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CASE NO.: Appeal (crl.)  263 of 2006

PETITIONER: Dinesh @ Buddha

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 28/02/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising Out of S.L.P (Crl.) No. 5753 of 2005)

ARIJIT PASAYAT, J.

       Leave granted.

       An eight years old girl was sexually ravished by the  appellant is what was alleged and for that the appellant faced  trial. The victim suffered ignominy on 5.2.1998.  The appellant  has been found guilty of offence punishable under Section  376(2) of the Indian Penal Code, 1860 (in short the ’IPC’) read  with Section 3(2)(v) of the Scheduled Castes and the  Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short  the ’Atrocities Act’). The appellant was directed to undergo  imprisonment for life and to pay a fine of Rs. 1,000/- and the  State was directed to pay a compensation of Rs.50,000/- to  the victim.   

       Background facts are essentially as follows:

       On 5.2.1998 the victim had gone to witness a marriage  procession in the night.  When she was coming back to her  house in the night at about 12 O’ clock the accused sexually  assaulted her.  She was threatened that if she disclosed about  the incident to anybody, she would be killed.  Suffering from  the acute pain the victim told her sister, mother and  grandmother about the incident.  The matter was reported to  the police.  The accused person was arrested; medical tests  were conducted both in respect of the accused and the victim,  and after completion of investigation charge sheet was filed.   The Trial Court found the accused guilty of the offences  charged under Section 376(2) IPC and Section 3(2)(v) of the  Atrocities Act and sentenced him.       The appeal before the  Rajasthan High Court, Jaipur Bench, did not bring any relief  to the accused.   

       In support of the appeal, learned counsel for the  appellant submitted that the evidence is not credible and  cogent. There are many inconsistencies in the evidence, more  particularly, of the victim (PW-8).  This is not a case where life  imprisonment could have been awarded.  In any event there is  no material to bring in application of Section 3(2)(v) of the  Atrocities Act.  It is further submitted that the appellant  belongs to the lowest economic strata of society who could not  even afford to engage a lawyer at any stage.  Even during trial  and before the High Court, lawyers were engaged at State’s

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cost.  The young age of the accused should also be taken into  consideration.

       In response, learned counsel for the State submitted that  though Section 3(2)(v) of the Atrocities Act may not be  applicable, but imposition of life sentence is also permissible  in a case covered under Section 376(2)(f) IPC.  It is also  submitted that the compensation of Rs.50,000/-  directed to  be paid by the State,  should be set aside.   

       Sexual violence apart from being a dehumanizing act is  an unlawful intrusion on the right of privacy and sanctity of a  female.  It is a serious blow to her supreme honour and  offends her self-esteem and dignity \026 it degrades and  humiliates the victim and where the victim is a helpless  innocent child or a minor, it leaves behind a traumatic  experience. A rapist not only causes physical injuries but more  indelibly leaves a scar on the most cherished possession of a  woman i.e. her dignity, honour, reputation and not the least  her chastity. Rape is not only a crime against the person of a  woman, it is a crime against the entire society. It destroys, as  noted by this Court in Shri Bodhisattwa Gautam v. Miss  Subhra Chakraborty (AIR 1996 SC 922), the entire psychology  of a woman and pushes her into deep emotional crisis. It is a  crime against basic human rights, and is also violative of the  victim’s most cherished of the Fundamental Rights, namely,  the Right to Life contained in Article 21 of the Constitution of  India, 1950 (in short the ’Constitution’) The Courts are,  therefore, expected to deal with cases of sexual crime against  women with utmost sensitivity. Such cases need to be dealt  with sternly and severely.  A socially sensitized judge, in our  opinion, is a better statutory armour in cases of crime against  women than long clauses of penal provisions, containing  complex exceptions and provisos.  

We do not propose to mention name of the victim. Section  228-A of 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 ostracism 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 this Court, 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. (See State of Karnataka v. Puttaraja (2003 (8)  Supreme 364).  

The offence of rape occurs in Chapter XVI of IPC. It is an  offence affecting the human body. In that Chapter, there is a  separate heading for "Sexual offences", which encompass  Sections 375, 376, 376A, 376B, 376C and 376D I.P.C. "Rape"  is defined in Section 375 I.P.C.  Sections 375 and 376 I.P.C.  have been substantially changed by Criminal Law  (Amendment) Act, 1983, and several new sections were  introduced by the new Act, i.e. 376A, 376B, 376C and 376D.  The fast sweeping changes introduced reflect the legislative  intent to curb with iron hand, the offence of rape which affects  the dignity of a woman. The offence of rape in its simplest term  is ’the ravishment of a woman, without her consent, by force,  fear or fraud’, or as ’the carnal knowledge of a woman by force

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against her will’. ’Rape or Raptus’ is when a man hath carnal  knowledge of a woman by force and against her will (Co.Litt.  123 b); or, as expressed more fully, ’rape is the carnal  knowledge of any woman, above the age of particular years,  against her will; or of a woman child, under that age, with or  against her will’. (Hale P.C. 628) The essential words in an  indictment for rape are rapuit and carnaliter cognovit; but  carnaliter cognovit, nor any other circumlocution without the  word rapuit, are not sufficient in a legal sense to express rape:  (1 Hen. 6, 1a, 9 Edw. 4, 26 a (Hale P.C.628). In the crime of  rape, ’carnal knowledge’ means the penetration to any the  slightest degree of the male organ of generation (Stephens  Criminal Law, 9th Ed., p.262). In "Encyclopedia of Crime and  Justice" (Volume 4, page 1356), it is stated "......even slight  penetration is sufficient and emission is unnecessary". In  Halsburys’ Statutes of England and Wales (Fourth Edition)  Volume 12, it is stated that even the slightest degree of  penetration is sufficient to prove sexual intercourse. It is  violation, with violence, of the private person of a woman, an  outrage by all means. By the very nature of the offence it is an  obnoxious act of the highest order.   

