IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 17 OF 2007
Balaji s/o. Gangaram Navghare ]..Appellant
Age. 35 years, Occ. Nil,
R/o. At post Malvata, Tq. Basmat,
Dist. Parbhani presently in
Nashik Central Jail.
VERSUS
The State of Maharashtra ]..Respondent
Mr. Suresh Mundhe, Advocate (appointed) for the
appellant.
Mrs. R.R. Mane, A.P.P. for the respondent/State.
CORAM : P.V. HARDAS &
P.R. BORKAR, JJ.
DATED : 12th NOVEMBER, 2008.
JUDGMENT : [PER : P.R. BORKAR,J.] :-
. Appellant – Balaji s/o. Gangaram Navghare has
filed this appeal being aggrieved by the order of
conviction and sentence passed in Sessions Case No.
47 of 1999, decided by learned First Adhoc Additional
Sessions Judge, Parbhani on 02.05.2006, whereby the
present appellant is convicted of offences punishable
under Sections 363, 376 and 302 of the I.P.C. and
sentenced to suffer different sentences for each
offence. Learned First Adhoc Additional Sessions
Judge has sentenced the accused to suffer simple
imprisonment for seven years with fine of Rs.100/-, in
::: Downloaded on – 09/06/2013 14:03:33 :::
( 2 )
default, to undergo simple imprisonment for one month
for offence punishable under Section 363 the I.P.C.
The appellant is sentenced to suffer simple
imprisonment for seven years and to pay fine of Rs.
100/-, in default, to suffer simple imprisonment for
one month for offence punishable under Section 376 of
the I.P.C. For offence punishable under Section 302
of the I.P.C. the appellant is sentenced to suffer
simple imprisonment for life (sic) and to pay fine of
Rs. 100/-, in default, to suffer simple imprisonment
for one month.
2. At the outset we express our shock, surprise
and displeasure for awarding simple imprisonment of
seven years for each of the offences under Sections
363 and 376 of the I.P.C. when as per the learned
Additional Sessions Judge, the case of the prosecution
is that the appellant had kidnapped, raped and
murdered a ten years old girl. We are also surprised
to find phrase “simple imprisonment for life”.
3. Brief facts giving rise to this appeal may be
stated as below:-
. Dropadabai was ten years old daughter of
::: Downloaded on - 09/06/2013 14:03:33 :::
( 3 )
P.W.2-Dwarkabai Alne. Both were living by begging
alms and were residing at Parbhani. On 13.07.1998 at
about 12=00 noon, the appellant who was knowing
Dwarkabai, took Dropadabai on promise of giving her
food and went away. Thereafter Dropadabai did not
return. Dwarkabai, her sister and others searched
Dropadabai, but she was not found. They approached
Police on the next day and police took them to the
Hospital to show a dead body. It was identified as
that of Dropadabai. There were several injuries on
the person
ig of Dropadabai
P.W.2-Dwarkabai lodged complaint with Police.
and thereafter
4. It is prosecution case that on 14.07.1998 at
12=00 noon Police Inspector Bhosale (P.W.1) who was
holding additional charge of Nananpeth Police Station,
received information from one Ashok Pralhad Shinde
(P.W.4) that his servant had seen a dead body of
female child in his field. Thereafter, P.I. Bhosale
recorded statement of P.W.4-Ashok Shinde and made
entry in the station diary. P.I. Bhosale went to the
spot and found the dead body of female child. He drew
inquest panchanama (Exh.22). It appears that the
child was raped and subsequently murdered. A
handkerchief was found tied around her neck. There
::: Downloaded on – 09/06/2013 14:03:33 :::
( 4 )
were injuries on the person and private part. So,
P.I. Bhosale lodged complaint against unknown person
for committing rape and murder of the unknown female
child. Accordingly, he registered offence punishable
under Section 302 and 376 of the I.P.C. He had also
drawn panchanama of place of incident. Thereafter,
Police Constable Indrajit Ghule and Police Constable
Punjaba Thite were approached by P.W.2-Dwarkabai and
others, complaining that Dropadabai, daughter of
Dwarkabai, was missing and therefore these two Police
Constables
Hospital.
took
Dwarkabai
Dwarkabai and relatives
identified the dead body.
to the
Her
statement was recorded. Both these constables were in
the police station when P.W.2-Dwarkabai and others had
approached them. Thereafter, present appellant was
arrested as Dwarkabai had disclosed that the appellant
had taken away deceased Dropadabai and since then
Dropadabai was missing. Finally, charge-sheet was
sent to the Court. The prosecution examined in all
nine witnesses. Three witnesses were examined as
Court witnesses. Ultimately the appellant was
convicted and sentenced, and it is this order which is
challenged before this Court.
