STATE OF RAJASTHANversusVINOD KUMAR

                      [2012] 6 S.C.R. 1


                  STATE OF RAJASTHAN                            A
                              v.
                       VINOD KUMAR
             (Criminal Appeal No.1887 of 2008)

                        MAY 18, 2012
                                                                B
      [DR. B.S. CHAUHAN AND DIPAK MISRA, JJ.]

    PENAL CODE, 1860:

     ss. 376 and 37611208 - Minimum prescribed sentence - c
 Conviction and sentence of 7 yeas of RI awarded by trial court
to both the accused - High Court reducing the sentence to 5
years in case of main accused and to the period already
undergone (11 months and 25 days) in case of co-accused -
Held: In the instant case, the accused pleaded only for
                                                                 0
reduction of punishment, but the Public Prosecutor
vehemently opposed the prayer - Though the High Court
further took note that awarding punishment lesser than the
minimum sentence of 7 years was permissible only for
adequate and special reasons, no such reasons have been
recorded by it for doing so, and, thus, the High court failed to E
ensure compliance of the mandatory requirement - Such an
order is violative of the mandatory requirement of law and has
defeated the legislative mandate - In the facts and
circumstances of the case, sentences awarded by the High
Court set aside and seven years R. I. awarded by the trial court F
restored.

    s.376(1 ), proviso - Sentence less than the minimum - For
"adeqµate and special reasons" - Held: The statutory
requirement for awarding the punishment less than seven G
years is to record adequate and special reasons in writing -
In a case like the instant one, in order to impose the
punishment lesser than that prescribed in the statute, there
must be exceptional reasons relating to the crime as well as
                               1                              H
    2        SUPREME COURT REPORTS               [2012] 6 S.C.R.


A   to the criminal - In the context of sentencing process, special
    reasons must be 'special' to the accused in the facts and
    circumstances of the case in which the sentence is being
    awarded.

B       /NTERPRETA TION OF STATUTES:

       Exception clause - Interpretation of - Proviso to s.376 /PC
  - Held: Exception clause is always required to be strictly
  interpreted even if there is a hardship to any individual - The
  natural presumption in law is that but for the proviso, the
C enacting part of the Section would have included the subject
  matter of the proviso, the enacting part should be generally
  given such a construction which would make the exceptions
  carved out by the proviso necessary and a construction which
  would make the exceptions unnecessary and redundant
D should be avoided - The power under the proviso is not to be
  used indiscriminately in a routine, casual ar,d cavalier
  manner for the reason that an exception clause requires strict
  interpretation - The court while exercising the discretion in the
  exception clause has to record "exceptional reasons" for
E resorting to the proviso - Recording of such reasons is sine
  qua non for granting the extraordinary relief - What is
  adequate and special would depend upon several factors and
  no straight jacket formula can be laid down.

F       SENTENCE/SENTENCING

       Punishment uls 376 /PC - Held: The law on the issue can
  be summarised to the effect that punishment should always
  be proportionate/commensurate to the gravity of offence -
G Religion, race, caste, economic or social status of the
  accused or victim are not the relevant factors for determining
  the quantum of punishment - The court has to decide the
  punishment after considering all aggravating and mitigating
  factors and the circumstances in which the crime has been
H committed - Conduct and state of mind of the accused and
      STATE OF RAJASTHAN v. VINOD KUMAR                    3


age of the sexually assaulted victim and the gravity of the     A
cn·minal act are the factors of paramount importance - The
court must exercise its discretion in imposing the punishment
objectively considering the facts and circumstances of the
case - The legislature introduced the imposition of minimum
sentence by amendment in the /PC w.e.f. 25.12.1983,             B
therefore, the courts are bound to bear in mind the effect
thereof

