Judgment Case ID: 4073

Judgment:
N: Criminal Appeal No. 506 of 1979. Appeal by special leave from the Judgment and Order dated 3 5 79 of the Punjab & Haryana High Court in Crl. A. No. 166/76. Harbans Singh Marwah for the Appellant. R. N. Sachthey for the Respondent. The Judgment of the Court was delivered by KRISHNA IYER	 J. A philanderer of 22	 appellant Phul Singh	 overpowered by sex stress in excess	 hoisted himself into his cousin 's house next door	 and in broad day light	 overpowered the temptingly lonely prosecutrix of twenty four	 Pushpa	 raped her in hurried heat and made an urgent exist having fulfilled his erotic sortie. The screaming victim complained to her mother working in the field; thereafter a first information	 prosecution and conviction ensued	 a sentence of 4 years R.I. was imposed by the Sessions Court	 and the High Court affirmed it in appeal. The broad facts bearing on the instant act of carnal assault look too probable for pettifogging legalistics about poor corroboration	 consent and false implication to devalue their credibility. The culpability is beyond doubt and we uphold the conviction. Ordinarily	 rape is violation	 with violence	 of the private person of a woman an outrage by all canons. In our conditions of escalating sex brutality a four year term for rape is not excessive. But here	 the offender is in his early twenties and signs of repentance are seen. The victim and her parents have forgiven the molester who is a first cousin	 says counsel. An affidavit from the father in law of the woman has been filed and	 if needed	 counsel is ready to produce the victim 's statement that she has forgiven the criminal. While it is possible that the accused may procure such condonation from unwilling victim	 the fact remains that the two families being close cousins are ready to take a lenient view of the situation. Of course	 this does not bind the Court in any manner. Therefore	 taking an overall view of the familial and the criminal factors involved	 we reduce the imprisonment from 4 years to 2 years R.I. We must	 however	 direct our attention in a different penological direction. For sentencing efficacy in cases of lust loaded criminality cannot be simplistically assumed by award of long incarceration	 for	 591 otten that remedy aggravates the malady. Punitive therapeutics must be more enlightened than the blind strategy of prison severity where all that happens is sex starvation	 brutalisation	 criminal companionship	 versatile vices through bio environmental pollution	 dehumanised cell drill under 'zoological ' conditions and emergence	 at the time of release	 of an embittered enemy of society and its values with an indelible stigma as convict stamped on him a potentially good person 'successfully ' processed into a hardened delinquent	 thanks to the penal illiteracy of the Prison System. The Court must restore the man. A hyper sexed homo sapiens cannot be habilitated by humiliating or harsh treatment	 but that is precisely the perversion of unreformed Jail Justice which some criminologists have described as the crime of punishment. This Court has held	 in Sunil Batra 's case and later that	 constitutionally viewed	 punitive deprivation of personal freedom must be goal oriented and humanely restorative	 apart from being deterrent. The insulated years behind the insensitive bars must possess a hospital setting if correction is a social purpose	 as Gandhiji often insisted. In prison treatment must	 therefore	 be geared to psychic healing	 release of stresses	 restoration of self respect and cultural normalisation	 apart from training to adapt oneself to the life outside. The functional failure of our pachydermic prison projects	 exacerbated by its tension and trauma on the one hand and the reverse ethos inside on the other	 deserves judicial cognizance. The current efforts of Governments	 Central and State	 to reform jail regimen	 we hope	 will give a better deal to the caged community. For these reasons	 in this case	 we deem it desirable to superadd to the sentence of imprisonment a few directives to ensure that the carceral period reforms the convict. The appellant is not a 'habitual ' and has no vicious antecedents except this fugitive	 randy molestation which is bad enough in a society where women are often socially weak and sexually victimised. It may be marginally extenuatory to mention that modern Indian conditions are drifting into societal permissiveness on the carnal front promoting proneness to pornos in life	 what wit libidinous 'brahmacharis '	 womanising public men	 lascivious dating and mating by unwed students	 sex explosion in celluloid and book stalls and corrupt morals reaching a new 'high ' in high places. The unconvicted deviants in society are demoralisingly large and the State has	 as yet	 no convincing national policy on female flesh and sex sanity. We hope	 at this belated hour	 the Central Government will defend Indian Womanhood by stamping out voluptuous meat markets by merciless criminal action. 