Tripura High Court
Sri Mahadeb Sarkar vs The State Of Tripura on 16 May, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
CRIMINAL APPEAL (J) NO.33 OF 2016
Sri Mahadeb Sarkar,
S/O - Late Sukumar Sarkar
Of Bhowlia Basti, Ambassa,
P.S - Ambassa,
District - Dhalai Tripura.
.... Appellant
-: Versus :-
The State of Tripura
..... Respondent
BEFORE THE HON'BLE THE CHIEF JUSTICE THE HON'BLE MR. JUSTICE S. TALAPATRA Counsel for the appellant : Mr. Ratan Datta, Advocate, Mr. S. Mahajan, Advocate.
Counsel for the respondent : Mr. S. Sarkar, P.P.
Date of hearing : 26-04-2017.
Date of Judgment & Order : 16-05-2017.
JUDGMENT & ORDER
This jail appeal is directed against the judgment dated 22-6-2010 passed by the learned Additional Sessions Judge, North Tripura in ST No. 5(NT/KMP) of 2009 convicting the appellant U/s 376(2)(f) IPC and sentencing him to undergo rigorous imprisonment for ten years with a fine of ₹2,000/- and, in default thereof, to suffer another simple imprisonment for two months.
2. The facts giving rise to this appeal are that in the morning of 14-4- 2008, the informant (Smt. Sandhya Debnath) had gone for work leaving behind her minor daughter (to be called "X" to conceal her identity) at her house. At about 9.30 AM, her daughter went to her and informed her that the appellant (Mahadev Sarkar) committed rape upon her. The informant noticed that there was bleeding from the private parts of X. This led the CRIMINAL APPEAL (J) NO.33 OF 2016 Page 1 of 7 informant to lodge a written ejahar with the O.C., Ambassa Police Station on the same day, and a police case being ABS PS Case No. 21/08 U/s 376 IPC was thereupon registered by the OC, who endorsed the case to S.I., Shri P. Das for investigation. After completion of the investigation, the IO of the case charge-sheeted the appellant to stand the trial under Section 376(2)(f) IPC, namely, committing rape upon a minor girl under the age of 12 years. The learned Additional Sessions Judge, having found a prima facie case against the appellant U/s 376(2)(f) IPC, framed the charge accordingly to which the appellant pleaded not guilty and claimed to be tried. In the course of trial thirteen witnesses including the victim, mother of the victim, medical officers and IO of the case were examined on behalf of the prosecution, while medical reports, seizure list and the seized materials, ossification test report of the victim, forensic report and the panty worn by the victim were exhibited by the prosecution. After examination of the appellant U/s 313 CrPC, the defense was asked if he would like to adduce evidence, but he declined to do so. At the conclusion of the trial, the appellant was found guilty of the charge by the impugned judgment. Aggrieved by this, this appeal is now preferred by him at a belated stage.
3. On perusing the evidence on record, particularly, the statement of the prosecutrix, which remained unshaken in the cross-examination, is truthful and trustworthy, we do not find any reason to upset the findings of the trial court, which has rightly convicted the appellant. Confronted with this, the submission of the learned counsel for the appellant is now confined to the quantum of sentence imposed upon the appellant. According to the learned counsel for the appellant, from the date of his conviction, the appellant has been incarcerated in jail and as he has already undergone almost seven years of imprisonment, he has already suffered sufficient punishment, which has become unbearable, and causing misery to his family. He further contends that the family condition of the appellant is becoming worse and worse in the absence of their sole earning CRIMINAL APPEAL (J) NO.33 OF 2016 Page 2 of 7 member, which, therefore, constitutes adequate and special reasons for reducing the sentence to the period already undergone by him in jail. We have carefully considered the submissions of the learned counsel for the appellant. The Apex Court in Dinesh alias Budha v. State of Rajasthan, (2006) 3 SCC 771, has the occasion to consider the legal position in this behalf and held:
"13. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. 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 rape is committed on a child below 12 years of age, is not less than 10 years' RI, though in exceptional cases "for special and adequate reasons" sentence of less than 10 years' RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard-and-fast rule can be laid down in that behalf of universal application." CRIMINAL APPEAL (J) NO.33 OF 2016 Page 3 of 7
4. The expression "adequate and special reasons" appearing in Section 376(1) and (2), IPC was explained by the Apex Court in State of M.P. v. Santosh Kumar, (2006) 6 SCC 1 in the following manner:
"17. Both in cases of sub-sections (1) and (2) of Section 376 the court has the discretion to impose a sentence of imprisonment less than the prescribed minimum for "adequate and special reasons". If the court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the prescribed minimum.
18. In order to exercise the discretion of reducing the sentence, the statutory requirement is that the court has to record "adequate and special reasons" in the judgment and not fanciful reasons which would permit the court to impose a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. What is adequate and special would depend upon several factors and no straitjacket formula can be indicated. What is applicable to the trial courts regarding recording reasons for a departure from minimum sentence is equally applicable to the High Court. The only reason indicated by the High Court is the young age of the accused and the fact that he belongs to a Scheduled Tribe. The same can by no stretch of imagination be considered either adequate or special. The requirement in law is cumulative."
5. Thus, the reason has to be not only adequate but should also be special and not fanciful reasons, which alone would permit the court to impose a sentence less than the prescribed minimum. In State of Rajasthan v. Madan Singh, (2008) 5 SCC 147, the respondent was found guilty of committing rape upon a minor girl aged about 10 years on 29-8- CRIMINAL APPEAL (J) NO.33 OF 2016 Page 4 of 7 1999. On the basis of the evidence adduced, the trial court found that the victim was aged about 10 years. It was, inter alia, submitted that the accused had suffered custody of about 6 years and, therefore, he being the only bread earner of the family and being of young age, the sentence should be reduced to the period already undergone. The plea was opposed by the State stating that in view of the statutory minimum sentence provided, no leniency was called for. The High Court found that the trial court was justified in holding the appellant guilty of the offence punishable under Section 376(2)(f) IPC. As the victim was aged about 10 years, it held that considering the factual position after assigning reason the minimum sentence could be reduced. Having so observed, the High Court reduced the sentence to seven years and a fine of Rs 5000 with default stipulation with the following conclusions was imposed:
"After having considered the entire matter and also taking into consideration the submission of learned counsel that the accused is a young person who is the only bread earner of his family and his kids who have now grown up need his supervision, I deem it proper to reduce his sentence under Section 376(2)(f) to a term of 7 years with fine of Rs 5000 in default, to further suffer one year's simple imprisonment and modify the order of the learned trial court to that extent."
6. Holding that the reasons indicated therein did not meet the requirement of law, the Apex Court set aside the judgment of the High Court reducing the sentence to 7 years of imprisonment and restored the sentence of 10 years imposed by the trial court. In the course of hearing, we repeatedly asked the learned counsel for the appellant on the existence of adequate and special reasons to reduce the sentence apart from the reasons indicated above by him, but he is unable to do so. As already noticed, some extraordinary reasons shall have to be shown by the CRIMINAL APPEAL (J) NO.33 OF 2016 Page 5 of 7 appellants to successfully invoke the proviso to Section 376(2)(f) IPC. We are also tempted to quote para 12 of the judgment of the Apex Court in Dinesh v. State of Rajasthan, (2006) 3 SCC 771, which read thus:
"12. 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. The 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 circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The courts must hear the loud cry for justice by society in cases of the heinous crime 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 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."
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7. For the reasons stated in the foregoing, there is no merit in this appeal, which is hereby dismissed. The appellant shall serve out the remaining period of his sentence. Transmit the L.C. record forthwith.
JUDGE CHIEF JUSTICE
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