trial Court while imposing the punishment
lesser than the minimum provided under
Section 376 of the IPC is that the accused is
a poor and has a responsibility to maintain
his wife and children. The aforesaid can
hardly be said to be a cogent reason and/or
special circumstances/case while awarding the
punishment less than the minimum provided
under Section 376 of the IPC. As observed by
the Hon’ble Supreme Court in the catena of
decisions and as observed hereinabove the
offence of rape is a heinous crime not only
against the individual but also against the
society at large. The offences against the
woman more particularly under Section 376 of
the IPC are increasing. Therefore a massage
must go to the society that if such an
offence is committed it shall be dealt with
ironhand and strictly and that no leniency
shall be shown. Thus, in the present appeal
the learned trial Court has not exercised the
discretion judiciously and it can be said
that the learned trial Court has failed to
perform its duty as a Judge while awarding
appropriate and adequate punishment to an
offender who is convicted for the offence
under Sections 376, 377 and 506(2) of the
Indian Penal Code.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 763 of 2011
STATE OF GUJARAT. V JAYDIP DAMJIBHAI CHAVDA.
CORAM: MR.JUSTICE M.R. SHAH
and
MR.JUSTICE Z.K.SAIYED
Date : 16/12/2015
1. Feeling aggrieved and dissatisfied with the
impugned judgment and order passed by the
learned Additional City Sessions Judge, Court
No.13, Ahmedabad, passed in Sessions Case
No.122 of 2009 by which while convicting the
original accused for the offence under
Sections 376, 377 and 506(2) of the Indian
Penal Code the learned trial Court has
imposed the sentence of only three and half
years for the offence under Section 376 of
the Indian Penal Code with fine of Rs.1,000/
and in default to undergo further 03 months
R.I. and has imposed the sentence of 03 years
R.I. with fine of Rs.500/ and in default to
undergo further 02 months R.I. for the
offence under Section 377 of the Indian Penal
Code and has sentenced to undergo 01 year
R.I. with fine of Rs.250/ and in default to
undergo further 15 days R.I. for the offence
under Section 506(2) of the Indian Penal
Code, the State has preferred the present
Appeal for enhancement of the
punishment/sentence imposed by the learned
trial Court, imposed while convicting the
original accused for the offence under
Sections 376, 377 and 506(2) of the Indian
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Penal Code.
2. At the outset, it is required to be noted
that at the time of incident both the
prosecutrix were aged less than 16 years of
age. At the time of commission of the offence
the accused was aged 38 years of age. It has
also come on record that at the time of
commission of the offence accused was stepfather
of one of the victim/prosecutrix. That
by impugned judgment and order the learned
trial Court on appreciation of evidence has
as such convicted the accused for the offence
under Sections 376, 377 and 506(2) of the
Indian Penal Code. The original accused has
not challenged his conviction by the learned
trial Court for the offence under Sections
376, 377 and 506(2) of the Indian Penal Code.
Therefore, the impugned judgment and order
passed by the learned trial Court convicting
the original accused for the aforesaid
offences has attained the finality. Under the
circumstances, now what is required to be
considered by this Court in the present
Appeal is whether in the facts and
circumstances of the case and while
convicting the original accused for the
offence under Sections 376, 377 and 506(2) of
the Indian Penal Code the learned trial Court
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is justified in imposing the sentence less
than the minimum which is provided under the
Act for the offence under Section 376 of the
Indian Penal Code and whether the learned
trial Court is justified in awarding the
sentence of three and half years R.I. only
for the offence under Section 376 of the
Indian Penal Code and three years for the
offence under Section 377 of the Indian Penal
Code ? Another question which is paused for
consideration of this Court is whether the
learned trial Court has given adequate and
cogent reasons while awarding the sentence
less than the minimum provided under Section
376 of Indian Penal Code ?
3. Shri Mitesh Amin, learned Public Prosecutor
appearing with Shri H.S.Soni, learned APP has
vehemently submitted that in the facts and
circumstances of the case the learned trial
Court has materially erred in awarding the
sentence which is less than the minimum
provided under Section 376 of Indian Penal
Code. It is submitted that as such the
learned trial Court has convicted the
original accused for the offence under
Sections 376, 377 and 506(2) of the Indian
Penal Code. It is vehemently submitted that
while convicting the accused for the
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aforesaid offence the sentence which is
imposed by the learned trial Court is
inadequate and not commensurate with the
offence which is held to have been committed
by the accused.
