Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(SC) 99

SUPREME COURT OF INDIA
C.T. RAVIKUMAR, RAJESH BINDAL, JJ.
Bhaggi @ Bhagirath @ Naran – Petitioner
Versus
The State of Madhya Pradesh – Respondent
Special Leave Petition (Crl.) No. 2888 of 2023
Decided On : 05-02-2024

Advocates appeared:
For the Petitioner(s): Mrs. K. Sarada Devi, AOR Mr. R.Vijay Nandan Reddy, Adv. Mr. V.krishna Swaroop, Adv.
For the Respondent(s): Mrs. Ankita Chaudhary, D.A.G. Ms. Mrinal Gopal Elker, AOR Mr. Abhimanyu Singh-g.a., Adv. Mr. Abhijeet Pandove, Adv. Mr. Saurabh Singh, Adv. Mr. Divyansh Singh, Adv. Ms. Aarushi Gupta, Adv. Mr. Asosh Rawat, Adv.

IMPORTANT POINTS
(1) Kidnapping and rape of girl child – When a sentence of imprisonment for a term not less than 20 years which may extend upto life imprisonment is imposed, convict is also liable to suffer a sentence of fine which shall be just and reasonable to meet medical expenses and rehabilitation of victim.
(2) When words ‘barbaric’ and ‘brutal’ are used simultaneously they are not to take character of synonym, but to take distinctive meanings.

Headnote:
(A) Protection of Children from Sexual Offences Act, 2012 – Indian Penal Code, 1860 – Section 376AB – Kidnapping and rape of girl child – Death sentence commuted to life sentence by High Court – Manner in which offence was committed by petitioner-convict, one can only say that action of petitioner-convict is barbaric though he had not acted in a brutal manner – Petitioner-convict was aged 40 years on the date of occurrence and victim was then only a girl, aged 7 years – He used a lass aged 7 years to satisfy his lust – For that the petitioner-convict took victim to a temple, unmindful of holiness of place disrobed her and himself and then committed crime – Fact he had not done it brutally will not make its commission non-barbaric – When once conviction is sustained under Section 376 AB, IPC fixed term punishment could not be for a period of less than 20 years – Fixed term of sentence of 30 years, which shall include period already undergone, must be modified sentence of imprisonment – When a sentence of imprisonment for a term not less than 20 years which may extend upto life imprisonment is imposed, convict is also liable to suffer a sentence of fine which shall be just and reasonable to meet medical expenses and rehabilitation of victim – Conviction and sentence imposed on petitioner-convict confirmed – Petitioner-convict shall not be released from jail before completion of actual sentence of 30 years – Fine amount of Rupees One Lakh added. (Paras 10, 14, 16, 17, 19 and 21)
(B) Words and Phrases – When words ‘barbaric’ and ‘brutal’ are used simultaneously they are not to take character of synonym, but to take distinctive meanings. (Para 10)
Facts of the case:
Petitioner-convict herein is aggrieved by conviction and sentence imposed against him for certain other offences under IPC, as also against conviction under Protection of Children from Sexual Offences Act, 2012. As per impugned judgment, capital punishment awarded for conviction under Section 376 AB, IPC was not confirmed and it was commuted to imprisonment for life, which, going by provisions thereunder, means imprisonment for remainder of convict’s natural life.
Findings of Court:
While maintaining conviction of petitioner-convict under Section 376 AB, IPC, sentence imposed thereunder is modified to a sentence of rigorous imprisonment for a term of 30 years. This will also include period of sentence already undergone and period, if any ordered by Trial Court for set off. Imprisonment awarded for conviction under Section 363, IPC shall run concurrently. Amount of fine imposed thereunder shall be added to fine imposed by us viz. Rupees One Lakh.
Result : Special Leave Petition partly allowed.

ORDER :

1. The petitioner-convict seeks to assail the judgment dated 11.10.2018 of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No. 5725 of 2018.

2. In troth, it is a common judgment in Criminal Reference No. 6/2018 submitted by the Trial Court under Section 366 of the Code of Criminal Procedure, 1973 (Cr.P.C.) for confirmation of the conviction under Section 376 AB of the Indian Penal Code, 1860 (IPC) as amended by Act No. 22 of 2018 and in Criminal Appeal No. 5725 of 2018 filed by the petitioner-convict herein aggrieved by the conviction and sentence imposed against him for certain other offences under the IPC, as also against the conviction under the Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’). As per the impugned judgment, the capital punishment awarded for the conviction under Section 376 AB, IPC was not confirmed and it was commuted to imprisonment for life, which, going by the provisions thereunder, means imprisonment for the remainder of the convict’s natural life.

3. Heard the learned counsel appearing for the petitioner-convict and the learned Additional Advocate General for the State of Madhya Pradesh.

4. It is to be noted that in the instant case, after condoning the delay, limited notice on the question of sentence alone was issued on 24.02.2023. Since we do not find any reason to enlarge the scope, the parties confined their arguments within the permissible scope.

5. We are of the considered view that for considering the aforesaid question it is apposite to refer succinctly to the facts of the case. On 21.05.2018, the complainant Munni Bai (PW-8) who is the grandmother of the victim lodged a report that her granddaughter X, who was examined as PW-1, aged 7 years was kidnapped and raped by the petitioner-convict. After the trial, the Trial Court found that the prosecution had succeeded in bringing damning evidence to establish that the victim, aged 7 years was taken to Rajaram Baba Thakur Mandir by the petitioner-convict and there upon making her and himself nude he committed rape. Upon her screaming, the prosecution witnesses who went there found the convict, belonging to the same village, laying over and violating the victim and at their sight running away from there. The oral testimonies of the prosecution witnesses (PWs. 1, 2 and 14) on the culpability of the convict got credence from the medical evidence unerringly pointing to his guilt. The consequential conviction inter-alia, under Section 376 AB, IPC as amended by Act No. 22 of 2018, originally, brought him capital sentence. Though, the petitioner was also convicted under Section 376 (2) (i) and under Sections 3/4, Sections 5(d)/6 of the POCSO Act taking note of his conviction under Section 376 AB, IPC, no separate sentences were awarded for the aforesaid offences by the trial Court. In view of the commutation of capital punishment awarded for the conviction under Section 376 AB, IPC it is also a matter to be considered if we interfere with the sentence of life imprisonment for the offence under Section 376 AB, IPC as amended under the Act No. 22 of 2018.

6. As noticed hereinbefore, on appreciating the evidence on record and coming to the conclusion that the guilt of the petitioner under Section 376 AB, IPC has been conclusively proved, but capital punishment imposed therefor, is to be commuted while confirming the conviction under Section 376 AB, IPC. The High Court commuted it to imprisonment for life though another alternative punishment was also possible viz. rigorous imprisonment for a term not less than 20 years with fine.

7. In the decision in Mulla vs. State of U.P., (2010) 3 SCC 508 this Court held:

“85........It is open to the sentencing court to prescribe the length of incarceration. This is especially true in cases where death sentence has been replaced by life imprisonment.....”

8. Evidently, the decision in Mulla’s case (supra) and a catena of decisions where death sentence was commuted to the impri