Manohar vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Appellant viz., Manohar @ Madan has instituted instant appeal under Section 374 of the Code of Criminal Procedure, 1973, to assail the judgment dated 17.06.2006 rendered by the Special Judge (Women Atrocities and Dowry Cases), Jaipur City, District Jaipur, whereby the appellant was convicted for offences punishable under Sections 363, 366 and 376(2)(F) of Indian Penal Code.

Having held the appellant guilty of above said offences, the trial Judge, by a separate order of even date, sentenced him as under:--

"For offence under Section 363 I.P.C. the appellant was sentenced to undergo three years'' rigorous imprisonment and to pay a fine of Rs. 100/- in default of payment of fine to further undergo three months'' rigorous imprisonment.

For offence under Section 366 I.P.C. the appellant was sentenced to undergo seven years'' rigorous imprisonment and to pay a fine of Rs. 20,000/- in default of payment of fine to further undergo one year rigorous imprisonment.

For offence under Section 376(2)(F) I.P.C. the appellant was sentenced to undergo life imprisonment and to pay a fine of Rs. 80,000/- in default of payment of fine to further undergo two years rigorous imprisonment."

All the sentences were ordered to run concurrently.

The trial Judge further held that the amount of fine of Rs. 1,00,000/- shall be paid as compensation to the victim through her father Anwar (complainant).

In the present case, the appellant had committed rape upon nine-years old daughter of the complainant, Anwar (PW-5) {name of the girl child has been withheld to protect her identity and herein after to be called as ''the victim''}.

Anwar (PW-5) on 09.04.2006 made a statement (Exhibit-P/3) before Samaydeen (PW-15), who was then posted as Station House Officer, Vidhyadhar Nagar, Jaipur. In his statement, he stated that he is resident of Graveyard (kabristan), Vidhyadhar Nagar, Jaipur and looked after the Graveyard (kabristan). His wife had expired three-years ago leaving two children. The elder son is aged nine-years and younger daughter is aged seven-years. The complainant used to ply rickshaw and stay in the Graveyard (kabristan). The complainant has stated that on 07.04.2006 at about 09:30 P.M. when he reached at the house, his daughter was weeping and she was bleeding. The victim stated that the present appellant, who is an elder brother of Kana, who used to play with the child victim, had committed offence of rape. The victim further stated that the elder brother of Kana picked her up and took towards the drain in the park and had committed bad act. The complainant had gone to the house of accused to make complaint, but the family members of the accused had behaved arrogantly.

In the present case, the victim herself had stepped into the witness-box as PW-2.

The victim stated in the Court that the present appellant, being elder brother of Kana, came under the influence of liquor. He had taken her towards drain (nala), where there was a bathroom. In the bathroom, he had inserted his male organ in the private part of the victim. The testimony of the victim has been duly corroborated by the statement made by her elder brother, Shahrukh, who was aged about nine-years.

The victim was medico-legally examined. Dr. Manju Sharma (PW-12) proved Medico-Legally Report (Exhibit-P/14-A).

In the Medico-Legally Report, the Doctor had noticed the following injuries:--

"Tear present on perineum in mid line extending upto anal sphincter. Anal sphincter intact, bleeding pv slight present, tear is about 1.5 cm x.5 cm. upto and sphincter clotted blood present sign of inflammation, redness present, hymen intact."

Vide (Exhibit-P/15-A, the Doctor had given the following opinion:--

"It is further clarified that possibly perineal tear cannot be ruled out as a result of sexual intercourse, however, final opinion can be given after receiving chemical report which is already mentioned in NLR dated 08.04.2006."

Nobody had caused appearance on behalf of the accused-appellant.

On 30.01.2015, this Court has appointed Mr. Pankaj Gupta, as Amicus Curiae on behalf of the appellant.

Mr. Pankaj Gupta, the learned Amicus Curiae appearing on behalf of the appellant, has referred to the cross-examination of the victim to contend that the victim admitted that accused only inserted finger in her private part.

The learned Amicus Curiae contended that in the present case, occurrence had taken place in April, 2006 and Section 376 I.P.C. has been amended after 2006 and since same will not apply retrospectively, therefore, we should hold that no offence of rape is made out.

We find no merit in the argument advanced by the learned Amicus Curiae appearing on behalf of the accused-appellant.

The victim, in her examination-in-chief, has specifically stated that accused had put his male organ in her private part. In her cross-examination, she stated that it is correct that accused had inserted finger, but besides finger, he had also done bad act. She further stated that it is correct that by inserting finger, accused had done wrong act.

Having considered the statement of the victim, in examination-in-chief, we are of the view that the stray line of the cross-examination cannot be taken to rule out specific description given by the victim. Furthermore, the medical evidence also corroborates description of the bad act done by accused. Thus, to us, in the present case, offence of rape is made out.

The learned Amicus Curiae appearing for the accused -appellant has also not assailed the age of the victim. Admittedly, she was less than twelve-years of the age. Furthermore, the offence under Section 376(2)(F) I.P.C. is made out and same has been duly proved by the prosecution.

Mr. Gupta, learned Amicus-Curiae, in alternative, has submitted that there was no justification for the trial Court to award life imprisonment.

It is contended by the learned Amicus Curiae that Section 376(2)(F) I.P.C. itself describe the offence; and submitted that if the victim is less than twelve years of age and is subjected to rape, under Section 376(2)(F) I.P.C. the minimum sentence of ten years has been prescribed.

