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2014 Supreme(Bom) 1690
In the High Court of Bombay at Aurangabad
S.S. SHINDE & P.R. BORA, JJ.
Rehenjya Shelya Pawara & Another
Versus
State of Maharashtra, through Secretary, Home Department, Mumbai & Others
Criminal Appeal Nos. 106, 196 & 509 of 2012
Decided On : 02-09-2014
K.S. Patil, A.P.P., R.R. Mantri, C.R. Deshpande, Advocates.
Headnote:[Indian] Penal Code, 1860 - Sections 53, 376(2)(c) and 506(ii) Conviction and sentence under. Where accused was convicted for committing offence of rape on minor girl, studying in 5th Standard therefore sentence of 10 years R.I. imposed by trial Court not disproportionate or inadequate. In the instant case, considering the facts and circumstances involved in the case the Additional Sessions Judge has imposed sentence on the respondent-accused to suffer rigorous imprisonment for ten years. Had it been the fact that the trial Court would have awarded the sentence of imprisonment less than the minimum prescribed, without providing adequate and special reasons, this Court certainly would have reason to interfere in such order. On perusal of the order passed by the trial Court it is revealed that the points which are argued and pressed before this Court were argued and pressed even before the trial Court and considering the points so raised the trial Court find it proper to sentence accused No. 1 i.e. respondent in the present matter to suffer rigorous imprisonment for ten years. Considering the facts and circumstances in the case, the trial Court has exercised its discretion.
Court do not see any infirmity or perversity in the discretion so exercised. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit the sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime. No formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime.
In absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of the gravity of the crime, discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished. Viewed by this angle, find any reason to interfere the order so passed and/or modify the same. It does not appear to us that the sentence awarded by the trial Court is inadequate or disproportionate. It does not appear to us that any case is made out for enhancing sentence imposed by the trial Court on the respondent. The appeal, therefore, fails and is accordingly dismissed.
[INDIAN] PENAL CODE, 1860 - Section 376(2), (c) and 506(ii) Conviction for rape on minor girl and criminal intimidation. Since testimony of prosecutrix, a minor girl aged 13 years that the was raped by accused, manager of school, in its office is cogent and credible hence conviction of accused justified. After having carefully and consciously considered the entire documentary and oral evidence on record, unhesitatingly it can be said that the prosecution has beyond reasonable doubt proved that the appellant committed rape on the prosecutrix. As mentioned earlier, since at the relevant time the appellant was working as the manager of the Ashram School at Birdi and the prosecutrix was an inmate of the said Ashram School, the Additional Sessions Judge has rightly held the appellant guilty for an offence under Section 376(2)(c) of IPC. Secondly, the offence under Section 506(ii) of IPC. Has also been beyond reasonable doubt proved against the appellant. Court need not to again reproduce the evidence in that regard since the same has been referred to hereinbefore. The prosecutrix has deposed about the threat given by the appellant to her before and after committing rape on her. Her evidence in that regard has remained unshattered. Moreover, nothing has been brought on record so as to disbelieve the facts so stated by her. The trial Court has therefore properly held the appellant guilty for an offence under Section 506(ii) of IPC. Court does not find any reason to interfere in the conclusion so recorded by the trial Court. The appellant has failed in making out any case. The appeal so filed by him is, therefore, liable to be dismissed and is accordingly dismissed.
[INDIAN] PENAL CODE, 1860 - Sections 465, 468 and 201 Offence of forgery. In absence of any mala fides on part of respondents for making entry in menstruation register kept in school, order of acquittal of respondents justified. The entry on the basis of which the present respondents have been impleaded as accused and charged for the offences punishable under Sections 465, 466 and 468 as well as Section 201 read with 34 of the IPC, was admittedly made in April, 2002. There is no dispute that the pregnancy of the prosecutrix was first noticed in the month of June, 2002. There is nothing on record to show that in April, 2002, the respondents i.e. original accused Nos. 2 and 3 were having any knowledge of the occurrence of the alleged incident. In such circumstances, no such inference can be drawn that the present respondents had made some wrong entries in the menstruation register so as to help the accused and to save them from the punishment. Though there appear some discrepancies in the entries made in the menstruation register, no mala fides can be attributed on part of the respondents for making such entries in absence of any evidence therefor.
