STATE OF HIMACHAL PRADESH Vs. RAGHUBIR SINGH

JUDGEMENT

(1.) The respondents in Criminal Appeal No.2567 of 2024 have been convicted by the High Court of Himachal Pradesh at Shimla by the impugned judgment and order dtd. 2/3/2017 for the offence punishable under clause (g) of sub-sec. (2) of Sec. 376 of the Indian Penal Code, 1860 (for short, 'the IPC'). They were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.50,000.00 each. They were sentenced to undergo rigorous imprisonment for six months on default of payment of fine. The fine amount, if deposited, was ordered to be paid to the prosecutrix.

(2.) PW-5 is the prosecutrix. The alleged incident is of 8/7/1989. Initially, the accused were prosecuted for the offences punishable under Sec. 376, read with Sec. 34 of the IPC. Six accused were tried before the Sessions Court, namely, Raghubir Singh (Raghubir), Vijay Kumar (Vijay), Ravi Prakash (Ravi), Anil Kumar alias Bittu (Anil), Hari Ram (Hari) and Sunil Kumar (Sunil). The Trial Court acquitted the accused on the ground that in the absence of any corroborating evidence of any struggle on the part of the prosecutrix or any corroborating injury on the person of the accused, the defence of the accused that the sexual intercourse was with the consent, cannot be ruled out. The appellant -the State of Himachal Pradesh, appealed against the order of acquittal. By the order dtd. 28/3/2008, the High Court set aside the judgment of the Sessions Court and remanded the case to the Sessions Court with a direction to try the accused for the offence of gang rape. After the order of remand, the case was tried only against five accused as the accused Anil had died. The prosecution adopted the evidence recorded before remand, and even the accused adopted their cross-examination. By the judgment and order dtd. 24/9/2008, the Sessions Court again passed an order of acquittal. By the impugned judgment and order, the High Court interfered in an appeal preferred by the State. It converted the acquittal of the accused into a conviction for the offence punishable under Sec. 376(2)(g) of the IPC. Regarding the sentence, the High Court held that there were adequate and special reasons for imposing a sentence of imprisonment for a term of less than ten years. The said power was exercised by the High Court in terms of the proviso to sub-sec. (2) of Sec. 376 of the IPC as it existed on the statute book before Sec. 376 was substituted by Act No.13 of 2013.

(3.) Criminal Appeal No.2567 of 2024 has been preferred by the State of Himachal Pradesh being aggrieved by that part of the impugned judgment, by which the accused were let off on the sentence of imprisonment for three years which is less than the minimum sentence of ten years as provided under Sec. 376(2), which was applicable on the date on which the alleged act of offence was committed. Criminal Appeal No.2568 of 2024 has been preferred by accused Vijay for challenging his conviction.