IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 197 of 2003 Date of Decision 05.07.2010 __________________________________________________________ Billu @ Dalip Raj ….Petitioner. Versus State of H.P. ….Respondent ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. __________________________________________________________ For the Petitioner: Ms. Vidushi Sharma, Advocate For the Respondent: Ms. Ruma Kaushik, Additional Advocate General __________________________________________________________ Dev Darshan Sud, J (oral). This revision petition has been preferred by the petitioner who has been convicted for offences under Section 377 of the Indian Penal Code for committing sodomy on minor Sunny, son of Joginder. The learned trial Court imposed the sentence of rigorous imprisonment for three years and to pay a fine of Rs. 10,000/-. This judgment and sentence has been affirmed by the learned Appellate Court. 2. The prosecution case, in brief, is that the complainant PW1 Champa, mother of the minor boy, who was sodomised, stated in her evidence that her husband is employed with Himachal Road Transport 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 Corpoation in Chamba Division and he oftenly remains out of station, in connection with his duties. She has three children. The victim Sunny was aged about 7 years on the date of offence. He was studying in second class. In the evening of 8.11.1998, the complainant found her son in bed and he refused to take his meal. Around 9 P.M., he started crying with pain. When she inquired from him as to what was the matter, the child told her that when the lights were off, the petitioner-accused had taken him to his room where he took off his pant undressed the minor and committed sodomy upon him. The complainant inspected the pant of Sunny and found that it was having blood stains. The anus of the child was also oozing blood. She thereupon took Sunny to the hospital and reported the matter to the police. 3. In order to prove its case, the prosecution has examined six witnesses. PW1 Champa is the mother of victim, PW2 is the victim, PW3 Dhajinder Raj is a resident of Mohalla, where the complainant and his son were residing and to whom she narrated the entire incident, PW4 is Dr. C.P. Singh, Sr. Medical Officer in Ragional Hospital, Chamba, who examined the victim and lastly the Investigating Officer. 4. Considering the totality of their evidence, the learned Court convicted the petitioner. Adverting to the evidence of the prosecution, both the Courts below noted that on the day when the incident occurred, the husband of the complainant had gone to Kurali in connection with the repair of a bus. She narrates that at about 9 P.M. the child started crying and when she asked him about the reason, he disclosed that the petitioner had committed sodomy on him. She removed his pant and found that not only the trouser but also his anal opening was stained with blood. The child could not sleep throughout the night and next 3 morning she went to PW3 Dhujinder Singh, the Pardhan of the Mohalla, who advised her to take the victim to the hospital for treatment and then to inform the police about the incident. PW4 Dr. C.B.P. Singh had found anal tear along with abrasions on the outer part of the anus of the victim. 5. PW2 Sunny was aged about 8 years when his evidence was recorded. He was a student of Class three. The learned trial Court, questioned him to ascertain as to whether he was fit to depose on oath and understand the meaning of what he was saying. He has described the entire incident in graphic detail stating that the petitioner had taken him to his room and bolted the room from inside and thereafter committed sodomy with him. He has been cross examined at length. I do not find anything in his cross examination which would suggest that this witness does not know the meaning of what he stated or that he was not subjected to sodomy. PW4 Dr. C.B.P. Singh, Senior Medical Officer also examined the child and found the injuries as detailed in his evidence which included the injury to the anus of the minor victim as proved in the MLC Ext.PW4/A. 6. PW3 Dhujinder Raj has corroborated PW1 on all material aspect that she had narrated the entire incident to him on the next morning when he advised her to take the child to hospital. There is nothing in his cross examination to establish that what has been narrated by him in Court is not a true version of the incident. 7. Learned counsel appearing for the petitioner urged that judgment and sentence imposed by the Courts below cannot be sustained for the reason that the most important and material link in evidence namely the blood stained trousers have not been produced in evidence. It is also urged that more especially when the complainant PW1 Champa Devi had stated that the blood stained trouser of the child was handed 4 over to the police, but it was not produced and proved in evidence. The best evidence having been withheld, clearly suggested that the prosecution itself has disproved its case and in these circumstances, there could be no conviction. 