CRIMINAL APPEAL No.267 OF 2003 ******** Against the Judgment and order of conviction and sentence dated 25th April, 2003 and 30th April, 2003 passed by the Additional Sessions Judge, 5th Additional Sessions Judge, Gaya in Sessions Trial No. 28 of 2001 / 323 of 1997. ********** Jitu Rawani, Son of Bhusan Singh, resident of Village – Telbigha Mirchaiya Gali, P.S. – Gaya Kotwali, District – Gaya -----------(Appellant) Versus The State Of Bihar --------------(Respondents) ********** For the Appellant : M/s N.K. Agrawal, Senior Advocate R.P. Bhagat and Ajay Kumar Sinha, Advocates For the State : Mr. Lala Kailash Bihari Prasad, Senior Advocate A. P. P. ********* P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ********** Navin Sinha & Dharnidhar Jha, JJ. The appellant stands convicted and sentenced to life imprisonment under section 376 of the Indian Penal Code in Sessions Trial No. 323 of 1997 / 28 of 2001 by judgment and sentence dated 25.4.2003 / 30.4.2003 of the 5th Additional Sessions Judge, Gaya, along with fine of Rupees ten thousand and in the event of default, rigorous imprisonment for one more year. 2. The Fard-e-beyan of the victim aged 9 – 12 years, P.W. 3, marked as Exht. 1, was recorded on 25.7.1996 at about 12.15 P.M. registered as an FIR on 26.7.1996. She stated that on 24.7.1996 at about 3 P.M. she was at home when the appellant who was her neighbour came to her house and persuaded her to accompany him to eat guava. On her declining to do so, he dragged her by the hand to his house. There was none in his house. He locked the door, threw her on the cot, 2 opened his clothes and stood near her. When she cried, he covered her mouth with his hands, opened her undergarments and committed forcible intercourse with her. He stayed atop her for a while. After some time, she felt a warm liquid on her legs. The appellant then lay quiet. His mother came and knocked on the door when he quickly wore his clothes and left threatening the informant not to make any disclosure. He wiped a white liquid off her when she stood up and threw the cloth out of the window. The victim quietly left for her home leaving behind her undergarment. She informed her mother and the Fard-e-beyan was lodged no sooner that her father came home. 3. Learned counsel for the appellant submitted that the medical examination of the victim on 25.7.1996, a day after the alleged occurrence, no sign of sexual intercourse has been found by the doctor and therefore, it may, at best, be a case of attempt to rape or a case of indecent assault and, therefore, the sentence to undergo life imprisonment was not justifiable in any event of the matter. He further submitted that the alleged victim was a minor. Her evidence cannot be accepted ipso facto and has to be taken with caution as exaggeration cannot be ruled out. Lastly, on the question of sentence, it was submitted that it was grossly disproportionate in the nature of the allegations made which, at best, may constitute an offence punishable for an attempt to rape or indecent assault as noticed above. 4. The medical report of the victim assesses her to be between 9 – 12 years of age with no secondary sexual characters. The appellant is stated to be a married man of approximately 32 years with a daughter born from the marriage. 5. The victim girl has explicitly stated in her deposition that she did resist the attempt of the appellant to take her to his house when he dragged her alone. He locked her in the room and disrobed her. When 3 she protested, he covered her mouth with his hands. She specifically states that the appellant committed sexual intercourse with her. In her evidfence in court, as a minor girl, she aptly describes it as a “wrong act”. In her cross-examination, she has specifically stated at paragraph 4 that he inserted his male sex organ into her urinary passage when she experienced pain without any bleeding and at this time, he ejaculated on her thighs. She has adequately explained that he then wiped off the semen and threw the cloth out of the window. 6. The Investigating Officer has clearly stated that he seized the undergarments of the victim from the house of the appellant proved by P.W. 4, the seizure list witness. 7. We have examined the first medical report of the victim conducted by P.W. 7. To say the least, it is perfunctory and non committal in nature as it itself says that the matter may be referred to a Medical Board, of which P.W. 7 then sits as a member also. The examination by the medical board done nearly three weeks later would hardly be of any help or relevance for an act much earlier in time, when the victim would have continued with the daily chores of life every day. 8. In allegations under section 376 of the Indian Penal Code, the statement of the victim/prosecutrix carries its own weight as noticed by the Supreme Court in 2004 (4) Supreme Court Cases 379 at paragraph 5 as follows : “It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice”. 4 9. The same judgment in the relevant extract at paragraph 7 notices that it is not only in cases of complete penetration that the offence of rape can be stated to have been committed. This court can do no better than to quote the following extract from paragraph 7 of the judgment in support of its conclusion that in the facts and circumstances of the present case there has been a partial penetration leading to ejaculation by the appellant, thus fulfilling the offence. “Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the women, no matter how little……….. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statue merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape…….. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under section 376 IPC.” 10. From the description given by the prosecutrix herself and her demeanor as noticed by the court below during her deposition, when she is stated to have been crying throughout, the deposition having been made barely two and half years after the occurrence, we are not persuaded by the argument on behalf of the appellant that she was a minor to the extent of not having developed mental faculties to appreciate the nature of the action so as to make out a meticulous blindfold story as was sought to be suggested on behalf of the appellant. We reject the said submission on behalf of the appellant. 11. It needs no emphasis that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is 5 inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery. 12. In view of the discussion aforesaid based on the statement of the prosecutrix herself, our satisfaction that the sexual offence of penetration had been committed by the appellant, we are not persuaded to accept the argument that it was either a case of attempt to rape or indecent assault. 13. The next submission was on the quantum of sentence. The proportionality between the crime and punishment serves as the foundation of a civilized society. While the punishment must not be disproportionate, at the same time, it cannot be less than what is called for on the criminal conduct with the finding of guilt. 14. In State of M.P. Vs. Munna Choubey (2005) 2 SCC 710, it has been held as follows: “10 Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society would not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.” 15. While dealing with allegations under section 376 of the Penal Code when the victim was tweve years of age , the Supreme Court in the case of State of Karnataka Vs. Raju AIR 2007 S C 3225 has held as follows: 7. It is to be noted that in sub-section (2) of Section 376, I.P.C. more stringent punishment can be awarded taking into account the special features indicated in the said sub-section. The present case is covered by Section 376(2)(f), IPC i.e. when rape is committed on a woman when she is under 12 years of age. Admittedly, in the case at hand the victim was 10 years of age at the time of commission of offence. 6 8. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. 9. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376(2), IPC, of course, lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years' RI, though in exceptional cases "for special and adequate reasons" sentence of less than 10 years' RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application.” 16. In the facts and circumstances of the case and the materials as discussed hereinabove, we are satisfied that the imposition of the punishment of life imprisonment is not sustainable on the appellant as the same appears excessive. Nonetheless, the tender age of the victim, the trauma to which she was exposed and the mental scar left upon her, the psychological impact upon her of the conduct of the appellant, his 7 status as an adult married man with a daughter, satisfy us that there was absolutely no justification for his conduct. The absence of any serious physical injury upon the victim, perhaps, may be the only mitigating factor in favour of the appellant. We are, therefore, satisfied that justice shall be done if the sentence of life imprisonment imposed upon him is reduced to one of rigorous imprisonment for ten years but we do not interfere with the imposition of fine upon the appellant or the order of sentence in lieu thereof. If the fine is paid, we direct that the same shall be given to the prosecutrix under section 357 of the Code of Criminal Procedure. 17. The appeal is dismissed with the modification aforesaid in sentence. (Navin Sinha, J.) (Dharnidhar Jha, J.) Patna High Court, Dated the 27th July, 2009 NAFR/ Anil/