Full Judgment Text
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PETITIONER:
PHUL SINGH
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT10/09/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
SHINGAL, P.N.
CITATION:
1980 AIR 249 1980 SCR (1) 589
1979 SCC (4) 413
ACT:
Criminal Procedure Code-Sentence-When can be reduced.
HEADNOTE:
The appellant who was 22 committed rape on the wife of
his cousin who was a next door neighbour in broad-day-light.
The Sessions Judge found the appellant guilty of the offence
of rape and sentenced him to four years R.I. On appeal, the
High Court affirmed it. It was urged that the appellant was
in his early twenties and that there were signs of
repentance. The fact remains that the two families being
close cousins are ready to take a lenient view of the
situation which of course does not bind the court in any
manner. Partly accepting the appeal, the Court
^
HELD: The appellant is not a ’habitual’ and has no
vicious antecedents except this fugitive, randy molestation
which is bad enough in a society where women are often
socially weak and sexually victimized. It may be marginally
extenuatory to mention that modern Indian conditions are
drifting into societal permissiveness on the carnal front
promoting proneness to pornos in life, what with libidinous
’brahmacharis’, womanizing public men, lascivious dating and
mating by unwed students, sex explosion in celluloid and
book stalls and corrupt morals teaching a new ’high’ in high
places. [591 F-H]
The appellant is a youth barely 22 with no criminal
antecedents save this offence. He has a young wife and a
farm to look after. Given correctional courses through
meditational therapy and other measures, his erotic
aberration may wither away. A man like the appellant has a
reasonable prospect of shaping into a balanced person, given
propitious social environs, curative and congenial work and
techniques of internal stress release or of reformatory self
expression. In this background the court regarded a four
year term of rigorous imprisonment more hardening than
habilitative, even though the court deplored the sex
violence the young appellant had inflicted on his cousin’s
wife snatching a tricky opportunity. [592 B-D]
A hyper sexed homo sapiens cannot be habilitated by
humiliating or harsh treatment. In prison treatment must,
therefore, be geared to psychic healing, release of
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stresses, restoration of self-respect and cultural
normalisation, apart from training to adapt oneself to the
life outside. The functional failure of our pachydermic
prison projects, exacerbated by its tension and trauma on
the one hand and the reverse ethos inside on the other,
deserves judicial cognisance. [591 A, D-E]
The current efforts of Governments, Central and State,
to reform jail regimen, it was hoped, will give a better
deal to the caged community. For these reasons, in this
case, it is desirable to superadd to the sentence of
imprisonment a few directives to ensure that the carceral
period reforms the convict. A set of positive prescriptions
will ensure appellant turning a new leaf. One major method
in securing this goal is to keep alive the family ties of
the person in
590
prison so that the appellant may not deteriorate into a non-
person. Within the limits of the Prison Act and Rules
thereunder, the State Government or the Inspector General of
Prisons will ensure that on parole, furlough or orders, the
young appellant turns a new leaf of normal life. [591 E-F,
592 F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
506 of 1979.
Appeal by special leave from the Judgment and Order
dated 3-5-79 of the Punjab & Haryana High Court in Crl. A.
No. 166/76.
Harbans Singh Marwah for the Appellant.
R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by
KRISHNA IYER, J. A philanderer of 22, appellant Phul
Singh, overpowered by sex stress in excess, hoisted himself
into his cousin’s house next door, and in broad day-light,
overpowered the temptingly lonely prosecutrix of twenty
four, Pushpa, raped her in hurried heat and made an urgent
exist having fulfilled his erotic sortie. The screaming
victim complained to her mother working in the field;
thereafter a first information, prosecution and conviction
ensued, a sentence of 4 years R.I. was imposed by the
Sessions Court, and the High Court affirmed it in appeal.
The broad facts bearing on the instant act of carnal assault
look too probable for pettifogging legalistics about poor
corroboration, consent and false implication to devalue
their credibility. The culpability is beyond doubt and we
uphold the conviction.
Ordinarily, rape is violation, with violence, of the
private person of a woman-an outrage by all canons. In our
conditions of escalating sex brutality a four-year term for
rape is not excessive. But here, the offender is in his
early twenties and signs of repentance are seen. The victim
and her parents have forgiven the molester who is a first
cousin, says counsel. An affidavit from the father-in law of
the woman has been filed and, if needed, counsel is ready to
produce the victim’s statement that she has forgiven the
criminal. While it is possible that the accused may procure
such condonation from unwilling victim, the fact remains
that the two families being close cousins are ready to take
a lenient view of the situation. Of course, this does not
bind the Court in any manner. Therefore, taking an overall
view of the familial and the criminal factors involved, we
reduce the imprisonment from 4 years to 2 years R.I.
