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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 230 OF 2013

SATISH KUMAR JAYANTI LAL DABGAR …..APPELLANT(S)

VERSUS

STATE OF GUJARAT …..RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Though, this Court vide order dated 18.09.2012 appointed Mr.  

Parmanand Katara as Amicus Curiae, he has not appeared.  This is  

an  unfortunate  situation  and  we  do  not  appreciate  the  same.  

However, on our request, Mr. Mohan Pandey, learned counsel who  

was present in the Court pertaining to other case agreed to assist the  

Court.   He was given time to  go through and prepare the matter.  

Thereafter, the matter was heard when he was fully ready with the  

same.

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2) This appeal arises out of the judgment dated 04.04.2011 passed by  

the High Court of Gujarat in Criminal Appeal No.2158/2005, whereby  

the High Court  has partly  allowed the said appeal.   The appellant  

herein was put on trial and convicted for offences under Sections 363,  

366 as well as 376 of the Indian Penal Code (for short the 'IPC') and  

was sentenced to undergo rigorous imprisonment for committing the  

aforesaid offences as under:

(a) For  committing  the  offence  punishable  under  Section 363  

IPC, the trial court sentenced him to undergo imprisonment  

for  a  period  of  three  years  and  also  imposed  a  fine  of  

Rs.2,000/- with the clause that in default of payment of fine,  

the appellant will have to undergo simple imprisonment for a  

period of one month.

(b) Qua the conviction recorded for the offence punishable under  

Section 366 of the IPC, sentenced imposed by the trial court  

was five years imprisonment with fine of Rs.3,000/- and in  

default  of  payment  of  fine,  sentenced  to  undergo  simple  

imprisonment for a period of two months.

(c) For committing the offence punishable under Section 376 of  

the IPC, the appellant was imposed rigorous imprisonment  

for a period of seven years and also fine of Rs.45,000/- with  

the stipulation that in the event, appellant defaults in paying  

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the fine, he would have to undergo simple imprisonment for a  

period of one year.

The aforesaid amount of Rs.45,000/-, if payable by the appellant as  

fine, was ordered to be paid to the victim as a compensation.  All the  

sentences were to run concurrently.

3) In  the  appeal  preferred  by  the  appellant  against  the  aforesaid  

conviction, the High Court has affirmed the conviction, as accorded by  

the  trial  court.   However,  at  the  same  time,  it  has  modified  the  

sentence by reducing it to rigorous imprisonment for a period of 4½  

years instead of 7 years for the offence punishable under Section 376  

of the IPC.  With this solitary modification resulting into partial allowing  

of the appeal, rest of the judgment and sentence dated 15.09.2005  

passed by the learned Additional Sessions Judge, Sabarkantha, 4 th  

Fast Track Court, Modasa, Gujarat has been affirmed.

4) The appellant was implicated and charged under Sections 363, 366  

and 376 of the IPC under the following circumstances.

On 01.09.2003 at about 17.15 hours when wife of the complainant  

returned from the market purchasing vegetable, she could not find her  

daughter at home.  On inquiring from one Hansaben, she came to  

know that the knowledge that the appellant had come to their house  

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and had a talk with their  daughter.   Thereafter,  the appellant  went  

towards  the  market  and  after  sometime,  prosecutrix  also  went  

towards the market.  The complainant inquired from the shop of the  

uncle of  the appellant  and he was told that  the appellant  and the  

prosecutrix  had  gone towards  Modasa Bus Stand.   The complaint  

rushed to the Modasa Bus Stand, but could not find the appellant or  

the prosecutrix there.  It is also the case of the prosecution that son of  

the uncle of the appellant told that he had seen the appellant and the  

prosecutrix - Anita at the Modasa Bus Stand some time ago.  Since  

the prosecutrix could not be traced, a complaint to the said effect was  

registered  by  the  complainant  on  05.09.2003  with  Meghraj  Police  

Station.  Two days after the said complaint, the appellant surrendered  

himself  before  the  Police  on  07.09.2003.   Thereafter,  necessary  

panchnama came to be drawn and statements of the appellant and  

prosecutrix  were  recorded.   They  were  also  sent  for  medical  

examination.  Clothes of the appellant and prosecutrix were seized in  

the  presence  of  panchas  and  were  sent  for  analysis  to  FSL,  

Ahmedabad.  The investigation revealed sufficient evidence against  

the appellant.  This led to his formal arrest on 30.11.2003.  Thereafter,  

as the case was exclusively triable by the Court of Sessions, the case  

was committed to Sessions Court, Himmatnagar.

