“It is the experience of the Judge that comes to his aid and the said experience should be used with care, caution, circumspection and courageous prudence.”
– Hon’ble Justice Dipak Misra, Vikram Anantrai Doshi, (2014) 15 SCC 29.
I) Shankar, (2019) 5 SCC 166.
II) Manjit Singh v. The State of Punjab, [Criminal Appeal No. 1090 of 2019].
Hon’ble Justice R. Banumathi has quoted Ishwar Singh, (2008) 15 SCC 667 twice in 2019 to state, in a non-compoundable offence the compromise entered into between parties is indeed a relevant circumstance which the Court may keep in mind for considering the quantum of sentence.
However, a compromise entered into between parties cannot always be construed as a leading factor based on which lesser punishment can be awarded [Shimbhu, (2014) 13 SCC 318]. Hon’ble Justice Dipak Misra, had relied on Shimbhu, to question compromises reached in cases of non-compoundable rape [Madanlal, (2015) 7 SCC 681].
“When a human frame is defiled, the “purest treasure”, is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given, the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis, the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. We are compelled to say so as such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility.”
Unlike many other victims of interpersonal crimes such as theft, robbery or muggings, survivors of sexual assault are vulnerable to being blamed for their attack, and thus victim-blaming (overtly or in more subtle forms) in sexual assault cases has been the focus of several writings.
Statistics regarding certain kinds of crimes against women have not shown any significant decline. Court holds, use of reasoning/language which diminishes the offence and tends to trivialize the survivor is especially to be avoided under all circumstances. Imposing conditions that implicitly tend to condone or diminish the harm caused and have the effect of potentially exposing the survivor to secondary trauma is especially forbidden. Greatest extent of sensitivity is to be displayed in judicial approach, language and reasoning. Courts while adjudicating cases involving gender related crimes, should not suggest or entertain any notions (or encourage any steps) towards compromises as it is beyond their powers and jurisdiction.
– Hon’ble Justice S. Ravindra Bhat, Aparna Bhat v. State of Madhya Pradesh, [Criminal Appeal No. 329 of 2021] decided on 18.03.2021.