Chand Khan vs State of Madhya Pradesh

Appellant has filed this appeal against the judgment of conviction dated 12.12.2007 passed in Sessions Trial No.230/07. The trial Court held

the appellant guilty for commission of offence punishable under Sections 376(f) and 377 of IPC and awarded sentence of RI life and RI three

years alongwith fine of Rs.2,000/- and Rs.500/- respectively.

Prosecution story in brief is that prosecutrix, who was five years old, was playing in the courtyard. The appellant was the neighbour of the

prosecutrix. He called the prosecutrix and requested her to bring a gutkha for him. When the prosecutrix returned back, the appellant committed

sexual intercourse (vaginal as well as anal) with her. She came back crying and screaming to her nani (grandmother) and narrated the story. Blood

was oozing from her private parts. At that time, mother and father of the prosecutrix were not at home. When they came back, the prosecutrix

narrated the incident to them. Prosecutrix''s nani administered one pain killer to her. FIR of the incident was lodged next day, when the parents of

the prosecutrix came back to the house. Police conducted investigation and filed charge-sheet. The appellant abjured the guilt and pleaded

innocence. The trial Court held the appellant guilty for commission of offence and awarded punishment as mentioned above in the judgment.

Learned Amicus Curiae for the appellant has submitted that the appellant is innocent. He has not committed rape with the prosecutrix. The trial

Court committed an error in holding the appellant guilty for commission of offence of rape and awarded severe punishment.

Learned Government Advocate appearing on behalf of the State has submitted that the appellant is a habitual offender. There is ample evidence

on record against the appellant. The trial Court rightly held the appellant guilty and awarded a proper sentence.

PW-1 Prosecutrix, deposed that I am studying in Madarsa. Nafisa Begum is my nani. I know the appellant Chand Bhai. Appellant told me to

take a gutkha for him. When I went to the house of the appellant alongwith gutkha, he had taken me inside the house, thereafter, he had committed

rape with me. When I cried, he told me that he would kill me by knife. Thereafter, Rani aunty came there and she took me to my nani. Blood was

coming from my vagina as well as anus. I told the whole story to my nani that Chand Bhai committed rape with me.

PW-2 Nafeesa Bi is the nani of the prosecutrix. She deposed that the prosecutrix, at that time, was aged about 5 years. The appellant is my

neighbour. Prosecutrix told me that the appellant had requested her to bring a pouch of gutkha and when the prosecutrix went to the house of the

appellant, he committed rape with her (vaginal as well as anal). When the prosecutrix came to me, blood was coming from her vagina and anus. I

went to tell the incident to my daughter, who is the mother of the prosecutrix because father and mother of the prosecutrix were not at the house.

When the prosecutrix told me that there was pain in her stomach, I administered a pain killer to her. On next day, when my daughter and her

husband came to the house, we went to police station and lodged the report, which is Ex.P1 and I signed the same. Police recorded my statement.

Cloths of the prosecutrix were seized vide seizure memo Ex.P2.

PW-4 Dr. Pinky Tiwari deposed that I was posted RMO on 20.06.2007 at Sultaniya Lady Hospital, Bhopal. I examined the prosecutrix. There

was no external injury on her body. There was swelling on her vagina and abrasion on the anus. I do not opine that any rape was committed with

her.

PW-5 Dr. Sudha Chaurasiya deposed that I was posted Associate Professor on 19.06.2007 at Sultaniya Lady Hospital, Bhopal. On that date,

prosecutrix was admitted in the hospital. There was perennial injury. She told me that there was a pain in lower part of her body and rape was

committed with her. She was discharged after one day.

PW-3 Shambhuprasad Ahirwar is the Investigating Officer. He deposed that on 20.06.2007, I was posted as Station House Officer Incharge at

Police Station Ashoka Garden, Bhopal. Nafeesa Bi informed me that the appellant had committed rape with her granddaughter (prosecutrix)

vaginal as well as anal and blood was coming from the private parts of the prosecutrix. Nafeesa Bi called her neighbours. The report of the incident

was lodged when the father and mother of the prosecutrix came to the house. I registered the FIR, which is Ex.P1 at the Police Station and signed

the same. Thereafter, I prepared spot map Ex.P3 and signed the same. Some cloths of the prosecutrix were also seized vide seizure memo Ex.P2

and I signed the same. I recorded statements of Nafeesa Begum, Basheer, Rukaiya, Aisha Bi, Smt. Baby and Mohd. Abrar. The prosecutrix was

sent for medical examination. When the prosecutrix was discharged from the hospital on 23.06.2007, I recorded her statement. The appellant was

arrested vide arrest memo Ex.P6 and I signed the same. The appellant has a criminal history. He is a history sheeter. In the year of 2004, a case of

rape was also registered against the appellant.

