Shiv Govind Vs. The State of Madhya
Pradesh [1972] INSC 74 (14 March 1972)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
GROVER, A.N.
CITATION: 1972 AIR 1823 1972 SCR (3) 835 1972
SCC (3) 399
CITATOR INFO :
F 1973 SC 467 (6)
ACT:
Criminal trial--Enhancement--Enhancement of
sentence by appellate Court--Principles governing.
HEADNOTE:
A question of sentence is a matter of
discretion. It is well settled that when discretion has been properly exercised
along accepted judicial lines. an appellate Court should not interfere to the
detriment of an accused person. Such interference will be justified only by
strong reasons Which must be disclosed on the fact of the, judgment. In a
matter of enhancement there should not be interference when the sentence-,
passed imposes substantial punishment. interference is only called for when it
is manifestly inadequate. [839 B] Where the trial court after taking into
account all the circumstances end also the discrepancies in the prosecution
version convicted the appellant to one years, imprisonment under s. 366, Penal
Code, and the High Court in appeal, enhanced the sentence to seven years'
imprisonment.
HELD : that the High Court had not noticed a
number of facts duly considered by the trial court and, therefore, the exercise
of the power of enhancement could not be justified. [839 G] Bed Rai v. The
State of Uttar Pradesh, [1955] 2 S. C.R. 583, and Alamgir & Anr. v. The
State of Bihar, [1959] Supp. I S.C.R. 464, referred to.
Nabi Bux and ors. v. The State of Madhya
Pradesh, A. 1. R. 1972 S.C. 495, distinguished.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 3 of 1972.
Appeal by special leave from the judgment and
order dated January 25, 1971 of the Madhya Pradesh High Court, Indore Bench in
Criminal Appeal No. 391 of 1969.
S. K. Gambhir, for the appellant.
M. N. Shroff, for the respondent.
The, Judgment of the Court was delivered by
Beg, J. Shiv Govind, the appellant , has obtained Special. Leave to appeal
against only that part of the Judgment and order of the High Court of Madhya
Pradesh by which his sentence of one, year's Rigorous Imprisonment, passed by
the Additional Sessions' Judge, Indore, upon a conviction under Section 366
Indian Penal Code, was enhanced to seven years' Rigorous Imprisonment 836 and a
fine of Rs. 100/-, and, in. default of payment of fine, to three months'
further rigorous imprisonment. The appellant, aged about 20 years at the time
of the alleged offence of 9th of August, 1969, was the youngest of three
persons who were jointly charged and tried for offences punishable under
Section 366 and 354 I.P.C.
The prosecution case was : Kumari Seema, a
girl below 18 years of age, was offered a lift on his bicycle by the accused,
Kamal Singh, aged 30 years, while she was returning to her homefrom her School
on 9th August, 1969. The girl hesitated. But, as she reposed confidence in
Kamal Singh, whom she looked upon as her uncle, she accepted the offer. Kamal
Singh took Kumari Seema on his bicycle to the Regal Cinema where she part-took
of some.
refreshment ordered by Kamal Singh.
Meanwhile, the appellant Shiv Govind and the accused Punani, aged 26, arrived
in a car.
Kamal Singh asked Kumari Seema to go with the
two younger men in their car. Seema refused. Then, Kamal Singh asked her to go
on his bicycle to Yashwant Talkies. She complied with this request.
At this Cinema, Kanial Singh deposited his
Cycle at the Cycle stand. The appellant Shiv Govind and his companion Punam had
followed in their car. The three men succeeded in persuading Seema, despite her
initial refusal, to sit in the car and to go for a short pleasure trip in it on
the, definite assurance that she will soon be reached home. After the girl had
sat in the car she was driven to a place called Mandow, a number of miles away
from Indore, and was made to alight at a tourist's bungalow.
