{"id":90896,"date":"2000-04-25T00:00:00","date_gmt":"2000-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kamal-kishore-vs-state-of-himachal-pradesh-on-25-april-2000-2"},"modified":"2017-06-07T20:21:14","modified_gmt":"2017-06-07T14:51:14","slug":"kamal-kishore-vs-state-of-himachal-pradesh-on-25-april-2000-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kamal-kishore-vs-state-of-himachal-pradesh-on-25-april-2000-2","title":{"rendered":"Kamal Kishore vs State Of Himachal Pradesh on 25 April, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Kamal Kishore vs State Of Himachal Pradesh on 25 April, 2000<\/div>\n
Author: Thomas<\/div>\n
Bench: K. T. Thomas, Doraiswamy Raju, S.N. Variava<\/div>\n
           CASE NO.:\nAppeal (crl.) 1332  of  1999\n\n\n\nPETITIONER:\nKAMAL KISHORE\n\n\tVs.\n\nRESPONDENT:\nSTATE OF HIMACHAL PRADESH\n\nDATE OF JUDGMENT:\t25\/04\/2000\n\nBENCH:\nK. T. THOMAS, DORAISWAMY RAJU & S.N. VARIAVA\n\n\n\n\nJUDGMENT:\n<\/pre>\n
Thomas J.\n<\/p>\n
L…I…T…….T…….T…….T…….T…….T…….T..J<\/p>\n
    The\t victim\t of a rape had just crossed single digit  in
\nher  age.   So tender was that lass when she  was  ravished.
\nBut the damage caused to her genitalia was woeful.  The girl
\nnarrated  the  story  before Ms.   Kiran  Agarwal,  Sessions
\nJudge,\tUna  (Himachal Pradesh) who tried the case, but\t the
\nstory  told  by her did not impress the Sessions  Judge\t and
\nhence  her  testimony  was jettisoned and the  man  who\t was
\narraigned  as  the rapist exonerated.  However,\t a  Division
\nBench  of the High Court of Himachal Pradesh dissented\tfrom
\nthe  said verdict and convicted him under Section 376 of the
\nIndian\tPenal Code.  Nonetheless, the Division Bench was not
\ndisposed to award the minimum sentence prescribed by law for
\nthe  offence on the premise that the accused who was  twenty
\nfive  “might  have  settled  in life.”\tSo  the\t High  Court
\ndirected  him  to  undergo rigorous imprisonment  for  three
\nyears and to pay a fine of Rupees ten thousand.\n<\/p>\n
    The verdict of the High Court did not satisfy both sides\n<\/p>\n
– the accused and the State of Himachal Pradesh.  The former
\nbecause\t of  the reversal of the order of acquittal and\t the
\nlatter\tbecause of the inadequacy of the sentence.  So\tboth
\nsides  filed  separate appeals by special leave.   We  heard
\nboth appeals together.\n<\/p>\n
    The\t case  put  forward  against   the  accused  can  be
\nsummarised in the following lines:  –\n<\/p>\n
    Shishna  Devi (PW2) is the eldest of the three  children
\nof  Sher Singh and his wife Kunta Devi.\t During the year  of
\noccurrence  Sheshna  Devi  was studying in  the\t 4th  class.
\nAccused\t Kamal\tKishore\t was running a\tflour  mill  located
\nadjacent  to his house.\t The incident happened on 21.5.1989.
\nShishna Devi after taking her evening meals proceeded to the
\nhouse of her aunt, but on the way she stepped into the house
\nof  the accused presumably for viewing a TV film.  Either at
\nthe  end of the film or a little before it Shishna Devi\t was
\nasked  by  the\tmother\tof accused  to\tfetch  some  cooking
\nutensils  from the flour mill.\tSo she went and brought\t the
\nutensils  to the kitchen.  It was right time and the accused
\nfollowed  her upto the kitchen.\t He caught hold of her\tfrom
\nbehind, muffled her mouth, lifted her up and took her to the
\nflour  mill and after dragging her to a side room,  stripped
\nher off and he committed rape on her.\n<\/p>\n
    When  the  wearing apparels of Shishna Devi\t became\t wet
\nwith  blood the accused brought a bucket of water and washed
\nthe  dress.   He threatened her not to reveal it to  anybody
\nelse.\tThe  house  of her aunt (Kaushalya Devi –  PW4)\t was
\nlocated\t close by and Shishna Devi instead of going back  to
\nher  own house went to that aunt’s house and spent the night
\nthere.\n<\/p>\n
    Next  morning  Shishna Devi returned home.\t Her  mother
\nKunta  Devi (PW-3) noticed blood stains on her dress and she
\nenquired  about the cause of it.  Shishna Devi then narrated
\nthe  incident to her mother.  Her husband (father of Shishna
\nDevi) was not in the house then as he had gone for his work.
