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CASE NO.: Appeal (crl.)  1658 of 2007

PETITIONER: STATE OF MADHYA PRADESH

RESPONDENT: BABULAL

DATE OF JUDGMENT: 03/12/2007

BENCH: C.K. THAKKER & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 1658 OF 2007 ARISING OUT OF SPECIAL LEAVE PETITION (CRL.) NO. 5974 OF 2005

C.K. THAKKER, J.

1.              Leave granted. 2.              The present appeal reminds us  observations of Hon’ble Mr. Justice S. Ratnavel  Pandian in Madan Gopal Kakkad v. Naval Dubey &  Anr., (1992) 3 SCC 204 that "offenders of  sexual assault who are menace to the civilized  society should be mercilessly and inexorably  punished in the severest terms". Dealing with a  case of sexual assault, His Lordship emphasized  on Courts of Law their duty to handle offenders  of such crimes with a heavy hand. His Lordship  concluded: "We feel that Judges who bear the  Sword of Justice should not hesitate  to use that sword with the utmost  severity, to the full and to the end  if the gravity of the offences so  demand".

3.              The case on hand, in our considered  view, exhibits not only casual, indifferent and  perfunctory approach but insensitive attitude  adopted by the High Court in awarding sentence  on an offender who perpetrated a heinous crime  of committing rape on a married woman in broad  daylight. The case of the prosecution was that  respondent Babulal was residing at village  Daulatpur, Tehsil Ikchavaar, District Sehore in  Madhya Pradesh. On July 23, 2002, at about  12.00 noon in his own tapri, he criminally  intimidated the prosecutrix-PW5, aged about 22  years, a married lady (hereinafter referred to  as ’PW5-X’)and committed rape on her. According  to the prosecution, PW5-X was living with her  husband in the house of the accused. On the day  of the incident, she was washing a drum on  tapri when the accused caught her from behind  and threw her on the ground. The prosecutrix- PW5 shouted and resisted, but the accused  threatened her with knife and committed rape on

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her. Even thereafter, he threatened to kill her  if she reported the incident to anyone else. In  the evening, PW5-X told about sexual assault to  her husband and her mother-in-law Dallubai, a  blind lady. PW8-Ramcharan, who was the employer  of PW7-Shiv Narayan-husband of PW5 was also  informed who assured that he would talk to the  accused and PW5 should not leave the place due  to fear. On the next day, i.e. July 24, 2002,  when the elder brother of Shiv Narayan arrived,  the prosecutrix (PW5-X) and her husband (PW7)  went to the police station, Ikchavaar and  lodged a complaint. PW5-X was then sent for  medical examination, site plan was prepared and  statements of witnesses were recorded. PW5 was  medically examined. The accused was also sent  for medical examination. It was found that he  was absolutely competent to commit sexual  intercourse. After completion of usual  investigation, charge-sheet was submitted for  offences punishable under Section 376 read with  Section 506, Part II, Indian Penal Code (IPC).  The accused denied the charge. In his statement  under Section 313 of the Code of Criminal  Procedure, 1973, he contended that in order to  avoid repayment of loan taken from Ramcharan- PW8, the prosecutrix (PW5-X) had falsely  implicated him in the case. 4.              The trial Court considered the  evidence adduced by the prosecution and  particularly sworn testimony of PW5- prosecutrix, PW7-Shiv Narayan-husband of  prosecutrix and PW9-Dr. Madhu Sharma, immediate  Assistant Surgeon, Public Health Centre,  Ikchavaar and held that it was proved beyond  reasonable doubt that the accused had committed  the offence of rape. So far as PW8-Ramcharan is  concerned, he did not support the prosecution  and was declared ’hostile’. The trial Court,  however, acquitted the accused of the charge  under Section 506, II IPC. 5.              On sentence, the trial Court heard the  accused who prayed for grant of probation  which, in our opinion, was rightly refused by  the Court. In the light of mandate in sub- section (1) of Section 376, IPC, the trial  Court imposed minimum sentence of seven years’  rigorous imprisonment and to pay fine of  Rs.2,500/- (two thousand five hundred). In  default of payment of fine, the accused was  ordered to undergo rigorous imprisonment for  six months more. The amount of fine was ordered  to be paid to the prosecutrix X. 6.              The aggrieved accused preferred an  appeal before the High Court of Madhya Pradesh.  The learned counsel for the accused did not  challenge the finding of conviction but prayed  for mercy and leniency in sentence. The learned  Judge of the High Court upheld the argument of  the learned counsel for the appellant and  observed that the accused was initially in  custody from September 11, 2002 to October 10,  2002 and again after the pronouncement of the  judgment, he was sent to jail on January 23,  2003 till he was enlarged on bail on February