8. This point was also urged before the learned Sessions Judge, who has rejected this plea on the ground that the other testimony on record itself formed a complete chain of circumstances which could not be disbelieved. Learned Court holds that both PW1 the mother and PW2 victim are corroborated on material aspects by each other, by PW3 Dhujinder Singh and the medical evidence. In these circumstances, even if the blood stained trouser had not been produced in evidence, there can be no acquittal. 9. I have considered the arguments advanced on behalf of the petitioner. I cannot persuade myself to hold that PW2 Sunny has not been sodomised. I do not find anything in evidence which would suggest that the witnesses are not speaking the truth or that the petitioner has been falsely implicated in this case. Even on re-appreciation of the entire evidence, I do not see any perversity in the conclusions arrived at by the two Courts below. True, the blood stained trouser would have been another link in the chain of evidence in the case of the prosecution, but in the circumstances where both the mother and child have corroborated each other on material particulars and more especially the testimony of victim who has graphically described the manner in which he was sodomised, the medical evidence and testimony of PW3 it cannot be said that the incident did not take place as alleged. In these circumstances, it cannot be said that vital piece of evidence having not been produced, 5 probalises the defence. I do not find any merit in this revision, which is accordingly dismissed. 10. Learned counsel appearing for the petitioner urged that petitioner is a young man and a period of over 13 years has elapsed since the incident occurred. A prayer for leniency is made. I cannot accept this submission that mere passage of time by itself constitutes a ground for mitigation of sentence to be imposed. Section 377 of the Indian Penal Code provides for imprisonment of either description for a term which may extend to ten years, and fine. Even if a liberal approach is to be adopted, this Court cannot ignore the fact that the child was aged only about seven and a half years at the time when he sodomised. 11. Learned counsel appearing for the petitioner has placed reliance on two cases of the Supreme Court namely: Chitranjan Dass vs. State of U.P., AIR 1974 SC 2352, in which on the facts, the Court ruled:- “In view of the material which has been placed before us indicating that the appellant, a highly educated and cultured individual, was suffering from mental aberration when he committed the offence of sodomy, and that, as a result of this conviction, he will suffer loss of service and other serious consequences to his career, we confirm the conviction but reduce the sentence to the period already undergone which is said to be more than two months. The appellant, who is in jail, shall be released forthwith.” (P. 2352) and Fazal Rab Choudhary vs. State of Bihar, AIR 1983 SC 323, where the Supreme Court reduced the sentence of three years rigorous imprisonment to six months considering the fact that no force had been used by the offender. The Court held: 6 “3. The offence is one under Section 377, I.P.C., which implies sexual perversity. No force appears to have been used. Neither the notions of permissive society nor the fact that in some countries homosexuality has ceased to be an offence has influenced our thinking. However in judging the depravity of the action for determining quantum of sentence, all aspects of the matter must be kept in view. We feel there is some scope for modification of sentence. Having examined all the relevant aspects bearing on the question of nature of offence and quantum of sentence, we reduce the substantive sentence to R.I. for 6 months. To the extent of this modification in the sentence, the appeal is allowed.” (P 323) 12. Learned Additional Advocate General relies upon the decision of this Court in State of Himachal Pradesh Vs. Harbilas 1998 (2) Shim. L.C. 23. This Court was dealing with the acts of rape and sodomy committed by the accused on a young girl of about eight years. This Court held that “9. This case represents certain facts that require to be specially highlighted, the first of them is the fact that this happens to be sexual assault and carnal intercourse on a child of tender years. The law has made specific provisions for rigorous imprisonment in respect of offences of these categories and it would be total mockery of the Justice Dispensation System if leniency is to be shown to depraved persons in cases of this type. The physical injuries apart, the mental trauma involved are good grounds to categorizes it as one of the worst forms of anti-social offences and under these circumstances, in our considered