(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Appeal, under section 378 of the Code of Criminal Procedure, 1973, is directed against judgment and order dated 4.11.1988 passed by the learned Additional Sessions Judge, Vadodara in Sessions Case No. 42 of 1988 by which the accused was convicted for offence punishable under section 511 read with section 376 of Indian Penal Code for attempt to commit rape.
2. The facts of the case in brief are that on 12.1.1987 a complaint was lodged by Indiraben, wife of Ratilal Prabhudas Patel with Makarpura police station that her niece, the victim, a minor girl aged about 8 years went to terrace of the house to watch kite-flying. As per the complaint, four to five boys, sons of the tenants staying in the same building, were flying kites. After 10-15 minutes at about 8.45 a.m., on hearing shouts of victim minor girl, Indiraben rushed to the terrace and on the staircase of the second floor of the house, she saw the minor girl was standing and crying. She had her nicker in her hand and the boy who was standing near her was Piyush, son of Mohanbhai Kachhiya, a tenant residing in the same building. She saw him closing the buttons of his pant and on seeing her, Piyush ran away. The complainant took the girl to her mother and on asking her as to what happened, the girl narrated the incident that from the terrace, Piyush brought her to the staircase of the second floor and penetrated something in her private part. As it pained so much, she started crying. On this the residents of the building gathered there went to the place of the incident and they could make out that Piyush had committed rape on the girl. Though they tried to catch Piyush, he had escaped. The complaint is filed before Makarpura police station.
3. The complaint was registered as CR.I No. 11 of 1987 for offence under section 376 of the IPC by P.S.I, Makarpura police station. After necessary investigation, charge Exh. 3 was framed against the accused and the accused denied the charges levelled against him and claimed to be tried. As the offence was triable by a Sessions Court, the case was committed to the Court of Sessions under section 209 of the Criminal Procedure Code.
4. To prove the case, following prosecution witnesses were examined – PW 1, the victim, minor girl, Exh.6, PW 2 Indiraben Ratilal Patel, Exh.9, PW 3 Dr.Uday R Purandare, Exhk.11, PW 4 Ramila Gopalbhai Patel, Exh.16, PW 5 Mukesh Ramanbhai Patel, Exh.17, PW 6 Ambalal Dahyabhai Chauhan,Exh.18, PW 7, Kanubhai Bapubhai Patel, Exh.19, PW 8, Revaben Shankarbhai Solanki, Exh.21, PW 9, Ghanshyam R Jani, Exh.22, PW 10, Ambubhai Naranbhai Patel, Exh.24, PW 11, Ranjitsinh Nathusinh, Exh.26, and PW 12 Bhaskerrao Dolatrao Shinde, Exh.28.
5. Besides the aforesaid oral evidence, documentary evidence such as complaint Exh.10, Medical certificate of the victim, Exh.12, Medical certificate of Piyushkumar, Exh.14, Panchnama of person of accused Exh.20, Panchnama of place of offence Exh.25, Report of Forensic Science Laboratory, Exh.29 etc.were also produced which were taken into consideration by the learned Additional Sessions Judge.
6. After examining the prosecution witnesses, the learned Additional Sessions Judge has recorded statement of the accused under section 313 of the Code of Criminal Procedure in which it is stated by the accused that they were residing in the house of Ravjibhai as a tenant and for the purpose of getting the same vacated, false case is filed against him. After hearing the arguments of both the sides and after appreciating the evidence on record, the learned Addl. Sessions Judge has come to the conclusion that the offence under section 376 of IPC has not been proved and the accused was thus acquitted of the said charge. However, the accused was convicted for the offence punishable under section 511 read with section 376 of Indian Penal Code for attempt to commit rape and sentenced him to suffer Rigorous Imprisonment for two years and a fine of Rs. 250/-, in default, 5 days' further R.I. The State has filed the present Appeal against the acquittal of the accused for an offence under section 376 of IPC by impugned judgment and order as stated above.
