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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 133 of 2006  

Parminder alias Ladka Pola                              .… Appellant

Versus

State of Delhi                                               …..  Respondent

J U D G M E N T

A. K. PATNAIK, J.

This  is  an  appeal  by  way  of  special  leave  under  

Article 136 of the Constitution against the judgment dated  

06.03.2003 of the Delhi High Court in Criminal Appeal No.  

696  of  2002  by  which  the  conviction  of  the  appellant  

under  Sections  376  and  506  of  the  Indian  Penal  Code,  

1860 (for short ‘IPC’) and the sentences imposed by the  

trial court on the appellant have been maintained.  

Facts:  

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2. The facts  very briefly  are that  on 30.01.2001 at  

about  8.00  p.m.,  a  young  girl  of  about  fourteen  years  

accompanied by her parents, lodged the First Information  

Report (for short ‘the FIR’) in Police Station, Khajoori Khas,  

Delhi, in which she stated as follows: She was a student of  

Higher Secondary School and residing with her parents at  

House No.131, Gali No.12, Khajoori Khas, Delhi.  Opposite  

to their house was the house of Sardar Jagir Singh.  Babbo,  

daughter  of  Sardar  Jagir  Singh,  was  her  friend and she  

used  to  visit  the  house  of  Sardar  Jagir  Singh  to  meet  

Babbo.  On 28.01.2001 at about 8.30 p.m., the lights in  

the area went off and as the generator at the house of  

Sardar Jagir Singh was on, the prosecutrix went to meet  

Babbo.   She  enquired  from  the  appellant,  the  son  of  

Sardar Jagir Singh, as to whether Babbo was in the house  

and  the  appellant  told  her  that  Babbo  was  inside  the  

room.  When she entered inside the room, the appellant  

followed her into the room, bolted the room from inside  

and forcibly put her on the cot.  When she raised an alarm,  

the appellant slapped her.  He then took out her salwar  

and underwear and raped her.   He also threatened her  

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with death if she narrated the incident to anybody.  Out of  

fear  and  shame,  she  did  not  narrate  the  incident  to  

anybody, but in the evening of 30.01.2001 she narrated  

the incident to her mother.

3. On this statement of the girl (hereinafter referred  

to as ‘the prosecutrix’),  a case under Sections 376 and  

506, IPC, was registered on 30.01.2001.  The prosecutrix  

was  medically  examined  on  the  same  night.   On  

examination of the  X-rays report of the prosecutrix,  the  

doctor opined that her age was above fourteen years but  

below sixteen years.  Her clothes and vaginal swab were  

sent to the Central Forensic Science Laboratory (for short  

‘CFSL’)  for  analysis  and  as  per  the  report  from  CFSL,  

human semen and blood was detected on the underwear  

of  the  prosecutrix,  but  no  semen  was  detected  in  the  

vaginal swab.  After investigation, a charge-sheet was filed  

against  the  appellant  under  Sections  342/354/376/506,  

IPC.  Charges, however, were framed only under Sections  

376 and 506, IPC, and as the appellant pleaded not guilty,  

the trial was conducted.  At the trial, as many as fifteen  

witnesses  were  examined  on  behalf  of  the  prosecution  

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including the prosecutrix.  After considering the evidence  

on record,  the trial  court  convicted the appellant  under  

Sections 376 and 506, IPC.  For the offence under Section  

376, IPC, the trial court imposed the minimum sentence of  

seven  years  rigorous  imprisonment  and  a  fine  of  

Rs.5,000/-, in default, rigorous imprisonment for one year  

and for the offence under Section 506, IPC, the trial court  

imposed a sentence of two years imprisonment and a fine  

of Rs.5,000/-  and in default, a rigorous imprisonment of  

six  months.   The  trial  court  further  directed  that  the  

sentences  were  to  run  concurrently.   Aggrieved,  the  

appellant filed Criminal Appeal No.696 of 2002 in the High  

Court, but by the impugned judgment the High Court has  

dismissed the appeal.

