Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 884 of 2015, Judgment Date: Feb 11, 2016

                                                                ‘REPORTABLE’


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 884 OF 2015

TEKAN ALIAS TEKRAM                                          ….  APPELLANT(S)

                                   VERSUS

STATE OF MADHYA PRADESH
(NOW CHHATTISGARH)                                           … RESPONDENT(S)


                               J U D G M E N T

M.Y. EQBAL, J.

      Aggrieved by the judgment and order dated 16th  January,  2014  passed
by the High Court of Chhattisgarh  in  Criminal  Appeal  No.  2554  of  1997
affirming the judgment dated  29.11.1997  passed  by  the  Sixth  Additional
Sessions Judge, Durg, in  Sessions  Trial  No.  342  of  1996,  whereby  the
appellant has been convicted under Section 376 IPC and sentenced to 7  years
R.I., the  accused-appellant  has  preferred  this  appeal  challenging  the
conviction and sentence.
2.    This is a case where the prosecutrix, who is blind and  an  illiterate
girl, was subjected to sexual intercourse on the promise of marriage.

3.    The case of the prosecution in  brief  is  that  the  prosecutrix  was
residing with her father at Village Nandini Khundini.  Her mother  had  left
and married somewhere else and, thereafter, the prosecutrix was living  with
her three brothers Nand Kumar, Iswari and Baldau.   Along  with  brother  of
prosecutrix Iswari, the accused Tikendra was also studying.  Because of  the
friendship, the accused used to visit the house of the prosecutrix  and  was
in conversation with her.  It is the case of the prosecution that  when  the
prosecutrix used to remain alone in her house, the  accused  used  to  visit
her and expressed her that he is in love with her.   Further,  the  case  of
the prosecution is that about one year  before  the  incident,  the  accused
came to the house of the prosecutrix when she was  alone.   Thereafter,  the
accused had told her that he is in love with her  and  will  marry  her  and
wanted to commit sexual intercourse with  her.   The  prosecutrix  tried  to
avoid it since she was a blind girl, but the prosecutrix  was  told  by  the
accused that  he  will  marry  her  and  will  give  her  all  support  and,
therefore, she submitted herself to the accused.   Thereafter,  the  accused
committed sexual intercourse with her.  It is the case  of  the  prosecution
that whenever the prosecutrix remained alone in the house, the accused  used
to come and commit sexual intercourse with her.  By such course  of  action,
when the prosecutrix became pregnant, the prosecutrix told  the  accused  to
marry her.  At that point of time, the accused stopped  visiting  the  house
of the prosecutrix.  Subsequent to it, the incident  was  disclosed  to  the
father of the prosecutrix who called the meeting of  the  Panchayat  in  the
Village.  In the Panchayat, the accused was also called.  It is the case  of
the prosecution that in the Panchayat, the accused admitted  the  fact  that
he had committed sexual intercourse with  the  prosecutrix  but  refused  to
marry her and left the Panchayat.  It was the specific case  of  prosecution
that though the prosecutrix was  blind,  she  could  recognize  the  accused
person by his voice and by touch.

4.    It reveals that the matter was investigated  by  the  police  and  the
prosecutrix was also subjected to medical examination and finally a  charge-
sheet was filed under Section 376 IPC.  Number  of  witnesses  was  examined
from the prosecution side including the Doctor  who  submitted  the  medical
examination report (Ex.P2 and P3) and the radiologist who obtained X-Ray  of
the prosecutrix and gave his report (Ex.  P4)  confirming  the  age  of  the
prosecutrix as approximately 18 years.  The prosecutrix  was  also  examined
as PW-1, who narrated the entire incident and the manner in  which  she  was
subjected to sexual abuse.  In her evidence, she  has  categorically  stated
that she is blind but she could recognize a person by his  voice.   She  has
also stated that the accused-appellant had told her that he will  keep  her.
She has  further  stated  that  the  accused  committed  rape  on  her  and,
thereafter, whenever she used to  stay  alone  in  the  house  the  accused-
appellant used to come and committed sexual  intercourse  with  her  on  the
pretext of marriage.   It  has  further  come  in  evidence  that  when  the
prosecutrix became pregnant the accused stopped  visiting  her  house.   She
has further stated that after the incident was disclosed by her the  accused
was called before the Panchayat.


