LexSHIMBHU AND ANR. versus STATE OF HARYANA
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A B [2013] 14 S.C.R. 136 SHIMBHU AND ANR. v. STATE OF HARYANA (Criminal Appeal Nos.1278-79 of 2013) .. AUGUST 27, 2013 [P. SATHASIVAM, CJI, RANJANA PRAKASH DESAI AND RANJAN GOGOi, JJ.) Penal Code, 1860 - ss. 376(2)(g), 366, 342, 363 and 506 C rlw. s.34 - Conviction under- By courts below - Sentence of 10 ye·ar RI and fine for offence u/s. 376(2)(g) with other sentences for offences under other provisions - On appeal, plea for reducing the sentence - Held: Minimum sentence for the offence of gang rape is 10 years - However, lesser D sentence can be imposed giving special and adequate reasons - Special and adequate reasons depend on facts and circumstances of the case - The grounds for reducing the sentence, taken in the present case, do no suffice special and adequate reasons - Hence, sentence not reduced - E Order of courts below confirmed - Sentence/sentencing. Sentence/sentencing: Offence of gang rape - Sentence for - Lesser than the minimum prescribed - On the basis of compromise between F the accused and the prosecutrix - Held: Rape is a non- compoundable offence - It would not be safe for the court in considering the compromise as a ground, to exercise its discretionary power under the proviso to s.376(2)(g) /PC - Penal Code, 1860 - s.376(2)(g) Proviso. Punishment - Imposition of - Criteria for - Held: Punishment should be proportionate/commensurate to the gravity of offence - Religion race, caste, economic or social status of the parties long pendency of the trial or offer of rapist 136 .. SHIMBHU AND ANR. v. STATE OF HARYANA 137 _;,,.., to marry the victim or marriage of victim and hei settlement, cannot be construed as special factors for reducing the minimum prescribed sentence - Penal Code, 1860 - s.376(2)(g). Appellants-accused A1 and A2 were convicted by courts below ulss.376(2)(g), 366, 342, 363 and 506 r/w. s.34 IPC. They were sentenced to 10 years RI with fine of Rs.5,000/- with default clause for the offence punishable u/s. 376(2)(g) r/w. s.34 IPC. Their conviction and sentence was confirmed by High Court. In appeal to this Court, the appellant-accused prayed A 8 c for reduction of sentence to the period already undergone, on the grounds that the accused and the prosecutrix have entered into a compromise; that the incident took place about 18 years back; and that the D prosecutrix was happily married and had children. Dismissing the appeal, the Court HELD: 1. The crucial stage in every criminal proceeding is the stage of sentencing. It is the most E complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the judges to levy the appropriate sentence. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the F circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., · cumulatively constitute as the yardsticks for the judges to decide on the sentence to be imposed. The sentencing G Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed. [Para 9] [144-G-H; 145-A-B] H 138 SUPREME COURT REPORTS [2013] 14 S.C.R. A 2. A perusal of s.376(2) IPC shows that the legislative mandate is to impose a sentence, for the offence of gang rape, for a term, which shall not be less than 10 years, but it may extend to life and shall also be liable to fine. The proviso to Section 376(2) IPC, of course, lays down s that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 :vears. Thus, the normal sentence in a case where gang rape is committed is not less than 10 years though c in E,xceptional cases, the Court by giving "special and ade1quate reasons", can also award the sentence of tess than 10 years. [Para 11] [147-A-C] • 3. It is a fundamental rule of construction that a proviso must be considered in relation to the ntatn · D prnvision to which it stands as a proviso, particularly, m such penal provisions. Whether there exist any .. special and adequate reason" would depend upon a variety .of factors and the peculiar facts and circumstances of each case. This Court, in various judgments, has reached the E consen
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