THONGAM TARUN SINGHversusTHE STATE OF MANIPUR

                          [2019] 7 S.C.R. 143                            143


                   THONGAM TARUN SINGH                                   A
                                  v.
                    THE STATE OF MANIPUR
                 (Criminal Appeal No. 805 of 2019)
                          APRIL 30, 2019                                 B
       [R. BANUMATHI AND S. ABDUL NAZEER, JJ.]
       Sentence/Sentencing: Gang rape of girl aged 16 years –
Prosecution case was that accused no.1 picked up the victim in a
car along with his friend accused no.2 and took her to a restaurant
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where he forcibly gave her a soft drink mixed with intoxicant –
After taking the said drink, the victim fell unconscious – Thereafter,
the accused-appellants committed rape on her – Appellant
convicted and sentenced to undergo rigorous imprisonment for fifteen
years with fine of Rs.25,000 for offence under s.376(2)(g) and
rigorous imprisonment for 10 years for offence under s.120-B and         D
both the sentence were to run concurrently – In the instant appeal,
the conviction was upheld – Challenge limited to quantum of sentence
– Held: Prior to the amendment (Amendment Act 13 of 2013), for
the punishment under s.376(2)(g) IPC, it provided for rigorous
imprisonment for a term not less than ten years but which may be
                                                                         E
for life and shall also be liable to fine – Prior to the amendment
(Amendment Act 13 of 2013) by the proviso to s.376(2) IPC, the
Court was vested with the discretion that for adequate and special
reasons to be mentioned in the judgment, impose a sentence of
imprisonment of either description for a term of less than ten years
– At the time of occurrence, appellant no. 1 was working as a            F
police driver and appellant no. 2 was a singer having good
reputation, performing as a singer on the stage and both the
appellants were aged about 24-25 years – Both the appellants had
no criminal antecedents and they hailed from backward area – The
certificate issued from the Jail Authorities showed their good and
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satisfactory conduct and participation in the sports/garden activities
and other programmes of the Jail – Therefore, in the facts and
circumstances of the case, the sentence of imprisonment of fifteen
years (for the conviction under s. 376(2)(g) IPC) and sentence of
imprisonment of ten years (for the conviction under s.120B IPC)
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                                 143
144            SUPREME COURT REPORTS                      [2019] 7 S.C.R.


A     are reduced to eight years and both the sentences are to run
      concurrently – Penal Code, 1860 – s.376(2)(g) and s.120-B – Crime
      against women.
            Partly allowing the appeal, the Court
            HELD: 1. The evidence of PW-5 and the owner of the Hotel
B     (PW-3) and the materials adduced by the prosecution clearly
      showed that the victim was subjected to rape both by accused
      no. 1 as well as accused no. 2. When the evidence adduced by
      the prosecution was very clear that she was subjected to sexual
      intercourse by more than one person, the act clearly fell within
C     Explanation 1 to Section 376 (prior to the Amendment Act 2013).
      In view of the evidence of PW-5 and other evidences, even though
      no charge was framed under Section 376(2)(g)IPC, the conviction
      of the appellants under Section 376(2)(g) IPC cannot be faulted.
      The evidence adduced by the prosecution in particular evidence
      of the victim (PW-5), clearly showed that no serious prejudice
D     was caused to the appellants by conviction under Section 376(2)(g)
      IPC. [Para 9] [147-D-F; G; 148-A]
            2. As far as quantum of sentence is concerned, Section
      376 IPC- punishment for rape has been amended by Act 13 of
      2013 (with retrospective effect from 03.02.2013). As per the
E     amended section, the minimum sentence of seven years is
      provided for the offence of rape which may extend to
      imprisonment for life. After the amendment, no discretion was
      vested with the Court to reduce the sentence. Prior to the
      amendment (Amendment Act 13 of 2013) for the punishment
F     under Section 376(2)(g) IPC, it provided for rigorous
      imprisonment for a term which shall not be less than ten years
      but which may be for life and shall also be liable to fine. Prior to
      the amendment (Amendment Act 13 of 2013) by the proviso to
      Section 376(2) IPC, the Court has been vested with the discretion
      that for adequate and special reasons to be mentioned in the
G     judgment, impose a sentence of imprisonment of either
      description for a term of less than ten years. What is ‘adequate
      and special reasons’ would depend upon several factors and no
      strait-jacket formula can be imposed. No catalogue can be
      prescribed for adequacy of reasons nor instances can be cited
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   THONGAM TARUN SINGH v. THE STATE OF MANIPUR                              145


regarding special reasons. They differ from case to case.                   A
[Paras 10, 11] [148-B-E]
      3. At the time of occurrence, appellant no. 1 was working
as a police driver and appellant no. 2 was a singer having good
reputation, performing as a singer on the stage and both the
appellants were aged about 24-25 years. In the facts and                    B
circumstances of the case and that the appellants have no criminal
antecedents and also the conduct of the appellants in the Jail
(post conviction), the sentence of imprisonment of fifteen years
(for the conviction under Section 376(2)(g) IPC) and sentence of
imprisonment of ten years (for the conviction under Section 120B
IPC) are reduced to eight years. [Paras 12] [148-F-H; 149-A]                C