3.1 It is further submitted by Shri Amin,
learned Public Prosecutor appearing with Shri
Soni that the reasons which are given by the
learned trial Court while awarding the
sentence less than the minimum provided under
the Act are not germane and/or it cannot be
said that cogent reasons have been given by
the learned trial Court while awarding the
sentence. It is further submitted by Shri
Amin, learned Public Prosecutor that as such
it can be said that while not awarding
appropriate and adequate punishment for the
offences under Sections 376, 377 and 506(2)
of the Act, it can be said that learned trial
Court has failed to perform his duty and/or
has failed to exercise the discretion
judiciously. Relying upon the recent decision
of the Hon’ble Supreme Court in the case of
Satish Kumar Jayantilal Dabgar vs. State of
Gujarat, (2015) 7 SCC 359 and the decision of
the Hon’ble Supreme Court in the case of Aero
Traders (P) Ltd., vs. Ravinder Kumar Suri,
(2004) 8 SCC 307 and in the case of Sumer
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Singh vs. Surajbhan, (2014) 7 SCC 323 he has
vehemently submitted that while awarding the
sentence not only the learned trial Court has
not exercised the discretion judiciously but
even has failed to appreciate and/or consider
the purpose and object of imposing adequate
sentence/punishment. Relying upon the
aforesaid decisions it is submitted that in
the aforesaid decision it is observed by the
Hon’ble Supreme Court that, “when it is said
that a matter is within the discretion of the
court it is to be exercised according to
wellestablished judicial principles,
according to reason and fair play, and not
according to whim and caprice.” It is
submitted that, in the said decision the
Hon’ble Supreme Court has observed that,
“discretion” when applied to a court of
justice, means sound discretion guided by
law. It must be governed by rule, not by
humour; it must not be arbitrary, vague and
fanciful, but legal and regular.” Shri Amin,
learned Public Prosecutor has also heavily
relied upon the decision of the Hon’ble
Supreme Court in the case of Narinder Singh
and others vs. State of Punjab and another,
(2014) 6 SCC 466 (paras 14 to 17), in support
of his submission that, when the offence
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committed by the accused is against the
society, it must be dealt with by iron hand
and a strict view should be take. It is
further submitted that in the aforesaid
decision the Hon’ble Supreme Court has
specifically observed and held that, “in
cases involving heinous crime with element of
criminality against the society and not
parties inter se, the deterrence as purpose
of punishment becomes paramount and even if
the victim or his relatives have shown the
virtue and gentility, agreeing to forgive the
culprit, compassion of that private party
would not move the court in accepting the
same as larger and more important public
policy of showing the iron hand of law to the
wrongdoers, to reduce the commission of such
offences, is more important.” It is further
submitted that in the aforesaid decision the
Hon’ble Supreme Court has further observed
that, “cases of murder, rape, or other sexual
offences, etc. would clearly fall in this
category.” Shri Amin, learned Public
Prosecutor has heavily relied upon the recent
decision of the Hon’ble Supreme Court in the
case of Prahlad and another vs. State of
Haryana, (2015) 8 SCC 688, (para 16 to 18)
more particularly para 17 and has submitted
that the Hon’ble Supreme Court in the
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aforesaid decision has specifically observed
and held that, “the offence of rape is
basically an assault on the human rights of a
victim and it is an attack on her
individuality.” It is submitted that in the
aforesaid decision it is further held that,
“sentence in support of offence of rape has
to be in consonance with the law.” It is
further submitted that in the aforesaid
decision it is further observed that, “with
regard to the gravity of the offence,
reduction of sentence indicating any
imaginary special reason would be an anathema
to the very concept of rule of law.” It is
submitted that in the aforesaid decision it
is further observed that, “perpetrator of the
crime must realise that when they indulge in
such an offence, they really create a
concavity in the dignity and bodily integrity
of an individual which is recognised, assured
and affirmed by the very essence of Article
21 of the Constitution.”
3.2 Shri Amin, learned Public Prosecutor
has then relied upon the decision of the
Hon’ble Supreme Court (Criminal Appeal
No.1887 of 2008) State of Rajasthan vs. Vinod
Kumar with (Criminal Appeal No.1888 of 2008)
State of Rajasthan vs. Heera Lal, (2012) 6
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SCC 770 in support of his submission that
while awarding the sentence below statutory
minimum the learned trial Court has not
assigned any adequate and special reasons. It
is submitted that in the aforesaid decision
the Hon’ble Supreme Court has observed that,
“while awarding punishment lesser than the
minimum prescribed under Section 376 IPC is
an exception to the general rule.” It is
further submitted that, “exception clause is
to be invoked only in the exceptional
circumstances where conditions incorporated
in the exception clause itself exist.” It is
further submitted in the aforesaid decision
it is observed and held that, “exception
clause is always required to be strictly
interpreted even if there is hardship to any
individual.” It is further submitted in the
aforesaid decision also the Hon’ble Supreme
Court has observed and held that, “punishment
should always be proportionate/commensurate
to the gravity of offence. Religion, race,
caste, economic or social status of the
accused or victim are not the relevant
factors for determining the quantum of
punishment.” It is submitted that in the
aforesaid decision it is further observed
that, “conduct and state of mind of the
accused and age of the sexually assaulted
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victim and the gravity of the criminal act
are the factors of paramount importance and
the court must exercise its direction in
imposing the punishment objectively
considering the facts and circumstances of
the case.”
