Holding

The High Court was not justified in reducing the sentence below the statutory minimum; "adequate and special reasons" must be both present and specific, and the reasons advanced were not special, so the sentence was enhanced to seven years.

Summary

The Supreme Court examined the rape of a minor girl by Kamal Kishore, whose conviction was upheld by the Himachal Pradesh High Court but the sentence was reduced to three years under the proviso of Section 376 IPC, citing the offence's age and the accused's settled life as "adequate and special reasons." The Court found the victim's testimony, corroborated by her mother, aunt, and medical evidence, sufficient to establish guilt, rejecting the trial court's acquittal. It held that the phrase "adequate and special reasons" requires both elements to be present and that the High Court's reasons were general, not special, and therefore could not justify a sentence below the statutory minimum. Consequently, the sentence was enhanced to the seven‑year minimum prescribed for rape of a girl under twelve. The Court also noted that factors such as the long lapse of time and the victim's subsequent marriage may be considered for remission by executive authorities, but not for reducing the sentence below the minimum.

Issues considered

The sufficiency of the victim's testimony and medical evidence to sustain a conviction under Section 376 IPC.
Whether the High Court was justified in imposing a sentence less than the minimum prescribed under the proviso to Section 376 IPC.
What constitutes "adequate and special reasons" for deviating from the mandatory minimum sentence.
Whether the factors of time lapse and the accused's settled life qualify as special reasons.
The relevance of remission considerations under Articles 72 and 161 of the Constitution.

Legislation cited

Constitution of Indias. 161, s. 72
Indian Penal Code, 1860s. 376

Subjects

rapeminor victimSection 376 IPCminimum prescribed sentenceadequate and special reasonssentencing discretionremissionmedical evidenceappellate jurisdiction

Judgment

f

).
KAMAL KISHORE ETC. A
~
~-
STATE OF HIMACHAL PRADESH

APRIL 25, 2000

[K.T. THOMAS, DORAISWAMYRAJU AND S.N. VA..~AVA, JJ.] B

Penal Code, 1860-S. 376 pmviso-Rape-lmposition of sentence less
than the minimum prescribed-Justification of-Rape of twelve years old
girl-Testimony of victim duly convborated by her mother and aunt-
Confirmed by medical evidence-T1ial Court-Disbelieving the testimony of c
victim-Acquittal-On appeal, High Court reversing the acquittal and con-
victing the accused-Howeve1; High Court holding that since the offence took
place ten years ago and accused might have settled in life, imposing impris-

• onment for three years i.e. less than minimum prescribed-Validity of-Held,
High Court justified in convicting the accused-The reasons for imposing
sentence less than the prescribed minimum must be both 'adequate' and D
'special' and not 'adequate' and 'special' disjunctively-Reasons which are
general and common in many cases cannot be 'special reasons'-ln the
instant case, the reasons mentioned by High Court did not amount to special
reasons-Thus, High Court not justified in imposing minimum sentence-
r Sentence enhanced to imprisonment for seven years. E
,/' -

Constitution of India-Articles 72 and 161-Remission of Sentence-
Factors-Consideration of-Long time lag fmm the date of occurrence to
conviction, fact that the pmsecutrix got married and is settled well in life with
children-Held, may be factors for consideration by executive_ or constitutional·
authorities while granting remission-Penal Code, 1860-S. 376. F

Words & Phrases :

"adequate and special reasons" -Meaning and scope of in the context
of S. 376 proviso of the Penal Code, 1860.
G
Appellant was prosecuted for an offence under S. 376 IPC. The
~~ prosecution case was that 'S' aged about 12-13 years was raped by appel-
lant inside his flour mill. The victim's evidence was duly corroborated by
the testimony of her mother and aunt and adequately confirmed by the
Medical evidence. However, Trial Court holding that the testimony of H
473
474 SUPREME COURT REPORTS (2000] 3 S.C.R.
.~
A victim was highly improbable, acquitted the accused. On appeal, High
Court reversed the order of acquittal and convicted the accused under S.
376 IPC. However, High Court holding that since the offence took place 10
years ago and the accused might have settled in life, imposed a sentence of
imprisonment for 3 years i.e. less than the minimum prescribed by exercis-
ing discretion under the proviso to S. 376. Hence the present appeals.
B
Dismissing the appeal of accused and allo\ving that of State, the
\
Court

