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REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL Nos. 792-793 OF 2013 (Arising out of Special Leave Petition(Crl.)Nos. 9544-9545/2011)

State of Haryana ...Appellant

Versus

Janak Singh & etc. …Respondents

O  R  D  E  R

(SMT.) RANJANA PRAKASH DESAI, J.

1. Leave granted.

2. In these appeals by special leave the State of Haryana  

has  challenged  the  judgment  and  order  dated  2/8/2010  

passed by the High Court of Punjab & Haryana maintaining  

the conviction of respondent Joginder Singh (original accused

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1) under Sections 376 and 506 of the Indian Penal Code (for  

short, ‘the IPC’ )  and conviction of respondent Janak Singh  

(original  accused 2) under Sections 376 read with Section  

511 and Section 506 of the IPC and reducing their sentence  

for the said offences to the sentence already undergone by  

them.  

3. According to the prosecution the prosecutrix lodged an  

FIR on 31/10/1998 at Police Post Jalmana stating that she  

was  residing  in  the  dera  of  Shekhupura  along  with  her  

brother  Gurpreet  Singh  and  mother  Joginder  Kaur.   On  

27/10/1998  she,  her  mother  Joginder  Kaur  and  brother  

Gurpreet Singh were sleeping in the dera.  At about 11.00  

p.m. she got up for easing herself.  After unbolting the room  

she went  to  the courtyard.   She found that  two men i.e.  

respondent Joginder Singh and respondent Janak Singh were  

standing near the boundary of the courtyard.  One of them  

was having a khes and another was having a piece of cloth  

on his head.  They lifted her and threatened to kill  her in  

case she raised cries. They took her to a field of maize where  

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respondent  Joginder  Singh  raped  her.   Respondent  Janak  

Singh also tried to catch hold of her to rape her, but, since  

she cried for help her mother Joginder Kaur came there and  

on seeing her both the accused fled away towards the fields.  

On  the  basis  of  this  FIR,  offences  under  Sections  

376/506/511  of  the  IPC  were  registered  against  both  the  

respondents.   Investigation commenced.  On completion of  

investigation, respondent Joginder Singh was charged under  

Sections  376  and  506  of  the  IPC  while  respondent  Janak  

Singh was charged under Sections 376, 511 and 506 of the  

IPC.  

4. Both the respondents pleaded not guilty to the charge  

and claimed to be tried.  According to respondent Joginder  

Singh he had a love affair with the prosecutrix.  However, he  

was  married  by  his  parents  to  a  woman  from  their  

community and hence the prosecutrix and her mother were  

nursing a grudge against him. Therefore, he has been falsely  

implicated  in  this  case.   He  also  contended  that  he  had  

advanced money to the mother of the prosecutrix.  When he  

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asked  her  to  return  the  amount  the  prosecutrix  and  her  

mother were annoyed.  This was also the reason why he was  

falsely  implicated in  this  case.   In  support  of  his  case he  

produced  certain  photographs  showing  the  prosecutrix  

standing near him.  Respondent Janak Singh stated that he  

had been falsely  implicated in  this  case.  The respondents  

examined  DW-1  Kashmiri  Lal  and  placed  reliance  on  

photographs Ex. DA and Ex. DB and negatives thereof being  

Ex. DC and Ex. DD. The prosecution, in support of its case,  

examined nine witnesses.  The prosecution heavily relied on  

the evidence of PW-2 the prosecutrix.  After considering the  

evidence  on  record  learned  Sessions  Judge  convicted  

respondent  Joginder  Singh  for  offence  punishable  under  

Section  376   of  the  IPC  and  sentenced  him  to  undergo  

rigorous  imprisonment   for  eight  years  and  fine  of  Rs.  

2,000/-,  in  default  of  payment  of  fine,  to  further  undergo  

rigorous  imprisonment  for  two  months.   He  was  also  

convicted under  Section 506 of  the IPC and sentenced to  

undergo rigorous imprisonment for  one year.   Respondent  

Janak  Singh  was  convicted  under  Section  376  read  with  

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Section 511 of the IPC and sentenced to undergo rigorous  

imprisonment for four years and fine of Rs. 1,000/-, in default  

of payment of fine, to further undergo rigorous imprisonment  

for one month.  He was also convicted under Section 506 of  

the IPC and sentenced   to undergo rigorous imprisonment of  

one year.   The substantive sentences were ordered to run  

concurrently.  

