REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    2060        OF 2008 [arising out of SLP (Criminal) No. 5644 of 2005]

STATE OF M.P.      … APPELLANT

VERSUS

BABLU NATT    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.  

2. On 26.03.2000, Respondent bought paddy husk for a sum of Rs.

500/- from the father of the prosecutrix whereafter they were said to have

become acquainted with each other.  Respondent and his friend Mohan

Bangali, who came with him, at their request were allowed to sleep in the

Khalihan.  However, in the middle of the night, he took the prosecutrix

away with him.  On the next day, i.e., on 27.03.2000, a First Information

Report (FIR) was lodged by Shaktideen, father of the prosecutrix.  The

prosecutrix was a minor but a married woman.  She was recovered on

27.7.2000.   Respondent  was  arrested  on  28.7.2000.   Charges  for

commission of offences punishable under Sections 366 and 376 of the

Indian Penal Code (‘IPC’ for short) were framed.   

3. Respondent  in  his  defence  raised  a  plea  that  prosecutrix  was  a

consenting party.  He also raised a plea that she was major.  In support of

the  said  contention,  he  produced  an  affidavit  purported  to  have  been

affirmed by her stating where her age to be 18.   

Further contention of the respondent was that he had arranged the

second marriage of Shaktideen, the father of the prosecutrix, subject to

the condition that Lilawati (prosecutrix) would be married with him and

that is why both the families were on visiting terms and Lilawati eloped

with respondent voluntarily and had undergone a court marriage.

4. The learned Sessions Judge found that  he had committed sexual

intercourse with the prosecutrix without her consent and against her will.

But even if it is accepted that she was a consenting party, as she was not

more than 13 years of age, such purported consent was of no moment.

Accused  was  found  to  have  committed  sexual  intercourse  with  the

prosecutrix on more than one occasion against her will and without her

consent between 26th  and 27th March, 2000 till the date of her recovery,

i.e, 27.7.2000, and, thus, is guilty of commission of offences punishable

under Sections 366 and 376 of IPC.     

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The  learned  Sessions  Judge,  upon  considering  the  materials  on

record,  found that  respondent had taken away the prosecutrix from the

lawful custody of her lawful guardian Shaktideen - her father - without

his  consent,  with  the  intention  that  she  be  forced  to  illicit  sexual

intercourse.  It was further held that the appellant had knowledge that the

prosecutrix was married but even then he took her away with himself and

committed sexual  intercourse with  the prosecutrix  against  her  will  and

without her consent.  

Upon hearing respondent on the question of sentence, it was held:

“22. It  was argued on behalf  of  accused that this is his first offence therefore he should be pardoned.  Argument and request was heard and considered.  As has been found above that  being  well  aware  of  the  fact that  prosecutrix  is  married and a minor, even then he took away prosecutrix from the lawful keeping of guardianship of her father  without  the  consent  of  the  father for  committing  illicit  sexual  intercourse with  her  and  committed  sexual intercourse  with  prosecutrix  against  her will and without her consent.  In such a circumstance, the above-proved act of the accused  does  not  deserve  any  pardon. But as the accused is a young man of 20 years  therefore,  accused  Bablu  Natt  is sentenced  to  undergo  7-7  years  of rigorous imprisonment (for each offence) and with  a  fine  of  Rs.500/-,  500/-  (five hundred)  (for  each  offence)  for committing  offences  punishable  under Section  366/376  of  IPC.   In  case  of default of payment of fine, accused had to further  undergo  2-2  years  of  rigorous

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imprisonment  for  default  of  payment  of each amount of fine.”

5. An appeal was preferred thereagainst.  The High Court, by reason

of the impugned judgment, while upholding the judgment of conviction

interfered with the quantum of sentence, stating:

“11. Yet  there  is  another  facet  of  the  case. True,  the  prosecutrix  was  minor  and  did  not attain the age of majority.  But it is equally true that she is sensible girl having age of 15 years, she did not complain to anybody and she lived for  several  days  with  appellant  at  Chhatarpur. She also traveled at several places in bus she did not  complain  to  anybody.   Not  only  this,  she also  sworn  an  affidavit  at  District  Court, Chhatarpur mentioning her age to be 18 years and stated that she is living with appellant as his wife.  The prosecutrix admitted in her testimony that she executed affidavit Ex. D/1.  In this view of the matter, looking to the totality of the facts and surrounding circumstances, this is a fit case for  interfering  in  the  quantum of  punishment. For the reasons assigned hereinabove, the view of  this  Court  is  that  for  the  ends  of  justice  it would be justifiable to enlarge the appellant for the  period  he  has  already  undergone.   From verifying  the  record,  learned  counsel  for  the respondent  has  submitted  that  appellant  has undergone a jail sentence of four years and two months,  according  to  me,  this  would  be sufficient punishment for him.”