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5) After  framing  of  the  charge,  the  trial  proceeded.   The prosecution  

examined  as  many  as  11  witnesses  to  prove  the  charges.   The  

particulars of these witnesses are as under:

No. Ex. Name of witnesses 1 8 Rasikbhai Hirabhai  

Dabagar complainant/  

supporter 2 10 Daughter of Rasikbhai  

Hirabhai Dabagar Victim/supporter

3 15 Punamchand Laljibhai  Dabagar

Witness/supporter

4 16 Rakesh Kumar  Punamchand

Witness/supporter

5 17 Hansaben Punamchand  Dabagar

Witness/supporter

6 18 Mulljibhai Dayashankar  Upadhayaya

IO, who made  chargesheet

7 25 Chandanben Rasiklal  Dabgar

witness/supporter

8 27 Bhikhabhai Manbhai  Parmar

witness/supporter

9 28 Kanubhai Jaychandbhai  Chaudharay

Main IO

10 33 Dr. Rajkamal Shri  Adhyasharan

Medical Officer

11 39 Bharat Kumar  Babarbhai Patel

Employee of Nagar  Palika

6) In addition, following documents were produced and exhibited through  

the witnesses:

1 Original Complaint by Ex. 9. 2 Panchnama of scene of offence by Ex.11. 3 Panchnama of clothes of victim and accused seized by Ex.12. 4 Receipt of FSL for having received the Muddamal by Ex.19. 5 Forwarding letter of FSL regarding having sent the FSL report by  

Ex.20

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6 FSL report by Ex.21. 7 Report showing the results of serological analysis by Ex.22. 8 Birth Certificate of victim by Ex.26. 9 Muddamal dispatch note by Ex.29.

10 Yadi made by police for making medical examination of accused by  Ex.34.

11 Medical certificate of physical examination of Victim by Ex.35. 12 Medical certificate of physical examination of accused by Ex.36. 13 Abstract of Birth Registration Register of Nagarpalika by Ex.40.

7) After  conclusion of  the prosecution evidence,  the statement  of  the  

accused was recorded under  Section 313 of  the Code of  Criminal  

Procedure.   In  his  statement,  the  appellant  stated  that  he  was  

innocent.  His defence was that he and prosecutrix were in love with  

each other and had tied nuptial knot with free consent of the victim.  

Marriage  between  them  was  solemnized  as  per  Hindu  rites  on  

09.03.2003 at Unza which was got registered as well.  The appellant  

produced Memorandum of Marriage as Ex.43 depicting registration of  

marriage,  issued by the  Marriage  Registrar,  Unza.   The  appellant,  

thus,  maintained  that  a  false  case  was  filed  against  him.   He,  

however, did not examine any defence witness.

8) After  hearing  the  arguments,  the  learned  trial  court  arrived  at  the  

conclusion that  charges against  the appellant  under  Sections 363,  

366 and 376 IPC were fully proved beyond any reasonable doubt.  It  

was primarily on the ground that  the prosecutrix was less than 16  

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years of age on the date of the incident i.e. 01.09.2003 and, therefore,  

there was no question of giving any consent by her and the alleged  

consent was of no value.  A perusal of the judgment of the learned  

Additional  Sessions  Judge  shows  that  according  to  him,  following  

points had arisen for consideration:

1. Whether  the  Prosecution  proves  beyond  doubt that the victim of this case was minor on  the day of incident dated 01.09.2003?

2. Whether  the  Prosecution  proves  beyond  doubt  that  at  about  quarter  past  five  pm  on  01.09.2003, the accused had kidnapped minor  daughter  of  Rasikbhai  Hirabhai  from  his  guardianship  without  any  kind  of  permission  from Megharaj  and thereby he has committed  the offence punishable u/s 363 of IPC?

3. Whether  the  Prosecution  proves  beyond  doubt that at aforesaid time and date, despite  knowing  that  she  is  minor,  the  accused  with  intention to marry her  and to commit  external  marital  sexual  intercourse,  had  enticed  and  cajoled  and  kidnapped  her  from  lawful  guardianship and taken her at some other place  and  thereby  he  has  committed  the  offence  punishable u/s 366 of IPC?

4. Whether  the  Prosecution  proves  beyond  doubt  that  at  aforesaid  time  and  date  kidnapping  the  victim  minor  daughter  of  complainant  from  his  lawful  guardianship  that  accused  had  kidnapped  and  taken  her  at  different  places  and  despite  he  is  a  married  male  person,  had  committed  rape  sexual  intercourse  with  her  without  her  desire  and  consent  and  thereby  he  has  committed  the  offence punishable u/s 376 of IPC?

