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

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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

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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

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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.

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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

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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.

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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:

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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:

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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

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Page 10 (f) Commits rape on a woman when she is under twelve years of

age; or

(g) Commits gang rape, shall be punished with 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.

Provided 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.”

11)A perusal of the above provision shows that the

legislative mandate is to impose a sentence, for the offence

of gang rape, for a term, which shall not be less than 10

years, but it may extend to life and shall also be liable to

fine. The proviso to Section 376(2) IPC, of course, lays down

that the Court may, for adequate and special reasons to be

mentioned in the judgment, impose sentence of

imprisonment of either description for a term of less than

10 years. Thus, the normal sentence in a case where gang

rape is committed is not less than 10 years though in

exceptional cases, the Court by giving “ special and

adequate reasons", can also award the sentence of less

than 10 years.

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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

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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

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Page 13 special reasons. He submitted the following: Shishna Devi (PW2)

has since been married to another person and she is now

mother of children and is well-settled in life. The accused was

aged 23 when the offence was committed and now he is 34, but

he remains unmarried. He says that on two occasions his

marriage had reached the stage of engagement but both had to

be dropped off before reaching the stage of marriage due to the

social stigma and disrepute which surrounded him. These are

the reasons which he advanced for extending the benefit of the

proviso.

24. Those circumstances pleaded by him are not special

reasons for tiding over the legislative mandate for imposing the

minimum sentence. We, therefore, enhance the sentence for

the offence under Section 376 I.P.C. to imprisonment for 7

years.”

Similar view was taken in the State of A.P. vs.

Polamala Raju @ Rajarao (2000) 7 SCC 75.

16)In State of M.P. vs. Bala @ Balaram (2005) 8 SCC 1,

this Court held that the long pendency of the criminal trial

or offer of the rapist to marry the victim are no relevant

reasons for exercising the discretionary power under the

proviso of Section 376(2) IPC. This Court further held as

under:

“11. 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 I.P.C. 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 Section 376(1) and 376(2) I.P.C.

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Page 14 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.

12. The punishments prescribed by the Penal Code reflect the

legislative recognition of the social needs, the gravity of the

concerned offence, its impact on the society and what the

legislature considers as a punishment suitable for the particular

offence. It is necessary for the courts to imbibe that legislative

wisdom and to respect it.”

17)In State of Karnataka vs. Krishnappa (2000) 4 SCC

75, a three-Judge Bench of this Court held that the socio-

economic status, religion, race, caste or creed of the

accused are irrelevant considerations in the sentencing

policy. It was further held:

“18. The High Court however, differed with the reasoning of the

Trial Court in the matter of sentence and as already noticed, the

reasons given by the High Court are wholly unsatisfactory and

even irrelevant. We are at a loss to understand how the High

Court considered that the "discretion had not been properly

exercised by the Trial Court". There is no warrant for such an

observation. The High Court justified the reduction of sentence

on the ground that the accused respondent was

"unsophisticated and illiterate citizen belonging to a weaker

section of the society" that he was "a chronic addict to drinking"

and had committed rape on the girl while in state of

"intoxication" and that his family comprising of "an old mother,

wife and children" were dependent upon him. These factors, in

our opinion did not justify recourse to the proviso to Section

376(2) IPC to impose a sentence less than the prescribed

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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.

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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

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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

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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

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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

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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)

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Page 21 …....……………………………………J.

(RANJAN GOGOI)

NEW DELHI;

AUGUST 27, 2013.

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