STATE OF ANDHRA PRADESHversusPOLAMALA RAJU @ RAJARAO

                     STATE OF ANDHRA PRADESH                                     A
                                 v.
                     POLAMALA RAJU @ RAJARAO

                             AUGUST 9, 2000

 [DR. A.S. ANAND, CJ., R.C. LAHOTI AND K.G. BALAKRISHNAN, JJ.]                   B

      Indian Penal (ode-Section 376(2)-Rape of 5 year of old girl-
Accused convicted and sentenced to undergo JO years RI by Sessions Court-
High Court c011firming conviction-Reducing sentence to 5 years RI-No
special or adequate reasons shown-Held, sentence cannot be reduced               C
without proper application of mind.

      Practice and Procedure-Plea that fine may be imposed in place of
sentence o,f jail term-Due to long lapse o,f time--No mitigating circumstances
shown-Held, cannot be permitted in such cases.
                                                                                 D
      Penology-Sentencing in offence o,f rape .

       Respondent was tried for an offence under Section 376 IPC, for
committing rape on a S year old girl. The Sessions Judge convicted the
Respondent under Section 376 IPC and awarded a sentence of 10 years
R.I. and a fine, and in default of payment of fine simple imprisonment for       E
one week. On an appeal filed by the Respondent, Single Judge of the High
Court confirmed the conviction but reduced the period of sentence to S
years.

       In appeal to this Court by the State as against reduction of sentence,
the Amicuscurae submitted that because of the long time which has elapsed        F
subsequent to the date of offence aud the possibility that the prosecutrix as
also the Respondent may have settled in life, a fine instead of sentence of
jail be imposed.

      Allowing the appeal, this Court

      HELD : 1. It is an obligation of the sentencing court to consider all
                                                                                 G
relevant facts and circumstances bearing on the question of sentence and
impose a sentence commensurate with the gravity of the offence. The
sentencing court must hear the loud cry for justice by the society and more
particularly, in cases of heinous crime of rape of innocent helpless chil-
dren, as in this case, of the victim of crime and respond by imposing a          H
                                    329
    330                 SUPREME COURT REPORTS              [2000) SUPP. 2 S.C.R.
A   proper sentence. [332-F-G]

          2. The order contains no reasons, much less "special or adequate
    reasons". The sentence has been reduced in a rather mechanical manner
    without proper application of mind. The provisions of Section 376(2) IPC
    were not at all present to the mind of the Court. [333-B]
B
          State of A.P. v. Bedem Sundara Rao, [1995] 6 SCC 230 and State of
    Karnataka v. Krishnappa, [2000] 4 SCC 75, referred to.

          3. There are no extenuating or mitigating circumstances available on
    the record which may justify imposition of sentence less than the pre-
c   scribed minimum on the Respondent. To show mercy in a case like this,
    would be travesty of justice. There are no reasons, much less sufficient and
    adequate reasons available on the record to impose a lesser sentence than
    the prescribed minimum. Insofar as the judicial conscience is concerned
    there is no reason to go against the legislative mandate and award any
D   lesser sentence. [334-E; 335-A]

          4. The High Court, in the facts and circumstances of the case, was
    not at all justified in interfering with the proper exercise of discretion by
    the trial Court. The order of the high Court insofar as the reduction of
    sentence is concerned is set aside and the sentence of 10 years R.I., as
E   imposed by the Trial Court is restored. The Respondent shall be taken into
    custody to undergo the remaining sentence. (334-G]

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 629
    of 1996.

F         From the Judgment and Order dated 25.9.87 of the Andhra Pradesh High
    Court in Crl.A. No. 341 of 1986.

          Guntur Prabhakar and Ms. T. Anamika for the Appellant.

          A.S. Pundir (A.C.) for the Respondent.
G
          The Judgment of the Court was delivered :

          A little girl of five years of age was ravished by the respondent on 4th
                                                                                     (
    January, 1985 at about 2.00 P.M. taking advantage of her helpless state.

