The State Of Maharashtra vs Mohan Shankarrao Janrao
2004 Latest Caselaw 569 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned A.P.P. for the State Perused the records.

2. At the outset, it is to be noted that, inspite of opportunity having been afforded, neither the respondent nor his advocate has appeared in the matter and consequently we have gone through the entire records with the assistance of the learned A.P.P.

3. This is an appeal for enhancement of sentence of rigorous imprisonment for one year and fine of Rs. 1,000/- imposed by the learned Assistant Sessions Judge at Pune in sessions Case No. 418 of 1991 on account of conviction of the respondent under Section 376 while imposing Six months R.I. for conviction under Section 506(II) of Indian Penal Code. It is the case of the appellant that there are no justifiable reason for imposing punishment less than 7 years on conviction of the respondent under Section 376 of I.P.C. and that the impugned judgment does not disclose any adequate and special reason for imposing punishment less than the minimum sentence of seven years prescribed under the said provision of law. It is the case of the appellant that considering the facts established in the course of evidence, this is a fit case for enhancing the punishment and awarding maximum punishment which can be awarded for conviction under Section 376 of I.P.C.

4. The materials on record as well as assessment thereof and the findings arrived at by the learned Assistant Sessions Judge, Pune, reveal that on the day preceding to the day of commission of offence, the respondent-accused had a quarrel with his wife, on account of which, the wife along with her two children had proceeded to her mother's house, leaving behind the respondent, prosecutrix and younger boy of two years of age namely Ganesh. The prosecutrix Santoshi was the niece of the wife of the respondent and used to reside with the respondent's family since her childhood. On the day of incidence, i.e. on 26th April, 1991, Santoshi had cooked the food for three of them. During the night hours, after they had gone to sleep, Santoshi realished that the accused was trying to misbehave with her, however, as the child Ganesh woke up, and the accused respondent had to retreat to his bed. But, after some time, the accused again came near the bed of the prosecutrix and while she was sleeping, he again tried to push up her dress and when she tried to object and to raise alarm, the respondent caught hold of her neck and threatened her at the point of knife that in case she tried to raise alarm, she would be killed and thereafter, the accused forced the prosecutrix to submit to the sexual intercourse and thus raped her. After a day or so, i.e. on Monday, the wife of the respondent along with the grandmother of the prosecutrix came to the house of the respondent, and on that ocassion, the prosecutrix expressed her desire to accompany her grand-mother to the later's house, further making it clear that she was not interested in continuing to reside in the house of the respondent. In the house of grand-mother at Dattawadi, the prosecutrix met her mother and on seeing her mother, she started weeping and narrated her the entire incidence of rape by the respondent. That was in the in presence of her grandmother. Thereafter, all three of them proceeded to Bibawewadi Police Chowki and report was lodged. Santoshi being referred to medical examination at Sassoon Hospital, Pune, where she was examined by the Medical Officer, who confirmed the fact of prosecutrix having been subjected to sexual intercourse and the same was further confirmed by the Doctor in the Court while being examined as P.W.1 On examination of the prosecutrix, her age was certified as between 13 to 14 years. The clothes, which the prosecutrix was wearing at the time of the incidence, were subjected to examination by the chemical analyser. However, the report did not disclose my presence of semens on any of those clothes.

5. The testimony of the prosecutrix reveals and establishes that the respondent threatened the prosecutrix with knife saying that she would be killed if she was to raise the alarm and thereafter committed rape on her. It also reveals that the first attempt of rape was frustrated on account of waking up of Ganesh and the respondent did not succeed in having intercourse with the prosecutrix. However, after some time, he succeeded in forcing the prosecutrix to submit to his evil design. The testimony of the prosecutrix also discloses that apart from the prosecutrix, younger child Ganesh and the respondent, no other person was present at the time of the incidence. The cross-examination of the prosecutrix further establishes that at the time of the incidence, there was darkness in the hut. However, it could not in any manner succeed in discrediting her testimony in relation to her accusation against the respondent about commission of an offence of rape on her. Indeed, the testimony of the prosecutrix discloses detail narration of the incidence and nothing could be brought on record in the course of cross-examination to discredit her testimony. Taking into consideration the entire evidence on record, the learned Assistant Sessions Judge, Pune, convicted the respondent under Section 376 read with Section 506(II) of I.P.C. as stated above. There has been no appeal against the said conviction.

6. The learned Assistant Sessions Judge, Pune, after holding the respondent to be guilty of commission of offence of rape of the prosecutrix and upon hearing the respondent, proceeded to observe that the accused in his statement had stated that it was his first offence and that he was the only earning member in his family and that his is having two wives and six children and considering those facts, held that the ends of justice would meet if the sentence of one year rigorous imprisonment with fine of Rs. 1,000/- is imposed for the offence punishable under Section 376 of I.P.C.