7. We have heard the learned Advocates for the respective parties.
Learned APP Mr L R Pujari appearing for the State has submitted that as per the case of the prosecution, Indiraben, wife of Ratilal Prabhudas has lodged a complaint at 11.05 a.m, on 12.1.1987 with the Makarpura Police Station that her niece, a minor girl – prosecutrix, aged about 8 years went to terrace of the house to watch kite-flying. The accused went there and gave inducement to the minor girl of giving 'sugarcane' and brought her to the second floor and committed rape on the said minor girl at about 8.45 a.m. and thereafter the accused ran away. The learned Judge, who, as such accepted the prosecution evidence in its totality but has acquitted the accused of the offence punishable under section 376 of Indian Penal Code and convicted the respondent accused for the offence punishable under section 511 read with section 376 of Indian Penal Code for attempt to commit rape and sentenced him to suffer Rigorous Imprisonment for two years and a fine of Rs. 250/-, in default, 5 days' further R.I. by judgment and order dated 4.11.1988 in Sessions Case No. 42 of 1988. He further submitted that the said order of acquittal is contrary to law and against the evidence on record of the case. While considering the deposition of the minor girl, the prosecutrix, PW 1 at Exh.6, the learned Judge ought to have seen that she has fully supported the case of the prosecution. Besides, the learned Judge ought to have considered the corroborative evidence of the Doctor, PW 3-Uday R Purandare, Exh.11 who had examined the victim minor girl. The Doctor has very categorically stated that the hymen of the girl was 'recently torn', 'her vagina was red' and according to the Doctor, 'she had undergone recent sexual intercourse'. In light of the said medical evidence which has come on record, the learned Judge ought to have convicted the accused for committing rape on the minor girl aged about 8 years. The learned APP strenuously submitted that the learned Judge has committed a grave error in coming to the conclusion that 'the accused had tried to commit rape on the girl'. The learned Judge, after elaborate discussion on all aspects in the judgment, squarely brings the case within the definition of 'Rape' as stated under section 375 of IPC, punishable under section 376 of IPC but thereafter in the summing up part/paras, the learned Judge records that, if there would have been penetration in full, there would have been external injuries on the person of the girl. Thus the order of acquittal being erroneous, improper and unjust one, the same is challenged in this Appeal being Criminal Appeal No.40 of 1989.
8. Learned Advocate Mr K B Anandjiwala appearing for the accused has drawn our attention to para 2 of the deposition of the victim, the minor girl at Exh. 6 and submitted that so far as the 'act attributed' is concerned, the minor girl has told that the accused had removed his pant and 'only forced her to hold his private part'. Thereafter on hearing her shouts, her aunty has reached there. He then submitted that except that no other allegation is made by the prosecutrix and therefore, there is no averment/allegation that intercourse has been made. That being so, offence under section 376 of the IPC is not at all borne out. He further submitted that no evidence has been forthcoming on the record to come to a conclusion that the accused had intercourse with the girl and for the 'above referred act' committed by the accused as per the deposition of the victim, at the most, section 354 of the IPC i.e.”assault or criminal force to woman with intent to outrage her modesty” would only apply to the case on hand.
But as the present respondent has not filed any Appeal challenging the judgment and order in question, he has his own limitation due to the same. The learned Advocate for the respondent submitted that therefore, the judgment and order passed by the learned Sessions Judge be held to be just, proper and no interference by this Court is called for.
