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CASE NO.: Appeal (crl.)  1273 of 2004

PETITIONER: State of Madhya Pradesh                                                      

RESPONDENT: Balu                                                                              

DATE OF JUDGMENT: 05/11/2004

BENCH: N. Santosh Hegde & S.B. Sinha  

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl) No. 2151 of 2004 )

SANTOSH HEGDE, J.

Heard learned counsel for the parties.

Leave granted.  

The State of Madhya Pradesh  has preferred this appeal for  enhancement  of sentence  awarded by the High Court of Judicature at  Madhya Pradesh in Criminal No.  952 of 1990 dated 7th  of August, 2003.  

The learned Sessions Judge who tried the sessions case No. 36 of  1989 in which the respondent herein was accused of having committed rape  of one Kusumbai, having found  the accused guilty and after hearing the  accused on the question of sentence convicted the respondent  for an offence  punishable under Section 376 of IPC and awarded  a sentence  of 7 years  rigorous imprisonment and fine of Rs. 1,000/- and in default to  undergo   further sentence  of rigorous imprisonment  for a period of one year.   

In an appeal filed against the said conviction  and sentence  the High  Court by the impugned order while confirming  the conviction reduced the  sentence  of imprisonment to a period already undergone which on the date  of the judgment was about  10 months.  

It is the prosecution case that, on 15th of June, 1988 at about 8.00  o’clock  in the morning  in the village of Dhadhari  the respondent  herein  committed rape on Kusumbai  who according to  the prosecution  was a  minor. A complaint  in regard to this incident was lodged with the Police  Station, Civil Lines, Chhatarpur, on the very same day, which was registered   as Crime No. 63/88 under Section 376 of the IPC.  The victim - PW 2 was  examined by PW 6-Dr. Indira Gupta,  who  opined  that the victim  was  subjected to sexual    intercourse  within a period of 24 hours before her  examination. PW 6 also recorded reasons for  said conclusion.   PW 2-the victim  in her statement before the court stated that  on the  date of incident  when she was going to work, near a deserted field  the  appellant  dragged  her and committed rape on her consequent to which her  cloth  as well as  the respondent’s underwear  were blood stained.  She stated  that while committing rape  the accused had put a towel  in her mouth  so  that she could not shout.  

PW 1-Dr. K.L. Wadi who examined the victim-PW2, with reference   to her age, after perusing  her  X-ray opined that for reasons given by him in  his evidence the victim appeared  13 years of age but he also stated, in reply  to a question  in cross examination, that  it was possible that  the said age  may vary  upto 3 years.  

PW 4 \026 father of the victim and PW 3-mother  of the victim  have

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stated in their evidence that immediately  after the incident the victim had  complained to them, therefore, they proceeded to the Police Station with the  victim and lodged a complaint with PW 5-the Investigating Officer who  after recording  the complaint took the  blood stained cloths of the victim   and sent the same for chemical examination and sent  her also  for medical  examination.  PW 5  also stated that he arrested  the respondent-accused  on  the very next day and  recovered his stained underwear which was also sent  for chemical examination and which confirmed  that it contained blood  stains.  

Though the defence challenged  the age of the victim, the learned  Sessions Judge after considering the material on record and other evidence  held that the victim was less than 16 years  of age  at the time of incident. He  also negatived the contention that there was consent  on the part of the  victim and, hence, found the respondent guilty of the offence punishable  under Section 376 and awarded the sentence as stated above.  

In the appeal filed as against the said conviction and sentence, it is  seen from the impugned judgment that the learned counsel appearing for the  respondent did not challenge  findings of conviction and addressed  arguments only in regard to the sentence awarded   on the ground that the  same was excessive because the respondent at the time of incident was aged  only 17 years and further being  an  illiterate villager coming from a  rural  area ought to be dealt with leniently. Accepting the said submission  advanced on behalf of the respondent the High Court considered it to be a fit  case  for reducing  the sentence  to a period already undergone which as  noticed above was about 10 months.  

