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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL  NO. 1860 OF 2010

Shyam Narain ...Appellant

Versus

The State of NCT of Delhi              ...Respondent

J U D G M E N T

Dipak Misra, J.

The  wanton  lust,  vicious  appetite,  depravity  of  

senses, mortgage of mind to the inferior endowments of  

nature, the servility to the loathsome beast of passion and  

absolutely  unchained  carnal  desire  have  driven  the  

appellant to commit a crime which can bring in a ‘tsunami’  

of shock in the mind of the collective, send a chill in the  

spine  of  the  society,  destroy  the  civilized  stems  of  the  

milieu and comatose the marrows of sensitive polity.  It is

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brutal rape of an eight year old girl.  The sensitive learned  

trial Judge, after recording conviction under Section 376(2)

(f) of the Indian Penal Code (for short “IPC”), had taken  

note of the brutality meted out to the child and sentenced  

him to undergo rigorous imprisonment for life and to pay a  

fine  of  Rs.5000/-  failing  which  to  undergo  rigorous  

imprisonment for six months.  The Division Bench of the  

Delhi High Court has equally reflected its anguish over the  

crime by describing it  as  “pervaded with  brutality”  and  

“trauma which the young child would face all her life” and  

has concurred with the sentence of imprisonment and the  

fine.   

2. This  Court,  at  the  time  of  issuance  of  notice,  had  

restricted it to the quantum of sentence.  However,  

we shall dwell upon the merits of the case in brief.

3. The horrid episode as unfurled by prosecution is that  

on 29.10.2003,  about 6.30 p.m.,  an eight  year  old  

child, daughter of one Binda Saha, was taken by the  

appellant  to  Lal  Bahadur Shastri  Hospital  and from  

there,  being  referred,  she  was  admitted  in  GTB  

Hospital, Shahdara, at 1.30 a.m. on 30.10.2003.  The  

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young  girl,  as  recorded  in  MLC  Ext.PW-10/D,  had  

stated that she had fallen down in the toilet about  

2.00 p.m. on 29.10.2003 as a consequence of which  

she had sustained the injuries.  The treating doctor,  

Dr.  Anju  Yadav,  was  not  convinced with  what  was  

being narrated to her.  As the factual narration would  

reflect, the duty constable informed the local police  

station, i.e., P.S. Kalyanpuri, about the admission of  

the young girl (hereinafter whom we shall refer to as  

‘M’) and her condition, as recorded in the MLC.  The  

child  remained  in  the  hospital  for  six  days  and  

thereafter she was discharged.  The anxious mother,  

unable to digest the story that was told to her by the  

daughter, asked her to muster courage and tell the  

truth to her.  The young ‘M’ gained confidence and,  

eventually,  on  10.11.2003,  broke  down  before  her  

mother and told her how the appellant had brutally  

raped her and threatened her that if  she disclosed  

the said fact to anyone, her life as well as the lives of  

her parents would be in danger.  The disturbed father  

proceeded to the police station and informed what  

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was told by his daughter and, accordingly, an FIR was  

registered.  After the criminal law was set in motion,  

the investigating agency arrested the accused and,  

eventually,  the  accused-appellant  was  sent  up  for  

trial.  The accused pleaded innocence and claimed to  

be tried.

4. The  prosecution,  in  order  to  establish  the  charge  

levelled against the accused, examined 11 witnesses  

including the child ‘M’, her parents, the doctors and  

other  formal  witnesses.   The  accused  in  his  

statement under Section 313 of the Code of Criminal  

Procedure stated that on 28.10.2003, the parents of  

‘M’  had  gone  to  see  her  maternal  uncle  and,  

therefore,  he  had taken the  prosecutrix  ‘M’  to  the  

hospital for medical aid, but as Lal Bahadur Shastri  

Hospital refused on the ground that the prosecutrix  

should be taken to some big hospital, he took her to  

GTB  Hospital  for  medical  treatment.   It  was  his  

further  explanation  that  he  took  the  girl  to  the  

hospital for saving her life and he was not aware that  

she had been raped.   The allegation of threat was  

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disputed by the accused.   It  is  also his  stand that  

initially the child had not named him being asked by  

the doctor and had stated that she had sustained the  

injuries by fall, and after the discharge of the child,  

he  went  to  attend  his  work  on  4.11.2003.   Be  it  

noted,  the  defence  chose  not  to  adduce  any  

evidence.