Contentions of the parties:

4. At the hearing of this appeal, Mr. Jana Kalyan Das,  

learned counsel for the appellant, submitted that at most  

this is a case of attempt to rape and not rape and hence  

the  appellant  should  be  held  guilty  under  Sections  

376/511, IPC, and not under Section 376, IPC.  He referred  

to the evidence of the prosecutrix (PW-1) as well as the  

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medical  evidence  to  support  his  submission  that  no  

offence  of  rape  as  such  has  been  committed  of  the  

prosecutrix.   He  cited  the  decision  of  this  Court  in  

Narender Kumar v.  State (NCT of  Delhi) [(2012 (7) SCC  

171] for the proposition that even in a case of rape, the  

onus is always on the prosecution to prove affirmatively  

each ingredient of the offence it  seeks to establish and  

such onus never shifts and it is no part of the duty of the  

defence to explain as to how and why in a rape case the  

victim  and  other  witnesses  have  falsely  implicated  the  

accused.  He submitted that in the event this Court finds  

that the appellant is guilty of the attempt to rape and not  

rape, he will be liable for half the sentence provided for  

rape as will be clear from Section 511, IPC.

5. Mr. Das next submitted that the appellant while in  

jail custody studied and passed Class 10 examination and  

has also appeared in Class 12 examination as a candidate  

from Central Jail, Tihar, Delhi, and has been released on  

bail  after  undergoing  three  years  and  nine  months  of  

sentence and has thereafter got married on 16.08.2007.  

He further submitted that on 28.06.2008, a daughter has  

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been born to him who is studying in lower K.G. Class and  

on 13.06.2012, a second daughter has been born to him,  

who is on the lap of her mother.  The appellant has filed  

on  12.02.2013  an  affidavit  stating  all  these  facts.   He  

submitted that as the appellant is the sole bread earner of  

the family and has been doing odd jobs in Delhi to earn a  

living for the family, his family will suffer immensely if he  

is to undergo imprisonment for the remaining period out  

of the seven years imprisonment imposed on him by the  

court.   He submitted  that  under  the  proviso  to  Section  

376(1),  IPC,  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.  He submitted that on the facts and circumstances  

stated above,  this  Court  should  reduce the sentence in  

this case imposed on the appellant to the period already  

undergone so that his family does not suffer.  In support of  

this  submission,  he  cited  the  decisions  of  this  Court  in  

State of  Rajasthan vs.  N.K.  The Accused [(2000)  5  SCC  

30],  Sukhwinder Singh vs.  State of Punjab [(2000) 9 SCC  

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204]  and  Baldev  Singh  and  Others vs.  State  of  Punjab  

[(2011) 13 SCC 705]

6. In reply, learned counsel for the State, Mr. Rakesh  

Khanna submitted that the prosecution has discharged its  

onus  in  establishing  beyond  reasonable  doubt  that  the  

appellant  has  committed  rape  on  the  prosecutrix.   He  

relied on the evidence of PW-1 as well as the report of the  

CFSL to show that it  was not a case of only attempt to  

commit rape by the appellant.  He submitted that the High  

Court  was,  therefore,  right  in  coming  to  the  conclusion  

that the appellant had committed rape on the prosecutrix.

7. On  the  question  of  sentence,  Mr.  Khanna  

submitted that this is a case where an offence has been  

committed  on  a  minor  girl  and  it  is  evident  from  the  

statement  of  prosecutrix  (PW-1)  that  on  account  of  the  

rape, her parents stopped her from going to school and  

she had to study 8th Class privately.  He submitted that  

considering  the  serious  nature  of  the  sexual  offence  

committed by the appellant on a minor girl, this is not a fit  

case  in  which  this  Court  should  invoke  the  proviso  to  

Section 376(1), IPC and reduce the minimum sentence of  

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seven years for the offence of rape as provided in Section  

376(1),  IPC,  to  the  period  already  undergone  by  the  

appellant.  He cited the decisions of this Court in State of  

Madhya Pradesh vs.  Bablu Natt [(2009) 2 SCC 272] and  

State of Rajasthan vs. Vinod Kumar [(2012) 6 SCC 770] in  

which this Court, after considering the language used in  

the proviso to Section 376(1), IPC, has set aside the orders  

of  the  High  Court  imposing  sentences  less  than  the  

minimum sentence of seven years in cases of rape under  

Section 376, IPC.

Findings of the Court:

8. The  first  question  that  we  have  to  decide  is  

whether  the  High  Court  is  right  in  coming  to  the  

conclusion  that  the  appellant  was  guilty  under  Section  

376, IPC, for the offence of rape or whether the evidence  

on record in this case only made out an offence of attempt  

to rape under Section 376, IPC, read with Section 511, IPC.  

