Pocso Act 2012

STATE OF GUJARAT Vs. PANKAJBHAI

Special Court has not exercised the discretion judiciously and the reasons which are given by the learned Special Court while imposing the sentence minimum only are not germane and it can be said that by not awarding appropriate punishment commensurate with the gravity of the offence, it has resulted into grave miscarriage of justice and therefore, the sentence awarded by the learned Special Court is required to be interfered with.

GUJARAT HIGH COURT

DIVISION BENCH

( Before : M.R. Shah and Z.K. Saiyed, JJ. )

STATE OF GUJARAT — Appellant

Vs.

PANKAJBHAI — Respondent

Criminal Appeal (for Enhancement) No. 1404 of 2014

Decided on : 08-01-2016

Criminal Procedure Code, 1973 (CrPC) – Section 357
Penal Code, 1860 (IPC) – Section 307, Section 376, Section 376(1), Section 376(2), Section 376(2)(f)
Protection of Children from Sexual Offences Act, 2012 – Section 4

Counsel for Appearing Parties

Hardik Soni, Addl. Public Prosecutor, for the Appellant; Pratik B. Barot, Advocate, for the Respondent

JUDGMENT

M.R. Shah, J.—1.0 Feeling aggrieved and dissatisfied with the impugned judgment and order dated 29.09.2014 passed by the learned Special Judge (POCSO), Amreli (hereinafter referred to as “Special Court”) in Special POCSO Case No. 1/2014 insofar as not awarding the adequate punishment to the original accused who has been held guilty for the offence punishable under section 376 of the Indian Penal IPC, 1860 (hereinafter referred to as “IPC”) and section 4 of the Prevention of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act, 2012”), the State has preferred the present Criminal Appeal for enhancement of the punishment and sentence imposed by the learned Special Court.

2.0 At the outset it is required to be noted that by impugned judgment and order the learned Special Court has as such convicted the original accused for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 and while convicting the original accused for the aforesaid offences, the learned Special Court has imposed the sentence of 7 years’ RI with fine of Rs. 10,000/- and in default of payment of fine to undergo further 1 year’s SI for the offence punishable under section 376 of the IPC and has sentenced the original accused to undergo 7 years’ RI with fine of Rs. 5000/- and in default of payment of fine to undergo further 6 month’s SI for the offence punishable under section 4 of the POCSO Act, 2012. The learned Special Court has also passed an order to pay Rs. 11,000/- out of the fine amount to the victim/prosecutrix towards compensation under section 357 of the Code of Criminal Procedure, 1973. The learned Special Court has also passed an order to undergo both the aforesaid sentences concurrently.

2.1 Having not satisfied with the sentenced imposed by the learned Special Court, the State has preferred the present Criminal Appeal for the enhancement of sentence and the sentence imposed by the learned Special Court.

3.0 At the outset it is required to be noted that so far as the impugned judgment and order of conviction passed by the learned Special Court convicting the original accused for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 is concerned, it has as such attained finality, as the accused has accepted the same and has not challenged the same by way of appeal. Therefore, the only question which is posed for consideration of this Court is whether in the facts and circumstances of the case the learned Special Court is justified in imposing the sentence of 7 years’ RI while convicting the original accused for the offence punishable under section 376 of the IPC and while imposing 7 years’ RI for the offence punishable under section 4 of the POCSO Act, 2012 and/or whether in the facts and circumstances of the case imposing the sentence of minimum provided under section 376 of the IPC and section 4 of the POCSO Act, 2012 can be said to be adequate punishment commensurate with the offences committed by the original accused?

4.0 Heard Shri Hardik Soni, learned Additional Public Prosecutor appearing on behalf of the appellant – State and Shri Pratik Barot, learned advocate appearing on behalf of the respondent herein – original accused, who has been appointed by the Gujarat High Court Legal Aid Committee.

4.1 We have gone through the impugned judgment and order passed by the learned Special Court and we have re-appreciated the entire evidence on record, both oral as well as documentary.

