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REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 231 OF 2015 (@ SLP(Crl) No. 5273 of 2012)

State of M.P. ... Appellant

Versus

Madanlal        ... Respondent

J U D G M E N T

Dipak Misra, J.

In this appeal, by special leave, the State of M.P. calls in

question  the  legal  acceptability  of  the  judgment  and  order

passed by the learned Single Judge of the High Court of M.P. in

Criminal Appeal No. 808 of 2009 whereby he has set aside the

conviction under Section 376(2)(f) read with Section 511 of the

Indian  Penal  Code  (IPC)  and  the  sentence  imposed  on  that

score,  that  is,  rigorous  imprisonment  of  five  years  by  the

learned  Sessions  Judge,  Guna  in  ST  No.  134/2009  and

convicted the respondent-accused herein under Section 354 of

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the  IPC  and  restricted  the  sentence  to  the  period  already

undergone which is slightly more than one year.  

2. The factual narration for disposal of  the present appeal

lies in a narrow compass.  The respondent as accused was sent

up for trial for the offence punishable under Section 376(2)(f)

IPC  before  the  learned  Sessions  Judge.    The  case  of  the

prosecution before the Court below was that on 27.12.2008,

the victim, aged about 7 years, PW1, was proceeding towards

Haar from her home and on the way the accused, Madan Lal,

met her and came to know that she was going in search of her

mother who had gone to graze the goats.  The accused told her

that her mother had gone towards the river and accordingly

took her near the river Parvati, removed her undergarment and

made  her  sit  on  his  lap,  and  at  that  time  the  prosecutrix

shouted.  As the prosecution story proceeds, he discharged on

her private parts as well as on the stomach and washed the

same.  Upon hearing the cry of  the prosecutrix, her mother,

Ramnali Bai, PW2, reached the spot, and then accused took to

his heels.  The prosecutrix narrated the entire incident to her

mother which led to lodging of  an FIR by the mother of  the

prosecutrix.  On the basis of the FIR lodged, criminal law was

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set in motion, and thereafter the investigating agency examined

number  of  witnesses,  seized  the  clothes  of  the

respondent-accused,  sent  certain  articles  for  examination  to

the  forensic  laboratory  and  eventually  after  completing  the

examination, laid the chargesheet before the concerned court,

which in turn, committed the matter to the Court of Session.  

3. The  accused  abjured  his  guilt  and  pleaded  false

implication.  The learned trial Judge, regard being had to

the material  brought on record,  framed the charge under

Section  376(2)(f)  read  with  Section  511  of  IPC.   The

prosecution,  in  order  to  bring  home  the  charge  leveled

against  the  accused  examined  the  prosecutrix,  PW1,

Ramnali  Bai,  PW2,  Dr.  Smt.  Sharda  Bhola,  PW3,  Head

Constable  Babu  Singh,  PW4,  ASI  B.R.S.  Raghuwanshi,

PW5,  and Dr.  Milind  Bhagat,  PW6,  and also  got  marked

nine  documents  as  exhibits.   The  defence  chose  not  to

adduce any evidence.   

4. The learned trial  Judge on the basis of  the material

brought on record came to hold that the prosecution had

been able to establish the charge against the accused and

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accordingly  found  him  guilty  and  sentenced  him  as  has

been stated hereinbefore.   

5. The said judgment of conviction and order of sentence

was in assail before the High Court; and it was contended

by the  learned counsel  for  the appellant  therein that  the

trial court had failed to appreciate the evidence in proper

perspective  and  had  not  considered  the  material

contradictions  in  the  testimony  of  prosecution  witnesses

and,  therefore,  the  judgment  of  conviction  and  sentence,

being  vulnerable,  deserved  to  be  annulled.  The  learned

Judge also noted the alternative submission which was to

the effect that the parties had entered into a compromise

and a petition seeking leave to compromise though was filed

before the learned trial Judge, it did not find favour with

him  on  the  ground  that  the  offence  in  question  was

non-compoundable and, therefore, regard being had to the

said factum the sentence should be reduced to the period

already undergone, which was slightly more than one year.   

6. The  High  Court,  as  is  manifest,  has  converted  the

offence to one under 354 IPC and confined the sentence to

the period of custody already undergone.

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7. We have heard Mr. C.D. Singh, learned counsel for the

appellant-State  and  Ms.  Asha  Jain  Madan,  learned  counsel

who was engaged by the Court to represent the respondent.  Be

it stated, this Court had appointed a counsel to argue on behalf

of the respondent, as despite service of notice, the respondent

chose not to appear.   