     Meet Singh v. The State of Punjab, 1980 (2) SCR 1152
=AIR 1980 SC 1141; Madhukar Bhaskarrao Joshi v. State C
of Maharashtra, 2000 (4) Suppl. SCR 475 = AIR 2001 SC
147; State of Jammu & Kashmir v. Vinay Nanda, 2001(1)
SCR 399 =AIR 2001 SC 611; State of Karnataka v. Raju,
2007 (9) SCR 970 = AIR 2007 SC 3225; State of Madhya
Pradesh v. Babbu Barkare @ Dalap Singh, 2005 (1) Suppl.
                                                             0
SCR 381 = AIR 2005 SC 2846; Dinesh @ Buddha v. State
of Rajasthan, 2006 (2) SCR 793 = AIR 2006 SC 1267;
Shailesh Jasvantbhai & Anr. v. State of Gujarat & Ors., 2006
(1) SCR 477 = (2006) 2 sec 359; and State of Madhya
Pradesh v. Basodi 2009 (6) SCR 1166 =AIR 2009 SC 3081;
State of Karnataka v. Krishnappa, 2000 (2) SCR 761 = AIR E
2000 SC 1470; State of Punjab v. Prem Sagar and Ors., 2008
(12) SCR 959 = (2008) 7 SCC 550; State of Madhya Pradesh
v. Santosh Kumar, 2006 (3) Suppl. SCR 548 = AIR 2006 SC
2648; Harbans Singh v. State of Punjab, 1985 (1) SCR 214
=AIR 1984 SC 1594; State of Andhra Pradesh v. Vasudeva F
Rao, 2003 (5) Suppl. SCR 500 =AIR 2004 SC 960; State of
MP. v. Babula/, 2007 (12) SCR 795 =AIR 2008 SC 582; and
State of Rajasthan v. Gajendra Singh, 2008 (11) SCR 816    =
(2008) 12 SCC 720; Kamal Kishore etc. v. State of Himachal
Pradesh   =  2000 (3) SCR 473 = AIR 2000 SC 1920; G
Bhupinder Sharma v. State of Himacha/ Pradesh, 2003 (4)
Suppl. SCR 792 = AIR 2003 SC 4684; and State of Andhra
Pradesh v. Polama/a Raju @ Rajarao, 2000 (2) Suppl. SCR
329 =AIR 2000 SC 2854; State of M.P. v. Bala@ Balaram,
2005 (3) Suppl. SCR 859 = AIR 2005 SC 3567; and Ravji H
    4       SUPREME COURT REPORTS               [2012] 6 S.C.R.


A   @ Ram Chandra v. State of Rajasthan 1995 (6) Suppl. SCR
    195 =AIR 1996 SC 787- relied on

         S. Sundaram Pillai, etc. v. V.R. Pattabiraman, 1985 (2)
    SCR 643 =AIR 1985 SC 582; Union of India & Ors. v. Mis.
    Wood Papers Ltd. & Anr., 1990 (2) SCR 659 =AIR 1991 SC
B
    2049; Grasim Industries Ltd. & Anr. v. State of Madhya
    Pradesh & Anr., AIR 2000 SC 66; Laxminarar.an R. Bhattad
    & Ors. v. State of Maharashtra & Anr., 2003 (3) SCR 409 =
    AIR 2003 SC 3502; Project Officer, ITDP & Ors. v. P.O.
    Chacko 2010 (6) SCR 846 = AIR 2010 SC 2626; and
c   Commissioner of Central Excise, New Delhi v. Hari Chand
    Shri Gopal & Ors. 2010 (13) SCR 820 = (2011) 1SCC236 -
    referred to.

                        Case Law Reference:
D
        1980 (2) SCR 1152           relied on         para 9
        2000 (4) Suppl. SCR 475 relied on             para 10
        2001 (1) SCR 399            relied on         para 11
E       2007 (9) SCR 970            relied on         para 12
        2005 (1) Suppl. SCR 381 relied on             para 12
        2006 (2) SCR 793            relied on         para 12

F       2006 (1) SCR 477            relied on         para 12
        2009 (6) SCR 1166           relied on         para 12
        2000 (2) SCR 761            relied on         para 13
        2008 (12) SCR 959          relied on          para 14
G
        2006 (3) Suppl. SCR 548 relied on             para 15
        1985 (1) SCR 214           relied on          para 15
        2003 (5) Suppl. SCR 500 relied on             para 15
H
       STATE OF RAJASTHAN v. VINOD KUMAR                   5


     2007 (12) SCR 795          relied on        para 15       A
                  .
     2008 (11) SCR 816          relied on        para 15
     2000 (3) SCR 473           relied on        para 16
     2003 (4) Suppl. SCR 792 relied on           para 16
                                                               B
     2000 (2) Suppl. SCR 329 relied on           para 16
     2005 (3) Suppl. SCR 859 relied on           para 17
     1995 (6) Suppl. SCR 195 relied on           para 18
     1985 (2) SCR 643           referred to      para 19
                                                               c
     1990 (2) SCR 659           referred to      para 19
     AIR 2000 SC 66             referred to      para 19
     2003 (3) SCR 409           referred to      para 19       D

     2010 (6) SCR 846           referred to      para 19
     2010 (13) SCR 820          referred to      para 19
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal          E
 No. 1887 of 2008.

