Holding

The ten‑year rigorous imprisonment awarded under Section 376(2) IPC is proper and, considering the appellant's extenuating circumstances, the notice for enhancement to life imprisonment is recalled.

Summary

The appellant, T.K. Gopal, was convicted under Section 376(2) of the Indian Penal Code for raping a 1½‑year‑old girl and sentenced to ten years' rigorous imprisonment and a fine. The Supreme Court issued a notice to consider enhancing the sentence to life imprisonment. The appellant pleaded that nine years of incarceration, his role as the sole breadwinner, and the marriageable age of his two daughters constituted extenuating circumstances warranting leniency. The Court examined the statutory minimum of ten years for rape of a girl under twelve, the discretion to impose life imprisonment, and the relevance of the appellant's personal hardships. Concluding that the ten‑year term complied with Section 376(2) and that the appellant had already served a substantial period, the Court recalled the notice for enhancement and dismissed the appeal.

Issues considered

The appropriate sentence for rape of a child under Section 376(2) IPC – whether ten years' imprisonment suffices or life imprisonment is required.
Whether the discretion under the proviso to Section 376(2) IPC to impose a lesser sentence can be exercised in this case.
Whether the appellant's extenuating circumstances (prolonged custody, family hardship) justify refraining from enhancing the sentence.

Legislation cited

Indian Penal Code, 1860s. 376(2)

Subjects

rape of minorSection 376 IPCsentencing discretionlife imprisonmentextenuating circumstancescriminal lawtherapeutic approachprison reform

Judgment

)

A T.K. GOPAL @ GOPI
v.
STATE OF KARNATAKA

MAYS, 2000

B [S. SAGHIR AHMAD AND DORAISWAMY RAJU, JJ.]

Indian Penal Code, 1860-Section 376(2)-0ffence under-Rape of
infant-Conviction under and sentence of JO years RI by cou11s below-Notice
for enhancement of punishment by Supreme Cou11-Plea for recalling the
C notice in view of extenuating circumstances-Held, having regard to the
extenuating circumstances, specially the fact that the appellant's two daugh-
ters have come of age and are to be manied, the present pe1iod of incarcera-
tion of the appellant in jail is enough.

Rape of an infant-Punishment for-Sentence of 10 years awarded by
D Trial Courl and High Coun-Held, Where the victim is a woman of less than
12 years of age, the minimum sentence is ten years, but it may also extend to
life imprisonment apartfromfine-Since the law gave the court the discretion
to award even life imprisonment, that discretion should have been exercised by
the trial cou1t or the High Court in the instant case.
....
E Criminal Law-Sexual offences-Nature of-Held, constitute an alto-
gether different kind of c1ime which is the result of a perverse mind.

Appellant was charged for having raped a one-and-a-half year old
child. The Trial Court as well as the High Court convicted the accused in
view of the medical report, the statement of the complainant and other
F
evidence brought on record; and sentenced him to 10 years RI.

In appeal to this Court, notice was issued for enhancement of sen·
tence. The appellant contended that in view of the extenuating circum-
stances that he is in custody since last 9 years and that prospects of
G marriage of his two daughters has been marred and that he is the sole
bread earned, hi~ sentence may not be enhanced.

