Kanhai Beragi v. State of Uttarakhand

hearing the shrieks of the victim, PW1, uncle of the victim, PW3, mother of the victim and others reached at the place of incident. As soon as, they reached at the spot, the appellant alongwith M ran away from there. The victim was crying. There was blood all around her clothes. The blood was also on the floor. It is then the victim revealed that the appellant and M had done Galatkaam with her, after removing her underwear. The victim was in hospital, when the report was lodged by the PW1, her uncle on 31.07.2013 at 5:35 PM. Based on which, Case Crime No. 42 of 2013, under Section 376D IPC was lodged against the appellant and others. It may be noted that soon after the incident, on 30.07.2023 itself, the victim was taken to the hospital, where she was examined by PW4 Dr. Sonali Mandal. On internal examination, she observed as follows:- “Internal Examination: Hymen torn at 7O’clock position active bleeding from torn side. Two slides made by taking vaginal swab and two swab for forensic examination. She admitted for treatment under LMO and CMO on duty.”

3. The slides of swab were also taken, but in the supplementary report no spermatozoa was seen in the slides. The Investigating Officer took into custody the blood stained and plain soil 3 from the place of incident and prepared the recovery memo of it. Site plan was also prepared. After arrest of the appellant, his underwear was also taken into custody. After conducting the investigation, charge sheet was submitted against the appellant under Sections 376D, 323 IPC and Section 4 of the Protection of Children From Sexual Offences Act, 2012 (“the Act”)

4. It may be noted at this stage that according to the prosecution case, the appellant and M have committed the offence. The other person’s trial was separated because he was a Child-in- Conflict with Law (“the CIL”). The appellant was also quite young. The Principal Magistrate, Juvenile Justice Board on 07.08.2013, after inquiry, observed that on the date of incident, the appellant was 18 years and 10 days old. Therefore, his trial was conducted accordingly. It may also be noted that in fact the house of M was near the house of the victim, where the victim was playing, just before the incident.

5. On 12.03.2014, charges under Section 376D, 323 and Section 4 of the Act, were framed against the appellant. On

05.05.2015, the charge under Section 4 of the Act was amended to that of under Section 6 of the Act. Subsequently, on 27.07.2015, additional charge under Section 366 IPC was framed against the appellant. The appellant denied the charges and claimed trial.

6. In order to prove its case, prosecution examined, eight witnesses, namely, PW1 uncle of the victim, PW2, the victim, PW3 mother of the victim, PW4 Dr. Sonali Mandal, PW5 Head Constable Police Anil Kumar Pant, PW6 Rakesh Vishwas, PW7 Sub Inspector, Mahendra Prasad and PW8 Sub Inspector, Anil Arya. 4

7. After prosecution evidence, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to him, he has been falsely implicated. He did not commit any wrong.

8. After hearing the parties, by the impugned judgment and order, the appellant has been acquitted of the charge under Section 323 IPC framed against him, but has been convicted and sentenced, as stated hereinbefore. Aggrieved, the appellant preferred the instant appeal.

9. Heard learned counsel for the parties and perused the record.

10. Learned counsel for the appellant submits that the appellant has nothing to say on merits, but the sentence is excessive. He submits that under Section 376D IPC, the appellant has been sentenced to undergo imprisonment for the remainder of the appellant’s natural life with a fine of Rs.50,000/- which is excessive. It is submitted that in view of the attending circumstances, the sentence needs to be reduced.

11. On the other hand, learned State counsel submits that the prosecution has been able to prove its case beyond reasonable doubt. He submits that the sentence imposed on the appellant is not harsh.

12. No argument has been raised on merits, but still this Court would examine the evidence so as to arrive at a conclusion, as 5 to whether, the impugned judgment and order insofar as, the conviction of the appellant is concerned, is in accordance with law.

