download-judgmentThe Supreme Court of India, in contrast to the recent controversial Madras High Court order, has said that there cannot be a compromise or settlement in a case of rape as it would be against the victim’s honour which matters the most.

Conveying its dismay with a judgment of the Gwalior Bench of the Madhya Pradesh High Court, SC bench comprising of Justices Dipak Misra and Prafulla C Pant remitted the case back to the High Court for a reappraisal of the evidence and for a fresh decision. Bench opined that “such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman.”

In 2010, High Court had set aside a lower court’s conviction under Section 376(2)(f) of the Indian Penal Code and had convicted the accused under Section 354 of the IPC, reducing the sentence of seven years to the already undergone imprisonment of around one year.

Case No. Criminal Appeal No. 231 of 2015
Case Title State of Madhya Pradesh v. Madanlal
Bench Justice Dipak Mishra and Justice Prafulla C. Pant

Background

On 27 December 2008, the accused met the victim, seven years old then, on her way to home looking for her mother. As per the prosecution “The accused told her that her mother had gone towards the river and accordingly took her near the river Parvati, removed her undergarment and made her sit on his lap, and at that time the prosecutrix shouted. [Accused] discharged on her private parts as well as on the stomach and washed the same. Upon hearing the cry of the victim, her mother reached the spot, and then accused took to his heels. Victim narrated the entire incident to her mother which led to lodging of an FIR by the mother.”

The investigating agency examined witnesses, seized the clothes of the respondent-accused, sent certain articles for examination to the forensic laboratory and eventually after completing the examination, laid the chargesheet before the concerned court, which in turn, committed the matter to the Court of Session.


Convicted by Sessions Court

The accused pleaded not guilty. Court framed the charge under Section 376(2)(f) read with Section 511 of IPC.

Charge Provision
Section 376(2)(f)of IPC

Punishment for rape:

Whoever:

(f)  commits rape on a woman when she is under twelve years of age; or

…shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.

After the trial, Sessions Court held that prosecution had been able to establish the charge against the accused and accordingly found him guilty and sentenced him for seven years of rigorous imprisonment.


Appeal to High Court

Accused filed an appeal before the High Court and submitted that the trial court had failed to appreciate the evidence in proper perspective and had not considered the material contradictions in the testimony of prosecution witnesses.

As noted by the High Court single judge in his judgment, an alternative submission to the effect that the parties had entered into a compromise and a petition seeking leave to compromise though was filed before the trial Judge, it did not find favour with him on the ground that the offence in question was non-compoundable.

In the above light, and observing that in facts of the case a conviction under Section 376(2)(f) was not possible, on 1 February 2010, High Court converted the offence to one under 354 of IPC and reduced the sentence to the period already undergone, which was slightly more than one year.

Charge Provision
Section 354 of IPC 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.

HC ordered:

Keeping in view the aforesaid position of law and the statement of prosecutrix who was aged 7 years only at the time of incident and the medical evidence on record, this Court is of the opinion that the learned Court below committed error in convicting the appellant under Section 376 of IPC. After going through the evidence, it can be said that at the most appellant can be held guilty of the offence punishable under Section 354 of IPC. In view of this, the appeal filed by the appellant is allowed in part and the conviction of appellant under Section 376 is set aside and appellant is convicted under Section 354 of IPC. So far as sentence is concerned, keeping in view the aforesaid position of law and also the fact that appellant is in jail since last more than one year the purpose would be served in case the jail sentence is reduced to the period already undergone. Thus, the same is reduced to the period already undergone. Respondent/State is directed to release the appellant forthwith, if not required in any other case.


State Appeals to Supreme Court

In year 2012, State of Madhya Pradesh challenged the HC’s judgment before the Supreme Court. State submitted that HC had not kept in mind its jurisdiction as an appellate court and dislodged the conviction and converted the conviction to one under Section 354 IPC in an “extremely laconic manner”. On 1 July 2015, SC allowed the appeal of the State and strongly objected to the High Court’s view. Judgment was authored by Justice Dipak Misra.
Showing its dismay with the HC’s judgment, bench observed:

In the instant appeal, as a reminder, though repetitive, first we shall dwell upon, in a painful manner, how some of the appellate Judges, contrary to the precedents and against the normative mandate of law, assuming a presumptuous role have paved the path of unbelievable laconicity to deal with criminal appeals which, if we permit ourselves to say, ruptures the sense of justice and punctures the criminal justice dispensation system.


No compromise in case of rape or its attempt

[pullquote]Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.[/pullquote]Court observed:

We would like to clearly state that in a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished.Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct.

Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.


Also ignore any offer to marry the victim

Court observed:

Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to
remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error.


Accused to be re-arrested

Remanding the matter back to the HC, bench ordered that the accused be taken into custody forthwith by the concerned Superintendent of Police and thereafter the appeal before the High Court be heard afresh.

 

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