3.3 It is submitted that in the present case
both the victims were aged less than 16 years
of age and the accused, who was stepfather
of one of the victim, was aged 38 years of
age. It is submitted that as such the accused
was required to act as a guardian instead he
committed the heinous crime not only for the
offence under Section 376 of the Indian Penal
Code but also under Section 377 of the Indian
Penal Code. It is submitted that therefore
the reasons assigned by the learned trial
Court while awarding the punishment/sentence
less than minimum provided under Section 376
of the Indian Penal Code that as the accused
had a responsibility to maintain his family
members and therefore, punishment/sentence
less than the minimum provided under the Act
can not be said to be germane and/or it
cannot be said that adequate reasons have
been assigned while awarding the
sentence/punishment less than the minimum
provided under Section 376 of Indian Penal
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Code.
3.4 Making the above submissions and relying
upon the above decisions it is requested to
impose maximum punishment provided for the
offence under Sections 376 and 377 of the
Indian Penal Code.
4. Present Appeal is opposed by Shri
K.K.Brahmbhatt, learned advocate appearing on
behalf of the accused. He has vehemently
submitted that in the present case one of the
victim has turned hostile and/or not
supported the case of the prosecution. It is
submitted that even the prosecution case is
not supported by any medical evidence.
However, it is required to be noted that in
the present Appeal is preferred by the State
for enhancement of the sentence and when the
accused has accepted the impugned judgment
and order of conviction and the conviction of
the accused has attained the finality, this
Court is not required to consider anything on
merits. As observed above, this Court is
required to consider whether while convicting
the accused for the offence under Sections
376, 377 and 506(2) of the Indian Penal Code
the learned trial Court is justified in
imposing the sentence which is imposed by the
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learned trial Court ?
4.1 It is submitted that in the aforesaid
facts and circumstances and when the reasons
are assigned by the learned trial Court while
awarding the sentence less than the minimum
provided under Section 376 of the Act i.e.
the accused was married and that he has a
responsibility to maintain his family members
and when the learned trial Court has
exercised the discretion which is vested in
it, it cannot be said that the learned trial
Court has committed any error. It is
submitted that it cannot be disputed that the
learned trial Court had a discretion to
impose the sentence/punishment less than the
minimum provided under Section 376 of the
Act, however while exercising such discretion
the learned trial Court was required to
assign the reasons which in the present case
while exercising the discretion the learned
trial Court has assigned the reasons.
Therefore, it is requested to dismiss the
present appeal by confirming the impugned
judgment and order of conviction and sentence
passed by the learned trial Court.
5. Heard the learned advocates for the
respective parties at length. At the outset,
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it is required to be noted that as such by
the impugned judgment and order the learned
trial Court has already convicted the
original accused for the offences under
Sections 376, 377 and 506(2) of the Indian
Penal Code. However, while convicting the
original accused for the offence under
Section 376 of the Indian Penal Code the
learned trial Court has imposed sentence of
only three and half years and fine of
Rs.1,000/ and has imposed the sentence of 03
years R.I. with fine of Rs.500/ for the
offence under Section 377 of the Indian Penal
Code and has sentenced to undergo 01 year
R.I. with fine of Rs.250/ for the offence
under Section 506(2) of the Indian Penal
Code. Thus, while convicting the accused for
the offence under Section 376 of the Indian
Penal Code the learned trial Court has
imposed the sentence which is less than the
minimum prescribed under the Code. Therefore,
the short question paused for consideration
before this Court is whether in the facts and
circumstances the learned trial Court is
justified in awarding the sentence/punishment
which is less than the minimum prescribed
under the Code ? and/or whether the sentence
imposed by the learned trial Court can be
said to be just and adequate punishment ?
