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REPORTABLE   

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.1887     OF     2008   

State of Rajasthan           ... Appellant   

Versus

Vinod Kumar                     ... Respondent  

WITH  

CRIMINAL     APPEAL     NO.1888     OF     2008      

State of Rajasthan            ... Appellant   

Versus  

Heera Lal           ... Respondent  

O     R     D     E     R      

1. These appeals have been preferred by the State against the  

judgment and order dated 5.4.2007 passed by the High Court of  

Judicature for Rajasthan (Jaipur Bench) in S.B. Criminal Appeal  

No.103 of 2005 and S.B. Criminal Appeal No.82 of 2005, by which,  

the conviction of the respondents Vinod Kumar under Section 376 of  

the Indian Penal Code, 1860  (hereinafter called IPC) and Heera Lal  

under Section 376 read with Section 120B IPC made by the Special

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Judge, Scheduled Castes/Scheduled Tribes (Prevention of Atrocities)  

Act (hereinafter called SC/ST Act) Jaipur dated 22.1.2005 passed in  

Sessions Case No.123 of 2002 has  been maintained but the sentence  

of respondent Vinod Kumar has been reduced from 7 years to 5  

years and that of accused Heera Lal from 7 years to 11 months and  

25 days.  

2. Facts and circumstances giving rise to these appeals are that  

on 29.8.2002, Guddi, complainant, appeared before the Officer  

Incharge of the police station alongwith her brother-in-law Babu Lal  

and submitted a report that one day earlier, i.e. on 28.8.2002 she  

attended a memorial function in respect of death of her relative.  She  

left the place alongwith Babu Lal, her brother-in-law and stayed in  

the Jai Hotel.  Two persons came there and one of them introduced  

himself to be the Station House Officer and wanted to check the  

room.  Another person asked her relationship with other occupant  

Babu Lal.  She informed about her relationship but he raised the  

question as to why such a relationship has not been disclosed in the  

Hotel Register and thus, under this pretext, they entered into the  

room for holding enquiry. They took Babu Lal, brother-in-law of the  

complainant outside.  Thereafter, one of  them came alone into the  

room, bolted the door from inside, and pushed her on the cot forcibly  

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and committed rape upon her.  She raised alarm but in vain. After  

commission of rape he fled away by opening the door of the room.  

She also gave the description of the said person.  

3. On the basis of the aforesaid report, Case No.168 of 2002  

under Sections 376, 120B IPC was registered and investigation  

commenced. During the course of investigation, the accused were  

arrested and identification parade took place.  The prosecutrix was  

medically examined. After completion of the investigation,  

chargesheet under Sections 376, 120B IPC and Section 3(2) (5) of  

SC/ST Act was filed against Vinod Kumar and Heera Lal.  The  

prosecution in support of its case examined Guddi, Babu Lal and a  

large number of other witnesses including the doctors who had  

examined the prosecutrix.  The respondents were examined under  

Section 313 of Code of Criminal Procedure, 1973 (hereinafter called  

Cr.P.C.). They simply denied their involvement, however, they did  

not adduce any evidence in defence.  After appreciating the evidence  

on record, the trial Court convicted the said respondents under  

Section 376 IPC and Section 376/120B IPC respectively and  

awarded punishment for 7 years Rigorous Imprisonment and a fine  

of 5,000/- to each and in default, the accused were ordered to  

undergo simple imprisonment for 3 months.

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4. Aggrieved, both of them preferred appeals before the High  

Court which have been disposed of by the impugned judgment. The  

High Court maintained their convictions as awarded by the trial  

Court. However, their sentences have been reduced as  

aforementioned.  Hence, these appeals.

5. Learned counsel for the State has submitted that in a case of  

rape, the minimum punishment is 7 years and mandatory  

requirement under Section 376 IPC is to impose the punishment of  

imprisonment of either description for a term which shall not be less  

than 7 years but which may be life or for a term which may extend to  

10 years, provided that the court may for adequate and special  

reasons to be mentioned  in the judgment, impose the punishment for  

a term less than 7 years.  In the instant case, the High Court did not  

record any special and adequate reasons and reduced the punishment  

substantially.  Therefore, in case the High Court maintained their  

convictions for the aforesaid offences, there was no justification for  

reducing their sentences.  Thus, the appeals deserve to be allowed.

