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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: RAJENDRA JAWNMAL GANDHI

DATE OF JUDGMENT:       11/09/1997

BENCH: M.K. MUKHERJEE, D.P. WASHWA

ACT:

HEADNOTE:

JUDGMENT:                             WITH            CRIMINAL APPEAL NOS. 840 & 839 OF 1997           (Arising out of SLP (Crl.) Nos. 2510 /97       Crl. M.P. No.839/97) and SLP (Crl.) No.1773/96)                       J U D G M E N T D.P. WADHWA, J.      leave granted      Rajendra Jawanmal Gandhi (the accused) was convicted by the Sessions  Judge, Satara  for offences  under Section 376 Indian Penal  Code  (IPC)  and  Section  57  of  the  Bombay Children Act,  1948 for  having committed  rape on a girl of eight  years  of  age  and  sentenced  to  undergo  rigorous imprisonment for  7 years  and to pay fine of Rs.5,000/- and in  default   of  payment   of  fine   to  undergo  rigorous imprisonment for six months and for offence under Section 57 of the  Bombay Children  Act, he  was sentenced  to  undergo rigorous imprisonment  for one year and fine of Rs.500/- and in default  thereof rigorous  imprisonment for one moth. The substantive sentences  were  ordered  to  urn  concurrently. Maruti car  in which  the offence  of rape was committed was ordered to  be forfeited  and confiscated  to the State. The accused appealed  to  the  Bombay  High  Court  against  his conviction and  sentence. A Division Bench of the High Court by judgment  dated October  4, 1994 upheld the conviction of the accused  under Section 57 of the Bombay Children Act and upset the  conviction under  Section  376  IPC  and  instead convicted him  for an  offence under  Section  354  IPC  and sentenced him  to suffer  rigorous imprisonment which he had already undergone (which was 33 days in all) and to pay fine of Rs.40,000/-.  In default  of payment of fine, the accused was sentenced  to undergo  rigorous imprisonment  for  three months. It  was ordered  that our of the fine so realised, a sum of  Rs.25,000/- shall  be paid  to the complaint who was father of  the girl.  For an offence under Section 57 of the Bombay Children  Act, sentence  was reduced  to imprisonment already undergone  and the  accused not  required to undergo any separate  imprisonment for  this offence. The Maruti Car was ordered  to be  returned to the accused and the order of forfeiture and confiscation was set aside.      The matter  did not  end at  that. Nagrik Kirti Samiti,

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Kolhapur which  had  been  formed  was  agitated  about  the acquittal of  the accused  for an  offence under Section 376 IPC. The Convener of the Samiti Mr. P.D. Hankare represented to the  State Government  to file  an appeal  to this  Court against the  acquittal of the accused under Section 376 IPC. In the  meantime, the  accused had  deposited  the  fine  of Rs.40,000/- as  ordered by  the High  Court and  our of this amount a sum of Rs.25,000/- has been withdrawn by the father of the  girl. Perhaps  this was  the consideration  for  the State Government  not to  file any  appeal  in  the  Supreme Court.  Since   there  was   no  response   from  the  State Government, Mr.  P.D. Hankare, Convener of the Nagarik Kirti Samiti, Kolhapur  approached  this  Court.  He  was  granted permission  to  file  special  leave  petition  against  the conviction and sentence on the accused by the High Court and as afore  mentioned, after  notice of this appeal was served upon the  State of  Maharashtra and  the accused, both filed separate  appeals   in  this   Court,  while  the  State  of Maharashtra filed appeal against the conviction and sentence of the  accused by the High Court praying for his conviction under Section 376 IPC and for enhancement of his sentence of minimum of  10 years,  the accused  filed appeal against his very conviction and sentence under Section 354 IPC and 57 of the Bombay Children  Act.      Since the  State itself has filed an appeal praying for conviction of  the accused under Section 376 IPC and for his punishment under  Section 376(f)  as the girl child was less than 12  years  of  age,  leave  granted  to  P.D.  Hankare, Convener,  Nagrik   Kirti   Samiti,   Kolhapur   Loses   its significance and we direct that the leave be revoked.      It may  be noticed  at the  outset that the offence was committed at  Kolhapur and the accused was to be tried there in the  court of  Session. But because of public outcry, the plea of  the accused  that he  may not  get  fair  trial  at Kolhapur was  accepted and  the case  was transferred to the file of Sessions Judge, Satara.      Before we  consider the  rival contentions,  we may set out the  relevant provisions  of law under which the accused was tried:      Section 375  and Section  376 in  relevant part  is  as under:      "375 Rape.  A man is said to commit      "rape"  who,  except  in  the  case      hereinafter  excepted,  has  sexual      intercourse  with   a  woman  under      circumstances falling  under any of      the six of following descriptions:-      First.- Against her will.      Secondly.- Without her consent.      Thirdly.- With  her  consent,  when      her consent  has been  obtained  by      putting her  or any  person in whom      she is  interested in fear of death      or of hurt.      Fourthly.- With  her consent,  when      the man  knows that  he is  not her      husband, and  that her  consent  is      given because  she believes that he      is another  man to  whom she  is or      believes  herself  to  be  lawfully      married      Fifthly.- With  her consent,  when,      at the time of giving such consent,      by reason of unsoundness of mind or      intoxication or  the administration