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26, 2003. The learned Judge also observed that  the accused was an ’illiterate agriculturist  from rural area’ and fine of Rs.2,500/- was  also imposed on him. According to the learned  Judge, on the facts of the case, the  imprisonment for two months and three days  which had already undergone by the accused  could be said to be ’just and proper’ and  accordingly the appeal was partly allowed. 7.              Aggrieved by the said order passed by  the High Court, the State has approached this  Court. 8.              On November 21, 2005, notice as also  bailable warrant was issued against the  respondent which was duly served upon him. The  respondent also appeared through an advocate.  On March 19, 2007 when the matter was called  out, the advocate appearing for the respondent- accused stated that he had no papers. The  Court, therefore, ordered that papers be given  to the learned counsel appearing for the  respondent by the counsel for the State. The  matter was then called out for final hearing. 9.              We have heard learned counsel  appearing for the parties. 10.             The learned counsel for the State  contended that the High Court had committed a  serious error of law in reducing the sentence  imposed by the trial Court. He submitted that  sub-section (1) of Section 376, IPC provides  minimum sentence of rigorous imprisonment for  seven years which was imposed by the trial  Court and there was no reason for the High  Court to interfere with the said order. Maximum  imprisonment imposable on the offender under  the said provision is ten years. The High Court  was, therefore, not right in reducing the  sentence and that too when the accused had  undergone only for two months and three days.  It was also submitted that no ’adequate and  special reasons’ were recorded by the High  Court for reducing the sentence and even on  that ground also the order is vulnerable. The  counsel submitted that the High Court ought to  have appreciated the fact that the offence was  committed in broad daylight. He, therefore,  submitted that the order passed by the High  Court deserves to be set aside by restoring the  order of the trial Court. 11.             The learned counsel for the  respondent-accused submitted that the  discretion exercised by the High Court  considering the position of the accused, cannot  be said to be illegal and deserves no  interference. 12.             Having heard the learned counsel for  the parties, in our opinion, the High Court had  manifestly erred in allowing the appeal and in  reducing the sentence imposed on the offender  to the period ’already undergone’. 13.             So far as conviction of the respondent  is concerned, we find no infirmity in the  reasons recorded and the conclusion arrived at  by the trial Court. The trial Court rightly  held that on the fateful day, at 12.00 noon,

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the accused committed the crime. In her  testimony on oath, prosecutrix narrated the  incident and stated that when she was washing  the kothi on tapri, the accused came from the  behind, caught her, pulled her down on the  earth and committed rape on her. The trial  Court rightly observed that the prosecutrix  informed her husband about the incident, who in  turn contacted PW8-Ramcharan-employer, but  Ramcharan-PW8 did nothing. The matter was also  reported by prosecutrix to her mother-in-law  Dallubai who was blind. PW7-Shiv Narayan- husband of the prosecutrix intimated his elder  brother about the incident when he came next  day and thereafter First Information Report  (FIR) was lodged. The trial Court rightly held  that there was no unexplained delay in filing  the complaint. The ’straightforward’ evidence  of prosecutrix-PW5 was believed by the Court  and accordingly the accused was convicted. We  are fully satisfied that in recording a finding  of guilt against the respondent, the trial  Court had not committed any error, either of  fact or of law. 14.             As held by this Court in several  cases, if a Court of Law finds evidence of  prosecutrix truthful, trustworthy and reliable,  conviction can be recorded solely on the basis  of her testimony and no further corroboration  is necessary. In this connection, we may refer  to only two leading decisions of this Court in  Bharwada Bhoginbhai Hirjibhai v. State of  Gujarat, (1983) 3 SCC 217 and State of  Rajasthan v. Narayan, (1992) 3 SCC 615. 15.             In the first case, this Court,  speaking through M.P. Thakkar, J. stated: "9. In the Indian setting, refusal to  act on the testimony of a victim of  sexual assault in the absence of  corroboration as a rule, is adding  insult to injury. Why should the  evidence of the girl or the woman who  complains of rape or sexual molestation  be viewed with the aid of spectacles  fitted with lenses tinged with doubt,  disbelief or suspicion? To do so is to  justify the charge of male chauvinism  in a male dominated society. We must  analyze the argument in support of the  need for corroboration and subject it  to relentless and remorseless cross- examination. And we must do so with a  logical, and not an opinionated, eye in  the light of probabilities with our  feet firmly planted on the soil of  India and with our eyes focussed on the  Indian horizon. We must not be swept  off the feet by the approach made in  the western world which has its own  social milieu, its own social mores,  its own permissive values, and its own  code of life. Corroboration may be  considered essential to establish a  sexual offence in the backdrop of the  social ecology of the western world. It