To fortify his submissions, learned Amicus Curiae, has relied upon the judgment rendered by the Hon''ble Apex Court in the case of Bavo @ Manubhai Ambalal Thakore Vs. State of Gujarat, AIR 2012 SC 979 : (2012) CriLJ 1573 : (2012) 1 Crimes 230 : (2012) 2 JCC 974 : (2012) 2 JT 29 : (2012) 1 RCR(Criminal) 820 : (2012) 2 SCALE 321 : (2012) 2 SCC 684 : (2012) AIRSCW 1276 : (2012) 1 Supreme 740 wherein Hon''ble Apex Court has held as under:--

"7) Section 376 speaks about the punishment for rape. Sub-section(2)(f) makes it clear that whoever commits rape on a woman when she is under 12 years of age shall be punished with RI for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. Proviso appended to sub-section (2) makes it clear that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years.

8) It is clear from the above statutory provision that for the offence of rape on a girl under 12 years of age, punishment shall not be less than 10 years but which may extend to life and also to fine shows that the legislature intended to adopt strictness in awarding sentence if the victim is below 12 years of age. No doubt, the proviso to Section 376(2) lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than 10 years. It is settled law that courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. In the absence of any special and adequate reasons, recourse to proviso mentioned above cannot be applied in a casual manner.

9) Learned counsel for the appellant relied on a decision of this Court in Narayanamma (Kum) Vs. State of Karnataka and Others, (1994) 5 JT 436 : (1994) 3 SCALE 879 : (1994) 5 SCC 728 : (1994) 2 SCR 799 Supp and contended that the life imprisonment is not warranted and sentence may be reduced to the period already undergone. The said decision relates to the rape on a minor girl aged 14 years. While the trial Judge convicted and sentenced the accused to three years RI, the High Court reversed the same and acquitted the accused. It was challenged before this Court. After considering the entire materials, this Court set aside the order of the High Court and affirmed the conclusion arrived at by the trial Court. Though this Court expressed displeasure in awarding only three years RI for the crime of rape, taking note of length of time, not inclined to enhance it and confirmed the sentence awarded by the trial Court.

10) Counsel for the appellant relied on another decision of this Court in Rajendra Datta Zarekar Vs. State of Goa, AIR 2008 SC 572 : (2008) CriLJ 710 : (2007) 13 JT 387 : (2007) 12 SCR 840 : (2008) 1 UJ 1 . The said case also relates to the offence under Section 376. The victim was aged about 6 years and the accused was aged about 20 years. Ultimately, this Court confirmed the conviction and sentence of 10 years as awarded by the High Court. However, the fine amount of Rs. 10,000/- awarded under Section 376(2)(f) being found to be excessive reduced to Rs. 1,000/-.

11) Considering the fact that the victim, in the case on hand, was aged about 7 years on the date of the incident and the accused was in the age of 18/19 years and also of the fact that the incident occurred nearly 10 years ago, the award of life imprisonment which is maximum prescribed is not warranted and also in view of the mandate of Section 376(2)(f) IPC, we feel that the ends of justice would be met by imposing RI for 10 years. Learned counsel appearing for the appellant informed this Court that the appellant had already served nearly 10 years."

Recently, the Hon''ble Apex Court in case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), (2013) 10 AD 541 : (2013) 3 DMC 497 : (2013) 4 JCC 2718 : (2013) 13 JT 320 : (2013) 4 RCR(Criminal) 694 : (2013) 12 SCALE 473 : (2014) 4 SCC 375 : (2014) 2 SCJ 578 has held that in those cases where death sentence is not called for, Court should make an endeavour to balance the aggravating and mitigating circumstances to award "just sentence".

Taking into account, the fact that in Bavo @ Manubhai Ambalal Thakore (supra) relied by the counsel for the appellant, Hon''ble Apex Court had reduced the sentence, and the observations made in Sunil Dutt Sharma''s case (supra), this Court is of the view that except appellant had penetrated his male organ in the vagina of seven years girl child no other aggravating circumstances is available on record, however, the mitigating circumstances that the appellant is already in corridors of the Court from last nine years, and was aged twenty years on the date of occurrence, and was not a previous convict, cannot be ignored. Thus, this Court is of the view that by balancing aggravating and mitigating circumstances the ends of justice will be fully met in case life imprisonment awarded upon the appellant under Section 376(2)(F) I.P.C. is reduced to ten-years. Hence, while maintaining the conviction of the appellant, we reduce the sentence of life imprisonment awarded upon the appellant to ten years rigorous imprisonment. However, we maintain the sentence of fine and default clause.

With the above modification in the sentence, present appeal stands disposed of.

As a parting note, we have our reservations regarding capacity of the appellant to pay fine imposed by the trial Court.

In these circumstance, we direct Secretary, State Legal Service Authority to ensure that compensation as per the scheme prepared by the Rajasthan State Government under Section 357(A) Cr.P.C. is paid to the victim through her father. The Secretary, State Legal Services Authority shall take all active steps for payment of the compensation under Section 357(A) Cr.P.C. in consonance with the Victim Compensation Scheme prepared by the State of Rajasthan, and amount of compensation shall be deployed for the welfare of the victim. The amount shall be paid without disclosing identity of the victim, so that her matrimonial prospects are not affected. The Secretary, Legal Services Authority shall show great sensitivity towards victim while disbursing the amount.

Let a copy of this order be sent to the Secretary, Rajasthan State Legal Services Authority and the Secretary, Rajasthan High Court State Legal Service Committee.