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    by  him   personally   or   through      another  of   any   stupefying   or      unwholesome   substance,   she   is      unable to understand the nature and      consequences of  that to which shed      gives consent.      Sixthly.-  With   or  without   her      consent, when  she is under sixteen      years of age.      Explanation.-    Penetration     is      sufficient to constitute the sexual      inercourse necessary to the offence      of rape.      Exception.- Sexual intercourse by a      man with his own wife, the wife not      being under  fifteen years  of age,      is not rape.      376.   Punishment   for   rape.-(1)      whoever,  except   in   the   cases      provided for  by  sub-section  (2),      commits rape shall be punished with      imprisonment of  either description      for a  term which shall not be less      than  seven  years  but  which  may      extend to  ten years and shall also      be liable  to fine unless the woman      raped is  his own  wife and  is not      under twelve years of age, in which      case, he  shall  be  punished  with      imprisonment of  either description      for a  term which may extend to two      years or with fine or with both:      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.      (2) Whoever, -      (a)  ..............................      (b)................................      (c)................................      (d) ..............................      (e) ..........................      (f)   Commits rape  on a woman when      she is  under twelve  years of age;      or      (g) ..............................      shall  be  punished  with  rigorous      imprisonment for a term which shall      not be less than ten year but which      may be  for life  and shall also be      liable to fine:      Provided that  the court  may,  for      adequate and  special reasons to be      mentioned in the judgment, impose a      sentence of  imprisonment of either      description for a term of less than      ten years."      Section 57  of the  Bombay Children      Act, 1948 is as under:      "57. Whoever seduces or indulges in      immoral behaviour with a girl under      the age of eighteen years shall, on      conviction   be    punished    with      imprisonment of  either description

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    for a  term which may extend to two      years  or   with  fine   which  may      extended to  one thousand rupees or      with both."      "Immoral behaviour"  is defined  under Section  4(j) of this Act  and it  includes  any  act  or  conduct  which  is indecent or abscene.      The accused  was charged for having committed rape on a girl of  8 years  of age in a Maruti car of chocolate colour on a  road leading  to Ragala Park at Kolhapur at about 9.30 A.M.  on   September  24,  1986,  thus  committing  offences punishable under  Section 376  IPC  and  57  of  the  Bombay Children Act.      In support  of the  charge the  prosecution examined as many as  24 witness. The material witness would, however, be (1) the  complainant Shrikant Desphande, father of the girl, (2) prosecutrix,  (3) Police  Inspector Labde  who initially investigated the  case, (4)  Dr. Mrs. Sahastrabuddha (family doctor of the complainant), (5), Dr. Gunda (Medical Officer, Civil Hospital,  Kolhapur), (6)  Dr. Hoshing (Civil Surgeon, Kolhapur), (7)  Vishakha Kulkarni (who gave the registration number  of   the  Maruti   car  of  chocolate  colour),  (8) Parashuram Jadhav  (earlier registered  owner of the car but had sold  the same  to the  company of  which accused  was a Director), (9)  Meena Bornvankar (Additional S.P., Kolhapur) and (10) Police Inspector Katambale (Investigating Officer).      The prosecutrix,  a student  of 4th class, had gone for tuition at  8.15 A.M.  on September  24, 1986  to a  private teacher in the colony where she was living with her parents. After her  private tuition  which was from 8.15 a.m. to 9.15 a.m. she  was coming  back to her home and then go to school with other  children in  a  cycle  rickshaw  hired  for  the purpose. When  the prosecutrix  was going on the colony road at the intersection of this road and a bye-lane, which was a secluded spot, the accused caught-hold of her on the pretext that her assistance was required for pulling either the pipe or the wires in the Maruti car which was standing there. The girl was pushed inside the car. At that time she was wearing a midi-frock  and a  nicker. The  accused  pulled  down  her nicker and  laid her  on the seat in the car. She did try to resist by  saying that  she should be allowed to go and that she would  be late in reaching home. The accused then opened the zip  of his  pant and  started pressing his penis on her private part.  When the girl cried that she would be late in reaching  home,  the  accused  said  ‘wait’,  ‘one  second’. According to  her, thereafter the accused urinated. She felt wetness on her private part. After the girl was released she came home weeping. She embrached her father and narrated the whole incident  to him. The parents of the girl examined her private  part  and  the  garments  and  noticed  the  sticky substance (semen)  on some part of the midi-frock as well as on the  nicker. There  was redness  on her private part. The girl described  the person who committed such bashful act on her. Shrikant Deshpande, the father of the girl, took her on his scooter  and came  to the  spot where  the incident took place but  there was no body. They returned home. The mother of the  girl gave  her bath  and she  went to  her school as usual. Deshpande,  however, did not stop at that and he made more enquiries. He went to the sport again and there then he was told  by Vishakha  Kulkarni, a  college student, who was living in the vicinity that a Maruti Car of chocolate colour was  seen   there  which   bore  registration  No.  MGR-942. Deshpande went  to RTO  and came  to know  that the  car was registered in  name of  Parashuram Jadhav.  Thereafter he me Meena Bornvankar,  Additional S.P.  who at the relevant time

