-

INTHEHON’BLESUPREMECOURTOFINDIA,ATNE
WDELHI

(CRIMINAL APPELLATE

JURISDICTION)CRIMINALAPPEALNO.

IntheMatterof:

STATEOFRAJASTHAN...........................................APPELLANT

VERSUS

BHAWARLAL&OTHERS.....................................RESPONDENT

-MEMORIALonbehalfoftheAppellant-

Page 2of 35
 INDEX

S .No. PARTICULARS PAGENO.

1. INDEXOFAUTHORITIES 4OF35

 StatutesReferred
 BooksReferred
 WebsitesReferred
 ListofCases
 OtherAuthoritieslikeArticles,ReportsEt
c.
 ListofAbbrevation

2. STATEMENTOFJURISDICTION 8OF35
3. SYNOPISOFFACTS 9OF35
4. SUMMARYOFARGUMENTS 11OF35

Page 3of 35
5. ARGUMENTSADVANCED 13OF35
1. THEHON’BLEHIGHCOURTWASNOTJUSTIFIEDI

NREDUCINGTHESENTENCEOFTHEACCUSEDAN

DTHESENTENCEOFTHEACCUSEDSHOULDBEIN

CREASED.

1.1. SentenceGivenByTheHon’bleSessionsCourt
Was Justified.
1.2. Statutoryprovision.
1.3. Nospecialandadequatereasonsgivenbyhighco
urt.
1.4. Violationofrighttolife.
1.5. Currentscenario.
1.6. Negativeeffectsofrapeonvictim.

2. WHETHERTHEMAINACCUSEDBHAWARLALSHO
ULDBEAWARDEDLIFEIMPRISONMENTFORTHE

WHOLEOFHISLIFEORNOT.

2.1. BreachOfTrustByTheAccusedBhawarlal.

Page 4of 35
 3. THE HON’BLE HIGH COURT WAS
ERRONEOUSINREDUCINGTHEQUANTUMOFSEN

TENCEANDCOMPENSATION.

3.1. InhumanConductOfTheAccused
 Theconduct
 Corroborationofthemedicalreport
3.2. Thecompensationawardedtothecomplainan
t by the hon'ble high court was notjustified.
 Power Under §§ 357 And 357a Of
TheCodeNotExercised
 Non Application Of Mind In
AwardingSentence
4.THEHON’BLESESSIONSCOURTHASBEENERRONE
OUSINDECLARINGSHRITRIBHUVAN

ASAMINOR

6. PRAYER 35OF35

INDEXOFAUTHORITIES

Page 5of 35
STATUTESREFERRED:
1. THEINDIANPENALCODE,1860(ACT45OF1860)
2. CODEOFCRIMINALPROCEDURE,1973(ACT2OF 1974)
3. THEINDIANEVIDENCEACT,1872(ACT 1OF1872)
4. THECONSTITUTIONOFINDIA,1950

BOOKSREFERRED:
1. K.D.Gaur,ATextbookontheIndianPenalCode,4thEdition,2012,UniversalLawPublishing
Co.Pvt.Ltd.
2. Ratanlal & Dhirajlal, Law of Crimes, Vol. 2, 25thEdition, 2004, Bharat Law House,
NewDelhi.
3. GlanvilleWilliams,TextbookofCriminalLaw,2ndEdition,UniversalLawPublishingCo.Pvt.
Ltd.,1999.
4. K.D.Gaur,CriminalLaw:Casesandmaterials,6thEdition,2009,LexisNexisButterworth
Wadhwa,Nagpur.
5. SarkarSC,CodeofCriminalProcedure,Vol.2,10thEdition,2012,LexisNexisButterworth
Wadhwa,Nagpur.
6. C.KThakkar‘Takwani’,CriminalProcedure,3rdEdition,LexisNexisButterworthsWadhwa,
Nagpur, 2011.
7. R.V.Kelkar’s,CriminalProcedure,5thEdition,EasternBookCompany,Lucknow,2008
8. RatanlalandDhirajlal,TheLawofEvidence,24thEdition,LexisNexisButterworthsWadhwa,
Nagpur, 2011.

WEBSITESREFERRED:
1. www.supremelaw.in
2. www.indiankanoon.com
3. www.lawyersclubindia.com
4. http://www.vakilno1.com/
5. www.ncrb.nic.in
6. www.lawyerservices.com
7. www.manupatra.com
8. www.findlaw.com

Page 6of 35
LISTOFCASES:
1. AnkushShivaji Gaikwad v.State OfMaharashtra,(2013)6SCC770
2. Baldev Singh andAnr.v. State ofPunjab, (1995)6SCC593
3. Balrajv. StateofU.P., (1994) 4 SCC29
4. Bhupinder Sharmav.Stateof Himachal Pradesh,AIR2003SC4684.
5. BodhisattwaGautamv.SubhraChakroborty, (1996)1SCC490.
6. DhananjoyChatterjeev.State ofW.B.,(1994)2SCC220
7. DilipS.Dahanukarv. Kotak Mahindra Co.Ltd. and Anr.,(2007) 6 SCC528
8. Dinesh@Buddhav.StateofRajasthan, (2006)3SCC771.
9. Essa@AnjumAbdulRazakMemonv.StateOfMaharashtra2013SC,CriminalAppealno. 1178
of 2007.
10. Everyv.Miles, 1964AC261
11. HarbansSinghv.State ofPunjab,AIR1984SC1594.
12. HariKishan&Anr v.SukhbirSingh &Ors,(1988) 4SCC551
13. HariSinghv. SukhbirSinghand Ors.,(1988) 4SCC551
14. KamalKishoreetcv.State of HimachalPradesh,AIR2000SC1920.
15. MayaDevi(Dead)throughLRsandOrs.v.RajKumariBatra(Dead)throughLRsandOrs.,
(2010) 9 SCC486.
16. Meet Singhv.State ofPunjab,AIR1980SC1141.
17. Mohd.Iqbal &Anr v.State ofJharkhand2013 (9)SCALES86.
18. OmPrakashv.StateofRajasthan,(2012) 5SCC201
19. Ravji@RamChandra v.State ofRajasthan,AIR1996SC787.
20. Sangeet &Anr.v.Stateof Haryana,(2013)2SCC452
21. SarwanSinghandothers v.Stateof Punjab,(1978)4SCC111
22. Shimbhu&Anrv.StateOfHaryana,27August,2013SC,Criminalappealno.1278-1279 OF
2013
23. Stateof AndhraPradeshv.Polamala Raju @Rajarao,(2000)7SCC75
24. Stateof AndhraPradeshv.Polamala Raju,AIR2000SC2854.
25. State of AndhraPradeshv.Vasudeva Rao,AIR2004SC960.
26. StateofH.P. v.Shree KantShekari,(2004)8SCC153
27. StateofKarnataka v.Krishnappa,AIR2000SC1470.
28. State of M.P.v.Babbu Barkare,(2005)5SCC413.

Page 7of 35
29. State of M.P.v.Babulal,AIR 2008SC582.
30. State of M.P.v.Bala @Balaram,AIR2005SC3567.
31. State of M.P.v.GhanshyamSingh,(2003)8 SCC13.
32. Stateof MadhyaPradeshv.KilluAIR2006SC777
33. State of MadhyaPradeshv.Pappu,(2008) 16SCC758.
34. State of MadhyaPradeshv. SantoshKumar,AIR2006SC2648.
35. StateofMaharashtrav.ArjunLaxmanJogadiyaaliasAbdulRehmanShaikh,11thaugust2006,
CriminalAppealno. 243/2006, Bom.
36. State of Punjabv. PremSagarandOrs., (2008)7SCC550.
37. State of Rajasthanv.Gajendra Singh,(2008)12SCC720.
38. Stateof Rajasthanv.Vinod Kumar,2012(2)JCC1482.
39. State of U.P. v. BabulNath,1994 SCC(6)29: 1995(1)CCC17.

