RAVINDER SINGH vs. STATE

1 Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 1031 of 2023 (@ Special Leave Petition (Crl.) No. 1214 of 2018) Ravinder Singh ... Appellant (s) Versus The State Govt. of NCT of Delhi. ... Respondent (s) J U D G M E N T Sanjay Kumar, J 1. Convicted and sentenced for the dastardly and most depraved of offences – the rape of his own 9-year-old daughter, the appellant is before this Court. 2 2. By judgment dated 18.02.2013 in Sessions Case No. 01 of 2013, the learned Additional Sessions Judge (Special Fast Track Court), Dwarka Courts, New Delhi, held the appellant guilty under Sections 376, 377 and 506 IPC. By order of sentence dated 23.02.2013, the appellant was imposed with imprisonment for life under Section 376 IPC and payment of fine of ₹25,000/-; imprisonment for life under Section 377 IPC and payment of fine of ₹25,000/-; and rigorous imprisonment for 2 years under Section 506 IPC along with payment of fine of ₹10,000/-. Default in payment of fines entailed further periods of imprisonment. In addition thereto, the learned Additional Sessions Judge directed that the appellant should not be given any clemency by the State before he spent at least 20 years in jail. In appeal, a Division Bench of the Delhi High Court upheld the appellant’s conviction and sentence, vide judgment dated 01.09.2017 in Criminal Appeal No. 1509 of 2014. Hence, this appeal by special leave under Article 136 of the Constitution. 3. By order dated 19.03.2018, this Court issued notice to the State only on the question of sentence. 4. Heard Mr. Sudhir Naagar, learned counsel for the appellant; and Ms. Sonia Mathur, learned senior counsel, appearing for the State. 3 5. As the scope of this appeal has been restricted to the sentence imposed upon the appellant, we need not dilate on or deal with the issues raised vis-à-vis the merits of his conviction for the offences under Sections 376, 377 and 506 IPC. 6. Section 376(2) IPC, prior to its amendment with retrospective effect from 03.02.2013 by the Criminal Law (Amendment) Act, 2013, consisted of clauses (a) to (g). Section 376(2)(f), as it stood then, provided that whoever commits rape on a woman when she is under 12 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. Section 377 IPC states that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine. It was in exercise of power under Sections 376(2)(f) and 377 IPC that the learned Additional Sessions Judge sentenced the appellant to life imprisonment, as the victim was merely 9 years of age and was also subjected to carnal intercourse against the order of nature. He, however, added the rider that the appellant should not be given clemency by the 4 State until he spent at least 20 years in jail. In effect, the appellant was sentenced to life imprisonment of a minimum term of 20 years. 7. Imprisonment for life, in terms of Section 53 IPC read with Section 45 IPC, means imprisonment for the rest of the life of the prisoner, subject to the right to claim remission, etc., as provided under Articles 72 and 161 of the Constitution and under Section 432 Cr.P.C. In Gopal 1 Vinayak Godse Vs. State of Maharashtra , this Court held that a sentence of imprisonment for life must, prima facie, be treated as imprisonment for the whole of the remaining period of the convicted 2 person’s natural life. In Maru Ram Vs. Union of India , a Constitution Bench endorsed this view and affirmed that a life sentence is nothing less than life-long imprisonment and would last until the last breath. Again, in 3 Union of India Vs. V. Sriharan alias Murugan and others , another Constitution Bench reiterated that imprisonment for life means imprisonment for the rest of the life of the convict. 8. However, in actual practice, one finds that a sentence of life imprisonment works out only to a term of 14 years, in terms of Section 433 1 AIR 1961 SC 600 2 (1981) 1 SCC 107 3 (2016) 7 SCC 1 5 Cr.P.C., and may prove to be grossly inadequate to the gravity of the offence for which the convict had been so sentenced. In Swamy 4 Shraddananda Vs. State of Karnataka , this Court noted that the days of remission earned by a prisoner are added to the period of his actual imprisonment to make up the term of the sentence and the question that then arises is how such remission can be applied to life imprisonment, as the way in which remission is allowed can only apply to a fixed term of imprisonment and life imprisonment, being for the rest of the life, is indeterminate by nature. It was observed that, in the States of Karnataka and Bihar, remission is granted to life convicts by ‘deemed’ conversion of life imprisonment into a fixed term of 20 years by executive orders issued by the State Government, flying in the face of a long line of decisions by this Court, and no provision of law exists sanctioning such a course. It was pointed out that life convicts are granted remission and released from prison upon completing a 14-year-term, without any sound legal basis, and one can safely assume that the position would be no better in other States. This Court, therefore, took judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any 4 (2008) 13 SCC 767 6 sociological or psychiatric appraisal of the convict and without proper assessment as to the effect of an early release of a particular convict on the society. This Court also noted that grant of remission is the rule and remission is denied, one may say, in the rarest of rare