Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1439 OF 2012
(@SPECIAL LEAVE PETITION (CRL.)NO.4235 OF 2011)
PUSHPANJALI SAHU APPELLANT
VERSUS
STATE OF ORISSA & ANR. RESPONDENTS
O R D E R
1.Leave granted.
2.This appeal is directed against the judgment
and order passed by the High Court of
Judicature of Orissa at Cuttack in Criminal
Revision No.676 of 1999, dated 28.09.2010.
By the impugned judgment and order, the High
Court, while confirming the order passed by
the learned Sessions Judge, Keonjhar, Orissa
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in Criminal Appeal No.59 of 1995, has
modified the sentence awarded to the accused
to the period already undergone by him. It
is this portion of the order which is taken
exception to by the complainant in this
appeal. The only issue that arises for our
consideration and decision in this appeal
is: whether the High Court was justified in
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altering/modifying the quantum of sentence
awarded by the learned Trial Judge and
confirmed by the Sessions Court.
3.The complainant was employed as a Matron in
a Government Women's College Hostel. The
accused was a chowkidar/night watchman in
that hostel. The offence that was alleged
against the appellant was that he committed
an offence of rape under Section 376 of the
Indian Penal Code on the complainant. The
prosecution had led its evidence. The Trial
Court, after analysing the evidence on
record, concluded that the prosecution has
proved its case and accordingly, convicted
the accused and awarded the sentence
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directing the accused to undergo
imprisonment for a period of 7 years.
4.Being aggrieved by the aforesaid order
passed by the Trial Court, the accused had
filed an appeal before the learned Sessions
Judge, Keonjhar, Orissa. The appellate
court, after considering the entire evidence
on record has confirmed the order passed by
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the Trial Court.
5.The accused, being aggrieved by the
aforesaid two orders, had filed a Revision
Petition before the High Court. The High
Court once again has considered the entire
issue in detail and thereafter has come to
the conclusion that the Trial Court was
justified in coming to the conclusion that
the accused has committed the offence of
rape against the matron of the hostel.
However, taking a lenient view of the
matter, has reduced the sentence awarded by
the Trial Court from 7 years to the period
already undergone by the accused i.e. about
a year.
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6.We had issued notice against the accused
confining to the issue regarding the
sentence. The accused could not be served
through the regular process. Therefore, we
had issued non-bailable warrants against the
accused to secure his presence. The police
authorities have secured the presence of the
accused and he is present before us today.
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7.We have heard learned counsel for the
appellant, the State and also for the
accused person and have also looked into the
provisions of Section 376 of the Indian
Penal Code, 1860. The said provision reads
as under :
“376. Punishment for rape.—(1) Whoever,
except in the cases provided for by sub-
section (2), commits rape shall be
punished with imprisonment of either
description for a term which shall not
be less than seven years but which may
be for life or for a term which may
extend to ten years and shall also be
liable to fine unless the woman raped is
his own wife and is not under twelve
years of age, in which cases, he shall
be punished with imprisonment of either
description for a term which may extend
to two years or with fine or with both:
Provided that the court may, for
adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment for a term of
less than seven years.
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(2) Whoever: -
(a) Being a police officer commits rape-
(i) Within the limits of the police
station to which he is appointed; or
(ii) In the premises of any station
house whether or not situated in the
police station to which he is appointed;
or
(iii) On a woman is his custody or in
the custody of a police officer
subordinate to him; or
(b) Being a public servant, takes
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advantage of his official position and
commits rape on a woman in his custody
as such public servant or in the custody
of a public servant subordinate to him;
or
(c) Being on the management or on the
staff of a jail, remand home or other
place of custody established by or under
any law for the time being in force or
of a woman's or children's institution
takes advantage of his official position
and commits rape on any inmate of such
jail, remand home, place or institution;
or
(d) Being on the management or on the
staff of a hospital, takes advantage of
his official position and commits rape
on a woman in that hospital; or
(e) Commits rape on a woman knowing her
to be pregnant; or
(f) Commits rape when she is under
twelve years of age; or
(g) Commits gang rape,
Shall be punished with rigorous
imprisonment for a term which shall not be
less than ten years but which may be for
life and shall also be liable to fine:
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Provided that the court may, for
adequate and special reasons to be
mentioned in the judgment, impose a
sentence of imprisonment of either
description for a term of less than ten
years.
Explanation 1
Where a woman is raped by one or more in
a group of persons acting in furtherance
of their common intention, each of the
persons shall be deemed to have
committed gang rape within the meaning
of this sub-section.
Explanation 2
"Women's or children's institution
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"means an institution, whether called an
orphanage or home for neglected women or
children or a widows' home or by any
other name, which is established and
maintained for the reception and care of
women or children.
Explanation: 3
"Hospital" means the precincts of the
hospital and includes the precincts of
any institution for the reception and
treatment of persons during
convalescence or of persons requiring
medical attention or rehabilitation].”
8. A reading of the above provisions would
clearly indicate that if a person is convicted
under Section 376 of the I.P.C., the Court can
award imprisonment for not less than 7 years
which may also extend for life. The provision
also makes it abundantly clear that, if for
any reason, the sentence has to be reduced,
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the Court ought to give appropriate reasons.
9. In the instant case, we have gone through
the judgment of the High Court reducing the
sentence from 7 years to the period already
undergone. We are not convinced with the
reasons assigned by the High Court.
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10. This Court in State of Madhya Pradesh v.