Dismissing the appeal, this Court

HELD : 1.1. Having regard to the extenuation circumstances, spe-
H cially the fact that the appellant's two daughters have come of age and are
1040
T.K. GOPAL v. STATE 1041
to be married, the present period of incarceration of the appellant in jail is A
""--4 r -enough and he should not be made to further suffer the consequences of
his bestiality. (1052-G]
2.1. Where the victim is a woman of less than 12 years of age, the
minimum sentence that can be awarded to the accused is ten years, but it
may also extend to life imprisonment apart from a fine, which may also be B
imposed upon him. The proviso to Section 376, however, gives a discretion.
to·the court to award a sentence of less than 10 years for adequate and
special reasons which have to be mentioned in the judgment. [1045-A-B]
2.2. Since the victim in the instant case was an infant child of one-
and-half year, the trial court as also the High Court both were in awarding c
a sentence of 10 years to the appellant. That was wholly in consonance with
the proviso to Section 376(2) IPC. Since the law gave the court the discre-
tion to award even life imprisonment for the offence of rape under Section
). 376(2) IPC, that discretion should have been exercised by the trial court
or the High Court in the instant case where the victim of rape was an 0.
infant child. (1045-C]
3.1. Crime can be defined as an Act that subjects the doer to legal
punishment. It may also be defined as the commission of an act specifically
forbidden by law; it may be an offence against morality or social order.
! (1049-D] E
3.2. Sexual offences, constitute an altogether different kind of crime
which is the result of a perverse mind. The perversity may result in
homosexuality or in the commission of rape. Those who commit rape are
psychologically sadistic persons exhibiting this tendency in the rape forci-
bly committed by them. (1051-F] F
State of Punjab v. Gurmit Singh & Ors., [1996) 2 SCC 384 and Bodhisttwa
Gautam v. Subhra Chakraborty (Ms.), (1996) 1SCC490, referred to.

4.1. In India, statutory provision for psychotherapic treatment during
the period ofincarcerationin the jail is not available, but reformist activities G
, are systematically held at many places with the intention of treating the
offenders psychologically so that he may not repeat the offence in future and
j_ may feel repentant of having committed a dastardly crime. (1052-A]

4.2. Under the theory of therapeutic approach, this Court projected
the need for prison reforms, the need to acknowledge the vital fact that the H
1042 SUPREME COURT REPORTS [2000] 3 S.C.R.
A prisoner, after being lodged in jail, does not lose his fundamental rights or
basic human rights and that he must be treated with compassion and
sympathy. [1051-D]

Sunil Batra(!) v. Delhi Administration, [1979] 1SCR392; Sunil Batra
(II) v. Delhi Administration, [1980] 2 SCR 557; Charles Shobraj v. Superin-
B
tendent,· Central Jail Tihar, AIR (1978) SC 1514 and Francis Coralie Mullin
v. The Administrator, Union Taritory of Delli~ [1981] 2 SCR 516, referred to.

4.3. The theory of therapeutic approach was not followed by the
Court, as it was found that in spite of devices having been employed and
c adopted within the jail premises iso as to reform the offenders, there was
negligible improvement in the commission of crime. The crime, instead of
declining, had increased and, today, it has assumed dangerous propor-
tions. While one person is reformed and moves out of jail, another offence
is born. [1052-D]
D
Phul Singh v. State of Haryana, [1978] 4 SCC 413; State of Kamataka
v. Krishnappa, JT (2000) 3 SC 5l6 and State of Rajasthan v. Noore K~an, JT
(2000) 3 SC 643, referred to.

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.
E 443 of 2000.

From the Judgment and Order dated 24.1.97 of the Kamataka High
Court in Crl.A. No. 852 of 1994.

F Seeraj Bagga, (A.C.) for the Appellant

Sanjay R. Hegde for the Respondent.

The Judgment of the Court was delivered by

G
S. SAGHIR AHMAD, J. Leave granted. The appellant was found
guilty of the offence under Section 376 IPC and was sentenced to 10 years'
rigorous imprisonment and to pay a fine of Rupees one thousand, in default
of which he was to undergo RI for another three months, by the Addi.
Sessions Judge, Tumkur, by her judgment dated September 30, 1994. This
H has been upheld by the High Court by the impugned judgment dated January
T.K. GOPAL v. STATE [S. SAGHIR AHMAD, J.] 1043
24, 1997. The appellant is in jail and it is from the jail that he has filed the A
present appeal. Mr. Seeraj Bagga has appeared as counsel for the appellant
and it was in his presence that the order dated 10th September, 1999 was
passed by this Court, which reads as under :

"Delay condoned. The victim of rape in this case is a child of one
and half year. The petitioner has been convicted under Section 376 B
IPC and sentenced to ten years' rigorous imprisonment. Section 376
IPC provides that on the offence of rape being established, the Court
shall sentence the accused with rigorous imprisonment for a term not
less than ten years, but "which may be for life" and shall also be liable
to fine. TI1e proviso to sub-section (2), however, allows the Court to c
impose a sentence of imprisomnent of either description for, a term
which may be less than ten years.

