Full Judgment Text
2023 INSC 903
NonReportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.3168 OF 2023
(Arising out of Special Leave Petition (Crl.) No.11331 of 2019)
State of Rajasthan … Appellant
versus
Gautam s/o Mohanlal … Respondent
J U D G M E N T
ABHAY S. OKA, J.
Leave granted.
1.
FACTUAL ASPECTS
2. This is a case which shocks the conscience of the Court.
The only issue in this case is regarding the enhancement of
the sentence imposed on the respondent–accused.
3. As the issue is confined to the quantum of sentence, it
is not necessary for us to go into the correctness of the
finding of guilt recorded by the Trial Court and the High Court
of Judicature for Rajasthan. As far as the factual details are
concerned, we are reproducing the facts set out in the
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2023.10.11
17:12:03 IST
Reason:
impugned judgment, which read thus:
SLP (Crl.) No.11331 of 2019 Page 1 of 11
“ .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..
The material facts briefly leading to filing of
the appeal are required to be noted.
Complainant Rakesh (PW3) submitted a
written report (Ex.P4) before SHO, Police
Station Udyog Nagar, Kota on 8.5.2014
stating therein that he and his wife
Smt.Kajod were residing at Suryanagar in the
house of Chittar Lal as tenant. Gautam
Harizan was also residing in the same house
as tenant. They both used to attend to their
respective jobs. They were having a daughter
and a son. The elder was daughter aged 5
years and younger was son aged about two
and half years. He further stated that on
8.5.2014, as usual, he left the house for his
job at 6.00 A.M. and his wife left the house at
about 910 A.M. after leaving children with
their aunt Lad Bai, who was living in
neighbourhood. While returning at 3.00 PM,
wife of complainant found her daughter in a
pool of blood. Blood was oozing from her
private parts. On asking, she told to her
mother that during day hours, Gautam
Harijan uncle brought her from her Mausi's
(sister of mother) house to his room. There he
removed her clothes and undergarments. He
did something to her private parts due to
which there was bleeding. Accused had
caused bite also. She was suffering from
pain. His wife called him and they noticed
that Gautam Harijan committed rape with
their daughter on account of which, there
was bleeding from her private parts and her
garments were also stained with blood.
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
SLP (Crl.) No.11331 of 2019 Page 2 of 11
4. The Trial Court convicted the respondent–accused for
the offences punishable under Sections 363, 342, clauses (i)
and (m) of subsection (2) of Section 376 of the Indian Penal
Code, 1860 (for short, ‘IPC’) read with Sections 3 and 4 of the
Protection of Children from Sexual Offences Act, 2012 (for
short, ‘POCSO’). The respondent–accused was also convicted
for the offences punishable under Section 8 (punishment for
sexual assault) and Section 10 (punishment for aggravated
sexual assault) of POCSO. For the offences punishable under
clauses (i) and (m) of subsection (2) of Section 376 of IPC, the
Trial Court sentenced the respondent–accused to undergo
imprisonment for life (for the remainder of natural life). For
the offence punishable under Section 377 of IPC, the Trial
Court awarded the sentence of ten years of simple
imprisonment with a fine of Rs.10,000/. For the offence
punishable under Section 8 of POCSO, the Trial Court
convicted the respondent–accused to undergo simple
imprisonment for three years and to pay a fine of Rs.5,000/.
For the offence punishable under Section 10 of POCSO, the
respondent–accused was directed to undergo simple
imprisonment for five years with a fine of Rs.5,000/. For the
offence punishable under Section 342 of IPC, he was
sentenced to undergo simple imprisonment for six months.
For the offence punishable under Section 363 of IPC, he was
penalised to undergo rigorous imprisonment for three years
with a fine of Rs.10,000/.
SLP (Crl.) No.11331 of 2019 Page 3 of 11
5. In the appeal preferred by the respondent–accused,
while confirming the conviction, the High Court showed
leniency by reducing the sentence for the offence under
clauses (i) and (m) of subsection (2) of Section 376 of IPC to
rigorous imprisonment for twelve years.
SUBMISSIONS
6. The submission of the learned counsel appearing for the
appellant–State of Rajasthan is that the High Court has
shown undue and undeserving leniency to the respondent.
