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Gauhati High Court · body

2008 DIGILAW 358 (GAU)

Tamok Komut v. State of Arunachal Pradesh

2008-05-19

H.BARUAH, I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. The accused-opposite party Nos. 2, 3, 4 and 5, namely, Jotin Jonkey, Talom Takoh, Arun Tamuk and Raja Padung respectively (who are hereinafter referred to as A1, A2, A3 and A4 respectively) were tried on a charge framed against them under Section 376 read with Section 34, IPC. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described, thus: (i) On 3.9.1997, YK, a girl, aged about 17/18 years, was engaged with her friends in maintaining a stall at Solung ground. While YK was at the said stall, A1 appeared there. By giving ten rupees to A1, YK requested him to purchase chewing gum. A1 took the money; but instead of his coming back to the stall, another person came to YK and the person, who had, so come there, told YK that all the shops had been found closed. This person also told YK that she was being called by A1. When YK asked the said person as to where A1 was, the said person told her that A1 was standing at the backside of the stall. YK, then, looked through the wall of the tent of the stall and found A1 standing behind the stall. A1 inquired from YK as to when she would be returning home and also asked her about the place, where she was staying at Pasighat. (ii) Having seen A1 holding, in his hand, key of a motorcycle, YK requested A1 to drop her at her house. A1 agreed to drop YK at the house, where she was staying with her brother. YK accordingly sat as a pillion rider on the motorcycle, which A1 had with him. When YK noticed that A1 was taking her to a direction, which was opposite to the direction, where her brother's house was located, she told A1 that he was going into a wrong direction. A1, then, told YK that he would, first, go to his house for taking something from his house, and saying so, A1 continued to drive in the same direction. As A1 was driving the motorcycle at high speed, YK requested him to slow down the speed, but A1 told her that at that hour of the night, there were many drunkards on the road and to avoid any unpleasant situation, he was driving the motorcycle at high speed. As A1 was driving the motorcycle at high speed, YK requested him to slow down the speed, but A1 told her that at that hour of the night, there were many drunkards on the road and to avoid any unpleasant situation, he was driving the motorcycle at high speed. After covering some more distance, YK enquired from A1 as to how far his residence was located. Responding to the query, so made, A1 told YK that they were about to reach his residence. Having said so, A1 turned the motorcycle to a katcha road and stopped the motorcycle near a river. YK enquired from A1 if the river was Siang river and A1 replied in the positive. (iii) After so bringing YK on the bank of Siang river, A1 asked her to get down from the motor cycle; but YK refused. A1, then, started embracing YK, kissing and fondling her. YK resisted such moves of A1 and requested him not to ruin her. In the meanwhile, a man (who has been, later on, identified as A2) came naked and started embracing YK telling her that nobody would save her. The man, who had so appeared on the scene, took YK a little away from the motorcycle and at that point of time, two more men, suddenly, appeared there. Though YK screamed seeking help from A1, he did nothing. While A2 got up on YK, the three other persons, (who have been, later on, identified as A1, A3 and A4) removed her trouser. When they were trying to open her trouser, YK told them not to do so and she also told them that she had undergone appendicitis operation, but they paid no heed to her cries for help and removed her trouser. The accused person, then, lighted a matchstick arid started looking at the private parts of YK and even touched her private parts. A2 then, forcibly had sexual intercourse with YK, though YK kept struggling and resisting. The other accused persons helped A2 in having sexual intercourse with YK. While A2 was having sexual intercourse with YK, A1 turned up twice to have his turn and asked A2 to finish his job soon so that he could have also his turn. YK, then, told A2 that she comes from a poor family and she had lost her parents. While A2 was having sexual intercourse with YK, A1 turned up twice to have his turn and asked A2 to finish his job soon so that he could have also his turn. YK, then, told A2 that she comes from a poor family and she had lost her parents. She requested A2 not to spoil her life and even told him that she was willing to go with A2 and marry him. The other accused came there to have their turn, but A2 stopped them. When A1 came near YK to have sexual intercourse, A4 told them that a vehicle was coming. On seeing the vehicle coming, while A2 and A3 ran away towards the river, the other two accused, namely, A1 and A4 ran away in the opposite direction. (iv) Seeing the vehicle coming, YK ran towards the vehicle, stopped the same, wherein two ladies and three boys including the driver were present. On her request to take her to hospital, the occupants of the car refused. YK requested them to take her to police station, but the occupant of the car did not agree. They, however, took her to the house, where she was staying and left her there. As YK's brother, TK, used to stay at night at his shop, YK went, on the following day early morning, to his shop and narrated to him about the incident. YK's brother, TK, lodged written information about the occurrence with the police at Pasighat Police Station, whereby he informed the police that his sister, YK, had been subject to gang rape on the previous day at about 23.00 hours. The police accordingly registered a case. During investigation; YK was medically examined and her statements were recorded by police as well as by Magistrate. The police also arrested the accused and in the Test Identification Parade held, YK identified all the accused, for, she had not known anyone by name except A1. On completion of investigation, police laid charge-sheet against all the four accused aforementioned under Sections 376/ 34, IPC. 3. To the charge framed against them, at the trial, under Section 376 read with Section 34 IPC, all the accused pleaded not guilty. 4. In support of their case, prosecution examined as many as twelve witnesses. On completion of investigation, police laid charge-sheet against all the four accused aforementioned under Sections 376/ 34, IPC. 3. To the charge framed against them, at the trial, under Section 376 read with Section 34 IPC, all the accused pleaded not guilty. 4. In support of their case, prosecution examined as many as twelve witnesses. All the accused were, then, examined under Section 313, Code of Criminal Procedure and in their examination aforementioned, they denied that they had committed the offence alleged to have been committed by them, the case of the defence being that of total denial. No evidence was, however, adduced by the defence. 5. By its judgment and order, dated 28.4.2004, the learned trial court held all the accused guilty of the charge framed against them and convicted them accordingly. At the time of hearing of the sentence, A1, A2. and A3 pleaded that they were juvenile at the time, when the alleged occurrence had taken place. In support of their plea, A1, A2 and A3 produced certain certificates. Having relied upon these certificates, the learned court below held that A1, A2 and A3 were juvenile at the time of the alleged occurrence. By its order, dated 3.5.2004, the learned trial court sentenced them to pay fine of Rs.30,000.00 each and, in default payment of fine, to undergo rigorous imprisonment for two years. Having so sentenced A1, A2 and A3, the learned court below allowed them to go on probation of good conduct on executing a bond each, in this regard, for a period of one year, with surety of Rs.5,000.00 each. The learned trial court, however, sentenced A4 to undergo rigorous imprisonment for a period of two years and pay fine of Rs.10,000.00 and, in default of payment of fine, to undergo rigorous imprisonment for a further period of one year. Out of the total fine of Rs.1,00,000.00, so imposed by way of sentence, the learned court below further directed that a sum of Rs.80,000.00 be paid to the victim by way of compensation. 