Raksha Dev vs State of H.P.

Accused was convicted for offence under section 304 (Part-II) IPC instead of 302 IPC. The conviction and sentence for offence under section 307 IPC was upheld by this Court. Accused was directed to be produced before this Court to be heard on the quantum of sentence.

Accused is present with her counsel Mr. N.K. Thakur, learned Senior Advocate. Mr. N.K. Thakur has passionately argued that accused be heard on the quantum of sentence under sections 304 (Part-II) and 307 IPC taking into consideration that his client is only 29 years old and she has no criminal background. Her conduct in the jail was exemplary. The accused being young must be given an opportunity to reform herself. She has already undergone two years, one month and two days sentence.

No doubt, the accused has committed the heinous crime but the punishment in criminal cases is both, punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realize his fault and is deterred from repeating such acts in future. The purpose is also to enable the person to relent and repent for his action and make himself acceptable to the society.

In normal circumstances, there was no occasion for us to reduce the sentence for offence under section 307 IPC, but taking into consideration the peculiar facts and circumstances of the case, appellant is sentenced to the period already undergone for offences under sections 304 (Part-II) and 307 IPC.

Their Lordships of the Hon''ble Supreme Court in T.K. Gopal @ Gopi Vs. State of Karnataka, , have held that those who commit rape are psychologically sadistic persons exhibiting this tendency in the rape forcibly committed by them. In some States in U.S.A., therefore, emphasis was laid on psychotherapic treatment of the offender while he was under detention. In the matter of punishment for offence committed by a person, there are many approaches to the problem. On the commission of crime, three types of reactions may generate; the traditional reaction of universal nature which is termed as punitive approach. It regards the criminal as a notoriously dangerous person, who must be inflicted severe punishment to protect the society from his criminal assaults. The other approach is the therapeutic approach. It regards the criminal as a sick person requiring treatment, while the third is the preventive approach which seeks to eliminate those conditions from the society which were responsible for crime causation. Their lordships have held as under:

[13] In the matter of punishment for offence committed by a person, there are many approaches to the problem. On the commission of crime, three types of reactions may generate; the traditional reaction of universal nature which is termed as punitive approach. It regards the criminal as a notoriously dangerous person who must be inflicted severe punishment to protect the society from his criminal assaults. The other approach is the therapeutic approach. It regards the criminal as a sick person requiring treatment, while the third is the preventive approach which seeks to eliminate those conditions from the society which were responsible for crime causation.

[14] Under the punitive approach, the rationalisation of punishment is based on retributive and utilitarian theories. Deterrent theory which is also part of the punitive approach proceeds on the basis that the punishment should act as a deterrent not only to the offender but also to others in the community.

[15] The therapeutic approach aims at curing the criminal tendencies which were the product of a diseased psychology. There may be many factors, including the family problems. We are not concerned with those factors as therapeutic approach has since been treated as an effective method of punishment which not only satisfies the requirements of law that a criminal should be punished and the punishment prescribed must be meted out to him, but also reforms the criminal through various processes, the most fundamental of which is that in spite of having committed a crime, may be a heinous crime, he should be treated as a human being entitled to all the basic human rights, human dignity and human sympathy. It was under this theory that this Court in a stream of decisions, projected the need for prison reforms, the need to acknowledge the vital fact that the prisoner, after being lodged in jail, does not lose his fundamental rights or basic human rights and that he must be treated with compassion and sympathy (See : Sunil Batra Vs. Delhi Administration and Others etc., ; Sunil Batra Vs. Delhi Administration and Others etc., ; Charles Sobraj Vs. Supdt. Central Jail, Tihar, New Delhi, and Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Others, .

[16] Sexual offences, however, constitute an altogether different kind of crime which is the result of a perverse mind. The perversity may result in homosexuality or in the commission of rape. Those who commit rape are psychologically sadistic persons exhibiting this tendency in the rape forcibly committed by them.

[17] In some States in the USA, therefore, emphasis was laid on psychotherapic treatment of the offender while he was under detention. For that purpose, Psychopath Sexual Offenders Laws have been enacted in certain jurisdiction in USA. These laws treat the sex offenders as neurotic persons and psychotherapic treatment is given to them during the period of their detention which may, in some cases, be an indefinite period, in the sense that they would not be released till they are cured. But the provision for indefinite detention even beyond the maximum period of imprisonment for that offence was seriously objected to by a group of lawyers and, therefore, in many of the States, this provision was dropped from the Statute.

[18] Here, in India, statutory provision for psychotherapic treatment during the period of incarceration in the jail is not available in India, but reformist activities are systematically held at many places with the intention of treating the offenders psychologically so that he may not repeat the offence in future and may feel repentant of having committed a dastardly crime.

Their Lordships of the Hon''ble Supreme Court in Karamjit Singh Vs. State (Delhi Admn.), , have held that punishment in criminal cases is both, punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. Within the parameters of law, an attempt has to be made to afford an opportunity to the individual to reform himself and lead life of a normal, useful member of society and make his contribution to in that regard denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Their lordships have held as under:

[7] The punishment prescribed under Ss. 3 , 4 and 6 of the TADA Act are imprisonment for a term of not less 5 years to life imprisonment and also fine. On a reading of these statutory provisions it is manifest that the Parliament has considered the culpability dealt with in these provisions as serious threats to society and the country, and, therefore, has provided stringent punishment for the offences. Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case the Court has to weight the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is what is needed in such a case, a balance between the interest of the individual and the concern of the society weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law.

A Division Bench of the Delhi High Court in Jagdish Vs. State (Govt. of NCT of Delhi), , have held that the accused was a youth of 19 years of age without any previous criminal record. His conduct in Jail was also satisfactory. Sentence of life imprisonment was reduced to 10 years. The Division Bench has held as under:

[8] We have considered the matter in the light of the facts and circumstances, namely, that Jagdish/accused is a youth of 19 years without any previous criminal record. There is nothing on record available to indicate any propensity of crime on the part of the appellant. In these circumstance, it cannot be presumed that Jagdish/accused is not capable of being reformed after going through a substantive sentence. His conduct in jail so far where he has undergone about more than five years of sentence has been satisfactory. The appellant was sentenced to life imprisonment which would mean imprisonment for indefinite period till death unless there is commutation of sentence under Section 433 Cr.P.C.

[9] In these circumstances, even though the appellant had committed rape in a gruesome manner exploiting his acquaintance with a minor girl, we are of the view that the ends of justice would be met on account of factors noted in Para 8 above, by awarding the appellant 10 years sentence of rigorous imprisonment.

Accordingly, the accused be released forthwith, if she is not required in any other case. Release warrant be issued accordingly. This order shall not be treated as a precedent in other cases, as it has been passed in peculiar facts and circumstances of the case in hand.