5. The  learned  trial  Judge,  considering  the  entire  

evidence  on  record  and  the  contentions  raised  on  

behalf of the accused, came to hold that the version  

of  the  prosecutrix  could  be  relied upon in  entirety  

and by no stretch of imagination it could be said that  

she was a tutored witness; that the delay in lodging  

the  FIR  was  not  at  all  fatal  to  the  case  of  the  

prosecution as the child was in a tremendous state of  

panicky;  that  the  factum of  rape  has  been  clearly  

proven from the medical evidence and the testimony  

of the doctors which have remained unimpeachable  

despite roving cross-examination; that no plea of any  

hostility or previous animosity had been suggested to  

the child or to her parents; that the presence of the  

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accused in the house had remained unexplained; and  

that  no  suggestion  had  been  given  to  any  of  the  

doctors who were cited by the prosecution that the  

injuries  could  be  caused  by  fall.   Considering  the  

entire  evidence  in  detail,  the  learned  trial  Judge  

found the accused guilty of the offence under Section  

376(2)(f) IPC and sentenced him as has been stated  

hereinbefore.

6. In  appeal,  the  High  Court  took  note  of  number  of  

factors,  narrating  the  condition  of  the  child,  the  

revelation of the tragic treatment by the accused, the  

circumstances under which the FIR was lodged, the  

testimony of the prosecutrix as to how she had been  

raped in a cruel manner by the accused, the absence  

of any reason of his going to the house of young ‘M’  

and the circumstances under which he could see the  

injured child, the credibility and unimpeachability of  

the evidence of the child ‘M’, the courage that was  

gradually gathered by the child after getting out of  

the  state  of  fear  and trauma,  the  evidence  of  the  

doctors which showed the physical condition of the  

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victim and the conduct of the accused in the hospital  

and,  on  the  said  basis,  concurred  with  the  view  

expressed by the learned trial Judge.

7. We have heard learned counsel for the appellant, and  

Mr. Paras Kuhad, learned Additional Solicitor General,  

and Mr. B.V. Balram Dass, learned counsel appearing  

for the NCT of Delhi.

8. To  consider  the  defensibility  of  the  judgment  of  

conviction rendered by the learned trial  Judge and  

affirmed  by  the  Division  Bench,  it  is  necessary  to  

appreciate  the  nature  of  injuries  suffered  by  the  

victim.   True  it  is,  the  young  child  had  told  the  

doctors that she had suffered a fall but the same was  

not given credence to by the treating doctors.  The  

MLC  where  the  condition  of  the  young  child  was  

recorded is as follows: -

“O/E-Apprehensive look, G.C. fair, pallor mild, P- 96/m, BP 110/80, heart NAD. No bruises seen on  the  body.   Breasts  and  secondary  sexual  characters  not  developed.   P/A  Soft,  lever  spleen not  palpable.   No shifting dullness,  no  area of tenderness. L/E – On separation of labia,  a  tear  of  1.5  approx.  to  2  cm.  seen  from  posterior  fourchette  towards  anus  just  1  cm.  

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short of anal opening and same tear extending  upto hymen.  Clot was seen in her vagina, anal  opening was intact, no area of bruise seen on  perineum.   Bleeding  per  vagina  was  present.  Decision for examination under anaesthesia and  repair of vaginal perennial tear taken.  Patient  was admitted in septic labour room and shifted  to  gynae  emergency  operation  theatre.   On  examination  under  anaesthesia,  showed same  findings as above but in addition a tear of 3 cm  approximately was seen in left vaginal wall from  hymen into the vagina.  Bleeding was positive.  Apex of tear seen, tear stitched in layers, cervix  seen healthy, no bleeding through OS.  In view  of EUA, findings under anaesthesia high index of  suspicion of sexual assault was made although  the  child  and  her  uncle  were  denying  of  any  such episode.”

