IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 716 of 1995 with CRIMINAL APPEAL No. 912 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE K.J.VAIDYA and MR.JUSTICE D.G.KARIA ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements ? YES 2. To be referred to the Reporter or not ? YES To be referred to the Reporter or not ? YES To be refer ed to the Reporter or not ? YES To be referred to the Re orter or not ? YES To be referred to the Reporter or not ? YES To be referred to the Reporter or not ? YES To be referred to the Reporter or not ? YES To be referred to the Reporter or not ? YES To be refe red to the Reporter or not ? YES To be referred to the R porter or not ? YES To be referred to the Reporter or no ? YES To be referred to the Reporter or not ? YES To be referred to the Reporter or not ? YES To be referred to the Reporter or not ? YES To be ref rred to the Reporter or not ? YES To be referred to the eporter 3. Whether Their Lordships wish to see the fair copy of the judgement ? NO 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder ? NO 5. Whether it is to be circulated to the Civil Judge ? YES, TO ALL COURTS IMMEDIATELY. -------------------------------------------------------------- DHARMENDRA DHIRAJLAL SONEJI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 716 of 1995 MR AD SHAH for the appellant. MR NR SHUKLA PUBLIC PROSECUTOR for the State. 2. Criminal Appeal No. 912 of 1995 MR.NR SHUKLA PUBLIC PROSECUTOR FOR APPELLANT-STATE. MR AD SHAH for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE K.J.VAIDYA and MR D.G.KARIA JJ. Date of decision: 4/09/96 ORAL JUDGEMENT (PER: VAIDYA J) The enigmatic problem which incidentally we have been called upon to resolve in these two appeals, one of which is for the enhancement of the sentence is a question - "whether and when in the midst of an intense rampant, unabated, psychic pollution challengingly, spreading like the forest fire all around in the society and in particular engulfing and victimizing the unguarded young generation of slippery age making them prone to commit crimes because of the mesmerizing uncontrolled obscene films exhibiting sex and crime day in and day-out beamed through the channels on the TV and the Government as if unconcerned with this doing nothing about it, can the unwary victim of such psychic pollution inflicted disease be punished and if at all punished savagely for the alleged offence of rape for 7 years ? Over and above and apart parents, has indeed the Government no public duty rather accountability to its citizen to take care of their psychic health by controlling and preventing the causes spreading the most contagious disease ? What for this purpose, what indeed the women action groups do effectively to prevent, regulate and control the production of indecent films and the pronographic literature being televised committing shameless continuous affront and outrage on modesty of the women, young girls and even girls of tender age to protect their modesty, dignity and honour ? In fact, what indeed all the so called sensible and prudent members of the society and the social reformists and action groups are doing to meet with and eradicate the psychic virus spread through vulgar TV culture ? Is mere condemnation of blue film exhibition in theatres, T.V.s and drama is enough without there being any supplimentary concrete action by the law enforcing agency in this regard ? Whether mere enactments of certain special Acts by the Parliament such as (i) The indecent Representation of Women (Prohibition) Act, 1986, (ii) The Commission of Sati (Prevention) Act, 1987, (iii) Andhra Pradesh Devdashis (Prohibition & Dedication) Act, 1988; (iv) The Medical Termination of Pregnancy Act, 1971, (v) The Maternity Benefits Act, 1988, (vi) The National Commission for Women Act, 1990; (vii) Dowry Prohibition Act, 1961, (viii) Adding Section 304-B (Dowry-death) in IP Code, (ix) Adding Section 498-A in I.P Code (cruelty by husband) (x) Adding sections 113(A) {Presumption as to the abetment of suicide by married women}, 113-B {presumption as to dowry death}, and 114-A {Presumption as to absence of consent in certain prosecutions for rape} in the Indian Evidence Act, (xi) Immoral Traffic (Prevention) Act, 1956, and many others, can be said to be 'be all and end all' of the matter in face of increasing crimes against girls and women which can certainly be attributed to very great extent to dirty film culture polluting innocents, impressionable young ones ? These indeed are some of the most vexed and vital and accordingly disturbing questions where almost all appear to be at total loss to understand as what to do and accordingly, we feel that judicial discretion, rather the wisdom on the point involved warrants, mandates us to discharge our duty to the society by specifically observing something which may ultimatley flood light the neglected issue awakening the social spirit and the Government to attend to it now or never before it is too late !! 1.1 We at the very outset of this judgement make it clear that the constraints under which we have been called upon to highlight, resolve and recommend remedy to the problem, if possible, is not at all any justification of crime committed by accused out of his immaturity being victim of blue film culture but it is entirely because the State ultimately not satisfied with 7 years RI filing an appeal for the enhancement of sentence and the learned APP still further insisting upon not to reduce the sentence of the young accused, where he in our opinion cannot be held wholly accountable but for the contributory psychic pollution which has taken toll of him and takes toll of many such other unwary young accused persons of our age, that we have undertaken this detailed exercise. 