Ramu and others vs State and others. Criminal Appeal 246/2014 & connected appeals, decided on 21 October 2020. Justice B. Veerappa and Justice K. Natarajan.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/344930/1/CRLA246-14-21-10-2020.pdf
In one of the landmark judgments on Criminal law reforms, the Karnataka High Court expressed anguish over the beastly behaviour of the accused in committing gang rape on a student from Nepal. The High Court has called upon to the Parliament to take note of the extremely disgusting scenario where womanhood are treated as objects of lust and further made strongest recommendation to amend the Indian Penal Code to impose capital punishment on gang rapists.
The Hon’ble Court in its meticulously considered judgment has quoted excerpts from Vedas and other ancient scripts to note with utmost pain as to how women who were worshiped at one point of time are treated with utter impunity.
Relevant Paragraphs: ‘The rape is not only a crime against woman.. but it is a crime against the entire civilized society’. Physical scar will heal up but mental scar will remain for ever.
25. The imposition of appropriate punishment is the manner in which the ‘Court responds to the society’s cry for justice against the criminal’. Justice demands that the Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence. The Court must not only keep in view the rights of the criminal, but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. 27. Under the Constitution of India, ‘Right to live with dignity’ is a fundamental right guaranteed and it is the fundamental duty of the State to protect it. Sexual violence by the accused apart from being a dehumanizing act, is an unlawful intrusion on the right of privacy and sanctity of a woman. It is a serious blow to her supreme honour and offends her self-esteem and dignity as well. It degrades and humiliates the victim and where the victim is a helpless innocent woman, child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries, but leaves behind a scar on the most cherished position i.e., her dignity, honour, reputation and chastity. ‘Rape is not only an offence against P.W.28 victim girl, but a crime against the entire society’. It is a crime against basic human rights and also violates the most cherished fundamental right guaranteed under Article 21 of the Constitution of India. 28. Alarming increase in crimes depicts that the criminals are not afraid of the present criminal justice system. We feel that more stringent punishment has to be introduced by further amending the provisions of Section 376D stated supra imposing death penalty or life as stated supra and due publicity has to be given to the amended provisions in discharging and deterring others from committing such crimes. The media, which is rightly called the Fourth Estate of Democracy, can play a pivotal role in bringing about the awareness of the amended provisions of law and in sensitizing the general public on the traumatic impact of the invasion of a women’s body. 29. Manu-Smriti, which is basically a compilation of Vedic Laws, unequivocally states the reverence with which women were to be treated: “Where women are worshipped, the Gods rejoice; Where they are not respected, all tasks become fruitless”. The Gods are kind to the homes where women are treated with honour. Where women are not honoured, there all actions (rituals) go in vain. Families where women are unhappy are doomed to be destroyed soon. Homes where women are not unhappy are destined always for greater prosperity.
30. In Vedas, all women have to be treated as mothers or elder sisters by male students and the admonition is: “The King’s wife, the Guru’s wife, the elder brothers’ wife, the mother-in-law and one’s own mother are considered as mothers”.
One is ordained to prostrate oneself before them every morning or whenever one meets them for the first time in the day. This is evident from the reference in the ‘Ramayana’.
32. Now the woman is typically stereotyped as sexual object of pleasure and not as a respectful motherly force. Hence, despite all material progress, western world is still inflicted with insecurity and lack of inner peace.
34. As is being rightly held by the Courts, including the Apex Court, a girl or a woman, in the tradition-bound non-permissive society of India, would be extremely reluctant even to admit that any incident ,which is likely to reflect on her chastity, had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society, including her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home. If she is unmarried, she would apprehend that it would be difficult to secure a befitting life partners and a respectable matrimonial home. In view of these and similar factors, the victims and their relatives are not too keen to bring the culprit to the book.
46. Lord Denning while appearing before the Royal Commission on ‘Capital Punishment’ expressed the view as under:
“Punishment is the way in which society express its denunciation of wrongdoing and in order to maintain respect for law, it is essential that punishment inflicted for grave crimes should reflect revulsion felt by the great majority of the citizens. For them it is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else. The truth is that some crimes are so outrageous that society insists on adequate punishment because the wrong doer deserves it, irrespective of whether it is deterrent or not”.
51. It is the nature and gravity of the crime and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual but also against the society to which the criminal and the victim belong.
52. In view of the pronouncements and declarations made by the Hon’ble Supreme Court, it is true that reformation as a theory of punishment had become the trend but that theory is applicable to such crimes, in which the damage is repairable or even if the damage cannot be repaired, salvation by other mode is possible. That theory is inapplicable in offences where damage is immense, irreparable and cannot be retractable and as such, severe punishment is the only mode.
