SAJI @ PIYOOS and CHINNAMMA v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 04TH DAY OF JUNE 2020 / 14TH JYAISHTA, 1942** ## **CRL.A.No.854 OF 2015(A)** **[AGAINST THE JUDGMENT IN SC 64/2014 DATED 16-07-2015 AND SENTENCE DATED 21.07.2015 OF ADDITIONAL DISTRICT & SESSIONS COURT (FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN & CHILDREN) CRIME NO.2888/2013 OF Aluva Police Station , Ernakulam]** ## **APPELLANTS/ACCUSED 1 AND 2:** **1 SAJI @ PIYOOS AGED 51 YEARS S/O.BABYCHAN, JATHICKKAPARAMBIL HOUSE, ELIZABHATH PARK COLONY, KEEZHMADU KARA, ALUVA EAST, ERNAKULAM, PIN-683 101.(IN CUSTODY).** **2 CHINNAMMA, AGED 44 YEARS, W/O.SAJI, JATHICKKAPARAMBIL HOUSE, ELIZABHATH PARK COLONY, KEEZHMADU KARA, ALUVA EAST, ERNAKULAM, PIN-683 101.** ## **BY ADV. SRI.MANJU ANTONEY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE REPRESENTED BY SUB INSPECTOR OF POLICE, ALUVA, (CRIME NO.2888/13), THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031.** ## **BY SMT.AMBIKA DEVI, SPL. PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-05-2020, THE COURT ON 04-06-2020 DELIVERED THE FOLLOWING:** Crl.A.No.854 of 2015 ..2.. **A.HARIPRASAD & N.ANIL KUMAR, JJ. -----------------------------------------------Crl.A.No. 854 of 2015 -------------------------------------------------Dated this the 04[th] day of June, 2020** ## **J U D G M E N T** ## **N.ANIL KUMAR, J:** Appellants are accused Nos.1 and 2 in S.C.No. 64 of 2014 of the Additional Sessions Court (For the trial of cases relating to Atrocities and Sexual Violence against Women and Children), Ernakulam. The third accused expired pending trial. The present appeal has been preferred by accused 1 and 2 under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') challenging the impugned judgment dated 16.7.2015 passed by the trial court whereby the first accused was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- under Crl.A.No.854 of 2015 **==> picture [22 x 9] intentionally omitted <==** Section 376(1) I.P.C., in default, to undergo rigorous imprisonment for another two months. He was also sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for one month for the offence punishable under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. The second accused was found guilty for the offence punishable under Section 23 of the Juvenile Justice (Care and Protection of Children) Act, 2000. However, the trial court released the second accused under Section 3 of the Probation of Offenders Act, after due admonition. 2. The brief facts of the prosecution case are that PW2 is none other than the daughter of the first accused and the second accused. The name of the victim (prosecutrix) is not being disclosed in this judgment to preserve the victim's anonymity. Crl.A.No.854 of 2015 **==> picture [22 x 9] intentionally omitted <==** The victim is being shown as PW2. The first accused, with an intention of committing rape of PW2, his own minor daughter aged 13 years, had sexual intercourse with her for a period of one year commencing from October, 2004 at the south-eastern bedroom of their house having Building No.XIII/292 of Keezhmadu Panchayath situated at Elizabath Park Colony, Keezhmadu kara in Aluva East Village. According to her, her father committed rape on her and consequently, she became pregnant and delivered a baby boy on 21.6.2006. After delivery, accused Nos. 1 and 2 abandoned her baby. Third accused was the grandmother of PW2. She died pending proceedings. PW2's mother and grandmother (mother of the first accused) suppressed the rape committed by the first accused solely for the purpose of protecting the first accused. She hated her parents and would like to see that her parents are punished severely for Crl.A.No.854 of 2015 **==> picture [22 x 9] intentionally omitted <==** the illegalities committed by them. 3. PW13 -the Sub Inspector of Aluva East Police Station registered Ext.P10 FIR on the strength of Ext.P1 report from PW1, the Senior C.P.O of District Juvenile Police Unit, Aluva. PW14 the Circle Inspector of Police, Aluva conducted investigation in this case. He recorded the statement of PW2 in the presence of a woman Sub Inspector and referred PW2 for medical examination. Thereafter, he went to the scene of occurrence and prepared Ext.P3 scene mahazar in which PW4 is a signatory. On the same day at about 6.30 p.m. he had arrested the first and second accused as per Exts.P11 and P12 series. The first accused was subjected to potency test. PW13 had seized documents from the Nirmala Child Home where PW2 was accommodated before her delivery and obtained her treatment summary in connection with her delivery from the Medical Trust Hospital, Ernakulam. The Crl.A.No.854 of 2015 **==> picture [22 x 9] intentionally omitted <==** registers taken from the child home had been given back by Ext.P2 kaichit. He had obtained a certificate from the school where PW2 had studied. He had arrested the third accused on 10.10.2013 as per Exts.P14 and P15 respectively. PW13 questioned the witnesses, recorded their statements, completed the investigation and filed the final report before court. 