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PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: PREM CHAND AND ORS.

DATE OF JUDGMENT14/12/1989

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) PANDIAN, S.R. (J)

CITATION:  1990 AIR  538            1989 SCR  Supl. (2) 496  1990 SCC  (1) 249        JT 1989 (4)   544  1989 SCALE  (2)1313

ACT:     Constitution   of   India,  1950:   Articles   137   and 145--Review  of judgment--Power exercisable subject  to  the rules framed.     Supreme  Court Rules, 1966: Order XL, Rule 1--Review  of judgment  in  criminal proceeding--Only on ground  of  error apparent on the face of the record.     Indian  Penal  Code,  1860:  Section  376--Character  or reputation of victim--Not relevant in awarding sentence--Not a  mitigation or extenuating circumstance under  proviso  to so. S.376(2).

HEADNOTE:     This Court rendered a judgment in this case on 31.1.1989 confirming the conviction of both the respondents and reduc- ing the sentence of imprisonment from 10 years to 5 years by invoking the proviso to Section 376(2) I.P.C. The petitioner State has sought review of the said judgment. Dismissing the review petitions, this Court,     HELD: 1. As per order XL Rule 1 of Supreme Court  Rules, 1966,  review in criminal proceedings is limited  to  errors apparent  on the face of record. In the instant case,  there is no error apparent on the face of the record necessitating review of the judgment. [498F]     P.N. Eswara Iyer and Ors. v. Registrar, Supreme Court of India,  [1980]  4  SCC 680: Sow Chandra Kanta  and  Anr.  v. Sheikh  Habib, [1975] 3 SCR 933; Sheonandan Paswan v.  State of Bihar and Ors., [1983] 4 SCC 104, relied on.     2. The very confirmation of the conviction accepting the sole testimony of the victim, rejecting the arguments of the defence  counsel,  is itself a clear  indication  that  this court  was of the view that the character or  reputation  of the victim has no bearing or relevance either in the  matter of adjudging the guilt of the accused or imposing punishment 497 under  Section 376 I.P.C. Such factors are wholly  alien  to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for impos- ing the sub-minimum sentence with the aid of the proviso  to Section 376(2) of the I.P.C. [499G-H]     3.  This  Court neither characterised the victim,  as  a

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woman of questionable character and easy virtue nor made any reference to her character or reputation in any part of  the judgment but used the expression "conduct" in the lexigraph- ical  meaning for the limited purpose of showing as  to  how she had behaved or conducted herself in not telling any  one for about 5 days about the sexual assault perpetrated on her till  she was examined on 28.3.1984 by the sub-Inspector  of Police.  The word "conduct" was not used with  reference  to the character or reputation of the victim. [500B-C]     4. This Court is second to none in upholding the decency and  dignity of womanhood and this Court has  not  expressed any  view  in  the judgment that  character,  reputation  or status of a raped victim is a relevant factor for considera- tion  by the Court while awarding the sentence to a  rapist. [500D]

JUDGMENT:      CRIMINAL   APPELLATE  JURISDICTION:   Review   Petition (Criminal) Nos. 24 1-242 of 1989. IN Criminal Appeal Nos. 544-545 of 1986. Mahabir Singh for the Petitioner. A.N. Mulla, S.B. Upadhyay for the Respondents. The Order of the Court was delivered by      RAY,  J.It is very unfortunate that a  controversy  has arisen  following  the  judgment sought to  be  reviewed  in Criminal  Appeal Nos. 544-45 of 1986 rendered by this  Bench on 31st January 1989 whereby this Court while confirming the conviction  of  both  the  respondents/accused  reduced  the sentence of imprisonment in respect of each of the  respond- ents  from  10 years to 5 years by invoking the  proviso  to Section  376(2)  of  the Indian Penal  Code  observing  "the peculiar facts and 498 circumstances  of this case coupled with the conduct of  the victim  girl, in our view, do not call for the minimum  sen- tence  as  prescribed under Section 376(2)."  The  State  of Haryana has filed the above petitions seeking review of  the judgment and to "pass such other or further order(s) as  may be necessary in the circumstances of the case."     At  the outset, we may examine the scope of review of  a judgment  in  a  criminal case already  pronounced  by  this Court.  Article 137 of the Constitution of India  gives  the power  to the Supreme Court to review its judgment but  such special power is exercisable in accordance with, and subject to,  the rules of this Court made under Article 145  of  the Constitution of India. Order XL, Rule 1 of the Supreme Court Rules provides:               "The  Court may review its judgment  or  order               but  no application for review will be  enter-               tained  in  a civil proceeding except  on  the               ground mentioned in Order XLVII, Rule 1 of the               Code  and in a criminal proceeding  except  on               the  ground  of an error on the  face  of  the               record."     This  Court  in a series of decisions has  examined  the scope  of review in criminal cases after the  judgment  pro- nounced  or order made. Though we are not citing  all  those decisions, we may refer to a     In  the case of P.N. Eswara Iyer and Ors  v.  Registrar, Supreme  Court of India, [1980] 4 SCC 680  the  Constitution Bench  of  this Court while considering  the  rule  observed thus:

