U.B. Saha, J.
1. This appeal has been preferred by the convict appellant challenging the judgment-dated 13.9.2000 passed by the learned Addl. Sessions Judge, Belonia, South Tripura in Sessions Trial No. 10(ST/B) of 1991 whereby and where under the appellant was convicted under Section 376(2)(f) IPC and sentenced him to suffer R.I. for 12 years and pay a fine of Rs. 5,000/-, in default to suffer further R.I. for two years. The fine money, if realized, was directed to pay to the victim. The period of detention during trial was set off.
2. Heard Mr. D. Dutta, learned Counsel for the appellant and Mr. D. Sarkar, learned Public Prosecutor assisted by Mr. R.C. Debnath, learned Counsel for the respondent.
3. As observed by the Apex Court in the case of State of H.P. v. Shree Kant Shekari reported in : 2004CriLJ4232 referring to the case of State of Karnataka v. Puttaraja reported in : 2004CriLJ579 , the name is not mentioned to disclose the identity of the victim girl against whom an offence under Section 376 IPC is alleged or found to have been committed and it is stated by the learned Counsel for the parties that during the trial of this case, the victim girl and the convict appellant got married. Therefore, she is described as the 'victim' in the judgment.
4. Briefly stated, the prosecution story is as follows:
On 20.7.1989 at about 5/6 p.m., the convict appellant, who was sexually hungry and overpowered by sex stress committed rape on a child, a minor girl aged about 8 years, while she went to bring the cattle heard from the grazing place situated a little away by the side of her house, after being caught her and laid down there by penetrating his penis in her vagina forcibly when her parents were away leaving the victim with her one younger sister and one infant brother at home. As a result, there was profuse bleeding from her vagina and hearing her cry, her younger sister rushed to her and found the convict appellant fleeing away. Both the sister returned home weeping. Thereafter, on return, they narrated the occurrence to their mother when she found that blood was oozing out from the vagina of the victim. Immediately, she tried to stop the bleeding by putting pieces of cloth, but could not. During night time, the father of the victim returned and came to know the occurrence from her wife.
On the following day, in the morning, the parents of the victim took her to Julaibari Hospital and after treating there, she was referred to Tripura Sundari District Hospital, Udaipur where a Gynaecologist, Dr. P.K. Bardhan (P.W. 8) treated her as an indoor patient and submitted his report that she (the victim) was subjected to sexual assault.
The father of the victim initially did not lodge FIR before the police as there was a village Baithak (meeting) to settle up the matter amicably. But ultimately when the family of the convict appellant did not comply with the decision of the Baithak, then the father came forward to lodge FIR with the Baikhora Police Station on 25.7.1989 stating the entire story of commission of offence by the victim appellant. Accordingly, Baikhora P.S. case No. 3(7) 89 registered under Section 376 IPC against the accused appellant.
5. On receipt of the FIR, the police started investigation and on completion of investigation, submitted charge sheet against the convict appellant for committing offence under Section 376 IPC.
6. The learned SDJM, Belonia took the cognizance of the offence on the basis of the police report and thereafter committed the case to the Court of Sessions for trial. The learned Addl. Sessions Judge, Belonia framed the charge against the accused/convict appellant for commission of offence punishable under Section 376 IPC to which the accused/ convict appellant pleaded not guilty and claimed to be tried.
7. During the course of trial, the prosecution examined as many as 9 witnesses including victim (P.W. 7), her sister (P.W.2) and her parents (P.W. 3 and P.W. 4) along with other witnesses including official witnesses and also adduced a number of documents and materials. The defence taken by the accused/convict appellant before the trial Court, as would appear from the record, was of total denial and also adduced no evidence except his statement under Section 313 Cr.P.C.
