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
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 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
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
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
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.