State of Rajasthan Vs.
Vinod Kumar
[Criminal Appeal
No.1887 of 2008]
State of Rajasthan Vs.
Heera Lal
[Criminal Appeal
No.1888 of 2008]
O R D E R
1.
These
appeals have been preferred by the State against the judgment and order dated 5.4.2007
passed by the High Court of Judicature for Rajasthan (Jaipur Bench) in S.B.
Criminal Appeal No.103 of 2005 and S.B. Criminal Appeal No.82 of 2005, by which,
the conviction of the respondents Vinod Kumar under Section 376 of the Indian
Penal Code, 1860 (hereinafter called IPC) and Heera Lal under Section 376 read
with Section 120B IPC made by the Special Judge, Scheduled Castes/Scheduled Tribes
(Prevention of Atrocities) Act (hereinafter called SC/ST Act) Jaipur dated 22.1.2005
passed in Sessions Case No.123 of 2002 has been maintained but the sentence of respondent
Vinod Kumar has been reduced from 7 years to 5 years and that of accused Heera
Lal from 7 years to 11 months and 25 days.
2.
Facts
and circumstances giving rise to these appeals are that on 29.8.2002, Guddi,
complainant, appeared before the Officer Incharge of the police station alongwith
her brother-in-law Babu Lal and submitted a report that one day earlier, i.e.
on 28.8.2002 she attended a memorial function in respect of death of her
relative. She left the place alongwith Babu Lal, her brother-in-law and stayed in
the Jai Hotel. Two persons came there and one of them introduced himself to be the
Station House Officer and wanted to check the room. Another person asked her
relationship with other occupant Babu Lal. She informed about her relationship
but he raised the question as to why such a relationship has not been disclosed
in the Hotel Register and thus, under this pretext, they entered into the room for
holding enquiry. They took Babu Lal, brother-in-law of the complainant outside.
Thereafter, one of them came alone into the room, bolted the door from inside,
and pushed her on the cot forcibly and committed rape upon her. She raised
alarm but in vain. After commission of rape he fled away by opening the door of
the room. She also gave the description of the said person.
3.
On
the basis of the aforesaid report, Case No.168 of 2002 under Sections 376, 120B
IPC was registered and investigation commenced. During the course of investigation,
the accused were arrested and identification parade took place. The prosecutrix
was medically examined. After completion of the investigation, chargesheet under
Sections 376, 120B IPC and Section 3(2) (5) of SC/ST Act was filed against
Vinod Kumar and Heera Lal. The prosecution in support of its case examined
Guddi, Babu Lal and a large number of other witnesses including the doctors who
had examined the prosecutrix. The respondents were examined under Section 313 of
Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.). They simply
denied their involvement, however, they did not adduce any evidence in defence.
After appreciating the evidence on record, the trial Court convicted the said
respondents under Section 376 IPC and Section 376/120B IPC respectively and
awarded punishment for 7 years Rigorous Imprisonment and a fine of 5,000/- to
each and in default, the accused were ordered to undergo simple imprisonment
for 3 months.
4.
Aggrieved,
both of them preferred appeals before the High Court which have been disposed
of by the impugned judgment. The High Court maintained their convictions as
awarded by the trial Court. However, their sentences have been reduced as aforementioned.
Hence, these appeals.
5.
Learned
counsel for the State has submitted that in a case of rape, the minimum
punishment is 7 years and mandatory requirement under Section 376 IPC is to
impose the punishment of imprisonment of either description for a term which
shall not be less than 7 years but which may be life or for a term which may
extend to 10 years, provided that the court may for adequate and special
reasons to be mentioned in the judgment, impose the punishment for a term less
than 7 years. In the instant case, the High Court did not record any special and
adequate reasons and reduced the punishment substantially. Therefore, in case the
High Court maintained their convictions for the aforesaid offences, there was
no justification for reducing their sentences. Thus, the appeals deserve to be
allowed.
6.
On
the contrary, Shri Naresh Kumar, learned Amicus Curiae has submitted that the
incident occurred more than a decade ago. The said respondents had already
served the sentences awarded by the High Court. Undoubtedly, the High Court has
not given any adequate and special reasons for reduction of their sentences, however,
it could be the age, their social status, family circumstances which could have
swayed the High Court in reducing the sentences. Therefore, the impugned judgment
and order does not warrant interference. The appeals are liable to be
dismissed.
7.
We
have considered the rival submissions made by learned counsel for the parties
and perused the records. In the instant case as the respondents have not challenged
their order of conviction under Section 376 IPC and Section 376 read with
Section 120B IPC respectively, it attained finality. Therefore, the only
question remains for consideration is as to whether there could be any
justification for the High Court in reduction of sentences and that too without
recording any reason.
8.
