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CASE NO.: Appeal (crl.) 1332  of  1999

PETITIONER: KAMAL KISHORE

       Vs.

RESPONDENT: STATE OF HIMACHAL PRADESH

DATE OF JUDGMENT:       25/04/2000

BENCH: K. T. THOMAS, DORAISWAMY RAJU & S.N. VARIAVA

JUDGMENT:

Thomas J. L...I...T.......T.......T.......T.......T.......T.......T..J

   The  victim  of a rape had just crossed single digit  in her  age.   So tender was that lass when she  was  ravished. But the damage caused to her genitalia was woeful.  The girl narrated  the  story  before Ms.   Kiran  Agarwal,  Sessions Judge,  Una  (Himachal Pradesh) who tried the case, but  the story  told  by her did not impress the Sessions  Judge  and hence  her  testimony  was jettisoned and the  man  who  was arraigned  as  the rapist exonerated.  However,  a  Division Bench  of the High Court of Himachal Pradesh dissented  from the  said verdict and convicted him under Section 376 of the Indian  Penal Code.  Nonetheless, the Division Bench was not disposed to award the minimum sentence prescribed by law for the  offence on the premise that the accused who was  twenty five  "might  have  settled  in life."  So  the  High  Court directed  him  to  undergo rigorous imprisonment  for  three years and to pay a fine of Rupees ten thousand.

   The verdict of the High Court did not satisfy both sides - the accused and the State of Himachal Pradesh.  The former because  of  the reversal of the order of acquittal and  the latter  because of the inadequacy of the sentence.  So  both sides  filed  separate appeals by special leave.   We  heard both appeals together.

   The  case  put  forward  against   the  accused  can  be summarised in the following lines:  -

   Shishna  Devi (PW2) is the eldest of the three  children of  Sher Singh and his wife Kunta Devi.  During the year  of occurrence  Sheshna  Devi  was studying in  the  4th  class. Accused  Kamal  Kishore  was running a  flour  mill  located adjacent  to his house.  The incident happened on 21.5.1989. Shishna Devi after taking her evening meals proceeded to the house of her aunt, but on the way she stepped into the house of  the accused presumably for viewing a TV film.  Either at the  end of the film or a little before it Shishna Devi  was asked  by  the  mother  of accused  to  fetch  some  cooking utensils  from the flour mill.  So she went and brought  the

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utensils  to the kitchen.  It was right time and the accused followed  her upto the kitchen.  He caught hold of her  from behind, muffled her mouth, lifted her up and took her to the flour  mill and after dragging her to a side room,  stripped her off and he committed rape on her.

   When  the  wearing apparels of Shishna Devi  became  wet with  blood the accused brought a bucket of water and washed the  dress.   He threatened her not to reveal it to  anybody else.   The  house  of her aunt (Kaushalya Devi -  PW4)  was located  close by and Shishna Devi instead of going back  to her  own house went to that aunt’s house and spent the night there.

   Next  morning  Shishna Devi returned home.   Her  mother Kunta  Devi (PW-3) noticed blood stains on her dress and she enquired  about the cause of it.  Shishna Devi then narrated the  incident to her mother.  Her husband (father of Shishna Devi) was not in the house then as he had gone for his work. (He  is  a daily-wage earning labourer).  Next day  when  he returned home the story was narrated to him.  On hearing the same  he wanted to report the matter to the police and hence he  took his wife and Shishna Devi to Bangana police station and lodged Ex.  PC complaint.

   Shishna Devi was examined by PW 14 Dr.  JS Kanwar of the Indira  Gandhi  Medical  College  (Shimla)  at  4.30  pm  on 23.5.1989.   The doctor noted the following features on  her person.

   1.   Congestion (contusion) of labia minora both  sides.

   2.    Tear  in  the   perennial  fourchete  in  mid-line involving vaginal mucosa and perineal skin (3/4th cm long in skin).   Swelling  and  tenderness noted at that  site.