\n(He  is\t a daily-wage earning labourer).  Next day  when  he
\nreturned home the story was narrated to him.  On hearing the
\nsame  he wanted to report the matter to the police and hence
\nhe  took his wife and Shishna Devi to Bangana police station
\nand lodged Ex.\tPC complaint.\n<\/p>\n
    Shishna Devi was examined by PW 14 Dr.  JS Kanwar of the
\nIndira\tGandhi\tMedical\t College  (Shimla)  at\t4.30  pm  on
\n23.5.1989.   The doctor noted the following features on\t her
\nperson.\n<\/p>\n
    1.\t Congestion (contusion) of labia minora both  sides.\n<\/p>\n
    2.\t  Tear\tin  the\t  perennial  fourchete\tin  mid-line
\ninvolving vaginal mucosa and perineal skin (3\/4th cm long in
\nskin).\t Swelling  and\ttenderness noted at that  site.\n<\/p>\n
    3.\tCongestion and oedema of vestibule around Urethra.\n<\/p>\n
    4.\t Hymen\tshowed lacerations on the left side.   There
\nwas oedema and tenderness.  It was bleeding on touch.\n<\/p>\n
    According to PW-14, the injuries could probably had been
\nsustained  24-48 hours prior to his examination of the girl.
\nThe  doctor collected the swab from the posterior fornix  of
\nthe  vagina,  and  that along with the wearing\tapparels  of
\nShishna\t Devi  were sent for chemical tests.  The result  of
\nsuch test showed spermatozoa and semen.\n<\/p>\n
    The\t aforesaid materials are sufficient to show,  beyond
\nany  spec of doubt, that Shisna Devi was sexually ravaged by
\na man.\tHence the only question which fell for consideration
\nis whether it was the accused who did the act on that little
\ngirl.\tNo  question of consent of the victim need  vex\t the
\njudicial  mind in this case as the age of Shishna Devi\tthen
\nwas far distal from the age of 16.\n<\/p>\n
    For\t the narrowed compass of consideration in this\tcase
\ni.e.   whether\taccused\t was the rapist, the  most  decisive
\nevidence  is the testimony of the victim herself.  None else
\nwill  be more competent than her to tell the court as to who
\nraped  her.   There is no scope for doubting that she  would
\nnot have seen the person who seduced her.  PW-2 Shishna Devi
\npointed\t at the accused in unmistakable terms as the  person
\nwho ravaged her.  On that aspect there was no discrepancy in
\nthe  evidence.\tBut the Sessions Judge went into the details
\nof  the\t occurrence and after dwelling on  certain  features
\nthereof the case was dubbed as highly improbable.\n<\/p>\n
    Learned  Sessions Judge pointed out from the evidence of
\nPW-2  that the time of her visit to the house of the accused
\nwas  6\tP.M.  for viewing the TV film, and then referred  to
\nthe  evidence of her aunt Kaushalya Devi (PW-4) that Shishna
\nDevi  reached her house at 11 P.M.  The Sessions Judge\tmade
\nthe following comment on that aspect:\n<\/p>\n
    “Now it remains a mystery where the prosecutrix remained
\nupto  11  p.m.\t Even  if the watching of the  film  on\t the
\ntelevision  by\tthe prosecutrix in the house of accused\t for
\nsome  time  is construed to be one hour or two hours,  10-15
\nminutes\t in  bringing the utensils from the flour  mill\t and
\nhalf  an  hour\tin the process when  the  accused-petitioner
\ndragged\t her from the kitchen to the room by the side of the
\nflour  mill  and  raping her and then bringing a  bucket  of
\nwater  with  which  she washed her shirt,  even\t then  there
\nremains\t a considerable period of about two hours till 11 O’
\nClock at night when the prosecutrix reached the house of her
\naunt  Kaushlya Devi where she slept for the night.  Thus the
\nunexplained time gap makes the deposition of the prosecutrix
\nhighly improbable.”\n<\/p>\n
    The Division Bench of the High Court, after referring to
\nthe evidence on that aspect, has observed thus:\n<\/p>\n
    “We\t do not find any unexplained time gap as held by the
\nSessions  Judge.   Moreover, the prosecutrix and her  mother
\nhad  not  given\t the time when the prosecutrix\treached\t the
\nhouse  of her aunt Kaushlya Devi.  It is only Kaushlya\tDevi
\nwho has stated that the prosecutrix had come to her house at
\nabout  11 P.M.\twhen she was asleep.  In the absence of\t her
\nfurther\t statement that she has noticed the time as 11\tP.M.
