A compromise entered into between a rape victim and the accused/convict not to prosecute the complaint further cannot be a leading factor in lesser punishment, the Supreme Court held on Tuesday.

“Rape is a non-compoundable offence and it is an offence against 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…is a genuine consent, there is every chance that she might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise,” said a Bench of Chief Justice P. Sathasivam and Justices Ranjana Desai and Ranjan Gogoi.

Additional burden

Writing the judgment, Justice Sathasivam said: “In fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise 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 power under the proviso of Section 376(2) of IPC.”

The Bench pointed out that that the legislature through the Criminal Law (Amendment) Act, 2013 deleted this proviso in the wake of increasing crimes against women.

“This court has in the past noticed that [a] few subordinate and High Courts have reduced the sentence of the accused to the 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.”

Punishment should always be commensurate with the gravity of the offence, the Bench said. “Religion, race, caste, economic or social status of the accused or the victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or [the fact that] the victim is married and settled in life cannot be construed as a special factor 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 interpretation.”

In the instant appeals, Shimbu and Balu Ram were awarded 10-year rigorous imprisonment by a trial court in Haryana for gang-raping a minor girl in a village on December 28 and 29, 1995. The Punjab and Haryana High Court confirmed the conviction and sentence and even as they came out on bail, the two filed the present appeal. They filed an affidavit from the victim stating she was now married and leading a peaceful life with four children, and with a view to maintaining harmony in the village she had settled the matter with the accused and she did not want to prosecute the matter further. She said she had no objection to their sentence being reduced to the period already undergone.

The Bench rejected the plea for reduction of sentence based on the compromise affidavit and dismissed the appeals.

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