Phul Singh Vs. State of Haryana [1979]
INSC 175 (10 September 1979)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
SHINGAL, P.N.
CITATION: 1980 AIR 249 1980 SCR (1) 589 1979
SCC (4) 413
ACT:
Criminal Procedure Code-Sentence-When can be
reduced.
HEADNOTE:
The appellant who was 22 committed rape on
the wife of his cousin who was a next door neighbour in broad-day-light.
The Sessions Judge found the appellant guilty
of the offence of rape and sentenced him to four years R.I. On appeal, the High
Court affirmed it. It was urged that the appellant was in his early twenties
and that there were signs of repentance. The fact remains that the two families
being close cousins are ready to take a lenient view of the situation which of
course does not bind the court in any manner. Partly accepting the appeal, the
Court
HELD: The appellant is not a 'habitual' and
has no vicious antecedents except this fugitive, randy molestation which is bad
enough in a society where women are often socially weak and sexually
victimized. It may be marginally extenuatory to mention that modern Indian
conditions are drifting into societal permissiveness on the carnal front
promoting proneness to pornos in life, what with libidinous 'brahmacharis',
womanizing public men, lascivious dating and mating by unwed students, sex
explosion in celluloid and book stalls and corrupt morals teaching a new 'high'
in high places. [591 F-H] The appellant is a youth barely 22 with no criminal
antecedents save this offence. He has a young wife and a farm to look after.
Given correctional courses through meditational therapy and other measures, his
erotic aberration may wither away. A man like the appellant has a reasonable
prospect of shaping into a balanced person, given propitious social environs,
curative and congenial work and techniques of internal stress release or of
reformatory self expression. In this background the court regarded a four year
term of rigorous imprisonment more hardening than habilitative, even though the
court deplored the sex violence the young appellant had inflicted on his
cousin's wife snatching a tricky opportunity. [592 B-D] A hyper sexed homo
sapiens cannot be habilitated by humiliating or harsh treatment. In prison
treatment must, therefore, be geared to psychic healing, release of stresses,
restoration of self-respect and cultural normalisation, apart from training to
adapt oneself to the life outside. The functional failure of our pachydermic
prison projects, exacerbated by its tension and trauma on the one hand and the
reverse ethos inside on the other, deserves judicial cognisance. [591 A, D-E]
The current efforts of Governments, Central and State, to reform jail regimen,
it was hoped, will give a better deal to the caged community. For these
reasons, in this case, it is desirable to superadd to the sentence of
imprisonment a few directives to ensure that the carceral period reforms the
convict. A set of positive prescriptions will ensure appellant turning a new
leaf. One major method in securing this goal is to keep alive the family ties
of the person in 590 prison so that the appellant may not deteriorate into a
non- person. Within the limits of the Prison Act and Rules thereunder, the
State Government or the Inspector General of Prisons will ensure that on
parole, furlough or orders, the young appellant turns a new leaf of normal
life. [591 E-F, 592 F]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 506 of 1979.
Appeal by special leave from the Judgment and
Order dated 3-5-79 of the Punjab & Haryana High Court in Crl. A. No.
166/76.
Harbans Singh Marwah for the Appellant.
R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J. A philanderer of 22, appellant Phul Singh, overpowered by sex
stress in excess, hoisted himself into his cousin's house next door, and in
broad day-light, overpowered the temptingly lonely prosecutrix of twenty four,
Pushpa, raped her in hurried heat and made an urgent exist having fulfilled his
erotic sortie. The screaming victim complained to her mother working in the
field;
thereafter a first information, prosecution
and conviction ensued, a sentence of 4 years R.I. was imposed by the Sessions
Court, and the High Court affirmed it in appeal.
The broad facts bearing on the instant act of
carnal assault look too probable for pettifogging legalistics about poor
corroboration, consent and false implication to devalue their credibility. The
culpability is beyond doubt and we uphold the conviction.
Ordinarily, rape is violation, with violence,
of the private person of a woman-an outrage by all canons. In our conditions of
escalating sex brutality a four-year term for rape is not excessive. But here,
the offender is in his early twenties and signs of repentance are seen. The
victim and her parents have forgiven the molester who is a first cousin, says
counsel. An affidavit from the father-in law of the woman has been filed and,
if needed, counsel is ready to produce the victim's statement that she has
forgiven the criminal. While it is possible that the accused may procure such
condonation from unwilling victim, the fact remains that the two families being
close cousins are ready to take a lenient view of the situation. Of course,
this does not bind the Court in any manner. Therefore, taking an overall view
of the familial and the criminal factors involved, we reduce the imprisonment
from 4 years to 2 years R.I.