From the evidence on record and the judgment and order of conviction passed by the learned Special Court, it emerges and it is not in dispute that at the time of the incident/offence committed by the original accused, prosecutrix/victim was only 3 years of age. It also emerges that the age of the accused at the time of committing the offence was 25 years. That the incident had taken place at the house of the accused and that at the time of committing the offence, the original accused was under the influence of liquor/alcohol. It also emerges that the parents of the victim/prosecutrix were very poor, migrated to Gujarat from Uttar Pradesh for maintaining the family and for their survival and that the father of the victim/prosecutrix was selling panipuri. That the parents were hailing from village Purni, Uttar Pradesh. It is also required to be noted that during the trial, for whatever reason and may be because of the poverty and/or illiteracy, the original accused has been successful in winning over the material witnesses i.e. parents of the victim/prosecutrix and the parents have turned hostile. However, considering the medical evidences and other clinching evidences, the prosecution has been successful in proving the case against the accused for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 and thereby the learned Special Court as such by impugned judgment and order has convicted the accused for the offences punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012. Considering the aforesaid facts and circumstances, it is required to be considered whether the learned Special Court is justified in imposing minimum sentence provided under section 376 of the IPC and section 4 of the POCSO Act, 2012.

5.0 Shri Hardik Soni, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the learned Special Court has materially erred in awarding the minimum sentence provided under section 376 of the IPC and section 4 of the POCSO Act, 2012. It is submitted that as such the learned Special Court has convicted the original accused for the offence under section 376 of the IPC and section 4 of the POCSO Act, 2012. It is vehemently submitted that while convicting the accused for the aforesaid offences the sentence which is imposed by the learned Special Court is inadequate and not commensurate with the offences which are held to have been committed by the accused.

5.1 It is further submitted by Shri Soni, learned Additional Public Prosecutor that even the reasons which are given by the learned Special Court while imposing the sentence are not germane and/or it cannot be said that cogent reasons have been given by the learned Special Court while awarding the sentence. It is vehemently submitted by Shri Soni, learned Additional Public Prosecutor appearing on behalf of the State that while not awarding appropriate and adequate punishment for the offences under section 376 of the IPC and section 4 of the POCSO Act, 2012, it cannot be said that the learned Special Court has failed to perform its duty and/or has failed to exercise the discretion judiciously.

5.2 Relying upon the recent decision of the Hon’ble Supreme Court in the case of Satish Kumar Jayantilal Dabgar v. State of Gujarat reported in , (2015) 7 SCC 359 and the decision of the Hon’ble Supreme Court in the case of Aero Traders (P) Ltd. v. Ravinder Kumar Suri reported in , (2004) 8 SCC 307 and in the case of Sumer Singh v. Surajbhan reported in , (2014) 7 SCC 323, he has vehemently submitted that while awarding the sentence not only the learned Special 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 well-established 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 Soni, learned Additional Public Prosecutor has also heavily relied upon the decision of the Hon’ble Supreme Court in the case of Narinder Singh and others v. State of Punjab and another reported in , (2014) 6 SCC 466 (paras 14 to 17), in support of his submission that when the offence committed by the accused is against the society, it must be dealt with by iron hand and a strict view should be taken. 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 Soni, learned Additional Public Prosecutor has heavily relied upon the recent decision of the Hon’ble Supreme Court in the case of Prahlad and another v. State of Haryana reported in , (2015) 8 SCC 688, (para 16 to 18) more particularly para 17 and has submitted that the Hon’ble Supreme Court in the 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 realize that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual which is recognized, assured and affirmed by the very essence of Article 21 of the Constitution.

5.3 Relying upon the decision of the Hon’ble Supreme Court in Criminal Appeal No. 1887/2008, in the case of State of Rajasthan v. Vinodkumar and another decision of the Hon’ble Supreme Court in the case of State of Rajasthan v. Hiralal reported in , (2012)6 SCC 770, it is submitted that in the aforesaid decision the Hon’ble Supreme Court has observed and held that punishment should also be proportionate and commensurate to the gravity of the 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 victim and the gravity of the criminal act are the factors of paramount importance and the Court must exercise its discretion in imposing the punishment objectively considering the facts and circumstances of the case.

5.4 It is further submitted by Shri Soni, learned Additional Public Prosecutor appearing on behalf of the State that, as observed and held by the Hon’ble Supreme Court as well as this Court in catena of decisions, rape is a heinous crime, a crime against the society, a crime against human dignity. It is submitted that therefore when any offence/crime is against the society, it must be dealt with iron hand more particularly when the victim is the child victim.

