Holding

Consent of a minor below sixteen is immaterial under Section 375 IPC and cannot be a mitigating circumstance; therefore, the appellant is not entitled to any further reduction of sentence.

Summary

Satish Kumar Jayanti Lal Dabgar was convicted under IPC sections 363 (kidnapping), 366 (kidnapping for marriage) and 376 (rape) for abducting and raping a girl who was under sixteen years of age. The trial court sentenced him to three years for kidnapping, five years for kidnapping for marriage and seven years rigorous imprisonment for rape; the High Court upheld the convictions but reduced the rape sentence to four and a half years. The appellant appealed to the Supreme Court seeking further reduction, arguing that the sexual relationship was consensual, that he had married the victim, and that his poverty warranted leniency. The Supreme Court held that under clause sixthly of Section 375 IPC, a girl below sixteen cannot give valid consent, and such consent cannot be treated as a mitigating circumstance; consequently, no further reduction of sentence was permissible. The Court dismissed the appeal, leaving the reduced sentence in place.

Issues considered

The consent of a girl below sixteen years of age can be a mitigating factor in sentencing for rape under Section 376 IPC.
Whether the appellant is entitled to further reduction of sentence despite claims of consensual marriage, poverty, and other alleged mitigating circumstances.
Interpretation and application of clause sixthly of Section 375 IPC regarding consent of a minor.

Legislation cited

Indian Penal Code, 1860s. 363, s. 366, s. 375, s. 376
Protection of Children from Sexual Offences Act, 2012

Subjects

kidnappingrapeminorconsentsentencingmitigationIPCProtection of Children from Sexual Offences Actcriminal law

Judgment

[2015]2S.C.R. 751

A SATISH KUMAR JAYANTI LAL DABGAR

v.
STATE OF GUJARAT
B (Criminal Appeal No. 230 of 2013)

MARCH 10, 2015

[DIPAK MISRA AND A. K. SIKRI, JJ.]
c Penal Code, 1860- ss. 363, 366, 376 - Kidnapping of a girl
below 16 years, inducing her to marriage and commission
of rape - Conviction of accused ulss. 363, 366, 376 and
sentenced accordingly - High Court upheld the conviction
o however, reduced sentence of rigorous imprisonment of
seven years for offence punishable u/s. 376 to rigorous
imprisonment for four and a half years - Plea for reduction
of sentence - Case of accused that every act between the
parties was consensual - On appeal, held: On facts, clause
E sixthly of s. 375 attracted making her consent for sexual
intercourse as immaterial - Minor is incapable of thinking
rationally and giving any consent - Consent of a minor is
not treated as valid consent- Duty is cast on the other person
in not taking advantage of the so-called consent given by a
F girl below 16 years- Other partner in the sexual act is treated
as criminal who has committed the offence of rape - So-
called consent of the prosecutrix below 16 years of age cannot
be treated as mitigating circumstance - If the consent of
G minor is treated as mitigating circumstance, it would lead to
disastrous consequences - Thus, accused not entitled to
further reduction of sentence.

Dismissing the appeal, the Court

H 751
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 752
GUJARAT

HELD: 1.1 The High Court rightly upheld the A
conviction recorded by the trial court, there is no reason
to deviate therefrom. Only plea raised by the counsel for
the appellant even before the High Court was for
reduction of sentence. The extenuating and mitigating
circumstances narrated by the Amicus Curiae have been B
duly taken note of by the High Court as well. In fact, going
by these very circ1;1mstances projected by the defence,
the High Court reduced the sentence of seven years
rigorous imprisonment imposed under Section 376 IPC C
to 4% years. [Paras 12, 13] [762-E-F; 763-D-E]

1.2 It 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 IPC would get attracted making her consent
0
for sexual intercourse as immaterial and
inconsequential. The Legislature has introduced the
said 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 E
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 F
giving consent for such an act without understanding
the implications thereof. Such 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 G
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 H
753 SUPREME COURT REPORTS [2015] 2 S.C.R.

A 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.
B [Paras 14, 15] [763-F; 764-B-F]

1.3 Once the things are put in right perspective in the
manner stated the case has to be treated where the
appellant committed rape of a minor girl which is
C 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-gets strengthened when the
letter and spirit behind Protection of Children from
0
Sexual Offences Act is kept in mind. [Para 16] [764-F-H]

1.4 Merely because the appellant has now married hardly
becomes a mitigating circumstance. Likewise, the
appellant cannot plead that prosecutrix is also married
E 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, the
High Court has already reduced the sentence from seven
F years rigorous i!Tlprisonment to 4% years under Section
376 IPC. Therefore, in any case, the appellant is not
entitled to any further mercy. [Para 19] [771-E-F]

NarinderSingh v. State of Punjab 2014 (4) SCR 1012: (2014)
G 6 SCC 466; Sumer Singh v. Surajbhan Singh and others
(2014) 7 sec 323 - referred to.