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While considering the aforesaid questions
paused for consideration of this Court
following decisions of the Hon’ble Supreme
Court are required to be referred to and
consider;
5.1 In the case of State of M.P. vs. Bala
alias Balaram, (2005) 8 SCC 1, the Hon’ble
Supreme Court has observed and held that,
“rape is a heinous crime, a crime against
society, a crime against human dignity, one
that reduces a man to an animal.” It is
further observed that, “to view such an
offence once it is proved, lightly, is itself
an affront to society.” It is further
observed and held that, “though the award of
maximum punishment may depend on the
circumstances of the case, the award of the
minimum punishment, generally, is
imperative.” It is further observed that,
“the proviso to Sections 376(1) and 376(2)
IPC give the power to the court to award a
sentence lesser than the minimum for adequate
and special reasons. The power under the
proviso is not to be used indiscriminately or
routinely. It is to be used sparingly and
only in cases where special facts and
circumstances justify a reduction. The reason
must be relevant to the exercise of such
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discretion vested in the Court.” It is
further observed that, “mere existence of a
discretion by itself does not justify its
exercise. The long pendency of the criminal
trial or the offer of the rapist to marry the
victim are not relevant reasons. Nor is the
age of the offender by itself an adequate
reason.” In the aforesaid decision it is
further observed and held by the Hon’ble
Supreme Court that, “the punishment
prescribed by the Penal Code reflect the
legislative recognition of the social needs,
the gravity of the offence concerned, its
impact on the society and what the
legislature considers as a punishment
suitable for the particular offence.” While
considering its earlier decision in the case
of State of M.P. vs. Munna Choubey, (2005) 2
SCC 710, it is further observed that,
“imposition of sentence without considering
its effect on the social order in many cases
may be in reality a futile exercise.” It is
further observed that, “social impact of the
crime e.g. where it relates to offences
against women, dacoity, kidnapping,
misappropriation of public money, treason and
other offences involving moral turpitude or
moral delinquency which have great impact on
social order and public interest, cannot be
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lost sight of and per se require exemplary
treatment.” In the aforesaid decision Hon’ble
Supreme Court in para 11 to 17 has observed
and held as under :
“11. The crime here is rape. It is a particularly
heinous crime, a crime against society, a crime
against human dignity, one that reduces a man to
an animal. The penal statute has prescribed a
maximum and a minimum punishment for an offence
under Section 376 I.P.C. To view such an offence
once it is proved, lightly, is itself an affront
to society. Though the award of maximum
punishment may depend on the circumstances of the
case, the award of the minimum punishment,
generally, is imperative.The provisos to Section
376(1) and 376(2) I.P.C. give the power to the
court to award a sentence lesser than the minimum
for adequate and special reasons. The power under
the proviso is not to be used indiscriminately or
routinely. It is to be used sparingly and only in
cases where special facts and circumstances
justify a reduction. The reasons must be relevant
to the exercise of such discretion vested in the
court. The reasons must be set out clearly and
cogently. The mere existence of a discretion by
itself does not justify its exercise. The long
pendency of the criminal trial or the offer of
the rapist to marry the victim are not relevant
reasons. Nor is the age of the offender by itself
an adequate reason.
12.The punishments prescribed by the Penal Code
reflect the legislative recognition of the social
needs, the gravity of the concerned offence, its
impact on the society and what the legislature
considers as a punishment suitable for the
particular offence. It is necessary for the
courts to imbibe that legislative wisdom and to
respect it.
13. The rationale for advocating the award of a
punishment commensurate with the gravity of the
offence and its impact on society, is to ensure
that a civilized society does not revert to the
days of 'an eye for an eye and a tooth for a
tooth'. Not awarding a just punishment might
provoke the victim or its relatives to retaliate
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in kind and that is what exactly is sought to be
prevented by the criminal justice system we have
adopted.
14. Even in the time of Kautilya, the need for
awarding just punishment was recognized.
According to Kautilya, "whoever imposes severe
punishment becomes repulsive to people, while he
who awards mild punishment becomes contemptible.
The ruler just with the rod is honoured. When
deserved punishment is given, it endows the
subjects with spiritual good, material well being
and pleasures of the senses." (See Kautilyan
Jurisprudence by V.K. Gupta under the head
'Nature and Scope of punishment'). This
philosophy is woven into our statute and our
jurisprudence and it is the duty of those who
administer the law to bear this in mind.
15.This Court has on a number of occasions
indicated that the punishment must fit the crime
and that it is the duty of the court to impose a
proper punishment depending on the degree of
criminality and desirability for imposing such
punishment. In Earabhadrappa v. State of
Karnataka [(1983) 2 S.C.C. 330] this Court
observed,
"A sentence or pattern of sentence which fails
to take due account of the gravity of the
offence can seriously undermine respect for
law. It is the duty of the court to impose a
proper punishment depending upon the degree of
criminality and desirability to impose such
punishment as a measure of social necessity as
a means of deterring other potential
offenders."
