The offence of rape is one of the most heinous offences that affects not only human body but also reproductive health, mental health and social well-being of the victim. In a society like ours where there are strong customs and taboos regarding sex and sexuality, the psychological trauma that the victim of rape has to undergo is inexplicable. Rape is a serious offence in every civilized country. So is the case in India. It is punished very severely. It is important to note that there is a demand to punish the offence of rape with death. An offence of rape is not compoundable in our legal system. In such a scenario, if the victim of rape and rapists reach a compromise, whether the courts can take judicial note of such a compromise in the course of administration of justice is an important question that arose in the wake of the recent Supreme Court judgment delivered on February 22, 2011 in Baldev Singh v. State of Punjab [Criminal Appeal No. 749 of 2007].
Section 376 (1) of the Indian Penal Code provides that an offender of rape shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable for fine. However, the statutory minimum of seven-year of imprisonment may be reduced further by the court under the proviso to clause (1) if there are “adequate and special reasons” in the case. However, an offence of ‘gang rape’ has been considered very grave and accordingly it has been subjected to more severe punishment under clause (2) of section 376. An offence of gang rape is “punishable with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.” Further exception has been made in the proviso to clause (2), which states: “Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years”.
There exists sentencing discretion under section 376. Judicial discretion has to be exercised on sound reasoning. Where there exists sentencing discretion, necessarily all the aggravating and mitigating factors have to be fully taken into consideration in passing an order on sentencing. Even in exercising the judicial discretion under proviso to clause (2) of section 376, it is imperative that the courts should take into account all the aggravating and mitigating factors and only when the mitigating factors are found “adequate and special”, punishment can be reduced to less than statutory minimum of 10 years.
In Baldev Singh v. State of Punjab (supra), the apex court reduced the punishments imposed on the convicts of gang rape taking into account three factors: (i) that the parties have entered into compromise and they wanted to put an end to the dispute; (ii) that the incident is very old. It had taken place 14 years back, and (iii) the appellants (i.e., rapists) and prosecutrix are married (not to each other). Can these factors be considered as “adequate and special reasons” to reduce the punishment below statutory minimum?
In our country where judicial delay is not uncommon, the fact that the incident took place 14 years back may not be considered so special. Further the reason that the prosecutrix (and even the offenders in this case) has married to some one else and has two children seems to be extraneous and cannot be considered a special reason either. It partly echo’s the earlier decision of the Supreme Court in Ram Kumar v. State of Haryana [(2006) 4 SCC 347]. The third and the most important factor is compromise between victim and rapists. Can the court take judicial note of such a compromise notwithstanding the fact that the offence of rape is not compoundable?
This is an issue that requires much thought and deeper reflections. Perhaps, laying down hard and fast rule in this regard would not leave any scope for flexibility even to an extent it is desirable in exceptional cases. However, having regard to the facts and circumstances of the instant case, where the prosecutrix had been gang raped and beaten up by the rapists, it seems inappropriate to take judicial note of compromise reached by them after several years. It is important to note that compromise was reached not between the parties (as the court said) but between a complainant and convicts. It was reached not at the stage when the case was at the stage of trial; not even when the appeal was pending before the high court but when the further appeal was pending before the Supreme Court - nearly 14 years after the incident. It is not clear as to under what circumstances victim has consented for compromise after such a long time. Without having regard to these factors, the Supreme Court commuted the sentence to the period already undergone by the convicts (i.e., 3 ½ years). Thus, none of the reasons stated in the judgment seem to be “adequate and special” so as to warrant punishment less than statutory minimum. Such an approach adopted by the court in sentencing doesn’t serve the objectives of criminal justice system. However, this decision once again stresses the need for formulating ‘sentencing policy’, which can guide the exercise of sentencing discretion.
Section 376 (1) of the Indian Penal Code provides that an offender of rape shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable for fine. However, the statutory minimum of seven-year of imprisonment may be reduced further by the court under the proviso to clause (1) if there are “adequate and special reasons” in the case. However, an offence of ‘gang rape’ has been considered very grave and accordingly it has been subjected to more severe punishment under clause (2) of section 376. An offence of gang rape is “punishable with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.” Further exception has been made in the proviso to clause (2), which states: “Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years”.
