Judgment

V. R. KRISHNA IYER, J. :- Concurrent convictions by both the courts below have, by a rule of restriction and cirumspection which this court often adopts under Art. 136, persuaded me to circumscribe the leave to appeal to the critical question of punishment, usually answered by courts untouched by current humane criteria and drowned in the superstition that the gravity of the crime and the tariff prescribed in the Penal Code have a monopolistic hold on the sentencing court. Quackery in criminology is a deficiency in forensic justicing - especially disastrous in sensitive areas like juvenile sentencing when unfettered punishment becomes unwitting crime.

2. The present case is an illustration of judicial habituation to prescribing sentences conditioned by the offence and its milieu, forgetting the fundamental fact that the human delinquent, not the criminal deviance (sic), is the cynosure of punitive processing. The further Gandhian axiom follows that crime is like disease, and correction, not cruelty has dominance in the sentencing calculus. The sadistic appeal to severity of infliction takes on a sublimated form in the judicial process, as has happened in the instant case. The court has rightly been horrified by the crime of rape here but wrongly bid farewell to the reform of the vernal criminals.

3. Three boys, between the ages of ten and fourteen with simmering sex urges amidst societal inhibitions, and infatuating stimulations, came by an eleven year old girl tending cattle in a village, and this, by happenstance, was near a neglected brick kiln which temptingly offered protective privacy for carnal assault. This lacivious opportunity excited the three juveniles, otherwise engaged in cutting grass, into erotic experimentalism. They advanced aggressively towards the artless victim, tied up by way of preventive detention a young cowherd who chanced to be near the scene and forcibly went through the adolescent exercise of rape. The courts below have held the three petitioners guilty of an offence under S. 376, I. P. C. and we do not feel it right to nibble at probabilities and disturb that conclusion.

4. Current Indian ethos and standards of punitive deterrence make rape a heinous offence. The offenders, however, are children and the dilemmantic issue is to fix the sentencing guidelines when juvenile delinquents come before the court. Justice and the Child is a distinct jurisprudential-criminological branch of socio-legal speciality which is still in its infant status in India and many other countries. The Children Act is a preliminary exercise; the Borstal School is an experiment in reformation and even S. 360, Cr. P. C. tends in the same direction. Correction informed by compassion, not incarceration leading to degeneration, is the primary aim of this field of criminal justice. Juvenile justice has constitutional roots in Arts. 15 (3) and 39 (e) and the pervasive humanism which bespeaks the superparental concern of the State for its child-citizens including juvenile delinqents. The penal pharmacopoea of India, in tune with the reformatory strategy currently prevalent in civilised criminology, has to approach the child offender not as a target of harsh punishment but of humane nourishment. This is the central problem of sentencing policy when juveniles are found guilty of delinquency. A scientific approach may insist on a search for fuller material sufficient to individuate the therapy to suit the criminal malady. As the United Stated SC stated in Williams v. New York, (1949) 337 US 241 at p. 249, pre-sentence :

"have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guess-work and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after consideration and experimentation."

Judge F. Ryan Duffy has written :

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