THONGAM TARUN SINGH versus THE STATE OF MANIPUR on 30 April 2019

[2019] 7 S.C.R. 143

THONGAM TARUN SINGH

v.

THE STATE OF MANIPUR

(Criminal Appeal No. 805 of 2019)

APRIL 30, 2019

[R. BANUMATHI AND S. ABDUL NAZEER, JJ.]

Sentence/Sentencing: Gang rape of girl aged 16 years –Prosecution case was that accused no.1 picked up the victim in acar along with his friend accused no.2 and took her to a restaurantwhere he forcibly gave her a soft drink mixed with intoxicant –After taking the said drink, the victim fell unconscious – Thereafter,the accused-appellants committed rape on her – Appellantconvicted and sentenced to undergo rigorous imprisonment for fifteenyears with fine of Rs.25,000 for offence under s.376(2)(g) andrigorous imprisonment for 10 years for offence under s.120-B andboth the sentence were to run concurrently – In the instant appeal,the conviction was upheld – Challenge limited to quantum of sentence– Held: Prior to the amendment (Amendment Act 13 of 2013), forthe punishment under s.376(2)(g) IPC, it provided for rigorousimprisonment for a term not less than ten years but which may befor life and shall also be liable to fine – Prior to the amendment(Amendment Act 13 of 2013) by the proviso to s.376(2) IPC, theCourt was vested with the discretion that for adequate and specialreasons to be mentioned in the judgment, impose a sentence ofimprisonment of either description for a term of less than ten years– At the time of occurrence, appellant no. 1 was working as apolice driver and appellant no. 2 was a singer having goodreputation, performing as a singer on the stage and both theappellants were aged about 24-25 years – Both the appellants hadno criminal antecedents and they hailed from backward area – Thecertificate issued from the Jail Authorities showed their good andsatisfactory conduct and participation in the sports/garden activitiesand other programmes of the Jail – Therefore, in the facts andcircumstances of the case, the sentence of imprisonment of fifteenyears (for the conviction under s. 376(2)(g) IPC) and sentence ofimprisonment of ten years (for the conviction under s.120B IPC)

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[2019] 7 S.C.R.

Aare reduced to eight years and both the sentences are to runconcurrently – Penal Code, 1860 – s.376(2)(g) and s.120-B – Crimeagainst women.

Partly allowing the appeal, the Court

HELD: 1. The evidence of PW-5 and the owner of the HotelB(PW-3) and the materials adduced by the prosecution clearlyshowed that the victim was subjected to rape both by accusedno. 1 as well as accused no. 2. When the evidence adduced bythe prosecution was very clear that she was subjected to sexualintercourse by more than one person, the act clearly fell withinCExplanation 1 to Section 376 (prior to the Amendment Act 2013).In view of the evidence of PW-5 and other evidences, even thoughno charge was framed under Section 376(2)(g)IPC, the convictionof the appellants under Section 376(2)(g) IPC cannot be faulted.The evidence adduced by the prosecution in particular evidenceof the victim (PW-5), clearly showed that no serious prejudiceDwas caused to the appellants by conviction under Section 376(2)(g)IPC. [Para 9] [147-D-F; G; 148-A]

2. As far as quantum of sentence is concerned, Section376 IPC- punishment for rape has been amended by Act 13 of2013 (with retrospective effect from 03.02.2013). As per theEamended section, the minimum sentence of seven years isprovided for the offence of rape which may extend toimprisonment for life. After the amendment, no discretion wasvested with the Court to reduce the sentence. Prior to theamendment (Amendment Act 13 of 2013) for the punishmentFunder Section 376(2)(g) IPC, it provided for rigorousimprisonment for a term which shall not be less than ten yearsbut which may be for life and shall also be liable to fine. Prior tothe amendment (Amendment Act 13 of 2013) by the proviso toSection 376(2) IPC, the Court has been vested with the discretionthat for adequate and special reasons to be mentioned in theGjudgment, impose a sentence of imprisonment of eitherdescription for a term of less than ten years. What is ‘adequateand special reasons’ would depend upon several factors and nostrait-jacket formula can be imposed. No catalogue can beprescribed for adequacy of reasons nor instances can be cited H

regarding special reasons. They differ from case to case.[Paras 10, 11] [148-B-E]