In Rajendra Prasad v. State of Uttar Pradesh
[(1979) 3 S.C.C. 646] Justice Sen stated,
"Judges are entitled to hold their own views,
but it is the bounden duty of the Court to
impose a proper punishment, depending upon the
degree of criminality and the desirability to
impose such punishment as a measure of social
necessity, as a means of deterring other
potential offenders."
16.It is not necessary to multiply authorities.
In a recent decision in State of M.P. v. Munna
Choubey and Another [(2005) 2 S.C.C. 710], this
question has again been dealt with. This Court
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observed:
"15. 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, dacoity, kidnapping,
misappropriation of public money, treason and
other offences involving moral turpitude or
moral delinquency which have great impact on
social order and public interest, cannot be
lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing
meagre sentence or taking too sympathetic view
merely on account of lapse of time in respect
of such offences will be resultwise
counterproductive in the long run and against
societal interest which needs to be cared for
an strengthened by string of deterrence inbuilt
in the sentencing system."
17. It is true that reformation as a theory of
punishment is in fashion but under the guise of
applying such theory, courts cannot forget their
duty to society and to the victim. The Court has
to consider the plight of the victim in a case
involving rape and the social stigma that may
follow the victim to the grave and which in most
cases, practically ruins all prospects of a
normal life for the victim. Could a Court afford
to forget these aspects while imposing a
punishment on the aggressor? I think not. The
Court has to do justice to the society and to the
victim on the one hand and to the offender on the
other. The proper balance must be taken to have
been stuck by the legislature. Hence, the
legislative wisdom reflected by the statute has
to be respected by the Court and the permitted
departure therefrom made only for compelling and
convincing reasons.
5.2 In the case of Sumer Singh vs. Surajbhan
Singh and others, (2014) 7 SCC 323, the
Hon’ble Supreme Court had an occasion to
consider the principle of sentencing
proportionality and adequacy of sentence. In
the aforesaid decision while emphasizing the
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need for appropriate punishment in
paragraph36 the Hon’ble Supreme Court has
observed and held as under :
“36 Having discussed about the discretion,
presently we shall advert to the duty of the
court in the exercise of power while imposing
sentence for an offence. It is the duty of the
court to impose adequate sentence, for one of the
purposes of imposition of requisite sentence is
protection of the society and a legitimate
response to the collective conscience. The
paramount principle that should be the guiding
laser beam is that the punishment should be
proportionate. It is the answer of law to the
social conscience. In a way, it is an obligation
to the society which has reposed faith in the
court of law to curtail the evil. While imposing
the sentence it is the Court's accountability to
remind itself about its role and the reverence
for rule of law. It must evince the rationalized
judicial discretion and not an individual
perception or a moral propensity. But, if in the
ultimate eventuate the proper sentence is not
awarded, the fundamental grammar of sentencing is
guillotined. Law cannot tolerate it; society does
not withstand it; and sanctity of conscience
abhors it. The old saying "the law can hunt one's
past" cannot be allowed to be buried in an
indecent manner and the rainbow of mercy, for no
fathomable reason, should be allowed to rule.
True it is, it has its own room, but, in all
circumstances, it cannot be allowed to occupy the
whole accommodation. The victim, in this case,
still cries for justice. We do not think that
increase in fine amount or grant of compensation
under the Code would be a justified answer in
law. Money cannot be the oasis. It cannot assume
the centre stage for all redemption. Interference
in manifestly inadequate and unduly lenient
sentence is the justifiable warrant, for the
Court cannot close its eyes to the agony and
anguish of the victim and, eventually, to the cry
of the society. Therefore, striking the balance
we are disposed to think that the cause of
justice would be best subserved if the respondent
is sentenced to undergo rigorous imprisonment of
two years apart from the fine that has been
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imposed by the learned trial Judge.”
5.3 Again in the case of Narinder Singh and
others vs. State of Punjab and another,
(2014) 6 SCC 466, the Hon’ble Supreme Court
had an occasion to consider the sentencing
policy, the purpose/jurisprudential
justification of awarding sentence
(deterrence, retribution or rehabilitation)
visavis nature of crime. In para 14, 16 and
17 the Hon’ble Supreme Court has observed as
under :
“14. The Law prohibits certain acts and/or
conduct and treats them as offences. Any person
committing those acts is subject to penal
consequences which may be of various kind.
Mostly, punishment provided for committing
offences is either imprisonment or monetary fine
or both. Imprisonment can be rigorous or simple
in nature. Why those persons who commit offences
are subjected to such penal consequences? There
are many philosophies behind such sentencing
justifying these penal consequences. The
philosophical/jurisprudential justification can
be retribution, incapacitation, specific
deterrence, general deterrence, rehabilitation,
or restoration. Any of the above or a combination
thereof can be the goal of sentencing.
