STATE OF KARNATAKAversusPUTTARAJA

A                        STATE OF KARNATAKA
                                  v.
                              PUTTARAJA

                             NOVEMBER 27, 2003

B           [DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.]

         Sentencing :

         Appropriate sentence-Award of--Principles-Discussed.

C        Penal Code, 1860:

        Section 376-Rape of pregnant woman in the presence of her
   husband-Minimum sentence prescribed as seven years-Trial Court
   awarding 5 years-High Court reducing sentence to the period of custody
D of 46 days already undergone-Justificiation of;_Held: There was no
  ·scope of awarding sentence lesser than prescribed minimum-Reasons
   given by High Court for reducing the sentence not adequate and special-
   Before the High Court, State has not challenged the quantum ofsentence-
   Hence sentence awarded by trial Court restored-Code of Criminal
E Procedure, 1973-Section 29.
         A pregnant womari was raped in the presence of her ftusband.
    Respondent-accuse~ was charged unde.r Section 376 IPC. Though the
    minimum sentence prescribed was 7 years," tri~l court sentenced the
    respondent to 5 years imprisonment and fine of Rs. 2000. High Court
F   maintained the conviction, but reduceed the sentence to the period of
    custody of 46 days already undergone. Hence the present appeal.

          Appellant-State contended that if such minuscule sentence is
    awarded for such a grave offence, it would be giving ·premium to one
    of the most obnoxious acts punishable under the IPC; that the sentence
G   should be commensurate with the nature. of the offence; that the High
    Court did not indicate any reason for reducing the sentence below the
    prescribed minimum which under the proviso to Section 376(l) IPC
    can be done for adequate and special reasons.

H        Respondent-accused contended that the High· Court has given
                                     274
                      STA TE OF KARNA TAKA v. PUTTARAJA                   275
.._
      adequate reasons as to why it considered the custodial sentence arf.eady A
      undergone to be adequate.

           Allowing the appeal, the Court

            HELD : 1. In operating the sentencing system, law should adopt the  1


       corrective machinery or the deterrence ideology based on factual matrix. B
       By deft modulation sentencing process be stern w!tere 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, the indelible 'C
       impact on the victim and his family and all other attending circumstances
       are relevant facts which would enter into the area of consideration.
       Further, it is the duty of every court to award proper sentence having
       regard to these. Furthermore, the aggravating and mitigating factors
       and circumstances in which a crime has been committed are to be D
       delicately balanced on the basis of really relevant circumstances in a
       dispassionate manner by the Court. (278-G-H; 279-A-C; 280-8)

           Sevaka Perumal etc. v. State of Tamil Nadu, AIR (1991) SC 1463,
      referred to.


-
                                                                                    E
           Dennis Councle MCGDautha v. State of California, 402 US 183: 28
      L.D. 2d 711, referred to.

           Law in Changing Society by Friedman, referred to.

            2.1. Criminal law adheres in general to the principle of F
      proportionality in prescribing liability according to the culpability of
      each kind of criminal conduct. Proportion between crime and punishment
      is a goal respected in principle, and in spite of errant notions, it remains
      a strong influence in the determination of sentences. (279-C-D, 279-F)
                                                                                    G
           2.2. The object should be to protect the society_ and to deter the
      criminal in achieving the avowed object oflaw by imposing appropriate
      sentence. It is expected that the Courts would operate the sentencing
      system so as to impose such sentence which reflects the conscience of
      the society and the sentence process bas to be stern where it should be. H
    276                SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A   Imposition of sentence without considering its effect on the social order   )·

    in many cases may be in reality a futile exercise. Any liberal attitude
    by imposing meager sentences or taking too sympathetic view merely
    on account of lapse of time or considerations personal to the accused
    only in respect of such offences will be result-wise counter productive
B   in long run and against social interest which needs to be cared for and
    strengthened by the required string of deterrence inbuilt in sentencing
    system. {280-E-H]

         2.3. Leniency in matters involving sexual offences is not only
    undersirable but also against public interest. Such types of offences are
C   to be dealt with severity and with iron hands. Showing leniency in such
    matters would be really a case of misplaced sympathy. (281-G-HJ

         Dhananjoy Chatterjee v. State of W.B., (1994] 2 SCC 220; Ravji v.
    State of Rajasthan, [1966) 2 SCC 175 and State of MP. v. Ghanshyam
D   Singh, (2003) 8 sec 13, referred to.

          3. In the instant case, where there was no scope for awarding
     sentence lesser than prescribed minimum and it should have been
     highest prescribed. But the trial court awarded sentence of 5 years for
     reasons, which may not be strictly meeting the requirements of ,law.
E    The only reason indicated by the High Court for awarding sentence
     lesser than prescribed minimum is that the accused is a cooli and
     agriculturist, young man aged 22 years old and requires sympathy and
     also that long time has lapsed. These cannot be described as adequate
     and special reasons. Therefore, the High Court was not justified in
F    restricting the sentence to the period already undergone, which is 46
    ·days. Further, since the State had not questioned the sufficiency of
     sentence before High Court, the sentence awarded by the trial court
     along with the fine imposed is restored. (282-C-D, 282-A-B)

G       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    506 of 1997.