We must, however, direct our attention in a
different penological direction. For sentencing efficacy in cases of
lust-loaded criminality cannot be simplistically assumed by award of long
incarceration, for, 591 otten that remedy aggravates the malady. Punitive
therapeutics must be more enlightened than the blind strategy of prison
severity where all that happens is sex starvation, brutalisation, criminal companionship,
versatile vices through bio-environmental pollution, dehumanised cell drill
under 'zoological' conditions and emergence, at the time of release, of an
embittered enemy of society and its values with an indelible stigma as convict
stamped on him-a potentially good person 'successfully' processed into a
hardened delinquent, thanks to the penal illiteracy of the Prison System. The
Court must restore the man.
A hyper-sexed homo sapiens cannot be
habilitated by humiliating or harsh treatment, but that is precisely the
perversion of unreformed Jail Justice which some criminologists have described
as the crime of punishment.
This Court has held, in Sunil Batra's case
and later that, constitutionally viewed, punitive deprivation of personal
freedom must be goal-oriented and humanely restorative, apart from being
deterrent. The insulated years behind the insensitive bars must possess a
hospital setting if correction is a social purpose, as Gandhiji often insisted.
In-prison treatment must, therefore, be
geared to psychic healing, release of stresses, restoration of self-respect and
cultural normalisation, apart from training to adapt oneself to the life
outside. The functional failure of our pachydermic prison projects, exacerbated
by its tension and trauma on the one hand and the reverse ethos inside on the
other, deserves judicial cognizance. The current efforts of Governments,
Central and State, to reform jail regimen, we hope, will give a better deal to
the caged community. For these reasons, in this case, we deem it desirable to
superadd to the sentence of imprisonment a few directives to ensure that the
carceral period reforms the convict.
The appellant is not a 'habitual' and has no
vicious antecedents except this fugitive, randy molestation which is bad enough
in a society where women are often socially weak and sexually victimised. It
may be marginally extenuatory to mention that modern Indian conditions are
drifting into societal permissiveness on the carnal front promoting proneness
to pornos in life, what wit libidinous 'brahmacharis', womanising public men,
lascivious dating and mating by unwed students, sex explosion in celluloid and
book stalls and corrupt morals reaching a new 'high' in high places. The
unconvicted deviants in society are demoralisingly large and the State has, as
yet, no convincing national policy on female flesh and sex sanity.
We hope, at this belated hour, the Central
Government will defend Indian Womanhood by stamping out voluptuous meat markets
by merciless criminal action.
592 Isolated prosecutions and annual
suppression rhetoric will stultify the law where the vice is widespread and the
larger felons are often let loose.
This reflection apart, we must, as part of
the sentencing package, design a curative course for this prisoner to rid him
of his aphrodisiac overflow and restore him into safe citizenship.
He is a youth barely 22 with no criminal
antecedents save this offence. He has a young wife and a farm to look after.
Given correctional courses through meditational therapy and other measures, his
erotic aberration may wither away. A man like the appellant has a reasonable
prospect of shaping into a balanced person, given propitious social environs,
curative and congenial work and techniques of internal stress release or of
reformatory self expression.
In this background, we regard a four year
term of rigorous imprisonment more hardening than habilitative, even though we
deplore the sex violence the young appellant has inflicted on his cousin's wife
snatching a tricky opportunity. Even so, the incriminating company of lifers
and others for long may be counter-productive, and in this perspective, we
blend deterrence with correction and reduce the sentence to rigorous
imprisonment for two years. We wish to emphasise that the special circumstances
of this case constrain us to relent a little on principle because the
restorative approach to sentencing has been jettisoned by the courts below.
The task is not done by a negative reduction
in the prison term. What is more important is a set of positive prescriptions
which will ensure his turning a new leaf. One major method in securing this
goal is to keep alive the family tie of the person in prison so that he may not
deteriorate into a non-person. Within limits of the Prison Act and Rules there under,
the State Government or the Inspector General of Prisons will ensure that on
parole, furlough or orders, the young appellant turns a new leaf of normal
life.
N.K.A. Appeal allowed in part.
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