   3.  Congestion and oedema of vestibule around Urethra.

   4.   Hymen  showed lacerations on the left side.   There was oedema and tenderness.  It was bleeding on touch.

   According to PW-14, the injuries could probably had been sustained  24-48 hours prior to his examination of the girl. The  doctor collected the swab from the posterior fornix  of the  vagina,  and  that along with the wearing  apparels  of Shishna  Devi  were sent for chemical tests.  The result  of such test showed spermatozoa and semen.

   The  aforesaid materials are sufficient to show,  beyond any  spec of doubt, that Shisna Devi was sexually ravaged by a man.  Hence the only question which fell for consideration is whether it was the accused who did the act on that little girl.   No  question of consent of the victim need  vex  the judicial  mind in this case as the age of Shishna Devi  then was far distal from the age of 16.

   For  the narrowed compass of consideration in this  case i.e.   whether  accused  was the rapist, the  most  decisive evidence  is the testimony of the victim herself.  None else will  be more competent than her to tell the court as to who raped  her.   There is no scope for doubting that she  would not have seen the person who seduced her.  PW-2 Shishna Devi pointed  at the accused in unmistakable terms as the  person who ravaged her.  On that aspect there was no discrepancy in the  evidence.  But the Sessions Judge went into the details

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of  the  occurrence and after dwelling on  certain  features thereof the case was dubbed as highly improbable.

   Learned  Sessions Judge pointed out from the evidence of PW-2  that the time of her visit to the house of the accused was  6  P.M.  for viewing the TV film, and then referred  to the  evidence of her aunt Kaushalya Devi (PW-4) that Shishna Devi  reached her house at 11 P.M.  The Sessions Judge  made the following comment on that aspect:

   "Now it remains a mystery where the prosecutrix remained upto  11  p.m.   Even  if the watching of the  film  on  the television  by  the prosecutrix in the house of accused  for some  time  is construed to be one hour or two hours,  10-15 minutes  in  bringing the utensils from the flour  mill  and half  an  hour  in the process when  the  accused-petitioner dragged  her from the kitchen to the room by the side of the flour  mill  and  raping her and then bringing a  bucket  of water  with  which  she washed her shirt,  even  then  there remains  a considerable period of about two hours till 11 O’ Clock at night when the prosecutrix reached the house of her aunt  Kaushlya Devi where she slept for the night.  Thus the unexplained time gap makes the deposition of the prosecutrix highly improbable."

   The Division Bench of the High Court, after referring to the evidence on that aspect, has observed thus:

   "We  do not find any unexplained time gap as held by the Sessions  Judge.   Moreover, the prosecutrix and her  mother had  not  given  the time when the prosecutrix  reached  the house  of her aunt Kaushlya Devi.  It is only Kaushlya  Devi who has stated that the prosecutrix had come to her house at about  11 P.M.  when she was asleep.  In the absence of  her further  statement that she has noticed the time as 11  P.M. in  her  wrist  watch or in any other watch  or  clock,  the possibility  cannot be ruled out that she gave the time only as  per  her estimate and the margin of error might be  from half an hour to one hour."

   After   referring  to  certain   other  details  of  the occurrence  the  Sessions Judge expressed her  inability  to believe the story narrated by Shishna Devi and then observed that  "there  are  a  few important  missing  links  in  the prosecution  case  and  no  attempt has  been  made  by  the investigating officer to collect those links." As an example the  trial  judge pointed out that "none from the family  of the  accused  or the locality has been examined in order  to prove  the  presence of the prosecutrix in the house of  the accused  on  the evening of the occurrence for watching  the television."  But the High Court totally disagreed with  the said  reasoning and stated:  "It is too much to expect  that any  member  of  the family of the respondent  or  from  the houses  in  the  neighbourhood would appear  as  witness  in support  of  the statement to the prosecutrix that  she  was present  in  the house of the respondent for  watching  TV". The  learned  Judges  pointed out that  prosecutrix  is  the daughter  of a poor daily-wage labourer, whereas the accused is the son of a proprietor of a flour mill and landlord.

