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PETITIONER: THE STATE OFKAMATAKA

       Vs.

RESPONDENT: KRTSFINAPPA

DATE OF JUDGMENT:       30/03/2000

BENCH: R.C.Lahoti, S.N.Variava,

JUDGMENT:

^-"

     Was  the  High  Court  Justified,  in  the  facts  and circumstances  of  the  case, to reduce the sentence  of  10 years  Rigorous  Imprisonment imposed by the Trial Court  on the  respondent  for an offence under Section 376 IPC  to  4 years   Rigorous   Imprisonment,   while   maintaining   his conviction  and  sentence  for   offences  punishable  under Sections  254,  323, 341, 363, 448 and 506 of  Indian  Penal Code,  is  the  only  question involved in  this  appeal  by special  leave?  A brief reference to the facts of the  case is necessary to answer the question.

     The  victim of rape is a little girl, who was about  8 years  of age at the relevant time.  She appeared as PW-1 at the  trial.  She was living with her parents, Honnaiah, PW-4 (father)  and  Parvathi, PW-5 (mother) in  village  Kenjige. Both  the  accused and the prosecutrix belong  to  Scheduled Caste.   On  5th  of May, 1991, between 8.00 and  9.00  p.m. while  the prosecutrix and her brother, Rameah were  playing in the Chavani of their house, the respondent went there and called  out  for Honnaiah, PW-4, father of the  prosecutrix. Parvathi,  PW-5 was at that time preparing chapatees in  the kitchen.   She answered back to say that her husband was not in  the house.  On hearing this, the respondent went  inside the house and asked Parvathi.  PW-5 to sleep with him, since her  husband  was not present in the house.  She  protested. The  respondent made obscene gestures and pulled her breasts and  on  her  further protest, the respondent beat  her  up. Parvathi,  PW-5 managed to somehow escape and ran out of the house  and  went  towards the house  of  her  mother-in-law, Ramajji.   Both  the  prosecutrix  and  her  brother,  after observing  the  incident also made an attempt to  run  away. The  respondent,  however, caught hold of the prosectrix  by her  right  hand and dragged her to room no.3 of  houses  in coolie  line.   The respondent closed the door and  forcibly made  prosecutrix  to lie on the floor.  The protest of  the prosecutrix  and her effort to free herself from the hold of the respondent led to the respondent biting her on her upper lip  which  started bleeding.  The prosecutrix fell  on  the ground.  The respondent had forcible sexual intercourse with her.   She sustained bleeding injuries on her private  parts also  and was exhausted.  The respondent then left the  room and locked it from outside.

     PW-4,  father of the prosecutrix, had in the meanwhile returned  home.  He learnt that the respondent had taken the

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prosecutrix  towards the collie line.  He went to the  house of  PW-12,  but,  was  assaulted and  threatened  with  dire consequences  in  case he disclosed about the occurrence  to anyone.  In the early hours of the morning, PWs-4 and 5 went to room no.3 in the coolie line and rescued the proaecutrix. The  matter  was  thereafter reported to  the  police.   The prosecutrix was sent for medical examination to the hospital where  she was treated.  After compietion of  investigation, chalian  was filed and the respondent prosecuted for various offences.

     The   learned   Sessions  Judge   after   a   critical examination  of  evidence  on  the  record  found  that  the respondent  himself,  a  married man with children,  at  the relevant  time  aged about 49 years, had in the first  place misbehaved  with the mother of the prosecutrix in the manner deposed  to  by  her  and had also  committed  rape  on  the prosecutrix,  a little child of 7/8 years of age.  The trial court  also observed on the basis of evidence on the record, that  the  respondent used to misbehave and  create  galata, under  the influence of liquor, quite often in the  village. The  Trial Court found that the prosecution had successfully established  that respondent had committed various  offences alleged  against him and convicted him accordingly.  On  the question  of sentence for the offence under Section 376  IPC (with  which  alone  we are concerned in this  appeal),  the Trial Court observed:

     "It  may also be noted that as discussed above in  the main  part  of the judgment, first he has tried to  get  his lascivious  feeling  satisfied  by going to  Parvathi  after knowing  that her husband was not in the house, and when she escaped, he had a!so attacked her husband 3

     and then when he saw the daughter of said Parvathi, he dragged  her and then committed rape on that young girl aged about  7 or 8 years.  All these facts to go clearly say  and establish  that  this  accused  had  gone  to  get  his  sex satisfied with whomsoever available.  That is how it fits in with

     ’written  in  regional  language’ and it  is  also  in evidence  that he has suffered injuries on his private  part as  well as on his right knee.  The injuries suffered by the girl  speak  eloquently about the cruel nature of  his  act. So,  for  all  these  reasons, I find no  just,  proper  and reasonable  grounds  to show him any  leniency."  (Emphasis, supplied)

     The Trial Court, accordingly, imposed a sentence of 10 years  R.I.   and  a fine of Rs.3,000/- and  in  default  of payment  of  fine to further undergo 6 months R.I.  for  the offence  under  Section 376 IPC It was directed that in  the event  of recovery of fine, the entire amount shall be  paid to the victim, prosecutrix, PW-1.