6. The State is, thus, before us.

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7. Mr. Vibha Datta Makhija, learned counsel appearing on behalf of

appellant  submitted  that  rigorous  imprisonment  for  seven years having

been prescribed by the Parliament,  the reasons  assigned for sentencing

the respondent for the period undergone should not be upheld.  

8. Mr. Anish Kumar Gupta, learned counsel appearing on behalf of

respondent,  however,  supported  the  judgment  of  the  High  Court

contending  that  the  reasons  assigned  by  the  High  Court  are  not  only

sufficient  but  also  cogent  for  the  purpose  of  invoking  the  proviso

appended to Section 376 of the IPC.   

9. Indisputably, sentence in terms of Section 366 of the I.P.C. may

extend to rigorous imprisonment for a term of ten years or fine or with

both.  Section 376 thereof provides for sentence 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.   The proviso

appended thereto,  however,  provides  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’.  

10. Was it a case where the proviso to Section 376 could be invoked is

the question.  The prosecutrix and the respondent were unknown to each

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other.  They came to know each other only on the night of 26.3.2000.  A

finding of fact had been arrived at that she was minor.  The fact that she

was  subjected  to  sexual  intercourse  was  supported  by  the  medical

evidence.  Medical opinion was rendered that rape was committed on her

and  she  was  not  habituated  to  sexual  intercourse.  On  medical

examination, her age was assessed between 11 and 13 years.   

11. We may place on record a few questions put to the said witness

and answers thereof:  

“Question: What happened to you?

Answer: When I asked the accused to  take me  to  my  house  then  he  started talking nonsense and started telling me.  

Question: What  nonsense  he  started  talking with you and what he started telling you?

Answer: Accused  asked  me  to  sleep  with him  and  I  refused,  the  accused made me sleep with him by use of force  and  took  off  my  Saari  and also  took  off  my  clothes  and humiliated me and did bad act with me.  (One sentence omitted).

I could not even go to my parents house  because  the  accused  was keeping me in his house

XXX XXX XXX

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Everyone in my house call me Bitti. It is wrong to say that I went with accused Bablu on my own volition. It  is  wrong  to  say  that  I  married with  accused  Bablu  in  the Chattarupur Court by my own will. It is wrong to say that an affidavit was  signed  in  this  respect.   It  is correct  that  such  paperwork  was completed in the Court and accused told  me  to  tell  my  age  to  be  18 years therefore, I told my age to be 18 years.  It is wrong to say that I completed such paperwork.  When I  was  caught  in  the  house  of  the accused,  I  was  kept  there  by  the accused for 6 days.  I do not know that whose house is located besides the house of accused Bablu.  When witness  was  shown  affidavit  of Exhibit  D-4,  witness  says  that photograph pasted on it from A to A belongs to her.

It  is  wrong  to  say  that  Bablu  did not  elope  me.  It  is  wrong to  say that I came to his house on my own will.”

12. Admittedly,  an  offence  with  which  respondent  was  charged  had

been proved to have been committed.  He also got an affidavit affirmed

by the prosecutrix showing her age to be 18 years, which was found to be

false.  He, therefore, knew the intricacies of law.

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13. The principle governing imposition of punishment would depend

upon the facts and circumstances of each case.  An offence which affects

the morale of the society should be severely dealt with.  Socio-economic

status,  religion,  race,  caste  or  creed  of  the  accused  and  the  victim

although may not be wholly irrelevant, should be eschewed in a case of

this nature, particularly when Parliament itself had laid down minimum

sentence.  In India, we do not have sentencing guidelines.  Necessity of

the guidelines on the judicial side has been highlighted in State of Punjab

vs. Prem Sagar & Others.[(2008) 7 SCC 550], wherein it was noticed:

“5. Whether  the  Court  while  awarding  a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality,  would  no  doubt  depend  upon the facts and circumstances of each case.  While doing  so,  however,  the  nature  of  the  offence said  to  have  been  committed  by  the  accused plays  an  important  role.   The  offences  which affect public health must be dealt with severely. For the said purpose, the courts must notice the object  for  enacting  Article  47  of  the Constitution of India.  

