SIBVGOVIND

THE STATE OF MADHYA PRADESH March 14, 1972

. [A, N. GROVER AND M. H. BEG, JJ.J

Crin1inal trial-Enha11cen1e11t-Enlu1nce11u!nt of sentence by appellate Court-Principles goierning.

A question of scnteno.:: is a matter of di~•cretion. It is well settled that when cliscreti.on has been properly exercised along accepted judicial Jines, an appellate court should not interfere to the detriment of anaccused person.

Such interference 'Viii be justified only by strong reasons \Vhich must be disclosed on the fact of the jud_gimnt.

Jn a matter "f enhancement there should not be interfen.:ncc wllen the sentence passed

imposes substantial punishment.

Jnterfen!nc.e is only called for when: it is manifestly inadequate. [839 BJ

Where the trial court after taking into acC:Ount a11 the circumstances anJ nlso the discr;!pancies in the pro=ecution v!Jrsion convicted the appellant to one year's imprisonment under s. 366, Pen:ll Code, and the High court in appeal, enhanced the sentence to seven years' im:i.1)risonment.

HEl:D : that the High Court !>ad not noticed a number of facts duly <:onsidered by the trial court and. therefore, the exercise of the power of enhancement could not be justified. [839 OJ

Bed Raj v. The State of Uttar Pradesh, [19551 2 S. C.R. 583; and AlamRir & Anr. v. The State of Bihar, L19S9J Supp. I S.C.R. 464, refernd to.

Nabi Bux mrd Or.r. v. The State of Madhya Pradesh, A.l.R. 1972 S .C. 495, distinguished.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 3 of 1972.

Appeal by special leave from the judgment and order dated January 25, 1971 of the Madhya Pradesh High Court, Indore Bench.in Criminal Appeal No. 391 of 1969.

S. K. Gambhir, for the appellant.

G M. N. Shroff, for the respondent.

The Judgment of the Cqurt was delivered by

Beg, J, Shiv Govind, the appellant , has obtained SJieelal Leave to appeal against only that part of the Judgment and order of the High Court of Madhya Pradesh by which his sentence of H one year's Rigorous 'Im:priSOll!llent, passed by the Additional Sessions' Judge, lnilote, upon " conviction under Section 366 Indian Penal Code, was enhanced to seven years' Rigorous Imprisonment

' '

and a fine of Rs. 100 / -, and, in default of payment of fine, to three A months' further rigorous imprisonment.

The appellant, aged about 20 yearn at the time of ihe alleged offence of 9th of August, 1969, was the youngest of three persons who were jointly charged and tried for offence$ punuhable under Section 366 and 354

I.P.C.

....

The prosecution case was : Kumari Seema, a girl below 18 years of age, was offered a lift on his bicycle by the accused, Kamal Singh, aged 30 ye; irs, while she was returning to her home from her School on 9th August, 1969.

The girl.hesitated.· But,

as she reposed confidence in Kamal Singh, whom she looked upon as her uncle, she accepted the offer.

Kamal .Singh took Kumari Seema on his bicycle to the Regal Cinema where she part-took of C some. refreshment ordered by Kamal Singh.

Meanwhile, the appellant Shiv Govind and the accused Punam, aged 26, arrived in a car.

Kamal Singh asked Kumari Seema to go with the two younger men in their car.

Seema refused.

Theo, Kamal Singh asked her to go on his bicycle to Y ashwant Talkies.

She complied with this request.

At this Cinema, Kamal Singh deposited his Cycle at the Cycle stand.

The appellant Shiv Govind and his companion Punam had followed in their car.

The three men succeeded in persuading Seema, despite her initial refusal, to sit in the car and to go for a short pleasure trip in it on the definite assurance that. she will soon be reached home. . After the girl had

sat in the car she was driven to a place called Mandow, a number J: of miles away from Indore, and was made to alight at a tourist's bungalow.

There two rooms were engaged by the accused.

Kamal Singh occupied one of the two rooms and the girl was closeted in the other room with the appellant and his companion Punam, who.were both drunk.

