Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1860 OF 2010
Shyam Narain ...Appellant
Versus
The State of NCT of Delhi ...Respondent
J U D G M E N T
Dipak Misra, J.
The wanton lust, vicious appetite, depravity of
senses, mortgage of mind to the inferior endowments of
nature, the servility to the loathsome beast of passion and
absolutely unchained carnal desire have driven the
appellant to commit a crime which can bring in a ‘tsunami’
of shock in the mind of the collective, send a chill in the
spine of the society, destroy the civilized stems of the
milieu and comatose the marrows of sensitive polity.
It is
Page 2
brutal rape of an eight year old girl.
The sensitive learned
trial Judge, after recording conviction under Section 376(2)
(f) of the Indian Penal Code (for short “IPC”), had taken
note of the brutality meted out to the child and sentenced
him to undergo rigorous imprisonment for life and to pay a
fine of Rs.5000/- failing which to undergo rigorous
imprisonment for six months.
The Division Bench of the
Delhi High Court has equally reflected its anguish over the
crime by describing it as “pervaded with brutality” and
“trauma which the young child would face all her life” and
has concurred with the sentence of imprisonment and the
fine.
2. This Court, at the time of issuance of notice, had
restricted it to the quantum of sentence. However,
we shall dwell upon the merits of the case in brief.
3. The horrid episode as unfurled by prosecution is that
on 29.10.2003, about 6.30 p.m., an eight year old
child, daughter of one Binda Saha, was taken by the
appellant to Lal Bahadur Shastri Hospital and from
there, being referred, she was admitted in GTB
Hospital, Shahdara, at 1.30 a.m. on 30.10.2003. The
2Page 3
young girl, as recorded in MLC Ext.PW-10/D, had
stated that she had fallen down in the toilet about
2.00 p.m. on 29.10.2003 as a consequence of which
she had sustained the injuries.
The treating doctor,
Dr. Anju Yadav, was not convinced with what was
being narrated to her.
As the factual narration would
reflect, the duty constable informed the local police
station, i.e., P.S. Kalyanpuri, about the admission of
the young girl (hereinafter whom we shall refer to as
‘M’) and her condition, as recorded in the MLC.
The
child remained in the hospital for six days and
thereafter she was discharged.
The anxious mother,
unable to digest the story that was told to her by the
daughter, asked her to muster courage and tell the
truth to her.
The young ‘M’ gained confidence and,
eventually, on 10.11.2003, broke down before her
mother and told her how the appellant had brutally
raped her and threatened her that if she disclosed
the said fact to anyone, her life as well as the lives of
her parents would be in danger.
The disturbed father
proceeded to the police station and informed what
3Page 4
was told by his daughter and, accordingly, an FIR was
registered.
After the criminal law was set in motion,
the investigating agency arrested the accused and,
eventually, the accused-appellant was sent up for
trial.
The accused pleaded innocence and claimed to
be tried.
4. The prosecution, in order to establish the charge
levelled against the accused, examined 11 witnesses
including the child ‘M’, her parents, the doctors and
other formal witnesses.
The accused in his
statement under Section 313 of the Code of Criminal
Procedure stated that on 28.10.2003, the parents of
‘M’ had gone to see her maternal uncle and,
therefore, he had taken the prosecutrix ‘M’ to the
hospital for medical aid, but as Lal Bahadur Shastri
Hospital refused on the ground that the prosecutrix
should be taken to some big hospital, he took her to
GTB Hospital for medical treatment. It was his
further explanation that he took the girl to the
hospital for saving her life and he was not aware that
she had been raped.
The allegation of threat was
4Page 5
disputed by the accused. It is also his stand that
initially the child had not named him being asked by
the doctor and had stated that she had sustained the
injuries by fall, and after the discharge of the child,
he went to attend his work on 4.11.2003.
Be it
noted, the defence chose not to adduce any
evidence.
5. The learned trial Judge, considering the entire
evidence on record and the contentions raised on
behalf of the accused, came to hold that the version
of the prosecutrix could be relied upon in entirety
and by no stretch of imagination it could be said that
she was a tutored witness; that the delay in lodging
the FIR was not at all fatal to the case of the
prosecution as the child was in a tremendous state of
panicky; that the factum of rape has been clearly
proven from the medical evidence and the testimony
of the doctors which have remained unimpeachable
despite roving cross-examination; that no plea of any
hostility or previous animosity had been suggested to
the child or to her parents; that the presence of the
5Page 6
accused in the house had remained unexplained; and
that no suggestion had been given to any of the
doctors who were cited by the prosecution that the
injuries could be caused by fall.
