Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1860 OF 2010

Shyam Narain ...Appellant

Versus

The State of NCT of Delhi ...Respondent

J U D G M E N T

Dipak Misra, J.

The wanton lust, vicious appetite, depravity of

senses, mortgage of mind to the inferior endowments of

nature, the servility to the loathsome beast of passion and

absolutely unchained carnal desire have driven the

appellant to commit a crime which can bring in a ‘tsunami’

of shock in the mind of the collective, send a chill in the

spine of the society, destroy the civilized stems of the

milieu and comatose the marrows of sensitive polity. It is

Page 2 brutal rape of an eight year old girl. The sensitive learned

trial Judge, after recording conviction under Section 376(2)

(f) of the Indian Penal Code (for short “IPC”), had taken

note of the brutality meted out to the child and sentenced

him to undergo rigorous imprisonment for life and to pay a

fine of Rs.5000/- failing which to undergo rigorous

imprisonment for six months. The Division Bench of the

Delhi High Court has equally reflected its anguish over the

crime by describing it as “pervaded with brutality” and

“trauma which the young child would face all her life” and

has concurred with the sentence of imprisonment and the

fine.

2.This Court, at the time of issuance of notice, had

restricted it to the quantum of sentence. However,

we shall dwell upon the merits of the case in brief.

3.The horrid episode as unfurled by prosecution is that

on 29.10.2003, about 6.30 p.m., an eight year old

child, daughter of one Binda Saha, was taken by the

appellant to Lal Bahadur Shastri Hospital and from

there, being referred, she was admitted in GTB

Hospital, Shahdara, at 1.30 a.m. on 30.10.2003. The

2

Page 3 young girl, as recorded in MLC Ext.PW-10/D, had

stated that she had fallen down in the toilet about

2.00 p.m. on 29.10.2003 as a consequence of which

she had sustained the injuries. The treating doctor,

Dr. Anju Yadav, was not convinced with what was

being narrated to her. As the factual narration would

reflect, the duty constable informed the local police

station, i.e., P.S. Kalyanpuri, about the admission of

the young girl (hereinafter whom we shall refer to as

‘M’) and her condition, as recorded in the MLC. The

child remained in the hospital for six days and

thereafter she was discharged. The anxious mother,

unable to digest the story that was told to her by the

daughter, asked her to muster courage and tell the

truth to her. The young ‘M’ gained confidence and,

eventually, on 10.11.2003, broke down before her

mother and told her how the appellant had brutally

raped her and threatened her that if she disclosed

the said fact to anyone, her life as well as the lives of

her parents would be in danger. The disturbed father

proceeded to the police station and informed what

3

Page 4 was told by his daughter and, accordingly, an FIR was

registered. After the criminal law was set in motion,

the investigating agency arrested the accused and,

eventually, the accused-appellant was sent up for

trial. The accused pleaded innocence and claimed to

be tried.

4.The prosecution, in order to establish the charge

levelled against the accused, examined 11 witnesses

including the child ‘M’, her parents, the doctors and

other formal witnesses. The accused in his

statement under Section 313 of the Code of Criminal

Procedure stated that on 28.10.2003, the parents of

‘M’ had gone to see her maternal uncle and,

therefore, he had taken the prosecutrix ‘M’ to the

hospital for medical aid, but as Lal Bahadur Shastri

Hospital refused on the ground that the prosecutrix

should be taken to some big hospital, he took her to

GTB Hospital for medical treatment. It was his

further explanation that he took the girl to the

hospital for saving her life and he was not aware that

she had been raped. The allegation of threat was

4

Page 5 disputed by the accused. It is also his stand that

initially the child had not named him being asked by

the doctor and had stated that she had sustained the

injuries by fall, and after the discharge of the child,

he went to attend his work on 4.11.2003. Be it

noted, the defence chose not to adduce any

evidence.

