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Judgment
The present appeal has been filed against the judgment and order dated 9.4.2012 passed by Additional Sessions Judge, Chandigarh vide which the accused-appellant alongwith other accused were convicted under Section 376(2)(c) of the Indian Penal Code and sentenced to undergo rigorous imprisonment of ten years and to pay fine of Rs.2,000/-. In default of payment of fine, the accused was further sentenced to undergo rigorous imprisonment for 15 days.
In brief the case of the prosecution as mentioned in para Nos. 2 to 14 of the impugned judgment passed by learned trial Court is as under:-
"2..... On 18.05.2009, a telephonic message was received at Police Station Sector 26 that the prosecutrix had been admitted in Govt. Medical College and Hospital, Sector 32, Chandigarh in connection with rape on her. On receiving the this information, after recording D.D.R., S.I. Uday Pal Singh alongwith other police officials reached there. There prosecutrix, a mentally retarded girl, care of Ashreya Home for mentally retarded fellows Sector 47, Chandigarh alongwith Miss Pragti Pandey Medical and Social Worker of Ashreya Home met him and that social worker got recorded her statement, which is read as follows:-
"That she is working as Medical & Social Worker in Ashreya Home for mentally challenged in Sector 47, Chandigarh. At Ashreya, mentally retarded inmates are admitted and she used to look after them. On 13.03.2009, a mentally retarded girl (prosecutrix) from Nari Niketan, Sector 26, Chandiarh was admitted in Ashreya. In May 2006, she started vomiting. On 16.05.2009, her pregnancy test was conducted by staff nurse posted in the aforesaid institute, which was found positive. Then she informed this fact to their convener Miss Vani Rattnam. She asked about it from prosecutrix and she told that there was one person, in the name of Bhupinder in Nari Niketan, who had committed wrong act with her for 6-7 times. She also told her that she was being taken to Bhupinder by a lady named either Kamla or Kamlesh.".
On the basis of this statement Ex.P-1, after making endorsement Ex.P-241, ruqa was sent through constable Sanjay for registration of the case, on the basis of which FIR (Ex.P-242) was recorded vide endorsement Ex.P-243.
Thereafter, S.I. Uday Pal moved application for getting conducted the medico legal examination of prosecutrix.
After medico legal examination, the prosecutrix was found to be pregnant of 8-10 weeks. On the same day, accused Bhupinder was arrested vide memo Ex.P-244. He was identified by victim vide identification memo Ex.P-2. Accused was also got medically examined. His blood sample was also obtained.
Further during investigation on 20.5.2009, the Investigating Officer collected relevant documents from Nari Niketan, Sector 26, Chandigarh as well as from Ashreya, Sector 47, Chandigarh. Statements of witnesses were recorded.
On 21.5.2009, one white colour bed sheet from the store room of shelter home, which is situated in the building of Nari Niketan itself containing the stains of semen was taken into possession. That was sent to CFSL for chemical examination.
Further during investigations, the rosters of security guards and other relevant documents of both these institutes were taken into possession.
Further as per prosecution with the help of Rekha, who was inmate of prosecutrix as well as also with the help of Dr. Paramleen Kaur, MD Psychiatrist GMCH, Sector 32, Chandigarh, the Prosecutrix was interrogated. Then she disclosed that besides Bhupinder, there was another person having bald head and used to have spectacles also used to commit wrong act with her. The lady in the name of Kamla used to take her; whereas another lady namely Maya used to stand outside the door when the bad act was done with her. The prosecutrix was shown photographs of the suspects and then at that time, she identified two persons Jamna Kumar bald head having spectacles and the other photograph was of Bhupinder. She also disclosed that Ms. Kamla and Ms. Maya assisted them.
Further as per prosecution, during investigation, the prosecutrix even showed bath rooms, where the said act was committed with her. Then the site plans of those places were got prepared.
Further during investigations, Special Investigation Team was constituted and investigation was handed over to DSP Kulwant Singh, who at that time was posted as such in Women and Child Supports Unit, Sector 17, Chandigarh. He arrested accused Kamla on 11.6.2009 vide memo ExP105. Accused Jamna Kumar was arrested on 12.6.2009 vide memo Ex.P-245. Accused Maya was arrested on 19.6.2009 vide memo Ex.P-108. After the arrest of the accused, they were got medically examined as well as their blood samples were taken.
