Thursday, 24 December 2015

Whether punishment given to accused for offence U/S 376 of IPC can be reduced on the ground of his poverty?

 The   only   reason   given   by   the   learned
trial   Court   while   imposing   the   punishment
lesser   than   the   minimum   provided   under
Section 376 of the IPC is that the accused is
a poor and has a responsibility to maintain
his   wife   and   children.   The   aforesaid   can
hardly be said to be a cogent reason and/or
special circumstances/case while awarding the
punishment   less   than   the   minimum   provided
under Section 376 of the IPC. As observed by
the   Hon’ble   Supreme   Court   in   the   catena   of
decisions   and   as   observed   hereinabove   the
offence of rape is a heinous crime not only
against the individual but also against the
society   at   large.   The   offences   against   the
woman more particularly under Section 376 of
the IPC are increasing. Therefore a massage
must   go   to   the   society   that   if   such   an
offence is committed it shall be dealt with
iron­hand and strictly and that no leniency
shall be shown. Thus, in the present appeal
the learned trial Court has not exercised the
discretion   judiciously   and   it   can   be   said
that   the   learned   trial   Court   has   failed   to
perform   its   duty   as   a   Judge   while   awarding
appropriate   and   adequate   punishment   to   an

offender   who   is   convicted   for   the   offence
under   Sections   376,   377   and   506(2)   of   the
Indian Penal Code.   
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 763 of 2011

STATE OF GUJARAT....Appellant(s)
Versus
JAYDIP DAMJIBHAI CHAVDA....Opponent(s)/Respondent(s)

CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 16/12/2015



1.  Feeling aggrieved and dissatisfied with the
impugned   judgment   and   order   passed   by   the
learned Additional City Sessions Judge, Court
No.13,   Ahmedabad,   passed   in   Sessions   Case
No.122 of 2009 by which while convicting the
original   accused   for   the   offence   under
Sections   376,   377   and   506(2)   of   the   Indian
Penal   Code   the   learned   trial   Court   has
imposed the sentence of only three and half
years   for   the   offence   under   Section   376   of
the Indian Penal Code with fine of Rs.1,000/­
and in default to undergo further 03 months
R.I. and has imposed the sentence of 03 years
R.I. with fine of Rs.500/­ and in default to
undergo   further   02   months   R.I.   for   the
offence under Section 377 of the Indian Penal
Code   and   has   sentenced   to   undergo   01   year
R.I. with fine of Rs.250/­ and in default to
undergo further 15 days R.I. for the offence
under   Section   506(2)   of   the   Indian   Penal
Code,   the   State   has   preferred   the   present
Appeal   for   enhancement   of   the
punishment/sentence   imposed   by   the   learned
trial   Court,   imposed   while   convicting   the
original   accused   for   the   offence   under
Sections   376,   377   and   506(2)   of   the   Indian
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Penal Code. 
2.   At the outset, it is required to be noted
that   at   the   time   of   incident   both   the
prosecutrix were aged less than 16 years of
age. At the time of commission of the offence
the accused was aged 38 years of age. It has
also   come   on   record   that   at   the   time   of
commission of the offence accused was stepfather
of one of the victim/prosecutrix. That
by   impugned   judgment   and   order   the   learned
trial Court on appreciation of evidence has
as such convicted the accused for the offence
under   Sections   376,   377   and   506(2)   of   the
Indian Penal Code. The original accused has
not challenged his conviction by the learned
trial   Court   for   the   offence   under   Sections
376, 377 and 506(2) of the Indian Penal Code.
Therefore,   the   impugned   judgment   and   order
passed by the learned trial Court convicting
the   original   accused   for   the   aforesaid
offences has attained the finality. Under the
circumstances,   now   what   is   required   to   be
considered   by   this   Court   in   the   present
Appeal   is   whether   in   the   facts   and
circumstances   of   the   case   and   while
convicting   the   original   accused   for   the
offence under Sections 376, 377 and 506(2) of
the Indian Penal Code the learned trial Court
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is   justified   in   imposing   the   sentence   less
than the minimum which is provided under the
Act for the offence under Section 376 of the
Indian   Penal   Code   and   whether   the   learned
trial   Court   is   justified   in   awarding   the
sentence   of   three   and   half   years   R.I.   only
for   the   offence   under   Section   376   of   the
Indian   Penal   Code   and   three   years   for   the
offence under Section 377 of the Indian Penal
Code ? Another question which is paused for
consideration   of   this   Court   is   whether   the
learned   trial   Court   has   given   adequate   and
cogent   reasons   while   awarding   the   sentence
less than the minimum provided under Section
376 of Indian Penal Code ?      
3.  Shri Mitesh Amin, learned Public Prosecutor
appearing with Shri H.S.Soni, learned APP has
vehemently   submitted   that   in   the   facts   and
circumstances of the case the learned trial
Court   has   materially   erred   in   awarding   the
sentence   which   is   less   than   the   minimum
provided   under   Section   376   of   Indian   Penal
Code.   It   is   submitted   that   as   such   the
learned   trial   Court   has   convicted   the
original   accused   for   the   offence   under
Sections   376,   377   and   506(2)   of   the   Indian
Penal Code. It is vehemently submitted that
while   convicting   the   accused   for   the
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aforesaid   offence   the   sentence   which   is
imposed   by   the   learned   trial   Court   is
inadequate   and   not   commensurate   with   the
offence which is held to have been committed
by the accused. 
3.1   It is further submitted by Shri Amin,
learned Public Prosecutor appearing with Shri
Soni that the reasons which are given by the
learned   trial   Court   while   awarding   the
sentence less than the minimum provided under
the Act are not germane and/or it cannot be
said that cogent reasons have been given by
the   learned   trial   Court   while   awarding   the
sentence.   It   is   further   submitted   by   Shri
Amin, learned Public Prosecutor that as such
it   can   be   said   that   while   not   awarding
appropriate  and  adequate   punishment  for  the
offences under Sections 376, 377 and 506(2)
of the Act, it can be said that learned trial
Court has failed to perform his duty and/or
has   failed   to   exercise   the   discretion
judiciously. Relying upon the recent decision
of the Hon’ble Supreme Court in the case of
Satish  Kumar  Jayantilal  Dabgar  vs.   State  of
Gujarat, (2015) 7 SCC 359 and the decision of
the Hon’ble Supreme Court in the case of Aero
Traders   (P)   Ltd.,   vs.   Ravinder   Kumar   Suri,
(2004)  8   SCC   307  and   in   the   case   of  Sumer
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Singh vs. Surajbhan, (2014) 7 SCC 323  he has
vehemently submitted that while awarding the
sentence not only the learned trial 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
well­established   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 Amin,
learned   Public   Prosecutor   has   also   heavily
relied   upon   the   decision   of   the   Hon’ble
Supreme Court in the case of  Narinder Singh
and others vs. State of Punjab and another,
(2014) 6 SCC 466 (paras 14 to 17), in support
of   his   submission   that,   when   the   offence
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committed   by   the   accused   is   against   the
society, it must be dealt with by iron hand
and   a   strict   view   should   be   take.     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   Amin,   learned   Public
Prosecutor has heavily relied upon the recent
decision of the Hon’ble Supreme Court in the
case   of  Prahlad   and   another   vs.   State   of
Haryana,  (2015) 8 SCC 688,  (para   16   to   18)
more particularly para 17  and has submitted
that   the   Hon’ble   Supreme   Court   in   the
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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 realise that when they indulge in
such   an   offence,   they   really   create   a
concavity in the dignity and bodily integrity
of an individual which is recognised, assured
and affirmed by the very essence of Article
21 of the Constitution.” 
3.2       Shri   Amin,   learned   Public   Prosecutor
has   then   relied   upon   the   decision   of   the
Hon’ble   Supreme   Court  (Criminal   Appeal
No.1887 of 2008) State of Rajasthan vs. Vinod
Kumar with (Criminal  Appeal No.1888 of 2008)
State   of   Rajasthan   vs.   Heera   Lal,   (2012)   6
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SCC   770  in   support   of   his   submission   that
while  awarding  the  sentence  below  statutory
minimum   the   learned   trial   Court   has   not
assigned any adequate and special reasons. It
is submitted that in the aforesaid decision
the Hon’ble Supreme Court has observed that,
“while   awarding   punishment   lesser   than   the
minimum prescribed under Section 376 IPC is
an   exception   to   the   general   rule.”   It   is
further submitted that, “exception clause is
to   be   invoked   only   in   the   exceptional
circumstances   where   conditions   incorporated