4. On committal, the learned Sessions Judge took cognizance of the offences punishable under Sections 376 and 118 IPC and Section 23 of the Juvenile Justice (Care and Protection of Children) Act,2000 and made over the case to the Additional Sessions Court (For the trial of cases relating to Atrocities and Sexual Violence against women and children), Ernakulam for trial and disposal. After having heard both sides, the learned Sessions Judge framed charges against the accused to which all the accused pleaded not guilty. As the third accused passed away during the Crl.A.No.854 of 2015 **==> picture [22 x 9] intentionally omitted <==** pendency of the proceedings, charge against her stood abated. 5. When the case came up for evidence on the prosecution side, PWs.1 to 14 were examined and marked Exts.P1 to P16. On closing the evidence of prosecution, accused Nos.1 and 2 were questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing in the evidence against them. Their defence is one of total denial. 6. The learned Sessions Judge did not deem it fit and proper for recording an acquittal under Section 232(1) of Cr.P.C. Hence, the accused were called upon to enter on their defence and adduce evidence, which they might have had in support thereof. First accused was examined as DW1 and another witness is examined as DW2. 7. Heard Sri. Manju Antoney, the learned counsel for the appellants and Smt.Ambika Devi, the learned Special Public Prosecutor appearing for the State. Crl.A.No.854 of 2015 **==> picture [22 x 9] intentionally omitted <==** 8. Learned counsel for the appellants submit that an FIR was lodged after 6 years and no explanation was given for such inordinate delay. According to him, the sole testimony of PW2 is neither trustworthy nor reliable. It was further contended that ocular evidence was not supported by medical evidence. The trial Judge, without discussing any merit or demerit of the case, had passed the impugned judgment in a very perfunctory manner. The appellants asserted that they are innocent and have been falsely implicated. 9. Per contra, the learned Special Public Prosecutor Smt.Ambika Devi submitted that the sole testimony of PW2 is sufficient for proving the case of prosecution, particularly in a case where the protector of the victim turned as predator. According to the learned Special Public Prosecutor, though there is inordinate delay in lodging the FIR, it is self-explanatory and Crl.A.No.854 of 2015 **==> picture [22 x 9] intentionally omitted <==** justifiable in the facts and circumstances of the case. 10. We have considered the rival submissions of the learned counsel for the appellants and the learned Special Public Prosecutor. We have perused the materials available on record. 11. PW1 stated before court below that on 17.8.2013 while she was working as one of the members of the Special Juvenile Police Unit at Aluva, she received information from Sri.K.K.Shaju, one of the members of the Child Welfare Committee (CWC), Ernakulam that in a house namely, Jathikkaparambu at Elizabath Park Colony, a father is harassing his two minor children studying at Keezhmadu Government L.P.School. Accordingly, she informed the matter to her superior officer. After furnishing necessary information, she went to the school along with her colleagues and met the two children. However, they denied the allegation. Subsequently, some of the neighbours residing Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** adjacent to the residence of the first accused filed a petition to the Women Cell alleging sexual harassment at the instance of the first accused and it was forwarded to her for enquiry. PW1 had conducted detailed enquiry. On being enquired, she received reliable information that the first accused had raped his minor daughter-PW2, while she was studying in the 8[th] standard and she became pregnant. She further received information that PW2 delivered a baby boy and the boy was sold by the first and second accused with the assistance of the third accused, who is the mother of the first accused. Pursuant to the enquiry, PW1 furnished the entire facts before the Chair Person of CWC, Ernakulam. As directed by the Chair Person, she brought the two younger children of accused 1 and 2 before her superior officer. On being questioned, the first accused admitted the allegation levelled against him. Thereafter, Ext.P1 report was forwarded to Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** the Aluva East Police Station and the children were entrusted to the Police Station. As per the directions of CWC, the children were taken to the shelter home at Pulluvazhy. 12. PW10, the Headmistress of the Government Girls Higher Secondary School, Aluva produced Ext.P8 school admission register to prove the date of birth of PW2. As per Ext.P8, the date of birth of PW2 is 15.2.1992 and she was admitted in the school during the academic year 2005-2006. 