6. Out of the total fine of Rs.1,00,000.00, so imposed by way of sentence, the learned court below further directed that a sum of Rs.80,000.00 be paid to the victim by way of compensation. 6. Aggrieved by the fact that the learned court below had treated A1, A2 and A3 as juvenile at the time of the occurrence, and also being dissatisfied with the sentence passed against A4, YK's brother, who is the informant of the case, has impugned the sentence, dated 3.5.2004, in this revision and sought for enhancement of the sentence of all the accused-opposite party by contending, inter alia, that even A1, A2 and A3 were not juvenile, at the time, when the occurrence had taken place. 7. We have heard Mr. P.K. Tiwari, learned Counsel for the informant Petitioner, and Mr. R.H. Nabam, learned Counsel, who has appeared as Public Prosecutor in this revision. We have also heard Mr. C. Barua, learned Senior Counsel, appearing on behalf of A1, Mr. A. Mannan, learned Counsel for A3 and Mr. T. Michi, learned Counsel for A4. As far as A2 is concerned, none has appeared, on his behalf, though he (A2), having received notice, engaged counsel, who have filed their vakalatnama. 8. Though it has not been specifically raised, in this revision, if the High Court can enhance sentence in exercise of its revisional jurisdiction, we are of the view that this is a question, which needs to be addressed, particularly, when we find that the State did not prefer any appeal for enhancement of the sentence and it is.the informant, who has approached this Court, with this revision petition, seeking enhancement of sentence. 9. We may point out that the Code of Criminal Procedure, 1898 ('the old Code') embodied provisions, in the form of Section 435 read with Section 439, empowering the High Court to enhance the sentence in exercise of its revisional jurisdiction. 10. Under the old Code, thus, there was no provision for appeal against inadequacy of sentence. The Code of Criminal Procedure, 1973 ('the new Code') has made provisions for such an appeal by way of Section 377, which reads as follows: 377. 10. Under the old Code, thus, there was no provision for appeal against inadequacy of sentence. The Code of Criminal Procedure, 1973 ('the new Code') has made provisions for such an appeal by way of Section 377, which reads as follows: 377. Appeal by the State Government against sentence.- (1) Save as otherwise provided in Sub-section (2), the State Government may, in any case of conviction on a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy- (a) to the court of Session, if the sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is passed by any other court. (2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, (the Central Government may also direct) the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy. (a) to the court of Session, if the sentence is passed by the Magistrate; and (b) to the High Court, if the sentence is passed by any other court. (3) When an appeal has been filed against the sentence on the ground of its inadequacy, (the court of Session or, as the case may be, the High Court) shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. 11. In the case of Eknath Shankarrao Mukkawar v. State of Maharashtra AIR 1977 SC 1177 , it was contended that the provisions of appeal having been made in the form of Section 377 of the new Code, the revisional jurisdiction, which the High Court used to exercise for the purpose of enhancing sentence, by taking recourse to Sections 435 and 439 of the old Code, stood abolished. In Eknath Shankarrao Mukkawar (supra), it was, thus, submitted that a High Court cannot enhance sentence by exercising its revisional jurisdiction suo motu. In Eknath Shankarrao Mukkawar (supra), it was, thus, submitted that a High Court cannot enhance sentence by exercising its revisional jurisdiction suo motu. This submission was outrightly rejected by a three Judges Bench, in Eknath Shankarrao Mukkawar (supra). P.K. Goswami, J (as his Lordship then was), speaking for the court, in Eknath Shankarrao Mukkawar (supra), observed and held as follows: 6. We should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion. High Court's power of enhancement of sentence, in an appropriate case, by exercising suo motu power of revision is still extant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, inasmuch as the High Court can "by itself call for the record of proceedings of any inferior criminal court under ifs jurisdiction. The provision of Section 401(4) is a bar to a party, who does not appeal, when appeal lies, but applies in revision. Such a legal bar under Section 401(4) does not stand in the way of the High Court's exercise of power of revision, suo motu, which continues as before in the new Code. 12. From what has been held in Eknath Shankarrao Mukkawar (supra), it is clear that notwithstanding the fact that the provisions of appeal have been made for enhancement of sentence by the High Court in exercise of its appellate jurisdiction under Section 377, the High Court still have the power, under Section 397 read with Section 401 of the new Code, to call for suo motu the records of the proceeding of any inferior criminal court, under its jurisdiction, with a view to exercise revisional powers. 13. The question, now, is as to whether the High Court can exercise such a revisional jurisdiction on the basis of a petition for revision filed by the informant. For proper appreciation of the matter in issue, a careful examination of Sections 397 and 401 of the new Code is imperative. These two Sections are, therefore, reproduced hereinbelow: 397. 13. The question, now, is as to whether the High Court can exercise such a revisional jurisdiction on the basis of a petition for revision filed by the informant. For proper appreciation of the matter in issue, a careful examination of Sections 397 and 401 of the new Code is imperative. These two Sections are, therefore, reproduced hereinbelow: 397. Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation: All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this Sub-section and of Section 398. (2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. 401. High Court's powers of revision.- In the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge, the High Court may, in its discretion exercise any of the powers conferred on a court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Sessions by Section 307 and when, the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section392. (2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (2) No order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this Section shall deem to authorize a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code, an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and hat it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly. 14. A careful reading of Section 397 read with Section 401 shows that the High Court may call for and examine the record of any proceeding before any inferior criminal courts within its jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. Thus, Section 397(1) not only vests the High Court with the power to examine the correctness, legality and propriety of any finding of guilt or otherwise, but also of the sentence or order, which may have been passed by any inferior criminal court. There is nothing in the provisions of Section 397 to show that the High Court's exercise of its revisional jurisdiction would be only suo motu and not on the basis of a petition made by a person aggrieved by the finding, which an inferior criminal court may have recorded, or by sentence or order, which an inferior criminal court may have passed. 