2. In order to appreciate the aforesaid questions as to in what background and context the same arise, it is indeed first of all necessary to succinctly narrate the prosecution case as it gets reflected in the charge (EX-2) and the circumstances leading to filing of the present two appeals. 2.1 It is the prosecution case that on 6-4-1990 in between 12-00 hours & 13-00 hours accused-Dharmendra committed rape on Anupama aged about 13 and half years in her house, situated at Samratnagar, Ishanpur, Ahmedabad On the basis of this allegation, the complaint (EX-22) came to be filed by PW-2 Anupama before PW-6 Laxmanbhai Rupabhai Damor, PI Vatva Police Station, Ahmedabad. After the investigation was over, the accused came to be chargesheeted to stand the trial for the alleged offences punishable under sections 376 and 452 of the IPC before the Sessions Court at Ahmedabad. 3. At trial, the accused pleaded not guilty and claimed to be tried. His case was that of total denial. The trial court accepting and relying upon the evidence of PW-2 Anupama as corroborated by the medical evidence brought on record that of PW-6 Dr.R.I.Patel, convicted the accused for the offence of rape under section 376 of IPC sentencing him to suffer RI for 7 years and to pay a fine of Rs. 1000/-, and in default, to undergo further RI for two months. So far as the offence punishable under section 452 of the IPC is concerned, the accused was sentenced to suffer RI for two years, and to pay a fine of Rs. 500/- and in default to undergo further RI for 15 days. Both these substantive sentences were ordered to run concurrently. It is this order, which is challenged before us by way of two Criminal Appeal No. 716/95 and 912/95. The first one is by the accused against his order of conviction and sentence while the second one is by the State of Gujarat for the enhancement of sentence. 4. When this matter was called out, Mr. Ashok Shah, the learned advocate appearing for the appellant-accused fairly submitted that so far as the order of conviction is concerned, he was indeed not in a position to challenge the same and accordingly he would like to confine himself only to submissions on the point of sentence, which is quite harsh and unjust in view of the age of the accused and the victim girl which at the relevant point of time was of 20 and 13 years respectively, and secondly, and more particularly in view of an Affidavit filed before this Court by PW-2 Anupama, wherein she has gracefully stated that she is already married and she has condoned the act of the accused as it happened in spur of moment because of the tender age and immaturity. For this purpose, Mr. Shah has first of all invited our attention to the order passed at the admission stage on 15-11-1995 by one of us (my learned Brother D.G.Karia J. sitting as a Single Judge). The said order reads as under: " Admit. Affidavit by the prosecutrix-Anupama Shambhubhai Shah dated November 13, 1995, is produced which is taken on record. As regards correctness of the contents of the affidavit, it is ascertained from the prosecutrix who is personally present in the court today. Mr. A.D.Shah, learned advocate for the appellant undertakes to provide paper-book within 10 days from today. In the facts and circumstances of the case, the appeal is fixed for final hearing in the week commencing from 27th November 1995 ". Thereafter Mr.Shah has invited our attention to the affidavit filed by PW-2 Anupama, wherein in substance it is stated that the accused Dharmendra is already married and having a wife and a minor child of two years. Under the circumstances, according to Anupama, if Dharmendra was made to suffer the entire period of RI of 7 years, that will consequently adversely recoil upon the happy marital life prospects of his wife and the only child which will shatter and ruin their lives. She has further admitted that the unfortunate incident took place because of tender age and immaturity. Not only that but after the alleged offence, about more than five years have already passed. The accused is the only bread-winner in his family and that there is none in his family to take care of his old parents also ! Under the circumstances, sympathizing with the accused, PW-2 Anupuma has stated that neither she nor her family members are in any way interested in seeing the married wife and the minor child of the accused placed in a pitiable helpless condition. She has further stated that though this case is not compoundable, still however, she heartily prays this court to reduce the sentence imposed upon the accused, as a result of which he and his family members could be saved from the prolonged agony of seperation, uncertainty and losing the warmth, shelter and the companionship of each other. She has further assured this Court that because of the rape committed by the accused, she is in no way further prejudiced or harmed as now she is happily married and merrily passing her married life. 5. In support of the aforesaid submissions to reduce the sentence, Mr. Shah has relied upon three decisions of the Supreme Court and one of this High Court. All these decisions are on the point of reduction of sentence in the alleged cases of rape by young accused round about the age of 20 years. They are (1) AIR l980, SC 249 (Tulsing State of Haryana); (2) AIR 1989, SC 937 (Premchand VS State of Haryana); (3) AIR 1994, SC, 222 (Raju VS State of Karnataka); and (4) 1991 (2) GLR 124 (Budhiyo Chhagan Vaghari VS State of Gujarat). On the basis of the aforesaid submissions, Mr.Shah finally urged that taking into consideration the peculiar facts and circumstances of the case, this court should take a lenient view of the matter and release the accused with whatever sentence he has undergone. According to Mr. Shah, the accused has undergone his period of imprisonment for one year and two months which is sufficient to meet the ends of justice. 