cases. Faced with this conundrum, while commuting a death sentence to life imprisonment in that case, this Court pondered over what should be done in such a situation. It was observed that, if the option is limited only to two punishments - one, being a sentence of life imprisonment, for all intents and purposes, of not more than 14 years, and the other, death, the Court may feel tempted and find itself nudged into endorsing the death penalty and such a course would indeed be disastrous. It was therefore held that a far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court, i.e., the vast hiatus between 14 years’ imprisonment and death, and substitute a death sentence by life imprisonment or by a term in excess of 14 years and, further, to direct that the convict must not be released from prison for the rest of his life or for the actual term as specified in the order, as the case may be. It was emphasized that the Court would take recourse 7 to this expanded option primarily because, in the facts of the case, the sentence of 14 years’ imprisonment would amount to no punishment at all. 9. Affirming the view taken in Swamy Shraddananda (supra) , the majority opinion in V. Sriharan (supra) observed that it could be said without any scope for controversy that, when by way of a judicial decision after a detailed analysis, having regard to the proportionality of the crime committed, it is decided that the offender deserves to be punished with the sentence of life imprisonment, i.e., till the end of his life or for a specific period of 20 years or 30 years or 40 years, such a conclusion should survive without any interruption. It was, therefore, held that in order to ensure that the punishment imposed, which is legally provided for in the Penal Code read along with Criminal Procedure Code, operates without any interruption, the inherent power of the Court concerned should empower the Court, in public interest as well as in the interest of the society at large, to make it certain that such punishment will operate, as imposed, by stating that no remission or other liberal approach should come into effect to nullify such imposition. It was further observed that no prohibition is prescribed in the Penal Code, or for that matter any of the provisions where death penalty or life imprisonment is provided for, that 8 imprisonment cannot be imposed for a specific period within the said life span and, when life imprisonment means the whole life span of the person convicted, it cannot be said that the Court which is empowered to impose the said punishment cannot specify the period up to which the said sentence of life should remain, befitting the nature of the crime committed. The majority opinion, therefore, concluded by stating that the ratio laid down in Swamy Shraddananda ( supra ), that a special category of sentence, instead of death, can be substituted by the punishment of imprisonment for life or for a term exceeding 14 years and that category can be put beyond application of remission, is well founded. It was further held that the power to impose a modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal, by the Supreme Court, and not by any other Court in the country. 10. In the light of this settled legal position, it was clearly not within the domain of the learned Additional Sessions Judge to impose a restriction that the term of the appellant’s life imprisonment should be for at least 20 years and that he should not be given any clemency till then. Such power could only be exercised by the High Courts or by this Court. 9 No doubt, the Delhi High Court confirmed the sentence passed by the learned Additional Sessions Judge but mere affirmation of the hollow exercise of a power, that was not conferred, by the learned Additional Sessions Judge does not qualify as an independent exercise by the High Court and would not suffice in terms of the legal requirement. It is only the High Courts or this Court that would have the power, upon proper application of mind, to take recourse to special category sentencing, depending upon the nature of the offence and its gravity. To that extent, the sentence imposed by the learned Additional Sessions Judge was, therefore, without legal basis. 11. That being said, the fact still remains that the appellant was held guilty of the most heinous of offences, viz., the rape of his own little daughter. The trust and faith that a young girl would repose in her father and the sanctity of the very relationship were destroyed by his debauched and devastating acts. In such a situation, allowing him the freedom to seek liberal remissions, so as to cut short his life imprisonment, would be nothing short of a travesty of justice. Significantly, Section 376 IPC was amended with retrospective effect from 03.02.2013. The amended provision now reads very differently. Section 376(2) IPC has 10 been enlarged and presently comprises clauses (a) to (n). The new Section 376(2)(f) states that whoever, being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman, shall be punished with rigorous imprisonment for a term which shall not be less than 10 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. Further, Section 376(3) has been inserted in the statute book and it provides that whoever commits rape on a woman under 16 years of age shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. It may also be noted that the new Sections 376A, 376D and 376E, brought into the statute