Criminal Appeal No. 782 OF 2001
Dr. Arijit Pasayat, J.
I1. Challenge in this appeal is to
the judgment rendered by a learned Single Judge of the Karnataka High
Court reducing the custodial sentence of respondent to 3= years instead
of seven years as was imposed by the learned Second Additional Sessions
Judge, Gulbarga, in SC No.61/1993, after convicting the respondent for
an offence punishable under Section 376 of the Indian Penal Code, 1860
(in short the 'IPC'). The victim (PW1) was aged less than 12 years when
she was sexually ravished by the respondent on 31.1.1993 at about 12.30
2. On the basis of First Information Report (in short the 'FIR') lodged
at the police station law was set into motion. On completion of
investigation, charge-sheet was filed and accused faced trial and he
pleaded innocence. Prosecution placed reliance on the evidence of victim
and the medical evidence. The trial court convicted the accused under
Section 376 IPC. An appeal was preferred before the High Court. The same
was disposed of by the High Court maintaining the conviction but
sentence was reduced to 3= years, since the High Court felt that in view
of certain special reasons the custodial sentence was to be reduced to
3. In support of the appeal, learned counsel for the State submitted
that in a heinous crime like rape the High Court was not justified in
reducing the sentence by referring to certain circumstances which are
not only irrelevant but also cannot constitute special reasons
warranting reduction in sentence. Since the accused was not represented
in this appeal in spite of service of notice, Mr. Ashok Bhan, appeared
as Amicus Curiae at our request.
4. According to learned Amicus Curiae, though the offence of rape is a
heinous crime but while sentencing an accused the same should be
tempered with mercy. Though such a plea was not taken before the trial
court, High Court indicated some reasons which may not be sufficient to
justify the reduction per se, yet as it exercised judicial discretion,
there is no need for interference. It has to be noted that the victim
was less then 12 years of age at the time of occurrence. In fact both
the trial court and High Court have noted that she was aged about 10
years. Stringent punishment is provided for where the victim is less
than 12 years of age in terms of Section 376 (2) (f) IPC.
5. The minimum punishment is 10 years but the proviso provides that for
"adequate and special reasons" mentioned in the judgment a sentence of
less then 10 years can be imposed. Unfortunately this aspect appears to
have been lost sight of by both the trial court and the High Court and
the State has also not questioned the inadequacy of sentence on that
ground. The High Court has noted as follows to reduce the sentence:
"The learned counsel for the appellant contended that the accused is a
young boy of 18 years and he is illiterate and rustic.
Though he is not actually aged 18 years, he could not take the plea of
his age on account of illiteracy and thus he has lost the chance of
taking the benefit of reformatory Legislation or seeking a remand to
Borstal School etc., For the illiteracy and ignorance of the accused, it
should not be taken as a ground for not taking the defence in the trial
and this is a circumstance to award reduced sentence. Accused has
already served in jail for 2 years 11 months.
In view of the fact that the accused is a young boy of 18 years
belonging to Vaddara Community and Illiterate, I think it just and
proper to reduce the sentence from seven years RI to three and half
years R.I. Appeal is partly allowed."
6. It needs no emphasis that the physical scar may heal up, but the
mental scar will always remain. When a woman is ravished, what is
inflicted is not merely physical injury but the deep sense of some
deathless shame. An accused cannot cling to a fossil formula and insist
on corroborative evidence, even if taken as a whole, the case spoken to
by the victim strikes a judicial mind as probable. Judicial response to
human rights cannot be blunted by legal jugglery.
7. It is to be noted that in
sub-section(2) of Section 376 I.P.C. more stringent punishment can be
awarded taking into account the special features indicated in the said
sub-section. The present case is covered by Section 376(2)(f) IPC i.e.
when rape is committed on a woman when she is under 12 years of age.
Admittedly, in the case at hand the victim was 10 years of age at the
time of commission of offence.
8. 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.
Courts must hear the loud cry for justice by the 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.
9. The legislative mandate to impose
a sentence, for the offence of rape on a 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 be 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.
10. These aspects were highlighted in Dinesh Alias Buddha v. State of
Rajasthan [2006 (3) SCC 771].