Considering the
entire evidence in detail, the learned trial Judge
found the accused guilty of the offence under Section
376(2)(f) IPC and sentenced him as has been stated
hereinbefore.
6. In appeal, the High Court took note of number of
factors, narrating the condition of the child, the
revelation of the tragic treatment by the accused, the
circumstances under which the FIR was lodged, the
testimony of the prosecutrix as to how she had been
raped in a cruel manner by the accused, the absence
of any reason of his going to the house of young ‘M’
and the circumstances under which he could see the
injured child, the credibility and unimpeachability of
the evidence of the child ‘M’, the courage that was
gradually gathered by the child after getting out of
the state of fear and trauma, the evidence of the
doctors which showed the physical condition of the
6Page 7
victim and the conduct of the accused in the hospital
and, on the said basis, concurred with the view
expressed by the learned trial Judge.
7. We have heard learned counsel for the appellant, and
Mr. Paras Kuhad, learned Additional Solicitor General,
and Mr. B.V. Balram Dass, learned counsel appearing
for the NCT of Delhi.
8. To consider the defensibility of the judgment of
conviction rendered by the learned trial Judge and
affirmed by the Division Bench, it is necessary to
appreciate the nature of injuries suffered by the
victim. True it is, the young child had told the
doctors that she had suffered a fall but the same was
not given credence to by the treating doctors. The
MLC where the condition of the young child was
recorded is as follows: -
“O/E-Apprehensive look, G.C. fair, pallor mild, P-
96/m, BP 110/80, heart NAD. No bruises seen on
the body. Breasts and secondary sexual
characters not developed. P/A Soft, lever
spleen not palpable. No shifting dullness, no
area of tenderness. L/E – On separation of labia,
a tear of 1.5 approx. to 2 cm. seen from
posterior fourchette towards anus just 1 cm.
7Page 8
short of anal opening and same tear extending
upto hymen. Clot was seen in her vagina, anal
opening was intact, no area of bruise seen on
perineum. Bleeding per vagina was present.
Decision for examination under anaesthesia and
repair of vaginal perennial tear taken. Patient
was admitted in septic labour room and shifted
to gynae emergency operation theatre. On
examination under anaesthesia, showed same
findings as above but in addition a tear of 3 cm
approximately was seen in left vaginal wall from
hymen into the vagina. Bleeding was positive.
Apex of tear seen, tear stitched in layers, cervix
seen healthy, no bleeding through OS. In view
of EUA, findings under anaesthesia high index of
suspicion of sexual assault was made although
the child and her uncle were denying of any
such episode.”
9. Dr. Sapna Verma, PW-4, who examined the victim,
found that the hymen of the child ‘M’ was torn. The
victim has deposed that about 1.00 p.m. in the
afternoon, on the date of the incident, the accused appellant came to the house and gave her an
intoxicating drink and took her into a room. He raped
her and also gave threat that if she would tell her
parents or any other person, he would inflict knife
blows upon her and her family members. He had
further told her that she should tell her parents that
she received the injuries when she slipped in the
toilet. It has also come in her evidence that the
8Page 9
accused took her to the hospital while she was
bleeding from her private parts. She has truthfully
spoken that initially she told her parents that she had
sustained injuries as a result of a fall in the toilet
because she was terribly scared and thereafter she
spoke out how she sustained the injuries. In her
cross-examination, she has stood embedded in her
version. The time gap between the occurrence and
the accused taking the child to the hospital has its
own significance. The child was bleeding from her
private parts. Had the child been left to herself, she
would have bled to death. The accused took her to
the hospital to avoid a situation when somebody
might have come hearing her cry and saved her life
and she might have ultimately spoken the truth. The
totality of the circumstances would show that he was
with the child. It is interesting to note that the
accused had not disclosed why he had gone to the
house of the child ‘M’ and under what circumstances
he took the child to the hospital. The unimpeachable
evidence of the child ‘M’, the testimony of the
9Page 10
treating physicians, the medical evidence and the
conduct of the accused go a long way to show that
the accused had raped the child ‘M’ in a cruel and
brutal manner and the conviction recorded on that
score by the learned trial Judge which has been given
stamp of approval by the High Court cannot be
faulted.