book by the Criminal Law (Amendment) Act, 2013, and the new Sections 376AB, 376DA and 376DB inserted therein by the Criminal Law (Amendment) Act, 2018, provide for the enlarged punishment of life imprisonment for the remainder of the convict’s natural life. 11 12. In the case on hand, the new Sections 376(2)(f) and 376(3) IPC would have had application had the offence been committed after 03.02.2013. However, as it is an admitted fact that the child was raped by her father during the month of August, 2012, these amended provisions would have no role to play. Article 20(1) of the Constitution of India would come to the undeserving rescue of the appellant, as it provides that no person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence. Suffice it to state, at this stage, that this Court is mindful of the fact that the lawmakers deemed it fit and appropriate to provide for more stringent punishment for the offence of rape in certain circumstances and made it clear that when imprisonment for life is imposed upon the perpetrator of the offence in those situations, such a perpetrator would be liable to remain in prison for the remainder of his natural life. 13. Notably, the law laid down in Swamy Shraddananda ( supra ) and V. Sriharan (supra), with regard to special category sentencing, was in the context of cases where death sentence had been imposed and the same was commuted to imprisonment for life. The question would then arise as to whether the power of the High Courts and this Court to impose 12 a modified punishment, specifying the term of life imprisonment in excess of 14 years, can be exercised even in cases where the death sentence is not imposed. Reference may be made to Gouri Shankar Vs. State of 5 Punjab , wherein the Trial Court passed a sentence of life imprisonment, directing that it shall be for the remainder of the convict’s natural life. Noting that such a direction could not be passed by the Trial Court, this Court considered it fit to order that the sentence of imprisonment for life in that case should mean till the remainder of the natural life of the convict. Pertinent to note, this was not a case where death sentence was imposed and thereafter commuted to life imprisonment, as was the case in Swamy Shraddananda ( supra ) and V. Sriharan ( supra ). On similar lines, in 6 Shiva Kumar @ Shiva @ Shivamurthy Vs. State of Karnataka , this Court was considering a case involving Section 302 IPC, where the Trial Court had sentenced the appellant to undergo rigorous imprisonment for the rest of his life. While noting that the power to impose a modified punishment providing for a specific term of incarceration or till the end of the convict’s life, as an alternate to death penalty, can be exercised only 5 (2021) 3 SCC 380 6 Criminal Appeal No. 942 of 2023, decided on 28.03.2023 = 2023 SCC OnLine SC 345 13 by the High Courts and the Supreme Court and not by any other Court, in terms of the law laid down in V. Sriharan ( supra ), this Court observed: “12. In a given case, while passing an order of conviction for an offence which is punishable with death penalty, the Trial Court may come to a conclusion that the case is not a ‘rarest of the rare’ case. In such a situation, depending upon the punishment prescribed for the offence committed, the Trial Court can impose other punishment specifically provided in Section 53 of the IPC. However, when a Constitutional Court finds that though a case is not falling in the category of ‘rarest of the rare’ case, considering the gravity and nature of the offence and all other relevant factors, it can always impose a fixed-term sentence so that the benefit of statutory remission, etc. is not available to the accused. The majority view in the case of V. Sriharan cannot be construed to mean that such a power cannot be exercised by the Constitutional Courts unless the question is of commuting the death sentence. This conclusion is well supported by what the Constitution Bench held in paragraph 104 of its decision, which reads thus: “104. That apart, in most of such cases where death penalty or life imprisonment is the punishment imposed by the trial court and confirmed by the Division Bench of the High Court, the convict concerned will get an opportunity to get such verdict tested by filing further appeal by way of special leave to this Court. By way of abundant caution and as per the prescribed law of the Code and the criminal jurisprudence, we can assert that after the initial finding of guilt of such specified grave offences and the imposition of penalty either death or life imprisonment, when comes under the scrutiny of the Division Bench of the High Court, it is only the High Court which derives the power under the Penal Code, which prescribes the capital and alternate punishment, to alter the said punishment with one either for the entirety of the convict's life or for any specific period of more than 14 years, say 20, 30 or so on depending upon the gravity of the crime committed and the exercise of judicial conscience 14 befitting such offence found proved to have been committed.” 