7. The Section 376(1) of I.P.C. which deals with the punishment for the offence of rape, provided that:-

"Punishment for rape- (1) 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 seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both.

Provided 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."

8. The said Section 376(1) of I.P.C. clearly provides that whoever, except in the cases provided for by Sub-section (2) thereof, commits rape shall be punished with imprisonment for a term which shall not be less than seven years. Undoubtedly, the proviso to the said Section empowers the Court to impose a sentence of imprisonment for a lesser period. However, for that purpose, the Court has to record in its judgment, adequate and special reasons for imposing such lesser punishment.

9. While referring to the proviso to Section 376 of IPC, the Apex Court in State of Karnataka v. Krishnappa, reported in AIR 2000 SC 1470 had observed that it is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands and penal provisions are no exception to this rule. While reminding that the legislative mandate in the matter of awarding of sentence is required to be followed as the Courts are expected to operate the sentencing system properly and effectively so as to serve sentence as deterrent for the commission of like offence by others, it was stressed that the Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminal. It was observed that "Public abhorrence of the crime needs a reflection through the Court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment." It was also held that the heinous crime of committing rape on a helpless 13/14 years old girl shakes the judicial conscience, and such offence is inhumane. It was further held that "Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity- it degrades and humilitates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely."

10. In Moti Chand & another v. State of Rajasthan, reported in 2001 Cri.L.J. 1916, the learned Single Judge of Rajasthan High Court held that in awarding sentence, judicial discretion should be exercised by Judicial Officers keeping in mind the well accepted judicial lines and it should not be dealt with in routine and mechanical prescription acting on hunch.

11. Perusal of the impugned judgment discloses that the facts which have been considered for imposing lesser punishment are that the offence in question was the first offence committed by the accused and that he was the only earning member of his family and is having two wives and six children. Unhesitatingly, we have to state that these factors under no stretch of imagination can be said to be adequate and special reasons for imposing lesser punishment in the case of the offence punishment under Section 376 of I.P.C. Merely because the offence of rape is the first offence committed by the accused or that the accused is the only earning member in his family or that he is having two wives and six children, cannot be considered to be relevant considerations for deciding the quantum of sentence to be imposed upon the accused upon holding him guilty of commission of offence of rape.

12. Undoubtedly, apart from the above factors, the respondent has not pointed out any other factor so as to justify the punishment lesser than the minimum prescribed under Section 376 of I.P.C. Added to this, the fact which has come on record clearly reveals that the accused hardly warranted any leniency in the matter of punishment. The materials on record disclose that the respondent taking advantage of the absence of his wife as also any elderly person in the house, under the threat with the help of knife to the prosecutrix committed the most hated offence of rape on her. It is to be noted that the prosecutrix had been the family member of the respondent from her childhood, besides being his close relation i.e. niece of his wife. All these factors, and once it is established that is was a rape committed on a minor child, and that too by the person who was supposed to and required under the law to afford protection to the prosecutrix from all such ravishing acts unless the respondent had made out a case for punishment lesser than the minimum prescribed under the provisions of Section 376 of I.P.C., we find that the learned Assistant Sessions Judge, Pune, clearly erred in observing that the ends of justice would meet if the accused was to be penalised of sentence of one year with fine of Rs. 1,000/- In fact it has clearly resulted in miscarriage of justice and the same needs to be quashed and set aside.

13. As already seen above, the proviso to Section 376(1) of I.P.C. clearly requires 'adequate and special reasons' for imposition of sentence for the period less than the minimum prescribed under the said Section 376(1). The expression 'adequate' clearly requires the sentence to be appropriate, assiduous and assorted, having regard to the facts, circumstances and requirements of the case. The expression "special" stands in contradistinction to the expression "general" or "ordinary" or "common". While dealing with the provision to Section 5(2) of Prevention of Corruption Act, 1947, in Meet Singh v. The State of Punjab, reported , it was observed by the Apex Court that:

"Conceding that the quantum of sentence is in the discretion of the trial court, where the Legislature stepped in and circumscribed and fettered the discretion by directing imposition of a minimum sentence, the court can exercise its discretion within the limited sphere left open by legislature. The Legislature circumscribed the discretion by requiring the court to impose minimum sentence but left it open to award less than the minimum statutorily prescribed for special reasons. The words 'special reasons' in the context in which they are used could only mean special to the accused on whom sentence is being imposed. the court has to weigh reasons advanced in respect of each individual accused whose case is taken up for awarding sentence. The word 'special' has to be understood in contradistinction to word 'general' or ordinary'. Now what does term 'special' connote? "Special" means distinguished by some unusual quality; out of the ordinary (See Words and Phrases, Permanent Edition, Volume 39A p.82) Webster defines "special" as particular; peculiar, different from others; designed for a particular purpose, occasion, or person; limited in range; confined to a definite field of action. Thus anything which is common to a large class governed by the same statute cannot be said to be special to each of them. It would thus unquestionably appear that "special reasons" in the context of sentencing process must be special to the accused in the case or special to the facts and the circumstances of the case in which the sentence is being awarded."