58. In Vedic Society, great value was attached to the chastity of women. Therefore, any attempt to rob her off of chastity was considered to be a sin. The Punishment as per Manu for such crime included throwing the perpetrator out of the society.
- Interestingly, the scriptures provide an
insight into not only how the perpetrator of offence of
rape was dealt with but also how the victim was dealt
with by the Society. It is surprising to note that when
victims of rape in modern India are admonished by the
Society, the Vedic Society was much more supportive of
survivors of rape.
60. It is unfortunate, a horrific act that all the accused persons have committed heinous and inhumane crime of gang rape on the victim – P.W.28 for satisfaction of their lust and ruined her life for which she has to suffer throughout her life. “Rape is not only a crime against woman-P.W.28 victim girl, but it is a crime against the entire civilized society”.
61. Punishment must also respond to the cry of the society for justice against the criminals. While considering the punishment to be given to an accused, the Court should be alive not only to the rights of the criminal for awarding just and fair punishment by administrating justice tempered with such mercy, as the criminal may justly deserve, but also to the rights of the victim of the crime to have assailant appropriately punished and the society’s reasonable expectations from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused.
67.
‘Gang rape’ is more dangerous than ‘Murder’.
The demand for justice has to be made fully within
legal frame work. In view of the provisions of
Section 10 of Indian Penal Code the word “Man”
denotes a male human being of any age; and the
word “Woman” denotes a female human being of
any age. The provisions of Section 376DB of Indian
Penal Code prescribes punishment for gang rape on
woman under twelve years of age, which shall be
imprisonment for life, which shall mean
imprisonment for the remainder of that person’s
natural life and with fine or with death. Since the
unfortunate incident has occurred on 13.10.2012
and the provisions of Section 376(2)(g) of Indian
Penal Code provides rigorous imprisonment for a
term which shall not be less than 10 years, but
which may extend to life and shall also be liable to
fine. The provisions of Section 376D of Indian
Penal Code has been amended by the Criminal Law
(Amendment) Act 2013 (13 of 2013) which has come
into force with effect from 3.2.2013 imposing
punishment of rigorous imprisonment for a term
which shall not be less than 20 years, but which
may extend to life, which shall mean imprisonment
for remainder of that person’s natural life and with
fine. In view of the provisions of Section 10 and
Section 376DB of Indian Penal Code stated supra,
in our considered opinion, now it is appropriate for
the Legislature/Central Government in order to curb
the menace of ‘gang rape’ against woman, the
provisions of Section 376D of Indian Penal Code
requires further amendment imposing punishment
for death in addition to the existing provision of
imprisonment for life and shall also liable to fine
on par with the provisions of Sections 376AB and
376DB of Indian Penal Code keeping in view the
definition of ‘Woman’ under Section 10 of Indian
Penal Code.
69.
- Though Indian Penal Code was enacted by
Act 45 of 1860, and even after lapse of 74 years of
independence, still woman is not safe in the hands
of rapists/violators of law. Last but not the least,
we want to send a strong message to the Society by
reminding ourselves, the famous Quote of the
Father of the Nation, Mahatma Gandhi,
immediately after independence that, “The day a
woman can walk freely on the roads at night, that
day we can say that India has achieved
independence.” Therefore, we express our anguish towards safety of the vulnerable woman folk in the society that when an educated woman studying Law Course was unable to go out of the hostel with her friend at 9.30 p.m. as the accused ravished her by abducting and committing gang rape on her and we cannot say that we have achieved the Mahatma Gandhi’s dream of Indian Independence stated supra, otherwise, we are not proud to say that India achieved empowerment of woman even after seven decades of Independency of our Country.
70.
- We, the Judges are the societal parents.
If our concern for the society of girls/ women can be
summed up in one sentence that “An attack on
anybody’s daughter is an attack on our daughter.”
While confirming the judgment We hereby recommend the Legislature/Central Government to further amend the provisions of Section 376D of Indian Penal Code – Gang rape into capital punishment in addition to the existing provision for imprisonment of life and with fine on par with the provisions of Section 376AB and 376DB of Indian Penal Code keeping in view of definition of ‘Woman’ under Section 10 of Indian Penal Code in order to curb the menace of ‘gang rape’ in the society at large.
Compiled by S.Basavaraj, Advocate, Daksha Legal.
Daksha Legal 