8. Mr. D. Dutta, learned Counsel while placing the case of the convict appellant submits that the entire story of the prosecution against the convict appellant is a false and fabricated one. According to him, the appellant was in no way involved with the alleged offence, rather the family members of the alleged victim implicated him. He also urges that the story of prosecution relating to a rape with the alleged victim is not trustworthy one. Had there been any incident on 20.7.1989, then the parents of the said victim would have reported the same immediately to the police station and it takes half an hour to reach the police station from the house of the victim whereas the information of the alleged incident was lodged with the police station after five days i.e., on 25.7.1989 and the doctor who allegedly treated the victim in the Julaibari Hospital was also not examined which is fatal in nature. However, ultimately, Mr. Dutta learned Counsel for the appellant contends that the convict appellant has already suffered sentence for seven years out of 12 years passed by the trial Court. He also points out that the learned Trial Court failed to consider the prayer for mercy of the convict appellant. He further submits that at the time of commission of the alleged offence, the convict appellant was at the age of barely 21 years with no criminal antecedents and during the pendency of the trial, the convict appellant and the victim completed their marriage respectively. Referring to para-21 of the judgment of the Trial Court, Mr. Dutta also contends that the convict appellant, by this time, has a minor son, his old parents and he has sold out his house to meet out the expenditure of this case and his family was totally dependent on his sole income and mentioning the situation that all the members of his family would die of starvation, the accused appellant prayed for mercy before the trial Court. After considering the aforesaid facts and circumstances, the Court may reduce the sentence from 12 year's R. I with a fine of Rs. 5000/- to the period already suffered keeping in view that the convict appellant is not a habitual offender, he submits.
9. In support of his contention, Mr. Dutta, relies on a decision rendered in Phul Singh v. State of Haryana reported in : 1980CriLJ8 and submits that in a similar type of offence, the Apex Court reduced the sentence. He also relies on the decision of a case of Kakoo v. State of Himachal Pradesh reported in : 1976CriLJ1545 and refers to Para-4 and 5 of the said decision to submit that an inordinately long prison term is sure to turn him into an obdurate criminal. The duty of the Court is to punish the criminal as a curative measure so that he can reform himself and back to the society to serve it and lead to the peaceful life, but not for punish him and being first offender when he prayed for mercy, it was the duty of the trial Court to punish him with some lesser period of sentence which the learned trial Court failed.
10. Per contra, the learned Public Prosecutor Mr. D. Sarkar submits that the convict appellant cannot be considered as a human as he committed rape even not on a grown up girl, but on a eight years child. A child is nothing but like a flower. Even a flowers lover does not pluck a flower unless it is bloomed. From the evidence of the victim, her younger sister and mother as well as the doctor, it is established that the prosecution has proved its case without any doubt. According to Mr. Sarkar, the evidence of the victim prosecutrix is enough to convict the accused appellant and in support of his said contention, he refers to the case of State of H.P. v. Shree Kant Shekari reported in : 2004CriLJ4232 and the case of State of Rqjasthan v. N.K. reported in : 2000CriLJ2205 . In paragraph 21 of the case of State of H.P. (supra), the Apex Court held:
21. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands on a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration, as understood in the context of an accomplice, would suffice.
10.1. In Para-11 of State of Rajasthan (supra), the Apex Court held:
11. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject-matter being a criminal charge. However, if the court of facts may find it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do. Reference may be had to a long claim of decisions, some of which are Rameshwar v. State of Rajasthan : 1952CriLJ547 , Sidheswar Ganguly v. State of W.B. : 1958CriLJ273 , Madho Ram v. State of U.P. : 1973CriLJ673 , State of Maharashtra v. Chandraprakash Kewalchand Jail : 1990CriLJ889 , Madan Gopal Kakkad v. Naval Dubey. : [1992]2SCR921 , State of Rajasthan v. Narayan : 1992CriLJ3655 , Karnel Singh v. State of M.P. : 1995CriLJ4173 , Bodhisattwa Gautam v. Subhra Chakraborty : AIR1996SC922 and State of Punjab v. Gurmeet Singh : 1996CriLJ1728 . We may quote from the last of the abovesaid decisions where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words: (SCC p. 402, para 21).
If evidence of the prosecutrix inspires confidence, it must relied upon without seeking corroboration of her statement in material particulars. If or 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 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.
11 Mr. Sarkar also submits that the delay in lodging the FIR in a case of rape cannot be a ground to doubt the prosecution case and discard it while the delay in lodging the FIR is well explained by the informant as it is so natural in our society. And in normal course of human conduct, a guardian of an unmarried child would not like to give publicity of the traumatic experience faced by their child/girl as the said incident would create embarrassment for them in future in the society and nobody will like to be a party to a future controversy for such an incident. In support of his aforesaid contention, he relies on the case of Rajeevan v. State of Kerala reported in : 2003CriLJ1572 and refers to Para-12 and 13 of the judgment, which are reproduced below:
12. Another doubtful factor is the delayed lodging of FIR. The learned Counsel for the appellants highlights this factor. Here it is worthwhile to refer Thulia Kali v. State of T.N. : 1972CriLJ1296 wherein the delayed filing of FIR and its consequences are discussed. At para 12 this Courtsays: (SCC p. 397)
First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information quite often results in embellishment which is a-creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained.
