Md. Taskeen vs The State (Govt. of NCT) Delhi

Sunita Gupta, J.—The challenge in this appeal is to the judgment and order of sentence dated 22nd March, 2012 and 23rd March, 2012 in

Sessions Case No. 15/2011 arising out of FIR No. 375/2010 under Sections 363 /376 /506 /34 Indian Penal Code, 1860 (for short, ''IPC'')

registered as Police Station Sarai Rohilla vide which the appellant was convicted for the offence u/s 376 IPC and sentenced to undergo rigorous

imprisonment for 4 years and a fine of Rs. 5000/-, in default of payment of fine, to undergo simple imprisonment for 2 months. The prosecution

case emanates from the fact that on 11th November, 2010, Complainant Rama Anuj came to the police station Sarai Rohilla and lodged the

missing report of his daughter aged about 15 years i.e. the prosecutrix (name withheld to keep her identity confidential) since 8th November, 2010.

He further raised his suspicion upon one Sunil who used to live in the same house as the complainant as a tenant and stated that his daughter may

have been taken away by the said Sunil by enticing her. On the statement of the complainant, case u/s 363 IPC was registered. During investigation

of the case, on 13th November, 2010, accused/appellant Mohd. Taskeen was apprehended from Old Delhi Railway station and prosecutrix was

recovered from his custody. Investigating Officer of the case recorded the statement of prosecutrix wherein she stated that accused Md. Taskeen

had committed rape upon her by threatening her. Medical examination of both the prosecutrix as well as the accused was conducted. Sections 376

/506 /34 IPC were added in the chargesheet. During further investigation of the case, Investigating Officer of the case got the statement of the

prosecutrix recorded u/s 164 Cr.P.C., prepared site plan, obtained the date of birth certificate of the prosecutrix, sent the exhibits to FSL. After

completion of the investigation, a charge sheet under Sections 363 /376 /506 /34 IPC was filed in the court.

Charge for offences under Sections 376 /506 IPC was framed against the appellant. Appellant pleaded not guilty to the charge and claimed trial.

In order to substantiate its case, prosecution examined 16 witnesses. Prosecution basically relied upon the testimony of PW-1 i.e. the

prosecutrix. Prosecutrix was aged 15 years and 7 months at the time of the incident. She has deposed that on 8th November, 2010, she had left

with one Sunil and was taken by him to the railway station where they boarded the train for going to Saharanpur. However, they boarded the

wrong train which went to Ghaziabad and thereafter they came back to Delhi and then again boarded the train which reached Saharanpur. At

Saharanpur Railway Station, they met the appellant who also boarded the train in which the prosecutrix and the said Sunil were travelling. Sunil got

down from the train by stating that he was going to exchange the railway ticket whereas the prosecutrix and appellant remained in the train. As the

train was about to move, the appellant told the prosecutrix that she was alone and he would take her to Sunil, after which both of them got down

from the train. They searched for Sunil at Saharanpur Railway station but he was not found. According to the prosecutrix thereafter she was taken

by the appellant to the house of his friend where he committed rape upon her. Appellant had taken her on his motorcycle and they travelled around

the city on his motorcycle but again in the night hours, appellant took her in a lonely jhuggi and there again he committed rape upon her. On the

next day morning, appellant took the prosecutrix on his motorcycle to the house of one female whom he addressed as Didi but that woman told the

appellant that she would not keep the prosecutrix in her house because the prosecutrix was a minor and so the appellant was forced by that

woman to leave the prosecutrix and at her instance, appellant agreed to leave the prosecutrix. Thereafter both of them boarded the train for Delhi

and reached the Old Delhi Railway station where her father and the police were present and the appellant was apprehended by the police. The

entire facts were narrated by the prosecutrix to her father and to the police and her statement was also recorded u/s 164 Cr.P.C. The statement of

prosecutrix to the extent of her leaving from her parental home and having been found at the Delhi railway station along with the appellant is

corroborated by her father and other police witnesses. Medical evidence also corroborates the version of prosecutrix as scratch marks just below

the left anterior iliac, abrasion on left thigh as well as abrasions on posterior commissure were found on her body. Prosecutrix was a girl of tender

age of 15 years only.