6. There  are  certain  offences  which  touch our  social  fabric.   We must  remind  ourselves that even while introducing the doctrine of plea bargaining in the Code of Criminal Procedure, certain  types of offences had been kept  out of the purview thereof.  While imposing sentences, the said principles should be borne in mind.

7. A sentence is a judgment on conviction of a  crime.   It  is  resorted  to  after  a  person  is convicted of the offence.  It is the ultimate goal of  any  justice-delivery  system.   Parliament, however, in providing for a hearing on sentence,

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as would appear from sub-section (2) of Section 235, sub-section (2) of Section 248, Section 325 as  also  Sections  360  and  361  of  the  Code  of Criminal  Procedure,  has  laid  down  certain principles.   The  said  provisions  lay down  the principle that the court in awarding the sentence must take into consideration a large number of relevant  factors;  sociological  backdrop  of  the accused being one of them.  

8. Although  a  wide  discretion  has  been conferred  upon  the  court,  the  same  must  be exercised judiciously.  It would depend upon the circumstances  in  which  the  crime  has  been committed  and  his  mental  state.   Age  of  the accused is also relevant.”

Upon  noticing  the  development  of  law  in  this  behalf  in  other

countries, it was opined:

“31. We have noticed the development of law in  this  behalf  in  other  countries  only  to emphasise  that  the  courts  while  imposing sentence  must  take  into  consideration  the principles  applicable  thereto.   It  requires application of mind.  The purpose of imposition of sentence must also be kept in mind.”

14. One of the  principles  that  the judiciary had all  along kept  in its

mind that rape being a violation with violence of the private person of a

woman causes mental scar, thus,  not  only a physical  injury but a deep

sense  of  some  deathless  shame  is  also  inflicted.  (See  Mohan  Anna

Chavan vs.  State of Maharashtra [2008 (9) SCALE 474] and  Bantu vs.

The State of U.P. [2008 (10) SCALE 336]

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Although, with utmost respect to the Hon’ble Judges, one may not

entirely agree with invocation of doctrine of proportionality in imposing

death sentence as has been highlighted in the above two cases, we may

notice that in latter doctrine of proportionality has been invoked, stating:

“24. The criminal law adheres in general to the principle  of  proportionality  in  prescribing liability  according  to  the  culpability  of  each kind of criminal  conduct.   It  ordinarily allows some  significant  discretion  to  the  Judge  in arriving at a sentence in each case, presumably to  permit  sentences  that  reflect  more  subtle considerations of culpability that  are raised by the special facts of each case.  Judges in essence affirm that  punishment ought always to fit  the crime; yet in practice sentences are determined largely by other considerations.  Sometimes it is the correctional needs of the perpetrator that are offered  to  justify  a  sentence.   Sometimes  the desirability  of  keeping  him out  of  circulation, and  sometimes  even  the  tragic  results  of  his crime.  Inevitably these considerations cause a departure  from  just  desert  as  the  basis  of punishment  and  create  cases  of  apparent injustice that are serious and widespread.”

15. We may also notice that in  State of M.P. vs. Bala alias Balaram

[(2005) 8 SCC 1], this Court  commenting upon the grossly inadequate

sentence imposed upon by the High Court of Madhya Pradesh, stated:

“6.  Sub-section  (1)  of  Section  376  I.P.C. provides  that  whoever,  except  in  the  cases provided for  by Sub-section (2),  commits rape shall  be punished with  imprisonment  of  either

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description  for  a term which  shall  not  be less than 7 years but which may be for life or for a term which  may extend  to  10  years  and  shall also be liable to fine. In the category of cases covered under Sub-section (2)  of Section 376, the sentence  cannot  be  less  than  10  years  but which may be for life and shall also be liable to fine.  The proviso  appended to  Sub-section  (1) lays down 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 7 years. There is a similar proviso to Sub-section (2) which empowers the Court to award a sentence of less than 10 years for  adequate  and  special  reasons  to  be mentioned in the judgment. The High Court in the  impugned  order  has  awarded  a  sentence which is not only grossly inadequate but is also contrary to express provision of law. The High Court has not  assigned any satisfactory reason much  less  adequate  and  special  reasons  for reducing  the  sentence  to  a  term which  is  far below the  prescribed minimum. Therefore,  the sentence awarded by the High Court is clearly illegal.”

