Page 1

       REPORTABLE   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1278-1279 OF 2013 (Arising out of S.L.P. (Crl.) Nos. 1011-1012 of 2012)

Shimbhu and Anr.               .... Appellant(s)

Versus

State of Haryana              ....  Respondent(s)

J U D G M E N T

P.Sathasivam,CJI.

1) Leave granted.

2) These appeals are directed against the final judgment  

and order dated 22.02.2011 passed by the High Court of  

Punjab and Haryana at Chandigarh in Criminal Appeal Nos.  

577 and 479 of 1998 whereby the High Court dismissed the  

appeals filed by the appellants herein while affirming the  

1

Page 2

conviction and sentence dated 30/31.03.1998 awarded by  

the Additional Sessions Judge, Narnaul.   

3) Brief facts:

(a) The  case  relates  to  the  gang  rape  of  the  victim in  

village  Nangal  Durgu,  Haryana.   Purushottam-her  

grandfather, had a shop in the said village.  Balu Ram (the  

appellant herein) also had a shop adjacent to the shop of  

Purushottam. On 28.12.1995, at about 5.00 a.m., when the  

prosecutrix (PW-3) came out of her house to attend the call  

of nature, Shimbhu (A-1) and Balu Ram (A-2)-the appellants  

herein, met her and asked her to accompany them to their  

shop.   When  she  tried  to  resist  their  attempt,  they  

threatened  her  by  pointing  out  a  knife  with  dire  

consequences.  They took her inside the shop of Balu Ram  

(A-2) and raped her, turn by turn.  They kept her confined in  

the  same  shop  for  two  days,  i.e.,  28.12.1995  and  

29.12.1995 and committed rape upon her  repeatedly.   It  

was only on 29.12.1995, she was allowed to leave the said  

place when the appellants-accused learnt  that  her  family  

members  were  on  her  look  out.   When she reached her  

2

Page 3

house,  she  narrated  the  entire  incident  to  her  family  

members.  

(b) On 30.12.1995, the prosecutrix, accompanied by her  

father – Luxmi Narain Sharma (PW-4),  went to the Police  

Station Nangal  Chaudhary and lodged a First  Information  

Report (FIR) being No. 195 dated 30.12.1995 under Sections  

376(2)(g), 366, 342, 363, 506 read with Section 34 of the  

Indian Penal Code, 1860 (in short ‘IPC’).

(c) After  investigation,  the  case  was  committed  to  the  

Court of the Additional Sessions Judge, Narnaul which was  

numbered  as  Sessions  Case  No.  RT-9  of  

28.08.1997/11.03.1996  and  Sessions  Trial  No.  4  of  

28.08.1997/25.03.1996.   The  Additional  Sessions  Judge,  

vide order dated 30/31.03.1998, convicted and sentenced  

the  appellants  to  undergo  rigorous  imprisonment  (RI)  for  

ten years along with a fine of Rs. 5,000/- each, in default, to  

further undergo RI for six months for the offence punishable  

under Section 376(2)(g) read with Section 34 of IPC.  The  

appellants  were  also  sentenced  to  undergo  RI  for  three  

years along with a fine of Rs. 1,000/- each, in default,  to  

3

Page 4

further  undergo  RI  for  two  months  for  the  offence  

punishable under Section 366 read with Section 34 of IPC.  

They were further sentenced to undergo RI for three months  

along with a fine of Rs.  200/-  each,  in default,  to further  

undergo RI for fifteen days for the offence punishable under  

Section 342 read with Section 34 of IPC.  They were also  

sentenced to undergo RI for one year along with a fine of  

Rs.  500/-  each,  in  default,  to  further  undergo  RI  for  one  

month for the offence under Section 506 read with Section  

34 of IPC.   

(d) Being  aggrieved  of  the  order  of  conviction  and  

sentence, the appellants herein preferred Criminal Appeal  

Nos.  577  and  479  of  1998  before  the  High  Court.   The  

Division Bench of the High Court, by a common order dated  

22.02.2011, dismissed the appeals and confirmed the order  

of conviction and sentence dated 30/31.03.1998 passed by  

the Additional Sessions Judge, Narnaul.  

(e) Being aggrieved of  the above,  the appellants herein  

have preferred these appeals by way of special leave before  

this Court.  

4

Page 5

4) Heard  Mr.  Rishi  Malhotra,  learned  counsel  for  the  

appellants-accused  herein  and  Mr.  Brijender  Chahar,  

learned senior counsel for the respondent-State.   