All the incriminating evidence appearing against the accused was put to him while recording his statement u/s 313 Cr.P.C. wherein he denied the

case of the prosecution and pleaded his innocence and stated that he has been falsely implicated in the present case.

After meticulously examining the evidence led by the prosecution, vide impugned judgment, appellant was convicted for offence u/s 376 IPC

and sentenced as stated above. However, he was acquitted of the charge u/s 506 IPC.

Feeling aggrieved by the same, present appeal has been preferred by the appellant.

I have heard Mr. Imran Khan, learned counsel for the appellant and Ms. Fizani Hussain, learned Additional Public Prosecutor for the state and

have perused the record.

At the outset, learned counsel for the appellant submitted that he does not challenge the appeal on merits of the case. Appellant was also called

from Jail and he reiterated that he does not want to challenge the appeal on merits. However, it was submitted that appellant was sentenced to

undergo rigorous imprisonment for a period of four years out of which he has already undergone imprisonment of 3 years and 6 months. As such, it

was submitted that he be released on the period already undergone. Learned APP for the State did not oppose the prayer made by learned

counsel for the appellant for releasing the appellant on the period already undergone.

I have considered the submissions of learned counsel for the parties and have perused the Trial court record.

From the testimony of the prosecutrix and other corroborating evidence, prosecution had succeeded in proving the charge u/s 376 IPC. The

findings of learned Trial Court in this regard do not suffer from any infirmity which calls for interference. Even the appellant has opted not to

challenge the findings of the Trial Court on conviction u/s 376 IPC. As such, the order of conviction passed by the learned Trial Court stands

confirmed.

Coming to the quantum of sentence, it is submitted by learned counsel for the appellant that the appellant was awarded rigorous imprisonment

of four years and fine. The appellant has already undergone sentence of 31/2 years, as such, he be sentenced to the period already undergone.

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.

Rape is one of the most heinous crimes committed against a woman. It insults womanhood. It violates the dignity of a woman and erodes her

honour. It dwarfs her personality and reduces her confidence level. It violates her right to life guaranteed under Article 21 of the Constitution of

India. In this regard, it will be apt to note the observations made by the Apex Court in Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty,

where it was observed that ""rape is violative of the victim''s most cherished of the fundamental rights guaranteed under Article 21 of the

Constitution of India.

Rape is an aberrant, atrocious, horrendous and monstrous burial of her dignity in darkness. It is a crime against the entire society. In State of

Punjab Vs. Gurmit Singh and Others, , Supreme Court observed the effect of rape on a victim with anguish:

We must remember that a rapist not only violates the victim''s privacy and personal integrity, but inevitably causes serious psychological as well as

physical harm in the process. Rape is not merely a physical assault-it is often destructive of the whole personality of the victim. A murderer

destroys the physical body of his victim, a rapist degrades the very soul of the helpless female.

In Jugendra Singh Vs. State of U.P., , while dwelling upon the gravity of the crime of rape, Supreme Court had expressed thus:

Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The

consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her

reputation. It is said that one''s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure

of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large.

When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu.

Section 376 IPC provides for punishment for rape. Offence of rape is punishable with imprisonment of either description for a term which shall

not be less than seven years but which may be extend to ten years. The convict shall also be liable to fine. Proviso to Section 376(1) states that the

court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven

years. Thus, a minimum of seven years sentence is provided u/s 376(1) of the Indian Penal Code (IPC). Sentence for a term of less than seven

years can be imposed by a court only after assigning adequate and special reasons for such reduction. Thus, ordinarily sentence for an offence of

rape shall not be less than seven years. When the legislature provides for a minimum sentence and makes it clear that for any reduction from the

minimum sentence of seven years, adequate and special reasons have to be assigned in the judgment, the courts must strictly abide by this

legislative command.

It is a fundamental rule of construction that a proviso must be considered in relation to the main proviso to which it stands as a proviso,

particularly, in such penal provisions. Whether there exists any ""special and adequate reason"" 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 for universal application.