H         The respondent a neighbour of the prosecutrix living almost opposite her
                    STATE v. POLAMALA RAJU [ANAND, J.]                       331
house was tried for an offence under Section 376 IPC on an FIR lodged by the         A
father of the prosecutrix. The version of the prosecutrix regarding the commis-
sion of offence by the respondent, as narrated in court through her mother, PW-
 1 received ample corroboration from medical evidence and other evidence led
in ttir case. We are not repeating the prosecution version of the case or gist of
the evidence led in case for the simple reason that the learned Assistant
                                                                                     B
Sessions Judge, West Godavari, after recording evidence and hearing parties,
both on the question of conviction and sentence, vide order dated 9th Sept.
1985, convicted the respondent for an offence under Section 376 IPC. After
taking into account report of District Probation Officer, relating to the charac-
ter, conduct and antecedents of the respondent, the trial court awarded a
sentence of 10 years RI and a fine of Rs. 10 and in default, simple imprison-        C
ment for one week for the said offence. The convict filed an appeal, challenging
his conviction and sentence, which came to be heard by a learned Single Judge
of the High Court of A.P. The learned Single Judge, vide judgment, dated 15th
Sept. 1987, 'entirely' agreed with the conclusions arrived at by the trial court
and confirmed the conviction of the respondent for an offence under Section          D
376 IPC. However, the sentence was reduced to a period of five years R.I. while
maintaining the sentence of fine and imprisonment in default of payment of
fine.

      The respondent has not filed any appeal challenging his conviction and
sentence.                                                                            E
      The State is in appeal against reduction of sentence of the respondent by
the High Court.

       We have, with the assistance of learned counsel for the parties, examined
the record. In our opinion, both the trial court and the High Court were justified   F
in convicting the, respondent for an offence under Section 376 IPC as the
prosecution has established its case against the respondent beyond a reasonable
doubt through cogent and reliable evidence. We, accordingly, also confirm the
conviction of the respondent for the offence under Section 376 IPC.

      Was the High Court justified in interfering with the discretion exercised      G
by the Trial Court by reducing the sentence from 10 years R.l. to 5 years R.I.
for an offence under Section 376 IPC is the only question requiring our
consideration?

      Section 376 (2) IPC reads thus:
                                                                                     H
    332                 SUPREME COURT REPORTS                 [2000] SUPP. 2 S.C.R.
A           "376 Punishment for rape-( I)               *              *
            (2) Whoever,

                 (a)-(e)*                *               *             *
                (!)Commits rape on a woman when she is under twelve years of
B           age or

                 (g)      *              *               *             *
             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:
c
                   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 terms of less than ten years."

           The age of the prosccutrix in the instant case was admittedly five years
D   at the relevant time. Normal sentence under Section 376(2) IPC in a case where
    rape is committed on a child below 12 years of age, 'is not less than 10 years
    R.l.' an expression which is pre-emptory in nature. The courts are obliged to
    respect this legislative mandate when the case falls under the proviso. The
    proviso to section 376(2) IPC, however lays down that in exceptional cases,
E   "for special and adequate reasons" sentence of less than 10 years RI may also
    be awarded in a given case. The proviso, in our opinion, would come into play
    only when there are "adequate and special reasons" available in a case. Those
    reasons need lo be disclosed in the order/judgment itself so that the appellate
    forum is in a position to know as to what weighed with the court in awarding
    a sentence less than the minimum prescribed under the Act.
F
           We are of the considered opinion that it is an obligation of the sentencing
    court to consider all relevant facts and circumstances bearing on the question
    of sentence and impose a sentence commensurate with the gravity of the
    offence. The sentencing court must hear the loud cry for justice by the society
G   and more particularly, in cases of heinous crime of rape of innocent helpless
    children, as in this case of the victim of crime and respond by imposing a
    proper sentence.