The appellant in his statement under Section 313 Cr.P.C. stated that he has been falsely implicated in the case.

The prosecutrix (PW-1) in her statement specifically deposed that the appellant had committed sexual intercourse (vaginal as well as anal) with

her. Blood was coming from her private parts. She immediately told the story to her nani Nafeesa Bi (PW-2). The evidence of PW-1 and PW-2 is

quite natural and it is unshakable in cross-examination. Dr. Pinky Tiwari (PW-4) deposed that she examined the prosecutrix on 20.06.2007 and

noticed that there was swelling on the vagina and abrasion on the anus of the prosecutrix. However, she could not give any definite opinion about

sexual intercourse. PW-5 Dr. Sudha Chaurasiya deposed that the prosecutrix was admitted in the hospital for the ailment of perennial injury and

she remained in the hospital for one day. There was swelling and abrasion on both sides of labia.

From the evidence of the doctors and the prosecutrix, this fact has been proved that the appellant tried to commit rape with the prosecutrix

and the act of the appellant would amount to rape. The report of the incident was lodged on the next day, which is quite natural because the father

and mother of the prosecutrix were not at the house and when they returned back, the report was lodged.

The age of the prosecutrix, at the time of incident, was near about five years. The Amicus Curiae for the appellant has submitted that the trial

Court has awarded an excess punishment to the appellant. In support of his contention, he relied on a judgment of this Court passed in Criminal

Appeal No.415/2007 (Rajesh Patel vs State of Madhya Pradesh). We are not in agreement with the arguments advanced by the learned Amicus

Curiae. In the present case, the appellant has a criminal history. He was involved in number of criminal cases. Earlier also, he was prosecuted for

commission of offence of rape. He is found guilty for commission of offence punishable under Sections 376(f) and 377 of IPC. The act of the

appellant is cruel in nature.

The Apex Court in the case of Shyam Narain vs State (NCT of Delhi), (2013) 7 SCC 77 confirmed the sentence of life when the accused

committed rape with an 8 years old girl. The Apex Court has held as under:

Presently, we shall proceed to deal with the justification of the sentence. Learned counsel for the appellant, would submit that though Section

376(2) provides that sentence can be rigorous imprisonment for life, yet as a minimum of sentence of ten years is stipulated, this Court should

reduce the punishment to ten years of rigorous imprisonment. It is urged by him that the appellant is a father of four children and their lives would

be ruined if the sentence of imprisonment for life is affirmed.

Mr. Paras Kuhad, and Mr. B.V. Balram Dass, counsel for the State, submitted that the crime being heinous, the sentence imposed on the

accused is absolutely justified and does not warrant interference. It is also canvassed by them that reduction of sentence in such a case would be

an anathema to the concept of just punishment.

Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of

the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle

that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The

purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for

such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is

equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out

this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the

immediate collective as well as its repercussions on the victim.

In this context, we may refer with profit to the pronouncement in Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532, wherein this Court,

speaking about the concept of sentence, has laid down that it is 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. 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.

In Shailesh Jasvantbhai and another v. State of Gujarat and others (2006) 2 SCC 359, the Court has observed thus:

... Friedman in his Law in Changing Society stated that: ""State of criminal law continues to be - as it should be -a decisive reflection of social

consciousness of society."" Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual

matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given

circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the

conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of

consideration"".

In State of M.P. v. Babulal (2008) SCC 234, two learned Judges, while delineating about the adequacy of sentence, have expressed thus : -

Punishment is the sanction imposed on the offender for the infringement of law committed by him. 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. The award of

sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence

being imposed therefore.

The object of punishment has been succinctly stated in Halsbury''s Laws of England, (4th Edition: Vol.II: para 482) thus:

482 Object of punishment. - The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and

modern sentencing policy reflects a 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 when sentences are being

decided"".

(emphasis in original)

. In Gopal Singh v. State of Uttarakhand (2013) 7 SCC 545, while dealing with the philosophy of just punishment which is the collective cry of

the society, a two-Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion.

Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play.

For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the

ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other

concomitant factors.

The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution,

impact on the society, repercussions on the victim and proportionality of punishment have been emphasized upon. In the case at hand, we are

concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way,

hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed

with seriousness and sensitivity by this Court.

The Apex Court has clearly held in the aforesaid judgment that the sexual assault has always been viewed with seriousness and sensitivity by

this Court. The appellant has a criminal history.

Looking to overall facts and circumstances of the case, in our opinion, the trial Court has awarded a proper sentence to the appellant. We do

not find any merit in this appeal. It is hereby dismissed.