5. Dr. Tukaram Gacche (P.W.3) examined at Exh.28
::: Downloaded on - 09/06/2013 14:03:33 :::
( 5 )
had performed post mortem on the dead body of
Dropadabai. He found blood coming out of mouth and
nostrils. There were following external injuries to
genitals :-
(1) Lacerated wound to libia minora 1/2 cm x 1/4th
cm.
(2) Hymen torn, clotted blood present adherent to
the margin.
(3) Vagina lacerated and congested.
(4) Whitish colour fluid was present in the
vagina.
(5)
Anus faecal matter coming out.
. There were other surface wounds, which were as
follows:-
(1) A continuous ligature mark around the neck
horizontal in position below the thyroid cartilage 10
cm x 5 cm. Parchment line appears.
(2) Fracture of hyoid bone present.
(3) Echymoses present.
(4) Carotid vessels congested.
(5) Abrasion on chin 1 cm x 1/2 cm.
(6) Abrasion on neck 1 cm x 1/4 cm below the left
ear.
(7) Abrasion on the neck 1 cm x 1/4th cm below the
right ear.
(8) Abrasion on right shoulder 4 cm x 1 cm
anterior aspect.
::: Downloaded on - 09/06/2013 14:03:33 :::
( 6 )
(9) Abrasion on right elbow joint, posterior
aspect 2 x 1/2 cms.
(10) Three abrasions on right forearm 1/2 cm x 1/2
cm.
(11) Abrasion on left shoulder, posterior aspect 3
cms x 2 cms.
(12) Abrasion on left lumber region 5 cms x 2 cms.
(13) Abrasion on the abdomen just below the
umbilicus, 3 cms x 2 cms.
(14) Abrasion on right buttocks with upper part of
the thigh posterior aspect 7 cms x 3 cms, irregular in
outline.
(15) Abrasion on left buttock lateral aspect 8 cms.
(16)
x 5 cms.
Abrasion on left thigh posterior aspect 10 cms
(17) Five abrasions on right leg, posterior aspect,
1/2 cms x 1/4th cms.
(18) Multiple abrasion on left leg posterior aspect
1/2 cms x 1/4 cms.
6. According to the Doctor injury No. 2 to 15
were caused with hard and blunt object. All were
antemortem injuries. In his opinion cause of death
was asphyxia due to strangulation associated with
rape. The Doctor stated that the muddemal article
handkerchief was the one with which strangulation
could have been effected. He proved P.M. report at
Exh.29. In the cross-examination, it is brought on
record that on the basis of appearance of the injuries
the Doctor calculated that death could have been
::: Downloaded on – 09/06/2013 14:03:33 :::
( 7 )
caused within 48 hours of his examination. As per
evidence of P.W.2-Dwarkabai, deceased Dropadabai was
missing from 12 noon on 13.07.1998 and the post mortem
was started on 14.07.1998 at 4.30 p.m. and completed
at 5.30 p.m.
7. P.W.4-Ashok Shinde stated that his servant
Chandu Lot told him that a female child of 7-8 years
age was lying dead in his field and therefore he went
to the Police Station and informed the police. Along
with
was lying.
police, he went to the spot where the dead
It was in land Survey No.254 of Parbhani.
body
His evidence is corroborated by evidence of P.W.1-P.I.
Bhosale, who stated that P.W.4-Ashok Shinde came to
him at about 12=10 p.m. on 14.07.1998 and orally
informed that his servant had seen a dead body of
female child in his field. Therefore, he recorded
statement of P.W.4-Ashok Shinde, made entry in the
station diary and proceeded to the spot. He saw the
dead body of female child. So he called panchas and
drew inquest panchanama which is proved at Exh.22.