13. PW2-the victim stated before the trial court that she had studied upto 7[th] standard at Chungamveli St.Joseph's U.P.School and thereafter, joined in 8[th] standard at Government Girls High School, Aluva to continue her education. When PW2 was 11 years, the first accused started living with them. Before that, the first accused was living with another lady at Vadakara and in the said relationship, the first accused had a son. Later, the same lady Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** filed a case against the first accused. The case was settled by giving the gold ornaments of the second accused to the said lady. PW2 along with the second accused and the latter younger sister were residing at Elizabath park. When the first accused started residing with the second accused, the second accused became pregnant and a baby boy (younger brother of the victim) was born out of the relationship. She stated that after the birth of the newborn baby boy, her mother started to take up a job. However, her father did not go for work and was always present at home. She narrated that he used to rape her in the room by locking the door. According to her, the first accused raped her continuously for a period of one year. Although she made an attempt to inform the second accused, the first accused used to assault them. She further stated that whenever the second accused started sleeping, first accused came to her and committed rape on her. As a result Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** of the rape committed by the first accused, PW2 became pregnant. She informed the matter to the third accused. The second and third accused took her to the Anwar Hospital, Aluva and the Doctor confirmed her pregnancy. Then they took her to the Sister at Chungamveli and as directed by her, the second and third accused took her to the Nirmala Child Home (Sisu Bhavan) at Aluva. As directed by the third accused, she was constrained to tell the authorities at Nirmala Child Home that she became pregnant from her workplace and she was not aware of the whereabouts of the person responsible. As directed by the third accused, she told the Sisu Bhavan authorities that her age as on the date of admission was 18 years. She further stated that the first and second accused used to visit her at the Sisu Bhavan and while so, the first accused sought pardon from her. Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** The Sisu Bhavan Authorities took her to the Medical 14. Trust Hospital, Ernakulam for delivery. On 21.6.2006, she delivered a baby boy at the hospital. After 3 days, she was discharged from the hospital and came back to the child home. After one month, accused 1 and 2 came to the child home and took her back after entrusting the child with the child home. According to her, as insisted by the third accused, she was constrained to leave the child at the child home. The child home authorities obtained a declaration from her that she was not in a position to look after the baby owing to her poverty. She also made a declaration that she would not make any further claim thereafter. 15. After delivery, PW2 went for work in a plastic company. Her complaint is that the first accused is a drug addict and used to frequently pick up quarrels with the second accused and Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** neighbours for no reasons. According to her, as early as in 2006, the first and second accused quarrelled with her and expelled her from the house at midnight. Thereafter, she was compelled to live with the parents of the second accused. Later, she went for work in a Henna company at Aluva where she fell in love with her husband. She would say that her husband was a broadminded person and after knowing the entire life history, he married her. After her marriage, she started residing at Thiruvananthapuram. Though she was residing at Thiruvananthapuram, the first accused did not spare her. The first accused used to shower abusive words over phone and one day, he came to Thiruvananthapuram and assaulted her husband. She found it difficult to live peacefully with her husband. Hence, she was compelled to come over to Aluva for lodging complaint against the first accused. Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** 16. PW3 Sister Martinal of the Missionaries of Charity at Nirmala Bhavan, Ernakulam stated that she was working as sisterin-charge of Sisu Bhavan during 2001-2006 and 2009-2013. The Sisu Bhavan at Ernakulam, used to protect the children born in illegal pregnancy. She received a telephone call from one sister Tessella of Chunangamveli, saying that one girl is pregnant and is being sent to the Child Home. After the telephone call, PW2 was brought to the child home by her mother and grandmother on 10.2.2006. PW3 identified the second accused as the mother of PW2. In the register maintained in Sisu Bhavan, PW2 noted her age as 18 as stated by her mother. According to her, on 21.6.2006, she delivered a baby boy at the Medical Trust Hospital, Ernakulam and on 23.6.2006, she was discharged. PW3 was at the Sisu Bhavan till 16.7.2006. On 16.7.2006, the first and second accused came to the Sisu Bhavan and took her to their residence. Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** They did not demand the child subsequently. Considering the paramount interest of the child, the child was given in adoption through Family Court. She also admitted that in connection with this case, Police came for investigation and recovered three registers kept in the child home by Ext.P2 kaichit. 17. PW6 was the CMO of Medical Trust Hospital, Ernakulam. He supported the version of PW3. In Ext.P4 treatment summary issued to the Police, the hospital authorities had admitted PW2 on 20.6.2006 and the latter delivered a baby boy on 21.6.2006. Later she was discharged on 23.6.2006. 18. PW12-the Driver of the Nirmala Child Home witnessed the seizure of registers by the Police as per Ext.P9 series of mahazars. 19. Immediately after registering the case, PW2 was taken to the District Hospital, Aluva where PW7 examined her on Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** 19.8.2013 at 6.30 pm and issued Ext.P5 certificate. When she was brought to the hospital, she disclosed to PW7 that when she was 13 years old, her father raped her and consequently she became pregnant and delivered. 20. PW8 deposed that on 20.8.2013, when he was working as Junior Consultant in Psychiatry at District Hospital, Aluva, he had examined the first accused and issued Ext.P6 certificate of potency. 21. PW11 was the Secretary of the Housing Project of CST Sabha. The Sabha used to provide houses to the poor with the aid of the church. According to her, the second accused along with her children started living in their village in a housing project in 1998. After six years, the first accused joined them and started to reside with them. She further stated that the first accused used to pick up quarrels with neighbours for no reason. He was engaged Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** in ganja trafficking as well. Though she and the members of the Sabha used to warn him several times, the first accused did not pay attention to their warnings. She also received reliable information that the first accused had been sexually exploiting the younger daughter of the second accused. Though she contacted the second accused, she was not able to get any satisfactory answer. Hence, she was compelled to inform the Police. 22. In the statement under Section 313, the first accused denied the evidence produced by the prosecution and stated that he had been implicated in a false case. The first accused was examined as DW1. He admitted that PW2 is his daughter and he married the second accused when the second accused was 21 years old. According to him, out of the wedlock, four children were born to him and the eldest one died immediately after delivery. Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** PW2 is his second daughter. He further stated that she was given primary education at L.P.School, Kulakkad. Second accused admitted her at the school while he was working as a daily wager in different parts of Kerala. After six months, she was shifted to St.Joseph's U.P School, at Chunangamveli where she studied up to the 7[th] standard. Thereafter, she was admitted at the Government Girls High School, Aluva. When he returned home from Thodupuzha on a Saturday in 2004, he was informed that PW2 had stopped her studies. He admitted that he was a drunkard. On being asked, PW2 stated that she did not intend to go for further studies. On the next Wednesday, DW1 went for his work and returned after 8 months. When he returned home, his wife informed her that PW2 was quick with child. On enquiry, he came to know that one Ganesh, a youngster was instrumental in making her pregnant. His wife also informed that PW2 was Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** admitted at the Nirmala Sisu Bhavan, Ernakulam. He further alleged that PW2 was living in adultery with several persons. 23. At the outset, it is pertinent to note that PW2- the victim involved in this case was residing in the housing project owned by the church in her native village. She had stated that she was thrown away from her house way back in 2006 after she delivered a baby boy at the Medical Trust Hospital, Ernakulam on 21.6.2006. DW1 also admitted that she became pregnant and delivered a baby boy on 21.6.2006. As per the admission register, her date of birth is 15.2.1992. Admittedly, on the date of her delivery, she was a minor. She was compelled to leave her house due to reasons beyond her control. DW1 himself admitted before the court below that he was a drunkard. PW2 stated she was forced to sleep at night along with her father when others fell asleep and her father used to commit rape with her. Though she Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** disclosed her sad plight to her mother, she did not take it seriously. It has come out in evidence that she understood the meaning of rape and she had told her mother about her being raped by her father. Her mother could not protest presumably for the reason that her father would beat her mother also. PW2 could not protest and hence she had been raped at night for several days. Ultimately she became pregnant and was taken to the Sisu Bhavan at Ernakulam. After delivery, she fell in love with her husband and married him. Even after the marriage, the first accused tortured her, which prompted her to initiate the present prosecution. 