HELD : 1.1. High Court was justified in convicting the appellant for
offences under S. 376 ofl.P.C. [478-G]
c
1.2. The evidence of the adolescent girl • the victim of rape, as duly
corroborated by the testimony- of her mother and aunt, and adequately
confirmed by the medic.al evidence, had conclusively established that she
was subjected to ravishment by the accused and none else. [478-F-G] ~
D
2. The expression "adequate and special reasons" provided in the
proviso to S. 376 IPC for imposing a sentence less than the prescribed
minimum indicates that it is not enough to have special reasons, nor
adequate reasons disjunctively. There should be a conjunction of both for
enabling the Court to invoke the discretion. Reasons which are general or
E common in many cases cannot be regarded as special reasons. In the instant
case; the reasons advanced by the High Court that the occurrence took
place 10 years ago and the accused might have settled in life are not special
to the accused in the case or to the situations in the case. Such reasons can
~e noticed in many other cases and hence they cannot be regarded as

F special reasons. Thus, the sentence awarded to the appellant for the offence
under S. 376 IPC enhanced to imprisonment for 7 years. [481-E-F; 482-B]

State of Karnataka v. Krishnappa, JT (2000) 3 SC 516, relied on.

State of Punjab v. Gurmit Singh and Ors. , [1996] 2 SCC 384, held
G inapplicable.

3. The long time lag which elapsed subsequent to the date of offence
and the fact that the prosecutrix got married alld is well settled in life and
that she is now mother of children ·all these things which happened during
the intervening period, may be factors for consideration by the executive or ·
H constitutional authorities if they have to decide whether remission of the
KAMAL KISHORE v. STATE [THOMAS, J.] 475
sentence can be allowed to the accused. [482-C] A

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No .. 1322
of 1999 Etc.

From the Judgment and Order dated 15.10.99 of the Himachal Pradesh
High CoUlt in Cd.A. No. 130 of 1992. B

-A. Arvind Kumar, S.C. Sharma, Ms. Slllli.ta Yadav, Ms. Laxmi Arvind. Anil
Nag and K.K. Tyagi for the appearing parties.

The Judgment of the Court was delivered by c
THOMAS, J. The victim of a rape had just crossed single digit in her
age. So tender was that lass when she was ravished. But the damage caused
to her genitalia was woeful. The girl narrated the story before Ms. Kiran
Agarwal, Sessions Judge, Una (Himachal Pradesh) who tried the case, but the
story told by her did not impress the Sessions Judge and hence her testimony D
was jettisoned and the man who was arraigned as \he rapist exonerated.
However, a Division Bench of the High Court of Himachal Pradesh dissented
from the said verdict and convicted him under Section 376 of the Indian Penal
Code. Nonetheless, the Division Bench was not disposed to award the
T
minimum sentenc;! prescribed by law for the offence on the premise that the
E
accused who was twenty five "might have settled in life." So the High Court
directed him to undergo rigorous imprisonment for three years and to pay a
fine of Rupees ten thousand.

The verdict of the High Court did not satisfy both sides - the accused
and the State of Himachal Pradesh. The former because of the reversal of the F
order of acquittal and the latter because of the inadequacy of the sentence. So
both sides filed separate appeals by special leave. We heard both appeals
together.

The case put forward against the accused can be summarised in the
G
following lines: -
- --' Shishna Devi (PW2) is the eldest of the three children of Sher Singh and
his wife Kunta Devi. During the year of occurrence Sheshna Devi was
studying in the 4th class. Accused Kamal Kishore was running a flour mill
located adjacent to his house. The incident happened on 21.5.1989. Shishna H
476 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Devi after taking her evening meals proceeded to the house of her aunt, but
on the way she stepped into the house of the accused presumably for viewing
a TV film. Either at the end of the film or a little before it Shishna Devi was
asked by the mother of accused to fetch some cooking utensils from the flour
mill. So she went and brought the utensils to the kitchen. It was right time and
the accused followed her upto the kitchen. He caught hold of her from behind,
B
muffled her mouth, lifted her up and took her to the flour mill and after
dragging her to a side room, stripped her off and he committed rape on her.

