VERY IMPORTANT POINT
Although High Court s order reducing sentence for offence of rape from minimum 7 years RI to period already undergone, without specifying reasons, is illegal but in the appeal against sentence, having considered the evidence on record, Apex Court was satisfied that the respondent (rapist) was entitled to benefit of doubt that accused had sexual intercourse with the prosecutrix with her consent, the State s appeal against sentence is dismissed and the respondent is acquitted of all charges levelled against him applying the principles under Section 377(3) Cr.P.C. 1973.

Headnote:(i) Indian Penal Code, 1860-Section 376-Offence of rape-Minimum sentence of 7 years awarded by Sessions Court-In appeal, modified to period already undergone without assigning any special reasons as required in proviso to Section 376-Whether legal? (No) (Paras 4 r/w 27).
       Held : At the outset counsel for the State submitted that the High Court clearly erred in law in reducing the sentence passed against the respondent to the period already undergone, which was impermissible in view of the expressed provision of Section 376 IPC which mandates that on finding the accused guilty of the offence under Section 376 IPC, in a case of this nature, the accused shall be sentenced for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. The proviso to Section 376, however, provides that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. In the judgment the learned Judge has not recorded any adequate or special reasons for reducing the sentence to the period already undergone except for stating that the respondent had remained in custody since the year 1988 and in such cases courts have taken a lenient view. We have no doubt that such a statement does not answer the description of an adequate and special reasons which were required to be mentioned in the judgment. Learned amicus curiae could not advance any argument to support the order of the High Court reducing the sentence to the period already undergone. It is, therefore, patent that the order reducing the sentence of the respondent is illegal and cannot be sustained (Para 4)
       (ii) Constitution of India-Article 136-Criminal Procedure Code, 1973-Section 377(3)-I.P.C. 1860-Section 376-Offence of rape-Trial Court convicted respondent and sentenced to 7 years RI and fine-High Court modified the sentence to period already undergone-Appeal against sentence to Supreme Court-Is it an appeal for the enhancement of sentence? (Yes).
       Held : Learned counsel for the State submitted that the appeal preferred by the State is not an appeal for the enhancement of the sentence but for setting aside an order passed by the High Court imposing a sentence which is patently illegal and contrary to the express mandate of the provision. It is no doubt true that the State has preferred the appeal challenging the legality of the sentence. In that sense it is not an appeal for enhancement of sentence on the ground of its inadequacy. However, it is equally true that if the sentence is found to be illegal and set aside and appropriate sentence imposed, it would result in the enhancement of the sentence. The only consequence of the State appeal being allowed would be to enhance the sentence and, therefore, we are of the view that the appeal in effect is for enhancement of the sentence of the respondent on the ground that the sentence imposed against him is not in accordance with law, and not adequate, since it is less than the minimum sentence prescribed under the law. (Para 6)
       (iii) Constitution of India-Article 136 r/w Section 377(3) of Cr.P.C. 1973-Appeal against modification of sentence by High Court for offence of rape-Whether in such an appeal accused can argue for an acquittal? (Yes) (Paras 7 to 10) JT 1999(7) SC 207 relied on.
       Held : This Court, therefore, permitted the respondents to argue for an acquittal in the appeal preferred by the State of U.P. for enhancement of the sentence by adopting analogous provision found in Section 377 (3) of the Code of Criminal Procedure. (Para 10)
       (iv) Indian Penal Code, 1860-Section 376-Offence of rape-Cr.P.C. 1973-Section 377(3) r/w Article 136 of Constitution-Appeal to Supreme Court against reduction of sentence by High Court-High Court s order found illegal-Accused arguing for his acquittal on ground that it was sexual intercourse with consent-Court found probable circumstances of consent present-Whether benefit of doubt be given to accused? (Yes)-Result-Appeal dismissed accordingly.
       Held : It is rather surprising that the accused entered the house at night and though the brother-in-law of the prosecutrix and his wife were sleeping only 20-25 feet away, the prosecutrix could not raise alarm so as to attract their attention. It further appears that the prosecutrix was known to the accused and that is why the first question asked by her was as to why he had come in the night. To this the accused replied stating that he wanted to have sexual intercourse with her. In the First Information Report as well as in the deposition of Dhulibai, prosecutrix and Chhitarlal, PW.11 then is a mention of the fact that the accused offered her Rs. 20/- for having sexual intercourse with her and also stated that one Phulia will also pay her the same amount for having sexual intercourse with her. This is not disputed by the prosecutrix. This gives an impression that the prosecutrix and the respondent were quite intimate.The other surprising feature of the case is that the husband of the prosecutrix after entering the house did not straightaway chase the accused. He first questioned his wife as to whether she had called him, and only after her stating that she had not called him and that he had forcibly raped her, her started chasing the respondent and caught him. This again probablises the fact that the husband also had at least some suspicion about the nefarious activities of his wife, otherwise it would be quite unnatural for a husband asking his wife, even before attempting to catch the accused, as to whether she had called him, and whether the accused had sexual intercourse with her consent. There is yet another aspect of the matter. According to the prosecutrix she was having sexual intercourse with the accused when her husband came. According to her, it was her husband who separated the accused from her. The husband of the prosecutrix has not said so, though at one place he has stated that his wife was weeping when the accused was having sexual intercourse with her. It appears that the prosecutrix was offering no resistance while she was having sexual intercourse, when suddenly her husband entered the room. It was, therefore, contended on behalf of the respondent that it was only when her husband entered the room, she started raising hue and cry. It was sought to be argued on behalf of the State that the respondent had carried a knife with him and had threatened the prosecutrix with the knife and, therefore, on account of fear, she could not raise an alarm or resist the respondent. In addition he had forced a handkerchief in her mouth. It is indeed surprising that the knife has not been exhibited in the trial, nor does it appears to have been seized in the course of investigation. If the respondent had brought a knife with him, and it is the prosecution case that he was caught hold of within the precincts of the house itself, he had obviously no opportunity of throwing away the knife. In the normal course the knife should have been recovered from the house of the prosecutrix. The non-seizure of the knife raises a serious suspicion about the truthfulness of the prosecution version that the respondent had sexual intercourse with the prosecutrix under threat. Having regard to these features of the case, the probability of the accused having had sexual intercourse with the prosecutrix with her consent cannot be ruled out. The features that we have noticed above probablise the defence of the respondent, and we entertain serious doubt about the truthfulness of the prosecution case that the accused had sexual intercourse with the prosecutrix without her consent. In the facts and circumstances of the case, we are of the view that the respondent is entitled to the benefit of doubt. In the result this appeal is disposed of with a finding that though the sentence imposed by the High Court was illegal, having considered the evidence on record, we are satisfied that the respondent is entitled to the benefit of doubt. The appeal is, therefore, dismissed and the respondent is acquitted of all the charges levelled against him. The bail bonds of the respondent are discharged. (Paras 24 to 27)

