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PETITIONER: T.K.  GOPAL @ GOPI C

       Vs.

RESPONDENT: STATE OF KARNATAKA

DATE OF JUDGMENT:       05/05/2000

BENCH: S.S.Ahmad, Doraswami

JUDGMENT:

     S.   SAGHIR  AHMAD, J.  Leave granted.  The  appellant was  found  guilty of the offence under Section 376 IPC  and was  sentenced to 10 years’ rigorous imprisonment and to pay a fine of Rupees one thousand, in default of which he was to undergo  RI for another three months, by the Addl.  Sessions Judge,  Tumkur,  by her judgment dated September  30,  1994. This  has  been  upheld by the High Court  by  the  impugned judgment  dated January 24, 1997.  The appellant is in  jail and  it  is  from  the jail that he has  filed  the  present appeal.   Mr.  Seeraj Bagga has appeared as counsel for  the appellant  and  it was in his presence that the order  dated 10th  September, 1999 was passed by this Court, which  reads as  under  :  "Delay condoned.  The victim of rape  in  this case  is  a child of one and half year.  The petitioner  has been  convicted  under Section 376 IPC and sentenced to  ten years’ rigorous imprisonment.  Section 376 IPC provides that on  the  offence of rape being established, the Court  shall sentence  the accused with rigorous imprisonment for a  term not  less  than ten years, but "which may be for  life"  and shall  also  be liable to fine.  The proviso to  sub-section (2),  however,  allows  the Court to impose  a  sentence  of imprisonment  of either description for a term which may  be less  than  ten years.  Having regard to the facts  of  this case,  especially the age of the victim, we issue notice  to the  petitioner to show cause why the sentence of ten years’ rigorous  imprisonment  should  not  be  enhanced  to   life imprisonment.   The  notice shall be returnable  within  six weeks."  Mr.   Seeraj  Bagga has argued the case  with  full vehemence  at  his  command  and   has  also  filed  written submissions  in  which  he  has   set  out  the  extenuating circumstances  on the basis of which he has prayed that  the sentence  may  not  be enhanced to life  imprisonment.   The victim  in  the instant case is an infant child, Yashoda  of the  tender age of one and half year.  Her mother, Uma (PW1) lived  with  her  husband  in a rented  house  at  Konehalli village  with her children, a son aged about four years  and the  infant daughter, Yashoda.  The appellant, at that time, was  a Mistry working in that village.  Uma was working as a maid-servant  in  the  house of Gowramma  (CW2).   She  also worked  as a mason- labour under the appellant.  Her husband worked  as  a Waterman in the Water Supply Department.   The case  of the prosecution is that the appellant, as a Mistry, used  to  provide ration to Uma (PW1) who used to cook  food for  the  appellant and his colleagues, including CW7  Raja, CW8  Gandhi  as also another person, Murthy.  The  appellant and  his associates used to go to the house of Uma for lunch between  1.30 PM to 3.00 PM.  On 22nd June, 1991, at about 3