9. Dr.  Sapna Verma, PW-4,  who examined the victim,  

found that the hymen of the child ‘M’ was torn. The  

victim  has  deposed  that  about  1.00  p.m.  in  the  

afternoon, on the date of the incident, the accused-

appellant  came  to  the  house  and  gave  her  an  

intoxicating drink and took her into a room.  He raped  

her and also gave threat that if  she would tell  her  

parents  or  any other  person,  he would  inflict  knife  

blows  upon  her  and  her  family  members.  He  had  

further told her that she should tell her parents that  

she  received  the  injuries  when  she  slipped  in  the  

toilet.   It  has  also  come  in  her  evidence  that  the  

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accused  took  her  to  the  hospital  while  she  was  

bleeding from her private parts.  She has truthfully  

spoken that initially she told her parents that she had  

sustained injuries  as  a  result  of  a  fall  in  the toilet  

because she was terribly scared and thereafter she  

spoke  out  how  she  sustained  the  injuries.   In  her  

cross-examination,  she has stood embedded in her  

version.  The time gap between the occurrence and  

the accused taking the child to the hospital has its  

own significance.  The child was bleeding from her  

private parts.  Had the child been left to herself, she  

would have bled to death.  The accused took her to  

the  hospital  to  avoid  a  situation  when  somebody  

might have come hearing her cry and saved her life  

and she might have ultimately spoken the truth.  The  

totality of the circumstances would show that he was  

with  the  child.   It  is  interesting  to  note  that  the  

accused had not disclosed why he had gone to the  

house of the child ‘M’ and under what circumstances  

he took the child to the hospital.  The unimpeachable  

evidence  of  the  child  ‘M’,  the  testimony  of  the  

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treating  physicians,  the  medical  evidence  and  the  

conduct of the accused go a long way to show that  

the accused had raped the child ‘M’ in a cruel and  

brutal  manner and the conviction recorded on that  

score by the learned trial Judge which has been given  

stamp  of  approval  by  the  High  Court  cannot  be  

faulted.

10. Presently,  we  shall  proceed  to  deal  with  the  

justification of the sentence.  Learned counsel for the  

appellant, would submit that though Section 376(2)  

provides that sentence can be rigorous imprisonment  

for life, yet as a minimum of sentence of ten years is  

stipulated, this Court should reduce the punishment  

to ten years of rigorous imprisonment.  It is urged by  

him that the appellant is a father of four children and  

their  lives  would  be  ruined  if  the  sentence  of  

imprisonment for life is affirmed.  Mr. Paras Kuhad,  

and  Mr.  B.V.  Balram  Dass,  counsel  for  the  State,  

submitted that the crime being heinous, the sentence  

imposed on the accused is  absolutely justified and  

does not warrant interference.  It is also canvassed  

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by them that reduction of sentence in such a case  

would  be  an  anathema  to  the  concept  of  just  

punishment.

11. Primarily it is to be borne in mind that sentencing for  

any  offence  has  a  social  goal.   Sentence  is  to  be  

imposed  regard  being  had  to  the  nature  of  the  

offence  and  the  manner  in  which  the  offence  has  

been  committed.   The  fundamental  purpose  of  

imposition of sentence is based on the principle that  

the accused must realise that the crime committed  

by him has not only created a dent in his life but also  

a concavity in the social fabric.  The purpose of just  

punishment is designed so that the individuals in the  

society which ultimately constitute the collective do  

not suffer time and again for such crimes.  It serves  

as  a  deterrent.   True  it  is,  on  certain  occasions,  

opportunities  may  be  granted  to  the  convict  for  

reforming  himself  but  it  is  equally  true  that  the  

principle  of  proportionality  between  an  offence  

committed and the penalty imposed are to be kept in  

view.  While carrying out this complex exercise, it is  

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obligatory on the part of the Court to see the impact  

of  the  offence  on  the  society  as  a  whole  and  its  

ramifications on the immediate collective as well as  

its repercussions on the victim.   