Having regard to the facts of this case, especially the age of the victim,
we issue notice to the petitioner to show cause why the sentence of
ten years' rigorous imprisonment should not be enhanced to life D
imprisonment. The notice shall be returnable within six weeks."

Mr. Seeraj Bagga has argued the case with full vehemence at his
command and has also filed written submissions in which 'be has set out the
extenuating circumstances on the basis of which he .has prayed that the
sentence may not be enhanced to life imp1isonment. E

The victim in the instant case is an infant child, Yashoda of the tender
age of one and half year. Her mother, Uma (PWl) lived with her husband
in a rented house at Konehalli village with her children, a son aged about
four years and the infant daughter, Yashoda. TI1e appellant, at that time, was
F
a Mistry working in that village. Uma was working as a maid-servant in the
house of Gowramma (CW2). She also worked as a mason-labour under the
appellant. Her husband worked as a Waterman in the Water Supply Depart-
ment. The case of the prosecution is that the appellant, as a Mistry, used to
provide ration to Uma (PWl) who used to cook food for the appellant and
his colleagues, including CW7 Raja, CW8 Gandhi as also another person, G
Murthy. The appellant and his associates used to go to the house of Uma for
lunch between 1.30 PM to 3.00 PM. On 22nd June, 1991, at about 3 P.M.,
appellant came to the house of Uma, but did not express any desire to have
his meal. The appellant, on the contra1y, indicated to her that he would take
rest for a while. Her children were sleeping in the house and Uma, while H
1044 SUPREME COURT REPORTS [2000] 3 S.C.R.
A allowing the appellant to take rest, went to the neighbour's house to grind
rice for preparing 'ldlis' for the next day. She returned to her house at about
4.45 PM and was shocked to see the appellant lying over her daughter,
Yashoda, who was lying below his private parts. She rushed towards the
appellant and pushed him aside. She found her daughter bleeding from the
private parts and also noticed bleeding near her lips. She cried for help
B
whereupon the appellant ran away. The child was taken to Arasikere hospital
where the doctors intimated the police and on the police reaching the hospital,
the complainant narrated the whole incident whereupon a case was registered
against the appellant under Section 376 IPC. The case was investigated and
a charge sheet was subsequently submitted against the appellant, who was
c tried for the offence under Section 376 IPC and ultimately convicted and
sentenced to ten years' RI. The appeal filed by him was dismissed by the High
Court. The trial court as also the High Comt have recorded concurrent
findings of fact that the appellant committed rape on a child of one and half
year. These findings are based on the evidence brought on record. The
D medical report as also the statement of the complainant clearly establish the
commission of the offence by the appellant.

· \aving regard to the facts of this case, the question that arises now is
whether the Addi. District Judge was justified in awarding a sentence of 10
years' RI to the appellant or he should have been awarded the life impris-
E onment, which is the maximum sentence prescribed under the IPC. Section
376 (2) IPC provides, inter alia, as under :

"376. Punishment for rape _

(2) Whoever, _
F

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

shall be punished with rigorous imprisonment for a term which shall
G
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
H either description for a term of less than ten years."
T.K. GOPAL v. STATE [S. SAGHIR AHMAD, J.] 1045

... y A perusal of the above provision would indicate that where the victim A
is a woman of less than 12 years of age, the minimum sentence that can be
awarded to the accused is ten years, but it may also extend to life impris-
onment apart from a fine which may also be imposed upon him. The proviso
to this Section, however, gives a discretion to the court to award a sentence
of less than 10 years for adequate and special reasons which have to be
B
mentioned in the judgment.