From the evidence, it does not appear that in making such entry there was any intention much less the mala fide intention of accused Nos. 2 and 3 i.e. present respondents to commit forgery or to cause disappearance of the evidence of the crime committed by original accused No. 1. The trial Court has properly discussed the entire evidence on the point and has rightly exonerated the respondents from the charges levelled against them.
P.R. Bora, J.
1. All the above appeals are arising out judgment and order passed in Sessions Case No. 42 of 2002, decided by the learned Additional Sessions Judge, Shahada on 17-01-2012. In the aforesaid Sessions case, three persons were tried. The accused No. 1 was charged with the offences punishable under Sections 376 (2) (c) and 506 (II) of the Indian Penal Code (for the sake of brevity IPC) whereas accused Nos. 2 & 3 (Respondents in Criminal Appeal No. 509 of 2012) were tried for the offences punishable under Sections 465, 466, 468, read with 34 of the IPC. All the three accused were also tried for the offence punishable under Section 201 read with 34 of the IPC.
2. The learned Additional Sessions Judge, Shahada has convicted accused No.1-Rehenjya Shelya Pawara (appellant in Criminal Appeal No. 106 of 2012) for the offence punishable under Sections 376(2)(c) of the IPC and sentenced him to suffer Rigorous Imprisonment for Ten Years and to pay a fine of Rs. 5,000/- (Rs. Five thousand only) in default to undergo R.I. for Six months. Accused No. 1 has also been convicted for an offence punishable under section 506 (II) of the IPC and has been sentenced to suffer Rigorous Imprisonment for Two Years and to pay a fine of Rs. 1,000/- (Rs. One thousand only), in default to undergo R.I. for Two months.
3. Accused – Nago Lakha More and Vanita w/o Chandrasing Vasave (Original Accused No. 2 & 3 & respondents in Criminal Appeal No. 509 of 2012) have been acquitted of all the offences for which they were charged. The original Accused No. 1 has been acquitted of the offence punishable under Section 201 of the IPC.
4. Original accused No. 1 has preferred the Criminal Appeal No. 106 of 2012, thereby challenging the order of conviction passed against him by the trial Court. The Criminal Appeal No. 196 of 2012, has been filed by the State for enhancement of the sentence awarded to accused-Rehenjya Shelya Pawara. Criminal Appeal No. 509 of 2012 has also been filed by the State, challenging the acquittal of original accused Nos. 2 & 3 i.e. Nago Lakha More and Vanita w/o Chandrasing Vasave by the learned Additional Sessions Judge, Shahada in the afore-mentioned sessions case. Since all the three afore-said appeals are arising out of one judgment, we have simultaneously heard the arguments in all the three appeals and prefer to decide all these appeals by a common reasoning.
5. First we would like to deal with Criminal Appeal No. 106 of 2012, preferred by Accused-Rehenjya Shelya Pawara. As stated above, the appellant has been held guilty by the Trial Court for the offences punishable under Sections 376(2)(c) and 506 (II) of the IPC. Before adverting to the grounds of objections raised by the appellant in exception to the judgment of the Trial Court, it would be necessary to state the facts of the case in brief, as are revealed from the prosecution case.
6. The prosecutrix was taking her education in an Ashram School situated at Village Bardi, Tq. Akkalkuwa, District Nandurbar. She was in the 6th standard at the time of lodging report in the present case. She was in the 5th standard, when the alleged incident is stated to have occurred. Accused-Rehenjya Shelya Pawara, was working as the Manager of the said Ashram School. Prosecutrix was the resident student in the said Ashram School, the alleged incident is stated to have occurred on 12-02-2002. It is alleged that, on that day in the afternoon, when the prosecutrix was sweeping the office of the said Ashram School, accused-Rehenjya bolted the door of the said office from inside, and thereafter, committed rape on the prosecutrix. It is alleged that the prosecutrix was threatened by the said accused, not to disclose the said incident to any body. It is further alleged that four to five days thereafter, the prosecutrix was again called by the appellant/ accused in his office and again she was raped.
7. It is the further case of the prosecution, that in June-2002, when school re-opened fo
