Himachal Pradesh High Court

State Of H.P. vs . Kuldeep Singh @ Chhotu on 7 August, 2024

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

State of H.P. Vs. Kuldeep Singh @ Chhotu

Cr. Appeal No. 328 of 2011 Reserved on 08.07.2024.

QUANTUM OF SENTENCE

07.08.2024 Present: Mr Pawan Thakur, Additional Advocate

General for the appellant.

Mr. Nimish Gupta, Advocate, for the convict.

The parties have been heard on the quantum of the

sentence.

2. to Mr. Pawan Kumar learned Additional Advocate

General for the appellant submitted that the convict had attempted to

rape a minor girl aged about 11 years. The offence is heinous and the

accused be sentenced to a deterrent punishment.

3. Mr Nimish Gupta, learned counsel for the convict

submitted that the convict is a first-time offender and no previous

conviction has been proved against him. He has two daughters: one

aged 14 years studying in class 9 th and the other one aged 6 years

studying in class 2nd. He has an aged mother who is suffering from a

mental disorder. He has a young brother aged 20 years, who is

working as a labourer. He has settled in life. His family is dependent

upon him. His wife is suffering from a backbone fracture and is

receiving treatment at Pathankot. In case of imprisonment, the family

members will be left with no source of income. Hence, he prayed that

a lenient view be taken.

4. The convict was also present with his wife and

children on 08.07.2024. He expressed remorse and submitted that he

has moved ahead in life. The incident had taken place when he was

young and immature. He prayed that a lenient view be taken in the

matter.

5. The victim's father was also present in the Court. He

submitted that the victim has married and is settled in life. In case of

imprisonment of the convict, the victim would be defamed as the

incident, which was forgotten with the passage of time would be

revived in public memory. He also prayed that a lenient view be taken.

6. We have considered the submissions made before us

and have gone through the records carefully.

7. It was held by the Hon'ble Supreme Court in Sheikh

Sadik versus State of Madhya Pradesh Cr. Appeal No. 406 of 2019 decided

on 08.11.2023 that where the victim was happily married and not

interested in pursuing the matter, the sentence could be reduced to

the period of 5 years, which was already undergone by the convict.

Similarly, it was held in Nehnu Ram vs. State of Rajasthan and Ors.

(20.02.2019 - SC): MANU/SC/2040/2019 that where the convict was

aged 22 years at the time of the incident, the victim and convict were

married (not with each other) and the convict did not have the

criminal antecedents, the Court can impose less than minimum

sentence. It was observed:

"15. Learned Counsel for the Appellant submits that

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the special reasons in the present case are the

incident took place on 24.02.1989 and at the time of the incident, the Appellant was 22 years of age; there are no criminal antecedents of the Appellant;

the Appellant is now married and has three daughters; the prosecutrix is also married and has husband and kids and is well-settled in life and the Appellant has already undergone the sentence of

more than one year and seven months.

16. Learned Counsel for the Appellant has placed reliance on the judgment of this Court in Ravindra v. State of Madhya Pradesh MANU/SC/0198/2015:

(2015) 4 SCC 491. In the above case, the Appellant

was convicted for an offence Under Section 376 and sentenced to 10 years RI with a fine of ₹ 2,000/-.

Proviso to Section 376 was relied upon and it was contended that the incident took place twenty years

ago and by the passage of time, the victim and the Accused are married, a lesser sentence be imposed. This Court noticed the above submission in para 11

which is to the following effect:

Now, we shall examine whether this case falls

under the proviso to Section 376 Indian Penal Code, to award a lesser sentence for "adequate

and special reason". In the present case, the incident took place 20 years ago and now with the passage of time both the victim and the Accused are married (not to each, other) and they have entered into a compromise. Thus, an adequate and special reason for awarding a lesser sentence exists in terms of the proviso to Section 376.

17. This Court after considering the submissions considered the said proviso and reduced the sentence already undergone in paras 16, 17 and 18 to the following effect:

16. The fourth ground of defence taken by the Appellant is that under the proviso to Section 376(2) Indian Penal Code, the legislature has empowered the court to award lesser sentences where "adequate and special

.

reasons" exist. The incident in the present

case had taken place 20 years ago. The victim (prosecutrix) and the Accused have entered into a compromise stating therein that the

prosecutrix does not want to proceed with the case against the Accused and wants to close the case. Both of them are married (not to each other) and have settled in life. The

learned Counsel for the Appellant contends that this is an "adequate and special reason"

for awarding a lesser sentence.

r 17. This Court has in Baldev Singh v. State of Punjab invoked the proviso to Section 376(2)

Indian Penal Code on the consideration that the case was an old one. The facts of the above case also state that there was a compromise

entered into between the parties.