Pappu, (2008) 16 SCC 758, considered the
similar question of validity and justifiability
of reduction of sentence, awarded by the Trial
Court to the accused convicted under Section
376(1) read with Section 511 of the Indian
Penal Code, 1860 (in short “IPC”) and Sections
324 and 452 IPC, by the High Court. This Court
relying upon its earlier observations in State
of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13 and
State of M.P. v. Babbu Barkare, (2005) 5 SCC
413 observed that undue sympathy towards the
accused by imposition of inadequate sentence
would do more harm to the justice system by
undermining the confidence of society in the
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efficacy of law and society could not long
endure under such serious threats. The Courts
therefore are duty bound to award proper
sentence having regard to the nature and manner
of execution or commission of the offence. This
Court, highlighted the dangers of imposition of
sentence without due regard to its effects on
the social order and opined as follows:
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“9. “17. 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
sentences or taking too sympathetic a 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 and strengthened by
a string of deterrence inbuilt in the
sentencing system.
19. … 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 society's cry for justice
against the criminal’. If for the
extremely heinous crime of murder
perpetrated in a very brutal manner
without any provocation, most deterrent
punishment is not given, the case of
deterrent punishment will lose its
relevance.””
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11. This Court in State of Madhya Pradesh v.
Sheikh Shahid, (2009) 12 SCC 715, relying upon
its earlier judgment in State of M.P. v. Munna
Choubey, (2005) 2 SCC 710 has recorded its
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observations on the yardstick of determining
sentence as the nature and gravity of the
offence and has cautioned against placing
reliance upon reasons such as accused being
from a rural background or length of time.
8.
“6… “8. The physical scar may heal up, but
the mental scar will always remain. When a
woman is ravished, what is inflicted is not
merely physical injury but a deep sense of
some deathless shame.
9. 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 cornerstone 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 the
sentencing process should be stern where
it should be, and tempered with mercy
where it warrants to be. The facts and
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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. For instance a murder
committed due to deep-seated mutual and
personal rivalry may not call for penalty
of death. But an organised crime or mass
murders of innocent people would call for
imposition of death sentence as
deterrence. In Mahesh v. State of M.P.
this Court while refusing to reduce the
death sentence observed thus: (SCC p. 82,
para 6)
‘6. ... it will be a mockery of
justice to permit these appellant-
accused
to escape the extreme penalty of
law when faced with such evidence
and such cruel acts. To give the
lesser punishment for the appellant-
accused would be to render the
justicing system of this country
suspect. The common man will lose
faith in courts. In such cases, he
understands and appreciates the
language of deterrence more than the
reformative jargon.’
10. 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 v. State of
T.N.
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11. 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 deserts as the basis
of punishment and create cases of
apparent injustice that are serious and
widespread.
12. 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. … 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 considerations that make punishment
unjustifiable when it is out of
proportion to the crime, uniformly
disproportionate punishment has some very
undesirable practical consequences.
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13. After giving due consideration to the
facts and circumstances of each case, for
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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 McGautha v. California
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.
14. In Jashubha Bharatsinh Gohil v. State
of Gujarat it has been held by this Court
that in the matter of death sentence, the
courts are required to answer new
challenges and mould the sentencing
system to meet these challenges. The
object should be to protect the society
and to deter the criminal from 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. Even though
the principles were indicated in the
background of death sentence and life
sentence, the logic applies to all cases
where appropriate sentence is the issue.
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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
sentences or taking too sympathetic a
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 and strengthened by
string of deterrence inbuilt in the
sentencing system.
16. In Dhananjoy Chatterjee v. State of
W.B. this Court has observed that a
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.
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17. Similar view has also been expressed
in Ravji v. State of Rajasthan. It has
been held in the said case that it is the
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nature and gravity of the crime and 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 society's cry for
justice against the criminal’. If for an
extremely heinous crime of murder
perpetrated in a very brutal manner
without any provocation, the most
deterrent punishment is not given, the
case of deterrent punishment will lose
its relevance.”
12. Learned counsel for the accused has taken
us through the reasons assigned by the High
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Court. The case on hand, in our considered
opinion, does not fall within the category of
exceptional cases and as we have already
observed, we are not convinced with the reasons
assigned by the High Court for reducing the
sentence. In this view of the matter, while
allowing this appeal, we set aside that portion
of the order passed by the High Court reducing
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the period of sentence from 7 years to the
period already undergone by the accused. We now
direct that the accused be convicted and
sentenced for a period of 7 years. It is
needless to mention that the period already
undergone by the accused shall be set off.
13. Before parting, we wish to reflect upon the
dehumanizing act of physical violence on women
escalating in the society. Sexual violence is
not only an unlawful invasion of the right of
privacy and sanctity of a woman but also a
serious blow to her honour. It leaves a
traumatic and humiliating impression on her
conscience— offending her self-esteem and
dignity. This Court in State of H.P. v. Shree
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Kant Shekari, (2004) 8 SCC 153 has viewed rape
as not only a crime against the person of a
woman, but a crime against the entire society.
It indelibly leaves a scar on the most
cherished possession of a woman i.e. her
dignity, honour, reputation and not the least
her chastity. It destroys, as noted by this
Court in Bodhisattwa Gautam v. Subhra
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Chakraborty,(1996) 1 SCC 490 the entire
psychology of a woman and pushes her into deep
emotional crisis. It is a crime against basic
human rights, and is also violative of the
victim's most cherished of the fundamental
rights, namely, the right to life contained in
Article 21 of the Constitution. 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.
14. In the light of the above discussion, we
allow this appeal. The impugned order is set
aside. We restore the order passed by the
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Trial Court.
Ordered accordingly.
.......................J.
(H.L. DATTU)
.......................J.
(CHANDRAMAULI KR. PRASAD)
NEW DELHI;
SEPTEMBER 18, 2012
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