We find that the High Court while coming to the conclusion  

that the appellant was guilty of the offence of rape under  

Section  376,  IPC,  has  considered  the  evidence  of  the  

prosecutrix (PW-1), the medical evidence and the report of  

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CFSL.  The  prosecutrix  has  stated  that  the  appellant  

pushed her on the cot, put off her underwear and salwar  

and forcibly raped her.  The salwar and underwear of the  

prosecutrix,  which  she  was  wearing  at  the  time  of  

incident,  were  sent  to  CFSL  for  analysis  and  after  

examination  the  CFSL  had  found  in  its  report  dated  

30.04.2001 that there was human semen and blood on the  

underwear of the prosecutrix referred to in the report as  

Exhibit  4(B).   Hence,  there  is  corroboration  of  the  

testimony of the prosecutrix that rape was committed on  

her.   

9. PW-15,  the  doctor  who  conducted  the  medical  

examination of the prosecutrix on 31.01.2001, however,  

has  stated  that  there  was  no  sign  of  injury  on  the  

prosecutrix and the hymen was found intact.   The High  

Court has considered this evidence and has held that the  

non-rupture  of  hymen  is  not  sufficient  to  dislodge  the  

theory of  rape and has relied on the following passage  

from  Modi  in  Medical  Jurisprudence  and  Toxicology  

(Twenty First Edition):

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“Thus, to constitute the offence of rape it is  not necessary that there should be complete  penetration of penis with emission of semen  and rupture of hymen.  Partial penetration of  the penis within the Labia majora or the vulva  or pudenda with or without emission of semen  or  even  an  attempt  at  penetration  is  quite  sufficient  for  the  purpose  of  the  law.   It  is,  therefore, quite possible to commit legally the  offence of rape without producing any injury  to the genital or leaving any seminal stains.”

Section  375,  IPC,  defines  the  offence  of  ‘rape’  and  the  

Explanation to Section 375, IPC, states that penetration is  

sufficient to constitute the sexual intercourse necessary to  

the offence of rape.  This Court has accordingly held in  

Wahid Khan v. State of Madhya Pradesh [(2010) 2 SCC 9]  

that even the slightest penetration is sufficient to make  

out  an  offence  of  rape  and  depth  of  penetration  is  

immaterial.  In the aforesaid case, this Court has relied on  

the  very  same  passage  from  Modi  in  Medical  

Jurisprudence  and  Toxicology (Twenty  Second  Edition)  

quoted  above.   In  the  present  case,  even  though  the  

hymen of the prosecutrix was not ruptured the High Court  

has  held  that  there  was  penetration  which  has  caused  

bleeding in the private parts of the prosecutrix as would  

be  evident  from  the  fact  that  the  underwear  of  the  

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prosecutrix  was  stained  by  blood.   In our considered  

opinion, the High Court was right in holding the appellant  

guilty of the offence of rape and there is no merit in the  

contention of the learned counsel for the appellant that  

there was only an attempt to rape and not rape by the  

appellant.

10. The  next  question  that  we  have  to  consider  is  

whether  the Court  should invoke the proviso to Section  

376(1), IPC, and impose a sentence of imprisonment for a  

term of less than seven years in this case.  The proviso to  

Section 376(1), IPC, as it stood prior to its amendment in  

the year 2013 expressly states that the Court may impose  

a sentence of imprisonment for a term of less than seven  

years  in  an  offence  under  Section  376(1),  IPC,  “for  

adequate  and  special  reasons  to  be  mentioned  in  the  

judgment”.  We may now consider the cases cited by the  

learned counsel  for  the  parties  in  which  this  Court  has  

considered whether or not the proviso should be invoked  

to  reduce  the  sentence  to  less  than  the  minimum  

sentence in cases of rape.   

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11.   In  State  of  Rajasthan vs.  N.K.  The  Accused  

(supra), cited by the learned counsel for the appellant, this  

Court found that the accused had committed rape on the  

prosecutrix who was a married woman.  This Court found  

that  that  the  incident  was  of  the  year  1993  and  the  

accused  was  taken  into  custody  by  the  police  on  

03.11.1993 and he was not allowed bail and during trial  

and during hearing of the appeal, he remained in jail and  

it was only on 11.10.1995 when the High Court acquitted  

him of the charge that he was released from jail.   This  

Court held that though the accused had remained in jail  

for  a  little  less  than  two  years  and  taking  into  

consideration the period of remission for which he would  

have been entitled as well as the time which has elapsed  

from the date of commission of the offence, the accused  

should not be sent back to jail and reduced the sentence to  

the period already undergone by him.   