in the exception clause itself exist.” It is
further  submitted  in  the  aforesaid  decision
it   is   observed   and   held   that,   “exception
clause   is   always   required   to   be   strictly
interpreted even if there is hardship to any
individual.” It is further submitted in the
aforesaid  decision  also  the  Hon’ble  Supreme
Court has observed and held that, “punishment
should   always   be   proportionate/commensurate
to   the   gravity   of   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
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victim   and   the   gravity   of   the   criminal   act
are the factors of paramount  importance and
the   court   must   exercise   its   direction   in
imposing   the   punishment   objectively
considering   the   facts   and   circumstances   of
the case.” 
3.3  It is submitted that in the present case
both the victims were aged less than 16 years
of age and the accused, who was step­father
of one of the victim, was aged 38 years of
age. It is submitted that as such the accused
was required to act as a guardian instead he
committed the heinous crime not only for the
offence under Section 376 of the Indian Penal
Code but also under Section 377 of the Indian
Penal   Code.   It   is   submitted   that   therefore
the   reasons   assigned   by   the   learned   trial
Court while awarding the punishment/sentence
less than minimum provided under Section 376
of the Indian Penal Code that as the accused
had a responsibility to maintain his family
members   and   therefore,   punishment/sentence
less than the minimum provided under the Act
can   not   be   said   to   be   germane   and/or   it
cannot   be   said   that   adequate   reasons   have
been   assigned   while   awarding   the
sentence/punishment   less   than   the   minimum
provided   under   Section   376   of   Indian   Penal
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Code. 
3.4  Making the above submissions and relying
upon the above decisions it is requested to
impose   maximum   punishment   provided   for   the
offence   under   Sections   376   and   377   of   the
Indian Penal Code. 
4.  Present   Appeal   is   opposed   by   Shri
K.K.Brahmbhatt, learned advocate appearing on
behalf   of   the   accused.   He   has   vehemently
submitted that in the present case one of the
victim   has   turned   hostile   and/or   not
supported the case of the prosecution. It is
submitted that even the prosecution case is
not   supported   by   any   medical   evidence.
However, it is required to be noted that in
the present Appeal is preferred by the State
for enhancement of the sentence and when the
accused   has   accepted   the   impugned   judgment
and order of conviction and the conviction of
the accused has attained the finality, this
Court is not required to consider anything on
merits.   As   observed   above,   this   Court   is
required to consider whether while convicting
the   accused   for   the   offence   under   Sections
376, 377 and 506(2) of the Indian Penal Code
the   learned   trial   Court   is   justified   in
imposing the sentence which is imposed by the
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learned trial Court ? 
4.1   It is submitted that in the aforesaid
facts and circumstances and when the reasons
are assigned by the learned trial Court while
awarding the sentence less than the minimum
provided   under   Section   376   of   the   Act   i.e.
the   accused   was   married   and   that   he   has   a
responsibility to maintain his family members
and   when   the   learned   trial   Court   has
exercised the discretion which is vested in
it, it cannot be said that the learned trial
Court   has   committed   any   error.   It   is
submitted that it cannot be disputed that the
learned   trial   Court   had   a   discretion   to
impose the sentence/punishment less than the
minimum   provided   under   Section   376   of   the
Act, however while exercising such discretion
the   learned   trial   Court   was   required   to
assign the reasons which in the present case
while  exercising   the  discretion  the  learned
trial   Court   has   assigned   the   reasons.
Therefore,   it   is   requested   to   dismiss   the
present   appeal   by   confirming   the   impugned
judgment and order of conviction and sentence
passed by the learned trial Court.    
5.  Heard   the   learned   advocates   for   the
respective parties at length. At the outset,
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it is required to be noted that as such by
the impugned judgment and order the learned
trial   Court   has   already   convicted   the
original   accused   for   the   offences   under
Sections   376,   377   and   506(2)   of   the   Indian
Penal   Code.   However,   while   convicting   the
original   accused   for   the   offence   under
Section   376   of   the   Indian   Penal   Code   the
learned trial Court has imposed sentence of
only   three   and   half   years   and   fine   of
Rs.1,000/­ and has imposed the sentence of 03
years   R.I.   with   fine   of   Rs.500/­   for   the
offence under Section 377 of the Indian Penal
Code   and   has   sentenced   to   undergo   01   year
R.I.   with   fine   of   Rs.250/­   for   the   offence
under   Section   506(2)   of   the   Indian   Penal
Code. Thus, while convicting the accused for
the offence under Section 376 of the Indian
Penal   Code   the   learned   trial   Court   has
imposed the sentence which is less than the
minimum prescribed under the Code. Therefore,
the  short  question  paused  for  consideration
before this Court is whether in the facts and
circumstances   the   learned   trial   Court   is
justified in awarding the sentence/punishment
which   is   less   than   the   minimum   prescribed
under the Code ? and/or whether the sentence
imposed   by   the   learned   trial   Court   can   be
said   to   be   just   and   adequate   punishment   ?
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While   considering   the   aforesaid   questions
paused   for   consideration   of   this   Court
following   decisions   of   the   Hon’ble   Supreme
Court   are   required   to   be   referred   to   and
consider;  
5.1   In the case of  State of M.P. vs. Bala
alias   Balaram,   (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)
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
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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   Code   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. vs. Munna Choubey, (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
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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   Code
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
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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 fails
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
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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. 
5.2  In the case of Sumer Singh vs. Surajbhan
Singh   and   others,   (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
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need   for   appropriate     punishment   in
paragraph­36   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   Code   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
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imposed by the learned trial Judge.”
5.3   Again in the case of Narinder Singh and
others   vs.   State   of   Punjab   and   another,
(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)
vis­a­vis 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
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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
Code.
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
