SHIMBHU AND ANR.versusSTATE OF HARYANA

                         [2013] 14 S.C.R. 136


A                        SHIMBHU AND ANR.
                                    v.
                        STATE OF HARYANA
               (Criminal Appeal Nos.1278-79
                                    ..      of 2013)
                          AUGUST 27, 2013
B
      [P. SATHASIVAM, CJI, RANJANA PRAKASH DESAI
                 AND RANJAN GOGOi, JJ.)

       Penal Code, 1860 - ss. 376(2)(g), 366, 342, 363 and 506
C rlw. s.34 - Conviction under- By courts below - Sentence of
  10 ye·ar RI and fine for offence u/s. 376(2)(g) with other
  sentences for offences under other provisions - On appeal,
  plea for reducing the sentence - Held: Minimum sentence for
  the offence of gang rape is 10 years - However, lesser
D sentence can be imposed giving special and adequate
  reasons - Special and adequate reasons depend on facts
  and circumstances of the case - The grounds for reducing
  the sentence, taken in the present case, do no suffice special
  and adequate reasons - Hence, sentence not reduced -
E Order of courts below confirmed - Sentence/sentencing.
         Sentence/sentencing:

         Offence of gang rape - Sentence for - Lesser than the
    minimum prescribed - On the basis of compromise between
F   the accused and the prosecutrix - Held: Rape is a non-
    compoundable offence - It would not be safe for the court in
    considering the compromise as a ground, to exercise its
    discretionary power under the proviso to s.376(2)(g) /PC -
    Penal Code, 1860 - s.376(2)(g) Proviso.

         Punishment - Imposition of - Criteria for - Held:
    Punishment should be proportionate/commensurate to the
    gravity of offence - Religion race, caste, economic or social
    status of the parties long pendency of the trial or offer of rapist
                                   136                                    .
         SHIMBHU AND ANR. v. STATE OF HARYANA                    137


_;,,.., to marry the victim or marriage of victim and hei settlement,   A
        cannot be construed as special factors for reducing the
        minimum prescribed sentence - Penal Code, 1860 -
        s.376(2)(g).

       Appellants-accused A1 and A2 were convicted by                   8
   courts below ulss.376(2)(g), 366, 342, 363 and 506 r/w.
   s.34 IPC. They were sentenced to 10 years RI with fine
   of Rs.5,000/- with default clause for the offence
   punishable u/s. 376(2)(g) r/w. s.34 IPC. Their conviction
   and sentence was confirmed by High Court.
                                                                        c
       In appeal to this Court, the appellant-accused prayed
   for reduction of sentence to the period already
   undergone, on the grounds that the accused and the
   prosecutrix have entered into a compromise; that the
   incident took place about 18 years back; and that the                D
   prosecutrix was happily married and had children.

        Dismissing the appeal, the Court

         HELD: 1. The crucial stage in every criminal
    proceeding is the stage of sentencing. It is the most               E
    complex and difficult stage in the judicial process. The
    Indian legal system confers ample discretion on the
    judges to levy the appropriate sentence. However, this
    discretion is not unfettered in nature rather various
    factors like the nature, gravity, the manner and the                F
    circumstances of the commission of the offence, the
    personality of the accused, character, aggravating as well
    as mitigating circumstances, antecedents etc.,
  · cumulatively constitute as the yardsticks for the judges
    to decide on the sentence to be imposed. The sentencing             G
    Courts shall consider all relevant facts and
    circumstances bearing on the question of sentence and
    impose a sentence commensurate with the crime
    committed. [Para 9] [144-G-H; 145-A-B]
                                                                        H
     138     SUPREME COURT REPORTS            [2013] 14 S.C.R.