12. In  this  context,  we  may  refer  with  profit  to  the  

pronouncement  in  Jameel  v.  State  of  Uttar  

Pradesh1, wherein  this  Court,  speaking  about  the  

concept of sentence, has laid down that it is 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.  The  

sentencing  courts  are  expected  to  consider  all  

relevant  facts  and  circumstances  bearing  on  the  

question  of  sentence  and  proceed  to  impose  a  

sentence  commensurate  with  the  gravity  of  the  

offence.”

13. In Shailesh Jasvantbhai and another v. State of   

Gujarat and others2, the Court has observed thus:

“Friedman in his Law in Changing Society stated  that: “State of criminal law continues to be - as  

1 (2010) 12 SCC 532 2 (2006) 2 SCC 359

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it  should  be  -a  decisive  reflection  of  social  consciousness  of  society.”  Therefore,  in  operating  the  sentencing  system,  law  should  adopt  the  corrective  machinery  or  deterrence  based  on  factual  matrix.  By  deft  modulation,  sentencing process be stern where it should be,  and tempered with mercy where it warrants to  be. The facts and 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”.

14. In  State of M.P.  v.  Babulal3, two learned Judges,  

while  delineating  about  the  adequacy  of  sentence,  

have expressed thus : -

“19. Punishment is the sanction imposed on the  offender for the infringement of law committed  by him.  Once a person is tried for commission  of an offence and found guilty by a competent  court, it is the duty of the court to impose on  him such sentence as is prescribed by law.  The  award  of  sentence  is  consequential  on  and  incidental  to  conviction.   The  law  does  not  envisage  a  person  being  convicted  for  an  offence  without  a  sentence  being  imposed  therefore.

20. The  object  of  punishment  has  been  succinctly stated in Halsbury’s Laws of England,  (4th Edition: Vol.II: para 482) thus:

“The  aims  of  punishment  are  now  considered  to  be  retribution,  justice,  deterrence,  reformation  and  protection  

3 AIR 2008 SC 582

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and  modern  sentencing  policy  reflects  a  combination of several or all of these aims.  The  retributive  element  is  intended  to  show public revulsion to the offence and to  punish the offender for his wrong conduct.  The  concept  of  justice  as  an  aim  of  punishment  means  both  that  the  punishment should fit the offence and also  that  like  offences  should  receive  similar  punishments.   An  increasingly  important  aspect  of  punishment  is  deterrence  and  sentences are aimed at deterring not only  the actual  offender  from further  offences  but also potential offenders from breaking  the law.  The importance of reformation of  the  offender  is  shown  by  the  growing  emphasis  laid  upon  it  by  much  modern  legislation, but judicial opinion towards this  particular aim is varied and rehabilitation  will  not  usually  be  accorded  precedence  over  deterrence.   The  main  aim  of  punishment in judicial thought, however, is  still the protection of society and the other  objects frequently receive only secondary  consideration  when  sentences  are  being  decided”.

(emphasis supplied)”

15. In  Gopal Singh  v.  State of Uttarakhand4,  while  

dealing with the philosophy of just punishment which  

is the collective cry of the society, a two-Judge Bench  

has stated that just punishment would be dependent  

on  the  facts  of  the  case  and  rationalised  judicial  

discretion.   Neither  the  personal  perception  of  a  

4 2013 (2) SCALE 533

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Judge  nor  self-adhered  moralistic  vision  nor  

hypothetical  apprehensions  should  be  allowed  to  

have any play.  For every offence, a drastic measure  

cannot be thought of.  Similarly, an offender cannot  

be allowed to be treated with leniency solely on the  

ground  of  discretion  vested  in  a  Court.   The  real  

requisite is to weigh the circumstances in which the  

crime  has  been  committed  and  other  concomitant  

factors.

16. The  aforesaid  authorities  deal  with  sentencing  in  

general.   As  is  seen,  various  concepts,  namely,  

gravity  of  the  offence,  manner  of  its  execution,  

impact  on the society,  repercussions on the victim  

and  proportionality  of  punishment  have  been  

emphasized  upon.   In  the  case  at  hand,  we  are  

concerned with the justification of life imprisonment  

in a case of rape committed on an eight year old girl,  

helpless and vulnerable and, in a way, hapless.  The  

victim  was  both  physically  and  psychologically  

vulnerable.   It  is  worthy  to  note  that  any  kind  of  

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sexual  assault  has  always  been  viewed  with  

seriousness and sensitivity by this Court.   

