JUDGMENT
K.G. Shah, J.
1. The respondent has been convicted for an offence punishable under Section 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/- and in default of payment of fine, he has been ordered to undergo further rigorous imprisonment for six months. It has been ordered that if the fine is recovered, the same should be made over to Atmaram, the father of the prosecutrix-girl Hansa for the benefit of that girl. The order of conviction and sentence has been passed by the learned Sessions Judge, Mehsana on October 21, 1988 in Sessions Case No. 94 of 1987. Contending that the sentence imposed upon the appellant by the trial Court is very much inadequate and is by any standard insufficient, keeping in view the minimum of 7 years’ rigorous imprisonment prescribed by Section 376 of the Indian Penal Code, and that there exists no special and adequate reasons, the State has come in appeal for enhancement of sentence imposed upon the respondent.
2. The facts of the case, in so far as they are relevant for the present purpose, may be stated as follows:
The victim of rape, i.e., the prosecutrix in this case, is girl Hansa, who was, at the time of the incident, hardly seven years of age. On May 11, 1987, i.e., the date of the incident, she was residing with her mother, Maniben P.W. 5, in a small room in a field at village Pamol. At about 10-00 a.m., Maniben, the mother of the prosecutrix, had gone to the market place for purchasing vegetables, leaving her children at her room. Hansa, the prosecutrix, was at the room and at that time the respondent came there and under an allurement to give her a mango, took away girl Hansa into the standing Bajra crop. In the Bajra crop, the respondent removed the knickers of the girl and brutally raped her. A little while later, the respondent came out of the Bajra crop and he was followed by the prosecutrix Hansa, who was weeping and bleeding from her private parts. Shivaji, P.W. 3, who was near the room, inquired from the prosecutrix as to what had happened and the prosecutrix told Shivaji that the respondent had beaten her. Soon thereafter, Maniben, the mother of the prosecutrix, arrived from the market place and she found that her daughter Hansa was weeping and that she was bleeding from her private parts. Maniben learnt from Shivaji that it was the respondent who had sexually assaulted Hansa. Taking Hansa with her, therefore, Maniben approached the respondent at the Railway Station and rebuked him for his behaviour. Thereupon, the respondent raised his Dharia at Maniben and threatened to kill Maniben. Maniben then returned to her field, called her relatives and took Hansa to Vijapur Hospital. Maniben was directed to the Police Station. She went to the Police Station and lodged an information, on the basis of which investigation was taken up, and on completion of the same the respondent was put up on trial.
3. The respondent pleaded not guilty to the charge and the prosecution led evidence. On conclusion of the evidence the learned Judge convicted and sentenced the respondent as aforesaid.
4. Mr. Nigam Shukla, the learned Additional Public Prosecutor, contended that in this case there are no special and adequate reasons to inflict upon the respondent less than the minimum sentence of 7 years, prescribed under Section 376 of the Indian Penal Code, and in the submission of Mr. Shukla, this is eminently a fit case wherein the maximum sentence of imprisonment for life as mandated by Section 376 of the Indian Penal Code should be inflicted upon the respondent.
5. Mr. K.G. Sheth, the learned Advocate for the respondent, supported the view of the learned Judge in the matter of sentence. Having heard the learned Advocates, we think the appeal should succeed.
6. Sub-section (1) of Section 376 of the Indian Penal Code, which is ^material for our purpose, reads as under:
376. Punishment for rapr: (I) 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 seven years and which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided 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 seven years.