        From the Judgment and Order dated 10.10.96 of the Kamataka High
    Court in Crl. A. No. 827 of 1994.

H         Anil Kr. Mishra for Sanjay R. Hegde for tile Appellant.
                 STATE OF KARNATAKA v. PUTTARAJA [PASAYAT, J.]                 271

    ... .    Rao Ranjit (A.C.) for the Respondent .                                  A
             The Judgment of the Court was delivered by

              ARIJIT PASAYA T, J. A rapist not only causes physical injuries but
        more indelibly leaves a scar on the most cherished possession of a woman
        i.e. her dignity, chastity, honour and reputation. The depravation of such B
        animals in human form reach the rock bottom of morality when they
        sexually assault children, minors and like the case«~ hand, a woman in the
        advance stage of pregnancy.

               We do not propose to mention name of the victim. Section 228-A of C
        the Indian Penal Code, 1860 (in short the 'IPC') makes disclosure of
        identity of victim of certain offences punishable. Printing or publishing
        name of any matter which may make known the identity of any person
        against whom an offence under Section 376, 376-A, 376-B, 376-C or
        376-D is alleged or found to have been committed can be punished. True
        it is, the restriction does not relate to printing or publication of judgment D
        by High Court or Supreme Court. But keeping in view the social object
        of preventing social victimization or ostracism of the victim of a sexual
        offence for which Section 228-A has been enacted, it would be appropriate
        that in the judgments, be it of this Court, High Court or lower Court, the
        name of the victim should not be indicated. We have chosen to describe E
        her as 'victim' in the judgment.

              21st August, 1985 is a day on which the victim suffered unfathomable
        physical agony and traumatic ignominy that one can conceive of at the
        hands of the accused-respondent. The libidinousness and the lustful design F
        of the accused crossed all borders of indecency and he raped the victim
        in the presence of her husband, unmindful of the shattering mental tra1:1ma
        the latter (PW-I) suffered, Law was set into motion and the accused was
        charged for commission of offence punishable under Section 376 of the
        IPC. He was found guilty by the trial Court which imposed sentence of
        5 years imprisonment, (though the minimum sentence prescribed is 7 G
        years) and fine of Rs.2000. What seems to have weighed with the trial
        Court for inflicting a lesser sentence was age of accused's parents his
        dependent sisters, wife and two young children. Accused questioned
        correctness of the conviction and sentence before the Karnataka High
        Court. While the conviction was maintained, the sentence was reduced by      H
•
    278                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A ·a learned Single Judge to period of custody already undergone i.e. 46 days.
          The State of Karnataka questions the propriety of the sentence
    imposed. According to learned counsel for the appellant, if such minuscule
    sentence is awarded for such a grave offence, it WO!Jld be giving premium
B   to one most obnoxious acts punishable under the IPC. It is submitted that
    the sentence should be commensurate with the nature of the offence. In
    this case the High Comt has not even indicated any reason for reducing
    the sentence below the prescribed minimum which under the proviso to
    Section 376(1) IPC can be done for "adequate and special reasons to be
C   mentioned in the judgment".

          Learned counsel appearing for the respondents submitted that the
    evidence on record does not establish commission of the offence of rape
    and at the most the offence for which accused could be convicted is under
    Section 354 IPC, dealing with the assault or criminal force to a woman with
D   intent to outrage her modesty. Additionally, it is submitted that the High
    Court has given adequate reasons as. to why it considered the custodial
    sentence undergone to be adequate.

          The law regulates social interests, arbitrates conflicting claims and
E 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. 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 ::if
    lawlessness would undermine social order and lay it in rui"n.s. Protection
F   of society and stamping out criminal proclivity must be the object of law
    which must be achieved by imposing appropriate sentence. Therefore, law
    as a comer stone of the edifice of "order" should meet the challenges
    confronting the society. Friedman in his "Law in Changing Society'; stated
    that, "State of criminal law continues to be-as it should be-a decisive
G   reflection of social consciousness of society". Therefore, in operating the
    sentencing system, law should adopt the corrective machinery or the
    deterrence ideology 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
H   of the crime, the manner in which it was planned and committed, the
         STATE OF KARNATAKA v. PUTTARAJA [PASAYAT, J.]                 279

motive for commission of the crime, the conduct of the accused, the nature 'A
of weapons used the indelible impact on the victim and his family and all
other attending circumstances are relevant facts which would enter into the
area of consideration.

      Undue sympathy to impose inadequate sentence would do more harm
to the justice system to undermine the public confidence in the efficacy B
of law and society could not long endure under such serious threats. It
is, therefore, 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 et_c. This position was illuminatingly stated by this Court in
Sevaka Perumal etc. v. State of Tamil Naidu, AIR (1991) SC 1463.            C
      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 irt
arriving at a sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are raised by the ·D
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 justify a sentence. Sometimes the desirability of keeping
him out of circulation, and sometimes even the tragic results of his crime. E
Inevitably these considerations cause a departure from just desert as the ·
basis of punishment and create cases of apparent injustice that are serious
and widespread.