10. Presently, we shall proceed to deal with the
justification of the sentence. Learned counsel for the
appellant, would submit that though Section 376(2)
provides that sentence can be rigorous imprisonment
for life, yet as a minimum of sentence of ten years is
stipulated, this Court should reduce the punishment
to ten years of rigorous imprisonment. It is urged by
him that the appellant is a father of four children and
their lives would be ruined if the sentence of
imprisonment for life is affirmed. Mr. Paras Kuhad,
and Mr. B.V. Balram Dass, counsel for the State,
submitted that the crime being heinous, the sentence
imposed on the accused is absolutely justified and
does not warrant interference. It is also canvassed
10Page 11
by them that reduction of sentence in such a case
would be an anathema to the concept of just
punishment.
11. Primarily it is to be borne in mind that sentencing for
any offence has a social goal. Sentence is to be
imposed regard being had to the nature of the
offence and the manner in which the offence has
been committed. The fundamental purpose of
imposition of sentence is based on the principle that
the accused must realise that the crime committed
by him has not only created a dent in his life but also
a concavity in the social fabric. The purpose of just
punishment is designed so that the individuals in the
society which ultimately constitute the collective do
not suffer time and again for such crimes. It serves
as a deterrent. True it is, on certain occasions,
opportunities may be granted to the convict for
reforming himself but it is equally true that the
principle of proportionality between an offence
committed and the penalty imposed are to be kept in
view. While carrying out this complex exercise, it is
11Page 12
obligatory on the part of the Court to see the impact
of the offence on the society as a whole and its
ramifications on the immediate collective as well as
its repercussions on the victim.
12. In this context, we may refer with profit to the
pronouncement in Jameel v. State of Uttar
Pradesh1
, wherein this Court, speaking about the
concept of sentence, has laid down that it is 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. The
sentencing courts are expected to consider all
relevant facts and circumstances bearing on the
question of sentence and proceed to impose a
sentence commensurate with the gravity of the
offence.”
13. In Shailesh Jasvantbhai and another v. State of
Gujarat and others2
, the Court has observed thus:
“Friedman in his Law in Changing Society stated
that: “State of criminal law continues to be - as
1
(2010) 12 SCC 532
2
(2006) 2 SCC 359
12Page 13
it should be -a decisive reflection of social
consciousness of society.” Therefore, in
operating the sentencing system, law should
adopt the corrective machinery or deterrence
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 of the crime, the manner in
which it was planned and committed, the
motive for commission of the crime, the
conduct of the accused, the nature of weapons
used and all other attending circumstances are
relevant facts which would enter into the area
of consideration”.
14. In State of M.P. v. Babulal3
, two learned Judges,
while delineating about the adequacy of sentence,
have expressed thus : -
“19. Punishment is the sanction imposed on the
offender for the infringement of law committed
by him. Once a person is tried for commission
of an offence and found guilty by a competent
court, it is the duty of the court to impose on
him such sentence as is prescribed by law. The
award of sentence is consequential on and
incidental to conviction. The law does not
envisage a person being convicted for an
offence without a sentence being imposed
therefore.
20. The object of punishment has been
succinctly stated in Halsbury’s Laws of England,
(4th Edition: Vol.II: para 482) thus:
“The aims of punishment are now
considered to be retribution, justice,
deterrence, reformation and protection
3
AIR 2008 SC 582
13Page 14
and modern sentencing policy reflects a
combination of several or all of these aims.
The retributive element is intended to
show public revulsion to the offence and to
punish the offender for his wrong conduct.
The concept of justice as an aim of
punishment means both that the
punishment should fit the offence and also
that like offences should receive similar
punishments. An increasingly important
aspect of punishment is deterrence and
sentences are aimed at deterring not only
the actual offender from further offences
but also potential offenders from breaking
the law. The importance of reformation of
the offender is shown by the growing
emphasis laid upon it by much modern
legislation, but judicial opinion towards this
particular aim is varied and rehabilitation
will not usually be accorded precedence
over deterrence. The main aim of
punishment in judicial thought, however, is
still the protection of society and the other
objects frequently receive only secondary
consideration when sentences are being
decided”.