 A       2. A perusal of s.376(2) IPC shows that the legislative
    mandate is to impose a sentence, for the offence of gang
    rape, for a term, which shall not be less than 10 years,
    but it may extend to life and shall also be liable to fine.
    The proviso to Section 376(2) IPC, of course, lays down
  s that the Court may, for adequate and special reasons to
    be mentioned in the judgment, impose sentence of
    imprisonment of either description for a term of less than
    10 :vears. Thus, the normal sentence in a case where
    gang rape is committed is not less than 10 years though
  c in E,xceptional cases, the Court by giving "special and
    ade1quate reasons", can also award the sentence of tess
    than 10 years. [Para 11] [147-A-C]
                                          •
         3. It is a fundamental rule of construction that a
    proviso must be considered in relation to the ntatn
· D prnvision to which it stands as a proviso, particularly, m
    such penal provisions. Whether there exist any ..special
    and adequate reason" would depend upon a variety .of
    factors and the peculiar facts and circumstances of each
    case. This Court, in various judgments, has reached the
  E consensus that no hard and fast rule can be laid down In
    that behalf for universal application. [Para 12] [147-8-E]

        4. The accused prayed for a reduction of sentence
   of imprisonment for a term of less than 10 years, based
 F on the following three grounds, namely that a ·
   compromise has been arrived at between the parties; that
   the occurrence of the incident dated back to 1995; and ·
   that the victim was happily married and blessed with
   children. None of the grounds raised will suffice to be
 G 'special and adequate reasons' even if put together.
   [Paras 13 and 14] [147-E-G; 148-A]

         5. Punishment should always be proportionate/
     commensurate to the gravity of offence. Religion, race,
     caste, economic or social status of the accused or victim
 H
    SHIMBHU AND ANR. v. STATE OF HARYANA              139


or the long pendency of the criminal trial or offer of the   A
rapist to marry the victim or the victim is married and
settled in life cannot be construed as special factors for
reducing the sentence prescribed by the statute. The
power under the proviso should not be used
indiscriminately in a routine, casual and cavalier manner    B
for the reason that an exception clause requires strict
interpretation. [Para 21] [152-G-H; 153-A-B]

    Mohd. lmran Khan vs. State Government (NCT of Delhi)
(2011) 10 SCC 192: 2011 (15) SCR 1030; Baldev Singh and      C
Others vs. State of Punjab (2011) 13 SCC 705: 2011 (15)
SCR 927 - distinguished.

     6. A compromise entered into between the parties
cannot be construed as a leading factor based on which
lesser punishment can be awarded. Rape is a non-             D
compoundable offence and it is an offerrce against the
society and is not a matter to be left for the parties to
compromise and settle. Since the Court cannot always
be assured that the consent given by the victim in
compromising the case is a genuine consent, there is         E
every chance that she might have been pressurized by
the convicts or the trauma undergone by her all the years
might have compelled her to opt for a compromise.
Accepting this proposition will put an additional burden
on the victim. The accused may use all his influence to      F
pressurize her for a compromise. So, in the interest of
justice and to avoid unnecessary pressure/harassment
to the victim, it would not be safe in considering the
compromise arrived at between the parties in rape cases
to be a ground for the Court to exercise the discretionary   G
power under the proviso of Section 376(2) of IPC. [Para
22] [153-C-F]

   7. The legislature through the Criminal Law
(Amendment) Act, 2013 has deleted this proviso in the
                                                             H
    140      SUPREME COURT REPORTS            [2013) 14 S.C.R.


A wall<e of increasing crimes against women. Though, the
  said amendment will not come in the way of exercising
  discretion in this case, the present case fails to fall within
  the ambit of exceptional case where the Court shall use
  its extraordinary discretion to reduce the period of
B sentence than the minimum prescribed. [Para 23) (153-F-
    H]
       Kamal Kishore vs. State of H.P. (2000) 4 SCC 502: 2000
  (3) SCR 473; State of A.P. vs. Polamala Raju @ Rajarao
  (2000) 7 SCC 75: 2000 (2) Suppl. SCR 329; State of M.P.
C vs. Bala @ Balaram (2005) 8 SCC 1: 2005 (3) Suppl. SCR
  8!59; State of Karnataka VS. Krishnappa (2000) 4 sec 75:
  21~04 (2) SCR 422; Bhupinder Sharma vs. State of Himachal
  Pradesh (2003) 8 SCC 551: 2003 (4) Suppl. SCR 792; State
  of M.P. vs. Ba/u (2005) 1 SCC 108; State of Madhya
D Pradesh vs. Bab/u Natt (2009) 2 SCC 272: 2008 (17) SCR
  1096; State of Rajasthan vs. Vinod Kumar (2012) 6 SCC 770:
  '!012 (6) SCR 1 - relied on.
                        Case Law Reference:
E         2000 (3) SCR 473           relied on        Para 15
          2000 (2) Suppl. SCR 329    relied on        Para 15
          2005 (3) Suppl. SCR 859    relied on        Para 16