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is wholly unnecessary to import the  said concept on a turnkey basis and to  transplant it on the Indian soil  regardless of the altogether different  atmosphere, attitudes, mores, responses  of the Indian society, and its profile.  The identities of the two worlds are  different. The solution of problems  cannot therefore be identical. It is  conceivable in the western society that  a female may level false accusation as  regards sexual molestation against a  male for several reasons such as :  (1) The female may be a ’good digger’  and may well have an economic motive \027  to extract money by holding out the  gun of prosecution or public exposure. (2) She may be suffering from  psychological neurosis and may seek an  escape from the neurotic prison by  phantasizing or imagining a situation  where she is desired, wanted, and  chased by males. (3) She may want to wreak vengeance on  the male for real or imaginary wrongs.  She may have a grudge against a  particular male, or males in general,  and may have the design to square the  account. (4) She may have been induced to do so  in consideration of economic rewards,  by a person interested in placing the  accused in a compromising or  embarrassing position, on account of  personal or political vendetta. (5) She may do so to gain notoriety or  publicity or to appease her own ego or  to satisfy her feeling of self- importance in the context of her  inferiority complex. (6) She may do so on account of  jealousy. (7) She may do so to win sympathy of  others. (8) She may do so upon being  repulsed".  16.             In the second case, which was also of  rape, there was delay of three days in lodging  FIR. This Court held that it was not a factor  causing doubt on the story of the prosecution  in view of the generally known fact that the  rape victim or her husband would hesitate to  approach the police. It was also held that  unless the evidence discloses that she and her  husband had strong reasons to falsely implicate  the accused, ordinarily the court should have  no hesitation in accepting her version  regarding the incident. 17.             In the case on hand, the defence put  forward by the respondent-accused was that the  husband of the prosecutrix had taken advance  money from PW8-Ramcharan-employer towards  labour charges and since he had no intention to  return the said amount, the prosecutrix falsely  implicated the accused in the case. In our

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considered opinion, the trial Court rightly  rejected the defence. Hence, in our opinion,  the order of conviction recorded by the trial  Court and confirmed by the High Court cannot be  said to be faulty and conviction of the  respondent-accused cannot be said to be  illegal. 18.             The next question relates to adequacy  of sentence. Let us consider it on principle as  well as in practice, in the light of statutory  provisions. 19.             Punishment is the sanction imposed on  the offender for the infringement of law  committed by him. Once a person is tried for  commission of an offence and found guilty by a  competent court, it is the duty of the court to  impose on him such sentence as is prescribed by  law. The award of sentence is consequential on  and incidental to conviction. The law does not  envisage a person being convicted for an  offence without a sentence being imposed  therefor. 20.             The object of punishment has been  succinctly stated in Halsbury’s Laws of  England, (4th Edition; Vol.II; para 482) thus; "The aims of punishment are now  considered to be retribution, justice,  deterrence, reformation and protection  and modern sentencing policy reflects  a combination of several or all of  these aims. The retributive element is  intended to show public revulsion to  the offence and to punish the offender  for his wrong conduct. The concept of  justice as an aim of punishment means  both that the punishment should fit  the offence and also that like  offences should receive similar  punishments. An increasingly important  aspect of punishment is deterrence and  sentences are aimed at deterring not  only the actual offender from further  offences but also potential offenders  from breaking the law. The importance  of reformation of the offender is  shown by the growing emphasis laid  upon it by much modern legislation,  but judicial opinion towards this  particular aim is varied and  rehabilitation will not usually be  accorded precedence over deterrence.  The main aim of punishment in judicial  thought, however, is still the  protection of society and the other  objects frequently receive only  secondary consideration when sentences  are being decided".                                   (emphasis supplied) 21.             In justice-delivery system, sentencing  is indeed a difficult and complex question.  Every Court must be conscious and mindful of  proportion between an offence committed and  penalty imposed as also its impact on society  in general and the victim of the crime in  particular.