Since the victim in the instant case was an infant child of one and half
year, the trial court as also the High Court both were right in awarding a
sentence of 10 years to the appellant. That was wholly in consonance with
the provisions of Section 376(2) IPC. The question, however, is that if the c
law gave the comt the discretion to award even life imprisonment for the
offence of rape under Section 376(2) IPC, why was that discretion not
exercised by the trial court or the High Court in the instant case where the
victim of rape was an infant child. The trial court, while awarding ten years'
RI to the appellant has observed as under :
D
"2. In view of the submissions made before me, though I have to agree
with the submission of the learned counsel for the accused that there
is reformation in the mind of the accused as he is in custody as
undertrial prisoner for more than an year and there are dependents
depending upon him, as the offence committed by him is of such a E
grievous nature that leniency with regard to the awarding of punish-
ment cannot be exercised and also as the victim of the offence was
hardly one and half years old at the time of commission of offence
without having the capacity of self defence and the victim for no fault
of her has been made to suffer a black mark of the incident throughout
F
her life who know even at the cost of her future comfortable living.
In a decision reported in 1987 Crl.L.J. 374 (Gujarat) in the very
opening of the Judgment, Their Lordships have observed that "Hu-
man weakness or wickedness; either of the two or both of them
together may be the cause of sexual offences. If the offence is on
account of wickedness, the accused naturally deserv~no sympathy." G
In this case, the fact of the accused could only be attributed to
) wickedness. As such, the accused deserves no sympathy at the hands
of this Court. Such acts should be put down with a strong hand and
a detelTent punishment should generally be awarded, In a decision
reported in 1994 Crl.L.J. 1752 (Bombay) in a similar case, where the H
A
1046 SUPREME COURT REPORTS [2000) 3 S.C.R.
victim was hardly aged 7 years, Their Lordships while awarding
sentence have observed as hereunder :
~ ...
' .... Our attention was invited to the provisions contained in Sec-
tion 376(2) of the Indian Penal Code, which made the child rape
punishablf1 under clause (t) thereof, was made punishable with
B rigorous imprisonment for a te1m which shall not be less than I 0
years, but which may be for life and shall also be the liability to
fine. Thus, when the legislature itself has indicated the minimum ~
limit of the leniency that could be shown in such cases, it would
not be ju:;tifiable to show more leniency than what is deserved in
c a case of the present type, on the ground that the revision-peti-
ti oner was a young man.'

3. In the circumstances, in view of the above decision and taking into
consideratio~ the nature and gravity of offence committed by the
accused and the tender age of the victim, I am not inclined to show
D any leniency in awarding punishment to the accused."

The High Court, while upholding the findings of fact recorded by the
trial court did not advert itself to the question of enhancement of sentence
as, perhaps in its opinion, the sentence of ten years' RI was sufficient for the
~
offence committed by the appellant.
E ~
Mr. Seeraj Bagga, Advocate, appearing as amicus curiae, in this case
has in his written statement pointed out the following extenuating circum-
stances on the basis of which it is prayed that the sentence may not be
•
enhanced :
F "Reformation ofthe petitioner

5. That the petitioner is in judicial custody from the date of his arrest
after 22.6.1991 and has been undergoing the sentence since then. That
there has been a reformation in the mind of the accused since' he is
in custody. In this regard, the observation of 'the Trial Court is
G
reproduced below :

"Page 38, Para 2. In view of the submissions made before me, k
though I have to agree with the submission of the learned counsel
for the accused that there is reformation in the mind of
H the accused as he is in custody as undertrial prisoner for more
T.K. GOPAL v. STATE [S. SAGHIR AHMAD, J.] 1047
than a year." A
')
'r
It is respectfully submitted that this observation was recorded by the
~
Trial Coutt on 30.9.1994, i.e. after about 3 years from the date of
'
incident and it is very likely that after such a long period in the
judicial custody, after having pondered over the whole matter, self
realisation and introspection, the reformation of the petitioner cannot B
be denied as it is well known that now - a days religious discourses,
meditation and other reformatory programmes are undertaken for the
benefit of the prisoners confined in jails. Thus, in this view of the
matter, it is respectfully submitted that the Hon'ble Court may take
a sympathetic and lenient view of the matter and discharge the Notice c
of enhancement of sentence.