5.5 It is further submitted by Shri Soni, learned Additional Public Prosecutor appearing on behalf of the State that in the present case while imposing adequate/appropriate punishment, the learned Special Court ought to have considered the following circumstances.

“(1) that the prosecutrix/victim was only 3 years of age;

(2) that the age of the original accused at the time of committing the offence was 25 years;

(3) the incident had taken place at the house of the accused;

(4) that the original accused was under the influence of liquor/alcohol;

(5) that during the trial the original accused has been successful in winning over the material witnesses i.e. the parents of the victim who were labourers and because of that the parents of the victim have turned hostile.”

It is further submitted that in the present case even the accused was to an extent successful in winning over the parents of the victim and for whatever reason, may be because of the poverty and/or illiteracy, the parents of the victim turned hostile and/or did not support the prosecution case. However, fortunately, the prosecution has been successful in proving the case against the accused by leading other cogent evidence such as medical evidences etc. and thereby the accused is held guilty for the offences punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012. It is submitted that the attempt on the part of the accused to see that the material witnesses/parents of the victim turned hostile was required to be considered by the learned Special Court while imposing appropriate and adequate punishment. It is submitted that any attempt on the part of the accused to win over the witnesses must be dealt with strictly and with iron hand and maximum punishment should be imposed so that a message must go to the society at large that any attempt on the part of the accused to win over the witnesses and/or to see that the witnesses turn hostile shall ultimately not help the accused. It is submitted that therefore such conduct of the accused is a relevant consideration for awarding maximum sentence.

5.6 It is submitted that in the present case the learned Presiding Judge is satisfied in awarding only minimum sentence provided under the IPC and the POCSO Act, 2012, which has resulted into miscarriage of the justice. It is submitted that it is the duty of every Presiding Judge to award adequate and appropriate punishment commensurate with the offence committed by the accused.

Making above submissions and relying upon following decisions, it is requested to impose maximum punishment provided under section 376 of the IPC and section 4 of the POCSO Act, 2012.

“(1) , (1995)6 SCC 230 State of A.P. v. Bodem Sundara Rao

(2) , (2005)2 SCC 710 State of M.P. v. Munna Choubey & Anr.

(3) , (2005)8 SCC 1 State of M.P. v. Bala @ Balaram

(4) , (2014)6 SCC 466 Narinder Singh & Ors. v. State of Punjab & Anr.

(5) , (2014)7 SCC 323 Sumer Singh v. Surajbhan Singh & Ors.

(6) , (2014)13 SCC 318 Shimbhu & Anr. v. State of Haryana

(7) , (2015)7 SCC 359 Satish Kumar Jayantilal Dabgar v. State of Gujarat

(8) , (2015)8 SCC 688 Prahlad & Anr. v. State of Haryana”

6.0 Present appeal is opposed by Shri Pratik Barot, learned advocate appearing on behalf of the original accused.

It is vehemently submitted by Shri Barot, learned advocate appearing on behalf of the original accused that as such while convicting the original accused the learned Special Court by assigning cogent reasons has already awarded the minimum sentence provided under the IPC and POCSO Act, 2012. It is submitted that there is always a discretion vested in the learned Presiding Judge to impose the sentence/punishment between the minimum and the maximum provided under the IPC and the POCSO Act, 2012. It is submitted that therefore when the learned Presiding Judge has exercised the discretion by giving cogent reasons, the same is not required to be interfered by this Court in exercise of the appellate jurisdiction.

6.1 It is submitted that as such merely because the parents of the victim turned hostile, from that itself it cannot be presumed that the accused has won over the said witnesses. It is submitted that there may be number of reasons due to which many a times prosecution witnesses do not support the case of the prosecution. It is, therefore, submitted that when the learned Special Court has imposed the sentence minimum provided under the IPC and the POCSO Act, 2012, in the facts and circumstances of the case, it can be said that the learned Special Court has imposed the adequate punishment/sentence, which may not be interfered with by this Court in exercise of the appellate jurisdiction.

