BHUPINDER SHARMAversusSTATE OF HIMACHAL PRADESH

A                         BHUPINDER SHAR.l\1A
                                  v.
                      STATE OF HIMACHAL PRADESJ-{ .,.

                              OCTOBER 17,'.'.2003·

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.)

         Penal Code, 1860-Section 376(2) (g) Explanation I and Sections
    342, 34, 228A-Gang rape-Plea of absence of corroborative evidence~
    Held, such plea hds to be rejected since the complaint ofrape by the victim
C   should not be viewed with doubt, disbelief or suspicion-Indian Evidence
    Act, I 872-Section I I 4A.

          Section 376 (2) (g) Proviso and Explanation 1- Gang Rape-
    Sentence of Imprisonment-Trial Court imposing lesser sentence than
    minimum prescribed sentence-High Court enhancing the sentence-
D   Justification of-Held, is justified since trial court did not give adequate
    and special reasons for imposing lesser sentence which is required under
    the Code.

         Section 228-A-Disc/osure of identity of the victim-Restriction-
E Applicability ofin respect ofjudgments ofthe Courts-Held, not applicable
    but keeping in view the so~ial object, it is appropriate not to disclose the
    identity of the victim in the judgments.

       Appellant is one of the six accused convicted for committing gang ·
F rape on the victim. Trial court convicted the appellant under section
  376 read with section 34 IPC and under section 342 read with section
  34 IPC and sentenced him for four years and two years RI respectively.
  The other accused were sentenced to seven years RI for the offence
  under section 376 and 342 IPC. The appellant was given a lesser
  sentence by the trial court for the reason that he had not actually
G committed the rape on the victim since the victim escaped before he
  could do so. TheState filed an appeal-before High Court challenging
  the grant of lesser sentence to the appellant. The High Court confirmed
  the conviction of the appellant but enhanced the sentence from four
  years to ten years RI in the absence of any adequate and special reason
H indicated by the trial court and on the ground of specific provision
                                        792
                   BHUPINDER SHARMA v. ST ATE                       793

under Explanation 1 of section 376(2)(g) IPC read with section 114- A
A of the Indian Evidence Act, 1872.

     In appeal to this Court, the appellant contended that the
prosecution had failed to produce corroborative evidence linking the
appellant to the crime purported on the victim.
                                                                          B
     Dismissing the appeal, the Court

     HELD: 1. The sweeping changes made -1>y Criminal Law-
(Amen4ment) A.c:t, 1983 introducing new sections i.e. 376-A, 376-B, 376-
C: and 376-D reflects the legislative intent to curb the offence of rape, C
which affects the dignity of a woman, with an iron hand. It is unfortunate
that respect for womanhood in our country is on the decline and cases of
molestation and rape are steadily growing. Decency and morality in
public and social life can be protected only if courts deal strictly with
those who violate the social norms. [798-H, 799-A, 800-F)                  D
    Stephen's "Criminal Law" (9th Edition P.262); Encyclopaedia of
Crime and Justice (Volume 4 page 1356); Halsbury 's Statutes ofEngland
and Wales (Fourth Edition Volume 12), referred to.

     2.1. The physical scar may heal up, but the mental scar will always E
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 F -
be blunted by legal jugglery. (799-F]

     Rafiq v. State of U P., AIR (1981) SC 96; Bharwada Bhogiabhai
and Hirjibhai v. State of Gujarat, AIR (1988) SC 753 and Rameshwar
v. The State of Rajasthan, AIR (1952) SC 54, referred to.
                                                                          G
       2.2. 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 chain of rape will not be believed unless
it is corroborated in material particulars as in the case ofan accomplice H
    794                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A to a crime. The evidence of the girl or the woman, who complains of rape
    or sexual molestation, should not 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. [800-D-E)

B         State of Maharashtra v. Chandra Prakash Kewalchand Jain, AIR
    (1990) SC 658, referred to.

       2.3. In cases of gang rape, the proof of completed act of rape by
  each accused on the victim is not required. The statutory intention in
  introducing Explanation 1 in relation to section 376(2)(g) appears to
C have been done with a view to effectively deal with the growin1~ 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
D gang rape and convict them under section 376 IPC. [800-H, 801-A-B]
          Pr01nod Mahto & Ors. v . The State of Bihar, AIR (1989) SC 1475,
    relied on.

