ORDER
In this petition filed under Section 389 Cr.P.C, A-1 seeks suspension of his sentence of imprisonment imposed upon him in the Sessions Case in S.C No. 373 of 2009 on the file of the learned Additional Sessions Judge, Mahila Court, Cuddalore.
2. A-1 was prosecuted along with A-2 and A-3. A-2 and A-3 were acquitted from the charges under Section 417 read with Section 109 IPC. However, A-1 was convicted under Section 376 IPC and sentenced to 7 years R.I and fined Rs. 5,000/- in default 1 year R.I and under Section 357(3) Cr.P.C, he was directed to pay a compensation of Rs. 2 lakhs to PW-1. He was acquitted from the charge under Section 417 I.P.C
3. On 22.12.2014, A-1 was directed to deposit Rs. 1 lakh before the Trial Court. Subsequently, time was extended by this Court. Now as directed A-1 has deposited Rs. 1 lakh in the Trial Court.
4. A-1 is alleged to have raped PW-1, who was stated to be then a minor. As per the prosecution version, she was stated to have born on 23.6.1993 But, this was contradicted by A-1.
5. It is pertinent to note that PW-1 gave birth to a female child on 14.7.2009 PW-5, who conducted DNA test confirmed that the said child was born to PW-1 through A-1.
6. Before the Trial Court, A-1 took the stand that he had physical contact with PW-1, but it was consensual.
7. PW-1 has no parents. PW-2 is her adoptive mother. Now, PW-1 has become mother of a child. But as on date, she is nobody's wife. So, she is an unwed mother.
8. Now there is a big question mark looming large before PW-1 as well as her child, who is completely innocent. Generally, in this type of cases, the prosecutrix/PW-1 is stated to be a victim, but really speaking the child born out of such a physical contact is also a victim. The child is a victim of circumstances. She had born to suffer a social stigma for no fault of her. It is a great tragedy.
9. In her ‘Women & Law - From Impoverishment to Empowerment (Eastern Book Company, Lucknow) (1st Edition-2011), at page No. 237, Dr. Lalita Dhar Parihar remarked:-
“India is a pluralist country. The reverence for women is interwoven in its cultural raiment of which Hinduism and Islam are the main strands. It is the catchword of Hindu familial jurisprudence and so of its mythology that “where women are revered gods live.” So does Islam venerate motherhood in uneloquent language, and ordains “underneath mother's feet is the paradise” besides the Quran venerates femininity in different contexts. The religions other Hinduism and Islam venerate womanhood in different style and in their own ways. As such in a value oriented society like India no enactment is required to regulate bane behaviours, yet human fallibility, which overtakes sanity cannnot be ignored.”
10. Women are the soft targets of male lust. For anything and everything, they are being blamed. Very often, they are being forgotten that they too are humanbeings. They are considered as chattels, although in our country, they are hailed as ‘Sakthi’, ‘Mother’, ‘Sister’, ‘Nurse’, ‘Life Partner’, ‘Face Saver’, ‘All in One’. And behind every man's success, they are there. They do deserve dignity than indignation.
11. Right to live with human (woman) dignity enshrined in Article 21, Constitution of India give them right to live with dignity and proper status. [see Bandhua Mukti Morcha v. Union of India ((1984) 3 SCC 161) and Vikram Deo Singh Tomar v. State Of Bihar. (AIR 1988 SC 1782)]. Yet the position of the women and children in this country is highly deplorable. They don't want (man's) charity but opportunity and parity. Proper empowerment to them will be their real emancipation.
12. As an alternative to the time consuming, cumbersome, expensive conventional court system, a new dispute resolving mechanism has been adopted by Indian Legal System. It is Alternative Dispute Resolution method (A.D.R).
13. A.D.R had gained momentum in U.S.A, and also in certain Western countries. It was statutorily recognised in our country in Section 89 of the Civil Procedure Code. It has different modes. Such as ‘Mediation’, ‘Conciliation’, ‘Settlement’, ‘Lok Adalat’, ‘Arbitration’. It had got strong patronoage under the Legal Services Authorities Act, 1987. And now Legal Services Authorities from Taluk level upto Supreme Court make use of this ADR System to solve the problems of the litigant public to the liking of both sides.
14. In fact, even in Islam, Hinduism and Christianity, there are instances of solving the disputes in a non-belligerent manner. The result of it is very good because there is ‘no victor, no vanquished’. Thus, ‘Trinity’ propagates humanity.