Inquest panchanama clearly shows that there were
injuries on the dead body. The child was of 10 years
old. There was white handkerchief tied around her
neck. There were injuries on her private part. P.I.
::: Downloaded on – 09/06/2013 14:03:33 :::
( 8 )
Bhosale further stated that, thereafter he drew spot
panchanama (Exh.24) and attached the handkerchief. He
identified handkerchief, which is a muddemal article.
The dead body was lying in the field Survey No.254 of
Parbhani. P.I. Bhosale also proved complaint lodged
by him at Exh.23.
8. P.W.2-Dwarkabai is the star witness. She is
examined at Exh.25. She stated that Dropadabai was
her daughter. Dropadabai was of 8-10 years old. She
was knowing
paramour of
the appellant/accused.
one Gangubai. The appellant
The accused
had
was
taken
away her daughter on a bicycle at 12=00 noon on the
pretext of giving her food and thereafter the daughter
did not come back. They searched the daughter
everywhere. She stated that Police had taken her to
Hospital and showed dead body of her daughter. There
were injuries on the dead body. Her daughter was
throttled. P.W.2-Dwarkabai identified clothes of the
deceased. The cross-examination shows that
P.W.1-Dwarkabai and the appellant were working in
Shaniwar Bazar on daily wages. Dwarkabai was knowing
the appellant by his first name. She was knowing that
he resided near Khandoba Bazar in a room. Dwarkabai
further said that since her husband was not
::: Downloaded on – 09/06/2013 14:03:33 :::
( 9 )
maintaining her, she and her daughter were begging
alms. She further stated that twice she had gone to
Police Station for informing police about her daughter
being missing. It may be noted that she is a woman
who was a beggar, obviously an illiterate person.
Moreover, police might have asked her to search
daughter before recording her complaint. Witness
further stated that she was residing in a public
forest, called Babul Ban, adjacent to Railway Station,
where many buggers reside in open.
9. In
the cross-examination of P.W.2-Dwarkabai,
it is brought on record that P.W.2-Dwarkabai and one
Gangubai used to go for work with a mason. There was
quarrel between Dwarkabai and Gangubai. At that time
the appellant had taken side of Gangubai. Gangubai
was working as a labour contractor. Since the
quarrel, Gangubai had not given any work to Dwarkabai.
Gangubai had even beaten her with Chappal in the
square. It is admitted by Dwarkabai that she was on
cross terms with Gangubai. It was suggested that in
order to wreck vengeance against Gangubai, the accused
was falsely involved. In our opinion, it is very
difficult to believe that in such case Gangubai would
not be named as an accused by Dwarkabai. There is
::: Downloaded on – 09/06/2013 14:03:33 :::
( 10 )
nothing on record to show that there was enmity
between the appellant and P.W.2-Dwarkabai. Moreover,
in that case, Dwarkabai would not have allowed her
child to be taken away by the appellant.
10. Learned Trial Judge found evidence of
Dwarkabai reliable and we do not find any reason to
disbelieve Dwarkabai. Police Constables Indrajit
Ghule and Punjaba Thite examined at Exh.47 and 49 have
corroborated statement of P.W.2-Dwarkabai that her
daughter was
ig missing and she
complaining that her daughter was missing from earlier
had approached them
day. Thereafter, they took Dwarkabai to the Hospital,
where the dead body was identified by Dwarkabai.
11. Dwarkabai had admitted in cross-examination
that it was her mere suspicion that accused committed
the act. Obviously, she had seen the accused taking
away her daughter on the pretext of giving her food
and since then her daughter was missing. In the
circumstances she was bound to suspect the
appellant/accused.