There exists sentencing discretion under section 376. Judicial discretion has to be exercised on sound reasoning. Where there exists sentencing discretion, necessarily all the aggravating and mitigating factors have to be fully taken into consideration in passing an order on sentencing. Even in exercising the judicial discretion under proviso to clause (2) of section 376, it is imperative that the courts should take into account all the aggravating and mitigating factors and only when the mitigating factors are found “adequate and special”, punishment can be reduced to less than statutory minimum of 10 years.
In Baldev Singh v. State of Punjab (supra), the apex court reduced the punishments imposed on the convicts of gang rape taking into account three factors: (i) that the parties have entered into compromise and they wanted to put an end to the dispute; (ii) that the incident is very old. It had taken place 14 years back, and (iii) the appellants (i.e., rapists) and prosecutrix are married (not to each other). Can these factors be considered as “adequate and special reasons” to reduce the punishment below statutory minimum?
In our country where judicial delay is not uncommon, the fact that the incident took place 14 years back may not be considered so special. Further the reason that the prosecutrix (and even the offenders in this case) has married to some one else and has two children seems to be extraneous and cannot be considered a special reason either. It partly echo’s the earlier decision of the Supreme Court in Ram Kumar v. State of Haryana [(2006) 4 SCC 347]. The third and the most important factor is compromise between victim and rapists. Can the court take judicial note of such a compromise notwithstanding the fact that the offence of rape is not compoundable?
This is an issue that requires much thought and deeper reflections. Perhaps, laying down hard and fast rule in this regard would not leave any scope for flexibility even to an extent it is desirable in exceptional cases. However, having regard to the facts and circumstances of the instant case, where the prosecutrix had been gang raped and beaten up by the rapists, it seems inappropriate to take judicial note of compromise reached by them after several years. It is important to note that compromise was reached not between the parties (as the court said) but between a complainant and convicts. It was reached not at the stage when the case was at the stage of trial; not even when the appeal was pending before the high court but when the further appeal was pending before the Supreme Court - nearly 14 years after the incident. It is not clear as to under what circumstances victim has consented for compromise after such a long time. Without having regard to these factors, the Supreme Court commuted the sentence to the period already undergone by the convicts (i.e., 3 ½ years). Thus, none of the reasons stated in the judgment seem to be “adequate and special” so as to warrant punishment less than statutory minimum. Such an approach adopted by the court in sentencing doesn’t serve the objectives of criminal justice system. However, this decision once again stresses the need for formulating ‘sentencing policy’, which can guide the exercise of sentencing discretion.
I am a law student and am very angry with this decision. I do not understand what do you mean when you say that compromise was reached not between the parties (as the court said) but between a complainant and convicts. What does this mean? And how do you know this. Are you having some inside sources?
ReplyDeleteIrony is that woman judge is also a party to such a decision.
Sorry to disagree again. But can we not see the decision as something that the court did to stop the constant tensions in the lives of the poor woman who is married and have children. She will not like the fact that the small children should see her mother fighting a case of 'gang rape' against her. Can we not understand that past should be buried forever to have a new life. You say that 14 years are not uncommon for a trial. Why can you not see from the woman's eye who does not want this to become a life long cross hanging on her neck?
ReplyDeleteI would like to know about your opinion on these questions. I am liking this law blog a lot. But this post is written only from lawyer's view and not from victim.
The judicial interpretation of statutes seem to be deteriorating day by day. However, the begging question remains - Who formulates this sentencing policy which is to inform sentencing discretion...Perhaps, the exercise could start in the law classrooms itself by sensitizing the students of law and its future practioners on issues such as gender and deconstructing its dichotomized structures rather than hoping to see progressive changes in the the mindsets of the existing/retired judges and advocates.There exists the need to bridge the gap between the legal academia and those practising or who have practised law in the courtrooms.Practice of law mirrors societal mindsets after all.