view, the leniency 7 displaced by the learned Trial Judge was totally misplaced. The argument of the learned Legal Aid Counsel that the accused was a young man of 18 years of age belonging to a poor strata of society, totally fails to convince us. A human being of the age of 18 years and studied up to matriculation standard is sufficiently grown up and even in society it is intolerable for males of this age to indulge themselves in sexual assaults on tender young girls. Under these circumstances, to our mind the provisions for rigorous punishments that have been specially prescribed by the Legislature particularly after the amendment of Section 376 I.P.C. require to be seriously applied with a degree of high standard as it is expected to act as a social deterrent and an eye-opener to those who have similar inclinations. It appears that the learned trial Judge has lost sight of the provisions of Clause (f) Sub-section (2) of Section 376 I.P.C. while imposing lesser sentence upon the accused. Admittedly, the prosecutrix is less than 12 years of age in the present case and the punishment prescribed under the law in such like cases shall not be less than rigorous imprisonment for a term which shall not be less than ten years but which may be for life. Sentence of imprisonment for a term of less than ten years can be imposed by the Court for adequate and special reasons to be mentioned in the judgment under the proviso. Under Section 377 I.P.C. the accused can be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years. Having regard to the situation of the case, the sentence of two years’ imprisonment without specifying whether it was in the nature of rigorous or simple awarded by the learned trial Judge for the offence under Section 376 I.P.C. and imprisonment of 8 two years under Section 377, I.P.C. are grossly inadequate and, therefore, are set aside. Considering the age of the accused, belonging to socially backward strata of the society, of a village and on the top of it the fact that the accused is a first offender, we are of the considered view that instead of awarding maximum sentences provided under Sections 376 and 377 I.P.C. it is directed that the accused shall undergo a sentence of five years rigorous imprisonment and fine of Rs. 2,000 in default rigorous imprisonment for three months under Section 376, I.P.C. As regards the sentence under Section 377, I.P.C., the accused shall suffer a sentence of five years’ rigorous imprisonment for three months. The substantive sentences awarded shall run concurrently. The fine, if realized, shall be paid to the prosecutrix as a token of compensation for the mental and physical torture suffered by her.” (P.P 28-29) 13. Similarly the High Court of Rajasthan in Bhawani Giri @ Deo Karan vs. State of Rajasthan, 1995 (1) Crimes 559 holds that in cases where minors are subjected to sexual offences, a lenient view cannot be adopted. It is held that: “12. It is well to remember that in rape cases courts must bear in mind human psychology behavioural probability while assessing the testimonial potency of the victim’s version. The injury on the person of victim specially her private parts have corroborative value. …………… (P. 562) 24. We have also heard the learned counsel for the accused-appellant on the question of sentence and we are of the opinion that the sentences awarded by the learned Sessions Judge to be accused- appellant are eminently just and proper. In our 9 considered opinion the accused-appellant is a depraved person and has committed rape and sodomy with the prosecutrix. P.W. 3 Durga who was a baby child of three years old on the date of occurrence. The accused-appellant has committed heinous crime and his beastly act of committing rape and sodomy with a baby child of three years deserves a deterrent punishable and the learned Sessions Judge has committed no illegality or impropriety in awarding sentences to the accused- appellant u/Ss. 376, 366-A, 377, 324 and 342, I.P.C. In view of the aforesaid discussion we confirm his judgment of conviction and affirm the sentences awarded by the learned Sessions Judge to the accused-appellant.” (P. 565) 14. It needs no reiteration that the minor victim, who has been traumatized by sodomy, will as a consequence carry this psychological trauma throughout his life. In these circumstances, I hold that the sentence of imprisonment as imposed by both the Courts below cannot be said to be excessive. However, taking into consideration the totality of the facts and circumstances of the case as also the period which is elapsed since the commission of the offence, the sentence of rigorous imprisonment is reduced to eighteen months and increase the fine to Rs.20,000/-. The learned trial Court is directed to execute this sentence with due promptitude. 15. Let a copy of judgment be sent to the learned Chief Judicial Magistrate, Chamba for necessary compliance. July 05, 2010 (Dev Darshan Sud) (ms) Judge