5) The  only  contention  of  Mr.  Rishi  Malhotra,  learned  

counsel is with regard to the settlement arrived at between  

the appellants-accused and the victim dated 24.12.2011, in  

the form of an affidavit by the victim filed before this Court,  

based on which he prayed for the reduction of sentence to  

the  period  already  undergone.   On  the  other  hand,  Mr.  

Brijender Chahar, learned senior counsel for the respondent  

– State vehemently contended that in view of the statutory  

provision,  as  it  stood,  in  the  absence  of  adequate  and  

special reasons and the offence being a gang rape having  

minimum  sentence  of  ten  years,  the  same  cannot  be  

reduced to the period already undergone merely because  

the victim has entered into a settlement with the accused.  

He  also  brought  to  our  notice  the  Criminal  Law  

(Amendment) Act, 2013, which not only deleted the proviso  

which enables the court to reduce the minimum sentence  

by giving adequate and special reasons but also enhanced  

5

Page 6

the minimum sentence to twenty years, which may extend  

to life which shall mean imprisonment for the remainder of  

that person’s natural life and with fine.  He also pointed out  

that for the said purpose the legislature has introduced new  

Section, namely, Section 376D IPC, which came into effect  

from 03.02.2013.

6) In  the  light  of  the  limited  relief  prayed,  there  is  no  

need  to  go  into  the  aspects  relating  to  conviction  and  

sentence.   In  other  words,  the  only  question  to  be  

considered  in  these  appeals  is  whether  the  appellants-

accused have made out a case for imposition of a lesser  

sentence than ten years?

7) During  the  pendency  of  the  above  appeals,  the  

appellants-accused  placed  on  record  an  affidavit  dated  

24.12.2011 signed by the victim.  In the said affidavit, the  

deponent had stated that  she was the prosecutrix  in the  

instant  case  which  arose  out  of  FIR  No.  195  dated  

30.12.1995 under Sections 363, 366, 342, 376(2)(g), 506/34  

IPC registered at P.S. Nangal Chaudhary which is 16 years  

old where she was a consenting party to the alleged act.  

6

Page 7

She also stated that due to passage of time and the fact  

that the deponent has settled/compromised the said matter  

with the accused persons on account of they belonging to  

neighbouring village and also of the fact that the deponent  

is married since January, 1999 and has four children, she  

did not want the said case to be pursued any further.  She  

further stated that she is living happily with her husband for  

the last twelve years.  Finally, she stated that in view of the  

compromise entered into by her with the accused persons  

and in order to buy peace and to maintain dignity in her  

matrimonial life, she has no objection if the sentence of the  

appellants be reduced to the period already undergone.

8) We carefully perused the contents of the said affidavit.  

It contains two pages and the deponent has signed in Hindi,  

that too only on the last page.  Nothing was brought to the  

notice before any forum.   In  these circumstances,  let  us  

consider the relevant provision, as it stood on the date of  

the incident, and various decisions of this Court.    

Sentencing Policy under Section 376(2)(g) of IPC:

7

Page 8

9) The crucial stage in every criminal proceeding is the  

stage of  sentencing.  It  is  the  most  complex  and difficult  

stage  in  the  judicial  process.  The  Indian  legal  system  

confers  ample  discretion  on  the  judges  to  levy  the  

appropriate  sentence.  However,  this  discretion  is  not  

unfettered in nature rather various factors like the nature,  

gravity,  the  manner  and  the  circumstances  of  the  

commission of the offence, the personality of the accused,  

character, aggravating as well as mitigating circumstances,  

antecedents etc., cumulatively constitute as the yardsticks  

for the judges to decide on the sentence to be imposed.  

Indisputably,  the  sentencing  Courts  shall  consider  all  

relevant facts and circumstances bearing on the question of  

sentence and impose a sentence commensurate with the  

crime committed.  

10) Before we evaluate the case at hand in the light of  

above established principle that all  punishments must be  

directly  proportionate  to  the  crime  committed,  it  is  

imperative  to  comprehend  the  legislative  intent  behind  

Section 376(2)(g) IPC which is as under:

8

Page 9

“376. Punishment for rape.—

(1) Whoever, except in the cases provided for by sub- section  (2), commits rape shall be punished with imprisonment of either  description for a term which shall not be less than seven years  but which may be for life or for a term which may extend to ten  years and shall also be liable to fine unless the woman raped is  his  own wife  and is  not  under twelve years of  age,  in  which  case,  he  shall  be  punished  with  imprisonment  of  either  description for a term which may extend to two years or with  fine or with both:

Provided that 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.

