DATE OF JUDGEMENT
AUGUST 27, 2013
BENCH
Justice P Sathasivam
Justice Ranjana Prakash Desai
Justice Ranjan Gogo
PARTIES
Appellant(s)- Shimbhu and Anr.
Respondents(s)- State of Haryana
SUBJECT
The appellants approached the court and asked for reduction of sentence of the crimes of gang rape committed on the victim 14 years ago. The court held that rape is a non-compoundable crime and just because there has been a settlement between the victim and the accused, lesser punishment cannot be awarded.
IMPORTANT PROVISIONS
Section 376(2) in The Indian Penal Code
(2) Whoever,—
(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.
OVERVIEW
The victim was gang raped repeatedly and was kept confined for two days by the appellants in 1995. The additional sessions Judge convicted and sentenced the appellants to undergo rigorous imprisonment (RI) for ten years along with a fine of Rs. 5,000/- each, in default, to further undergo RI for six months for the offence punishable under Section 376(2)(g) read with Section 34 of IPC.
The high court dismissed the appeals and confirmed the order of conviction and sentence passed by the Additional Sessions Judge. Thus, this appeal was preferred before the Apex court by the way of Special Leave.
An affidavit signed by the victim was placed on record during the pendency of the appeals dated 24.12.2011, where she had stated that she was a consenting party to the alleged crime and that she did not want the case to be pursued further due to the fact that she had compromised with the accused on the said matter and also due to the fact that she was happily married with 4 children for the last 12 years. She said the compromise was entered in order to buy peace and to maintain dignity in her matrimonial life and therefore, she has no objection if the sentence is reduced to the period already undergone.
The counsel for the appellants argued that the court should reduce the sentence to the period already served, based on the affidavit that was entered into the record, which indicates the settlement reached by the victim and the accused.The main three grounds for seeking the reduction were- First, on the ground that a compromise has been arrived at between the parties; Second, that the occurrence of the incident dates back to 1995; and Last, that the victim is happily married and blessed with children.
ISSUE
Whether the appellants- accused have made out a case for imposition of a lesser sentence than ten years?
ANALYSIS
The Apex court rejected the request of the appellants for reduction of the sentence and dismissed the appeal.
The court analysed proviso to section 376(2) which lays down that the court may, for adequate and special reasons may award a sentence of less than 10 years in case of gang rape where the normal sentence is not less than 10 years. The court opined that it is a fundamental rule that a proviso must be considered in relation to the main provision to which it stands as a proviso, particularly in such penal provisions.According to the court, whether there is a'special and adequate cause' depends on a number of factors, as well as the particular facts and circumstances of each case.
While observing what factors cannot justify recourse to the proviso to section 376(2) the court observed that “The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act.”
The court citied the case of Baldev Singh and Others vs. State of Punjab (2011) 13 SCC 705, where the apex court has reduced the sentence to the period already undergone considering the peculiar circumstances of the case. However, it was held that the decision in the Baldev Singh case could not be used as a precedent and should be limited to that case.
The court elaborated on the effect of punishment being proportionate to the gravity of the 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.”, held the Apex court.
“A compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle.”Observed the court. It was observed that, the Court cannot always be certain that the victim's consent in compromising the case is genuine, there is a risk that she was pressured by the convicts or that the trauma she had been through over the years pushed her to opt for a compromise. Also, it is possible that the accused may use all of his influence to persuade her to make a deal.
Thus, it was held that to protect the interest of justice, the compromise entered into between the parties in rape cases cannot be a ground for the Court to exercise the discretionary power under the proviso of Section 376(2) of IPC.
CONCLUSION
Rape is one of the most heinous crimes committed in a society and it the duty of courts to see that such laws are made that deter criminals from committing this crime. The courts should take into matter the severity of the crimes committed by the accused while sentencing them. A mere settlement between the accused and the victim, which may also be without her consent should never be accepted as a factor to reduce the sentence. This is because, despite the compromise, the fact remains that a crime of such heinous nature was committed by the accused. The victim might have lived a happy life since then, but that in no way is a factor to absolve the accused of their crimes.
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