When the wearing apparels of Shishna Devi became wet with blood the
accused brought a bucket of water and washed the dress~ He threatened her
C not to reveal it to anybody else. The house of her aunt (Kaushalya Devi- PW4)
was locate~ close by and Shishna Devi instead of going back to her own house
went to that aunt's house and spent the night there.

Next morning Shishna Devi returned home. Her mother Kunta Devi
(PW-3) noticed blood stains ~>n her dress and she enquired about the cause of
D it. Shishna Devi then narrated the incident to her mother. Her husband (father
of Shishna Devi) was not in the house then as he had gone for his work. (He
is a daily-wage earning labourer). Next day when he returned home the story
was narrated to him. On hearing the same he wanted to report the matter to
the police and hence he took his wife and Shishna Devi to Bangana police
E station and lodged Ex. PC complaint.

Shishna Devi was examined by PW 14 Dr. JS Kanwar of the Indira
Gandhi Medical College (Shirnla) at 4.30 pm on 23.5.1989. The doctor noted
the following features on her person.

F 1. Congestion (contusion) of labia minora both sides.

2. Tear in the perennial fourchete in mid-line involving vaginal
mucosa and perineal skin (3/4th cm long in skin). Swelling and
tenderness noted at that site.

G 3. Congestion and oedema of vestibule around Urethra.

4. Hymen showed lacerations on the left side. There was oedema )... _
and tenderness. It was bleeding on touch.

According to PW-14, the injuries could probably had been sustained 24-
·H 48 hours prior to his examination of the girl. The doctor collected the swab
J

KAMAL KISHORE v. STATE [THOMAS, J.] 477
from the posterior fomix of the vagina, and that along with the wearing A
~ apparels of Shishna Devi were sent for chemical tests. The result of such test
showed spermatozoa and semen.
1
,, The aforesaid materials are sufficient to show, beyond any spec of
doubt, that Shisna Devi was sexually r(lvaged by a man. Hence the only
B
question which fell for consideration is whether it was the accused who did
the act on that little girl. No question of consent of the victim need vex the
judicial mind in this case as the age of Shishna Devi then was far distal from
the age of 16.

For the narrowed compass of consideration in this case i.e. whether c
accused was the rapist, the most decisive evidence is the testimony of the
victim herself. None else will be more competent than her to tell the court as
to who raped her. There is no scope for doubting that she would not have seen
~ the person who seduced her. PW-2 Shishna Devi pointed at the accused in
unmistakable terms as the person who ravaged her. On that aspel-t there was
D
no discrepancy in the evidence. But the Sessions Judge went into the details
of the occurrence and after dwelling on certain features thereof the case was
dubbed as highly improbable.

Learned Sessions Judge pointed out from the evidence of PW-2 that the
Y"' E
time of her visit to the house of the accused was 6 P.M. for viewing the TV
film, and then referred to the evidence of her aunt Kaushalya Devi (PW-4) that
Shishna Devi reached her house at 11 P.M. The Sessions Judge made the
following comment on that aspect:

"Now it remains a mystery where the prosecutrix remained upto 11 F
• p.m. Even if the watching of the film on the television by the
prosecutrix in the house of accused for some time is construed to be
one hour or two hours, 10-15 minutes in bringing the utensils from
the flour mill and half an hour in the process when the accused-
petitioner dragged her from the kitchen to the room by the side of the
flour mill and raping her and then bringing a bucket of water with G
_. which she washed her shirt, even then there remains a considerable
period of about two hours till 11 O' Clock at night when the
prosecutrix reached the house of her aunt Kaushlya Devi where she
slept for the night. Thus the unexplained time gap makes the
deposition of the prosecutrix highly improbable." H
·~
~

478 SUPREME COURT REPORTS (2000] 3 S.C.R.
A The Division Bench of the High Court, after referring to the evidence
on that aspect, has observed thus:
-....
"We do not find any unexplained time gap as held by the Sessions
Judge. Moreover, the prosecutrix and her mother had not given the
time when the prosecutrix reached the house of her aunt Kaushlya
B Devi. It is only Kaushlya Devi who has stated that the prosecutrix had
·come to her house at about 11 P.M. when she was asleep. In the
absence of her further statement that she has noticed the time as 11
P.M. in her wrist watch or in any other watch or clock, the possibility ••
cannot be ruled out that she gave the time only as per her estimate ...,
c and the margin of error might be from half an hour to one hour."