     From the Jugment & Order dated 5.4.2007 of the High
 Court of Judicature for Rajasthan Bench at Jaipur in S.B.
 Criminal Appeal No. 103 of 2005.
                                                               F
                           WITH

. Criminal Appeal No. 1888 of 2008

     Ram Naresh Yadav, Milind Kumar for the Appellant.
                                                               G
    Naresh K. Sharma, Vivek Raj Singh Bajwa, Dr. Chaudhary
Shamsuddin Khan, Lal Pratap Singh, Ram Niwas for N.
Annapoorani for the Respondent.

     The Order of the Court was delivered                      H
    6        SUPREME COURT REPORTS               [2012] 6 S.C.R.


A                            ORDER

         1. These appeals have been preferred by the State
    against the judgment and order dated 5.4.2007 passed by the
    High Court of Judicature for Rajasthan (Jaipur Bench) in S.S.
    Criminal Appeal No.103 of 2005 and S.8. Criminal Appeal
8
    No.82 of 2005, by which, the conviction of the respondents
    Vinod Kumar underSection 376 of the Indian Penal Code, 1860
    (hereinafter called IPC) and Heera Lal under Section 376 read
    with Section 1208 IPC made by the Special Judge, Scheduled
    Castes/Scheduled Tribes (Prevention of Atrocities) Act
C   (hereinafter called SC/ST Act) Jaipur dated 22.1.2005 passed
    in Sessions Case No.123 of 2002 has been maintained but
    the sentence of respondent Vinod Kumar has been reduced
    from 7 years to 5 years and that of accused Heera Lal from 7
    years to 11 months and 25 days.
D
        2. Facts and circumstances giving rise to these appeals
  are that on 29.8.2002, Guddi, complainant, appeared before
  the Officer lncharge of the police station alongwith her brother-
  in-law Babu Lal and submitted a report that one day earlier,
E i.e. on 28.8.2002 she attended a memorial function in respect
  of death of her relative. She left the place alongwith Babu Lal,
  her brother-in-law and stayed in the Jai Hotel. Two persons
  came there and one of them introduced himself to be the
  Station House Officer and wanted to check the room. Another
F person asked her relationship with other occupant Babu Lal.
  She informed about her relationship but he raised the question
  as to why such a relationship has not been disclosed in the
  Hotel Register and thus, under this pretext, they entered into
  the room for holding enquiry. They took Babu Lal, brother-in-
  law of the complainant outside. Thereafter, one of them came
G alone into the room, bolted the door from inside, and pushed
  her on the cot forcibly and committed rape upon her. She
  raised alarm but in vain. After commission of rape he fled away
  by opening the door of the room. She also gave the description
  of the said person.
H
      STATE OF RAJASTHAN v. VINOD KUMAR                       7


     3. On the basis of the aforesaid report, Case No.168 of       A
2002 under Sections 376, 1208 IPC was registered and
investigation commenced. During the course of investigation,
the accused were arrested and identification parade took place.
The prosecutrix was medically examined. After completion of
the investigation, chargesheet under Sections 376, 1208 IPC        8
and Section 3(2) (5) of SC/ST Act was filed against Vinod
Kumar and Heera Lal. The prosecution in support of its case
examined Guddi, Babu Lal and a large number of other
witnesses including the doctors who had examined the
prosecutrix. The respondents were examined under Section           C
313 of Code of Criminal Procedure, 1973 (hereinafter called
Cr.P.C.). They simply denied their involvement, however; they
did not adduce any evidence in defence. After appreciating the
evidence on record, the trial Court convicted the said
re!?pondents urider Section 376 IPC and Section 376/1208 IPC
                                                                   0
respectively and awarded punishment for 7 years Rigorous
Imprisonment and a fine of 5,000/- to each and in default, the
accused were ordered to undergo simple imprisonment for 3
months.