Case Law Reference

2014 (4) SCR 1012 referred to Para 17
H
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 754
GUJARAT

(2014) 7 sec 323 referred to Para 18 A

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 230 of 2013

From the Judgment and Order dated 04.04.2011 of the High B
Court of Gujarat atAhmedabad in Criminal Appeal No. 2158
of2005

Mohan Pandey (A.C.) for the Appellant.

Hemantika Wahi, Jesal, Puja Singh, Swati Vaibhai, C
Parmanand Katara (A. C.) for the Respondent.

The Judgment of the Court was delivered by

A. K. SIKRI, J. Though, this Court vide order dated D
18.09.2012 appointed Mr. Parmanand Katara as Amicus
Cur.iae, 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 E
was given time to go through and prepare the matter.
Thereafter, the matter was heard when he was fully ready with
the same.

(2) This appeal arises out of the judgment dated F
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 appe<JI. 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 G
sentenced to undergo rigorous imprisonment for committing
the aforesaid offences as under:

(a) For committing the offence punishable under Section
H
755 SUPREME COURT REPORTS [2015] 2 S.C.R.

A 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
(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,
c 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
D 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 the fine, he would have to
undergo simple imprisonment for a period of one year.

E 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
F 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 4 Yz years instead of 7 years for
the offence punishable under Section 376 of the IPC. With
G 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, 4th Fast Track Court, Modasa, Gujarat has been
H affirmed.
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 756
GUJARAT [A. K. SIKRI, J.]

(4) The appellant was implicated and charged under A
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, B
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 and had a talk with their
daughter. Thereafter, the appellant went towards the market
and after sometime, prosecutrix also went towards the market. C
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 D
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 E
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 F
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 G
by the Court of Sessions, the case was committed to Sessions
Court, Himmatnagar.

(5) After framing of the charge, the trial proceeded. The
H
757
SUPREME COURT REPORTS [2015) 2 S.C.R.

A prosecution examined as many as 11 witnesses to prove the
charges. The particulars of these witnesses are as under:

No. : Ex. Name of witnesses

B 1 8 Rasikbhai Hirabhai. complainant/
Dabagar supporter
2 I 10 Daughter of • Victim/support
Rasikbhai Hirabhai er
Dabagar
c 3 15 Punamchand Witness/suppo
, _ .
Laljibhai Dabagar rter
' 4 I 16 Rakesh Kumar , Witness/suppo
Punamchand rter
D 5 17 Hansaben : Witness/suppo
Punamchand rter
Dabagar
6 18 Mulljibhai . 10, who made
Dayashankar chargesheet
E Upadhayaya
- --·-- ·r - .
'
7 ' 25 Chandanben ' witness/suppo
Rasiklal Dabgar rter
--- - ~ -~--
I
--- - ... -···· --· ------ .. 1·
8 I 27 Bhikhabhai i witness/suppo

F Manbhai Parmar : rter
--- -- j __ _

9 28 Kanubhai Main 10
Jaychandbhai
Chaudharay
- - - - --

10 33 Dr. Rajkamal Shri Medical Officer
G Adhyasharan
' 11 39 Bharat Kumar Employee of
.. _ J ... ______ .Baba!b~ai P(3tEll_ Nagar Palika

H
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 758
GUJARAT [A. K. SIKRI, J.]

(6) In addition, following documents were produced and A
exhibited through the witnesses:

1 Original Complaint by Ex. 9.

2 Panchnama of scene of offence by Ex.11.
B
3 Panchnama of clothes of victim and accused
seized by Ex. 12.

4 Receipt of FSL for having received the
Muddamal by Ex.19. c
5 Forwarding letter of FSL regarding having
sent the FSL report by Ex.20

6 FSL report by Ex.21. D
7 Report showing the results of serological
analysi~ by Ex.22.

8 Birth Certificate of victim by Ex.26.
E
9 Muddamal dispatch note by Ex.29.

10 Yadi made by police for making medical
examination of accused by Ex.34.
F
11 Medical certificate of physical examination of
Victim by Ex.35.

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

H
759 SUPREME COURT REPORTS [2015] 2 S.C.R.