After referring to certain other details of the occurrence the Sessions
Judge expressed her inability to believe qie story narrated by Shishna Devi and

•
-':-
then observed that "there are a few important missing links in the prosecution
~
case and no attempt has been made by the investigating officer to collect those
D links." As an example the trial judge pointed out that "none from the family
of the accused or the locality has been examined in order to prove the presence
of the prosecutrix in the house of the accused on the evening of the occurrence
for watching the television." But the High Court totally disagreed with the said
reasoning and stated: "It is too much to expect that any member of the family
of the respondent or from the houses in the neighbourhood would appear as ~
E
witness in support of the statement to the prosecutrix that she was present in
the house of the respondent for watching TV" .. The learned Judges pointed out
that prosecutrix is the daughter of a poor daily-wage labourer, whereas the
·1-
accused is the son of a proprietor of a flour mill and landlord.

F We have no doubt that the Sessions Judge had reached an erroneous
conclusion by approaching the question from a wrong angle. The evidence of
the adolescent girl - the victim of rape, as duly corroborated by the testimony
•
of her mother and aunt, and adequately confirmed by the medical evidence,
had conclusively established that she was subjected to ravishment by the
G accused and none else. The reasons adverted to by the High Court are far
sturdier and stronger than those suggested by the Sessions Judge to rely on.
The Division Bench of the High Court has thus rightly reversed the order of
).. ~
acquittal and convicted the accused under Section 376 of the IPC.

While considering the sentence we have to bear in mind that the offence
H was committed after the enforcement of Criminal Law Amendment Act
''
r

KAMAL KISHORE v. STATE [THOMAS, J.] 479
(CLAA) No.43 of 1983. So the provision prescribing more rigorous sentence A
must apply if the offence falls within the purview of sub-section ( 1) of Section
376, and then he "shall be punished with imprisonment of either description
for a term which shall not be less than seven years". If the offence falls under
sub-section (2)(t) (commits rape on an woman when she is under 12 years of
age) the offender is liable to be "punished with rigorous imprisonment for a
B
term which shall not be less than ten years but which may be for life and shall
also be liable to fine."

The question of the age of Shishna Devi is, therefore, important in this
area. If she was below the age of 12, on the date of occurrence the minimum
sentence would be rigorous imprisonment for 10 years. PW-14 Dr. J.S. Kanwar C
has fixed up the age of PW-2 Shishna Devi as 10 years on the date of her
examination. This was testified to by the doctor on the strength of clinical
examination conducted by him. But the doctor did not conduct either
ossification test or any other pathological tests to reach at least the approxi-
mate age of the victim. So his assessment regarding age is based on fragile
premises.
D

According to Ext.PH (School Certificate of Shishna Devi) her date of
birth is 11-11-1978, which means that on the date of occurrence she was below
11 years of age. But Ext. PH lost its credibility when Ext.PO (the Certificate
issued by the Panchayat) was produced in which the date of birth of PW-2 is E
shown as 24-11-1978. But the evidence of PW-2's mother Kunta Devi (PW-
3) shows that Shishna Devi was 12-13 years old. The Sessions Judge found
her age as put forth by Kunta Devi, the mother of PW-2, and the High Court
did not interfere with that. Therefore, we have to follow the said finding on
fact. Even then, the sentence prescribed under sub-section (1) of Section 376
of the IPC has stipulated a minimum limit that it "shall not be less than 7 F
years".

However, learned counsel for the accused made a serious endeavour to
bring the case within the proviso to Section 376 IPC which reads thus:
j G
"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. "

As pointed out earlier, the Division Bench of the High Court reduced
the sentence from the minimum limit, on a premise that "in view of the fact H
f

480 SUPREME COURT REPORTS [2000] 3 S.C.R.
A that the occurrence is of 21.5.1989 when he was 25 years of age and he might
have settled in life". -+
In order to support the said reasoning, learned counsel for the accused
relied on the following observations of a two Judge Bench of this Comt in the
State of Punjab v. Gu1mit Singh and Ors., [1996] 2 SCC 384:
B
"So far as the sentence is concerned, the court has to strike a just
balance. In this case the occurrence took place on 30.3.1984 (more
than 11 years ago). The respondents were aged between 21-24 years jr

of age at the time when the offence was committed. We are informed
that the respondents have not been involved in any other offence after
c they were acquitted by the trial court on 1.6.1985, more than a decade !-