OTHERAUTHORITIESLIKEARTICLES,REPORTSETC.
1. Spence Feingold, One rape in every 20 minutes in country, Times Of India,
TNN,August25, 2013.
2. Dhananjay Mahapatra, Rape is not a matter for compromise: SC, Times of India,
TNN,August28, 2013.
3. Clinard,M.B&YeagerP.C.,CorporateCrime.NewYork:TheFreePress,(1980).
4. Edwin H. Sutherland’s, White Collar Crime in America: An Essay in
HistoricalCriminology.
5. L.A. Knafla, J. Cockburn, & E. Dwyer (Eds.), Criminal Justice History:
Aninternationalannual, Westport, CT:Meckler, pp. 1–31.

LISTOFABBREVIATIONS

ABBREVIATION ACTUALTERM

Page 8of 35
 § Section

§§ Sections

¶ Paragraph

¶¶ Paragraphs

F.I.R FirstInformationReport

& And

Ld. Learned

I.P.C IndianPenalCode

Cr.PC CriminalProcedureCode

v. Versus

U/s UnderSection(s)

I.O. InvestigatingOfficer

P.C. PoliceCustody

N.C.T NationalCapitalTerritory

SC SupremeCourt

HC HighCourt

SCC SupremeCourtCases

Para. Paragraph

STATEMENTOFJURISDICTION

Page 9of 35
THEAPPELLATEINTHEPRESENTCASEHASBEENEMPOWEREDBYARTICLE
136OFTHECONSTITUTIONOFINDIA,1949TOINITIATETHEPRESENTPROCEEDING
S IN THE HON’BLE SUPREME COURT OF INDIA. THE APPELLATEMOST HUMBLY
AND RESPECTFULLY SUBMITS TO THE JURISDICTION OF THEHON’BLE
SUPREMECOURTINTHEPRESENTMATTER.

SYNOPSISOFFACTS

Page 10of 35
 THEINCIDENT

Ms Shalini, the victim, aged 20 years, was a nursing student living in a Government
Hostel.On 30th June 2009, when thecomplainantcameout of herroom to thelawn she
waskidnapped by Shri Bhawarlal, night watchman at the hostel and by Shri Tribhuvan,
whoforcibly carried her to the night watchman's room at the point of knife where Shri Mohan
andShri Sohan, were waiting heavily drunk. The victim was tied with cloth and was
forciblygiven drugs so as to render her helpless and senseless. She was forcibly put on the
mattressand was mercilessly raped by the accused one by one, who gave her the most brutal
treatmentthat was possible. After the offence, the victim was thrown naked and in
unconscious stateover the backside of the boundary wall of the hostel, where she was spotted
by PW-2 andPW-3.

FIR

The complainant was carried to the nearest police station where FIR was lodged and
caseunder§§ 376[2](g)and363oftheIndianPenalCodewasregisteredagainstthefouraccused
persons.

JUDGMENTBYLD.SESSIONSCOURT

The Sessions Judge, Jaipur, by judgementdated30.12.2010convicted the accused afterholding

that the prosecution has proved its case fully based upon the witnesses,
medicalreportsandmaterialceased. Theaccused wereconvicted as follows-

a) ShriBhawarlal,nightwatchmantoundergorigorousimprisonment forlife;

b) ShriMohan,student,toundergoRigorousimprisonment for10years;

c) ShriSohan,student,toundergoSimple imprisonmentforaperiodof7years; and

d) ShriTribhuvanwasdeclared aminor.

e) Damages wereawardedtothevictimofRs.10lacs.

Aggrieved by the said judgement, the complainant lodged an appeal with the Hon'ble
HighCourt.

Page 11of 35
 JUDGMENTBYLD.HIGHCOURT

The Hon'ble High Court said that the learned Sessions Court was justified in coming to
theconclusion that the four accused have committed the heinous act, which could have
lifelongeffect on the body and mind of the victim. However, the Hon'ble High Court taking a
lenientview of the matter reduced the sentence awarded by the Sessions Court to the
followingperiod:-

a) ShriBhawarlaltoundergoRigorousimprisonmentof10years;

b) ShriMohantoundergoSimple imprisonmentfor5years;

c) ShriSohantotheperiodalreadyundergonebytheaccused; i.e.2yearsand5months.

d) Damages werereducedtoRs50,000/-.

The appeal of the accused was allowed in above terms and appeal of the complainant
toenhance sentence and damageswas dismissed,being bereft of anysubstance.

APPEALTOTHESUPREMECOURT

Being aggrieved by the aforesaid orders, the complainant filed an appeal before the
Hon’bleSupremeCourtandthiscourtissuednoticepertainingtothequantumofsentenceanddamage
s. This Court also issued notice as to why the sentence awarded by the High Court tothe three
accused be not restored to that awarded by the sessions court and why the accusedBhawarlal
not to undergolife imprisonmentforwhole of the convict’s life.

SUMMARYOFARGUMENTS

Page 12of 35
1. WHETHERTHEHON’BLEHIGHCOURTWASJUSTIFIEDINREDUCINGTHESENTENCEOFTHEA
CCUSEDORNOT.

The Hon’ble High Court has been erroneous in reducing the sentence of the accused less
thenthat prescribed in the statute. Firstly, the sentence given by the learned Sessions Court is
fairand justifiedand the same is in accordancewith law. Secondly, there have been no
specialand adequate reasons given by the Hon’ble High Court for reducing the sentence of
theaccused. Thirdly, there has been a gross violation of right to life of the victim and the
accusedshould be heavily punished. Also, crimes against women have been on the rise in our
nationand rape destroys the entire physiology of women, so the High Court should not have
taken alenientview on thematter.Hence,the Hon’ble High Court has been erroneous
inreducingthe sentenceof theaccused.

2. WHETHER THE MAIN ACCUSED BHAWARLAL SHOULD BE AWARDED

LIFEIMPRISONMENTFORTHEWHOLEOFHISLIFEORNOT.

The main accused Bhawarlal should be awarded life imprisonment for the whole of his
lifeand not for 14 or 20 years. As being the security guard of the hostel he was entrusted
toprotect the girls but on the contrary he broke that trust and kidnapped the victim along
withother accused and gang raped her in an inhuman manner. For this degrading act,
Bhawarlalshouldbeawardedlife imprisonmentfor wholeofhis life.

3. WHETHERTHEQUANTUMOFSENTENCEANDDAMAGESGIVENBYTHEHON’BLEHIGHCOURT
WEREFAIRANDJUSTIFIEDORNOT.

The Hon’ble High Court was erroneous in reducing the sentence and damages awarded by
theSessions court to the victim. Taking into account the factors such as the conduct of
theaccused and the severity of the crime in the present matter, the accused should get
themaximum punishment possible provided in the statutes, i.e. life imprisonment and should
beliable to give compensation to the victim under §§ 357 and 357 A of the criminal
procedurecode.Thecourtshouldapplyitsmindandtakeintoconsiderationallthefactsand

Page 13of 35
circumstances and award appropriate compensation to the victim and severe punishment
tothe accused.

4. WHETHERSHRITRIBHUVANWASRIGHTLYDECLAREDASAMINORBYTHECOURTOFSESSION
SORNOT.

The Hon’ble Sessions Court was erroneous in declaring Shri Tribhuvan as a minor because of
therehave been contradictions in the certificates produced by him in the court and the driving license
foundinthecarduringthecourseofinvestigation.TheHon’bleSupremeCourthasrecentlygivenguidelines
that if there is a confusion regarding minority of the accused, the medical report shall betaken into
consideration in deciding the juvenility of the accused. In the present case, the medicalreport has
declared Shri Tribhuvan above eighteen years. Therefore, Shri Tribhuvan should not bedealt
underthejuvenilejusticeact.

Page 14of 35
 ARGUMENTSADVANCED

CONTENTION1:
THEHON’BLEHIGHCOURTWASNOTJUSTIFIEDINREDUCINGTHESENTENCEOFTHEACCUSE
DANDTHESENTENCEOFTHEACCUSEDSHOULDBEINCREASED.