A bare reading of the section clearly shows that once the accused is convicted for an offence punishable under Section 376 of the Indian Penal Code, the sentence to be imposed upon him shall not be less than seven years, but it may be for life or for a term which may extend to ten years. Of course, the Court is given a discretion to inflict upon the convict sentence of less than seven years, provided the Court finds adequate and special reason for so doing and such adequate and special reasons are required to be mentioned in the judgment itself. A quick look at the legislative change in the relevant law would not be out of place. The offence having been committed on May 11, 1987, the case is governed by Section 376 of the Indian Penal Code, as it obtains after that section was recast by Parliament Act No. 43 of 1983. Before that Act No. 43 of 1983 came on the statute book, Section 376 of the Indian Penal Code did not prescribe that the imprisonment for an offence under Section 376 of the Indian Penal Code shall not be less than seven years. Before the amendment in the law, the Court’s powers are not circumscribed in the matter of sentence, as they are after the amendment in the law. Before the amendment. Section 376 of the Indian Penal Code read as follows:
376. Punishment for rope – Whoever commits rape shall be punished with imprisonment for life, or with imprisonment of cither description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The shift in the legislative mandate is obvious, if we compare the two sections, one as it obtained before the amendment, and the other as it obtains to day after the amendment. By Act No. 43 of 1983, there were comprehensive amendments made in the laws relating to offences against women. The concept of minimum sentence for sexual offences and enhanced punishment for custodial and gang rape came to be introduced in the Indian Penal Code. In the Evidence Act, corresponding amendments were made which enables the Court to raise certain presumptions, on certain basic facts being established. In the Code of Criminal Procedure also, the required amendments were made. It is in the background of this legislative change that we have to decide the present appeal.
7. Coming to the facts of the case, the respondent, a man of 22 years of age, allured girl Hansa, who was hardly 7 years of age at the time of the incident by promising her a mango, took her into the standing Bajra crop, removed her knickers and raped her. The rape in the present case was, in our opinion, a monstrous act on the part of the respondent. There is evidence to show that soon after the rape, the prosecutrix was seen by her mother Maniben. At that time, the prosecutrix was bleeding from her private parts. Maniben, therefore, at first, approached the respondent to rebuke him, but the respondent drove her away by show of a Dharia, under a threat to kill her. Maniben, the mother, therefore, took her daughter to Vijapur Dispensary and she was referred to the police. She went to the police and lodged the information. The prosecutrix was then taken to Mehsana Civil Hospital for treatment, but as the facility for anesthatisation was not available at that hospital, she was referred to the Civil Hospital at Ahmedabad. The totality of the medical evidence produced in the case shows that the prosecutrix had suffered as follows, on account of being raped:
(1) 4 to 5 scratch marks over chin.
(2) Haematoma under tongue.
(3) Oedema & tenderness over vulva.
Hymen was torn.
There was a tear of about 1′ on the post vaginal wall.
There was another tear of parineal muscle and anal sphincter.
There was tear of the anterior rectal wall of about 1/2.
There was laceration over both the lateral vaginal walls.
8. There is evidence to show that the prosecutrix was required to be kept as an indoor patient in Civil Hospital, Ahmedabad, upto May 22, 1987, i.e., for about 11 days. Some of the injuries were required to be stitched or sutured. The facts emerging from the medical evidence on record clearly show that the prosecutrix, a girl of 7 years, was brutally and monstrously ravaged by the respondent. Some time after the incident when the mother of the prosecutrix went to rebuke the respondent for his conduct, the respondent stood up with a Dharia and threatened to kill the mother of the prosecutrix. These then are the relevant facts which should be considered for deciding the appropriate quantum of the sentence to be imposed upon the respondent.
9. As observed earlier, the Legislative mandate, after passing of the Act No. 43 of 1983, is that in case of rape, except for special and adequate reasons to be mentioned in the judgment, the minimum sentence shall be 7 years’ imprisonment. The learned Judge, for inflicting less than 7 years’ imprisonment upon the respondent, has of course given some reasons in his judgment. Before the learned Judge it was firstly contended that the respondent has a widowed mother and a younger sister to maintain and look after and the respondent has no property. The respondent did labour work and maintained himself, his widowed mother and sister. These submissions were made before the trial Court with a view to persuading to inflict upon the respondent less than the minimum sentence of seven years’ imprisonment prescribed under Section 376 of the Indian Penal Code. It appears that the submissions as aforesaid made before the learned Judge by the defence have weighed with him. In paragraph 12 of the judgment, the learned Judge has firstly said that keeping in mind the age of the victim as also the effect of the crime and the age of the respondent (22 years) and also keeping in mind the fact that the entire family of the respondent depends on him for maintenance, and bearing in mind the concept of reformation, it would be appropriate if minimum sentence of 3 years is imposed upon the respondent.