8. It is contended by the learned counsel for the State that

the High Court has not  kept in mind the jurisdiction of  the

appellate court and dislodged the conviction and converted the

conviction  to  one  under  Section  354  IPC  in  an  extremely

laconic  manner  and,  therefore,  the  judgment  deserves  to  be

dislodged.  It is urged by him that it is the bounden duty of the

appellate  court  to  reappreciate  the  evidence  in  proper

perspective and thereafter arrive at appropriate conclusion and

that  exercise having not been done,  the impugned judgment

does not commend acceptation.  He has also seriously criticized

the quantum of sentence imposed by the High Court.    

9. Ms. Asha Jain Madan, learned counsel appearing for the

respondent, per contra, would contend that the learned Single

Judge, regard being had to the evidence on record, has come to

hold that the prosecution had failed to prove the offence under

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Section 376(2)(f)  read with Section 511 IPC,  and hence,  the

impugned  judgment  is  absolutely  impeccable.   She  would

contend with immense vehemence that when the prosecutrix

was a seven year old girl and the ingredients of the offence had

not been established the conversion of the offence to one under

Section 354 IPC by the High Court cannot be found fault with.

It is urged by her that once the view of the High Court is found

defensible, the imposition of sentence under Section 354 IPC

cannot be regarded as perverse.     

10. To appreciate the rivalised submissions advanced at the

Bar, we have anxiously perused the judgment of the learned

trial Judge as well as that of the High Court.  As we notice, the

trial  court  has  scanned  the  evidence  and  arrived  at  the

conclusion that the prosecution had been able to bring home

the charge on the base of credible evidence.  The High Court,

as is demonstrable, has noted the submissions of the learned

counsel  for  the  appellant  therein  to  the  effect  that  the  trial

court  had  failed  to  appreciate  the  evidence  in  proper

perspective, and had totally ignored the material contradictions

in the testimony of the prosecution witnesses, and thereafter

abruptly referred to the decisions in Ashok @ Pappu v. State

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of M.P.1, Phulki @ Santosh @ Makhan v. State of M.P.2 and

Jeevan v. State of M.P.3 and the factual matrix in the said

cases, and concluded thus:-

“Keeping in view the aforesaid position of law and the  statement  of  prosecutrix  who  was  aged  7 years only at the time of incident and the medical evidence on record, this Court is of the opinion that the learned Court below committed error in convicting  the  appellant  under  Section  376  of IPC.  After going through the evidence, it can be said that at the most appellant can be held guilty of  the offence punishable  under Section 354 of IPC.   In  view  of  this,  the  appeal  filed  by  the appellant is allowed in part and the conviction of appellant  under  Section  376  is  set  aside  and appellant is convicted under Section 354 of IPC. So far as sentence is concerned, keeping in view the  aforesaid  position  of  law  and  also  the  fact that appellant is in jail since last more than one year the purpose would be served in case the jail sentence  is  reduced  to  the  period  already undergone.   Thus,  the  same is  reduced  to  the period already undergone.  Respondent/State is directed to release the appellant forthwith, if not required in any other case.”

11. In the instant appeal,  as a reminder, though repetitive,

first we shall dwell upon, in a painful manner, how some of the

appellate Judges, contrary to the precedents and against the

normative mandate of law, assuming a presumptuous role have

paved the path of unbelievable laconicity to deal with criminal

1  2005 Cr.L.J. (M.P.) 471 2  2006 Cr.L.J. (M.P.) 157 3  2008 Cr.L.J. (M.P.) 1498

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appeals  which,  if  we  permit  ourselves  to  say,  ruptures  the

sense  of  justice  and  punctures  the  criminal  justice

dispensation system.

12.  In  this  regard,  reference  to  certain  authorities  of  this

Court would be apposite.  In Amar Singh v. Balwinder Singh

and Others4 while dealing with the role of the appellate Court,

a two-Judge Bench has observed thus:-

“The learned Sessions Judge after placing reliance on  the  testimony  of  the  eyewitnesses  and  the medical evidence on record was of the opinion that the case of the prosecution was fully established. Surprisingly, the High Court did not at all consider the testimony of the eyewitnesses and completely ignored the same. Section 384 CrPC empowers the appellate court to dismiss the appeal summarily if it considers that there is no sufficient ground for interference.  Section  385  CrPC  lays  down  the procedure  for  hearing  appeal  not  dismissed summarily  and  sub-section  (2)  thereof  casts  an obligation to send for the records of the case and to hear the parties. Section 386 CrPC lays down that after  perusing  such  record  and  hearing  the appellant or his pleader and the Public Prosecutor, the  appellate  court  may,  in  an  appeal  from conviction,  reverse  the  finding  and  sentence  and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction. It is, therefore,  mandatory  for  the  appellate  court  to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct  eyewitness  account,  the  testimony  of  the eyewitnesses is of paramount importance and if the appellate court reverses the finding recorded by the trial  court  and  acquits  the  accused  without

