IMPORTANT POINT
The expression "adequate and special reasons" appearing in Proviso to Section 376 IPC 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.

Headnote:(i) Indian Penal Code, 1860-Section 376-Rape-Victim around 12-13 years old-Trial Court disbelieving version of prosecutrix and acquitting accused-High Court convicting accused but not imposing mandatory minimum sentence of 7 years -High Court imposing R.I. for three years and fine of 10,000-Appeal by State for enhancement of sentence-Appeal by accused against conviction-Evidence of girl, victim of rape as duly corroborated by testimony of mother and aunt and adequately confirmed by medical evidence conclusively established accused was offender-Conviction as rendered by High Court upheld and sentence enhanced to mandatory minimum of 7 years imprisonment. (Paras 13 & 25)
       (ii) Indian Penal Code, 1860-Section 376(1)-Rape-Victim was 12-13 years old-High Court while convicting accused imposing three years R.I. and fine of Rs. 10,000-High Court s reason for not imposing mandatory minimum sentence of 7 years R.I. was occurrence took place 10 years ago and accused might have settled in life-Reason not special and adequate-"Adequate and special reason" used in proviso to Section 376 indicate that it is not enough to have special reasons, nor adequate reasons disjunctively-There should be conjunction of both to enable Court to invoke discretion-Marriage of victim with another person and dropping-Marriage of victim due to social stigma and disrepute are not special reason to tide over legislative mandate for imposing minimum sentence-Sentence enhanced to imprisonment for 7 years.
       Held : As Parliament has disfavoured the sentence to plummet below the minimum limit prescribed Parliament used the expression "shall not be less than" which is peremptory in tone. The court has, normally, no discretion even to award a sentence less than the said minimum. Nonetheless Parliament was not oblivious of certain very exceptional situations and hence to meet such extremely rare contingencies it made a departure from the said strict rule by conferring a discretion on the court subject to two conditions. One is that there should be "adequate and special reasons", and the other is that such reasons should be mentioned in the judgment. (Para 22)
       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. What the Division Bench of the High Court mentioned i.e. occurrence took place 10 years ago and the accused might have settled in life) are not special to the accused in this case or to the situations in this case. Such reasons can be noticed in many other cases and hence they cannot be regarded as special reasons. No catalogue can be prescribed for adequacy of reasons nor instances can be cited regarding special reasons, as they may differ from case to case. (Para 23)
       As the reasons advanced by the Division Bench of the High Court could not be supported as adequate and special reasons learned counsel for the accused projected an alternative profile in order to support his contention that there are adequate and special reasons. He submitted the following: Shishna Devi (PW2) has since been married to another person and she is now mother of children and is well-settled in life. The accused was aged 23 when the offence was committed and now he is 34, but he remains unmarried. He says that on two occasions his marriage had reached the stage of engagement but both had to be dropped off before reaching the stage of marriage due to the social stigma and disrepute which surrounded him. These are the reasons which he advanced for extending the benefit of the proviso. Those circumstances pleaded by him are not special reasons for tiding over the legislative mandate for imposing the minimum sentence. We, therefore, enhance the sentence for the offence under Section 376 I.P.C. to imprisonment for 7 years. (Paras 24 & 25)

Judgement Key Points

Based on the provided legal document, here are the key points regarding the case Kamal Kishore etc. vs. State of Himachal Pradesh:

1. Procedural History and Appeals * The case involves Criminal Appeal No. 1322 of 1999 and Criminal Appeal No. 211 of 2000, decided by the Supreme Court of India on 25-4-2000. * The trial was conducted by the Sessions Judge, Una (Himachal Pradesh), who acquitted the accused after disbelieving the victim's version. * A Division Bench of the High Court of Himachal Pradesh reversed the acquittal, convicted the accused under Section 376 IPC, but imposed a sentence of three years rigorous imprisonment and a fine of Rs. 10,000, rather than the mandatory minimum. * Both the State (seeking sentence enhancement) and the Accused (seeking reversal of conviction) filed appeals, which were heard together by the Supreme Court. (!) (!)

2. Facts of the Offence * The victim, Shishna Devi, was between 12 and 13 years old (born approx. 1978) at the time of the incident. * The accused, Kamal Kishore, committed the rape on 21.5.1989 in his flour mill. * The victim's testimony was corroborated by her mother (PW-3) and aunt (PW-4), and medically confirmed by Dr. J.S. Kanwar, who found injuries (contusions, tears) and detected spermatozoa and semen. (!) (!) (!) (!) * The Sessions Judge had acquitted the accused based on perceived improbabilities regarding the timeline of events, but the High Court and Supreme Court found the evidence conclusive. (!) (!) (!) (!)