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was holding the charge of S.P. Kolhapur. She sent him to the police station  to lodge  of  formal  complaint.  Parashuram Jadhav was  traced. From  his interrogation,  it  transpired that the  Maruti car  had  been  sold  by  him  and  further investigation revealed  that at  the relevant time it was in the possession of the accused.      At about  7.30 P.M.  on the  same day Deshpande too her daughter to a family Dr. Mrs. Sahastrabuddha for examination as after  returning from  the  school  the  prosecutrix  was complaining  of   plain  in   her  private  part.  Dr.  Mrs. Sahastrabuddha had  been informed  in  the  morning  of  the incident of  rape. She  noticed inflammation of labium minus (labia-minora). It  appears, as  held by the Sessions Judge, that this  doctor did not fully examined the prosecutrix for when she  was apprised  that Deshpande  had lodged  a report with the  police she advised him to get the girl examined by the Civil  Surgeon as  it was a medico-legal case. Dr. Gunda was the  Medical Officer  at Civil Hospital, Kolhapur and he examined the  prosecutrix at  9 P.M.  on September  24, 1986 itself. This  he did  on the  basis  of  police  ‘yadi’.  On examination he found:      "i) Labia-minora  was inflammed and      reddened.      ii) External  urethral  meatus  was      reddened and swollen.      iii) Hymen was intact.      iv)  P.V.   examination   was   not      possible.  he  therefore  took  the      swab from introitus (opening of the      vigina) and  not  from  inside  the      vigina."      He, however, did not issue the medico-legal certificate on  the  same  day.  On  October  2,  1986,  he  issued  the certificate and  under the  head "Chief  complaints" he  had written :  "Complains of burning micturition since afternoon today". Then  on the followed day he certified that rape was committed with the following report:      "Conclusion - Committed rape..      This conclusion  I have drawn after      clinical examination of the girl."      Report about  the incident appeared in the newspaper of the town  on the following day, i.e., September 25, 1986 and there was  an immediate  outcry in  the public and ‘morchas’ taken out.      Dr. Hoshing  was the  Civil Surgeon,  Kolhapur, who, it would appear  under intense  public pressure, formed a panel of three  private doctors  to again examine the prosecutrix. The panel  examined her  on September  29, 1986.  This panel consisted of  Dr.  Naganonkar,  M.d.  in  Gynecologist,  Dr. Kudalkar and Mr. Malakar, both senior doctors and the result of their examination is as under:      "i) Labia-minora inflammed.      ii)   External    urethral   meatus      inflammed.      iii)  Fourchette  showed  abrasions      with   signs    of    inflammation.      iv) Infected  linear vertichi  teat      on right para-urethral region, and      v) Tear  of  hymen  at  3’  O’Clock      position."      The midi-frock  and the  nicker of the prosecutrix were taken into  possession in the course of investigation and so also the  underwear, T-shirt  and pant which the accused was wearing at  the time  he was  taken into  custody. The semen stain of  Blood Group  B were  found on  the nicker  of  the

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prosecutrix. The  semen stain  of blood  group B  were  also found at  the spot  where  the  penis  of  the  accused  was touching his underwear. The blood group of the accused is of Group B.      It may  be noticed that the Trial Court came heavily on the conducts  of Dr.  Gunda, the  Medical Officer in his not submitting the medical report at the earliest and also to an extent of  Dr. Houshing, the Civil Surgeon. It justified the medical examination  of the prosecutrix on 29.91986 by panel of private doctors.      The Trial Court also noticed the following observations in the commentary on Medical Jurisprudence:      "more redness  of the  labia minors      is not  indicative of recent sexual      activity and it may no more than an      indication of  a lack  of  personal      hygine, especially in young girls."      After examination  the  evidence  and  considering  the arguments advanced,  it came  to the  conclusion that it was the accused  who indulged  in sexual  intercourse  with  the prosecutrix and  that  there  was  penetration.  The  Court, therefore, held that the accused was guilty of an offence of having committed  rape on  the prosecutrix.  The Trial Court also found  that it  was proved that the accused indulged in immoral  behaviour  with  the  prosecutrix.  It,  therefore, convicted the accused and sentenced him as aforesaid.      The accused  appealed to  the High  Court. It  did  not agree with the trial Court that considering the statement of the prosecutrix,  examination of  the cloths she was wearing and the  medical evidence,  any offence  of rape  within the meaning of  Section 375  IPC was  committed. The  High Court noticed the  medical examination  of the  prosecutrix in the following words:      "The girl  was taken  to the family      doctor   Shashikala   Sahastrabudhe      (P.W.7)  by   her  father   in  the      evening at 7.30 p.m. who clinically      examined her  and found her private      part has  become  reddish.  In  the      night of  24th September,  1986  at      about 9  p.m., ‘X’  was examined by      Dr.  Gunda   (P.W.140   -   Medical      Officer,  Civil  Hospital.  He  has      also deposed  that the  case papers      are at  Ex. 56.  He  says  that  on      internal examination  of ‘X’,  both      labia-minora were  found  inflammed      (reddened)  and  external  ursthral      meatus was  reddened  and  swollen.      Hymen was intact."      The High  Court then  referred to  the cloths which the prosecutrix was  wearing at the time of the crime and it was found that  there  were  two  semen  stains  on  her  under- garments. The  High Court  also examined  the cloths  of the accused and  it found  that the  semen stains  found on  the under-garments of  the  prosecutrix  and  underwear  of  the accused were of the same blood group ‘B’ which was the blood group of  the accused.  One semen  stain on the underwear of the girl  was about  two centimeter  diameter near the waste band of  her under-garment.  From  the  examination  of  the evidence, the High Court also came to the conclusion that it was the  accused who  indulged in  the perpetration  of  the crime which  was committed  on September  24, 1986  at about 9.30 a.m.  was the  charge laid  by the  prosecution. On the question, if  it was  a rape or an offence under Section 354