8.1. He further submitted that after the entire discussion, the learned trial Judge has come to the conclusion that the entire case has been rightly put up by the prosecution but no evidence has come on record that penetration has actually happened and if at all it happened, then to what extent. The learned Advocate also submitted that the minor girl-prosecutrix was unable to identify the accused and as such later on the evidence put up by the prosecution side by describing the accused as he having long hair and beard at the time of the incident and a little healthy physique etc. is nothing but an attempt made by the prosecution to justify the act of not identifying the accused by the prosecutrix. The learned Advocate submitted that if the document Exh. 14 the certificate dated 13.1.1987 issued by the Doctor is perused, it is clear that after the arrest at the relevant time, during the course of examination, the Doctor has noted the height of the accused as 5'.7” and his weight was 55 kg. Considering the height of the person, the accused seemed under-weight and to be weak in physique and there was no change in body as submitted by the rest of the prosecution witnesses who had made improvement in their evidence. The minor girl at Exh. 6, has admitted in her cross examination that her mother and aunty Indiraben told her to narrate the facts as told and therefore, the minor witness was tutored witness. Lastly, learned Advocate for the respondent-accused has drawn our attention to internal page No.5 of the FSL report at Exh.29 and submitted that no semen was found on the nicker of the victim in the serological examination therefore, considering all the aforesaid aspects, the present appeal should be dismissed.
9. We have carefully perused the entire documentary evidence forthcoming on the record and considered the same in light of the rival submissions referred above made by the learned APP and learned Advocate for the respondent/original accused.
9.1. The main submission of the learned Advocate for the respondent is that as per the deposition of the minor girl, the prosecutrix, 'she was made to hold the private part of the accused' and except that no other allegations have been made and as no sexual intercourse is alleged to have been made, the offence under section 376 is not borne out. We have to keep in mind the fact that the victim is 8 years old, minor girl and as per the settled legal position, evidence of the prosecutrix alone is sufficient to award conviction under section 376 of IPC. The relevant portion of the deposition of the prosecutrix about the same reads as under:
sZfccPPPDFZF HM0[ U\N] SFD SI]\"P V[G\] 5[g8 pTFZL VG[ V[6[ DG[ V[G]\ U\N] DG[ h,FJTM CTMP D[\ GF GF SCI]\ TM 56 V[6[ DFZF CFYDF\ 5S0FjI]\P 5KL D[\ RL;FRL; 5F0L TM DFZF SFSL VFJL UIFP D[\ RL; 5F0L CTL S[D S[ T[ DG[ U\N]] U\N] SZTM CTM VG[ DFZJFGL WDSL VF5TM CTMP D[\ RL;FRL; SZL V[8,[ DFZF SFSL .gNLZFA[G VFJL UIF VG[ 5LI]QF H,NL H,NL VFU/ NM0LG[ GLR[ pTZL UIMPPPccP s#fccPPP0MS8Z ;FC[A[ DG[ SJ[xRG 5]KIF 5KL D[\ V[DG[ HJFA VF%IFP 5KL DG[ V[D6[ T5F;LP DG[ N]oBFJM YTM CTM 56 DG[ SIF\ YTM CTM T[ DFZ[ AM,J]\ GYLPPPcc
9.2. The deposition of Dr. Uday R Purandare is at Exh.11.
It is important to note that the incident occurred approximately at about 8.45 a.m. and Dr. Uday R Purandare has examined the prosecutrix at 12.45 p.m. on the date of the incident itself i.e. on 12.1.1987 thus within four hours after the incident, the Doctor has examined the prosecutrix. It has been specifically deposed by Dr. Uday R Purandare at Exh.11 that, 'hymen of the girl was recently torn, vagina was red and according to him, she had undergone recent sexual intercourse'. The certificate in this regard, issued by Dr. Uday R Purandare is at Exh.12. In the said certificate it is mentioned that in the examination of genitals, 'the vagina was found congested'. In the cross examination on the specific question put by the learned Advocate for the respondent/original accused on the said aspect, the Doctor has replied that, 'congestion means, it includes redness and swelling'.
