BHAGGI @ BHAGIRATH @ NARANversusSTATE OF MADHYA PRADESH

            [2024] 2 S.C.R. 111 : 2024 INSC 82

               Bhaggi @ Bhagirath @ Naran
                             v.
               The State of Madhya Pradesh
         (Special Leave Petition (Crl). 2888 of 2023)
                         05 February 2024
        [C.T. Ravikumar and Rajesh Bindal, JJ.]

                      Issue for Consideration
The capital punishment awarded to the petitioner-convict for the
conviction u/s. 376 AB, IPC was not confirmed and it was commuted
to imprisonment for life, which, going by the provisions thereunder,
means imprisonment for the remainder of the convict’s natural life.
The only question is whether the commutation of capital punishment
to sentence of life imprisonment requires further interference.

                              Headnotes
Sentence/Sentencing – Modification of sentence – Allegation
that petitioner-convict took 7 year old girl to a temple and raped
her – Trial Court convicted petitioner u/s. 376 AB – Though,
the petitioner was also convicted u/s. 376 (2) (i) and u/ss.
3/4, s. 5(d)/6 of the POCSO Act taking note of his conviction
u/s. 376 AB, IPC, no separate sentences were awarded for
the aforesaid offences by the trial Court – The High Court
commuted it to imprisonment for life – Propriety:
Held: The evidence would reveal that unmindful of the holiness of
the place petitioner disrobed victim and himself and raped her –
When such an act was done by the petitioner, who was then aged
40 years and X who was then aged only 7 years and the evidence
that when PW-2 and PW-14 reached the place of occurrence,
blood was found oozing from the private parts of the disrobed
child – The High Court had rightly considered the aggravating and
mitigating circumstances while commuting the capital sentence
into life imprisonment which going by the provisions u/s. 376 AB,
IPC means rest of the convict’s natural life – For effecting such
commutation, the High Court also considered the question whether
there is possibility for reformation and rehabilitation of the petitioner
and opined that it is not a case in which the alternative punishment
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       would not be sufficient in the facts of the case – But then, it is
       noted that if the victim is religious every visit to any temple may
       hark back to her the unfortunate, barbaric action to which she was
       subjected to – So also, the incident may haunt her and adversely
       impact in her future married life – On consideration of all such
       aspects, a fixed term of sentence of 30 years, which shall include
       the period already undergone, must be the modified sentence of
       imprisonment – The convict is also liable to suffer a sentence of fine
       which shall be just and reasonable to meet the medical expenses
       and rehabilitation of the victim which is quantified as Rupees One
       Lakh and the same shall be paid to the victim with respect to the
       conviction u/s. 363, IPC. [Paras 15, 16, 17]

                                Case Law Cited
            Union of India v. V. Sriharan alias Murugan and Ors.,
            [2015] 14 SCR 613 :(2016) 7 SCC 1 – followed.
            Mulla v. State of U.P, [2010] 2 SCR 633 : (2010) 3
            SCC 508; Shiva Kumar @ Shiva @ Shivamurthy v.
            State of Karnataka, [2023] 4 SCR 669 : (2023) 9 SCC
            817 – relied on.
            Bantu alias Naresh Giri v. State of M.P., [2001] 4 Suppl.
            SCR 298 : (2001) 9 SCC 615; Amrit Singh v. State of
            Punjab, [2006] 8 Suppl. SCR 889 : (2006) 12 SCC
            79; Rameshbhai Chandubhai Rathod (2) v. State of
            Gujarat, [2011] 1 SCR 829 : (2011) 2 SCC 764; Swamy
            Shraddananda (2) alias Murali Manohar Mishra v. State
            of Karnataka, [2008] 11 SCR 93 : (2008) 13 SCC 767
            – referred to.