F         2004 (2) SCR 422           relied on        Para 17
          2003 (4) Suppl. SCR 792    relied on        Para 18
          (2005) 1 sec 1os           relied on        Para 18
          2008 (17) SCR 1096         relied on        Para 18
G
          2012 (6) SCR 1             relied on        Para 18
          2011 (15) SCR 927          distinguished Para 18
          2011 (15) SCR 1030         dis ting u ished Para 20
H
   SHIMBHU AND ANR. v. STATE OF HARYANA                 141


    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal          A
No. 1278-1279 of 2013.

    From the Judgment and Order dated 22.02.2011 of the
Hight Court of Punjab & Haryana at Chandigarh in Crl. Appeal
No. 577-SB & 479-SB of 1998.                                   B

    Rishi Malhotra, for the Appellants.

    Brijender Chahar, R.K. Shokeen, Jyoti Chahar, Dr. Monika
Gusain, for the Respondent.
                                                               c
    The Judgment of the Court was delivered by

    P. SATHASIVAM, CJI. 1. Leave granted.

    2. These appeals are directed against the final judgment
and order dated 22.02.2011 passed by the High Court of         D
Punjab and Haryana at Chandigarh in Criminal Appeal Nos.
577 and 479 of 1998 whereby the High Court dismissed the
appeals filed by the appellants herein while affirming the
conviction and sentence dated 30/31.03.1998 awarded by the
Additional Sessions Judge, Narnaul.                            E

    3. Brief facts:

      (a) The case relates to the gang rape of the victim in
village Nangal Durgu, Haryana. Purushottam-her grandfather,
had a shop in the said village. Balu Ram (the appellant herein) F
also had a shop adjacent to the shop of Purushottam. On
28.12.1995, at about 5.00 a.m., when the prosecutrix (PW-3)
came out of her house to attend the call of nature, Shimbhu (A-
1) and Balu Ram (A-2)-the appellants herein, met her and
asked her to accompany them to their shop. When she tried to G
resist their attempt, they threatened her by pointing out a knife
with dire consequences. They took her inside the shop of Balu
Ram (A-2) and raped her, turn by turn. They kept her confined ,
in the same shop for two days, i.e., 28.12.1995 and 29.12.1995-'
and committed rape upon her repeatedly. It was only on H
    142      SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A   29.12.1995, she was allowed to leave the said place when the
    appellants-accused learnt that her family members were on her
    look out. When she reached her house, she narrated the entire
    incident to her family members.

B      (b) On 30.12.1995, the prosecutrix, accompanied by her
  father - Luxmi Narain Sharma (PW-4), went to the Police
  Station Nangal Chaudhary and lodged a First Information
  Report (FIR) being No. 195 dated 30.12.1995 under Sections
  376(2)(g), 366, 342, 363, 506 read with Section 34 of the Indian
C Penal Code, 1860 (in short 'IPC').

         (c) After investigation, the case was committed to the Court
    of the Additional Sessions Judge, Narnaul which was
    numbered as Sessions Case No. RT-9 of 28.08.1997/
    11.03.1996 and Sessions Trial No. 4 of 28.08.1997/
D   25.03.1996. The Additional Sessions Judge, vide order dated
    30/31.03.1998, convicted and sentenced the appellants to
    undergo rigorous imprisonment (RI) for ten years along with a
    fine of Rs. 5,000/- each, in default, to further undergo RI for six
    months for the offence punishable under Section 376(2)(g) read
E   with Section 34 of IPC. The appellants were also sentenced to
    undergo RI for three years along with a fine of Rs. 1,000/- each,
    in default, to further undergo RI for two months for the offence
    punishable under Section 366 read with Section 34 of IPC.
    They were further sentenced to undergo RI for three months
F   along with a fine of Rs. 200/- each, in default, to further undergo
    RI for fifteen days for the offence punishable under Section 342
    read with Section 34 of IPC. They were also sentenced to
    undergo RI for one year along with a fine of Rs. 500/- each, in
    default, to further undergo RI for one month for the offence under
G   Section 506 read with Section 34 of IPC.