13. This is the position consistently followed by this Court in Maharaj Singh v. State of U.P. : 1995CriLJ457 and in recently in Thanedar Singh v. State of M.P. (2002) SCC 487.
12. Learned P.P. also submits that sentence can be reduced in some other offences, but not for an offence of rape to a child like the victim. Supporting the impugned judgment, he submits that the learned trial Court considered all the factual aspects and law reports before convicting and sentencing the appellant. He also submits that for defect of investigation by the investigating Agency, the prosecution case cannot be totally disbelieved while the evidence are available for conviction and imposition of punishment of sentence.
13. For rape, the legislature prescribed punishment for imprisonment of life but the trial court considering the age of the convict appellant took a lenient view and sentenced him for 12 years of RI with a fine of Rs. 5000/- Mr. Sarkar submits. According to Mr. Sarkar, the sentence is just and proper.
14. In a criminal case, it is the duty of a criminal court to protect the interest of the accused, victim as well as the society for which the proper appreciation of evidence is required. Accordingly, shorn of unnecessary details, this Court considers the evidence of the prosecution vital witnesses as recorded by the trial Court.
15. P.W. 7 is the victim who was a minor girl aged about 8 years at the time of occurrence and grown up at the time of her deposition, stated that her marriage was solemnized about three years ago from now. She knew Nirmal Debnath, the accused appellant present in the dock. About 11 years ago on an afternoon at about 5 p.m., the accused appellant who is their co-villager came to their house and wanted to take jackfruit from their tree. Her father was away from the house at Jolaibari. Her mother was away from the house in the marker. Her younger sister and infant brother were only at home. At that relevant time, she went to bring their cattle head from the grazing tilla land situated to the southern side of their house. She was at that time wearing a short pant and there was no wearing on the upper part of her body. At that time, suddenly accused appellant went there and caught her from behind and laid her on the ground. He put out her short pant and then penetrated his penis in her urine passage. She felt pain and blood came out. She thereafter came home and the accused appellant left. She and her sister were weeping. Subsequently, her mother came and she reported the matter to her mother. Her father returned home during nightime and her mother told her father about the incident. On the following morning, her parents took her to Jolaibari Hospital and from there she was brought to Udaipur Hospital where she was treated for 5/6 days.
In her cross-examination, she stated that she told doctor that the accused appellant Nirmal committed bad things on her. When daroga babu visited her house she was at that time present and daroga babu examined her in presence of her parents. She had shown the place of occurrence to daroga babu. It was a bushy tilla land. She sustained scratch mark on her back while she was laid on the ground. She had shown those injuries at Jolaibari Hospital as well as at Udaipur Hospital to doctor. She denied the suggestion that on sudden fall while running inside the bushy land she sustained bleeding injury on her private parts and that the accused appellant did not commit rape on her.
16. P.W. 2 is the sister of the victim who is the eye witness of the occurrence stated in her deposition that about 10 years ago on a day in the evening time she and her elder sister (victim) with their younger brother were at home. Her father was away at Kakulia in the forest office and her mother was also away at Debdaru market to sell milk. At that time, she was aged about 7 years and her elder sister was about 8 years. At evening time her elder sister went a little away by the side of their house to bring their cattle head and after a while she heard cries of her elder sister and she rushed to that direction. She found the accused appellant Nirmal fleeing away and her sister was lying on the ground. Blood was oozing out from her vagina. Her inner part of the thigh were blood stained. Thereafter she brought her sister to home. Her sister told that the accused appellant did bad things with her. Subsequently when her mother came, they told the incident to their mother.
In her cross-examination, she stated that there was no house within the hearing distance from their house. She found the accused appellant from a distance of about 100 cubits. It was going to be dark at that time. The accused appellant was wearing a lungi and a ganji at that time. Her mother returned home about after 1/2 hours and her father came home at about 10 p.m. Her sister was wearing a black colour short pant. She denied the suggestion that she could not identify the accused appellant.