Making above submissions it is requested to dismiss the present appeal by further submitting that in the present case as such the accused has accepted the impugned judgment and order of conviction and sentence and is undergoing the sentence imposed by the learned Special Court.

7.0 Heard learned advocates appearing for respective parties at length. As observed hereinabove, the present appeal has been preferred by the appellant State of Gujarat for enhancement of the sentence imposed by the learned Special Court, awarded while convicting the original accused for the offence under section 376 of the IPC and section 4 of the POCSO Act, 2012. That while convicting the original accused for the aforesaid offences, the learned Special Court has imposed the sentence of 7 years’ RI and fine of Rs. 10,000/- and in default of payment of fine to undergo further 1 year SI for the offence punishable under section 376 of the IPC and 7 years’ RI with fine of Rs. 5000/- and in default of payment of fine to undergo further 6 months’ SI for the offence punishable under section 4 of the POCSO Act, 2012. That the sentence provided for the offence under section 376 of the IPC if it falls within section 376(2) of the IPC is Rigorous Imprisonment for a term which shall not be less than ten 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 and the sentence provided for the offence under section 4 of the POCSO Act, 2012 is imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. Thus, while convicting the original accused for the offence punishable under section 376 of the IPC and imposing the sentence of seven years Rigorous Imprisonment, the learned Special Court has even imposed the sentence less than the minimum provided under section 376(2) of the IPC. That as the victim was only 3 years of age, the case would fall under section 376(2)(f) of the IPC and as observed hereinabove the minimum sentence provided for such offence would be ten years Rigorous Imprisonment which may extend to life imprisonment. Even the learned Special Court while convicting the original accused under section 4 of the POCSO Act, 2012 has awarded the sentence minimum provided under section 4 of the POCSO Act, 2012. From the reasoning given by the learned Special Court while not imposing the sentence above minimum provided under the IPC and POCSO Act, 2012, it appears that what has been weighed with the learned Special Court is that the accused is of young age. The aforesaid can hardly be said to be a cogent reason. As observed by the Hon’ble Supreme Court, age of the victim can also be said to be relevant consideration while imposing adequate and appropriate punishment. Under the circumstances, it can be said that learned Special Court has not exercised the discretion judiciously while not imposing the maximum sentence provided under the IPC and POCSO Act, 2012 and having satisfied with imposing the sentence minimum provided under the IPC and POCSO Act, 2012. While considering the aforesaid question passed for consideration of this Court and while considering the question whether the sentence imposed by the learned Special Court can be said to be adequate punishment commensurate with the offence committed by the accused, following decisions of the Hon’ble Supreme Court are required to be referred to and considered.

7.1 In the case of State of M.P. v. Bala alias Balaram reported in , (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) of the 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 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 IPC 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. v. Munna Choubey reported in , (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 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 IPC 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 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 in view of the above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs 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 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.”

7.2 In the case of Sumer Singh v. Surajbhan Singh and others reported in , (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 need for appropriate punishment in paragraph- 36 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 IPC 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 imposed by the learned trial Judge.”

7.3 Again in the case of Narinder Singh and others v. State of Punjab and another reported in , (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) vis-�-vis 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 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 IPC.

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 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.”

7.4 In the case of State of Karnataka v. Krishnappa reported in , (2000)4 SCC 75 in paras 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.

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 a serious blow to her supreme honour and offends herself-esteem 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.”

7.5 Applying the law laid down by the Hon’ble Supreme Court in the aforesaid decisions to the facts of the case on hand, awarding minimum sentence of 7 years for the offence punishable under section 376 of the IPC and section 4 of the POCSO Act, 2012 cannot be said to be adequate punishment commensurate with the gravity of the offence. In the present case at the time of commission of the offence, victim was aged only 3 years and the accused was aged 25 years of age. The accused was a neighbour and the victim went to the place of the accused to play and taking the disadvantage of the situation, the accused committed the offence. Committing the offence of rape on the victim aged 3 years is a heinous crime and is required to be dealt with sternly and with iron hand. In such a case awarding the sentence minimum provided under the IPC and POCSO Act, 2012 only cannot be said to be adequate punishment commensurate with the gravity of the offence. Merely because the accused is young, can hardly be a ground not to impose adequate punishment and/or to impose the sentence minimum provided under the IPC and POCSO Act, 2012 only. In the present case even for whatever reason as such the accused was able to see that the parents of the victim who were from the lower strata of the society and migrated from Uttar Pradesh for earning, turned hostile and the accused can be said to be successful to that extent in getting the parents of the victim turn hostile. Therefore also, the learned Special Court ought to have impose the maximum punishment and ought not to have satisfied with imposing the sentence minimum provided under the IPC and POCSO Act, 2012 only. A strong message must go to such an accused and to the society that any such attempt would be dealt with sternly and with iron hand.

