LAW RESOURCE INDIA

A UNUSUAL ORDER

Supreme Court of India

In an unusual order, the Supreme Court let off three gang rapists after they claimed a ‘compromise formula’ with the victim and agreed to pay her a fine of Rs 50,000 each for their offence.  The judgement is reproduced here. Readers are requested to send their comments.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 749 OF 2007

BALDEV SINGH & ORS. ……Appellant (s)

Versus

STATE OF PUNJAB …..Respondent (s)

O R D E R

This appeal has been filed against the impugned judgment dated 27.0.2005 IN CRLA No. 242 of 1999 of the High Court of Punjab & Haryana at Chandigarh.

The facts of the case have been set out in the judgment of the High Court and hence we are not repeating the same here, except where necessary. The prosecution case is that on 03.03.1997 at about 6.30 A.M. the prosecutrix was coming to her house after answering the call of nature. The three appellants caught her and took her into a house and raped her and beat her. After police investigation the appellants were charge sheeted, and after a trial were convicted under Section 376 (2) (g) and Section 342 I.P.C. and sentenced to 10 years R.I. and to pay a fine of Rs.1,000/- each. The sentence was upheld by the High Court, and hence this appeal.

Admittedly the appellants have already undergone, about 3 and ½ years imprisonment each. The incident is 14 years old. The appellants and the prosecutrix are married (not to each other). The prosecutrix has also two children. An application and affidavit has been filed before us stating that the parties want to finish the dispute, have entered into a compromise on 01.09.2007, and that the accused may be acquitted and now there is no misunderstanding between them.

Section 376 is a non compoundable offence, However, the fact that the incident is an old one, is a circumstance for invoking the proviso to Section 376 (2) (g) and awarding a sentence less than 10 years, which is ordinarily the minimum sentence under that provision, as we think that there are adequate and special reasons for doing so.

On the facts of the case, considering that the incident happened in the year 1997 and that the parties have themselves entered into a compromise, we uphold the conviction of the appellant but we reduce the sentence to the period of sentence already undergone in view of the proviso to Section 376 (2) (g) which for adequate and special reasons permits imposition of a lesser sentence. However, we direct that each of the appellant will pay a sum of Rupees 50,000/- by way of enhancement of fine to the victim envisaged under Section 376 of the IPC itself. The fine shall be paid within three months from today. In the event of failure to pay the enhanced amount of fine it will be recovered as arrears of land revenue and will be given to the victim.

The appeal is disposed off.

……………….J.

[MARKANDEY KATJU]

……………….J.

[GYAN SHDHA MISRA]

NEW DELHI; FEBRUARY 22, 2011

8 Responses

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  1. kammuluridass said, on February 25, 2011 at 01:51

    In judgment of Gujarat High Court ( KJ VaidyaJ) in state of Gujarat vs Rajesh Medical and general stores criminal appeal no. 538 of 1986 decided on 15.3. 1993 ,. some good words in relevance to sentencing are cited: at para 7 : ” Now with due respect to the learned magistrate , it may be stated that except bare assertions in the joint pursuit ( Exp6) submitted by the respondents to the effect that the respondents no. 2 was sick old man and was not attending the shop at the relevant time, thee was absolutely nothing on the record to testify and support the same for the court to satisfy its JUDICIAL CONSCIENCE regarding genuineness of the same to accept it. In the said joint pursuit there is neither any specific age mentioned nor any specific disease described , nor any medical certificate produced in support of the alleged sickness of the respondent no. 2 . Thus , except bald assertion and mere ipsi-dixit in the written pursuit , there is absolutely nothing on the record to justify alleged grounds for taking any lenient view of the matter, even if it was legally possible to be availed of.IT IS TO BE MENTIONED THAT WHEN LEGISLATURE VESTS ANY DISCRETION IN COURTS TO AWARD LESS THAN THE MINIMUM SENTENCE PRESCRIBED UNDER THE PARTICULAR STATUTE THEN SUCH A DISCRETION SHOULD BE EXERCISED WITH THE UTMOST CARE AND CIRCUMSPECTION. IF ONE ON THE CONTRARY , THE COURT REMAINS RELAXED AND UNATTENTIVE , IT IS VERY LIKELY THAT IN A GIVEN CASE SOME SCHEMING ACCUSED TRICKILY INVOKING FALSE SYMPATHY OF COURT MAY GET AWAY WITH LIGHT SENTENCE DEFEATING THE VERY OBJECT OF SENTENCING PROCESS.

  2. kammuluridass said, on February 25, 2011 at 01:57

    THE INCIDENT IS 14 YEARS OLD SEEMS BE THE GROUND. IT IS NO REASON BECAUSE THE TIME THE CASES ARE REACHING SUPREME COURT IT IS SOMETIMES EVEN MORE THAN 14 YEARS.

  3. pooja said, on February 25, 2011 at 21:09

    With due respect to all judges.i strongly feel that many of them really need to study law all over again and then sit for deciding.many of their decisions are devoid of what the legislature actually wants.instead of interpreting what is the law they have themself taken the job of legislature.with a country where separation of power and rule of law is the essence of constitution ,they themself start is legislating.the way earlier judges used to interpret law is the “task” they have to not only learn but also apply.

  4. dr raka arya said, on February 26, 2011 at 11:02

    the judgement reflects on the insensitivity and the defeatist approach of the criminal justice administration system in india. the whole process of getting justice is so tedious and painstakingly slow specially for poor that they are left with no other alternative but to compromise. the ideas about establishing fast track court is still elusive. for women it is becoming increasingly difficult to get justice.therefore need of the hour is to establish them fast so there is no short cut.

  5. kharbindersingh said, on February 26, 2011 at 17:37

    I think that the decision made by the Supreme Court is fair, lawful and in the public interest in the circumstances of the case for the following explanation:

    The decision is fair because it compensates the victim and the compensation has the capacity to sooth the wound of the victim. Mostly criminal law concentrates in punishing the perpetrator of crime rather than providing the relief to the victim. In this case the victim has got the desired relief therefore this judgment is fair.

    The decision is lawful because the text of the sections allow the discretion upon the courts enabling them to make such kind of orders.

    The decision is in public interest because firstly it will save the taxpayer’s money which the taxpayer’s would have required to fund if the convicts are further kept in jail. Secondly it is also noteworthy that the convicts have not committed any further offence for many years which indicates that they will not pose the future risk. Thus keeping them in jail for many more years in the circumstances would be akin of taking revenge rather than punishing them.

  6. Muhammad Sayyed said, on February 27, 2011 at 04:22

    By this judgement the Supreme Court has done a very good job. Law after all is made for betterment of the society and to do justice between the victim and the offender. In the subject case the Supreme Court found good reasons for believing the compromise entered between the victim and the offender. The need of the hour is to have such practicable judgements and not the rigid ones based on the literal meaning of the statute.

  7. Advocate Shailendra Garg said, on February 27, 2011 at 13:49

    I appreciate this judgment because the prosecutrix married with other party and god blesses her two children so therefore she will be more precise if she got Cash, which is so require to her in lieu of Sentence from the opposite party. This is a different case where the Hon’ble judges excise his equitable jurisdiction while considering the facts and circumstances of the case, either it’s a non compoundable offence committed by opposite party.

  8. kharbindersingh said, on February 28, 2011 at 11:53

    Dear Mr Advocate Shailendra Garg,
    Please read the order carefully. The prosecutrix is not married with other parties. Nevertheless I think that the Supreme Court has made a correct decision.


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