15. Coupled with the above, it is also worth noticing that Section 377 enables only the State Government or the Central Government, as the case may be, to direct the Public Prosecutor to prefer appeal against the sentence on the ground of its inadequacy. 15. Coupled with the above, it is also worth noticing that Section 377 enables only the State Government or the Central Government, as the case may be, to direct the Public Prosecutor to prefer appeal against the sentence on the ground of its inadequacy. To the informant of a case, (who is, in the light of the decision in Bhagawant Singh v. Commissioner of Police (1985) 2 SCC 537 , a person interested in the prosecution of all the accused, whom he may have named as the offenders), no right of appeal has been given. In such circumstances, such a person must be held to have the right to bring to the notice of the High Court that the sentence passed, in a given case, is so inadequate that the High Court needs to interfere and enhance the sentence. When an order is made not sentencing a person, who has been found guilty of an offence by an inferior criminal court, such an order too can be impugned on the ground that the order is illegal and/or improper. Thus, the revisional jurisdiction can be invoked by an informant of a case if the sentence passed against a person found guilty of an offence is inadequate or if no sentence is passed treating such a person as juvenile, though he may not, under law, be a juvenile or though he ought not to have been treated as a juvenile under the law. 16. It is also of immense importance to note that Section 377(3) puts an embargo on the High Court not to enhance the sentence without giving to the accused a reasonable opportunity of showing cause against such an enhancement and while showing cause, the accused may plead for his acquittal or for reduction of the sentence. This shows that when the High Court considers a case for enhancement of sentence, it is within the powers of the High Court to determine if the charge has been brought home, particularly, when the accused pleads for his acquittal. 17. Bearing in mind the parameters of powers of the High Court in the matter of exercise of revisional jurisdiction, in respect of a plea for enhancement of sentence, let us, now, turn to the merit of this revision. 18. 17. Bearing in mind the parameters of powers of the High Court in the matter of exercise of revisional jurisdiction, in respect of a plea for enhancement of sentence, let us, now, turn to the merit of this revision. 18. While considering this revision, it is pertinent to note that so far as A1, A2 and A3 are concerned, they have not preferred any appeal against their conviction under Section 376 read with Section 34, IPC. Though A4 preferred an appeal, this appeal was never pressed and having served the sentence of two years, passed against him, A4 is, now, at large. In view, however, of the fact that A4 had preferred an appeal against his conviction, we deemed it proper to scan the evidence on record, in the light of the relevant provisions of law, and determine if the conviction of the accused-opposite party is sustainable in law. 19. Now, let us peruse the testimony of the material witnesses and determine if their evidence was sufficient to warrant conviction of A1 toA4. 20. We may point out that in all cases of rape, evidence of prosecutrix plays vital role. If her evidence is found truthful and reliable, the court will not hesitate to accept her evidence and hold the offender/offenders guilty of rape. As a general principle, the court, in a case of rape, need not look for corroboration, for, a prosecutrix is not an accomplice and her evidence, as a rule of law, needs no corroboration. If, however, her evidence is contradicted and belied by other material evidence on record, the court cannot brush aside such weak aspects of prosecutrix's evidence, for, after all, an accused is presumed to be innocent, even in a case of rape, until he is proved guilty beyond reasonable doubt. Conversely, if a prosecutrix's evidence receives corroboration from the evidence of other prosecution witnesses, the court would not be able to ignore such corroborative evidence. In a catena of decisions, it has been made clear by the Apex Court that unless there are compelling reasons, which necessitate looking for corroboration of the testimony of the victim in a case of rape, the court should find no difficulty in acting on the sole testimony of the victim, for, seeking corroboration of her statement, in such a case, before relying upon her evidence, would amount to adding insult to injury. 21. 21. Coming to the evidence on record, it needs to be pointed out that YK, the prosecutrix, has been examined as PW 1 by the prosecution. From the scrutiny of her evidence on record, we find that she has given not only vivid, but detailed description of the occurrence, namely, how she was taken to the place of occurrence, who had committed rape on her and how she, eventually, reached her home. Her categorical evidence is that she had been taken by A1, in a motor cycle, up to the bank of Siang river, where the other three accused, namely, A2 to A4 came. According to her, A1, suddenly, embraced her, while she was still on the motorcycle and fondled with her breasts. It is further stated by her that out of the four, A2 got up on her and the other three (Al, A3 and A4) removed her wearing apparel, namely, her long pant, (i.e., trouser), they lit match stick to see her private parts and also touched them. Thereafter, A2 had sexual intercourse with her using force by folding her hands and the three others held her legs to facilitate A2 have sexual intercourse. While A2 was having sexual intercourse with YK, A1 turned up twice for his turn and asked A2 to finish his part soon. A2 was requested by YK not to spoil her life and, further, she even offered to marry him. Thereafter, when others, namely, A1, A3 and A4 came to have their turn, A2 stopped them. It is in the evidence of YK that when they came forward to have sex with YK, A4 told his associates that a vehicle was coming and, on being told thus, all the accused left the place of occurrence leaving YK there. 22. Though the defence cross-examined YK at length, nothing substantial could be elicited from her, which can be taken to have shaken the material aspects of her evidence. Thus, the unshaken testimony of YK speaks loud and clear about how she was taken to the place of occurrence and subjected to gang rape there. 23. Dr. H. Borang was examined as PW 6, who testified that on 4th September, 1997, he had examined YK, at Pasighat Hospital, on being brought by police. On examining her, he found, amongst others, bruises around her arms, hymen torn, vagina wall tender and congested. 