N Review Petition Criminal Nos
24 1 242 of 1989
IN Criminal Appeal Nos
544 545 of 1986
Mahabir Singh for the Petitioner
AN Mulla SB Upadhyay for the Respondents
The Order of the Court was delivered by RAY JIt is very unfortunate that a controversy has arisen following the judgment sought to be reviewed in Criminal Appeal Nos
544 45 of 1986 rendered by this Bench on 31st January 1989 whereby this Court while confirming the conviction of both the respondentsaccused reduced the sentence of imprisonment in respect of each of the respond ents from 10 years to 5 years by invoking the proviso to Section 3762 of the Indian Penal Code observing the peculiar facts and 498 circumstances of this case coupled with the conduct of the victim girl in our view do not call for the minimum sen tence as prescribed under Section 3762
 The State of Haryana has filed the above petitions seeking review of the judgment and to pass such other or further orders as may be necessary in the circumstances of the case
 At the outset we may examine the scope of review of a judgment in a criminal case already pronounced by this Court
Article 137 of the Constitution of India gives the power to the Supreme Court to review its judgment but such special power is exercisable in accordance with and subject to the rules of this Court made under Article 145 of the Constitution of India
Order XL Rule 1 of the Supreme Court Rules provides The Court may review its judgment or order but no application for review will be enter tained in a civil proceeding except on the ground mentioned in Order XLVII Rule 1 of the Code and in a criminal proceeding except on the ground of an error on the face of the record This Court in a series of decisions has examined the scope of review in criminal cases after the judgment pro nounced or order made
Though we are not citing all those decisions we may refer to a In the case of PN Eswara Iyer and Ors vs Registrar Supreme Court of India  the Constitution Bench of this Court while considering the rule observed thus The rule Order XL Rule 1 on its face affords a wider set of grounds for review for orders in civil proceedings but limits the ground vis a vis criminal proceedings to errors apparent on the face of the record 
 See also Sow Chandra Kanta  Anr
vs Sheik Habib  and Sheonandan Paswan vs State of Bihar and Or ders In our considered view when the present matter is examined in the light of the decisions referred to above we find no error apparent on the face of the record necessitat ing review of the judgment and as such these review peti tions are liable to be dismissed
499 We have heard the arguments of the learned senior coun sel Mr Rajinder Sachar who though initially started his arguments on behalf of the People s Union for Civil Liber ties ultimately advanced his arguments on behalf of the State in these review petitions on the representation made by Mr Mahabir Singh the learned counsel for the State
Mr RKP Shankar Dass who advanced his arguments on behalf of Mahila Sanyukt Morcha stated that his arguments may also be treated as supplemental to the arguments of Mr Rajinder Sachar
Mr Mulla the learned senior counsel appeared on behalf of the respondents
Although we have found that the Review Petitions are liable to be dismissed on the ground that there is no error apparent on the face of the record we however in view of the elaborate submissions made by the various learned coun sel appearing before us would like to make the following observations
The facts of the case are briefly stated in the Criminal Appeals and therefore it is not necessary to restate the same
Suffice to say that during the course of the  hearing on the appeals on behalf of the respondentsaccused it has been urged by the learned defence counsel that the victim Suman Rani was a woman of questionable character and easy virtue with lewd and lascivious behaviour and as such her version is not worthy of acceptance
After considerable debate on the merits of the case the argument was confined only with regard to the quantum of sentence
after meticu lously examining the entire matter this Court came to the conclusion that the proviso to Section 3762 IPC could be invoked having regard to the peculiar facts and circum stances of the case coupled with the conduct of the victim and the mandatory sentence provided under the penal provi sion is not called for
At this juncture we would like to point put that the very confirmation of the conviction accepting the sole testimony of the victim Suman Rani rejecting the arguments of the defence counsel is itself a clear indication that this Court was of the view that the character or reputation of the victim has no bearing or relevance either in the matter of adjudging the guilt of the accused or imposing punishment under Section 376 IPC We would like to state with all emphasis that such factors are wholly alien to the very scope and object of Section 376 and can never serve either as mitigating or extenuating circumstances for impos ing the sub minimum sentence with the aid of the proviso to Section 3762 of the IPC
In fact we have expressed our 500 views in the judgment itself  stating No doubt an offence of this nature has to be viewed very seriously and has to be dealt with condign punishment
 We have neither characterised the victim Suman Rani as a woman of questionable character and easy virtue nor made any reference to her character or reputation in any part of our judgment but used the expression conduct in the lexi graphical meaning for the limited purpose of showing as to how Suman Rani had behaved or conducted herself in not telling any one for about 5 days about the sexual assault perpetrated on her till she was examined on 2831984 by the Sub Inspector of Police PW 20 in connection with the complaint given by Ram Lal PW 14 on 2231984 against Ravi Shanker