4 (2003) 2 SCC 518

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considering  or  examining  the  testimony  of  the eyewitnesses, it will be a clear infraction of Section 386 CrPC. In Biswanath Ghosh v.  State of W.B.5 it was held that where the High Court acquitted the accused  in  appeal  against  conviction  without waiting  for  arrival  of  records  from  the  Sessions Court and without perusing evidence adduced by the prosecution, there was a flagrant miscarriage of justice and the order of acquittal was liable to be set aside. It was further held that the fact that the Public  Prosecutor  conceded  that  there  was  no evidence, was not enough and the High Court had to  satisfy  itself  upon perusal  of  the  records  that there  was  no  reliable  and  credible  evidence  to warrant the conviction of the accused. In  State of U.P. v. Sahai6 it was observed that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eyewitnesses and has rejected their evidence on general grounds, the  order  of  acquittal  passed  by  the  High  Court resulted in a gross and substantial miscarriage of justice so as to invoke extraordinary jurisdiction of the  Supreme  Court  under  Article  136  of  the Constitution.”

The said view was reiterated by a three-Judge Bench in

the State of Madhya Pradesh v. Bhura Kunjda7.

13. Recently,  in  K.  Anbazhagan v.  State  of  Karnataka

and Others8, a three-Judge Bench addressing the manner of

exercise of jurisdiction by the appellate court while deciding

an appeal has ruled that:-

“The  appellate  court  has  a  duty  to  make  a complete and comprehensive appreciation of  all

5  (1987) 2 SCC 55 6  (1982) 1 SCC 352 7 (2009) 17 SCC 346 8  Criminal Appeal No. 637 of 2015

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vital features of the case.  The evidence brought on record in entirety has to be scrutinized with care and caution.  It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The  said  responsibility  cannot  be  abdicated  or abandoned  or  ostracized,  even  remotely,  solely because  there  might  not  have  been  proper assistance  by  the  counsel  appearing  for  the parties.  The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record.  The approach  cannot  be  cryptic.   It  cannot  be perverse.  The duty of the Judge is to consider the evidence objectively and dispassionately.  The reasonings in appeal are to be well deliberated. They are to be resolutely expressed.  An objective judgment of the evidence reflects the greatness of mind –  sans passion and sans prejudice.   The reflective  attitude  of  the  Judge  must  be demonstrable from the judgment itself.  A judge must avoid all kind of weakness and vacillation. That is the sole test.  That is the litmus test.”

14. In the case at hand, the learned Single Judge has not at

all referred to the evidence that has been adduced during the

trial.  We have, in fact, reproduced the entire analysis made

by the learned Single Judge.  Prior to that, as is manifest, he

has referred to some authorities which are based on their own

facts.   The  said  pronouncements,  in  fact,  lay  down  no

proposition of law.  As is noticeable, the learned Single Judge

in  his  judgment  has  only  stated  that  the  prosecution  has

examined so many witnesses and filed nine documents.  The

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said  approach,  we  are  afraid  to  say,  does  not  satisfy  the

requirement  of  exercise  of  the  appellate  jurisdiction.   That

being the obtaining situation, we are inclined to set aside the

judgment  of  the  High Court  and remit  the  matter  to  it  for

appropriate adjudication.  

15.  Having stated the aforesaid, ordinarily we would have

proceeded to record our formal conclusion, but, an extremely

pertinent and pregnant one, another aspect in the context of

this case warrants to be addressed.  As it  seems to us the

learned Single Judge has been influenced by the compromise

that  has  been  entered  into  between  the  accused  and  the

parents of the victim as the victim was a minor.  The learned

trial  Judge had rejected the said application on the ground

that the offence was not compoundable.   In this context, it is

profitable  to  reproduce  a  passage  from  Shimbhu  and

Another v. State of Haryana9 wherein, a three-Judge Bench

has ruled thus:-

“Further,  a compromise entered into between the parties  cannot  be  construed  as  a  leading  factor based  on  which  lesser  punishment  can  be awarded. Rape is a non-compoundable offence and it  is  an offence  against  the  society  and is  not  a matter to be left for the parties to compromise and settle. Since the Court cannot always be assured

9 (2014) 13 SCC 318

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that  the  consent  given  by  the  victim  in compromising the case is a genuine consent, there is  every  chance  that  she  might  have  been pressurised  by  the  convicts  or  the  trauma undergone  by  her  all  the  years  might  have compelled  her  to  opt  for  a  compromise.  In  fact, accepting  this  proposition  will  put  an  additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe  in  considering  the  compromise  arrived  at   between the parties in rape cases to be a ground for  the Court  to exercise  the discretionary power under the proviso of Section 376(2) IPC.”

