M.Y Eqbal, J.— Leave granted. The State of Madhya Pradesh has preferred this appeal by special leave against the judgment and order dated 2-11-2012 Criminal Appeal No. 664 of 2008 passed by the learned Single Judge of the High Court of Madhya Pradesh, Bench at Gwalior, who allowed the appeal, preferred by the respondent-accused, in part maintaining his conviction but reducing six months' sentence awarded by the trial court to the period (21 days) already undergone.
2. The prosecution case, in brief, is that on 20-1-2003, when the complainant was taking bath in her bathroom at around 10 a.m, the respondent-accused entered into her bathroom and caught hold of her hand with a bad intention and asked her to come inside. When the complainant refused, the accused with an intention to rape her, started dragging her out of the bathroom. When she screamed for help, two persons reached there and the accused fled away knocking her down on the ground for which she received injuries on her right elbow. The complainant's husband had gone to Village Badoli for some work and upon his coming back, the complainant reached the police station along with him and lodged an FIR. Upon her medical examination on the same day, following injury on the person of the complainant was found:
“Abrasion measuring ½ × ¼ cm on the back side of the upper right forearm along with slight blood clots.”
3. The respondent-accused was arrested on 29-1-2003 and the case was committed to the Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Guna, who after scrutinising the evidence available on record and after hearing the contentions of both sides, convicted the respondent for the offences punishable under Sections 323 and 354 of the Penal Code, 1860 (in short “IPC”) sentencing him to undergo rigorous imprisonment for six months with a fine of Rs 500.
4. Being aggrieved, the respondent preferred an appeal before the High Court, where the accused did not challenge his conviction but prayed for reduction of awarded sentence. Maintaining his conviction, the High Court reduced his sentence to the period already undergone holding that the accused is first offender, fine amount has already been deposited and he has already undergone imprisonment for 21 days.
5. Dissatisfied with the order of the High Court, the State of Madhya Pradesh has preferred this appeal raising issue whether the period of sentence for the offence punishable under Section 354 IPC can be reduced to the period undergone for only 21 days just on the ground that the respondent is first time offender and is facing trial since 2003.
6. We have heard the learned counsel for the parties appearing on either side.
7. It has been contended on behalf of the State that the learned Single Judge of the High Court has failed to correctly analyse the act of the respondent through which he tried to outrage the modesty of a woman. The High Court has failed to correctly appreciate that the trial court has already taken lenient view by awarding sentence of six months' rigorous imprisonment and reduction of sentence to the period of 21 days with respect to the offences which deal with the aspect of outraging the modesty of the woman, would reduce the deterrent effect of the punishment provided under the Code for such offences.
8. Per contra, it has been submitted on behalf of the respondent that he was only 19 years old at the time of the incident and he has already undergone physical incarceration for 24 days and mental incarceration suffered for the last 10 years. The respondent has two children and has no criminal antecedent earlier to the alleged incident or after the incident and he is also entitled to the benefit of Section 360 of the Code of Criminal Procedure. It has been further submitted that no minimum sentence has been prescribed under Section 354 IPC.
9. Section 354 of the Penal Code deals with assault or criminal force to woman with intent to outrage her modesty and, as such, is reproduced hereunder:
“354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
10. It is well-settled proposition of law that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. One should keep in mind the social interest and consciousness of the society while considering the determinative factor of sentence commensurate with the gravity and nature of crime. The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages any criminal and as a result of the same society suffers.
11. In Sevaka Perumal v. State of T.N (1991) 3 SCC 471, this Court observed that undue sympathy by means of imposing inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and the society cannot long endure under serious threats. If the courts do not protect the injured, the injured would then resort to private vengeance. Therefore, the duty of any court is to award proper sentence having regard to the nature of the offence and the manner in which it was committed.
12. In Dhananjoy Chatterjee Alias Dhana v. State Of W.B . (1994) 2 SCC 220, this Court held as under:
“14. In recent years, the rising crime rate—particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences, in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.
15. In our opinion, the measure of punishment in a given case must depend upon the atrocity of the 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 the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.”
13. While considering this aspect, the Apex Court in Mahesh v. State Of M.P. (1987) 3 SCC 80, remarked that:
“6. … it will be a mockery of justice to permit these appellants to escape the extreme penalty of law when faced with such evidence and such cruel acts. To give the lesser punishment for the appellants would be to render the justicing system of this country suspect. The common man will lose faith in courts. In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. When we say this, we do not ignore the need for a reformative approach in the sentencing process.”
14. In Hazara Singh v. Raj Kumar (2013) 9 SCC 516, this Court has observed that:
“10. … it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict.”
This Court further observed that:
“11. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. This Court has repeatedly stressed the central role of proportionality in sentencing of offenders in numerous cases.”
15. In Shailesh Jasvantbhai v. State of Gujarat (2006) 2 SCC 359, the Apex Court opined that:
“7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ‘order’ should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: ‘State of criminal law continues to be—as it should be—a decisive reflection of social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc.”
16. A three-Judge Bench of this Court in Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat (2009) 7 SCC 254, observed as follows:
“99. … The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to (sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong.”
17. Indisputably, imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime where it relates to the offences against women involving moral turpitude or moral delinquency, which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Liberal attitude by imposing meagre sentences or taking sympathetic view merely on account of lapse of time in respect of such offences will be counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
18. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.
19. In the instant case, as noticed above, the High Court in a very casual manner reduced the sentence of the accused to the period already undergone merely on the ground that the accused is first offender. If such a view is taken, the accused, who commit such offence, will be emboldened and repeat such crime, which is totally detrimental to the society.
20. For the reasons aforesaid, we set aside the impugned order Criminal Appeal No. 664 of 2008 reducing sentence to the period already undergone and, to avoid miscarriage of justice, this appeal is allowed restoring the sentence imposed by the trial court. The respondent is directed to surrender within two weeks from today, failing which, the trial Judge is directed to take appropriate steps for sending him to prison to undergo the remaining period of sentence.
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