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22.             In B.G. Goswami v. Delhi  Administration, (1974) 3 SCC 85, this Court  stated: "Now the question of sentence is  always a difficult question, requiring  as it does, proper adjustment and  balancing of various considerations  which weigh with a judicial mind in  determining its appropriate quantum in  a given case. The main purpose of the  sentence broadly stated is that the  accused must realise that he has  committed an act which is not only  harmful to the society of which he  forms an integral part but is also  harmful to his own future, both as an  individual and as a member of the  society. Punishment is designed to  protect society by deterring potential  offenders as also by preventing the  guilty party from repeating the  offence; it is also designed to reform  the offender and re-claim him as a law  abiding citizen for the good of the  society as a whole. Reformatory,  deterrent and punitive aspects of  punishment thus play their due part in  judicial thinking while determining  this question. In modern civilized  societies, however, reformatory aspect  is being given somewhat greater  importance. Too lenient as well as too  harsh sentences both lose their  efficaciousness. One does not deter  and the other may frustrate thereby  making the offender a hardened  criminal".                (emphasis supplied) [see also Salmond on Jurisprudence,  (2004); p.94] 23.             Penal laws, by and large, adhere to  the doctrine of proportionality in prescribing  sentences according to culpability of criminal  conduct. Judges in principle agree that  sentence ought always to commensurate with the  crime. In practice, however, sentences are  determined on other relevant and germane  considerations. Sometimes it is the  correctional need that justifies lesser  sentence. Sometimes the circumstances under  which the offence is committed play an  important role. Sometimes it is the degree of  deliberation shown by the offender in  committing a crime which is material.  Sentencing is thus a delicate task which  requires skill, talent and consideration of  several factors, such as, the nature of  offence, circumstances \026extenuating or  aggravating- in which it was committed, prior  criminal record of the offender, if any, age  and background of the criminal with reference  to education, home life, social adjustment,  emotional and mental condition, prospects of  his reformation and rehabilitation, etc. All  these and similar other considerations can,  hopefully and legitimately, tilt the scale on

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the propriety of sentence. 24.             Moreover, social impact of the crime,  particularly where it relates to offences  against women, cannot be lost sight of and per  se require exemplary treatment. Any liberal  attitude of imposition of meager sentence or  too sympathetic view may be counter productive  in the long run and against social interest  which needs to be cared for, protected and  strengthened by string of deterrence inbuilt in  the sentencing system. 25.             Sexual violence apart from being a  dehumanizing act is also 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  leaves behind a traumatic experience. It has  been rightly said that whereas a murderer  destroys the physical frame of a victim, a  rapist degrades and defiles the soul of a  helpless female. The courts are, therefore,  expected to try and decide cases of sexual  crime against women with utmost sensitivity.  Such cases need to be dealt with sternly and  severely. A socially sensitized Judge is a  better armour in cases of crime against women  than long clauses of penal provisions,  containing complex exceptions and complicated  provisos. 26.             Once a person is convicted for an  offence of rape, he should be treated with a  heavy hand. An undeserved indulgence or liberal  attitude in not awarding adequate sentence in  such cases would amount to allowing or even to  encouraging ’potential criminals’. The society  can no longer endure under such serious  threats. Courts must hear the loud cry for  justice by society in cases of heinous crime of  rape and impose adequate sentence. Public  abhorrence of the crime needs reflection  through imposition of appropriate sentence by  the Court [Dinesh v. State of Rajasthan, (2006)  3 SCC 771]. 27.             Now, let us consider the legal  position in the light of statutory provisions  and amendments made. The Law Commission took  note of various decisions rendered by this  Court from time to time wherein it was observed  that considering the rise in crime and the  growing menace to sexual abuse, necessary  change should be made. The Law Commission,  therefore, in its 84th Report stated: "It is often stated that a woman who  is raped undergoes two crises-the rape  and the subsequent trial. While the  first seriously wounds her dignity,  curbs her individual, destroys her  sense of security and may often ruin  her physically, the second is no less  potent of mischief, inasmuch as it not  only forces her to relive through the  traumatic experience, but also does so  in the glare of publicity in a totally  alien atmosphere, with the whole