10. Then the learned Judge has said that besides the minimum sentence of 3 years, the respondent should also be ordered to pay fine, and awareness for recovery of the fine should also be shown. With a view to showing that awareness, the learned Judge has ordered that all the amount that the respondent might earn by doing labour work during Jail term should be recovered towards recovery of the fine. The learned Judge, in the final order, has also said that if the fine is recovered, the amount of the fine should be made over to the father of the victim for benefit of the victim.
11. The learned Judge has also relied upon the decision in the case of Aul Singh v. State of Haryana in order to inflict upon the respondent less than the minimum sentence prescribed under the statute.
12. The judgment in the case of Phul Singh, relied upon by the learned Judge has no application to the instant case, for reasons more than one. Firstly, Phul Singh’s case, came to be decided under the law as was available prior to the amendment of Section 376 of the Indian Penal Code by Act No. 43 of 1983. Under the law under which Phul Singh’s case came to be decided, there was no legislative mandate of a minimum sentence of seven years for an offence of rape under ordinary circumstances. Secondly, in Phul Singh’s case, as has been pointed out by the learned Judge, Pushpa, the prosecutrix, the victim of rape, was 24 years of age. Thirdly, the prosecutrix was the cousin of Phul Singh. The trial Court inflicted upon Phul Singh, rigorous imprisonment for four years for the offence of rape. The order of the trial Court was confirmed by the High Court. The Supreme Court reduced the sentence to two years’ rigorous imprisonment, not for the fact that Phul Singh was 22 years of age at the time of the incident, but for the fact that before the Supreme Court evidence was produced to show that not only Pushpa, the victim of the rape, but even her father-in-law had forgiven Phul Singh for his crime. Affidavit of the father-in-law of Pushpa was produced and the Counsel for Phul Singh stated before the Court that, if need be, he was ready to produce the statement from Pushpa on that line. It was on these facts that the Supreme Court reduced the sentence from 4 years’ rigorous imprisonment to 2 years’ rigorous imprisonment. As stated above, Phul Singh’s case was decided under the law before its amendment in 1983. The fact-pattern was entirely different. The victim was 24 years of age and the victim and her in-laws had forgiven Phul Singh. None of these factors is available in the present case. On the other hand, after the amendment, there is a legislative mandate of inflicting upon the convict for an offence of rape, a minimum sentence of 7 years, which was not the position in the law under which Phul Singh’s case was decided. The reliance so heavily placed by the learned Judge upon Phul Singh’s case, in our opinion, was wholly unjustified.
13. We have bestowed our anxious attention to the matter and we find that the reasons given by the learned Judge for inflicting upon the respondent less than the minimum sentence can never be said to be either special reasons or adequate reasons. The legislature contemplates that in order to inflict less than 7 years of imprisonment for an offence of rape, the Judge should mention in his judgment “adequate and special reasons”. It is clear from the legislative language that the reasons contemplated should both be adequate and special. Here, as we see the matter, the reasons given by the learned Judge are neither adequate nor special. The reasons have to be special to the facts and circumstances appearing on the record and they should be adequate for persuading the Court to inflict upon the convict less than 7 years’ imprisonment by way of sentence. So far as the facts and circumstances of the case arc concerned, the learned Judge has said that the respondent is 22 years of age and the family, consisting of the respondent, his widowed mother and his younger sister are dependent, for their maintenance, upon the respondent who, before the incident, was doing labour work. These are the only two reasons given by the learned Judge for not inflicting upon the respondent the minimum sentence of seven years prescribed under the statute. We do not think that the reasons given by the learned Judge, namely, that the respondent is 22 years of age and that his family is dependent upon him for maintenance can, in the facts and circumstances of the case, be said to be either special or adequate. The facts here are gruesome. The respondent, in order to satisfy his lust, victimised a girl of seven years of age and sexually assaulted her in such a brutal manner that there were several tears on her genital organs in the internal parts, as is clear from the evidence referred to by us hereinabove. To cap his offence, when he was sought to be rebuked, he threatened the mother of the girl at the point of a Dharia. This fact would show that the respondent was absolutely non-repentant. The learned Judge’s view that the theory of reformation would warrant less than minimum sentence, looking to the conduct of the respondent, cannot be justified.
