2000(2) Crimes 245 (SC)
Supreme Court of India
(From Karnataka High Court)
S. Saghir Ahmad & Doraiswamy Raju, JJ.
T.K. Gopal @ Gopi —Appellant
versus
State of Karnataka —Respondent
Criminal Appeal No. 443 of 2000
(Arising from SLP (Crl.) No. 3220 of 1999)
Decided on 5-5-2000
Counsel for the Parties :
For the Appellant : Seeraj Bagga, Advocate (A.C.).
For the Respondent : Sanjay R. Hegde, Advocate.

Important point
In an appeal against conviction and sentence of R.I. of 10 years for offence of rape on 1½ year old child, Supreme Court though issued notice for enhancement of sentence, on ground of mitigating circum­stances recalled notice for enhancement and held sentence and main­tained the sentence imposed by lower Court.

Headnote:(i) Indian Penal Code, 1860—Section 376(2)—Rape—Appeal against conviction—Rape on 1½ year old child—Concurrent findings of guilt and sentence of 10 years RI—Supreme Court issued notice for enhance­ment of sentence—Mitigating circumstances that appellant a sole bread winner, has two daughters of marriageable age, appellant already in jail for nine years—Held, present period of incarceration of appel­lant in jail enough—Notice issued to appellant for enhancement of sentence recalled.

       Held : A perusal of Section 376(2) would indicate that where the victim is a woman of less than 12 years of age, the minimum sentence that can be awarded to the accused is ten years, but it may also extend to life imprisonment apart from a fine which may also be im­posed upon him. The proviso to this Section, however, gives a discre­tion to the court to award a sentence of less than 10 years for ade­quate and special reasons which have to be mentioned in the judgment. (Para 6)

       Since the victim in the instant case was an infant child of one and half year, the trial Court as also the High Court both were right in awarding a sentence of 10 years to the appellant. That was wholly in consonance with the provisions of Section 376(2) IPC. The question, however, is that if the law gave the court the discretion to award even life imprisonment for the offence of rape under Section 376(2) IPC, why was that discretion not exercised by the trial Court or the High Court in the instant case where the victim of rape was an infant child. (Para 7)

       However, having regard to the extenuating circumstances pointed out by Mr. Seeraj Bagga in the instant case, specially the fact that the appellant’s two daughters have come of age and are to be married, we feel that the present period of incarceration of the appellant in jail is enough and he should not be made to further suffer the consequences of his bestiality. We therefore, while dismissing the appeal, recall the notice issued to the appellant for enhancement of his sentence. (Para 20)

       (ii) Criminal jurisprudence—Punishment—Object of—Three approaches, punitive, therapeutic approach and preventive approach—Application of different approaches to sexual offences explained.

       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. (Para 13)

       Under the punitive approach, the rationalisation of punishment is based on retributive and utalitarian 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. (Para 14)

       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. (Para 15)

       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. 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 jurisdictions 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. (Paras 16 and 17)

       Here, in India, statutory provision for psychotherapic treatment during the period of incarceration in the jail is not available, 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. (Para 18)

       (iii) Criminal jurisprudence—Crime—Meaning of—Crime can be defined as an act that subjects the doer to legal punishment. It may also be defined as the commission of an act specif­ically forbidden by law; it may be an offence against morality or social order. (Para 11)

       Result : Appeal dismissed.