of Karnataka Vs. Puttaraja  Insc 598 (27 November 2003)
Raju & Arijit Pasayat. Arijit Pasayat,J
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.
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.
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
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.
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
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
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.
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).
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
in essence affirm that punishment ought always to fit the crime;
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.
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
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.
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.
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.
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.
imposition of appropriate punishment is the manner in which the Court responds
to the society's cry for justice against the criminal.
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
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.
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).
is violation with violence of the private person of the victim, an abominable
outrage by all canons.
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
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:
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
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.
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.
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.
appeal is allowed.