Further as per prosecution the blood samples of all employees working in Nari Niketan as well as at Ashreya were taken and those were sent to CFSL for analysis purposes, as the police was having suspicion no all of them . He also took into possession one torn register, which accused Maya used to maintain regarding the menstrual period of girls of Nari Niketan. Further during investigations, he got prepared the scaled site plans of those bath rooms, where the said act was committed and also took into possession the relevant record regarding the postings of the employees in these institutes. The spot was photographed as well as videographed.
As in the said case initially the challan was presented only against accused Bhupinder Singh, Kamla, Jamna Kumar and Maya.
As per prosecution, as the prosecutrix is mentally retarded girl, so from time to time, she was interrogated. In the statement, which was recorded on 25.5.2009 she named accused Bhpinder Singh, Kamla, Jamna Kumar and Maya. Then when her statement on 15.5.2009 was recorded and she was shown the photographs of the suspects, she identified Bijender accused and stated that he was the person, who also used to do wrong act with her in the bath room of shelter home. Then in her statement recorded on 24.12.2009, she stated that Chhotu Ram, who was Security Guard at Ashreya also used to do bad act with her in the bath room of madam and she identified his photograph which was shown to her on laptop. Then in her supplementary statements recorded on 25.12.2009, 26.12.2009 and 27.12.2009, she identified accused Davinder Singh, Bhagwandeen as well as Naresh Kumar when photographs were shown to her on laptop.She stated that these persons also committed wrong act with her when she was at Ashreya. Davinder Singh and Bhagwandeen were employees of Ashreya; whereas accused Naresh was employee of Government Institute of Mentally Retarded Children, Sector 32, Chandigarh, as he used to come to deliver food at Ashreya.
Further as per prosecution, the prosecutrix gave birth to a female child on 3.12.2009 and then the blood sample of newly born child to her as well as her own blood sample were sent for DNA report as the blood samples of all the suspects were already taken by the prosecution during investigation and were sent to CFSL for analysis purposes. The DNA report to this effect has been received that accused Chhotu Ram is the biological father of the child of prosecutrix. .....
Appellant -Chhotu Ram alongwith other co-accused were charge sheeted for the offences punishable under Sections 120B, 376(2)(g) and 201 IPC, to which they pleaded not guilty and claimed trial.
To support its version, the prosecution examined the following witnesses:-
PW-1, Pargati Pandey
Complainant
PW-2 Dr.Paramleen Kaur, Assistant Professor GMCH, Sector 32, Chandigarh
A member of the committee constituted to assess the mental status of the victim
PW-3, prosecutrix
PW4- Vani Ratnan,
Convener, Ashreya, Sector 47, Chandigarh
PW-5 Dr.Poonam Goel, PW-6 Dr.Bharti Goel GMCH, Sector 32, Chandigarh
Members of the medical board, who conducted medico-legally examination the prosecutrix
PW-7, Meenakshi
Staff Nurse of Ashreya
PW-8 Lady Constable Usha Rani
Posted as Guard duty in Nari Niketan, Sector 26, Chandigarh
PW-9 Gian Chand
Research Officer, posted in Social Welfare Department, Chandigarh, who proved the appointment letter of Kamla, Maya, Kamlesh, Jamna Kumar Rana and Bhupinder Singh
PW-10 Dr.Ravinder Kaur, GMCH, Sector 32, Chandigarh
Member of the Board constituted for medico-legal examination of the prosecutrix
PW-11 HC Mohinder Singh, Photographer
He proved the photographs Ex.P30 to Ex.P-35; Ex.P42 to Ex.P52 and negatives Ex.P53 to Ex.P63.
PW-12, Dr.Vipan Kaushal, MS, GMCH, Sector 32, Chandigarh
He handed over the record Ex.P65 to Ex.P97 to the investigation team.
PW-13 Surekha Sharma, Senior Assistant, Establishment, GMCH, Sector 32, Chandigarh
She proved the appointment letter Exs.P98 appointment letter of Pragati Paney and her resignation Ex.P99.