5.The learned trial Judge, considering the entire

evidence on record and the contentions raised on

behalf of the accused, came to hold that the version

of the prosecutrix could be relied upon in entirety

and by no stretch of imagination it could be said that

she was a tutored witness; that the delay in lodging

the FIR was not at all fatal to the case of the

prosecution as the child was in a tremendous state of

panicky; that the factum of rape has been clearly

proven from the medical evidence and the testimony

of the doctors which have remained unimpeachable

despite roving cross-examination; that no plea of any

hostility or previous animosity had been suggested to

the child or to her parents; that the presence of the

5

Page 6 accused in the house had remained unexplained; and

that no suggestion had been given to any of the

doctors who were cited by the prosecution that the

injuries could be caused by fall. Considering the

entire evidence in detail, the learned trial Judge

found the accused guilty of the offence under Section

376(2)(f) IPC and sentenced him as has been stated

hereinbefore.

6.In appeal, the High Court took note of number of

factors, narrating the condition of the child, the

revelation of the tragic treatment by the accused, the

circumstances under which the FIR was lodged, the

testimony of the prosecutrix as to how she had been

raped in a cruel manner by the accused, the absence

of any reason of his going to the house of young ‘M’

and the circumstances under which he could see the

injured child, the credibility and unimpeachability of

the evidence of the child ‘M’, the courage that was

gradually gathered by the child after getting out of

the state of fear and trauma, the evidence of the

doctors which showed the physical condition of the

6

Page 7 victim and the conduct of the accused in the hospital

and, on the said basis, concurred with the view

expressed by the learned trial Judge.

7.We have heard learned counsel for the appellant, and

Mr. Paras Kuhad, learned Additional Solicitor General,

and Mr. B.V. Balram Dass, learned counsel appearing

for the NCT of Delhi.

8.To consider the defensibility of the judgment of

conviction rendered by the learned trial Judge and

affirmed by the Division Bench, it is necessary to

appreciate the nature of injuries suffered by the

victim. True it is, the young child had told the

doctors that she had suffered a fall but the same was

not given credence to by the treating doctors. The

MLC where the condition of the young child was

recorded is as follows: -

“O/E-Apprehensive look, G.C. fair, pallor mild, P-

96/m, BP 110/80, heart NAD. No bruises seen on

the body. Breasts and secondary sexual

characters not developed. P/A Soft, lever

spleen not palpable. No shifting dullness, no

area of tenderness. L/E – On separation of labia,

a tear of 1.5 approx. to 2 cm. seen from

posterior fourchette towards anus just 1 cm.

7

Page 8 short of anal opening and same tear extending

upto hymen. Clot was seen in her vagina, anal

opening was intact, no area of bruise seen on

perineum. Bleeding per vagina was present.

Decision for examination under anaesthesia and

repair of vaginal perennial tear taken. Patient

was admitted in septic labour room and shifted

to gynae emergency operation theatre. On

examination under anaesthesia, showed same

findings as above but in addition a tear of 3 cm

approximately was seen in left vaginal wall from

hymen into the vagina. Bleeding was positive.

Apex of tear seen, tear stitched in layers, cervix

seen healthy, no bleeding through OS. In view

of EUA, findings under anaesthesia high index of

suspicion of sexual assault was made although

the child and her uncle were denying of any

such episode.”

9.Dr. Sapna Verma, PW-4, who examined the victim,

found that the hymen of the child ‘M’ was torn. The

victim has deposed that about 1.00 p.m. in the

afternoon, on the date of the incident, the accused-

appellant came to the house and gave her an

intoxicating drink and took her into a room. He raped

her and also gave threat that if she would tell her

parents or any other person, he would inflict knife

blows upon her and her family members. He had

further told her that she should tell her parents that

she received the injuries when she slipped in the

toilet. It has also come in her evidence that the

8

Page 9 accused took her to the hospital while she was

bleeding from her private parts. She has truthfully

spoken that initially she told her parents that she had

sustained injuries as a result of a fall in the toilet

because she was terribly scared and thereafter she

spoke out how she sustained the injuries. In her

cross-examination, she has stood embedded in her

version. The time gap between the occurrence and

the accused taking the child to the hospital has its

own significance. The child was bleeding from her

private parts. Had the child been left to herself, she

would have bled to death. The accused took her to

the hospital to avoid a situation when somebody

might have come hearing her cry and saved her life

and she might have ultimately spoken the truth. The

totality of the circumstances would show that he was

with the child. It is interesting to note that the

accused had not disclosed why he had gone to the

house of the child ‘M’ and under what circumstances

he took the child to the hospital. The unimpeachable

evidence of the child ‘M’, the testimony of the

9

Page 10 treating physicians, the medical evidence and the

conduct of the accused go a long way to show that

the accused had raped the child ‘M’ in a cruel and

brutal manner and the conviction recorded on that

score by the learned trial Judge which has been given

stamp of approval by the High Court cannot be

faulted.