17. In  Madan  Gopal  Kakkad  v.  Naval  Dubey  and  

another5, it has been observed as follows:-

“...  though  all  sexual  assaults  on  female  children are not reported and do not come to  light  yet  there  is  an  alarming  and  shocking  increase  of  sexual  offences  committed  on  children.   This  is  due  to  the  reasons  that  children are ignorant of the act of rape and are  not able to offer  resistance and become easy  prey  for  lusty  brutes  who  display  the  unscrupulous,  deceitful  and  insidious  art  of  luring  female  children  and  young  girls.  Therefore,  such offenders who are menace to  the civilized society should be mercilessly and  inexorably punished in the severest terms.”

18. In  State of Andhra Pradesh  v.  Bodem Sundra  

Rao6, this Court noticed that crimes against women  

are on the rise and such crimes are affront to the  

human  dignity  of  the  society  and,  therefore,  

imposition of inadequate sentence is injustice to the  

victim of the crime in particular  and the society in  

general.  After so observing, the learned Judges had  

to say this: -

5 (1992) 3 SCC 204 6 AIR 1996 SC 530

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“The Courts have an obligation while awarding  punishment  to  impose  appropriate  punishment  so as to respond to the society’s crime 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.”

19. In State of Punjab v. Gurmit Singh and others7,  

this  Court  stated  with  anguish  that  crime  against  

women in  general  and rape in  particular  is  on the  

increase.  The learned Judges proceeded further to  

state that it is an irony that while we are celebrating  

women’s rights in all  spheres,  we show little or no  

concern for her honour.  It is a sad reflection of the  

attitude  of  indifference  of  the  society  towards  the  

violation  of  human  dignity  of  the  victims  of  sex  

crimes.  Thereafter, the Court observed the effect of  

rape on a victim with anguish: -

“We  must  remember  that  a  rapist  not  only  violates  the  victim’s  privacy  and  personal  integrity,  but  inevitably  causes  serious  psychological  as  well  as  physical  harm in  the  process.  Rape is not merely a physical assault –  it is often destructive of the whole personality of  the victim.   A murderer  destroys the physical  

7 AIR 1996 SC 1393

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body of his victim, a rapist degrades the very  soul of the helpless female.”

20. In  State of  Karnataka  v.  Krishnappa8,  a  three-

Judge Bench opined that  the courts  must hear  the  

loud  cry  for  justice  by  the  society  in  cases  of  the  

heinous crime of rape on innocent helpless girls  of  

tender  years  and  respond  by  imposition  of  proper  

sentence.   Public  abhorrence  of  the  crime  needs  

reflection through imposition of appropriate sentence  

by the court.  It was further observed that to show  

mercy in the case of such a heinous crime would be  

travesty of justice and the plea for leniency is wholly  

misplaced.

21. In  Jugendra Singh  v.  State of  Uttar  Pradesh9,  

while dwelling upon the gravity of the crime of rape,  

this Court had expressed thus: -

“Rape  or  an  attempt  to  rape  is  a  crime  not  against an individual but a crime which destroys  the basic equilibrium of the social atmosphere.  The consequential death is more horrendous.  It  is to be kept in mind that an offence against the  body of a woman lowers her dignity and mars  her  reputation.   It  is  said  that  one’s  physical  frame is his or her temple.  No one has any right  

8 (2000) 4 SCC 75 9 (2012) 6 SCC 297

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of  encroachment.   An  attempt  for  the  momentary pleasure of the accused has caused  the  death  of  a  child  and  had  a  devastating  effect  on  her  family  and,  in  the  ultimate  eventuate, on the collective at large.  When a  family suffers in such a manner, the society as a  whole  is  compelled  to  suffer  as  it  creates  an  incurable dent in the fabric of the social milieu.”  