12. If we consider the injuries on the person of
Dropadabai as proved by Dr.Gacche, it is clear that
::: Downloaded on - 09/06/2013 14:03:33 :::
( 11 )
the child was ravished and was subjected to severe
violence. Enmity is a double edged weapon. After
giving anxious consideration to the arguments advanced
by the learned advocate for the appellant and on
considering the evidence and totality of the
circumstances, we are of the opinion that the Trial
Court has rightly believed evidence of P.W.2-Dwarkabai
that it was the appellant who had taken away deceased
Dropadabai on 13.07.1998 at about 12=00 noon on the
pretext of giving her good and since then Dropadabai
was missing.
of
ig Evidence of Dr. Gachhe shows that death
Dropadabai was immediately after the appellant was
last seen in the company of the deceased. There is no
explanation coming from the accused. There is only
denial.
13. Certain cases are cited before us. In the
case of Amit @ Ammu V/s. State of Maharashtra, JT
2003 (Supp.1) SC 423, there was circumstantial
evidence against the accused. Deceased was last seen
in the company of the accused by the witness. Dead
body was discovered by the same witness on following
day. Time of death found near about the time when
deceased and accused were last seen. There was no
explanation by the accused. It was held that
::: Downloaded on – 09/06/2013 14:03:33 :::
( 12 )
circumstantial evidence established guilt of the
accused.
14. In the case of State of U.P. V/s. Satish,
(2005) 3 S.C.C.114, in para 22 it is observed that the
last seen theory comes into play where the time-gap
between the point of time when the accused and the
deceased were last seen alive and when the deceased is
found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible.
15. In the case of State of Goa V/s. Sanjay
Thakran and another, (2007) 3 S.C.C.755, the Supreme
Court after referring various cases, in para 13 and 34
observed as follows:-
“13. The prosecution case is based on the
circumstantial evidence and it is a
well-settled proposition of law that when thecase rests upon circumstantial evidence, such
evidence must satisfy the following tests:
(1) the circumstances from which an
inference of guilt is sought to be drawn, must
be cogently and firmly established;
(2) those circumstances should be of a
definite tendency unerringly pointing towards
guilt of the accused;
(3) the circumstances, taken cumulatively,
should form a chain so complete that there is
::: Downloaded on – 09/06/2013 14:03:33 :::
( 13 )
no escape from the conclusion that within all
human probability the crime was committed by
the accused and none else; and
(4) the circumstantial evidence in order
to sustain conviction must be complete and
incapable of explanation of any other
hypothesis than that of the guilt of the
accused and such evidence should not only be
consistent with the guilt of the accused but
should be inconsistent with his innocence.
(See State of U.P. v. Satish, Padala Veera
Reddy v. State of A.P., Sharad Birdhichand
Sarda v. State of Maharashtra, Gambhir v.
State of Maharashtra, SCC p.355, para 9 and
Hanumant Govind Nargundkar v. State of M.P.).
…………
…………
34.
igFrom the principle laid down by this
Court, the circumstance of last seen together
would normally be taken into consideration for
finding the accused guilty of the offence
charged with when it is established by the
prosecution that the time gap between the
point of time when the accused and the
deceased were found together alive and when
the deceased was found dead is so small that
possibility of any other person being with the
deceased could completely be ruled out. The
time gap between the accused persons seen in
the company of the deceased and the detection
of the crime would be a material consideration
for appreciation of the evidence and placing
reliance on it as a circumstance against the
accused. But, in all cases, it cannot be said
that the evidence of last seen together is to
be rejected merely because the time gap
between the accused persons and the deceased
last seen together and the crime coming to
light is after a considerable long duration.
There can be no fixed or straitjacket formula
for the duration of time gap in this regard
and it would depend upon the evidence led by
the prosecution to remove the possibility of
any other person meeting the deceased in the
intervening period, that is to say, if the
prosecution is able to lead such an evidence
::: Downloaded on – 09/06/2013 14:03:33 :::
( 14 )
that likelihood of any person other than the
accused, being the author of the crime,
becomes impossible, then the evidence of
circumstance of last seen together, although
there is long duration of time, can be
considered as one of the circumstances in the
chain of circumstances to prove the guilt
against such accused persons. Hence, if the
prosecution proves that in the light of the
facts and circumstances of the case, there was
no possibility of any other person meeting or
approaching the deceased at the place of
incident or before the commission of the
crime, in the intervening period, the proof of
last seen together would be relevant evidence.