     The  appellant filed an appeal against his  conviction and sentence.  The Division Bench of the High Court accepted alt  the findings recorded by the Trial Court with regard to the  guilt of the respondent and the manner in which he  had made  obscene  gestures  to the mother of  the  prosecutrix, inviting  her to satisfy his sexual lust, pulled her breasts and  beat her and after she had escaped to have caught  hold of the prosecutrix and taking her to room no.3 in the coolie line  committed rape on her when she was just about 8  years

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of  age.  While confirming the conviction of the  respondent for the offence under Section 376 IPC, the High Court opined :

     "To  conclude  the  various   items  of  circumstances pressed into service by the prosecution to take the offences to  the doors of the accused have stood proved by cogent and satisfactory

     evidence.   The  offences alleged against the  accused stand   established  by  clinching   evidence  and   telling circumstances.   After hearing the learned amicus curiae and the  learned Additional State Public Prosecutor, giving  our anxious consideration to the contentions urged and canvassed by  the learned amicus curiae, we find the convictions sound and  well  founded.   There  are absolutely  no  reasons  to interfere with the well reasoned convictions."

     The  Division  Bench  of   the  High  Court,  however, interfered  with  the sentence imposed by the  Trial  Court. The  Division Bench while commenting upon the imposition  of sentence by the Trial Court observed :

     "..reading  that  part  of the Judgment in  which  the learned  Trial  Judge has examined the question as  to  what would  be the proper sentence we find that the learned Trial Judge,  while considering the proper sentences to be imposed on  the accused for the offence of rape was swayed and moved by  the fact that rape was committed on the young girt  aged about  7  or 8 years and the conduct attributed  and  proved against  the  accused,  both before, during  and  after  the commission of the offences."

     For reducing the sentence, the High Court observed :

     "Of  course,  the  question of sentence  is  a  matter within  the  sound discretion of the trial judge.  But  when the  discretion  Is not properly exercised or  is  exercised without  taking  into consideration the relevant factors  or when  the  discretion  is shown to have  been  exercised  to express sense of disapprobation intensively, there will be a case  for  interference  when the facts  brought  on  record require  alteration  in the sentence by reduction.  In  this case, we find facts warranting interference"

     "In  our  considered view having regard to the age  of the  accused, his social status, personal circumstances  and financial  condition  the  fact alleged by  the  prosecution itself  that  the accused was a chronic addict to  drinking, ...there is a case for a substantial reduction in the extent of the sentence of imprisonment...."

     The  Division  Bench  found that it was  a  case  ’for showing leniency’ to the accused in the matter of punishment because  the accused was "49 years of age" and "at the  time of  occurrence,  he had an old mother, wife and children  to look  after.  The Division Bench took note of the fact  that when  questioned by the learned trial Judge on the  question of  sentence,  he had stated that he was deaf by  one  year, that all the members of his family were depending on him for their livelihood and that if he was sent to jail, his family would be ruined" and observed:

     "Here  is a case of an unsophisticated and  illiterate citizen belonging to a weaker section of the society, having

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committed various offences while in a state of intoxication. It  is  common knowledge that when a man goes in a state  of intoxication  whether  voluntarily  or  involuntarily,   his reason  would be unseated.  He would indulge in acts knowing not the consequences of his acts which he forgets soon after he returns to a normal state."

     The sentence for the offence under Section 376 IPC was reduced from 10 years R.I.  to 4 years R.I.  The sentence of fine   together  with  the   default  clause  was,  however, maintained.

     ,  The  respondent has not challenged his  conviction. We  have  ourselves  perused  the  evidence  on  the  record including  the  medical  evidence  with  the  assistance  of learned  counsel  for  the  parties.  In  our  opinion,  the prosecution  has  established  case against  the  respondent beyond  a  reasonable doubt and his conviction  for  various offences  including for the offence under Section 376 IPC is well merited and we accordingly confirm the same.

     Should  the  High  Court   have  interfered  with  the discretion  exercised  ay  the Trial Court by  reducing  the sentence  for  the  offences under Section 376 IPC  from  10 years R.I.  to 4 years R.  1.?

     Section 376 (2) IPC reads, thus, :

     "376.  Punishment Tor 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  snows  that  the legislative  mandate is to impose asentence, for the offence of  rape  on agirl under 12 years of age, for a  term  which shall  not beless than 10 years, but.  it may extend to life and  also  to fine.  The proviso to Section 378(2)  IPC,  of course,  lays  down  that the court  may,  for_adequate  and specisl  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 R.I.  though in  exceptional  cases "for  special and adequate reasons" sentence of less than 10 years  R.I.  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

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depend  upon a variety of factors and the pecular facts  and circumstances  of  each case.  No hard and fast rule can  be laid down in that behalf of universal application.

     The  approach  of the High Court in this case, to  say the  least, was most casual and inappropriate.  There are no good reasons given by the High Court to reduce the sentence, let  alone  "special or adequate reasons".  The  High  Court exhibited lack of sensitivity towards the victim of rape and the  society  byreducing  the substantive  sentence  In  the established facts and circumstances of the case.  The Courts are  expected to properly operate the sentencing system  and to  impose  such  sentence for a proved offence,  which  may serve  as a deterrent for the commission of like offences by others.