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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.”
5.4   While considering the minimum sentence
provided under Section 376(2) of the IPC the
Hon’ble Supreme Court in the case of State of
Karnataka vs. Krishnappa, (2000) 4 SCC 75  in
para   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.
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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
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a serious blow to her supreme honour and offends
herself­esteem   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.”
5.5  While considering the discretion vested
in the court while awarding the sentence less
than the minimum provided under Section 376
of the IPC and the direction on the judges to
levy   the   appropriate   sentence   the   Hon’ble
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Supreme   Court   in   the   case   of  Shimbhu   and
another vs. State of Haryana, (2014) 13 SCC
318,  has observed in para 11, 19 and 22 as
under :­ 
“11.  The   crucial   stage   in   every   criminal
proceeding is the stage of sentencing. It is the
most complex and difficult stage in the judicial
process.   The   Indian   legal   system   confers   ample
discretion on the Judges to levy the appropriate
sentence.   However,   this   discretion   is   not
unfettered in nature rather various factors like
the   nature,   gravity,   the   manner   and   the
circumstances   of   the   commission   of   the   offence,
the   personality   of   the   accused,   character,
aggravating as well as mitigating  circumstances,
antecedents etc., cumulatively  constitute as the
yardsticks   for   the   Judges   to   decide   on   the
sentence   to   be   imposed.   Indisputably,   the
sentencing   Courts   shall   consider   all   relevant
facts   and   circumstances   bearing   on   the   question
of   sentence   and   impose   a   sentence   commensurate
with the crime committed.
19. Thus, the law on the issue can be summarized
to   the   effect   that   punishment   should   always   be
proportionate/commensurate   to   the   gravity   of
offence.   Religion,   race,   caste,   economic   or
social   status   of   the   accused   or   victim   or   the
long pendency of the criminal trial or offer of
the rapist to marry the victim or the victim is
married  and  settled  in   life  cannot   be   construed
as   special   factors   for   reducing   the   sentence
prescribed   by   the   statute.   The   power   under   the
proviso should not be used indiscriminately in a
routine,   casual   and   cavalier   manner   for   the
reason   that   an   exception   clause   requires   strict
interpretation. 
22. This is yet another opportunity to inform the
subordinate   Courts   and   the   High   Courts   that
despite   stringent   provisions   for   rape   under
Section   376,   IPC,   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
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already   undergone   to   suffice   as   the   punishment,
by taking aid of the proviso to Section 376(2),
IPC. The above trend exhibits stark insensitivity
to   the   need  for  proportionate   punishments   to   be
imposed in such cases.”
5.6   In the recent decision in the case of
Satish  Kumar  Jayantilal  Dabgur  vs.   State  of
Gujarat,  (2015) 7 SCC 359,  in   a   case   where
the   accused   was   convicted   for   the   offence
under Section 376 of the IPC having committed
a rape of a minor girl the Hon’ble Supreme
Court   has   emphasized   awarding   appropriate
punishment   regarding   such   a   crime   as   a
heinous crime. It is further observed by the
Hon’ble Supreme Court in the case that such
an act of sexual assault has to be abhorrent.
In the aforesaid decision the Hon’ble Supreme
Court   also   considered   para­33   to   36   of   its
earlier decision in the case of  Sumer Singh
vs.   Surajbhan,   (2014)   7   SCC   323  and
thereafter   in   para­19   has   observed   as
under :­  
“19.       Merely   because   the   appellant   has   now
married,   hardly   becomes   a   mitigating
circumstances.   Likewise,   the   appellant   cannot
plead   that   the   prosecutrix   is   also   married   and
having   a   child   and,   therefore,   the   appellant
should be leniently treated.” 
5.7   In the case of Prahlad and another vs.
State   of   Haryana,   (2015)   8   SCC   688,  the
Hon’ble Supreme Court has again observed that
the   sentence   in   respect   of   offence   of   rape
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has to be in consonance with the law. It is
further   observed   that   concept   of   special
reasons   as   engrafted   in   Section   376   of   the
IPC is not to be invoked for the asking. In
the aforesaid decision while considering the
impact of the offence of rape on the society
at a large the Hon’ble Supreme Court in para­
17 has observed as under :­ 
“17.   It has to be borne in mind that an offence
of   rape   is   basically   an   assault   on   the   human
rights   of   a   victim.   It   is   an   attack   on   her
individuality.   It   creates   an   incurable   dent   in
her right and free will and personal sovereignty
over   the   physical   frame.   Everyone   in   any
civilised   society   has   to   show   respect   for   the
other individual and no individual has any right
to   invade   on   physical   frame   of   another   in   any
manner. It is not only an offence but such an act
creates a scar in the marrows of the mind of the
victim.   Anyone   who   indulges   in   a   crime   of   such
nature   not   only   does   he   violate   the   penal
provision of the IPC but also right of equality,
right of individual identity and in the ultimate
eventuality   an   important   aspect   of   rule   of   law
which   is   a   constitutional   commitment.   The
Constitution   of   India,   an   organic   document,
confers rights. It does not condescend or confer
any allowance or grant. It recognises rights and
the   rights   are   strongly   entrenched   in   the
constitutional   framework,   its   ethos   and
philosophy,   subject   to   certain   limitation.
Dignity   of   every   citizen   flows   from   the
fundamental   precepts   of   the   equality   clause
engrafted   under   Articles   14   and   right   to   life
under   Article   21   of   the   Constitution,   for   they
are   the   “fons   juris”   of   our   Constitution.   The
said rights are constitutionally secured.”   
  It   is   further   observed   by   the   Hon’ble
Supreme   Court   in   the   said   decision   that
therefore,   regard   being   had   to   gravity   of
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offence,   reduction   of   sentence,   indicating
any   imaginary   special   reason,   would   be   an
anathema to very concept of rule of law. It
is observed that, perpetrators of the crime
must realize, that when they indulge in such
offence,   they   really   create   a   concavity   in
dignity   and   bodily   integrity   of   an
individual, which is recognised, assured and
affirmed by very essence of Article 21 of the
Constitution. 
6.  Applying the law laid down by the Hon’ble
Supreme Court in the aforestated decisions to
the facts of the case on hand awarding the
sentence of only three and half years for the
offence under Section 376 of the IPC by no
stretch of imagination it can be said to be
imposing   adequate   punishment   commensurate
with   the   gravity   of   the   offence.   It   is
required to be noted that in the present case
at   the   time   of   commission   of   offence   the
accused was aged 38 years of age and both the
victim/prosecutrix were less than 16 years of
age, out of which one victim/prosecutrix was
the step­daughter i.e. accused was the step
father.   Even   one   of   the   victim/prosecutrix
and her mother was helpless lady as she was a
divorcee   was  constrained   to become  hostile.
As   observed   above   the   accused   has   also