The submission of the learned counsel is that the High Court
has completely lost sight of the fact that the age of the victim
girl was only five to six years. He submitted that the High
Court also ignored the evidence of Dr Vinod Garg (PW6), who
and a gynaecologist had examined the victim. His submission
is that showing leniency only based on the young age of the
accused will send wrong signals.
7. We have also heard Ms Shweta Garg, the learned
counsel appointed as amicus curiae, to espouse the cause of
the respondent–accused. She submitted that the minimum
punishment for the offences punishable under clauses (i) and
(m) of subsection (2) of Section 376 of IPC is ten years.
Therefore, the sentence imposed by the High Court is more
than what is prescribed as the minimum. She pointed out
th
that the incident occurred on 8 May 2014, and the
respondent has been incarcerated since then. She submitted
that the factors of young age and caste of the respondent–
SLP (Crl.) No.11331 of 2019 Page 4 of 11
accused, considered by the High Court, are certainly relevant.
She pointed out that the respondent must have undergone
the sentence by this time, including remissions. She would,
therefore, submit that no interference was called for.
CONSIDERATION OF SUBMISSIONS
The offence under clause (i) of subsection (2) of Section
8.
st
376 of IPC (as it stood before 21 April 2018) was of rape of a
girl who is under sixteen years of age. The victim was only 5
to 6 years old at the relevant time. The offence under clause
(m) of subsection (2) of 376 of IPC is attracted when the
offender, while committing rape, causes grievous bodily harm
to the victim, causes her disfigurement, or endangers her life.
In the present case, the medical evidence in the form of the
medical report and evidence of Dr Vinod Garg (PW6)
indicates why the Trial Court invoked clause (m).
The offence is so gruesome and heinous that it will
9.
impact the victim for her entire life. The childhood of the
victim has been destroyed. The victim's life has been ruined
due to the trauma and everlasting impact on her mind. It
must have converted the victim into a psychological wreck.
10. The reasons given by the High Court for showing
leniency are:
a. The age of the respondent–accused was twenty
two years;
b. The respondent–accused belonged to a poor
scheduled caste family;
SLP (Crl.) No.11331 of 2019 Page 5 of 11
c. The respondent–accused is not a habitual offender
and
The respondent–accused has been suffering
d.
th
incarceration since 8 May 2014.
11. As far as the serious offences under Section 376 of IPC
and the POCSO Act are concerned, the fact that the
respondent–accused is not a habitual offender is entirely
irrelevant. The intention of the legislature is clear from
rd
Section 376E of IPC, introduced with effect from 3 February
2013. It provides that whosoever has been previously
convicted for the offence punishable under Section 376 of IPC
and is subsequently convicted for the same crime shall be
punished with imprisonment for life, which shall mean
imprisonment for the remainder of that person’s natural life
or death. Therefore, the law takes care of habitual offenders
by imposing stringent punishment under Section 376 of IPC.
As law prescribes a minimum sentence, the fact that the
th
respondent–accused was suffering incarceration from 8 May
2014 is not material. The caste of the accused is, per se, not
a consideration for showing leniency in the cases of such
offences. Here, we are dealing with a case where the victim
was five to six years old. In a given case, the financial
condition of an accused can be one of the considerations for
not exceeding the minimum sentence. Still, again, when it
comes to such a serious offence against a girl aged five to six,
the financial condition of the accused should not normally
SLP (Crl.) No.11331 of 2019 Page 6 of 11
weigh in the mind of the Court. In this case, the victim's
family is from the same economic strata as the respondent.
While dealing with the issue of sentence, in such a case,
12.
the mitigating circumstances which weigh in favour of the
accused must be balanced with the impact of the offence on
the victim, her family and society in general. The rights of the
accused must be balanced with the effect of the crime on the
victim and her family. This is a case which impacts the
society. If undue leniency is shown to the respondent in the
facts of the case, it will undermine the common man's
confidence in the justice delivery system. The punishment
must be commensurate with the gravity of the offence. When
it comes to sentencing, the Court is not only concerned with
the accused but the crime as well.
13. Only two factors prevent us from restoring the life
sentence. First is the young age of the accused. His age was
22 years, as noted by the High Court. The second is that he
has undergone the sentence imposed by the High Court.
Therefore, we are of the view that in this case, the sentence of
rigorous imprisonment of fourteen years will be appropriate.
