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PETITIONER: STATE OF ANDHRA PRADESH

       Vs.

RESPONDENT: POLAMALA RAJU & RAJARAO

DATE OF JUDGMENT:       09/08/2000

BENCH: R.C.Lahoti, K.G.Balakrishnan

JUDGMENT:

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     A little girl of five years of age was ravished by the respondent  on 4th January, 1985 at about 2.00 P.M.   taking advantage of her helpless state.

     The  respndent  a neighbour of the  prosectrix  living almost  opposite  her house was tried for an  offence  under Section  376  IPC  on  an FIR lodged by the  father  of  the prosecutrix.   The version of the prosecutrix regarding  the commission  of  offence  by  the  proseutrix  regarding  the commission of offence by the respondent as narrated in court through  her mother, PW-1 received ammle corroboration  from medical evidence and other evidence led in the case.  We are not repeating the prosecution version of the case or gist of the  evidence  led  in case for the simple reason  that  the learned  Assistant  Sessions  Judge,  West  Godavari,  after recording evidence and hearing parties, both on the question of  conviction  and  sentence, vide order  dated  9th  Sept. 1985,  convicted the respondent for an offence under Section 376  IPC.   After  taking into account  report  of  District Probation  Officer,  relating to the character  conduct  and antecedents  of  the  respondent the trial court  swarded  a sentence  of  10  years RI and a fine of Rs.   10/-  and  in default,  simple  imprisonment  for one week  for  the  said offence.   The  convict  filed an  appeal,  challenging  his conviction and sentence, which came to be heard by a learned Single  Judge of the High Court of A.P.  The learned  Single Judge, vide judgment dated 15th Sept.  1987, entirely agreed with  the  conclusions  arrived at by the  trial  court  and confirmed  the  conviction of the respondent for an  offence under  Section 376 IPC.  However the sentence was reduced to a  period of five years R.I.  while maintaining the sentence of fine and imprisonm,ent in default of payment of fine.

     The  respondent  has not filed any appeal  challenging his conviction and sentence.

     The  State is in appeal against reduction fo  sentence of the respondent by the High Court.

     We  have,  with the assistance of learned counsel  for the  parties examined the record.  In our opinion, both  the trial  court and the High Court were justified in convicting the  respondent for an offence under Section 376 IPC as  the prosecution  has established its case against the respondent beyond  a  reasonable  doubt  through  cogent  and  reliable

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evidence.   We,  accordingly also confirm the conviction  of the respondent for the offence under Section 376 IPC.

     We  have,  with the assistance of learned counsel  for the  parties  examined the record.  In our opinion both  the trial  court and the High Court were justified in convicting the  respondent for an offence under Section 376 IPC as  the prosecution  has established its case against the respondent beyond  a  reasonable  doubt  through  cogent  and  reliable evidence.   We, accordingly, also confirm the conviction  of the respondent for the offence under Section 376 IPC.

     Was  the High Court justified in interfering with  the discreation  exercised  by the Trial Court by  reducing  the sentence  from 10years R.I.  to 5 years R.I.  for an offence under  Section  376 IPC is the only question  requiring  our consideration?

     Section 376 (2) IPC reads thus:

     "376 Punishment for rape-(1) * * (2) Whoever,

     (a) - (e) * * * *

     (f)  Commits rape on a woman when she is under  twelve years of age or

     (g) * * * *

     Shall  be  punished with rigorous imprisonment  for  a term which shall not be less than ten years but which may be for life and shall also be liable to fine:

     Provided  that the court may for adequate and  special reasons to be mentioned in the judgment impose a sentence of imprisonment  of either description for a terms of less than ten years."

     The  age  of the prosecutrix in the instant  case  was admittedly five years at the relevant time.  Normal sentence under  Section 376(2) IPC in a case where rape in  committed on  a child below 12 years of age, is not less than 10 years R.I.   an  expression which is pre-emptory in  nature.   The courts  are obliged to respect this legislative mandate when the  case  falls  under the proviso.  The  proviso  to  sec. 376(2)  IPC however lays down that in exceptional cases  for special  and adequate reasons sentence of less than  10years RI may also be awarded in a given case.  The proviso, in our opinion  would  come into play only when there are  adequate and special reasons available in a case.  Those reasons need to  be  disclosed in the order/judgment itself so  that  the appellate  forum is in a position to know as to what  weiged with  the court in awarding a sentence less hten the minimum prescribed under the Act.

     We  are  of  the  considered opinion  that  it  is  an obligation  of the sentencing court to consider all relevant facts  and circumstance bearing on the question of  sentence and  impose a sentence commensurate with the gravity of  the offence.   The  sentencing court must hear the loud cry  for justice  by  the society and more particularly in  cases  of heinous  crime  of rape of innocent helpless children as  in this  case of the victime of crime and respond by imposing a proper sentence.