17. P.W. 3 is the mother of the victim who stated in her deposition that she went to Debdaru market to sell milk. Her husband was at the forest office in Kakulia. Their three children were at home. She returned home at about 6/7 p.m. and found her daughters weeping. She came to know that her daughter (the victim) went to bring cattle head by the side of their house in the tilla land and at that time the accused appellant forcibly raped her. She found blood oozing out from her vagina. She washed the blood and tried to stop bleeding by putting pieces of cloth, but could not. During night time her husband came and she told him the occurrence. She further deposed that after 2/3 days village elders came to their house to mitigate a boundary dispute with their neighbours and at that time, they told them about the occurrence. Thereafter, they called the accused appellant and his father and asked them about the occurrence. The accused appellant confessed that he committed rape on her daughter. Her daughter was ill at that time. The village elders directed them to pay Rs. 500/- for the treatment of her daughter, but they did not pay the amount, rather made scandalous remarks. Then her husband instituted the police case. She identified the accused appellant on the dock. She further stated that she gave the daroga babu the half pant of her daughter and the pieces of blood stained cloth and the daroga babu seized those by preparing a seizure list. She duly proved the seized articles, which are marked Exbt. M.O. 1 series.
18. P.W. 4 is the rather of the victim who made the FIR and corroborated the evidence of the victim and RW. 3.
19. P.W. 1 is a village elder who is an independent witness. He stated in his deposition that on 23.7.1989 he went to the house of the victim along with other village elders to settle up the dispute on boundary between the father of the victim and a tribal neighbour. After the meeting was over, the father of the victim told that on a previous evening, the accused appellant committed rape on his elder daughter and he prayed for justice. Thereafter, they called the accused appellant and his father and asked them about the allegation of rape to which the accused appellant confessed that he committed rape on her. This witness further states that the victim was admitted in hospital for treatment after rape and they imposed a medical cost of Rs. 500/- on the accused appellant party which they agreed to pay. Since the case was instituted by the father of the victim, ultimately the amount imposed by them was not realized.
In his cross examination, he states that it is not a fact that the father of the victim did not tell them about any such occurrence of rape and that the accused appellant also did not confess anything about rape and did not agree to pay any amount as cost of treatment. He identified the accused appellant in the dock.
20. P.W. 6 is also a village elder who stated in his deposition that he knew both the accused appellant and the father of the victim of his locality. He also went to the house of the victim along with others to settle a boundary dispute as noted above. He further stated that after the meeting was over, the mother of the victim told about the incident of rape by the accused appellant and she prayed for justice. He advised her to take shelter of law. He further stated that after few days, the Darogababu seized one pant and few pieces of cloths of the victim in his presence.
21. P.W. 8 is a Gynecologist, a doctor of T.S. Hospital, who treated the victim. He stated that on 25.7.1989 he examined the victim at about 3-25 p.m. and she was referred from Jolaibari hospital on 25.7.1989 and was accompanied by her father. The patient stated a history of sexual assault by a person on 20.7.1989 at 6 p.m. she stated that she came to hospital after taking bath. She was not menstruated till then. On examination, he found no sign of injury on her body except her private parts. On examination of her genitals, he found no semen stain or blood stain mens pubics. No foreign hair also found. On examination of the Labia Majora, posterior end of labira majora teared, wound unhealthy, slough present. On examination of labira minora, Forchette teared, slough present. Hymen was raptured in the posterior region. On examination of the Perineum he found injury in the perineum, would unhealthy, slough present, on touch bleeding present. In vagina there was no sign of injury. No segma was found. There was no abnormality detected on examination in the abdomen.
On microscopical examination of the vaginal swab as per pathological report no live or dead spermatozoa was found.
After X-ray as per Radiologist report, the radiological age of the victim was above 7 years and below 10 years.
In his opinion as per history and clinical examination there was sign of sexual assault on her vulva and perineum. He duly proved his report submitted by him under his hand.
In cross-examination he stated that he did not mention the age of the injury found in the private parts. He mentioned in his report that sough were present which means infection was started which suggests that the injuries were about 4 and above days. It was not possible to say the exact date or time of injury. The patient was referred from Jolaibari hospital and the letter of reference tagged with hospital record of District Hospital. The patient was treated in the indoor of the hospital after admission.
22. Accordingly, after going through the evidences of the prosecution witnesses, the learned trial Court recorded that the evidence of the victim itself which is supported by the medical evidence is enough to hold that she was subjected to sexual assault and it is undisputed rather proved with sufficient evidence that the victim was aged about 8/9 years at the time of occurrence. The evidence on record further speaks it well that they hail from a very poor family and residing in interior village. The evidence of the victim inspired confidence and no ground has at all been found to disbelieve her in any manner.
