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2008(3) JLJ 53
(SUPREME COURT)
C.K. Thakker and Altamas Kabir, JJ.
State of M.P. v. Babulal
Criminal Appeal No. 1658 of 2007 : against the judgment of M.P. High Court, Jabalpur, passed in Criminal Appeal No.298 of 2003;
Decided on 3.12.2007.
Held: In the instant case, "special" and "adequate" reasons according to the learned Judge of the High Court were (i) the respondent was an "illiterate agriculturist from rural area", and (ii) an amount of fine of Rs.2,500/- was imposed on him. No other reason whatsoever has been mentioned in the judgment, nor is found from the record of the case. With respect to the learned Judge, in our considered opinion, the so-called reasons can neither be said to be "special" or "adequate".
In our judgment, by passing the order impugned in the present appeal and by reducing the sentence imposed on the respondent by the trial Court to the "period already undergone" which was only two months and three days, the learned Judge of the High Court has committed grave illegality which had resulted in "miscarriage of justice". There were no reasons much less "adequate" and "special" reasons to reduce the sentence less than the minimum required to be imposed under sub-section (1) of section 376 IPC. The order is, therefore, liable to be set aside. On the facts and in the circumstances of the case, in our opinion, the trial Court was wholly right and fully justified in awarding rigorous imprisonment for seven years as envisaged by sub-section (1) of section 376 IPC and there was no earthly reason to interfere with the said order by the High Court. The appeal, therefore, deserves to be allowed.
For the foregoing reasons, the appeal filed by the State is allowed. The order of conviction recorded by the trial Court and confirmed by the High Court is upheld. The High Court was, however, wrong in reducing the sentence and the trial Court rightly imposed rigorous imprisonment of seven years on the respondent-accused. [Paras 34 to 36
(2) Criminal Practice -- offenders of sexual assault who are a menace to civilised society -- should be mercilessly and inexorably punished in the severest terms -- it is the duty of Courts to handle such offender with heavy hands. (1992)3 SCC 204 relied on. [Para 2
(3) Penal Code, 1860 -- S.376 -- rape -- prosecutrix found truthful, trustworthy and reliable -- conviction can be recorded solely upon the basis of her testimony -- no further corroboration is necessary. (1983)3 SCC 217 and (1992)3 SCC 615 relied on. [Para 18
(4) Criminal P.C., 1973 -- S.154 -- rape case -- delay in lodging FIR -- not a factor to doubt prosecution story -- it is a generally known fact that the victim or her husband hesitate to approach police. (1992)3 SCC 615 relied on. [Para 20
(5) Criminal Practice -- sentencing is indeed a difficult and complex question -- Court must be concious and mindful of proportion between an offence committed and penalty imposed -- too lenient as well as too harsh sentences, both lose their efficaciousness. (1974)3 SCC 85 relied on. [Paras 25 & 26