16. What follows from the discussion behind the
purpose of sentencing is that if a particular
crime is to be treated as crime against the
society and/or heinous crime, then the deterrence
theory as a rationale for punishing the offender
becomes more relevant, to be applied in such
cases. Therefore, in respect of such offences
which are treated against the society, it becomes
the duty of the State to punish the offender.
Thus, even when there is a settlement between the
offender and the victim, their will would not
prevail as in such cases the matter is in public
domain. Society demands that the individual
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offender should be punished in order to deter
other effectively as it amounts to greatest good
of the greatest number of persons in a society.
It is in this context that we have to understand
the scheme/philosophy behind Section 307 of the
Code.
19. We would like to expand this principle in
some more detail. We find, in practice and in
reality, after recording the conviction and while
awarding the sentence/punishment the Court is
generally governed by any or all or combination
of the aforesaid factors. Sometimes, it is the
deterrence theory which prevails in the minds of
the Court, particularly in those cases where the
crimes committed are heinous in nature or depicts
depravity, or lack morality. At times it is to
satisfy the element of "emotion" in law and
retribution/vengeance becomes the guiding factor.
In any case, it cannot be denied that the purpose
of punishment by law is deterrence, constrained
by considerations of justice. What, then, is the
role of mercy, forgiveness and compassion in law?
These are by no means comfortable questions and
even the answers may not be comforting. There may
be certain cases which are too obvious namely
cases involving heinous crime with element of
criminality against the society and not parties
inter se. In such cases, the deterrence as
purpose of punishment becomes paramount and even
if the victim or his relatives have shown the
virtue and gentility, agreeing to forgive the
culprit, compassion of that private party would
not move the court in accepting the same as
larger and more important public policy of
showing the iron hand of law to the wrongdoers,
to reduce the commission of such offences, is
more important. Cases of murder, rape or other
sexual offences etc. would clearly fall in this
category. After all, justice requires long term
vision. On the other hand, there may be, offences
falling in the category where "correctional"
objective of criminal law would have to be given
more weightage in contrast with "deterrence"
philosophy. Punishment, whatever else may be,
must be fair and conducive to good rather than
further evil. If in a particular case the Court
is of the opinion that the settlement between the
parties would lead to more good; better relations
between them; would prevent further occurrence of
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such encounters between the parties, it may hold
settlement to be on a better pedestal. It is a
delicate balance between the two inflicting
interests which is to be achieved by the Court
after examining all these parameters and then
deciding as to which course of action it should
take in a particular case.”
5.4 While considering the minimum sentence
provided under Section 376(2) of the IPC the
Hon’ble Supreme Court in the case of State of
Karnataka vs. Krishnappa, (2000) 4 SCC 75 in
para 12 to 16 has observed and held as
under:
“12. A perusal of the above provision shows that
the legislative mandate is 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, it may extend to life and also to
fine. The proviso to S. 376(2), I.P.C., 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 R.I. though in
exceptional cases "for special and adequate
reasons" sentence of less than 10 years R.I. 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.
Whether 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.
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13. The approach of the High Court in this case,
to say the least, was most casual and
inappropriate. There are no good reasons given by
the High Court to reduce the sentence, let alone
"special or adequate reasons." The High Court
exhibited lack of sensitivity towards the victim
of rape and the society by reducing the
substantive sentence in the established facts and
circumstances of the case. The Courts are
expected to properly operate the sentencing
system and to impose such sentence for a proved
offence, which may serve as a deterrent for the
commission of like offences by others.
14. In State of A.P. v. Bodem Sundara Rao, (1995)
6 SCC 230 : (1995 AIR SCW 4435 : AIR 1996 SC
530), while dealing with a case of reduction of
sentence from 10 years R.I. to 4 years R.I. by
the High Court in the case of rape of a girl aged
between 13 and 14 years, it was observed (para 9
of AIR) :
"9. In recent years, we have noticed that
crime against women are on the rise. These
crimes are an affront to the human dignity of
the society. Imposition of grossly inadequate
sentence and particularly against the mandate
of the legislature not only is an injustice to
the victim of the crime in particular and the
society as a whole in general but also at times
encourages a criminal. The Courts have an
obligation while awarding punishment to impose
appropriate punishment so as to respond to the
society's cry 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. The heinous
crime of committing rape on a helpless 13/14
years old girl shakes our judicial conscience.
The offence was inhumane." (Emphasis supplied)
The sentence as accordingly enhanced to 7 years
R.I. in the said case.
