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CASE NO.: Appeal (crl.)  234 of 2008

PETITIONER: State of Rajasthan

RESPONDENT: Madan Singh

DATE OF JUDGMENT: 01/02/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 3629 of 2006)                  Dr. ARIJIT PASAYAT, J.

1.      Leave granted.          2.      Challenge in this appeal is to the judgment of a learned  Single Judge of the Rajasthan High Court at Jodhpur.  A  learned Single Judge by the impugned judgment while  upholding the conviction for offence punishable under Section  376 (2)(f) of the Indian Penal Code, 1860 (in short the \021IPC\022),  reduced the sentence from 10 years to 7 years.  3.      The respondent allegedly committed rape on a minor girl  aged about 10 years on 29.8.1999. There is no need to refer to  the factual position in detail as the High Court has upheld the  conviction. It only needs to be noted that on the basis of the  evidence adduced, the trial Court found that the victim was  aged about 10 years. The only point which was urged before  the High Court in addition to the question of sentence was  that the offence at best was one under Section 376 read with  Section 511 IPC. It was submitted that the accused had  suffered custody of about 6 years and, therefore, he being only  bread earner of the family and being of young age, the  sentence should be reduced to the period already undergone.  The plea was opposed by the State stating that in view of the  statutory minimum sentence provided, no leniency was called  for. The High Court found that the trial Court was justified in  holding the appellant guilty of offence punishable under  Section 376 (2)(f) of IPC. As the victim was aged about 10  years, it held that considering the factual position after  assigning reason the minimum sentence can be reduced.   Having so observed, the High Court reduced the sentence to  seven years and a fine of Rs.5,000/- with default stipulation   with the following conclusions was imposed:

       \023After having considered the entire matter  and also taking into consideration the  submission of learned counsel that the  accused is a young person who is the only  bread earner of his family and his kids who  have now grown up need his supervision, I  deem it proper to reduce his sentence under  Section 376(2)(f) to a term of 7 years with fine  of Rs.5,000/- in default, to further suffer one  year\022s simple imprisonment and modify the

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order of learned trial Court to that extent.\024

        4.      Learned counsel for the appellant submitted that when  minimum sentence is prescribed, only for adequate and  special reasons the sentence less than minimum provided for  can be imposed.  In the instant case the reasons indicated did  not meet the requirement of law.   5.      The respondent has not entered appearance in spite of  service of notice.    6.      Both in cases of sub-sections (1) and (2) of Section 376  the court has the discretion to impose a sentence of  imprisonment less than the prescribed minimum for \023adequate  and special reasons\024. If the court does not mention such  reasons in the judgment, there is no scope for awarding a  sentence lesser than the prescribed minimum.         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. Admittedly, in the case at hand the victim was 10 years of  age at the time of commission of offence.       8.      The measure of punishment in a case of rape cannot  depend upon the social status of the victim or 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  severely 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 achieved 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 commensurate with the  gravity of the offence. Courts must hear the loud cry for justice  by the society in cases of the heinous crime of rape on  innocent helpless girls of tender years, as in this case, and  respond by imposition of proper sentence. Public abhorrence  of the crime needs reflection through imposition of appropriate  sentence by the Court. There are no extenuating or mitigating  circumstances available on the record which may justify  imposition of any sentence less than the prescribed minimum  on the respondent. To show mercy in the case of such a  heinous crime would be a travesty of justice and the plea for  leniency is wholly misplaced.  9.      The legislative mandate to impose a sentence for the  offence of rape on a girl under 12 years of age, for a term  which shall not be less than 10 years, but which may extend  to life and also to fine reflects the intent of stringency in  sentence. The proviso to Section 376(2) IPC, of course, lays  down that the court may, for adequate and special reasons to  be mentioned in the judgment, impose sentence of  imprisonment of either description for a term of less than 10  years. Thus, the normal sentence in a case where rape is  committed on a child below 12 years of age is not less than 10  years’ RI, though in exceptional cases "for special and  adequate reasons" sentence of less than 10 years’ RI can also  be awarded. It is a fundamental rule of construction that a  proviso must be considered with relation to the principal

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matter to which it stands as a proviso particularly in such like  penal provisions. The courts are obliged to respect the  legislative mandate in the matter of awarding of sentence in all  such cases. Recourse to the proviso can be had only for  "special and adequate reasons" and not in a casual manner.  Whether there exist any "special and adequate reasons" would  depend upon a variety of factors and the peculiar facts and  circumstances of each case. No hard and fast rule of universal  application can be laid down in that behalf.   

10.     In view of the position in law indicated above, the  judgment of the High Court reducing the sentence to 7 years is  clearly unsustainable and is set aside. The sentence of 10  years as imposed by the trial Court is restored.  

11.     The appeal is allowed.