5. Both respondents filed appeals in the High Court. We  

are rather surprised at the manner in which the High Court  

disposed  of  the  appeals.  After  narrating  the  gist  of  the  

prosecution story  the High Court  noted the submission of  

learned  counsel  for  the  respondents  that  respondent  

Joginder Singh had undergone more than two years of actual  

sentence and respondent  Janak Singh had undergone one  

year, ten months and seven days of actual sentence; that  

the respondents are the only bread earners of their family  

and are facing criminal  proceedings since the years 1998  

and  that  in  the  facts  and  circumstances  of  the  case  and  

considering  the  medical  evidence  the  possibility  of  the  

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prosecutrix going with respondent Joginder Singh out of her  

own free will cannot be ruled out.  The counsel appears to  

have made it clear that the respondents had not challenged  

their  conviction  but  they  wanted  their  sentence  to  be  

reduced  to  the  sentence  already  undergone.   The  State  

counsel made a feeble attempt to oppose this submission by  

stating that the sentence is not liable to be reduced.  There  

is  no indication in  the  impugned judgment  that  the State  

counsel vehemently opposed the submission of the counsel  

for  the respondents.  The High Court after  referring to the  

submissions of the counsel observed as under:  

“After  hearing learned counsel  for  the parties   and  going  through  the  record  of  the  case,  it   would  be  just  and  expedient  to  reduce  the  sentence qua imprisonment of the appellants to   already undergone by them. Fine is  stated to   have already been deposited by the appellants.  

Accordingly, the conviction of appellant Joginder   Singh  under  Sections  376,  506  IPC  and  the  conviction  of  appellant  Janak  Singh  under   Sections 376/511 and 506 IPC,  as ordered by   the  trial  court,  is  maintained.  However,   sentence qua imprisonment of the appellants is   reduced to already undergone by them.  

The  present  appeals  stand  disposed  of   accordingly.”

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The  High  Court  gave  no  reasons  for  reducing  the  

sentence to sentence already undergone.

6. Rape  is  one  of  the  most  heinous  crimes  committed  

against  a  woman.   It  insults  womanhood.   It  violates  the  

dignity  of  a  woman and erodes her  honour.  It  dwarfs  her  

personality and reduces her confidence level.  It violates her  

right to life guaranteed under Article 21 of the Constitution  

of  India.   We  may  remind  ourselves  of  the  observations  

made by this  Court  in  Bodhisattwa Gautam v. Subhra  

Chakraborty,1 that  rape  is  violative  of  the  victim’s  most  

cherished  of  the  fundamental  rights  guaranteed  under  

Article  21  of  the  Constitution  of  India.   In  a  series  of  

judgments  this  Court  has  reiterated  these  observations.  

Rape cases have to be dealt with keeping these observations  

in mind.   

7.  Section  376  of  the  IPC  provides  for  punishment  for  

rape.  Offence  of  rape  is  punishable  with  imprisonment  of  1 (1996) 1 SCC 490

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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.  The convict shall also be liable to  

fine. Proviso to Section 376(1) states 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.  Thus,  a  minimum  of  seven  years  

sentence  is  provided  under  Section  376(1)  of  the  IPC.  

Sentence for a term of less than seven years can be imposed  

by a court only after assigning adequate and special reasons  

for such reduction.  Thus, ordinarily sentence for an offence  

of  rape  shall  not  be  less  than  seven  years.  When  the  

legislature provides for a minimum sentence and makes it  

clear that for any reduction from the minimum sentence of  

seven  years,  adequate  and  special  reasons  have  to  be  

assigned in the judgment, the courts must strictly abide by  

this  legislative  command.   Section  376(1)  read  with  the  

proviso  thereto  reflects  the  anxiety  of  the  legislature  to  

ensure that a rapist is not lightly let off and unless there are  

some extenuating circumstances stated in writing, sentence  

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below the minimum i.e.  less  than seven years  cannot  be  

imposed. While imposing sentence on persons convicted of  

rape,  the  court  must  be  careful  and  must  not  overlook  

requirement  of  assigning  reasons  for  imposing  sentence  

below the prescribed minimum sentence.   The High Court  

appears to have not noticed this requirement.  

8. In this connection we may usefully refer to  State of  

Karnataka v. Krishnappa  2  .    In that case the High Court  

had  reduced  the  sentence  of  ten  years  rigorous  

imprisonment imposed by the trial court on the accused for  

an  offence  under  Section  376  of  the  IPC  to  four  years  

rigorous  imprisonment.  Severely  commenting  on  this  

indiscretion, this Court observed as under:-

“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 circumstances 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  the heinous crime of   rape on innocent helpless girls of tender years, as   

2 (2000)4 SCC 75

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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 on the  respondent. To show mercy in the case of such a   heinous crime would be a travesty of justice and   the  plea  for  leniency  is  wholly  misplaced.  The  courts  are  expected  to  properly  operate  the   sentencing system and to impose such sentence   for  a  proved  offence,  which  may  serve  as  a   deterrent for the commission of like offences by   others.  Sexual  violence  apart  from  being  a   dehumanising act is an unlawful intrusion of the   right to privacy and sanctity of a female. It  is a   serious blow to her supreme honour and offends  her  self-esteem  and  dignity  —  it  degrades  and   humiliates  the victim and where the  victim is  a   helpless  innocent  child,  it  leaves  behind  a  traumatic  experience.  The courts  are,  therefore,   expected  to  deal  with  cases  of  sexual  crime  against women with utmost sensitivity. Such cases   need  to  be  dealt  with  sternly  and  severely.  A   socially sensitised Judge, in our opinion, is a better   statutory armour in cases of crime against women   than long clauses of penal provisions, containing   complex exceptions and provisos.”