      (d) Being aggrieved of the order of conviction and
  sentence, the appellants herein preferred Criminal Appeal Nos.
  577 and 479 of 1998 before the High Court. The Division
  Bench of the High Court, by a common order dated
H 22.02.2011, dismissed the appeals and confirmed the order
    SHIMBHU AND ANR. v. STATE OF HARYANA                      143
             [P. SATHASIVAM, CJI.]
of conviction and sentence dated 30/31.03.1998 passed by the          A
Additional Sessions Judge, Narnaul.

     (e) Being aggrieved of the above, the appellants herein
have preferred these appeals by way of special leave before
this Court.                                                           B

    4. Heard Mr. Rishi Malhotra, learned counsel for the
appellants-accused herein and Mr. Brijender Chahar, learned
senior counsel for the respondent-State.

     5. The only contention of Mr. Rishi Malhotra, learned C
counsel is with regard to the settlement arrived at between the
appellants-accused and the victim dated 24.12.2011, in the
form of an affidavit by the victim filed before this Court, based
on which he prayed for the reduction of sentence to the period
already undergone. On the other hand, Mr. Brijender Chahar, o
learned senior counsel for the respondent - State vehemently
contended that in view of the statutory provision, as it stood, in
the absence, of adequate and special reasons and the offence
being a gang rape having minimum sentence of ten years, the
same cannot be reduced to the period already undergone E
merely because the victim has entered into a settlement with
the accused. He also brought to our notice the Criminal Law
(Amendment) Act, 2013, which not only deleted the proviso
which enables the court to reduce the minimum sentence by
giving adequate and special reasons but also enhanced the F
minimum sentence to twenty-years, which may extend to life
which shall mean imprisonment for the remainder of that
person's natural life and with fine. He also pointed out that for
the said purpose the legislature has introduced new Section,
namely, Section 3760 IPC, which came into effect from
03.02.2013.                                                        G

     6. In the light of the limited relief prayed, there is no need
to go into the aspects relating to conviction and sentence. In
other words, the only question to be considered in these
appeals is whether the appellants-accused have made out a             H
    144      SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A   case for imposition of a lesser sentence than ten years?

           7. During the pendency of the above appeals, the
  · appellants-accused placed on record an affidavit dated
    24.12.2011 signed by the victim. In the said affidavit, the
8 deponent had stated that she was the prosecutrix in the instant
    case which arose out of FIR No. 195 dated 30.12.1995 under
    Sections 363, 366, 342, 376(2)(g), 506/34 IPC registered at
    1=>.s. Nangal Chaudhary which is 16 years old where she was
    a consenting party to the alleged act. She also stated that due
C to passage of time and the fact that the deponent has settled/
    compromised the said matter with the accused persons on
    account of they belonging to neighbouring village and also of
    the fact that the deponent is married since January, 1999 and
    has four children, she did not want the said case to be pursued
    any further. She further stated that she is living happily with her
D husband for the last twelve years. Finally, she stated that in view
    of the compromise entered into by her with the accused
    persons and in order to buy peace and to maintain dignity in
    her matrimonial life, she has no objection if the sentence of the
    appellants be reduced to the period already undergone.
E
          8. We carefully perused the contents of the said affidavit.
    It contains two pages and the deponent has signed in Hindi,
    that too only on the last page. Nothing was brought to the notice
    before any forum. In these circumstances, let us consider the
F relevant provision, as it stood on the date of the incident, and
    various decisions of this Court.

