17 Oct 2010

Economic status not relevant to reduce punishment: High Court

Can poverty and number of dependents upon the accused be considered as a reason to reduce the punishment of an accused? This was the question posed before the Bombay High Court in a recent decision were it was argued that the accused had an aged mother and five children to provide for and thus his sentence in an offence of rape should be reduced. It was argued that sentencing policy required taking into consideration the socio-economic status of the accused and thus an appropriate sentence was required to be passed.

However, Justice A.P. Bhangale of Bombay High Court (Nagpur Bench) dismissing the contention, inter alia observed as under;
9. Learned counsel for the appellant, in the alternative, submitted that the appellant is having five children to look after besides, an aged mother and,t herefore, sentence imposed upon him for offence u/s 376 be reduced to that of already undergone. Learned Advocate made a reference to the ruling in State of Rajasthan vs. Gajendra Singh reported in 2008 (11) Scale Page 9, in order to submit that for special and adequate reasons lesser punishment may be imposed than the prescibed minimum for offence punishable under section 376 IPC. It is also submitted that in such matter judicial discretion has to be used and for that purpose no straight-jacket formula is prescribed. The Apex Court observed that the Court has to record 'adequate and special reasons' in the judgment and not fanciful reasons which would permit the Court to impose the less than the prescribed minimum; whereas what is adequate and special would depend upon several factors without any stait-jacket formula can be indicated.
10. In the ruling cited, it appears that judgment of the High Courtwhich reduced sentence without justification than the prescribed minimum, was set aside and it was directed that the respondent shall serve minimum seven years R.I.
11. Learned APP made a reference to the ruling in State of M.P. vs. Munna Choube & another reported in (2005) 2 SCC page 710 to argue that special and adequate reason is requirement which is sine qua non to be recorded in the judgment and appropriate sentence being to protect society and deter the criminal, social impact of the crime and effect of sentence on social order are relevant consideration. Sentence should reflect conscience of society and should be stern where it should be. Imposition of meagre sentences on account of lapse of time, as in this case, is not permissible as the physical scar heals but mental scar is difficult to heal when the prosecutrix has been ravished which results in deathless shame for her. It is brought to my attention that the the Apex Court in Munna Choube 's case concluded by setting aside the order of the High Court and directed the accused to surrender the remainder of the sentence.
12. The question as to whether the appellant has five children and aged mother to look after can be considered as adequate and special reason must be answered in the negative bearing in mind observations made in the aforesaid ruling that socio-economic status of the accused or convict, religion,caste,creed are irrelevant factors. Although there is no straitjacket formula, discretion is depending upon special factors to spell out adequate and special reason. Mere submission that the appellant is required to maintain five children and aged mother would reflect upon number of family dependents stated by him; however, his socio-economic status is irrelevant and cannot constitute “adequate and special reason”, as contemplated by philosophy of the penology contained under section 376 IPC. It is not doubt true that the Court has discretion to impose less sentence than the prescribed minimum for adequate and special reasons but merely a large family of the accused is irrelevant to determine and reduce the extent of imprisonment and fine because punishment which is to be imposed upon the convict has to be proportionate to the crime committed. The Court has to bear in mind the society's cry for justice. Discretion has to be judicious and proper and having regard to the nature of the crime and the manner in which it was committed, the sentence has to stern where it should be and tampered with mercy if it warrants to be. Considering the relevant facts established in this case in respect of nature of offence committed, the manner in which it was committed and the conduct of the accused to use weapon to threaten prosecutrix while committing the offence and such attending circumstances, I do not find any adequate and special reason to reduce the sentence than the prescribed minimum under section 376 IPC. Therefore, the contention that the accused /appellant is required to maintain five children and his old mother would not constitute adequate and special reason. It might have been otherwise had the victim herself came forward with an affidavit to forgive the appellant and to pray for lenient sentence for him. Therefore, I am not inclined to interfere with the sentence imposed by the trial Court. The appeal is therefore dismissed. 

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