The sentence of imprisonment given to the convicts by the Hon’ble High Court is
insufficientand not in accordance with law. Firstly the crime they have committed is in gross
violation ofright to life of the victim and to the principles of the society. Secondly, the
Hon’ble HighCourt in its judgement has ignored the minimum sentencing policy prescribed
in § 376 (2) ofthe Indian Penal Code (herein after IPC) and have given a sentence which is
less than theminimum prescribed without giving any adequate and special reasons for the
same. Thirdly,the crimes of sexual assault have been on the rise in our nation, hence the court
should nottake any lenient view in such types of criminal matters. Also one should be aware
about thepsychological harm which a rape victim suffers in our society. The security of girls
should beofutmostimportancein thenation.

1.1. SENTENCEGIVENBYTHEHON’BLESESSIONSCOURTWASJUSTIFIED

In the present case, Ms. Shalini, the prosecutrix, on 30 thJune 2009, came out of from herroom
in the hostel to the front lawn. From there, the main accused Bhawarlal who wasworking as
Night watchman in the hostel and Shri Tribhuvan a spoilt multimillonare studentkidnapped
her at about 11 pm and forcibly carried her to the Night watchman’s
quartersbehindthehostel,whichwasalonelyplaceandwheretwostudentsnamelyMohanandSohan
were drinking heavy liquor. The victim was given an intoxicant with drugs, forciblyput on the
mattress and was raped one by one by Tribhuvan, Mohan, Sohan and
Bhawarlal.Aftergangrape,thevictimwasthrownnakedoutsidethebacksideoftheboundarywalloft
he hostelat about4.00 AMwhereshewasspottedby PW-2and PW-3.

Aforesaidcasewasregisteredinthepolicestationfortheoffencesunder§§363and376[2]
(g) of the Indian Penal Code against four accused persons named above. After registration
ofthe FIR police arrested the accused persons and investigation was carried out wherein
certainarticles were ceased from the room of the Night watchman under Exhibit-1. Site map
of theplaceofincidentwaspreparedwhichwasExhibit-2andunderExhibit-3werethe

Page 15of 35
photographs of the Night watchman’s room with its contents. The medical examination of
thecomplainant as well as theaccused persons was conducted.

Police investigation, articles seized from the place of incidence and medical report of
thecomplainant as well as accused persons, makes it evident that the offence is
committedbrutally by the four accused persons. The Sessions judge after holding that
prosecution hasproved its case fully supported by independent witnesses and medical
evidence on recordapart from Sperm Detection Test, Stained clothes, Mattresses with blood
etc. convicted theaccused.1The learned session judge has examined and carefully considered
the material onrecord and convictedtheaccusedpersons.

Therefore,itiscontendedthatthesentencepronouncedagainsteachaccusedandcompensation
granted to the prosecutix by the learned Sessions court is justified and fully inaccordancewith
law.

1.2. STATUTORYPROVISION

The offence in the present matter is committed under § 376 [2] (g) of the I.P.C.
whichstipulates:

“Whoever commits a gang rape shall be punished with rigorous imprisonment for a
termwhich shall not be less than ten years but which may be for life and shall also be liable
tofine”

Furtherthesectionsays:

“Provided that the court may, for adequate and special reasons to be mentioned in
thejudgment impose a sentence of imprisonment of either description for a term of less than
tenyears”

In cases of gang rape, minimum sentence prescribed by the statute is rigorous

imprisonmentfortenyears,butitmay extend torigorousimprisonmentfor life.

The legislative mandate to impose a sentence, for the offence of gang rape, for a term
whichshallnotbelessthan10years,butwhichmayextendtolifeandalsotofinereflects’theintentofstr
ictnessinsentence.Recoursetotheprovisocanbehadonlyfor"specialand

1
¶6mootpreposition
Page 16of 35
adequate reasons" and not in a casual manner as already laid down by the Supreme Court
inHarbans Singh v. State of Punjab2; State of Andhra Pradesh v. Vasudeva Rao3; State
ofMadhya Pradeshv.Babulal4; andState ofRajasthan v. Gajendra Singh5.

There are no extenuating or mitigating circumstances available on record which may

justifyimpositionofanysentencelessthanthe prescribedminimum onthe accused.

AthreejudgebenchcomprisingofC.J,P.SathasivaminShimbhu&Anrv.StateOf Haryana
6
said:

“The law on the issue can be summarized to the effect that punishment should always
beproportionate/ commensurate to the gravity of offence. Religion, race, caste, economic
orsocial status of the accused or victim or the long pendency of the criminal trial or offer of
therapist to marry the victim or the victim is married and settled in life cannot be construed
asspecial factors for reducing the sentence prescribed by the statute. The power under
theproviso should not be used indiscriminately in a routine, casual and cavalier manner for
thereasonthatanexceptionclause requires strict interpretation.”

In Ravji @ Ram Chandra v. State of Rajasthan7the apex court held that the court will
befailing in its duty if appropriate punishment in not awarded for a crime which has
beencommitted not only against the individual victim but also against the society to which
thecriminal and victim belong. The punishment to be awarded for a crime must not be
irrelevantbut it should conform to and be consistentwith the atrocityand brutalitywith which
thecrime has been perpetrated, the enormity of the crime warranting public abhorrence and
itshouldrespond to thesociety’scryfor justice againstthecriminal.

In State of U.P. v. Babul Nath8sexual assault was committed on the victim, a girl of aboutfive
years. The trial court convicted the accused but the High Court acquitted him. In appeal,The
Supreme Court was constrained to observe that the acquittal of the accused was
totallyunmerited and such unmerited acquittals, particularly in crimes against girl child
encouragethecriminals.Thecourtthensaid:“Thecourtshave,therefore,tobesensitivewhiledealing

2
AIR1984SC1594
3
AIR2004SC960
4
AIR2008SC582
5
(2008)12SCC720.
6
27August,2013SC,CriminalAppealno.1278-1279OF2013
7
AIR1996SC787.
8
1994SCC(6)29:1995(1) CCC17.

Page 17of 35
with such cases but the High Court in the case appears to be far from being sensitive
whileappreciating thematerialon record.”

The court in State of Madhya Pradesh v. Pappu9considered the similar question of

validityand justifiability of reduction of sentence awarded by the Trial Court to the accused
convictedunder§§376(1),324and452bytheHighCourt.Thecourtrelyinguponitsearlierobservatio
ns in State of M.P. v. Ghanshyam Singh10and State of M.P. v. Babbu Barkare11observed that
undue sympathy towards the accused by imposition of inadequate sentencewould do more
harm to the justice system by undermining the confidence of society in theefficacy of law and
society could not long endure under such serious threats. The courtstherefore are duty bound
to award proper sentence having regard to the nature and manner ofexecution or commission
of the offence. This court highlighted the dangers of imposition ofsentence
withoutdueregardtoits effectson the socialorderand said:

“The court will be failing in its duty if appropriate punishment is not awarded for a
crimewhich has been committed not only against the individual victim but also against the
societyto which the criminal and victim belong. The punishment to be awarded for a crime
must notbe irrelevant but it should be consistent with the atrocity and brutality with which
the crimehas been perpetrated, the enormity of the crime warranting public abhorrence and
it should‘respond to the societies’ cry for justice against the criminal’. If for the extremely
heinouscrime, the deterrent punishment is not given, the case of deterrent punishment will
lose itsrelevance.”

1.3. NOSPECIALANDADEQUATEREASONSGIVENBYHON’BLEHIGHCOURT

Thereis no doubt as to the offence of gang rape being committedby the four accusedpersons.
The Hon’ble Sessions Court and the Hon’ble High Court have already held that thefour
accused persons have committed the heinous act, against the nursing student of thehostel, the
complainant in the present matter. 12Taking into account the medical evidence andthe witness
on record, one can easily conclude that the offence is committed mercilessly
andwithmuchbrutality.Thequestionremainsforconsiderationiswhethertherecouldbeany

9
(2008)16SCC758
10
(2003)8SCC13
11
(2005)5SCC413
12
MootPreposition¶7

Page 18of 35
justification for the Learned High Court in reduction for sentences and that too
withoutrecording any reason.
The Counsel submits that the sentence awarded to the four accused for their crimes is less
ascompared to the hardships and trauma that the appellant had to endure. Sexual violence is
amajor concern globally especially in India. It has profound negative effects on its victims
andonsocietiesatlarge.

