of Rajasthan Vs. Madan Singh  Insc 124 (1 February 2008)
Arijit Pasayat & P. Sathasivam
out of SLP (Crl.) No. 3629 of 2006) Dr. ARIJIT PASAYAT, J.
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 IPC),
reduced the sentence from 10 years to 7 years.
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
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.
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:
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
years simple imprisonment and modify the order of learned trial Court to that
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.
respondent has not entered appearance in spite of service of notice.
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 adequate and special reasons. If the court does not mention such
reasons in the judgment, there is no scope for awarding a sentence lesser than
the prescribed minimum.
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.
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.
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.
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.
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 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.
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.
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.
The appeal is allowed.