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 Page 2 of 17 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.
2024 INSC 82
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Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Special Leave Petition (Crl.) No.2888 of 2023
Bhaggi @ Bhagirath @ Naran
…Petitioner
Versus
The State of Madhya Pradesh
…Respondents
O R D E R
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
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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 petitionerconvict 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.
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
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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
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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:-
“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 Punjab3 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
1
(2010) 3 SCC 508
2
(2001) 9 SCC 615
3
(2006) 12 SCC 79
4
(2011) 2 SCC 764
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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 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
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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
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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. 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’.
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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
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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:-
“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.”
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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
5
(2023) 9 SCC 817
6
(2016) 7 SCC 1
7
(2008) 13 SCC 767
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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 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
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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.”
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
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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 PW14 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
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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,
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
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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
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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.”
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
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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.
………………………, J.
(C.T. Ravikumar)
………….…………, J.
(Rajesh Bindal)
New Delhi;
February 05, 2024