7.6 The submission of Shri Barot, learned advocate appearing on behalf of the original accused that in the present case there is a wide discretion vested in the learned Special Court to impose the sentence between minimum and maximum provided under the IPC and therefore, when the learned Special Court has exercised the discretion while imposing the sentence minimum provided under the IPC, same is not required to be interfered with by the appellate Court is concerned, it is required to be noted that the Presiding Judge having discretion vested in it is required to exercise the discretion judiciously and cogent and valid and adequate reasons are required to be given by the learned Presiding Judge while exercising the discretion. Considering the facts of the case on hand and while imposing the sentence minimum provided under the IPC and POCSO Act, 2012 only and not awarding any punishment/sentence more than the minimum provided under the IPC and POCSO Act, 2012, it can be said that the learned Special Court has not exercised the discretion judiciously and the reasons which are given by the learned Special Court while imposing the sentence minimum only are not germane and it can be said that by not awarding appropriate punishment commensurate with the gravity of the offence, it has resulted into grave miscarriage of justice and therefore, the sentence awarded by the learned Special Court is required to be interfered with.

8.0 In view of the above and for the reasons stated above, the impugned judgment and order passed by the learned Special Judge (POCSO) Amreli dated 29.09.2014 in Special POCSO Case No. 1/2014 is hereby modified to the extent while convicting the original accused for the offence punishable under Section 376 of the IPC and Section 4 of the POCSO Act, 2012, the original accused is directed to undergo sentence of 10 years’ RI with fine of Rs. 50,000/- and in default to undergo 2 years’ RI under Section 376 of the IPC and is also directed to undergo sentence of 10 years’ RI with fine of Rs. 50,000/- and in default to undergo further 2 years’ RI for the offence punishable under Section 4 of the POCSO Act, 2012. Both the aforesaid sentences to run concurrently. On deposit of the fine imposed as above, the entire amount of fine, both for the offences punishable under Section 376 of the IPC and Section 4 of the POCSO Act, 2012, to be paid to the victim under Section 357 of the Code of Criminal Procedure, 1973 and the learned Special Court is directed to see that the said amount is invested in Fixed Deposit in the name of the victim till she becomes major. However, she shall be entitled to the periodical interest on the same, which shall be used for her education and maintenance.


(2016) CriLJ 1744 : (2016) 3 Crimes 379 : (2016) 2 GLR 1046

Cases Referred

Aero Traders P Ltd. Vs. Ravinder Kumar Suri, (2004) 8 SCC 307
Earabhadrappa Vs. State of Karnataka, (1983) 2 S.C.C. 330
Narinder Singh Vs. State of Punjab, (2014) 6 SCC 466
Prahlad Vs. State of Haryana, (2015) 8 SCC 688
Rajendra Prasad Vs. State of Uttar Pradesh, (1979) 3 S.C.C. 646
Satish Kumar Jayantilal Dabgar Vs. State of Gujarat, (2015) 7 SCC 359
Shimbhu Vs. State of Haryan, (2014) 13 SCC 318
State of A.P. Vs. Bodem Sundara Rao, (1995) 6 SCC 230
State of Karnataka Vs. Krishnappa, (2000) 4 SCC 75
State of M.P. Vs. Bala @ Balaram, (2005) 8 SCC 1
State of M.P. Vs. Munna Choubey, (2005) 2 S.C.C. 710
State of Punjab Vs. Gurmit Singh, (1996) 2 SCC 384
State of Rajasthan Vs. Hiralal, (2012) 6 SCC 770
Sumer Singh Vs. Surajbhan Singh, (2014) 7 SCC 323