Facts of the case
The victim aged about 16 years had gone to Solan in 1998 to purchase medicines for her ailing grandfather. She had gone to Solan for the first time and reached the bus-stand at about 2.00 p.m. After having alighted from the bus, she enquired from a lady as to where a particular medicine shop was located. The lady stated ignorance.
At this juncture, two persons came there and asked her to accompany them in a three-wheeler as they were both going to the shop concerned. The victim was taken by the two boys, namely, accused Ashish Kanwar and Suresh to an isolated place in a jungle. After gagging her mouth, she was taken to a house which was below the road. There were four more boys. The victim was sexually abused firstly by accused Ashish followed by accused Sunil, Suresh and Ruby.
The appellant Bhupinder and Shanker (not tried) were in the process of taking off their clothes with a view to perpetuate sexual abuse when the victim managed to escape with only a shirt and ran away barefooted. When she reached near the road, she saw Chaman Lal, ASI who was accompanied by police officers. When the victim described the ghastly incident to them, she was taken to the room where she had been raped, but it was found that all six of them had fled away.
The present appellant Bhupinder was sentenced to undergo RI for four years for the offence relatable to Section 376 read with Section 34 IPC. In case of the present appellant, a departure was made so far as sentence is concerned because the trial court was of the view that he had not actually committed rape and the victim had escaped before he could do so.
The High Court issued suo motu notice of enhancement of sentence in respect of appeals filed by the present appellant Bhupinder and accused Ashish. It took note of Explanation 1 to sub-section (2) of Section 376 IPC as the case was one of gang rape. It was observed that not only the said Explanation 1 but also the provisions of Section 114-A of the Indian Evidence Act, 1872 applied. Accordingly, it was held that involvement of accused-appellant Bhupinder cannot be ruled out though he may not have actually raped the victim. In view of the specific provision relating to sentence and in the absence of any adequate and special reason having been indicated by the trial Judge, the minimum sentence was to be imposed. With these findings the sentence was enhanced.
The stand as appears from the memorandum of appeal and the written submission made is that at the most the appellant can be held guilty of an attempt to commit the offence and not commission of the offence itself.
Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act. 1983, and several new sections were introduced by the new Act i.e. Sections 376-A, 376-B, 376-C and 376-D. The fact that sweeping changes were introduced reflects the legislative intent to curb with an iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is “the ravishment of a woman, without her consent, by force, fear or fraud” or as “the carnal knowledge of a woman by force against her will”. In the crime of rape, “carnal knowledge” means the penetration to the slightest degree of the organ alleged to have been carnally known by the male organ of generation. In Halsbury’s Statutes of England and Wales, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation with violence of the private persons of a woman -an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.
The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.
To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? The plea about lack of corroboration has no substance.
In cases of gang rape proof of completed act of rape by each accused on the victim is not required. The statutory intention in introducing Explanation I in relation to Section 376(2)(g) appears to have been done with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them under Section 376 IPC.
Both, in cases of sub-sections (1) and (2) the court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for “adequate and special reasons”. If the court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the prescribed minimum.
In order to exercise the discretion of reducing the sentence the statutory requirement is that the court has to record “adequate and special reasons” in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but special. What is adequate and special would depend upon several factors and no straitjacket formula can be imposed.
In the case at hand, the only reason which seems to have weighed with the trial court is that the present accused-appellant had not actually committed the rape. That cannot be a ground to warrant lesser sentence; more so, in view of Explanation I to sub section (2) of Section 376. By operation of a deeming provision a member of a group of persons who have acted in furtherance of their common intention per se attracts the minimum sentence. Section 34 has been applied by both the trial court and the High Court, to conclude that rape was committed in furtherance of common intention. Not only was the accused-appellant present, but he was also waiting for his turn, as is evident from the fact that he was in the process of undressing. The evidence in this regard is cogent, credible and trustworthy. Since no other just or special reason was given by the trial court nor could any such be shown as to what were the reasons to warrant a lesser sentence, the High Court was justified in awarding the minimum prescribed sentence.