10. Now we will go through the relevant portion of para 15 of the judgment dated 4.11.1988. On the above point in the judgment the learned trial Judge has appreciated the same which are as under:
“15. ...Thus, as discussed earlier, under the circumstances as Mallika was familiar with Piyush, it was such a relation that he could say Mallika to go with her to eat sugarcane by holding her hand and under the circumstance when the private part of Mallika was paining, under the circumstance it is the corroborative evidence in this matter, meaning thereby the fact which has been stated by Mallika is supported by the surrounding circumstances. Looking to the circumstances of this case, the fact is not of importance that some of the facts and details have been stated by the complainant or the girl Mallika or her mother before the police or not. There is an evidence to the effect that the spots of semen were found on the short of the girl and there is also the evidence to the effect that the blood was found on the underwear of the accused. When this circumstance can be taken into consideration, the incident took place on 12/01/87, on the upper floor at the place of staircase in the house of Ravjibhai Prabhudas, with an intention to commit the act of intercourse, in this case, the accused Piyush had made an attempt to penetrate his penis in the vagina of Mallika, it is clearly proved. It is the question, whether penetration of the penis took place or not ? And if it is penetrated, then as to at what extent? Penetration of penis takes place generally in the matter of physical intercourse. Even if the penetration of the whole penis does not take place, it can be considered within the meaning of law that the physical intercourse has taken place. And if it is seen in this manner, the age of the girl Mallika is about 8 years in this case. Therefore, when the girl is below 12 years of age, a girl below the age of 16 years, whether she has consented or not, but when the physical intercourse is done with her, it can be said to be rape within the meaning of definition of Section - 375 of IPC. The said Section-375 provides that, it is said to have committed rape, if the woman is below the age of 16 years and the intercourse is committed by a male with her with her consent or without her consent. In the matter of a woman, as per Section-10 of the IPC, the word woman indicates human female of any age, as such has been clearly stated and further, it has been stated in the Section-375 that, penetration is sufficient to constitute the sexual intercourse necessary to the occurrence of the offence of rape. But, when it is said to have committed the criminal act with regards to any incident but when there is doubt about its certainty, it should be decided which is in favor of the accused after taking into consideration the matter which is less serious out of both the serious matters, as such has been the general principle of Criminal Jurisprudence. Taking into consideration the said fact, it is found that the rape has been committed with the girl Mallika in this case, therein how much the penetration took place and whether it could take place or not, in this matter, the circumstances are found more as to penetration had taken place. However, if the penetration could have taken place in that manner, there may be more injuries on her private part and the circumstance may be more that it can happen that she would become unconscious...”
[emphasis supplied]
10.1. From the above findings, it can easily be said that the learned trial Judge, after all the discussions on oral evidence and after considering the medical evidence, came to the conclusion that in this matter, the circumstances are found more as to penetration had taken place but as referred above, according to him, in that circumstances, more injuries on the private part of the victim were possible and in that circumstances, the victim would have become unconscious. Ultimately he has concluded that attempt to commit offence of rape was made. Referring the deposition of Dr. Uday R Purandare at Exh.11, nothing has been asked in the cross examination on the above aspects by the learned Advocate for the respondent/original accused. On the contrary, the said Doctor has clearly opined that according to him, 'the victim-
prosecutrix had undergone recent intercourse' and on being asked specific question relating to the injury in vagina being congested, Doctor has replied that it includes redness and swelling. Now it is not clarified by the learned trial Judge as to how he has come to the conclusion that in the circumstances referred above, more injuries on the private part were possible and in that circumstances, the victim would have become unconscious. According to us, the presumption made by the learned Trial Judge is without any basis and without any support in evidence on record, such assumption is erroneous and is required to be set aside. On the above referred aspects, in our view, the evidence forthcoming on the record is sufficient to come to the conclusion that, 'it was not just an attempt but penetration was indeed done by the respondent/original accused into the vagina of the victim' and this view is supported by corroborative medical evidence as referred above. The prosecutrix was a very young girl of 8 years and it is quite natural that full penetration did not take place as the accused was a grown up person of 25-27 years of age. However, the injury on the private part of the girl clearly indicates rape under section 376 of the IPC had taken place.
