Srinagar: In a 34-year-old incident of kidnap and gang rape of a north Kashmir woman, the J&K high Court today took a lenient view on the quantum of punishment awarded to the convicts by the trial court, saying the victim and the convict have now settled in life and are middle-aged.
The court was hearing an appeal by the convicts Mohiudidn Dar and another person against the trial court order of 2006 which convicted the duo for offences under Section 366 (kidnapping a woman) and Section 376(2) (g) of RPC (gang rape).
The convicts had been sentenced to undergo rigorous imprisonment of 12 years and a fine of Rs 3,000 for their crime.
The prosecution story is that on February 27, 1989, the prosecutrix (victim woman) accompanied her blind mother for treatment to Handwara hospital. On their return, they went to purchase certain articles from a shop where Mohiuddin and his accomplice were also sitting.
The prosecutrix asked the duo the address of the house of one Ghulam Rasool, Forester, as in the event of the prosecutrix and her mother not getting bus to their destination, they intended to stay in the house of the said Forester.
One of the accused introduced himself as the brother of the Forester, and offered to take her to the said house.
On this pretext, the two led the prosecutrix towards Gogipora in an orchard and took her to a shed over there, where she was repeatedly subjected to forcible sexual intercourse by both men.
According to the prosecution, after committing rape upon the prosecutrix, the appellants fled away. While the prosecutrix was returning to meet her mother who had stayed back in the shop she narrated her story to two persons on the way.
Afterward, these wayfarers took her to the shop at Handwara where her mother was waiting for her. The prosecutrix also narrated the incident to her mother.
A report relating to the occurrence was lodged by the prosecutrix on 28th February 1989 at about 11.00 am and an offense under Section 366/376 RPC was registered with Police Station Handwara.
After investigation, offenses under Section 366/376 RPC were found established against the appellants and the chargesheet was presented in the trial court. The accused denied the charges saying it was “sex with consent”.
Interestingly the doctor, who examined the prosecutrix after the alleged incident and had confirmed in her medical report that the prosecutrix had been subjected to sexual assault, was not been examined as a witness, reveal the court records.
The Investigating Officer of the case, Dilbagh Singh, has also not stepped into the witness box. Similarly, Dr Kanwaljeet Singh, who had examined the accused after the incident, has also not been examined as a witness.
The shopkeeper Lal Mohammad, on whose shop the prosecutrix and her mother are stated to have purchased certain articles, too has not been examined by the prosecution as a witness though his statement under Section 161 of the CrPC has been taken on record.
Justice Sanjay Dhar while hearing the appeal of the convicts observed “in the instant case, having regard to the age of the prosecutrix, who was a grown-up lady at the relevant time, and considering the fact that the occurrence has taken place some 34 years back and by now the prosecutrix as well as the appellants must have settled in their life, a lenient view of the matter is required to be taken”.
He also took into account the fact that “during this long lapse of time, the appellants must have suffered disrepute and mental agony and having regard to the fact that if the appellants are sent to imprisonment for 10 years at this advanced age, when they have already become senior citizens, it may not serve the ends of justice”.
The judge held “there are adequate and special reasons attendant to the instant case which persuade this court to award punishment less than the minimum punishment provided for the offence under Section 376(2)(g) of the RPC to the appellants”.
Accordingly, while upholding the conviction of the appellants for the offences punishable under Section 366 and 376 of RPC, the order of sentence passed by the learned trial court was “modified to the extent that the appellants in proof of the offence under Section 376 (2)(g) of RPC shall undergo rigorous imprisonment for a period of five years and to pay a fine of Rs 10,000 each.”