5. What order?

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9) The questions formulated at Serial Nos.1 to 4 above were decided in  

the affirmative.  The discussion in the judgment reveals that it was an  

admitted case that the victim and the accused were from the same  

community and they both had gone out of station together.  It  was  

also  established  on  record  that  there  was  physical  relationship  

between them at different places and at different times and marriage  

was also performed on 09.03.2003 at Unza which was duly registered  

in the Office of Marriage Registrar.  However, the primary defence of  

the appellant was that the prosecutrix was major; she accompanied  

the appellant willingly and entered into physical relationship as well as  

matrimonial  alliance  out  of  her  free  will,  desire  and  consent.  

Therefore, the most important question before the trial court, on which  

the fate of the case hinged, was the age of the victim from which it  

could be discerned as to whether she was major on the date of the  

incident or not.

10) In order to prove that the victim was below 16 years at the relevant  

time, the prosecution had produced xerox copy of school certificate  

where  she  had  studied  which  was  marked  as  6/4.   However,  the  

learned Additional Sessions Judge, for various reasons recorded in  

the impugned judgment, opined that this xerox copy was not proved in  

accordance  with  law  and,  therefore,  could  not  be  taken  into  

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consideration  to  determine  the  age  of  the  prosecutrix.   Since,  no  

reliance is place thereupon by the prosecution thereafter in the High  

Court  and before  us as well,  it  is  not  necessary  to  delve into  the  

reasons which had persuaded the trial court to take the aforesaid view  

in respect of this particular document.

11) Notwithstanding the fact that the aforesaid document was discarded,  

the trial court accepted the version of the prosecution by arriving at  

the finding that the prosecutrix was below the age of 16 years on the  

date  of  occurrence.   This  finding  is  based  on  the  deposition  of  

Chandanben,  mother  of  the  victim  coupled  with  Birth  Certificate  

(Ex.26) issued by Dholka, Nagar Palika where the victim was born.  In  

her deposition, Chandanben had stated that the prosecutrix was born  

in a hospital in Dholka, Nagar Palika and Ex.26 was produced which  

was issued by Dholka, Nagar Palika.  To prove the authenticity of this  

certificate, an employee from Dholka, Nagar Palika was summoned  

on the application made by the prosecution.  One Mr. Bharat Kumar  

Babarbhai  Patel  appeared with the requisite  records.   He not  only  

testified to the effect that Ex.26 was issued by Dholka, Nagar Palika,  

but this evidence was further corroborated by producing register of  

birth and death maintained by the said Nagar Palika which contained  

entry of the birth of the prosecutrix made at Serial Nos.1345 on Page  

No.91 in the year 1988.  Xerox copy of this document was taken on  

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record as Ex.40.  Believing in the authenticity of these documents, the  

trial court concluded that as per Ex.40 read with Ex.26, the date of  

birth of prosecutrix was 28.09.1988 and entry to this effect was made  

in  the  Register  on  01.10.1988  which  clearly  evinced  that  the  

prosecutrix was less than 16 years of age (in fact even less than 15  

years)  on 01.09.1993 when she was taken away by the appellant.  

Having regard to her age, the trial court concluded that it was a case  

of kidnapping as her consent was immaterial inasmuch as being a  

minor  she  was  not  capable  of  giving  any  consent  at  that  age.  

Likewise,  since sexual  intercourse had been virtually  admitted and  

proved as well by medical evidence, the same would clearly amount  

to rape.  Apart from the admission of the accused himself, the factum  

of sexual intercourse was proved by medical examination and Dr. Raj  

Kamal who had examined the victim as well as accused, had deposed  

to this effect.   

12) Taking into account the aforesaid evidence appearing on record, the  

High  Court  upheld  the  conviction  recorded  by  the  trial  court,  and  

rightly so, as we do not find any reason to deviate therefrom.  In fact,  

the learned counsel for the appellant could not make any argument  

which could dent the case of the prosecution even a bit.  In the face of  

aforesaid  material  staring at  the appellant,  learned counsel  for  the  

appellant was candid in his submission that he would press only for  

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reduction of sentence.  Otherwise also, it is a matter of record that this  

was the only plea raised by the counsel for the appellant even before  

the  High  Court.   The  learned  Amicus  Curiae,  therefore,  drew  our  

attention to para 12 of the impugned judgment wherein it is noted that  

the appellant was newly married (which means just before April, 2011  

when the judgment  of  the High Court  was delivered).   It  was also  

pleaded that he was a poor man and the only bread earner in his  

family.   Another  extenuating circumstance which was sought  to  be  

projected was that even though the prosecutrix was below 16 years of  

age at the time of incident, the entire episode was the result of love  

affair  between  the  appellant  and  the  prosecutrix  and  every  act  

between them was consensual.  It was also pointed out that even the  

prosecutrix  was  married  and  had  one  child  and,  therefore,  was  

happily  settled  in  her  matrimonial  home.   On  the  basis  of  these  

circumstances,  the  plea  was  made  that  the  appellant  should  be  

accorded sympathetic treatment by reducing the sentence imposed  

upon him.

