While deciding the case of rape of a 5 year old girl in Rajasthan, the apex court has requested the Central Government to amend the Indian Penal Code to provide for life imprisonment till death without any remission for heinous offences like rape and murder of children. Considering it amongst one of the most heinous crimes the court said “All murders shock the community; but certain murders shock the conscience of the Court and the community. The distinguishing aspect of the latter category is that there is shock coupled with extreme revulsion”
In the instant case, a 5 year old girl was brutally raped and thereafter murdered by the accused, Jamil Khan. He packed the dead body in a sack and further in a bag, and secretly left it in a train. The sessions court awarded death sentence to the accused under section 302 of IPC and also found him guilty under sections 376 and 201 of IPC. But the High Court declined to confirm the death sentence and awarded life imprisonment under Section 302 of IPC. The conviction and sentence under Sections 376 and 201 of IPC was maintained. The aggrieved state in its appeal to Supreme Court had sought the death penalty for the accused, Jamil Khan.
The bench headed by justice C.K. Prasad and Justice Kurian Joseph observed, “Heinous rape of minors followed by murder is one such instance of a crime which shocks and repulses the collective conscience of the community and the Court. Such crimes arouse extreme revulsion in society. While culling out the rarest of rare cases on the basis of aggravating and mitigating factors, we are of the view that such crimes, which shock the collective conscience of the society by creating extreme revulsion in the minds of the people, are to betreated as the rarest of rare category.”
The bench went on to say, “We are of the view that it will do well in case a proper amendment under Section 53 of IPC is provided, introducing one more category of punishment - life imprisonment without commutation or remission. Dr. Justice V.S. Malimath in the Report on “Committee of Reforms of Criminal Justice System”, submitted in 2003, had made such a suggestion but so far no serious steps have been taken in that regard.”
Justice Kurian Joseph while writing the judgment articulated that, ”Punishment has a penological purpose. Reformation, retribution, prevention, deterrence is some of the major factors in that regard. Parliament is the collective conscience of the people. If it has mandated a minimum sentence for certain offences, the Government being its delegate, cannot interfere with the same in exercise of their power for remission or commutation. Neither Section 432 nor Section 433 of Cr.PC hence contains a non-obstante provision. Therefore, the minimum sentence provided for any offence cannot be and shall not be remitted or commuted by the Government in exercise of their power under Section 432 or 433 of the CrPC. Wherever the Indian Penal Code or such penal statutes have provided for a minimum sentence for any offence, to that extent, the power of remission or commutation has to be read as restricted; otherwise the whole purpose of punishment will be defeated and it will be mockery on sentencing.”
The bench noted that since nine years had passed after substitution of his death sentence by life imprisonment, “We are reluctantly of the view that it would not be just and proper to alter the sentence from life imprisonment to death at this stage. In future, in order to avoid such contingencies cases where enhancement of life sentence to death is sought, should be given due priority”. In the instant case, “Having regard to the facts and circumstances of the present case, we make it clear that in the event of State invoking its powers under Section 432 or 433 of Cr PC, the sentence under Section 376 of IPC shall not be remitted or commuted before seven years of imprisonment. In other words, in that eventuality, it shall be ensured that the respondent will first serve the term of life imprisonment under Section 302 of IPC. In case there is any remission after fourteen years, then imprisonment for a minimum period of seven years under Section 376 of IPC shall follow and thereafter three years of rigorous imprisonment under Section 201 of IPC”.