T.K. Gopal
@ Gopi C Vs. State of Karnataka [2000] INSC 292 (5 May 2000)
S.S.Ahmad,
Doraswami
S.
SAGHIR AHMAD, J. Leave granted. The appellant was found guilty of the offence
under Section 376 IPC and was sentenced to 10 years' rigorous imprisonment and
to pay a fine of Rupees one thousand, in default of which he was to undergo RI
for another three months, by the Addl. Sessions Judge, Tumkur, by her judgment
dated September 30, 1994.
This
has been upheld by the High Court by the impugned judgment dated January 24, 1997. The appellant is in jail and it is
from the jail that he has filed the present appeal. Mr. Seeraj Bagga has
appeared as counsel for the appellant and it was in his presence that the order
dated 10th September,
1999 was passed by
this Court, which reads as under : "Delay condoned. The victim of rape in
this case is a child of one and half year. The petitioner has been convicted
under Section 376 IPC and sentenced to ten years' rigorous imprisonment.
Section 376 IPC provides that on the offence of rape being established, the
Court shall sentence the accused with rigorous imprisonment for a term not less
than ten years, but "which may be for life" and shall also be liable
to fine. The proviso to sub-section (2), however, allows the Court to impose a
sentence of imprisonment of either description for a term which may be less
than ten years. Having regard to the facts of this case, especially the age of
the victim, we issue notice to the petitioner to show cause why the sentence of
ten years' rigorous imprisonment should not be enhanced to life imprisonment.
The notice shall be returnable within six weeks." Mr. Seeraj Bagga has
argued the case with full vehemence at his command and has also filed written
submissions in which he has set out the extenuating circumstances on the basis
of which he has prayed that the sentence may not be enhanced to life
imprisonment. The victim in the instant case is an infant child, Yashoda of the
tender age of one and half year. Her mother, Uma (PW1) lived with her husband
in a rented house at Konehalli village with her children, a son aged about four
years and the infant daughter, Yashoda. The appellant, at that time, was a Mistry
working in that village. Uma was working as a maid-servant in the house of Gowramma
(CW2). She also worked as a mason- labour under the appellant. Her husband
worked as a Waterman in the Water Supply Department. The case of the
prosecution is that the appellant, as a Mistry, used to provide ration to Uma
(PW1) who used to cook food for the appellant and his colleagues, including CW7
Raja, CW8 Gandhi as also another person, Murthy. The appellant and his
associates used to go to the house of Uma for lunch between 1.30 PM to 3.00 PM. On 22nd June, 1991, at about 3 P.M.,
appellant came to the house of Uma, but did not express any desire to have his
meal. The appellant, on the contrary, indicated to her that he would take rest
for a while. Her children were sleeping in the house and Uma, while allowing
the appellant to take rest, went to the neighbour`s house to grind rice for
preparing `Idlis' for the next day. She returned to her house at about 4.45 PM and was shocked to see the appellant lying over her
daughter, Yashoda, who was lying below his private parts.
She
rushed towards the appellant and pushed him aside. She found her daughter
bleeding from the private parts and also noticed bleeding near her lips. She
cried for help whereupon the appellant ran away. The child was taken to Arasikere
hospital where the doctors intimated the police and on the police reaching the
hospital, the complainant narrated the whole incident whereupon a case was
registered against the appellant under Section 376 IPC. The case was
investigated and a charge sheet was subsequently submitted against the
appellant, who was tried for the offence under Section 376 IPC and ultimately
convicted and sentenced to ten years' RI. The appeal filed by him was dismissed
by the High Court. The trial court as also the High Court have recorded
concurrent findings of fact that the appellant committed rape on a child of one
and half year. These findings are based on the evidence brought on record. The
medical report as also the statement of the complainant clearly establish the
commission of the offence by the appellant. Having regard to the facts of this
case, the question that arises now is whether the Addl. District Judge was
justified in awarding a sentence of 10 years' RI to the appellant or he should
have been awarded the life imprisonment, which is the maximum sentence
prescribed under the IPC. Section 376 (2) IPC provides, inter alia, as under :
"376. Punishment for rape -- (2) Whoever, -- .. .. ..
.. (f)
commits rape on a woman when she is under twelve years of age; 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." A perusal of the above provision would indicate that
where the victim is a woman of less than 12 years of age, the minimum sentence
that can be awarded to the accused is ten years, but it may also extend to life
imprisonment apart from a fine which may also be imposed upon him. The proviso
to this Section, however, gives a discretion to the court to award a sentence
of less than 10 years for adequate and special reasons which have to be
mentioned in the judgment.