23. Dr. H. Borang was examined as PW 6, who testified that on 4th September, 1997, he had examined YK, at Pasighat Hospital, on being brought by police. On examining her, he found, amongst others, bruises around her arms, hymen torn, vagina wall tender and congested. The pathological examination of vaginal swab showed presence of spermatozoa, which suggested penetration. This witness has further deposed that on the same day, he also examined A2 on police requisition and on such examination, he detected scratch marks of varying sizes on both his shoulders, forearms and posterior aspects of the left arm of A2. Though this witness too was cross-examined, at length, by the defence, nothing was really elicited from this particular witness by the defence, which could adversely affect the credibility or veracity of the evidence given by the prosecutrix; rather, he confirmed, in his cross-examination, the presence of spermatozoa in the vaginal smear and rupture of hymen as he had testified to earlier. 24. PW2 is one On Tamuk, a businessman. His categorical evidence is that on the relevant night, while he along with others had been to Komlighat by a Maruti car, a girl stopped their vehicle and requested them to give lift and drop her at her residence. After some inquiry, she was given a lift by them and they dropped her at her destination. Basanta Gogoi (PW3), Binam Doley (PW4) and Okep Jerang (PW5) were all declared hostile by the prosecution. 25. Dr. S. Bhattacharjee (PW7) was the one, who had examined A1, A3 and A4 on police requisition. His testimony is that during examination of these persons, he did not find external injury on their persons. This piece of evidence goes to show that after the incident, all the three accused (i.e. A1, A3 and A4) were medically examined at Pasighat hospital. 26. PW8 (Oni Jamoh) is a witness, whose evidence is that YK had been dropped, at her residence, on the relevant night and that she was taken to her house en her request, while she was found on the road alone, and that while boarding the vehicle, she had divulged to them that four boys had committed rape on her. 26. PW8 (Oni Jamoh) is a witness, whose evidence is that YK had been dropped, at her residence, on the relevant night and that she was taken to her house en her request, while she was found on the road alone, and that while boarding the vehicle, she had divulged to them that four boys had committed rape on her. This particular statement, appearing in the evidence of PW8, does not find support from the evidence of PW2; but the fact remains that the evidence of PW2 and PW8 clearly reveal that YK had boarded their vehicle at the bank of the said river and alighted from their vehicle at her residence and that she had been given lift by them at her request. PW9 is the brother of YK, whose evidence is that when he approached A1, he was told by A1 that rape had actually been committed by A2 and others helped A2 in the commission of rape on YK, whereupon he lodged an FIR (Exhibit-3) with police. 27. A close scrutiny of the evidence, as discussed hereinabove, reveals that the evidence of the prosecutrix (YK) receives credible corroboration from the evidence of PW6 (Dr. H. Borang) inasmuch as Dr. Borang found presence of spermatozoa on pathological examination of vaginal swab and also rupture of hymen. That apart, PW6 discovered some injuries on the person of YK. PW1 (YK) testified that while committing rape, force had been applied by A1 to A4 as she was struggling and resisting the onslaught. This statement stands corroborated by the evidence of PW6, who found some scratch marks on the person of A2. The presence of scratch marks on the persons of A2, thus, lends further support to the testimony of PW1 (YK) that she tried to prevent the commission of rape on her by all her might. 28. On considering the totality of the evidence on record, we find absolutely no reason to disbelieve or discard the evidence of the prosecutrix and if her evidence is believed, which, we see no reason to doubt, their remains no room for doubt that her evidence given to the effect that she was subjected to gang rape by A1, A2, A3 and A4 stands proved. Thus, the findings of guilt, reached against the accused-opposite parties, by the learned trial court, cannot be said to be suffering from any infirmity, factual or legal. Thus, the findings of guilt, reached against the accused-opposite parties, by the learned trial court, cannot be said to be suffering from any infirmity, factual or legal. Their conviction, therefore, needs no interference. 29. Having found, as we have done, that the findings of guilt reached against the accused-opposite parties and their conviction arc sustainable in law, let us, now, turn to the legality, correctness and propriety of the impugned order, dated 3.5.2004, whereby sentence have been passed against the accused-opposite parties. It needs to be pointed out, in this regard, that the occurrence took place on 3.9.1997 and the FIR was lodged on 4.9.1997. The charges were framed on 9.9.1998. The evidence was recorded between 3.11.1998 and 18.11.1999. The accused was, then, examined, under Section 313, Code of Criminal Procedure, on 29.2.2001. The learned trial court held the accused guilty of the offences, as indicated hereinabove, by its judgment, dated 28.4.2004. After the accused were so held guilty of the offence charged with, they were heard on the question of sentence and it is, at this stage, that three of the accused-opposite parties pleaded that they were juvenile at the time of alleged occurrence. The relevant observations of the learned trial court made with regard to the finding of guilt and reduction of sentence read as under: From the above discussions find that all accused acted in concert and lifted the victim to the bank of Siang river and thereafter sexually molested and raped her and, situated thus, this point as well goes in favour of the prosecution. In fact, the defence categorically pleaded that even assuming that the accused had committed the offence alleged against them they are still entitled to be released on probation of good conduct for they were then juveniles, being school students. But this plea of the defence is not considered and, as such, overlooked inasmuch as the defence has failed to prove any documentary proof of the age of the accused persons apart from the fact of the accused having refused to give evidence in the defence during examination under Section 313, Code of Criminal Procedure. But this plea of the defence is not considered and, as such, overlooked inasmuch as the defence has failed to prove any documentary proof of the age of the accused persons apart from the fact of the accused having refused to give evidence in the defence during examination under Section 313, Code of Criminal Procedure. And in the like, such other pleas of the defence including minor contradictions and discrepancies raised by the defence in his argument appearing to me to be insignificant and negligible have also been ignored keeping in view of a judgment of the Supreme Court held in the case of Andhra Pradesh v. G. Satya Murthy 1997 (1) SCC 272 , as is quoted. The courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's right in all spheres, we show little or no concern for her honour. It is a sad reflection and it must be emphasized that the court must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of entire case arid not in isolation. ORDER In the light of all the discussions made above and also after having careful consideration of the evidences on record before me I hereby conclude that the prosecution has proved his case beyond all reasonable doubt against each of the accused for having committed an offence of gang rape punishable under Section 376 of IPC in terms of Explanation-1 to clause (g) of Sub-section (2) of Section 376 of IPC irrespective of whether the victim had been raped by one or more of them. And, accordingly, I hold each of the accused Talom Takoh, Jotin Jonkey, Raja Padung and Arun Tamuk guilty of Section 376 of IPC and convict them thereunder. The convict, who are now at large on bail, are being retaken in the custody under warrant of this Court. And, accordingly, I