JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Karnataka High Court reducing the custodial sentence of respondent to 3= years instead of seven years as was imposed by the learned Second Additional Sessions Judge, Gulbarga, in SC No.61/1993, after convicting the respondent for an offence punishable under Section 376 of the Indian Penal Code, 1860 (in short the 'IPC'). The victim (PW1) was aged less than 12 years when she was sexually ravished by the respondent on 31.1.1993 at about 12.30 p.m.

2.On the basis of First Information Report (in short the 'FIR') lodged at the police station law was set into motion. On completion of investigation, charge-sheet was filed and accused faced trial and he pleaded innocence. Prosecution placed reliance on the evidence of victim and the medical evidence. The trial court convicted the accused under Section 376 IPC. An appeal was preferred before the High Court. The same was disposed of by the High Court maintaining the conviction but sentence was reduced to 3= years, since the High Court felt that in view of certain special reasons the custodial sentence was to be reduced to 3= years.

3.In support of the appeal, learned counsel for the State submitted that in a heinous crime like rape the High Court was not justified in reducing the sentence by referring to certain circumstances which are not only irrelevant but also cannot constitute special reasons warranting reduction in sentence. Since the accused was not represented in this appeal in spite of service of notice, Mr. Ashok Bhan, appeared as Amicus Curiae at our request.

4.According to learned Amicus Curiae, though the offence of rape is a heinous crime but while sentencing an accused the same should be tempered with mercy. Though such a plea was not taken before the trial court, High Court indicated some reasons which may not be sufficient to justify the reduction per se, yet as it exercised judicial discretion, there is no need for interference. It has to be noted that the victim was less then 12 years of age at the time of occurrence. In fact both the trial court and High Court have noted that she was aged about 10 years. Stringent punishment is provided for where the victim is less than 12 years of age in terms of Section 376 (2) (f) IPC.

5.The minimum punishment is 10 years but the proviso provides that for "adequate and special reasons" mentioned in the judgment a sentence of less then 10 years can be imposed. Unfortunately this aspect appears to have been lost sight of by both the trial court and the High Court and the State has also not questioned the inadequacy of sentence on that ground. The High Court has noted as follows to reduce the sentence:"The learned counsel for the appellant contended that the accused is a young boy of 18 years and he is illiterate and rustic.Though he is not actually aged 18 years, he could not take the plea of his age on account of illiteracy and thus he has lost the chance of taking the benefit of reformatory Legislation or seeking a remand to Borstal School etc., For the illiteracy and ignorance of the accused, it should not be taken as a ground for not taking the defence in the trial and this is a circumstance to award reduced sentence. Accused has already served in jail for 2 years 11 months.In view of the fact that the accused is a young boy of 18 years belonging to Vaddara Community and Illiterate, I think it just and proper to reduce the sentence from seven years RI to three and half years R.I. Appeal is partly allowed."

6.It needs no emphasis that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial resp