9. In   State  of  A.P.  v.  Bodem  Sundara  Rao  3  ,  the  

accused  was  sentenced  by  the  trial  court  for  an  offence  

under Section 376 of the IPC for ten years. The High Court  

maintained the conviction, however, reduced the period of  3 (1995)6 SCC230

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sentence to four years.  This Court set aside the High Court’s  

order and enhanced the sentence to seven years which is  

the minimum prescribed sentence under Section 376 of the  

IPC.  The relevant observations of this Court are as under:  

“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  sentence  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  society's  cry  for  justice   against  such criminals.  Public  abhorrence of  the   crime  needs  a  reflection  through  the  court's   verdict in the measure of punishment. The courts   must  not  only  keep  in  view  the  rights  of  the   criminal but also the rights of the victim of 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  inhumane.  There  are  no  extenuating or mitigating circumstances available   on  the  record  which  may  justify  imposition  of   sentence less than the minimum prescribed by the   Legislature under Section 376(1) of the Act.”

The  above  observations  of  this  Court  made  in  

Krishnappa  and  in  Bodem  Sundara  Rao state  what  

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should  be  the  approach  of  the  courts  while  sentencing  

accused convicted of  rape.  We shall  examine the present  

case in light of the above discussion.  

10. We notice that before the High Court learned counsel  

for the respondents did not challenge the conviction.  At the  

same time, he stated that the circumstances of the case and  

medical evidence indicated that this could be a case where  

the prosecutrix had gone with respondent Joginder Singh of  

her  own  will.   Therefore,  it  is  not  clear  whether  the  

respondents had really instructed their counsel not to press  

the  appeal  on  merits  or  whether  the  counsel  on  his  own  

thought that getting the respondents released on sentence  

already  undergone  by  them  was  an  easy  way  out  and,  

therefore, he preferred that option.  We feel that the appeals  

were  heard  in  a  slipshod  manner.   It  was  open  for  the  

respondents  to  press  the  appeals  on  merits  and  pray  for  

acquittal.   Had the case been argued on merits, the High  

Court could have acquitted the respondents if it felt that the  

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prosecution  had  not  proved  its  case  beyond  reasonable  

doubt.  Assuming the respondents did not press the appeals,  

the High Court had to still consider whether the concession  

made by the counsel was proper because it is the duty of the  

court  to  see  whether  conviction  is  legal.   But,  once  the  

respondents  stated  that  they  did  not  want  to  press  the  

appeals and the High Court was convinced that conviction  

must follow, then, ordinarily it could not have reduced the  

sentence  to  the  sentence  already  undergone  by  the  

respondents which is below the minimum prescribed by law.  

The High Court could have done so only if it felt that there  

were extenuating circumstances by giving reasons therefor.   

While reducing the sentence, the High Court has merely  

stated that it was “just and expedient” to do so.  These are  

not  the  reasons  contemplated  by  the  proviso  to  Section  

376(1)  of  the  IPC.   Reasons  must  contain  extenuating  

circumstances which prompted the High Court to reduce the  

sentence  below  the  prescribed  minimum.   Sentence  

bargaining is  impermissible in  a serious offence like rape.  

Besides, at the cost of repetition, it must be stated that such  

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a course would be against the mandate of Section 376(1) of  

the IPC.

11. In  view  of  the  above  discussion,  we  hold  that  the  

impugned judgment is legally unsustainable and is liable to  

be set aside and the matter deserves to be remanded to the  

High  Court  for  fresh  disposal  of  the  appeals  filed  by  the  

respondents.

12. In  the  result,  the  appeals  are  partly  allowed,  the  

impugned judgment is set aside and the matter is remanded  

to the High Court with the request to dispose of the appeals  

filed  by  the  respondents  expeditiously  after  giving  

opportunity of hearing to all the parties.  In the peculiar facts  

of the case, we direct that the respondents shall continue to  

remain on bail till the disposal of the appeals.

13. It is made clear that nothing said in this order should be  

treated as expression of  our  opinion on the merits  of  the  

case.  

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………………………….J. (G.S. Singhvi]

………………………….J. (Ranjana Prakash Desai)

New Delhi May 10, 2013  

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