     4. Aggrieved, both of them preferred appeals before the       E
 High Court which have been disposed of by the impugned
judgment. The High Court maintained their convictions as
awarded by the trial Court. However, their sentences have
been reduced as aforementioned. Hence, these appeals.
                                                                   F
      5. Learned counsel for the State has submitted that in a
case of rape, the minimum punishment is 7 years and
 mandatory requirement under Section 376 IPC is to impose the
 punishment of imprisonment of either description for a term
which shall not be less than 7 years but which may be life or
for a term which may extend to 10 years, provided that the court   G
may for adequate and special reasons to be mentioned in the
judgment, impose the punishment for a term less than 7 years.
In the instant case, the High Court did not record any special
and adequate reasons and reduced the punishment
                                                                   H
    8        SUPREME COURT REPORTS                [2012) 6 S.C.R.


A substantially. Therefore, in case the High Court maintained their
  convictions for the aforesaid offences, there was no justification
  for reducing their sentences. Thus, the appeals deserve to be
  allowed.

       6. On the contrary, Shri Naresh Kumar, learned Amicus
8
  Curiae has submitted that the incident occurred more than a
  decade ago. The said respondents had already served the
  sentences awarded by the High Court. Undoubtedly, the High
  Court has not given any adequate and special reasons for
  reduction of their sentences, however, it could be the age, their
C social status, family circumstances which could have swayed
  the High Court in reducing the sentences. Therefore, the
  impugned judgment and order does not warrant interference.
  The appeals are liable to be dismissed.

o        7. We have considered the rival submissions made by
    learned counsel for the parties and perused the records.

       In the instant case as the respondents have not challenged
  their order of conviction under Section 376 IPC and Section
E 376 read with Section 1208 IPC respectively, it attained finality.
  Therefore, the only question remains for consideration is as to
  whether there could be any justification for the High Court in
  reduction of sentences and that too without recording any
  reason.

F      8. The statutory requirement for awarding the punishment
  less than seven years is to record adequate and special
  reasons in writing. Dictionary meanings of the word "adequate"
  are commensurate in fitness, sufficient, suitable, equal in
  magnitude and extent, and fully. "Special reasons" means
G exceptional; particular; peculiar; different from others; designed
  for a particular purpose, occasion, or person; limited in range;
  confined to a definite field of action.

      Thus, in a case like the instant one, in order to impose the
H punishment lesser than prescribed in the statute, there must be
      STATE OF RAJASTHAN v. VINOD KUMAR                           9


exceptional reasons relating to the crime as well as to the           A
criminal.

    9. In Meet Singh v. The State of Punjab, AIR 1980 SC
1141, this Court while dealing with expression "special
reasons" held that it means special to the accused concerned.         B
The court has to weigh reasons advanced in respect of each
individual accused whose case is taken up for awarding
sentence. The word 'special' has to be understood in
contradistinction to word 'general' or 'ordinary'. Thus, anything
which is common to a large class governed by the same statute,
cannot be said to be special to each of them. Therefore, in the       C
context of sentencing process, special reasons must be
'special' to the accused in the facts and circumstances of the
case in which the sentence is being awarded.

     10. In Madhukar Bhaskarrao Joshi v. State of 0
Maharashtra, AIR 2001 SC 147, this Court examined a similar
provision under the Prevention of Corruption Act, 1988 which ,. · ·
also contained a provision that accused shall be imposed the
punishment which "shall not be less than one year" , however,
a lesser punishment may be awarded recording the special              E
reasons. The Court held:

    ".... The proviso is in the form of a rare exception by giving
    power to the Court for reducing the imprisonment period
    below one year only when there are "special reasons" and
                                                                      F
    the law required that those special reasons must be
    recorded in writing by the Court ..... .

    ..... Parliament measured the parameters for such condign
    punishment and in that process wanted to fix a minimum
    sentence of imprisonment for giving deterrent impact on           G
    other public servants who are prone to corrupt
    deals ........ Such a legislative insistence is reflection of
    Parliament's resolve to meet corruption cases with very
    strong hand and to give signals of deterrence as the most
    pivotal feature of sentencing of corrupt public servants.......   H
    10        SUPREME COURT REPORTS                [2012] 6 S.C.R.


A               In the present case, how could the mere fact that this
         case was pending for such a long time be considered as
         a "special reason"? That is a general feature in almost all
         convictions under the PC Act and it is not a speciality of
         this particular case. It is the defect of the system that
B        longevity of the cases tried under the PC Act is too lengthy.
         If that is to be regarded as sufficient for reducing the
         minimum sentence mandated by the Parliament the
         legislative exercise would stand defeated."