10.Presently, we shall proceed to deal with the

justification of the sentence. Learned counsel for the

appellant, would submit that though Section 376(2)

provides that sentence can be rigorous imprisonment

for life, yet as a minimum of sentence of ten years is

stipulated, this Court should reduce the punishment

to ten years of rigorous imprisonment. It is urged by

him that the appellant is a father of four children and

their lives would be ruined if the sentence of

imprisonment for life is affirmed. Mr. Paras Kuhad,

and Mr. B.V. Balram Dass, counsel for the State,

submitted that the crime being heinous, the sentence

imposed on the accused is absolutely justified and

does not warrant interference. It is also canvassed

10

Page 11 by them that reduction of sentence in such a case

would be an anathema to the concept of just

punishment.

11.Primarily it is to be borne in mind that sentencing for

any offence has a social goal. Sentence is to be

imposed regard being had to the nature of the

offence and the manner in which the offence has

been committed. The fundamental purpose of

imposition of sentence is based on the principle that

the accused must realise that the crime committed

by him has not only created a dent in his life but also

a concavity in the social fabric. The purpose of just

punishment is designed so that the individuals in the

society which ultimately constitute the collective do

not suffer time and again for such crimes. It serves

as a deterrent. True it is, on certain occasions,

opportunities may be granted to the convict for

reforming himself but it is equally true that the

principle of proportionality between an offence

committed and the penalty imposed are to be kept in

view. While carrying out this complex exercise, it is

11

Page 12 obligatory on the part of the Court to see the impact

of the offence on the society as a whole and its

ramifications on the immediate collective as well as

its repercussions on the victim.

12.In this context, we may refer with profit to the

pronouncement in Jameel v. State of Uttar

Pradesh

1

, wherein this Court, speaking about the

concept of sentence, has laid down that it is 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. The

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.”

13.In Shailesh Jasvantbhai and another v. State of

Gujarat and others

2

, the Court has observed thus:

“Friedman in his Law in Changing Society stated

that: “State of criminal law continues to be - as

1

(2010) 12 SCC 532

2

(2006) 2 SCC 359

12

Page 13 it should be -a decisive reflection of social

consciousness of society.” Therefore, in

operating the sentencing system, law should

adopt the corrective machinery or 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”.

14.In State of M.P. v. Babulal

3

, two learned Judges,

while delineating about the adequacy of sentence,

have expressed thus : -

“19.Punishment is the sanction imposed on the

offender for the infringement of law committed

by him. Once a person is tried for commission

of an offence and found guilty by a competent

court, it is the duty of the court to impose on

him such sentence as is prescribed by law. The

award of sentence is consequential on and

incidental to conviction. The law does not

envisage a person being convicted for an

offence without a sentence being imposed

therefore.

20.The object of punishment has been

succinctly stated in Halsbury’s Laws of England,

(4

th

Edition: Vol.II: para 482) thus:

“The aims of punishment are now

considered to be retribution, justice,

deterrence, reformation and protection

3

AIR 2008 SC 582

13

Page 14 and modern sentencing policy reflects a

combination of several or all of these aims.

The retributive element is intended to

show public revulsion to the offence and to

punish the offender for his wrong conduct.

The concept of justice as an aim of

punishment means both that the

punishment should fit the offence and also

that like offences should receive similar

punishments. An increasingly important

aspect of punishment is deterrence and

sentences are aimed at deterring not only

the actual offender from further offences

but also potential offenders from breaking

the law. The importance of reformation of

the offender is shown by the growing

emphasis laid upon it by much modern

legislation, but judicial opinion towards this

particular aim is varied and rehabilitation

will not usually be accorded precedence

over deterrence. The main aim of

punishment in judicial thought, however, is

still the protection of society and the other

objects frequently receive only secondary

consideration when sentences are being

decided”.