There two rooms were engaged by the accused.,
Kamal Singh occupied one of the two rooms and the girl was closeted in the
other room with the appellant and his companion Punam, who were both drunk. One
of the two youngmen caught hold of the hands of the girl while the other tried
to undress her with the object of raping her. Kumari Seema, at this point,
feigned sudden indisposition so that the two youngmen had to bring her out into
the gallery for fresh air. She managed to escape while the accused went inside
to fetch some water for her, She rushed into the house of one Babulal Kamdar
and complained to him about the incident. This led to a communication of
information of the offences to the Police which went to the tourist's bungalow.
and arrested the three accused who were brought to Police Station Nalcha where
a First Information Report was lodged.
The Trial Court had examined the evidence
given in support of the case stated above. This included medical evidence on
the question of the age of the girl, because, while the prosecution alleged
that she was below 16 years of age, the accused pleaded that she was above 18
years of age. Evidently, the case of the accused 837 Was that Kumari Seema was
a consenting party to whatever took place. Although the girl was attending a
School, the entry of her age in the School Register was not disclosed. Despite
some discrepancies in the evidence relating to the age of the girl, the trial
court came to the conclusion that it was between 16 to 19 years. It relied
mainly on expert evidence of Doctors who had used the ossification test.
The Trial Court had also noticed the
discrepancies between the prosecution version, as set out above by Kumari Seema
in her evidence in Court. and the story given out by her in the First
lnformation Report where she had stated that she had joined the party of the
accused at the crossing of Bijasan Road. The earlier version suggested that the
girl had herself gone to meet the party of the accused by appointment.
The consent of the girl was, however,
immaterial in view of the finding of the Trial Court about the age of the girl.
The fact that she was taken to Mandow, where something happened at the
tourist's bungalow which she disapproved of, was corroborated by the evidence
of Babulal Kamdar, and Kailash Sharma, in addition to the two police constables
of Mandow-out-post. The Trial Court which had the advantage, of watching the
demeanour of the girl, had come to the conclusion that, although the girl may
have tried to improve her version and pretend that she was unwilling to
accompany Kamal Singh, who had come in a car for her according to the first
version, yet, the charge under Sec. 366 I.P.C., was established against each of
the three accused and the charge under Sec. 354 I.P.C. was established against
Shiv Govind, appellant, and his companion Punam. The three accused were,
therefore, convicted under Sec. 366, and each was sentenced to one year's
rigorous imprisonment. The two accused Shiv Govind and Punam were also convicted
under Sec. 354 I.P.C., and sentenced to four months rigorous imprisonment, but
the two sentences were ordered to run concurrently.
When the case came up in appeal to the High
Court, a notice: of enhancement of the sentence under Sec. 366 I.P.C. was issued
to each of the three appellants, and their sentences were enhanced, as
indicated above, after the appellants had been heard.
It is only Shiv Govind who has appealed to
this Court. Shiv Govind had also applied under Sec. 561A. Criminal Procedure
Code to the High Court, after the dismissal of his appeal and enhancement of
the sentence, by the High Court, claiming the benefit of Sec. 6 and 11 of the
Probation of Offender's Act. But this application was rejected by the learned
Judge who had enhanced the sentence passed upon the appellant, although he 838
round that the report of the Probation Officer about the conduct of the accused
while undergoing the sentence, which was sent far, was favourable to the
appellant. It appears from the two Judgments given by the learned Judge who
enhanced the sentence of the appellant and who subsequently dismissed the
application Linder Sec. 561A Criminal Procedure Code also, that the view taken
by him was that, having regard to the facts and circumstances and of the case and
the offence committed by the appellant, the enhanced sentence was deserved by
him.
We have, therefore, examined the Judgment of
the High Court Linder appeal before us in order to discover the special reasons
Which induced the learned High Court Judge to differ from the ()pinion of the
Trial Court about the appropriate sentence to be imposed upon the appellant.