                                                 (Emphasis added)
c
        11. In State of Jammu & Kashmir v. Vinay Nanda, AIR
    2001 SC 611, while dealing with a similar issue, this Court held
    as under:

D        " ....... Where the mandate of law is clear and unambiguous,
         the Court has no option but to pass the sentence upon
         conviction as provided under the statute ....... .

               The mitigating circumstances in a case, if
         established, would authorise the Court to pass such
E        sentence of imprisonment or fine which may be deemed
         to be reasonable but not less than the minimum prescribed
         under an enactment.. ....

         ......... For imposing the minimum sentence the Court has
F        to record special reasons. 'Special reasons' have to be
         distinguished from 'good' or 'other reasons'. The fact that
         the convict had reached his superannuation is not a
         special reason. Similarly pendency of criminal case for
         over a period of time can also not be treated as a special
G        reason .......... " (Emphasis added)

         12. In State of Karnataka v. Raju, AIR 2007 SC 3225, this
    Court dealt with a case of rape of a minor girl below 12 years
    of age, wherein the High Court reduced the sentence of the
    accused from seven years to three and a half years. This Court
H   held that the normal sentence in a case where rape is
      STATE OF RAJASTHAN v. VINOD KUMAR                       11


committed on a child below 12 years of age, is not less than        A
10 years' rigorous imprisonment, though in exceptional cases
"for special and adequate reasons" sentence of less than 10
years' rigorous imprisonment can also be awarded. The Court
observed that socio- economic status, religion, race, caste or
creed of the accused or the victim are irrelevant considerations    B
in sentencing policy. After giving due consideration to the facts
and circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in which
a crime has been committed are to be delicately balanced on         c
the basis of relevant circumstances in a dispassionate manner
by the Court.

     A similar view has been taken by this Court in State of
Madhya Pradesh v. Babbu Barkare@ Oalap Singh, AIR 2005
SC 2846; Dinesh@ Buddha v. State of Rajasthan, AIR 2006             D
SC 1267; Shailesh Jasvantbhai & Anr. v. State of Gujarat &
Ors., (2006) 2 SCC 359; and State of Madhya Pradesh v.
Basodi AIR 2009 SC 3081)

    13. In State of Karnataka v. Krishnappa, AIR 2000 SC            E
1470, this Court while dealing with the issue held:

    "The measure of punishment in a case 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 and age of the sexually assaulted female and the          F
    gravity of the criminal act. Crimes of violence upon women
    need to be severely dealt with. The socio-economic status,
    religion, race, caste or creed of the accused or the victim
    are irrelevant considerations in sentencing policy.
    Protection of society and deterring the criminal is the         G
    avowed object of law and that is required to be achieved
    by imposing an appropriate sentence." (Emphasis
    supplied)

                                                                    H
    12       SUPREME COURT REPORTS                   [2012] 6 S.C.R.


A       14. Similarly in State of Punjab v. Prem Sagar and Ors.,
    (2008) 7 SCC 550, this Court observed as under:

         "To what extent should the Judges have discretion to
         reduce the sentence so prescribed under the statute has
         remained a vexed question. However, in India, the view
B
         always has been that . the punishment must be
         proportionate to the crime. Applicability of the said principle
         in all situations, however, is open to question. Judicial
         discretion must be exercised objectively having regard to
         the facts and circumstances of each case". (Emphasis
c        supplied)

        15. In State of Madhya Pradesh v. Santosh Kumar, AIR
  2006 SC 2648, this Court held that in order to exercise the
  discretion of reducing the sentence, the statutory requirement
D is that the court has to record adequate and special reasons
  in the judgment and not fanciful reasons which would permit the
  court to impose a sentence less than the prescribed minimum.
  The reason has not only to be adequate but also special. What
  is adequate and special would depend upon several factors
E and no straitjacket formula can be indicated. (See also:
  Harbans Singh v. State of Punjab, AIR 1984 SC 1594; State
  of Andhra Pradesh v. Vasudeva Rao, AIR 2004 SC 960; State
  of M.P. v. Babula!, AIR 2008 SC 582; and State of Rajasthan
  v. Gajendra Singh, (2008) 12 SCC 720)
F      16. In Kamal Kishore etc. v. State of Himachal Pradesh,
  Al R 2000 SC 1920, this Court held that 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 court to
G invoke the discretion. Reasons which are general or common
  in many cases cannot be regarded as special reasons. (See
  also: Bhupinder Sharma v. State of Himacha/ Pradesh, AIR
  2003 SC 4684; and State of Andhra Pradesh v. Polamala
  Raju@ Rajarao, AIR 2000 SC 2854)
H
      STATE OF RAJASTHAN v. VINOD KUMAR                       13