hold each of the accused Talom Takoh, Jotin Jonkey, Raja Padung and Arun Tamuk guilty of Section 376 of IPC and convict them thereunder. The convict, who are now at large on bail, are being retaken in the custody under warrant of this Court. The learned Counsel of the convicts being heard in detail on the point of sentence and the convicts as well as being heard in persons on the matter. They offered their pleas stating, inter alia, that they were juveniles at the time of incident apart from being not previous convicts as on this date and being so, be released on probation of good conduct, it is not out of place to mention herein that they have now been above board in revealing that they arc now almost grown up persons and among them Arun Tamuk is doing law degree at J.S.S. College, Mysore, Shri Jotin Jongkey is doing his BA degree at J.N. College, Pasighat, Shri Raja Padung is doing his schooling at Sile H.S. School in private and Talom Tako is working as a mechanic at Service Garage at Pasighat. And now having been grown up persons they are extremely repenting and eat humble pie for what they had done in drinking mood of Solung Festival without any knowledge of the gravity and consequence thereof being innocents and juvenile persons. The convicts further categorically pleaded that they were undoubtedly juveniles at the time of incident and in support of the claims of their age they had given their school certificates to their previous counsel Shri P.N. Bhattacharjee at the beginning of the trial of the case. Now having believed at this stage that their previous counsel had failed to place their age certificates before the court they persistently requested the court to allow them to submit the documentary proof of their age in the court to substantiate their claims and to show that they were juveniles at the time of incident. But the contention of the convicts about submission of their age certificates to their previous counsel at this stage being too belated is now a cry in wilderness. But the contention of the convicts about submission of their age certificates to their previous counsel at this stage being too belated is now a cry in wilderness. Nonetheless I cannot either be so close minded and callous to the convicts and ipso facto, contemplatively granted permission to the convicts of their prayer and received their age/school certificates after having afforded reasonable opportunity to the counsel for the State for inspection of the documents and hearing and the same were taken on record for perusal and decision on the matter in the greater interest of justice and in order that the court does no boo-boo to any juvenile. After careful perusal and scrutiny of the age proofs of the convicts Arun Tamuk and Raja Padung of their Class-X passed examination certificates issued by the CBSE, Sri Jotin Jonkey of his National Open School Certificate of Govt. of India supported by provisional certificate of Govt. Higher Secondary School, Pasighat and Sri Talom Takoh of his birth certificate issued by the Department of Economic and Statistic of Govt. of Arunachal Pradesh on 7.5.1997 are found to be true and genuine documents. And as per their age certificates the date of births of the convicts Arun Tamuk, Raja Padung, Jotin Jongkey and Talom Takoh appear to be on 27.10.1982, 1.1.1980, 2.9.1981 and 2.12.1981 and on the basis of their ages on the date of the incident on 3rd September, 1997 appear to be 14 years 10 months and 6 days, 16 yrs 8 months & 2 days, 14 yrs 8 months & 1 day and 15 years 10 months and 1 day respectively and, as such, all the convicts, excepting Raja Padung were found juvenile in terms of Section 2(h) of Juvenile Justice Act at the time of the incident of rape. One among the convicts Sri Raja Padung was also though found above-age of juvenile (16 years), was either found to be very young of the age below 21 years. Be it mention herein also that a panel advocate of the Govt. Sri J. Ado was appointed amicus curiae to represent the State in the absence of the learned P.P. Sri N.C. Dutta. The learned Counsel representing the State was duly afforded opportunity to inspect the age certificates of the convicts and for hearing on this aspect. Be it mention herein also that a panel advocate of the Govt. Sri J. Ado was appointed amicus curiae to represent the State in the absence of the learned P.P. Sri N.C. Dutta. The learned Counsel representing the State was duly afforded opportunity to inspect the age certificates of the convicts and for hearing on this aspect. In fact, the fact of the convicts of having admittedly committed rape to the victim is unspeakably an appalling and dreadful act and so also cancerous to the society at large whereby deserving them to be utterly condemned and awarded capital punishment. However, in order that the justice are done to both the victim and the convicts considering the young ages of the convicts coupled with their present status, character, truthfulness and repentance, their chances of being turned hardened criminal if being sent to jail including the fact of being not previous convicts, etc, I find that the ends of justice would be adequately met with if the convicts are awarded the sentences given hereinafter and, thus, the order of sentences: 1. The convict Raja Padung is sentenced to two years rigorous imprisonment with a fine of Rs.10,000 (rupees ten thousands) for his conviction under Section 376 of IPC and in default of fine to undergo further rigorous imprisonment for one year. 2. The convicts Arun Tamuk, Jotin Jonkey and Talom Takoh being juveniles at the time of incident, in lieu of being sent to jail are sentenced to a fine of Rs.30,000 each and in default of fine to undergo rigorous imprisonment for two years. 3. The convicts Arun Tamuk, Jotin Jonkey and Talom Takoh shall be released on probation of good conduct on their executing good behaviour bonds before this Court for a period of one year with a surety of Rs.5,000 each in addition to the above fines. 4. Out of the total fines of Rs.1,00,000 (rupees one lack) imposed on the convicts a sum of Rs.80,000 (rupees eighty thousand) will be paid to the victim by way of compensation and the rest to be forfeited to the Govt. 30. 4. Out of the total fines of Rs.1,00,000 (rupees one lack) imposed on the convicts a sum of Rs.80,000 (rupees eighty thousand) will be paid to the victim by way of compensation and the rest to be forfeited to the Govt. 30. What is, now, of paramount importance to note is that even if the materials, placed in the learned court below by A1 and A2, in order to show that they were juvenile at the time of the occurrence, are taken to be true and correct, what clearly transpires and what is not in dispute is that the date of birth of A1 is 3.9.1981 and that of A2 is 11.3.1981. Since the occurrence took place on 3.9.1997, it logically follows that at the time, when the occurrence had taken place, both A1 and A2 were above the age of 16 years. Thus, even taking into account the materials placed by A1 and A2 as entirely correct with regard to their respective age, each one of them was above the age of 16 years on the date of the commission of the offence. When these two accused-opposite parties were above the age of 16 years on the date of the commission of the offence, could they have been treated as juvenile and given the benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000 ('the Act of 2000'), is the question, which needs to be, now, determined. 