(emphasis supplied)”
15. In Gopal Singh v. State of Uttarakhand4
, while
dealing with the philosophy of just punishment which
is the collective cry of the society, a two-Judge Bench
has stated that just punishment would be dependent
on the facts of the case and rationalised judicial
discretion. Neither the personal perception of a
4
2013 (2) SCALE 533
14Page 15
Judge nor self-adhered moralistic vision nor
hypothetical apprehensions should be allowed to
have any play. For every offence, a drastic measure
cannot be thought of. Similarly, an offender cannot
be allowed to be treated with leniency solely on the
ground of discretion vested in a Court. The real
requisite is to weigh the circumstances in which the
crime has been committed and other concomitant
factors.
16. The aforesaid authorities deal with sentencing in
general. As is seen, various concepts, namely,
gravity of the offence, manner of its execution,
impact on the society, repercussions on the victim
and proportionality of punishment have been
emphasized upon. In the case at hand, we are
concerned with the justification of life imprisonment
in a case of rape committed on an eight year old girl,
helpless and vulnerable and, in a way, hapless. The
victim was both physically and psychologically
vulnerable. It is worthy to note that any kind of
15Page 16
sexual assault has always been viewed with
seriousness and sensitivity by this Court.
17. In Madan Gopal Kakkad v. Naval Dubey and
another5
, it has been observed as follows:-
“... though all sexual assaults on female
children are not reported and do not come to
light yet there is an alarming and shocking
increase of sexual offences committed on
children. This is due to the reasons that
children are ignorant of the act of rape and are
not able to offer resistance and become easy
prey for lusty brutes who display the
unscrupulous, deceitful and insidious art of
luring female children and young girls.
Therefore, such offenders who are menace to
the civilized society should be mercilessly and
inexorably punished in the severest terms.”
18. In State of Andhra Pradesh v. Bodem Sundra
Rao6
, this Court noticed that crimes against women
are on the rise and such crimes are affront to the
human dignity of the society and, therefore,
imposition of inadequate sentence is injustice to the
victim of the crime in particular and the society in
general. After so observing, the learned Judges had
to say this: -
5
(1992) 3 SCC 204
6
AIR 1996 SC 530
16Page 17
“The Courts have an obligation while awarding
punishment to impose appropriate punishment
so as to respond to the society’s crime for justice
against such criminals. Public abhorrence of the
crime needs a reflection through the Court’s
verdict in the measure of punishment. The
Courts must not only keep in view the rights of
the criminal but also the rights of the victim of
crime and the society at large while considering
imposition of the appropriate punishment.”
19. In State of Punjab v. Gurmit Singh and others7
,
this Court stated with anguish that crime against
women in general and rape in particular is on the
increase. The learned Judges proceeded further to
state that it is an irony that while we are celebrating
women’s rights in all spheres, we show little or no
concern for her honour. It is a sad reflection of the
attitude of indifference of the society towards the
violation of human dignity of the victims of sex
crimes. Thereafter, the Court observed the effect of
rape on a victim with anguish: -
“We must remember that a rapist not only
violates the victim’s privacy and personal
integrity, but inevitably causes serious
psychological as well as physical harm in the
process. Rape is not merely a physical assault –
it is often destructive of the whole personality of
the victim. A murderer destroys the physical
7
AIR 1996 SC 1393
17Page 18
body of his victim, a rapist degrades the very
soul of the helpless female.”
20. In State of Karnataka v. Krishnappa8
, a threeJudge Bench opined that the courts must hear the
loud cry for justice by the society in cases of the
heinous crime of rape on innocent helpless girls of
tender years and respond by imposition of proper
sentence. Public abhorrence of the crime needs
reflection through imposition of appropriate sentence
by the court. It was further observed that to show
mercy in the case of such a heinous crime would be
travesty of justice and the plea for leniency is wholly
misplaced.
21. In Jugendra Singh v. State of Uttar Pradesh9
,
while dwelling upon the gravity of the crime of rape,
this Court had expressed thus: -
“Rape or an attempt to rape is a crime not
against an individual but a crime which destroys
the basic equilibrium of the social atmosphere.