¼1½ naM lafgrk] 1860 && /kkjk 376¼1½ && cykRlax && naMkns‘k && U;wure naMkns‘k 7 o"kZ dk dBksj dkjkokl && ^^i;kZIr** vkSj ^^fo‘ks"k** dkj.k fcuk vkSj U;wu ugha fd;k tk ldrk && vfHk;qDr ^^fuj{kj d`‘kd** vkSj ^^tqekZuk** Hkh vf/kjksfir fd;k x;k gS && u i;kZIr dkj.k gS vkSj u fo‘ks"k dkj.k gh gS && fopkj.k U;k;ky; }kjk vf/kjksfir 7 o"kZ dk dfBu dkjkokl izR;kofrZrA
vfHkfu/kkZfjr % izLrqr ekeys esa] mPp U;k;ky; ds fo}ku U;k;k/kh‘k ds vuqlkj] ^^fo‘ks"k** vkSj ^^i;kZIr** dkj.k Fks && ¼i½ izR;FkhZ ^^xzkeh.k {ks= dk fuj{kj d`‘kd** Fkk rFkk ¼ii½ :-2]500@& dh jde dk tqekZuk ml ij vf/kjksfir fd;k x;k FkkA fu.kZ; esa dksbZ Hkh vU; dkj.k mfYyf[kr ugha fd;k x;k gS u ekeys ds vfHkys[k esa gh dksbZ dkj.k ik;k x;k gSA fo}ku U;k;k/kh‘k ds izfr vknj lfgr] gekjh lqfopkfjr jk; esa] og rFkkdfFk dkj.k u ^^fo‘ks"k** dgk tk ldrk gS vkSj u ^^i;kZIr** ghA
gekjs fu.kZ;kuqlkj] izLrqr vihy esa vk{ksfir vkns‘k ikfjr dj ds vkSj fopkj.k U;k;ky; }kjk izR;FkhZ ij vf/kjksfir naMkns‘k ^^vc rd Hkksxh xbZ vof/k** rd de dj ds tks dsoy nks ekl vkSj rhu fnu Fkk] mPp U;k;ky; ds fo}ku U;k;k/kh‘k us xaHkhj voS/krk dkfjr dh gS tks ^^U;k; dh gR;k** esa ifj.kkfer gqbZ gSA Hkkjrh; naM lafgrk dh /kkjk 376 dh mi/kkjk ¼1½ ds v/khu vf/kjksfir fd;k tkuk visf{kr U;wure naMkns‘k ls naMkns‘k de fd;k tkus ds fy, dksbZ dkj.k ugha Fkk] ^^i;kZIr** vkSj ^^fo‘ks"k** dkj.k dh rks ckr gh D;kA blfy, ;g vkns‘k vikLr fd, tkus ds ;ksX; gSA ekeys ds rF;ksa vkSj ifjfLFkfr;ksa ls] gekjh jk; esa] Hkkjrh; naM lafgrk dh /kkjk 376 dh mi/kkjk ¼1½ esa ;Fkk ifjdfYir lkr o"kZ dk dBksj dkjkokl vf/kfu.khZr fd, tkus ds fopkj.k U;k;ky; laiw.kZr% lgh Fkk vkSj iw.kZr% U;k;kuqer Fkk vkSj mPp U;k;ky; }kjk mDr vkns‘k esa gLr{ksi fd, tkus dk dksbZ O;kogkfjd dkj.k ugha FkkA blfy, ;g vihy eatwj fd, tkus ;ksX; gSA
iwoZxkeh dkj.kksa ls] jkT; }kjk Qkby dh xbZ vihy eatwj dh tkrh gSA fopkj.k U;k;ky; }kjk vfHkfyf[kr vkSj mPp U;k;ky; }kjk iq"V nks"kflf) dk vkns‘k dk;e j[kk tkrk gSA rFkkfi] naMkns‘k de fd, tkus esa mPp U;k;ky; xyr Fkk rFkk fopkj.k U;k;ky; us izR;FkhZ&vfHkqDr ij lkr o"kZ dk dBksj dkjkokl Bhd&gh vf/kjksfir fd;k FkkA ¿ iSjk 34 ls 36
¼2½ nkafMd izFkk && ySafxd vkØe.k ds vijk/kh tks lH; lekt ds fy, ladV gSa && dBksjre ‘kSyh esa funZ;rkiwoZd nafMr fd, tkuk pkfg, && U;k;ky;ksa dk drZO; gS fd ,sls vijkf/k;ksa dk fuiVkjk dBksjrk ls djsaA ¼1992½3 ,l lh lh 204 voyafcrA ¿ iSjk 2
¼3½ naM lafgrk] 1860 && /kkjk 376 && cykRlax && vfHk;ksD=h lPph] fo‘oluh; vkSj voyacuh; ikbZ xbZ && nks"kflf) ,dek= mlds ifjlk{; ij vk/kkfjr dh tk ldrh gS && vfrfjDr iqf‘V vko‘;d ughaA ¼1983½3 ,l lh lh 217 rFkk ¼1992½3 ,l lh lh 615 voyafcrA ¿ iSjk 18
¼4½ naM izfØ;k lafgrk] 1973 && /kkjk 154 && cykRlax dk ekeyk && izFke bfÙkyk fjiksVZ nkf[ky djus esa foyac && vfHk;kstu i{kdFku ij lansg dk vk/kkj ugha && ;g Kkr rF; gS fd vfHk;ksD=h vFkok mldk ifr iqfyl rd tkus esa fgpdrs gSaA ¼1992½3 ,l lh lh 615 voyafcrA ¿ iSjk 20
¼5½ nkafMd izFkk && naMkfn‘V djuk okLro esa dfBu vkSj tfVy iz‘u gS && U;k;ky; dks dkfjr vijk/k vkSj vf/kjksfir ‘kkfLr ds vuqikr ds ckjs esa lpsr vkSj lko/kku jguk pkfg, && vf/kd lkSE; vkSj lkFk&gh vf/kd dBksj naMkns‘k] nksuksa dh izHkkoksRikndrk f‘kfFky gks tkrh gSA ¼1974½3 ,l lh lh 85 voyafcrA ¿ iSjk 25 ls 26
Thakker, J. -- 1. Leave granted.
