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REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1439       OF     2012   (@SPECIAL LEAVE PETITION (CRL.)NO.4235 OF 2011)  

PUSHPANJALI SAHU                 APPELLANT                  VERSUS STATE OF ORISSA & ANR.                RESPONDENTS

O     R     D     E     R   1.Leave granted. 2.This appeal is directed against the judgment  

and order passed by the High Court of  Judicature of Orissa at Cuttack in Criminal  Revision No.676 of 1999, dated 28.09.2010.  By the impugned judgment and order, the High  Court, while confirming the order passed by  the learned Sessions Judge, Keonjhar, Orissa  in Criminal Appeal No.59 of 1995, has  modified the sentence awarded to the accused  to the period already undergone by him. It  is this portion of the order which is taken  exception to by the complainant in this  appeal. The only issue that arises for our  consideration and decision in this appeal  is: whether the High Court was justified in  

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altering/modifying the quantum of sentence  awarded by the learned Trial Judge and  confirmed by the Sessions Court.

3.The complainant was employed as a Matron in  a Government Women's College Hostel.  The  accused was a chowkidar/night watchman in  that hostel. The offence that was alleged  against the appellant was that he committed  an offence of rape under Section 376 of the  Indian Penal Code on the complainant. The  prosecution had led its evidence. The Trial  Court, after analysing the evidence on  record, concluded that the prosecution has  proved its case and accordingly, convicted  the accused and awarded the sentence  directing the accused to undergo  imprisonment for a period of 7 years.

4.Being aggrieved by the aforesaid order  passed by the Trial Court, the accused had  filed an appeal before the learned Sessions  Judge, Keonjhar, Orissa. The appellate  court, after considering the entire evidence  on record has confirmed the order passed by  

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the Trial Court. 5.The accused, being aggrieved by the  

aforesaid two orders, had filed a Revision  Petition before the High Court. The High  Court once again has considered the entire  issue in detail and thereafter has come to  the conclusion that the Trial Court was  justified in coming to the conclusion that  the accused has committed the offence of  rape against the matron of the hostel.  However, taking a lenient view of the  matter, has reduced the sentence awarded by  the Trial Court from 7 years to the period  already undergone by the accused i.e. about  a year.

6.We had issued notice against the accused  confining to the issue regarding the  sentence.  The accused could not be served  through the regular process.  Therefore, we  had issued non-bailable warrants against the  accused to secure his presence.  The police  authorities have secured the presence of the  accused and he is present before us today.

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7.We have heard learned counsel for the  appellant, the State and also for the  accused person and have also looked into the  provisions of Section 376 of the Indian  Penal Code, 1860.  The said provision reads  as under : “376. Punishment for rape.—(1) Whoever,  except in the cases provided for by sub- section (2), commits rape shall be  punished with imprisonment of either  description for a term which shall not  be less than seven years but which may  be for life or for a term which may  extend to ten years and shall also be  liable to fine unless the woman raped is  his own wife and is not under twelve  years of age, in which cases, he shall  be punished with imprisonment of either  description for a term which may extend  to two years or with fine or with both: Provided that the court may, for  adequate and special reasons to be  mentioned in the judgment, impose a  sentence of imprisonment for a term of  less than seven years. (2) Whoever: - (a) Being a police officer commits rape- (i) Within the limits of the police  station to which he is appointed; or (ii) In the premises of any station  house whether or not situated in the  police station to which he is appointed;  or (iii) On a woman is his custody or in  the custody of a police officer  subordinate to him; or (b) Being a public servant, takes  