(2) Whoever,-

(a) Being a police officer commits rape-

(i) within  the limits  of  the police station to which he is  appointed; or

(ii) in the premises of any station house whether or not  situated in the police station to which he is appointed; or

(iii) on  a  woman in  his  custody or  in  the custody of  a  police officer subordinate to him; or

(b) Being  a  public  servant,  takes  advantage  of  his  official  position and commits rape on a woman in his custody as such  public servant or in the custody of a public servant subordinate  to him; or

(c) Being on the management or on the staff of a jail, remand  home or other place of custody established by or under any law  for  the  time  being  in  force  or  of  a  women's  or  children's  institution takes advantage of his official position and commits  rape  on  any  inmate  of  such  jail,  remand  home,  place  or  institution; or

(d) Being on the management or on the staff of a hospital, takes  advantage of his official position and commits rape on a woman  in that hospital; or

(e) Commits rape on a woman knowing her to be pregnant; or

9

Page 11

12) It is a fundamental rule of construction that a proviso  

must  be  considered  in  relation  to  the  main  provision  to  

which  it  stands  as  a  proviso,  particularly,  in  such  penal  

provisions. Whether there exist any "special and adequate  

reason"  would  depend upon a  variety  of  factors  and the  

peculiar facts and circumstances of each case. This Court,  

in various judgments,  has reached the consensus that no  

hard  and  fast  rule  can  be  laid  down  in  that  behalf  for  

universal application.

13) It  is  on  this  proviso  to  the  Section,  the  accused  is  

relying  upon  and  praying  for  a  reduction  of  sentence  of  

imprisonment for a term of less than 10 years. Based on the  

following three grounds, the accused seeks for reduction  

of sentence than prescribed by the statute:  

Firstly, on the ground that a compromise has been  

arrived at between the parties;  

Secondly, that the occurrence of the incident dates  

back to 1995; and  

11

Page 12

Lastly, that the victim is happily married and blessed  

with children.  

14) This  Court,  in  a  catena  of  cases,  has  categorically  

reiterated that none of the grounds raised will suffice to be  

‘special and adequate reasons’ even if put together.

15) In  Kamal Kishore vs.  State of H.P. (2000)  4 SCC  

502,  a  three-Judge  Bench  of  this  Court  arrived  at  the  

conclusion that the fact that the occurrence took place 10  

years ago and the accused or the victim might have settled  

in  life  is  no  special  reason  for  reducing  the  statutory  

prescribed minimum sentence, stating:

“22. The expression "adequate and special reasons" indicates  that  it  is  not  enough  to  have  special  reasons,  nor  adequate  reasons disjunctively. There should be a 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.  What  the  Division  Bench  of  the  High  Court  mentioned  (i.e.  occurrence  took  place  10  years  ago and  the  accused  might  have  settled  in  life)  are  not  special  to  the  accused  in  this  case  or  to  the  situations  in  this  case.  Such  reasons can be noticed in many other cases and hence they  cannot  be regarded as special  reasons.  No catalogue can be  prescribed for adequacy of reasons nor instance can be cited  regarding special reasons, as they may differ from case to case.

23. As the reasons advanced by the Division Bench of the High  Court could not be supported as adequate and special reasons  learned Counsel for the accused projected an alternative profile  in order to support his contention that there are adequate and  

12

Page 15

minimum. These reasons are neither special nor adequate. 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.  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. The sentencing  Courts  are  expected  to  consider  all  relevant  facts  and  circumstance bearing on the question of sentence and proceed  to  impose a  sentence commensurate with  the gravity  of  the  offence. Courts must hear the loud cry for justice by the society  in cases of heinous crimes of rape on innocent helpless girls of  tender  years  as  in  this  case,  and  respond  by  imposition  of  proper  sentence.  Public  abhorrence  of  the  crime  needs  reflection  through  imposition  of  appropriate  sentence  by  the  Court.  There  are  no  extenuating  or  mitigating  circumstances  available  on  the  record  which  may  justify  imposition  of  any  sentence less than the prescribed minimum to the respondent.  To show mercy in the case of such a heinous crime would be  travesty of justice and the plea for leniency is wholly misplaced.  The High Court in the facts and circumstances of the case, was  not justified in interfering with the discretion exercised by the  Trial Court and our answer to the question posed in the earlier  part of the judgment is an emphatic - No.”

