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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 805 OF 2019      (@ SPECIAL LEAVE PETITION (CRIMINAL) NO.6779 OF 2018)

THONGAM TARUN SINGH                               ...APPELLANT(S)

                               VERSUS

THE STATE OF MANIPUR                             ...RESPONDENT(S)

  WITH

CRIMINAL APPEAL No. 806 OF 2019        (@ SPECIAL LEAVE PETITION (CRIMINAL)NO.7477 OF 2018)

J U D G M E  N T

R.BANUMATHI,J.

Leave granted.

2. These  appeals  arise  out  of  the  judgment  dated

30.04.2018 passed by the High Court of Manipur at Imphal in

Criminal  Jail  Appeal  No.  2  of  2014  and  Criminal  (Jail)

Appeal No. 3 of 2014 in and by which the High Court has

affirmed  the  conviction  of  the  appellants  under  Section

376(2)(g) IPC for committing the gang rape upon the victim

and, accordingly, they were sentenced to undergo rigorous

imprisonment for a period of fifteen years with a fine of

Rs.25,000/-.  The  appellants  were  also  convicted  for  the

offence under Section 120-B IPC and they were sentenced to

undergo rigorous imprisonment for a period of ten years both

the sentences were to run concurrently.

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3. Briefly stated the case of prosecution: Two appellants

were close friends. On 20.10.2012 accused no. 1 said to have

picked up the victim (PW-5) aged about sixteen years and

took her in a Maruti Car and taken to a restaurant along

with his friend – accused no.2. Further, case of prosecution

is  that the  appellants have  forcibly given  a soft  drink

mixed with intoxicant to the victim and after taking the

said drink, she fell unconscious.  Thereafter the appellants

are said to have committed rape on her. The allegation is

that when the victim regained her senses, she found that she

was raped by accused no. 1 and also by accused no. 2 and,

thereafter, she was dropped off.  Complaint was lodged by

the mother of the victim on the next day on 21.10.2012,

based on which FIR was registered under Sections 376 IPC and

120-B IPC.  On completion of the investigation, charge-sheet

was filed and the appellants were charged for the offences

under Section 376 and Section 120-B IPC.

4. Upon  consideration  of  the  oral  evidence  of  PW-5

(Victim) and the medical evidence and other evidence, the

Trial Court convicted the appellant no. 1 and also appellant

no. 2 under Section 120B IPC and Section 376(2)(g) IPC.  For

the conviction under Section 120B IPC, the appellants were

sentenced to undergo rigorous imprisonment for a period of

ten  years  with  a  fine  of  Rs.10,000/-  each  with  default

clause. For the conviction under Section 376 (2)(g) IPC, the

appellants were sentenced to undergo rigorous imprisonment

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for a period of 15 years with a fine of Rs.25,000/- each

with default clause. Both the sentences were ordered to be

run concurrently. The conviction of the appellants and the

sentence  of  imprisonment  imposed  on  each  of  them  were

affirmed by the High Court as aforesaid in para (1). Being

aggrieved, the appellants have preferred these appeals.

5. By  the  orders  dated  27th August,  2018  and  17th

September,  2018  this  Court  held  that  this  Court  is  not

inclined to interfere with the conviction of the appellants

under Section 376(2)(g) IPC and Section 120-B IPC. Notice

was issued only limited to the quantum of sentence.

6. We have heard Mr. R. Basant, learned senior counsel

and  Mr.  Maibam  Nabaghanashyam  Singh,  learned  counsel

appearing  on  behalf  of  the  appellants  as  well  as  Mr.

Leishangthem Roshmani, learned counsel appearing on behalf

of the respondent-State of Manipur.

7. The  main  contention  of  the  learned  senior  counsel

appearing on behalf of the appellant(s) is that charges were

not framed against the appellants for the gang rape under

Section 376(2)(g)IPC and while so the Trial Court as well as

the  High  court  erred  in  convicting  the  appellants  under

Section  376(2)(g)  IPC.  Learned  senior  counsel  further

submitted  that  without  framing  the  charges  for  grievous

offence, namely, Section 376(2)(g) IPC, the Court ought not

to have convicted under Section 376(2)(g) IPC and urged us

to keep this aspect in  considering the quantum of sentence.

