FACTS OF THE CASE:
In the present case, the victim, who was approximately 16 years old at the time, had traveled to Solan in 1998 with the purpose of purchasing medicines for her ailing grandfather. This was her first visit to Solan, and upon reaching the bus stand at around 2:00 p.m., she approached a lady and inquired about the location of a specific medicine shop. However, the lady expressed her ignorance regarding the shop’s whereabouts.
At this juncture, two individuals approached the victim and offered to accompany her to the medicine shop in a three-wheeler, claiming that they were also heading in that direction. These two individuals were later identified as the accused, namely Ashish Kanwar and Suresh. Deceived by their seemingly helpful offer, the victim agreed to join them. Instead of taking her to the medicine shop, Ashish and Suresh took the victim to an isolated spot in a jungle. They sent the three-wheeler back with instructions to return in the evening. Subsequently, after gagging her mouth, they forcefully took her to a house situated below the road. Inside the house, there were four additional boys, three of whom were later identified by the victim during the trial. The fourth boy, Shanker, was not tried due to insufficient evidence against him. The victim was subjected to sexual abuse, with Ashish being the first perpetrator, followed by Sunil, Suresh, and Ruby. The appellant, Bhupinder, and Shanker (who was not tried) were in the process of undressing with the intention of committing sexual abuse when the victim managed to escape. She fled the scene wearing only a shirt and ran barefoot.
As she reached the vicinity of a road, the victim encountered Chaman Lal, a Sub-Inspector (SI), who was accompanied by other police officers. Two additional individuals, Charanjit (PW-2) and Balvinder (PW-3), also arrived at the scene. The victim recounted the horrific incident to them, after which they accompanied her to the room where the rape had occurred. However, to their dismay, all six perpetrators had already fled the premises. The police collected certain articles as evidence, recorded the victim’s statement, and initiated an investigation.
The victim underwent a medical examination conducted by Dr. Radha Chopra (PW-8) as part of the investigation. Subsequently, all the convicted individuals were arrested, and forensic laboratory tests were conducted. A charge sheet was filed, charging the accused under Section 376 read with Section 34 IPC (Indian Penal Code) and Section 342 read with Section 34 IPC. The accused persons pleaded not guilty.
Following the trial proceedings, all the accused were found guilty and convicted to serve varying sentences. In the case of the present appellant, Bhupinder, a departure was made regarding the sentence imposed. The trial court determined that Bhupinder had not actually committed rape, as the victim managed to escape before he could perpetrate the act. Consequently, Bhupinder was sentenced to undergo rigorous imprisonment (RI) for four years for the offense under Section 376 read with Section 34 IPC, and two years for the offense punishable under Section 342 read with Section IPC. However, the High Court, on its own initiative, issued a notice for the enhancement of sentence concerning the appeals filed by Bhupinder and Ashish, another accused individual.
ISSUES RAISED:
In this instance, the court must decide whether the Himachal Pradesh High Court’s decision to increase the sentence for the crime of rape, which is punishable under Section 376 of the Indian Penal Code (IPC) of 1860, from the original four years of rigorous imprisonment (RI) to ten years, is appropriate.
CONTENTIONS OF THE APPELANTS:
In the High Court, the appellants put forth certain arguments challenging the veracity and reliability of the victim’s evidence, aiming to establish that it was tainted and lacked credibility. They contended that the alleged offense under Section 376 of the Indian Penal Code was not established since the victim’s consent was apparent and unmistakable. According to their submissions, the prosecution failed to provide any corroborative evidence to support the victim’s testimony, thereby undermining the reliability of the prosecution’s version of events. The appellants further argued that, at most, they could be held guilty of attempting to commit the offense rather than actually committing it. They asserted that the absence of any concrete corroboration weakened the prosecution’s case and rendered the evidence unreliable. They also pointed out that there were no discernible indicators or signs of non-consent in the evidence presented.
The appellants sought to cast doubt on the prosecution’s version by emphasizing the alleged lack of corroboration, which they believed should have led to the rejection of the victim’s testimony. They suggested that the absence of supporting evidence undermined the credibility and strength of the prosecution’s case, making it questionable and susceptible to doubt. In essence, the appellants questioned the reliability, consistency, and truthfulness of the victim’s evidence, contending that it was tainted and lacked corroboration.
They asserted that the absence of corroboration, coupled with the apparent signs of consent, weakened the prosecution’s case and warranted a conclusion that the appellants could only be held responsible for an attempted offense rather than the actual commission of the offense itself. They argued that without concrete corroboration, the evidence remained unreliable, making it difficult to establish guilt beyond a reasonable doubt.