3. At the time of occurrence, appellant no. 1 was workingas a police driver and appellant no. 2 was a singer having goodreputation, performing as a singer on the stage and both theappellants were aged about 24-25 years. In the facts andcircumstances of the case and that the appellants have no criminalantecedents and also the conduct of the appellants in the Jail(post conviction), the sentence of imprisonment of fifteen years(for the conviction under Section 376(2)(g) IPC) and sentence ofimprisonment of ten years (for the conviction under Section 120BIPC) are reduced to eight years. [Paras 12] [148-F-H; 149-A]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 805 of 2019.

From the Judgment and Order dated 30.04.2018 of the High Courtof Manipur at Imphal in Criminal Jail Appeal No. 2 of 2014.

With

Criminal Appeal No. 806 of 2019.

R. Basant, Sr. Adv., David A., Akshay Sahay, Akshay Girish Ringe,Maibam Nabaghanashyam Singh, Advs. for the Appellant.

Leishangthem Roshmani Kh, Ms. Anupama Ngangom,Ms. Maibam Babina, Advs. for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. These appeals arise out of the judgment dated 30.04.2018 passedby the High Court of Manipur at Imphal in Criminal Jail Appeal No. 2 of2014 and Criminal (Jail) Appeal No. 3 of 2014 in and by which the HighCourt has affirmed the conviction of the appellants under Section376(2)(g) IPC for committing the gang rape upon the victim and,accordingly, they were sentenced to undergo rigorous imprisonment fora period of fifteen years with a fine of Rs.25,000/-. The appellants werealso convicted for the offence under Section 120-B IPC and they were A

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Asentenced to undergo rigorous imprisonment for a period of ten yearsboth the sentences were to run concurrently.

3. Briefly stated the case of prosecution: Two appellants wereclose friends. On 20.10.2012 accused no. 1 said to have picked up thevictim (PW-5) aged about sixteen years and took her in a Maruti CarBand taken to a restaurant along with his friend – accused no.2. Further,case of prosecution is that the appellants have forcibly given a soft drinkmixed with intoxicant to the victim and after taking the said drink, shefell unconscious. Thereafter the appellants are said to have committedrape on her. The allegation is that when the victim regained her senses,she found that she was raped by accused no. 1 and also by accused no.C2 and, thereafter, she was dropped off. Complaint was lodged by themother of the victim on the next day on 21.10.2012, based on which FIRwas registered under Sections 376 IPC and 120-B IPC. On completionof the investigation, charge-sheet was filed and the appellants werecharged for the offences under Section 376 and Section 120-B IPC.

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4. Upon consideration of the oral evidence of PW-5 (Victim) andthe medical evidence and other evidence, the Trial Court convicted theappellant no. 1 and also appellant no. 2 under Section 120B IPC andSection 376(2)(g) IPC. For the conviction under Section 120B IPC, theappellants were sentenced to undergo rigorous imprisonment for a periodEof ten years with a fine of Rs.10,000/- each with default clause. For theconviction under Section 376 (2)(g) IPC, the appellants were sentencedto undergo rigorous imprisonment for a period of 15 years with a fine ofRs.25,000/- each with default clause. Both the sentences were orderedto be run concurrently. The conviction of the appellants and the sentenceof imprisonment imposed on each of them were affirmed by the HighFCourt as aforesaid in para (1). Being aggrieved, the appellants havepreferred these appeals.

5. By the orders dated 27[th] August, 2018 and 17[th] September,2018 this Court held that this Court is not inclined to interfere with theconviction of the appellants under Section 376(2)(g) IPC and SectionG120-B IPC. Notice was issued only limited to the quantum of sentence.

6. We have heard Mr. R. Basant, learned senior counsel and Mr.Maibam Nabaghanashyam Singh, learned counsel appearing on behalfof the appellants as well as Mr. Leishangthem Roshmani, learned counselappearing on behalf of the respondent-State of Manipur.