The physical scar may heal up, but the mental scar will  always remain. When a woman is ravished, what is inflicted is  not merely physical injury but the deep sense of some  deathless shame. An accused cannot cling to a fossil formula  and insist on corroborative evidence, even if taken as a whole,  the case spoken to by the victim strikes a judicial mind as  probable. Judicial response to human rights cannot be  blunted by legal jugglery.

It is to be noted that in sub-section(2) of Section 376  I.P.C. more stringent punishment can be awarded taking into  account the special features indicated in the said sub-section.   The present case is covered by Section 376(2)(f) IPC i.e. when  rape is committed on a woman when she is under 12 years of  age. Admittedly, in the case at hand the victim was 8 years of  age at the time of commission of offence.

In the Indian Setting refusal to act on the testimony of  the victim of sexual assault in the absence of corroboration as  a rule, is adding insult to injury. 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.  in 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

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dispense with it, must be present to the mind  of the judge...".

          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. Courts must hear the loud cry for justice  by the society in cases of the heinous crime of rape on  innocent helpless girls of tender years, as in this case, and  respond by imposition of proper sentence. Public abhorrence  of the crime needs reflection through imposition of appropriate  sentence by the Court. There are no extenuating or mitigating  circumstances available on the record which may justify  imposition of any sentence less than the prescribed minimum  on the respondent. To show mercy in the case of such a  heinous crime would be a travesty of justice and the plea for  leniency is wholly misplaced.  

The legislative mandate to impose a sentence, for the  offence of rape on a girl under 12 years of age, for a term  which shall not be less than 10 years, but which may extend  to life and also to fine reflects the intent of stringency in  sentence. The proviso to Section 376(2) IPC, of course, lays  down that the court may, for adequate and special reasons to  be mentioned in the judgment, impose sentence of  imprisonment of either description for a term of less than 10  years. Thus, the normal sentence in a case where rape is  committed on a child below 12 years of age, is not less than 10  years’ RI, though in exceptional cases "for special and  adequate reasons" sentence of less than 10 years’ RI can also  be awarded. It is a fundamental rule of construction that a  proviso must be considered with relation to the principal  matter to which it stands as a proviso particularly in such like  penal provisions. The courts are obliged to respect the  legislative mandate in the matter of awarding of sentence in all  such cases. Recourse to the proviso can be had only for  "special and adequate reasons" and not in a casual manner.  Whether there exist any "special and adequate reasons" would  depend upon a variety of factors and the peculiar facts and  circumstances of each case. No hard and fast rule can be laid  down in that behalf of universal application.   

At this juncture it is necessary to take note of Section 3  of the Atrocities Act.  As the Preamble to the Act provides ’the  Act has been enacted to prevent the commission of offences of  atrocities against the members of the Scheduled Castes and  Scheduled Tribes.  The expression ’atrocities’ is defined in  Section 2 of the Atrocities Act to mean an offence punishable  under Section 3.  The said provision so far relevant reads as  follows:   

"3(2)(v): Punishments for offences of atrocities \026 (2)     Whoever, not being a member of a  Scheduled Caste or a Scheduled Tribe, -

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               xxx             xxx                     xxx (v)     commits any offence under the  Indian Penal Code punishable with  imprisonment for a term of ten years  or more against a person or property  on the ground that such person is a  member of a Scheduled  Caste or a  Scheduled Tribe or such property  belongs to such member, shall be  punishable with imprisonment for  life and with fine;

               xxx             xxx                     xxx"

       Sine qua non for application of Section 3(2)(v) is that an  offence must have been committed against a person on the  ground that such  person is a member of Scheduled Castes  and Scheduled Tribes.  In the instant case no evidence has  been led to establish this requirement. It is not case of the  prosecution that the rape was committed on the victim since  she was a member of Scheduled Caste.  In the absence of  evidence to that effect, Section 3(2)(v) has no application.  Had  Section 3(2)(v) of the Atrocities Act been applicable then by  operation of law, the sentence would have been imprisonment  for life and fine.

       In view of the finding that Section 3(2)(v) of the Atrocities  Act is not applicable, the sentence provided in Section 376(2)(f)  IPC does not per se become life sentence. Though learned  counsel for the State submitted that even in a case covered  under Section 376(2)(f) IPC, imprisonment for life can be  awarded, it is to be noted that minimum sentence of 10 years  has been statutorily provided and considering the attendant  circumstances the imprisonment for life in a given case is  permissible. Neither the Trial Court nor the High Court has  indicated any such factor.  Only by applying Section 3(2)(v) of  the Atrocities Act the life sentence was awarded.  Therefore,  the sentence is reduced to 10 years.  The other question is  legality of the compensation awarded.  Since the State has not  challenged the award of compensation, it is not open to it to  question the legality of the award in the present appeal filed by  the accused.  Therefore, State’s challenge to the legality  and/or quantum of compensation awarded is without merit.   The amount shall be paid to the victim if not already paid  within a period of eight weeks.

       With the modification of sentence as abovementioned, the  appeal is dismissed.