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IPC outraging  the  modesty  of  a  woman,  the  High  Court referred to the statement of the prosecutrix and that of her father, Deshpande  who lodged  the FIR.  As to  what the FIR recorded, we  may refer to the following observations of the High Court:      "In the  FIR, Ex.26  filed  by  the      father, it  is mentioned  that  the      girl  informed   that  the  accused      slept her on seat and then he slept      on her  body and  began to struggle      with her.  The accused  then pulled      away her  under-pant and pulled the      chain of  his pant and took out his      male  organ   and  put  it  on  her      private part  and pressed  it.  Her      private part was then aching. After      some time to be passed his urine on      her private part and her rubbed his      organ to  her frock.  Then she took      her  under-pant  upwards  and  came      home  running.  However,  the  C.A.      report, Ex.82, shows that there was      no semen  found on  the frock.  The      evidence of  the girl,  her  father      and the  FIR show  that the legs of      the accused  were on  the road. The      nicker of  the girl was only pulled      and not removed. This is also clear      the from  the  C.A.  report  Ex.82,      that  her  nicker  was  having  two      stains  of  semen.  If  the  nicker      would have  been removed then there      would have  been no stains as it is      not the  case  of  the  prosecution      that it was used by the accused for      wiping his  organ.  Her  legs  were      neither separated  nor lifted.  The      evidence shows that be took out his      organ and  pressed it  against  her      body   and    within   seconds   he      discharged."      The High  Court then  noticed that the girl was given a bath and  she went to school and that she only complained of some pain  or  burning  sensation  and  that  if  there  was anything serious noticed by the parents on examination, they would not  have allowed her to go to school and rather taken her immediately  to doctor.  When the  parents examined  her private part,  they found  only reddishness. Her father took her to  the family  Doctor Mrs.  Sahastrabudde at about 7.30 p.m. on the same day and doctor only noticed some portion of her private  part had become red. No blood was noticed. Them the girl  was examined  by Dr.  Gunda at  about 9.00 p.m. on that very  day. After examining the report of Dr. Gunda, the High Court concluded that clearly ruled out the actual rape. The High  Court disapproved the constitution of the panel of doctors which  it held  was done  under  pressure  from  the public and  that Dr.  Houshing, civil  surgeon succumbed  to that pressure.  The High Court was critical of the statement of Dr.  Nagavkar who  was member  of the  panel. High  Court referred to  the fact that at the time of examination by the panel of  three doctors  neither Dr.  Sahastrabuddha nor Dr. Gunda was  called. Dr. Nagavkar stated that some respectable citizens of  Kohlapur had  approached him  with a request to come for  examination of the girl. No reason was recorded as to why  it was  necessary to re-examine the girl. High Court

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noticed that  Dr. Nagavkar  was evasive  when he  was  asked whether he  could say that the injuries noticed by the panel were present  on September  24, 1986.  He however,  admitted that if  tear was  beyond the superficial layer, then it was bound to  bleed. As there was no bleeding it was an abrasion involving superficial  layer. He admitted that such abrasion was possible  due to scratching. He also agreed that rupture of hymen   was almost invariably accompanied by bleeding and that bleeding was brisk, immediate and visible. Dr. Nagavkar also  agreed   with  the  proposition  that  cloths  put  on immediately would  have blood  stains. High  Court commented that Dr.  Nagavkar was  "required to make various acrobatics just to  support the  opinion and that while so he virtually admitted that  there was not rape." The High Court held that there was  no rupture  of hymen and the girl was virgin. The accused was  also examined  and there  was no  injury to his private part. It noticed the statement of Dr. Nagavkar where he agreed  with the  opinion in Medical Jurisprudence quoted above and  further that "exercisation of this type is common in young  children  as  a  result  of  poor  local  hygiene, scratching due to worm infection". For all these reasons the High Court  rejected the  conclusion arrived at by the panel of doctors.  As to  the conduct  of Dr.  Gunda which we have noticed above,  the High  Court was  of the  opinion that is seemed that  he was  required to  bow before public pressure and the  internal official pressure. it, therefore, rejected the opinion  given by  him on 3.10.1986 which certified that the rape  was committed.  The High  Court said  that a great disservice had  been done  to the  little  girl  because  of public agitation  and which tended to make the future of the girl bleak.  The Court,  therefore, held  that there  was no rape as  contemplated by  Section 375  committed or  proved. Then the  High Court  concluded that  in  its  opinion,  the evidence on record would, at the most, show that the accused attempted to  commit rape.  But then added that "however, as the evidence  shows  that  her  nicker  was  not  completely removed, her  legs were  not separated or lifted and the act was sought to be done standing on the road, we hold that the act of  the accused would fall within Section 354 of IPC and that he used criminal force as covered by Section 350 of IPC knowing full well that it would cause injury to the girl. He knew that  it would thereby outrage the modesty of the girl. He pulled  down her  nicker and  opened his  pant  and  laid himself on  her and  discharged.  The  girl  suffered  pain. Therefore, we find that the accused guilty under Section 354 of IPC."  On the  question if an offence under Section 57 of the Bombay  Children was committed, the High Court held that similarly as  in the  case of  the offence under Section 354 IPC, the  offence of  the  accused  would  also  fall  under Section 57  of that Act. The Court, therefore, held that the accused acted  indecently and  was thus guilty under Section 57 of the Bombay Children Act, 1948.      Both the sessions court and the High Court accepted the prosecution evidence  as to how and who committed the crime. They, however, differ on the approach as to what offence was committed. While the trial court holds the accused guilty of an offence  under Section  376 IPC, the High Court holds him guilty under Section 354 IPC. Both the courts did not attach any importance to the discrepancies in the statements of the witnesses which  were insignificant  and did  not damage  or impair  the   case  of  the  prosecution.  The  courts  have considered all  the relevant  circumstances to  come to  the conclusion that  crime was  committed and it was the accused who did so. The High Court, however, does say that there was attempt to  commit rape  which would  be an  offence falling

