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    • #112125 Reply
      Tina DU

      Important Issue Involved: While imposing sentence on persons convicted of rape, the court must be careful and must not overlook requirement of assigning reasons for imposing sentence below the prescribed minimum sentence.


      1. Simbhu and Anr. vs. State of Haryana 2013 (10) SCALE 595.
      2. Jugendra Singh vs. State of Uttar Pradesh (2012) 6 SCC 297.
      3. State of Andhra Pradesh vs. Polamala Raju @ Rajarao (2000) 7 SCC 75.
      4. State of Karnataka vs. Krishnappa (2000) 4 SCC 75.
      5. State of Punjab vs. Gurmit Singh and Ors. AIR 1996 SC 1393.
      6. Bodhisatwa Gautam vs. Subhra Chakraborty 1996 (1) SCC 490.
      7. State of A.P. vs. Bodem Sundara Rao (1995) 6 SCC 230.

      Indian Penal Code, 1860—Sec. 376—Sentence—
      Sentencing for any offence has a social goal—Sentence
      is to be imposed regard being had to the nature of the
      offence and the manner in which the offence has
      been committed—It serves as a deterrent—The
      principle of proportionality between an offence
      committed and the penalty imposed are to be kept in
      view—It is obligatory on the part of the Court to see
      the impact of the offence on the society as a whole
      and its ramifications as well as its repercussions on
      the victim.

      Rape is one of the most heinous crimes committed against a woman—It insults womanhood—It dwarfs her personality and reduces her confidence level—It violates her right to life guaranteed under Article 21 of the Constitution of India.

      Apex Court in Bodhisatwa Gautam v. Subhra Chakraborty 1996 (1) SCC 490 where it was observed that “rape is violative of the victim’s most cherished of the fundamental rights guaranteed under Article 21 of the Constitution of India.

      Rape is an aberrant, atrocious, horrendous and monstrous burial
      of her dignity in darkness. It is a crime against the entire society. In
      State of Punjab v. Gurmit Singh and Ors. AIR 1996 SC 1393, Supreme
      Court observed the effect of rape on a victim with anguish:
      “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.”

      In State of Karnataka v. Krishnappa (2000) 4 SCC 75 the High Court had reduced the sentence of ten years rigorous imprisonmentimposed by the trial court on the accused for an offence under Section 376 of the Indian Penal Code (IPC) to four years rigorous imprisonment.
      Severely commenting on this indiscretion, Apex Court observed as under:
      “Protection of society and deterring the criminal is the avowed
      object of law and that is required to be achieved by imposing an
      appropriate sentence. The sentencing courts are expected to
      consider all relevant facts and circumstances bearing on the
      question of sentence and proceed to impose a sentence
      commensurate with the gravity of the offence. Courts must hear
      the loud cry for justice by the society in cases of the heinous
      crime of rape on innocent helpless girls of tender years, as in
      this case, and respond by imposition of proper sentence. Public
      abhorrence of the crime needs reflection through imposition of
      appropriate sentence by the court. There are no extenuating or
      mitigating circumstances available on the record which may justify
      imposition of any sentence less than the prescribed minimum on
      the Respondent to show mercy in the case of such a heinous
      crime would be a travesty of justice and the plea for leniency is
      wholly misplaced. 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. 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 her self-esteem and dignity – it degrades and
      humiliates 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. A socially sensitised 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.”

      In State of Andhra Pradesh v. Polamala Raju @ Rajarao (2000) 7 SCC 75 a three Judge Bench of the Supreme Court set aside the judgment of the High Court for non-application of mind to the question of sentencing. The Supreme Court reprimanded the High Court for having reduced the sentence of the accused convicted under Section 376, IPC from 10 years imprisonment to 5 years without recording any reasons for the same. The Court said:

      “… We are of the considered opinion that it is an obligation of
      the sentencing Court to consider all relevant facts and
      circumstances bearing on the question of sentence and impose
      a sentence commensurate with the gravity of the offence…

      In Simbhu and Anr. v. State of Haryana 2013 (10) SCALE 595 a three Judge Bench took a serious view about taking a liberal view while awarding sentence for such a heinous crime by observing as under:-

      “This is yet another opportunity to inform the subordinate Courts
      and the High Courts that despite stringent provisions for rape
      Under Section 376 Indian Penal Code, many Courts in the past
      have taken a softer view while awarding sentence for such a
      heinous crime. This Court has in the past noticed that few
      subordinate and High Courts have reduced the sentence of the
      accused to the period already undergone to suffice as the
      punishment, by taking aid of the proviso to Section 376(2) Indian
      Penal Code. The above trend exhibits stark insensitivity to the
      need for proportionate punishments to be imposed in such cases.

    • #112779 Reply

      In the case reported as Uday v. State of Karnataka, AIR 2003 SC 1639, the Hon’ble Supreme Court has held as under :-

      “It therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid done by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”

    • #112780 Reply

      Consent may be express or implied

      In the case reported as Deepak Gulati v State of Haryana, (2013) 7 SCC 675 : 2013 Law Suit (SC) 442 , the Hon’ble Supreme Court has held that:

      “Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had malafide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at any early stage a false promise of marriage by the accused ; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis- representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so, such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances.

    • #112781 Reply

      Jayanti Rani Panda v. State of West Bengal and anr., 2002 SCC (Cri) 1448, it has been observed that:

      “The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise Sessions Case to marry we do not know when. If a full grown girl consents to an act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case unless the Court can be assured that from the very inception the accused never really intended to marry her.”

      Similar observations have also been made in the judgments reported as Pradeep Kumar Verma v. State of Bihar & anr., AIR 2007 SC 3059; Jyotsana Kora v. The State of West Bengal and anr., Manu/WB/0364/2010; Deelip Singh alias Dilip Kuamr v. State of Bihar, (2005) 1 SCC 88; Uday v. State of Karnataka, (2003) 4 SCC 46 and Naresh Kumar v. State (Govt. of NCT) Delhi, 2012 (7) LRC 156 (Del).

    • #112782 Reply

      Use of Section 114-A of the Indian Evidence Act in Rape case

      Section 114-A of the Indian Evidence Act, 1872 provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.

      The judgments reported as Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, observe that in the event that the accused’s promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act (s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.

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