The
statutory requirement for awarding the punishment less than seven years is to
record adequate and special reasons in writing. Dictionary meanings of the word
“adequate” are commensurate in fitness, sufficient, suitable, equal in magnitude
and extent, and fully. “Special reasons” means exceptional; particular; peculiar;
different from others; designed for a particular purpose, occasion, or person; limited
in range; confined to a definite field of action. Thus, in a case like the
instant one, in order to impose the punishment lesser than prescribed in the statute,
there must be exceptional reasons relating to the crime as well as to the
criminal.
9.
In
Meet Singh v. The State of Punjab, AIR 1980 SC 1141, this Court while dealing
with expression “special reasons” held that it means special to the accused
concerned. The court has to weigh reasons advanced in respect of each
individual accused whose case is taken up for awarding sentence. The word
'special' has to be understood in contradistinction to word 'general' or 'ordinary’.
Thus, anything which is common to a large class governed by the same statute, cannot
be said to be special to each of them. Therefore, in the context of sentencing
process, special reasons must be 'special’ to the accused in the facts and circumstances
of the case in which the sentence is being awarded.
10.
In
Madhukar Bhaskarrao Joshi v. State of Maharashtra, AIR 2001 SC 147, this Court
examined a similar provision under the Prevention of Corruption Act, 1988 which
also contained a provision that accused shall be imposed the punishment which
“shall not be less than one year” , however, a lesser punishment may be awarded
recording the special reasons. The Court held: “…. The proviso is in the form
of a rare exception by giving power to the Court for reducing the imprisonment period
below one year only when there are "special reasons" and the law required
that those special reasons must be recorded in writing by the Court…… …..Parliament
measured the parameters for such condign punishment and in that process wanted
to fix a minimum sentence of imprisonment for giving deterrent impact on other public
servants who are prone to corrupt deals Such a legislative insistence is reflection
of Parliament's resolve to meet corruption cases with very strong hand and to
give signals of deterrence as the most pivotal feature of sentencing of corrupt
public servants……. In the present case, how could the mere fact that this case
was pending for such a long time be considered as a "special reason"?
That is a general feature in almost all convictions under the PC Act and it is
not a speciality of this particular case. It is the defect of the system that longevity
of the cases tried under the PC Act is too lengthy. If that is to be regarded
as sufficient for reducing the minimum sentence mandated by the Parliament the
legislative exercise would stand defeated.” (Emphasis added)
11.
In
State of Jammu & Kashmir v. Vinay Nanda, AIR 2001 SC 611, while dealing
with a similar issue, this Court held as under: “Where the mandate of law is clear
and unambiguous, the Court has no option but to pass the sentence upon
conviction as provided under the statute The mitigating circumstances in a case,
if established, would authorise the Court to pass such sentence of imprisonment
or fine which may be deemed to be reasonable but not less than the minimum
prescribed under an enactment. For imposing the minimum sentence the Court has to
record special reasons. 'Special reasons' have to be distinguished from 'good'
or 'other reasons'. The fact that the convict had reached his superannuation is
not a special reason. Similarly pendency of criminal case for over a period of time
can also not be treated as a special reason” (Emphasis added)
12.
In
State of Karnataka v. Raju, AIR 2007 SC 3225, this Court dealt with a case of
rape of a minor girl below 12 years of age, wherein the High Court reduced the
sentence of the accused from seven years to three and a half years. This Court held
that the normal sentence in a case where rape is committed on a child below 12
years of age, is not less than 10 years' rigorous imprisonment, though in exceptional
cases “for special and adequate reasons” sentence of less than 10 years'
rigorous imprisonment can also be awarded. The Court observed that
socio-economic status, religion, race, caste or creed of the accused or the
victim are irrelevant considerations in sentencing policy. After giving due
consideration to the facts and circumstances of each case, for deciding just
and appropriate sentence to be awarded for an offence, the aggravating and mitigating
factors and circumstances in which a crime has been committed are to be delicately
balanced on the basis of relevant circumstances in a dispassionate manner by
the Court. A similar view has been taken by this Court in State of Madhya Pradesh
v. Babbu Barkare @ Dalap Singh, AIR 2005 SC 2846; Dinesh @ Buddha v. State of
Rajasthan, AIR 2006 SC 1267; Shailesh Jasvantbhai & Anr. v. State of
Gujarat & Ors., (2006) 2 SCC 359; and State of Madhya Pradesh v. Basodi AIR
2009 SC 3081)
13.
In
State of Karnataka v. Krishnappa, AIR 2000 SC 1470, this Court while dealing
with the issue held: “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.” (Emphasis
supplied)
14.
Similarly
in State of Punjab v. Prem Sagar and Ors., (2008) 7 SCC 550, this Court
observed as under: “To what extent should the Judges have discretion to reduce the
sentence so prescribed under the statute has remained a vexed question.