5.    The trial court after appreciating the entire evidence  including  the
evidence of the Doctor and the persons who attended the  Panchayat  and  the
medical reports, recorded a finding and held that the prosecution  was  able
to prove the guilt of the accused-appellant.  Accordingly, the  accused  was
convicted under Section 376 IPC  and  was  sentenced  to  7  years  rigorous
imprisonment.

6.    As against the judgment of the trial court,  the  appellant  filed  an
appeal before the High Court being Criminal Appeal  No.2554  of  1997.   The
High Court  examined  the  facts  and  re-appreciated  the  entire  evidence
adduced from the  side  of  the  prosecution  and  recorded  an  independent
finding and affirmed the judgment of conviction passed by the trial court.

7.    We have heard learned counsel for the  appellant  and  the  respondent
State.  We have also meticulously examined the finding recorded by  the  two
courts on the basis of the evidence brought on  record  by  the  prosecution
side.  After giving our anxious consideration to the matter we  are  of  the
definite view that the prosecution has been able to prove the guilt  of  the
appellant beyond all reasonable doubt.   We,  therefore,  do  not  find  any
infirmity or illegality in the judgment passed by the  two  courts.   Hence,
the judgment of conviction must sustain in law.

8.    Now the question that arises for consideration is  as  to  whether  in
the facts and circumstances of the  case  the  prosecutrix  is  entitled  to
victim compensation and, if so,  to  what  extent?   During  the  course  of
hearing, this Court by order dated 01.07.2015 directed the  learned  counsel
appearing  for  the  respondent-State  to  file  a  copy   of   the   Victim
Compensation Scheme applicable in the State of Chhattisgarh and  to  inquire
about the financial status of the victim,  her  brothers  and  also  of  the
accused-appellant.  Pursuant to the aforesaid  order,  learned  counsel  for
the State has filed an additional affidavit giving details of the  inquiries
made to ascertain the financial status of the victim  and  the  accused  and
also has placed on record a copy of Notification/ Compensation Scheme.

9.    From the inquiry, it reveals  that  the  victim  (now  aged  about  37
years)  lives  alone   in   Village   Nandini   Kundini,   District-   Durg,
Chhattisgarh. She is unmarried and lives in a  kuccha  house.  She  has  two
brothers who lives separately from her. One of  the  brothers  Ishwari  Sahu
lives in a different village Dhour (distance 12 kms from  Nandini  Kundini).
Another brother Baldau Sahu lives is district Bhila (distance  22  kms  from
Nandini Kundini) and works as a daily-labourer. She receives  a  pension  of
Rs.300/- per month from the State being a person  with  disability.  She  is
also a BPL card holder which entitles her 35kg rice per month  at  the  rate
of Rs.1/- per kg. and free salt. The financial status of  victim’s  brothers
is also not good.



10.   It further reveals from the inquiry regarding financial status of  the
accused that the accused lives in the  same  village  i.e.  Nandini  Kundini
where the victim lives.  He is married and has four children. Mother of  the
accused also lives with him. He has inherited about 2 acres  of  land  being
ancestral property which is also the source of his livelihood. Further,  the
wife of the accused is a blue card  holder  which  entitles  the  family  to
receive 35 kg. rice per month at the rate of Rs.2/-  per  kg.   The  accused
lives in a pucca house.

11.    Learned  counsel  for  the  State  submitted  that   the   State   of
Chhattisgarh has notified Victim Compensation Scheme  under  Section  357-A,
Cr.P.C for providing fund for the purpose of compensation to the  victim  or
his dependents who has have suffered loss or injury as  a  result  of  crime
and who require rehabilitation.  Relevant part of the Schedule  appended  to
the aforesaid notification is extracted herein for easy reference.

                                  SCHEDULE

|S.No. |Details of Loss or Injury             |Maximum Limit of      |
|      |                                      |Compensation          |
|4.    |Rape of Minor                         |50,000/-              |
|5.    |Rape                                  |25,000/-              |
|6.    |Rehabilitation                        |20,000/-              |


12.   Before dealing with the present matter  it  is  pertinent  to  mention
briefly the amount payable to the rape victim and for  rehabilitation  under
Victim Compensation Schemes notified by  the  other  State  Governments  and
Union Territories under Section 357A of the Cr.P.C., 1973.