   We  have no doubt that the Sessions Judge had reached an erroneous  conclusion  by  approaching the question  from  a wrong  angle.   The  evidence of the adolescent girl  -  the victim of rape, as duly corroborated by the testimony of her

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mother  and  aunt, and adequately confirmed by  the  medical evidence,   had  conclusively  established   that  she   was subjected  to ravishment by the accused and none else.   The reasons  adverted to by the High Court are far sturdier  and stronger  than those suggested by the Sessions Judge to rely on.   The Division Bench of the High Court has thus  rightly reversed  the  order of acquittal and convicted the  accused under Section 376 of the IPC.

   While  considering the sentence we have to bear in  mind that  the  offence  was committed after the  enforcement  of Criminal  Law  Amendment Act (CLAA) No.43 of 1983.   So  the provision  prescribing more rigorous sentence must apply  if the  offence falls within the purview of sub-section (1)  of Section   376,  and  then  he   "shall  be   punished   with imprisonment  of  either description for a term which  shall not  be less than seven years".  If the offence falls  under sub-section  (2)(f)  (commits rape on an woman when  she  is under  12  years  of  age)  the offender  is  liable  to  be "punished  with rigorous imprisonment for a term which shall not  be  less than ten years but which may be for  life  and shall also be liable to fine."

   The  question of the age of Shishna Devi is,  therefore, important  in this area.  If she was below the age of 12, on the  date  of  occurrence  the  minimum  sentence  would  be rigorous imprisonment for 10 years.  PW-14 Dr.  J.S.  Kanwar has fixed up the age of PW-2 Shishna Devi as 10 years on the date  of  her  examination.  This was testified  to  by  the doctor  on the strength of clinical examination conducted by him.   But  the doctor did not conduct  either  ossification test  or any other pathological tests to reach at least  the approximate  age of the victim.  So his assessment regarding age is based on fragile premises.

   According to Ext.PH (School Certificate of Shishna Devi) her  date  of birth is 11-11-1978, which means that  on  the date  of occurrence she was below 11 years of age.  But Ext. PH  lost its credibility when Ext.PO (the Certificate issued by the Panchayat) was produced in which the date of birth of PW-2  is  shown as 24-11-1978.  But the evidence  of  PW-2’s mother  Kunta Devi (PW-3) shows that Shishna Devi was  12-13 years old.  The Sessions Judge found her age as put forth by Kunta  Devi, the mother of PW-2, and the High Court did  not interfere  with that.  Therefore, we have to follow the said finding  on fact.  Even then, the sentence prescribed  under sub-section  (1) of Section 376 of the IPC has stipulated  a minimum limit that it "shall not be less than 7 years".

   However,  learned counsel for the accused made a serious endeavour  to  bring the case within the proviso to  Section 376 IPC which reads thus:

   "Provided  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 seven years."

   As  pointed out earlier, the Division Bench of the  High Court  reduced  the  sentence from the minimum limit,  on  a premise  that "in view of the fact that the occurrence is of 21.5.1989  when  he  was 25 years of age and he  might  have settled in life".

   In  order to support the said reasoning, learned counsel for  the  accused relied on the following observations of  a

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two  Judge  Bench of this Court in the State of  Punjab  vs. Gurmit  Singh and ors.  {1996 (2) SCC 384}:  "So far as  the sentence  is  concerned,  the  court has to  strike  a  just balance.   In  this  case  the   occurrence  took  place  on 30.3.1984  (more  than 11 years ago).  The respondents  were aged between 21-24 years of age at the time when the offence was  committed.   We are informed that the respondents  have not  been  involved  in any other offence  after  they  were acquitted by the trial court on 1.6.1985, more than a decade ago.   All  the respondents as well as the prosecutrix  must have by now got married and settled down in life.  These are some of the factors which we need to take into consideration while  imposing an appropriate sentence on the respondents." But  recently in the State of Karnataka vs.  Krishnappa  {JT 2000  (3)  SC 516} a three Judge Bench of this Court,  after referring  to  the above decision, restored the sentence  of imprisonment  for 10 years fixed by the trial court for  the offence  under  Section 376 of the IPC.  The victim in  that case  was  aged 7-8 years.  The High Court in that case  had reduced  the sentence of imprisonment to 4 years.  Dr.  A.S. Anand,  CJI,  who  authored the judgment of the  Bench,  had stated thus:

