Iqlam vs State of Punjab

Virender Singh, J.

Iqlam son of Musahib Miya, has been convicted under Section 376 of I.P.C. vide the impugned judgment dated September 16, 1998 passed by the learned Sessions Judge, Kapurthala and sentenced to undergo R.I. for 7 years and to pay a fine of Rs. 1000/, in default of payment of fine to further undergo R.I. for four months.

Aggrieved by the impugned judgment of conviction, the appellant has preferred this appeal.

The appellant was charged under Sections 363/366A/376 of I.P.C. He, however, stands acquitted for the offences under Sections 363/366A of I.P.C. No appeal has been preferred by the State of Punjab, so far as the acquittal of the appellant with regard to the aforesaid offences is concerned.

The main ground taken by the learned trial Court while acquitting the appellant for the aforesaid two offences punishable under Sections 363/366A of I.P.C. was that the prosecutrix in this case was of the age of more than 17 years on the date of alleged occurrence.

I am not describing the name of the prosecutrix in light of the latest judgment of the Hon''ble Apex Court rendered in State of Karnataka v. Puttaraja, 2004(1) RCR (Criminal) 113 (SC). However, she will be referred to herein only as the prosecutrix in this case.

The present case was registered on the statement of the prosecutrix alleging therein that she was working as a maid servant in residential houses situated in Mohalla Har Krishan Nagar, Phagwara. On September 18, 1997 at about 12.00 noon, she was going back to her house after doing the work in the houses, the appellant, who is a labourer and is brotherinlaw of one Azmu, a rickshaw puller, came on a cycle and met her on the road. The appellant on the point of knife after threatening her directed her to sit on the cycle. The prosecutrix out of fear sat on the carrier of the cycle and she was taken to village Gaunspur. The appellant then took her inside the sugarcane field and then committed rape upon her. After she raised an alarm, the appellant fled away from the place of occurrence. It is then contended that she thereafter came to her house and disclosed the incident to her mother HarzanPW4. At night, her father Kishori (not examined) came back and he was also informed about the occurrence. Because of night time, no complaint could be lodged with the police and then on the next date, the prosecutrix made a statement before S.I. Gulshan Rai, the Investigating Officer and on the basis of which, formal F.I.R. was recorded against the appellant under Sections 363/366A/376/506 I.P.C. The prosecutrix was, thereafter, got medicolegally examined by Dr. Jaswinder Kaur Bains PW1. Her clothes were also taken into possession. Rough site plan Ex.PJ of the place of recovery was also prepared by the Investigating Officer. The appellant was arrested on September 19, 1997 at 5.30 p.m. He, however, refused to get himself medicolegally examined. In pursuance of his disclosure statement, Kard (small knife) as got recovered.

On completion of investigation, present appellant was challaned.

As stated above, the appellant was acquitted for the offences punishable under Sections 363/366A of I.P.C. but convicted under Section 376 of I.P.C. Hence, this appeal.

Initially, this appeal was filed by Mr. Kuldip Singh, Advocate and after he was appointed in P.C.S. of Punjab State, Mr. V.M. Gupta, Advocate, had been appointed as an Advocate from the side of the Punjab State Legal Services Authority, to assist this Court on behalf of the appellant.

I have learned counsel for both the sides and with their assistance have gone through the entire record minutely.

Learned counsel for the appellant does not assail the impugned judgment on merits and instead made a prayer for reduction in sentence. At the very outset, he contends that out of 7 years substantive sentence awarded by the trial Court, the appellant has undergone three years and about four months. Then contends that the appellant was of the age of 17 years at the time of occurrence. In this regard, he has drawn my attention to the charge sheet framed by the learned trial Court where the appellant has been stated to be of 17 years.

Dwelling upon his arguments, the learned counsel further submitted that so far as the age of the prosecutrix is concerned, it has already been considered to be of more than 16 years because the appellant has been acquitted for the offences under Sections 363/366A of I.P.C. The fact that the prosecutrix was of more than 16 years and the appellant was of 17 years, a lenient view in sentence part may be taken, the learned counsel so contends. In support of his arguments, he relies upon judgments of this Court reported in Karamvir v. State of Haryana, 2003(4) RCR(Criminal) 331 (P&H) ; Krishan Kumar v. State of Haryana, 1999(2) RCR(Criminal) 773 (P&H) and Mohinder Pal alias Pappu v. State of Haryana, 1999(1) RCR(Criminal) 690 (P&H).

Learned State Counsel has, however, opposed the submissions of the learned counsel for the appellant stating that the appellant does not deserve any concession as he has indulged in committing rape with a girl of the age of hardly 16 years.

Although the impugned judgment has not been assailed on merits, yet I have gone through the entire evidence minutely being the First Court of Appeal. I do not find any infirmity in the prosecution case.

Consequently, the conviction as recorded by the learned trial Court, is hereby upheld.

So far as the quantum of sentence is concerned, I find force in the submission made by the learned counsel for the appellant. Admittedly, the appellant was of the age of 17 years at the time of occurrence and the prosecutrix was of the age of 16 years and above. They are (were ?) almost of the same age. In State of Karnataka v. Krishnappa, AIR 2000 SC 1470 : 2000(2) RCR(Crl.) 459 (SC) , their Lordships of the Hon''ble Supreme Court while dealing with sentence part under Section 376(2) of I.P.C. have observed in para 11 of the judgment as under :

"A perusal of the above provisions shows that the legislative mandate is to impose a sentence, for the rape on a girl under 12 years of age, for a term which may not be less than 10 years, it may extend to life and also to fine. The proviso to Section 376(2) of the I.P.C., of course, laid 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 R.I. though in exceptional case "for special reasons and adequate reasons", sentence of less than 11 (10 yeares ?) years R.I. 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. When 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".

The occurrence relates to the year 1997. The appellant by now must have been settled in his life. Another fact, which cannot be lost sight is that the prosecutrix was of the age of 16 years and by now, she should also be well settled. Another interesting feature of this case is that the appellant and the prosecutrix were staying in the same house for about two years. This fact has been admitted by the prosecutrix in her crossexamination. This shows that the prosecutrix knew the appellant since long. The above facts can be considered as mitigating circumstances in favour of the appellant. In my view, these are "adequate and special reasons" to impose sentence less than one prescribed as minimum in the Statute.

Although, the learned counsel for the appellant has not joined the issue on merits, yet for the purpose of reducing the sentence, I have kept in mind the medical evidence where in PW1 Dr. Jaswinder Kaur Bains has stated as under :

On physical examination : There was no evidence of sexual intercourse done on her.

Taking into consideration the totality of facts and circumstances of the instant case, I am of the view that ends of justice would be adequately met if sentence of 7 years already awarded to the appellant is reduced to the period already undergone. However, sentence of fine shall remain the same. It is, ordered, accordingly.

Except with the modification in the order of sentence, as indicated above, the present appeal stands dismissed.