23. From the prosecution evidence as narrated above and the law reports referred by the learned Counsel, this Court is of the opinion that the evidence of victim itself is enough to convict the present appellant and the trial Court rightly convicted the appellant. But the question remains whether the punishment of sentence imposed by the trial Court is excess or not while the appellant prayed for mercy before the Court at the time of imposing the sentence. Learned P.P. did not make any submission with regard to the prayer for mercy made by the accused appellant before the trial court and as regards the impugned order of sentence, he also did not make any submission whether reduction of the impugned sentence would be proper or not, while the learned Counsel for the convict appellant urges for reduction of sentence, if not admitted the other grounds in the appeal.
24. Byles, J., in Cooper v. The Board of Works for Wandsmurthy District (15) said long ago about the primordial character of the opportunity to be heard before punishment:
The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God)' where art thou?
Next thou not eaten of the tree whereof I commanded the that thou shouldst not eat?
Such a principle has been described as a principle of 'universal jurisprudence' by Mahomood, J., in Queen Empress v. Sohni (16). [1973 (1) SLR 655, Siraj Municipality v. Ceclia Kom (S.C.) para 42)
25. In the instant case, though the trial Court was right to convict the appellant, but failed to consider the conditions of the family of the convict appellant while imposing the impugned sentence though it is on record that both the family of the convict appellant and the family of the victim are below the poverty line and living in the same village.
26. Conviction is nothing but a proof of offence committed by a person and the sentence is the punishment. Therefore, there cannot be any compromise regarding proof of offence, but a court has to consider what should be the sentence not only on the basis of the offence, but also considering the other circumstances including the social conditions and position of the offender. According to this Court, the sentence in a rape case should be life imprisonment in an appropriate case. But this is not a case where the sentence should be for 12 years.
27. In the case of Phul Singh (supra), the accused appellant was in his early twenties and he was not a habitual offender. The sentence was reduced. Their Lordhip in Paragraph-2 of the said report observed:
2. Ordinarily, rape is violation, with violence, of the private person of a woman--an outrage by all canons. In our conditions of escalating sex brutality a 4 year term, for rape is not excessive. But here, the offender is in his early twenties and signs of repentance are seen. The victim and her parents have forgiven the molester who is a first cousin, say counsel. An affidavit from the father-in-law of the woman has been filed and, if needed counsel is ready to produce the victim's statement that she has forgiven the criminal. While it is possible that the accused appellant many procure such condonation from an unwilling victim, the fact remains that the two families being close cousins are ready to take a lenient view of the situation. Of course, this does not bind the Court in any manner. Therefore, taking an overall view of the familiar and the criminal factors involved, we reduce the imprisonment from 4 years to 2 years R.I.
28. Though in the instant case, the victim and her family had not forgiven the offender, then also it was the duty of the court to consider the family conditions and other back ground of the offender at the time of imposing the punishment. The accused appellant prayed for mercy before the trial court so that in future he can rectify himself and it was the duty of the court to consider such prayer taking a linient view regarding sentence.
29. In the case of Shri Khireswar Saikia v. State of Assam reported in : (1990)1GLR129 , this Court though found the accused appellant guilty of offence under Section 376 IPC, then also reduced the sentence from 2 years to nine months. In the case of Kakoo (supra), the Apex Court while considering the case of a rape on a child of two years by the accused appellant who was hardly 13 years of age, observing that an inordinately long prison term is sure to turn him into an obdurate criminal, the sentence from four year's R.I reduced to one year's R.I. with the fine of Rs. 2000/-.
30. In the instant case, after considering all the evidences and the reports, this Court is of the opinion that it would meet the ends of justice if this Court affirms the conviction and the sentence is reduced to the imprisonment already undergone with the imposition of a fine of Rs. 15,000/-.
31. The result is that die appeal fails so far as question of conviction is concerned. The conviction of the appellant under Section 376(2)(f) is maintained. The appeal is partially allowed. The sentence is reduced from 12 years R.I. imposed by the trial court to the period of imprisonment already undergone with a fine of Rs. 15,000/-, in default of payment, the appellant shall suffer three year's R.I. Mr. D. Dutta, learned Counsel for the appellant at this stage submits that the appellant has already deposited Rs. 5000/- as per order of this Court dated 20.11.2000. Thereafter, the said amount should be adjusted at the time of realization of the fine money. The appellant shall be set at liberty forthwith on payment of fine of the remaining amount. The trial Court is directed to realize the fine money from the appellant and if realized, the money shall be paid to the mother of the victim as compensation.
Send down the case records immediately.