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7. The main contention of the learned senior counsel appearingon behalf of the appellant(s) is that charges were not framed against theappellants for the gang rape under Section 376(2)(g)IPC and while sothe Trial Court as well as the High court erred in convicting the appellantsunder Section 376(2)(g) IPC. Learned senior counsel further submittedthat without framing the charges for grievous offence, namely, Section376(2)(g) IPC, the Court ought not to have convicted under Section376(2)(g) IPC and urged us to keep this aspect in considering the quantumof sentence.

8. By perusal of the charges framed against the accused, it clearlyshows that charges were framed against the accused under Section 376IPC read with Section 120B IPC. In this regard, learned counsel appearingon behalf of the respondent - State of Manipur has drawn our attentionto Section 464 Cr.P.C. and submitted that no finding, sentence or orderby a Court of Competent Jurisdiction shall be deemed invalid merely onthe ground that no charge was framed unless failure of justice has infact been occasioned thereby.

9. From the evidence of PW-5 and the materials adduced by theprosecution, it is clearly brought in evidence that the victim was subjectedto rape both by accused no. 1 as well as accused no. 2. Referring to theevidences of PW-5 and the owner of the Hotel (PW-3), the High Courthas clearly recorded clear concurrent findings of fact that the victimwas subjected to rape by both the appellants. When the evidence adducedby the prosecution is very clear that she was subjected to sexualintercourse by more than one person, in our view, the act clearly fallswithin Explanation 1 to Section 376 (prior to the Amendment Act 2013)which reads as under:

Explanation 1 to Section 376

“Where a woman is raped by one or more in a group of personsacting in furtherance of their common intention, each of the personsshall be deemed to have committed gang rape within the meaningof this sub-section’.

Considering the evidence of PW-5 and other evidences, in ourconsidered view, even though no charge was framed under Section376(2)(g)IPC, the conviction of the appellants under Section 376(2)(g)IPC cannot be faulted. Considering the evidence adduced by the A

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Aprosecution in particular evidence of the victim (PW-5), We are of theview that no serious prejudice has been caused to the appellants byconviction under Section 376(2)(g) IPC.

10. So far as quantum of sentence is concerned, Section 376 IPC-punishment for rape has been amended by Act 13 of 2013 (withBretrospective effect from 03.02.2013). As per the amended section, theminimum sentence of seven years is provided for the offence of rapewhich may extend to imprisonment for life. After the amendment, nodiscretion is vested with the Court to reduce the sentence. Prior to theamendment (Amendment Act 13 of 2013) for the punishment underSection 376(2)(g) IPC, it provided for rigorous imprisonment for a termCwhich shall not be less than ten years but which may be for life and shallalso be liable to fine. Prior to the amendment (Amendment Act 13 of2013) by the proviso to Section 376(2) IPC, the Court has been vestedwith the discretion that for adequate and special reasons to be mentionedin the judgment, impose a sentence of imprisonment of either descriptionDfor a term of less than ten years.

11. The question falling for consideration is whether there areadequate and special reasons warranting exercise of discretion to reducethe sentence of imprisonment. What is ‘adequate and special reasons’would depend upon several factors and no strait-jacket formula can beEimposed. No catalogue can be prescribed for adequacy of reasons norinstances can be cited regarding special reasons. They differ from caseto case.

12. It is stated that at the time of occurrence, appellant no. 1 wasworking as a police driver and appellant no. 2 was a singer having goodFreputation, performing as a singer on the stage and both the appellantswere aged about 24-25 years, at the time of the occurrence. It is alsostated that both the appellants have no criminal antecedents and theyhail from backward area. Learned counsel for the appellants have alsoproduced certificate issued from the Jail Authorities to show that theconduct of the appellants (post conviction) are very good and satisfactoryGand they have been participating in the sports/garden activities and otherprogrammes of the Jail. Considering the facts and circumstances of thecase and that the appellants have no criminal antecedents and also theconduct of the appellants in the Jail (post conviction), the sentence ofimprisonment of fifteen years (for the conviction under Section 376(2)(g)

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IPC) and sentence of imprisonment of ten years (for the convictionunder Section 120B IPC) are reduced to eight years.

13. The sentence of imprisonment imposed upon each of theappellants is reduced to eight years. As directed by the Trial Court andthe High Court both the sentences are to run concurrently.

14. The appeals are partly allowed in above terms.

Devika Gujral

Appeals partly allowed.

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