AttentionisdrawntothejudgmentofStateofRajasthanv.VinodKumar13wheretheSupreme Court
said that the statutory requirements for awarding the punishment less thanseven years is to
record adequate and special reasons in writing. Dictionary meanings of theword “adequate”
are commensurate in fitness, sufficient, suitable, equal in magnitude andextent, and fully.
“Special reasons” means exceptional; particular; peculiar; different fromothers; designed for
a particular purpose, occasion, or person; limited in range; confined to adefinitefieldof action.

Also,inthesamecase14itwasheldthatawardinglessersentencethentheminimumprescribed under §
376 of the I.P.C. is an exception to the general rule. Exception clause is
tobeinvokedonlyinexceptionalcircumstanceswheretheconditionsincorporatedintheexceptional
clauseitselfexist.It isasettledlegalpropositionthatexceptionalclauseisalways required to be
strictly interpreted even if there is hardship to any individual. The courtwhile exercising the
discretion in the exceptional clause has to record “exceptional reasons”for restoring to the
proviso. Recording of such reasons is sine qua non for granting theextraordinary relief. What
is adequate and special would depend upon several factors and nostraight jacketformulacan
belaiddown.

Furthermore, in Meet Singh v. State of Punjab15this court while dealing with the
expression“special reasons” held that it means special to the accused concerned. The court
has to
weightthereasonsadvanceinrespectofeachindividualaccusedwhosecaseistakenupforawarding
sentence. The word ‘special’ has to be understood in contradistinction to word‘general’ or
‘ordinary’. Thus, anything which is common to a large class governed by thesame
statutecannotbesaid tobespecialto each of them.

13
2012(2)JCC1482
14
StateofRajasthanv.VinodKumar2012(2) JCC1482
15
AIR 1980SC1141

Page 19of 35
InStateofPunjabv.PremSagarandOrs16Courtobserved:

“To what extentshould the Judges have discretionto reduce the sentenceso
prescribedunderthestatutehasremainedavexedquestion.However,inIndia,theviewalwayshasbe
enthatthepunishmentmust beproportionatetothecrime.Applicabilityofthesaidprinciple in all
situations, however, is open to question. Judicial discretion must be
exercisedobjectivelyhavingregard tothefactsandcircumstancesofeachcase.”

Moreover in State of Madhya Pradesh v. Santosh Kumar17this court held that in order
toexercise the discretion of reducing the sentence, the statutory requirement is that the court
hasto record adequate and special reasons in the judgment and not fanciful reasons which
wouldpermit the court to impose a sentence less than the prescribed minimum. The reason
has notonly to be adequate but also special. What is adequate and special would depend upon
severalfactorsandno straightjacket formulacan beindicated.18

InKamalKishoreetcv.StateofHimachalPradesh19theapexcourthas heldthattheexpression
“adequate and special reasons” indicates that it is not enough to have
specialreasons,andadequatereasonsdisjunctively.Thereshouldbeaconjunctionofbothforenablin
g the court to invoke the discretion. Reasons which are general or common in
manycasescannotberegardedasspecialreasons.20

Further,inStateofM.P.v.Bala@Balaram21thecourtwhiledealingwiththeissueobserved:

“The crime here is rape. It is a particularly heinous crime, a crime against the society,
acrime against human dignity, one that reduces a man to an animal.The penal statute
hasprescribed a minimum and a minimum punishment for an offence under § 376 IPC. To
viewsuch an offence once it is proved, lightly, is itself an affront to society. Though the
award
ofmaximumpunishmentmaydependuponthecircumstancesofthecase,theawardofmaximumpuni
shment,generally,isimperative.Thepowerundertheprovisoisnottobeusedindiscriminatelyorrou
tinely.Thereasonmustberelevanttotheexerciseofsuch
16
(2008)7SCC550
17
AIR 2006SC2648
18
See Harbans Singh v. State of Punjab AIR 1984 SC 1594; State of Andhra Pradesh v. Vasudeva Rao
AIR2004 SC 960; State of M.P. v. Babulal AIR 2008 SC 582; State of Rajasthan v. Gajendra Singh (2008) 12
SCC720.
19
AIR 2000SC1920
20
SeeBhupinderSharmav.StateofHimachalPradeshAIR2003SC4684;StateofAndhraPradeshv.
PolamalaRajuAIR2000SC2854.
21
AIR 2005SC3567

Page 20of 35
discretion vested in the court. The mere existence of discretion by itself does not justify
itexercise.”

Thusinacaseliketheinstantone,inordertoimposethepunishmentlesserthanprescribedin the
statute, there must be special and adequate reasons given by the judge after
consideringalltheaggravatingandmitigatingcircumstancesinwhichcrimehasbeencommitted.Ho
wever, in the present matter before us, no such reasons have been recorded by the court
indoing so, and thus, the court failed to ensure compliance of such mandatory requirement
butawarded the punishment lesser than the minimum prescribed under the I.P.C. Such an
order isviolativeofthe mandatory requirementoflawanddefeatsthelegislativemandate.

However, the Hon’ble High Court in the present matter has itself stated that the incident
willhave alifelongeffect on thebodyand mindofthecomplainant.

1.4. VIOLATIONOFRIGHTTOLIFE

Article 21 of the Constitution of India Act, 1949 provides right to life to citizens and
personsof India. However, right to life does not mean simply breathing or respiration; life is
not amere animal existence. It includes right to live with human dignity. Offences such as
murderor rape however, take away a person’s right to life which is a Fundamental Right.
Breach ofHuman Rights such Fundamental Rights should be appropriately punished. But in
the presentcase a heinous crime i.e. rape was committed not by one but by four men, a
woman’s mostimportant possession her dignity was taken away and yet the sentences given
to the accusedby the High Court were not sufficient enough as compared to the gravity of the
situation.Gang rape is a rare form of offence which is gross and an affront to the human
dignity andsociety.

Not only was a gang rape committed but it was committed by one of the staff of the
Hostelitself i.e. the night watchman. Here there is clear breach of trust by the accused
Bhawarlal.There was apparent breach of trust which was imposed in him and he should be
heavilypunished for that. The offence was not only barbaric but also inhuman. Not only this
but afterfacing such a traumatic experience, after such a heinous and inhuman act was
committed theculprits were sentenced with a punishment of less than 10 yrs. It can be clearly
seen that theHigh Court gave a punishment which was less than the minimum punishment
prescribedunder§376(2) (g).

Page 21of 35
1.5. CURRENTSENARIO

It is of utmost importance to throw a light on the present provision of the rape law after
TheCriminal Law Amendment Act, 2013. With the new bill passed by the parliament, the law
ofrape stands substantially changed. This new provision was also taken into consideration it
thecase of Shimbhu & Anr v. State Of Haryana22by presiding C.J, P.Sathasivam. According
totheamendment,theoffence ofgangrape isdefinedunder§376Dofthe I.P.C.which states:

“Where a person is sexuallyassaultedby one or more persons constituting a group oracting

in furtherance of a common intention, each of those persons shall bedeemed to
havecommitted the offence of sexual assault, regardless of genderand shall be punished
withrigorous imprisonmentfor a term whichshallnot be lessthan twenty years, but whichmay
extend to life and shallmean imprisonment for the remainder of that persons naturallife,and
with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses
andrehabilitation ofthevictim
Providedthatanyfinefurtherimposedunderthissectionshallbepaidtothevictim.”

The law of gang rape now prescribes a minimum punishment of twenty years of
rigorousimprisonment which stands in complete contrast to the judgment delivered by the
hon’blehighcourt.TheCourts,shoulderagreaterresponsibilitywhiletryinganaccusedonchargesof
rape. They must deal with such cases with utmost sensitivity. The Supreme Court of
Indiahasrecentlysaid that rapeis not amatterofcompromise.