PW-14, SI Rohit Kumar PW-15 SI Kulbir Kaur
Members of the Investigation team
PW-16, Dr.Rajneesh sood, Medical Officer, GMSH, Sector 16, Chandigarh
He proved the blood samples authentication forms of the accused appellants.
PW-17 Rajivn Girhotri, Junior Scientific Officer, CFSL, Sector 36, Chandigarh
He proved the DNA analysis report Ex.P133, according to which Chhotu Ram is the biological father of the female child of the prosecutrix.
PW-18 Dr.Deepak Bakshi
He conducted the medico-legal examination of accused Jamna Kumar Rana and proved his MLR Ex.P186
PW-19, Dr.Parijat
He examined accused Bhagwandin Yadav and proved his MLR Ex.P187.
PW-20 Dr.Monika Shingari
She proved the blood authentication forms Exs.P 120, P122 and P127
PW-21, Dr.Deepak Sharma
He conducted medico-legal examination of accused Bijender, Naresh Pal and Devender and proved their MLRs Exs.P188, P 190 and P191 and Ex.P189 opinion whereby he deposed that there was nothing to suggest that they were incapable to perform sexual intercourse
PW-22 HC Yashpal, Draftsman
He prepared the scale site plans of Nari Niketan, Sector 26, Chandigarh and Ashreya and Institute of Mentally Retarded Children Sector 32, chandigarh.
PW-23, Constable Satnam Chand,
He conducted videography of the places of occurrence and proved Ex.P199 and P200.
PW-24 Constable Jagroop, Photographer
He proved the photographs and negatives of Ashreya Ex.P201 to P230
PW-25, Constable Raj Pal, Photographer
He proved the photographs of Govt. Institute for Mentally Retarded Children, Sector 32, Chandigarh and negatives Ex.P231 to P-240.
PW-26, Inspector Udey Pal Singh
He partly investigated the case.
PW-27, ASI Sadhu Singh, Women Cell, Sector 17, Chandigarh
He proved Exs.P 248 and P249
PW-28, MHC Mahe Singh
He proved Ex.P250 and P251
PW-29, Bindu Rattan, Wareden Ashreya Home
She handed over the staff record of Ashreya to DSP Kulwant Singh and proved Ex.P252 to Ex.P290.
PW-30, Ritika Rathi
She was the superintendent of Nari Niketan, Sector 26, Chandigarh at the relevant time. She handed over the duty record of the staff to the Investigation team.
PW-31 DSP Kulwant Singh
Investigating Officer
PW-32 Dr.Neena Chaudhary
She medico-legally examined accused Chhotu Ram and proved his MLR Ex.P367
PW-33 Dr.Bipan Kumar Kaushal, Medical Superintendent, GMCH, Sector 32, Chandigarh
He proved the applications forms, bio data and appointment letters and attendance of the accused i.e.Ex.P368 to Ex.P410.
The statement of appellant- accused was recorded under Section 313 Cr.P.C, in which all the incriminating circumstances appearing in the prosecution evidence were put to him, which he denied and pleaded false implication. In defence the accused examined DW1 Deep Rana, Superintendent, Nari Niketan, Sector 26, Chandigarh, DW2 Sister Brenden, Superior of Missionaries of Charity, Sector 23, Chandigarh, DW3 Jaspal Sharma (wrongly mentioned as DW2) from the office of Regional Institute of Mentally Handicapped Children, Sector 32, Chandigarh and DW4 Dr.Devender Kaur, Attendant, Ashreya, Sector 47, Chandigarh and their defence evidence.
After appraisal of the evidence, the trial Court vide impugned judgment and order dated 9.4.2012, convicted and sentenced the accused-appellant as narrated above. Co-accused Bhupinder Singh and others (non-appellants) were also convicted and sentenced vide judgment and order of even date.
Aggrieved against the judgment and order dated 9.4.2012, passed by the trial Court, the accused had filed the instant appeal. Accused Bhupinder Singh and others have also preferred separate appeals, which have been dismissed by this Court vide judgment dated 30.8.2017.
On 30.8.2017 Mr.HS Jaswal, Advocate for appellant had made a request for withdrawal of the present appeal. However, the prayer made was disallowed.
Even though learned counsel for the appellant has not pressed his appeal on merits, however, to satisfy the conscience of the Court, the entire evidence on record has been re-scanned.