                                   List of Acts
       Penal Code, 1860; Code of Criminal Procedure, 1973; Protection
       of Children from Sexual Offences Act, 2012

                                List of Keywords
       Sentence; Sentencing; Modification of sentence; Fixed term of
       sentence; Capital Punishment; Capital Punishment commuted to
       imprisonment for life; Rape of a minor; Fine; Medical expenses
       and rehabilitation of the victim.
[2024] 1 S.C.R.                                                       113

     Bhaggi @ Bhagirath @ Naran v. The State of Madhya Pradesh



                           Case Arising From

     CRIMINAL APPELLATE JURISDICTION : Special Leave Petition
     (Crl.) No.2888 of 2023
     From the Judgment and Order dated 11.10.2018 of the High Court of
     M.P. Principal Seat at Jabalpur in CRA No.5725 of 2018
                        Appearances for Parties
     Mrs. K. Sarada Devi, R. Vijay Nandan Reddy, V. Krishna Swaroop,
     Advs. for the Appellants.
     Mrs. Ankita Chaudhary, AAG, Ms. Mrinal Gopal Elker, Abhimanyu
     Singh-G.A., Abhijeet Pandove, Advs. for the Respondent.
                Judgment / Order of the Supreme Court
                                    Order
1.   The petitioner-convict seeks to assail the judgment dated 11.10.2018
     of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal
     No. 5725 of 2018.
2.   In troth, it is a common judgment in Criminal Reference No.6/2018
     submitted by the Trial Court under Section 366 of the Code of Criminal
     Procedure, 1973 (Cr.PC) for confirmation of the conviction under
     Section 376 AB of the Indian Penal Code, 1860 (IPC) as amended
     by Act No. 22 of 2018 and in Criminal Appeal No. 5725 of 2018
     filed by the petitioner-convict herein aggrieved by the conviction and
     sentence imposed against him for certain other offences under the
     IPC, as also against the conviction under the Protection of Children
     from Sexual Offences Act, 2012 (for short, ‘POCSO Act’). As per the
     impugned judgment, the capital punishment awarded for the conviction
     under Section 376 AB, IPC was not confirmed and it was commuted
     to imprisonment for life, which, going by the provisions thereunder,
     means imprisonment for the remainder of the convict’s natural life.
3.   Heard the learned counsel appearing for the petitioner-convict and
     the learned Additional Advocate General for the State of Madhya
     Pradesh.
4.   It is to be noted that in the instant case, after condoning the delay,
     limited notice on the question of sentence alone was issued on
     24.02.2023. Since we do not find any reason to enlarge the scope,
     the parties confined their arguments within the permissible scope.
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5.     We are of the considered view that for considering the aforesaid
       question it is apposite to refer succinctly to the facts of the case.
       On 21.05.2018, the complainant Munni Bai (PW-8) who is the
       grandmother of the victim lodged a report that her granddaughter
       X, who was examined as PW-1, aged 7 years was kidnapped and
       raped by the petitioner-convict. After the trial, the Trial Court found
       that the prosecution had succeeded in bringing damning evidence
       to establish that the victim, aged 7 years was taken to Rajaram
       Baba Thakur Mandir by the petitioner-convict and there upon making
       her and himself nude he committed rape. Upon her screaming, the
       prosecution witnesses who went there found the convict, belonging
       to the same village, laying over and violating the victim and at
       their sight running away from there. The oral testimonies of the
       prosecution witnesses (PWs-1, 2 and 14) on the culpability of the
       convict got credence from the medical evidence unerringly pointing
       to his guilt. The consequential conviction inter alia, under Section
       376 AB, IPC as amended by Act No. 22 of 2018, originally, brought
       him capital sentence. Though, the petitioner was also convicted
       under Section 376 (2) (i) and under Sections 3/4, Sections 5(d)/6
       of the POCSO Act taking note of his conviction under Section 376
       AB, IPC, no separate sentences were awarded for the aforesaid
       offences by the trial Court. In view of the commutation of capital
       punishment awarded for the conviction under Section 376 AB,
       IPC it is also a matter to be considered if we interfere with the
       sentence of life imprisonment for the offence under Section 376
       AB, IPC as amended under the Act No. 22 of 2018.
6.     As noticed hereinbefore, on appreciating the evidence on record
       and coming to the conclusion that the guilt of the petitioner under
       Section 376 AB, IPC has been conclusively proved, but capital
       punishment imposed therefor, is to be commuted while confirming the
       conviction under Section 376 AB, IPC. The High Court commuted it
       to imprisonment for life though another alternative punishment was
       also possible viz. rigorous imprisonment for a term not less than 20
       years with fine.
7.     In the decision in Mulla v. State of U.P.1, this Court held:-


