Subhash Chander vs State of Haryana

Anita Chaudhary, J.—The present appeal is directed against the judgment of conviction dated 03.05.2008 and order of sentence dated 24.05.2008 passed by the Addl. Sessions Judge, Sirsa vide which the appellant-accused - Subhash Chander has been convicted in FIR No. 50 dated 10.02.2006 for the offence under Sections 376 and 313 IPC registered at police station Rania, District Sirsa. He was sentenced to undergo rigorous imprisonment for a period of 10 years along with a fine of Rs. 5,000/- u/s 376(2)(b) IPC and in default of payment of fine to further undergo simple imprisonment for a period of six months. The prosecutrix, a child of 13 years and a student of 8th Class, was raped by the appellant, who was the Sanskrit teacher in the school. The child was being raped for over a period of 2/3 months. The prosecutrix is handicapped. She had participated in the Hammer Throw event held in Faridabad. The prosecutrix had also participated in the tournament held at the Haryana level, which took place on 02.12.2005 where she stood first. The prosecutrix along with other students remained in the school for 5 days during the tournament. The allegations were that the appellant took the child at mid night to an isolated room and raped her. The appellant also threatened her. After the tournaments were over, all the students returned to village Sadewala. The girl was under constant threat. She was raped twice in the school. The prosecutrix informed the accused that she had become pregnant and she would tell her family but the accused persuaded her not to inform anyone as it would bring disrepute to them. He promised to provide some medicines to abort the pregnancy. On the next day, the accused handed over her some medicines. The prosecutrix started vomiting after she returned home. Her mother took her to the doctor where she was informed the cause for the vomit. The matter was discussed in the family. The family went to report the matter to the police but they found 5-7 persons already present. They asked them to compromise the matter as the reputation of the family was involved. The matter was subsequently reported. A formal FIR Ex. PA/1 was registered 10.02.2006. The statement of the prosecutrix was taken and she was medically examined. Report under Sections 376-B, 313 and 506 IPC was laid. Charge was framed u/s 376(2)(b) IPC.

The prosecution examined 15 witnesses including the prosecutrix, her father, the Medical Officers, the guest teachers and the police officials.

In the statement made u/s 313 Cr.P.C. the accused pleaded false implication and stated that he used to teach Sanskrit and was not appointed as PTI. His defence was that the prosecutrix was not a minor and he had never given any training and about 150 students had gone to Faridabad. All the female students were accompanied by their guardian or parents. He stated that the prosecutrix was accompanied by her grand-father Pokhar Ram. He had further stated that girl had affair with some persons in the village and to save herself, she had falsely implicated him in this case. He examined six witnesses i.e. two officials from Haryana Roadways and Clerks and teachers from the school.

I have heard learned counsel for the parties and perused the case file with their assistance.

Learned counsel for the appellant at the outset stated that they were not challenging the conviction but had only to make submissions regarding quantum of sentence and according to the custody certificate issued in April, 2011 the accused had already undergone the sentence for a period of 4 years and 9 months and the proviso to Section 376(2) provides that for special reasons the punishment can be reduced. Reliance was placed on the judgment passed in Raju Vs. State of Karnataka, It was urged that the ossification test report states that the girl was between 15/161/2 years and there is variation of two years and there is no injury on the person of the prosecutrix, which is suggestive of her consent and she was major and there was no threat.

Learned counsel representing the State had urged that the legislature had provided higher punishment for certain categories and here was a teacher who had made a student a victim of sex crime and there were no special reasons for reducing the sentence and according to the birth certificate, the child was only 13 years of age and the girl had been repeatedly raped by the accused and there can be no serious crime than the present one.

Though the counsel for the appellant had confined his argument only on the quantum of sentence, I consider it necessary also to go through the evidence.