Since
the victim in the instant case was an infant child of one and half year, the
trial court as also the High Court both were right in awarding a sentence of 10
years to the appellant. That was wholly in consonance with the provisions of
Section 376(2) IPC. The question, however, is that if the law gave the court
the discretion to award even life imprisonment for the offence of rape under
Section 376(2) IPC, why was that discretion not exercised by the trial court or
the High Court in the instant case where the victim of rape was an infant
child. The trial court, while awarding ten years' RI to the appellant has
observed as under : "2. In view of the submissions made before me, though
I have to agree with the submission of the learned counsel for the accused that
there is reformation in the mind of the accused as he is in custody as undertrial
prisoner for more than an year and there are dependents depending upon him, as
the offence committed by him is of such a grievous nature that leniency with
regard to the awarding of punishment cannot be exercised and also as the victim
of the offence was hardly 1 and half years old at the time of commission of
offence without having the capacity of self defence and the victim for no fault
of her has been made to suffer a black mark of the incident throughout her life
who know even at the cost of her future comfortable living. In a decision
reported in 1987 Crl.L.J. 374 (Gujarat) in the
very opening of the Judgment, Their Lordships have observed that "Human
weakness or wickedness;
either
of the two or both of them together may be the cause of sexual offences. If the
offence is on account of wickedness, the accused naturally deserves no
sympathy." In this case, the fact of the accused could only be attributed
to wickedness. As such, the accused deserves no sympathy at the hands of this
Court. Such acts should be put down with a strong hand and a deterrent
punishment should generally be awarded. In a decision reported in 1994 Crl.L.J.
1752 (Bombay) in a similar case, where the victim was hardly aged 7 years,
Their Lordships while awarding sentence have observed as hereunder : `....Our
attention was invited to the provisions contained in Section 376(2) of the
Indian Penal Code, which made the child rape punishable under clause (f)
thereof, was made punishable with rigorous imprisonment for a term which shall
not be less than 10 years, but which may be for life and shall also be the
liability to fine. Thus, when the legislature itself has indicated the minimum
limit of the leniency that could be shown in such cases, it would not be
justifiable to show more leniency than what is deserved in a case of the
present type, on the ground that the revision-petitioner was a young man.' 3.
In the circumstances, in view of the above decision and taking into consideration
the nature and gravity of offence committed by the accused and the tender age
of the victim, I am not inclined to show any leniency in awarding punishment to
the accused." The High Court, while upholding the findings of fact
recorded by the trial court did not advert itself to the question of
enhancement of sentence as, perhaps in its opinion, the sentence of ten years'
RI was sufficient for the offence committed by the appellant. Mr. Seeraj Bagga,
Advocate, appearing as amicus curiae, in this case has in his written statement
pointed out the following extenuating circumstances on the basis of which it is
prayed that the sentence may not be enhanced :
"Reformation
of the petitioner 5. That the petitioner is in judicial custody from the date
of his arrest after 22.6.1991 and has been undergoing the sentence since then. That
there has been a reformation in the mind of the accused since he is in custody.
In this regard, the observation of the Trial Court is reproduced below :
"Page 38, Para 2. In view of the submissions made
before me, though I have to agree with the submission of the learned counsel
for the accused that there is reformation in the mind of the accused as he is
in custody as undertrial prisoner for more than a year." It is
respectfully submitted that this observation was recorded by the Trial Court on
30.9.1994, i.e. after about 3 years from the date of incident and it is very
likely that after such a long period in the judicial custody, after having
pondered over the whole matter, self realisation and introspection, the
reformation of the petitioner cannot be denied as it is well known that now a
days religious discourses, meditation and other reformatory programmes are
undertaken for the benefit of the prisoners confined in jails. Thus, in this
view of the matter, it is respectfully submitted that the Hon'ble Court may take a sympathetic and lenient
view of the matter and discharge the Notice of enhancement of sentence.