11. The law regulates social
interests, arbitrates conflicting claims and demands. Security of
persons and property of the people is an essential function of the
State. It could be achieved through instrumentality of criminal law.
Undoubtedly, there is a cross cultural conflict where living law must
find answer to the new challenges and the courts are required to mould
the sentencing system to meet the challenges. The contagion of
lawlessness would undermine social order and lay it in ruins. Protection
of society and stamping out criminal proclivity must be the object of
law which must be achieved by imposing appropriate sentence. Therefore,
law as a corner-stone of the edifice of "order" should meet the
challenges confronting the society. Friedman in his "Law in Changing
Society" stated that, "State of criminal law continues to be - as it
should be - a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the
corrective machinery or the deterrence based on factual matrix. By deft
modulation sentencing process be stern where it should be, and tempered
with mercy where it warrants to be. The facts and given circumstances in
each case, the nature of the crime, the manner in which it was planned
and committed, the motive for commission of the crime, the conduct of
the accused, the nature of weapons used and all other attending
circumstances are relevant facts which would enter into the area of
12. Therefore, undue sympathy to
impose inadequate sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law and society could
not long endure under such serious threats. It is, therefore, the duty
of every court to award proper sentence having regard to the nature of
the offence and the manner in which it was executed or committed etc.
This position was illuminatingly stated by this Court in Sevaka
Perumal etc. v. State of Tamil Nadu (1991 (3) SCC 471).
13. The criminal law adheres in
general to the principle of proportionality in prescribing liability
according to the culpability of each kind of criminal conduct. It
ordinarily allows some significant discretion to the Judge in arriving
at a sentence in each case, presumably to permit sentences that reflect
more subtle considerations of culpability that are raised by the special
facts of each case. Judges in essence affirm that punishment ought
always to fit the crime; yet in practice sentences are determined
largely by other considerations. Sometimes it is the correctional needs
of the perpetrator that are offered to justify a sentence. Sometimes the
desirability of keeping him out of circulation, and sometimes even the
tragic results of his crime. Inevitably these considerations cause a
departure from just desert as the basis of punishment and create cases
of apparent injustice that are serious and widespread.
14. Proportion between crime and
punishment is a goal respected in principle, and in spite of errant
notions, it remains a strong influence in the determination of
sentences. The practice of punishing all serious crimes with equal
severity is now unknown in civilized societies, but such a radical
departure from the principle of proportionality has disappeared from the
law only in recent times. Even now for a single grave infraction drastic
sentences are imposed. Anything less than a penalty of greatest severity
for any serious crime is thought then to be a measure of toleration that
is unwarranted and unwise. But in fact, quite apart from those
considerations that make punishment unjustifiable when it is out of
proportion to the crime, uniformly disproportionate punishment has some
very undesirable practical consequences.
15. After giving due consideration
to the facts and circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime has been committed
are to be delicately balanced on the basis of really relevant
circumstances in a dispassionate manner by the Court. Such act of
balancing is indeed a difficult task. It has been very aptly indicated
in Dennis Councle MCGDautha v. State of Callifornia (402 US 183:
28 L.D. 2d 711) that no formula of a foolproof nature is possible that
would provide a reasonable criterion in determining a just and
appropriate punishment in the infinite variety of circumstances that may
affect the gravity of the crime. In the absence of any foolproof formula
which may provide any basis for reasonable criteria to correctly assess
various circumstances germane to the consideration of gravity of crime,
the discretionary judgment in the facts of each case, is the only way in
which such judgment may be equitably distinguished.
16. These aspects were highlighted
in Shailesh Jasvantbhai and Anr. v. State of Gujarat and Ors.
[2006 (2) SCC 359].
17. Considering the legal position
and in the absence of any reason which could have been treated as
"special and adequate reason" reduction of sentence as done by the High
Court is clearly unsustainable. The trial court should have imposed
sentence of 10 years in terms of Section 376 (2) (f) IPC. But State has
not questioned the sentence as imposed, the sentence as imposed by the
trial court is restored. The High Court's order reducing the sentence is
18. The appeal is allowed.
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