   "The  High Court justified the reduction of sentence  on the  ground that the accused-respondent was ‘unsophisticated and  illiterate citizen belonging to a weaker section of the society’;   that  he was ‘a chronic addict to drinking’  and had  committed  rape  on  the  girl  while  in  a  state  of ‘intoxication’  and  that his family comprising of  ‘an  old mother,  wife and children’ were dependent upon him.   These factors,  in  our opinion, did not justify recourse  to  the proviso to Section 376(2) IPC to impose a sentence less than the  prescribed minimum.  These reasons are neither  special nor  adequate.  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.  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."

   This Court in the said decision noted that "there are no extenuating  or  mitigating circumstances available  on  the record  which  may justify imposition of any  sentence  less than the prescribed minimum to the respondent."

   As  Parliament  has disfavoured the sentence to  plummet below  the  minimum  limit prescribed  Parliament  used  the expression  "shall not be less than" which is peremptory  in tone.   The court has, normally, no discretion even to award a   sentence  less  than   the  said  minimum.   Nonetheless Parliament  was  not oblivious of certain  very  exceptional situations   and   hence  to   meet  such   extremely   rare contingencies  it made a departure from the said strict rule by  conferring  a  discretion on the court  subject  to  two conditions.   One  is  that there should  be  "adequate  and special  reasons", and the other is that such reasons should be  mentioned in the judgment.  The expression "adequate and

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special  reasons"  indicates that it is not enough  to  have special  reasons, nor adequate reasons disjunctively.  There should  be  a conjunction of both for enabling the court  to invoke  the discretion.  Reasons which are general or common in  many cases cannot be regarded as special reasons.   What the  Division  Bench  of  the  High  Court  mentioned  (i.e. occurrence  took  place 10 years ago and the  accused  might have settled in life) are not special to the accused in this case or to the situations in this case.  Such reasons can be noticed  in  many  other  cases and  hence  they  cannot  be regarded as special reasons.  No catalogue can be prescribed for adequacy of reasons nor instances can be cited regarding special reasons, as they may differ from case to case.

   As  the  reasons advanced by the Division Bench  of  the High  Court  could not be supported as adequate and  special reasons  learned  counsel  for   the  accused  projected  an alternative  profile in order to support his contention that there  are  adequate and special reasons.  He submitted  the following:   Shishna  Devi(PW2)  has since been  married  to another  person  and  she is now mother of children  and  is well-settled  in  life.   The accused was aged 23  when  the offence  was  committed  and now he is 34,  but  he  remains unmarried.   He says that on two occasions his marriage  had reached  the stage of engagement but both had to be  dropped off  before reaching the stage of marriage due to the social stigma  and  disrepute which surrounded him.  These are  the reasons  which he advanced for extending the benefit of  the proviso.

   Those  circumstances  pleaded  by him  are  not  special reasons for tiding over the legislative mandate for imposing the  minimum sentence.  We, therefore, enhance the  sentence for  the  offence under Section 376 I.P.C.  to  imprisonment for 7 years.

   The  long time lag which elapsed subsequent to the  date of offence and the fact that the prosecutrix got married and is  well  settled  in  life and that she is  now  mother  of children  -  all  these  things which  happened  during  the intervening  period, may be factors for consideration by the executive  or  constitutional  authorities if they  have  to decide  whether remission of the sentence can be allowed  to the  accused.   We  make it clear that we have  imposed  the enhanced  sentence on him without prejudice to any motion he may  make  for  such remission of the  sentence  before  the authorities concerned.