State of
Andhra Pradesh Vs. Polamala Raju & Rajarao
[2000] INSC 420 (9 August 2000)
R.C.Lahoti,
K.G.Balakrishnan
Judgement L.I.T.J
A little girl of five years of age was ravished by the respondent on 4th January, 1985 at about 2.00 P.M. taking advantage of her helpless state.
The respndent
a neighbour of the prosectrix living almost opposite her house was tried for an
offence under Section 376 IPC on an FIR lodged by the father of the prosecutrix.
The version of the prosecutrix regarding the commission of offence by the proseutrix
regarding the commission of offence by the respondent as narrated in court
through her mother, PW-1 received ammle corroboration from medical evidence and
other evidence led in the case. We are not repeating the prosecution version of
the case or gist of the evidence led in case for the simple reason that the
learned Assistant Sessions Judge, West Godavari, after recording evidence and hearing parties, both on the
question of conviction and sentence, vide order dated 9th Sept.
1985,
convicted the respondent for an offence under Section 376 IPC. After taking
into account report of District Probation Officer, relating to the character
conduct and antecedents of the respondent the trial court swarded a sentence of
10 years RI and a fine of Rs. 10/- and in default, simple imprisonment for one
week for the said offence. The convict filed an appeal, challenging his
conviction and sentence, which came to be heard by a learned Single Judge of
the High Court of A.P. The learned Single Judge, vide judgment dated 15th Sept. 1987, entirely agreed with the
conclusions arrived at by the trial court and confirmed the conviction of the
respondent for an offence under Section 376 IPC. However the sentence was
reduced to a period of five years R.I. while maintaining the sentence of fine
and imprisonm,ent in default of payment of fine.
The
respondent has not filed any appeal challenging his conviction and sentence.
The
State is in appeal against reduction fo sentence of the respondent by the High
Court.
We
have, with the assistance of learned counsel for the parties examined the
record. In our opinion, both the trial court and the High Court were justified
in convicting the respondent for an offence under Section 376 IPC as the
prosecution has established its case against the respondent beyond a reasonable
doubt through cogent and reliable evidence. We, accordingly also confirm the
conviction of the respondent for the offence under Section 376 IPC.
We have,
with the assistance of learned counsel for the parties examined the record. In
our opinion both the trial court and the High Court were justified in
convicting the respondent for an offence under Section 376 IPC as the
prosecution has established its case against the respondent beyond a reasonable
doubt through cogent and reliable evidence. We, accordingly, also confirm the
conviction of the respondent for the offence under Section 376 IPC.
Was
the High Court justified in interfering with the discreation exercised by the
Trial Court by reducing the sentence from 10years R.I. to 5 years R.I. for an
offence under Section 376 IPC is the only question requiring our consideration?
Section 376 (2) IPC reads thus:
"376
Punishment for rape-(1) * * (2) Whoever, (a) - (e) * * * * (f) Commits rape on
a woman when she is under twelve years of age or (g) * * * * Shall be punished
with rigorous imprisonment for a term which shall not be less than ten years
but which may be for life and shall also be liable to fine:
Provided
that the court may for adequate and special reasons to be mentioned in the
judgment impose a sentence of imprisonment of either description for a terms of
less than ten years." The age of the prosecutrix in the instant case was
admittedly five years at the relevant time. Normal sentence under Section
376(2) IPC in a case where rape in committed on a child below 12 years of age,
is not less than 10 years R.I. an expression which is pre-emptory in nature.
The courts are obliged to respect this legislative mandate when the case falls
under the proviso. The proviso to sec.
376(2)
IPC however lays down that in exceptional cases for special and adequate
reasons sentence of less than 10years RI may also be awarded in a given case.
The proviso, in our opinion would come into play only when there are adequate
and special reasons available in a case. Those reasons need to be disclosed in
the order/judgment itself so that the appellate forum is in a position to know
as to what weiged with the court in awarding a sentence less hten the minimum
prescribed under the Act.
We are
of the considered opinion that it is an obligation of the sentencing court to
consider all relevant facts and circumstance bearing on the question of
sentence and impose a sentence commensurate with the gravity of the offence.