For instance, if it can be demonstrated by
showing that the accused persons were in
exclusive possession of the place where the
incident occurred or where they were last seen
together with the deceased, and there was no
possibility of any intrusion to that place by
any third party, then a relatively wider time
gap would not affect the prosecution case.”
16. For all above-said reasons, we agree with the
conclusion of the Trial Court that circumstances
proved as against the appellant are sufficient to base
conviction for offences punishable under Sections 363,
376 and 302 of the I.P.C.
17. Now coming back to the question of sentence,
the learned Judge has convicted the appellant of
offence punishable under Section 302 of the I.P.C.
and sentenced to suffer simple imprisonment for life.
Indian Penal Code does not recognize any punishment
called “simple imprisonment for life”. It is clear
that there is no term like “simple imprisonment for
::: Downloaded on – 09/06/2013 14:03:33 :::
( 15 )
life” or “rigorous imprisonment for life”. Section 53
is as follows:-
“53. Punishments.-The punishments to which
offenders are liable under the provisions of
this Code are-
First.-Death;
Secondly.-Imprisonment for life;
Fourthly.-Imprisonment, which is of two
descriptions, namely:- (1) Rigorous, that is,
with hard labour;
(2) Simple;
Fifthly.-Forfeiture of property;
Sixthly.-Fine.
. Section 302 of the I.P.C. is as follows:-
“302. Punishment for murder,- Whoever commits
murder shall be punished with death, or
imprisonment for life, and shall also be
liable to fine.”
. So, there is nothing like “simple imprisonment
for life” and we hold that it is mere error on the
part of the Judge, which we can rectify and correct
under Section 386 of the Cr.P.C., as thereby we would
not be enhancing punishment, but only altering
nomenclature of the sentence maintaining the sentence.
18. Position of law was made clear long back in
the case of Naib Singh s/o. Makhan Singh V/s. State
::: Downloaded on - 09/06/2013 14:03:33 :::
( 16 )
of Punjab and others, (1983) 2 S.C.C.454. In that
case the Supreme Court has made it clear that
"imprisonment for life" means "rigorous imprisonment
for life". The Supreme Court dealt with the
provisions of Prison Act, jail manual, provisions of
the I.P.C., amendment to the I.P.C. carried out by
Amending Act 26 of 1955. At the end of Para 14, it is
observed that:-
“In our view the legislative intent has been
clearly spelt out and expressed that thenature of punishment required to be suffered
under a sentence of “imprisonment for life”
awardable on and after January, 1956 is
rigorous imprisonment.”
. At the beginning of para 16 it is pointed out
that even thereafter there is no dearth of judicial
precedents where, in the matter of nature of
punishment, imprisonment for life has been regarded as
equivalent to rigorous imprisonment for life. The
Supreme Court also considered case of State of M.P.
v. Ahmodulla, K.M. Nanavati v. State of
Maharashtra. We may quote para 17, which is as
follows:-
“17. During the hearing our attention was
invited to a decision of the Kerala High Court
in Mathammal Saraswathi v. State of Kerala,
where that High Court has taken the view that::: Downloaded on – 09/06/2013 14:03:33 :::
( 17 )while passing the sentence of imprisonment for
life a criminal court should keep in view the
provisions of Section 60 of the I.P.C. and
choose one or the other form so as to clarifyexact nature of punishment intended to be
inflicted on the accused, and went on to
clarify the position by stating that theimprisonment for life in that case shall be
simple imprisonment and not rigorous. It is
not possible to sustain the aforesaid view of
the Kerala High Court. In the first place, a
distinction between “imprisonment for life”
and imprisonment for a term” has been
maintained in the Penal Code in several of its
provisions. Secondly, by its very terms
Section 60 is applicable to a case where “an
offender is punishable with imprisonment which
may be either description” and it is only insuch case that it is competent for the Court
to direct that “such imprisonment shall beeither wholly rigorous or wholly simple or
that any part of such imprisonment shall be
rigorous and the rest simple”. And it is
clear that whenever an offender is punishablewith “imprisonment for life” he is not
punishable with “imprisonment which may be of
either description”, in other words Section 60
would be inapplicable.”
. So, position of law regarding punishment
involving any sentence of imprisonment for life is
well settled and we accordingly propose to clarify for
the benefit of jail authorities.
