of Karnataka Vs. Raju  Insc 928 (14 September 2007)
Arijit Pasayat & P.P. Naolekar
APPEAL NO. 782 OF 2001 Dr. ARIJIT PASAYAT, J.
Challenge in this appeal is to the judgment rendered by a learned Single Judge
of the Karnataka High Court reducing the custodial sentence of respondent to 3=
years instead of seven years as was imposed by the learned Second Additional
Sessions Judge, Gulbarga, in SC No.61/1993, after convicting the respondent for
an offence punishable under Section 376 of the Indian Penal Code, 1860 (in
short the 'IPC'). The victim (PW1) was aged less than 12 years when she was
sexually ravished by the respondent on 31.1.1993 at about 12.30 p.m.
the basis of First Information Report (in short the 'FIR') lodged at the police
station law was set into motion. On completion of investigation, charge-sheet
was filed and accused faced trial and he pleaded innocence. Prosecution placed
reliance on the evidence of victim and the medical evidence. The trial court
convicted the accused under Section 376 IPC. An appeal was preferred before the
High Court. The same was disposed of by the High Court maintaining the
conviction but sentence was reduced to 3= years, since the High Court felt that
in view of certain special reasons the custodial sentence was to be reduced to
support of the appeal, learned counsel for the State submitted that in a
heinous crime like rape the High Court was not justified in reducing the
sentence by referring to certain circumstances which are not only irrelevant
but also cannot constitute special reasons warranting reduction in sentence.
Since the accused was not represented in this appeal in spite of service of
notice, Mr. Ashok Bhan, appeared as Amicus Curiae at our request.
to learned Amicus Curiae, though the offence of rape is a heinous crime but
while sentencing an accused the same should be tempered with mercy. Though such
a plea was not taken before the trial court, High Court indicated some reasons
which may not be sufficient to justify the reduction per se, yet as it
exercised judicial discretion, there is no need for interference. It has to be
noted that the victim was less then 12 years of age at the time of occurrence.
In fact both the trial court and High Court have noted that she was aged about
10 years. Stringent punishment is provided for where the victim is less than 12
years of age in terms of Section 376 (2) (f) IPC.
minimum punishment is 10 years but the proviso provides that for "adequate
and special reasons" mentioned in the judgment a sentence of less then 10
years can be imposed.
this aspect appears to have been lost sight of by both the trial court and the
High Court and the State has also not questioned the inadequacy of sentence on
High Court has noted as follows to reduce the sentence:
learned counsel for the appellant contended that the accused is a young boy of
18 years and he is illiterate and rustic.
he is not actually aged 18 years, he could not take the plea of his age on
account of illiteracy and thus he has lost the chance of taking the benefit of
reformatory Legislation or seeking a remand to Borstal School etc., For the
illiteracy and ignorance of the accused, it should not be taken as a ground for
not taking the defence in the trial and this is a circumstance to award reduced
sentence. Accused has already served in jail for 2 years 11 months.
view of the fact that the accused is a young boy of 18 years belonging to Vaddara
Community and Illiterate, I think it just and proper to reduce the sentence
from seven years RI to three and half years R.I. Appeal is partly
needs no emphasis that the physical scar may heal up, but the mental scar will
always remain. When a woman is ravished, what is inflicted is not merely
physical injury but the deep sense of some deathless shame. An accused cannot
cling to a fossil formula and insist on corroborative evidence, even if taken
as a whole, the case spoken to by the victim strikes a judicial mind as
probable. Judicial response to human rights cannot be blunted by legal
is to be noted that in sub-section(2) of Section 376 I.P.C. more stringent
punishment can be awarded taking into account the special features indicated in
the said sub-section.
present case is covered by Section 376(2)(f) IPC i.e. when rape is committed on
a woman when she is under 12 years of age. Admittedly, in the case at hand the
victim was 10 years of age at the time of commission of offence.
measure of punishment in a case of rape cannot depend upon the social status of
the victim or the accused. It must depend upon the conduct of the accused, the
state and age of the sexually assaulted female and the gravity of the criminal
act. Crimes of violence upon women need to be severely dealt with. The
socio-economic status, religion, race, caste or creed of the accused or the
victim are irrelevant considerations in sentencing policy. Protection of
society and deterring the criminal is the avowed object of law and that is
required to be achieved by imposing an appropriate sentence.
sentencing Courts are expected to consider all relevant facts and circumstances
bearing on the question of sentence and proceed to impose a sentence commensurate
with the gravity of the offence. Courts must hear the loud cry for justice by
the society in cases of the heinous crime of rape on innocent helpless girls of
tender years, as in this case, and respond by imposition of proper sentence.
Public abhorrence of the crime needs reflection through imposition of
appropriate sentence by the Court. There are no extenuating or mitigating
circumstances available on the record which may justify imposition of any
sentence less than the prescribed minimum on the respondent. To show mercy in
the case of such a heinous crime would be a travesty of justice and the plea
for leniency is wholly misplaced.
legislative mandate to impose a sentence, for the offence of rape on a girl
under 12 years of age, for a term which shall not be less than 10 years, but
which may extend to life and also to fine reflects the intent of stringency in
sentence. The proviso to Section 376(2) IPC, of course, lays down that the
court may, for adequate and special reasons to be mentioned in the judgment,
impose sentence of imprisonment of either description for a term of less than
10 years. Thus, the normal sentence in a case where rape is committed on a
child below 12 years of age, is not less than 10 years' RI, though in
exceptional cases "for special and adequate reasons" sentence of less
than 10 years' RI can also be awarded. It is a fundamental rule of construction
that a proviso must be considered with relation to the principal matter to
which it stands as a proviso particularly in such like penal provisions. The
courts are obliged to respect the legislative mandate in the matter of awarding
of sentence in all such cases. Recourse to the proviso can be had only for
"special and adequate reasons" and not in a casual manner.
there exist any "special and adequate reasons" would depend upon a
variety of factors and the peculiar facts and circumstances of each case. No
hard and fast rule can be laid down in that behalf of universal application.
These aspects were highlighted in Dinesh Alias Buddha v. State of Rajasthan [2006 (3) SCC 771].
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.
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
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 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
and all other attending circumstances are relevant facts which would enter into
the area of consideration.
Therefore, 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 Nadu (1991 (3) SCC 471).
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
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
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. Even now for
a single grave infraction drastic sentences are imposed.
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 crime, uniformly disproportionate punishment has
some very undesirable practical consequences.
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.
These aspects were highlighted in Shailesh Jasvantbhai and Anr. v. State of Gujarat and Ors. [2006 (2) SCC 359].
Considering the legal position and in the absence of any reason which could
have been treated as "special and adequate reason" reduction of
sentence as done by the High Court is clearly unsustainable. The trial court
should have imposed sentence of 10 years in terms of Section 376 (2) (f) IPC.
But State has not questioned the sentence as imposed, the sentence as imposed
by the trial court is restored. The High Court's order reducing the sentence is
The appeal is allowed.