Mitigating circumstances

6. That it is respectfully submitted that in view of the following
mitigating circumstances, the Hon'ble Court may take a lenient view D
of the matter as the petitioner is the sole bread earner of his family,
which includes besides his wife, his two daughters aged about 16 and.
10 years respectively. There is no other source of help to the

,. petitioner's family and the wife of the petitioner is with a great
difficulty running the family by doing labour work. E
That this Hon'ble Court in the case reported as (1983) 3 SCC
217 entitl~d Bharwada Bhognibhai Hi1jibhai v. State of Gujarat
reduced the sentence awarded in view of the special circumstances
which existed in favour of tl1e appellant therein. It may be stated
that in that case, the conviction under Section 376 read with Sections F
511, 354 and 342 IPC was upheld by the Hon'ble Court but the
sentence was reduced in view of the special circumstances which
were as under :-

(a) The appellant lost his job in view of the conviction recorded.
G
(b) The incident occurred some 7 years back from the date of the
J decision of the Appeal by this Hon'ble Court.

(c) A long time had elapsed after the dimissal of the appeal by the
High Court. H
1048 SUPREME COURT REPORTS [2000) 3 S.C.R.
A (d) Appellant was to be sent back to the jail after six and half years.

(e) The appellant must have suffered great humiliation in the
society.

(f) The prospects of getting a suitable match for appellant's own
B daughter had perhaps been marred in view of the stigma in the
wake of the finding of guilt recorded in the context of the
offence.

The Hon'ble Court taking a cumulative effect of all these special
circumstances, reduced the sentence for an offence under Section-376
c read with Section 511 IPC from two and a half years RI to 15 months
RI.

That on behalf of the petitioner, it is respectfully submitted that
even though the offence and the conviction recorded in the above
mentioned case is different from that in the present case but the
D similar special mitigating circumstances also arise in the present case
which should be taken into consideration by the Hon'ble Court at
least for the purpose of discharging the Notice of enhancement of
sentence which the Hon'ble Court has issued to the petitioner as in
the present case, it is quite evident that :-
E
(a) That as a result of the arrest and conviction of the petitioner, who
was the sole bread earner and was maintaining the family, his two
daughters and wife are suffering and are without any help.

(b) That the incident occurred around 9 years back and the record of
F the case reveals that the petitioner is in custody since the date of
incident.

(c) That the petitioner and his family has suffered great humiliation
in the society.

G (d) That the petitioner has two daughters aged about 16 and 10 years
and the prospects of getting a suitable match for them have been
marred to a great extent in the wake of this conviction and sentence
and the fact that the petitioner is in custody for the last about 9 years.

(e) That the sentence of 10 years RI awarded to the petitioner would
H be over within a year or so and if the Hon'ble Court at this stage
T.K. GOPAL v. STATE [S. SAGHIR AHMAD, J.] 1049
. ~)
enhances the sentence to life imprisonment then the family of the A
petitioner and particularly his two daughters and their future would
be ruined for no fault of theirs.

That in view of the above special mitigating circumstances
which exists in favour of the petitioner and his family, it is respect-
fully prayed that the Hon'ble Court may take a sympathetic view of B
the matter and discharge/withdraw the notice of enhancement of
sentence issued to the petitioner."

