ITEM No. 1B                 Court No.3                SECTION IIA (For Judgment)                  

S U P R E M E   C O U R T   O F   I N D I A                           RECORD OF PROCEEDINGS

      CRIMINAL APPEAL NO.  1002 OF 2004    

STATE OF M.P.  Appellant (s)

                             VERSUS

BASODI Respondent (s)

Date :27/04/2009   This  Petition was called on for judgment today.           For Appellant (s) Mr.C.D.Singh, Adv.   

 For Respondent(s)                            

Hon'ble  Dr.  Justice  Arijit  Pasayat  pronounced   Judgment  of  the  Bench  

comprising  His  Lordship  and  Hon'ble  Mr.  Justice  D.K.Jain  and  Hon'ble  Dr.  Justice  

Mukundakam Sharma.

      The appeal is allowed  in terms of the signed  

judgment.   

         (Shashi Sareen) (Shashi Bala Vij)     Court Master    Court Master  

 Signed Reportable judgment is placed on the file.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 1002  OF 2004

State of M.P.  …Appellant

Versus

Basodi  …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge of the Madhya  

Pradesh High Court at Jabalpur. By the impugned judgment the High Court while upholding the  

conviction of the respondent for offence punishable under Section 376 of the Indian Penal Code,  

1860 (in short the ‘IPC’) reduced the sentence to the period already undergone.  It is to be noted  

that during hearing of the appeal before the High Court the conviction was not questioned and  

only the sentence was stated to be high.

2. High Court reduced the period to already undergone on the ground that the accused  

was an illiterate labourer and belonged to Scheduled Tribe.

3. Learned counsel for the appellant submitted that the reasons indicated do not justify  

the reduction.  There is no appearance on behalf of the respondent in spite of service of notice.    

4. The  crucial  question  which  needs  to  be  decided  is  the  proper  sentence  and

acceptability of reasons which weighed with learned Single Judge. It  is to  be noted that  the  

sentences prescribed for offences relatable to Section 376 are imprisonment for life or up to a  

period of 10 years.  

5. The offence of rape occurs in Chapter  XVI of IPC.  It  is an offence affecting the  

human  body.  In  that  Chapter,  there  is  a  separate  heading  for  ‘Sexual  offence’,  which  

encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-D. ‘Rape’ is defined in Section  

375. Sections 375 and 376 have been substantially changed by Criminal Law (Amendment) Act,  

1983, and several new sections were introduced by the new Act, i.e. 376-A, 376-B, 376-C and  

376-D.  The fact that sweeping changes were introduced reflects the legislative intent to  curb  

with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in  

its simplest term is ‘the ravishment of a woman, without her consent, by force, fear or fraud’, or  

as ‘the carnal knowledge of a woman by force against her will’. ‘Rape’ or ‘Raptus’ is when a  

man hath carnal knowledge of a woman by force and against her will (Co. Litt.  123-b); or as  

expressed more fully,’ rape is the carnal knowledge of any woman, above the age of particular  

years, against her will; or of a woman child, under that age, with or against her will’ (Hale PC  

628).  The  essential words  in an  indictment  for  rape  are  rapuit  and  carnaliter  cognovit;  but  

carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a  

legal sense to express rape; 1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of rape,  

‘carnal knowledge’ means the penetration to any the slightest degree of the organ alleged to have  

been carnally known by the male organ of generation (Stephen’s “Criminal Law” 9th Ed. p.262).  

In ‘Encyclopedia of  Crime and Justice’ (Volume 4,  page  1356)  it  is stated  “......even slight  

penetration is sufficient and emission is unnecessary”. In Halsbury’s Statutes  of England and  

Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is  

sufficient to  prove sexual intercourse.  It  is violation with violence of the private person of a  

woman-an-outrage by all means. By the very nature of the offence it is an obnoxious act of the  

highest order.

6. The physical scar may heal up, but the mental scar will always remain. When a woman  

is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless  

shame. The offender robs the victim of her most valuable and priceless possession that is dignity.

