Full Judgment Text
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PETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
POLAMALA RAJU & RAJARAO
DATE OF JUDGMENT: 09/08/2000
BENCH:
R.C.Lahoti, K.G.Balakrishnan
JUDGMENT:
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A little girl of five years of age was ravished by the
respondent on 4th January, 1985 at about 2.00 P.M. taking
advantage of her helpless state.
The respndent a neighbour of the prosectrix living
almost opposite her house was tried for an offence under
Section 376 IPC on an FIR lodged by the father of the
prosecutrix. The version of the prosecutrix regarding the
commission of offence by the proseutrix regarding the
commission of offence by the respondent as narrated in court
through her mother, PW-1 received ammle corroboration from
medical evidence and other evidence led in the case. We are
not repeating the prosecution version of the case or gist of
the evidence led in case for the simple reason that the
learned Assistant Sessions Judge, West Godavari, after
recording evidence and hearing parties, both on the question
of conviction and sentence, vide order dated 9th Sept.
1985, convicted the respondent for an offence under Section
376 IPC. After taking into account report of District
Probation Officer, relating to the character conduct and
antecedents of the respondent the trial court swarded a
sentence of 10 years RI and a fine of Rs. 10/- and in
default, simple imprisonment for one week for the said
offence. The convict filed an appeal, challenging his
conviction and sentence, which came to be heard by a learned
Single Judge of the High Court of A.P. The learned Single
Judge, vide judgment dated 15th Sept. 1987, entirely agreed
with the conclusions arrived at by the trial court and
confirmed the conviction of the respondent for an offence
under Section 376 IPC. However the sentence was reduced to
a period of five years R.I. while maintaining the sentence
of fine and imprisonm,ent in default of payment of fine.
The respondent has not filed any appeal challenging
his conviction and sentence.
The State is in appeal against reduction fo sentence
of the respondent by the High Court.
We have, with the assistance of learned counsel for
the parties examined the record. In our opinion, both the
trial court and the High Court were justified in convicting
the respondent for an offence under Section 376 IPC as the
prosecution has established its case against the respondent
beyond a reasonable doubt through cogent and reliable
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evidence. We, accordingly also confirm the conviction of
the respondent for the offence under Section 376 IPC.
We have, with the assistance of learned counsel for
the parties examined the record. In our opinion both the
trial court and the High Court were justified in convicting
the respondent for an offence under Section 376 IPC as the
prosecution has established its case against the respondent
beyond a reasonable doubt through cogent and reliable
evidence. We, accordingly, also confirm the conviction of
the respondent for the offence under Section 376 IPC.
Was the High Court justified in interfering with the
discreation exercised by the Trial Court by reducing the
sentence from 10years R.I. to 5 years R.I. for an offence
under Section 376 IPC is the only question requiring our
consideration?
Section 376 (2) IPC reads thus:
"376 Punishment for rape-(1) (2) Whoever,
(a) - (e)
(f) Commits rape on a woman when she is under twelve
years of age or
(g)
Shall be punished with rigorous imprisonment for a
term which shall not be less than ten years but which may be
for life and shall also be liable to fine:
Provided that the court may for adequate and special
reasons to be mentioned in the judgment impose a sentence of
imprisonment of either description for a terms of less than
ten years."
The age of the prosecutrix in the instant case was
admittedly five years at the relevant time. Normal sentence
under Section 376(2) IPC in a case where rape in committed
on a child below 12 years of age, is not less than 10 years
R.I. an expression which is pre-emptory in nature. The
courts are obliged to respect this legislative mandate when
the case falls under the proviso. The proviso to sec.
376(2) IPC however lays down that in exceptional cases for
special and adequate reasons sentence of less than 10years
RI may also be awarded in a given case. The proviso, in our
opinion would come into play only when there are adequate
and special reasons available in a case. Those reasons need
to be disclosed in the order/judgment itself so that the
appellate forum is in a position to know as to what weiged
with the court in awarding a sentence less hten the minimum
prescribed under the Act.