24. It is true that the offence as alleged by PW2 is not supported by medical evidence. There was long delay in registering the case in August,2013. The delay is more than six years. Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** 25. It is settled principle of law that there is no time limit for lodging FIR and if the delay is explained, it can be accepted. The records would show that the victim has not lodged FIR immediately after her delivery. However, there is nothing on record to indicate that PW2-the victim was instigated or assisted by some other to give statement against her father. It is difficult for us to believe that a minor girl child aged 13 years approached the police complaining against her own father alleging rape. It has also come out in evidence that although she was admitted in the Nirmala Sisu Bhavan, Ernakulam, her mother and grandmother specifically told her not to say anything against her father. It is also disclosed that the second and third accused managed to represent before PW3 that PW2 became pregnant from her workplace and she was then 18 years at the time of admission. PW2's evidence is supported by the evidence of PW3- Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** the Mother Superior of the Child Home. Therefore, we are of the view that the accused not only violates law but it is a betrayal of trust. Raping his own daughter under his refuge is one of the most heinous crimes in the world and we do not find any difficulty in acting on her testimony to explain away the delay in lodging the FIS. The delay has been properly explained. 26. In any case of rape, the evidence of the prosecutrix is of great importance. It is settled principle of law that the conviction of the perpetrator of the crime can be based on uncorroborated testimony of the prosecutrix. The first accused is none other than her father. It would be extremely reluctant to falsely implicate the father, which is likely to reflect on her chastity, dignity and prestige in the society. Despite the rape committed by her father, she fell in love with a man and he married her. Since her husband knew the entire life story of PW2, she had sufficient protection to Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** disclose the entire life story to the police at present. Hence she lodged Ext.P1 before the Police. The fact that the prosecutrix was a minor at the time of incident, as per her date of birth recorded in the school register which is 15.2.1992, the said testimony was found to be consistent and in tune with the evidence tendered by PW10 the Headmistress of the Aluva Government Girls Higher Secondary School. 27. PW2 categorically deposed that she was sexually assaulted by the first accused several times and she had lost all her moral values. It is a fact that no daughter would like to implicate her own father in such an immoral act like rape unless she was subjected to the same. It is very difficult to believe the cock and bull story raised by the first accused that he was falsely implicated in the case by his daughter because of alleged illicit relationship with one Ganesh and others, which was being Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** objected by him. 28. In the case at hand, the evidence of PW2 remained consistent, reliable and trustworthy and the defence did not succeed to create reasonable doubt or suspicion on her testimony. In fact, the first accused had developed a false story, attacking her daughter's chastity and honour by alleging her illicit relationship with several other persons. We have examined the extensive possibilities of the case and we are of the view that minor contradictions or insignificant discrepancies in the statement of PW2 are not fatal in nature to disbelieve the prosecution case. The evidence of the prosecutrix inspires confidence. The evidence adduced by PW3 and PW10 lend assurance to her testimony. 29. In view of the above, we are of the view that conviction of the accused is based on the evidence let in by PW2 and other Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** facts and circumstances involved in the case. The evidence of PW2 is free from any kind of suspicion or doubt. 