    Sentencing Policy under Section 376(2)(g) of IPC:

       9. The crucial stage in every criminal proceeding is the
G stage of sentencing. It is the most complex and difficult stage
  in the judicial process. The Indian legal system confers ample
  discretion on the judges to levy the appropriate sentence.
  However, this discretion is not unfettered in nature rather
  various factors like the nature, gravity, the manner and the
H circumstances of the commission of the offence, the personality
    SHIMBHU AND ANR. v. STATE OF HARYANA                     145
             [P. SATHASIVAM, CJI.]

of the accused, character, aggravating as well as mitigating         A
circumstances, antecedents etc., cumulatively constitute as the
yardsticks for the judges to decide on the sentence to be
imposed. Indisputably, the sentencing Courts shall consider all
relevant facts and circumstances bearing on the question of
sentence and impose a sentence commensurate with the crime           B
committed.

     10. Before we evaluate the case at hand in the light of
above established principle that all punishments must be
directly proportionate to the crime committed, it is imperative      C
to comprehend the legislative intent behind Section 376(2)(g)
IPC which is as under:

     "376. Punishment for rape.-

     (1) Whoever, except irt the cases provided for by sub-          D
     section (2), commits rape shall be punished with
     imprisonment of either description for a term which shall
     not be less than seven years but which may be for life or
     for a term which may extend to ten years and shall also
     be liable to fine unless the woman raped is his own wife        E
     and is not under twelve years of age, in which case, he
     shall be punished with imprisonment of either description
    ·for a term which may extend to two years or with fine or
     with both:

    Provided that the court may, for adequate and special            F
    reasons to be mentioned in the judgment, impose a
    sentence of imprisonment for a term of less than seven
    years.

    (2) Whoever,-                                                    G
     (a) Being a police officer commits rape-

           (i) within the limits of the police station to which he
     is appointed; or
                                                                     H
    146       SUPREME COURT REPORTS                [2013] 14 S.C.R.


A                (ii) in the premises of any station house whether or
          not situated in the police station to which he is appointed;
          or

                (iii) on a woman in his custody or in the custody of a
          police officer subordinate to him; or
B
          (b) Being a public servant, takes advantage of his official
          position and commits rape on a woman in his custody as
          such public servant or in the custody of a public servant
          subordinate to him; or
c
          (c) Being on the management or on the staff of a jail,
          remand home or other place of custody established by or
          under any law for the time being in force or of a women's
          or children's institution takes advantage of his official
D         position and commits rape on any inmate of such jail,
          remand home, place or institution; or

          (d) Being on the management or on the staff of a hospital,
          takes advantage of his official position and commits rape
          on a woman in that hospital; or
E
          (e) Commits rape on a woman knowing her to be
          pregnant; or

          (f) Commits rape on a woman when she. is under twelve
          years of age; or
F
          (g) 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.
G
          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."
H
    SHIMBHU AND ANR. v. STATE OF HARYANA                     147
             [P. SATHASIVAM, CJI.]
     11. A perusal of the above provision shows that the             A
legislative mandate is to impose a sentence, for the offence of
gang rape, for a term, which shall not be less than 10 years,
but it may extend to life and shall also be liable to fine. The
proviso to Section 376(2) IPC, of course, lays down that the
Court may, for adequate and special reasons to be mentioned          B
in the judgment, impose sentence of imprisonment of either
description for a term of less than 10 years. Thus, the normal
sentence in a case where gang rape is committed is not less
than 10 years though in exceptional cases, the Court by giving
"special and adequate reasons", can also award the sentence          c
of less than 10 years.

      12. It is a fundamental rule of construction that a proviso
must be considered in relation to the main provision to which
it stands as a proviso, particularly, in such penal provisions.
Whether there exist any "special and adequate reason" would          D
depend upon a variety of factors and the peculiar facts and
circumstances of each case. This Court, in various judgments,
has reached the consensus that no hard and fast rule can be
laid down in that behalf for universal application.
                                                                     E
     13. It is on this proviso to the Section, the accused is
relying upon and praying for a reduction of sentence of
imprisonment for a term of less than 10 years. Based on the
following three grounds, the accused seeks for reduction of
sentence than prescribed by t~e statute:                             F

     Firstly, on the ground iJ1at a compromise has been arrived
at between the parties;

     Secondly, that the occu~rence of the incident dates back
to 1995; and                                                         G

     Lastly, that the victir.i is happily married and blessed with
children.