19. We wonder, whether there should have been
charge under Section 363 of the I.P.C. particularly
when kidnapping is with rape and murder. At the time
of charge there could have been consideration whether
framing of charge under Section 364 and 363-A of the
::: Downloaded on – 09/06/2013 14:03:33 :::
( 18 )
I.P.C. was more advisable than under Section 363 of
the I.P.C. Be that as it may.
20. We are unable to understand why simple
imprisonment of seven years was awarded for each of
the offences punishable under Sections 363 and 376 of
the I.P.C. In this case it was a rape on a minor girl
of 10 years who was kidnapped, raped and murdered.
There was no justification for awarding simple
imprisonments for offence punishable under Sections
363
is
and 376 of the I.P.C. Offence under Section
punishable with imprisonment of either description
363
which may extend to seven years. If a person is
sentenced to seven years, it is difficult to know what
purpose would be served by awarding simple
imprisonment. That would not do any good to the
convict or to the society. There was no point in
keeping him idle for such a long period. The
appellant is a young healthy man of 35 years age and
his services could have been utilised for beneficial
purpose, such as by giving him training of some craft
or trade, so that he could become a skilled worker.
Even assuming that the appellant was a labourer and
could not have learnt any craft or trade, his time and
energy could have been better utilised in some work.
::: Downloaded on – 09/06/2013 14:03:33 :::
( 19 )
That would keep him physically and mentally fit. The
distinction between simple imprisonment and rigorous
imprisonment and their effect do not appear to have
been properly understood. Both have significance not
only from the point of society, but also from the
point of convict. In our opinion, simple
imprisonments awarded for offence under Sections 363
and 376 of the I.P.C. are totally unjustified.
21. Not only the award of simple imprisonment was
I.P.C.
unjustified but so far as offence under Section 376 of
the is concerned, it is illegal. Section 376
(1), (2) (f) of the I.P.C. and proviso below it are
as follows:-
“376. Punishment for rape – (1) Whoever,
except in the cases provided for bysub-section (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 extent 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 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
judgment, impose a sentence of imprisonment
for a term of less than seven years.
(2) Whoever, –
::: Downloaded on – 09/06/2013 14:03:33 :::
( 20 )
..............
..............
(f) commits rape on a woman when she is under
twelve years of age; or…………..
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.”
22. The
appellant has committed offence which
punishable under Section 376(2)(f) of the I.P.C.in the
is
present case and the learned Judge should not have
awarded punishment lesser than rigorous imprisonment
for ten years without recording adequate and special
reasons. In this case after coming to the conclusion
that guilt of the accused is proved beyond reasonable
doubt, the learned Additional Sessions Judge proceeded
to hear the accused on sentence and made following
observations in para 54 and 55 of his judgment:-
“54. Heard the accused on the point of
sentence. He still claims that he has notdone anything. Heard Shri S.N. Shinde,
learned counsel for the accused. He argued
that lenient view be taken against the
accused.
55. Accused has committed tripple offence
::: Downloaded on - 09/06/2013 14:03:33 :::
( 21 )
i.e. kidnapping, rape and murder. In this
view of the matter, the following order is
passed.”
. Thus, no adequate and special reasons are
given for awarding simple imprisonment that too for a
period less than 10 years for offence punishable under
Section 376 of the I.P.C. So, the order passed is
illegal. Here we may refer to the case of Md. Kalam
v. State of Bihar, 2008 AIR SCW 4269. It is observed
is para 3 that since the age of the victim was six
years at the time of incident, the appropriate
conviction
would have been under Section 376 (2) (f),
IPC if conviction would have been for rape.
23. In this case, the learned Judge did not
consider totality of the circumstances before deciding
to award seven years simple imprisonment. Though main
punishment is for offence under Section 302 of the
I.P.C. for imprisonment for life, still, the
ignorance and carelessness shown by the learned
Additional Sessions Judge, compel this Court to
observe that Section 235 (2) or 248 (2) of the
Cr.P.C., which require Sessions Judge or Magistrate to
hear accused on quantum of sentence and then to pass
sentence according to law, are not empty formalities.