CONTENTIONS OF THE RESPONDENTS:
As per the arguments put forth by the respondent, it was emphasized that the offense of rape carries minimum prescribed sentences, as outlined in Sub-sections (1) and (2) of the relevant legislation. In particular, reference was made to Sub-section 2(1) (g) of Section 376, which specifically addresses the heinous crime of gang rape. The respondent drew attention to Explanation (1) within this provision, which contains a deeming provision that renders every individual within a group of persons, acting in furtherance of their common intention, guilty of the offense of rape. This means that each person within the group is deemed to have committed gang rape, even if one or more individuals did not physically carry out the act of rape.
The significance of this provision lies in its broad scope, whereby the law holds all participants in a group responsible for the offense of rape, regardless of their level of direct involvement. Even if an individual did not personally engage in the actual act of rape, they are still held accountable for the crime due to their association with the group and their shared intent. This provision aims to prevent individuals from escaping liability by merely claiming that they did not commit the actual act of rape, thereby ensuring that all participants are held responsible for their involvement in the collective offense.
By highlighting the deeming provision within Sub-section 2(1) (g) of Section 376, the respondent sought to underscore the comprehensive nature of the law in addressing cases of gang rape. The provision reflects the legislature’s intent to hold every member of a group accountable for the crime, recognizing that their collective actions contribute to the violation suffered by the victim. It establishes a legal framework that promotes a sense of collective responsibility and deterrence, ensuring that no individual within the group can evade punishment by distancing themselves from the actual act of rape. In summary, the respondent’s submission centered on the minimum prescribed sentences for the offense of rape, particularly in cases of gang rape. They emphasized the deeming provision within Sub-section 2(1) (g) of Section 376, which holds all members of a group responsible for the crime, irrespective of their direct involvement. This provision aims to deter individuals from escaping liability by asserting their non-participation in the actual act of rape, thereby reinforcing the comprehensive nature of the law in addressing cases involving multiple perpetrators.
JUDGMENT:
The High Court, upon careful examination of the evidence presented, found it to be compelling and in line with the conviction rendered by the trial court. The court specifically took note of Explanation I to Sub-section (2) of Section 376 of the Indian Penal Code (IPC) due to the nature of the case being one of gang rape. Additionally, the provisions of Section 114-A of the Indian Evidence Act, 1872 were also considered by the court.
Based on the available evidence, the High Court concluded that the involvement of the accused appellant, Bhupinder, could not be ruled out, even if he did not personally commit the act of rape. The court noted that, in cases of gang rape, it is not necessary for the prosecution to establish conclusive evidence of a completed act of rape by each accused individual on the victim. The introduction of Explanation (1) to Section 376(2) (9) was viewed as a legislative response to effectively address the rising menace of gang rape. Therefore, the court opined that the prosecution did not need to provide unequivocal proof of rape by each accused; rather, their involvement in the collective offense of gang rape sufficed to find them guilty under Section 376 IPC.
In support of its reasoning, the court relied on the case of Promod Mahto and Ors. v. The State of Bihar, which further bolstered the interpretation and application of the relevant legal provisions. The court also highlighted that in both Sub-sections (1) and (2) of Section 376, the court possesses discretionary powers to impose a sentence of imprisonment lower than the prescribed minimum, provided there are adequate and special reasons for doing so. However, if such reasons are not mentioned in the judgment, there is no scope for awarding a sentence below the statutory minimum.
To exercise the discretion of reducing the sentence, the court emphasized the requirement of recording “adequate and special reasons” in the judgment, which should not be arbitrary or whimsical, but genuinely deserving of leniency. The determination of what constitutes adequate and special reasons depends on various factors, and no fixed formula can be imposed. In the present case, the trial court’s sole reason for considering a lesser sentence was that the accused appellant had not actually committed the rape. However, this reason alone could not warrant a reduced sentence, particularly in light of Explanation (1) to Sub-section (2) of Section 376, which imposes the minimum sentence on members of group acting in furtherance of their common intention. Both the trial court and the High Court applied the principle of common intention under Section 34 of the IPC to establish that the rape was committed in furtherance of a shared intent. The accused-appellant’s presence at the scene and his preparation to participate, as evidenced by his act of undressing, were considered by the courts. The evidence supporting these facts was deemed cogent, credible, and reliable.
As the trial court failed to provide any other just or special reasons to warrant a lesser sentence, and no such reasons were brought forth during the appeal, the Supreme Court affirmed the High Court’s decision to impose the minimum prescribed sentence. Consequently, the appeal was dismissed.
REFRENCES
- AIR 1989 SC 1475: Promod Mahto and ors. Vs State of Bihar.
- AIR 2003 SC 4684: Bhupinder Sharma vs state of Himachal Pradesh.