6. On the contrary, Shri Naresh Kumar, learned Amicus Curiae  

has submitted that the incident occurred more than a decade ago. The  

said respondents had already served the sentences awarded by the  

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High Court.  Undoubtedly, the High Court has not given any  

adequate and special reasons for reduction of their sentences,  

however, it could be the age, their social status, family  

circumstances which could have swayed the High Court in reducing  

the sentences.  Therefore, the impugned judgment and order does not  

warrant interference.  The appeals are liable to be dismissed.

7. We have considered the rival submissions made by learned  

counsel for the parties and perused the records.

In the instant case as the respondents have not challenged  

their order of conviction under Section 376 IPC and Section 376  

read with Section 120B IPC respectively, it attained finality.  

Therefore, the only question remains for consideration is as to  

whether there could be any justification for the High Court in  

reduction of sentences and that too without recording any reason.  

8. The statutory requirement for awarding the punishment less  

than seven years is to record adequate and special reasons in  

writing. Dictionary meanings of the word “adequate”  are  

commensurate in fitness, sufficient, suitable, equal in magnitude and  

extent, and fully. “Special reasons”  means exceptional; particular;  

peculiar; different from others; designed for a particular purpose,  

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occasion, or person; limited in range; confined to a definite field of  

action.    

       Thus, in a case like the instant one, in order to impose the  

punishment lesser than prescribed in the statute, there must be  

exceptional reasons relating to the crime as well as to the criminal.  

9. In Meet Singh v. The State of Punjab, AIR 1980 SC 1141,  

this Court while dealing with expression “special reasons” held that  

it means special to the accused concerned.  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’.  

Thus, anything which is common to a large class governed by the  

same statute, cannot be said to be special to each of them.  

Therefore, in the context of sentencing process, special reasons must  

be 'special’ to the accused in the facts and  circumstances of the case  

in which the sentence is being awarded.  

10. In Madhukar Bhaskarrao Joshi v. State of Maharashtra,  

AIR 2001 SC 147, this Court examined a similar provision under the  

Prevention of  Corruption Act, 1988 which also contained a  

provision that accused shall be imposed the punishment which “shall  

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not be less than one year”  , however, a lesser punishment may be  

awarded recording the special reasons.  The Court held:  

“…. The proviso is in the form of a rare exception  by giving power to the Court for reducing the  imprisonment period below one year only when  there are "special reasons" and the law required  that those special reasons must be recorded in  writing by the Court…… …..Parliament measured the parameters for such  condign punishment and in that process wanted to  fix a minimum sentence of imprisonment for giving  deterrent impact on other public servants who are  prone to corrupt deals……..Such a legislative  insistence is reflection of Parliament's resolve to  meet corruption cases with very strong hand and  to give signals of deterrence as the most pivotal  feature of sentencing of corrupt public  servants…….       In the present case, how could the mere fact  that this case was pending for such a long time be  considered as a "special reason"? That is a  general feature in almost all convictions under the  PC Act and it is not a speciality of this particular  case. It is the defect of the system that longevity of  the cases tried under the PC Act is too lengthy. If  that is to be regarded as sufficient for reducing  the minimum sentence mandated by the  Parliament the legislative exercise would stand  defeated.”                                                      (Emphasis added)           

11. In State of Jammu & Kashmir v. Vinay Nanda, AIR 2001  

SC 611, while dealing with a similar issue, this Court held as under:  

“…….Where the mandate of law is clear and  unambiguous, the Court has no option but to pass  the sentence upon conviction as provided under  the statute……..