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advantage of his official position and  commits rape on a woman in his custody  as such public servant or in the custody  of a public servant subordinate to him;  or (c) Being on the management or on the  staff of a jail, remand home or other  place of custody established by or under  any law for the time being in force or  of a woman's or children's institution  takes advantage of his official position  and commits rape on any inmate of such  jail, remand home, place or institution;  or (d) Being on the management or on the  staff of a hospital, takes advantage of  his official position and commits rape  on a woman in that hospital; or (e) Commits rape on a woman knowing her  to be pregnant; or (f) Commits rape when she is under  twelve years of age; or (g) Commits gang rape, Shall be punished with rigorous  imprisonment for a term which shall not be  less than ten years but which may be for  life and shall also be liable to fine: Provided that the court may, for  adequate and special reasons to be  mentioned in the judgment, impose a  sentence of imprisonment of either  description for a term of less than ten  years. Explanation 1 Where a woman is raped by one or more in  a group of persons acting in furtherance  of their common intention, each of the  persons shall be deemed to have  committed gang rape within the meaning  of this sub-section. Explanation 2 "Women's or children's institution  

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"means an institution, whether called an  orphanage or home for neglected women or  children or a widows' home or by any  other name, which is established and  maintained for the reception and care of  women or children. Explanation: 3 "Hospital" means the precincts of the  hospital and includes the precincts of  any institution for the reception and  treatment of persons during  convalescence or of persons requiring  medical attention or rehabilitation].”

8. A reading of the above provisions would  clearly indicate that if a person is convicted  under Section 376 of the I.P.C., the Court can  award imprisonment for not less than 7 years  which may also extend for life. The provision  also makes it abundantly clear that, if for  any reason, the sentence has to be reduced,  the Court ought to give appropriate reasons. 9. In the instant case, we have gone through  the judgment of the High Court reducing the  sentence from 7 years to the period already  undergone.  We are not convinced with the  reasons assigned by the High Court.   

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10. This Court in State of Madhya Pradesh v.  Pappu, (2008) 16 SCC 758, considered the  similar question of validity and justifiability  of reduction of sentence, awarded by the Trial  Court to the accused convicted under Section  376(1) read with Section 511 of the Indian  Penal Code, 1860 (in short “IPC”) and Sections  324 and 452 IPC, by the High Court. This Court  relying upon its earlier observations in State  of M.P. v. Ghanshyam Singh, (2003) 8 SCC 13 and  State of M.P. v. Babbu Barkare, (2005) 5 SCC  413 observed that undue sympathy towards the  accused by imposition of inadequate sentence  would do more harm to the justice system by  undermining the confidence of society in the  efficacy of law and society could not long  endure under such serious threats. The Courts  therefore are duty bound to award proper  sentence having regard to the nature and manner  of execution or commission of the offence. This  Court, highlighted the dangers of imposition of  sentence without due regard to its effects on  the social order and opined as follows:

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“9. “17. 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  sentences or taking too sympathetic a 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 and strengthened by  a string of deterrence inbuilt in the  sentencing system. 19. …  The court will be failing in its  duty if appropriate punishment is not  awarded for a crime which has been  committed not only against the individual  victim but also against the society to  which the criminal and victim belong. The  punishment to be awarded for a crime must  not be irrelevant but it should conform to  and be consistent with the atrocity and  brutality with which the crime has been  perpetrated, the enormity of the crime  warranting public abhorrence and it should  ‘respond to the society's cry for justice  against the criminal’. If for the  extremely heinous crime of murder  perpetrated in a very brutal manner  without any provocation, most deterrent  punishment is not given, the case of  deterrent punishment will lose its  relevance.””

11. This Court in State of Madhya Pradesh v.  Sheikh Shahid, (2009) 12 SCC 715, relying upon  its earlier judgment in State of M.P. v. Munna  Choubey, (2005) 2 SCC 710 has recorded its  

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observations on the yardstick of determining  sentence as the nature and gravity of the  offence and has cautioned against placing  reliance upon reasons such as accused being  from a rural background or length of time.  8. “6… “8. The physical scar may heal up, but  

the mental scar will always remain. When a  woman is ravished, what is inflicted is not  merely physical injury but a deep sense of  some deathless shame.