ReplyDelete@Chandni. I do not know any inside stories. What I meant was that in a criminal case the 'state'conducts prosecution. Thus, in a criminal trial the parties are always the 'state' versus the 'accused'. The court, while referring to the compromise between the accused and the complainant/victim, has termed it as a compromise between the parties. The state was not a party to the said compromise nor it can enter into any compromise with the accused in such cases.
ReplyDeleteThank you so much for this clarification. I must say that this is absolutely right. The court has ridiculously blurred the distinction between criminal law and civil law. I am thankful for the post to you to make us notice this case. This is the only blog where this case is discussed. This should be discussed by everyone who like criminal law.
ReplyDeleteAnd I feel that Anusha completely misses the point as she fails to understand that supreme court decision is binding as law under Article 141 of our Constitution and they have to be cautious in writing decisions.
@ Anusha. I respect your right to disagree and your ability to see things in different perspectives. But I am not able to appreciate your line of arguement. One need to appreciate the essence of criminal law. It is an effective instrument thorugh which the state seeks to establish and maintain (just) order in a political society. It is the responsibility of the state to maintain order in the society. Any breach of criminal law committed by any individual is treated as setback for the state in discharging its essential function of maintaining peace and order in the society. That is why state initiates the prosecution. We should also note that in the administration of criminal justice system that we have in India, the victim has no substantial role to play. Ordinarily, State initiates the prosecution, it has even the authority to withdraw the prosecution (case), to file appeal against acquittals and to contest appeals, if any, filed by the convicts. The role of the victim is very minimal - that is of being a prosecution witness (PW). That too at the trial stage.
ReplyDeleteIn the instant case, after the investigation and filing of the charge sheet, the trial was conducted and there was no compromise at that stage. The trial court found the accused guilty and sentended them to 10 years imprisonment. The appeal was filed before the high court, which has upheld the conviction and sentence. That was challenged before the Supreme Court by the convicts. It was the state that was to contest the appeal as Repondent before the Supreme Court. There was no need for the victim to contest the appeal in the Supreme Court. The state could have and should have contested the appeal in the Supreme Court without troubling the victim, who is now married and has children. The case was not "hanging on her neck" any more. I appreciate your view that the "past should be buried forever to have a new life", but it should not result in allowing criminals, who have committed such heinous crime to walk free. Criminal wrongs are always treated as offences against the state and not against any individual, though he/she may be a immediate victim. Crime committed anywhere against any one reduces the sum total of human happiness in the society. It brings a sense of insecurity in the minds of people. Thus, just becuase accused did somehow manage to compromise with the victim, that should not have been treated as a mitigating factor to drastically reduce the sentence, that too when there are no doubts in the prosecution case as to the commission of the offence by the said convicts. It may probably set a bad precedent for it is possible for criminals who are rich to somehow manage to compromise with their poor victims and then seek similar relief before the court of law. What is the guarantee even in the instant case that the woman had voluntarily came forward (nearly after fourteen years) to compromise with the convicts, who subjected her to the most inhuman act!
It is most important to remember that the apex court through its orders and judgments not only decides a case in hand but also pronounce principles to be followed in future cases as well. The general principle that can be deduced from the decision of the supreme court in this case is that "even in non-compoundable offence, if there is a compromise between the complainant/victim and the accused (offenders), same may be treated as one of the mitigating factor to reduce the punishment and such compromise may also be treated as 'adequate and special reason' within the meaning of proviso to both clause (1) and clause (2) of section 376 IPC."
Likely consequences of such a general proposition have to be kept in mind.
@Bijoya. I agree with you. Quality of legal education determines, at least to some extent, the quality of bar and the bench. Proper education can contribute to make the judicial process more fair and meaningful. Probably students need to be told in the law schools (I dont mean national law schools only) that "speedy disposal of cases is not same as speedy dispensation of justice". Justice cannot be done by somehow disposing of the case or settling the dispute. Institutions need to educate the students properly not just to train them to mechanically deal with the problems.
ReplyDelete