Circumstances which lead the Judge to award particular
::: Downloaded on – 09/06/2013 14:03:33 :::
( 22 )
description of imprisonment, namely, rigorous i.e.
with hard labour or simple, should be guided by proper
reasons. There should be circumspection of all
relevant factors. The Judge may take into
consideration different theories of punishment, their
aims and criticism against each, consider relevant
facts of the case before it, such as, age, education,
other background of the accused, the effect of offence
on the victim, his/her family and society and then
determine the sentence, keeping in mind provisions of
law. The
theories of the punishment
respective merits and demerits should be borne in mind
with their
and the appropriate punishment be decided. There
should be integrated approach. Particularly heinous
crimes like rape on child or kidnapping of child for
ransom or other objects have to be viewed from their
effect on the society, law and order and public order.
There is also element of social desire for retribution
arising out of indignation for such inhuman crime.
24. The Supreme Court recently in the case of
Bantu V/s. State of U.P., 2008 AIR SCW 6401, has
observed in paras 22, 28 and 30, as follows:-
“22. The law regulates social interests,
arbitrates conflicting claims and demands.
::: Downloaded on – 09/06/2013 14:03:33 :::
( 23 )
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 cornerstone 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
on
sentencing system, law
factual matrix. By
should adopt the
corrective machinery or the deterrence based
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 consideration. For instance a murder
committed due to deep-seated mutual and
personal rivalry may not call for penalty of
death. But an organised crime or mass murders
of innocent people would call for imposition
of death sentence as deterrence. In Mahesh v.
M.P. (1987) 2 SCR 710), this Court while
refusing to reduce the death sentence observed
thus:
‘It will be a mockery of justice to permit the
accused to escape the extreme penalty of law
when faced with such evidence and such cruel
acts. To give the lesser punishment for the
accused would be to render the justicing
system of the country suspect. The common man
will lose faith in Courts. In such cases, he
understands and appreciates the language of
::: Downloaded on – 09/06/2013 14:03:33 :::
( 24 )
deterrence more than the reformative jargon.'”
28. 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, dacoity, kidnapping, misappropriation
of public money, treason and other offences
involving moral turpitude or moral delinquency
which have great impact on social order, and
public interest, cannot 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 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
string of deterrence inbuilt in the sentencing
30.
system.”
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 society’s cry for
justice against the criminal”. If for
extremely heinous crime of murder perpetrated
in a very brutal manner without any
provocation, must deterrent punishment is not
given, the case of deterrent punishment will
lose its relevance.”
. We have quoted only few paragraphs as they are
::: Downloaded on – 09/06/2013 14:03:33 :::
( 25 )
closely applicable to the facts of case in hand though
entire judgment deserves to be read. In that case
also the victim aged five years was raped and
murdered. The murder was committed in a diabolical
manner.
25. In view of above, we express our displeasure
for the manner in which the simple imprisonments were
awarded for offence punishable under Sections 363 and
376 of the I.P.C. We are also dissatisfied for not
following
directions of law as contained in
376 (2) of the I.P.C., which are reproduced earlier.
Section
26. At the same time we record our caution to all
Sessions Judges, Additional Sessions Judges and
Assistant Judges to be careful while considering the
quantum of sentence in heinous crimes, such as one in
the present case. We also draw their attention to the
observations of the Supreme Court in the case of Bantu
(Supra).
27. In the result, the appeal is dismissed. The
order of conviction and sentence is maintained with
clarification that since there is no punishment like
‘simple imprisonment for life’ contemplated by the
::: Downloaded on – 09/06/2013 14:03:33 :::
( 26 )
Indian Penal Code and it is mere error committed by
the Trial Court to describe “imprisonment for life” as
“simple imprisonment for life”, the punishment awarded
to the appellant be considered as imprisonment for
life as it is understood in law.
28. Adv. Shri Suresh Munde has appeared as amicus
curae for the appellant. We quantify his fees at Rs.
3000/- (Rupees Three Thousand).
[P.R. BORKAR,J.]
ig [P.V. HARDAS,J.]
snk/2008/NOV08/crap17.07
::: Downloaded on - 09/06/2013 14:03:33 :::