          3. Both in cases of sub-sections (1) and (2) of section 376, the Court
E has the discretion to impose a sentence of imprisonment less than that
  of 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
F 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 strait-jacket formula
  can be imposed .. In the case at hand, only reason which seems to have
G 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 1 to sub-St!ction (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 intentio~
H per se attract-the minimum sentence. Section 34 has been applied by
           BHUPINDER SHARMA v. STATE [PASAYAT, J.]                  795
both the trial court and the High Court, to conclude that rape was A
committed in furtherance of common intention. Not only was the
accused-appellant present, but also he was waiting for his turn, as
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 B
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. [801-C-G]

      4. Section 228-A IPC makes disclosure of identity of victim of
certain offences punishable. Printing or publishing name of any matter .C
which may make known the identity of any person against whom an
offence under sections 376, 376-A, 376-B, 376-C and 376-D is alleged
or found to have been committed can be punished. True it is, the
restriction does not relate to printing or publication of judgment by
High Court or Supreme Court. But keeping in view the social object D
of preventing social victimisation or ostracisms of the victim of a sexual
offence for which section 228-A has been enacted, it would be appropriate
that in the judgments, be it of High Court or lower Court, the name
of the victim should not be indicated. [796-A-C]

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
                                                                          E
1265 of 2002.

     From the Judgment and Order dated 27.9.2001 of the Himachal
Pradesh High Court in Cr!. A. No. 117 of 1999.
                                                                          F
     Ms. Rachna Gupta for the Appellant.

     J.S. Attri and Pramod Kumar Yadav for the Respondent.

     The Judgment of the Court was delivered by
                                                                          G
      ARIJIT PASAY AT, J. : Enhancement of sentence from four years
RI as awarded by the triai Court to 10 years as done by the Himachal
Pradesh High Court for an offence of rape punishable under Section 376
of the Indian Penal Code 1860, (in short 'the IPC ') is the subject matter
of challenge in this appeal.                                               H
    796                SUPREME COURT REPORTS (2003] SUPP. 4 S.C.R.

A         We do not propose to mention name of the victim. Section 228-A of
    the Indian Penal Code, 1860 (in short _the 'IPC') makes disclosure of
    identity of victim of certain offences punishable. Printing or publishing
    name of any matter which may make known the identity of any person
    against whom an offence under Sections 376, 376-A, 376-B, 376-·C or 376-
B   D is allege4 or found to have been committed can be punished. True it is,
    the restriction does not relate to· printing or publication of judgment by
    High Court or Supreme Court. But keeping in view the social object of
    preventing social victimization or ostracisms of the victim of a sexual
    offence for which Section 228-Ahas been enacted, it would be appropriate
C   that iri the judgments, be it of High Court or lower Court,' the name of the
    victim should not be indicated. We have chosen to describe her as 'victim'
    in the judgment.

         Whiie issuing notice by order dated 8.1.2002 it was clearly indicated
    by this Court that examination of the case would be restricted to the
D   question of sentence only. Appellant was found guilty of offence punishable
    under Section 376 read with Section 34 IPC and Section 342 read with
    Section 34 thereof. The enhancement of sentence was done in respect of
    offence punishable under Section 376 IPC.