However, while he undergoes the remaining sentence, the
respondent shall not be entitled to remission. Under sub
section (2) of Section 376 of IPC, the offence is also
punishable with a fine. The Trial Court had imposed a fine of
Rs.25,000/. It is not clear whether the said amount of fine
has been paid. We maintain the sentence in default of
SLP (Crl.) No.11331 of 2019 Page 7 of 11
payment of the fine amount, which is six months
imprisonment. We retain the punishment for the other
offences and the sentence in default of fine. We also propose
that after retaining a sum of Rs.5,000/ for the State, the rest
of the fine amount shall be paid over to the victim as
compensation.
We also propose to direct the Secretary of the Rajasthan
14.
State Legal Services Authority to ensure that the
compensation is paid to the victim under the victim
compensation scheme of the State.
15. Before we part with the judgment, we find from the
cause title of the judgments of the Trial Court and the High
Court that the respondent’s caste has been mentioned. The
same defect has been carried forward in the Special Leave
Petition as the description of the respondent–accused must
have been copied from the cause title of the judgments of the
Courts. An accused has no caste or religion when the Court
deals with his case. We fail to understand why the caste of
the accused has been mentioned in the cause title of the
judgments of the High Court and the Trial Court. The caste or
religion of a litigant should never be mentioned in the cause
title of the judgment. We have already observed in our order
th
dated 14 March 2023 that such practice should never be
followed. The cause title in this judgment has been amended
accordingly. Formal amendment be carried out after
pronouncement of this judgment.
SLP (Crl.) No.11331 of 2019 Page 8 of 11
16. We have a suggestion to make before we part with
judgment. Whenever a child is subjected to sexual assault,
the State or the Legal Services Authorities should ensure that
the child is provided with a facility of counselling by a trained
child counsellor or child psychologist. It will help the victim
children to come out of the trauma, which will enable them to
lead a better life in future. The State needs to ensure that the
children who are the victims of the offence continue with their
education. The social environment around the victim child
may not always be conducive to the victim's rehabilitation.
Only the monetary compensation is not enough. Only the
payment of compensation will not amount to rehabilitation in
a true sense. Perhaps the rehabilitation of the girl victims in
life should be part of the “Beti Bachao Beti Padhao” campaign
of the Central Government. As a welfare State, it will be the
duty of the Government to do so. We are directing that the
copies of this judgment should be sent to the Secretaries of
the concerned departments of the State.
17. We may also appreciate the assistance rendered by Ms
Shweta Garg, who was appointed amicus curiae to espouse
the cause of the respondentaccused.
18. We partly allow the appeal by passing the following
order:
a. The respondent–accused is sentenced to suffer
rigorous imprisonment for fourteen years for the
SLP (Crl.) No.11331 of 2019 Page 9 of 11
offences punishable under clauses (i) and (m) of
subsection (2) of Section 376 of IPC;
The respondentaccused shall not be entitled to
b.
remission while undergoing the enhanced
sentence. The remission granted earlier will
remain unaffected;
c. The substantive sentence for the rest of the
offences is maintained;
d. The direction of the Trial Court, as regards the
sentence to be undergone in default of payment of
fine, is maintained;
e. If the respondent–accused has already paid the
fine amount payable under the judgment of the
Trial Court while retaining the sum of Rs.5,000/
for the State, the rest of the amount shall be paid
over to the victim as compensation;
f. We direct the Secretary of the Rajasthan State
Legal Services Authority to ensure that
compensation under the relevant victim
compensation scheme is immediately paid to the
victim as per her entitlement, if not already paid;
g. If the respondent has already been released after
undergoing the punishment in terms of the verdict
of the High Court, he shall be forthwith arrested
SLP (Crl.) No.11331 of 2019 Page 10 of 11
and sent to prison for undergoing the remaining
sentence in terms of this judgment; and
The Registry is directed to forward a copy of this
h.
judgment to the Secretary of the Ministry of
Women and Child Development of the Central
Government to enable the Government to take
appropriate action in terms of paragraph 16 above.
….…………………….J.
(Abhay S. Oka)
…..…………………...J.
(Pankaj Mithal)
New Delhi;
October 11, 2023.
SLP (Crl.) No.11331 of 2019 Page 11 of 11