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P.M.,  appellant  came  to  the house of Uma,  but  did  not express  any desire to have his meal.  The appellant, on the contrary,  indicated  to her that he would take rest  for  a while.   Her  children were sleeping in the house  and  Uma, while  allowing  the  appellant to take rest,  went  to  the neighbour‘s  house  to grind rice for preparing ‘Idlis’  for the  next  day.  She returned to her house at about 4.45  PM and  was  shocked  to  see  the  appellant  lying  over  her daughter,  Yashoda,  who was lying below his private  parts. She  rushed towards the appellant and pushed him aside.  She found  her daughter bleeding from the private parts and also noticed  bleeding  near  her  lips.    She  cried  for  help whereupon  the  appellant ran away.  The child was taken  to Arasikere  hospital  where the doctors intimated the  police and  on  the police reaching the hospital,  the  complainant narrated  the whole incident whereupon a case was registered against  the appellant under Section 376 IPC.  The case  was investigated  and a charge sheet was subsequently  submitted against  the appellant, who was tried for the offence  under Section  376  IPC and ultimately convicted and sentenced  to ten years’ RI.  The appeal filed by him was dismissed by the High  Court.   The trial court as also the High  Court  have recorded  concurrent  findings  of fact that  the  appellant committed  rape  on  a child of one and  half  year.   These findings  are based on the evidence brought on record.   The medical  report  as  also the statement of  the  complainant clearly  establish  the  commission of the  offence  by  the appellant.   Having  regard to the facts of this  case,  the question  that  arises  now is whether the  Addl.   District Judge  was justified in awarding a sentence of 10 years’  RI to  the  appellant or he should have been awarded  the  life imprisonment, which is the maximum sentence prescribed under the IPC.  Section 376 (2) IPC provides, inter alia, as under :   "376.  Punishment for rape -- (2) Whoever, -- ..  ..  .. ..   (f)  commits rape on a woman when she is  under  twelve years  of age;  shall be punished with 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:  Provided that  the Court may, 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." A perusal of the above provision would indicate that where the victim  is a woman of less than 12 years of age, the minimum sentence  that  can be awarded to the accused is ten  years, but  it  may also extend to life imprisonment apart  from  a fine  which  may also be imposed upon him.  The  proviso  to this  Section,  however, gives a discretion to the court  to award  a  sentence  of less than 10 years for  adequate  and special  reasons which have to be mentioned in the judgment. Since  the victim in the instant case was an infant child of one  and  half year, the trial court as also the High  Court both  were  right in awarding a sentence of 10 years to  the appellant.    That  was  wholly  in  consonance   with   the provisions of Section 376(2) IPC.  The question, however, is that  if the law gave the court the discretion to award even life  imprisonment  for  the offence of rape  under  Section 376(2)  IPC,  why was that discretion not exercised  by  the trial  court or the High Court in the instant case where the victim  of rape was an infant child.  The trial court, while awarding  ten  years’  RI to the appellant has  observed  as under  :   "2.  In view of the submissions made  before  me, though  I  have to agree with the submission of the  learned counsel  for  the accused that there is reformation  in  the mind  of  the  accused  as he is in  custody  as  undertrial prisoner  for  more  than an year and there  are  dependents

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depending  upon  him, as the offence committed by him is  of such  a  grievous  nature that leniency with regard  to  the awarding  of punishment cannot be exercised and also as  the victim of the offence was hardly 1 and half years old at the time of commission of offence without having the capacity of self  defence  and the victim for no fault of her  has  been made  to suffer a black mark of the incident throughout  her life  who  know even at the cost of her  future  comfortable living.   In  a  decision  reported in  1987  Crl.L.J.   374 (Gujarat)  in  the  very  opening  of  the  Judgment,  Their Lordships  have observed that "Human weakness or wickedness; either  of the two or both of them together may be the cause of  sexual  offences.   If  the offence  is  on  account  of wickedness,  the accused naturally deserves no sympathy." In this  case, the fact of the accused could only be attributed to wickedness.  As such, the accused deserves no sympathy at the  hands of this Court.  Such acts should be put down with a strong hand and a deterrent punishment should generally be awarded.   In  a  decision reported in 1994  Crl.L.J.   1752 (Bombay) in a similar case, where the victim was hardly aged 7  years,  Their  Lordships  while  awarding  sentence  have observed  as hereunder :  ‘....Our attention was invited  to the  provisions  contained in Section 376(2) of  the  Indian Penal  Code,  which  made the child  rape  punishable  under clause  (f)  thereof,  was  made  punishable  with  rigorous imprisonment  for  a  term which shall not be less  than  10 years,  but  which  may be for life and shall  also  be  the liability  to  fine.  Thus, when the legislature itself  has indicated  the  minimum limit of the leniency that could  be shown  in  such cases, it would not be justifiable  to  show more leniency than what is deserved in a case of the present type, on the ground that the revision-petitioner was a young man.’  3.   In  the  circumstances, in  view  of  the  above decision  and  taking  into  consideration  the  nature  and gravity  of offence committed by the accused and the  tender age of the victim, I am not inclined to show any leniency in awarding  punishment to the accused." The High Court,  while upholding  the findings of fact recorded by the trial  court did  not  advert  itself to the question of  enhancement  of sentence  as,  perhaps in its opinion, the sentence  of  ten years’  RI  was sufficient for the offence committed by  the appellant.  Mr.  Seeraj Bagga, Advocate, appearing as amicus curiae,  in  this case has in his written statement  pointed out  the following extenuating circumstances on the basis of which  it is prayed that the sentence may not be enhanced  : "Reformation of the petitioner 5.  That the petitioner is in judicial custody from the date of his arrest after 22.6.1991 and has been undergoing the sentence since then.  That there has  been a reformation in the mind of the accused since  he is in custody.  In this regard, the observation of the Trial Court  is reproduced below :  "Page 38, Para 2.  In view  of the  submissions made before me, though I have to agree with the  submission of the learned counsel for the accused  that there  is reformation in the mind of the accused as he is in custody  as undertrial prisoner for more than a year." It is respectfully submitted that this observation was recorded by the Trial Court on 30.9.1994, i.e.  after about 3 years from the date of incident and it is very likely that after such a long  period in the judicial custody, after having  pondered over  the whole matter, self realisation and  introspection, the  reformation of the petitioner cannot be denied as it is well  known that now a days religious discourses, meditation and  other  reformatory  programmes are undertaken  for  the benefit  of the prisoners confined in jails.  Thus, in  this view  of  the matter, it is respectfully submitted that  the