14. In State of Andhra Pradesh v. Bodem Sundra Rao, , taking into consideration the increase in the crime against the women, it was observed thus:-

"These crimes are affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the Court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane."

15. In State of Andhra Pradesh v. Polamala Raju alias Rajarao, , the prosecutrix, who was of the age of five years at the relevant time, was subjected to heinous crime of rape. It was held that mere lapse of long time subsequent to the date of offence or that the possibility of the prosecutrix as well as the accused might have got married and settled in life during the pendency of the proceeding would not be a relevant consideration for deciding the sentence to be imposed upon for the commission of offence of rape under Section 376 of I.P.C., though, those factors may be relevant for consideration by the executive or Constitutional authorities, if they chose to remit the sentence on being so approached.

16. In relation to the quantum of punishment to be imposed in the cases of rape, the Apex Court in State of Karnataka v. Krishnappa (supra), had opined thus:-

"The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. Socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances hearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

17. Further in Kamal Kishore v. State of Himachal Pradesh, reported in AIR 2000 SC 1920, it was held that:-

"As parliament has disfavoured the sentence to plummet below the minimum limit prescribed Parliament used the expression "shall not be less than" which is peremptory in tone. The court has, normally, no discretion even to award a sentence less than the said minimum. Nonetheless Parliament was not oblivious of certain very exceptional situations and hence to meet such extremely (sic) contingencies it made a departure from the said strict rule by conferring a discretion on the court subject to two conditions. One is that there should be "adequate and special reasons", and the other is that such reasons should be mentioned in the judgment.

The expression "adequate and special reasons" indicates that it is not enough to have special reasons, nor adequate reasons disjunctively. There should be a conjunction of both for enabling the Court to invoke the discretion. Reasons which are general or common in many cases cannot be regard as special reasons."

18. In State of Jammu & Kashmir v. Vinay Nanda, , it was held that the mitigating circumstances in a case, if established, would authorise the Court to pass such sentence of imprisonment which may be deemed to be reasonable but not less than the minimum prescribed under an enactment. It is to be noted that when special reasons are required to be recorded for imposing the sentence of imprisonment less than the minimum prescribed the Statutes, then care should be taken to distinguish the special reasons from good or other reasons. In fact, the Apex Court in Vinay Nanda's case has clearly held that pendency of criminal case for over a period of time cannot by itself be treated as special reason and prolonging litigation in this country could only be a general reason in criminal cases. Further, in Rizan & Anr. v. State of Chhatisgarh, through the Chief Secretary, Govt. of Chhatisgarh, Raipur, , it was held that merely because occurrence took place sometime back, the same cannot be a factor to reduce the sentences.

19. The Division Bench of thus Court in Gorakh Daji Ghadge v. The State of Maharashtra, reported in 1980 Cri. L.J. 1380 had occasion to deal with a case similar to the one before us. Therein, the accused, a married person having one child from the first wife and two children from the second wife, taking undue advantage of tender age of the child from the first wife, had force her to submit to his evil design and under the threat of assault had forcibly inserted his penis into her vagina. while observing that the evidence on record disclosed that the child was the victim of her father's lust, it was held that "the measure of punishment must depend upon the atrocity of the crime, the conduct of the criminal and the defenseless and unprotected sate of the victim female. In the present case, we have a sordid episode of a father, whose sacred duty is to ensure the welfare of his own child, subjecting his own daughter, Kusum, who is of the tender age of 13 years to the heinous offence of rape. Crimes in which women are victims need to be severely dealt with and in extreme cases such as this where the accused, who is the father of the victim girl has thought it fit to deflower his own daughter of tender years to gratify his lust, then only a deterrent sentence can meet the ends of justice."

20. Undoubtedly, therefore, in the absence of adequate and special reasons being disclosed for awarding sentence lesser than the minimum prescribed under the provisions of Section 376 of I.P.C. and considering the facts on record, the accused does not deserve any leniency in the matter of imposition of sentence. We find that on conviction of the respondent under Section 376 of I.P.C., he needs to be sentenced to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs. 1,000/-, in default, to undergo further rigorous imprisonment for two months.

21. The appeal, therefore, succeeds. The same is hereby allowed and the sentence imposed for conviction under Section 376 of I.P.C. is hereby modified and enhanced to the period of seven years instead of one year. Needless to say that, as already directed above, the substantial punishment shall run concurrently and the accused shall be entitled to get set off for the period in custody during the investigation and trial and the period already undergone after the impugned judgment. The bail bond in favour of the respondent/accused stands cancelled. The accused to surrender forthwith to undergo the necessary period of imprisonment. The appeal stands disposed of accordingly.