National Crime Records Bureau (NCRB) has some horrifying statistics to share according
towhich every 20 minutes, a women is raped somewhere in India. Not only that, crimes
againstwomen have increased by 7.1% nationwide since 2010, and child rape cases have
increasedby 336% in the last 10 years. The gang rape of the Mumbai photo journalist has
shaken thenation’s conscience once again. How many more Nirbhaya’s is this nation going to
accept?Howmany girlswouldbehuntedby such hyper-sexed creatures?

In just 15 days following the December 16 incident, there were 45 rapes and 75 cases
ofmolestation inNational CapitalTerritoryofDelhiandnottomentionthecountless numberof

22
27August,2013SC,CRIMINALAPPEALNOS.1278-1279OF2013

Page 22of 35
cases that went unreported.23This court has to set a precedent in this case so that nobody
afterthisshoulddareto commitsuchaheinous act.

In light of such clearly laid down facts and circumstances, it contended that the Hon’ble
HighCourtwaserroneousindismissingthecomplainants’appeal.Protectionofsocietyanddeterring
the criminal is the avowed object of law and that is required to be achieved byimposing an
appropriatesentence.

To show mercy in the case of such a heinous crime would be a travesty of justice and the
pleafor leniency is wholly misplaced. The High Court exhibited lack of sensitivity towards
thevictimofrapeandthesocietybyreducingthesubstantivesentenceintheestablishedfactsand
circumstancesof thecase.

1.6. NEGATIVEEFFECTSOFRAPEONVICTIM

Those who are victims of rape suffer from a large range of physical and psychological
harm.NCVS data reveal that about 25% of rape victims are physically injured during the
attack(other than directinjuriesresultingfrom the rape). Injuriesranged from black
eyesandbruises to broken bones and other severe bodily harm. In addition to injuries, many
rapevictims incur other medical problems such as sexually transmitted disease and
pregnancy.Becauseoftheirlongtermnature,thepsychologicaleffectsofrapeoftenaremoresevereth
an the physical harm. Immediate emotional reactions include shame, intense fear,
anxiety,stress and fatigue. Victims may develop a host of serious psychological problems,
includingeating disorders, suicidal feelings, depression and obsessive compulsive disorder
(especiallywashing rituals).24The cluster of emotional and psychological responses to rape
and sexualassault isclinically recognised asRapeTraumaSyndrome (RTS).25

In the present case the Counsel would like to point out that the victim has not only been
hurtphysically but she has lost her future. She has lost the chance to have a normal education
in acollege like other students; she has lost her chance to study and graduate from the college
shecurrentlyis enrolledin,evenifshedoesgotoa collegeshemighthavetostart alloveragain.

23
SpenceFeingold,TNN,Onerapeinevery20minutesincountry,TimesOfIndia,August25,2013.
24
Clinard,M.B&YeagerP.C.,CorporateCrime.NewYork: TheFreePress,(1980).
25
EdwinH.Sutherland’s,WhiteCollarCrimeinAmerica:AnEssayinHistoricalCriminology.InL.A.Knafla,
J. Cockburn, & E. Dwyer (Eds.), Criminal Justice History: An international annual, Westport, CT: Meckler,
pp.1–31.

Page 23of 35
These are just the hardships related to her studies now coming to her future – if she does
notget a proper education she will not be able to get a job. The trauma that she is going
throughwill not let her public relations skills to develop, a prerequisite for her vocation. It
will bedevastatingforheraswellasher parentswhohaveinvested somuchin herandherfuture.

“Rape cannot be treated only as sexual crime but it should be viewed as a crime
involvingaggression which leads to the domination of the prosecutrix. In case of rape besides
thepsychologicaltrauma, there is also social stigma attachedto thevictim. Majority of
rapesare not sudden occurrences but are generally well–planned as in this case. Social
stigma hasa devastating effect on rape victim. It is violation of her right to privacy. Such
victims needphysical, mental, psychological and social rehabilitation. Physically she must
feel safe in thesociety, mentally she needs help to restore her lost self – esteem,
psychologically she needshelp to overcome her depression and socially, she needs to be
accepted back in the socialfold. Rape isblatantviolation ofwomen’s bodily integrity.”26

CONTENTION2:WHETHERTHEMAINACCUSEDBHAWARLALSHOULDBEAWARDEDLIFEIMPR
ISONMENTFORTHEWHOLEOFHISLIFEORNOT.

TheaccusedBhawarlalwas thenight watchmanof the hostel of the victimand therewasclear

breach of trust on his part as he played the lead role in kidnapping and committing thegang
rape on the victim. Bhawarlal being Chowkidar/Night watchman was allotted one
roomaccommodation behind the back of the hostel. Bhawarlal was fully entrusted by the
hostelauthorities since he was protector of the girl students who were doing nursing course
whileliving in the hostel. His duty was to maintainthe belief of the hostel authoritiesin
anymanner.

2.1.BREACHOFTRUSTBYTHEACCUSEDBHAWARLAL

Bhawarlal acted in contradiction of the trust imposed upon him by the hostel authorities
andjust for some minor financial benefits he betrayed them and acted in convenience of the
otheraccused persons for the monstrous crime which they have committed in this case. It is
ironicthattheonewhowassupposedtosafeguardthevictimistheonewhodevouredherandleft

26
Mohd.Iqbal &Anrv.StateofJharkhand2013(9)SCALES86.

Page 24of 35
her to die naked behind the hostel wall.Bhawarlal took an amount of Rs. 10,000/-
forcommission of rape upon the prosecutrix while summer vacations were to commence in
thehostel and he participated in the kidnapping of the complainant from the lawn of the hostel
tohis allotted room and thereafter he committed rape upon the complainant along with
threeother accused persons. Bhawarlal not only committed forcible rape upon the
complainant butindulged in throwing the complainant while she was unconscious from his
room across theboundary wall in naked condition in the morning on the day. Bhawarlal has
committedheinous crime and acted in inhuman manner hence he was rightly convicted by the
court ofSessions for life imprisonment. His sentence is fully justified. It is also noticed that
mainaccused Bhawarlal on one occasiontook money of Rs. 5000/- for himselfand Rs.
50,000/-for other student of the hostel and took the other student to a 5 star hotel. The
monstrous actcommitted by the accused was very much calculated and pre-planned. The
offence was notonly barbaricbutalso inhuman.

In the case of Dhananjoy Chatterjee27an 18 year old school going girl was brutally raped
bythe securityguardof her apartmenttheSupremeCourtsaid-

“The sordid episode of the security guard, whose sacred duty was to ensure the
protectionand welfare of the inhabitants of the flats in the apartments, should have subjected
thedeceased, a resident of one of the flats, to gratify his lust and murder her in retaliation for
histransfer on her complaint,makesthe crimeeven more heinous.”If thesecurityguardsbehave
in this manner, then who will guard the guards? The faith of the society by such abarbaric
act of the guard getstotally shaken and itscry for justice becomes loud andclear.”28

In the case of State of Maharashtra v. Arjun Laxman Jogadiya alias Abdul Rehman
Shaikh29the rape was committed by a person who could be trusted upon by the victim, it fell
into thecategory of the rarest of rare cases. Considering the facts and circumstances of the
presentcase, it can be said that the crime was of heinous nature and with the breach of trust on
part ofBhawarlal it becomes all the more obvious that this case was no ordinary case but
rarest ofrare. Supporting the above argument, the judgement in the case ofDhananjoy
Chatterjeesaid:

27
DhananjoyChatterjeealiasDhanav.StateofWestBengal 1994SCC(Cri.)358.
28
Ibid.
29
CriminalAppeal No.243of2006

Page 25of 35
“In our opinion, the measure of punishment in a given case must depend upon the atrocity
ofthe crime; the conduct of the criminal and the defenceless and unprotected state of the
victim.Imposition of appropriate punishment is the manner in which the courts respond to
thesociety’s cry for justice against the criminals. Justice demands that courts should
imposepunishment befitting the crime so that the courts reflect public abhorrence of the
crime. Thecourts must not only keep in view the rights of the criminal but also the rights of
the victim ofcrimeandthesociety atlargewhile consideringimposition
ofappropriatepunishment.”

