In a double whammy to the appellant who was convicted by Trial court for raping a six year old, the Punjab and Haryana High Court not only upheld his conviction, but also ameliorated the error committed by Trial court which had resulted in awarding imprisonment for a lesser term. Justice R.P Nagrath, exercising his Suo Motu Revisional Jurisdiction, held “The charge framed against the appellant clearly stated that the age of the victim was six years, so the conviction was supposed to have been recorded specifically under Section 376 (2) (f) IPC. I, thus, alter the conviction by correctly describing the section as Section 376 (2) (f) instead of Section 376 IPC while dismissing appeal on merits.”
The court upholding the conviction, set aside the sentence imposed by the Trial court and held “the impugned order of sentence passed against the appellant is set aside in suomotu in exercise of revisional jurisdiction of this Court and the matter is remitted to the Sessions Judge, Chandigarh for a fresh decision on the question of sentence in accordance with law.” The Court said it was quite astonishing that even the State has not cared to come up before it seeking enhancement of the sentence.
The background of this case is as follows: The appellant faced trial of the charges under Sections 366-A and 376 of Indian Penal Code (IPC) for kidnapping and raping a six years old girl child. Most crucial evidence against the accused was the testimony given by the victim and her mother. The Trial Court held the appellant guilty of charge under Section 376 IPC and acquitted him of the second charge. The trial Court awarded sentence to appellant to undergo rigorous imprisonment for seven years and to pay fine of ` 50,000/-, in default to further undergo rigorous imprisonment for one year under Section 376 IPC. The appellant preferred appeal before the High Court.
The High Court, following the precedent set in RatansinhDalsukhbhaiNayak vs. State of Gujarat, (2004) 1 SCC 64, held that it is a settled position of law that if a child witness is found competent to depose to the facts and reliable one, such evidence could be the basis of conviction. Coupled with the testimony of the victim was that of her mother, which left no room for suspicion regarding the guild of the accused. To exercise the Suo Moto revisional jurisdiction, the court followed Nadir Khan vs. The State (Delhi Administration), (1975) 2 SCC 406, which had held that- “The High Court, as an effective instrument for administration of criminal justice, keeps a, constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounded duty to suomotu act where there is flagrant abuse of the law. “
Justice Nagrath further held “The legislature has provided minimum sentence in the case of offence of rape with a girl of less than 12 years as in the case of gang rape. If the trial court has not adverted to the mandatory provisions of law, this court should in the circumstances of the case invoke its suomotu revisional jurisdiction to set aside the order awarding the sentence”. The High Court has directed the Trial Court to take a decision on the question of sentence expeditiously and positively within a period of 15 days.
Read the Judgment here.