Shri R.P. Gupta, learned senior counsel  appearing  for the appellant- State contended that the High Court was wholly wrong  and did not even  take into consideration  the mandatory requirement  of law while reducing   the sentence to a period of 10 months for an offence of rape that too  committed on a minor girl.  He submitted that the judgment in question  suffers from lack of application of mind and the sentence awarded is wholly  disproportionate  not only to the mandate of Statute  but also to the nature   and gravity  of the offence committed by the respondent.   

Shri B.K. Pal, learned counsel appearing for the respondent  strongly  supported the judgment of the High Court by contending that the  respondent-accused was aged only 17 years at the time of the incident and  was an illiterate  villager, hence  a severe sentence  as contemplated  under  Section 376 would be counter productive.  He also submitted that the  respondent-accused as well as the victim  are since married and have their  respective  families,  therefore,  a compassionate view  should be taken,   more so in the background of the fact that the incident in question had  occurred  nearly sixteen years back.  He alternatively  submitted that the  Trial Court has erred in coming to the conclusion that the prosecution has  established the alleged offence beyond  a reasonable doubt  against the  respondent-accused and that the High Court erred in  not going into that  question  even though  he did not dispute that his counter-part, did not  challenge  the finding on the conviction.  He pointed out that from the  material on record, it is seen that the victim was  above  16 years of age  and  the fact that there was no injury on her body would indicate that the sexual   intercourse  if any was with the consent  of the victim, hence the respondent   could not have been convicted for an offence under Section 376 of IPC.  He  also submitted that the Trial Court did not consider the explanation  given by  the  accused   in  his  statement recorded under Section 313 of Cr. PC  wherein he had stated that there was an animosity  between the  family of the  victim and the accused.  He also submitted that the respondent was not  subjected to any medical examination, therefore,  it cannot be said  that the  respondent  was responsible for having committed  an offence  punishable  under Section 376  of the IPC.  

From the impugned judgment of the High Court  it is noticed  that the  learned counsel representing the respondent had not challenged conviction

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of the respondent before the High Court and had addressed arguments  only  in regard to quantum  of sentence.  Be that as it may,  and without  expressing  any opinion on the applicability  of  Section 377 (3) of the Code  of Criminal Procedure to proceedings under Article 136 of the Constitution  but with a view to satisfy ourselves  as to the correctness of the conviction  recorded by the Trial Court against the respondent, we have  perused the   records in the light of the arguments addressed by the learned counsel for the  respondent.  From the evidence produced by the prosecution, it is clear that  the incident in question occurred on 15th of June, 1988 and a complaint in  this regard was lodged promptly with the Police Station, Civil Lines,  Chhatarpur  on the very same day and the victim PW2 was sent for medical  examination on the same day.  PW 6- the Doctor  who examined the victim  opined  that victim  was subjected to sexual intercourse within a period of 24  hours before her examination. The said Doctor has also recorded reasons for  such conclusion.  PW 1- Dr. K.L. Wadi  who examined  the victim  with  reference to her age after perusing her X-rays opined  that the victim  PW 2  appeared to be 13 years of age but he in the cross examination did say that  his opinion might vary upto 3 years. Taking advantage of this possible  variation an argument  was addressed on behalf of the respondent that the  victim was above 13 years of age. The Trial Court, in our opinion, rightly  rejected this  contention of the respondent herein.  The prosecution  during  the course of investigation had seized  the clothes  worn  by the victim as  well as the underwear worn by the respondent which also on examination by  the Serologist was found to contain blood which  also  supported  the  prosecution case that the respondent had sexual intercourse with the victim.  PW 2 who knew the respondent  prior to the incident had no difficulty in  identifying  the respondent as the person who committed  rape on her, also  stated that the respondent had covered her mouth with a towel to prevent her  from shouting for help. Having perused the evidence like the trial court, we  also find no reasons to disbelieve her evidence.  Hence, the so called consent  alternatively pleaded by the counsel for the respondent cannot be accepted.  The argument of non-consideration of the statement of the accused recorded  under Section 313 Cr.P.C. to the effect that there was animosity between the  family of the victim and the accused is liable to be rejected because one of  the defences of the accused is that there was consent on the part of the victim  to have sex with him. These two stands being self-contradictory, cannot be  accepted. Thus, having considered the material on record  and having heard the  arguments addressed on behalf of the parties, we find no merit  in the  argument of the learned counsel for the respondent that the Trial Court  erroneously  convicted the  respondent.  