15. The ADR mechanism is now being used in criminal cases also. In fact, it is good to the litigants as well as to the State and to the Court.
16. Section 320(1) and (2) Cr.P.C, dealing with compounding of offences also have been used to resolve the conflicts, in a peaceful manner. The inherent jurisdiction of High Courts under Section 482 Cr.P.C also has been invoked to promote compromises. [see Gian Sigh v. State of Punjab ((2012) 10 SCC 303)], State of Madhya Pradesh v. Deepak [(2014) 10 SCC 285].
17. Criminal cases, including fit and appropriate cases registered under Section 376 IPC can also be solved under Alternative Dispute Resolution System.
18. In Ravindra v. State Of Madhya Pradesh. 2015 SC 163) when the accused who was convicted under Section 376 IPC has married the victim and there was compromise between them, the Hon'ble Supreme Court referring to the proviso to Section 376 IPC considered the said aspects a special reason to reduce the sentence to the period undergone. [Also see Wasim v. State (CDJ 2014 DHC 2901)]. Thus, human sentiments and human elements also has been noticed by the Court.
19. It is march of law. There is no bar to attempt at reconciliation even in a criminal appeal where the accused has been convicted under Section 376 IPC.
20. Earlier, in Crl. O.P No. 1881 of 2015 (Samuvel v. The Inspector of Police, All Women Police Station, Gummidipoondi, Thiruvallur District) wherein the accused has been proceeded with under Section 376 IPC and Section 4 of POCSO Act, the accused sought for bail on 3.2.2015, while granting him bail, I have directed both sides to go for Mediation and in the said order, in paragraph Nos. 3 to 5, I have observed as under:-
“3. Petitioner is 20, while the prosecutrix is 17 years old. Prosecution version is that the petitioner had duped and raped the prosecutrix. Now the prosecutrix has become mother of a child, but noboyd's wife.
4. It is a pathetic case of a young woman. Petitioner is an eligible bachelor. Now he is in jail for more than 50 days.
5. Some solution has to be arrived at because there is a big question mark before the girl. Her future is very important.”
21. Subsequently, in the said matter, as directed by this Court, the District Legal Services Authority, Thiruvallur and the Tamil Nadu State Legal Services Authority, Chennai pursued follow up action. It was reported to this Court that Mr. I.A Immanuel, Advocate, Thiruvallur has mediated the matter and ultimately, the accused had agreed to marry the victim girl. Now the said case is proceeding towards an happy conclusion.
22. In the facts and circumstances, the case before us is a fit case for attempting compromise between the parties. ‘Mediation’ mode is best suited to them.
23. In these circumstances, keeping the appellant inside the jail and asking him to participate in the Mediation talk will not result in any fruitful result. He should be enabled to participate in the deliberations as a freeman and vent his feelings, open his mind and moorings. ‘Where there is a will, there is a way’.
24. In the circumstances, ordered as under:-
(i) Refer this matter to the Mediation Center attached to this Court;
(ii) The learned Additional Sessions Judge, Mahila Court, Cuddalore will deposit the deposited Rs. 1 lakh in Indian Bank, Thittakudi, Cuddalore District in a Fixed Deposit in the name of PW-1;
(iii) The Branch Manager, Indian Bank, Thittakudi shall regularly disburse the accrued monthly interest on the said deposit to PW-1;
(iv) Till the Mediation process is over, petitioner/A-1 is granted interim appeal bail;
(v) There shall be two sureties, who shall be the parents of the petitioner and they and the petitioner shall execute a bond for Rs. 10,000/- (Rupees Ten Thousand only) each to the satisfaction of the said Judge;
(vi) The Mediation Center will fix a date and send notices to PW-1 and A-1, close relatives of PW-1 and parents of A-1 shall be made to participate in the Mediation process;
(vii) The Mediation Center will permit the learned counsels appearing on both sides to assist the Mediators;
(viii) A-1 shall appear before the Mediation Center as and when so ordered;
(ix) Compromise, if any, arrived at shall be reduced into a form of a Memorandum of Understanding (M.O.U) and it shall be submitted to this Court.
(x) Violation of spirit of this order and terms and conditions stated above will entitle PW-1 or the respondent-Police to move this Court for cancellation of the interim appeal bail granted to the petitioner.
(xi) Along with the Mediation Report, this miscellaneous petition shall be reposted before this Court.
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