State of M.P. Vs. Veerendra Singh & Anr.
EmailAppeal: Criminal Appeal No. 1352 of 2005
(Arising out of Special Leave Petition (Crl.) No.1905/2004)
(From the Judgment and Order dated 5.8.2003 of the Madhya Pradesh High Court in Crl. A. No. 712 of 2000)
(Arising out of Special Leave Petition (Crl.) No.1905/2004)
(From the Judgment and Order dated 5.8.2003 of the Madhya Pradesh High Court in Crl. A. No. 712 of 2000)
Petitioner: State of M.P.
Respondent: Veerendra Singh & Anr.
Apeal: Criminal Appeal No. 1352 of 2005
(Arising out of Special Leave Petition (Crl.) No.1905/2004)
(From the Judgment and Order dated 5.8.2003 of the Madhya Pradesh High Court in Crl. A. No. 712 of 2000)
(Arising out of Special Leave Petition (Crl.) No.1905/2004)
(From the Judgment and Order dated 5.8.2003 of the Madhya Pradesh High Court in Crl. A. No. 712 of 2000)
Judges: R.C. LAHOTI, CJI, G.P. MATHUR & P.K. BALASUBRAMANYAN, JJ.
Date of Judgment: Oct 20, 2005
Appearances:
Mr. Amit Mishra, Mr. C.D. Singh, Mr. Sanjay Kumar Singh, Mr. Gunratan Pandey and Ms. Kiran Suvarna, Advocates for the Appellant.
Head Note:
CRIMINAL LAWS
Indian Penal Code, 1860
Section 376(2)(g) – Sentence – Gang rape – Provision of law prescribing sentence of not less than 10 years’ which may extend to life imprisonment with fine – Trial Court awarding 10 years’ RI and fine – High Court reducing to the period already undergone, i.e. 4 years 8 months to one and 4 years & 3 months to other – No adequate and special reasons given. Held that sentence was illegal and far beyond the minimum. Orders set aside and matter remitted back for fresh consideration.
Indian Penal Code, 1860
Section 376(2)(g) – Sentence – Gang rape – Provision of law prescribing sentence of not less than 10 years’ which may extend to life imprisonment with fine – Trial Court awarding 10 years’ RI and fine – High Court reducing to the period already undergone, i.e. 4 years 8 months to one and 4 years & 3 months to other – No adequate and special reasons given. Held that sentence was illegal and far beyond the minimum. Orders set aside and matter remitted back for fresh consideration.
Held:
Sub-section (1) of Section 376 IPC provides that 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 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. In the category of cases covered under sub-section (2) of Section 376, the sentence cannot be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to sub-section (1) lays down 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 7 years. There is a similar proviso to sub-section (2) which empowers the court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is not only grossly inadequate but is also contrary to express provision of law. The High Court has not assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal. (Para 6)
That apart, the High Court has written a very short and cryptic judgment. To say the least, the appeal has been disposed of in a most unsatisfactory manner exhibiting complete non-application of mind. There is absolutely no consideration of the evidence adduced by the parties. (Para 7)
Cases Reffered:
1. Amar Singh v. Balwinder Singh (JT 2003 (2) SC 1) (Para 8)
JUDGEMENT:
G. P. MATHUR, J.
1. Delay in filing the special leave petition is condoned.
2. Leave granted.
3. This appeal has been preferred by the State of M.P. against the judgment and order dated 5.8.2003 of Justice N.S. Azad of M.P. High Court in Crl. Appeal No.712 of 2000.
4. The trial court convicted the accused under Section 376 (2)(g) IPC and sentenced each one of them to 10 years R.I. and a fine of Rs.5,000/- and in default to undergo R.I. for a further period of six months. The High Court partly allowed the appeal and while upholding the conviction of the accused under Section 376(2)(g) IPC reduced the sentence to the period already undergone which is nearly 4 years and 8 months for the first respondent and 4 years and 3 months for the second respondent.