592 Isolated prosecutions and annual suppression rhetoric will stultify the law where the vice is widespread and the larger felons are often let loose. This reflection apart	 we must	 as part of the sentencing package	 design a curative course for this prisoner to rid him of his aphrodisiac overflow and restore him into safe citizenship. He is a youth barely 22 with no criminal antecedents save this offence. He has a young wife and a farm to look after. Given correctional courses through meditational therapy and other measures	 his erotic aberration may wither away. A man like the appellant has a reasonable prospect of shaping into a balanced person	 given propitious social environs	 curative and congenial work and techniques of internal stress release or of reformatory self expression. In this background	 we regard a four year term of rigorous imprisonment more hardening than habilitative	 even though we deplore the sex violence the young appellant has inflicted on his cousin 's wife snatching a tricky opportunity. Even so	 the incriminating company of lifers and others for long may be counter productive	 and in this perspective	 we blend deterrence with correction and reduce the sentence to rigorous imprisonment for two years. We wish to emphasise that the special circumstances of this case constrain us to relent a little on principle because the restorative approach to sentencing has been jettisoned by the courts below. The task is not done by a negative reduction in the prison term. What is more important is a set of positive prescriptions which will ensure his turning a new leaf. One major method in securing this goal is to keep alive the family tie of the person in prison so that he may not deteriorate into a non person. Within limits of the Prison Act and Rules thereunder	 the State Government or the Inspector General of Prisons will ensure that on parole	 furlough or orders	 the young appellant turns a new leaf of normal life. N.K.A. Appeal allowed in part.

Summary:
The appellant who was 22 committed rape on the wife of his cousin who was a next door neighbour in broad day light. The Sessions Judge found the appellant guilty of the offence of rape and sentenced him to four years R.I. On appeal	 the High Court affirmed it. It was urged that the appellant was in his early twenties and that there were signs of repentance. The fact remains that the two families being close cousins are ready to take a lenient view of the situation which of course does not bind the court in any manner. Partly accepting the appeal	 the Court ^ HELD: The appellant is not a 'habitual ' and has no vicious antecedents except this fugitive	 randy molestation which is bad enough in a society where women are often socially weak and sexually victimized. It may be marginally extenuatory to mention that modern Indian conditions are drifting into societal permissiveness on the carnal front promoting proneness to pornos in life	 what with libidinous 'brahmacharis '	 womanizing public men	 lascivious dating and mating by unwed students	 sex explosion in celluloid and book stalls and corrupt morals teaching a new 'high ' in high places. [591 F H] The appellant is a youth barely 22 with no criminal antecedents save this offence. He has a young wife and a farm to look after. Given correctional courses through meditational therapy and other measures	 his erotic aberration may wither away. A man like the appellant has a reasonable prospect of shaping into a balanced person	 given propitious social environs	 curative and congenial work and techniques of internal stress release or of reformatory self expression. In this background the court regarded a four year term of rigorous imprisonment more hardening than habilitative	 even though the court deplored the sex violence the young appellant had inflicted on his cousin 's wife snatching a tricky opportunity. [592 B D] A hyper sexed homo sapiens cannot be habilitated by humiliating or harsh treatment. In prison treatment must	 therefore	 be geared to psychic healing	 release of stresses	 restoration of self respect and cultural normalisation	 apart from training to adapt oneself to the life outside. The functional failure of our pachydermic prison projects	 exacerbated by its tension and trauma on the one hand and the reverse ethos inside on the other	 deserves judicial cognisance. [591 A	 D E] The current efforts of Governments	 Central and State	 to reform jail regimen	 it was hoped	 will give a better deal to the caged community. For these reasons	 in this case	 it is desirable to superadd to the sentence of imprisonment a few directives to ensure that the carceral period reforms the convict. A set of positive prescriptions will ensure appellant turning a new leaf. One major method in securing this goal is to keep alive the family ties of the person in 590 prison so that the appellant may not deteriorate into a non person. Within the limits of the Prison Act and Rules thereunder	 the State Government or the Inspector General of Prisons will ensure that on parole	 furlough or orders	 the young appellant turns a new leaf of normal life. [591 E F	 592 F]