (supra). In the said case, the appellant was convicted for the offence of 376 and sentenced to suffer RI for 4 years. The Apex Court reduced the sentence from 4 years to 2 years. While doing so, in the said judgment, Justice Krishna Iyer