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under Section  376 read  with Section  511 IPC.  But by some curious reasoning,  the High  Court  proceeds  to  hold  the accused guilty  for an  offence under  Section 354  IPC.  We think that  the High  Court is  right in  its approach  that from  the   medical  evidence   and  the  statement  of  the prosecutrix and  attendant circumstances,  it cannot be said that there  was penetration  and there  was,  therefore,  no sexual intercourse  though the  ingredients  of  attempt  to commit offence  of rape  are there.  The High  Court had set aside the  order of  the  sessions  court  confiscating  the Maruti Car  in which  the offence  of attempt  to  rape  was committed as  the car  was owned  by a  company of which the accused was  a Director.  Since there  is no  appeal against this part  of the  order, we  need not go into the scope and intent of  Section 452  Cr.P.C. if  the  court  could  order confiscation of  the car,  it  having  been  "used  for  the commission" of  the offence  of rape particularly if the car had been owned by the accused.      The circumstances  show that  the accused  intended  to commit rape on the girl. In the commission of that crime, he laid the  girl on  the seat  in the Maruti Car and then laid himself over  her. He pulled down her nicker and also opened the zip  of his pant and took out his male organ. He pressed his male organ on the private part of the girl. But since he discharged,  he  could  not  penetrate  and  was  unable  to complete the  offence of  rape. However, it is clear that he did attempt to commit rape.      In Bharwada  Bhoginbhai Hirjibhai  vs. State of Gujarat [1983 Cr.L.J.  1096] the  accused had been convicted for the offence under  Section 376 read with Section 511 IPC and was sentenced to  two and a half years rigorous imprisonment. He was accused of having committed the offence against girls of 10 to  12 years  of age.  The Supreme  Court said  that  the accused had behaved in a shockingly and indecent manner. The magnitude of  his offence  cannot  be  over-emphasised.  The Supreme Court  further noticed  that the  incident  occurred some seven  years back and the appellant had lost its job in view of  the conviction  recorded by  the  High  Court.  The accused was  also having  a daughter  of the same age at the time he committed the crime. This Court was of the view that the accused  must have  suffered great  humiliation  in  the society. The  prospects of  getting a  suitable match of his own daughter  had perhaps  been marred in view of the stigma in the  wake of the finding of quilt recorded against him in the context  of such  an offence.  Taking into  account  the cumulative effect  of these  circumstances, and overall view of the matter, the Court said that the ends of justice would be satisfied if the substantive sentence imposed by the High Court for  the offence  under Section  376 read with Section 511 IPC  was reduced from one of two and a half years to one of 15 months’ rigorous imprisonment.      In  1983,  law  was  amended  prescribing  more  severe punishments for  the perpetrators  of the crimes of rape and other sexual offences.      The Law  Commission of  India in  his  42nd  report  on Indian  Penal   Code  submitted   in  June   1971  suggested amendments to  Sections  375  and  376  IPC,  expanding  the definition of rape and providing for more severe punishment. The Commission also suggested incorporation of other offence relating to  sexual offences  in the IPC. In its 69th report on the  Indian Evidence  Act, 1872,  the law  Commission had also recommended  reform in  the law.  Nothing, however, was done and law not amended. Then the subsequent Law Commission in its  84th report suggested changes in the law on rape and allied offences  and amendments to the laws of procedure and

