1981 P Cr (PLP)

SARDAR MOHAMMAD SHARIF KHAN, ACTG. C. J.

The two second appeals by Khalid and Ajaib convicts are made against the judgment given on appeal by the learned Sessions Judge, Mirpur on 29th November, 1980. A revision petition under section 439, Cr. P. C. is also filed by the State and the complainant for enhancement of the sentences which were awarded to Khalid and another by the Additional District Magistrate, Mirpur under sections 341, 375 and 376/511, Penal Code respectively. Khalid was sentenced to three years' rigorous imprisonment and a fine of Rs. 1,000 under section 376, P. C. and in default he is to undergo three months' rigorous imprisonment. 1-It was also convicted under section 341, P. C. and sentenced to six' months' rigorous imprisonment. Ajaib was convicted under section 341, P. C. and sentenced to six months' rigorous imprisonment. He was also convicted under section 511 with reference to section 376 of the Penal Code and sentenced to one year's rigorous imprisonment. No second appeals being competent, these are treated as revisions and so the terms appeals and the appellants hereinafter to be called as petitions and the petitioners. One Nasim who is an accused absconding, was proceeded against under section 512, Cr. P. C. for the offences under sections 341 and 376, Penal Code. The facts of the case are summarized as follows:- Two married women, namely, Maida and Chandni accompanied b. Mst. Razia a virgin girl of about 14/ 15 years of age and a boy named Kala of about 12/13 years of age left forenoon on 1st February, 1978 for a forest `Barootian' by name to fetch faggots to their houses. They all reached the forest where Khalid, Nasim and Ajaib were also found grazing their goats At about noon when the females alongwith the boy were returning to their houses after collecting the faggots just ahead on their way back, they noticed that the abovesaid young males came out of bushes armed with hatchets where they were lying in wait and held down the females by their arms one by one and pulled them down to the stream nearby so as to be subjected to rape. On their noise, they were threatened to be killed if any alarm was at all raised by them. Kala, the boy who made noise was forced to leave the females in the clutches of Khalid and his associates as he was given a blow on his back with the handle of the hatchet by Khalid. Mst. Razia a virgin girl was held by Khalid and was subjected to rape by him. Mst. Maida was held by Nasim accused and was raped. Mst. Chandni was overpowered by Ajaib in order to commit rape with her. He did all in order to act as such but failed to have sexual inter course with the woman as she was suffering from menses. It was after touching the private parts of Mst. Chandni with his male organ that he on seeing the menses had to withdraw himself from thrusting his male organ into her vagina. All the women put up struggle and resistance whatever by could do during which the bangles worn on their wrists were broken pieces and scratches and bruises were also resulted on their persons thereof. Kala was sent to inform the men at home about the incident and the victims stayed behind on the spot till the arrival of their men. On infor mation received, Muhammad Aslam husband of Mst. Chandni and Abdul Qaiyum brother of Mst. Razia accompanied by the boy back reached the place of occurrence to whom the incident was narrated in the very manner it had occurred. Thereafter the women and the girl were taken to the police station where report Exh. P. A. was accordingly written by the police officer present, at the dictation of Mst. Razia one of the victims and it was lodged with the Police without any delay so as not to be contended affecting the merits of the case adversely in any manner whatsoever. Their injury-sheets including that of the boy were accordingly prepared by the Police and they were sent to be examined medically. The medical reports were given by the Lady Doctor and the Medical Officer except Mst. Chandni's case as according to the Lady Doctor, she refused her examination to be made. Injury-sheet Exh. P. H. prepared by the Police in respect of Mst. Chandni was also brought on record by the Investi gating Officer which was endorsed by the Medical Officer to the Lady Doctor. The prosecution to prove the offences allegedly committed by the petitioners, examined all the three victims and the boy who was an eye witness to the occurrences of the obstruction caused to the women while proceeding on their way to home and thereafter committed rape and attempt to rape upon them in the manner as stated above. Kala, the boy in order to be made away from the stream so as not to be a source of obstruction or hindrance to the males assaulting empty-handed women, was also given a blow of the handle of the axe by Khalid, the convict. He being a boy of tender age could not resist and check the indecent assault and climbed-up a hillock just overlooking the stream wherefrom he could witness the acts committed by the ravishers. The bangles worn by the women on their wrists were also broken the resistance shown by them against the enormous assault. The broken pieces of bangles were also seized from the scene of occurrence by the Police in presence of Abdul Qaiyum and Muhammad Aslam who have come forward to state as such before the Court. The Lady Doctor who being a new entrant in service just after her graduation, appears to be a raw hand, though failed to record the full findings in respect of Mst. Razia's examination at the first instance which on query again were elaborately given by her, yet it cannot be said that whatever certificate was first issued by her was not sufficient for the trial Court to hold that no rape was committed upon Mst. Razia, the prosecutrix. The very first certificate is unequivocally indicative of the fact that forcible intercourse was held with her. Vagina of the girl was still bleeding at the time when she was examined by the Lady Doctor and hymen was not intact. Mst. Chandni a victim though was seen by the Lady Doctor yet was not examined by her. The refusal on the part of Mst. Chandni a village girl appears to have been made out of sheer shamefacedness with regard to her private parts oozing at the relevant time due to menses as it was quite natural for a village girl to behave as such. But Lady Doctor took it as a total denial for her being ignorant of the procedure and technique concerning examination of injured persons sent by the Police for the purpose so also because of ignorance on her part regarding psycology of the fair sex. The injury-sheet in respect of Mst. Chandni is on record which was prepared by a