15. Sexual violence apart from being a
dehumanising act is an unlawful intrusion of the
right to privacy and sanctity of a female. It is
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a serious blow to her supreme honour and offends
herselfesteem and dignity it degrades and
humilitates the victim and where the victim is a
helpless innocent child, it leaves behind a
traumatic experience. The Courts are, therefore,
expected to deal with cases of sexual crime
against women with utmost sensitivity. Such cases
need to be dealt with sternly and severely.
Dealing with the offence of rape and its
traumatic effect on a rape victim, this Court in
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384
: (1996 AIR SCW 998 : AIR 1996 SC 1393 : 1996 cri
LJ 1728) observed (para 20 of AIR) :
"21. Of late, crime against women in general
and rape in particular is on the increase. It
is an irony that while we are celebrating
woman's rights in all spheres, we show little
or no concern for her honour. It is a sad
reflection on the attitude of indifference of
the society towards the violation of human
dignity of the victims of sex crimes. 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 body
of his victim, a rapist degrades the very soul
of the helpless female. The Courts, therefore,
shoulder a greater responsibility while trying
an accused on charges of rape. They must deal
with such cases with utmost sensitivity."
16. A socially sensitized judge, in our opinion,
is a better statutory armour in cases of crime
against women than long clauses of penal
provisions, containing complex exceptions and
provisos.”
5.5 While considering the discretion vested
in the court while awarding the sentence less
than the minimum provided under Section 376
of the IPC and the direction on the judges to
levy the appropriate sentence the Hon’ble
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Supreme Court in the case of Shimbhu and
another vs. State of Haryana, (2014) 13 SCC
318, has observed in para 11, 19 and 22 as
under :
“11. The crucial stage in every criminal
proceeding is the stage of sentencing. It is the
most complex and difficult stage in the judicial
process. The Indian legal system confers ample
discretion on the Judges to levy the appropriate
sentence. However, this discretion is not
unfettered in nature rather various factors like
the nature, gravity, the manner and the
circumstances of the commission of the offence,
the personality of the accused, character,
aggravating as well as mitigating circumstances,
antecedents etc., cumulatively constitute as the
yardsticks for the Judges to decide on the
sentence to be imposed. Indisputably, the
sentencing Courts shall consider all relevant
facts and circumstances bearing on the question
of sentence and impose a sentence commensurate
with the crime committed.
19. Thus, the law on the issue can be summarized
to the effect that punishment should always be
proportionate/commensurate to the gravity of
offence. Religion, race, caste, economic or
social status of the accused or victim or the
long pendency of the criminal trial or offer of
the rapist to marry the victim or the victim is
married and settled in life cannot be construed
as special factors for reducing the sentence
prescribed by the statute. The power under the
proviso should not be used indiscriminately in a
routine, casual and cavalier manner for the
reason that an exception clause requires strict
interpretation.
22. This is yet another opportunity to inform the
subordinate Courts and the High Courts that
despite stringent provisions for rape under
Section 376, IPC, many Courts in the past have
taken a softer view while awarding sentence for
such a heinous crime. This Court has in the past
noticed that few subordinate and High Courts have
reduced the sentence of the accused to the period
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already undergone to suffice as the punishment,
by taking aid of the proviso to Section 376(2),
IPC. The above trend exhibits stark insensitivity
to the need for proportionate punishments to be
imposed in such cases.”
5.6 In the recent decision in the case of
Satish Kumar Jayantilal Dabgur vs. State of
Gujarat, (2015) 7 SCC 359, in a case where
the accused was convicted for the offence
under Section 376 of the IPC having committed
a rape of a minor girl the Hon’ble Supreme
Court has emphasized awarding appropriate
punishment regarding such a crime as a
heinous crime. It is further observed by the
Hon’ble Supreme Court in the case that such
an act of sexual assault has to be abhorrent.
In the aforesaid decision the Hon’ble Supreme
Court also considered para33 to 36 of its
earlier decision in the case of Sumer Singh
vs. Surajbhan, (2014) 7 SCC 323 and
thereafter in para19 has observed as
under :
“19. Merely because the appellant has now
married, hardly becomes a mitigating
circumstances. Likewise, the appellant cannot
plead that the prosecutrix is also married and
having a child and, therefore, the appellant
should be leniently treated.”