30. On going through the evidence of PW10 and Ext.P8, it is proved that the PW2's date of birth is 15.02.1992. In 2006, she was aged only 14 years. It goes without saying that the accused 1 and 2, being biological parents, were duty bound to give care and protection to PW2, when she was 14 years of old. Instead, the second accused colluded with the first accused and caused untold hardship to her. 31. In 2006, the penal code prescribed different punishments in cases of rape as per the act done in different situations and depending upon the gravity of the offence. Under Section 376 IPC, except in the cases provided in sub-section(2), the punishment for the offence of rape is prescribed as punishment of either description for a term which shall not be Crl.A.No.854 of 2015 ..28.. less than seven years, but which may extend to imprisonment for life or for a term which may extend to ten years and shall also be liable for fine and for the offences which fall under sub-section (2), the minimum punishment prescribed is rigorous imprisonment for a term which shall not be less than ten years, which may extend to imprisonment for life and also be liable for fine. Section IPC is 32. 376 (pre-amended) reproduced hereunder:- - [376. Punishment for rape.— - (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. - (2) Whoever,— - (a) being a police officer commits rape— Crl.A.No.854 of 2015 ..29.. - (i) within the limits of the police station to which he is appointed; or - (ii)in the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman in his custody or in the custody of a police officer subordinate to him; or - (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or - (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman’s or children’s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or - (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or - (e) commits rape on a woman knowing her to be pregnant; or - (f) commits rape on a woman when she is under twelve years of age; or - (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have Crl.A.No.854 of 2015 ..30.. committed gang rape within the meaning of this subsection. Explanation 2.—“Women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected woman or children or a widows’ home or by any other name, which is established and maintained for the reception and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation.] 33. Going by the pre-amended provisions of offence of rape, it is clear that if the offence of rape falls under any of the clauses of sub-section(2) of Section 376 of IPC, it becomes more stringent as instead of 7 years, the minimum prescribed sentence is rigorous imprisonment for not less than ten years. Under the pre-amended provision, although minimum sentence of imprisonment that can be awarded is 7 years under Section 376(1) and 10 years under Section 376(2) IPC, the court is empowered to award a lesser sentence recording adequate and special reasons in the judgment. This proviso to Section 376(1) and (2) of IPC Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** stands repealed after Act No.13 of 2013, the Criminal Law (Amendment) Act, 2013. 34. In this case, the father did not spare his daughter and ravished her body and soul to satisfy his lust for sex. Undoubtedly, he deserves severest of punishment provided under law. However, the court has to examine the facts of the case in all equanimity. On the basis of the entire factual matrix, it is necessary for the court to consider the sentence imposed by the court below. The law provides punishment clause beginning from 7 years to life imprisonment, depending on the facts and circumstances of the case **(State of Himachal Pradesh v. Asha** . **Ram [2006 KHC 157 (SC)]** the 35. Judged by the above standards, we uphold judgment on conviction under Section 376(1) of IPC and Section 23 of the Juvenile Justice (Care and Protection of Children) Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** Act,2000 imposed on the first accused. So far as the second accused is concerned, the trial court found her guilty under Section 23 of the Juvenile Justice (Care and Protection of Children) Act,2000 and was released under Section 3 of the Probation of Offenders Act. The sentence imposed against the first accused is modified to rigorous imprisonment for a period of ten years without any remission under Section 376(1) of IPC. No further modification in the matter of conviction and sentence is required. In the result, the appeal is allowed in part. The sentence imposed against the first accused is modified. First accused is sentenced to undergo rigorous imprisonment for ten years without remission and also to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for two months more for the offence under Section 376(1) of IPC. No other Crl.A.No.854 of 2015 **==> picture [28 x 9] intentionally omitted <==** modification is required in the matter of sentence imposed for the offence under Section 23 of the Juvenile Justice (Care and Protection of Children) Act,2000 as against the first and second accused. Sd/- **A.HARIPRASAD, JUDGE** sd/- **N.ANIL KUMAR,** **JUDGE** MBS/