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 805 of 2019.
     From the Judgment and Order dated 30.04.2018 of the High Court
of Manipur at Imphal in Criminal Jail Appeal No. 2 of 2014.                 D
      With
      Criminal Appeal No. 806 of 2019.
     R. Basant, Sr. Adv., David A., Akshay Sahay, Akshay Girish Ringe,
Maibam Nabaghanashyam Singh, Advs. for the Appellant.
                                                                            E
     Leishangthem Roshmani Kh, Ms. Anupama Ngangom,
Ms. Maibam Babina, Advs. for the Respondent.
      The Judgment of the Court was delivered by
      R. BANUMATHI, J. 1. Leave granted.
                                                                            F
       2. These appeals arise out of the judgment dated 30.04.2018 passed
by the High Court of Manipur at Imphal in Criminal Jail Appeal No. 2 of
2014 and Criminal (Jail) Appeal No. 3 of 2014 in and by which the High
Court has affirmed the conviction of the appellants under Section
376(2)(g) IPC for committing the gang rape upon the victim and,
accordingly, they were sentenced to undergo rigorous imprisonment for       G
a period of fifteen years with a fine of Rs.25,000/-. The appellants were
also convicted for the offence under Section 120-B IPC and they were


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146            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A     sentenced to undergo rigorous imprisonment for a period of ten years
      both the sentences were to run concurrently.
             3. Briefly stated the case of prosecution: Two appellants were
      close friends. On 20.10.2012 accused no. 1 said to have picked up the
      victim (PW-5) aged about sixteen years and took her in a Maruti Car
B     and taken to a restaurant along with his friend – accused no.2. Further,
      case of prosecution is that the appellants have forcibly given a soft drink
      mixed with intoxicant to the victim and after taking the said drink, she
      fell unconscious. Thereafter the appellants are said to have committed
      rape on her. The allegation is that when the victim regained her senses,
      she found that she was raped by accused no. 1 and also by accused no.
C     2 and, thereafter, she was dropped off. Complaint was lodged by the
      mother of the victim on the next day on 21.10.2012, based on which FIR
      was registered under Sections 376 IPC and 120-B IPC. On completion
      of the investigation, charge-sheet was filed and the appellants were
      charged for the offences under Section 376 and Section 120-B IPC.
D            4. Upon consideration of the oral evidence of PW-5 (Victim) and
      the medical evidence and other evidence, the Trial Court convicted the
      appellant no. 1 and also appellant no. 2 under Section 120B IPC and
      Section 376(2)(g) IPC. For the conviction under Section 120B IPC, the
      appellants were sentenced to undergo rigorous imprisonment for a period
E     of ten years with a fine of Rs.10,000/- each with default clause. For the
      conviction under Section 376 (2)(g) IPC, the appellants were sentenced
      to undergo rigorous imprisonment for a period of 15 years with a fine of
      Rs.25,000/- each with default clause. Both the sentences were ordered
      to be run concurrently. The conviction of the appellants and the sentence
      of imprisonment imposed on each of them were affirmed by the High
F     Court as aforesaid in para (1). Being aggrieved, the appellants have
      preferred these appeals.
            5. By the orders dated 27th August, 2018 and 17th September,
      2018 this Court held that this Court is not inclined to interfere with the
      conviction of the appellants under Section 376(2)(g) IPC and Section
G     120-B IPC. Notice was issued only limited to the quantum of sentence.
             6. We have heard Mr. R. Basant, learned senior counsel and Mr.
      Maibam Nabaghanashyam Singh, learned counsel appearing on behalf
      of the appellants as well as Mr. Leishangthem Roshmani, learned counsel
      appearing on behalf of the respondent-State of Manipur.
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   THONGAM TARUN SINGH v. THE STATE OF MANIPUR                                 147
               [R. BANUMATHI, J.]