31. What may be noted, while considering the above aspect of the case is that in Arnit Das v. State of Bihar (2000) 5 SCC 488 , the Apex Court held that for the purpose of determining as to whether a person shall be treated as juvenile or not, his age has to be reckoned on the basis of the date of the production before the court and not on the date of the commission of offence. As against the view, so expressed in Arnit Das (supra), the Apex Court has held in Umesh Chandra v. State of Rajasthan (1982) 2 SCC 202 , that the question as to whether a person was, in law, a juvenile or not is a question, which has to be determined with reference to the date of commission of offence and not the date of production. The conflict of decisions, so emanating from the cases of Arnit Das (supra) and Umesh Chandra (supra), has been resolved by a Constitution Bench in Pratap Singh v. State of Jarkhand and Anr. (2005) 3 SCC 551 . Having considered the scheme of the Act of Juvenile Justice Act, 1986 ('the Act of 1986'), which stands repealed by the Act of 2000, w.e.f. 1.4.2001, the Apex Court has in Pratap Singh (supra), clarified that the date relevant, for the purpose of determination of the question as to whether a person was or was not a juvenile, is the date of the commission of the offence and not the production of the accused before the court. 32. What has also been laid down by the Constitution Bench, in Pratap Singh (supra), is this: whether a person had ceased to be a juvenile under the Act of 1986, but had not yet crossed the age of 18 years, such a person, if the case was pending, on the date when the Act of 2000 had come into force, the pending case shall continue as if the Act of 2000 had not been passed and if the Criminal court, where the case was pending, finds that such a person (who was not a juvenile when the criminal action was initiated against him) to become a juvenile by coming into force of the Act of 2000, the criminal court shall record such a finding and, instead of passing any sentence in respect of such a juvenile, shall forward the juvenile to the Board, which shall pass order(s) in respect of that juvenile in accordance with the Act of 2000. The relevant observations made in paragraphs 31, 32 and 37 of Pratap Singh (supra) read as under: 31. Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with a non obstante clause. The sentence "notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act came into force" has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that court as if the 2000 Act has not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile. 32. In this connection it is pertinent to note that Section 16 of the 2000 Act is identical to Section 22 of the 1986 Act. Similarly Section 15 of the 2000 Act is in pari materia with Section 21 of the 1986 Act. Thus, such an interpretation does not offend Article 20(1) of the Constitution and the juvenile is not subjected to any penalty greater than that which might have been inflicted on him under the 1986 Act. 37. The net result is: (a) The reckoning date for the, determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority or in the court. (b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001. 33. From what have been held in Pratap Singh (supra), what clearly emerges is that in order to determine as to whether or not an accused shall be treated as juvenile, it is the date of the offence, which is relevant. 33. From what have been held in Pratap Singh (supra), what clearly emerges is that in order to determine as to whether or not an accused shall be treated as juvenile, it is the date of the offence, which is relevant. What Pratap Singh (supra) also lays down is that if a criminal proceeding is initiated under the Act of 1986 and was pending, on the date, when the Act of 2000 came into force, the court would be required to determine if the accused had completed the age of 18 year on 1.4.2001, when the Act of 2000 came into force. If the court's finding is that a person, being prosecuted in a criminal court, was not a juvenile under the Act of 1986, he having crossed the age of a juvenile as prescribed under the Act of 1986, but that he had not yet completed the age of 18 years on 1.4.2001, when the Act of 2000 came into force, the criminal court shall, upon finding such a person guilty of an offence, shall treat him as juvenile and shall, instead of passing any sentence in respect of such a juvenile, forward the juvenile to the Board, which shall pass order(s) in respect of such juvenile. 34. For the purposes, indicated above, the court has to bear in mind as to whether on 1.4.2001, when the Act of 2000 came into force, the person, sought to be tried as an accused, had completed the age of 18 years or not. If the person, who is sought to be prosecuted, had completed the age of 18 years as on 1.4.2001, he would not be treated as a juvenile. The consequence is this: If during the course of a proceeding, which was initiated at the time, when the Act of 1986 was in force and such a proceeding had not been completed before the date on which the Act of 2000 came into force, the court has the duty to determine if the accused had completed the age of 18 years on 1.4.2001, when the Act of 2000 came into force. If the materials on record reveal that the accused had completed the age of 18 years on 1.4.2001, though he may not have completed the age of 18 years at the time, when the criminal prosecution had been launched against him, the accused would not be treated as a juvenile; but if the person, in such a case, had not completed the age of 18 years as on 1.4.2001, is on the date of the coming into force of the Act 2000, then he shall be treated as juvenile, even though he may have been older than 16 years on the date of commission of offence. 35. In the light of the decision in Pratap Singh (supra), when the facts of the present case arc considered, what emerges is that A1 and A2 were, admittedly, above the age of 16 years on the date of the commission of offence by them and, hence, they could not have been treated as juvenile, on the date the offence was committed on 3.9.1991 even when the new Act (i.e., the Act of 2000) came into force on 1.4.2001, A1 and A2 were not 'Juvenile' for, both of them were admittedly, above the age of 18 years, on 1.4.2001. 36. Thus, even when the findings of the learned court below that A1 and A2 were juvenile are wholly incorrect and cannot be sustained. As far as A4 is concerned, the learned court below has held him to be not a juvenile on the date of the occurrence and there is no reason for us to examine the question as to whether A4 was a juvenile or not, particularly, when it is not even contended, on his behalf, before us that he was a juvenile. 37. What is, now, of great significance to note is that contending that the dates of birth projected by the accused-opposite parties are wholly incorrect, the Petitioner has, in his revision petition, submitted, thus: 3. That the date of birth of accused/Defendant-2, Jotin Jongkey has been held to be 2.9.1981 on the basis of the National Open School Certificate of the Govt. of India supported by provisional certificate of Govt. Higher Secondary School, Pasighat. That the date of birth of accused/Defendant-2, Jotin Jongkey has been held to be 2.9.1981 on the basis of the National Open School Certificate of the Govt. of India supported by provisional certificate of Govt. Higher Secondary School, Pasighat. The aforesaid findings of the learned Additional Session Judge prima facie appears to be contrary to the records of Statistic Department of Date & Birth, D.C. Office, Pasighat according to which the date of birth of accused-Defendant-2 is 2.9.1978. Moreover, his age in electoral roll under Pasighat (East) assembly constituency has been shown to be 25 years as on 1.1.2004. Curiously, the date of birth of the younger brother of accused/Defendant-2 Mst. Kalom Jongkey has been shown to be 10.11.1981 as per the records of Statistic Department of Death & Birth, D.C. Office, Pasighat. Further surprisingly as per the records of Govt. Higher Secondary School, Pasighat, the date of birth of accused/Defendant-2 has been shown to be 2.9.1982 whereas the date of birth of his younger brother Mst. Kalom Jongkey has been shown to be 10.11.1982. It is stated that the school performance of accused/Defendant-2 is extremely poor as he failed number of times in different classes of various schools, viz., Lal Bhr. Shastri School, Pasighat, Daying Ering Secondary School, Pasighat, Bourn Kakir Mission School, Boleng. From all the aforesaid three schools, the accused/Defendant-1 was expelled because of his notorious activities. It is noteworthy that the father of accused/Defendant-2 is a Sub-Inspector of Police and was posed at Pasighat at the time of occurrence. After one [1] month of the occurrence, he also became the Officer-In-Charge of Pasighat Police Station. 