A (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
B 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
C 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
0
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 years of age on the date of the
incident i.e. 01.09.2003 and, therefore, there was no question
E 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
F
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,
G
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
H oflPC?
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 760
GUJARAT [A. K. SIKRI, J.]

3. Whether the Prosecution proves beyond doubt A
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 B
her at some other place and thereby he has
committed the offence punhhable u/s 366 of IPC?

4. Whether the Prosecution proves beyond doubt
that at aforesaid time and date kidnapping the c
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
D
intercourse with her without her desire and consent
and thereby he has committed the offence
punishable u/s 376 of IPC?

5. What order?
E
9) The questions for.mu lated 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 F
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 G
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 H
761 SUPREME COURT REPORTS [2015] 2 S.C.R.

A 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 atthe
relevant time, the prosecution had produced xerox copy of
B 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 consideration to
C 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.
0
(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
E 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
F 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
G 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
H
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 762
GUJARAT [A. K. SIKRI, J.]

Nos.1345 on Page No.91 in the year 1988. Xerox copy of this A
document was taken on 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 B
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 C
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 o
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 E
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 ab.it. In the face of aforesaid material staring F
at the appellant, learned counsel for the appellant was candid
in his submission that he would press only for reduction of
sentence. Otherwise also, it is a matter of record that this was
the only plea raised b~· the counsel for the appellant even before
the High Court. The learnedAmicus Curiae, therefore, drew G
ourattention 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 H
763 SUPREME COURT REPORTS (2015] 2 S.C.R.

A 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
B 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
C 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
0
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 reduced the sentence
of seven years rigorous imprisonment imposed under Section
E 376 of the IPC to 4 % 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
. F sixthly of Section 375 of the IPC would get attracted making
her consent for sexual intercourse as immaterial and
inconsequential. lt reads as follows:

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

xx xx xx

H
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 764
GUJARAT [A. K. SIKRI, J.]

Sixthly - With or without her consent, when she is A
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 B
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 C
a girl child who is not only minor but less than 16 years of age.
A minor girl can be ei:lsily lured into giving consent for such an
act without understanding the implications thereof. Such a
consent, therefore, is treated as not an informed consent given
0
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, E
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. F

(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 G
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.
H
765 SUPREME COURT REPORTS [2015) 2 S.C.R.

A (17) The purpose and justification behind sentencing is not
only retribution, incapacitation, rehabilitation but deterrence
as well. Certain aspects 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
B 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
c 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
D
consequences? There are many philosophies behind
such sentencing justifying these penal consequences.
The philosophical/jurisprudential justification can be
retribution, incapacitation, specific deterrence,
E 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
F
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
G 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
H
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 766
GUJARAT [A. K. SIKRI, J.]

courts go by their own perception about the philosophy A
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 B
. 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.
c
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
D
rationale for pu!Jishing 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 E
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 F
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 G
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.
H
767 SUPREME COURT REPORTS (2015] 2 S.C.R.

A 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
8 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
c
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
D 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
E would not move the court in accepting the same as
larger and more important public policy of showing
the iron hand of Jaw to the wrongdoers, to reduce
the commission of such offences, is more important.
Cases of murder, rape, or other sexual offences, etc.
F 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
G
"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
H would lead to i:nore good; better relations between
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 768
GUJARAT [A. K. SIKRI, J.)

them; would prevent further occurrence of such A
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 B
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 C
others, (2014) 7 sec 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 D
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. E
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 F
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
G
unregulated benevolence. He is to exercise a
discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated
to 'the. primordial necessity of order in social life'."
H
769 SUPREMECOURTREPORTS [2015] 2 S.C.R.

A 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
B 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
c 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).

D 35. In Aero Traders Pvt. Ltd. v. RavinderKumar
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
E 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
F 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,
G
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
H discretion of the authorities, that something is to be
SATISH KUMAR JAYANTI LAL DABGAR v. STATE OF 770
GUJARAT [A. K. SIKRI, J.]

done according to the rules of reason and justice and A
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
official, in adjudicating on matters brought before him." B

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.
c
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 D
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
E
an obligation to the society which has reposed faith
in the court of l&w 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
F
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; G
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
H
77'1 SUPREME COURT REPORTS [2015] 2 S.C.R.

A 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
B 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, forthe Court
c 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
D if the respondent is sentenced to undergo rigorous
imprisonment for two years apart from the fine that
has been imposed by the learned trial judge."

(19) Merely because the appellant has now married hardly
E 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
F has already reduced the sentence from seven years rigorous
imprisonment to 4% 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.

G (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.

Nidhi Jain Appeal dismissed.

H