The respective roles of co-accused Bhupinder Singh, Kamla, Maya, Naresh Kumar, Devinder Singh, Jamna Kumar Rana, Bijender Singh and Bhagwan Deen Yadav have already been discussed in a common judgment dated 30.8.2017 passed by this Court in CRA-S-1402-SB-2012, and the respective appeals filed by them have already been dismissed.
Accused-appellant Chhotu Ram was posted as security guard in Ashreya, Sector 47, Chandigarh, where the prosecutrix was shifted from Nari Niketan. In her examination-in-chief, the prosecutrix has deposed that at Ashreya, accused Chhotu Ram and other co-accused committed sexual intercourse with her. She also deposed that accused Chhotu Ram was posted at the gate of Ashreya and he committed sexual intercourse with her in the bathroom of Madam".
Rajiv Girhotri PW17, Junior Scientific Officer at Central Forensic Science Laboratory, Sector 36, Chandigarh also testified vide report Ex.P-133, that accused Chhotu Ram was the biological father of the child born to the prosecutrix as a consequence of having been repeatedly raped by him. Dr.Neena Chaudhary PW32, proved the medico legal report of accused Chhotu Ram, establishing that he was the biological father of the prosecutrix and stated that there was nothing to suggest that he was incapable to perform sexual intercourse.
In view of the positive and forthright statement of the prosecutrix and the corroborative evidence, the learned trial Court has rightly convicted the accused including appellant Chhotu Ram. However, this Court is of the considered opinion that accused Chhotu Ram, who has been medically proved to be the biological father of the child delivered by the prosecutrix, ought to have been awarded a stiffer and exemplary sentence, since while a murderer destroys the physical frame of the victim, a rapist degrades the defiles the soul of a helpless female.
Hon'ble the Supreme Court in Gandi Doddabasappa @ Gandhi Basavaraj vs. State of Karnataka 2017(2) RCR (Crl.) 200 and Sahab Singh vs. State of Haryana AIR 1990 Supreme Court 1188. In the circumstances, this Court had passed the following order on 30.8.2017:-
"The present appeal is directed against the judgment of conviction / order of sentence dated 9.4.2012 passed by learned trial Court, vide which the appellant alongwith other co-accused was sentenced for a period of 10 years rigorous imprisonment each under Section 376(2)(c) of the Indian Penal Code and to pay fine of Rs.2000/- each and in default of payment of fine to further undergo RI for 15 days, in a case First Information Report No.115 dated 18.5.2009, registered under Section 376(2)(g) and 120-B of the Indian Penal Code at Police Station Sector 26, Chandigarh.
Learned counsel for the appellant seeks to withdraw the present appeal.
The matter was heard alongwith other batch of appeals. After hearing the learned counsel for the parties and having gone through the evidence on record, this Court is of the provisional view that the prosecution had led sufficient evidence for making out a case for modification of order of sentence.
Accordingly, the appellant be issued a show cause as to why the sentence awarded to him be not modified/ enhanced.
The appellant is stated to be in Model Jail, Chandigarh. The Registry is directed to communicate the order through Superintendent, Model Jail, Chandigarh.
In view of the above, the present appeal is ordered to be segregated from the batch of appeals.
Since, UT, Administration has not filed any appeal/ revision assailing the judgment/ order of sentence dated 9.4.2012, in the circumstances, Mr.Tribhuwan Dahiya,
Advocate, who is present in Court, is appointed amicus curiae to assist the Court on behalf of the victim.
Post again on 08.09.2017."