13. Hence, we have no manner of doubt that even in a case where capital punishment is not imposed or is not proposed, the Constitutional Courts can always exercise the power of imposing a modified or fixed-term sentence by directing that a life sentence, as contemplated by “secondly” in Section 53 of the IPC, shall be of a fixed period of more than fourteen years, for example, of twenty years, thirty years and so on. The fixed punishment cannot be for a period less than 14 years in view of the mandate of Section 433A of Cr.P.C.” Holding so, this Court modified the sentence passed by the Trial Court and directed that the appellant should undergo imprisonment for life and should not be released till he completed 30 years of actual sentence. 14. Significantly, both Gouri Shankar (supra) and Shiva Kumar (supra) were cases wherein the Trial Court could have imposed a death sentence had the circumstances warranted it, as those cases arose under Section 302 IPC. The question would then arise as to whether the power to pass a modified sentence of life imprisonment would be available to the High Courts and this Court even in cases where the law does not prescribe the death sentence as one of the punishments and limits the maximum punishment to imprisonment for life with nothing further, as in the case on hand. In this context, we may note that the observations made 15 in Swamy Shraddananda (supra) and V. Sriharan (supra) clearly indicate the existence of such power, though the Court stopped short of declaring so and linked the special category sentences passed in those cases to substitution for a death sentence. As pointed out in Swamy Shraddananda (supra) , the Court would take recourse to the expanded option primarily because the life sentence of 14 years imprisonment may amount to no imprisonment at all in a given case. This observation is wide enough to take within its ambit all sentences of life imprisonment. Similarly, in V. Sriharan (supra) , the majority opinion noted that there is no prohibition in the Penal Code, where death penalty or life imprisonment is provided for, that imprisonment cannot be imposed for a specified period within the said life span and when life imprisonment means the whole life span of the convict, the Court which is empowered to impose the said punishment would also have the power to specify the period up to which the said sentence of life should remain, befitting the nature of crime. Again, this edict would hold good for all sentences of life imprisonment. No doubt, the majority opinion also linked it to capital punishment, by observing that such special category of sentences could be substituted for death. More recently, in Shiva Kumar (supra) , this Court affirmed that even in a case 16 where capital punishment is not ‘proposed’, Constitutional Courts would have the power to impose a modified or fixed-term sentence. 15. The above observations manifest the applicability of the same principle in cases where the maximum punishment prescribed by law is imprisonment for life with nothing further. Even in such cases, it would be a parody of justice to allow the convicts so sentenced to avail the benefit of remissions and the like, liberally conferred by the State, and cut short the length of their life sentence to a mere 14 years. We are, therefore, of the considered opinion that the law laid down in Swamy Shraddananda (supra) and V. Sriharan (supra) with regard to special category sentencing to life imprisonment in excess of 14 years by fixing a lengthier term would be available to the High Courts and this Court, even in cases where the maximum punishment, permissible in law and duly imposed, is life imprisonment with nothing further. We must, however, hasten to add that exercise of such power must be restricted to grave cases, where allowing the convict sentenced to life imprisonment to seek release after a 14-year-term would tantamount to trivializing the very punishment imposed on such convict. Needless to state, cogent reasons have to be recorded 17 for exercising such power on the facts of a given case and such power must not be exercised casually or for the mere asking. 16. In the case on hand, the appellant was found guilty of one of the most monstrous and horrific of offences, viz, the physical violation of his own daughter, who was not even in the first flush of youth. In the event he secures release after putting in just 14 years in jail, his possible re-entry into his daughter’s life, while she is still in her twenties, may cause her further trauma and make her life difficult. His incarceration for a sufficiently long period would not only ensure that he receives his just deserts but also allow his daughter more time and maturity to settle down and move on with her life, even if her villainous father is set at liberty. We are, therefore, of the opinion that this is a fit and deserving case for exercise of the power vesting in this Court to impose a modified special category sentence of fixed-term life imprisonment. As pointed out by this Court in Madan Gopal 7 Kakkad Vs. Naval Dubey and another , Judges who bear the sword of justice should not hesitate to use that sword with utmost severity to the full and to the end, if the gravity of the offence so demands. 7 (1992) 3 SCC 204 18 17. The ends of justice would be sufficiently served if the life imprisonment of the appellant is for a minimum of 20 years of actual incarceration before he can seek remissions under the provisions of the Code of Criminal Procedure, 1973, or any other enacted law. We, accordingly, direct so. Imposition of fines and imprisonment in default of payment thereof shall stand confirmed. The appeal is disposed of in terms of the above directions. …………………………………….,J (Abhay S. Oka) .……………………………………,J (Sanjay Kumar) April 25, 2023 New Delhi.