2. The present appeal reminds us observations of the Hon'ble Mr. Justice S. Ratnavel Pandian in Madan Gopal Kakkad v. Naval Dubey [(1992)3 SCC 204], that:
"offenders [of sexual assault] who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms."
Dealing with a case of sexual assault, His Lordships emphasised on Courts of law their duty to handle offenders of such crimes with a heavy hand. His Lordship concluded:
"58. We feel the judges who bear the sword of justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand."
3. The case on hand, in our considered view, exhibits not only casual, indifferent and pefunctory approach but insensitve attitude adopted by the High Court in awarding sentence to an offender who perpetrated a heinous crime of committing rape on a married woman in broad daylight. The case of the prosecution was that respondent. Babulal was residing at Village Daulatpur, Tehsil Ikchavaar, District Sehore in Madhya Pradesh. On 23.7.2002, at about 12:00 noon in his own tapri, he criminally intimidated the prosecutrix PW 5, aged about 22 years, a married woman (hereinafter referred to as "PW 5X") and committed rape on her.
4. According to the prosecution, PW5X was living with her husband in the house of the accused. On the day of the incident, she was washing a drum on tapri when the accused caught her from behind and threw her on the ground. The prosecutrix, PW5 shouted and resisted, but the accused threatened her with knife and committed rape on her. Even thereafter, he threatened to kill her if she reported the incident to anyone else. In the evening, PW5X told about sexual assault to her husband and her mother-in-law, Dallubai, a blind lady. PW8, Ramcharan, who was the employer of PW7, Shiv Narayan, husband of PW5 was also informed who assured that he would talk to the accused and PW5 should not leave the place due to fear. On the next day i.e. 24.7.2002, when the elder brother of Shiv Narayan arrived, the prosecutrix (PW5X) and her husband (PW7) went to the Police Station Ikchavaar and lodged a complaint. PW5X was then sent for medical examination, site plan was prepared and statements of witnesses were recorded. PW5 was medically examined. The accused was also sent for medical examination. It was found that he was absolutely competent to commit sexual intercourse.
5. After completion of usual investigation, charge-sheet was submitted for offences punishable under section 376 read with' section 506 Part II, Penal Code (IPC). The accused denied the charge. In his statement under section 313 of the Code of Criminal Procedure, 1973, he contended that in order to avoid repayment of loan taken from Ramcharan, PW8, the prosecutrix (PW5X) had falsely implicated him in the case.
6. The trial Court considered the evidence adduced by the prosecution and particularly sworn testimony of PW5, the prosecutrix, PW7 Shiv Narayan, husband of the prosecutrix and PW9, Dr. Madhu Sharma, immediate Assistant Surgeon, Public Health Centre, Ikchavaar and held that it was proved beyond reasonable doubt that the accused had committed the offence of rape. So far as PW8 Ramcharan is concerned, he did not support the prosecution and was declared "hostile". The trial Court, however, acquitted the accused of the charge under section 506 Part II IPC.
7. On sentence, the trial Court heard the accused who prayed for grant of probation which, in our opinion, was rightly refused by the Court. In the light of mandate in sub-section (1) of section 376 IPC, the trial Court imposed minimum sentence of seven years' rigorous imprisonment and to pay fine of Rs.2,500/- (two thousand five hundred). In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for six months more. The amount of fine was ordered to be paid to the prosecutrix X.
8. The aggrieved accused prefe
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