4. That the date of birth of the accused/Defendant-3, Talom Jakoh is 11.3.1981 as per the National Open School [IGNOU] records. Surprisingly, the name of the younger brother is Talong Jakoh and his date of birth as per the records of Statistic Department of Death & Birth, D.C. Office, Pasighat is 2.10.1979. It is noteworthy that the learned Additional Session Judge placed reliance on the birth certificate of accused-3 issued by the Department of Economics and Statistics, Govt. of Arunachal Pradesh on 7.5.1997 holding the same as true and genuine. However, the District Statistical Officer, East Siang district, Pasighat in its certificate dated 21.5.2004 disclaimed and disowned the birth certificate issued on 7.6.1997. It is curious to note that Miss Yabom Takoh and Mst. of Arunachal Pradesh on 7.5.1997 holding the same as true and genuine. However, the District Statistical Officer, East Siang district, Pasighat in its certificate dated 21.5.2004 disclaimed and disowned the birth certificate issued on 7.6.1997. It is curious to note that Miss Yabom Takoh and Mst. Taja Jakoh who are the younger sister and brother respectively of accused/Defendant-3, their respective dates of birth recorded in the file of Police Balwadi School are 7.3.1984 and 6.1.1985 respectively. This only goes on to the cavalier manner in which the dates of births are recorded in official documents. 5. That the date of birth of accused/Defendant-4, Arun Jamuk as per the records of Statistic Department of Death & Birth, D.C. Office, Pasighat is 26.10.1979. Curiously there is also certificate issued by Donyi Polo School, Itanagar which shows the date of birth of accused/Defendant-4 as 26.7.1974. 38. What emerges from the above discussion is that as far as A4 is concerned, he has not been treated as juvenile by the learned trial court and it is not even contended, on his behalf, that he ought to have been treated as juvenile. As far as A1 and A2 are concerned, both these accused were also not juvenile and it is, in fact, not even contended, in the face of the materials on record, that they ought to have been treated as juvenile. So far as A3 is concerned, the learned trial court has held him to be a juvenile. The informant has, however, placed definite materials on record to show that this accused, i.e., A3, was not a juvenile at the time of the alleged occurrence nor could he be treated as juvenile when the Act of 2000 came into force. This aspect of the matter, therefore, needs examination and the appropriate course of action would be to direct the learned trial court to determine if As, in the face of the materials on record, which may, now, be produced by the prosecution, could be treated as juvenile. 39. For an offence of gang rape, the Legislature has empowered the court to pass a sentence of imprisonment for life against the person, who is found guilty of such a heinous offence, making it, further, clear that for the offence of gang rape, the sentence of imprisonment shall not be less than ten years. 39. For an offence of gang rape, the Legislature has empowered the court to pass a sentence of imprisonment for life against the person, who is found guilty of such a heinous offence, making it, further, clear that for the offence of gang rape, the sentence of imprisonment shall not be less than ten years. Of course, the court has been vested, under Sub-sections (1) and (2) of Section 376, IPC, with the discretion to impose a sentence of imprisonment of less than the prescribed minimum sentence of ten years for "adequate and special reasons". 40. In order to, therefore, enable a court to impose a reduced sentence, the statutory requirement is that the court has to record not only adequate, but also reasons, which are special to the case, warranting sentence, which is less than the prescribed minimum. Thus, the reasons assigned must be adequate and also special. What is adequate and/or special reason will depend on the facts of a given case. The criminal law adheres to the principle of proportionality of punishment and this principle of proportionality depends on the nature of culpability. No doubt, criminal law allows some discretion to a Judge in deciding the sentence in each case; but the sentence imposed must be commensurate with the gravity of the offence and this would obviously include the impact of the Sentence on the society. When the regulative intent in prescribing minimum punishment for an offence is aimed at making the sentence work as deterrent, imperative it is that the court respects such legislative policy and intent. Sometimes, it is, as a measure of correctional needs, that perpetrator of an offence may be required to be given a reduced sentence. The minimum sentence can be reduced only for such reasons, which serves the legislative purpose. It is the Legislature, which, with the help of a piece of penal legislation, tries to remove a mischief in the society. Such minimum prescribed sentence reflects social anxiety, tension and concern over the impact of the offence, which is sought to be penalized by prescribing minimum punishment. Rape is not an offence against a person's physique, but an irreparable injury to the soul of the victim. A physical scar may heal up, but the mental scar will always remain. Such minimum prescribed sentence reflects social anxiety, tension and concern over the impact of the offence, which is sought to be penalized by prescribing minimum punishment. Rape is not an offence against a person's physique, but an irreparable injury to the soul of the victim. A physical scar may heal up, but the mental scar will always remain. When a woman is ravished as observed in State of M.P. v. Santosh Kumar (2006) 6 SCC 1 , what is inflicted is not merely physical injury, but a deep sense of some deathless shame. The offender robs the victim of her most valuable and priceless possession, that is, dignity. 41. In the present case, a girl, at the prime of her life, who ought to have enjoyed the life and proved her worth to the society, was ravished; and ravished, we must say, most cruelly and inhumanly. The sense of indignity, which the victim, in such circumstances, must have suffered and the memory of such unforgettable incident would make the rest of her life a painful existence. In such circumstances, the mere fact that the four accused were young, when they had committed the offence of gang rape, could not have been a special reason and cannot, now, be regarded a rational cause for imposing inadequate or reduced sentence. In fact, in the case of Santosh Kumar (supra), the sentence was reduced by the High Court on the ground that the accused was young person and belongs to the community of Scheduled Tribes. The Apex Court did not approve of such reasoning and held that such a reason cannot be regarded as adequate and special reason for importing a lesser sentence. 