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2000(5) Supreme 558
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & K.G. Balakrishnan, JJ.
State of Andhra Pradesh -Appellant
versus
Polamala Raju @ Rajarao -Respondent
Criminal Appeal No. 629 of 1996
Decided on 9-8-2000
Counsel for the Parties :
For the Appellant : Guntur Prabhakar and Ms. T. Anamika, Advocates.
For the Respondent : A.S. Pundir, Advocate (A.C.).
Normal sentence under Section 376(2) IPC in a case where rape is 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 Section 376(2) IPC, however lays down that in exceptional cases, "for special and adequate reasons", sentence of less than 10 years R.I. 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 weighed with the court in awarding a sentence less than the minimum prescribed under the Act. It is an obligation of the sentencing court to consider all relevant facts and circumstances 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 of the victim 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. To say the least, the order contains no 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 Section 376(2) IPC were not at all present to the mind of the Court. 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. (Paras 10, 11, 14 and 15)
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 these proceedings, fine instead of sentence be imposed. We cannot agree. These factors may be relevant for consideration by the Executive or Constitutional authorities, if they chose to remit the sentence on being so approached. But insofar as our judicial conscience is concerned, we find no reason to go against the legislative mandate and award any lesser sentence. (Para 16)
JUDGMENT
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.
2. The respondent, a neighbour of the prosecutrix 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 respondent, as narrated in court through her mother, PW-1 received ample 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 September, 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 awarded 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 Andhra Pradesh. The learned Single Judge, vide judgment, dated 15th September, 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 imprisonment in default of payment of fine.
3. The respondent has not filed any appeal challenging his conviction and sentence.
4. The State is in appeal against reduction of sentence of the respondent by the High Court.
5. 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 of the offence under Section 376 IPC.
6. Was the High Court justified in interfering with the discretion exercised by the trial Court by reducing the sentence from 10 years R.I. to 5 years R.I. for an offence under Section 376 IPC is the only question requiring our consideration?
7. Section 376(2) IPC reads thus :
"376. Punishment for rape.-(1) x x x
(2) Whoever,-
(a) - (e) x x x x
(f) commits rape on a woman when she is under twelve years of age; or
(g) x x x x
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."
8. 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 is 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 Section 376(2) IPC, however lays down that in exceptional cases, "for special and adequate reasons", sentence of less than 10 years R.I. 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 pos
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