1    [2010] 2 SCR 633 : (2010) 3 SCC 508
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             “85……...It is open to the sentencing court to prescribe
             the length of incarceration. This is especially true in
             cases where death sentence has been replaced by life
             imprisonment…...”
8.    Evidently, the decision in Mulla’s case (supra) and a catena of
      decisions where death sentence was commuted to the imprisonment
      for life including the decisions in Bantu alias Naresh Giri v. State
      of M.P. 2, Amrit Singh v. State of Punjab 3 and Rameshbhai
      Chandubhai Rathod (2) v. State of Gujarat4 were considered by
      the High Court while commuting capital sentence to imprisonment
      for life. A bare perusal of all those decisions would reveal that those
      are cases involving rape and murder of young girls aged between 4
      to 12 years. It is true that after referring to those decisions the High
      Court, in the instant case held in paragraph 34 of the impugned
      judgment thus:-
             “ln the present case the important consideration is the
             manner in which the alleged offence is committed. The
             evidence of Dr. Saroj Bhuriya (PW -3) is relevant. She
             stated that there was no external injury on the person of the
             prosecutrix, specially on her neck, chick, chest, abdomen
             and thigh. She also did not find any injuries on the outer
             part of the genital part of the prosecutrix. She has found
             the hymen was ruptured recently and there was bleeding.
             The injury was ordinary in nature. She further stated that
             the same could have been possibly be caused by hard
             and blunt object as well. The evidence has established
             that a minor child was violated by the accused. However,
             there was no other injury inflicted him either on the other
             parts of the body and also on the private part. Thus the
             manner in which the offence is committed is not barbaric
             and brutal. We have given our anxious consideration to
             the material on record and find that though the offence is
             condemnable, reprehensible, vicious and a deplorable act
             of violence but the same does not fall within the aggravating