Having satisfied ourselves as to the correctness of the  conviction of  the  appellant by the trial court, we will  now consider  the question of  sentence. Section 376 IPC imposes an obligation on the court convicting  the  accused of that offence to impose a minimum sentence of  7 years. However,  an exception is made for adequate and special reasons to be recorded in the  judgment. Thus the Court can impose a sentence of less than 7 years but for  good reasons.  

By the impugned judgment the High Court assigned the following  reasons for reducing the sentence imposed by the Sessions Court from 7  years to 10 months :

"Then, at the time of commission of offence the  appellant is stated to be aged 19 years  whereas in  the estimation of the  Trial Court, he was 17 years  of age. The appellant is illiterate  villager  coming  from rural area, therefore, it appears a fit case to  reduce the sentence  of  imprisonment  to the  period already undergone". None of the reasons mentioned therein can be construed as either  adequate or special reasons to reduce the minimum mandatory period of  sentence for an offence punishable under Section 376 IPC. The High  Court does not seem to have applied its mind to the gravity of the

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offence. Having found that the appellant has committed rape of a minor,  to reduce the sentence on the ground that the accused was either 17 years  or 19 years of age or that the accused is an illiterate villager coming from  a rural area is neither adequate nor special reason contemplated under  Section 376 IPC. We think the sentence of 10 months imprisonment for  an offence punishable under Section 376 is ridiculously low and does not  commensurate with the gravity of the crime. The sympathy shown by the  High Court is wholly misplaced and is likely to send wrong signals. In  these circumstances, we think the High Court has grossly erred from  reducing the sentence imposed by the Sessions Court to a period of 10  months which  the respondent  had already undergone.

A 3-Judge Bench of this Court in the case of State of Karnataka v.  Krishnappa (2000 4 SCC 75) while considering the question of reduction  of sentence in a rape case observed thus :

"The approach of the High Court in this case, to  say the least, was most casual and inappropriate.  There are no good reasons given by the High Court  to reduce the sentence, let alone "special or  adequate reasons". The High Court exhibited lack  of sensitivity towards the victim of rape and the  society by reducing the substantive sentence in the  established facts and circumstances of the case.  The courts are expected to properly operate the  sentencing system and to impose such sentence for  a proved offence, which may serve as a deterrent  for the commission of like offences by others."  (emphasis supplied).

Herein, we may also usefully refer to the observations of  this Court in the case of T.K. Gopal alias Gopi v. State of  Karnataka (2000 6 SCC 168) wherein it was held : "The question of sentence in such cases was  considered by Krishna Iyer, J. in Phul Singh v.  State of Haryana (1979 4 SCC 413) in which he  observed that sentencing efficacy in cases of lust- loaded criminality cannot be simplistically  assumed by award of long incarceration, for, often  that remedy aggravates the malady. He further  observed that a hypersexed homo sapien cannot be  rehabilitated by humiliating or harsh treatment. In  that case it was found that the appellant was a  young man of 22 years with no criminal  antecedents save the offence of rape committed by  him. The learned Judge thought that given  correctional courses through meditational therapy  and other measures, his erotic aberrations may  wither away, particularly as the appellant had a  reasonable prospect of shaping into a balanced  person. But, this theory was not followed in later  decisions as it was found that in spite of devices  having been employed and adopted within the jail  premises so as to reform the offenders, there was  negligible improvement in the commission of  crime. Crime, instead of declining, had increased  and, today, it has assumed dangerous proportions.  While one person is reformed and moves out of  jail, another offender is born. Consequently, in two  recent decisions, relating to the offence of rape,  one rendered by the present Chief Justice of India  and the other by brother Lahoti, the sentence was  enhanced in State of Karnataka v. Krishnappa  (2000 4 SCC 75) while in the other case, namely,

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State of Rajasthan v. N.K. (2000 5 SCC 30) the  order of acquittal passed by the High Court was set  aside and substituted by an order of conviction."    In view of the above, we think it appropriate to set aside the  impugned order of the High Court, allow this appeal and restore the  sentence awarded by the trial court and direct the respondent to surrender  to the authorities and serve out the sentence awarded to him by the trial  court. The appeal is allowed.