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We must, however, direct our attention in a different
penological direction. For sentencing efficacy in cases of
lust-loaded criminality cannot be simplistically assumed by
award of long incarceration, for,
591
otten that remedy aggravates the malady. Punitive
therapeutics must be more enlightened than the blind
strategy of prison severity where all that happens is sex
starvation, brutalisation, criminal companionship, versatile
vices through bio-environmental pollution, dehumanised cell
drill under ’zoological’ conditions and emergence, at the
time of release, of an embittered enemy of society and its
values with an indelible stigma as convict stamped on him-a
potentially good person ’successfully’ processed into a
hardened delinquent, thanks to the penal illiteracy of the
Prison System. The Court must restore the man.
A hyper-sexed homo sapiens cannot be habilitated by
humiliating or harsh treatment, but that is precisely the
perversion of unreformed Jail Justice which some
criminologists have described as the crime of punishment.
This Court has held, in Sunil Batra’s case and later that,
constitutionally viewed, punitive deprivation of personal
freedom must be goal-oriented and humanely restorative,
apart from being deterrent. The insulated years behind the
insensitive bars must possess a hospital setting if
correction is a social purpose, as Gandhiji often insisted.
In-prison treatment must, therefore, be geared to psychic
healing, release of stresses, restoration of self-respect
and cultural normalisation, apart from training to adapt
oneself to the life outside. The functional failure of our
pachydermic prison projects, exacerbated by its tension and
trauma on the one hand and the reverse ethos inside on the
other, deserves judicial cognizance. The current efforts of
Governments, Central and State, to reform jail regimen, we
hope, will give a better deal to the caged community. For
these reasons, in this case, we deem it desirable to
superadd to the sentence of imprisonment a few directives to
ensure that the carceral period reforms the convict.
The appellant is not a ’habitual’ and has no vicious
antecedents except this fugitive, randy molestation which is
bad enough in a society where women are often socially weak
and sexually victimised. It may be marginally extenuatory to
mention that modern Indian conditions are drifting into
societal permissiveness on the carnal front promoting
proneness to pornos in life, what wit libidinous
’brahmacharis’, womanising public men, lascivious dating and
mating by unwed students, sex explosion in celluloid and
book stalls and corrupt morals reaching a new ’high’ in high
places. The unconvicted deviants in society are
demoralisingly large and the State has, as yet, no
convincing national policy on female flesh and sex sanity.
We hope, at this belated hour, the Central Government will
defend Indian Womanhood by stamping out voluptuous meat
markets by merciless criminal action.
592
Isolated prosecutions and annual suppression rhetoric will
stultify the law where the vice is widespread and the larger
felons are often let loose.
This reflection apart, we must, as part of the
sentencing package, design a curative course for this
prisoner to rid him of his aphrodisiac overflow and restore
him into safe citizenship.
He is a youth barely 22 with no criminal antecedents
save this offence. He has a young wife and a farm to look
after. Given correctional courses through meditational
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therapy and other measures, his erotic aberration may wither
away. A man like the appellant has a reasonable prospect of
shaping into a balanced person, given propitious social
environs, curative and congenial work and techniques of
internal stress release or of reformatory self expression.
In this background, we regard a four year term of
rigorous imprisonment more hardening than habilitative, even
though we deplore the sex violence the young appellant has
inflicted on his cousin’s wife snatching a tricky
opportunity. Even so, the incriminating company of lifers
and others for long may be counter-productive, and in this
perspective, we blend deterrence with correction and reduce
the sentence to rigorous imprisonment for two years. We wish
to emphasise that the special circumstances of this case
constrain us to relent a little on principle because the
restorative approach to sentencing has been jettisoned by
the courts below.
The task is not done by a negative reduction in the
prison term. What is more important is a set of positive
prescriptions which will ensure his turning a new leaf. One
major method in securing this goal is to keep alive the
family tie of the person in prison so that he may not
deteriorate into a non-person. Within limits of the Prison
Act and Rules thereunder, the State Government or the
Inspector General of Prisons will ensure that on parole,
furlough or orders, the young appellant turns a new leaf of
normal life.
N.K.A. Appeal allowed in part.
593