JUDGMENT

Bisheshwar Prasad Singh, J.-This appeal by special leave preferred by the State of Rajasthan is directed against the judgment and order of the High Court of Rajasthan at Jaipur, Jaipur, Bench, Jaipur dated 26th April, 1991 in S.B. Criminal Appeal No. 371 of 1990

2. By the impugned judgment the High Court while convicting the respondent of the offence under Section 376 of the Indian Penal Code reduced his sentence to the period already undergone. It appears that the respondent had undergone a sentence of about 2-1/2 years when the impugned judgment was passed. Earlier the learned Additional Sessions Judge. Baran, had found the respondent guilty of the offences under Sections 376 and 457 IPC and had sentence him to undergo 7 years rigorous imprisonment under Section 376 IPC and a fine of Rs. 500/-, in default to six months simple imprisonment. He also sentenced him to 1 year rigorous imprisonment under Section 457 IPC and a fine of Rs. 200/-, in default, 3 months simple imprisonment.

3. Since the respondent was un-represented before us, we requested Shri Alok Bhachawat, Advocate, to assist us an amicus curiae. He has rendered very good assistance to the Court.

4. At the outset counsel for the State submitted that the High Court clearly erred in law in reducing the sentence passed against the respondent to the period already undergone, which was impermissible in view of the expressed provision of Section 376 IPC which mandates that on finding the accused guilty of the offence under Section 376 IPC, in a case of this nature, the accused shall be sentenced for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. The proviso to Section 376, however, provides that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. In the judgment the learned Judge has not recorded any adequate or special reasons for reducing the sentence to the period already undergone except for stating that the respondent had remained in custody since the year 1988 and in such cases courts have taken a lenient view. We have no doubt that such a statement does not answer the description of an adequate and special reasons which were required to be mentioned in the judgment. Learned amicus curiae could not advance any argument to support the order of the High Court reducing the sentence to the period already undergone. It is, therefore, patent that the order reducing the sentence of the respondent is illegal and cannot be sustained.

5. Learned counsel for the respondent, however, submitted that the State of Rajasthan has preferred, by special leave, the present appeal challenging the legality of the order sentencing the respondent to the period already undergone and the effect of the appeal being allowed is that the sentence of the respondent may be enhanced to a minimum of 7 years. He, therefore, submitted that this Court should permit the respondent to argue for an acquittal since the appeal by special leave, for all practical purposes, is an appeal for enhancement of the sentence. It is, therefore, submitted that this Court in exercise of its extra ordinary jurisdiction under Article 136 of the Constitution of India may apply the principle analogous to the one enshrined in Section 377(3) of the Code of Criminal Procedure which in term provides that when an appeal is filed against the sentence on the ground of its inadequacy, the accused while showing cause may plead for his acquittal or for the reduction of the sentence.

6. Learned counsel for the State submitted that the appeal preferred by the State is not an appeal for the enhancement of the sentence but for setting aside an order passed by the High Court imposing a sentence which is patently illegal and contrary to the express mandate of the provision. It is no doubt true that the State has preferred the appeal cha

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2002 Supreme(SC) 648

Cases Referred (3)