ANY INSIGHTS ON THIS?
Prosecution case in nutshell is as follows :-
1. Ms. Shalini aged about 20 years, the complainant, was a nursing
student and was living in a Government Women’s Nursing College Hostel
at Jaipur. On 30th June, 2009 while the complainant came out of her
room in the hostel on the front lawn of the hostel, the main accused, Shri
Bhawarlal, aged about 30 years a Chowkidar/night watchman in the
hostel and Shri Tribhuvan, aged about 18 years, a spoilt multimillionaire
student, kidnapped her at about 11.00 P.M. and forcibly carried her in
the chowkidar’s room behind the hostel, a lonely place, where 2 students
namely, Mohan, aged 22 years, son of a local M.L.A. and Sohan, aged 20
years, close relation of a Central Minister, were drinking heavy liquor. As
the summer vacation was to commence from 1.6.2009, hardly 3-4
students were in the Hostel with a capacity of 100 inmates. The lady
Warden had left for her home and no other employee was there. The
complainant’s mouth and body was tied with cloth and Bhanwarlal had
a knife in his hands. She was given some intoxicant with drugs, forcibly
put on the mattress and was raped one by one by Tribhuwan, Mohan,
Sohan and Bhanwarlal. After gang rape, in a naked (unconscious)
condition, the complainant was thrown outside the backside of the
boundary wall of the hostel at about 4.00 A.M.
2. At about 5.00 AM, the complainant came to little senses and was
noticed by certain passers by. She was carried to the nearest Police
Station being Crime No. 966 of 2009, where FIR could be lodged with
much difficulty and on intervention of Police Commissioner. Case under
Sections 363 and 376(2)(g) was registered against the four accused.
Wide publicity was given by the print and electronic media in local and
national papers and on T.V. The Complainant was admitted in the
Government Hospital and was released after two weeks. The Chowkidar,
Bhawar Lal and other three accused could be traced out heavily drunk
sleeping in the Chowkidar’s room.
2.1. A Panchnamah was prepared. Exhibit-A-1 contains the list of
articles confiscated by the Investigation Officer viz torn out Kurta,
Payjama, panty, hawai chappal, non-vegetarian food items, tumblers,
liquor bottles, drugs, cigarettes, hukka with tobacco and Matchbox,
other intoxicants, sharp knife weapon, Cash Rs. 10,000/- + Rs. 50,000/-
etc. Four mobile cells of the 4 accused were found and seized. On
checking of call list it was found (i) there had been call in between the 4
accused in the evening at about 7.00 P.M. and (ii) two missed calls were
by Tribunvan to the Complainant on 29.5.2009. Site map was prepared
which is Exhibit A-2. A classic car Mercedes registered in the name of
father of Tribhuvan and the driving licence of Tribhuvan were found
apart from one motor bike in the Campus. In the Car one bottle of
foreign liquor was also found with bed sheets, carpet, cosmetics, cigars
etc. The complainant was required to undergo medical examination
within 12 hours. The Medical Jurist in the report stated that blood was
seen in the v**gina and hymen of the complainant was found to have
been ruptured and damaged. The accused were also required to undergo
‘Sperm Detection Test’ and the report corroborated the claim of the
complainant. Presence of semen and human spermatozoa on the bed
sheets of the mattress were noticed. Exhibit A-3 are the photographs of
the Chowkidar’s room with its contents.
3. A case u/s. 376(2)(g) read with sec. 364A of Indian Penal Code was
registered against the 4 accused. After investigation, the three accused
were arrested. Shri Tribhuvan was absconding and was later arrested.
After filing of the charge sheet, the case was submitted to the Court of
Sessions. Shri Tribhuvan and Shri Sohan were released on bail by the
High Court. The Complainant sought death sentence for Bhanwarlal and
damages of Rs. 20 lacs under Section 357 and 357A of the Criminal
Procedure Code with costs.
4. The prosecutor, (PW-1) stood to the test of cross examination. Shri
Ramlal (PW-2) and Shri Shyamlal (PW-3) who were passing through the
road on the back side of the hostel found the complainant in naked
condition and stated about injury on the private parts, abrasions and
bruises on the breasts and cheeks and oozing of the blood and that she
was in a serious condition. Photographer (PW-4) stated as to
photographs and his observations. Medical Jurist (PW-5)confirmed his
report and the gang rape mercilessly done. Shri Shyamlal who had
drawn Spot map (PW-6) was examined. They further stated that gang
rape by the 4 accused had dehumanizing effect on the victim. The
witnesses were cross examined and stood to the testimony.
5(i) Shri Tribuvan accused claimed that he is a minor. He produced
his horoscope, birth certificate and matriculation certificate wherein he
was found as having completed 17 years and 10 months on the date of
event. As per Medical Certificate he was declared above 18 years. He
confessed that with the assistance of Bhanwarlal on payment of Rs.
5,000/- to Bhanwarlal and Rs. 50,000/- to one other student of the
Hostel, he had carried her to a five star hotel for the whole night. He also
stated that he had been frequently visiting the Hostel with the
permission of the Warden and that he spotted the Complainant in mini
skirt (western dress) with high heels, cosmetics and was allured of her
charming personality. He asked Bhanwar Lal to manage the Complainant
on payment of Rs. 10,000/- for him and Rs. 50,000/- for the
Complainant. He smilingly stated that he had inter-course with the
complainant gracefully, she was in proper senses and co-operative. She
was misused by other accused. He was declared as minor.
(ii) Shri Mohan claimed that he was out of the town, came to
his house at about 11.00 P.M. and had not gone to the room of
Bhanwarlal. He denied the charge. However, the Motor bike is
registered in his name. He failed to prove his denial.