P.K. Balasubramanyan, J. in his concurring judgment added:

“11. The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. The penal statute has prescribed a maximum and  a  minimum punishment  for  an offence under Section 376 I.P.C. To view such an offence once it is proved, lightly, is itself an affront  to  society.  Though  the  award  of maximum  punishment  may  depend  on  the circumstances  of  the  case,  the  award  of  the minimum punishment, generally, is imperative. The  provisos  to  Section  376(1)  and  376(2) I.P.C.  give the  power  to  the  court  to  award  a

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sentence lesser than the minimum for adequate and  special  reasons.  The  power  under  the proviso  is  not  to  be  used  indiscriminately  or routinely. It is to be used sparingly and only in cases  where  special  facts  and  circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The mere existence of a discretion by itself  does  not  justify  its  exercise.  The  long pendency of the criminal trial or the offer of the rapist  to  marry  the  victim  are  not  relevant reasons. Nor is the age of the offender by itself an adequate reason.

13. The rationale for advocating the award of a punishment commensurate with the gravity of the  offence  and  its  impact  on  society,  is  to ensure that a civilized society does not revert to the days of 'an eye for an eye and a tooth for a tooth'.  Not  awarding  a  just  punishment  might provoke the victim or its relatives to retaliate in kind  and  that  is  what  exactly  is  sought  to  be prevented  by  the  criminal  justice  system  we have adopted.”

16. The  said  line  of  reasonings  was  adopted  in  about  twelve  short

orders following the said decision.   

17. In State of Karnataka vs. Raju [(2007) 11 SCC 490], it was held:  

“6. It needs no emphasis that the physical scar may heal  up,  but  the  mental  scar  will  always remain.  When  a  woman  is  ravished,  what  is inflicted  is  not  merely  physical  injury  but  the deep  sense  of  some  deathless  shame.  An accused  cannot  cling  to  a  fossil  formula  and insist  on corroborative evidence,  even if  taken

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as  a  whole,  the  case  spoken  to  by the  victim strikes  a  judicial  mind  as  probable.  Judicial response to human rights cannot be blunted by legal jugglery.

7.  It  is  to  be  noted  that  in  Sub-section  (2)  of Section  376  I.P.C.  more  stringent  punishment can be awarded taking into account the special features  indicated  in  the  said  sub-section.  The present case is covered by Section 376(2)(f) IPC i.e. when rape is committed on a woman when she is under 12 years of age.”

18. We have noticed hereinbefore that the age of the prosecutrix was

assessed between 11 and 13 years, but by way of abundant precaution, the

learned Sessions Judge held her age to be less than 13.  The court has not,

therefore, awarded any punishment in terms of Section 376(2)(f) of the

Indian Penal Code.  But even in doing so, the learned trial judge herein

imposed  the  minimum sentence,  should  have  met  the  approval  of  the

High Court.  It was a case where the minimum sentence, to say the least,

could be imposed.   While saying so,  we may notice that  this  Court  in

State of U.P. vs. Bodem Sundara Rao [(1995) 6 SCC 230] stated the law

thus:

“6.  After  its  amendment,  Section  376(1) provides for a minimum sentence of seven years which  may extend to  life or  for  a term which may  extend  to  10  years  besides  fine  for  the offence of rape. The proviso to Sub-Section (1) lays that the Court may for adequate and special reasons to be recorded in the judgment, impose

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a sentence of imprisonment  for  a term of less than seven years.

7. Keeping in view the nature of the offence and the helpless condition in which the prosecutrix a young girl of 13/14 years was placed, the High Court  was  clearly  in  error  in  reducing  the sentence imposed upon the respondent and that too  without  assigning  any  reasons,  much  less special  and adequate  reasons.  The High Court appears to have overlooked the mandate of the Legislature as reflected in Section 376(1) IPC.

