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PETITIONER: SHIV  GOVIND

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT14/03/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH GROVER, A.N.

CITATION:  1972 AIR 1823            1972 SCR  (3) 835  1972 SCC  (3) 399  CITATOR INFO :  F          1973 SC 467  (6)

ACT: Criminal trial--Enhancement--Enhancement of sentence by appellate Court--Principles governing.

HEADNOTE: A  question  of sentence is a matter of discretion.  It  is  well settled  that when discretion has been properly  exercised  along accepted judicial lines. an appellate Court should not  interfere to the detriment of an accused person.  Such interference will be justified  only by strong reasons Which must be disclosed on  the fact  of the, judgment.  In a matter of enhancement there  should not   be   interference  when  the  sentence-,   passed   imposes substantial  punishment. lnterference is only called for when  it is manifestly inadequate. [839 B] Where  the  trial  court  after  taking  into  account  all   the circumstances  end  also  the discrepancies  in  the  prosecution version convicted the appellant to one years, imprisonment  under s.  366, Penal Code, and the High Court in appeal,  enhanced  the sentence to seven years’ imprisonment. HELD : that the High Court had not noticed a number of facts duly considered by the trial court and, therefore, the exercise of the power of enhancement could not be justified. [839 G] Bed Rai v. The State of Uttar Pradesh, [1955] 2 S. C.R. 583,  and Alamgir & Anr. v. The State of Bihar, [1959] Supp.  I S.C.R. 464, referred to. Nabi  Bux and ors. v. The State of Madhya Pradesh, A. 1. R.  1972 S.C. 495, distinguished.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3 of 1972. Appeal by special leave from the judgment and order dated January 25,  1971  of  the Madhya Pradesh High  Court,  Indore  Bench  in Criminal Appeal No. 391 of 1969. S.   K. Gambhir, for the appellant. M.   N. Shroff, for the respondent. The, Judgment of the Court was delivered by Beg, J. Shiv Govind, the appellant , has obtained Special.  Leave to appeal against only that part of the Judgment and order of the

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High Court of Madhya Pradesh by which his sentence of one, year’s Rigorous Imprisonment, passed by the Additional Sessions’  Judge, Indore,  upon a conviction under Section 366 Indian  Penal  Code, was enhanced to seven years’ Rigorous Imprisonment 836 and a fine of Rs. 100/-, and, in. default of payment of fine,  to three months’ further rigorous imprisonment.  The appellant, aged about  20  years  at the time of the alleged offence  of  9th  of August, 1969, was the youngest of three persons who were  jointly charged  and tried for offences punishable under Section 366  and 354 I.P.C. The prosecution case was : Kumari Seema, a girl below 18 years of age,  was  offered a lift on his bicycle by  the  accused,  Kamal Singh, aged 30 years, while she was returning to her homefrom her School  on  9th August, 1969.  The girl hesitated.  But,  as  she reposed  confidence in Kamal Singh, whom she looked upon  as  her uncle, she accepted the offer.  Kamal Singh took Kumari Seema  on his  bicycle  to the Regal Cinema where she  part-took  of  some. refreshment  ordered  by Kamal Singh.  Meanwhile,  the  appellant Shiv  Govind and the accused Punani, aged 26, arrived in  a  car. Kamal Singh asked Kumari Seema to go with the two younger men  in their car.  Seema refused.  Then, Kamal Singh asked her to go  on his bicycle to Yashwant Talkies.  She complied with this request. At  this  Cinema, Kanial Singh deposited his Cycle at  the  Cycle stand.   The  appellant Shiv Govind and his companion  Punam  had followed  in  their car.  The three men succeeded  in  persuading Seema,  despite her initial refusal, to sit in the car and to  go for  a short pleasure trip in it on the, definite assurance  that she will soon be reached home.  After the girl had sat in the car she  was driven to a place called Mandow, a number of miles  away from  Indore,  and was made to alight at  a  tourist’s  bungalow. There  two  rooms  were  engaged by  the  accused.,  Kamal  Singh occupied  one of the two rooms and the girl was closeted  in  the other  room with the appellant and his companion Punam, who  were both drunk.  One of the two youngmen caught hold of the hands  of the girl while the other tried to undress her with the object  of raping  her.   Kumari  Seema,  at  this  point,  feigned   sudden indisposition so that the two youngmen had to bring her out  into the  gallery  for  fresh air.  She managed to  escape  while  the accused went inside to fetch some water for her, She rushed  into the  house of one Babulal Kamdar and complained to him about  the incident.   This  led to a communication of  information  of  the offences to the Police which went to the tourist’s bungalow.  and arrested  the  three accused who were brought to  Police  Station Nalcha where a First Information Report was lodged. The Trial Court had examined the evidence given in support of the case  stated  above.   This  included  medical  evidence  on  the question  of the age of the girl, because, while the  prosecution alleged  that she was below 16 years of age, the accused  pleaded that  she was above 18 years of age.  Evidently, the case of  the accused 837 Was  that  Kumari Seema was a consenting party to  whatever  took place.   Although the girl was attending a School, the  entry  of her  age in the School Register was not disclosed.  Despite  some discrepancies  in the evidence relating to the age of  the  girl, the trial court came to the conclusion that it was between 16  to 19 years.  It relied mainly on expert evidence of Doctors who had used the ossification test. The  Trial Court had also noticed the discrepancies  between  the prosecution  version,  as set out above by Kumari  Seema  in  her evidence  in Court. and the story given out by her in  the  First lnformation  Report where she had stated that she had joined  the party  of  the  accused at the crossing  of  Bijasan  Road.   The earlier version suggested that the girl had herself gone to  meet