2    [2001] 4 Suppl. SCR 298 : (2001) 9 SCC 615
3    [2006] 8 Suppl. SCR 889 : (2006) 12 SCC 79
4    [2011] 1 SCR 829 : (2011) 2 SCC 764
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            circumstances namely extreme depravity and the barbaric
            manner in which the crime was committed. Taking into
            consideration the totality of the facts, nature, motive and
            the manner of the offence and further that nothing has been
            brought on record by the prosecution that the accused was
            having any criminal antecedent and the possibility of being
            rehabilitation and reformation has abo not been ruled out.
            Nothing is available on record to suggest that he cannot
            be useful for the society. In our considered opinion, it is
            not a ease in which the alternative punishment would not
            be sufficient to the facts of the case.”
9.     Now, we will refer to the rival contentions. The contention of the
       learned counsel for the petitioner is that at the time of commission
       of offence, the petitioner was aged only 40 years. The High Court
       after taking note of the manner in which the alleged offence was
       committed observed that it was not barbaric and brutal and further
       that owing to the absence of anything on record to suggest that the
       convict is having criminal antecedents the possibility of rehabilitation
       and chances for his reformation could not be ruled out and opined
       that the case is not one where the alternative punishment would not
       be sufficient. The alternative punishment provided under Section
       376 AB, IPC viz., sentence of rigorous imprisonment not less than
       20 years and with fine alone may be imposed after altering the life
       imprisonment for the conviction under Section 376 AB, IPC and
       no separate sentence be awarded for the conviction under the
       other offences mentioned above. According to the learned counsel,
       rigorous imprisonment for 20 years with a minimal fine will be the
       comeuppance. Per contra, the learned counsel appearing for the
       respondent State would submit that the question as to what extent the
       capital sentence could be commuted, in the facts and circumstances
       of the case was considered in detail with reference to the decisions
       mentioned in the impugned judgment by the High Court and no case
       has been made out by the petitioner for further interference qua the
       quantum of sentence imposed on the petitioner.
10. We have taken note of the observation of the High Court made after
    referring to the manner of commission of the crime concerned that it
    was not barbaric and brutal. We are of the concerned view that when
    the words ‘barbaric’ and ‘brutal’ are used simultaneously they are not
    to take the character of synonym, but to take distinctive meanings.
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     In view of the manner in which the offence was committed by the
     petitioner-convict, as observed by the High Court under the above
     extracted recital, according to us, one can only say that the action
     of the petitioner-convict is barbaric though he had not acted in a
     brutal manner. We will take the meanings of the words ‘barbaric’,
     ‘barbarians’ and ‘brutal’ to know the distinctive meanings of the
     words ‘barbaric’ and ‘brutal’. As per the New International Webster’s
     Comprehensive Dictionary of the English Language, Encyclopedia
     Edition they carry the following meanings:
     ‘Barbaric’ (adj):    1. of or characteristic of barbarians.
                          2. Wild; uncivilized; crude
     ‘Barbarians’ : (n)   1. One whose state of culture is between
                          savagery and civilization;
                          2. Any rude, brutal or uncultured person.
     ‘Brutal’ (adj) :     Characteristic of or like a brute; cruel; savage.
     In the light of the evidence on record and rightly noted by the High
     Court in the above-extracted paragraph 34 of the impugned judgment
     it may be true to say that the petitioner-convict had committed the
     offence of rape brutally, but then, certainly his action was barbaric.
     In the instant case, the petitioner-convict was aged 40 years on the
     date of occurrence and the victim was then only a girl, aged 7 years.
     Thus, the position is that he used a lass aged 7 years to satisfy
     his lust. For that the petitioner-convict took the victim to a temple,
     unmindful of the holiness of the place disrobed her and himself and
     then committed the crime. We have no hesitation to hold that the fact
     he had not done it brutally will not make its commission non-barbaric.
11. In the circumstances obtained in this case there can be no doubt
    regarding the requirement of deterrent punishment for the conviction
    under Section 376 AB, IPC. The only question is whether the
    commutation of capital punishment to sentence of life imprisonment
    requires further interference. There can be no doubt with respect to
    the position that on such commutation of sentence for the conviction
    under Section 376 AB, IPC, the other alternative available is only
    imprisonment for a period not less than 20 years with fine. This
    position is clear from the provision under Section 376 AB, IPC which
    reads thus:-
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            “376AB. Punishment for rape on woman under twelve
            years of age.—Whoever, commits rape on a woman
            under twelve years of age shall be punished with rigorous
            imprisonment for a term which shall not be less than
            twenty years, but which may extend to imprisonment for
            life, which shall mean imprisonment for the remainder of
            that person’s natural life, and with fine or with death:
            Provided that such fine shall be just and reasonable to
            meet the medical expenses and rehabilitation of the victim:
            Provided further that any fine imposed under this section
            shall be paid to the victim.”
12. Thus, a bare perusal of Section 376 AB, IPC would reveal that
    imprisonment for life thereunder means imprisonment for the
    remainder of the convict’s natural life and the minimum term of
    imprisonment under the Section is 20 years. Now, while considering
    the question whether further interference with the sentence handed
    down for the conviction of the offence under Section 376 AB,
    IPC is warranted, it is only appropriate to refer to a decision of
    this Court in Shiva Kumar @ Shiva @ Shivamurthy v. State of
    Karnataka5. In Shiva Kumar’s case (supra) this Court referred to
    the decision of a Constitution Bench of this Court in Union of India
    v. V. Sriharan alias Murugan and Ors.6 and also the decision in
    Swamy Shraddananda (2) alias Murali Manohar Mishra v. State
    of Karnataka7. Evidently, this Court in V. Sriharan’s case (supra),
    upon considering the question whether imprisonment for life in terms
    of Section 53 read with Section 45 IPC means imprisonment for
    rest of life of the prisoner or a convict undergoing life imprisonment
    has a right to claim remission, held after referring to the decision
    in Swamy Shraddananda (2) (supra) that the power derived from
    the Penal Code for any modified punishment within the punishment
    provided for in the Penal Code for any specified offence could only
    be exercised by the High Court and in the event of further appeal
    only by the Supreme Court. Furthermore, in paragraph 105 of the
    said decision it was held:- “to put it differently, the power to impose