Mr. Seeraj Bagga has also pointed out that the State has not filed any
appeal for the enhancement of the sentence. c
Crime can be defined as an act that subjects the doer to legal punish-
ment. It may also be defined as the commission of an act specifically
forbidden by law; it may be an offence against morality or social order. In
State of Punjab v. Gurmit Singh & Ors., [1996] 2 SCC 384, Anand, J. (as
His Lordship then was), observed in Para 21 of the report as under : D

"Of late, crime against women in general and rape in particular is
on the increase. It is an irony that while we are celebrating woman's
rights in all spheres, we show little or not concern for her honour. It
is a sad reflection on the attitude of indifference of the society towards E
the violation of human dignity of the victims of sex crimes. We must
remember that a rapist Iiot only violates the victim's privacy and
personal integrity, but inevitably causes serious psychological as well
as physical harm in the process. Rape is not merely a physical assault
_ it is often destructive of the whole personality of the victim. A
murderer destroys the physical body of his victim, a rapist degrades F
the very soul of the helpless female. The courts, therefore, shoulder
a great responsibility while trying an accused on charges of rape.
They must deal with such cases with utmost sensitivity."

In Bodhisattwa Gautam V. Subhra Chakraborty (Ms.), [1996] 1 sec G
490, one of us (S.Saghir Ahmad, J.), while delivering the Judgment, observed
as under :

"9. Unfortunately, a woman, in our country, belongs to a class or
group of society who are in a disadvantaged position on account of
several social barriers and impediments and have, therefore, been the H
1050 SUPREME COURT REPORTS [2000] 3 S.C.R.
~
A victim of tyranny at the hands of men with whom they, fortunately, "1' I

under the Constitution enjoy equal rights. Women also have _the right
to life and liberty; they also have the right to be respected and treated
as equal citizens. Their honour and dignity cannot be touched or
violated. They also have the right to lead an honourable and peaceful
...
life. Women, in them, have many personalities combined. They are
B
mother, daughter, sister and wife and not playthings for centre spreads
in various magazines, periodicals or newspapers nor can they be
exploited for obscene purposes. They must have the liberty, the
freedom and, of course, independence to live the roles assigned to
them by Nature so that the society may flourish as they alone have
c the talents and capacity to shape destiny and character of men
anywhere and in every part of the world.

10. Rape is thus not only a crime against the person of a women
(victim), it is a crime against the entire society. It destroys the entire
psychology of a woman and pushes her into deep emotional crisis.
D It is only by her sheer will-power that she rehabilitates herself in the
society which, on coming to know of the rape, looks down upon her
in derision and contempt. Rape is, therefore, the most hated crime.
It is a crime against basic human rights and is also violative of the
,
victim's most cherished of the Fundamental Rights, namely, the Right '
-~
E to Life contained in Aiticle 21. To many feminists and psychiatrists,
rape is less a sexual offence th9.n an act of aggression aimed at
degrading aiid humiliating women. The rape laws do not unfortu-
nately, take care of the social aspect of the matter and are inept in
many respects."

F In the matter of punishment for offence committed by a person, there
are many approaches to the problem. On the commission of crime, three types
of reactions may generate; the traditional reaction of universal nature which
is te1med as punitive approach. It regards the criminal as a notoriously
dangerous person who must· be inflicted severe punishment to protect the
G society from his criminal assaults. The other approach is the therapeutic
approach. It regards the criminal as a sick person requiring treatment, while
the third is the preventive approach which seeks to eliminate those conditions
from the society which were responsible for crime causation.

Under the punitive approach, the rationalisation of punishment is based
H on retributive and utalitarian theories. Deterrent theory which is also part of
T.K. GOPAL v. STATE [S. SAGHIR AHMAD, J.] 1051
the punitive approach proceeds on the basis that the punishment should act A
as a deterrent not only to the offender but also to others in the community.