        Proportion between crime and punishment is a goal respected in F
principle, and in spite of errant notions, it remains a strong influence in
the determination of sentences. The practice of punishing all serious crimes
with equal severity is now unknown in civilized societies, but such a radical
departure from the principle of proportionality has disappeared from the
law only in recent times on account of misi.-laced sympathies to the
perpetrator of crime leaving the victim or his family into oblivion. Even G
now for a single grave infraction 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 proportion to the gravity of the crime, uniformly }-I
    280                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A disproportionate punishment has some very undesirable practical
    consequences.

          After giving due consideration to the facts and circumstances of each
    case, for deciding just and appropriate sentence to be awarded for an
B   offence, the aggravating and mitigating factors and circumstances in which
    a crime has been committ~d· are to be delicately balanced on the basis of
    really relevant circumstances in a dispassionate manner by the Court. Such
    act of balancing is indeed a difficult task. It has been very aptly indicated
    in Dennis Co uncle MCGDautha v. State of Callifornia, 402 US 183 : 28
    L.D. 2d 711 that no formula of a foolproof nature is possible that would
C   provide a reasonable criterion in determining a just and appropriate
    punishment in the infinite variety of circumstances that may affect the
    gravity 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
D   discretionary judgment in the facts of each case, is the only way in which
    such judgment may be equitably distinguished.

          The object should be to protect the society and to deter the criminal
    in achievin& the avowed object of iaw by imposing appropriate sentence.
E   It is expected that the Courts would operate the sentencing system so as
    to impose such sentence which reflects the conscience of the society and
    the sentencing process has to be stern where it should be.

          Imposition of sentence without considering its effect on the social
    order in many cases may be in reality a futile exercise. The social impact
F   of the crime, e.g. where it relates to offences against women like the case
    at hand, dacoity, kidnapping, misappropriation of public money, treason
    and other off~nces involving moral turpitude or moral delinquency which
    have great ,jmpact and serious repercussions on social order, and public
    interest, cannot be lost sight of and per se require exemplary treatment. Any
G   liberal attitude by imposing meagre sentences or taking too sympathetic
    view merely on account of lapse of time or considerations personal to the
    accused only in respect of such offences will be result-wise counter
    productive in the long run and against societal interest which needs to be
    cared for and strengthened by the required string of deterrence inbuilt in
H the sentencing system.
         STATE OF KARNATAKA v. PUTTARAJA [PASAYAT, J.]                281

      In Dhananjoy Chatterjee v. State of WB., (1994] 2 SCC 220, this A
Court has observed that 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
appropriate punishment is the manner in which the Court responds to the
society's cry for justice against the criminal. Justice demands that Courts B
should impose punishment befitting the crime so that the Courts reflect
public abhorrence of the crime. The Court must not only keep in 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.
                                                                            c
      Similar view has also been expressed in Ravji v. State of Rajasthan,
[ 1996] 2 sec 17 5. It has been held in the said case that it is the nature
and gravity of the ·crime but 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 D
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 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 E
abhorrence and it should "respond to the society's cry for justice against
the criminal". These aspects have been highlighted in State of MP. v.
Ghanshyam Singh, (2003] 8 SCC 13. Rape is violation with violence of
the private person of the victim, an abominable outrage by all canons.
                                                                            F
      In the background what has been stated in Ghanshyam Singh 's case
(supra) the inevitabl.e conclusion is that the High Court was not justified
in restricting the sentence to the period already undergone, which is 46
days. ~eniency in matters involving sex•1al offences is not only undesirable
but also against public interest. Such types of offences are to be dealt with G
severity and with iron hands. Showing leniency in such matters would be
really a case of misplaced sympathy. The acts which led to the conviction
of the accused are not only shocking but outrageous in their contours. The
only reason indicated by the High Court for awarding sentence lesser then
prescribed minimum is quoted below:
                                                                            H
    282                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A                 "I have heard at length the submission of Mr. Bhagavan,
             learned counsel for the accused, on the question of sentence. He
             submitted that the accused is a cooli and agriculturists, young man
             aged 22 years old and requires sympathy. It is also relevant to
             point out that the occurrence took place in the year 1985 and a
             long time has lapsed. The trial and the appeal have kept the
B                                                                                  t
                                                                                   ,~

             appellant busy in court. Taking all these factors into account I
             feel that the appellant need not be sentenced to imprisonment
             since he was already in custody for a period of 46 days."

          If the above can be described as "adequate and special reasons" then
C it would be insulting to ratiocination.
          According to us this is a case where there was no scope for awarding
    sentence lesser than prescribed minimum and it should have been highest
    prescribed. But the trial Court awarded sentence of 5 years for reasons,
D   which may not be strictly meeting the requirements of law. Since the State
    had not questioned the sufficiency of sentence before the High Court, we
    restore the sentence awarded by the trial Court along with the fine imposed:

          The appeal is allowed.

E N.J.                                                         Appeal allo~~d.
                                                                         .  ..