One of the two youngmen caught hold of the hands of the girl while the other tried to undress her with the object of raping her.

Kumari Seema, at this point, F feigned sudden indisposition. so that the two youngmen had to bring her out into the gallery for fresh air.

She managed to escape while the accused went inside to fetch some water for her.

She rushed into the house of one Babula! Kamdar and complained to:him about the incident. This led to a COlillllunication of information Of the offences to the Police which went to the tourist's bungalow and arrested the three accused who were brought to Police Station Nalcha where a First Information Report was lodged.

The Trial Court had examined evidence given. in support of the case stated aoove.

This 4nc1uded modi.cal evidenco on Uie questionof the age of the girl, beeause, while the prosearticn :alleged that she was below 16 years of age, the acc11Sed pleaded tb8t she was above 18 years of age. 13vidently, the case of the accused

J:I

SHIV GOVIND V. STATE (Beg, J.) 837

was that Kumari Seema was a consenting party to whatever took . place.

Although the girl was attending a School, the entry of her age in the School Register was not disclosed.

Despite some discrepancies in the evidence relating to the age of the girl, the trial court came to the conclusion that it was between 16 to 19 years.

It relied mainly on expert evidence of Doctors who had used the

ossification test.

The Trial Court had also noticed the discrepancies between the prosecution version, as set out above by Kumari Seema in her evidence in Court, and the story given out by her in the First . Information Report where she had stated that she had joined the

party of the accused at the crossing of Bijasan Road.

The earlier version suggested that the girl had herself gone to meet the party

of the accused by appointment.

The consent of the girl was, however, immaterial in view of the finding of the Trial Court about the age of the girl.

The fact that she was taken to Mandow, where something happened at 'the tourist's bungalow which she disapproved of, was corroborated by the evidence of Babula! Kamdar, and Kailash Sharma, in addition to the two police constables of Mandow-OUt-post.

The Trial Court which had the advantage of watching the demeanour of the girl, had come to the conclusion that, although the girl may have tried to improve her version and pretend that she was unwilling to accompany Kamal Singh, who had come in a car for her according to the first version, yet, the charge under Sec. 3661.P.C., was established against each of the three accused and the charge under Sec. 354 I.P.C. was established against Shiv Govind, appellant, and his companion Piinam. The three accused were, therefOte, convicted under Sec. 366, and each was sentenced to one year's rigorous imprisonment. The two accused Shiv Govind and Punam were also eoilvicted under Sec. 354 l.P .<:., and sentenced to four months rigorous. imprisonment, but the two sentences were ordered to .run concurrently.

When the case came up in appeal to the High ourt; a notice of enhancement of the sentence under Sec, 366 I.P.C. was issued to each of the three appellants, and their sentences were enhaDced, as indicated above, after the appellants had•been heard.

It is only Shiv Govind who has appealed to this Court. Shiv Govind had also applied under Sec. 561A. Criminal Procedure Code to the High Court, after the dismissal of his appeal and enhancement of the sentence by the High Court, claiming the benefit of Sec. 6 and 11 of the Probation of Offender's Act. B\lt, this application was rejected by the learned Judge who had enhanced the stntence passed upon the appellant, although }le

found that the report of the Probation Officer about the conduct of the accused while undergoing the sentence, which was sent for, was favourable to the appellant. It appears from the two Judgments given by the learned Judge who enhanced the sentence of .the appellant and who subsequently dismissed the application under Sec. 56 IA Criminal Procedure Code also, that the view taken by him was that, having regard to the facts and circumstances and of the case and the offence committed by the appellant, :the enhanced sentence was deserved by him.

