An apex court bench of Chief Justice P. Sathasivam, Justice Ranjana Prakash Desai and Justice Ranjan Gogoi ruled that such compromises, if entered into, are per se illegal and the provision for lesser punishment for heinous offences in exceptional cases cannot be treated in a casual or a cavalier manner by the trial court.
The apex court expressed grave concern that in recent times, despite a spurt in rape cases, there has been an increasing tendency amongst trial courts to permit compromises of such offences on the ground that a settlement has been entered into between the rapist and the victim.
The court described such an approach by the some trial and high courts as "insensitive" holding that the punishment should always be proportionate and commensurate to the gravity of the offence.
Chief Justice Sathasivam, who authored the judgment, said: "Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute."
"This is yet another opportunity to inform the subordinate courts and the high courts that despite stringent provisions for rape under Section 376 IPC, many courts in the past have taken a softer view while awarding sentence for such a heinous crime", the court said
The judges said the apex court in the past had noted that "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 court described this trend insensitive and said: "The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases."
"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," the judgment said.
The court said that "a compromise entered into between the parties cannot be construed as a leading factor based on which lesser punishment can be awarded. Rape is a non-compoundable offence and it is an offence against the 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 in compromising the case was genuine, the court said: "There is every chance that she might have been pressured by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise."
"In fact, accepting this proposition will put an additional burden on the victim," the court said, saying as a consequence the accused "may use all his influence to put pressure on 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 judgment said.
The apex court judgment came as it dismissed an appeal by two gang rapists of a the victim in village Nangal Durgu in Haryana.
The two convicts had sought a lenient view of their heinous crime on the plea that the victim was living happily with her husband and four children.
The two had appealed against the judgment of the Punjab and Haryana High Court which had dismissed their plea.
The victim had herself in 2011 filed an affidavit saying that she did not want to pursue the matter further as she had forgiven the accused.
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