convicted offence under Sections 376, 377 and
506(2) of the IPC.  
6.1     The   only   reason   given   by   the   learned
trial   Court   while   imposing   the   punishment
lesser   than   the   minimum   provided   under
Section 376 of the IPC is that the accused is
a poor and has a responsibility to maintain
his   wife   and   children.   The   aforesaid   can
hardly be said to be a cogent reason and/or
special circumstances/case while awarding the
punishment   less   than   the   minimum   provided
under Section 376 of the IPC. As observed by
the   Hon’ble   Supreme   Court   in   the   catena   of
decisions   and   as   observed   hereinabove   the
offence of rape is a heinous crime not only
against the individual but also against the
society   at   large.   The   offences   against   the
woman more particularly under Section 376 of
the IPC are increasing. Therefore a massage
must   go   to   the   society   that   if   such   an
offence is committed it shall be dealt with
iron­hand and strictly and that no leniency
shall be shown. Thus, in the present appeal
the learned trial Court has not exercised the
discretion   judiciously   and   it   can   be   said
that   the   learned   trial   Court   has   failed   to
perform   its   duty   as   a   Judge   while   awarding
appropriate   and   adequate   punishment   to   an

offender   who   is   convicted   for   the   offence
under   Sections   376,   377   and   506(2)   of   the
Indian Penal Code.    
  
