J. Venkatesan

The Supreme Court has asked the Centre to amend the Indian Penal Code to provide for life imprisonment till death without any remission for heinous offences like child rape and murder which shock the collective conscience of society.“Any murder would cause a shock to society but all murders may not cause revulsion in society. Certain murders shock the collective conscience of the court and community. Heinous rape of a minor followed by murder is one such instance of a crime which shocks and repulses the collective conscience of the community and the court… we are of the view that such crimes, which shock the collective conscience of society by creating extreme revulsion in the minds of the people, are to be treated as the rarest of rare category,” said a Bench of Justices C.K. Prasad and Kurian Joseph in its judgment in the case of rape of a child in Rajasthan.

Writing the judgment, Justice Joseph said: “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 its power for remission or commutation. Neither Section 432 nor 433 of the 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 its power under Section 432 or 433 of the Cr.PC. Wherever the IPC 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 a mockery of sentencing.

The Bench said: “We are of the view that it will do well in case a proper amendment under Section 53 [relating to punishments] of the IPC is provided, introducing one more category of punishment — life imprisonment without commutation or remission.” It noted that Justice V. S. Malimath, in his report on “Reforms of the Criminal Justice System” submitted in 2003, had made such a suggestion but so far no serious steps had been taken.

In the instant case, the State was aggrieved over the Rajasthan High Court commuting to life imprisonment the death sentence, awarded by a sessions court, to Jamil Khan, who brutally raped the girl, who was under five, on December 23, 2002 and thereafter murdered her. He packed the body in a sack, put in a bag and abandoned it in a train.

The State, in its appeal before the Supreme Court, sought the death penalty for Khan.

The Bench said though it was a planned crime, nine years had passed since his death sentence was substituted with life imprisonment. “We are reluctantly of the view that it would not be just and proper to alter the sentence to death at this stage. [But] in future, in order to avoid such contingencies, cases where enhancement of life sentence to death is sought should be given due priority. Having regard to the facts and circumstances of the present case, we make it clear that in the event of the state invoking its powers of remission, the sentence under Section 376 of IPC [rape] shall not be remitted or commuted before seven years of imprisonment. In other words, in that eventuality, it shall be ensured that the respondent first serves the term of life imprisonment under Section 302 [murder] of the IPC. In case there is any remission after 14 years, then imprisonment for a minimum of seven years under Section 376 shall follow and thereafter three years of rigorous imprisonment under Section 201 [causing disappearance of evidence].”