STATE OF HARYANAversusJANAK SINGH & ETC.

                       [2013] 5 S.C.R. 1144


A                     STATE OF HARYANA
                                 v.
                      JANAK SINGH & ETC.
             (Criminal Appeal Nos. 792-793 of 2013)
                          MAY 10, 2013
B
     [G.S. SINGHVI AND RANJANA PRAKASH DESAI, JJ.)

       Crime Against Women - Rape - Held: Rape is one of
  the most heinous crimes against women, which violates her
C right to life guaranteed under Article 21 of the constitution -
  Constitution of India, 1950 - Article 21.

       Bodhisattwa Gautam vs. Subhra Chakraborty (1996) 1
    sec 490:1995 (6) Suppl. SCR 731 - relied on.
D       Sentence/Sentencing - Rape case - Punishment for -
  High Court in appeal, maintaining the conviction of the
  accused persons, but reduced the sentence of imprisonment
  of accused No. 1 from 8 years to already undergone(i.e. more
  than 2 years) and of accused No. 2 from 4 years to already
E undergone (i.e. 1year10 months and 7 days) - On appeal,
  held: Sentence bargaining is impermissible in a serious office
  like rape - Minimum sentence for rape is 7 years as provided
  uls 376(1) /PC - The minimum sentence can be reduced only
  after assigning adequate and special reasons - The reasons
F must contain extenuating circumstances which prompted the
  court to reduce the sentence below the prescribed minimum
  - The courts are required to strictly abide by this legislative
  command - In the instant case, High Court heard the appeals
  in slipshod manner - Even if the accused did not press the
G appeals, it was the duty of the High Court to consider the
  propriety of conviction - The High Court could have reduced
  the sentence below the minimum prescribed under the Jaw
  only when it gave reasons containing extenuating

H                              1144
       STATE OF HARYANA v. JANAK SINGH                   1145


circumstance - High Court did not give any reason for             A
reducing the sentence and such a course is against the
mandate of s. 376(1) /PC, hence legally unsustainable -
Matter remanded to High Court for disposal afresh - Penal
Code, 1860 - s.376(1).
                                                                  B
    State of Karnataka vs. Krishnappa (2000) 4 SCC 75:
2000 (2) SCR 761; State of A.P. vs. Bodem Sundara
Rao(1995) 6 sec 230: 1995 (4) Suppl. SCR 48 - relied on.

                     Case Law. Referenc'e:
                                                                  c
    1995 (6) Suppl. SCR 731 relied on                Para 6
    2000 (2) SCR 761             relied on           Para 8
    1995 (4) Suppl. SCR 48       relied on           Para 9

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal              D
No. 792-793 of 2013.

     From the Judgment and Order dated 02,08.2010 of the
High Court of Judicature at Punjab and Haryana at Chandigarh
in Criminal Appeal No. 648-SB & 811-SB of 2000.                   E

    Narender Hooda, Sr. AAG, Dr Monika Gusain for the
Appellant.

    Kapil Arora, Dharitry Phookan, Vikrant Rana for the
Respondents.                                                      F

    The order of the Court was delivered by

    (SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
granted.
                                                                  G
    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 1)
under Sections 376 and 506 of the Indian Penal Code (for short,   H
    1146     SUPREME COURT REPORTS                 [2013] 5 S.C.R.


A   '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.

8         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
C   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
D   threatened to kill her in case she raised cries. They took her to
    a field of maize where 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
E   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
F   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
G 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 asked her to return the
H amount the prosecutrix and her mother were annoyed. This was


                                                             i '
        STATE OF HARYANA v. JANAK SINGH                   . 1147.
           [RANJANA PRAKASH DESAI, J.]
also the reason why he was falsely implicated in this case. In      A
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              B
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             c·
 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         D
 year. Respondent Janak Singh was convicted under Section
 376 read with 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            E
 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          F
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              G
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 prosecutrix going with      H
-
        1148    SUPREME COURT REPORTS                 (2013) 5 S.C.R.

    A 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
    B 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:
    c       "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.
    D
            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,
    E       sentence qua imprisonment of the appellants is reduced
            to already undergone by them.
            The present appeals stand disposed of accordingly."
           The High Court gave no reasons for reducing the sentence
    F to sentence already undergone.
           6. Rape is one of the most heinous crimes committed
      against a womari. It insults womanhood. It violates the dignity
      of a woman and erodes her honour. It dwarfs her personality
    G 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
    H 1. (1996) 1 sec 490.
         STATE OF HARYANA v. JANAK SINGH                      1149
           [RANJANA PRAKASH DESAI, J.]
guaranteed under Article 21 of the Constitution of India. In a 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.
                                                                        8
Offence of rape is punishable 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. The convict shall also be liable to fine. Proviso to Section
376(1) states that the court may, for adequate and special
reasons to pe mentioned in the judgment, impose a sentence              C
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           D
for an offence of rape shall not be less than seven years. When
the legislature provides for a minimum sentence and makes it
cle.ar 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        E
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 below the minimum i.e. less than
 seven years cannot be imposed. While imposing sentence on              F
 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 G
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
2.   c2000) 4 sec 75                                                    H
••

         1150    SUPREME COURT REPORTS                 [2013] 5 S.C.R.


     A   Section 376 of the IPC to .four years rigorous imprisonment.
         Severely commenting on this indiscretion, this Court observed
         as undel\--

              "Protection of society and deterring the criminal is the
             avowed object of law and that is required to be achieved
     B
              by imposing an appropriate sentence. The sentencing
              courts are expected to consider at/ 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
     c       justice by the society in cases of the heinous crime of
              rape on innocent helpless girls of tender years, as in this
              case, ahd respond by impQsition of proper sentence
              Public abhorrence of the crime needs reflection through
              imposition of appropriate sentence by the court. There
     D        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 ofjustice and the plea
     E        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
     F        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
     G        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
     H
         STATE OF HARYANA v. JANAK SINGH                    1151
           [RANJANA PRAKASH DESAI, J.]

      than long clauses of penal provisions, containing              A
      complex exceptions and provisos."

    9. In State of A.P. v. Bodem Sundara Rao3 , 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
                                                                     8
conviction, however, reduced the period of 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-
                                                                     c
      "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     D
      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       E
      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          F
      punishment. The heinous crime of committing rape on
      a helpless 13114 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      G
      the minimum prescribed by the Legisla;ture under
      Section 376(1) of the Act. n

      The above observations of this Court made:m Krishnaopa

3.   (1995) a sec 230.                                               H
•
        1152     SUPREME COURT REPORTS                 [2013) 5 S.C.R.


    A   and in Bodem Sundara Rao state what 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
    B   for the respondents did no~ 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
    C   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 merit~
    D   and pray for acquittal. Had the case been argued on merits,
        the High Court could have acquitted the respondents if it felt
        that the 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
    E   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
    F   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"
    G   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.
    H    Besides, at the cost of repetition, it must be stated that such a
         STATE OF HARYANA v. JANAK SINGH                   1153
           [RANJANA PRAKASH DESAI, J.]

course would be against the mandate of Section 376(1) of the        A
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        B
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     C
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    D
be treated as expression of our opinion on the merits of the
case.

K.K.T.                                Appeals partly allowed &
                               Matter remanded to High Court.