Compromised rape case: View of lawyers on the impact of the unusual judgment
A Supreme Court Bench comprising of Justices Markandeya Katju and Gyan Sudha Mishra (presently the only woman judge in the Supreme Court of India) in an unusual order have let off three gang-rapists with a fine of Rs. 50,000 each after the rapists reached a 'compromising-formula' with the victim.
The Bench has reduced the ten year sentence to three and half years, and has agreed to let the rapists Baldev Singh, Gurmail Singh and Hardeep Singh get away with fine of Rs. 50,000 each. NDTV news report quoting the Counsel for the rapists Rajat Sharma said, "His clients had reached a compromise with the victim and it was decided, to drop the case. Both the convicts and the victim want to bring an end to the case as they were all now married and leading their respective lives". The plea of the rapists was that it was more than 15 years ago, when the incident had occurred.
Statute: According to the Indian penal Code under Section 376 (g), punishment for rape under clause (g) states whoever commits gang rape, 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.
Verdict: The Bench finally relented and said it was upholding their conviction, but reducing their sentence to the three and half years already undergone. The relevant excerpt of the judgment is produced below
Admittedly the appellants have already undergone, about three and half years imprisonment each. The incident is 14 years old. The appellants and the prosecutrix are married (not to each other). The prosecutrix has also two children. An application and affidavit has been filed before us stating that the parties want to finish the dispute, have entered into a compromise on 01.09.2007 and that the accused may be acquitted and now there is no misunderstanding between them.
Section 376 is a non compoundable offence, However, the fact that the incident is an old one, is a circumstance for invoking the proviso to Section 376 (2) (g) and awarding a sentence less than 10 years, which is ordinarily the minimum sentence under that provision, as we think that there are adequate and special reasons for doing so. On the facts of the case, considering that the incident happened in the year 1997 and that the parties have themselves entered into a compromise, we uphold the conviction of the appellant but we reduce the sentence to the period of sentence already undergone in view of the proviso to Section 376 (2) (g) which for adequate and special reasons permits imposition of a lesser sentence. However, we direct that each of the appellant will pay a sum of Rupees 50,000/- by way of enhancement of fine to the victim envisaged under Section 376 of the IPC itself. The fine shall be paid within three months from today. In the event of failure to pay the enhanced amount of fine it will be recovered as arrears of land revenue and will be given to the victim.
View of lawyers on the Supreme Court judgment:
Senior Advocate, Geeta Luthra said, "Common Law jurisprudence has one underlying premise that a person is innocent unless proved guilty. An offence under Indian Penal Code is an offence against State and hence against society and not only against aggrieved individual or complainant. An inroad into this concept of an offence against society has been made by the introduction of the chapter on plea bargaining. However, there are certain offences and enactments where plea bargaining is excluded. Offences of the nature of gang rape, culpable homicide/murder are not offences which are open to plea bargaining and are also not compoundable offences. The minimum punishment in gang rape shall not be less than 10 years but may extend to life imprisonment with or without fine provided that the court may for adequate and special reasons in the judgment impose a term less than 10 years. In the present case there were two concurrent findings of the Sessions Court and the High Court upholding the conviction of gang rape. Unless there were special circumstances carved out in the judgment, the said minimum punishment as born out of legislature is mandatory. The compulsion on the complainant to mutually resolve the matter can be many. It is possible that there were compulsions of stigma continuing over such a long period. The salutary amendment in 1983 enhancing the punishment for gang rape and making it more rigorous had this objective".
Geeta Luthra further said, "The introduction of plea bargaining on 11th January 2006 in chapter 21A of the Code of Criminal Procedure has specifically excluded offences affecting the socio-economic conditions of the country or those against women or children are specifically excluded. In an age of mediation and Alternate Dispute Resolution, offences against the State should still stand out as an exception as they shock the very conscience of society and are against the social fabric protecting the dignity of a woman. Rape and in particular gang-rape where conviction is proved beyond doubt stand on this pedestal. There can be no grievances in awarding compensation to a victim of rape but unless there are such exceptional circumstances that warrant a sentence less than 10 years, the message to society in reducing punishment would have far-reaching and demoralizing consequences".
Founder-Partner Priti Suri of PSA Legal to expressed shock over the judgment said, "The judgment is indeed appalling especially since it is contrary to the intention of the legislature. There is a rationale behind providing a "minimum" penalty for an offence and if that can be changed per the discretion of the court, one could possibly question the purpose behind providing statutory penalties. Also, since this Division Bench judgment will now set a precedent, I won't be surprised if murder offences start getting compounded as well. With all due respect to the judges, I do not concur with their views".
Advocate Vaibhav Vats said, "Rape - Section 376 - Speaks out quite loudly that any person who commits a crime as heinous as Rape shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years. For a crime as serious as Rape wherein there should be orders passed to castrate the people accused, with a judgment like this the Supreme Court has set a very bad precedent for the society. Money is a powerful tool which can always buy a prostitute, however no amount of money can ever give back the dignity of the victim and all that she had suffered. It is the least one could expect from Supreme Court. Rape is a not just a crime against the victim, but a crime against the society and using a so called 'compromise formula' with the victim and letting go off the criminals after imposing fine of Rs. 50,000/- each is almost like ascertaining value of the Rape".
Criminal lawyer, Madhav Khurana said, "Yesterdays Supreme Court Judgment letting off three rapists, to my mind sets a bad precedent. Though I haven't read the judgment yet, so this may be just a one off decision turning on its own facts, but it will open up a floodgate of similar petitions".
Has the Supreme Court created a loophole for rape perpetrators? What stops the men who commit such heinous crimes from coercing the victims to compromise for money? Although most of the cases go unreported, India is ranked in the top 5 countries for rape and sexual assault. Will the Supreme Court judgment serve as a deterrent?
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