5   [2023] 4 SCR 669 : (2023) 9 SCC 817
6   [2015] 14 SCR 613 : (2016) 7 SCC 1
7   [2008] 11 SCR 93 : (2008) 13 SCC 767
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     modified punishment providing for any specific term of incarceration
     or till the end of the convict’s life as an alternate to death penalty,
     can be exercised only by the High Court and the Supreme Court
     and not by any other inferior Court.” In Shiva Kumar’s case (supra)
     this Court further took note of what was held by the Constitution
     Bench in V. Sriharan’s case (supra) paragraph 104 as well, which
     reads thus: -
           “104. That apart, in most of such cases where death
           penalty or life imprisonment is the punishment imposed by
           the trial court and confirmed by the Division Bench of the
           High Court, the convict concerned will get an opportunity
           to get such verdict tested by filing further appeal by way
           of special leave to this Court. By way of abundant caution
           and as per the prescribed law of the Code and the criminal
           jurisprudence, we can assert after the initial finding of
           guilt of such specified grave offences and the imposition
           of penalty either death or life imprisonment, when comes
           under the scrutiny of the Division Bench of the High Court,
           it is only the High Court which derives the power under
           the Penal Code, which prescribes the capital and alternate
           punishment, to alter the said punishment with one either
           for the entirety of the convict’s life or for any specific period
           of more than 14 years, say 20, 30 or so on depending
           upon the gravity of the crime committed and the exercise
           of judicial conscience befitting such offence found proved
           to have been committed.”
13. After referring to the relevant paragraphs from the said decisions in
    Shiva Kumar this Court held as follows: -
           “13.Hence, we have no manner of doubt that even in a
           case where capital punishment is not imposed or is not
           proposed, the Constitutional Courts can always exercise
           the power of imposing a modified or fixed-term sentence
           by directing that a life sentence, as contemplated by
           “secondly” in Section 53 of the IPC, shall be of a fixed
           period of more than fourteen years, for example, of twenty
           years, thirty years and so on. The fixed punishment cannot
           be for a period less than 14 years in view of the mandate
           of Section 433A of Cr.P.C.”
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14. In view of the decisions referred (supra) and taking note of the
    position that when once the conviction is sustained under Section 376
    AB, IPC the fixed term punishment could not be for a period of less
    than 20 years. Evidently, the High Court had referred, in paragraph
    33 of the impugned judgment, to decisions where minor girls were
    raped and murdered, but did not pointedly consider whether for the
    conviction under Section 376 AB, IPC involving commission of rape
    of victim, aged 7 years not coupled with murder what would be the
    comeuppance, after deciding to commute the capital sentence.
15. We have taken note of the hapless situation of the victim after being
    taken to a temple by the petitioner-convict. The evidence would reveal
    that unmindful of the holiness of the place he disrobed her and himself
    and raped her. When such an act was done by the petitioner, who
    was then aged 40 years and X who was then aged only 7 years
    and the evidence that when PW-2 and PW-14 reached the place of
    occurrence, blood was found oozing from the private parts of the
    disrobed child. The High Court had rightly considered the aggravating
    and mitigating circumstances while commuting the capital sentence
    into life imprisonment which going by the provisions under Section
    376 AB, IPC means rest of the convict’s natural life. For effecting such
    commutation, the High Court also considered the question whether
    there is possibility for reformation and rehabilitation of the petitioner
    and opined that it is not a case in which the alternative punishment
    would not be sufficient in the facts of the case. But then, it is noted
    that if the victim is religious every visit to any temple may hark back
    to her the unfortunate, barbaric action to which she was subjected
    to. So also, the incident may haunt her and adversely impact in her
    future married life.
16. Then, we are also to take into account the present age of the petitioner
    and the fact that he has already undergone the incarceration. On