5. Learned counsel for the appellant has submitted that the sentence imposed by the High Court is wholly inadequate looking to the nature of the offence and is contrary to the minimum prescribed by law.
6. Sub-section (1) of Section 376 IPC provides that 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 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. In the category of cases covered under sub-section (2) of Section 376, the sentence cannot be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to sub-section (1) lays down 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 7 years. There is a similar proviso to sub-section (2) which empowers the court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is not only grossly inadequate but is also contrary to express provision of law. The High Court has not assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal.
7. That apart, the High Court has written a very short and cryptic judgment. To say the least, the appeal has been disposed of in a most unsatisfactory manner exhibiting complete non-application of mind. There is absolutely no consideration of the evidence adduced by the parties.
8. Chapter XXIX of Code of Criminal Procedure deals with appeals. Section 384 CrPC empowers the appellate court to dismiss an appeal summarily if it considers that there is no sufficient ground for interference. Section 385 CrPC gives the procedure for hearing appeals not dismissed summarily and Section 386 CrPC gives the powers of the appellate court. In Amar Singh v. Balwinder Singh1, the duty of the appellate court while hearing a criminal appeal in the light of the aforesaid provisions was explained and para 7 of the report reads as under :
“7. The learned Sessions Judge after placing reliance on the testimony of the eye-witnesses and the medical evidence on record was of the opinion that the case of the prosecution was fully established. Surprisingly, the High Court did not at all consider the testimony of the eye witnesses and completely ignored the same. Section 384 CrPC empowers the appellate court to dismiss the appeal summarily if it considers that there is no sufficient ground for interference. Section 385 CrPC lays down the procedure for hearing appeal not dismissed summarily and sub-section (2) thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 CrPC lays down that after perusing such record and hearing the appellant or his pleader and the public prosecutor, the appellate court may, in an appeal from conviction, reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court of competent jurisdiction. It is, therefore, mandatory for the appellate court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eye-witness account, the testimony of the eye-witnesses is of paramount importance and if the appellate court reverses the finding recorded by the trial court and acquits the accused without considering or examining the testimony of the eye-witnesses, it will be a clear infraction of Section 386 CrPC. In Biswanath Ghosh v. State of West Bengal & Ors. AIR 1987 SC 1155 it was held that where the High Court acquitted the accused in appeal against conviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by prosecution, there was a flagrant mis-carriage of justice and the order of acquittal was liable to be set aside. It was further held that the fact that the public prosecutor conceded that there was no evidence, was not enough and the High Court had to satisfy itself upon perusal of the records that there was no reliable and credible evidence to warrant the conviction of the accused. In State of UP v. Sahai & Ors. AIR 1981 SC 1442 it was observed that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eye-witnesses and has rejected their evidence on the general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial mis-carriage of justice so as to invoke extraordinary jurisdiction of Supreme Court under Article 136 of the Constitution.”
9. Since the judgment of the High Court is not in accordance with law, we have no option but to set aside the same and to remit the matter back to the High Court for a fresh consideration of the appeal. The appeal preferred by the State of M.P. is accordingly allowed, the judgment and order of the High Court is set aside and the appeal is remanded to the High Court for a fresh hearing after issuing notice to the accused respondent. It is made clear that we have not gone into the merits of the case and the High Court shall reappraise and examine the evidence on record and decide the appeal in accordance with law.
1. Delay in filing the special leave petition is condoned.
2. Leave granted.
3. This appeal has been preferred by the State of M.P. against the judgment and order dated 5.8.2003 of Justice N.S. Azad of M.P. High Court in Crl. Appeal No.712 of 2000.
4. The trial court convicted the accused under Section 376 (2)(g) IPC and sentenced each one of them to 10 years R.I. and a fine of Rs.5,000/- and in default to undergo R.I. for a further period of six months. The High Court partly allowed the appeal and while upholding the conviction of the accused under Section 376(2)(g) IPC reduced the sentence to the period already undergone which is nearly 4 years and 8 months for the first respondent and 4 years and 3 months for the second respondent.