(emphasis supplied)”

15.In Gopal Singh v. State of Uttarakhand

4

, while

dealing with the philosophy of just punishment which

is the collective cry of the society, a two-Judge Bench

has stated that just punishment would be dependent

on the facts of the case and rationalised judicial

discretion. Neither the personal perception of a

4

2013 (2) SCALE 533

14

Page 15 Judge nor self-adhered moralistic vision nor

hypothetical apprehensions should be allowed to

have any play. For every offence, a drastic measure

cannot be thought of. Similarly, an offender cannot

be allowed to be treated with leniency solely on the

ground of discretion vested in a Court. The real

requisite is to weigh the circumstances in which the

crime has been committed and other concomitant

factors.

16.The aforesaid authorities deal with sentencing in

general. As is seen, various concepts, namely,

gravity of the offence, manner of its execution,

impact on the society, repercussions on the victim

and proportionality of punishment have been

emphasized upon. In the case at hand, we are

concerned with the justification of life imprisonment

in a case of rape committed on an eight year old girl,

helpless and vulnerable and, in a way, hapless. The

victim was both physically and psychologically

vulnerable. It is worthy to note that any kind of

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Page 16 sexual assault has always been viewed with

seriousness and sensitivity by this Court.

17.In Madan Gopal Kakkad v. Naval Dubey and

another

5

, it has been observed as follows:-

“... though all sexual assaults on female

children are not reported and do not come to

light yet there is an alarming and shocking

increase of sexual offences committed on

children. This is due to the reasons that

children are ignorant of the act of rape and are

not able to offer resistance and become easy

prey for lusty brutes who display the

unscrupulous, deceitful and insidious art of

luring female children and young girls.

Therefore, such offenders who are menace to

the civilized society should be mercilessly and

inexorably punished in the severest terms.”

18.In State of Andhra Pradesh v. Bodem Sundra

Rao

6

, this Court noticed that crimes against women

are on the rise and such crimes are affront to the

human dignity of the society and, therefore,

imposition of inadequate sentence is injustice to the

victim of the crime in particular and the society in

general. After so observing, the learned Judges had

to say this: -

5

(1992) 3 SCC 204

6

AIR 1996 SC 530

16

Page 17 “The Courts have an obligation while awarding

punishment to impose appropriate punishment

so as to respond to the society’s crime for justice

against such criminals. Public abhorrence of the

crime needs a reflection through the Court’s

verdict in the measure of punishment. The

Courts must not only keep in view the rights of

the criminal but also the rights of the victim of

crime and the society at large while considering

imposition of the appropriate punishment.”

19.In State of Punjab v. Gurmit Singh and others

7

,

this Court stated with anguish that crime against

women in general and rape in particular is on the

increase. The learned Judges proceeded further to

state that it is an irony that while we are celebrating

women’s rights in all spheres, we show little or no

concern for her honour. It is a sad reflection of the

attitude of indifference of the society towards the

violation of human dignity of the victims of sex

crimes. Thereafter, the Court observed the effect of

rape on a victim with anguish: -

“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

7

AIR 1996 SC 1393

17

Page 18 body of his victim, a rapist degrades the very

soul of the helpless female.”

20.In State of Karnataka v. Krishnappa

8

, a three-

Judge Bench opined that the 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 and respond by imposition of proper

sentence. Public abhorrence of the crime needs

reflection through imposition of appropriate sentence

by the court. It was further observed that to show

mercy in the case of such a heinous crime would be

travesty of justice and the plea for leniency is wholly

misplaced.

21.In Jugendra Singh v. State of Uttar Pradesh

9

,

while dwelling upon the gravity of the crime of rape,

this Court had expressed thus: -

“Rape or an attempt to rape is a crime not

against an individual but a crime which destroys

the basic equilibrium of the social atmosphere.