Therefore, the accuse Bhawarlal, mastermind of the whole act, deserves no less
punishmentthan thatof theimprisonmentfor life.

CONTENTION3:THEHON’BLEHIGHCOURTWASERRONEOUSINREDUCINGTHEQUANTUMOF
SENTENCEANDCOMPENSATION.

The Hon’ble High court by its impugned judgment dated 20.5.2013 has allowed the appeal
ofthe accused by the reducing the sentence and damages and dismissed the appeal of
thecomplainant.TheHon’bleHighCourtwaserroneousinreducingthequantumofsentenceand
compensationgivenby theSession’s Court.

3.1. INHUMANCONDUCTOFTHEACCUSED

In the case of Dinesh @ Buddha v. State of Rajasthan30, it was held by this court that
themeasureofpunishmentinacaseofrapemustdependupontheconductoftheaccusedandthe
gravityof thecriminalact.

THECONDUCT:

The complainant in the present matter was forcibly carried in the chowkidar’s room
behindthe hostel and her body and mouth were tied with a cloth. Bhawarlal, the main accused
held aknife in his hand to threaten the complainant. This act of the accused amounted to the
offenceof abduction in the present matter. After the victim was forcibly carried in the
chowkidar’sroom behind the hostel the complainant was given some intoxicant with drugs,
and wasforciblyputonthemattressandthenrapedonebyonebythefouraccused.Afterthegang

Page 26of 35
30
(2006)3SCC771

Page 27of 35
rape,thecomplainantwasthrownnakedatthebacksideofthewallofhostel.Shewaslyingin an
unconscious state for an hour from 4am to 5am when spotted by Shri Ramlal (PW-2)and Shri
Shyamlal (PW-3) who have stated that the complainant was in naked condition andthere were
injuries on the private parts, abrasions and bruises on the breasts and cheeks,oozing of the
blood and that she was in a serious condition. 31There was a possibility that
thecomplainantcould have easily died due to such a horrifying act by the accused. This
actcould haveeasilyresulted in thevictims’death.

CORROBORATIONOFTHEMEDICALREPORT:

Further, the medical jurist in the report stated that blood was seen in vagina and hymen of
thecomplainant was found to have been ruptured and damaged. The Medical Jurist confirmed
allthe relevant reports and stated that “the gang rape had a dehumanizing effect on the
victim”.In such highly terrible circumstances the court cannot at all take a lenient view of the
matter.Crimes of violence upon women have to be severely dealt with. The manner in which
theoffenceiscommittedishighlyinhumananddegrading.Itishencecontendedthatthecomplainant
was miserably tortured by the accused which is already shown by the medicalreport.

In State of Karnataka v. Krishnappa32, the question was whether High Court was justified,
incircumstances of the case to reduce the sentence of 10 years rigorous imprisonment
imposedby the trial court on the respondent for an offence under section376, I.P.C. to 4
yearsrigorous imprisonment. The accused was a married man of 49 years and victim of his
sexuallust was an innocent helpless girl of 7/8 years of age at that time. The medical
evidenceprovided by the doctor showed the cruel nature of the act, the accused was not
entitled to anyleniency. The High Court justified the reduction of sentence on the ground that
the accusedrespondent was "unsophisticated and illiterate citizen belonging to a weaker
section of
thesociety"thathewas"achronicaddicttodrinking"andhadcommittedrapeonthegirlwhilein state
of "intoxication" and that his family comprising of "an old mother, wife and children"were
dependent upon him. Restoring the sentence of 10 years awarded by the trial court,
theapexcourtheldthesefactorsdidnotjustifyrecoursetotheprovisotosection376[2].The

31
¶4MootPreposition
32
AIR 2000SC1470

Page 28of 35
measure of punishment in a case of rape cannot depend upon the social status of the victim
orthe accused.Itmustdependupon theconduct of theaccused.

In Dhananjoy Chatterjee v. State of W.B.33the apex court observed that a shockingly

largenumber of criminals go unpunished thereby increasingly encouraging the criminals and
in theultimate,making justicesuffer by weakening the systems credibility.The
impositionofappropriate punishment is the manner in which the court responds to the
society’s cry forjustice against the criminal. Justice demands that courts should impose
punishment befittingthe crime so that the courts reflect public abhorrence of the crime. The
court must not onlykeep in view the rights of the criminal but also the rights of the victim of
the crime and thesociety at large while consideringthe imposition ofappropriatepunishment.

The Supreme Court in a recent case of the State of Madhya Pradesh v. Killu34held that
thesentence of rape reduced by High Court in appeal to the extent of the period of nearly
twoyearsandfourmonths(alreadyserved)asagainst7yearsofaminimumprescribedimprisonment
withoutassigninganysatisfactoryreason muchlessadequateand specialreasons for reducing the
sentence to a term which is far below the prescribed minimum isclearlyillegal.

It is hence contended that in such highly terrible circumstances the court cannot at all take
alenientviewofthematterandthattheaccusedshouldbeawardedwiththehighestpunishment
providedin thestatutes.

3.2. THECOMPENSATIONAWARDEDTOTHECOMPLAINANTBYTHEHON'BLE
HIGH COURTWASNOTJUSTIFIED.

The reduction in compensation by the High Court from Rs. 10 lacks to a nominal amount
ofRs. 50,000/- awarded under section 357 and 357A of the Criminal Procedure Code was
notfair and justified.

In the present matter the prosecutrix was subject to gang rape in a brutal manner. The
accusedfirstly kidnapped the prosecutrix, then tied her with cloth, was given intoxicant at
knife pointand was subjected to rape by all the four accused. As stated in the facts, the
prosecutrix
wasfoundnakedinthemorningwithseveralseriousinjuriesandithadadehumanizingeffecton
33
(1994)2SCC220
34
AIR2006SC777

Page 29of 35
the victim. The victim was both physically and psychologically injured by the act and
isentitled to just and fair compensation under section 357 and 357A of the Criminal
ProcedureCode.

Thiscourt inStateof H.P.v.Shree KantShekari35hasviewed rapeasnot only acrimeagainst the

person of a woman, but a crime against the entire society. It indelibly leaves a scaron the
most cherished possession of a woman i.e. her dignity, honour, reputation and not theleast her
chastity. It destroys as noted by the Supreme Court inBodhisattwa Gautam v.Subhra
Chakroborty36the entire psychology of a woman and pushes her into deep emotionalcrises. It
is a crime against basic human rights, and is also violative of the victim's mostcherished of
the fundamental rights, namely, the right to life contained in Article 21 of theConstitution.
The courts are expected to deal with cases of sexual crime against women withutmost
sensitivity. Such casesneed to bedealtwithsternlyandseverely.

An English case Every v. Miles37also emphasized the moral responsibility of the offender
toprovide such compensation to the girl whose life prospects are ruined as the accused
peoplecan afford topaywas to bepaidandin addition tothesentence.

POWERUNDER§§357AND357AOFTHECODENOTEXERCISED

The Court in the present matterhave failedto exercise the power given to them by section357
and357Aof theCriminalProcedureCode and havenot beenableto give propercompensationto
thevictim.

In Hari Singh v. Sukhbir Singh and Ors.38, this Court lamented the failure of the Courts
inawarding compensation to the victims in terms of Section 357 (1) of the Cr.P.C. The
Courtrecommended to all Courts to exercise the power available under Section 357 of the
Cr.P.C.liberally so as tomeettheendsof justice.TheCourt said:

"Sub-section (1) of Section 357 provides power to award compensation to victims of

theoffenceout of thesentenceof fineimposed on accused.It is an important provision
butCourts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers
theCourt to award compensation to victims while passing judgment of conviction. In addition
toconviction,theCourtmayordertheaccusedtopaysomeamountbywayofcompensationto

35
(2004)8SCC153
36
(1996)1SCC490
37
1964AC261
38
(1988)4SCC551
Page 30of 35
victim who has suffered by the action of accused. It may be noted that this power of Courts
toaward compensation is not ancillary to other sentences but it is in addition thereto.
Thispower was intended to do something to reassure the victim that he or she is not forgotten
inthe criminal justice system. It is a measure of responding appropriately to crime as well
ofreconciling the victim with the offender. It is, to some extent, a constructive approach
tocrimes. It is indeed a step forward in our criminal justice system. We, therefore,
recommendtoallCourtstoexercisethis powerliberallysoastomeettheendsofjusticeinabetter
way."