\nin  her\t wrist\twatch or in any other watch  or\t clock,\t the
\npossibility  cannot be ruled out that she gave the time only
\nas  per\t her estimate and the margin of error might be\tfrom
\nhalf an hour to one hour.”\n<\/p>\n
    After   referring  to  certain   other  details  of\t the
\noccurrence  the\t Sessions Judge expressed her  inability  to
\nbelieve the story narrated by Shishna Devi and then observed
\nthat  “there  are  a  few important  missing  links  in\t the
\nprosecution  case  and\tno  attempt has\t been  made  by\t the
\ninvestigating officer to collect those links.” As an example
\nthe  trial  judge pointed out that “none from the family  of
\nthe  accused  or the locality has been examined in order  to
\nprove  the  presence of the prosecutrix in the house of\t the
\naccused\t on  the evening of the occurrence for watching\t the
\ntelevision.”  But the High Court totally disagreed with\t the
\nsaid  reasoning and stated:  “It is too much to expect\tthat
\nany  member  of\t the family of the respondent  or  from\t the
\nhouses\tin  the\t neighbourhood would appear  as\t witness  in
\nsupport\t of  the statement to the prosecutrix that  she\t was
\npresent\t in  the house of the respondent for  watching\tTV”.
\nThe  learned  Judges  pointed out that\tprosecutrix  is\t the
\ndaughter  of a poor daily-wage labourer, whereas the accused
\nis the son of a proprietor of a flour mill and landlord.\n<\/p>\n
    We\thave no doubt that the Sessions Judge had reached an
\nerroneous  conclusion  by  approaching the question  from  a
\nwrong  angle.\tThe  evidence of the adolescent girl  –\t the
\nvictim of rape, as duly corroborated by the testimony of her
\nmother\tand  aunt, and adequately confirmed by\tthe  medical
\nevidence,   had\t conclusively  established   that  she\t was
\nsubjected  to ravishment by the accused and none else.\t The
\nreasons\t adverted to by the High Court are far sturdier\t and
\nstronger  than those suggested by the Sessions Judge to rely
\non.   The Division Bench of the High Court has thus  rightly
\nreversed  the  order of acquittal and convicted the  accused
\nunder Section 376 of the IPC.\n<\/p>\n
    While  considering the sentence we have to bear in\tmind
\nthat  the  offence  was committed after the  enforcement  of
\nCriminal  Law  Amendment Act (CLAA) No.43 of 1983.   So\t the
\nprovision  prescribing more rigorous sentence must apply  if
\nthe  offence falls within the purview of sub-section (1)  of
\nSection\t  376,\tand  then  he\t“shall\tbe   punished\twith
\nimprisonment  of  either description for a term which  shall
\nnot  be less than seven years”.\t If the offence falls  under
\nsub-section  (2)(f)  (commits rape on an woman when  she  is
\nunder  12  years  of  age)  the offender  is  liable  to  be
\n“punished  with rigorous imprisonment for a term which shall
\nnot  be\t less than ten years but which may be for  life\t and
\nshall also be liable to fine.”\n<\/p>\n
    The\t question of the age of Shishna Devi is,  therefore,
\nimportant  in this area.  If she was below the age of 12, on
\nthe  date  of  occurrence  the\tminimum\t sentence  would  be
\nrigorous imprisonment for 10 years.  PW-14 Dr.\tJ.S.  Kanwar
\nhas fixed up the age of PW-2 Shishna Devi as 10 years on the
\ndate  of  her  examination.  This was testified\t to  by\t the
\ndoctor\ton the strength of clinical examination conducted by
\nhim.   But  the doctor did not conduct\teither\tossification
\ntest  or any other pathological tests to reach at least\t the
\napproximate  age of the victim.\t So his assessment regarding
\nage is based on fragile premises.\n<\/p>\n
    According to Ext.PH (School Certificate of Shishna Devi)
\nher  date  of birth is 11-11-1978, which means that  on\t the
\ndate  of occurrence she was below 11 years of age.  But Ext.