The consequential death is more horrendous. It
is to be kept in mind that an offence against the
body of a woman lowers her dignity and mars
her reputation. It is said that one’s physical
frame is his or her temple. No one has any right
8
(2000) 4 SCC 75
9
(2012) 6 SCC 297
18Page 19
of encroachment. An attempt for the
momentary pleasure of the accused has caused
the death of a child and had a devastating
effect on her family and, in the ultimate
eventuate, on the collective at large. When a
family suffers in such a manner, the society as a
whole is compelled to suffer as it creates an
incurable dent in the fabric of the social milieu.”
22. Keeping in view the aforesaid enunciation of law, the
obtaining factual matrix, the brutality reflected in the
commission of crime, the response expected from
the courts by the society and the rampant
uninhibited exposure of the bestial nature of pervert
minds, we are required to address whether the
rigorous punishment for life imposed on the appellant
is excessive or deserves to be modified. The learned
counsel for the appellant would submit that the
appellant has four children and if the sentence is
maintained, not only his life but also the life of his
children would be ruined. The other ground that is
urged is the background of impecuniousity. In
essence, leniency is sought on the base of aforesaid
mitigating factors. It is seemly to note that the
legislature, while prescribing a minimum sentence for
a term which shall not be less than ten years, has
19Page 20
also provided that the sentence may be extended
upto life. The legislature, in its wisdom, has left it to
the discretion of the Court. Almost for the last three
decades, this Court has been expressing its agony
and distress pertaining to the increased rate of
crimes against women. The eight year old girl, who
was supposed to spend time in cheerfulness, was
dealt with animal passion and her dignity and purity
of physical frame was shattered. The plight of the
child and the shock suffered by her can be well
visualised. The torment on the child has the
potentiality to corrode the poise and equanimity of
any civilized society. The age old wise saying “child
is a gift of the providence” enters into the realm of
absurdity. The young girl, with efflux of time, would
grow with traumatic experience, an unforgettable
shame. She shall always be haunted by the memory
replete with heavy crush of disaster constantly
echoing the chill air of the past forcing her to a state
of nightmarish melancholia. She may not be able to
assert the honour of a woman for no fault of hers.
20Page 21
Respect for reputation of women in the society shows
the basic civility of a civilised society. No member of
society can afford to conceive the idea that he can
create a hollow in the honour of a woman. Such
thinking is not only lamentable but also deplorable. It
would not be an exaggeration to say that the thought
of sullying the physical frame of a woman is the
demolition of the accepted civilized norm, i.e.,
“physical morality”. In such a sphere, impetuosity
has no room. The youthful excitement has no place.
It should be paramount in everyone’s mind that, on
one hand, the society as a whole cannot preach from
the pulpit about social, economic and political
equality of the sexes and, on the other, some pervert
members of the same society dehumanize the
woman by attacking her body and ruining her
chastity. It is an assault on the individuality and
inherent dignity of a woman with the mindset that
she should be elegantly servile to men. Rape is a
monstrous burial of her dignity in the darkness. It is
a crime against the holy body of a woman and the
21Page 22
soul of the society and such a crime is aggravated by
the manner in which it has been committed.
We
have emphasised on the manner because, in the
present case, the victim is an eight year old girl who
possibly would be deprived of the dreams of “Spring
of Life” and might be psychologically compelled to
remain in the “Torment of Winter”.
When she
suffers, the collective at large also suffers. Such a
singular crime creates an atmosphere of fear which is
historically abhorred by the society. It demands just
punishment from the court and to such a demand,
the courts of law are bound to respond within legal
parameters. It is a demand for justice and the award
of punishment has to be in consonance with the
legislative command and the discretion vested in the
court. The mitigating factors put forth by the learned
counsel for the appellant are meant to invite mercy
but we are disposed to think that the factual matrix
cannot allow the rainbow of mercy to magistrate.
Our judicial discretion impels us to maintain the
sentence of rigorous imprisonment for life and,
22Page 23
hence, we sustain the judgment of conviction and the
order of sentence passed by the High Court.
23. Ex consequenti, the appeal, being sans merit, stands
dismissed.
..............................................J.
[Dr. B. S. Chauhan]
..............................................J.
[Dipak Misra]
New Delhi;
May 15, 2013
23