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Hon’ble Court may take a sympathetic and lenient view of the matter  and discharge the Notice of enhancement of sentence. Mitigating  circumstances  6.   That   it  is   respectfully submitted   that  in  view  of  the   following   mitigating circumstances,  the Hon’ble Court may take a lenient view of the matter as the petitioner is the sole bread earner of his family,  which includes besides his wife, his two  daughters aged  about 16 and 10 years respectively.  There is no other source  of  help to the petitioner’s family and the wife  of the petitioner is with a great difficulty running the family by  doing labour work.  That this Hon’ble Court in the  case reported  as  (1983) 3 SCC 217 entitled Bharwada  Bhognibhai Hirjibhai vs.  State of Gujarat reduced the sentence awarded in view of the special circumstances which existed in favour of  the  appellant therein.  It may be stated that  in  that case,  the  conviction under Section 376 read with  Sections 511, 354 and 342 IPC was upheld by the Hon’ble Court but the sentence  was  reduced in view of the special  circumstances which  were  as under :- (a) The appellant lost his  job  in view  of the conviction recorded.  (b) The incident occurred some  7  years  back from the date of the  decision  of  the Appeal  by this Hon’ble Court.  (c) A long time had  elapsed after  the  dimissal of the appeal by the High  Court.   (d) Appellant was to be sent back to the jail after six and half years.    (e)  The  appellant   must  have  suffered   great humiliation  in the society.  (f) The prospects of getting a suitable match for appellant’s own daughter had perhaps been marred  in view of the stigma in the wake of the finding  of guilt  recorded in the context of the offence.  The  Hon’ble Court  taking  a  cumulative  effect of  all  these  special circumstances,  reduced  the sentence for an  offence  under Section-376  read  with Section 511 IPC from two and a  half years RI to 15 months RI.  That on behalf of the petitioner, it  is  respectfully submitted that even though the  offence and  the conviction recorded in the above mentioned case  is different  from  that  in the present case but  the  similar special  mitigating circumstances also arise in the  present case which should be taken into consideration by the Hon’ble Court  at least for the purpose of discharging the Notice of enhancement  of sentence which the Hon’ble Court has  issued to  the  petitioner  as  in the present case,  it  is  quite evident  that  :-  (a) That as a result of  the  arrest  and conviction  of the petitioner, who was the sole bread earner and  was maintaining the family, his two daughters and  wife are  suffering  and  are  without any help.   (b)  That  the incident  occurred around 9 years back and the record of the case  reveals  that the petitioner is in custody  since  the date  of  incident.  (c) That the petitioner and his  family has suffered great humiliation in the society.  (d) That the petitioner  has two daughters aged about 16 and 10 years and the prospects of getting a suitable match for them have been marred  to a great extent in the wake of this conviction and sentence  and the fact that the petitioner is in custody for the  last about 9 years.  (e) That the sentence of 10  years RI  awarded to the petitioner would be over within a year or so  and  if  the Hon’ble Court at this  stage  enhances  the sentence  to  life  imprisonment  then  the  family  of  the petitioner  and  particularly  his two daughters  and  their future would be ruined for no fault of theirs.  That in view of  the above special mitigating circumstances which  exists in   favour  of  the  petitioner   and  his  family,  it  is respectfully  prayed  that  the  Hon’ble Court  may  take  a sympathetic  view  of the matter and discharge/withdraw  the notice of enhancement of sentence issued to the petitioner." Mr.   Seeraj  Bagga has also pointed out that the State  has