E       Prosecution_ version as unfolded during trial is that 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.
F 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 concerned shop. The victim was taken by two boys namely; accused
  Ashish Kanwar and Suresh to an isolated place in a jungle. The three-
  wheeler was sent back with a direction to come in the evening. After
  gagging her mouth, she was taken to a house which was below the road.
G There were four more boys. Three out of those were identified by the
  victim during trial. The fourth one namely Shanker was not tried as
  adequate evidence was not available against l)_im. 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
H of taking off their clothes with a view to perpetuate sexual abuse when the
               BHUPINDER SHARMA v. STATE [PASA YAT, J.]                   797
    victim managed to escape with only a shirt and ran away bare footed. When A
    she reached near the road, she saw Chaman Lal, ASI who was accompanied
    by police officers. Meanwhile, two other persons also came there. They
    were Charanjit (PW-2) and Balvinder (PW-3). When the victim de$cribed
    the ghastly incident to them, she was taken to the room where she had been
    raped; but it was found that all six ofthem had fled away. Police took into B
    possession certain articles. Statement of the victim was recorded and
    ivestigation was undertaken. She was sent for medical examination where
    she was examined by Dr. Radha Chopra (PW-8). All the convicts were
    arrested during investigation. Forensic Laboratory tests were conducted
    and charge sheet was placed under Section 376 read with Section 34 IPC C
    and Section 342 read with Section 34 IPC. The accused persons pleaded
    not guilty. After conclusion of trial all of them were found guilty and
    convicted to undergo different sentences. The present appellant Bhupinder
    was sentenced to undergo RI for four years for the offence relatable to
    Section 376 read with Section 34 IPC and two years for the offence
    punishable under Section 342 read with Section IPC. All the other accused D
    persons were convicted to RI for 7 years for the offence punishable under
    Section 376 and 342 IPC.

          In case of present appellant, a departure was made so far as sentence
    is concerned because trial Court was of the view that he had not actually E
    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.

         Before the High Court the evidence of victim was stated to be tainted F
    and it was also submitted that the consent was writ large and, therefore,
    offence under Section 376 was not made out. It was urged that there was
    no corroboration to the evidence of the victim and, therefore, the prosecution
    version should not have been accepted.

         The High Court found that the evidence was cogent and confirmed G
    the conviction. It took note of Explanation I to sub-section (2) of Section
    376 IPC as the case was one of gang rape. It was observed that not only
    said Explanation I but also provisions of Section 114-A of the Indian
    Evidence Act, 1872 (in short the 'Evidence Act') applied. Accordingly it
<   was held that involvement of accused appellant Bhupinder caru1ot be ruled H
    798                SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.
A   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 as aforesaid.
B
         We have heard learned counsel for the respondent-State. He pointed
   out that the minimum sentences are prescribed for the offence of rape
   under Sub-sections (1) and (2). Sub-section 2(l)(g) of Section 376 refers
   to gang rape, Explanation (I) by a deeming provision makes every one in
C a group of persons acting in furtherance of their common intention guilty
   of offence of rape and each is deemed to have committed gang rape, even
   though one or more of them may not have actually committed rape.
   Unfortunately, there was no appearance on behalf of the accused-appellant
 . and ultimately after the hearing was over and the judgment was reserved
   and after considerable time thereof appearance was made by learned
D counsel for the accused appellant. In view of the continued absence without
   any justifiable reason, and since the matter was closed after hearing learned
   counsel for the respondent at length, the learned counsel for the accused-
   appellant though made a request to grant an opportunity cf being heard,
   was only granted permission to file written notes of argument keeping in
E view that the quantum of sentence alone was to be subject matter of
   consideration.

           The stand as appears from the memorandum of appeal and the written
    submissions 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
F   itself. The evidence is ·also claimed to be unreliable in the absence of
    corroboration and the telltale symptoms of consent. Regarding quantum of
    sentence personal and family difficulties are urged, as extenuating
    circumstances.

G         The offence of rape occurs in Chapter XVI of IPC. It is an offence
    affecting the human body. In that Chapter, there is a separate heading for
    'Sexual offence', which encompasses Sections 375, 376, 376-A, 376-B,
    376-C and 376-D. 'Rape' is defined in Section 375. Section's 375 and 376
    have been substantially changed by· Criminal Law (Amendment) Act,
H   1983, and several new sections were introduced by the new Act, i.e. 376-
           BHUPINDER SHARMA v. STATE [PASAYAT, J.]                     799