     14. This Court, in a catena of cases, has categorically
                                                                     H
    148       SUPREME COURT REPORTS                [2013] 14 S.C.R.


A   reiterated that none of the grounds raised will suffice to be
    'special and adequate reasons' even if put together.

          15. In Kamal Kishore vs. State of H.P. (2000) 4 SCC 502,
    a three-Judge Bench of this Court arrived at the conclusion that
B   the fact that the occurrence took place 10 years ago and the
    accused or the victim might have settled in life is no special
    rEiason for reducing the statutory prescribed minimum sentence,
    stating:

          "22. The expression "adequate and special reasons"
c         indicates that it is not enough to have special reasons, nor
          adequate reasons disjunctively. There should be a
          conjunction of both for enabling the court to invoke the
          discretion. Reasons which are general or common in many
          cases cannot be regarded as special reasons. What the
D         Division Bench of the High Court mentioned (i.e.
          occurrence took place 10 years ago and the accused
          might have settled in life) are not special to the accused
          in this case or to the situations in this case. Such reasons
          can be noticed in many other cases and hence they cannot
E         be regarded as special reasons. No catalogue can be
          prescribed for adequacy of reasons nor instance can be
          cited regarding special reasons, as they may differ from
          case to case.

          23. As the reasons advanced by the Division Bench of the
F         High Court could not be supported as adequate and
          special reasons learned Counsel for the accused
          projected an alternative profile in order to support his
          contention that there are adequate and special reasons.
          He submitted the following: Shishna Devi (PW2) has since
G         been married to another person and she is now mother of
          children and is well-settled in life. The accused was aged
          23 when the offence was committed and now he is 34, but
          he remains unmarried. He says that on two occasions his
          marriage had reached the stage of engagement but both
H         had to be dropped off before reaching the stage of
    SHIMBHU AND ANR. v. STATE OF HARYANA                     149
             [P. SATHASIVAM, CJI.]

    marriage due to the social stigma and disrepute which            A
    surrounded him. These are the reasons which he
    advanced for extending the benefit of the proviso.

    24. Those circumstances pleaded by him are not special
    reasons for tiding over the legislative mandate for              8
    imposing the minimum sentence. We, therefore, enhance
    the sentence for the offence under Section 376 l.P.C. to
    imprisonment for 7 years."

    Similar view was taken in the State of A.P. vs. Polamala
Raju @ Rajarao (2000) 7 SCC 75.                                      C

      16. In State of M.P. vs. Bala @ Balaram (2005) 8 SCC
1, this Court held that the long pendency of the criminal trial or
offer of the rapist to marry the victim are no relevant reasons
for exercising the discretionary power under the proviso of          o
Section 376(2) IPC. This Court further held as under:

    "11. The crime here is rape. It is a particularly heinous
    crime, a crime against society, a crime against human·
    dignity, one that reduces a man to an animal. The penal
    statute has prescribed a maximum and a minimum E
    punishment for an offence under Section 3761.P.C. To view
    such an offence once it is proved, lightly, is itself an affront
    to society. Though the award of maximum punishment may
    depend on the circumstances of the case, the award of the
    minimum punishment, generally, is imperative. The F
    provisos to Section 376(1) and 376(2) l.P.C. give the
    power to the court to award a sentence lesser than the
    minimum for adequate and special reasons. The power
    under the proviso is not to be used indiscriminately or
    routinely. It is to be used sparingly and only in cases where G
    special facts and circumstances justify a reduction. The
    reasons must be relevant to the exercise of such discretion
    vested in the court. The reasons must be set out clearly
    and cogently. The mere existence of a discretion by itself
    does not justify its exercise. The long pendency of the H
    150       SUPREME COURT REPORTS                 (2013] 14 S.C.R.


A         criminal trial or the offer of the rapist to marry the victim
          are not relevant reasons. Nor is the age of the offender by
          itself an adequate reason.