12.   In Sukhwinder Singh vs.  State of Punjab (supra),  

cited by the learned counsel for the appellant, this Court  

found that the prosecutrix was a consenting party to the  

act of sexual intercourse and that she had willingly left her  

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parents’ house to be with the appellant but she was found  

to be “not more than sixteen years of age” and on that  

account, the High Court had upheld the conviction of the  

appellant.   This  Court  held  that  as  the  prosecutrix  had  

since got married and she did not want the matter to be  

carried  any  further  and  wanted  to  lead  a  happy  and  

healthy  married  life  with  her  husband  and  had  filed  a  

compromise petition to that effect, there were adequate  

and special reasons to reduce the sentence to the period  

already undergone by the accused.

13.  In  Baldev Singh and Others vs.  State of Punjab  

(supra), cited by the learned counsel for the appellant, the  

accused  was  found  guilty  of  gang  rape  under  Section  

376(2)(g), IPC, for which the minimum sentence was ten  

years  rigorous  imprisonment.   The  proviso  to  Section  

376(2),  IPC,  however,  stated  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 term of less than ten years.  This Court  

held  on  the  facts  of  the  case  that  as  the  incident  

happened  in  the  year  1997  and  as  the  parties  have  

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themselves entered into a compromise, the sentence be  

reduced to the period already undergone in view of the  

proviso to Section 376(2)(g), IPC.

14.  In State of Madhya Pradesh vs. Bablu Natt (supra),  

cited by the learned counsel for the State, this Court, on  

the other hand, did not find good and adequate reasons to  

reduce the sentence to less than the minimum sentence  

of seven years under Section 376(1), IPC, because of the  

fact  that  the  prosecutrix  was  a  minor  and  had  been  

subjected to rape and was compelled to live for several  

days with the accused at Chhatarpur  and set aside the  

judgment  of  the  High  Court  insofar  as  it  imposed  a  

sentence of less than seven years.

15.   In  State of Rajasthan vs.  Vinod Kumar (supra),  

cited on behalf of the State, the accused-Vinod Kumar had  

been convicted by the trial court under Section 376, IPC,  

and sentenced to seven years imprisonment.   The High  

Court,  however,  reduced  the  sentence  to  five  years  

imprisonment  without  recording  adequate  and  special  

reasons for doing so.  This Court held that the High Court  

failed  to  ensure  compliance  with  the  mandatory  

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requirement  of  the  proviso  to  Section  376(1),  IPC,  to  

record adequate and special  reasons.   This  Court,  after  

considering the earlier decisions of this Court, held:

“23. 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.

24.  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  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  

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and  no  straitjacket  formula  can  be  laid  down.”

16.   It is, therefore, clear that what is adequate and  

special  would  depend  upon  several  factors  and  on  the  

facts of each case and no straitjacket formula has been  

laid down by this Court.  The legislature, however, requires  

the Court to record the adequate and special reasons in  

any  given  case  where  the  punishment  less  than  the  

minimum sentence of seven years is to be imposed.  The  

conduct of the accused at the time of commission of the  

offence  of  rape,  age  of  the  prosecutrix  and  the  

consequences of rape on the prosecutrix are some of the  

relevant  factors  which  the  Court  should  consider  while  

considering the question of reducing the sentence to less  

than the minimum sentence.  In the facts of the present  

case, we find that the prosecutrix was a student of eighth  

class and was about 14 years on 28.01.2001 and she was  

of  a  tender  age.   She  had  gone  to  the  house  of  the  

appellant looking for her friend Babbo,  the sister of the  

appellant.  When she asked the appellant as to where the  

sister of the accused was, he told her that she was in the  

room and when she went inside the room, he followed her  

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into the room, bolted the room from inside and forcibly put  

her on the cot.  The appellant then took out the salwar  

and the underwear of the prosecutrix and raped her.  As a  

result of this incident, her parents stopped her from going  

to  the  school  and  asked  her  to  study  eighth  class  

privately.   Considering  the  age  of  the  prosecutrix,  the  

conduct  of  the  appellant  and  the  consequences  of  the  

rape on the prosecutrix,  we do not think that there are  

adequate and special reasons in this case to reduce the  

sentence  to  less  than  the  minimum  sentence  under  

Section 376(1), IPC.

17.   In the result,  we do not find any merit  in this  

appeal and we accordingly dismiss the same.   

.……………………….J.                                                            (A. K. Patnaik)

………………………..J.                                                            (Gyan Sudha Misra) New Delhi, January 16, 2014.  

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