6. As against the above, Mr.Nigam Shukla, the learned APP submitted that looking to the gross facts, the sentence imposed upon the accused should not be reduced and that too reduced to the extent of the sentence undergone. The learned APP further submitted that the minimum sentence prescribed for the offence of rape is 7 years, and that the sentence essentially being the discretion of the trial court, merely because prosecutrix has tendered the affidavit, that is no ground to take a lenient view of the matter. The learned APP further submitted that if such practices of affidavit by prosecutrix are introduced and entertained, it may encourage some scheming, unscrupulous accused persons to forcibly obtain the same and get away lightly with reduced sentence !! The learned APP further vehemently submitted that the virus of rape is fast escalating in the society and if too liberal view of violent sex-crime like rape while imposing the sentence is taken, then the deterrent impact of the imprisonment getting blunted out, it will fail to deter the sex hungry wolves, maniacs in the society victimizing the innocent girls and the girls of the tender age. Once the court takes a liberal view, according to the learned APP, that will set an unfortunate bad precedent where the decision of this Court will be shown to the trial Court where it failing to differentiate case and case, may lightly let off the accused, and as a result, the most important punitive object of deterring the offender to commit such crimes in future as well as the like minded persons who are prone to commit such crimes will get lost. The learned APP further submitted that the instances of crime, rape etc. are increasing mainly because of the movies exhibited in theatres and on TV channel. The learned APP further submitted that off late there are certain late night TV Programmes where there is one channel known "Plus 21 channel" which exhibits pictures for adults which is alleged to be pornographic capable of corrupting the weak and impressionable minds particularly of younger generation, which is otherwise banned by the Government is openly exhibited !! It is also alleged before us that some such 'Play-boy' channel displaying sex-vulgarity is exhibited in USA also !! The learned APP submitted that he is saying so on the basis of a news paper report viz. "Sunday Observer" published from Bombay. On the basis of all these submissions, the learned APP finally urged that taking into consideration the gravity and seriousness of offence, the sentence imposed deserves to be enhanced, if not, then atleast in no case there is any justification to reduce the same, as prayed for on behalf of the accused. 7. Now having heard the rival contentions on the point of reduction and enhancement of sentence, we at the very outset, would like to disallow totally baseless and misconceived apprehension of the learned APP that if the sentence in the instant case is reduced, it will set an unfortunate bad trend and precedent. We remind the learned APP of the settled legal position that on the point of sentence, there can never, never be any precedent. A Judge while imposing the sentence has to look to the peculiar facts and circumstances of that particular case, in his hand, and it is only when he is satisfied that the case calls for liberal view regarding the sentence, then on some illuminating guidelines from the higher Courts only the court takes that particular view. In this view of the matter, the submission of the learned APP that this court ought not to reduce the sentence, on the ground of bad precedent being totally misconceived, we accordingly summarily reject the same. Similarly, there is indeed no substance in the apprehension of the learned APP that if Court starts accepting Affidavits of the prosecutrix for reduction of sentence then it will encourage some overbearing, head-strong criminals to procure at any cost such affidavits and escape with the lighter sentence. The reason is before accepting and relying upon such affidavits of prosecutrix recommending lighter sentence, the Court before which matters are pending always verifies not only the truthfulness and genuineness of affidavit but in a given case also directs the concerned Investigating Officer to carry out discreet inquiry whether it was voluntary or was obtained under any fraud, duress or any other sort of coercion and black-mailing. This would be clear from two decisions of this Court reported in (1) 34 (1993) 1 GLR 810, State of Gujarat versus Bhikhaji Kaluji & Ors., (2) 31 (1992) GLR p-856, Mahipatsinh Panchaji Jadeja versus State Gujarat. 8. This now takes us to three core questions in this appeals viz., firstly, whether any case is made out for the enhancement of sentence or vice a versa for the reduction of the same ? Secondly, if either way yes, than what would be the just and proper order of sentence, and thirdly whether and when a State which to some extent as alleged is quite oblivious to its duties to the problem of mental health of the people and in particular to that of unwary youth continuously being influenced, victimized and obsessed by obsense film and pornographic literature perennial streamed through some of the T.V channels, polluting their clean consciousness, has it indeed any right to urge and press for the enhancement of sentence !! 