    consideration of all such aspects, we are of the considered view that
    a fixed term of sentence of 30 years, which shall include the period
    already undergone, must be the modified sentence of imprisonment.
17. We have already taken note of the fact that while commuting the
    capital sentence to life imprisonment, the High Court had lost
    sight of the fact that despite conviction under Section 376 (2) (i)
    and under Sections 3/4, Sections 5(d)/6 of the POCSO Act, no
    separate sentences were imposed on the petitioner for the offence
    under Section 3/4 and 5(m)/6 of the POCSO Act by the Trial Court,
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     evidently, only on the ground that capital sentence is imposed on the
     petitioner for the offence under Section 376 AB, IPC. However, it is
     a fact that the said aspect escaped the attention of the High Court.
     That apart, in terms of the provisions under Section 376 AB, IPC
     when a sentence of imprisonment for a term not less than 20 years
     which may extend upto life imprisonment is imposed, the convict
     is also liable to suffer a sentence of fine which shall be just and
     reasonable to meet the medical expenses and rehabilitation of the
     victim which we quantify as Rupees One Lakh and the same shall
     be paid to the victim with respect to the conviction under Section
     363, IPC. In that regard also, there is absolutely no consideration
     in the impugned judgment.
18. It is submitted by the learned counsel, with reference to paragraph
    1 of the impugned judgment that the order in paragraph 35 of the
    impugned judgment that the conviction and sentence under Section
    366, IPC is maintained, can also be in relation to the conviction under
    Section 363, IPC and the sentence imposed therefor.
19. We fully endorse the said contention as paragraph 1 of the impugned
    judgment itself would reveal that the High Court had actually taken
    into consideration the fact that the petitioner-convict was convicted
    only under Section 376 AB, IPC as amended by Act No.22 of 2018
    and under Section 363 IPC. In such circumstances, the conviction
    and sentence imposed on the petitioner-convict is confirmed. We
    have taken note of the fact that though the petitioner-convict was
    convicted for the offence under Section 3/4 and 5 (m)/6 of the POCSO
    Act, no separate sentence was imposed on the petitioner-convict by
    the Trial Court taking note of the provision under Section 42 of the
    POCSO Act. The said provision reads thus:-
           “42. Alternate punishment.—Where an act or omission
           constitutes an offence punishable under this Act and also
           under sections 166A, 354A, 354B, 354C, 354D, 370, 370A,
           375, 376, [376A, 376AB, 376B, 376C, 376D, 376DA,
           376DB], [376E, section 509 of the Indian Penal Code or
           section 67B of the Information Technology Act, 2000 (21
           of 2000)], then, notwithstanding anything contained in any
           law for the time being in force, the offender found guilty
           of such offence shall be liable to punishment only under
           this Act or under the Indian Penal Code as provides for
           punishment which is greater in degree.”
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20. Since, even after the interference with the sentence imposed for
    the conviction of the petitioner-convict under Section 376 AB, IPC
    and modified sentence imposed on commutation by the High Court,
    we have awarded 30 years of rigorous imprisonment with a fine of
    Rupees One Lakh, no separate sentence for the aforesaid offence
    under POCSO Act is to be imposed on the petitioner-convict. While
    maintaining the conviction of the petitioner-convict under Section
    376 AB, IPC, the sentence imposed thereunder is modified to a
    sentence of rigorous imprisonment for a term of 30 years, making
    it clear that this will also include the period of sentence already
    undergone and the period, if any ordered by the Trial Court for set
    off. The imprisonment awarded for the conviction under Section 363,
    IPC shall run concurrently. The amount of fine imposed thereunder
    shall be added to the fine imposed by us viz., Rupees One Lakh.
21. We further direct that the petitioner-convict shall not be released from
    jail before completion of actual sentence of 30 years, subject to the
    observation made in the matter of its computation, as mentioned
    above.
22. The Special Leave Petition is partly allowed, as above.


       Headnotes prepared by: Ankit Gyan   Result of the case: Special Leave Petition
                                                                        Partly allowed.