The sentencing court must hear the loud cry for justice by the society and more
particularly in cases of heinous crime of rape of innocent helpless children as
in this case of the victime of crime and respond by imposing a proper sentence.
In the
present case, the reasons given by the High Court in the instant case for
reducing the sentence from the minimum 10 years is contained in the last
paragraph of the judgment which reads:
"I
entirely agree with the conclusion arrived at by the learned Assistant Sessions
judge. I accordingly confirm the conviction imposed by the Court below. But
having regard to the circumstances of the case the sentence of ten years R.I.
imposed by the Court below is reduced to a period to five years R.I. and the
sentence of fine of Rs.
10/-
shall stand.
To say
the least, the order contains to reasons, much less special or adequate
reasons. The sentence has been reduced in a rather mechanical manner without
proper application of mind. It appears that the provisions of sec.
376(2)
IPC were not at all present to the mind of the court.
This
Court has time and again drawn attention of the subordinate courts to the
sensitivity which is required of the court to deal with all cases and more
particularly in Bedem Sundara Rao (1995 (6) SCC 230), this Court said:
In
recent years, we have noticed that crime against women are on the rise. These
crimes are an affront to the human dignity of the society. Imposition of
grossly inadequate sentance and particularly against the mandate of the
legislature not only is an injustice to the victim of the crime in particular
and the society as a whole in general but also at times encourages a criminal.
The courts have an obligation while awarding punishment to impose appropriate
punishment so as to respond to the societys cry for justice against such
criminals. Public abhorrence of the crime needs a reflaction through the
court's vardict in the measure of punishmeent. The courts must not only keep in
view the rights of the criminal but also the rights of the victim of the crime
and the society at large while considering imposition of the appropriate
punishment. The heinous crime of committing rape on a helpless 13/14 year old
girl shakes our judicial conscience. The offence was innumane." Again, in
the case of State of Karnataka vs.
Krishnappa
(2000 (4) 75), this court pointed out that rape is not merely a physical
assault, it is an offence which is destructive of the whole personality of the victime
of crime and Courts shoulder a great responsibility while trying an accused on
charges of rape and must deal with such cases with utmost sensitivity. Regerring
to imposition of punishment in such cases, it was opined:
The
measure of punishment in a case of rape cannot depend upon the social status of
the victim of 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 saverely 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 achived 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.
In the
instant case. we have preused the record. we have noticed the reasons for
reduction of sentence. we are unhappy with the manner in which the sentence has
been reduced from the statutory minimum of 10 years R.I. to 5 years R.I.
We
have given due consideration to the plea raised by learned Amicus on behalf of
the respondent that it being an old case the order of the High Court neen not
be interfered with. We are unable to persuade ourselves to agree with the
submission. We do not find any extenuating or mitigating circumstances
available on the record which may justify imposition of sentence less than the
prescribed minimum on the respondent. To show mercy in a case like this, would
be travesty of justice. There are no reasons, much less sufficient and adequate
reasons available on the record to impose a lesser sentence than the prescribed
minimum.
The
High Court, in the facts and circumstances of the case was not at all justified
in interfering with the proper exercise of discretion by the trial court. We
therefore, set aside the order of the High Court insofar as the reduction of
sentence is concerned and restore the sentence of 10 years R.I. as imposed by
the Trial Court.
The
respondent shall be taken into custody to undergo the remaining sentence.
The
learned amicus lastly submitted that because of long time which has elapsed
subsequent to the date of offence and the possibility that the prosecutrix as
also the respondent may have got married and settled in life during the pendency
of thes proceedings fine instead of sentence be imposed. We cannot agree. These
factors may be relevant for consideration by the Executivee or Constitutional
authorities if they chose to remit the sentence on bing so approached as opined
in kamal kishore vs.State of H.P.
[(2000)
4 Sec 502, Pr. 25] case (supra), but imsofar as our judicial conscience is
concerned we find no reason to go against the legislative madate and award any
lesser sentence.
The
appeal succeeds and is allowed in the above terms.
Back