Supreme Court: In a chilling case where a 21-year-old man was sentenced to death under Sections 302 and to life imprisonment under 376A of IPC for raping and killing his 2.5 years-old niece, the 3-judge bench of Justice UU Lalit*, Indu Malhotra and Krishna Murari, JJ has commuted the punishment to life imprisonment for the offence punishable under Section 302 IPC and to that of rigorous imprisonment for 25 years for the offence punishable under Section 376A IPC. The Court also affirmed the conviction and sentence recorded by the Courts below for the offences punishable under Section 376(1), (2)(f), (i) and (m) of IPC, and under Section 6 of the POCSO Act.
Sentencing under Section 302 IPC
The Court found the Appellant guilty of having committed the offence of culpable homicide amounting to murder under Section 300 IPC Fourthly. In such cases, according to the Court, it is very rare that the death sentence is awarded.
Considering the age of the victim i.e 2.5 years, the Court said that the accused must have known the consequence that his sexual assault on the child would cause death or such bodily injury as was likely to cause her death.
“The evidence on record also depicts an exceptional case where two and half years old girl was subjected to sexual assault. The assault was accompanied by bites on the body of the victim. The rape was of such intensity that there was merging of vaginal and anal orifices of the victim. The age of the victim, the fact that the Appellant was a maternal uncle of the victim and the intensity of the assault make the present case an exceptional one.”
However, it could not be held that the appellant consciously caused any injury with the intent to extinguish the life of the victim. Though all the injuries are attributable to him, his conviction under Section 302 IPC is not under any of the first three clauses of Section 300 IPC.
Sentencing under Section 376A IPC
The case at hand was a peculiar one as the offence was committed just a week after the amended Section 376A was brought into force in the year 2013. Hence, the question before the Court was whether awarding life imprisonment in the present case would mean “the remainder of that person’s natural life or with death” or not.
Two important conclusions were made by the Court:
- The ex-post facto effect given to Section 376A inserted by the Amendment Act would not in any way be inconsistent with sub-Article (1) of Article 20 of the Constitution.
- In view of the fact that Section 376A IPC was brought on the statute book just few days before the commission of the offence, the Appellant does not deserve death penalty or life imprisonment for the remainder of his life for said offence, however, considering the nature and enormity of the offence, the appropriate punishment for the offence under Section 376A IPC must be rigorous imprisonment for a term of 25 years.
To understand what led to this conclusion, let’s first take a look at the legislative developments that took place around the time when the crime was committed:
- On 03.02.2013, the Criminal Law (Amendment) Ordinance, 2013 was promulgated by the President of India which substituted Sections 375, 376 and 376A of IPC;
- The Criminal Law (Amendment) Act, 2013 received the assent of the President and was published on 02.04.2013 but was given retrospective effect from 03.02.2013.
- The offence was committed on 11.02.2013 when the provisions of the Ordinance were in force
Here’s what the coming into force of the Ordinance and subsequently the Amendment Act meant:
- Before 03.02.2013, the offence under Section 375 could be committed against a woman. The Ordinance sought to make the provision gender neutral and this gender-neutral provision remained in force from 03.02.2013 till 02.04.2020. However, the earlier position was restored through the Amendment Act.
- Before 03.02.2013, the sentence for an offence under Section 376(1) could not be less than seven years but the maximum sentence could be life imprisonment; and for an offence under Section 376(2) the minimum sentence could not be less than ten years while the maximum sentence could be imprisonment for life. Section 376A dealt with cases where a man committed non-consensual sexual intercourse with his wife in certain situations.
- As a result of the Ordinance, the sentences for offences under Sections 376(1) and (2) were retained in the same fashion. However, a new provision in the form of Section 376A was incorporated under which, if while committing an offence punishable under sub- section (1) or sub-section (2) of Section 376, a person “inflicts an injury which causes the death” of the victim, the accused could be punished with rigorous imprisonment for a term “which shall not be less than 20 years but which may extend to imprisonment for life, which shall mean the remainder of that person’s natural life or with death”. Thus, for the first time, Death Sentence could be imposed if a fatal injury was caused during the commission of offence under subsection (1) or (2) of Section 376.
- Though the provisions of the Amendment Act restored the original non gender-neutral position vis-à-vis the victim, it made certain changes in sub-section (2) of Section 376. Now, the punishment for the offence could be rigorous imprisonment for not less than ten years which could extend to imprisonment for life, “which shall mean imprisonment for the remainder of that person’s natural life”. It was, thus, statutorily made clear that the imprisonment for life would mean till the last breath of that person’s natural life.
- Similarly, by virtue of the Amendment Act, for the offence under Section 376A, the punishment could not be less than 20 years which may extend to imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.
In the present case, when the crime was committed, the victim was about two and half years of age and the Ordinance which was holding the field. However, the sentence prescribed by Section 376(2) as amended by the Amendment Act, provided that the imprisonment for life “shall mean imprisonment for the remainder of that person’s natural life”. In such a case, the Court was posed with the question that whether such ex-post facto prescription would be consistent with the provisions of sub-Article (1) of Article 20 of the Constitution.”
The Court explained,
“An imposition of life sentence simpliciter does not put any restraints on the power of the executive to grant remission and commutation in exercise of its statutory power, subject of course to Section 433A of the Code. But, a statutory prescription that it “shall mean the remainder of that person’s life” will certainly restrain the executive from exercising any such statutory power and to that extent the concerned provision definitely prescribes a higher punishment ex-post facto. In the process, the protection afforded by Article 20(1) of the Constitution would stand negated.”
It was further held that since Section 376A as amended by the Ordinance being gender neutral so far as victim was concerned, naturally covered cases where a victim was a woman, hence, the ex-post facto effect given to Section 376A by the Amendment Act from the day the Ordinance was promulgated, would not in way be inconsistent with the provisions of sub-Article (1) of Article 20 of the Constitution.
It was, hence, declared that the punishment under Section 376(2) of the IPC in the present case cannot come with stipulation that the life imprisonment “shall mean the remainder of that person’s life”.
[Shatrughna Baban Meshram v. State of Maharashtra, 2020 SCC OnLine SC 901, decided on 02.11.2020]
*Justice UU Lalit has penned this judgment