The consequential death is more horrendous. It

is to be kept in mind that an offence against the

body of a woman lowers her dignity and mars

her reputation. It is said that one’s physical

frame is his or her temple. No one has any right

8

(2000) 4 SCC 75

9

(2012) 6 SCC 297

18

Page 19 of encroachment. An attempt for the

momentary pleasure of the accused has caused

the death of a child and had a devastating

effect on her family and, in the ultimate

eventuate, on the collective at large. When a

family suffers in such a manner, the society as a

whole is compelled to suffer as it creates an

incurable dent in the fabric of the social milieu.”

22.Keeping in view the aforesaid enunciation of law, the

obtaining factual matrix, the brutality reflected in the

commission of crime, the response expected from

the courts by the society and the rampant

uninhibited exposure of the bestial nature of pervert

minds, we are required to address whether the

rigorous punishment for life imposed on the appellant

is excessive or deserves to be modified. The learned

counsel for the appellant would submit that the

appellant has four children and if the sentence is

maintained, not only his life but also the life of his

children would be ruined. The other ground that is

urged is the background of impecuniousity. In

essence, leniency is sought on the base of aforesaid

mitigating factors. It is seemly to note that the

legislature, while prescribing a minimum sentence for

a term which shall not be less than ten years, has

19

Page 20 also provided that the sentence may be extended

upto life. The legislature, in its wisdom, has left it to

the discretion of the Court. Almost for the last three

decades, this Court has been expressing its agony

and distress pertaining to the increased rate of

crimes against women. The eight year old girl, who

was supposed to spend time in cheerfulness, was

dealt with animal passion and her dignity and purity

of physical frame was shattered. The plight of the

child and the shock suffered by her can be well

visualised. The torment on the child has the

potentiality to corrode the poise and equanimity of

any civilized society. The age old wise saying “child

is a gift of the providence” enters into the realm of

absurdity. The young girl, with efflux of time, would

grow with traumatic experience, an unforgettable

shame. She shall always be haunted by the memory

replete with heavy crush of disaster constantly

echoing the chill air of the past forcing her to a state

of nightmarish melancholia. She may not be able to

assert the honour of a woman for no fault of hers.

20

Page 21 Respect for reputation of women in the society shows

the basic civility of a civilised society. No member of

society can afford to conceive the idea that he can

create a hollow in the honour of a woman. Such

thinking is not only lamentable but also deplorable. It

would not be an exaggeration to say that the thought

of sullying the physical frame of a woman is the

demolition of the accepted civilized norm, i.e.,

“physical morality”. In such a sphere, impetuosity

has no room. The youthful excitement has no place.

It should be paramount in everyone’s mind that, on

one hand, the society as a whole cannot preach from

the pulpit about social, economic and political

equality of the sexes and, on the other, some pervert

members of the same society dehumanize the

woman by attacking her body and ruining her

chastity. It is an assault on the individuality and

inherent dignity of a woman with the mindset that

she should be elegantly servile to men. Rape is a

monstrous burial of her dignity in the darkness. It is

a crime against the holy body of a woman and the

21

Page 22 soul of the society and such a crime is aggravated by

the manner in which it has been committed. We

have emphasised on the manner because, in the

present case, the victim is an eight year old girl who

possibly would be deprived of the dreams of “Spring

of Life” and might be psychologically compelled to

remain in the “Torment of Winter”. When she

suffers, the collective at large also suffers. Such a

singular crime creates an atmosphere of fear which is

historically abhorred by the society. It demands just

punishment from the court and to such a demand,

the courts of law are bound to respond within legal

parameters. It is a demand for justice and the award

of punishment has to be in consonance with the

legislative command and the discretion vested in the

court. The mitigating factors put forth by the learned

counsel for the appellant are meant to invite mercy

but we are disposed to think that the factual matrix

cannot allow the rainbow of mercy to magistrate.

Our judicial discretion impels us to maintain the

sentence of rigorous imprisonment for life and,

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Page 23 hence, we sustain the judgment of conviction and the

order of sentence passed by the High Court.

23.Ex consequenti, the appeal, being sans merit, stands

dismissed.

..............................................J.

[Dr. B. S. Chauhan]

..............................................J.

[Dipak Misra]

New Delhi;

May 15, 2013

23