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     In the present case, the reasons given by the High Court in the instant case for reducing the sentence from the minimum 10 years is contained in the last paragraph of the judgment which reads:

     "I  entirely  agree with the conclusion arrived at  by the learned Assistant Sessions judge.  I accordingly confirm the  conviction  imposed  by the Court  below.   But  having regard  to the circumstances of the case the sentence of ten years  R.I.   imposed  by the Court below is  reduced  to  a period  to five years R.I.  and the sentence of fine of  Rs. 10/- shall stand.

     To  say the least, the order contains to reasons, much less  special  or adequate reasons.  The sentence  has  been reduced  in  a  rather   mechanical  manner  without  proper application of mind.  It appears that the provisions of sec. 376(2) IPC were not at all present to the mind of the court. This  Court  has  time  and again  drawn  attention  of  the subordinate  courts to the sensitivity which is required  of the  court  to deal with all cases and more particularly  in cases involving crime against women .  In State of A.P.  Vs. Bedem Sundara Rao (1995 (6) SCC 230), this Court said:

     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  sentance 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 societys cry for  justice  against such criminals.  Public abhorrence  of the  crime needs a reflaction through the court’s vardict in the  measure of punishmeent.  The courts must not only  keep in  view  the rights of the criminal but also the rights  of the  victim  of  the crime and the society  at  large  while considering  imposition of the appropriate punishment.   The heinous  crime  of committing rape on a helpless 13/14  year old  girl  shakes our judicial conscience.  The offence  was innumane."

     Again,  in  the  case  of   State  of  Karnataka   vs. Krishnappa  (2000 (4) 75), this court pointed out that  rape is  not merely a physical assault, it is an offence which is destructive of the whole personality of the victime of crime and  Courts shoulder a great responsibility while trying  an accused  on  charges of rape and must deal with  such  cases with  utmost  sensitivity.   Regerring   to  imposition   of punishment in such cases, it was opined:

     The  measure  of punishment in a case of  rape  cannot depend  upon the social status of the victim of the accused. It  must  depend upon the conduct of the accused, the  state and  age of the sexually assaulted female and the gravity of the  criminal act.  Crimes of violence upon women need to be saverely  dealt with.  The socio-economic status.   religion race  caste  or  creed  of the accused  or  the  victim  are irrelevant  considerations in sentencing policy.  Protection of  society and deterring the criminal is the avowed  object of  law  and that is required to be achived by  imposing  an appropriate sentence.  The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question  of  sentence  and  proceed to  impose  a  sentence

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commensurate with the gravity of the offence.

     In  the instant case.  we have preused the record.  we have  noticed the reasons for reduction of sentence.  we are unhappy  with  the  manner in which the  sentence  has  been reduced  from  the statutory minimum of 10 years R.I.  to  5 years R.I.

     We  have given due consideration to the plea raised by learned  Amicus on behalf of the respondent that it being an old  case the order of the High Court neen not be interfered with.  We are unable to persuade ourselves to agree with the submission.   We  do not find any extenuating or  mitigating circumstances  available  on  the record which  may  justify imposition  of sentence less than the prescribed minimum  on the respondent.  To show mercy in a case like this, would be travesty  of  justice.   There  are no  reasons,  much  less sufficient  and adequate reasons available on the record  to impose a lesser sentence than the prescribed minimum.

     The  High Court, in the facts and circumstances of the case was not at all justified in interfering with the proper exercise  of  discretion by the trial court.  We  therefore, set  aside  the  order  of the High  Court  insofar  as  the reduction  of sentence is concerned and restore the sentence of 10 years R.I.  as imposed by the Trial Court.

     The  respondent shall be taken into custody to undergo the remaining sentence.

     The  learned  amicus lastly submitted that because  of long  time  which  has  elapsed subsequent to  the  date  of offence and the possibility that the prosecutrix as also the respondent  may have got married and settled in life  during the pendency of thes proceedings fine instead of sentence be imposed.   We  cannot agree.  These factors may be  relevant for  consideration  by  the   Executivee  or  Constitutional authorities  if they chose to remit the sentence on bing  so approached  as  opined  in kamal kishore  vs.State  of  H.P. [(2000) 4 Sec 502, Pr.  25] case (supra), but imsofar as our judicial  conscience  is concerned we find no reason  to  go against   the  legislative  madate   and  award  any  lesser sentence.

     The appeal succeeds and is allowed in the above terms. .UP 10 2; Draft, printer 1; -n -PA4 -dFX-NORMAL -y -e; dumbp L.......T.......T.......T.......T.......T.......T.......T.......T....R