Mitigating
circumstances 6. That it is respectfully submitted that in view of the
following mitigating circumstances, the Hon'ble Court may take a lenient view
of the matter as the petitioner is the sole bread earner of his family, which
includes besides his wife, his two daughters aged about 16 and 10 years
respectively. There is no other source of help to the petitioner's family and
the wife of the petitioner is with a great difficulty running the family by
doing labour work. That this Hon'ble Court in the case reported as (1983) 3 SCC
217 entitled Bharwada Bhognibhai Hirjibhai vs. State of Gujarat reduced the sentence awarded in
view of the special circumstances which existed in favour of the appellant
therein. It may be stated that in that case, the conviction under Section 376
read with Sections 511, 354 and 342 IPC was upheld by the Hon'ble Court but the
sentence was reduced in view of the special circumstances which were as under
:- (a) The appellant lost his job in view of the conviction recorded. (b) The
incident occurred some 7 years back from the date of the decision of the Appeal
by this Hon'ble Court. (c) A long time had elapsed after
the dimissal of the appeal by the High Court. (d) Appellant was to be sent back
to the jail after six and half years. (e) The appellant must have suffered
great humiliation in the society. (f) The prospects of getting a suitable match
for appellant's own daughter had perhaps been marred in view of the stigma in
the wake of the finding of guilt recorded in the context of the offence. The Hon'ble Court taking a cumulative effect of all
these special circumstances, reduced the sentence for an offence under
Section-376 read with Section 511 IPC from two and a half years RI to 15 months
RI. That on behalf of the petitioner, it is respectfully submitted that even
though the offence and the conviction recorded in the above mentioned case is
different from that in the present case but the similar special mitigating
circumstances also arise in the present case which should be taken into
consideration by the Hon'ble Court at least for the purpose of discharging the
Notice of enhancement of sentence which the Hon'ble Court has issued to the
petitioner as in the present case, it is quite evident that :- (a) That as a
result of the arrest and conviction of the petitioner, who was the sole bread
earner and was maintaining the family, his two daughters and wife are suffering
and are without any help. (b) That the incident occurred around 9 years back
and the record of the case reveals that the petitioner is in custody since the
date of incident. (c) That the petitioner and his family has suffered great
humiliation in the society. (d) That the petitioner has two daughters aged
about 16 and 10 years and the prospects of getting a suitable match for them
have been marred to a great extent in the wake of this conviction and sentence
and the fact that the petitioner is in custody for the last about 9 years. (e)
That the sentence of 10 years RI awarded to the petitioner would be over within
a year or so and if the Hon'ble
Court at this stage
enhances the sentence to life imprisonment then the family of the petitioner
and particularly his two daughters and their future would be ruined for no
fault of theirs. That in view of the above special mitigating circumstances
which exists in favour of the petitioner and his family, it is respectfully
prayed that the Hon'ble
Court may take a
sympathetic view of the matter and discharge/withdraw the notice of enhancement
of sentence issued to the petitioner." Mr. Seeraj Bagga has also pointed
out that the State has not filed any appeal for the enhancement of the
sentence.
Crime
can be defined as an act that subjects the doer to legal punishment. It may
also be defined as the commission of an act specifically forbidden by law; it
may be an offence against morality or social order. In State of Punjab vs. Gurmit Singh & Ors. (1996)
2 SCC 384, Anand, J.
(as
His Lordship then was), observed in Para
21 of the report as under : "Of late, crime against women in general and
rape in particular is on the increase. It is an irony that while we are
celebrating woman's rights in all spheres, we show little or not concern for
her honour. It is a sad reflection on the attitude of indifference of the
society towards the violation of human dignity of the victims of sex crimes. We
must remember that a rapist not only violates the victim's privacy and personal
integrity, but inevitably causes serious psychological as well as physical harm
in the process. Rape is not merely a physical assault -- it is often
destructive of the whole personality of the victim. A murderer destroys the
physical body of his victim, a rapist degrades the very soul of the helpless
female. The courts, therefore, shoulder a great responsibility while trying an
accused on charges of rape. They must deal with such cases with utmost sensitivity."
In Bodhisattwa Gautam vs. Subhra Chakraborty (Ms.) (1996) 1 SCC 490, one of us
(S.Saghir Ahmad, J.), while delivering the Judgment, observed as under :
"9. Unfortunately, a woman, in our country, belongs to a class or group of
society who are in a disadvantaged position on account of several social
barriers and impediments and have, therefore, been the victim of tyranny at the
hands of men with whom they, fortunately, under the Constitution enjoy equal
rights. Women also have the right to life and liberty; they also have the right
to be respected and treated as equal citizens. Their honour and dignity cannot
be touched or violated. They also have the right to lead an honourable and
peaceful life. Women, in them, have many personalities combined. They are
mother, daughter, sister and wife and not playthings for centre spreads in
various magazines, periodicals or newspapers nor can they be exploited for
obscene purposes. They must have the liberty, the freedom and, of course,
independence to live the roles assigned to them by Nature so that the society
may flourish as they alone have the talents and capacity to shape destiny and
character of men anywhere and in every part of the world. 10. Rape is thus not
only a crime against the person of a women (victim), it is a crime against the
entire society. It destroys the entire psychology of a woman and pushes her
into deep emotional crisis. It is only by her sheer will-power that she
rehabilitates herself in the society which, on coming to know of the rape, looks
down upon her in derision and contempt. Rape is, therefore, the most hated
crime. It is a crime against basic human rights and is also violative of the
victim's most cherished of the Fundamental Rights, namely, the Right to Life
contained in Article 21. To many feminists and psychiatrists, rape is less a
sexual offence than an act of aggression aimed at degrading and humiliating
women. The rape laws do not unfortunately, take care of the social aspect of
the matter and are inept in many respects." In the matter of punishment
for offence committed by a person, there are many approaches to the problem. On
the commission of crime, three types of reactions may generate;
the
traditional reaction of universal nature which is termed as punitive approach.