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             "The  rule  (Order XL, Rule 1),  on  its  face               affords a wider set of grounds for review  for               orders  in civil proceedings, but  limits  the               ground   vis-a-vis  criminal  proceedings   to               ’errors apparent on the face of the record.’."     See also Sow Chandra Kanta & Anr. v. Sheik Habib, [1975] 3  SCR 933 and Sheonandan Paswan v. State of Bihar  and  Or- ders, [1983] 4 SCC 104.     In  our  considered  view, when the  present  matter  is examined in the light of the decisions referred to above, we find no error apparent on the face of the record necessitat- ing  review of the judgment and as such these  review  peti- tions are liable to be dismissed. 499     We have heard the arguments of the learned senior  coun- sel,  Mr. Rajinder Sachar who though initially  started  his arguments  on behalf of the People’s Union for Civil  Liber- ties  ultimately  advanced his arguments on  behalf  of  the State  in these review petitions on the representation  made by Mr. Mahabir Singh, the learned counsel for the State. Mr. R.K.P. Shankar Dass who advanced his arguments on behalf  of Mahila Sanyukt Morcha stated that his arguments may also  be treated  as  supplemental to the arguments of  Mr.  Rajinder Sachar.  Mr. Mulla, the learned senior counsel  appeared  on behalf of the respondents.     Although  we  have found that the Review  Petitions  are liable to be dismissed on the ground that there is no  error apparent on the face of the record, we, however, in view  of the elaborate submissions made by the various learned  coun- sel  appearing before us, would like to make  the  following observations.     The facts of the case are briefly stated in the Criminal Appeals  and, therefore, it is not necessary to restate  the same. Suffice to say that during the course of the’  hearing on the appeals on behalf of the respondents/accused, it  has been  urged by the learned defence counsel that  the  victim Suman  Rani was a woman of questionable character  and  easy virtue  with lewd and lascivious behaviour and as  such  her version  is  not worthy of  acceptance.  After  considerable debate on the merits of the case, the argument was  confined only  with regard to the quantum of sentence. after  meticu- lously  examining the entire matter, this Court came to  the conclusion  that the proviso to Section 376(2) I.P.C.  could be  invoked having regard to the peculiar facts and  circum- stances  of the case coupled with the conduct of the  victim and  the mandatory sentence provided under the penal  provi- sion is not called for.      At  this juncture, we would like to point put that  the very  confirmation  of  the conviction  accepting  the  sole testimony  of the victim Suman Rani rejecting the  arguments of  the  defence counsel is itself a clear  indication  that this Court was of the view that the character or  reputation of  the  victim has no bearing or relevance  either  in  the matter  of  adjudging the guilt of the accused  or  imposing punishment  under Section 376 I.P.C. We would like to  state with all emphasis that such factors are wholly alien to  the very  scope  and object of Section 376 and can  never  serve either as mitigating or extenuating circumstances for impos- ing the sub-minimum sentence with the aid of the proviso  to Section 376(2) of the I.P.C. In fact, we have expressed our 500 views  in the judgment itself’ stating "No doubt an  offence of this nature has to be viewed very seriously and has to be dealt with condign punishment."     We have neither characterised the victim, Suman Rani  as

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a  woman of questionable character and easy virtue nor  made any reference to her character or reputation in any part  of our judgment but used the expression "conduct" in the  lexi- graphical  meaning for the limited purpose of showing as  to how  Suman  Rani  had behaved or conducted  herself  in  not telling  any one for about 5 days about the  sexual  assault perpetrated on her till she was examined on 28.3.1984 by the Sub-Inspector  of  Police  (PW-20) in  connection  with  the complaint given by Ram Lal (PW-14) on 22.3.1984 against Ravi Shanker.  In this connection, we make it further clear  that we  have not used the word ’conduct’ with reference  to  the character or reputation of the victim--Suman Rani.     Before  parting with this matter, we would like  to  ex- press  that  this Court is second to none in  upholding  the decency and dignity of woman-hood and we have not  expressed any  view  in  our judgment that  character,  reputation  or status of a raped victim is a relevant factor for considera- tion by the Court while awarding the sentence to a rapist. With  the  above observations, we dismiss the  Review  Peti- tions. G.N.                                               Petitions dismissed. 501