13) Having regard to the aforesaid plea, we are called upon to consider  

the issue of sentence only in the present appeal.  The extenuating  

and mitigating circumstances narrated by the learned Amicus Curiae  

have been duly taken note of by the High Court as well.  In fact, going  

by these very circumstances projected by the defence, the High Court  

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reduced the sentence of seven years rigorous imprisonment imposed  

under Section 376 of the IPC to 4½ years.  We feel that appellant is  

not entitled to any further mercy.

14) First thing which is to be borne in mind is that the prosecutrix was less  

than 16 years of age.  On this fact, clause sixthly of Section 375 of the  

IPC would get attracted making her consent for sexual intercourse as  

immaterial and inconsequential.  It reads as follows:

“375.  Rape—A man  is  said  to  commit  “rape”  who,  except  in  the case hereinafter  excepted,  has sexual  intercourse with a woman under circumstances falling  under any of the six following descriptions:—

xx xx xx

Sixthly  - With  or  without  her  consent,  when  she  is  under sixteen years of age. Explanation.—Penetration  is  sufficient  to  constitute  the  sexual  intercourse  necessary to the offence of rape.”

15) The Legislature  has introduced the aforesaid  provision  with  sound  

rationale and there is an important objective behind such a provision.  

It  is considered that a minor is incapable of  thinking rationally and  

giving any consent.  For this reason, whether it is civil law or criminal  

law, the consent of a minor is not treated as valid consent.  Here the  

provision is concerning a girl child who is not only minor but less than  

16 years of age.  A minor girl can be easily lured into giving consent  

for such an act without understanding the implications thereof.  Such  

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a consent, therefore, is treated as not an informed consent given after  

understanding the pros and cons as well  as  consequences of  the  

intended action.  Therefore, as a necessary corollary, duty is cast on  

the other  person in  not  taking advantage of  the so-called consent  

given by a girl who is less than 16 years of age.  Even when there is a  

consent of a girl below 16 years, the other partner in the sexual act is  

treated as criminal who has committed the offence of rape.  The law  

leaves  no  choice  to  him  and  he  cannot  plead  that  the  act  was  

consensual.  A fortiori, the so-called consent of the prosecutrix below  

16 years of age cannot be treated as mitigating circumstance.

16) Once we put  the  things  in  right  perspective  in  the  manner  stated  

above, we have to treat it a case where the appellant has committed  

rape of a minor girl which is regarded as heinous crime.  Such an act  

of  sexual  assault  has  to  be  abhorred.   If  the  consent  of  minor  is  

treated  as  mitigating  circumstance,  it  may  lead  to  disastrous  

consequences.  This view of ours gets strengthened when we keep in  

mind the letter and spirit behind Protection of Children from Sexual  

Offences Act.

17) The purpose and justification behind sentencing is not only retribution,  

incapacitation, rehabilitation but deterrence as well.  Certain aspects  

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of  sentencing  were  discussed  by  this  Court  in  Narinder  Singh  v.  

State of Punjab, (2014) 6 SCC 466.  It would be apt to reproduce the  

said discussion at this juncture:

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  kinds.  Mostly,  punishment  provided  for  committing  offences is either imprisonment or monetary fine  or both. Imprisonment can be rigorous or simple in  nature.  Why  are  those  persons  who  commit  offences 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. 15.   Whereas  in  various  countries,  sentencing  guidelines  are provided,  statutorily  or  otherwise,  which  may  guide  Judges  for  awarding  specific  sentence,  in  India  we  do  not  have  any  such  sentencing policy till date.  The prevalence of such  guidelines  may  not  only  aim  at  achieving  consistencies  in  awarding  sentences  in  different  cases,  such  guidelines  normally  prescribe  the  sentencing  policy  as  well,  namely,  whether  the  purpose  of  awarding  punishment  in  a  particular  case  is  more  of  a  deterrence  or  retribution  or  rehabilitation,  etc.   In  the  absence  of  such  guidelines  in  India,  the  courts  go  by  their  own  perception  about  the  philosophy  behind  the  prescription  of  certain  specified  penal  consequences for particular nature of crime.  For  some  deterrence  and/or  vengeance  becomes  more important  whereas another  Judge may be  more influenced by rehabilitation or restoration as  the goal of sentencing.  Sometimes, it would be a  combination  of  both  which  would  weigh  in  the  mind  of  the  court  in  awarding  a  particular  sentence.  However,  that  may  be  question  of  quantum.

