Important point
When trial Court in a conviction u/s 376(2)(g) IPC awarded sentence of 10 years imprisonment but High Court which reduced sentence to period undergone which was one year and 11 months, far below the minimum prescribed and thus illegal, liable to be set aside.

Judgment

G.P. Mathur, J.—1. Delay in filing the special leave petition is condoned.

2. Leave granted.

3. This appeal has been preferred by the State of M.P. against the judgment and order dated 11.7.2003 of Justice N.S. Azad of M.P. High Court in Crl. Appeal No. 1442 of 2002.

4. The trial Court convicted the accused under Sections 376(2)(g) and 506 I.P.C. and sentenced him to various terms of imprisonment and fine. He was awarded a sentence of 10 years R.I. and a fine of Rs. 200/- and in default to undergo R.I. for a further period of one month under Section 376(2)(g) I.P.C. The High Court partly allowed the appeal and while upholding the conviction of the accused on various counts reduced the sentence to the period already undergone which is nearly 1 years and 11 months.

5. Learned counsel for the appellant has submitted that the sentence imposed by the High Court is wholly inadequate looking to the nature of the offence and is contrary to the minimum prescribed by law.

6. Sub-section (1) of Section 376 I.P.C. provides that whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description 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. In the category of cases covered under sub-section (2) of Section 376, the sentence cannot be less than 10 years but which may be for and shall also be liable to fine. The proviso appended to sub-section (1) lays down 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 7 years. There is a similar proviso to sub-section (2) which empowers the Court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is not only grosslly inadequate but is also contrary to express provision of law. The High Court has not assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal.

7. That apart, the High Court has written a very short and cryptic judgment. To say the least, the appeal has been disposed of in a most unsatisfactory manner exhibiting complete non-application of mind. There is absolutely no consideration of the evidence adduced by the parties.

8. Chapter XXIX of Code of Criminal Procedure deals with APPEALS. Section 384 Cr.P.C. empowers the appellate Court to dismiss an appeal summarily if it considers that there is no sufficient ground for interference. Section 385 Cr.P.C. gives the procedure for hearing appeals not dismissed summarily and Section 386 Cr.P.C. gives the powers of the appellate Court. In Amar Singh v. Balwinder Singh 2003 (2) SCC 518, the duty of the appellate Court while hearing a criminal appeal in the light of the aforesaid provisions was explained and para 7 of the report reads as under:

“7. The learned Sessions Judge after placing reliance on the testimony of the eye-witnesses and the medical evidence on record was of the opinion that the case of the prosecution was fully established. Surprisingly, the High Court did not at all consider the testimony of the eye witnesses and completely ignored the same. Section 384 Cr.P.C. empowers the Appellate Court to dismiss the appeal summarily if it considers that there is no sufficient ground for interference. Section 385 Cr.P.C. lays down the procedure for hearing appeal not dismissed summarily and sub-section (2) thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 Cr.P.C. lays down that after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, the Appellate Court may, in an appeal from conviction, reverse the finding and sentence