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                                        REPORTABLE                 IN THE SUPREME COURT OF INDIA

             CRIMINAL APPELLATE JURISDICTION

              CRIMINAL APPEAL NO. 870 OF 2008               (Arising out of SLP (Crl.) No. 8138 of 2007)

Siriya @ Shri Lal                               ....Appellant

                           Versus

State of Madhya Pradesh                         ....Respondent

                         JUDGMENT

Dr. ARIJIT PASAYAT, J.

1.   Leave granted.

    There can never be more shocking, depraved and

heinous crime than when the father is charged of having

raped his own daughter. He not only delicts the law but, it is a

betrayal of trust. The father is the fortress and refuge of his

daughter in whom the daughter reposes trust to protect her.

Charged of raping his own daughter under his refuge and

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fortress is worse than the gamekeeper becoming a poacher

and treasury guard becoming a robber.

2.   The appellant questioned his conviction for offence

punishable under Section 376 of the Indian Penal Code, 1860

(in short the ‘IPC’) as recorded by the learned Sessions Judge,

Guna and sentence of imprisonment for life and fine of

Rs.1,000/-   with   default   stipulation   before   the   Madhya

Pradesh High Court.

3.   The High Court affirmed the conviction and the sentence.

4.   Sans unnecessary details the background facts are as

follows:

    The prosecutrix is the daughter of the appellant. The

mother of the prosecutrix had died about 3 years back prior to

the date of incident i.e. 5.2.2004. At the time of incident, the

prosecutrix was residing with her father alongwith her three

brothers. On 5.2.2004 the appellant took the prosecutrix (PW-

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4) aged around 13 years on his cycle to Raghogarh to

purchase clothes for her. At around 3 p.m., the prosecutrix

was coming back with him on his cycle when on the way, the

appellant stopped his cycle near "Bawdi Kheda Ashram".

Appellant then took the prosecutrix to a dilapidated house

situated there and removed the clothes of the prosecutrix.

When the prosecutrix cried, the appellant slapped her and

forcibly committed rape on her. At that time, three persons-

witnesses Kamarjeet, Promod and Suresh who were passing

by, heard the shrieks of the prosecutrix, went inside the room

and separated the appellant from the prosecutrix. Then, these

witnesses took the prosecutrix and the appellant to the police

station Vijaypur where the prosecutrix (PW-4) lodged the first

information report (Ex. P-4) against the appellant. The

prosecutrix (PW-4) was sent for medical examination. Dr.

Chhaya Shrama (PW-2) examined the .prosecutrix and found

that her sexual character had started developing, pubic hairs

were scanty and on internal examination, found old hymen

ruptured at 11 o’clock position including the redness over it’s

posterior side. On the basis of this examination, the doctor

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opined that possibility of rape could not be denied. The

vaginal swab of the prosecutrix was prepared and the panty of

the prosecutrix was taken by the doctor and the same was

sealed   and   handed   over       to   the   police   for   chemical

examination. For confirmation of the age of the prosecutrix,

her x-ray was taken and as per the x-ray report (Ex.P-1) the

age of the prosecutrix was found above 17 years and below 19

years. The appellant was arrested and he was also sent for

medical examination. According to his medical report (Ex.P-3),

the appellant was found competent to perform sexual

intercourse. Thus, according to the prosecution, the appellant

committed rape on the prosecutrix (PW-4), who is his own

daughter. After investigation, charge-sheet was filed. After

committal of the case, charge under Section 376(1) of I.P.C.

was framed against the appellant.

    The accused took the plea of false implication which was

not accepted by the trial Court. He was convicted and

sentenced as aforestated. He preferred an appeal before the

High Court. Before the High Court it was the stand of the

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appellant that his brother wanted to grab land and property

and, therefore, the prosecutrix was under his influence and on

being tutored had deposed falsely against the appellant.        It

was also stated that three other witnesses had deposed under

the influence of the villagers. It was stated that it is unnatural

that the father would sexually assault his daughter. It is also

stated that the High Court without analyzing the evidence

dismissed the appeal.

    In support of the appeal, the stands taken before the trial

Court and the High Court were re-iterated. It was submitted

that the age of the prosecutrix was about 12 years at the time

of incidence. The mother of the prosecutrix had died and,

therefore, to look after her well being reduction in sentence

should be given.

    Learned counsel for the State supported the judgment

and submitted that nothing more degrading could have been

done by a father and, therefore, no leniency is called for.

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5.   The case at hand shows to what bottomless pit speed of

depravation and lust a person can go down. As indicated at

the threshold, the custodian of the trust has betrayed the

same. The father is supposed to protect the dignity and

honour of his daughter. This is a fundamental facet of human

life. If the protector becomes the violator, the offence assumes

a greater degree of vulnerability. The sanctity of father and

daughter      relationship   gets   polluted.   It   becomes   an

unpardonable act. It is not only a loathsome sin, but also

abhorrent. The case at hand is a sad reflection on the present

day society where a most platonic relationship has been soiled

by the pervert and degrading act of the father. The evidence

on records clinchingly nails the appellant as the offender.

6.   The next question is whether any lenience in sentence is

called for.

7.   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

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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

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nature of weapons used and all other attending circumstances

are relevant facts which would enter into the area of

consideration.

8.   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).

9.   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

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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.

10.   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

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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.

11.   These aspects were highlighted in Shailesh Jasvantbhai

and Anr. v. State of Gujarat and Ors. [2006 (2) SCC 359] and

State of Karnataka vs. Raju (AIR 2007 SC 3225).

12.   In this case, the accused’s lustful acts have indelible scar

not only physically but also emotionally on the victim. No

sympathy or leniency is called for.

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13.   Looked at from any angle the appeal is without merit and

deserves to be dismissed which we direct.

                                   ................................J.                                     (Dr. ARIJIT PASAYAT)

                                   ................................J.                                     (P. SATHASIVAM) New Delhi, May 13, 2008

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