IMPORTANT POINT
In an offence of gang rape reason for awarding sentence less than the minimum prescribed of 10 years that accused infact had not committed sexual assault is not adequate and special reason to justify lesser sentence of 4 years.

Headnote:(i) Indian Penal Code, 1860-Section 376(2)(g) Explanation I-Gang rape-Sentence-Victim was sexually assaulted by three accused turn by turn and appellant was in process to take off his clothes that victim escaped-Trial Court awarded sentence of 4 years imprisonment taking a view that appellant had not actually commited the act of sexual assault-High Court in suo motu notice to enhance sentence in appeal filed by appellant enhanced sentence to 10 years imprisonment-Appeal confined to point of sentence-Discretion of Court to impose sentence less than the prescribed minimum for "adequate and special reasons"-Only reason which weighed with trial Court was that appellant had not actually committed rape-It could not be a ground to warrant lesser sentence-High Court was justified in awarding the minimum prescribed sentence. (Para 16)
       (ii) Indian Penal Code, 1860-Section 376-Rape-Evidence of victim is entitled to great weight even in absence of corroboration-Victim is not an accomplice and corroboration is not sine qua non for conviction-In cases of gang rape proof of completed act of rape by each accused on victim was not required.
       Held : A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. Rameshwar v. The State of Rajasthan (AIR 1952 SC 54) were, "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...". To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her chain of rape will not be believed unless it is corroboration in material particulars as in the case of an accomplice to a crime. (See State of Maharashtra v. Chandra Prakash Kewalchand Jain (AIR 1990 SC 658). Why should be the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance. (Paras 11 and 12)

JUDGMENT

Arijit Pasayat, J.-Enhancement of sentence from four years RI as awarded by the trial Court to 10 years as done by the Himachal Pradesh High Court for an offence of rape punishable under Section 376 of the Indian Penal Code 1860, (in short the IPC ) is the subject matter of challenge in this appeal.

2. We do not propose to mention name of the victim. Section 228-A of the Indian Penal Code, 1860 (in short the IPC ) makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction does not relate to printing or publication of judgment by High Court or Supreme Court. But keeping in view the social object of preventing social victimization or ostracisms of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as `victim in the judgment.

3. While issuing notice by order dated 8.1.2002 it was clearly indicated by this Court that examination of the case would be restricted to the question of sentence only. Appellant was found guilty of offence punishable under Section 376 read with Section 34 IPC and Section 342 read with Section 34 thereof. The enhancement of sentence was done in respect of offence punishable under Section 376 IPC.

4. Prosecution version as unfolded during trial is that the victim aged about 16 years had gone to Solan in 1998 to purchase medicines for her ailing grandfather. She had gone to Solan for the first time and reached the bus stand at about 2.00 p.m. After having alighted from the bus, she enquired from a lady as to where a particular medicine shop was located. The lady stated ignorance. At this juncture, two persons came there and asked her to accompany them in a three-wheeler as they were both going to the concerned shop. The victim was taken by two boys namely, accused Ashish Kanwar and Suresh to an isolated place in a jungle. The three - wheeler was sent back with a direction to come in the evening. After gagging her mouth, she was taken to a house which was below the road. There were four more boys. Three out of those were identified by the victim during trial. The fourth one namely Shanker was not tried as adequate evidence was not available against him. The victim was sexually abused firstly by accused-Ashish followed by accused -Sunil, Suresh and Ruby. The appellant Bhupinder and Shanker (not tried) were in the process of taking off their clothes with a view to perpetuate sexual abuse when the victim managed to escape with only a shirt and ran away bare footed. When she reached near the road, she saw Chaman Lal, ASI who was accompanied by police officers. Meanwhile, two other persons also came there. They were Charanjit (PW-2) and Balvinder (PW-3). When the victim described the ghastly incident to them, she was taken to the room where she had been raped; but it was found that all six of them had fled away. Police took into possession certain articles. Statement of the victim was recorded and investigation was undertaken. She was sent for medical examination where she was examined by Dr. Radha Chopra (PW-8). All the convicts were arrested during investigation. Forensic Laboratory tests were conducted and charge sheet was placed under Section 376 read with Section 34 IPC and Section 342 read with Section 34 IPC. The accused persons pleaded not guilty. After conclusion of trial all of them were found guilty and convicted to undergo different sentences. The present appellant Bhupinder was sentenced to undergo RI for four years for the offence relatable to Section 376 read with Section 34 IPC and two years for the offence punishable under Section 342 read with Sect

Click Here to Read the rest of this document

2003 Supreme(SC) 1028

IMPORTANT POINTIn an offence of gang rape reason for awarding sentence less than the minimum prescribed of 10 years that accused infact had not committed sexual assault is not adequate and special reason to justify lesser sentence of 4 years.

Cases Referred (4)

IMPORTANT POINT
In an offence of gang rape reason for awarding sentence less than the minimum prescribed of 10 years that accused infact had not committed sexual assault is not adequate and special reason to justify lesser sentence of 4 years.