ago. All the respondents as well as the prosecutrix must have by now
got married and settled down in life. These are some of the factors
which we need to take into consideration while imposing an appro-
priate sentence on the respondents." ~
D
But recently in the State of Kamataka v. Krishnappa, IT (2000) 3 SC
516 a three Judge Bench of this Court, after referring to the above decision,
restored the sentence of imprisonment for 10 years fixed by the trial court for
the offence under Section 376 of the IPC. The victim in that case was aged
7-8 years. The High Court in that case had reduced the sentence of imprison-
E ment to 4 years. Dr. A.S. Anand, en, who authored the judgment of the
--"(

Bench, had stated thus:

"The High Court justified the reduction of sentence on the ground that
the accused-respondent was 'unsophisticated and illiterate citizen
belonging to a weaker section of the society'; that he was 'a chronic
F
addict to drinking' and had committed rape on the girl while in a state
)Ill.
of 'intoxication' and that his family comprising of 'an old mother,
wife and children' were dependent upon him. These factors, in our
opinion, did not justify recourse to the proviso to Section 376(2) IPC
to impose a sentence less than the prescribed minimum. These reasons t
G are neither special uor adequate. The measure of punishment in a case b
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 j.
and age of the sexually assaulted female and the gravity of the
criminal act. Crimes of violence upon women need to be severely
H dealt with. Socio- economic status, religion, race, caste or creed of
.
'
KAMAL KISHORE v. STATE [THOMAS, J.] 481
the accused or the victitn are irrelevant considerations in sentencing A
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
B
gravity of the offence."

This Court in the said dec\sion noted that "there are no extenuating or
mitigating circumstances available on the record which may justify imposition
of any sentence less than the prescribed minimum to the respondent."
c
As Parliament has disfavoured the sentence to plummet below the

- minimum limit prescribed Parliament used the expression "shall not be less
than" which is peremptory in tone. The court has, normally, no discretion even
to award a sentence less than the said minimum. Nonetheless Parliament was
not oblivious of certain very exceptional situations and .hence to meet such
D
extremely rare contingencies it made a departure from the said strict rule by
conferring a discretion on the court subject to two conditions. One is that there
should be "adequate and special reasons'', and the other is that such reasons
should be mentioned in the judgment. The expression "adequate and special
reasons" indicates that it is not enough to have special reasons, nor adequate
reasons disjunctively. There should be a conjunction of both for enabling the E
court to invoke the discretion. Reasons which are general or common in many
cases cannot be regarded as special reasons. What the Division Bench of the
High Court mentioned (i.e. occurrence took place 10 years ago and the
accused might have settled in life) are not special to the accused in this case
or to the situations in this case. Such reasons can be noticed in many other F
cases and hence they cannot be regarded as special reasons. No catalogue can
be prescribed for adequacy of reasons nor instances can be cited regarding
special reasons, as they may differ from case to case.

As the reasons advanced by the Division Bench of the High Court could
not be supported as adequate and special reasons learned counsel for the G
accused projected an alternative profile in order to support his contention that
there are adequate and special reasons. He submitted the following: Shishna
Devi(PW2) has since been married to another person and she is now mother
of children and is well-settled in life. The accused was aged 23 when the
offence was committed and now he is 34, but he remains unmarried. He says H
482 SUPREME COURT REPORTS [2000) 3 S.C.R.
A that on two occasions his marriage had reached the stage of engagement but
both had to be dropped off before reaching the stage of marriage due to the
social stigma and disrepute which surrounded him. These are the reasons
which he advanced for extending the benefit of the proviso.

Those circumstances pleaded by him are not special reasons for tiding
B over the legislative mandate for imposing the minimum sentence. We, there-
fore, enhance the sentence for the offence under Section 376 I.P.C. to
imprisonment for 7 years.

The long time lag which elapsed subsequent to the date of offence and
the fact that the prosecutrix got manied and is well settled in life and that she
c is now mother of children - all these things which happened during the
intervening period, may be factors for consideration by the executive or

D
constitutional authorities if they have to decide whether remission of the
sentence can be allowed to the accused. We make it clear that we have imposed
the enhanced sentence on him without prejudice to any motion he may make
for such remission of the sentence before the authorities concerned.
-
S.V.K. Appeal dismissed/allowed.

j..