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not  filed  any appeal for the enhancement of the  sentence. Crime  can  be defined as an act that subjects the  doer  to legal  punishment.  It may also be defined as the commission of  an  act  specifically forbidden by law;  it  may  be  an offence  against  morality  or social order.   In  State  of Punjab vs.  Gurmit Singh & Ors.  (1996) 2 SCC 384, Anand, J. (as  His  Lordship  then was), observed in Para  21  of  the report  as under :  "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 rights in all spheres, we  show little or not concern for her honour.  It is a  sad reflection  on  the attitude of indifference of the  society towards the violation of human dignity of the victims of sex crimes.   We  must remember that a rapist not only  violates the  victim’s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process.   Rape  is not merely a physical assault --  it  is often destructive of the whole personality of the victim.  A murderer  destroys the physical body of his victim, a rapist degrades  the very soul of the helpless female.  The courts, therefore,  shoulder a great responsibility while trying  an accused  on charges of rape.  They must deal with such cases with  utmost sensitivity." In Bodhisattwa Gautam vs.  Subhra Chakraborty  (Ms.)  (1996)  1 SCC 490, one of  us  (S.Saghir Ahmad, J.), while delivering the Judgment, observed as under :  "9.  Unfortunately, a woman, in our country, belongs to a class  or  group  of  society who  are  in  a  disadvantaged position   on  account  of   several  social  barriers   and impediments  and have, therefore, been the victim of tyranny at  the hands of men with whom they, fortunately, under  the Constitution  enjoy equal rights.  Women also have the right to  life  and  liberty;   they also have  the  right  to  be respected  and treated as equal citizens.  Their honour  and dignity  cannot be touched or violated.  They also have  the right  to  lead an honourable and peaceful life.  Women,  in them,  have  many personalities combined.  They are  mother, daughter,  sister  and  wife and not playthings  for  centre spreads  in various magazines, periodicals or newspapers nor can  they be exploited for obscene purposes.  They must have the  liberty,  the freedom and, of course,  independence  to live  the  roles  assigned  to them by Nature  so  that  the society  may  flourish  as they alone have the  talents  and capacity  to shape destiny and character of men anywhere and in  every  part of the world.  10.  Rape is thus not only  a crime  against the person of a women (victim), it is a crime against   the  entire  society.   It  destroys  the   entire psychology  of  a woman and pushes her into  deep  emotional crisis.   It  is  only  by her  sheer  will-power  that  she rehabilitates  herself  in the society which, on  coming  to know  of  the  rape,  looks down upon her  in  derision  and contempt.   Rape is, therefore, the most hated crime.  It is a  crime against basic human rights and is also violative of the  victim’s  most  cherished of  the  Fundamental  Rights, namely,  the Right to Life contained in Article 21.  To many feminists  and psychiatrists, rape is less a sexual  offence than an act of aggression aimed at degrading and humiliating women.  The rape laws do not unfortunately, take care of the social aspect of the matter and are inept in many respects." In  the  matter  of punishment for offence  committed  by  a person,  there  are many approaches to the problem.  On  the commission  of crime, three types of reactions may generate; the traditional reaction of universal nature which is termed as  punitive  approach.   It  regards   the  criminal  as  a notoriously  dangerous  person who must be inflicted  severe punishment   to  protect  the   society  from  his  criminal