However, in India, the view always has been that the punishment must be
proportionate to the crime. Applicability of the said principle in all situations,
however, is open to question. Judicial discretion must be exercised objectively
having regard to the facts and circumstances of each case”. (Emphasis supplied)
15.
In
State of Madhya Pradesh v. Santosh Kumar, AIR 2006 SC 2648, this Court held
that in order to exercise the discretion of reducing the sentence, the
statutory requirement is that the court has to record adequate and special
reasons in the judgment and not fanciful reasons which would permit the court to
impose a sentence less than the prescribed minimum. The reason has not only to be
adequate but also special. What is adequate and special would depend upon
several factors and no straitjacket formula can be indicated. (See also:
Harbans Singh v. State of Punjab, AIR 1984 SC 1594; State of Andhra Pradesh v. Vasudeva
Rao, AIR 2004 SC 960; State of M.P. v. Babulal, AIR 2008 SC 582; and State of
Rajasthan v. Gajendra Singh, (2008) 12 SCC 720)
16.
In
Kamal Kishore etc. v. State of Himachal Pradesh, AIR 2000 SC 1920, this Court held
that the expression “adequate and special reasons” indicates that it is not
enough to have special reasons, nor adequate reasons disjunctively. There
should be a conjunction of both for enabling the court to invoke the discretion.
Reasons which are general or common in many cases cannot be regarded as special
reasons. (See also: Bhupinder Sharma v. State of Himachal Pradesh, AIR 2003 SC 4684;
and State of Andhra Pradesh v. Polamala Raju @ Rajarao, AIR 2000 SC 2854)
17.
In
State of M.P. v. Bala @ Balaram, AIR 2005 SC 3567, this Court while dealing
with the issue observed: “The crime here is rape. It is a particularly heinous
crime, a crime against society, a crime against human dignity, one that reduces
a man to an animal. The penal statute has prescribed a maximum and a minimum
punishment for an offence under Section 376 IPC. To view such an offence once
it is proved, lightly, is itself an affront to society. Though the award of maximum
punishment may depend on the circumstances of the case, the award of the
minimum punishment, generally, is imperative. The provisos to Sections 376(1)
and 376(2) IPC give the power to the court to award a sentence lesser than the
minimum for adequate and special reasons. The power under the proviso is not to
be used indiscriminately or routinely. It is to be used sparingly and only in
cases where special facts and circumstances justify a reduction. The reasons
must be relevant to the exercise of such discretion vested in the court. The
reasons must be set out clearly and cogently. The mere existence of a discretion
by itself does not justify its exercise. The long pendency of the criminal
trial or the offer of the rapist to marry the victim are not relevant reasons.
Nor is the age of the offender by itself an adequate reason. It is true that reformation
as a theory of punishment is in fashion but under the guise of applying such theory,
the courts cannot forget their duty to society and to the victim. The court has
to consider the plight of the victim in a case involving rape and the social stigma
that may follow the victim to the grave and which in most cases, practically
ruins all prospects of a normal life for the victim.” (Emphasis supplied)
18.
In
Ravji @ Ram Chandra v. State of Rajasthan, AIR 1996 SC 787, this Court held
that it is the nature and gravity of the crime but not the criminal, which are germane
for consideration of appropriate punishment in a criminal trial. The court will
be failing in its duty if appropriate punishment is not awarded for a crime which
has been committed not only against the individual victim but also against the society
to which the criminal and victim belong. The punishment to be awarded for a
crime must not be irrelevant but it should conform to and be consistent with
the atrocity and brutality with which the crime has been perpetrated, the enormity
of the crime warranting public abhorrence and it should respond to the society's
cry for justice against the criminal.
19.
Awarding
punishment lesser than the minimum prescribed under Section 376 IPC, is an
exception to the general rule. Exception clause is to be invoked only in
exceptional circumstances where the conditions incorporated in the exception
clause itself exist. It is a settled legal proposition that exception clause is
always required to be strictly interpreted even if there is a hardship to any individual.
Exception is provided with the object of taking it out of the scope of the
basic law and what is included in it and what legislature desired to be
excluded. The natural presumption in law is that but for the proviso, the
enacting part of the Section would have included the subject matter of the
proviso, the enacting part should be generally given such a construction which
would make the exceptions carved out by the proviso necessary and a construction
which would make the exceptions unnecessary and redundant should be avoided. Proviso
is used to remove special cases from the general enactment and provide for them
separately. Proviso may change the very concept of the intendment of the
enactment by insisting on certain mandatory conditions to be fulfilled in order
to make the enactment workable. (Vide: S. Sundaram Pillai, etc. v. V.R.