10.2. In support of the above case of the appellant, learned APP has placed reliance on a decision in the case of Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC page 9]. The relevant paragraphs No.19 to 21 are reproduced as under:
“19. It was also contended by learned counsel for the appellant that since hymen of the prosecutrix was found to be intact, therefore, it cannot be said that an offence of rape was committed on her by the appellant. This contention cannot be accepted as the offence of rape has been defined in Section 375 of IPC. Explanation to section 375 reads thus:
“Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.”
It has been a consistent view of this Court that even the slightest peneration is sufficient to make out an offence of rape and depth of penetration is immaterial.
20. It is appropriate in this context to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (22nd Edn) at p. 4957 which reads thus :
“Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.”
(emphasis supplied.)
21. Similarly in Parikh's Textbook of Medical Jurisprudence and Toxicology, “sexual intercourse” has been defined as under:
“Sexual intercourse – In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains.”
[emphasis supplied]
11. According to us, the above referred observations are squarely applicable to the case on hand and in our view the respondent/original accused has committed offence of rape and the above discussion leaves no amount of doubt in our mind.
12. During the course of submission, much has been argued by the learned Advocate for the respondent/original accused that as per the serological examination report Exh.29, internal page 5, no semen was found on the nicker of the victim and, therefore the observations made by the learned Judge that there is evidence to the effect that spots of semen were found on the nicker of the prosecutrix and as also blood was found on the underwear of the accused, are erroneous.
13. As per “Judicial Officer's Law Lexicon” by Justice C.K. Thakker, on page No.4331, meaning of serology given reads as under:
“Serology - Science of serums and their actions and is also called orrhology. The study of antigen- antibody reaction in blood serum and other tissue fluids.”
Serum is defined as under:
“Serum - It is a clear fluid that separates from blood when it clots. It does not contain blood cells or the protein in blood. It does not contain salt or glucose.
Serum prepared from the blood of a person who has been infected with microorganism usually contains antibodies that can protect against that organism if same serum is injected into someone else.”
14. In light of the above position if we refer the above mentioned serological report, it appears that mainly it was prepared for examination of blood stains and accordingly Article No.1 – nicker worn by the victim, Article No.5 – underwear worn by the accused and Article 7 – semen taken out of the accused were examined and blood group found on the Articles No. 1 and 7 and on Article No.5 human blood was found. It is important to note that nothing has been mentioned on the aspect of the examination of semen so far as the above referred serological report is concerned. It is further to be noted that chemical examination of the above articles were carried out and the result of the same is mentioned at page No.4 Exh. 29 and as per the same, semen was found on Articles No.1 and 7 and the blood was found on Article No.5. So in our view, the findings referred above by the learned trial Judge do not appear erroneous as submitted by the learned Advocate for the respondent/original accused.
15. It has also been argued by the learned Advocate for the respondent-original accused that the victim girl was unable to identify the accused before the court while she was giving her deposition and to explain this, later on the other witnesses have stated that the accused was having long hair and beard at the time of incident and was of healthy physique but then from the document at Exh.14, the medical certificate issued by the Doctor, it is clear that the accused seemed underweight than the required normal weight of a person of 5'.7” height that being so the benefit of doubt surely be made available to the accused.
15.1. We have carefully perused the medical certificate Exh.14. It speaks of height and weight only. The weight of the accused on the date of the deposition of the victim or the rest of the witnesses has not come on the record. In our view, it is somewhat difficult to identify the person who possess long hair and beard when he is required to be identified without the same. Hence we are of the view that no weightage should be given to the above submission made by the learned Advocate for the respondent-original accused for the reasons stated above and we are agreeable with the discussion made by the learned Trial Judge on the said point.
16. Learned Advocate for the respondent/original accused submitted that on the point of the minor victim girl admitting that her mother and aunty told her to narrate the facts as told and, therefore, the deposition of the minor girl should not be believed as she is a tutored witness. We have carefully perused the entire deposition Exh.6 which is of the victim aged 8 years at the time of the incident. We find there is natural flow in her deposition as well as clarity in giving the same and also frankness to admit that her mother and aunty told her to narrate the facts as told. But in our view, it cannot be believed for a moment that because of that she was instructed to state false facts. So there is no substance in the above submission made by the learned Advocate for the respondent.