|Sr.no.|State/ UT    |Details of Loss or Injury  |Maximum Limit of  |
|      |             |                           |Compensation(Rs.) |
|      |Arunachal    |Rape                       |50,000/-          |
|      |Pradesh      |                           |                  |
|      |             |Rehabilitation             |20,000/-          |
|      |             |Rape                       |75,000/-          |
|      |Assam        |                           |                  |
|      |             |Rape of Minor/Gang Rape    |1,00,000/-        |
|      |Bihar        |Rape                       |50,000/-          |
|      |Delhi        |Rape                       |3,00,000/-        |
|      |             |Rehabilitation             |20,000/-          |
|      |Goa          |In case of injury causing, |10,00,000/-       |
|      |             |severe mental agony to     |(Ten Lakh)        |
|      |             |women and child (eg. Rape  |                  |
|      |             |cases etc.)                |                  |
|      |             |Rape                       |1,00,000/-        |
|      |Gujarat      |                           |                  |
|      |             |Rehabilitation             |50,000/-          |
|      |Haryana      |Rape                       |3,00,000/-        |
|      |             |Medical expenses on account|15,000/-          |
|      |             |of injury                  |                  |
|      |Himachal     |Rape                       |50,000/-          |
|      |Pradesh      |                           |                  |
|      |Jammu &      |Rape of minor or rape in   |1,00,000/-        |
|      |Kashmir      |police custody             |                  |
|      |             |Rape                       |50,000/-          |
|      |Karnataka    |Rape of minor              |3,00,000/-        |
|      |             |Rape other than minor      |1,50,000/-        |
|      |Kerala       |Rape                       |3,00,000/-        |
|      |(50 % extra  |                           |                  |
|      |if the victim|                           |                  |
|      |is 14 years  |                           |                  |
|      |or less)     |                           |                  |
|      |             |Rehabilitation             |1,00,000/-        |
|      |Maharashtra  |No amount for the offence  |Nil               |
|      |             |of rape                    |                  |
|      |Manipur      |Rape of Minor              |30,000/-          |
|      |             |Rape                       |20,000/-          |
|      |             |Rehabilitation             |20,000/-          |
|      |Nagaland     |Rape of Minor              |1,00,000/-        |
|      |             |Rape                       |50,000/-          |
|      |             |Rehabilitation             |50,000/-          |
|      |Odisha       |Loss or injury causing     |10,000/-          |
|      |             |severe mental agony to     |                  |
|      |             |women and child victims in |                  |
|      |             |case like Human Trafficking|                  |
|      |Rajasthan    |Rape of Minor              |3,00,000/-        |
|      |             |Rape                       |2,00,000/-        |
|      |             |Rehabilitation             |1,00,000/-        |
|      |Sikkim       |Rape                       |50,000/-          |
|      |             |Rehabilitation             |30,000/-          |
|      |Tripura      |Rape                       |50,000/- of which |
|      |             |                           |Rs.5,000/- shall  |
|      |             |                           |be paid after     |
|      |             |                           |preliminary       |
|      |             |                           |verification of   |
|      |             |                           |the complaint and |
|      |             |                           |the balance amount|
|      |             |                           |shall be          |
|      |             |                           |sanctioned on the |
|      |             |                           |filling of charge |
|      |             |                           |sheet.            |
|      |Uttar Pradesh|Rape                       |2,00,000/-        |
|      |Uttarakhand  |Rape of Minor              |2,50,000/-        |
|      |             |Rape                       |2,00,000/-        |
|      |             |Rehabilitation in case of  |1,00,000/-        |
|      |             |rape victim                |                  |
|      |West Bengal  |Rape of Minor              |30,000/-          |
|      |             |Rape                       |20,000/-          |
|      |             |Rehabilitation             |20,000/-          |
|      |UT of        |Rape                       |3,00,000/-        |
|      |Chandigarh   |                           |                  |
|      |             |Rehabilitation             |20,000/-          |
|      |UT of Dadar  |Rape                       |3,00,000/-        |
|      |and Nagar    |                           |                  |
|      |Haveli       |                           |                  |
|      |             |Rehabilitation             |20,000/-          |
|      |UT of Daman  |Rape                       |3,00,000/-        |
|      |             |Rehabilitation             |20,000/-          |
|      |UT of        |Rape                       |3,00,000/-        |
|      |Puducherry   |                           |                  |
|      |             |Rehabilitation             |20,000/-          |




13.   Perusal of the aforesaid  victim  compensation  schemes  of  different
States and the Union Territories, it is clear that no  uniform  practice  is
being followed in providing compensation to the rape victim for the  offence
and for  her  rehabilitation.  This  practice  of  giving  different  amount
ranging from Rs.20,000/- to Rs.10,00,000/- as compensation for  the  offence
of rape under section 357A needs to be introspected by all  the  States  and
the Union Territories. They should consider and formulate a  uniform  scheme
specially for the rape victims in the light of  the  scheme  framed  in  the
State of Goa which has decided to give compensation up to Rs.10,00,000/-.