18) Similar  view  point  was  largely  adopted  in  various  

cases, like in  Bhupinder Sharma vs. State of Himachal  

Pradesh (2003) 8 SCC 551; State of M.P. vs. Balu (2005)  

1  SCC 108;  State of  Madhya Pradesh vs. Bablu Natt  

(2009)  2  SCC  272;  and  State  of  Rajasthan vs. Vinod  

Kumar (2012) 6 SCC 770.

15

Page 16

19) At this juncture, it is pertinent to refer two decisions on  

the very same Section, i.e., Section 376 IPC wherein while  

considering peculiar circumstances, this Court reduced the  

prescribed  minimum  sentence  and  confirmed  the  orders  

passed by the High Court.  In  Baldev Singh and Others  

vs.  State of  Punjab (2011)  13  SCC 705,  though 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 3 ½ 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. 1,000/- to Rs. 50,000/-.   In the light of series of  

decisions,  taking  contrary  view,  we  hold  that  the  said  

decision  in  Baldev Singh (supra) cannot  be  cited  as  a  

precedent and it should be confined to that case.  

20) Similarly,  in  Mohd.  Imran  Khan vs.  State  

Government  (NCT  of  Delhi) (2011)  10  SCC  192,  this  

Court, after pointing out that as the High Court itself has  

16

Page 17

awarded the sentence lesser than the minimum prescribed  

for  the  offence  recording  special  reasons,  viz.,  that  the  

prosecutrix  therein  had  willingly  accompanied  the  

appellants to Meerut and stayed with them in the hotel; she  

was more than 15 years of age when she eloped with the  

appellants and the appellants were young boys held that  

there  is  no  case  for  further  reduction  of  sentence  and  

dismissed  the  appeals  filed  by  the  appellants-accused.  

Inasmuch  as  the  prosecutrix  herself  had  consented  and  

stayed along with the appellants-accused in the hotel, the  

High Court reduced the sentence to five years which was  

less than the minimum prescribed for the offence which in  

turn affirmed by this Court.  This decision is also confined to  

the peculiar circumstances under the important aspect that  

the prosecutrix was a consenting party, hence, the same is  

also not applicable to the case on hand or any other case.  

21) Thus, the law on the issue can be summarized to the  

effect  that  punishment  should  always  be  

proportionate/commensurate  to  the  gravity  of  offence.  

Religion,  race,  caste,  economic  or  social  status  of  the  

17

Page 18

accused or victim or the long pendency of the criminal trial  

or offer of the rapist to marry the victim or the victim is  

married and settled in life cannot be construed as special  

factors for reducing the sentence prescribed by the statute.  

The  power  under  the  proviso  should  not  be  used  

indiscriminately in a routine, casual and cavalier manner for  

the  reason  that  an  exception  clause  requires  strict  

interpretation.  

22) 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  that  the  consent  given  by  the  victim  in  

compromising the case is a genuine consent, there is every  

chance  that  she  might  have  been  pressurized  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  

18

Page 19

the  victim.  The  accused  may  use  all  his  influence  to  

pressurize  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) of IPC.

23) It is imperative to mention that the legislature through  

the Criminal Law (Amendment) Act, 2013 has deleted this  

proviso in the wake of increasing crimes against women.  

Though, the said amendment will not come in the way of  

exercising discretion in this case, on perusal of the above  

legislative provision and catena of cases on the issue, we  

feel that the present case fails to fall within the ambit of  

exceptional case where the Court shall use its extraordinary  

discretion  to  reduce  the  period  of  sentence  than  the  

minimum prescribed.

24) This  is  yet  another  opportunity  to  inform  the  

subordinate  Courts  and  the  High  Courts  that  despite  

19

Page 20

stringent provisions for rape under Section 376 IPC, many  

Courts in the past have taken a softer view while awarding  

sentence for such a heinous crime.  This Court has in the  

past  noticed  that  few  subordinate  and  High  Courts  have  

reduced the sentence of the accused to the period already  

undergone to suffice as the punishment,  by taking aid of  

the proviso to Section 376(2) IPC.  The above trend exhibits  

stark  insensitivity  to  the  need  for  proportionate  

punishments to be imposed in such cases.

25) In  the  light  of  the  above  discussion,  we  reject  the  

request of learned counsel for the appellants for reduction  

of sentence, consequently, the appeals fail  and the same  

are dismissed.

                                        ...……………. ………………………CJI.                                           (P. SATHASIVAM)                                  

 .…....…………………………………J.        (RANJANA PRAKASH DESAI)         

20

Page 21

…....……………………………………J.      (RANJAN GOGOI)                         

NEW DELHI; AUGUST 27, 2013.    

21