In Sarwan Singh and others v. State of Punjab39,Balraj v. State of U.P.40, Baldev Singh
andAnr. v. State of Punjab41, Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr.42,
thisCourt held that the power of the Courts to award compensation to victims under Section
357is not ancillary to other sentences but in addition thereto and that imposition of fine
and/orgrant of compensationto a great extent must depend upon the relevant factors apart
fromsuchfineor compensationbeing justand reasonable.

The Supreme Court has recommended to all courts to exercise this power liberally so as
tomeet theends of justice.43

NONAPPLICATIONOFMINDINAWARDINGSENTENCE

Hon’ble High Court by its impugned judgment has reduced the amount of damages from
Rs.10 lacks awarded by the Sessions Court to Rs. 50000/- only. By awarding such a
nominalamount of compensation to a victim who has been subjected to gruesome rape has
shown thatthe court failed to apply its mind in giving compensation. The court also failed to
record anyproper reasoning for thereduction in thesentence.

Reference may be made to the decision of this Court in State of Andhra Pradesh v.
PolamalaRaju @ Rajarao44where a three-judge bench of this Court set aside a judgment of
the HighCourt for non-application of mind to the question of sentencing. In that case, this
CourtreprimandedtheHighCourtforhavingreducedthesentenceoftheaccusedconvictedunder

39
(1978)4SCC111
40
(1994)4SCC29
41
(1995)6SCC593
42
(2007)6SCC528
43
LalSinghBhikabhaiChaudharyv.StateofGujraat2004(4)Crimes542(Guj);SuganthiSuresh Kumarv.
Jagdeeshan AIR 2002SC681
Page 31of 35
44
(2000)7SCC75

Page 32of 35
Section 376, IPC from 10 years imprisonment to 5 yearswithout recording any reasons
forthesame.ThisCourtsaid:“Weareoftheconsideredopinionthatitisanobligationofthe
sentencing court to consider all relevant facts and circumstances bearing on the question
ofsentence and imposeasentence commensurate with the gravity of theoffence”

In a recent case of Supreme Court, Ankush Shivaji Gaikwad v. State Of Maharashtra45,

theSupreme Courtobserved:

“…cases to Section 357, it appears to us that the provision confers a power coupled with
aduty on the Courts to apply its mind to the question of awarding compensation in
everycriminal case. We say so because in the background and context in which it was
introduced,the power to award compensation was intended to reassure the victim that he or
she is notforgotten in the criminal justice system. The victim would remain forgotten in the
criminaljusticesystemifdespiteLegislaturehavinggonesofarastoenactspecificprovisionsrelatin
gtovictimcompensation, Courts choose to ignore the provisions altogetherand donot even
apply their mind to the question of compensation. It follows that unless Section
357isreadtoconferanobligationonCourtstoapplytheirmindtothequestionofcompensation,itwou
lddefeat the veryobject behind theintroductionoftheprovision.”

Section357Cr.P.C.confersadutyontheCourttoapplyitsmindtothequestionofcompensationinever
ycriminalcase.ItnecessarilyfollowsthattheCourtmustdisclosethatit has applied its mind to this
question in every criminal case. In Maya Devi (Dead) throughLRs and Ors. v. Raj Kumari
Batra (Dead) through LRs and Ors46, this Court held thatdisclosure of application of mind is
best demonstrated by recording reasons in support of theorder or conclusion.

The amendments to the Cr.P.C. brought about in 2008 focused heavilyon the rights ofvictims
in a criminal trial, particularly in trials relating to sexual offences. Though the
2008amendments left Section 357 unchanged, they introduced Section 357A under which
theCourt is empowered to direct the State to pay compensation to the victim in such cases
where“.the compensation awarded under Section 357 is not adequate for such rehabilitation,
orwhere the case ends in acquittal or discharge and the victim has to be rehabilitated.”
Underthis provision, even if the accused is not tried but the victim needs to be rehabilitated,
thevictimmayrequesttheStateorDistrictLegalServicesAuthoritytoawardhim/her

45
(2013)6SCC770
46
(2010)9SCC486

Page 33of 35
compensation. This provision was introduced due to the recommendations made by the
LawCommission ofIndia inits 152ndand154th Reportsin 1994and 1996respectively

The following observation of this Court in Sangeet & Anr v. State of Haryana47,could
besaidtoapplytoothersentencesaswell,particularlytheawardofcompensation tothevictim:

“In the sentencing process, both the crime and the criminal are equally important. We
haveunfortunately,not taken thesentencingprocess as seriously as it should be with the
resultthatincapitaloffences,ithasbecomejudge-
centricsentencingratherthanprincipledsentencing.”

TheSupremeCourtinAnkushShivajiGaikwadv.StateOfMaharashtra48observedthat:

“While the award or refusal of compensation in a particular case may be within the
Court'sdiscretion, there exists a mandatory duty on the Court to apply its mind to the
question inevery criminal case. Application of mind to the question is best disclosed by
recordingreasons for awarding/refusing compensation. It is axiomatic that for any exercise
involvingapplication of mind, the Court ought to have the necessary material which it would
evaluateto arrive at a fair and reasonable conclusion. It is also beyond dispute that the
occasion toconsider the question of award of compensation would logically arise only after
the courtrecords a conviction of the accused. Capacity of the accused to pay which
constitutes animportant aspect of any order under Section 357 Cr.P.C. would involve a
certain enquiryalbeit summary unless of course the facts as emerging in the course of the
trial are so clearthat the court considers it unnecessary to do so. Such an enquiry can
precede an order
onsentencetoenablethecourttotakeaview,bothonthequestionofsentenceandcompensationthatit
mayinitswisdomdecide to awardto thevictimorhis/herfamily.”

There are crimes that cannot be measured in term of monetary compensation especially
incase of rape that affect the victim psychologically, socially and physically. These cannot
beweighed to sufficiently avenged but to consider such means one can never draw the line.
Incase of rape, the trauma under which the victim suffer become endless from very start
ofoffence to the reporting to police and until the case is being decided but all is not, she has
tosuffer in society, workplace and even to her marital relation also. Due to victimization she
isleft in such condition where there may be chance of repeated several abuse. It is true
thatmoneycannotrepairthechastityandpuritywhichispreciousassetoftheIndianwomen,
47
(2013)2SCC452
Page 34of 35
48
AnkushShivajiGaikwadv.StateOfMaharashtra(2013)6SCC770

Page 35of 35
nevertheless if sufficient compensation, assistance and rehabilitation is granted to her,
shecouldnothavetodependonthemercyofanybody.Thereforecrimeagainstwomen,mandatoryco
mpensation,assistanceandrehabilitationprogrammesmustbeformulated.

CONTENTION 4: THE HON’BLE SESSIONS COURT HAS BEEN ERRONEOUS IN

DECLARINGSHRITRIBHUVANASA MINOR

Shri Tribhuvan cannot be tried in the Court as a juvenile because of the gravity of the
crimecommitted and also keeping in mind the mental capacity to understand the nature and
theconsequencesof thecrimecommitted.

It is humbly submit that there was ample evidence of Shri Tribhuvan being a major as per
theMedicalCertificateyettheSessionsCourt,Jaipurhasconsideredhimtobeajuvenileignoring
theMedicalCertificate.

The fact that the driving licence of Tribhuvan, which was found along with the
car49provesthat Tribhuvan was a major. As for acquiring a driving licence from the authority
one shouldbe major and he also has to produce proof of him being a major. So the presence
of a drivinglicence in the name Tribhuvan clearly indicates that he was above 18 years at the
time ofincident.