18. In the light of the discussion in the foregoing paragraphs, we are of the opinion

that the case of the Appellant is a fit case for invoking the proviso to Section 376(2) Indian

Penal Code for awarding a lesser sentence, as the incident is 20 years old and the fact that the parties are married and have entered into

a compromise, are the adequate and special reasons. Therefore, although, we uphold the conviction of the Appellant but reduce the sentence to the period already undergone by the Appellant. The appeal is disposed of accordingly.

18. Learned Counsel for the State submits that there is one distinguishing feature in the present case and the above judgment that in the above case, there was a compromise entered into between the parties, which is not there in the present case.

19. Learned Counsel for the Appellant has also placed reliance on the judgment of this Court in Ram Kumar v. State of Haryana MANU/SC/8825/2006:

(2006) 4 SCC 347 which was again a case of conviction Under Section 376(1) where sentence of

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seven years was imposed. This Court had also

reduced the sentence. In para 3, the following has been laid down:

The Appellant, aggrieved by the order passed

by the High Court has filed the above appeal by way of appeal. We have been taken through the statement and evidence recorded by the Court. Our attention was also drawn to the

judgment passed by both the Sessions Court as well as the judgment passed by the High Court. The learned Counsel for the Appellant r drew our attention to the statement of the girl Bimla (PW 5) and also drew our attention to

the evidence of the doctor. We have carefully analysed the evidence tendered by the prosecution. In our opinion, sufficient

evidence was tendered by the prosecution to prove the guilt of the accused. However, at the time of hearing it is brought to our notice that

the girl has now got married and living with her husband. The said statement is also

ratified by the evidence of the father of the girl. Having regard to the peculiar facts and circumstances of the case, we are of the view

that the sentence imposed by the Sessions Court and as affirmed by the High Court Under Sections 366 and 376 of the Penal Code is on the high side. In our opinion, the ends of justice would be amply met if we reduce the sentence to three years. We do so accordingly.

20. Another judgment which has been relied is Raj Kumar v. State of Bihar MANU/SC/8859/2006 :

(2006) 9 SCC 589 which was also a case of conviction Under Section 376 and sentence of seven years Under Section 376(1). By invoking Section 376(1)

this Court reduced the sentence in para 5, following has been held:

Keeping in view the fact that there was a delay of three days in lodging the FIR and the fact that the doctor (PW 6), who examined the

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victim, in her testimony has deposed that she

did not find any confirmatory evidence of rape on the victim, in the peculiar facts and circumstances of the present case, we deem it

appropriate to reduce the sentence awarded to the Appellant to the period already undergone. Ordered accordingly.

21. The present is a case where the provision of

Section 376(1) proviso as it existed at the time of the incident was available and not a case where the minimum sentence prescribed under proviso to

Section 376(1) of seven years cannot be reduced on adequate and special reasons found and therefore

the sentence of seven years can be reduced as is statutorily provided.

22. Now, we come back to special reasons which

have been placed before us. The incident took place about 30 years ago. At the time of the incident, the Appellant was 22 years of age and the prosecutrix

was between 15-16 years. It has been stated by learned Counsel on behalf of the Appellant that the

Appellant is married and has three daughters whereas the prosecutrix is also married and has a husband and kids. As noted above, this Court has

already passed an order directing the State to obtain instructions on the criminal antecedents of the Appellant. It has been stated by learned Counsel for the State before us that there are no criminal antecedents of the Appellant."

8. Therefore, it is permissible to impose less than a

minimum sentence keeping in view the circumstances.

9. In the present case, the convict was aged 20 years at

the time of the incident. No person was dependent upon him. Now, he has

married. He has a family to support. He has an aged mother, who is also

dependent upon him. He was held guilty of attempt to commit rape,

which means that the convict is liable to a sentence of 5 years to 10 years.

He has already undergone imprisonment for eight months as an under-

trial prisoner. The victim's father has also urged the Court to take a

lenient view keeping in view the time between the incident and the date of

sentence.

10. Keeping in view all these circumstances, the convict is