The only reason given by the learned Judge for enhancing the sentence was that
Kumari Seema had reposed confidence in Kamal Singh, whom she regarded as an
Uncle, so that she could not expect foul play from him. The learned Judge
thought the girl's trust and confidence in Kamal Singh explained why she did
not protest when she was taken in the car and then made to get down at the
tourist's bungalow. It seems, however, from the account of the occurrence given
in the Judgment under appeal, that thelearned Judge was shocked by the plight
of Kumari Seema, due to the perfidy of Kamal Singh, and by. a contemplation of
the possible consequences to her if she had not behaved in a particularly.
brave and intelligent manner so as to escape from her predicament. The learned
Judge mentioned that the girl had risked her life to escape. We, however, find
that there was no suggestion in the evidence anywhere that any threat to the
life of Kumari Seema was held out. There was no evidence that the girl had
seriously struggled to escape or had raised shouts for help which would have
brought people around to her aid. Nor was there any evidence that the accused
tried to obstruct her or to chase her when she escaped from the tourist's
bungalow allegedly by resorting to a ruse. The High Court was so impressed by
the girl's uncorroborated version of her own heroism, which did not tally with
her first version in the First Information Report, that it overlooked the
infirmities in the girl's evidence discussed by the trial court. We find the
trial court's view of the whole case to be, quite balanced and objective. We do
not think that-the severer view of the High Court could be reasonably
justified.
It seems clear to us that the High Court had
overlooked the principles, laid down by this Court repeatedly, which should 839
govern the exercise of powers of the High Court to enhance sentences Imposed by
trial courts. In Bed Raj v. The State of Uttar Pradesh. this Court observed at
page 588-589 "A question of a sentence is a matter of discretion and it is
well settled that when discretion has been properly exercised along accepted
judicial lines, an appellate court should not interfere to the detriment of an
accused person except for very strong reasons which must be disclosed on the
face of the judgment; See for example the observations in Dalip Singh v. State
of Punjab (1954 S.C.R. 146, 156) and Nar Singh v. State of Uttar Pradesh
[1955](1) S.C.R. 238, 2411. In a matter of enhancement there should not be
interference when the sentence passed imposes substantial punishment.
Interference is only called for when it is
manifestly inadequate. In our opinion, the lese principles have not been
observed. It is impossible to hold in the circumstances described that the
Sessions Judge did not impose a substantial sentence, and no adequate reason
has been assigned by the learned High Court Judges for considering the sentence
manifestly inadequate. In the circumstances. bearing all the considerations of
this case in mind, we are of opinion that the appeal (which is limited to the
question of sentence) should be allowed and that the sentence imposed by the
High Court should be set aside and that of the Sessions Court restored".
We think that what was laid down by this
Court. in Bed Raj's case (Supra) is fully applicable to the case before us. We
may also mention the similar views expressed by this Court in. Alamgir & Anr.,
v. The State of Bihar (2).
We may observe that decision of this Court in
Nabi Bux and Ors. v. The State of Madhya Pradesh(:'), is distinguishable from
the case before us. In that case the High Court had enhanced a sentence having
regard to all the facts and circumstances justifying the enhancement. In the
case before us we find that the High Court had not noticed a number of facts
duly considered by the trial Court so that the exercise of power of enhancement
of the sentence under Sec. 366 I.P.C. could not be reasonably justified here.
Consequently, we allow this appeal by setting
aside the order of enhancement of sentence by the High Court of Madhya Pradesh
and restore the sentence of one year's rigorous imprisonment (1) [1955] (2)
S.C.R. p. 583.
(2) [1959] Supp. (1) S.C.R. 464.
(3) A.I.R. [1972] S.C. 495.
840 passed upon the appellant by the learned
Sessions Judge for the offence under Sec. 366 I.P.C. of which the appellant was
convicted. The concurrent sentence of four months rigorous imprisonment under
Sec. 354 I.P.C., which was not interfered with by the High Court, is
maintained. We understand that the appellant has already undergone more than
one year's imprisonment awarded to him and that he is in jail as his
application for bail was rejected. If this is so, the appellant will be
released forthwith unless wanted in some other case.
K.B.N.
Appeal allowed.
Back