9. The law regulates social interests,  arbitrates conflicting claims and  demands. Security of persons and property  of the people is an essential function of  the State. It could be achieved through  instrumentality of criminal law.  Undoubtedly, there is a cross-cultural  conflict where living law must find  answer to the new challenges and the  courts are required to mould the  sentencing system to meet the challenges.  The contagion of lawlessness would  undermine social order and lay it in  ruins. Protection of society and stamping  out criminal proclivity must be the  object of law which must be achieved by  imposing appropriate sentence. Therefore,  law as a cornerstone of the edifice of  ‘order’  should meet the challenges  confronting the society. Friedman in his  Law in Changing Society stated that:  ‘State of criminal law continues to be—as  it should be—a decisive reflection of  social consciousness of society.’  Therefore, in operating the sentencing  system, law should adopt the corrective  machinery or the deterrence based on  factual matrix. By deft modulation the  sentencing process should be stern where  it should be, and tempered with mercy  where it warrants to be. The facts and  

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given circumstances in each case, the  nature of the crime, the manner in which  it was planned and committed, the motive  for commission of the crime, the conduct  of the accused, the nature of weapons  used and all other attending  circumstances are relevant facts which  would enter into the area of  consideration. For instance a murder  committed due to deep-seated mutual and  personal rivalry may not call for penalty  of death. But an organised crime or mass  murders of innocent people would call for  imposition of death sentence as  deterrence. In Mahesh v. State of M.P.  this Court while refusing to reduce the  death sentence observed thus: (SCC p. 82,  para 6)

‘6. ... it will be a mockery of  justice to permit these appellant- accused  to escape the extreme penalty of  

law when faced with such evidence  and such cruel acts. To give the  lesser punishment for the appellant- accused would be to render the  justicing system of this country  suspect. The common man will lose  faith in courts. In such cases, he  understands and appreciates the  language of deterrence more than the  reformative jargon.’

10. Therefore, undue sympathy to impose  inadequate sentence would do more harm to  the justice system to undermine the  public confidence in the efficacy of law,  and society could not long endure under  such serious threats. It is, therefore,  the duty of every court to award proper  sentence having regard to the nature of  the offence and the manner in which it  was executed or committed, etc. This  position was illuminatingly stated by  this Court in Sevaka Perumal v. State of  T.N.  

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11. The criminal law adheres in general  to the principle of proportionality in  prescribing liability according to the  culpability of each kind of criminal  conduct. It ordinarily allows some  significant discretion to the Judge in  arriving at a sentence in each case,  presumably to permit sentences that  reflect more subtle considerations of  culpability that are raised by the  special facts of each case. Judges in  essence affirm that punishment ought  always to fit the crime; yet in practice  sentences are determined largely by other  considerations. Sometimes it is the  correctional needs of the perpetrator  that are offered to justify a sentence.  Sometimes the desirability of keeping him  out of circulation, and sometimes even  the tragic results of his crime.  Inevitably these considerations cause a  departure from just deserts as the basis  of punishment and create cases of  apparent injustice that are serious and  widespread. 12. Proportion between crime and  punishment is a goal respected in  principle, and in spite of errant  notions, it remains a strong influence in  the determination of sentences. …  Even  now for a single grave infraction drastic  sentences are imposed. Anything less than  a penalty of greatest severity for any  serious crime is thought then to be a  measure of toleration that is unwarranted  and unwise. But in fact, quite apart from  those considerations that make punishment  unjustifiable when it is out of  proportion to the crime, uniformly  disproportionate punishment has some very  undesirable practical consequences. 13. After giving due consideration to the  facts and circumstances of each case, for  

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deciding just and appropriate sentence to  be awarded for an offence, the  aggravating and mitigating factors and  circumstances in which a crime has been  committed are to be delicately balanced  on the basis of really relevant  circumstances in a dispassionate manner  by the court. Such act of balancing is  indeed a difficult task. It has been very  aptly indicated in McGautha v. California  that no formula of a foolproof nature is  possible that would provide a reasonable  criterion in determining a just and  appropriate punishment in the infinite  variety of circumstances that may affect  the gravity of the crime. In the absence  of any foolproof formula which may  provide any basis for reasonable criteria  to correctly assess various circumstances  germane to the consideration of gravity  of crime, the discretionary judgment in  the facts of each case, is the only way  in which such judgment may be equitably  distinguished. 14. In Jashubha Bharatsinh Gohil v. State  of Gujarat it has been held by this Court  that in the matter of death sentence, the  courts are required to answer new  challenges and mould the sentencing  system to meet these challenges. The  object should be to protect the society  and to deter the criminal from achieving  the avowed object of law by imposing  appropriate sentence. It is expected that  the courts would operate the sentencing  system so as to impose such sentence  which reflects the conscience of the  society and the sentencing process has to  be stern where it should be. Even though  the principles were indicated in the  background of death sentence and life  sentence, the logic applies to all cases  where appropriate sentence is the issue.