It regards the criminal as a notoriously dangerous person who must be inflicted
severe punishment to protect the society from his criminal assaults. The other
approach is the therapeutic approach.
It
regards the criminal as a sick person requiring treatment, while the third is
the preventive approach which seeks to eliminate those conditions from the
society which were responsible for crime causation. Under the punitive
approach, the rationalisation of punishment is based on retributive and utalitarian
theories. Deterrent theory which is also part of the punitive approach proceeds
on the basis that the punishment should act as a deterrent not only to the
offender but also to others in the community. The therapeutic approach aims at
curing the criminal tendencies which were the product of a diseased psychology.
There may be many factors, including the family problems. We are not concerned
with those factors as therapeutic approach has since been treated as an
effective method of punishment which not only satisfies the requirements of law
that a criminal should be punished and the punishment prescribed must be meted
out to him, but also reforms the criminal through various processes, the most
fundamental of which is that in spite of having committed a crime, may be a
heinous crime, he should be treated as a human being entitled to all the basic
human rights, human dignity and human sympathy.
It was
under this theory that this Court in a stream of decisions, projected the need
for prison reforms, the need to acknowledge the vital fact that the prisoner,
after being lodged in jail, does not lose his fundamental rights or basic human
rights and that he must be treated with compassion and sympathy (See : Sunil Batra
(I) vs. Delhi Administration AIR 1978 SC 1675 = (1978) 4 SCC 494 = 1979 (1) SCR
392; Sunil Batra (II) vs. Delhi Administration AIR 1980 SC 1579 = (1980) 3 SCC
488 = 1980 (2) SCR 557; Charles Shobraj vs. Superintendent, Central Jail, Tihar
AIR 1978 SC 1514 and Francis Coralie Mullin vs. The Administrator, Union Territory
of Delhi (1981) 1 SCC 608 = AIR 1981 SC 746 = 1981(2) SCR 516 etc.). Sexual
offences, however, constitute an altogether different kind of crime which is
the result of a perverse mind. The perversity may result in homosexuality or in
the commission of rape. Those who commit rape are psychologically sadistic
persons exhibiting this tendency in the rape forcibly committed by them. In
some States in the USA, therefore, emphasis was laid on psychotherapic
treatement of the offender while he was under detention. For that purpose,
Psychopath Sexual Offenders Laws have been enacted in certain jurisdictions in USA.
These
laws treat the sex offenders as neurotic persons and psychotherapic treatment
is given to them during the period of their detention which may, in some cases,
be an indefinite period, in the sense that they would not be released till they
are cured. But the provision for indefinite detention even beyond the maximum
period of imprisonment for that offence was seriously objected to by a group of
lawyers and, therefore, in many of the States, this provision was dropped from
the Statute. Here, in India, statutory provision for psychotherapic
treatment during the period of incarceration in the jail is not available, but
reformist activities are systematically held at many places with the intention
of treating the offenders psychologically so that he may not repeat the offence
in future and may feel repentant of having committed a dastardly crime. The
question of sentence in such cases was considered by Krishna Iyer, J. in Phul
Singh vs. State of Haryana (1979) 4 SCC 413, in which he observed that
sentencing efficacy in cases of lust-loaded criminality cannot be
simplistically assumed by award of long incarceration, for, often that remedy
aggravates the malady. He further observed that, a hyper-sexed homo sapien
cannot be rehabilitated by humiliating or harsh treatment. In that case it was
found that the appellant was a young man of 22 years with no criminal
antecedents save the offence of rape committed by him. The learned Judge
thought that given correctional courses through meditational therapy and other
measures, his erotic aberrations may wither away, particularly as the appellant
had a reasonable prospect of shaping into a balanced person. But, this theory
was not followed in later decisions as it was found that in spite of devices
having been employed and adopted within the jail premises so as to reform the
offenders, there was negligible improvement in the commission of crime. The
crime, instead of declining, had increased and, today, it has assumed dangerous
proportions. While one person is reformed and moves out of jail, another
offender is born. Consequently, in two recent decisions, relating to the
offence of rape, one rendered by the present Chief Justice of India and the
other by Brother Lahoti, the sentence was enhanced in State of Karnataka vs.
Krishnappa
JT 2000 (3) SC 516, while in the other case, namely, State of Rajasthan vs. Noore Khan JT 2000 (3) SC 643,
the order of acquittal passed by the High Court was set aside and substituted
by an order of conviction. However, having regard to the extenuating
circumstances pointed out by Mr. Seeraj Bagga in the instant case, specially
the fact that the appellant's two daughters have come of age and are to be
married, we feel that the present period of incarceration of the appellant in
jail is enough and he should not be made to further suffer the consequences of
his bestiality. We therefore, while dismissing the appeal, recall the notice
issued to the appellant for enhancement of his sentence.
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