In this connection we make it further clear that we have not used the word conduct  with reference to the character or reputation of the victim Suman Rani
Before parting with this matter we would like to ex press that this Court is second to none in upholding the decency and dignity of woman hood and we have not expressed any view in our judgment that character reputation or status of a raped victim is a relevant factor for considera tion by the Court while awarding the sentence to a rapist
With the above observations we dismiss the Review Peti tions
GN Petitions dismissed


Summary:
The appellant contractor claimed a sum of Rs387796 before the sole arbitrator on April 5 1977 for the value of 15 items of works not paid
To this he added interest to the tune of Rs2 95894 at 18 per cent from the date which according to him each of the claims should have been set tled making a total of Rs683690
He also prayed for further interest at 18 per cent from April 6 1977 till date of award and thereafter until payment
The respondent State filed its written statement and the arbitration proceedings continued for some time
But before the arbitrator could make an award an application under sections 82 and 12 of the Arbitration Act was filed before Subordinate Judge who by his order removed the arbitrator and appointed another person as the sole arbitrator
The new arbitrator entered on the reference got all the records from the previous arbi trator and continued the hearing
The appellant made a supplemental claim for a sum of Rs827857 and also prayed for interest on that amount at 18 per cent from October 14 1973 till date of payment
The respondent State objected to the entertainment of additional claim
The arbitrator however proceeded with the hearing
On November 8 1981 the day the hearing was closed the appellant contractor filed one consolidated abstract  of his two claim state ments showing a total claim of Rs3144437 and also prayed for interest at 18 per cent per annum from November 9 1981 till the date of payment
The arbitrator made an award on December 7 1981 allow ing a lump sum of Rs2500156 together with interest at 9 per cent after the expiry of 30 days from the date of making the award till the date of payment or decree whichever was earlier
The award was made a decree of the court
The court however disallowed interest from the date of decree till realisation
349 On appeal by the respondent State the High Court came to the conclusion that the award was vitiated by non applica tion of mind amounting to legal misconduct
In that view it set aside the award and remitted the matter back to the Arbitration Tribunal constituted under section 41A of the Arbi tration Act as amended by Orissa Act 3 of 1983
Dismissing the appeal the Court HELD 11 Though the arbitrator is not bound to disclose as to what interpretation he has made and what inference he has derived from the documentary evidence he is bound to refer in the award that he had considered all the documents placed before him no matter whether he relies on them or discards them from consideration
353A 12 In the instant case the arbitrator in his award ex facie did not mention that he had referred to or consid ered the documents placed before him in respect of the original claim
The order sheet mentions about the nearing on different dates relating to tile supplemental claim statement which was filed before him
It was this argument in respect of the supplemental claim that has been mentioned in the award
353B 21 The arbitrator in case of a reference to him in pursuance of an arbitration agreement between the parties being a person chosen by parties is constituted as the sole and final judge of all the questions and the parties bind themselves as a rule to accept the award as final and con clusive
Even in a case where the arbitrator does not give any reason or he commits a mistake either in law or in fact in determining the matter referred to him and such a mistake does not appear on the face of the award the same cannot be assailed
It could be interfered with only in limited cir cumstances as provided under sections 16 and 30 of the Act
The court has therefore to test the award with circumspection
1354F E G 2 2 All the same if the amount awarded is dispropor tionately high having regard to the original claim made and the totality of the circumstances it would certainly be a case where the arbitrator could be said to have not applied his mind amounting to legal misconduct
354G H State of Orissa vs Dandasi Sahu   referred to
In the instant case in the original claim made before the arbitrator the value of the work not paid was stated as Rs387796
The supplemental claim made before the arbitrator amounted to 350 Rs827857
Thus the total value of work not paid accord ing to the appellant was Rs1215653
As against this claim the arbitrator had awarded a lump sum of Rs2500156
No doubt the appellant had asked for payment of interest and including interest his claim was Rs3144437
354H 355A 23 Where a reference to arbitration was made prior to the commencement of the which came into force on August 19 1981 the arbitrator is not empowered to grant interest for the period upto the date of submission of the claim or the period during which the dispute was pending before the arbitrator and where the award granted a lump sum amount it shall deem to have included the interest also if interest had been claimed before the arbitrator and the inclusion of such interest would render that part of award invalid
355B C In the instant case if the interest portion is exclud ed then it becomes evident that award of Rs2500156 suffers from the vice of giving disproportionately high amount
355C D 24 Since the award suffers not merely on the ground that it included interest but also on the ground of non application of the mind the question of setting aside only the invalid part relating to the grant of interest does not arise
355F G State of Orissa vs Niranjan Swain 1989 4 SCC 269 distinguished