          12. The punishments prescribed by the Penal Code reflect
          the legislative recognition of the social needs, the gravity
B
          of the concerned offence, its impact on the society and
          what the legislature considers as a punishment suitable for
          the particular offence. It is necessary for the courts to
          imbibe that legislative wisdom and to respect it."

c        17. l_n State of Karnataka vs. Krishnappa (2000) 4 SCC
    75, a three-Judge Bench of this Court held that the socio-
    economic status, religion, race, caste or creed of the accused
    are irrelevant considerations in the sentencing policy. It was
    further held:
D
          "18. The High Court however, differed with the reasoning
          of the Trial Court in the matter of sentence and as already
          noticed, the reasons given by the High Court are wholly
          unsatisfactory and even irrelevant. We are at a loss to
          understand how the High Court considered that the
E
          "discretion had not been properly exercised by the Trial
          Court". There is no warrant for such an observation. The
          High Court justified the reduction of sentence on the ground
          that the accused respondent was "unsophisticated and
          illiterate citizen belonging to a weaker section of the
F         society" that he was "a chronic addict to drinking" and had
          committed rape on the girl while in state of "intoxication"
          and that his family comprising of "an old mother, wife and
          children" were dependent upon him. These factors, in our
          opinion did not justify recourse to the proviso to Section
G         376(2) IPC to impose a sentence less than the prescribed
          minimum. These reasons are neither special nor
          adequate. The measure of punishment in a case of rape
          cannot depend upon the social status of the victim or the
          accused. It must depend upon the conduct of the accused,
H         the state and age of the sexually assaulted female and the
    SHIMBHU AND ANR. v. STATE OF HARYANA                       151
             {P. SATHASIVAM, CJI.]
    gravity of the criminal act. Crimes of violence upon women         A
    need to be severely dealt with. Socio-economic status
    religion race caste or creed of the accused or the victim
    are irrelevant considerations in sentencing policy.
    Protection of society and deterring the criminal is the
    avowed object of law and that is required to be achieved           s·
    by imposing an appropriate sentence. The sentencing
    Courts are expected to consider all relevant facts and
    circumstance bearing on the question of sentence and
    proceed to impose a sentence commensurate with the
    gravity of the offence. Courts must hear the loud cry for          c
    justice by the society in cases of heinous crimes of rape
    on innocent helpless girls of tender years as in this case,
    and respond by imposition of proper sentence. Public
    abhorrence of the crime needs reflection through
     imposition of appropriate sentence by the Court. There are
                                                                       0
     no extenuating or mitigating circumstances available on
    the record which may justify imposition of any sentence
     less than the prescribed minimum to the respondent. To
     show mercy in the case of such a heinous crime would be
    travesty of justice and the plea for leniency is wholly
     misplaced. The High Court in the facts and circumstances          E
    of the case, was not justified in interfering with the
     discretion exercised by the Trial Court and our answer to
    the question posed in the earlier part of the judgment is
    an emphatic - No."
                                                                       F
    18. Similar view point was largely adopted in various
cases, like in Bhupinder Sharma vs. State of Himacha/
Pradesh (2003) 8 SCC 551; State of M.P. vs. Ba/u (2005) 1
SCC 108; State of Madhya Pradesh vs. Bablu Natt (2009) 2
SCC 272; and State of Rajasthan vs. Vinod Kumar (2012) 6               G
sec 110.
     19. At this juncture, it is pertinent to refer two decisions on
the very same Section, i.e., Section 376 IPC wherein while
considering peculiar circumstances, this Court reduced the
                                                                       H
    152      SUPREME COURT REPORTS                 [2013] 14 S.C.R.


A prescribed minimum sentence and confirmed the orders
  passed by the High Court. In Baldev Singh and Others vs. State
  of Punjab (2011) 13 sec 705, though courts below awarded
  a sentence of ten years, taking note of the facts that the
  occurrence was 14 years old, the appellants therein had
B undergone about 3 Y2 years of imprisonment, the prosecutrix
  and the appellants married (not to each other) and entered into
  a compromise, this Court, while considering peculiar
  circumstances, reduced the sentence to the period already
  undergone, but enhanced the fine from Rs. 1,000/- to Rs.
c 50,000/-. In the light of series of decisions, taking contrary view,
  we hold that the said decision in Ba/dev Singh (supra) cannot
  be cited as a precedent and it should be confined to that case.