(iii) Shri Sohan corroborated the rape story but claimed that he
was persuaded by Tribhuvan to have forcible inter-course for his
pleasure. Shri Tribhuvan was watching the action.
(iv) Shri Bhanwarlal confessed guilty but stated that he had to
co-operate and plan as Tribhuvan gave him Rs. 10,000/- and also
persuaded for forcible rape. He had been arranging drink’s party earlier
also. He admitted receipt of Rs. 10,000/- for him and Rs. 50,000/- for
the Complainant. He told that he earlier gave offer to the complainant,
but she categorically refused to succumb to his offer for Tribhuvan, a
well built person with charming personality and lot of fortune.
6. The Sessions Judge, Jaipur by judgment dated 30.12.2010
convicted the accused after holding that the prosecution has proved its
case fully supported by independent witnesses and medical evidence on
record apart from the Sperm Detection Test stained clothes, mattress
with blood, drugs, intoxicants, cash etc. The Sessions Judge Court
considering the defence evidence convicted the accused as follows :-
(i) Shri Bhawar Lal, Chowkidar to undergo rigorous
imprisonment for life;
(ii) Shri Mohan, student to undergo rigorous imprisonment for a
period of 10 years;
(iii) Shri Sohan, student to undergo simple imprisonment for a
period of 7 years; and
(iv) Shri Thribuvan, having been proved as minor to be dealt with
separately under the Juvenile Justice (Care and Protection of children)
Act, 2000.
(v) Damages were awarded of Rs. 10 lacs.
6.1. The Session’s Judge further observed that 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 a deep sense
of some deathless shame. He also stated that the facts given
circumstances in each case, the nature of the crime, the manner in
which it was planned and committed, the motive for commission of the
crime, the conduct of the accused, the nature of weapon used and all
other attending circumstances are relevant facts which would enter into
the area of consideration and it will be a mockery of justice to permit
these accused to escape the extreme penalty of law when faced with such
evidence and such cruel acts. To give the lesser punishment for the
accused would be to render the justicing system of this country suspect.
The common man will lose faith in courts. The nature and gravity of the
crime and not the criminal, which are germane for consideration of
appropriate punishment in a criminal trial. The court will be failing in
its duty if appropriate punishment is not awarded for a crime which has
been committed not only against the individual victim but also against
the society to which the criminal and victim belong. The punishment to
be awarded for a crime must not be irrelevant but it should conform to
and be consistent with the atrocity and brutality with which the crime
has been perpetrated, the enormity of the crime warranting public
abhorrence and it should ‘respond to the society’s cry for justice against
the criminal’. If for an extremely heinous crime perpetrated in a very
brutal manner, the most deterrent punishment is not given, the case of
deterrent punishment will lose its relevance.” Rape is not only a crime
against the person of a woman, but a crime against the entire society. It
indelibly leaves a scar on the most cherished possession of a woman i.e.
her dignity, honour, reputation and not the least her chastity. It
destroys, as noted by this Court in bodhisattwa Gautam v. Subhra
Chakraborty (1966) 1-SCC-490 : (AIR 1996 SC 922) the entire psychology
of a woman and pushes her into deep emotional crisis. It is a crime
against basic human rights, and is also violative of the victim’s most
cherished of the fundamental rights, namely, the right to life contained
in Article 21 of the Constitution. The Courts are, therefore, expected to
deal with cases of s*xual crime against women with utmost sensitivity.
Such cases need to be dealt with sternly and severely.
7. Aggrieved by the said judgement, the respondents accused as well
as the complainant preferred appeal being Criminal Appeal No. 5 -
8/2011 before the Hon’ble High Court of Judicature for Rajasthan at
Jaipur Bench. The Hon’ble High Court by impugned judgment dated
20.5.2013 came to the conclusion that the Sessions Court was justified
in coming to the conclusion that the four accused have committed the
heinous act, offence of gang rape against the nursing student of the
hostel, which would have life long effect on the body and mind of the
complainant. However, taking a lenient view of the matter, on
appreciation of defence evidence and non-availability of any independent
eye witness, reduced the sentence awarded by the Sessions Court to the
following period :-
(i) Shri Bhawar Lal to undergo rigorous imprisonment for 10
years;
(ii) Shri Mohan to undergo simple imprisonment for five years; and
(iii) Shri Sohan to the period already undergone by the accused.
(iv) Damages were reduced to Rs. 50,000/-.
The appeal of the accused were allowed in above terms and appeal
of the complainant to enhance sentence and damages was dismissed,
being bereft of any substance.
8. Being aggrieved by the aforesaid orders, the complainant as well as
the accused, Bhawar Lal, Mohan and Sohan have filed appeal before the
Hon’ble Supreme Court. The Hon’ble Supreme Court has issued notices
confining to the issues regarding the sentence and damages. The
Supreme Court also issued notice as to why the sentence awarded by the
High Court to the three accused respondents be not restored to that of
the sentence awarded by the Sessions Court and why the accused
Bhawar Lal not to undergo life imprisonment for whole of the convict’s
life (not for 20 years or 14 years) ?
9. All the appeals have been consolidated and are fixed for final
hearing on 30.9.2013, with appropriate directions to submit written
memorials on or before 15.9.2013.
RELEVANT LAW
1. Sections 45, 363, 375 and 376 of the Indian Penal Code, 1860.
2. The Juvenile Justice (Care and Protection of Children) Act,
2000.
3. Evidence Act.
4. Section 357 and 357A of the Criminal Procedure Code.