Hon'ble the Supreme Court in Gandi Doddabasappa @ Gandhi Basavaraj's case (supra) has held in para no.20 as under:-
"20. We would first deal with the request of the appellant to permit him to withdraw this appeal. We have no hesitation in saying that this Court after hearing the parties and having been prima facie convinced, issued show cause notice to the appellant for enhancement of sentence. In this backdrop, we cannot permit the appellant to withdraw the appeal. We say so because the show cause notice issued to the appellant (accused) in terms of the order dated 8th September, 2016, will have to be taken to its logical end being substantive proceedings ascribable to the jurisdiction of the Appellate Court under Section 386 or read with Sections 397 and 401 of the Criminal Procedure Code, 1973 (CrPC) and, in this case, plenary jurisdiction of the Supreme Court. The show cause notice for enhancement of sentence must proceed on the principle underlying the exposition of law in Khedu Mohton and Ors Vs. State of Bihar, 1970(2) SCC 450. In that case, the complainant died during the pendency of appeal against acquittal before the High Court and therefore, it was urged by the accused that the said appeal had abated. This Court rejected that plea of the accused, having found that the appeal abates only on the death of the accused. The Court then observed that once an appeal against acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant does not choose to prosecute it or is unable to prosecute it for one reason or the other. Applying the same analogy to a suo motu show cause notice for enhancement of sentence issued by this Court after hearing both sides, it will be the duty of this Court to decide the same irrespective of the fact the accused does not want to prosecute his appeal against conviction. It may be apposite to also refer to the decision of this Court in Deo Narain Mandal v. State of U.P., 2004(4) R.C.R.(Criminal) 118: 2004(7) SCC 257 (Para 5). In paragraph 5 of the reported decision, this Court opined that since notice of enhancement of sentence was issued it is but proper in law that the court should hear the accused on merits of the case also even though the accused had not pressed his appeal on merits before the High Court. In that case, the accused had preferred appeal against reduced conviction before this Court. It is well established position in law that during the hearing of notice for enhancement of sentence, as held by this Court in Pilot U.J.S. Chopra Vs. The State of Bombay, 1955(2) SCR 94 (3 Judges), the accused will have the right also to show cause against his conviction when showing cause why his sentence should not be enhanced. ......"
In Sahab Singh's case (supra), Hon'ble the apex Court observed as under:-
"Now, in the present case the appeal was filed under Section 374(2) of the Code by the convicts against the order passed by the Additional Sessions Judge. No appeal was filed by the State under Section 377(1) of the Code against the sentence awarded by the trial court for the offence under Section 302/149 I.P.C. on the ground of its inadequacy. Nor did the High Court exercise suo motu revisional powers under Section 397 read with Section 401 of the Code. If the High Court was minded to enhance the sentence the proper course was to exercise suo motu powers under Section 397 read with Section 401 of the Code by issuing notice of enhancement and heating the convicts on the question of inadequacy of sentence. Without following such procedure it was not open to the High Court in the appeal filed by the convicts to enhance the sentence by enhancing the fine."
In view of the law laid down in the aforesaid authorities, this Court has exercised its SUO MOTO revisional power conferred under Section 397 read with Section 401 Cr.P.C. and the appellant was show caused as to why the sentence awarded to him be not modified/ enhanced vide order dated 30.8.2017. In response to this, notices thereof to the appellant as well as his counsel were issued.
As noticed above, to have assistance on behalf of the victim Mr.Tribhuvan Dahiya, Advocate was appointed as Amicus Curiae since the Chandigarh Administration had not filed appeal in the matter for enhancement of the sentence awarded to the appellant.
On behalf of the appellant, it has been submitted that the appellant, who is saddled with the responsibility of raising three minor daughters, has already undergone approximately ten years of imprisonment in pursuance to the judgment dated 9.4.2012. The sentence awarded to him is adequate and the purpose of sentencing to him is already achieved. He further states that if this Court further emphasis that a re-affirmative and pragmatic approach, considering the family of the appellant be adopted in the matter.
On the other hand, learned Amicus Curiae submits that it is a custodial gang rape and considering the gravity of offence, manner and its execution, impact on society and repercussions on the victim, the circumstances call for enhancement of sentence to compensate the victim and to protect the society in general.
Learned counsel appearing for UT, Administration also vehemently prays for enhancement of the sentence awarded to the appellant.
I have heard the learned counsel for the parties and perused the record.
Hon'ble the Supreme Court in Shyama Narain vs. State (NCT of Delhi) (2013) 7 SCC 77 has observed as under:-
"10. Presently, we shall proceed to deal with the justification of the sentence. Learned counsel for the appellant, would submit that though Section 376 (2) provides that sentence can be rigorous imprisonment for life, yet as a minimum of sentence of ten years is stipulated, this Court should reduce the punishment to ten years of rigorous imprisonment. It is urged by him that the appellant is a father of four children and their lives would be ruined if the sentence of imprisonment for life is affirmed. Mr. Paras Kuhad, and Mr. B.V. Balram Dass, counsel for the State, submitted that the crime being heinous, the sentence imposed on the accused is absolutely justified and does not warrant interference. It is also canvassed by them that reduction of sentence in such a case would be an anathema to the concept of just punishment.
Primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
In this context, we may refer with profit to the pronouncement in Jameel v. State of Uttar Pradesh (2010) 12 SCC 532, wherein this Court, speaking about the concept of sentence, has laid down that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. 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.
In Shailesh Jasvantbhai and another v. State of Gujarat and others (2006) 2 SCC 359, the Court has observed thus:
"Friedman in his Law in Changing Society stated that: "State of criminal law continues to be - as it should be -a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration".
In State of M.P. v. Babulal (2008) 1 SCC 234, two learned Judges, while delineating about the adequacy of sentence, have expressed thus : -
"19. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefore.
The object of punishment has been succinctly stated in Halsbury's Laws of England, (4th Edition: Vol.II: para 482) thus:
"The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided".(emphasis supplied)"
In Gopal Singh v. State of Uttarakhand (2013) 7 SCC 545, while dealing with the philosophy of just punishment which is the collective cry of the society, a two-Judge Bench has stated that just punishment would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors.
The aforesaid authorities deal with sentencing in general. As is seen, various concepts, namely, gravity of the offence, manner of its execution, impact on the society, repercussions on the victim and proportionality of punishment have been emphasized upon. In the case at hand, we are concerned with the justification of life imprisonment in a case of rape committed on an eight year old girl, helpless and vulnerable and, in a way, hapless. The victim was both physically and psychologically vulnerable. It is worthy to note that any kind of sexual assault has always been viewed with seriousness and sensitivity by this Court.
In Madan Gopal Kakkad v. Naval Dubey and another (1992) 3 SCC 204, it has been observed as follows:-
"... though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilized society should be mercilessly and inexorably punished in the severest terms."
In the concluding paragraph, Hon'ble the apex Court has further held as under:-
"It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised. The torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying "child is a gift of the providence" enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court."
The Court cannot lose sight of the fact that the prosecutrix is a mentally infirm and destitute child with the mental age of an 8-9 year old, who was put in the care and custody of the accused all of whom betrayed the trust and confidence reposed in them to act as her protectors and guardians by repeatedly subjecting her to gang rape which unfortunately, led to her pregnancy and her deliverance of a child. The present case is a shocking example of the protector turning into a predator and a trustee turning into a tormentor of a mentally infirm girl "unable to look after herself" and "unable to fend for herself if left to her own devices" as per the medical opinion dated 27.5.2009 (Ex. P-411 in CWP-876-2009). Her mental age was ascertained to be 9 years and "PO=64" which is suggestive of mild mental retardation. The said finding was given by a medical board constituted on the direction of this Court in the aforesaid writ petition regarding the termination of pregnancy of the victim as a consequence of rape. The accused in the present case committed inhumane and barbaric acts upon the child in their custody. In the circumstances, the conscience of the Court is satisfied that the sentence awarded to the appellant does not commensurate to the conduct and crime of the accused. Therefore, this Court feels that this is one of the rare cases where the enhancement of sentence awarded to the appellant is warranted to do complete justice and to respond to the cries of the victim. Consequently, the sentence awarded to the appellant is hereby enhanced from ten years to life imprisonment. The sentence of fine of Rs.2000/- imposed by the learned trial Court with default stipulation shall remain unaltered.
Learned Public Prosecutor has pointed out that during the pendency of the appeal, the victim has been employed as attendant at Aashreya Home, Chandigarh. The U.T. Chandigarh Administration shall continue to look after the victim and her child till she attains majority.
This Court places on records its appreciation for the assistance rendered to this Court by the learned Amicus Curiae.
The Court with pain records its displeasure on the satisfaction recorded by the then Public Prosecutor before the trial Court that the accused seems to have been sentenced adequately which was subsequently endorsed by the then Legal Remembrancer, UT, Chandigarh. A Copy of this judgment be sent to the Director Prosecution, UT Chandigarh to convey the pain and anguish of the Court to these officers, even if they have attained superannuation.