We are of the considered opinion that it is an
obligation of the sentencing court to consider all relevant
facts and circumstance bearing on the question of sentence
and impose a sentence commensurate with the gravity of the
offence. The sentencing court must hear the loud cry for
justice by the society and more particularly in cases of
heinous crime of rape of innocent helpless children as in
this case of the victime of crime and respond by imposing a
proper sentence.
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In the present case, the reasons given by the High
Court in the instant case for reducing the sentence from
the minimum 10 years is contained in the last paragraph of
the judgment which reads:
"I entirely agree with the conclusion arrived at by
the learned Assistant Sessions judge. I accordingly confirm
the conviction imposed by the Court below. But having
regard to the circumstances of the case the sentence of ten
years R.I. imposed by the Court below is reduced to a
period to five years R.I. and the sentence of fine of Rs.
10/- shall stand.
To say the least, the order contains to reasons, much
less special or adequate reasons. The sentence has been
reduced in a rather mechanical manner without proper
application of mind. It appears that the provisions of sec.
376(2) IPC were not at all present to the mind of the court.
This Court has time and again drawn attention of the
subordinate courts to the sensitivity which is required of
the court to deal with all cases and more particularly in
cases involving crime against women . In State of A.P. Vs.
Bedem Sundara Rao (1995 (6) SCC 230), this Court said:
In recent years, we have noticed that crime against
women are on the rise. These crimes are an affront to the
human dignity of the society. Imposition of grossly
inadequate sentance 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 societys cry
for justice against such criminals. Public abhorrence of
the crime needs a reflaction through the court’s vardict in
the measure of punishmeent. The courts must not only keep
in view the rights of the criminal but also the rights of
the victim of the crime and the society at large while
considering imposition of the appropriate punishment. The
heinous crime of committing rape on a helpless 13/14 year
old girl shakes our judicial conscience. The offence was
innumane."
Again, in the case of State of Karnataka vs.
Krishnappa (2000 (4) 75), this court pointed out that rape
is not merely a physical assault, it is an offence which is
destructive of the whole personality of the victime of crime
and Courts shoulder a great responsibility while trying an
accused on charges of rape and must deal with such cases
with utmost sensitivity. Regerring to imposition of
punishment in such cases, it was opined:
The measure of punishment in a case of rape cannot
depend upon the social status of the victim of 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
saverely dealt with. The 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 achived by imposing an
appropriate sentence. The sentencing courts are expected to
consider all relevant facts and circumstances bearing on the
question of sentence and proceed to impose a sentence
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commensurate with the gravity of the offence.
In the instant case. we have preused the record. we
have noticed the reasons for reduction of sentence. we are
unhappy with the manner in which the sentence has been
reduced from the statutory minimum of 10 years R.I. to 5
years R.I.
We have given due consideration to the plea raised by
learned Amicus on behalf of the respondent that it being an
old case the order of the High Court neen not be interfered
with. We are unable to persuade ourselves to agree with the
submission. We do not find any extenuating or mitigating
circumstances available on the record which may justify
imposition of sentence less than the prescribed minimum on
the respondent. To show mercy in a case like this, would be
travesty of justice. There are no reasons, much less
sufficient and adequate reasons available on the record to
impose a lesser sentence than the prescribed minimum.
The High Court, in the facts and circumstances of the
case was not at all justified in interfering with the proper
exercise of discretion by the trial court. We therefore,
set aside the order of the High Court insofar as the
reduction of sentence is concerned and restore the sentence
of 10 years R.I. as imposed by the Trial Court.
The respondent shall be taken into custody to undergo
the remaining sentence.
The learned amicus lastly submitted that because of
long time which has elapsed subsequent to the date of
offence and the possibility that the prosecutrix as also the
respondent may have got married and settled in life during
the pendency of thes proceedings fine instead of sentence be
imposed. We cannot agree. These factors may be relevant
for consideration by the Executivee or Constitutional
authorities if they chose to remit the sentence on bing so
approached as opined in kamal kishore vs.State of H.P.
[(2000) 4 Sec 502, Pr. 25] case (supra), but imsofar as our
judicial conscience is concerned we find no reason to go
against the legislative madate and award any lesser
sentence.
The appeal succeeds and is allowed in the above terms.
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