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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 Code. 17.   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 depict  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  

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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 conflicting 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.

18) Likewise,  this  Court  made  following  observations  regarding  

sentencing in the cases involved in sexual offences in the case of  

Sumer Singh v. Surajbhan Singh and others, (2014) 7 SCC 323.

33.   It  is  seemly  to  state  here  that  though  the  question of sentence is a matter of discretion, yet  the said discretion cannot be used by a court of  law  in  a  fanciful  and  whimsical  manner.  Very  strong  reasons  on  consideration  of  the  relevant  factors have to form the fulcrum for lenient use of  the said discretion.   It  is  because the ringing of  poignant and inimitable expression, in a way, the  warning of Benjamin N. Cardozo in The Nature of   the Judicial Process – Yale University Press, 1921  Edn., page 114.

“The Judge even when he is free, is still not wholly  free.  He is not to innovate at pleasure. He is not a  knight errant roaming at will in pursuit of his own  ideal of beauty or of goodness.  He is to draw his  inspiration from consecrated principles. He is not  to  yield  to  spasmodic  sentiment,  to  vague  and  unregulated  benevolence.  He  is  to  exercise  a  

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discretion  informed  by  tradition,  methodized  by  analogy, disciplined by system, and subordinated  to 'the primordial necessity of order in social life'.”

34.   In  this  regard,  we  may  usefully  quote  a  passage from Ramji Dayawala and Sons (P.) Ltd.   v. Invest Import, (1981) 1 SCC 80:

“20. ...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.  'Discretion',  said  Lord Mansfield in R. v. Wilkes, (1770) 4 Burr 2527,  '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'”  (see  Craies on Statute Law, 6th Edn., p.273).

35. In Aero Traders Pvt. Ltd.  v.  Ravinder Kumar  Suri, (2004) 8 SCC 307, the Court observed:

“6.  …According to Black's Law Dictionary 'Judicial  discretion'  means the exercise of  judgment  by a  judge  or  court  based  on  what  is  fair  under  the  circumstances  and  guided  by  the  rules  and  principles of law; a court's power to act or not act  when a litigant is not entitled to demand the act as  a matter of right.  The word 'discretion' connotes  necessarily an act of a judicial character, and, as  used  with  reference  to  discretion  exercised  judicially, it implies the absence of a hard-and-fast  rule, and it requires an actual exercise of judgment  and  a  consideration  of  the  facts  and  circumstances  which  are  necessary  to  make  a  sound,  fair  and  just  determination,  and  a  knowledge of the facts upon which the discretion  may  properly  operate.  (See  27  Corpus  Juris   Secundum, page  289).  When  it  is  said  that  something is to be done within the discretion of the  authorities, that something is to be done according  to  the  rules  of  reason  and  justice  and  not  according to private opinion; according to law and  not humour.  It only gives certain latitude or liberty  accorded  by  statute  or  rules,  to  a  judge  as  distinguished from a ministerial  or  administrative  

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official, in adjudicating on matters brought before  him.”

Thus, the judges are to constantly remind themselves that the  use of discretion has to be guided by law, and what is fair  under the obtaining circumstances.

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 for  two  years  apart  from  the  fine  that  has  been  

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imposed by the learned trial judge.”

19) Merely  because the appellant  has  now married  hardly  becomes a  

mitigating circumstance.   Likewise,  the appellant  cannot  plead that  

prosecutrix  is  also  married  and  having  a  child  and,  therefore,  

appellant  should  be  leniently  treated.   It  is  not  a  case  where  the  

appellant has married the prosecutrix.  Notwithstanding the same, as  

noted above, the High Court has already reduced the sentence from  

seven years rigorous imprisonment to 4½ years under Section 376 of  

the IPC.  Therefore, in any case, the appellant is not entitled to any  

further mercy.  The appeal, accordingly, fails and is dismissed.

20) The  appellant  was  released  on  bail  during  the  pendency  of  the  

present appeal.  He shall, accordingly, be taken into custody to serve  

the remaining sentence.   

…......................................J. (Dipak Misra)

…......................................J. (A.K. Sikri)

New Delhi; March 10, 2015

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