Juvenileorachildmeans aminori.e.apersonwhohasnotcompleted18yearsofage.50

However when an accused who said to have committed heinous offences such as rape
ormurderhasceasedtobeaminori.e.whentheaccusedhasreachedtheageof18yearsthenhe cannot
seek protection against the aforementioned Act.However the ambiguity of thisissue arises
when the accused age is either near 18 years but not quiet completely 18 such asin the present
case where the accused Shri Tribhuvan was alleged to be of the age 17 yearsand 10 months.
On being questioned he produced his birth – certificate, his horoscope andmatriculation
certificate wherein he was found as being of 17 years and 10 months of age.However, in the
Medical Certificate he had been declared as above 18 years and the presenceof driving
licence also indicates that he was above 18 years. The question that arises in
thiscaseiswhetherthebirthcertificateandothercertificatesaretobetakenintoaccountorshouldtheop
inion of anexpertMedical Juristbeconsideredparamount.
49
¶2.1MootPreposition
50
Section2(k),JuvenileJustice(CareandProtectionofChildren)Act,2000

Page 36of 35
A similar question was raised in the case of Om Prakash v. State of Rajasthan51, where it
wascontended that the accused was a minor at the time incident for which reliance was based
onschoolcertificateandontheotherhandthemedicalreportshowedhimofageabove18years.Thisco
urtthenobserved:

“while the courts must be sensitive in dealing with the juvenile who is involved in cases
ofserious nature like sexual molestation, rape, gang rape, murder and host of other
offences,the accused cannot be allowed to abuse the statutory protection by attempting to
provehimself as a minor when the documentary evidence to prove his minority gives rise to
areasonable doubt about his assertion of minority. Under such circumstance, the
medicalevidence based on scientific investigation will have to be given due weight and
precedenceover the evidence based on school administration records which give rise to
hypothesis andspeculation abouttheageoftheaccused.”

This court further added that, “the benefit of the principle of benevolent legislation can
bemade applicable in favor of only those delinquents who undoubtedly have been held to be
ajuvenilewhich leavesnoscope forspeculationaboutthe ageofthealleged accused.”

In Om Prakash v. State of Rajasthan52it was held that considering the relevance and value
ofthe medical evidence, the doctor s estimation of age although is not a sturdy substance
forproof as it is only an opinion, such opinion based on scientific medical test like
ossificationandradiologicalexaminationwillhavetobetreatedasastrongevidencehavingcorrobora
tivevalue while determiningthe ageofthe alleged juvenileaccused.

ItissubmittedthateveninthecriminaljurisprudenceprevalentinIndia,theageofresponsibilityof
understanding the consequencesof one's actionshad been recognized as12 years in the
Indian Penal Code. Section 82 of the Code provides that nothing is anoffence which is done
by a child under seven years of age. Section 83 of the Code is alsoreferred, which provides
that nothing is an offence which is done by a child above sevenyears of age and under
twelve, who has not attained sufficient maturity of understanding tojudge the nature and
consequences of his conduct on a particular occasion. Even under theIndian Criminal
Jurisprudence the age of understanding has been fixed at 12 years, whichcommensurate
with the thinking of other countries, such as the United States of America,Great Britainand
Canada.

51
OmPrakashv.StateofRajasthan(2012)5SCC201
52
Ibid
Page 37of 35
In regard to Canada, the Youth Criminal Justice Act, 2003, as amended from time to
time,wheretheageofcriminalresponsibilityhasbeenfixedattwelveyears.ReferringtoSection 13
of the Code of Criminal Procedure of Canada, the same is in pari materia with theprovisions
of Section 83 of the Indian Penal Code. In fact, according to the Criminal JusticeDelivery
System in Canada, a youth between the age of 14 to 17 years may be tried andsentenced as an
adult in certain situations. Even in Canada the Youth Criminal Justice Actgoverns the
application of criminal and correctional law to those who are twelve years old orolder, but
younger than 18 at the time of committing the offence, and that, although, trialswere to take
place in a Youth Court, for certain offences and in certain circumstances, a youthmay
beawardedan adultsentence.

Comparing the position in USA and the Juvenile Justice and Delinquency Prevention
Act,1974,while in several States, no set standards have been provided, reliance is placed on
thecommon law age of seven in fixing the age of criminal responsibility, the lowest being
sixyearsinNorthCarolina.ThegeneralpracticeintheUnitedStatesofAmerica,however,isthat even
for such children, the courtsare entitledto impose life sentences in respect ofcertain types of
offences, but such life sentences without parole were not permitted for thoseunder the age of
eighteen years convicted of murder or offences involving violent crimes
andweaponsviolations.

InEnglandandWales,childrenaccusedofcrimesaregenerallytriedundertheChildrenand Young
Persons Act, 1933, as amended by Section 16(1) of the Children and YoungPersons Act,
1963. Under the said laws, the minimum age of criminal responsibility inEngland and
Wales is ten years and those below the said age are considered to be doliincapax and, thus,
incapable of having any mens rea, which is similar to the provisions ofSections82 and83 of
IndianPenalCode.

Another case commonly known as “The Bombay Blasts Case”53was also referred where
ajuvenile who was tried and convicted along with adults under the Terrorist and
DisruptiveActivitiesAct(TADA),wasdeniedtheprotectionoftheJuvenileJustice(CareandProtect
ionofChildren)Act,2000,onaccount of theseriousnature of the offence.

In the present matter Tribhuvan was the one who planned all this and convinced all the
otheraccusedincommittingthisoffencewhichshowsthematurityofmindandthecapacityto

53
Essa@AnjumAbdulRazakMemonv.StateOfMaharashtra,2013SC,CriminalAppeal no.1178of2007.
Page 38of 35
understand the graveness of the offence. For the commission of such a brutal and a
monstroushe cannot be considered as a juvenile. This court in Om Prakash v. State of
Rajasthan54,observed:

“if the conduct of an accused or the method and manner of commission of the
offenceindicates an evil and a well planned design of the accused committing the offence
whichindicates more towards the matured skill of an accused than that of an innocent child,
then inthe absence of reliable documentary evidence in support of the age of the accused,
medicalevidence indicating that the accused was a major cannot be allowed to be ignored
takingshelter of the principle of benevolent legislation like the Juvenile Justice Act,
subverting thecourse of justice as statutory protection of the Juvenile Justice Act is meant for
minors whoare innocent law breakers and not accused of matured mind who uses the plea of
minority asaploy orshield toprotect himself fromthesentenceofthe offence committed by him.”

In the present case therefore, not only the Medical Certificate and the presence of
drivinglicence completely was ignored but also the Sessions Court, as has been referred
above didnot take into consideration the mental capability of the accused, Shri Tribhuvan to
understandthe nature and consequences of his act; nor did it take into consideration the
gravity of theoffence committedand how heinous the crimewas.

PRAYER

THEREFOREINTHE LIGHTOFTHE ISSUESRAISED, ARGUMENTSADVANCED,

REASONSGIVENANDAUTHORITIESCITED,THEHON’BLESUPREMECOURTMAYBEPLEASEDTO:

54
Supra,N.49

Page 39of 35
 I. DECLAREthattheHighCourtwasnotjustifiedinreducingthesentenceoftheaccusedi
n thepresent matter.
II. DECLAREthatthequantumofsentencegivenbytheHon’bleHighCourtwasnotfairan
d justified.
III. DECLAREthatthecompensationgiventotheprosecutrixwasnotfairandtoprovideph
ysical,mental,psychological andsocialrehabilitationtothevictim.
IV. HOLDthatthemainaccusedBhawarlaldeservedlifeimprisonmentfortheheinouscri
mecommitted by him.

ANDPASSANYOTHER

RELIEFTHATTHEHON’BLESUPREMECOURTMAYBEPLEASEDTOGRANTANDFORTHISACTOFKINDN

ESSTHECOUNSELSFORTHEAPPELLANTSHALLFOREVERHUMBLYPRAY.

ALLOFWHICHISRESPECTFULLYSUBMITTED.

COUNSELSFORTHEAPPELLANT

Sd/-

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