           In the present case, the reasons given by the High Court in the instant
    case for reducing the ser,tence from the minimum 10 years is contained in the
H   last paragraph of the judgment which reads:
                   STATE v. POLAMALA RAJU [ANAND, J.]                        333
              "I entirely agree with the conclusions arrived at by the learned       A
         Assistant Sessions judge. I accordingly confirm the conviction im-
         posed by the Court below. But having regard to the circumstances of
         the case, the sentence of ten years R.l. imposed by the Court below is
         reduced to a period to .five years R.l. and The sentence of fine of Rs.
         IO shall stand."
                                                               (Emphasis ours)
                                                                                     B

       To say the least, the order contains no reasons, much less "special or
adequate reasons". The sentence has been reduced in a rather mechanical
manner without proper application of mind. It appears that the provisions of
section 376(2) IPC were not at all present to the mind of the court. This Court      c
has time and again drawn attention of the subordinate courts to the sensitivity
which is required of the court to deal with all cases and more particularly in
cases involving crime against women . In State of A.P. v. Bedem Sundara Rao,
[1995] 6 SCC 230, this Court said:

              "In recent years, we have noticed that crime against women are         D
         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
                                                                                     E
         respond to the societys cry for justice against such criminals. Public
         abhorrence of the crime needs a r~flection 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 the crime
         and the society at large while considering imposition of the appropriate    F
         punishment. The heinous crime of committing rape on a helpless 13/
         14 year old girl shakes our judicial conscience. The offence was
         inhumane."
                                                                  (Emphasis ours)

       Again, in the case of State of Kamataka V. Krishnappa, [2000] 4 sec           G
75, this court pointed out that rape is not merely a physical assault, it is an
offence which is destructive of the whole personality of the victim of crime and
Courts shoulder a great responsibility while trying an accused on charges of
rape and must deal with such cases with utmost sensitivity. Referring to im-
position of punishment in such cases, it was opined:                                 H
    334                 SUPREME COURT REPORTS                 (2000] SUPP. 2 S.C.R.
A          "The measure of punishment in a case of rape cannot clepend upon the
    social status of the victim of 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. The socio-economic status, religion, race, caste or creed of the accused
    or the victim are irrelevant considerations in sentencing policy. Protection of
B
    society and deterring the c:rimina/ is the avowed object of law and that is
    required to be achived by imposing an appropriate se111ence. 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."
c                                                               (Emphasis supplied)

          In the instant case. we have perused the record. we have noticed the
    "reasons" for reduction of sentence. We arc unhappy with the manner in which
    the sentence has been reduced from the statutory minimum of 10 years R.I. to
    5 years R.I.
D
          We have given due consideration to the plea raised by learned Amicus
    on behalf of the respondent that it being an old case the order of the High Court
    need not be interfered with. We arc unable to persuade ourselves to agree with
    the submission. We do not find any extenuating or mitigating circumstances
E   available on the record which may justify imposition of sentence less than the
    prescribed minimum on the respondent. To show mercy in a case like this,
    would be travesty of justice. There are no reasons, much less sufficient and
    adequate reasons available on the record to impose a lesser sentence than the
    prescribed minimum.

F          The High Court, in the facts and circumstances of the case was not at
    all justified in interfering with the proper exercise of discretion by the trial
    court. We therefore, set aside the order of the High Court insofar as the
    reduction of sentence is concerned and restore the sentence of 10 years R.I. as
    imposed by the Trial Court. The respondent shall be taken into custody to
G   undergo the remaining sentence.

          The learned Amicus lastly submitted that because of long time which has
    elapsed subsequent to the date of offence and the possibility that the prosecutrix,
    as also the respondent, may have got married and settled in life during the
    pendency of these proceedings, fine instead of sentence be imposed. We cannot
H   agree. These factors may be relevant for consideration by the Executive or
                       STATE v. POLAMALA RAJU [ANAND, J.]                       335
    Constitutional authorities if they chose to remit the sentence on being so          A
    approached, as opined in Kamal Kishore V. State of H.P., (2000] 4 sec 502,
    Pr. 25 case (supra), but insofar as our judicial conscience is concerned, we find
    no reason to go against the legislative mandate and award any lesser sentence.

           The appeal succeeds and is allowed in the above terms.
                                                                                        B
    V.M.                                                           Appeal allowed.




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