13. PW2 is the victim. She is a young girl of 10 years. The court first examined her to assess her understanding and competence and once satisfied, the victim was examined. According to the victim, on 30.07.2013, at about 6:30 in the evening, she had gone to play in her neighbour’s house, where the appellant was also present. The victim was there alongwith one of her friends. After some time, her friend left the place. The appellant took the victim in the M’s house and there they removed her underwear and the appellant inserted his penis into her vagina. At that time M muffled her mouth. The victim bled from her vagina. She felt a lot of pain. She cried. Upon her raising alarm, the appellant left the place of incident. Her cousin, mother and grand-mother reached at the place of incident. They took her to hospital. The victim has also proved her statement recorded under Section 164 of the Code, which is Ex. A2. In her statement under Section 164 of the Code also, the victim has stated similarly about the incident, as told by her in the court.

14. PW1 is the uncle of the victim, who reached at the spot upon hearing the cry and shrieks of the victim. He has supported the statement of PW2, the victim. According to him, when they reached at the place of incident, which was the room of M, they saw that the appellant and M were running from there. They went inside the room and saw the victim crying and lying on the floor. There was blood on her clothes and on the floor. The victim on being asked told that when she was playing outside, the appellant and M took her inside the room, removed her underwear and did Galatkaam with her. According to this witness, he immediately took the victim to the Police Station in 6 his motorcycle. Since, the condition of the victim was critical, the police sent them to the Primary Health Centre for medical examination alongwith a lady constable. This fact is corroborated by Ex. A3, the medical examination report of the victim conducted on

30.07.2013 at 10:30 P.M., which records that the victim was brought for medical examination by the lady constable of Police Station Dineshpur. According to the PW1, uncle of the victim, the victim was admitted in District Hospital, Rudrapur. When she recovered slightly, a report was lodged by the PW 1 at the police station which is Ex. A1.

15. PW3 is the mother of the victim. She has also supported the statements of the PW2 the victim and PW1 uncle of the victim.

16. PW4 Dr. Sonali Mandal has conducted medical examination of the victim on 30.07.2013 at 10:30 P.M. She has proved the medical examination report Ex. A3 and supplementary report Ex. A4. The observation made by the doctor has been quoted hereinbefore. The doctor has found that the hymen was torn and there was fresh bleeding.

17. PW5 Head Constable Police, Anil Kumar Pant has recorded chik FIR Ex. A5 and he also made entry in the General Diary. The extract of which is Ex. A6.

18. PW6 Rakesh Vishwas is the witness of recovery of the plain and blood stained soil. He has proved the recovery memo Ex. A7.

19. PW8 Sub Inspector, Anil Arya has conducted investigation in the matter, prepared site plan Ex. A9 and arrested the 7 appellant. He also took photographs of the place of the incident. He has stated about them. According to this witness, he has also taken into custody the underwear of the appellant and M and prepared the recovery memo thereof Ex. A13. According to this witness, M was a CIL, but the appellant was found adult. According to PW8, he has also taken into custody the birth certificate of the victim Ex. A14, which records her date of birth as 01.03.2004, which means on the date of incident, she was 9 years old.

20. PW7 Sub Inspector, Mahendra Prasad is the final Investigation Officer. He has submitted charge sheet in the case.

21. No arguments have been raised on the conviction of the appellant.

22. In the instant case, PW2, the victim was a young girl of nine years when the incident took place. She has stated as to what had happened to her. She was, in fact, playing with the appellant and M in the house of M. She was alongwith one of her friends. But, when her friend left, she was taken inside the room by the appellant and M, where she was raped by the appellant. There was profuse bleeding. She was immediately taken to the police station, from there she was taken to hospital. The doctor noted injury on her vagina. Her hymen was torn and bleeding fresh. Her statement is supported by the statements of PW1 her uncle and PW3, her mother. Both of them had reached at the place of incident soon after the incident. They, in fact, have seen the appellant running from the place of incident. 8

23. The statements of all these three witnesses are further supported by the medical evidence i.e. by the evidence of PW4 Dr. Sonali Mandal.