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the party of the accused by appointment. The  consent of the girl was, however, immaterial in view of  the finding  of the Trial Court about the age of the girl.  The  fact that  she  was taken to Mandow, where something happened  at  the tourist’s bungalow which she disapproved of, was corroborated  by the  evidence of Babulal Kamdar, and Kailash Sharma, in  addition to the two police constables of Mandow-out-post.  The Trial Court which  had the advantage, of watching the demeanour of the  girl, had come to the conclusion that, although the girl may have tried to  improve  her version and pretend that she  was  unwilling  to accompany  Kamal  Singh, who had come in a car for her  according to the first version, yet, the charge under Sec. 366 I.P.C.,  was established  against  each of the three accused  and  the  charge under  Sec.  354  I.P.C. was  established  against  Shiv  Govind, appellant,  and  his companion Punam.  The  three  accused  were, therefore,  convicted under Sec. 366, and each was  sentenced  to one  year’s rigorous imprisonment.  The two accused  Shiv  Govind and  Punam  were  also  convicted  under  Sec.  354  I.P.C.,  and sentenced  to  four  months rigorous imprisonment,  but  the  two sentences were ordered to run concurrently. When  the case came up in appeal to the High Court, a notice:  of enhancement  of the sentence under Sec. 366 I.P.C. was issued  to each of the three appellants, and their sentences were  enhanced, as indicated above, after the appellants had been heard. It  is  only Shiv Govind who has appealed to  this  Court.   Shiv Govind had also applied under Sec. 561A.  Criminal Procedure Code to  the  High  Court,  after the  dismissal  of  his  appeal  and enhancement  of  the sentence, by the High  Court,  claiming  the benefit of Sec. 6 and 11 of the Probation of Offender’s Act.  But this  application  was  rejected by the  learned  Judge  who  had enhanced the sentence passed upon the appellant, although he 838 round that the report of the Probation Officer about the  conduct of the accused while undergoing the sentence, which was sent far, was  favourable to the appellant.  It appears from the two  Judg- ments given by the learned Judge who enhanced the sentence of the appellant  and who subsequently dismissed the application  Linder Sec.  561A Criminal Procedure Code also, that the view  taken  by him was that, having regard to the facts and circumstances and of the case and the offence committed by the appellant, the enhanced sentence was deserved by him. We  have,  therefore,  examined the Judgment of  the  High  Court Linder appeal before us in order to discover the special  reasons Which induced the learned High Court Judge to differ from the  (- )pinion  of the Trial Court about the appropriate sentence to  be imposed upon the appellant.  The only reason given by the learned Judge  for  enhancing  the sentence was  that  Kumari  Seema  had reposed confidence in Kamal Singh, whom she regarded as an Uncle, so  that  she could not expect foul play from him.   The  learned Judge  thought  the girl’s trust and confidence  in  Kamal  Singh explained  why she did not protest when she was taken in the  car and  then made to get down at the tourist’s bungalow.  It  seems, however, from the account of the occurrence given in the Judgment under  appeal, that the- learned Judge was shocked by the  plight of  Kumari  Seema, due to the perfidy of Kamal Singh, and  by.  a contemplation of the possible consequences to her if she had  not behaved in a particularly. brave and intelligent manner so as  to escape  from her predicament.  The learned Judge  mentioned  that the  girl had risked her life to escape.  We, however, find  that there was no suggestion in the evidence anywhere that any  threat to the life of Kumari Seema was held out.  There was no  evidence that  the  girl had seriously struggled to escape or  had  raised shouts  for  help which would have brought people around  to  her aid.   Nor  was  there any evidence that  the  accused  tried  to obstruct her or to chase her when she escaped from the  tourist’s