17. Learned Advocate for the respondent/original accused has placed reliance on two decisions as under:
(i) State of Uttar Pradesh v. Munni Ram and Others [(2011) 3 SCC (Cri.) 745.
(ii) Badrilal and Others v. State of Madhya Pradesh [(2011) (3) SCC (Cri) 750
17.1. Drawing our attention to para 31 of State of Uttar Pradesh (supra), learned Advocate for the respondent- original respondent submitted that as observed by Hon'ble the Apex Court, the High Court should act in accordance with the well known principles that if two views are possible on evidence adduced, one pointing to guilt of accused and other to his innocence, view which is favourable to accused is normally to be adopted.
17.2. We have carefully considered the aforesaid decision.
In our considered view, the observations made by the Hon'ble the Apex Court do not help the respondent/original accused because as discussed in earlier paragraphs, in light of the deposition of the victim which is corroborated by medical evidence and in light of the other evidences forthcoming on record, the guilt of the respondent/original accused is proved beyond reasonable doubt and, therefore, there is no question of two views being possible. As discussed hereinabove, the respondent/original accused is guilty of the offences he is charged with.
17.3. Relying on the case of Badrilal and Others (supra), learned Advocate for the respondent/original accused submitted that in an appeal against acquittal, the High Court should interfere with the same only when it is found that the view taken is not possible in the state of evidence.
17.4. As referred above, the learned trial Judge has come to the conclusion that “in this matter, the circumstances are found more as to penetration had taken place”. According to us, this view is possible to be taken in state of evidence and as discussed above, thereafter the learned trial Judge has observed that “in that circumstances, more injuries on the private part of the victim were required and in that circumstance, the victim would become unconscious.” According to us, this finding of the learned Judge is not only erroneous but also without any base and support. Besides, it is contrary to the medical evidence forthcoming on the record which has been discussed in detail hereinabove. Thus, according to us there is no question of the second view. In absence of any evidence in the form of opinion of an expert, presumption made by the learned Judge has no value in the eye of law. That being so, the observations made by the Apex Court in Badrilal and Others (supra) are of no help to the respondent/original accused.
18. Taking into consideration the above discussion of the facts and evidence on record, we are of the considered view that the appellant-State of Gujarat has proved the offence of rape punishable under section 376 of IPC against the respondent/original accused beyond reasonable doubt. As the rape is committed on the victim minor girl in this case and the respondent is held guilty for the same, imprisonment for life or imprisonment for 10 years and fine is required to be imposed.
19. In the result, this appeal is allowed. For the reasons aforesaid, the accused-Piyush Mohanlal Gandhi is held guilty of the offence punishable under section 376 of IPC for committing rape on the victim minor girl.
20. On the question of sentence, the respondent/original accused has been heard. The respondent-accused submitted that at present he is 52 years old and doing labour work in Khanderao Market at Vadodara. He is married and his family consists of wife and two children. His elder son is studying in X standard and younger son is studying in VII standard. He is residing at Raj Mahal Road, behind Khanderao Market, Vadodara on a rent of Rs. 500/- per month in the house of one Shri Haribhai Pajapati, the landlord, who is staying at Bariya. At the time of the incident he was 26 years old and was residing with his parents in a rented house and after the incident, he was in judicial custody and the parents have vacated the said rented house prior to the judgment was pronounced.
21. Learned APP for the appellant-State has placed reliance on paragraphs 10 to 12 of a decision in the case of State of Andhra Pradesh v. Polamala Raju alias Rajarao (AIR 2000 SC 2854) which is reproduced hereunder and submitted that while awarding the sentence, the observations made by the Hon'ble the Apex Court in paragraphs 10 to 12 be taken into consideration:
“10. In the present case, the reasons given by the High Court in the instant case for reducing the sentence from the minimum 10 years is contained in the last paragraph of the judgment which reads :
"I entirely agree with the conclusions arrived at by the learned Assistant Sessions Judge. I accordingly confirm the conviction imposed by the Court below. But, having regard to the circumstances of the case, the sentence of ten years R.I. imposed by the Court below is reduced to a period of five years R.I. and the sentence of fine of Rs. 10/- shall stand."
