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CASE NO.: Appeal (crl.)  506 of 1997

PETITIONER: State of Karnataka                                               

RESPONDENT: Puttaraja                                                        

DATE OF JUDGMENT: 27/11/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT,J

A rapist not only causes physical injuries but more indelibly  leaves a scar on the most cherished possession of a woman i.e. her  dignity, chastity, honour and reputation. The depravation of such  animals in human form reach the rock bottom of morality when they  sexually assault children, minors and like the case at hand, a woman in  the advance stage of pregnancy.  We do not propose to mention name of the victim. Section 228-A of  the Indian Penal Code, 1860 (in short the ’IPC’) makes disclosure of  identity of victim of certain offences punishable. Printing or  publishing name of any matter which may make known the identity of any  person against whom an offence under Sections 376, 376-A, 376-B, 376-C  or 376-D is alleged or found to have been committed can be punished.  True it is, the restriction does not relate to printing or publication  of judgment by High Court or Supreme Court. But keeping in view the  social object of preventing social victimization or ostracism of the  victim of a sexual offence for which Section 228-A has been enacted, it  would be appropriate that in the judgments, be it of this Court, High  Court or lower Court, the name of the victim should not be indicated. We  have chosen to describe her as ’victim’ in the judgment.  21st August, 1985 is a day on which the victim suffered  unfathomable physical agony and traumatic ignominy that one can conceive  of at the hands of the accused-respondent.  The libidinousness and the  lustful design of the accused crossed all borders of indecency and he  raped the victim in the presence of her husband, unmindful of the  shattering mental trauma the latter (PW-1) suffered.  Law was set into  motion and the accused was charged for commission of offence punishable  under Section 376 of the IPC. He was found guilty by the trial Court  which imposed sentence of 5 years imprisonment, (though the minimum  sentence prescribed is 7 years) and fine of Rs.2000/-.  What seems to  have weighed with the trial Court for inflicting a lesser sentence was  age of accused’s parents his dependent sisters, wife and two young  children. Accused questioned correctness of the conviction and sentence  before the Karnataka High Court.  While the conviction was maintained,  the sentence was reduced by a learned Single Judge to period of custody  already undergone i.e. 46 days. The State of Karnataka questions the propriety of the sentence  imposed.  According to learned counsel for the appellant, if such  minuscule sentence is awarded for such a grave offence, it would be  giving premium to one most obnoxious acts punishable under the IPC.  It  is submitted that the sentence should be commensurate with the nature of  the offence.  In this case the High Court has not even indicated any  reason for reducing the sentence below the prescribed minimum which  under the proviso to Section 376(1) IPC can be done for "adequate and  special reasons to be mentioned in the judgment".   Learned counsel appearing for the respondents submitted that the

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evidence on record does not establish commission of the offence of rape  and at the most the offence for which accused could be convicted is  under Section 354 IPC, dealing with the assault or criminal force to a  woman with intent to outrage her modesty. Additionally, it is submitted  that the High Court has given adequate reasons as to why it considered  the custodial sentence undergone to be adequate. 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 \026 as it should be \026 a decisive reflection of social  consciousness of society".  Therefore, in operating the sentencing  system, law should adopt the corrective machinery or the deterrence  ideology 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 the indelible impact on the victim and his family  and all other attending circumstances are relevant facts which would  enter into the area of consideration.   

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 Naidu (AIR 1991 SC  1463).                    

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.  

       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 on account of misplaced  sympathies to the perpetrator of crime leaving the victim or his family  into oblivion. 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

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considerations that make punishment unjustifiable when it is out of  proportion to the gravity of the crime, uniformly disproportionate  punishment has some very undesirable practical consequences.            

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.

The object should be to protect the society and to deter the  criminal in achieving the avowed object of law by imposing appropriate  sentence. It is expected that the Courts would operate the sentencing  system so as to impose such sentence which reflects the conscience of  the society and the sentencing process has to be stern where it should  be.   Imposition of sentence without considering its effect on the  social order in many cases may be in reality a futile exercise. The  social impact of the crime, e.g. where it relates to offences against  women like the case at hand, dacoity, kidnapping, misappropriation of  public money, treason and other offences involving moral turpitude or  moral delinquency which have great impact and serious repercussions on  social order, and public interest, cannot be lost sight of and per se  require exemplary treatment. Any liberal attitude by imposing meagre  sentences or taking too sympathetic view merely on account of lapse of  time or considerations personal to the accused only in respect of such  offences will be result-wise counter productive in the long run and  against societal interest which needs to be cared for and strengthened  by the required string of deterrence inbuilt in the sentencing system.  

In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC 220), this  Court has observed that shockingly large number of criminals go  unpunished thereby increasingly, encouraging the criminals and in the  ultimate making justice suffer by weakening the system’s creditability.  The imposition of appropriate punishment is the manner in which the  Court responds to the society’s cry for justice against the criminal.  Justice demands that Courts should impose punishment befitting the crime  so that the Courts reflect public abhorrence of the crime.  The Court  must not only keep in view the rights of the criminal but also the  rights of the victim of the crime and the society at large while  considering the imposition of appropriate punishment.

Similar view has also been expressed in Ravji v. State of  Rajasthan, (1996 (2) SCC 175). It has been held in the said case that it  is the nature and gravity of the crime but not the criminal, which are  germane for consideration of appropriate punishment in a criminal trial.   The Court will be failing in its duty if appropriate punishment is not  awarded for a crime which has been committed not only against the  individual victim but also against the society to which the criminal and  victim belong.  The punishment to be awarded for a crime must not be  irrelevant but it should conform to and be consistent with the atrocity  and brutality with which the crime has been perpetrated, the enormity of  the crime warranting public abhorrence and it should "respond to the

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society’s cry for justice against the criminal". These aspects have  been highlighted in State of M.P. v. Ghanshyam Singh (2003 (8) SCC 13).  Rape is violation with violence of the private person of the victim, an  abominable outrage by all canons.  In the background what has been stated in Ghanshyam Singh’s case  (supra) the inevitable conclusion is that the High Court was not  justified in restricting the sentence to the period already undergone,  which is 46 days.  Leniency in matters involving sexual offences is not  only undesirable but also against public interest.  Such types of  offences are to be dealt with severity and with iron hands.  Showing  leniency in such matters would be really a case of misplaced sympathy.   The acts which led to the conviction of the accused are not only  shocking but outrageous in their contours.  The only reason indicated by  the High Court for awarding sentence lesser then prescribed minimum is  quoted below:  "I have heard at length the submission of Mr.  Bhagavan, learned counsel for the accused, on the  question of sentence.  He submitted that the accused  is a cooli and agriculturists, young man aged 22  years old and requires sympathy. It is also relevant  to point out that the occurrence took place in the  year 1985 and a long time has lapsed.  The trial and  the appeal have kept the appellant busy in court.   Taking all these factors into account I feel that the  appellant need not be sentenced to imprisonment since  he was already in custody for a period of 46 days."

If the above can be described as "adequate and special reasons"  then it would be insulting to ratiocination.   According to us this is a case where there was no scope for  awarding sentence lesser than prescribed minimum and it should have been  highest prescribed. But the trial Court awarded sentence of 5 years for  reasons, which may not be strictly meeting the requirements of law.   Since the State had not questioned the sufficiency of sentence before  the High Court, we restore the sentence awarded by the trial Court along  with the fine imposed. The appeal is allowed.