The prosecutrix had stepped into witness box as PW-1 in support of the allegations levelled in the complaint. The prosecutrix is a handicapped child and was a student of 8th Class. Ex. PC is the copy of MLR of the prosecutrix. The medical examination was carried out by the Medical Board and it had noted the following:

On external examination dense hairs were present in axilla, vulva pubic. Breast was well developed. Areola was of dark colour, fluid could be ejected out. On internal examination, we found that the hymen was torn in its lateral and posterior aspect. Congestion was present on posterior aspect of vaginal outlet. Vagina admitted easily two fingers. Cervix admitted one finger and was soft. Uterus was retroverted, retroflexed, bulky, bleeding was present from os. She was advised ultra sound for evidence of pregnancy.

The above would show that the child was subjected to sexual intercourse over a long period of time. The hymen was torn and the vagina admitted two fingers easily. The child was found to be pregnant. The Medical Officers had found that the possibility of abortion due to consumption of a bill could not be ruled out.

The prosecutrix in her deposition before the Court was categorical, clear and unequivocal that the accused committed sexual intercourse under threat. The parents came to know about the incident only when the child started vomiting. She was immediately taken for medical examination and they discovered that the child was pregnant. The accused did not leave any opportunity and misused his position. There was no reason for the child to falsely implicate him. The victim of a sex crime would not spare the culprit and name a false person. The medical evidence corroborates the case of rape. The testimony of the prosecutrix is supported by medical evidence. Her statement is found to be trustworthy. There is no infirmity in the finding as regards the conviction of the appellant.

Now coming to the quantum, learned counsel for the appellant had prayed for a lenient view and for reducing the sentence to the period already undergone which according to him was over 6 years. The Hon''ble Supreme Court in case reported as State of Karnataka vs. Puttaraj, 2003 RCR (Crl.) 113 was considering the case of reduction of sentence in a rape case and had observed that undue sympathy in imposing inadequate sentence would do more harm to the justice system and would undermine the public confidence in the efficacy of law. It was held that it was 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.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentence. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times on account of misplaced sympathies to the perpetrator of crime leaving the victim or his family into oblivion. Even now for a single grave infraction drastic sentence is imposed.

After giving due consideration to the facts and circumstances of the case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances.

It has been very aptly indicated in Dennis Councle MCG Dautha v. State of California, 402 US 183 : 28 L.D. 2d 711 no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.

In Dhananjay Chatterjee alias Dhana Vs. State of W.B., the Hon''ble Supreme Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system''s cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.

In Shyam Narain Vs. The State of NCT of Delhi, , the Hon''ble Supreme Court summed up the law on the quantum of sentence in the cases of sexual assaults on female children and noted the cases of sexual assault and how it had been viewed by it.

In Madan Gopal Kakkad Vs. Naval Dubey and Another, it had 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 Jugendra Singh Vs. State of U.P., while dwelling upon the gravity of the crime of rape, the Hon''ble Apex Court had expressed thus:-

Rape or an attempt to rape is a crime not against an individual but a crime which destroys the basic equilibrium of the social atmosphere. The consequential death is more horrendous. It is to be kept in mind that an offence against the body of a woman lowers her dignity and mars her reputation. It is said that one''s physical frame is his or her temple. No one has any right of encroachment. An attempt for the momentary pleasure of the accused has caused the death of a child and had a devastating effect on her family and, in the ultimate eventuate, on the collective at large. When a family suffers in such a manner, the society as a whole is compelled to suffer as it creates an incurable dent in the fabric of the social milieu.

Keeping in view the aforesaid enunciation of law, the obtaining factual matrix, the brutality reflected in the commission of crime, the Court is required to address whether the rigorous punishment imposed on the appellant is excessive or deserves to be modified.

The proviso to Section 376(2) provides 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 10 years. In the case in hand there are no mitigating circumstances nor it is a case where leniency can be shown. The appellant was a teacher and had misused his position. Such crimes need to be deprecated. In my view, the sentence awarded to the appellant is appropriate and no interference is called for. The appeal stands dismissed.