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assaults.   The other approach is the therapeutic  approach. It  regards  the  criminal  as   a  sick  person   requiring treatment,  while the third is the preventive approach which seeks  to eliminate those conditions from the society  which were  responsible  for crime causation.  Under the  punitive approach,  the  rationalisation  of punishment is  based  on retributive  and  utalitarian  theories.   Deterrent  theory which  is also part of the punitive approach proceeds on the basis that the punishment should act as a deterrent not only to  the  offender but also to others in the community.   The therapeutic  approach aims at curing the criminal tendencies which  were the product of a diseased psychology.  There may be  many factors, including the family problems.  We are not concerned  with  those factors as therapeutic  approach  has since  been  treated  as an effective method  of  punishment which  not  only  satisfies the requirements of law  that  a criminal  should  be punished and the punishment  prescribed must  be  meted  out to him, but also reforms  the  criminal through  various processes, the most fundamental of which is that  in spite of having committed a crime, may be a heinous crime, he should be treated as a human being entitled to all the  basic  human rights, human dignity and human  sympathy. It  was  under  this theory that this Court in a  stream  of decisions,  projected the need for prison reforms, the  need to acknowledge the vital fact that the prisoner, after being lodged  in  jail,  does not lose his fundamental  rights  or basic  human  rights  and  that  he  must  be  treated  with compassion  and sympathy (See :  Sunil Batra (I) vs.   Delhi Administration  AIR  1978 SC 1675 = (1978) 4 SCC 494 =  1979 (1) SCR 392;  Sunil Batra (II) vs.  Delhi Administration AIR 1980 SC 1579 = (1980) 3 SCC 488 = 1980 (2) SCR 557;  Charles Shobraj vs.  Superintendent, Central Jail, Tihar AIR 1978 SC 1514  and  Francis  Coralie Mullin vs.   The  Administrator, Union  Territory of Delhi (1981) 1 SCC 608 = AIR 1981 SC 746 =   1981(2)  SCR  516   etc.).   Sexual  offences,  however, constitute  an  altogether different kind of crime which  is the result of a perverse mind.  The perversity may result in homosexuality  or  in  the commission of  rape.   Those  who commit  rape are psychologically sadistic persons exhibiting this  tendency  in the rape forcibly committed by them.   In some  States  in  the USA, therefore, emphasis was  laid  on psychotherapic treatement of the offender while he was under detention.   For  that purpose, Psychopath Sexual  Offenders Laws  have  been  enacted in certain jurisdictions  in  USA. These  laws treat the sex offenders as neurotic persons  and psychotherapic  treatment is given to them during the period of  their  detention  which  may,  in  some  cases,  be   an indefinite  period,  in  the sense that they  would  not  be released  till  they  are  cured.   But  the  provision  for indefinite  detention  even  beyond the  maximum  period  of imprisonment for that offence was seriously objected to by a group of lawyers and, therefore, in many of the States, this provision  was  dropped from the Statute.  Here,  in  India, statutory  provision for psychotherapic treatment during the period  of  incarceration in the jail is not available,  but reformist  activities are systematically held at many places with the intention of treating the offenders psychologically so that he may not repeat the offence in future and may feel repentant  of  having  committed  a  dastardly  crime.   The question of sentence in such cases was considered by Krishna Iyer,  J.  in Phul Singh vs.  State of Haryana (1979) 4  SCC 413,  in which he observed that sentencing efficacy in cases of  lust-loaded criminality cannot be simplistically assumed by  award  of  long incarceration, for,  often  that  remedy aggravates   the  malady.   He   further  observed  that,  a

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hyper-sexed   homo  sapien  cannot   be   rehabilitated   by humiliating  or harsh treatment.  In that case it was  found that  the  appellant  was a young man of 22  years  with  no criminal  antecedents save the offence of rape committed  by him.   The  learned  Judge thought that  given  correctional courses through meditational therapy and other measures, his erotic  aberrations  may  wither away, particularly  as  the appellant  had  a  reasonable  prospect of  shaping  into  a balanced person.  But, this theory was not followed in later decisions  as  it was found that in spite of devices  having been  employed and adopted within the jail premises so as to reform  the  offenders, there was negligible improvement  in the  commission of crime.  The crime, instead of  declining, had   increased  and,  today,  it  has   assumed   dangerous proportions.   While one person is reformed and moves out of jail, another offender is born.  Consequently, in two recent decisions,  relating to the offence of rape, one rendered by the  present Chief Justice of India and the other by Brother Lahoti,  the sentence was enhanced in State of Karnataka vs. Krishnappa  JT  2000  (3) SC 516, while in the  other  case, namely,  State  of Rajasthan vs.  Noore Khan JT 2000 (3)  SC 643, the order of acquittal passed by the High Court was set aside  and substituted by an order of conviction.   However, having  regard to the extenuating circumstances pointed  out by Mr.  Seeraj Bagga in the instant case, specially the fact that  the appellant’s two daughters have come of age and are to   be  married,  we  feel   that  the  present  period  of incarceration  of  the  appellant in jail is enough  and  he should not be made to further suffer the consequences of his bestiality.   We  therefore,  while dismissing  the  appeal, recall the notice issued to the appellant for enhancement of his sentence.