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evidence. The  Commission submitted its report in April 1980 to the  Central Government.  After that the IPC, Cr.P.C. and Evidence Act  were amended  by the Criminal Laws (Amendment) Act, 1983.  In the  statements of  objects and reasons while presenting the  Bill, it  was mentioned that recommendations of the Law Commission had been examined in consultation with the  State   Governments  and   suggestion  on  the  subject received. It  was mentioned that the changes proposed in the Bill had  been formulated  principally on  the basis  of the following considerations:      "(1) the  law should  be made  more      stringent   without    jeopardising      considerations of fair trial;      (2) the  definition of  rape should      be  amended   to   remove   certain      loopholes and  inadequacies and  to      ensure  that   consent  should   be      vitiated  unless  it  is  real  and      given out of free choice;      (3) minimum  punishments  for  rape      should be prescribed;      (4)  the   prosecutrix  should   be      protected   from   the   glare   of      embarrassing publicity  during  the      investigatory  as   well  as  trial      stage and  any information  leading      to  identification  of  the  victim      should not be disclosed;      (5) In the case of rape by a police      officer or by a group of persons or      by a   person  having  a  custodial      control by  virtue of  his  special      position by  virtue of  his special      position over  the victim,  once it      is proved  that sexual  intercourse      has taken place, the onus should be      on the  accused to  prove that  the      sexual  intercourse  was  with  the      consent of the woman."      it will  be useful  to quote the following passage from the 84th Report of the Law Commission:      "it is  often stated  that a  woman      who is raped undergoes two crises -      the rape  and the subsequent trial.      While the  first  seriously  wounds      her dignity,  curbs her individual,      destroys her  sense of security and      may often  ruin her physically, the      second  is   no  less   potent   of      mischief, inasmuch  as it  not only      force her  to re-live  through  the      traumatic experience, but also does      so in  the glare  of publicity in a      totally alien  atmosphere, with the      whole apparatus  and  paraphernalia      of  the   criminal  justice  system      focused upon her.      In  particular,   it  is  now  well      established that  sexual activities      with young  girls of  immature  age      have a traumatic effect which often      persists  through   life,   leading      subsequently to  disorders,  unless      there are counter-balancing factors      in  family   life  and   in  social

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    attitudes  which  could  act  as  a      cushion  against   such   traumatic      effects.      Rape is  the ‘ultimate violation of      the  self’.  It  is  a  humiliating      event in a woman’s life which reads      to fear  for existence  and a sense      of powerlessness.  The victim needs      empathy and  safety and  a sense of      re-assurance.  In  the  absence  of      public sensitivity  to these needs,      the experience  of  figuring  in  a      report of  the offence  may  itself      become another assault.      Forcible  rape   is  unique   among      crimes, in  the manner in which its      victims  are   dealt  with  by  the      criminal  justice   system.   Raped      women  have   to  undergo   certain      tribulations.  These   begin   with      their treatment  by the  police and      continue through  a  male-dominated      criminal justice  system. Acquittal      of many  of  facto  guilty  rapists      adds to the sense of injustice.      In effect,  the focus  of  the  law      upon  corroboration,   consent  and      character of  the prosecutrix and a      standard of  proof of  guilt  going      beyond   reasonable    doubt   have      resulted    in     an    increasing      alienation of  the  general  public      from the legal system, who find the      law and legal language difficult to      understand and  who think  that the      courts are  not run  so well as one      would expect."      We may  now refer  to a  few cases  on Section  376 IPC decided by this Court after the Amending Act of 1983.      In State  of Himachal Pradesh vs. Raghubir Singh (1993) 2 SCC  622 (judgment  delivered on  February 18,  1993)  the Supreme Court  set aside  the acquittal of the respondent by the High  Court holding  him  guilty  of  an  offence  under Section  376   IPC  for   having  committed   rape  on   the prosecutrix. Then  the  Court  considered  the  question  of awarding of  proper sentence.  It noted  that the occurrence took place  on August,  2, 1982,  more than a decade ago and that the Sessions Judge after recording the conviction under Section 376  IPC had  sentenced the  respondent to suffer RI for  five   years.  The   State  had   not  moved  the  High Court for  any  enhancement  of  the  sentence.  The  Court, therefore, felt that the ends of justice would be met if the sentence to  be imposed  on the  respondent was  confined to five years  RI as  was awarded  by the  Sessions Judge.  The Court also then observed as under:      "We ma  emphasise that  though  for      such  an   offence  a  more  severe      sentence would  have been desirable      but we have restricted ourselves to      the maintenance  of the sentence as      imposed  by  the  learned  Sessions      Judge  for   the  reason  that  the      States did not seek any enhancement      of  the   sentence  by   filing  an      appropriate petition  in  the  High

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    Court or in this Court and for over      a period  of seven years, while the      case has  remained pending here, no      notice  had   been  issued  to  the      acquitted respondent  to show cause      as to  why  in  the  event  of  his      acquittal being  set aside,  a more      deterrent sentence,  than  the  one      imposed by  the Sessions  Judge, be      not imposed  upon him  and  without      putting him  on such  a notice, the      Court cannot  enhance the sentence.      If the notice were to issue now, it      would further delay the disposal of      the case  and we  do  not  consider      that to  be a  proper course  to be      adopted. The more stringent minimum      sentence prescribed  for an offence      under  Section  376  IPC  was  also      incorporated  in  the  Code  by  an      amendment  only  with  effect  from      December 1983  after the offence in      the   present    case   had    been      committed."      In State of Punjab vs. Gurmit Singh and others (1996) 2 SCC 384  which  was  an  appeal  under  Section  14  of  the Terrorist Affected  Areas (Special Courts) Act, 1984 against the  judgment   of  the  Additional  Judge,  Special  Court, Ludhiana dated  June 1,  1985 acquitting  the respondents of the charges  of abduction  and rape, the Court set aside the acquittal and  convicted the  respondents for  offence under Section 363/366/368 and 376 IPC. On the question of sentence the Court observed as under:      "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      years of  age at  the time when the      offence  was   committed.  We   are      informed that  the respondents have      not  have  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 by now got      married and  settled down  in life.      There are some of the factors which      we need  to take into consideration      while   imposing   an   appropriate      sentence  on  the  respondents.  We      accordingly      sentence       the      respondents for  the offence  under      Section 376  IPC  to  undergo  five      years’ RI each and to pay a fine of      Rs.5000  each  and  in  default  of      payment of  fine  to  1  year’s  RI      each. For the offence under Section      363 IPC we sentence them to undergo      three years’  RI each but impose no      separate sentence  for the  offence

