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2003 Supreme(HP) 287

SUPREME COURT OF INDIA
DORAISWAMY,ARIJIT PASAYAT
BHUPINDER SHARMA - Appellant
Versus
STATE OF HIMACHAL PRADESH - Respondent
Criminal Appeal No. 1265 of 2002
Decided On : 10/16/2003

Advocates Appeared:
Ms. Rachna Gupta, Advocate, for the Appellant; Mr. J.S. Attri and Mr. Pramod Kumar Yadav, for the Respondent.

Headnote:INDIAN PENAL CODE, 1860 - Section 375 - "Rape" - Meaning of, explained

       INDIAN PENAL CODE, 1860 - Section 376 and Evidence Act, Section 133 - Woman or girl raped is not an accomplice

       INDIAN PENAL CODE, 1860 - Section 376(2)(g), Explanation 1 - Statutory intention behind introduction of Explanation 1, stated.

       INDIAN PENAL CODE, 1860 - Sections 376(2)(g), 376/34 and 342/34 - Gang rape - Sentence - Held, court, has to record "adequate and special reasons for exercising the discretion of - Awarding - Lesser sentence - High Court rightly enhanced the sentence.

       INDIAN PENAL CODE, 1860 - Sections 376/34 and 342/34 - Rape - Evidence of victim - Held, corroboration is not the sine qua non for conviction in rape cases - Plea raised rejected - Appeal dismissed.

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 IPO) 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 34IPC 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 grand-father. 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 Lai, 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 Section IPC.
















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