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apparatus and paraphernalia of the  criminal justice system focused upon  her. In particular, it is now well  established that sexual activities  with young girls of immature age have  a traumatic effect which often  persists through life, leading  subsequently to disorders, unless  there are counter-balancing factors in  family life and in social attitudes  which could act as a cushion against  such traumatic effects. Rape is the ’ultimate violation of the  self’. It is a humiliating event in a  woman’s life which reads to fear for  existence and a sense of  powerlessness. The victim needs  empathy and safety and a sense of re- assurance. In the absence of public  sensitivity to these needs, the  experience of figuring in a report of  the offence may itself become another  assault.  Forcible rape is unique among crimes,  in the manner in which its victims are  dealt with by the criminal justice  system. Raped women have to undergo  certain tribulations. These begin with  their treatment by the police and  continue through a male-dominated  criminal justice system. Acquittal of  many de facto guilty rapists adds to  the sense of injustice. In effect, the focus of the law upon  corroboration, consent and character  of the prosecutrix and a standard of  proof of guilt going beyond reasonable  doubt have resulted in an increasing  alienation of the general public from  the legal system, who find the law and  legal language difficult to understand  and who think that the courts are not  run so well as one would expect. 28.             Pursuant to the Law Commission’s  Report, Parliament amended Sections 375 and  376, IPC by the Criminal Law (Amendment) Act,  1983. (ACT 43 of 1983). Sub-section (1) of  Section 376 now prescribes minimum sentence of  rigorous imprisonment of seven years on the  person convicted under Section 376(1) unless  the case is covered by proviso. Sub-section (1)  read with proviso is material which reads thus: 376. Punishment for rape (1) Whoever, except in the cases  provided for by subsection (2),  commits rape shall be punished with  imprisonment of either description for  a term which shall not be less than  seven years but which may be for life  or for a term which may extend to ten  years and shall also be liable to fine  unless the women raped is his own wife  and is not under twelve years of age,  in which cases, he shall be punished

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with imprisonment of either  description for a term which may  extend to two years or with fine or  with both: Provided that the court may, for  adequate and special reasons to be  mentioned in the judgement, impose a  sentence of imprisonment for a term of  less than seven years.                                   (emphasis supplied) 29.             The proviso to sub-section (1) of  Section 376, IPC thus enjoins the Court if it  imposes less than the minimum sentence of seven  years rigorous imprisonment on an offender of  rape to record ’adequate and special reasons’  in the judgment. Recording of reasons is,  therefore, sine qua non or condition precedent  for imposing sentence less than the minimum  required by law. Moreover, such reasons must be  both (i) ’adequate’ and (ii) ’special’. What is  ’adequate’ and ’special’ would depend upon  several factors and no strait-jacket formula  can be laid down as a rule of law of universal  application. 30.             In the instant case, ’special’ and  ’adequate’ reasons according to the learned  Judge of the High Court were; (i) the  respondent was an ’illiterate agriculturist  from rural area’ and (ii) an amount of fine of  Rs.2,500/- was imposed on him. No other reason  whatsoever has been mentioned in the judgment,  nor is found from the record of the case. With  respect to the learned Judge, in our considered  opinion, the so called reasons can neither be  said to be ’special’ nor ’adequate’. On the  contrary, in the Special Leave Petition seeking  leave to appeal, the applicant-State has  averred that the learned Judge was in the habit  of passing such orders by reducing sentence to  the period ’already undergone’ in serious  offences punishable under Sections 304, 307,  376, etc. A list is also given of some of     the matters decided by him. Our attention was  also invited by the learned Government Advocate  that in several cases, this Court has set aside  the decisions rendered by the same learned  Judge. 31.             In our judgment, by passing the order  impugned in the present appeal and by reducing  the sentence imposed on the respondent by the  trial Court to the ’period already undergone’  which was only two months and three days, the  learned Judge of the High Court has committed  grave illegality which had resulted in  ’miscarriage of justice’. There were no reasons  much less ’adequate’ and ’special’ reasons to  reduce the sentence less than the minimum  required to be imposed under sub-section (1) of  Section 376, IPC. The order is, therefore,  liable to be set aside. On the facts and in the  circumstances of the case, in our opinion, the  trial Court was wholly right and fully  justified in awarding rigorous imprisonment for  seven years as envisaged by sub-section (1) of  Section 376, IPC and there was no earthly

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reason to interfere with the said order by the  High Court. The appeal, therefore, deserves to  be allowed. 32.             For the foregoing reasons, the appeal  filed by the State is allowed. The order of  conviction recorded by the trial Court and  confirmed by the High Court is upheld. The High  Court was, however, wrong in reducing the  sentence and the trial Court rightly imposed  rigorous imprisonment of seven years on the  respondent-accused. We, therefore, restore that  part of the order of the trial Court directing  the respondent to suffer rigorous imprisonment  for seven years. It goes without saying that  the period of sentence already undergone by the  respondent-accused will be given set off. 33.             Ordered accordingly.