7.  In   view   of   the   above   and   for   the   reasons
stated   above,   the   present   appeal   succeeds.
The impugned judgment and order passed by the
learned   Additional   Sessions   Judge,   Court
No.13, Ahmedabad, in Sessions Case No.122 of
2009 is hereby quashed and set aside insofar
as awarding of sentence for the offence under
Sections 376 and 377 of the Indian Penal Code
is   concerned.   While   convicting   the   accused
for   the   offence   under   Section   376   of   the
Indian Penal Code the accused is sentenced to
undergo   10   (ten)   years   R.I.   with   fine   of
Rs.10,000/­ and in default of payment of fine
to undergo further 06 (six) months R.I. and
he   is   also   sentenced   to   undergo   07   (seven)
years R.I. for the offence under Section 377
of the Indian Penal Code and fine of Rs.500/­
and in default of payment of fine to undergo
further R.I. for 02 (two) months and sentence
imposed   by   the   learned   trial   Court   while
convicting   the   original   accused   for   the
offence   under   Section   506(2)   of   the   Indian
Penal   Code   is   hereby   maintained.   All   the
sentences to run concurrently. The accused to
surrender   before   the   jail   authority   to

undergo   the   remaining   sentence   as   per   the
present judgment and order within a period of
04   (four)   weeks   from   today,   failing   which
non­bailable warrant be issued against him to
undergo   the   remaining   sentence.   Present
Appeal is allowed to the aforesaid extent.
(M.R.SHAH, J.)
(Z.K.SAIYED, J.)

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