8. By perusal of the charges framed against the accused,

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it  clearly  shows  that  charges  were  framed  against  the

accused under Section 376 IPC read with Section 120B IPC. In

this  regard,  learned  counsel  appearing  on  behalf  of  the

respondent - State of Manipur has drawn our attention to

Section 464 Cr.P.C. and submitted that no finding, sentence

or  order  by  a  Court  of  Competent  Jurisdiction  shall  be

deemed  invalid  merely  on  the  ground  that  no  charge  was

framed unless failure of justice has in fact been occasioned

thereby.

9. From the evidence of PW-5 and the materials adduced by

the prosecution, it is clearly brought in evidence that the

victim was subjected to rape both by accused no. 1 as well

as accused no. 2. Referring to the evidences of PW-5 and the

owner  of  the  Hotel  (PW-3),  the  High  Court  has  clearly

recorded clear concurrent findings of fact that the victim

was  subjected  to  rape  by  both  the  appellants.  When  the

evidence adduced by the prosecution is very clear that she

was subjected to sexual intercourse by more than one person,

in our view, the act clearly falls within Explanation 1 to

Section 376 (prior to the Amendment Act 2013) which reads as

under:

Explanation  1 to Section 376

“Where a woman is raped by one or more in a group of persons acting in furtherance of their common  intention,  each  of  the  persons  shall  be deemed  to  have  committed  gang  rape  within  the meaning of this sub-section’.

Considering the evidence of PW-5 and other evidences, in our

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considered  view,  even  though  no  charge  was  framed  under

Section 376(2)(g)IPC, the conviction of the appellants under

Section 376(2)(g) IPC cannot be faulted.  Considering the

evidence adduced by the prosecution in particular evidence

of the victim (PW-5), We are of the view that no serious

prejudice has been caused to the appellants by conviction

under Section  376(2)(g) IPC.  

10. So far as quantum of sentence is concerned, Section

376 IPC- punishment for rape has been amended by Act 13 of

2013 (with retrospective effect from 03.02.2013). As per the

amended  section,  the  minimum  sentence  of  seven  years  is

provided  for  the  offence  of  rape  which  may  extend  to

imprisonment for life. After the amendment, no discretion is

vested with the Court to reduce the sentence. Prior to the

amendment  (Amendment  Act  13  of  2013)  for  the  punishment

under  Section  376(2)(g)  IPC,  it  provided  for  rigorous

imprisonment for a term which shall not be less than ten

years but which may be for life and shall also be liable to

fine. Prior to the amendment (Amendment Act 13 of 2013) by

the proviso to Section 376(2) IPC, the Court has been vested

with the discretion that 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.

11. The  question  falling  for  consideration  is  whether

there are adequate and special reasons warranting exercise

of discretion to reduce the sentence of imprisonment. What

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is ‘adequate and special reasons’  would depend upon several

factors  and  no  strait-jacket  formula  can  be  imposed.  No

catalogue  can  be  prescribed  for  adequacy  of  reasons  nor

instances  can  be  cited  regarding  special  reasons.  They

differ from case to case.   

12. It  is  stated  that  at  the  time  of  occurrence,

appellant no. 1 was working as a police driver and appellant

no. 2 was a singer having good reputation, performing as a

singer on the stage and both the appellants were aged about

24-25 years,  at the  time of  the occurrence.  It is  also

stated that both the appellants have no criminal antecedents

and they hail from backward area. Learned counsel for the

appellants have also produced certificate issued from the

Jail Authorities to show that the conduct of the appellants

(post conviction) are very good and satisfactory and they

have been participating in the sports/garden activities and

other  programmes  of  the  Jail.  Considering  the  facts  and

circumstances of the case and that the appellants have no

criminal antecedents and also the conduct of the appellants

in the Jail (post conviction), the sentence of imprisonment

of fifteen years (for the conviction under Section  376(2)

(g) IPC) and sentence of imprisonment of ten years (for the

conviction  under  Section  120B  IPC)  are  reduced  to  eight

years.

13. The sentence of imprisonment imposed upon each of the

appellants is reduced to eight years. As directed by the

Trial Court and the High Court both the sentences are to run

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concurrently.

14. The appeals are  partly allowed in above terms.

…………………………………………………………...J. [R. BANUMATHI]

NEW DELHI ………………………………………………………….J. 30TH APRIL, 2019 [S. ABDUL NAZEER]