3. Legal Issue: Mandatory Minimum Sentence * The offence fell under Section 376(1) IPC (victim aged 12-13), which mandates a minimum sentence of seven years imprisonment ("shall not be less than"). (!) (!) * The High Court had reduced the sentence below the statutory minimum, citing that the offence occurred 10 years prior and the accused "might have settled in life." * The Supreme Court held that Parliament's use of "shall not be less than" is peremptory, leaving no discretion to award a lower sentence unless specific conditions are met. (!) (!)

4. Interpretation of "Adequate and Special Reasons" * The proviso to Section 376 IPC allows a sentence below the minimum only for "adequate and special reasons," which must be conjunctive (both adequate AND special), not disjunctive. * General reasons common to many cases (e.g., time elapsed, accused settling in life, lack of other offences) cannot constitute "special reasons." (!) (!) (!) (!) (!) * The Supreme Court explicitly rejected the High Court's reasoning that the accused might have settled in life as insufficient. (!) (!) (!) * The Supreme Court also rejected the Accused's argument that the victim's subsequent marriage and the accused's social stigma constituted special reasons. (!) (!)

5. Final Holding and Sentence Enhancement * The Supreme Court upheld the conviction as rendered by the High Court. * The sentence was enhanced to the mandatory minimum of seven years rigorous imprisonment. * The Court clarified that factors like the long time lag and the victim's marriage are relevant for executive or constitutional authorities considering remission, but do not justify a lower initial sentence. (!) (!) (!) (!)

JUDGMENT

Thomas, J.-The victim of a rape had just crossed single digit in her age. So tender was that lass when she was ravished. But the damage caused to her genitalia was woeful. The girl narrated the story before Ms. Kiran Agarwal, Sessions Judge, Una (Himachal Pradesh) who tried the case, but the story told by her did not impress the Sessions Judge and hence her testimony was jettisoned and the man who was arraigned as the rapist exonerated. However, a Division Bench of the High Court of Himachal Pradesh dissented from the said verdict and convicted him under Section 376 of the Indian Penal Code. Nonetheless, the Division Bench was not disposed to award the minimum sentence prescribed by law for the offence on the premise that the accused who was twenty five "might have settled in life." So the High Court directed him to undergo rigorous imprisonment for three years and to pay a fine of Rupees ten thousand.

2. The verdict of the High Court did not satisfy both sides - the accused and the State of Himachal Pradesh. The former because of the reversal of the order of acquittal and the latter because of the inadequacy of the sentence. So both sides filed separate appeals by special leave. We heard both appeals together.

3. The case put forward against the accused can be summarised in the following lines:-

Shishna Devi (PW2) is the eldest of the three children of Sher Singh and his wife Kunta Devi. During the year of occurrence Shishna Devi was studying in the 4th class. Accused Kamal Kishore was running a flour mill located adjacent to his house. The incident happened on 21.5.1989. Shishna Devi after taking her evening meals proceeded to the house of her aunt, but on the way she stepped into the house of the accused presumably for viewing a TV film. Either at the end of the film or a little before it Shishna Devi was asked by the mother of accused to fetch some cooking utensils from the flour mill. So she went and brought the utensils to the kitchen. It was right time and the accused followed her upto the kitchen. He caught hold of her from behind, muffled her mouth, lifted her up and took her to the flour mill and after dragging her to a side room, stripped her off and he committed rape on her.

4. When the wearing apparels of Shishna Devi became wet with blood the accused brought a bucket of water and washed the dress. He threatened her not to reveal it to anybody else. The house of her aunt (Kaushalya Devi - PW4) was located close by and Shishna Devi instead of going back to her own house went to that aunt s house and spent the night there.

5. Next morning Shishna Devi returned home. Her mother Kunta Devi (PW-3) noticed blood stains on her dress and she enquired about the cause of it. Shishna Devi then narrated the incident to her mother. Her husband (father of Shishna Devi) was not in the house then as he had gone for his work. (He is a daily-wage earning labourer). Next day when he returned home the story was narrated to him. On hearing the same he wanted to report the matter to the police and hence he took his wife and Shishna Devi to Bangana police station and lodged Ex. PC complaint.

6. Shishna Devi was examined by PW 14 Dr. J.S. Kanwar of the Indira Gandhi Medical College (Shimla) at 4.30 pm on 23.5.1989. The doctor noted the following features on her person.

1. Congestion (contusion) of labia minora both sides.

2. Tear in the perennial fourchete in mid-line involving vaginal mucosa and perineal skin (3/4th cm long in skin). Swelling and tenderness noted at that site.

3. Congestion and oedema of vestibule around Urethra.

4. Hymen showed lacerations on the left side. There was oedema and tenderness. It was bleeding on touch.

7. According to PW-14, the injuries could probably had been sustained 24-48 hours prior to his examination of the girl. The doctor collected the swab from the posterior fornix of the vagina, and that along with the wearing app

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2000 Supreme(SC) 861

Cases Referred (2)