7. The law regulates social interests, arbitrates conflicting claims and demands.  Security  

of persons and property of the people is an essential function of the State.  It could be achieved  

through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where  

living law must find answer to  the new challenges and the courts  are required to  mould the  

sentencing system to meet the challenges. The contagion of lawlessness would undermine social  

order and lay it in ruins.  Protection of society and stamping out criminal proclivity must be the  

object of law which must be achieved by imposing appropriate sentence. Therefore,  law as a  

corner-stone  of  the  edifice  of  “order”  should  meet  the  challenges  confronting  the  society.  

Friedman in his “Law in Changing Society” stated that, “State of criminal law continues to be –  

as it should be – a decisive reflection of social consciousness of society”.  Therefore, in operating  

the sentencing system, law should adopt  the corrective machinery or the deterrence based on  

factual matrix.  By deft modulation sentencing process be stern where it should be, and tempered  

with mercy where it warrants to be. The facts and given circumstances in each case, the nature of  

the crime, the manner in which it was planned and committed, the motive for commission of the  

crime,  the  conduct  of  the  accused,  the  nature  of  weapons  used  and  all  other  attending  

circumstances are relevant facts which would enter into the area of consideration.  For instance a  

murder committed due to  deep-seated mutual and personal rivalry may not call for penalty of  

death.  But an organized crime or mass murders of innocent people would call for imposition of  

death sentence as deterrence.  In Mahesh v. State of M.P. (1987) 2 SCR 710), this Court while  

refusing to reduce the death sentence observed thus:

“It will be a mockery of justice to permit the accused to escape the extreme penalty of law when

faced with such evidence and such cruel acts.  To give the lesser punishment for the accused  would be to render the justicing system of the country suspect.  The common man will lose faith  in courts.  In such cases, he understands and appreciates the language of deterrence more than  the reformative jargon.”

8. Therefore, undue sympathy to  impose inadequate sentence would do more harm to  

the justice system to undermine the public confidence in the efficacy of law and society could not  

long endure under such serious threats.  It is, therefore, the duty of every court to award proper  

sentence having regard to the nature of the offence and the manner in which it was executed or  

committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v.  

State of Tamil Nadu (AIR 1991 SC 1463).                    

9. The criminal law adheres in general to the principle of proportionality in prescribing  

liability according to the culpability of each kind of criminal conduct. It ordinarily allows some  

significant discretion to the Judge in arriving at a sentence in each case, presumably to permit  

sentences that reflect more subtle considerations of culpability that are raised by the special facts  

of each case.  Judges in essence affirm that punishment ought always to  fit the crime; yet in  

practice  sentences  are  determined  largely  by  other  considerations.  Sometimes  it  is  the  

correctional  needs  of  the  perpetrator  that  are  offered  to  justify a  sentence.  Sometimes the  

desirability of keeping him out of circulation, and sometimes even the tragic results of his crime.  

Inevitably these considerations cause a departure from just desert as the basis of punishment and  

create cases of apparent injustice that are serious and widespread.  

10. Proportion between crime and punishment is a goal respected in principle, and in spite  

of errant notions, it remains a strong influence in the determination of sentences. The practice of  

punishing all serious crimes with equal severity is now unknown in civilized societies, but such a  

radical departure  from the principle of proportionality has disappeared from the  law only in  

recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less  

than a penalty of greatest  severity for any serious crime is thought  then to  be a measure of

toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that  

make  punishment  unjustifiable  when  it  is  out  of  proportion  to  the  crime,  uniformly  

disproportionate punishment has some very undesirable practical consequences.            

11. After  giving due  consideration  to  the  facts  and  circumstances  of  each  case,  for  

deciding  just  and  appropriate  sentence  to  be  awarded  for  an  offence,  the  aggravating  and  

mitigating factors and circumstances in which a crime has been committed are to be delicately  

balanced on the basis of really relevant circumstances in a dispassionate manner by the Court.  

Such act  of balancing is indeed a  difficult task.   It  has been very aptly indicated in  Dennis  

Councle McGautha v.  State of California: 402 US 183: 28 L.D. 2d 711  that no formula of a  

foolproof nature is possible that would provide a reasonable criterion in determining a just and  

appropriate punishment in the infinite variety of circumstances that may affect the gravity of the  

crime.  In the absence of any foolproof formula which may provide any basis for reasonable  

criteria to  correctly assess various circumstances germane to  the  consideration of gravity of  

crime,  the  discretionary judgment  in the  facts  of  each case,  is the  only way in which such  

judgment may be equitably distinguished.

12. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been held  

by this Court  that  in the  matter  of  death  sentence,  the  Courts  are  required to  answer  new  

challenges and mould the sentencing system to meet these challenges.  The object should be to  

protect the society and to deter the criminal in achieving the avowed object to law by imposing  

appropriate sentence. It is expected that the Courts would operate the sentencing system so as to  

impose such sentence which reflects the conscience of the society and the sentencing process has  

to be stern where it should be. Even though the principles were indicated in the background of  

death sentence and life sentence, the logic applies to all cases where appropriate sentence is the  

issue.

13. Imposition of sentence without considering its effect on the social order in many cases  

may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences  

against  women,  dacoity,  kidnapping,  misappropriation  of  public  money,  treason  and  other  

offences involving moral turpitude or moral delinquency which have great impact on social order,  

and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal  

attitude by imposing meager sentences or  taking too  sympathetic view merely on account  of  

lapse of time in respect of such offences will be result-wise counter productive in the long run  

and against societal interest which needs to be cared for and strengthened by string of deterrence  

inbuilt in the sentencing system.  

14. In  Dhananjoy Chatterjee v.  State  of  W.B. (1994  (2)  SCC  220),  this  Court  has  

observed  that  shockingly  large  number  of  criminals  go  unpunished  thereby  increasingly,  

encouraging the criminals and in the ultimate making justice suffer by weakening the system’s  

creditability.  The  imposition  of  appropriate  punishment  is  the  manner  in  which  the  Court  

responds to the society’s cry for justice against the criminal. Justice demands that Courts should  

impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime.  

The Court must not only keep in view the rights of the criminal but also the rights of the victim  

of the crime and the society at large while considering the imposition of appropriate punishment.

15. Similar view has also been expressed in Ravji v.  State of Rajasthan, (1996 (2) SCC  

175). It has been held in the said case that it is the nature and gravity of the crime but not the  

criminal, which are germane for consideration of appropriate punishment in a criminal trial.  The  

Court will be failing in its duty if appropriate punishment is not awarded for a crime which has  

been committed not only against the individual victim but also against the society to which the  

criminal and victim belong.  The punishment to be awarded for a crime must not be irrelevant but  

it should conform to and be consistent with the atrocity and brutality with which the crime has  

been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond

to the society’s cry for justice against the criminal”. If for the extremely heinous crime of murder  

perpetrated in a very brutal manner without any provocation, most deterrent punishment is not  

given, the case of deterrent punishment will lose its relevance.

16. In both sub-sections (1) and (2) of Section 376 minimum sentences are prescribed.

17. Both in cases of sub-sections (1) and (2) the Court  has the discretion to  impose a  

sentence of imprisonment less than the prescribed minimum for ‘adequate and special reasons’. If  

the Court  does  not  mention such reasons in the judgment  there  is no scope for  awarding a  

sentence lesser than the prescribed minimum.  

18. In order to exercise the discretion of reducing the sentence the statutory requirement  

is that the Court has to record “adequate and special reasons” in the judgment and not fanciful  

reasons which would permit the Court to impose a sentence less than the prescribed minimum.  

The reason has not only to be adequate but also special. What is adequate and special would  

depend upon several factors and no strait-jacket formula can be indicated. What is applicable to  

trial  Courts  regarding  recording  reasons  for  a  departure  from minimum sentence  is  equally  

applicable to the High Court.  The only reason indicated by the High Court is that the accused  

belonged to rural areas, was an illiterate labourer and belonged to scheduled tribe. The same can  

by no stretch of imagination be considered either adequate or special.  The requirement in law is  

cumulative.   

19. The above position was highlighted in State of M.P. v. Babbu Barkare @ Dalap Singh  

(2005 (5) SCC 413) and State of M.P. v. Babulal (2008 (1) SCC 234).

20. The order of the High Court is clearly indefensible and is set aside.  Order of the trial  

Court is restored.

21. The appeal is allowed.  

........................J. (Dr. ARIJIT PASAYAT)

               ..........................J. (D.K. JAIN)

…………………………………..J. (Dr. MUKUNDAKAM SHARMA)

New Delhi April 27, 2009