       7. The main contention of the learned senior counsel appearing          A
on behalf of the appellant(s) is that charges were not framed against the
appellants for the gang rape under Section 376(2)(g)IPC and while so
the Trial Court as well as the High court erred in convicting the appellants
under Section 376(2)(g) IPC. Learned senior counsel further submitted
that without framing the charges for grievous offence, namely, Section
                                                                               B
376(2)(g) IPC, the Court ought not to have convicted under Section
376(2)(g) IPC and urged us to keep this aspect in considering the quantum
of sentence.
       8. By perusal of the charges framed against the accused, it clearly
shows that charges were framed against the accused under Section 376
IPC read with Section 120B IPC. In this regard, learned counsel appearing      C
on behalf of the respondent - State of Manipur has drawn our attention
to Section 464 Cr.P.C. and submitted that no finding, sentence or order
by a Court of Competent Jurisdiction shall be deemed invalid merely on
the ground that no charge was framed unless failure of justice has in
fact been occasioned thereby.                                                  D
       9. From the evidence of PW-5 and the materials adduced by the
prosecution, it is clearly brought in evidence that the victim was subjected
to rape both by accused no. 1 as well as accused no. 2. Referring to the
evidences of PW-5 and the owner of the Hotel (PW-3), the High Court
has clearly recorded clear concurrent findings of fact that the victim         E
was subjected to rape by both the appellants. When the evidence adduced
by the prosecution is very clear that she was subjected to sexual
intercourse by more than one person, in our view, the act clearly falls
within Explanation 1 to Section 376 (prior to the Amendment Act 2013)
which reads as under:
                                                                               F
      Explanation 1 to Section 376
      “Where a woman is raped by one or more in a group of persons
      acting in furtherance of their common intention, each of the persons
      shall be deemed to have committed gang rape within the meaning
      of this sub-section’.                                                    G
      Considering the evidence of PW-5 and other evidences, in our
considered view, even though no charge was framed under Section
376(2)(g)IPC, the conviction of the appellants under Section 376(2)(g)
IPC cannot be faulted. Considering the evidence adduced by the
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148            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A     prosecution in particular evidence of the victim (PW-5), We are of the
      view that no serious prejudice has been caused to the appellants by
      conviction under Section 376(2)(g) IPC.
              10. So far as quantum of sentence is concerned, Section 376 IPC-
      punishment for rape has been amended by Act 13 of 2013 (with
B     retrospective effect from 03.02.2013). As per the amended section, the
      minimum sentence of seven years is provided for the offence of rape
      which may extend to imprisonment for life. After the amendment, no
      discretion is vested with the Court to reduce the sentence. Prior to the
      amendment (Amendment Act 13 of 2013) for the punishment under
      Section 376(2)(g) IPC, it provided for rigorous imprisonment for a term
C     which shall not be less than ten years but which may be for life and shall
      also be liable to fine. Prior to the amendment (Amendment Act 13 of
      2013) by the proviso to Section 376(2) IPC, the Court has been vested
      with the discretion that for adequate and special reasons to be mentioned
      in the judgment, impose a sentence of imprisonment of either description
D     for a term of less than ten years.
            11. The question falling for consideration is whether there are
      adequate and special reasons warranting exercise of discretion to reduce
      the sentence of imprisonment. What is ‘adequate and special reasons’
      would depend upon several factors and no strait-jacket formula can be
E     imposed. No catalogue can be prescribed for adequacy of reasons nor
      instances can be cited regarding special reasons. They differ from case
      to case.
             12. It is stated that at the time of occurrence, appellant no. 1 was
      working as a police driver and appellant no. 2 was a singer having good
F     reputation, performing as a singer on the stage and both the appellants
      were aged about 24-25 years, at the time of the occurrence. It is also
      stated that both the appellants have no criminal antecedents and they
      hail from backward area. Learned counsel for the appellants have also
      produced certificate issued from the Jail Authorities to show that the
      conduct of the appellants (post conviction) are very good and satisfactory
G     and they have been participating in the sports/garden activities and other
      programmes of the Jail. Considering the facts and circumstances of the
      case and that the appellants have no criminal antecedents and also the
      conduct of the appellants in the Jail (post conviction), the sentence of
      imprisonment of fifteen years (for the conviction under Section 376(2)(g)
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    THONGAM TARUN SINGH v. THE STATE OF MANIPUR                                149
                [R. BANUMATHI, J.]

IPC) and sentence of imprisonment of ten years (for the conviction             A
under Section 120B IPC) are reduced to eight years.
      13. The sentence of imprisonment imposed upon each of the
appellants is reduced to eight years. As directed by the Trial Court and
the High Court both the sentences are to run concurrently.
       14. The appeals are partly allowed in above terms.                      B


Devika Gujral                                        Appeals partly allowed.



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