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        The mitigating circumstances in a case, if  established, would authorise the Court to pass  such sentence of imprisonment or fine which may  be deemed to be reasonable but not less than the  minimum prescribed under an enactment…… ………For imposing the minimum sentence the  Court has to record special reasons. 'Special  reasons' have to be distinguished from 'good' or  'other reasons'. The fact that the convict had  reached his superannuation is not a special  reason. Similarly pendency of criminal case for  over a period of time can also not be treated as a  special reason……….”                (Emphasis added)

12. In State of Karnataka v. Raju, AIR 2007 SC 3225, this  

Court dealt with a case of rape of a minor girl below 12 years of age,  

wherein the High Court reduced the sentence of the accused from  

seven years to three and a half years. This Court held that the  

normal sentence in a case where rape is committed on a child below  

12 years of age, is not less than 10 years' rigorous imprisonment,  

though in exceptional cases “for special and adequate reasons”  

sentence of less than 10 years' rigorous imprisonment can also be  

awarded. The Court observed that socio-economic status, religion,  

race, caste or creed of the accused or the victim are irrelevant  

considerations in sentencing policy. After giving due consideration  

to the facts and circumstances of each case, for deciding just and  

appropriate sentence to be awarded for an offence, the aggravating  

and mitigating factors and circumstances in which a crime has  

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been committed are to be delicately balanced on the basis of relevant  

circumstances in a dispassionate manner by the Court.  

A similar view has been taken by this Court in State of  

Madhya Pradesh v. Babbu Barkare @ Dalap Singh, AIR 2005 SC  

2846; Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267;  

Shailesh Jasvantbhai &  Anr. v. State of Gujarat & Ors., (2006)  

2 SCC 359; and State of Madhya Pradesh v. Basodi AIR 2009 SC  

3081)  

13. In State of Karnataka v. Krishnappa, AIR 2000 SC 1470,  

this Court while dealing with the issue held:

“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.  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 achieved by imposing an appropriate  sentence.”                                  (Emphasis supplied)

14. Similarly in State of Punjab v. Prem Sagar and Ors.,  

(2008) 7 SCC 550, this Court observed as under:

“To what extent should the Judges have discretion  to reduce the sentence so prescribed under the  statute has remained a vexed question. However, in  

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India, the view always has been that the  punishment must be proportionate to the crime.  Applicability of the said principle in all situations,  however, is open to question. Judicial discretion  must be exercised objectively having regard to the  facts and circumstances of each case”.     (Emphasis  supplied)

15. In  State of Madhya Pradesh v. Santosh Kumar, AIR  

2006 SC 2648, this Court held that in order to exercise the discretion  

of reducing the sentence, the statutory requirement is that the court  

has to record adequate and special reasons in the judgment and not  

fanciful reasons which would permit the court to impose a sentence  

less than the prescribed minimum. The reason has not only to be  

adequate but also special. What is adequate and special would  

depend upon several factors and no straitjacket formula can be  

indicated. (See also: Harbans Singh v. State of Punjab, AIR 1984  

SC 1594; State of Andhra Pradesh v. Vasudeva Rao, AIR 2004  

SC 960;  State of M.P. v. Babulal, AIR 2008 SC 582; and State of  

Rajasthan v. Gajendra Singh, (2008) 12 SCC 720)

16. In Kamal Kishore etc. v. State of Himachal Pradesh, AIR  

2000 SC 1920, this Court held that the expression “adequate and  

special reasons”  indicates that it is not enough to have special  

reasons, nor adequate reasons disjunctively. There should be a  

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conjunction of both for enabling the court to invoke the discretion.  

Reasons which are general or common in many cases cannot be  

regarded as special reasons. (See also: Bhupinder Sharma v. State  

of Himachal Pradesh, AIR 2003 SC 4684; and State of Andhra  

Pradesh v. Polamala Raju @ Rajarao, AIR 2000 SC 2854)

17. In State of M.P. v. Bala @ Balaram, AIR 2005 SC 3567,  

this Court while dealing with the issue observed:

 “The crime here is rape. It is a particularly  heinous crime, a crime against society, a crime  against human dignity, one that reduces a man to an  animal. The penal statute has prescribed a  maximum and a minimum punishment for an offence  under Section 376 IPC. To view such an offence  once it is proved, lightly, is itself an affront to  society. Though the award of maximum punishment  may depend on the circumstances of the case, the  award of the minimum punishment, generally, is  imperative. The provisos to Sections 376(1) and  376(2) IPC give the power to the court to award a  sentence lesser than the minimum for adequate and  special reasons. The power under the proviso is not  to be used indiscriminately or routinely. It is to be  used sparingly and only in cases where special facts  and circumstances justify a reduction. The reasons  must be relevant to the exercise of such discretion  vested in the court. The reasons must be set out  clearly and cogently. The mere existence of a  discretion by itself does not justify its exercise. The  long pendency of the criminal trial or the offer of  the rapist to marry the victim are not relevant  reasons. Nor is the age of the offender by itself an  adequate reason.  It is true that reformation as a  theory of punishment is in fashion but under the  guise of applying such theory, the courts cannot  forget their duty to society and to the victim. The  

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court has to consider the plight of the victim in a  case involving rape and the social stigma that may  follow the victim to the grave and which in most  cases, practically ruins all prospects of a normal  life for the victim.”                          (Emphasis  supplied)

      18. In Ravji @ Ram Chandra v. State of Rajasthan, AIR 1996  

SC 787, this Court held that it is the nature and gravity of the  

crime but not the criminal, which are germane for consideration of  

appropriate punishment in a criminal trial. The court will be failing  

in its duty if appropriate punishment is not awarded for a crime  

which has been committed not only against the individual victim but  

also against the society to which the criminal and victim belong. The  

punishment to be awarded for a crime must not be irrelevant but it  

should conform to and be consistent with the atrocity and brutality  

with which the crime has been perpetrated, the enormity of the crime  

warranting public abhorrence and it should respond to the society's  

cry for justice against the criminal.

19. Awarding punishment lesser  than the minimum prescribed  

under Section 376 IPC, is an exception to the general rule. Exception  

clause is to be invoked only in exceptional circumstances where the  

conditions incorporated in the exception clause itself exist.  It  is a  

settled legal proposition that exception clause is  always required to  

be strictly interpreted even if there is a hardship to any individual.  

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Exception is provided with the object of taking it out of the scope of  

the basic law and what is included in it and what legislature desired  

to be excluded.  The natural presumption in law is that but for the  

proviso, the enacting part of the Section would have included the  

subject matter of the proviso, the enacting part should be generally  

given such a construction which would make the exceptions carved  

out by the proviso necessary and a construction which would make  

the  exceptions  unnecessary  and  redundant  should  be  avoided.  

Proviso is used to remove special cases from the general enactment  

and  provide  for  them  separately.   Proviso  may  change  the  very  

concept of the intendment of the enactment by insisting on certain  

mandatory conditions to be fulfilled in order to make the enactment  

workable. (Vide:  S. Sundaram Pillai, etc. v. V.R. Pattabiraman,  

AIR 1985 SC 582; Union of India & Ors. v.  M/s. Wood Papers  

Ltd. & Anr., AIR 1991 SC 2049;   Grasim Industries Ltd. & Anr.  

v.  State  of  Madhya  Pradesh  &  Anr.,  AIR  2000  SC  66;  

Laxminarayan R. Bhattad & Ors.  v.  State of  Maharashtra &  

Anr., AIR 2003 SC 3502;  Project Officer, ITDP & Ors. v. P.D.  

Chacko, AIR 2010 SC 2626; and Commissioner of Central Excise,  

New Delhi v. Hari Chand Shri Gopal & Ors., (2011) 1 SCC 236).

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20. Thus, the law on the issue can be summarised to the effect  

that punishment should always be proportionate/commensurate to  

the gravity of offence.  Religion, race, caste, economic or social  

status of the accused or victim are not the relevant factors for  

determining the quantum of punishment. The court has to decide the  

punishment after considering all aggravating and mitigating factors  

and the circumstances in which the crime has been committed.  

