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Wednesday, March 11, 2015

Merely because the appellant has now married hardly 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 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.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL NO(S). 230 OF 2013



|SATISH KUMAR JAYANTI LAL DABGAR            |.....APPELLANT(S)               |
|                                           |                                |
|VERSUS                                     |                                |
|STATE OF GUJARAT                           |.....RESPONDENT(S)              |



                               J U D G M E N T

A.K. SIKRI, J.


                 Though, this Court vide order  dated  18.09.2012  appointed
Mr. Parmanand Katara as Amicus Curiae, 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 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 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 appeal.  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  sentenced  to  undergo
rigorous imprisonment for committing the aforesaid offences as under:
(a)   For committing the offence  punishable  under  Section  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)   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,
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 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.

      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  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 years instead  of  7
years for the offence punishable under Section 376 of the  IPC.   With  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 affirmed.

4)    The appellant was implicated and charged under 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,  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.   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 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 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  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 by the  Court  of  Sessions,
the case was committed to Sessions Court, Himmatnagar.

5)    After framing of the charge, the  trial  proceeded.   The  prosecution
examined as many as 11 witnesses to prove the charges.  The  particulars  of
these witnesses are as under:

|No.      |Ex.           |Name of witnesses     |                  |
|1        |8             |Rasikbhai Hirabhai    |complainant/      |
|         |              |Dabagar               |supporter         |
|2        |10            |Daughter of Rasikbhai |Victim/supporter  |
|         |              |Hirabhai Dabagar      |                  |
|3        |15            |Punamchand Laljibhai  |Witness/supporter |
|         |              |Dabagar               |                  |
|4        |16            |Rakesh Kumar          |Witness/supporter |
|         |              |Punamchand            |                  |
|5        |17            |Hansaben Punamchand   |Witness/supporter |
|         |              |Dabagar               |                  |
|6        |18            |Mulljibhai Dayashankar|IO, who made      |
|         |              |Upadhayaya            |chargesheet       |
|7        |25            |Chandanben Rasiklal   |witness/supporter |
|         |              |Dabgar                |                  |
|8        |27            |Bhikhabhai Manbhai    |witness/supporter |
|         |              |Parmar                |                  |
|9        |28            |Kanubhai Jaychandbhai |Main IO           |
|         |              |Chaudharay            |                  |
|10       |33            |Dr. Rajkamal Shri     |Medical Officer   |
|         |              |Adhyasharan           |                  |
|11       |39            |Bharat Kumar          |Employee of Nagar |
|         |              |Babarbhai Patel       |Palika            |

6)    In addition, following documents were produced and exhibited through
the witnesses:
|1        |Original Complaint by Ex. 9.                            |
|2        |Panchnama of scene of offence by Ex.11.                 |
|3        |Panchnama of clothes of victim and accused seized by    |
|         |Ex.12.                                                  |
|4        |Receipt of FSL for having received the Muddamal by      |
|         |Ex.19.                                                  |
|5        |Forwarding letter of FSL regarding having sent the FSL  |
|         |report by Ex.20                                         |
|6        |FSL report by Ex.21.                                    |
|7        |Report showing the results of serological analysis by   |
|         |Ex.22.                                                  |
|8        |Birth Certificate of victim by Ex.26.                   |
|9        |Muddamal dispatch note by Ex.29.                        |
|10       |Yadi made by police for making medical examination of   |
|         |accused by Ex.34.                                       |
|11       |Medical certificate of physical examination of Victim by|
|         |Ex.35.                                                  |
|12       |Medical certificate of physical examination of accused  |
|         |by Ex.36.                                               |
|13       |Abstract of Birth Registration Register of Nagarpalika  |
|         |by Ex.40.                                               |

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 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 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 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  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 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, 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
of IPC?

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

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

5.    What order?

9)    The questions formulated 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 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 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 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 at  the  relevant
time, the prosecution had produced xerox copy of  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  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.

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 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 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 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 Nos.1345 on Page No.91 in  the  year
1988.  Xerox copy of this 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 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  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  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  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 a  bit.   In  the  face  of  aforesaid
material staring 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 by the counsel for the appellant even  before  the  High  Court.
The learned Amicus Curiae, therefore, drew our attention 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  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  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 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 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 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 sixthly of Section  375  of
the IPC would get attracted making her consent  for  sexual  intercourse  as
immaterial and inconsequential.  It reads as follows:
"375. Rape-A  man  is  said  to  commit  "rape"  who,  except  in  the  case
hereinafter  excepted,  has  sexual   intercourse   with   a   woman   under
circumstances falling under any of the six following descriptions:-

                               xx    xx    xx

Sixthly - With or without her consent, when she is 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  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 a girl child who is not only minor but  less  than  16  years  of
age.  A minor girl can be easily 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  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,  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.

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  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.

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 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 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 consequences? There  are  many  philosophies  behind
such    sentencing    justifying    these    penal     consequences.     The
philosophical/jurisprudential    justification    can    be     retribution,
incapacitation, specific deterrence, 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  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  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 courts go by their own perception about the philosophy  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  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.

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  rationale  for
punishing 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 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 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 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.  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 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  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 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 would not move the court in accepting the  same  as  larger  and  more
important public policy of showing the iron hand of law to  the  wrongdoers,
to reduce the commission of such offences,  is  more  important.   Cases  of
murder, rape, or other sexual offences, etc.  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 "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
would lead to more  good;  better  relations  between  them;  would  prevent
further occurrence of such 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  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 others, (2014) 7 SCC 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  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. 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 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 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'."


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 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 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).


35.   In Aero Traders Pvt. Ltd. v. Ravinder Kumar 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 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 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,  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 discretion of the authorities,  that
something is to be done according to the rules of  reason  and  justice  and
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."

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.

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 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 an obligation to the society which has  reposed
faith in the court of law 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  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;
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  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 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,  for  the  Court  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  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  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 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.

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.



                                 .........................................J.
                                                               (Dipak Misra)


                                 .........................................J.
                                                                (A.K. Sikri)
New Delhi;
March 10, 2015

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