(Emphasis ours)
11. 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. It appears that the provisions of S. 376(2), IPC were not at all present to the mind of the Court. This Court has time and again drawn attention of the subordinate Courts to the sensitivity which is required of the court to deal with all cases and more particularly in cases involving crime against women. In State of A.P. v. Bedem Sundara Rao (1995) 6 SCC 230 : (1995 AIR SCW 4435 : AIR 1996 SC 530), this Court said (Para 9 of AIR SCW and AIR) :
"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 the 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."
(Emphasis ours)
12. Again, in the case of State of Karnataka v. Krishnappa (2000) 4 SCC 75 : (2000 AIR SCW 1040 : AIR 2000 SC 1470 : 2000 Cri LJ 1793), this Court pointed out that rape is not merely a physical assault, it is an offence which is destructive of the whole personality of the victim of crime and Courts shoulder a great responsibility while trying an accused on charges of rape and must deal with such cases with utmost sensitivity. Referring to imposition of punishment in such cases, it was opined (Para 17 of AIR SCW, AIR and Cri LJ) :
"The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. 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.
(Emphasis supplied)”
21.1. The learned APP also placed reliance on para 17 of the decision in the case of Rajendra Datta Zarekar v. State of Goa [(2007) 14 SCC 560)] which reads as under:
“17. Learned counsel for the appellant further submitted that the sentence of ten years' RI awarded by the High Court is very severe and the same may be reduced. It may be mentioned here that Section 376 (2)(f) IPC specifically provides that where the victim is less than 12 years of age the sentence awarded shall not be less than 10 years but it may be for life and the accused shall also be liable to fine. The proviso, no doubt, says 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 ten years. Here the victim PW 8 Sonia was aged about six years and, therefore, the case is fully covered by clause (f) of sub-section (2) of section 376 IPC and the sentence awarded cannot be less than ten years unless there are adequate and special reasons for doing so. we do not find any adequate or special reasons for imposing a sentence of less than ten years.”
22. We have considered the ratio laid down by the Apex Court in the above referred citations. In the case on hand, no ground is made out to award the sentence less than the minimum prescribed. Taking into consideration the above discussion of the facts and the evidence on record, we are of the considered view that the appellant-State of Gujarat has proved the offence of rape punishable under section 376 of the Indian Penal Code against the respondent/original accused beyond reasonable doubt. As the rape is committed on the victim -minor girl in this case and the respondent is held guilty for the same, imprisonment for life or imprisonment for 10 years and fine is required to be imposed. Hence the following final order is passed.
23. In the result, this appeal is allowed. The impugned judgment and order dated 4.11.1988 passed in Sessions Case No. 42 of 1988 acquitting the respondent /original accused of the offence punishable under section 376 of Indian Penal Code is set aside. The respondent/original accused is convicted for offence punishable under section 376 of IPC. The accused is ordered to undergo Rigorous Imprisonment of 10 years. The fine imposed by the trial court is maintained. Set off be given for the period of sentence already undergone by the accused. As per the conviction order passed by the court below of the respondent/original accused for the offence punishable under section 511 read with section 376 of Indian Penal Code for attempt to commit rape and the sentence to suffer Rigorous Imprisonment for two years and a fine of Rs. 250/-, in default, 5 days' further R.I., the accused has undergone the sentence. So far as fine is concerned, the respondent/original accused has declared that he had paid the fine which was imposed on him. The accused is granted four weeks' time to surrender as prayed for. In the event he fails to surrender within the period of four weeks, he is ordered to be taken into custody to undergo the remaining sentence. The bail bond shall stand cancelled.
[RAVI R TRIPATHI, J.] msp
[G B SHAH, J.]