\nPH  lost its credibility when Ext.PO (the Certificate issued
\nby the Panchayat) was produced in which the date of birth of
\nPW-2  is  shown as 24-11-1978.\tBut the evidence  of  PW-2’s
\nmother\tKunta Devi (PW-3) shows that Shishna Devi was  12-13
\nyears old.  The Sessions Judge found her age as put forth by
\nKunta  Devi, the mother of PW-2, and the High Court did\t not
\ninterfere  with that.  Therefore, we have to follow the said
\nfinding\t on fact.  Even then, the sentence prescribed  under
\nsub-section  (1) of Section 376 of the IPC has stipulated  a
\nminimum limit that it “shall not be less than 7 years”.\n<\/p>\n
    However,  learned counsel for the accused made a serious
\nendeavour  to  bring the case within the proviso to  Section
\n376 IPC which reads thus:\n<\/p>\n
    “Provided  that the court may, for adequate and  special
\nreasons\t to be mentioned in the judgment, impose a  sentence
\nof imprisonment for a term of less than seven years.”\n<\/p>\n
    As\tpointed out earlier, the Division Bench of the\tHigh
\nCourt  reduced\tthe  sentence from the minimum limit,  on  a
\npremise\t that “in view of the fact that the occurrence is of
\n21.5.1989  when\t he  was 25 years of age and he\t might\thave
\nsettled in life”.\n<\/p>\n
    In\torder to support the said reasoning, learned counsel
\nfor  the  accused relied on the following observations of  a
\ntwo  Judge  Bench of this Court in the State of\t Punjab\t vs.
\nGurmit\tSingh and ors.<\/a>\t{1996 (2) SCC 384}:  “So far as\t the
\nsentence  is  concerned,  the  court has to  strike  a\tjust
\nbalance.   In  this  case  the\t occurrence  took  place  on
\n30.3.1984  (more  than 11 years ago).  The respondents\twere
\naged between 21-24 years of age at the time when the offence
\nwas  committed.\t  We are informed that the respondents\thave
\nnot  been  involved  in any other offence  after  they\twere
\nacquitted by the trial court on 1.6.1985, more than a decade
\nago.   All  the respondents as well as the prosecutrix\tmust
\nhave by now got married and settled down in life.  These are
\nsome of the factors which we need to take into consideration
\nwhile  imposing an appropriate sentence on the respondents.”
\nBut  recently in the State of Karnataka vs.  Krishnappa<\/a>\t {JT
\n2000  (3)  SC 516} a three Judge Bench of this Court,  after
\nreferring  to  the above decision, restored the sentence  of
\nimprisonment  for 10 years fixed by the trial court for\t the
\noffence\t under\tSection 376 of the IPC.\t The victim in\tthat
\ncase  was  aged 7-8 years.  The High Court in that case\t had
\nreduced\t the sentence of imprisonment to 4 years.  Dr.\tA.S.
\nAnand,\tCJI,  who  authored the judgment of the\t Bench,\t had
\nstated thus:\n<\/p>\n
    “The  High Court justified the reduction of sentence  on
\nthe  ground that the accused-respondent was `unsophisticated
\nand  illiterate citizen belonging to a weaker section of the
\nsociety’;   that  he was `a chronic addict to drinking’\t and
\nhad  committed\trape  on  the  girl  while  in\ta  state  of
\n`intoxication’\tand  that his family comprising of  `an\t old
\nmother,\t wife and children’ were dependent upon him.   These
\nfactors,  in  our opinion, did not justify recourse  to\t the
\nproviso to Section 376(2) IPC to impose a sentence less than
\nthe  prescribed minimum.  These reasons are neither  special
\nnor  adequate.\tThe measure of punishment in a case of\trape
\ncannot\tdepend\tupon the social status of the victim or\t the
\naccused.   It  must depend upon the conduct of the  accused,
\nthe  state and age of the sexually assaulted female and\t the
\ngravity\t of the criminal act.  Crimes of violence upon women
\nneed  to  be severely dealt with.  Socio-  economic  status,
\nreligion,  race, caste or creed of the accused or the victim
\nare   irrelevant   considerations  in\tsentencing   policy.