14.   While going through different schemes for  relief  and  rehabilitation
of victims of rape, we  have  also  come  across  one  Scheme  made  by  the
National Commission of Women (NCW) on the direction of this court  in  Delhi
Domestic Working Women’s Forum vs. Union of India and  Ors.  [Writ  Petition
(Crl) No. 362/93], whereby this Court inter alia had directed  the  National
Commission for Women to evolve a “scheme” so as to wipe  out  the  tears  of
unfortunate victims of rape.  This scheme has been revised  by  the  NCW  on
15th April 2010.  The application under this scheme will be in  addition  to
any application that may be made under Section 357,  357A  of  the  Code  of
Criminal Procedure as provided in paragraph 22 of  the  Scheme.  Under  this
scheme maximum of Rs.3,00,000/- (Three lakhs) can be given to the victim  of
the rape for relief and rehabilitation in special  cases  like  the  present
case where  the  offence  is  against  an  handicapped  woman  who  required
specialized treatment and care.



15.    Coming  to  the  present  case  in  hand,  victim  being   physically
disadvantaged, she was already in a socially  disadvantaged  position  which
was exploited maliciously by the accused  for  his  own  ill  intentions  to
commit fraud upon her and rape her in the garb of  promised  marriage  which
has put the victim  in  a  doubly  disadvantaged  situation  and  after  the
waiting of many years it has worsened. It would  not  be  possible  for  the
victim to approach the National Commission  for  Women  and  follow  up  for
relief and rehabilitation. Accordingly the victim, who has already  suffered
a lot since the day of the crime till now, needs  a  special  rehabilitation
scheme.



16.   Mr. Atul Jha, learned counsel appearing for the  Respondent-State,  on
instructions received from the  Superintendent  of  Police,  District  Durg,
submitted that for the rehabilitation of  the  victim  the  Home  Secretary,
Department of Home has taken decision to keep the victim  in  Nari  Niketan,
to provide her food, clothes and shelter and the monthly pension of Rs.300/-
 throughout her life.  For the said rehabilitation programme, the State  has
to incur about Rs.8,000/- to Rs.10,000/- per month.



17.    Indisputably,  no  amount  of  money  can  restore  the  dignity  and
confidence that the accused took away from the victim.  No amount  of  money
can erase the trauma and grief the victim suffers.  This aid can be  crucial
with aftermath of crime.



18.   The victim, being in a vulnerable position and who is not being  taken
care of by anyone and having no family to support her either emotionally  or
economically, we are not ordering the respondent-State to give her any  lump
sum amount as compensation for rehabilitation as she is not  in  a  position
to keep and manage the lump sum amount.  From the  records,  it  is  evident
that no one is taking care of her and she is living alone  in  her  Village.
Accordingly, we in  the  special  facts  of  this  case  are  directing  the
respondent-State to pay Rs.8,000/- per month till her  life  time,  treating
the same to be an interest fetched on a  fixed  deposit  of  Rs.10,00,000/-.
By this, the State will not be required to pay any lump sum  amount  to  the
victim and this will also be in the interest of the victim.



19.   In the result, we dismiss the appeal having no  merit  and  issue  the
following directions:-

1)    All the States and Union  Territories  shall  make  all  endeavour  to
formulate a uniform scheme for providing victim compensation in  respect  of
rape/sexual exploitation with the physically handicapped women  as  required
under the law taking into consideration the scheme framed by  the  State  of
Goa for rape victim compensation;



2)    So far as this case is concerned, the  respondent-State  shall  pay  a
sum of Rs.8,000/- per month as victim compensation  to  the  victim  who  is
physically handicapped, i.e. blind, till her life time.



                                                                ……………………….J.

                                                                 (M.Y.Eqbal)



                                                                ……………………….J.

                                                               (Arun Mishra)

New Delhi

February 11, 2016