    17. In State of M.P. v. Bala@ Ba/aram, AIR 2005 SC              A
3567, this Court while dealing with the issue observed:

     "The crime here is rape. It is a particularly heinous crime,
     a crime against society, a crime against human dignity,
     one that reduces a man to an animal. The penal statute B
     has prescribed a maximum and a minimum punishment
     for an offence under Section 376 IPC. To view such an
     offence once it is proved, lightly, is itself an affront to
     society. Though the award of maximum punishment may
     depend on the circumstances of the case, the award of the
     minimum punishment, generally, is imperative. The C
     provisos to Sections 376(1) and 376(2) IPC give the
     power to the court to award a sentence lesser than the
     minimum for adequate and special reasons. The power
     under the proviso is not to be used indiscriminately or
     routinely. It is to be used sparingly and only in cases where D
     special facts and circumstances justify a reduction. The
     reasons must be relevant to the exercise of such discretion
     vested in the court. The reasons must be set out clearly
     and cogently. The mere existence of a discretion by itself
     does not justify its exercise. The long pendency of the E
     criminal trial or the offer of the rapist to marry the victim
     are not relevant reasons. Nor is the age of the offender by
     itself an adequate reason. It is true that reformation as a
     theory of punishment is in fashion but under the guise of
     applying such theory, the courts cannot forget their duty to F
     society and to the victim. The court has to consider the
     plight of the victim in a case involving rape and the so<iial
     stigma that may follow the victim to the grave and which
     in most cases, practically ruins all prospects of a normal
     life for the victim." (Emphasis supplied)                     G

    18. In Ravji@ Ram Chandra v. State of Rajasthan, AIR
1996 SC 787, this Court held that it is the nature and gravity of
the crime but not the criminal, which are germane for
consideration of appropriate punishment in a criminal trial. The
                                                                    H
    14        SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A court will be failing in its duty if appropriate punishment is not
  awarded for a crime which has been committed not only against
  the individual victim but also against the society to which the
  criminal and victim belong. The punishment to be awarded for
  a crime must not be irrelevant but it should conform to and be
B consistent with the atrocity and brutality with which the crime
  has been perpetrated, the enormity of the crime warranting
  public abhorrence and it should respond to the society's cry for
  justice against the criminal.

C        19. Awarding punishment lesser than the minimum
    prescribed under Section 376 IPC, is an exception to the
    general rule. Exception clause is to be invoked only in
    exceptional circumstances where the conditions incorporated
    in the exception clause itself exist. It is a settled legal
    proposition that exception clause is always required to be strictly
D   interpreted even if there is a hardship to any individual.
    Exception is provided with the object of taking it out of the
    scope of the basic law and what is included in it and what
    legislature desired to be excluded. The natural presumption in
    law is that but for the proviso, the enacting part of the Section
E   would have included the subject matter of the proviso, the
    enacting part should be generally given such a construction
    which would make the exceptions carved out by the proviso
    necessary and a construction which would make the exceptions
    unnecessary and redundant should be avoided. Proviso is used
F   to remove special cases from the general enactment and
    provide for them separately. Proviso may change the very
    concept of the intendment of the enactment by insisting on
    certain mandatory conditions to be fulfilled in order to make the
    enactment workable. (Vide: S. Sundaram Pillai, etc. v. V.R.
G   Pattabiraman, AIR 1985 SC 582; Union of India & Ors. v. Ml
    s. Wood Papers Ltd. & Anr., AIR 1991 SC 2049; Grasim
    Industries Ltd. & Anr. v. State of Madhya Pradesh & Anr., AIR
    2000 SC 66; Laxminarayan R. Bhattad & Ors. v. State of
    Maharashtra & Anr., AIR 2003 SC 3502; Project Officer, /TOP
H   & Ors. v. P.O. Chacko, AIR 2010 SC 2626; and Commissioner
      STATE OF RAJASTHAN v. VINOD KUMAR                      15


of Central Excise, New Delhi v. Hari Chand Shri Gopal & Ors.,      A
(2011) 1 sec 236).