Police Officer after having seen injuries on her person outwardly. There were scratches and bruises on the wrists of the women as well as on other parts of their persons. There appears no reason as to why the Police Officer preparing Mst. Chandni's injury-sheet, Mst. Chandni herself or any other person seeing her injured should not be believed. Resistance shown by the victims stands proved beyond any reasonable doubt and nothing of consent on their part so as to have attracted sexual intercourse with young males in view of each other, can be atributed to them. Recovery of clothes from the convicts for being not in accordance with law is ignored and despite this the case of rape is brought home to Khalid, the convict. Chemical Analyser and Serolo gist have found semen and bloodstains on the trousers of Mst. Razia which while read with medical certificate issued by the Lady Doctor clearly show that Mst. Razia was subjected to rape. The story as narrated is fully established by the evidence of the prosecution in respect of the offences committed by the petitioners and there is nothing otherwise in the evidence which could lead us to conclude that the case is not proved in the manner it was brought before the Court for the commission of offences under sections 341, 376 and 376/511, P. C. There could be no motive for the prosecution to falsely implicate the petitioners-convicts at the cost of honour and modesty of the women especially of a girl who was yet to choose a better half for whom virginity was to be kept safe and sound and that being the case this (virginity) was something very sacred. (The case against the accused absconding may not be construed so as to be touched for having any definite conclusion against him in this judgment. Nevertheless, there are sufficient grounds on record for issue of warrant of his arrest). The learned counsel for the petitioners-convicts could not make us convinced in any way that the case was not proved against them beyond a reasonable doubt. The authorities cited by them relating to the offence of rape and attempt to commit rape in respect of quantum of sentence etc, cannot fit in the circumstances of the instant case. The criminal case is always judged by its own circumstances brought before the Court. Iii this context looking at the facts constituting merits of the present case no other opinion can be formed except the guilt of the convicts proved for which undue leniency was shown to them by the Courts below. The punishment under section 376, P. C. is life imprisonment or it may extend to a term of 10 years as the case may be. It all depends upon the circumstances of a case as to what would be a proper and adequate sentence to be awarded by the Court while exercising its discretion judiciously. Here both the Courts below failed to exercise the discretion in awarding sentence in a judicious way. The trial Magistrate was even absurd in sentencing the petitioners to six months' imprisonment instead of one month provided by law under section 341, P. C. and so also the Sessions Judge in confirming the sentence in this respect. It would be taken as reduced to a term provided by law. And in other cases keeping in view the atrocious acts committed by the convicts it was too inadequate and lacking sense of proportion. The case had already been brought down from Sessions Court's level to that of a Section 30 Magistrate's Court and so the discretion vested in the trial Court was not to be lightly taken. The Sessions Judge was not justified in dismissing the revision petition for enhancement of the sentences awarded by the trial Court. The criminals were armed with hatchets and the women were defence less. By show of weapons, the women were terrorised and by hurling the blow at Kala, a boy accompanying the women, the actual use of force shown was thus also made to intimidate the females that in case they would not yield, the hatchets could also be used severely and drastically on their persons. Anyhow, the women did resist whatever they could do against the young males prepotent and more powerful. The chastity and purity of the victims were mercilessly destroyed and annihilated and it was the greatest atrocity and enormity of the crime when hymen of a girl of about 15 years of age was torn by a relentless young male namely Khalid, a convict to quench his lust and thus precious purity and chastity of the girl having virginity to her credit were dashed to which no comparison of preciousness of anything else on earth could be made as virginity is a thing of heavens in paradise which in `Urdu' language is termed as anmol and in the Arabic language, they say (a thing unicus-unique). This was all destroyed by a married young man who deserves no leniency. Crime of forcible violence of the helpless women is to be severely dealt with. Nevertheless, the legislating authority has added a new section 382-B to the Criminal Procedure Code denoting that where a Court decides to pass a sentence of imprisonment on an accused for an offence (without discriminating the nature of offences), it shall take into consideration the period, if any, during which such an accused was detained in custody for such offence. The convicts had been in custody for over a period of two years. Arrest was made on 14thFebruary, 1978 and sentence was passed on 8thApril, 1980. And in the wisdom of Legislature though not appre ciable in our wisdom, yet giving the convicts benefit of this provision of law, we think, the appellate Court below was not even right in confirming so low punishments as was passed on the petitioners convicts by the trial Court. Both the Courts below had no sense of reasonable proportion while using their discretion in passing and confirming the sentences in question. The Sessions Judge preposterously rejected the revision petition for enhancement of the inadequate and lesser sentences awarded by the trial Court, and thus failed to recommend the case for enhancement of the sentences under sections 376 and 376/511, Penal Code. That being so, while dismissing the revision petition, filed by the petitioners, we accept the application for enhancement of the sentence and enhance the sentence passed on Khalid petitioner to five years' rigorous imprisonment and a fine of Rs. 3,000 under section 376, Penal Code and in default he is to further undergo a rigorous imprisonment, of one year and a half and in case of Ajaib convict the sentence is enhanced to three years' rigorous imprisonment and a fine of Rs. 2,000 under section 511 in reference to section 376, Penal Code and in default to a further rigorous imprisonment of one year. Petition dismissed. Sentences enhanced.