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    under  Sections  366/368  IPC.  The      substantive      sentences       of      imprisonment  shall,  however,  run      concurrently."      The following  observations in  the judgment would also be relevant:      "Of late,  crime against  women  in      general and  rape in  particular is      on the  increase. It  is  an  irony      that  while   we  are   celebrating      women’s rights  in all  spheres, we      show little  or no  concern for her      honour. it  is a  sad reflection on      the attitude of indifference of the      society towards  the  violation  of      human dignity of the victims of sex      crimes. We  must  remember  that  a      rapist  not   only   violates   the      victim’s   privacy   and   personal      integrity,  but  inevitably  causes      serious psychological  as  well  as      physical harm  in the process. Rape      is not  merely a  physical harm  in      the process.  Rape is  not merely a      physical  assault  -  it  is  often      destructive    of     the     whole      personality  of   the   victim.   A      murderer destroys the physical body      of his  victim, a  rapist  degrades      the  very   soul  of  the  helpless      female.  The   courts,   therefore,      shoulder  a   great  responsibility      while trying  an accused on charges      of rape.  They must  deal with such      cases with  utmost sensitivity. The      courts should  examine then broader      probabilities of a case and not get      swayed by  minor contradictions  or      insignificant discrepancies  in the      statement of the prosecutrix, which      are not of a fatal nature, to throw      out    an     otherwise    reliable      prosecution case.  If  evidence  of      the      prosecutrix       inspires      confidence, it  must be relied upon      without  seeking  corroboration  of      her    statement     in    material      particulars. If for some reason the      court finds  it difficult  to place      implicit reliance on her testimony,      it may  look for evidence which may      lend assurance  to  her  testimony,      short of  corroboration required in      the  case  of  an  accomplice.  The      testimony  of  an  accomplice.  The      testimony of  the prosecutrix  must      be appreciated in the background of      the entire case and the trial court      must be alive to its responsibility      and be sensitive while dealing with      cases       involving        sexual      molestations."      In State  of Maharashtra  vs. Prakash  and another  AIR 1992 SC 1275 the Court ***** aside the acquittal by the High Court of  the respondents for offence under Section 376 read

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with Section  34 IPC  as well as under Section 342 read with Section  34,  IPC.  The  Extra  Additional  Sessions  Judge, Amravati  had,   however,  convicted   the  respondents  and sentenced them  to rigorous  imprisonment for three years on the first  count and  for two  months on  the second  count. After having  set aside the acquittal of the respondents the Court on the question of sentence said as under:      "We are  aware that the offence had      taken place  in the  year 1978  and      that they  were  acquitted  by  the      High Court  as far  back as August,      1981  and   we  are  reversing  the      acquittal after  a  lapse  of  more      than 10  years but having regard to      the nature  of the  offence and the      circumstances  in   which  it   was      perpetrated, we  are of the opinion      that  the  respondents  deserve  no      mercy. They should suffer for their      deed."      In State  of U.P.  vs. Babul  Nath (1994)  6 SCC 29 the Session Judge  convicted the  respondent for  offence  under Section 376  IPC for  having committed  rape on a minor girl aged about  5 years and sentenced him to suffer imprisonment for five years. On appeal by the respondent, the High Court, however, acquitted him of the charge of rape. This Court set aside the acquittal and help respondent guilty of an offence punishable under  Section 376  IPC and restored the sentence imposed by  the Sessions  Judge. It  may be  noted that  the offence was  committed in  March 1977  and  the  appeal  was decided by this Court in August 1994.      In Madan  Gopal Kakkad  vs.  Naval  Dubey  and  another (1992) 3  SCC 204)  the trial court acquitted the respondent for an  offence under  Section 376  IPC for having committed rape on  girl child  of 8  years of  age. Aggrieved  by  the judgment of the trial court the State filed an appeal before the High Court challenging the order of acquittal. Father of the child  also filed  a criminal revision in the High Court questioning the  legality of  the  order  of  acquittal.  It appears one  Jay Rao of New York (U.S.A) wrote the report of this incident  in a German Magazine called "Der Spiegel" and after  visiting   Jabalpur  sent  a  petition  of  grievance addressed to  the Chief  Justice of India with a copy to the Chief Justice  of Madhya  Pradesh.  On  the  basis  of  this petition another  criminal revision was also registered. The High Court disposed of the appeal and two criminal revisions by a  common judgment,  whereby it allowed the State appeal, held respondent  guilty of  an offence under Section 354 IPC and sentenced  him to pay a fine of Rs.3000/- and in default to suffer simple imprisonment for six months. The High Court also directed  that a  sum of  Rs.2,000/- out  of  the  fine amount if  realised be paid over a compensation to father of the child  who was  petitioner in  the criminal revision. No separate orders  were passed  in the two criminal revisions. The State  did not  prefer any  further appeal  before  this Court. However,  the father  of the victim girl, who was the complainant and  also petitioner  in the  criminal  revision before the  High Court, filed criminal appeal in this Court. He felt  aggrieved by  the judgment of the High Court on the ground  that  the  High  Court  had  erred  in  finding  the respondent guilty  of a  minor offence under Section 354 IPC when all  the necessary ingredients to constitute an offence punishable under  Section 376  IPC had  been  satisfactorily established and that the sentence of mere fine under Section 354 IPC  for such  a serious  offence was grossly inadequate