\nProtection  of\tsociety\t and deterring the criminal  is\t the
\navowed\tobject of law and that is required to be achieved by
\nimposing an appropriate sentence.  The sentencing courts are
\nexpected  to  consider all relevant facts and  circumstances
\nbearing\t on the question of sentence and proceed to impose a
\nsentence commensurate with the gravity of the offence.”\n<\/p>\n
    This Court in the said decision noted that “there are no
\nextenuating  or\t mitigating circumstances available  on\t the
\nrecord\twhich  may justify imposition of any  sentence\tless
\nthan the prescribed minimum to the respondent.”\n<\/p>\n
    As\tParliament  has disfavoured the sentence to  plummet
\nbelow  the  minimum  limit prescribed  Parliament  used\t the
\nexpression  “shall not be less than” which is peremptory  in
\ntone.\tThe court has, normally, no discretion even to award
\na   sentence  less  than   the\tsaid  minimum.\t Nonetheless
\nParliament  was\t not oblivious of certain  very\t exceptional
\nsituations   and   hence  to   meet  such   extremely\trare
\ncontingencies  it made a departure from the said strict rule
\nby  conferring\ta  discretion on the court  subject  to\t two
\nconditions.   One  is  that there should  be  “adequate\t and
\nspecial\t reasons”, and the other is that such reasons should
\nbe  mentioned in the judgment.\tThe expression “adequate and
\nspecial\t reasons”  indicates that it is not enough  to\thave
\nspecial\t reasons, nor adequate reasons disjunctively.  There
\nshould\tbe  a conjunction of both for enabling the court  to
\ninvoke\tthe discretion.\t Reasons which are general or common
\nin  many cases cannot be regarded as special reasons.\tWhat
\nthe  Division  Bench  of  the  High  Court  mentioned  (i.e.
\noccurrence  took  place 10 years ago and the  accused  might
\nhave settled in life) are not special to the accused in this
\ncase or to the situations in this case.\t Such reasons can be
\nnoticed\t in  many  other  cases and  hence  they  cannot  be
\nregarded as special reasons.  No catalogue can be prescribed
\nfor adequacy of reasons nor instances can be cited regarding
\nspecial reasons, as they may differ from case to case.\n<\/p>\n
    As\tthe  reasons advanced by the Division Bench  of\t the
\nHigh  Court  could not be supported as adequate and  special
\nreasons\t learned  counsel  for\t the  accused  projected  an
\nalternative  profile in order to support his contention that
\nthere  are  adequate and special reasons.  He submitted\t the
\nfollowing:   Shishna  Devi(PW2)\t has since been\t married  to
\nanother\t person\t and  she is now mother of children  and  is
\nwell-settled  in  life.\t  The accused was aged 23  when\t the
\noffence\t was  committed\t and now he is 34,  but\t he  remains
\nunmarried.   He says that on two occasions his marriage\t had
\nreached\t the stage of engagement but both had to be  dropped
\noff  before reaching the stage of marriage due to the social
\nstigma\tand  disrepute which surrounded him.  These are\t the
\nreasons\t which he advanced for extending the benefit of\t the
\nproviso.\n<\/p>\n
    Those  circumstances  pleaded  by him  are\tnot  special
\nreasons for tiding over the legislative mandate for imposing
\nthe  minimum sentence.\tWe, therefore, enhance the  sentence
\nfor  the  offence under Section 376 I.P.C.  to\timprisonment
\nfor 7 years.\n<\/p>\n
    The\t long time lag which elapsed subsequent to the\tdate
\nof offence and the fact that the prosecutrix got married and
\nis  well  settled  in  life and that she is  now  mother  of
\nchildren  –  all  these\t things which  happened\t during\t the
\nintervening  period, may be factors for consideration by the
\nexecutive  or  constitutional  authorities if they  have  to
\ndecide\twhether remission of the sentence can be allowed  to
\nthe  accused.\tWe  make it clear that we have\timposed\t the
\nenhanced  sentence on him without prejudice to any motion he
\nmay  make  for\tsuch remission of the  sentence\t before\t the
\nauthorities concerned.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Kamal Kishore vs State Of Himachal Pradesh on 25 April, 2000 Author: Thomas Bench: K. T. Thomas, Doraiswamy Raju, S.N. Variava CASE NO.: Appeal (crl.) 1332 of 1999 PETITIONER: KAMAL KISHORE Vs. RESPONDENT: STATE OF HIMACHAL PRADESH DATE OF JUDGMENT: 25\/04\/2000 BENCH: K. T. THOMAS, DORAISWAMY RAJU & S.N. VARIAVA JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-90896","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nKamal Kishore vs State Of Himachal Pradesh on 25 April, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kamal-kishore-vs-state-of-himachal-pradesh-on-25-april-2000-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kamal Kishore vs State Of Himachal Pradesh on 25 April, 2000 - 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