42. In the case of State of M.P. v. Balu (2005) 1 SCC 108 , the court imposed a reduced sentence on the ground that the accused was young, he was illiterate and came from a rural area. The reasons, so assigned, too were held to be neither adequate nor special reasons contemplated in Section 376. The sentence of imprisonment, in the present case, is ridiculously low and is not, as pointed out in Balu's case (supra), commensurate with the gravity of the crime. The reasons, so assigned, too were held to be neither adequate nor special reasons contemplated in Section 376. The sentence of imprisonment, in the present case, is ridiculously low and is not, as pointed out in Balu's case (supra), commensurate with the gravity of the crime. The sympathy shown, in such a case by the court, must be regarded as misplaced sympathy and in all possibility, such a crime in a tribal society of a State, such as Arunachal Pradesh, would send wrong signal. In such circumstances, there can be no escape from the conclusion that the learned court below grossly erred in reducing the sentence to a period of two years. 43. It may pointed out that though the case of Santosh Kumar (supra) and Balu's case (supra) are the cases, where rape was committed on a minor. In the present case, though the victim was a girl of marriageable age, when she was subjected to gang rape, the fact, however, remains that she was subjected to gang rape as a result of well-designed plan and concert of the persons convicted. The facts and circumstances, surrounding the offence, do not and cannot evoke misplaced sympathy of the court inviting it to impose a reduced sentence. 44. Dinesh alias Buddha v. State of Rajasthan (2006) 3 SCC 771 , is a case, which explains the circumstances when a reduced sentence can be imposed. Pointing out the limitations imposed on the court's power to pass a reduced sentence in a case of rape, the Apex Court observed, in Dinesh alias Buddha (supra), thus : 12. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The courts must hear the loud cry for justice by society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record, which may justify imposition of any sentence less than the prescribed minimum on the Respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. 13. The legislative mandate to impose a sentence, for the offence of rape on P. girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376(2), IPC, of course, lays down that the court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years' RI, though in exceptional cases "for special and adequate reasons" sentence of less than 10 years' RI can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can by had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. Recourse to the proviso can by had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard-and-fast rule can be laid down in that behalf of universal application. 45. From the observations, made in Dinesh alias Buddha (supra), it becomes clear that the measure of punishment, in a case of rape, depends on the conduct of the accused, the stage and age of the sexually assaulted female and the gravity of the criminal act. Protection of society from the barbaric acts of rape on helpless female person and deterring perpetrators of such crime is the avowed object of law, which is required to be achieved by imposing appropriate sentence in every given case. The court, while sentencing a person guilty of an offence of gang rape, must take into account all relevant facts and circumstances, which may have a bearing on the question of sentencing and proceed to impose a sentence commensurate with the gravity of the offence. The courts must respond by imposing proper sentence by taking into consideration the cry of justice by the society in cases of heinous crimes of rape on innocent helpless girls. Public abhorrence of such a crime needs reflection through imposition of appropriate sentence by the court. To show mercy in the case of gang rape without adequate and special reasons would be travesty of justice and must not be allowed by the court. 46. At the time of hearing of this Criminal Revision, we had specifically enquired from the learned Counsel for the accused-opposite parties as to whether the convicted accused persons would have anything to show in mitigation of the sentence passed against them if this Court takes the view that the accused-opposite parties, who have been held to be juvenile, were not juvenile. We had also made queries if A4 would have anything to say if this Court takes the view that the sentence passed against him needs enhancement. Learned Counsel for the parties have merely submitted that the offence, if any, was committed as far back as in the year 1997, when the accused-opposite party were young and, hence, at such a belated stage, the sentence, eventually, passed by the learned trial court may be maintained. 47. Learned Counsel for the parties have merely submitted that the offence, if any, was committed as far back as in the year 1997, when the accused-opposite party were young and, hence, at such a belated stage, the sentence, eventually, passed by the learned trial court may be maintained. 47. Having found that A1 and A2 ought not to have been treated as juvenile and that the sentence passed against A4 was unreasonably and unbearably low and when we are, for the reasons already discussed above, of the firm view that such reduced sentence shall, if allowed to stand good on record, in a case of gang rape, particularly, in the State of Aruanchal Pradesh, will send wrong signal and the female persons, particularly, the young girls would become easy prey to the dastardly acts of sexual offence, and, therefore, necessary correctional order(s) need to be passed by this Court, in this respect. 48. Considering, therefore, the matter in its entirety, though we are of the view that A1, A2 and A4 ought to have been sentenced to imprisonment for life, yet taking into account the fact that the case has been pending for a fairly long time, we hereby sentence each of these convicts, namely, A1, A2 and A4 to suffer rigorous imprisonment for a period of 10 years and to pay fine of Rs.10,000 each and, in default of payment of fine, to suffer rigorous imprisonment for a further period of one year. 49. As far as A3 is concerned, we are of the view that in the facts and circumstances of the present case, the matter needs to be remanded to the learned trial court with direction to determine the question as to whether A4 was a juvenile or could have been treated, according to law, as a juvenile in terms of the provisions of the Act of 2000. With this end in view, we set aside the order passed by the learned trial court treating A3 as a juvenile and sentencing him to pay fine of Rs.10,000 and directing him to execute a bond as pointed out hereinabove. 50. The impugned judgment and order shall stand set aside as indicated hereinabove. With this end in view, we set aside the order passed by the learned trial court treating A3 as a juvenile and sentencing him to pay fine of Rs.10,000 and directing him to execute a bond as pointed out hereinabove. 50. The impugned judgment and order shall stand set aside as indicated hereinabove. For the purpose of computing the period of ten years of imprisonment, which A4 has been sentenced to, the period, which he has already undergone, pursuant to the directions of the learned trial court, shall be set off. The other convicts, namely, A1 and A2 shall also be entitled to have the benefit of set off as provided by law. 51. All the accused are hereby directed to surrender forthwith in the trial court so as to enable the learned court below to do the needful in accordance with law. 52. With the above observations and directions, this revision shall stand disposed of. 53. Send back the LCR.