Section 376(1) read with the proviso thereto reflects the anxiety of the legislature to ensure that a rapist is not lightly let off and unless there are

some extenuating circumstances stated in writing, sentence below the minimum i.e. less than seven years cannot be imposed. While imposing

sentence on persons convicted of rape, the court must be careful and must not overlook requirement of assigning reasons for imposing sentence

below the prescribed minimum sentence.

In The State of Karnataka Vs. Krishnappa, the High Court had reduced the sentence of ten years rigorous imprisonment imposed by the trial

court on the accused for an offence u/s 376 of the Indian Penal Code (IPC) to four years rigorous imprisonment. Severely commenting on this

indiscretion, Apex Court observed as under:

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. The courts are expected to properly operate the

sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others.

Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to

her supreme honour and offends her self-esteem and dignity-it degrades and humiliates the victim and where the victim is a helpless innocent child,

it leaves behind a traumatic experience. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost

sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised Judge, in our opinion, is a better statutory armour in cases of

crime against women than long clauses of penal provisions, containing complex exceptions and provisos.

In State of Andhra Pradesh Vs. Bodem Sundra Rao, the Accused was sentenced by the trial court for an offence u/s 376 of the Indian Penal

Code (IPC) for ten years. The High Court maintained the conviction, however, reduced the period of sentence to four years. Supreme Court set

aside the High Court''s order and enhanced the sentence to seven years which is the minimum prescribed sentence u/s 376 of the Indian Penal

Code (IPC). The relevant observations are as under:

In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society.

Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in

particular and the society as a whole in general but also at times encourages a criminal The courts have an obligation while awarding punishment to

impose appropriate punishment so as to respond to the society''s cry for justice against such criminals. Public abhorrence of the crime needs a

reflection through the court''s verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the

rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing

rape on a helpless 13/14 year old girl shakes our judicial conscience. The offence was inhumane. There are no extenuating or mitigating

circumstances available on the record which may justify imposition of sentence less than the minimum prescribed by the Legislature u/s 376(1) of

the Act.

In State of Andhra Pradesh Vs. Polamala Raju @ Rajarao, a three Judge Bench of the Supreme Court set aside the judgment of the High

Court for non-application of mind to the question of sentencing. The Supreme Court reprimanded the High Court for having reduced the sentence

of the accused convicted u/s 376, IPC from 10 years imprisonment to 5 years without recoding any reasons for the same. The Court said:

... We are of the considered opinion that it is an obligation of the sentencing Court to consider all relevant facts and circumstances bearing on the

question of sentence and impose a sentence commensurate with the gravity of the offence...

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... To say the least, the order contains no reasons, much less ""special or adequate reasons"". The sentence has been reduced in a rather mechanical

manner without proper application of mind...

Very recently, in Shimbhu and Another Vs. State of Haryana, a three Judge Bench took a serious view about taking a liberal view while

awarding sentence for such a heinous crime by observing as under:-

This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape u/s 376 Indian Penal

Code, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that

few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking

aid of the proviso to Section 376(2) Indian Penal Code. The above trend exhibits stark insensitivity to the need for proportionate punishments to

be imposed in such cases.

The observations made in the above legal pronouncements reflect what should be the approach of the Courts while sentencing the accused

convicted of rape. Present case has to be examined in the light of the above discussion.

A perusal of the Trial Court order goes to show that it has taken a liberal view by awarding the sentence of rigorous imprisonment for four

years, meaning thereby less than the minimum sentence prescribed under the Act probably, under the proviso to Section 376(1) on the ground that

the convict had shown good gesture in agreeing to take the prosecutrix back to her parental home when he was apprehended. This cannot be said

to be ""special or adequate reason"" for imposing sentence less than the minimum sentence prescribed under the Act. However, the State has not

preferred any appeal for enhancement of the sentence. Under the circumstances, no case is made out for reducing the sentence further to the

period already undergone by the appellant as prayed by learned counsel for the appellant. The result of the aforesaid discussion is that there is no

merit in the appeal and the same is accordingly dismissed.

A copy of the order along with the Trial Court record be sent back.