8.1 To answer above questions, let there be before us the relevant circumstances pressed in service for the reduction of the sentence to already undergone. On careful and anxious perusal of the affidavit filed by the victim girl PW-2 Anupuma, what we can read in-between the lines is that the offence of rape took place because of their tender age and immaturity !! This statement in the affidavit in a way is quite indicative of perhaps she was a consenting party though undoubtedly the consent will not make any difference because PW-2 Anupama at the relevant time was only 13 and half years of age. We wish we are wrong in drawing inference by reading in-between lines, though it is difficult to resist this inference !! However, in her affidavit before this Court, PW-2 Anupama has shown her heart-felt concern and anxiety about the married life of the accused and the shattering blow that it will get as a result of 7 years' rigourous imprisonment to his innocent wife and a minor child who has not committed any wrong !! We make it clear that merely because the accused is married or is having minor children or he is the sole bread-winner of the family and/or that he has old parents, these facts and such other circumstances may or may not be a good ground for taking a lenient view of the matter in all cases, but undoubtedly in the first place, her admission that the incident in question took place because of their tender immature ages and in the second place her voluntary, true, genuine and graceful pardon to the accused are two going to the root vital circumstances which has surely clicked our conscience to take a reasonable rather slightly lenient view of the matter while awarding the sentence as we would not certainly like any person to be a victim of the circumstance to be further victimized by continuing him to undergo the substantive sentence of r.i. for 7 years !! 8.2 In this case, it indeed can not be ruled out that the accused becoming victim of the blind sex instinct where his flooding, over-pouring upsurge in weak-moment of tender age overtook him, making him further blind, childish and indiscreet and/or may be further because of some bad company and/or because of the obscene magazines and the dirty obscene films electrified in each house that has probably lead him to commit rape on PW-2 Anupama ! This spreading of the most contagious, insatiable (barring few exception) quite an explosive sex desire appear to be now turning into chronic psychic epidemic in the society !! This is bound to catch unwary young generation of slippery age and immaturity tobe readily afflicted with chronic disease like eves teasing, molesting, kidnapping and abducting girls, blackmailing them to marriage and/or have illicit sexual intercourse, rape, turning into violent rape, gang-rape, paedophilia in other words child-rape even, which all of us are terribly scared to think or dream of even ! No doubt, ordinarily, person should be discreet enough to resist such base desires, temptations but some may not be that capable to do so more particularly young person of the tender, immature impressionable age. Life exprience tells us that we shall have to take into account quite unguarded highly sensitive emotional passionate, readily inflammable nature of many of our younger ones, wherein the ordinary discretion, maturity and wisdom is if not totally at some loss, will surely take some time to be ripe enough and blossom to the fullest extent to become immune to be incombustible. Further, regarding the sex-passion it is continuously fanned by dirty obscene magazines and movies. This is an indisputable and so far unremidied situation and accordingly howsoever high that society may think of its ideal state but if the sex and crime culture spreading situations are not taken care of, nothing could be substantially done to prevent sex crimes being committed, repeated and gradually increasing in the Society ! Under such volcanic tell-tale eruptible circumstances, if a girl aged 15 and a boy aged 20 afflicted with in-built irresistible sex-instinct, outward sex-virus and infatuation, on seeing each other in weak, unguarded moment, unable to control, get sexed and commits some indiscreet act, which of course is highly reprehensible, illegal, and undoubtedly punishable with the sentence of imprisonment, but then should this Court also be oblivious to the said conspicuous circumstances and be blind and mechanical in matter of imposing excessive sentence upon accused, who is required to be pitied more than ruthlessly condemned ? More particularly, what indeed the accused could do when all around in the society, the psychic atmosphere stands increasingly polluted and degenerated and he like many other young-ones becoming the unconscious victim of the same, and further when the Government which is otherwise duty bound and accountable to control all such sorts of pollutions including the psychic pollution, does just nothing of the sort to prevent, (i) sale of obscene magazines, (ii) the production and exhibition of obscene films containing the nude dances with vulgar, double meaning songs in the pictures and (iii) the advertisement exhibiting indecent representation of women !! Sex has always remained the weakest point of man-kind, quite easy to inflame and blind persons often even aged one on any slightest pretext and opportunity than in that case what to talk about younger ones, who have no experience of life at their back ! The fact that the sex instinct is something over-powering and uncontrollable even by persons beyond the age of 50s or 60s needs no more further comments. It is such a weakest point where as narrated in our mythological scriptures (our invaluable inexhaustible wisdom treasure of para psychology !!) many a times even highest 'Tapasvis' have fallen down lured by sex-lust and if we want the illustration, it is the case of great Vishvamitra and Menka ! In fact, it is rightly said that sex lies hidden like a fire in the wood ! It is also further rightly said that the sex desire is like dry gun-powder which on even slightest pretext could be sparked off and has potentiality to get exploded. There are stories in our puranic shastras where some Saints on merely seeing even the sex play of