16. The aforesaid view was expressed while dealing with the

imposition of sentence.  We would like to clearly state that in a

case of rape or attempt of rape, the conception of compromise

under no circumstances can really be thought of.  These are

crimes against the body of a woman which is her own temple.

These are offences which suffocate the breath of life and sully

the reputation.  And reputation, needless to emphasise, is the

richest jewel one can conceive of in life.  No one would allow it

to  be  extinguished.   When  a  human  frame  is  defiled,  the

“purest treasure”, is lost.  Dignity of a woman is a part of her

non-perishable  and  immortal  self  and  no  one  should  ever

think of painting it in clay.  There cannot be a compromise or

settlement as it would be against her honour which matters

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the most.  It is sacrosanct.  Sometimes solace is given that the

perpetrator  of  the crime has acceded to  enter  into  wedlock

with her which is nothing but putting pressure in an adroit

manner;  and we say with emphasis  that  the Courts  are  to

remain absolutely away from this subterfuge to adopt a soft

approach to the case, for any kind of liberal approach has to

be put in the compartment of spectacular error.  Or to put it

differently, it would be in the realm of a sanctuary of error.

We are compelled to say so as such an attitude reflects lack of

sensibility  towards  the  dignity,  the  elan vital,  of  a  woman.

Any kind of liberal approach or thought of mediation in this

regard is thoroughly and completely sans legal permissibility.

It has to be kept in mind, as has been held in Shyam Narain

v. State (NCT of Delhi)10 that:-  

“Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame  of  a  woman  is  the  demolition  of  the accepted civilised norm i.e. “physical morality”. In such  a  sphere,  impetuosity  has  no  room.  The youthful  excitement  has no place.  It  should  be paramount in everyone’s mind that,  on the one hand, society as a whole cannot preach from the

10  (2013) 7 SCC 77  

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pulpit  about  social,  economic  and  political equality  of  the  sexes  and,  on  the  other,  some perverted  members  of  the  same  society dehumanise  the  woman by  attacking  her  body and ruining her  chastity. It is an assault on the individuality  and  inherent  dignity  of  a  woman with  the  mindset  that  she  should  be  elegantly servile to men.”

17. At  this  juncture,  we  are  obliged  to  refer  to  two

authorities, namely,  Baldev Singh v. State of Punjab11 and

Ravindra v.  State of  Madhya Pradesh12.   Baldev Singh

(supra) was considered by the three-Judge Bench in Shimbhu

(supra) and in that case it has been stated that:-  

“18.1. In Baldev Singh v. State of Punjab, though the  courts  below  awarded  a  sentence  of  ten years,  taking  note  of  the  facts  that  the occurrence  was  14  years  old,  the  appellants therein  had  undergone  about  3½  years  of imprisonment,  the  prosecutrix  and  the appellants  married  (not  to  each  other)  and entered  into  a  compromise,  this  Court,  while considering peculiar circumstances, reduced the sentence  to  the  period  already  undergone,  but enhanced the fine from Rs. 1000 to Rs. 50,000. In the light of series of decisions, taking contrary view, we hold that the said decision in  Baldev Singh  v.  State  of  Punjab cannot  be  cited  as  a precedent  and  it  should  be  confined  to  that case.”

11 (2011) 13 SCC 705 12 (2015) 4 SCC 491

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18. Recently,  in  Ravindra  (supra),  a  two-Judge  Bench

taking note  of  the fact that  there was a compromise has

opined thus:-

“17. This Court has in Baldev Singh v. State of Punjab,  invoked  the  proviso  to  Section  376(2) IPC on the consideration that the case was an old one. The facts of the above case also state that there was 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)  IPC for awarding 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.”

19. Placing reliance on Shimbhu (supra), we also say that

the  judgments  in  Baldev  Singh (supra)  and  Ravindra

(supra) have to be confined to the facts of the said cases and

are not to be regarded as binding precedents.

20. We have already opined that matter has to be remitted

to the High Court for a reappraisal of the evidence and for a

fresh decision and, therefore,  we have not referred to the

evidence of any of the witnesses.  The consequence of such

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remand  is  that  the  order  of  the  High  Court  stands

lancinated and as the respondent was in custody at the time

of the pronouncement of the judgment by the trial Court, he

shall  be  taken  into  custody  forthwith  by  the  concerned

Superintendent  of  Police  and thereafter  the appeal  before

the High Court be heard afresh.  A copy of judgment be sent

to the High Court of Madhya Pradesh, Bench at Gwalior.

21. The  appeal  stands  allowed  to  the  extent  indicated

hereinabove.    

...............................J. [Dipak Misra]

...............................J.       [Prafulla C. Pant]

NEW DELHI JULY 1, 2015.

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