A, 376-B, 376-C and 376-D. The fact that sweeping changes were A
introduced reflects the legislative intent to curb with 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'. 'Rape' or 'Raptus' is when a man hath carnal knowledge of a B
woman by force and against her will (Co. Litt. 123-b ); or as expressed more
fully,' rape is the carnal knowledge of any woman, above the age of
particular years, against her will; or of a woman child, under that age, with
or against her will' (Hale PC 628). The essential words in an indictment
for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any C
other circumlocution without the word rapuit, are not sufficient in a legal
sense to express rape; 1 Hon. 6, la, 9 Edw. 4, 26 a (Hale PC 628). In the
crime ofrape, 'carnal knowledge' means the penetration to any the slightest
degree of the organ alleged to have been carnally know by the male organ
of generation (Stephen's "Criminal Law" 9th Ed. p. 262). In 'Encyclopoedia
of Crime and Justice' (Volume 4, page 1356) it is stated " ............. even D
slight penetration is sufficient and emission is unnecessary". In Halsbury's
Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that
even the slightest degree of penetration is sufficient to prove sexual
intercourse. It is violation with violence of the private person ofa woman-
an-outrage by all means. By the very nature of the offence it is an E
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 F
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. A similar view as expressed by this Court in Rafiq v. State ofUP.,
AIR (1981) SC 96 with some anguish. The same was echoed again in
Bharwada Bhogiabhai and Hirjibhai v. State of Gujarat, AIR (1988) SC G
753. It was observed in the said case that in the Indian Setting refusal to
 act on the testimony of the victim of sexual assault in the absence of
 corroboration as a rule, is adding insult to injury. A girl or a woman in
 the tradition bound non-permissive society of India would be extremely
 reluctant even to admit that any incident which is likely to reflect on her H
    800                 SUPREME COURT REPORTS [2003] SUPP. 4 S.C.R.

A   chastity had ever occurred. She would be conscious of the danger of being
    ostracized. by the so.ciety and when in the face of these factors the crime
    is brought to light, there is inbuilt assurance that the charge is genuine
                                                                                       r
    rather than fabricated. Just as a witness who has sustained an injury, which
    is not shown or believed to be self-inflicted, is the best witness in the sense
B   that he is least likely to exculpate the real offender, the evidence of a victim
    of sex offence is entitled to great weight, absence of, corroboration
    notwithstanding. A woman or a girl who is raped is not an accomplice.
    Corroboration is not the sine qua non for conviction in a rape case. The
    observations of Vivian Bose, J. in Rameshwar v. The State of Rajasthan,
C   AIR (1952) SC 54 were. "The rule, which according to the cases has
    hardened into one of law, is not that corroboration is essential before there
    can be a conviction but that the nec.:ssity of corroboration, as a matter of
    prudence, except where the circumstances make it safe to dispe:nse with
    it, must be present to the mind of the judge..... ".

D        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 chain of rape will not be believed unless it is corroborated
    in material particulars as in the case of an accomplice to a crime. (See State
E   of Maharashtra v. Chandra Prakash Kewalchand Jain, AIR (1990) SC
    658. Why should be 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.

F         It is unfortunate that respect for womanhood in our country is on the
    decline and cases of molestation and rape are steadily growing. Decency
    and morality in public and social life can be protected only if Courts deal
    strictly with those who violate the social norms. Two alternative custodial
    punishments are provided; one is imprisonment for life or with imprisonment
G   of either description for a term which may extend to ten years. The latter
    is the minimum, subject of course to the proviso which authorizes lesser
    sentence for adequate and special re2sons.

          In cases of gang rape the proof of completed act of rape by each
H accused on the victim is not required. The statutory intention in introducing
              BHUPINDER SHARMA v. STATE (PASAYAT, J.]                    801
                                                   ..
  Explanation (I) in relation to Section 376(2)(g) appears to have been done A
  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 B
  Section 376 IPC. See Promod Mahta and Ors. v. The State of Bihar, AIR
  (1989) SC 1475.

        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 C
  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 D
  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 strait-jacket formula can be imposed.
  In the case at hand, only reason which seems to have weighed with the E
  trial Court is that the present accused appellant had not actually committed
  the rape. That cannot be a ground to waliant lesser sentence; more so in
  view of Explanation (1) 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 attract the minimum
  sentence. Section 34 has been applied by both the trial Court and the High F
  Court, to conclude that rape was committed in furtherance of common
  intention. Not only was the accused-appellant present, but also he was
  waiting for his tum, as 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 G
  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.
  That being the position, this appeal is dismissed.

  B.S.                                                    Appeal dismissed.