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Thongam Tarun Singh vs The State Of Manipur on 30 April, 2019

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REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 805 OF 2019
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO.6779 OF 2018)

THONGAM TARUN SINGH …APPELLANT(S)

VERSUS

THE STATE OF MANIPUR …RESPONDENT(S)

WITH

CRIMINAL APPEAL No. 806 OF 2019
(@ SPECIAL LEAVE PETITION (CRIMINAL)NO.7477 OF 2018)

J U D G M E N T

R.BANUMATHI,J.

Leave granted.

2. These appeals arise out of the judgment dated

30.04.2018 passed by the High Court of Manipur at Imphal in

Criminal Jail Appeal No. 2 of 2014 and Criminal (Jail)

Appeal No. 3 of 2014 in and by which the High Court has

affirmed the conviction of the appellants under Section

376(2)(g) IPC for committing the gang rape upon the victim

and, accordingly, they were sentenced to undergo rigorous

imprisonment for a period of fifteen years with a fine of

Rs.25,000/-.

Signature Not Verified
The appellants were also convicted for the
Digitally signed by
MADHU BALA
Date: 2019.05.06
14:40:22 IST
Reason: offence under Section 120-B IPC and they were sentenced to

undergo rigorous imprisonment for a period of ten years both

the sentences were to run concurrently.

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3. Briefly stated the case of prosecution: Two appellants

were close friends. On 20.10.2012 accused no. 1 said to have

picked up the victim (PW-5) aged about sixteen years and

took her in a Maruti Car and taken to a restaurant along

with his friend – accused no.2. Further, case of prosecution

is that the appellants have forcibly given a soft drink

mixed with intoxicant to the victim and after taking the

said drink, she fell unconscious. Thereafter the appellants

are said to have committed rape on her. The allegation is

that when the victim regained her senses, she found that she

was raped by accused no. 1 and also by accused no. 2 and,

thereafter, she was dropped off. Complaint was lodged by

the mother of the victim on the next day on 21.10.2012,

based on which FIR was registered under Sections 376 IPC and

120-B SectionIPC. On completion of the investigation, charge-sheet

was filed and the appellants were charged for the offences

under Section 376 and Section 120-B IPC.

4. Upon consideration of the oral evidence of PW-5

(Victim) and the medical evidence and other evidence, the

Trial Court convicted the appellant no. 1 and also appellant

no. 2 under Section 120B IPC and Section 376(2)(g) IPC. For

the conviction under Section 120B IPC, the appellants were

sentenced to undergo rigorous imprisonment for a period of

ten years with a fine of Rs.10,000/- each with default

clause. For the conviction under Section 376 (2)(g) SectionIPC, the

appellants were sentenced to undergo rigorous imprisonment
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for a period of 15 years with a fine of Rs.25,000/- each

with default clause. Both the sentences were ordered to be

run concurrently. The conviction of the appellants and the

sentence of imprisonment imposed on each of them were

affirmed by the High Court as aforesaid in para (1). Being

aggrieved, the appellants have preferred these appeals.

5. By the orders dated 27th August, 2018 and 17th

September, 2018 this Court held that this Court is not

inclined to interfere with the conviction of the appellants

under Section 376(2)(g) IPC and Section 120-B IPC. Notice

was issued only limited to the quantum of sentence.

6. We have heard Mr. R. Basant, learned senior counsel

and Mr. Maibam Nabaghanashyam Singh, learned counsel

appearing on behalf of the appellants as well as Mr.

Leishangthem Roshmani, learned counsel appearing on behalf

of the respondent-State of Manipur.

7. The main contention of the learned senior counsel

appearing on behalf of the appellant(s) is that charges were

not framed against the appellants for the gang rape under

Section 376(2)(g)IPC and while so the Trial Court as well as

the High court erred in convicting the appellants under

Section 376(2)(g) IPC. Learned senior counsel further

submitted that without framing the charges for grievous

offence, namely, Section 376(2)(g) IPC, the Court ought not

to have convicted under Section 376(2)(g) IPC and urged us

to keep this aspect in considering the quantum of sentence.