Conduct and state of mind of the accused and age of the sexually  

assaulted victim and the gravity of the criminal act are the factors of  

paramount importance. The court must exercise its discretion in  

imposing the punishment objectively considering the facts and  

circumstances of the case.  The power under the  proviso is not to be  

used indiscriminately in a routine, casual and cavalier manner for the  

reason that an exception clause requires strict interpretation. The  

legislature introduced the imposition of minimum sentence by  

amendment in the IPC w.e.f. 25.12.1983, therefore, the courts are  

bound to bear in mind the effect thereof.  

The court while exercising the discretion in the exception  

clause has to record “exceptional reasons”  for resorting to the  

proviso. Recording of such reasons is sine qua non for granting the  

extraordinary relief. What is adequate and special would depend  

upon several factors and no straight jacket formula can be laid down.  

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21. In the instant case, the High Court recorded the submissions  

advanced on behalf of the parties to the extent that none of the  

convicts wanted to press his appeal on merits as it was not possible  

to succeed in view of the statement of the prosecutrix Guddi (PW.1),  

recorded by the trial court and her statement recorded by the  

Magistrate under Section 164 Cr.P.C. on 5th September, 2002.  Thus,  

they pleaded only for reduction of punishment.   

The Public Prosecutor vehemently opposed the prayer for  

reduction of punishment.   

  In spite of the fact that the learned counsel for the appellants  

before the High Court did not press their appeal on merits, the High  

Court affirmed the findings insofar as the rape is concerned,  

recorded by the trial Court.  The High Court held:     

“So far as commission of offence of rape with her is  concerned, I find that the same is fully proved from  her statement and other prosecution evidence, and I  am of the view that the learned trial Court has  considered the prosecution evidence in detail and  has rightly convicted the accused persons and both  the learned counsel are right in not pressing their  appeal on merits.”

        After affirming the conviction for rape for both the accused,  

the High Court observed that  Heera Lal accused did not commit  

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rape himself but had only accompanied Vinod Kumar.  The High  

Court further observed  as under:  

“I do not want to discuss the evidence, in detail,  but I certainly find his case to be a fit one to reduce  the sentence of imprisonment to a period of 11  months and 25 days, already undergone by him. So  far as accused Vinod Kumar is concerned, I find his  case to be a fit one to reduce the sentence of  imprisonment looking to the whole statement of the  prosecutrix.”                                  (Emphasis added)

Thus, it is evident from the aforesaid discussion that the learned  

counsel for the appellants before the High Court did not argue the  

case on merit but the High Court affirmed the findings on  

commission of rape making reference to the evidence, however,  

further made observation that the court did not want to discuss the  

evidence in detail.  We fail to understand as how the findings on  

commission of rape have been affirmed without discussing the  

evidence on record.  It was not necessary at all as the counsel for  

those parties did not argue the appeals on merit.  

22. The Court further took note that awarding punishment lesser  

than the minimum sentence of 7 years was permissible only for  

adequate and special reasons. However, no such reasons have been  

recorded by the court  for doing so, and thus, the court failed to  

ensure compliance of such mandatory requirement but awarded the  

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punishment lesser than the minimum prescribed under the IPC. Such  

an order is violative of the mandatory requirement of law and has  

defeated the legislative mandate.  Deciding the case in such a casual  

manner reduces the criminal justice delivery system to mockery.  

23. Thus, in the facts and circumstances of the case, the appeals  

are allowed.  Sentences awarded by the High Court are set aside and  

seven years R.I. awarded by the trial court is restored.  

            Respondents are directed to surrender before the concerned  

court within a period of four weeks from today and shall  undergo  

their remaining part of sentences. In case the respondents fail to  

surrender within the said period, the Chief Judicial Magistrate,  

Jaipur (City) is directed to take them into custody and send them to  

jail.  A copy of the order be sent to learned Chief Judicial  

Magistrate, Jaipur (City), Rajasthan.  

 ………………………..J.  

(Dr. B.S. CHAUHAN)

                          ……………………..J. (DIPAK MISRA)

New Delhi,  May 18, 2012   

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