Pattabiraman, AIR 1985 SC 582; Union of India & Ors. v. M/s. Wood Papers
Ltd. & Anr., AIR 1991 SC 2049; Grasim Industries Ltd. & Anr. v. State
of Madhya Pradesh & Anr., AIR 2000 SC 66; Laxminarayan R. Bhattad &
Ors. v. State of Maharashtra & Anr., AIR 2003 SC 3502; Project Officer,
ITDP & Ors. v. P.D. Chacko, AIR 2010 SC 2626; and Commissioner of Central
Excise, New Delhi v. Hari Chand Shri Gopal & Ors., (2011) 1 SCC 236).
20.
Thus,
the law on the issue can be summarised to the effect that punishment should
always be proportionate/commensurate to the gravity of offence. Religion, race,
caste, economic or social status of the accused or victim are not the relevant factors
for determining the quantum of punishment. The court has to decide the punishment
after considering all aggravating and mitigating factors and the circumstances
in which the crime has been committed. Conduct and state of mind of the accused
and age of the sexually assaulted victim and the gravity of the criminal act
are the factors of paramount importance. The court must exercise its discretion
in imposing the punishment objectively considering the facts and circumstances
of the case. The power under the proviso is not to be used indiscriminately in a
routine, casual and cavalier manner for the reason that an exception clause
requires strict interpretation. The legislature introduced the imposition of minimum
sentence by amendment in the IPC w.e.f. 25.12.1983, therefore, the courts are
bound to bear in mind the effect thereof. The court while exercising the discretion
in the exception clause has to record “exceptional reasons” for resorting to the
proviso. Recording of such reasons is sine qua non for granting the extraordinary
relief. What is adequate and special would depend upon several factors and no
straight jacket formula can be laid down.
21.
In
the instant case, the High Court recorded the submissions advanced on behalf of
the parties to the extent that none of the convicts wanted to press his appeal
on merits as it was not possible to succeed in view of the statement of the prosecutrix
Guddi (PW.1), recorded by the trial court and her statement recorded by the Magistrate
under Section 164 Cr.P.C. on 5th September, 2002. Thus, they pleaded only for
reduction of punishment. The Public Prosecutor vehemently opposed the prayer for
reduction of punishment. In spite of the fact that the learned counsel for the appellants
before the High Court did not press their appeal on merits, the High Court
affirmed the findings insofar as the rape is concerned, recorded by the trial
Court. The High Court held: “So far as commission of offence of rape with her
is concerned, I find that the same is fully proved from her statement and other
prosecution evidence, and I am of the view that the learned trial Court has
considered the prosecution evidence in detail and has rightly convicted the
accused persons and both the learned counsel are right in not pressing their appeal
on merits.” After affirming the conviction for rape for both the accused, the
High Court observed that Heera Lal accused did not commit rape himself but had
only accompanied Vinod Kumar. The High Court further observed as under: “I do
not want to discuss the evidence, in detail, but I certainly find his case to
be a fit one to reduce the sentence of imprisonment to a period of 11 months
and 25 days, already undergone by him. So far as accused Vinod Kumar is
concerned, I find his case to be a fit one to reduce the sentence of imprisonment
looking to the whole statement of the prosecutrix.” (Emphasis added) Thus, it
is evident from the aforesaid discussion that the learned counsel for the
appellants before the High Court did not argue the case on merit but the High
Court affirmed the findings on commission of rape making reference to the
evidence, however, further made observation that the court did not want to
discuss the evidence in detail. We fail to understand as how the findings on commission
of rape have been affirmed without discussing the evidence on record. It was not
necessary at all as the counsel for those parties did not argue the appeals on
merit.
22.
The
Court further took note that awarding punishment lesser than the minimum
sentence of 7 years was permissible only for adequate and special reasons.
However, no such reasons have been recorded by the court for doing so, and
thus, the court failed to ensure compliance of such mandatory requirement but
awarded the punishment lesser than the minimum prescribed under the IPC. Such
an order is violative of the mandatory requirement of law and has defeated the
legislative mandate. Deciding the case in such a casual manner reduces the
criminal justice delivery system to mockery.
23.
Thus,
in the facts and circumstances of the case, the appeals are allowed. Sentences
awarded by the High Court are set aside and seven years R.I. awarded by the
trial court is restored. Respondents are directed to surrender before the
concerned court within a period of four weeks from today and shall undergo
their remaining part of sentences. In case the respondents fail to surrender within
the said period, the Chief Judicial Magistrate, Jaipur (City) is directed to
take them into custody and send them to jail. A copy of the order be sent to
learned Chief Judicial Magistrate, Jaipur (City), Rajasthan.
………………
J. (Dr. B.S. CHAUHAN)
………………
J. (DIPAK MISRA)
New
Delhi,
May
18, 2012
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