We have, therefore, examined the Judgment of the High Court under appeal before us in order to discover the special reasons which induced the learned High Court Judge to differ from the opinion of the Trial Court about the appropriate sentence to be imposed upon the appellant The only reason given by the learn- .ed Judge for enhancing the sentence was that Kumari Seema had reposed confidence in Kamal Singh, whom she regarded as an Unde, so. that she could not expect foul play from him. The learned. Judge thought the girl's trust and confidence in l(amal Singh explained why she did not protest when she was taken in the car and then made to get down at the tourist's bungalow. It s.eems, however, from the account of the occurrence given in the

Judgment under appeal, that the learned Judge was shocked by !he plight of K umari Seema, due to the perfidy of Kamal Sinjh, and by a -contemplation of the possible consequences to her if she had not behaved in a .particularly brave and intelligent ma~ 80 as to escape from her predicament.

The learned Judge mentioned that the girl had risked her life to escape.

We, however, find. that there was no suggestion in the evidence anywhere that any threat to the life of Kumari Seema was ~Id out.

There was no evidence that the girl had seriously struggled to escape or had raised shouts for help which would have brought people around to lier aid.

Nor was there any evidence that the accused tried to obstruct her or to chase her when she escaped from the tourist's bongalow allegedly by resorting to a ruse.

The High Court was .so .improssed by the girl's uncorroborated version of her own heroism, which did not tally with her first version in the First Jnfonnation Report, that it overlooked the infinnities in the girl's .evidence discussed by the trial court. We find the trial court's view

of the whole case to be quite balanced and objective.

We do not thillk that the severer view of the High Court could be reasonably j1111ified.

It seems clear to us that the High Coun had overlooked the principles, laid down 'by this Court repeatedly, which shoUld

SHIV GOVJND v. STATE (Beg, J.) 839

govern the exercise of powers of the High Court to enhance sentences imposed by trial courts.

Jn Bed Raj v. The State of Uftar Pradesh(') this Court observed at page 588-589 :-

"'A question of a sentence is a matter of discretion and it is well settled that when discretion has been properly exercised along accepted judicial lines, an appellate court should not interfere to the detriment of an accused person except for very strong reasons which must be disclosed on the face of the judgment; See for example the observations in Dalip Singh v. State of Punjab (1954 S.C.R. 146, 156) and Nar Singh v. State of Uttar Pradesh [1955(1) S.C.R. 238, 241].

In a matter of enhancement there should not be interference when the sentence passed imposes substantial punishment.

InterfP.rence is only called for when it is manifestly inade- 1Juate.

In our opinion, these principles have not been ; Jbserved.

It is impossible to hOld in the circumstances described that the Sessions Judge did not impose a substantial sentence, and no adequate reason has been assigned by the learned High Court Judges for considering the sentence manifestly inadequate.

In the circumstances, bearing all the considerations of this case in mind, we are of opinion that the appeal (which is limited to the question of sentence l should be allowed and that the sentence imposed by the High Court should be set aside and that of the Sessions Court restored''.

We think that what was laid down by this Court in Bed Rai's case (Supra) is fully applicable to the case before us.

We may also mention the similar views expressed by this Court in Alamgir & Anr., v. The State of Bihar( 2 ).

We may observe that decision of this Court in Nabi Bux and Ors. v. The State of Madhya Pradesh("), is distinguishable from the case before us.

In that case the High Court had enhanced a sentence having regard to all the facts and circumstances justifying the enhancement. In the case before us we find that the High Court had not noticed a number of facts duly considered by the trial Court so that the exercise of power of enhancement of the sentence under Sec. 366 I.P.C. could not be reasonably justified here.

Consequently, we allow this appeal by setting aside the order of enhancement of sentence by the High Court of Madhya Pradesh

and restore the sentence of one year's rigorous imprisonment

(I) [1955] (2) S.C.R. p. 583. (2) [1959] Supp. (I) S.C.R. 464. (J) A.l.R. [1972]S.C. 495.

passed upon the appelant by the learned Sessions Judge for the offence under Sec. "366 I.P.C. of which the appellant was convicted.

The concurrent sentence of four months rigorous imprisonment under Sec. 354 I.P.C., which was not interfered with by the High Curt, is maintained.

We understand that the appellant has alfeady undergone more than one year's imprisonment awarded to him and that he is in jail as his application for bail was rejected.

If this is so, the appellant will be released forthwith unless wanted in some other case.

K.B.N.

Appeal allowed.