5. Learned counsel for the appellant has submitted that the sentence imposed by the High Court is wholly inadequate looking to the nature of the offence and is contrary to the minimum prescribed by law.
6. Sub-section (1) of Section 376 IPC provides that 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 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. In the category of cases covered under sub-section (2) of Section 376, the sentence cannot be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to sub-section (1) lays down 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 7 years. There is a similar proviso to sub-section (2) which empowers the court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is not only grossly inadequate but is also contrary to express provision of law. The High Court has not assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal.
7. That apart, the High Court has written a very short and cryptic judgment. To say the least, the appeal has been disposed of in a most unsatisfactory manner exhibiting complete non-application of mind. There is absolutely no consideration of the evidence adduced by the parties.
8. Chapter XXIX of Code of Criminal Procedure deals with appeals. Section 384 CrPC empowers the appellate court to dismiss an appeal summarily if it considers that there is no sufficient ground for interference. Section 385 CrPC gives the procedure for hearing appeals not dismissed summarily and Section 386 CrPC gives the powers of the appellate court. In Amar Singh v. Balwinder Singh1, the duty of the appellate court while hearing a criminal appeal in the light of the aforesaid provisions was explained and para 7 of the report reads as under :
“7. The learned Sessions Judge after placing reliance on the testimony of the eye-witnesses and the medical evidence on record was of the opinion that the case of the prosecution was fully established. Surprisingly, the High Court did not at all consider the testimony of the eye witnesses and completely ignored the same. Section 384 CrPC empowers the appellate court to dismiss the appeal summarily if it considers that there is no sufficient ground for interference. Section 385 CrPC lays down the procedure for hearing appeal not dismissed summarily and sub-section (2) thereof casts an obligation to send for the records of the case and to hear the parties. Section 386 CrPC lays down that after perusing such record and hearing the appellant or his pleader and the public prosecutor, the appellate court may, in an appeal from conviction, reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court of competent jurisdiction. It is, therefore, mandatory for the appellate court to peruse the record which will necessarily mean the statement of the witnesses. In a case based upon direct eye-witness account, the testimony of the eye-witnesses is of paramount importance and if the appellate court reverses the finding recorded by the trial court and acquits the accused without considering or examining the testimony of the eye-witnesses, it will be a clear infraction of Section 386 CrPC. In Biswanath Ghosh v. State of West Bengal & Ors. AIR 1987 SC 1155 it was held that where the High Court acquitted the accused in appeal against conviction without waiting for arrival of records from the Sessions Court and without perusing evidence adduced by prosecution, there was a flagrant mis-carriage of justice and the order of acquittal was liable to be set aside. It was further held that the fact that the public prosecutor conceded that there was no evidence, was not enough and the High Court had to satisfy itself upon perusal of the records that there was no reliable and credible evidence to warrant the conviction of the accused. In State of UP v. Sahai & Ors. AIR 1981 SC 1442 it was observed that where the High Court has not cared to examine the details of the intrinsic merits of the evidence of the eye-witnesses and has rejected their evidence on the general grounds, the order of acquittal passed by the High Court resulted in a gross and substantial mis-carriage of justice so as to invoke extraordinary jurisdiction of Supreme Court under Article 136 of the Constitution.”
9. Since the judgment of the High Court is not in accordance with law, we have no option but to set aside the same and to remit the matter back to the High Court for a fresh consideration of the appeal. The appeal preferred by the State of M.P. is accordingly allowed, the judgment and order of the High Court is set aside and the appeal is remanded to the High Court for a fresh hearing after issuing notice to the accused respondent. It is made clear that we have not gone into the merits of the case and the High Court shall reappraise and examine the evidence on record and decide the appeal in accordance with law.