24. The statement of PW2, the victim is fully reliable statement. This Court, in fact, is of the view that the sole testimony of this witness is enough for the conviction of the appellant. In the instant case, it finds support from the evidence of PW1, her uncle and PW3, her mother as also from the evidence of PW4 Dr. Sonali Mandal. Therefore, this Court is of the view that the prosecution, in fact, has been able to prove beyond reasonable doubt the charge under Section 366 and 376 D IPC and Section 6 of the Act. Insofar as, the conviction of the appellant is concerned, it does not require any interference.

25. The question of sentence gains importance. The appellant has been convicted to ten years rigorous imprisonment with a fine of Rs.20,000/- under Section 366 IPC and under Section 376D IPC, he has been sentenced to imprisonment for the remainder of his natural life.

26. Section 376 D IPC is as follows:- “376-D. Gang rape.-Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.” 9

27. A bare reading of Section 376D IPC reveals that the minimum sentence under this section is 20 years and maximum is imprisonment for remainder of that person’s natural life. What should be the guiding factor for imposing adequate sentence? In fact, sentencing itself is a task which requires a lot of deliberations. Sentencing may not be mechanically done.

28. In the case of Gopal Singh Vs. State of Uttarakhand, (2013) 7SCC 545, the Hon’ble Supreme Court discussed the concept of just punishment and in para 18 observed as follows:- “18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect — propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value- based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On 10 such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.”

29. In case of Raj Bala Vs. State of Haryana and others, (2016) 1 SCC 463, the Hon’ble Supreme Court in para 16 observed as follows:- “16. A court, while imposing sentence, has a duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the socio-cultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is the “finest part of fortitude” is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective.”

30. In the case of State of Madhya Pradesh Vs. Udham and others, (2019) 10 SCC 300, the Hon’ble Supreme Court has discussed the crime test, criminal test and comparative proportionality test. In 11 paras 12 and 13 of the judgment, the Hon’ble Supreme Court observed as follows:- “12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).

13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach.”

31. The crime and criminal tests, the proportionality test and mitigating the aggravating circumstances, all are to be taken together.

32. In the instant case, the appellant is not a criminal. He was playing with the victim on the fateful day. The appellant was alongwith M, who was a CIL. The appellant himself was 18 years, 10 days old on the date of incident. Once the friend of the victim left, according to the prosecution, the appellant alongwith M, took the victim inside the room of M and raped her. The appellant did not have any criminal background. He was young boy of 18 years 10 days on the date of incident. Taking this and other attending factors into consideration, this Court is of the view that it is not a case in which 12 the maximum sentence ought to have been imposed under Section 376 D IPC. In fact, in this case, minimum sentence prescribed for the offence under Section 376 D IPC is required to be awarded.

33. In view of the foregoing discussion, this Court is of the view that the sentence awarded to the appellant may be modified and the appellant may be sentenced as under:- (i) Under Section 376D IPC - rigorous imprisonment for 20 years. (ii) Under Section 366 IPC- to undergo rigorous imprisonment for a period of 10 years. (iii) The fine imposed against the appellant shall remain unaltered.

34. Accordingly, the appeal is partly allowed.

35. The conviction of the appellant under Section 376D, 366 IPC and Section 6 of the Act is upheld.

36. The sentence imposed on the appellant is modified as below:- (i) Under Section 376D IPC - rigorous imprisonment for 20 years. (ii) Under Section 366 IPC- to undergo rigorous imprisonment for a period of 10 years. (iii) The fine imposed against the appellant shall remain unaltered. The amount of fine shall be paid to the victim as directed in the impugned judgment and order. 13

37. The impugned judgment and order is modified to the extent, as indicated above.

38. The appellant is on bail. Let he be taken into custody to serve out the remaining sentence.

39. Let a copy of this judgment along with the trial court record be sent to the court concerned. (Alok Mahra J.) (Ravindra Maithani, J.) 09.09.2025

09.09.2025 Jitendra