22. Keeping in view the aforesaid enunciation of law, the  

obtaining factual matrix, the brutality reflected in the  

commission  of  crime,  the  response  expected  from  

the  courts  by  the  society  and  the  rampant  

uninhibited exposure of the bestial nature of pervert  

minds,  we  are  required  to  address  whether  the  

rigorous punishment for life imposed on the appellant  

is excessive or deserves to be modified.  The learned  

counsel  for  the  appellant  would  submit  that  the  

appellant  has  four  children  and  if  the  sentence  is  

maintained, not only his life but also the life of his  

children would be ruined.  The other ground that is  

urged  is  the  background  of  impecuniousity.   In  

essence, leniency is sought on the base of aforesaid  

mitigating  factors.   It  is  seemly  to  note  that  the  

legislature, while prescribing a minimum sentence for  

a term which shall  not be less than ten years,  has  

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also  provided  that  the  sentence  may  be  extended  

upto life.  The legislature, in its wisdom, has left it to  

the discretion of the Court. Almost for the last three  

decades,  this  Court  has  been expressing its  agony  

and  distress  pertaining  to  the  increased  rate  of  

crimes against women.  The eight year old girl, who  

was  supposed  to  spend  time  in  cheerfulness,  was  

dealt with animal passion and her dignity and purity  

of physical frame was shattered.  The plight of the  

child  and  the  shock  suffered  by  her  can  be  well  

visualised.   The  torment  on  the  child  has  the  

potentiality to corrode the poise and equanimity of  

any civilized society.  The age old wise saying “child  

is a gift of the providence” enters into the realm of  

absurdity.  The young girl, with efflux of time, would  

grow  with  traumatic  experience,  an  unforgettable  

shame.  She shall always be haunted by the memory  

replete  with  heavy  crush  of  disaster  constantly  

echoing the chill air of the past forcing her to a state  

of nightmarish melancholia.  She may not be able to  

assert the honour of a woman for no fault of hers.  

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Respect for reputation of women in the society shows  

the basic civility of a civilised society.  No member of  

society can afford to conceive the idea that he can  

create  a  hollow  in  the  honour  of  a  woman.   Such  

thinking is not only lamentable but also deplorable. It  

would not be an exaggeration to say that the thought  

of  sullying  the  physical  frame  of  a  woman  is  the  

demolition  of  the  accepted  civilized  norm,  i.e.,  

“physical  morality”.   In  such a sphere,  impetuosity  

has no room.  The youthful excitement has no place.  

It should be paramount in everyone’s mind that, on  

one hand, the society as a whole cannot preach from  

the  pulpit  about  social,  economic  and  political  

equality of the sexes and, on the other, some pervert  

members  of  the  same  society  dehumanize  the  

woman  by  attacking  her  body  and  ruining  her  

chastity.   It  is  an  assault  on  the  individuality  and  

inherent dignity of a woman with the mindset that  

she should be elegantly servile to men.  Rape is a  

monstrous burial of her dignity in the darkness.  It is  

a crime against the holy body of a woman and the  

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soul of the society and such a crime is aggravated by  

the  manner  in  which  it  has  been  committed.   We  

have  emphasised  on  the  manner  because,  in  the  

present case, the victim is an eight year old girl who  

possibly would be deprived of the dreams of “Spring  

of  Life”  and might be psychologically  compelled to  

remain  in  the  “Torment  of  Winter”.   When  she  

suffers, the collective at large also suffers.  Such a  

singular crime creates an atmosphere of fear which is  

historically abhorred by the society.  It demands just  

punishment from the court and to such a demand,  

the courts of law are bound to respond within legal  

parameters.  It is a demand for justice and the award  

of  punishment  has  to  be  in  consonance  with  the  

legislative command and the discretion vested in the  

court.  The mitigating factors put forth by the learned  

counsel for the appellant are meant to invite mercy  

but we are disposed to think that the factual matrix  

cannot  allow  the  rainbow  of  mercy  to  magistrate.  

Our  judicial  discretion  impels  us  to  maintain  the  

sentence  of  rigorous  imprisonment  for  life  and,  

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hence, we sustain the judgment of conviction and the  

order of sentence passed by the High Court.

23. Ex consequenti, the appeal, being sans merit, stands  

dismissed.

..............................................J.                                      [Dr. B. S. Chauhan]

..............................................J.     [Dipak Misra]

New Delhi; May 15, 2013

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