5.7 In the case of Prahlad and another vs.
State of Haryana, (2015) 8 SCC 688, the
Hon’ble Supreme Court has again observed that
the sentence in respect of offence of rape
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has to be in consonance with the law. It is
further observed that concept of special
reasons as engrafted in Section 376 of the
IPC is not to be invoked for the asking. In
the aforesaid decision while considering the
impact of the offence of rape on the society
at a large the Hon’ble Supreme Court in para
17 has observed as under :
“17. It has to be borne in mind that an offence
of rape is basically an assault on the human
rights of a victim. It is an attack on her
individuality. It creates an incurable dent in
her right and free will and personal sovereignty
over the physical frame. Everyone in any
civilised society has to show respect for the
other individual and no individual has any right
to invade on physical frame of another in any
manner. It is not only an offence but such an act
creates a scar in the marrows of the mind of the
victim. Anyone who indulges in a crime of such
nature not only does he violate the penal
provision of the IPC but also right of equality,
right of individual identity and in the ultimate
eventuality an important aspect of rule of law
which is a constitutional commitment. The
Constitution of India, an organic document,
confers rights. It does not condescend or confer
any allowance or grant. It recognises rights and
the rights are strongly entrenched in the
constitutional framework, its ethos and
philosophy, subject to certain limitation.
Dignity of every citizen flows from the
fundamental precepts of the equality clause
engrafted under Articles 14 and right to life
under Article 21 of the Constitution, for they
are the “fons juris” of our Constitution. The
said rights are constitutionally secured.”
It is further observed by the Hon’ble
Supreme Court in the said decision that
therefore, regard being had to gravity of
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offence, reduction of sentence, indicating
any imaginary special reason, would be an
anathema to very concept of rule of law. It
is observed that, perpetrators of the crime
must realize, that when they indulge in such
offence, they really create a concavity in
dignity and bodily integrity of an
individual, which is recognised, assured and
affirmed by very essence of Article 21 of the
Constitution.
6. Applying the law laid down by the Hon’ble
Supreme Court in the aforestated decisions to
the facts of the case on hand awarding the
sentence of only three and half years for the
offence under Section 376 of the IPC by no
stretch of imagination it can be said to be
imposing adequate punishment commensurate
with the gravity of the offence. It is
required to be noted that in the present case
at the time of commission of offence the
accused was aged 38 years of age and both the
victim/prosecutrix were less than 16 years of
age, out of which one victim/prosecutrix was
the stepdaughter i.e. accused was the step
father. Even one of the victim/prosecutrix
and her mother was helpless lady as she was a
divorcee was constrained to become hostile.
As observed above the accused has also
convicted offence under Sections 376, 377 and
506(2) of the IPC.
6.1 The only reason given by the learned
trial Court while imposing the punishment
lesser than the minimum provided under
Section 376 of the IPC is that the accused is
a poor and has a responsibility to maintain
his wife and children. The aforesaid can
hardly be said to be a cogent reason and/or
special circumstances/case while awarding the
punishment less than the minimum provided
under Section 376 of the IPC. As observed by
the Hon’ble Supreme Court in the catena of
decisions and as observed hereinabove the
offence of rape is a heinous crime not only
against the individual but also against the
society at large. The offences against the
woman more particularly under Section 376 of
the IPC are increasing. Therefore a massage
must go to the society that if such an
offence is committed it shall be dealt with
ironhand and strictly and that no leniency
shall be shown. Thus, in the present appeal
the learned trial Court has not exercised the
discretion judiciously and it can be said
that the learned trial Court has failed to
perform its duty as a Judge while awarding
appropriate and adequate punishment to an
offender who is convicted for the offence
under Sections 376, 377 and 506(2) of the
Indian Penal Code.
7. In view of the above and for the reasons
stated above, the present appeal succeeds.
The impugned judgment and order passed by the
learned Additional Sessions Judge, Court
No.13, Ahmedabad, in Sessions Case No.122 of
2009 is hereby quashed and set aside insofar
as awarding of sentence for the offence under
Sections 376 and 377 of the Indian Penal Code
is concerned. While convicting the accused
for the offence under Section 376 of the
Indian Penal Code the accused is sentenced to
undergo 10 (ten) years R.I. with fine of
Rs.10,000/ and in default of payment of fine
to undergo further 06 (six) months R.I. and
he is also sentenced to undergo 07 (seven)
years R.I. for the offence under Section 377
of the Indian Penal Code and fine of Rs.500/
and in default of payment of fine to undergo
further R.I. for 02 (two) months and sentence
imposed by the learned trial Court while
convicting the original accused for the
offence under Section 506(2) of the Indian
Penal Code is hereby maintained. All the
sentences to run concurrently. The accused to
surrender before the jail authority to
undergo the remaining sentence as per the
present judgment and order within a period of
04 (four) weeks from today, failing which
nonbailable warrant be issued against him to
undergo the remaining sentence. Present
Appeal is allowed to the aforesaid extent.
(M.R.SHAH, J.)
(Z.K.SAIYED, J.)
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