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CASE NO.:

Appeal (crl.) 506 of 1997

PETITIONER:

State of Karnataka

RESPONDENT:

Puttaraja

DATE OF JUDGMENT: 27/11/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT,J

A 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.

We do 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.

True 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 the judgment.

21st 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.

The 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 judgment".

Learned counsel appearing for the respondents submitted that the

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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 adequate.

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. 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 \026 as it should be \026 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.

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 Naidu (AIR 1991 SC

1463).

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 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.

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 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

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considerations that make punishment unjustifiable when it is out of

proportion to the gravity of the crime, uniformly disproportionate

punishment has some very undesirable practical consequences.

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 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.

The 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.

Imposition 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.

In Dhananjoy 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.

The imposition of appropriate punishment is the manner in which the

Court responds to the society's cry for justice against the criminal.

Justice 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 punishment.

Similar 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.

The 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

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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).

Rape is violation with violence of the private person of the victim, an

abominable outrage by all canons.

In the 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 misplaced sympathy.

The 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:

"I 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 in court.

Taking 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.

According 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.

Since 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.

The appeal is allowed.