9. In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition  of  grossly inadequate  sentence  and particularly  against  the  mandate  of  the Legislature not only is an injustice to the victim of the crime in particular  and the society as a whole in general but also at times encourages a criminal.  The Courts  have an obligation while awarding  punishment  to  impose  appropriate punishment so as to respond to the society's cry for  justice  against  such  criminals.  Public abhorrence  of  the  crime  needs  a  reflection through  the  court's  verdict  in  the  measure  of punishment. The Courts must not only keep in view  the  rights  of  the  criminal  but  also  the rights of the victim of crime and the society at large  while  considering  imposition  of  the appropriate  punishment.  The heinous  crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was  inhumane.  There  are  no  extenuating  or mitigating circumstances available on the record which  may justify  imposition  of  sentence  less than the minimum prescribed by the Legislature under Section 376(1) of the Act.”

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19. The imposition of minimum sentence having been brought  about

by an amendment in the statute, the court should always bear in mind the

effect thereof.  The power conferred on the court to impose a sentence

less  than  the  minimum prescribed  must  not  only be  supported  by any

reason but adequate and special reasons ought to be mentioned therefor.

The High Court did not do so. It is difficult to comprehend as to on what

materials the High Court opined that ‘she was a sensible girl having age

of 15 years, she did not complain to anybody and lived for several days

with  respondent  at  Chhatarpur’.  The  fact  that  she  was  a  minor  and

subjected to rape and furthermore, as noticed hereinbefore, according to

her, she was compelled to live for several days with the respondent  at

Chhatarpur as he would not listen to her plea of taking her to her father

was lost sight of by the High Court.  The affidavit affirmed by her was

found to have been obtained without  her knowing the contents  thereof

and at the instance of respondent.   The very fact that she was made to

state that her age was 18 years and she was living with the respondent as

a wife clearly goes to show the mental trauma which she was undergoing.

We are, therefore, of the opinion that the contents of the said affidavit

were wrongly used for imposing a sentence less than minimum prescribed

sentence considering the same to be mitigating factor.   

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20. Our  attention,  however,  has  been  drawn  to  the  decision  of  this

Court in  State of Punjab  vs.  Gurmit Singh & Ors.  [(1996) 2 SCC 384],

wherein this Court imposed less sentence than the minimum prescribed

one.   In  that  case,  a  judgment  of  acquittal  was  passed.   This  Court

reversed  the  said  judgment.   It  was  in  the  aforementioned  situation,

balance was sought to be struck, stating:

“…In  this  case  the  occurrence  took  place  on 30.3.1984  (more  than  11  years  ago.  The respondents were aged between 21-24 years of age  at  the  time  when  the  offence  was committed.  We  are  informed  that  the respondents have not been involved in any other offence  after  they  were  acquitted  by  the  trial court on 1.6.85, more than a decade ago. All the respondents as well as prosecutrix must have by now got married and settled down in life. These are some of the factors which we need to take into  consideration  while  imposing  an appropriate  sentence  on  the  respondents.  We accordingly  sentence  the  respondents  for  the offence Under Section 376 IPC to undergo five years’  RI  each and to  pay a  fine of  Rs.  5000 each  and  in  default  of  payment  of  fine  to  1 year's  RI each.  For the offence  Under Section 363  IPC  we  sentence  them  to  undergo  three years R.I. each but impose no separate sentence for the offence Under Section 366/368 IPC. The substantive  sentences  of  imprisonment  shall, however, run concurrently.”

21. The decision does not lay down any legal principle.  It  does not

create a binding precedent.  We have noticed that the same learned judge

has spoken in different voice in Bodem Sundara Rao (supra).  

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22. For the reasons aforementioned, the judgment of the High Court is

set aside so far as it relates to the quantum of sentence and the judgment

awarded by the trial court is restored.  It is directed that the respondent be

taken in  custody forthwith  to  serve  out  the  remaining  sentence.    The

appeal is allowed to the aforementioned extent.

……………….…..………….J. [S.B. Sinha]

..………………..……………J.    [Cyriac Joseph]

New Delhi; December 18, 2008

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