PUSHPANJALI SAHUversusSTATE OF ORISSA & ANR.

                  [2012] 8 S.C.R. 727


                 PUSHPANJALI SAHU                              A
                              v.
              STATE OF ORISSA & ANR.
          (Criminal Appeal Nq. 1439 of 2012)

                 SEPTEMBER 18, 2012
                                                               B
[H.L. DATTU AND CHANDRAMAULI KR. PRASAD, JJ.]

    Penal Code, 1860 - s. 376 - Rape - Conviction and
sentence of seven years by trial court - Conviction and
sentence confirmed by appellate court - In revision, High C
Court confirming the conviction, but reducing the sentence to
the period already undergone i.e. one year- On appeal held:
Under s. 376 court can award imprisonment for not less than
seven years and reduction thereof to be on giving appropriate
reasons - Reasons assigned by High Court in reducing the D
sentence not convincing- Accused liable to be convicted and
sentenced to 7 years imprisonment - Sentence/Sentencing
- Reduction of Sentence.

     State of Madhya Pradesh v. Pappu (2008) 16 SCC 758:
2008 (11)SCR 793; M.P.   v.
                          Ghanshyam Singh (2003) 8 SCC         E
13: 2003 (3) Suppl. SCR 618; State of M.P. v. Babbu Barkare
(2005) 5 sec 413: 2005 (1) Suppl. SCR 381 - relied on.

    Crime Against Women - Rape - Courts are expected to
deal with crime against women with utmost sensitivity - Such       F
cases need to be dealt with sternly and severely.

     State of Madhya Pradesh v. Sheikh Shahid (2009) 12
 SCC 715: 2009(5) SCR 1038; State of M.P. v. Munna
 Choubey (2005) 2 SCC 710: 2005 (1) SCR 781; State of G
 H.P. v. Shree Kant Shekari (2004) 8 SCC 153: 2004 (4)
  Suppl. SCR 380; Bodhisattwa Gautam v. Subhra
 Chakraborty (1996) 1 SCC 490: 1995 (6) Suppl. SCR 731
 - relied on.
                               727                                 H
         728       SUPREME COURT REPORTS                 [2012) 8 S.C.R.


    A                           Case Law Reference:

               2008 (11) SCR 793             Relied on        Para 10

               2003 (3) Suppl. SCR 618      Relied on         Para 10

               2005 (1) Suppl. SCR 381      Relied on         Para 10
 B
               2009 (5) SCR 1038            Relied on         Para 11

               2005 (1) SCR 781             Relied on        Para 11

               2004 (4) Suppl. SCR 380      Relied on        Para 13
 c
             1995 (6) Suppl. SCR 731        Relied on        Para 13

            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
        No. 1439 of 2012.

 D          From the Judgment & Order dated 28.9.2010 of the High
        Court of Orissa at Cuttack in Criminal Revision No. 676 of 1999.

            J.K. Das, Sandeep Devashish Das, Avijeet Bhujabal (for
        Parmanand Gaur) for the Appellant.

E           Shibashish Misra, Nidhi for the Respondents.

            The following Order of the Court was delivered

                                  ORDER

F           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
G 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
H excepti0n to by the complainant in this appeal. The only issue
     PUSHPANJALI SAHU v. STATE OF ORISSA                    729


that arises for our consideration and decision in this appeal is:   A
whether the High Court was justified in 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
                                                                    8
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        C
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       D
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 the Trial Court.
                                                                    E
     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.
                                                                    F
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      G
 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.                     H
    730     SUPREME COURT REPORTS                   [2012] 8 S.C.R.

A        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
c      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:

D      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: -
E
       (a) Being a police officer commits rape-

       (i) Within the limits of the police station to which he is
       appointed; or
F
       (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
G
       (b) Being a public servant, takes 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
H
PUSHPANJALI SAHU v. STATE OF ORISSA                   731


(c) Being on the management or on the staff of a jail,       A
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 cif such jail,
remand home, place or institution; or                        B

(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                C
pregnant; or

(f) Commits rape when she is under twelve years of age;
or

(g) Commits gang rape,                                       D

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:
                                                             E
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                                                F

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.            G
Explanation 2

"Women's or children's institution "means an institution,
whether called an orphanage or home for neglected
women or children or a widows' home or by any other          H
    732       StJPREME COURT REPORTS                 [2012] 8 S.C.R.


A         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
B         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
c   that if a person is convicted under Section 376 of the l.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.
D        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.

E        10. This Court in State of Madhya Pradesh v. Pappu,
    (2008) 16  sec    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
F   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
G   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
H   commission of the offence. This Court, highlighted the dangers
     PUSHPANJALI SAHU v. STATE OF ORISSA                    733


of imposition of sentence without due regard to its effects on      A
the social order and opined as follows:

    "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             B
    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       C
    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.
                                                                    D
     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           E
     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    F
     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            G
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 observations on the yardstick of determining
senterice as the nature and gravity of the offence and has
cautioned against placing reliance upon reasons such as             H
    734       SUPREME COURT REPORTS                (2012] 8 S.C.R.

A 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.
B
        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.
c       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
D       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
E      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
F      process should 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
G
       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
H      death sentence as deterrence. In Mahesh v. State of M.P.
PUSHPANJALI SAHU v. STATE OF ORISSA                      735


this Court while refusing to reduce the death sentence           A
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
                                                                 8
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.'
                                                                 c
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        D
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.
                                                                 E
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             F
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        G
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      H
    736       SUPREME COURT REPORTS                   (2012] 8 S.C.R.


A         widespread.

           12. Proportion between cnm& 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
B
          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
c         proportion to the crime, uniformly disproportionate
          punishment has some very undesirable practical
          consequences.

        13. After giving due consideration to the facts and
D      circumstances of each case, for 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
E      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
F
      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
G
      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 reqi..ired to answer new challenges
H     and mould the sentencing system to meet these
PUSHPANJALI SAHU v. STATE OF ORISSA                       737


challenges. The object should be to protect the society and       A
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 sq as to
impose such sentence which reflects the conscience of the
society and the sentencing process has to be stern where          B
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.

15. Imposition of sentence without considering its effect on
                                                                  c
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           D
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         E
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.
                                                                  F
16. In Dhananjoy Chatterjee v. State of WB. 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           G
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
                                                                  H
    738       SUPREME COURT REPORTS                     [2012] 8 S.C.R.

A         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
B
        the 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
c       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
D       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
E       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
F 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 the period of sentence from 7 years
G 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
H dehumanizing act of physical violence on women escalating in
     PUSHPANJALI SAHU v. STATE OF ORISSA                    739


the society. Sexual violence is not only an unlawful invasion of    A
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 sec 153 has viewed rape as not only a crime against        8
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 Chakraborty,(1996) 1 SCC 490 the entire            C
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.       D
 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.                                          E

     Ordered accordingly.

K.K.T.                                         Appeal allowed.