The therapeutic approach aims at curing the criminal tendencies which
were the product of a diseased psychology. There may be many factors,
including the family problems. We are not concerned with those factors as
therapeutic approach has since been treated as an effective method of B
punishment which not only satisfies the requirements of law that a criminal
should be punished and the punishment prescribed must be meted out to him,
but also reforms the criminal through various processes, the most fundamental
of which is that in spite of having committed a crime, may be a heinous crime,
he should be treated as a human being entitled to all the basic human rights, c
human dignity and human sympathy. It was under this theory that this Court
in a stream of decisions, projected the need for prison reforms, the need to
acknowledge the vital fact that the prisoner, after being lodged in jail, does
not lose his fundamental rights or basic human rights and that he must be
treated with compassion and sympathy (See : Sunil Batra (I) v. Delhi
Administration, AIR (1978) SC 1675 = [1978] 4 SCC 494 = [1979] (1) SCR D
392; Sunil Batra (II) v. Delhi Administration, AIR (1980) SC 1579 = [1980]
3 SCC 488 = [1980] 2 SCR 557; Charles Shobraj v. Superintendent, Central
Jail, Ti.har, AIR (1978) SC 1514 and Francis Coralie Mullin v. The
=
Administrator, Union Territory of Delhi, [1981] 1 SCC 608 AIR (1981)
SC 746 = [1981] 2 SCR 516 etc.). E
Sexual offences, however, constitute an altogether different kind of
crime which is the result of a perverse mind. The perversity may result in
homosexuality or in the commission of rape. Those who commit rape are
psychologically sadistic persons exhibiting this tendency in the rape forcibly
committed by them. F
In some States in the USA, therefore, emphasis was laid on
psychotherapic treatement of the offender while he was under detention. For
that purpose, Psychopath Sexual Offenders Laws have been enacted in certain
jurisdictions in USA. These laws treat the sex offenders as neurotic persons
and psychotherapic treatment is given to them during the period of their
G
detention which may, in some cases, be an indefinite period. in the sense that
they would not be released till they are cured. But the provision for indefrnite
detention even beyond the maximum period of imprisonment for that offence
was seriously objected to by a group of lawyers and, therefore, in many of
the States, this provision was dropped from the Statute. H
1052 SUPREME COURT REPORTS [2000] 3 S.C.R.
A Here, in India, statutory provision for psychotherapic treatment during ~
'

the period of incarceration in the jail is not available, but reformist activities
are systematically held at many places with tlie intention of treating the
offenders psychologically so that he may not repeat the offence in future and
may feel repentant of having committed a dastardly crime.

B The question of sentence in such cases was considered by Krishna Iyer,
J. in Phul Singh V. State of Hmyana (1979] 4 sec 413, in which he observed
that sentencing efficacy in cases of lust-loaded criminality cannot be simplis-
tically assumed by award of long incarceration, for, often that remedy
aggravates the malady. He further observed that, a hyper-sexed homo sapien
c cannot be rehabilitated by humiliating or harsh treatment. In that case it was
found that the appellant was a young man of 22 years with no criminal
antecedents save the offence of rape committed by him. The learned Judge
thought that given correctional courses through meditational therapy and
other measures, his erotic aberrations may wither away, particularly as the
appellant had a reasonable prospect of shaping into a balanced person. But,
D this theo1y was not followed in later decisions as it was found that in spite
of devices having been employed and adopted within the jail premises so as
to reform the offenders, there was negligible improvement in the commission
of crime. The crime, instead of declining, had increased and, today, it has
assumed dangerous proportions. While one person is reformed and moves out
~
.....
E of jail, another offender is born. Consequently, in two recent decisions,
relating to the offence of rape, one rendered by the present Chief Justice of
India and the other t/y Brother Lahoti, the sentence was enhanced in State
of Karnataka v. Krishnappa, IT (2000) 3 SC 516, while in the other case,
namely, State of Rajasthan v. Noore Khan, .IT 2000 (3) SC 643, ilie order
of acquittal pas~ed by the High Court was set aside and substituted by an
F
order of conviction.

However, having regard to the extenuating circumstances pointed out
by Mr. Seeraj Bagga in the instant case, specially the fact that ilie appellant's
two daughte~s have come of age and· are to be married, we feel that the
G present period of incarceration of the appellant in jail is enough and he should
not be made to further suffer the consequences of his bestiality. We therefore,
while dismissing the appeal, recall the notice issued to the appellant for
enhancement of his sentence.

K.K.T. · Appeal dismissed.
H