Thongam Tarun Singh v. the State of Manipur
R. BANUMATHI, J. 1. 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 und er Section
376(2)(g) IPC for committing the gang rape upon the victi m and,
accordingly, they were sentenced to undergo rigorous imprisonment for
a period of fifteen years with a fine of Rs.25,000/-. The appellants were
also convicted for the offence under Section 120-B IPC and they were
THONGAM TARUN SINGH v. THE STATE OF MANIPUR
sentenced to undergo rigorous imprisonment for a period of ten years
both the sentences were to run concurrently.
3. Briefly stated the case of prosecution: Two appellants w ere
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 M aruti 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 lodg ed 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 IPC. On completion
of the investigation, charge-sheet was filed and the appe llants 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) IPC, the appellants were sentenced
to undergo rigorous imprisonment 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 th e High
Court as aforesaid in para (1). Being aggrieved, the appel lants have
preferred these appeals.
5. By the orders dated 27 th August, 2018 and 17 th 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 Secti on
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.
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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 whil e 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, 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 tha t the victim
was subjected to rape by both the appellants. When the evidence adduced
by the prosecution is very clear that she was subjecte d to sexual
intercourse by more than one person, in our view, the act cle arly falls
within Explanation 1 to Section 376 (prior to the Amendment 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
considered view, even though no charge was framed under Secti on
376(2)(g)IPC, the conviction of the appellants under Section 376(2)(g)
IPC cannot be faulted. Considering the evidence add uced by the
THONGAM TARUN SINGH v. THE STATE OF MANIPUR
[R. BANUMATHI, J.]
prosecution in particular evidence of the victim (PW-5), We are of the
view that no serious prejudice has been caused to the appellan ts 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 20 13 (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. P rior to the
amendment (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 (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 is ‘a dequate and special reasons’
would depend upon several factors and no strait-jacket formula can be
imposed. No catalogue can be prescribed for adequacy of reaso ns 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 s how 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 als o 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)
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IPC) and sentence of imprisonment of ten years (for the convict ion
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 concurrently.
14. The appeals are partly allowed in above terms.
Devika Gujral Appeals partly allowed.
THONGAM TARUN SINGH v. THE STATE OF MANIPUR
[R. BANUMATHI, J.]