8. By perusal of the charges framed against the accused,
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it clearly shows that charges were framed against the

accused under Section 376 IPC read with Section 120B IPC. In

this regard, learned counsel appearing on behalf of the

respondent – State of Manipur has drawn our attention to

Section 464 Cr.P.C. and submitted that no finding, sentence

or order by a Court of Competent Jurisdiction shall be

deemed invalid merely on the ground that no charge was

framed unless failure of justice has in fact been occasioned

thereby.

9. From the evidence of PW-5 and the materials adduced by

the prosecution, it is clearly brought in evidence that the

victim was subjected to rape both by accused no. 1 as well

as accused no. 2. Referring to the evidences of PW-5 and the

owner of the Hotel (PW-3), the High Court has clearly

recorded clear concurrent findings of fact that the victim

was subjected to rape by both the appellants. When the

evidence adduced by the prosecution is very clear that she

was subjected to sexual intercourse by more than one person,

in our view, the act clearly falls within Explanation 1 to

Section 376 (prior to the SectionAmendment Act 2013) which reads as

under:

Explanation 1 to Section 376

“Where a woman is raped by one or more in a
group of persons acting in furtherance of their
common intention, each of the persons shall be
deemed to have committed gang rape within the
meaning of this sub-section’.

Considering the evidence of PW-5 and other evidences, in our
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considered view, even though no charge was framed under

Section 376(2)(g)IPC, the conviction of the appellants under

Section 376(2)(g) IPC cannot be faulted. Considering the

evidence adduced by the prosecution in particular evidence

of the victim (PW-5), We are of the view that no serious

prejudice has been caused to the appellants by conviction

under Section 376(2)(g) IPC.

10. So far as quantum of sentence is concerned, Section

376 IPC- punishment for rape has been amended by Act 13 of

2013 (with retrospective effect from 03.02.2013). As per the

amended section, the minimum sentence of seven years is

provided for the offence of rape which may extend to

imprisonment for life. After the amendment, no discretion is

vested with the Court to reduce the sentence. Prior to the

amendment Section(Amendment Act 13 of 2013) for the punishment

under Section 376(2)(g) IPC, it provided for rigorous

imprisonment for a term which shall not be less than ten

years but which may be for life and shall also be liable to

fine. Prior to the amendment Section(Amendment Act 13 of 2013) by

the proviso to Section 376(2) IPC, the Court has been vested

with the discretion that for adequate and special reasons to

be mentioned in the judgment, impose a sentence of

imprisonment of either description for a term of less than

ten years.

11. The question falling for consideration is whether

there are adequate and special reasons warranting exercise

of discretion to reduce the sentence of imprisonment. What
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is ‘adequate and special reasons’ would depend upon several

factors and no strait-jacket formula can be imposed. No

catalogue can be prescribed for adequacy of reasons nor

instances can be cited regarding special reasons. They

differ from case to case.

12. It is stated that at the time of occurrence,

appellant no. 1 was working as a police driver and appellant

no. 2 was a singer having good reputation, performing as a

singer on the stage and both the appellants were aged about

24-25 years, at the time of the occurrence. It is also

stated that both the appellants have no criminal antecedents

and they hail from backward area. Learned counsel for the

appellants have also produced certificate issued from the

Jail Authorities to show that the conduct of the appellants

(post conviction) are very good and satisfactory and they

have been participating in the sports/garden activities and

other programmes of the Jail. Considering the facts and

circumstances of the case and that the appellants have no

criminal antecedents and also the conduct of the appellants

in the Jail (post conviction), the sentence of imprisonment

of fifteen years (for the conviction under Section 376(2)

(g) SectionIPC) and sentence of imprisonment of ten years (for the

conviction under Section 120B IPC) are reduced to eight

years.

13. The sentence of imprisonment imposed upon each of the

appellants is reduced to eight years. As directed by the

Trial Court and the High Court both the sentences are to run
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concurrently.

14. The appeals are partly allowed in above terms.

……………………………………………………………J.

[R. BANUMATHI]

NEW DELHI ………………………………………………………….J.
30TH APRIL, 2019 [S. ABDUL NAZEER]

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