     In State of A..P.  v.  Bodem Sundara Rao, (1995) 6 SCC 230, while dealing with a case of reduction of sentence from 10  years  R.I.  to 4 years R.I.  by the High Court  in  the case  of rape of a girl aged between 13 and 14 years, it was observed:

     "In  recent years, we have noticed that crime  against women  are on the rise.  These crimes are an affront to  the human  dignity  of  the   society.   Imposition  of  grossly inadequate  sentence and particularly against the mandate of the  Legislature  not only is an injustice to the victim  of the  crime  in  particular  and the society  as  a  whole-in general but also attimes, encourages a criminal.  The

     courts have an obligation while awarding punishment to impose  appropriate  punishment  so  as to  respond  to  the society’s  cry  for justice against such criminals.   Public abhorrence  of  the  crime needs a  reflection  through  the court’s  verdict  in the measure of punishment.  The  courts must  not  only keep in view the rights of the criminal  but also  the  rights of the victim of crime and the society  at large  while  considering  imposition   of  the  appropriate punishment.   The  heinous  crime of committing  rape  on  a helpless 13/14 year old girl shakes our judicial conscience. The offence was inhumane."

     (Emphasis supplied)

     Tho  sentence was accordingly enhanced to 7 years R.I. in the said case.

     Sexual violence apart from being a dehumanising act is an  unlawful intrusion of the right to privacy and  sanctity of a female.  It is a serious blow to her supreme honour and offends  her  self  esteem  and dignity   it  degrades  and humiliates  the  victim and where the victim is  a  helpless innocent  child,  it leaves behind a  traumatic  experience. The  Courts  are, therefore, expected to deal with cases  of sexual  crime  against women with utmost sensitivity.   Such cases  need to be dealt with sternly and severely.   Dealing with  the offence of rape and its traumatic effect on a rape victim,  this  Court  in State of Punjab v.   Quimit  Singh, (1996) 2 SCC 384, observed:

     "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  rignts in aii  spheres,  we  show little or no concern for her honour.  It is a sad reflection on  the attitude of indifference of the society towards  the

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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  ’s  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 greater responsibility while trying an accused on charges of rape.  They must deal with such cases with utmost sensitivity"

     (Emphasis supplied)

     A  socially  sensitized  Judge, in our opinion,  is  a better statutory armour in cases of crime against women than long  clauses  of  penal   provisions,  containing   complex exceptions and provisos.

     In  the instant case, the Trial Court gave  sufficient and  cogent  reasons for imposing the sentence of  10  years R.I.   for  the  offence  under   Section  376  IPC  on  the respondent.   Those  reasons have impressed us.   The  Trial Court was rightly influenced by the fact that the respondent was a married man of 49 years of age having his own children and  the victim of his sexual lust was an innocent  helpless girl  of 7/8 years of age.  The medical evidence provided by PW-6, Dr.  Shalini Devi exhibite the cruel nature of the act and  the extent of pain and suffering which the victim might have  undergone  on  her genitalia as a result  of  forcible coitus.  The Trial Court had, therefore, opined that because of the cruel nature of the act, the accused was not entitled to any leniency.

     The  High Court, however, differed with the  reasoning of the Trial Court in the matter of sentence and, as already noticed,  the  reasons  given by the High Court  are  wholly unsatisfactory  and  even irrelevant.  We are at a  loss  to understand   how   the  High   Court  considered  that   the "discretion  had  not been properly exercised by  the  Trial Court".   There is no warrant for such an observation.   The High Court Justified the reduction of sentence on the ground

     that  the accused-respondent was "unsophisticated  and illiterate  citizen  belonging  to a weaker section  of  the society", that he was "a chronic addict to drinking" and had committed   rape   on  the  girl   while  in  a   state   of "intoxication"  and  that his family comprising of  "an  old mother,  wife and children" were dependent upon him.   These factors,  in  our opinion, did not justify recourse  to  the proviso to Section 376(2) IPC to impose a sentence less than the  prescribed minimum.  These reasons are neither  special nor  adequate.  The measure of punishment in a case of  rape cannot  depond  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.   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

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expected  to  consider all relevant facts and  cirsumstances 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 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 to the respondent. To show

     mercy  in  the case of such a heinous crime  would  be travesty  of  justice  and the plea for leniency  is  wholly misplaced.   The High Court, in the facts and  circumstances of  the  case,  was not Justified in  interfering  with  the discretion  exercised  by the Trial Court and our answer  to the question posed In the earlier part of the judgment Is an emphatic  No.

     We,  therefore, accept this appeal and consider It our plain  duty  to  enhance the sentence In this  case.   While maintaining  the conviction of the respondent for an offence under Section 376 IPC besides all other offences, we enhance the  sentence of 4 years R.I., as imposed by the High Court, to  10  years R.I.  for the said offence.  We  maintain  the sentence of fine together with the default clause as imposed by the Courts below also.  Necessary warrant shall be issued to take the respondent into custody to undergo the remaining period of his sentence.