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bungalow allegedly by resorting to a ruse.  The High Court was so impressed  by  the  girl’s  uncorroborated  version  of  her  own heroism, which did not tally with her first version in the  First Information  Report,  that it overlooked the infirmities  in  the girl’s evidence discussed by the trial court.  We find the  trial court’s  view  of  the  whole case  to  be,  quite  balanced  and objective.   We  do not think that-the severer view of  the  High Court could be reasonably justified. It  seems  clear  to us that the High Court  had  overlooked  the principles, laid down by this Court repeatedly, which should 839 govern  the exercise of powers of the High Court to enhance  sen- tences Imposed by trial courts.  In Bed Raj v. The State of Uttar Pradesh. this Court observed at page 588-589               "A question of a sentence is a matter of discretion               and  it  is well settled that when  discretion  has               been  properly  exercised along  accepted  judicial               lines,  an appellate court should not interfere  to               the detriment of an accused person except for  very               strong reasons which must be disclosed on the  face               of  the judgment; See for example the  observations               in Dalip Singh v. State of Punjab (1954 S.C.R. 146,               156)  and  Nar  Singh v.  State  of  Uttar  Pradesh               [1955](1)  S.C.R.  238,  2411.   In  a  matter   of               enhancement  there should not be interference  when               the sentence passed imposes substantial punishment.               Interference   is  only  called  for  when  it   is               manifestly  inadequate.In  our  opinion,  the  lese               principles   have   not  been  observed.    It   is               impossible  to hold in the circumstances  described               that  the  Sessions Judge did not  impose  a  subs-               tantial  sentence, and no adequate reason has  been               assigned  by  the  learned High  Court  Judges  for               considering the sentence manifestly inadequate.  In               the  circumstances. bearing all the  considerations               of  this case in mind, we are of opinion  that  the               appeal  (which  is  limited  to  the  question   of               sentence)  should be allowed and that the  sentence               imposed  by the High Court should be set aside  and               that of the Sessions Court restored". We think that what was laid down by this Court. in Bed Raj’s case (Supra)  is fully applicable to the case before us.  We may  also mention the similar views expressed by this Court in.  Alamgir  & A nr., v.  The State of Bihar (2). We  may observe that decision of this Court in Nabi Bux and  Ors. v.  The State of Madhya Pradesh(:’), is distinguishable from  the case  before  us.   In that case the High Court  had  enhanced  a sentence  having  regard  to  all  the  facts  and  circumstances justifying  the enhancement.  In the case before us we find  that the High Court had not noticed a number of facts duly  considered by  the trial Court so that the exercise of power of  enhancement of  the  sentence under Sec. 366 I.P.C. could not  be  reasonably justified here. Consequently, we allow this appeal by setting aside the order  of enhancement  of sentence by the High Court of Madhya Pradesh  and restore the sentence of one year’s rigorous imprisonment (1) [1955] (2) S.C.R. p. 583. (2) [1959] Supp. (1) S.C.R. 464. (3)  A.I.R. [1972] S.C. 495. 840 passed  upon the appellant by the learned Sessions Judge for  the offence under Sec. 366 I.P.C. of which the appellant was convict- ed. The concurrent sentence of four months rigorous  imprisonment under Sec. 354 I.P.C., which was not interfered with by the  High Court,  is  maintained.   We understand that  the  appellant  has

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already  undergone more than one year’s imprisonment  awarded  to him  and  that  he is in jail as his  application  for  bail  was rejected.   If  this  is  so,  the  appellant  will  be  released forthwith unless wanted in some other case. K.B.N. Appeal allowed. 841