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and was  not commensurate  with the  gravity of  the offence committed by  the respondent. This Court after examining the whole evidence  and law  on the  subject held the respondent guilty of  an offence  under Section  376 and  set aside his conviction under  Section 354  IPC. The Court then addressed itself to  the quantum  of punishment  which would  meet the ends of  justice in the facts and circumstances of the case. The offence in this case was committed in September 1982 and the judgment  was delivered in April 1992 by this Court. The Court having  regard to  the seriousness  and gravity of the repugnant crime  of rape  perpetrated on  a girl  child of B years  of   age  sentenced   the  respondent   to   rigorous imprisonment for  a period  of seven years and to pay a fine of  Rs.25,000/-   and  in   default   to   suffer   rigorous imprisonment for  1-1/2 years.  It was further directed that the amount  of fine of Rs.25,000/- if realised shall be paid to the victim girl who was now a major.      In our  opinion, therefore, the High Court after having come to  the conclusion  that the  accused was  guilty of an offence under  Section 376/511  of the  IPC could  not  have convicted the  accused for an offence under Section 354 IPC. Section 511 IPC provides punishment for attempting to commit offence punishable  with  imprisonment  for  life  or  other imprisonment. In this case since the girl was under 12 years of age  and the  Sessions Judge having found that offence of rape had been committed could not have awarded sentence of 7 years when  the law  prescribes minimum sentence of rigorous imprisonment for  a term  not less  than  10  years,  unless exceptional circumstances existed. However, we find that the State or  the complainant  did not  come up in appeal in the High Court for enhancement of the sentence. Though there was no charge under Section 376 read with Section 511 IPC, under Section 222  of the Code of Criminal Procedure when a person is charged  for an offence he may be convicted of an attempt to  commit   such  offence   although  the  attempt  is  not separately charged.      Having  come   to  the   conclusion  that  the  accused committed an offence under Section 376/511 IPC, the question arises as  to what  sentence should  be imposed upon him. It was submitted  before us  that the time when the offence was committed the accused had also a daughter of 8 years of age. If that  be so  perversion of  mind of  the accused does not appear to  have any limit. It was submitted that a long time had elapsed  since the  offence was  committed and  that  in terms  of  the  judgment  of  the  High  Court  the  accused deposited Rs.40,000/-  out of  which Rs.25,000/- had already been withdrawn  by the  father of  the prosecutrix.  It  was submitted that  if the Court came to the conclusion that the sentence had  to be  enhanced then  amount of  fine could be raised. We,  however, do  not think  so. A heinous crime has been  committed   and  the   accused  must  suffer  for  his consequences. A rapist not only violates the victim personal integrity but leaves indelible marks on the very soul of the helpless female.  The girl of 8 years must have undergone an traumatic experience. The question of imposition of sentence after lapse  of 11  years of the offence troubled our mind a great deal.  Keeping the  objects of the amendment of IPC in view and  the law  as it exists today, the decisions of this Court referred  to above  on the  question of  sentence, the message is  loud and  clear that  no person  who commits  or attempts to commit rape shall escape punishment.      We agree with the High Court that a great harm had been caused to  the girl  by unnecessary publicity and taking our morcha by  the public.  Even the  case had to be transferred from Kohlapur  to Satara  under the  orders of  this  Court.

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There is  procedure established by law governing the conduct of trial  of a  person accused  of an  offence. A  trial  by press,  electronic   media  or   public  agitation  is  very antithesis of  rule of  law. It can well lead to miscarriage of justice.  A judge  has to  guard himself against any such pressure and he is to be guided strictly by rules of law. If the finds  the person  guilty of  an offence  he is  then to address himself to the question of sentence to be awarded to him in accordance with the provisions of law. While imposing sentence of  fine and directing payment of whole or  certain portion of it to the person aggrieved, the court has also to go into the question of damage caused to the victim and even to her  family. As  a matter  of fact  the crime is not only against the  victim it is against the whole society as well. Since late,  there has  been spurt  in  crimes  relating  to sexual offences.      Considering the  whole aspect  of the matter, we are of the  opinion   that  sentence   of   five   years   rigorous imprisonment and  fine of  Rs.40,000/- will meet the ends of justice. The  fine  has  already  been  paid,  out  of  that Rs.25,000/- has  been withdrawn by the father of the girl as per direction  of  the  High  Court  which  we  uphold.  We, therefore,  allow  the  appeal  of  the  State  convert  the conviction of  the accused-respondent from under Section 354 IPC to  that under  Section 376/511  IPC and sentence him as aforesaid. Since  fine has already been paid, no sentence of imprisonment in lieu of payment thereof need be imposed. The conviction and  sentence of  the accused under Section 57 of the Bombay  Children Act as ordered by the High Court shall, however, stand.  The sentences  shall run  concurrently.  In this view  of the  matter, appeal  filed by  the accused  is dismissed. The  accused will be taken into custody and would undergo the remaining portion of his sentence.