14. Mr. Sheth, the learned Advocate for the respondent, submitted that the order of conviction and sentence has been recorded against the f respondent on October 21, 1988 and, by now, the respondent must have served out the sentence as imposed upon him by the trial Court. Therefore, This Court should not enhance the sentence. Mr. Sheth also submitted that by now the respondent must have settled in life and if the sentence is enhanced and if he is asked once again to go to Jail, that would be disturbing his settled life. None of these submissions of Mr. Sheth appeal to us. True, the order of conviction and sentence has been recorded against the respondent about 3 years and 10 months ago. The respondent must have undergone the sentence imposed upon him by the trial Court. But that fact standing by itself would be no ground for not inflicting upon him minimum sentence of 7 years, if that is the sentence warranted by the facts and circumstances of the case. We are conscious of the fact that the disposal of appeals is much delayed in Courts and the ideal should be to dispose of the appeals, and more particularly, criminal appeals, including criminal appeals for enhancement of sentence, as expeditiously as possible. However, in the circumstances in which the judiciary is working and with the backlog of more than 90,000 matters, delays are hound to occur, and do occur, in the matter of disposal of matters, much to our dislike. But that cannot be avoided. Therefore, to say that because of the pendency of this appeal, by now the respondent must have undergone the sentence imposed upon him by the trial Court and that more than three years have elapsed since the passing of the order of the trial Court and therefore the request for enhancement of sentence should not be granted would be frustrating the legislative mandate of minimum sentence of 7 years in a deserving case. In the present case, the learned Judge has inflicted upon the respondent rigorous imprisonment for three years. The State appeal for enhancement came to be filed on December 21, 1988 and the same was admitted on June 28, 1989. Because of the heavy backlog and arrears, the final hearing of the matter has taken about three years from the admission of the matter. If on account of these facts, the Courts were to refuse to inflict upon the convict condign punishment where it is warranted, they would be doing positive injustice to the society.
15. In this connection, the following observations of the Supreme Court in the case of Madan Gopal Kakkad v. Naval Dubey and Anr. wherein Tulsi Sheri, the girl who was a victim of the rape, was about 8 years of age, would be apposite:
‘Justice Demands, the Court awards’
57. Before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms.
58. We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand.
16. We are more than convinced in this case, that, there were no special and adequate reasons on the basis of which the trial Court can even remotely be said to have been justified in inflicting upon the respondent less than seven years’ rigorous imprisonment. In that view of the matter, we deem it our duty to enhance the sentence imposed upon the respondent.
17. Mr. Nigam Shukla, the learned Addl. Public Prosecutor, submitted that this is eminently a fit case, wherein imprisonment for life, or at least I ten years’ rigorous imprisonment, should be inflicted upon the respondent. We do not agree with the submission of Mr. Shukia. Though the fact mat the respondent was, at the time of the incident, 22 years of age, standing by itself may not be a sufficient ground for imposing upon him less man the minimum sentence of seven years, that fact would certainly weigh with the Court when it is asked to inflict upon the respondent the maximum sentence prescribed by law. In that view of the matter, we do not agree with the submission of Mr. Shukla that the maximum sentence prescribed under the law should be inflicted upon the respondent. At the same time, we feel that there being no justification for inflicting upon the respondent less than minimum sentence of seven years, This Court in its duty, to award appropriate punishment, to a convict in an offence like this, should enhance the sentence. We accordingly, partly allow the appeal and enhance the sentence imposed upon the respondent to seven years’ rigorous imprisonment, instead of three years’ rigorous imprisonment, as ordered by the learned trial Judge. The order about sentence of fine, the mode of recovery thereof and payment out of the amount of fine as compensation to the victim would stand as it is. Appropriate warrant for the arrest of the respondent should be issued and the respondent should serve out the sentence as imposed by This Court, less (minus) the sentence which he has already undergone in the present case.