Siriya @ Shri Lal Vs. State of M.P. [2008] INSC 912 (13 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 870 OF 2008 (Arising out of
SLP (Crl.) No. 8138 of 2007) Siriya @ Shri Lal ....Appellant Versus State of
Madhya Pradesh ....Respondent
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
There can never be more shocking,
depraved and heinous crime than when the father is charged of having raped his
own daughter. He not only delicts the law but, it is a betrayal of trust. The
father is the fortress and refuge of his daughter in whom the daughter reposes
trust to protect her.
Charged of raping his own daughter
under his refuge and fortress is worse than the gamekeeper becoming a poacher
and treasury guard becoming a robber.
2. The appellant questioned his
conviction for offence punishable under Section 376 of the Indian Penal Code,
1860 (in short the `IPC') as recorded by the learned Sessions Judge, Guna
and sentence of imprisonment for life and fine of Rs.1,000/- with default
stipulation before the Madhya Pradesh High Court.
3. The High Court affirmed the
conviction and the sentence.
4. Sans unnecessary details the
background facts are as follows:
The prosecutrix is the daughter of
the appellant. The mother of the prosecutrix had died about 3 years back prior
to the date of incident i.e. 5.2.2004. At the time of incident, the prosecutrix
was residing with her father alongwith her three brothers. On 5.2.2004 the
appellant took the prosecutrix (PW- 2 4) aged around 13 years on his cycle to
Raghogarh to purchase clothes for her. At around 3 p.m., the prosecutrix was
coming back with him on his cycle when on the way, the appellant stopped his
cycle near "Bawdi Kheda Ashram".
Appellant then took the
prosecutrix to a dilapidated house situated there and removed the clothes of
the prosecutrix.
When the prosecutrix cried, the
appellant slapped her and forcibly committed rape on her. At that time, three
persons- witnesses Kamarjeet, Promod and Suresh who were passing by, heard the
shrieks of the prosecutrix, went inside the room and separated the appellant
from the prosecutrix. Then, these witnesses took the prosecutrix and the
appellant to the police station Vijaypur where the prosecutrix (PW-4) lodged
the first information report (Ex. P-4) against the appellant. The prosecutrix
(PW-4) was sent for medical examination. Dr.
Chhaya Shrama (PW-2) examined the
.prosecutrix and found that her sexual character had started developing, pubic
hairs were scanty and on internal examination, found old hymen ruptured at 11
o'clock position including the redness over it's posterior side. On the basis
of this examination, the doctor 3 opined that possibility of rape could not be
denied. The vaginal swab of the prosecutrix was prepared and the panty of the
prosecutrix was taken by the doctor and the same was sealed and handed over to
the police for chemical examination. For confirmation of the age of the
prosecutrix, her x-ray was taken and as per the x-ray report (Ex.P-1) the age
of the prosecutrix was found above 17 years and below 19 years. The appellant
was arrested and he was also sent for medical examination. According to his
medical report (Ex.P-3), the appellant was found competent to perform sexual
intercourse. Thus, according to the prosecution, the appellant committed rape
on the prosecutrix (PW-4), who is his own daughter. After investigation,
charge-sheet was filed. After committal of the case, charge under Section 376(1)
of I.P.C. was framed against the appellant.
The accused took the plea of false
implication which was not accepted by the trial Court. He was convicted and
sentenced as aforestated. He preferred an appeal before the High Court. Before
the High Court it was the stand of the 4 appellant that his brother wanted to
grab land and property and, therefore, the prosecutrix was under his influence
and on being tutored had deposed falsely against the appellant. It was also
stated that three other witnesses had deposed under the influence of the
villagers. It was stated that it is unnatural that the father would sexually
assault his daughter. It is also stated that the High Court without analyzing
the evidence dismissed the appeal.
In support of the appeal, the
stands taken before the trial Court and the High Court were re-iterated. It was
submitted that the age of the prosecutrix was about 12 years at the time of
incidence. The mother of the prosecutrix had died and, therefore, to look after
her well being reduction in sentence should be given.
Learned counsel for the State
supported the judgment and submitted that nothing more degrading could have
been done by a father and, therefore, no leniency is called for.
5
5. The case at hand shows to what
bottomless pit speed of depravation and lust a person can go down. As indicated
at the threshold, the custodian of the trust has betrayed the same. The father
is supposed to protect the dignity and honour of his daughter. This is a
fundamental facet of human life. If the protector becomes the violator, the
offence assumes a greater degree of vulnerability. The sanctity of father and
daughter relationship gets polluted. It becomes an unpardonable act. It is not
only a loathsome sin, but also abhorrent. The case at hand is a sad reflection
on the present day society where a most platonic relationship has been soiled
by the pervert and degrading act of the father. The evidence on records
clinchingly nails the appellant as the offender.
6. The next question is whether
any lenience in sentence is called for.
7. 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 6
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 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 7 nature of weapons used and all other
attending circumstances are relevant facts which would enter into the area of
consideration.
8. 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).
9. 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 8 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.
10. 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 9 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.
11. These aspects were highlighted
in Shailesh Jasvantbhai and Anr. v. State of Gujarat and Ors. [2006 (2) SCC
359] and State of Karnataka vs. Raju (AIR 2007 SC 3225).
12. In this case, the accused's
lustful acts have indelible scar not only physically but also emotionally on
the victim. No sympathy or leniency is called for.
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13. Looked at from any angle the
appeal is without merit and deserves to be dismissed which we direct.
................................J.
(Dr. ARIJIT PASAYAT)
................................J.
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