     20. Thus. the law on the issue can be summarised to the
effect that punishment should always be proportionate/
commensurate to the gravity of offence. Religion, race, caste,
                                                                   B
economic or social status of the accused or victim are not the
relevant factors for determining the quantum of punishment. The
court has to decide the punishment after considering all
aggravating and mitigating factors and the circumstances in
which the crime has been committed. Conduct and state of
mind of the accused and age of the sexuallyassaulted victim        C
and the gravity of the criminal act are the factors of paramount
importance. The court must exercise its discretion in imposing
the punishment objectively considering the facts and
circumstances of the case. The power under the proviso is not
to be used indiscriminately in a routine, casual and cavalier      D
manner for the reason that an exception clause requires strict
interpretation. The legislature introduced the imposition of
minimum sentence by amendment in the IPC w.e.f. 25.12.1983,
therefore,. the courts are bound to bear in mind the effect
thereof.                                                           E
     The court while exercising the discretion in the exception
clause has to record "exceptional reasons" for resorting to the
proviso. Recording of such reasons is sine qua non for granting
the extraordinary relief. What is adequate and special would
                                                                   F
depend upon several factors and no straight jacket formula can
be laid down.

     21. In the instant case, the High Court recorded the
submissions advanced on behalf of the parties to the extent that
none of the convicts wanted to press his appeal on merits as       G
it was not possible to succeed in view of the statement of the
prosecutrix Guddi (PW.1), recorded by the trial court and her
statement recorded by the Magistrate under Section 164
Cr.P.C. on 5th September, 2002. Thus, they pleaded only for
reduction of punishment.                                           H
    16       SUPREME COURT REPORTS                  [2012] 6 S.C.R.


A       The Public Prosecutor vehemently opposed the prayer for
    reduction of punishment.

         In spite of the fact that the learned counsel for the
    appellants before the High Court did not press their appeal on
    merits, the High Court affirmed the findings insofar as the rape
8
    is concerned, recorded by the trial Court. The High Court held:

         "So far as commission of offence of rape with her is
         concerned, I find that the same is fully proved from her
         statement and other prosecution evidence, and I am of the
C        view that the learned trial Court has considered the
         prosecution evidence in detail and has rightly convicted the
         accused persons and both the learned counsel are right
         in not pressing their appeal on merits."

         After affirming the conviction for rape for both the accused,
0
    the High Court observed that Heera Lal accused did not commit
    rape himself but had only accompanied Vined Kumar. The High
    Court further observed as under:

         "/ do not want to discuss the evidence, in detail, but I
E        certainly find his case to be a fit one to reduce the sentence
         of imprisonment to a period of 11 months and 25 days,
         already undergone by him. So far as accused Vined
         Kumar is concerned, I find his case to be a fit one to reduce
         the sentence of imprisonment looking to the whole
F        statement of the prosecutrix." (Emphasis added)

  Thus, it is evident from the aforesaid discussion that the learned
  counsel for the appellants before the High Court did not argue
  the case on merit but the High Court affirmed the findings on
G commission of rape making reference to the evidence,
  however, further made observation that the court did not want
  to discuss the evidence in detail. We fail to understand as how
  the findings on commission of rape have been affirmed without
  discussing the evidence on record. It was not necessary at all
H as the counsel for those parties did not argue the appeals on
  merit.
       STATE OF RAJASTHAN v. VINOD KUMAR                     17


     22. The Court further took note that awarding punishment      A
lesser than the minimum sentence of 7 years was permissible
only for adequate and special reasons. However, no such
reasons have been recorded by the court for doing so, and thus,
the court failed to ensure compliance of such mandatory
requirement but awarded the punishment lesser than the             B
minimum prescribed under the IPC. Such an order is violative
of the mandatory requirement of law and has defeated the
legislative mandate. Deciding the case in such a casual manner
reduces the criminal justice delivery system to mockery.

     23. Thus, in the facts and circumstances of the case, the
                                                                   c
appeals are allowed. Sentences awarded by the High Court are
set aside and seven years R.I. awarded by the trial court is
restored.

     Respondents are directed to surrender before the              D
concerned court within a period of four weeks from today and
shall undergo their remaining part of sentences. In case the
respondents fail to surrender within the said period, the Chief
Judicial Magistrate, Jaipur (City) is directed to take them into
custody and send them to jail. A copy of the order be sent to      E
learned Chief Judicial Magistrate, Jaipur (City), Rajasthan.

R.P.                                         Appeals allowed.