2. SENTENCING : BASED ON THEORIES OF
PUNISHMENT
PUNITIVE APPROACH : In this approach, criminal is regarded as a notoriously
dangerous person who must be inflicted severe punishment to protect the society from
criminal assaults. There has been a huge public outcry for strict conviction of sex offenders
in response to “Nirbhaya Case” . Justice Verma Committee was set up which
recommended various reforms in penal provisions under sexual crimes.
THERAPEUTIC APPROACH : It regards the criminal as a sick person requiring
treatment. Therapeutic approach has been treated as an effective method of punishment
which not only satisfies the requirement of law that the criminal should be punished but
also reforms the criminal through various processes. The apex court delivered many
judgments under this theory such as : Sunil Batra v. Delhi Administration AIR 1978
SC 1675 , Charles Shobharaj v. Central Jail, Tihar AIR 1981 SC 746 , etc.
PREVENTIVE APPROACH : It seeks to eliminate those conditions from society which
were responsible for the crime causation. A no. of countries including England and Wales
and many other European nations use this approach for dealing with violent sexual
offenders.
Ref : Fulsing v. State of Haryana (1979) 4 SCC 413
3. PRINCIPLES OF SENTENCING
Punishment is an authorization by the Legislature of employment of criminal sanctions
while sentencing which means that sentencing is application by the judiciary of a criminal
sanction authorized. Magistrate should exercise wide discretion while sentencing.
While considering the relevant substantive and procedural aspects of sentencing it is
necessary to see as to how a judge or magistrate is expected to apply this provision.
Section 235 (2) Crpc mandates that accused must be heard on the question of sentence.
In case of question of liability to enhance punishment in consequence of previous
conviction Section 236 Cr.p.c comes into operation for session trial and S. 248(3) in case of
trial before magistrate.
Section 354 (3) provides that when the conviction is for offence punishable with death, or
in the alternative, with imprisonment for life or imprisonment for a term of ten years, the
judgment shall state the reasons for the sentence awarded and in case of sentence of
death special reasons to be recorded.
While sentencing, Magistrate should also keep in mind that jail term should normally be
enough to wipe out the stain of guilt. It is believed that soul of a convict becomes pure
once he undergoes a sentence.
6. CRIMINAL LAW (AMENDMENT) ACT 2013
Following Amendments related to sexual offences are made in criminal
law:
Section 354 A- Sexual Harassment-Rigorous Imprisonment upto 3
years or with fine or with both.
Section 354 B- Act with intent to disrobe a woman- Imprisonment not
less than 3 years but which may extend to 7 years and with fine.
Section 354 C- In case of first conviction, Imprisonment not less than
1 year but which may extend upto 3 years and also be liable to fine. On
subsequent conviction, imprisonment for a term not less than 3 years
but which may extend to 7 years.
Section 376 – Rape cases. Earlier it was minimum 7 years and
Imprisonment of life but now it has been made to minimum
imprisonment of 10 years.
7. PROVISIONS UNDER POCSO ACT
2012
Section 3- Penetrative Sexual Assault: Insertion, penetration, manipulation
with the penis, any body part, or any object into the vagina, mouth, urethra or
anus of a child.
Section 5-Aggravated Penetrative Sexual Assault: ‘person in authority’
and/or if additional harm and injury is committed.
Section 7-Sexual Assault: touching a child with sexual intent (non
penetrative). (Touching vagina, penis, anus, breast or any body part of a child)
Section 9-Aggravated Sexual Assault: ‘person in authority’ and/or if
additional harm and injury is committed.
Section 11-Sexual Harassment: Word, sound, gesture, exhibiting any body
part, showing pornography with sexual intent. Making a child exhibit any body
part, stalking the child, threatening the use of pornographic media
8. COMPENSATORY PROVISIONS FOR
VICTIMS
The Code of Criminal Procedure ( CrPC ) was amended in 2008 and a new Section 357A
was introduced. The “Victim Compensation Scheme” was enforced for victims or her
dependents who have suffered loss or injury as a result of crime.
Highlights of “ Delhi Victim Compensation Scheme 2015” are as follows :-
There shall be a “ Victim Compensation Fund” from which the amount of
compensation as decided by the Delhi State Legal Services Authority or District Legal
Services Authority shall be paid to the victims or their dependents who require
rehabilitation.
Certain factors are to be considered by DLSA while awarding Compensation :-
A) Gravity of offence
B) Relationship of Victim with offender
C) Whether victim became pregnant as a result of offence or not
D)Loss of educational opportunity
E) Any disability suffered by victim as a result of the offence
F) Financial condition of the victim
G) Any other factor which DLSA may consider just and equitable.
9. LANDMARK JUDGMENTS ON
COMPENSATION
In the case Ankush Shivaji Gaikwad v. State of Maharastra (2013) 6 SCC 770
apex court laid down following parameters of awarding compensation:-
1) Application of mind by the courts is mandatory in awarding compensation to victims.
2) Court must record reasons for awarding or refusing compensation.
3)Section 357 CrPC confers a duty on Court to apply its mind to the question of
compensation in every criminal case.
4)For awarding compensation, Court ought to have necessary material which it would
evaluate to arrive at a fair and reasonable conclusion.
