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CASE NO.: Appeal (crl.)  782 of 2001

PETITIONER: State of Karnataka

RESPONDENT: Raju

DATE OF JUDGMENT: 14/09/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO. 782 OF 2001

Dr. ARIJIT PASAYAT, J.

1.      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 p.m.

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= years.

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

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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

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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

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consideration.    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

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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 set aside.

18.     The appeal is allowed.