         20. Similarly, in Mohd. lmran Khan vs. State Government
    (NCT of Delhi) (2011) 10 SCC 192, this Court, after pointing
D   out that as the High Court itself has awarded the sentence lesser
    than the minimum prescribed for the offence recording special
    reasons, viz., that the prosecutrix therein had willingly
    accompanied the appellants to Meerut and stayed with them
    in the hotel; she was more than 15 years of age when she
E   eloped with the appellants and the appellants were young boys
    held that there is no case for further reduction of sentence and
    dismissed the appeals filed by the appellants-accused.
    Inasmuch as the prosecutrix herself had consented and stayed
    along with the appellants-accused in the hotel, the High Court
F   reduced the sentence to five years which was less than the
    minimum prescribed for the offence which in turn affirmed by
    this Court. This· decision is also confined to the peculiar
    circumstances under the important aspect that the prosecutrix
    was a consenting party, hence, the same is also not applicable
G   to the case on hand or any other case.

        21. Thus, the law on the issue can be summarized to the
    effect that punishment should always be proportionate/
    commensurate to the gravity of offence. Religion, race, caste,
    economic or social status of the accused or victim or the long
H
    SHIMBHU AND ANR. v. STATE OF HARYANA                      153
             (P. SATHASIVAM, CJI.]
pendency of the criminal trial or offer of the rapist to marry the    A
victim or the victim is married and settled in life cannot be
construed as special factors for reducing the sentence
prescribed by the statute. The power under the proviso should
not be used indiscriminately in a routine, casual and cavalier
manner for the reason that an exception clause requires strict        B
interpretation.

     22. Further, a compromise entered into between the
parties cannot be construed as a leading factor based on
which lesser punishment can be awarded. Rape is a non-                C
compoundable offence and it is an offence against the society
and is not a matter to be left for the parties to compromise and
settle. Since the Court cannot always be assured that the
consent given by the victim in compromising the case is a
genuine consent, there is every chance that she might have
been pressurized by the convicts or the trauma undergone by           D
her all the years might have compelled her to opt for a
compromise. In fact, accepting this proposition will put an
additional burden on the victim. The accused may use all his
influence to pressurize her for a compromise. So, in the interest
of justice and to avoid unnecessary pressure/harassment to the        E
victim, it would not be safe in considering the compromise
arrived at between the parties in rape cases to be a ground
for the Court to exercise the discretionary power under the
proviso of Section 376(2) of IPC.
                                                                      F
      23. It is imperative to mention that the legislature through
the Criminal Law (Amendment) Act, 2013 has deleted this
proviso in the wake of increasing crimes against women.
Though, the said amendment will not come in the way of
exercising discretion in this case, on perusal of the above           G
legislative provision and catena of cases on the issue, we feel
that the present case fails to fall within the ambit of exceptional
case where the Court shall use its extraordinary discretion to
reduce the period of sentence than the minimum prescribed.

     24. This is yet another opportunity to inform the subordinate    H
    154       SUPREME COURT REPORTS             [2013] 14 S.C.R.


A Courts and the High Courts that despite stringent provisions for
  rape under Section 376 IPC, many Courts in the past have
  taken a softer view while awarding sentence for such a heinous
  crirne. This Court has in the past noticed that few subordinate
  and High Courts have reduced the sentence of the accused to
B thEi period already undergone to suffice as the punishment, by
  taking aid of the proviso to Section 376(2) IPC. The above trend
  exhibits stark insensitivity to the need for proportionate
  punishments to be imposed in such cases.

      25. In the light of the above discussion, we reject the
C request of learned counsel for the appellants for reduction of
  sentence, consequently, the appeals fail and the same are
  dismissed.

    Kalpana K. Tripathy                          Appeals dismissed .




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