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CASE NO.: Appeal (crl.)  738 of 2005

PETITIONER: State of Madhya Pradesh                                  

RESPONDENT: Babbu Barkare @ Dalap Singh                              

DATE OF JUDGMENT: 13/05/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (CRL.) No. 1162/2004)

ARIJIT PASAYAT, J.

       Leave granted.

       Since the only question involved in this Appeal is  whether learned Single Judge was right in reducing the  sentence as imposed by the trial court on respondent,  detailed reference to the factual aspects is unnecessary.                  The respondent faced trial for alleged commission of  offences punishable under Section  376 of the Indian Penal  Code, 1860 (in short the ’IPC’) The respondent- accused  Babbu was sentenced to undergo rigorous imprisonment for a  period of seven years with a fine of Rs.2,000/- with default  stipulation.  The conviction was recorded by learned Third  Sessions Judge, Betul who imposed the aforesaid sentences.  The respondent-accused preferred an appeal (Crl. Appeal No.  320/2003) in the High Court of Madhya Pradesh. By the  impugned judgment, the High Court directed the sentence to  be reduced to the period already undergone.  It noted that  the learned counsel for the accused person who was the  appellant before the High Court did not challenge the  finding of conviction but only prayed for reduction in  sentence. The High Court noticed that respondent-accused   had undergone sentence of imprisonment for a period of about  eleven months.  The only ground recorded for reducing the  sentence was that the accused person was an illiterate  labourer aged about 20 years at the time of commission of  offence. That appeared to be a just and proper ground to the  learned Single Judge to reduce the sentence to the period  already undergone.

       In support of the appeal, learned counsel for the  appellant-State submitted that the reduction of sentence as  done by learned Single Judge is contrary to  law as laid  down by this Court in several cases.  While dealing with the  offence of rape which was established, the direction for  reduction of sentence should not have been given on the  specious reasonings indicated above.

       Learned counsel appearing for the respondent submitted  that after considering the relevant aspects the learned

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Single Judge had directed reduction in sentence restricting  it to the period already undergone.  This Court should not  interfere in the matter particularly under Article 136 of  the Constitution of India, 1950 (in short the  ’Constitution’).

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.  

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.           

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.

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

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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 \026 as it should be \026 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."

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).                    

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.

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       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.            

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 MCGDautha v. State of Callifornia: 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.

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.   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.

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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.

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 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.

These aspects have been elaborated in State of M.P. v.  Ghanshyam Singh (2003(8) SCC 13).

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

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

Considering the legal position as indicated above the  High Court’s order is clearly unsustainable and is  accordingly set aside.

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We remit the matter to the High Court to hear the  matter only relating to sentence.  Normally, in view of the  established law on the subject we would have closed the  matter.  But learned counsel for the accused submitted that  the High         Court has not noted several other mitigating  factors which were placed for consideration and granted  relief on the indicated reasons.  The High Court shall  consider factors to be placed for consideration and decide  the question of sentence keeping in view the principles  indicated above.

The appeal is accordingly disposed of.