IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.150 of 1997 Reserved on : May 9, 2008. Decided on : May 16, 2008. State of H.P. …Appellant. Versus Jagdish alias Jaggo …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. P.K. Sharma, Additional Advocate General. For the Respondent : Mr. N.K. Thakur, Advocate. Surjit Singh, Judge State has appealed against the judgment of the Sessions Court, whereby respondent Jagdish alias Jaggo, on having been convicted of offence of rape, on a girl below 12 years of age, punishable under clause (f) of sub-section (2) of Section 376 of the Indian Penal Code, has been awarded rigorous imprisonment of five years and fine of Rs.5,000/-, in default of payment of fine further rigorous imprisonment for a period of three months, though the law prescribes ten years imprisonment, as the minimum sentence for such an offence. 2. Respondent has not filed any appeal challenging his conviction and sentence. 3. Relevant facts may be noticed. Prosecutrix, who was examined as PW-4, was born on 19th February, 1985, per Panchayat certificate Ex. PF. On 17th January, 1993, when she was a little less Whether reporters of the local papers may be allowed to see the judgment? …2… than eight years of age, her mother deputed her to fetch Lassi (butter milk) from the house of one Gorkha. On the way, the respondent met her and told her that the Gorkha was not at his house but had been cutting grass on the lower side of the path. The prosecutrix started proceeding towards the lower side of the path. When she reached a considerable distance from the path, the respondent overreached her and physically lifted and took her across a nullah into the bushes where he committed rape on her. The prosecutrix cried for help, but as it was a lonely place nobody came to her rescue. Her vagina started bleeding profusely. Respondent then covered her in his own coat and brought her to the village and left her near her house. The prosecutrix narrated the incident to her mother. In the evening, when her father, who was employed as a labourer those days, returned, her mother narrated the incident to him. Next morning, the father and the Nana of the prosecutrix took her to the Police Station, where the case was registered. 4. Police got the prosecutrix medically examined. Her medical examination showed that her breasts and pubic hair had not yet developed. She was finding it difficult to walk and staggered. Her legs and thighs were blood smeared. Libia majora covering vulva was also found smeared with blood. Inner side of both libia minora and libia majora was bruised, red, inflamed and painful. A small laceration over the left side of perineum was seen and it was covered with clotted blood. Hymen was lacerated and had many radial tears. The margins of these tears were irregular, painful, swollen, inflamed, red and bleeding and when touched the bleeding increased. Bleeding was also noticed from inside the vagina. Vaginal orifice was very small and admitted, with extreme pain, only the terminal phalanx of little finger. …3… Doctor opined that the prosecutrix had been subjected to sexual intercourse within 48 hours. 5. On completion of investigation, the respondent was sent up for trial. Trial Court charged him with the offence, under Section 376 of the Indian Penal Code, and at the end of trial convicted and sentenced him, as aforesaid. Trial Court did not impose the minimum prescribed sentence of ten years imprisonment. Special and adequate reason recorded by the trial Court, for invoking the proviso to sub- section (2) of Section 376 of the Indian Penal Code, for not imposing minimum sentence, is that the respondent is a young man and his detention in prison for a long period will turn him into a hardened criminal. 6. Respondent was 19 years old, at the time when the charge was framed in December, 1994. He was 21 years old when the judgment holding him guilty and convicting him of the offence was delivered in December, 1996. Young age of an accused is no ground, muchless a special and adequate reason, to bye pass the provision of law prescribing minimum sentence for an offence and at the same time leaving discretion to the Court to impose lesser punishment, in case there are special and adequate reasons for doing so. Courts are bound to follow and respect the mandate of law. They should not look for excuses to get over the mandatory provisions of law, as has been done by the trial Court, in this Case. 7. Legislature, in its wisdom, has prescribed minimum sentence of ten years imprisonment for the offence of rape, where the victim is below 12 years of age. Discretion has been given to the Court, vide proviso to sub-section (2) of Section 376 of the Indian Penal Code, to impose lesser punishment, but only in cases where there are special and adequate reasons, which are required to be stated in the judgment …4… itself. Young age of a convict and the chances of his turning into a hardened criminal if kept in jail for long period, are no reasons, leave alone special and adequate reasons, for not imposing the minimum prescribed sentence. In most of the offences pertaining to sexual assault on women and children, accused are young and the Legislature is supposed to have kept this fact in mind while prescribing minimum sentence. So, the Legislature presumably did not intend to give the benefit of the proviso, aforesaid, to such convicts. 8. Hon’ble Supreme Court in State of Madhya Pradesh v. Santosh Kumar (AIR 2006 Supreme Court 2648) and State of Karnataka v. Raju (AIR 2007 Supreme Court 3225) has very categorically ruled that the young age of a convict is no ground for imposing lesser sentence than the minimum sentence, prescribed under Section 376(2)(f) of the Indian Penal Code, by invoking the proviso to sub-section (2) of Section 376 of the Indian Penal Code. 9. In view of the abovestated position, appeal is accepted and the respondent-convict is awarded ten years rigorous imprisonment instead of five years rigorous imprisonment, as imposed by the trial Court. The respondent-convict is ordered to be sent to jail for which purpose the trial Court shall issue non-bailable warrant of arrest against the respondent-convict and then commit him to jail, to serve out the enhanced sentence of imprisonment. 10. Appeal stands disposed of. ( Surjit Singh ), J May 16, 2008(sd) ( Surinder Singh ), J