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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  sentences or taking too sympathetic a  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 and strengthened by  string of deterrence inbuilt in the  sentencing system. 16.  In Dhananjoy Chatterjee v. State of  W.B. this Court has observed that a  shockingly large number of criminals go  unpunished thereby increasingly  encouraging the criminals and in the  ultimate, making justice suffer by  weakening the system's creditability. The  imposition of appropriate punishment is  the manner in which the court responds to  the society's cry for justice against the  criminal. Justice demands that courts  should impose punishment befitting the  crime so that the courts reflect public  abhorrence of the crime. The court must  not only keep in view the rights of the  criminal but also the rights of the  victim of the crime and the society at  large while considering the imposition of  appropriate punishment. 17. Similar view has also been expressed  in Ravji v. State of Rajasthan. It has  been held in the said case that it is the  

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nature and gravity of the crime and not  the criminal, which are germane for  consideration of appropriate punishment  in a criminal trial. The court will be  failing in its duty if appropriate  punishment is not awarded for a crime  which has been committed not only against  the individual victim but also against  the society to which the criminal and  victim belong. The punishment to be  awarded for a crime must not be  irrelevant but it should conform to and  be consistent with the atrocity and  brutality with which the crime has been  perpetrated, the enormity of the crime  warranting public abhorrence and it  should ‘respond to the society's cry for  justice against the criminal’. If for an  extremely heinous crime of murder  perpetrated in a very brutal manner  without any provocation, the most  deterrent punishment is not given, the  case of deterrent punishment will lose  its relevance.”

12. Learned counsel for the accused has taken  us through the reasons assigned by the High  Court. The case on hand, in our considered  opinion, does not fall within the category of  exceptional cases and as we have already  observed, we are not convinced with the reasons  assigned by the High Court for reducing the  sentence. In this view of the matter, while  allowing this appeal, we set aside that portion  of the order passed by the High Court reducing  

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the period of sentence from 7 years to the  period already undergone by the accused. We now  direct that the accused be convicted and  sentenced for a period of 7 years.  It is  needless to mention that the period already  undergone by the accused shall be set off.    

13. Before parting, we wish to reflect upon the  dehumanizing act of physical violence on women  escalating in the society. Sexual violence is  not only an unlawful invasion of the right of  privacy and sanctity of a woman but also a  serious blow to her honour. It leaves a  traumatic and humiliating impression on her  conscience—  offending her self-esteem and  dignity. This Court in State of H.P. v. Shree  Kant Shekari, (2004) 8 SCC 153 has viewed rape  as not only a crime against the person of a  woman, but a crime against the entire society.  It indelibly leaves a scar on the most  cherished possession of a woman i.e. her  dignity, honour, reputation and not the least  her chastity. It destroys, as noted by this  Court in Bodhisattwa Gautam v. Subhra  

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Chakraborty,(1996) 1 SCC 490 the entire  psychology of a woman and pushes her into deep  emotional crisis. It is a crime against basic  human rights, and is also violative of the  victim's most cherished of the fundamental  rights, namely, the right to life contained in  Article 21 of the Constitution. 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.  

14. In the light of the above discussion, we  allow this appeal.  The impugned order is set  aside.  We restore the order passed by the  Trial Court.

Ordered accordingly.  

.......................J. (H.L. DATTU)

.......................J. (CHANDRAMAULI KR. PRASAD)

NEW DELHI; SEPTEMBER 18, 2012  

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