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CASE NO.: Appeal (crl.)  167 of 2005

PETITIONER: State of Madhya Pradesh                                  

RESPONDENT: Munna Choubey & Anr.                                             

DATE OF JUDGMENT: 24/01/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T (Arising out of SLP (CRL.) No. 4693/2004)

ARIJIT PASAYAT, J.         Leave granted.

       Since the only question involved in this Appeal is whether  learned Single Judge was right in reducing the respective sentence as  imposed on each of the respondents, detailed reference to the factual  aspects is unnecessary.                  The respondents faced trial for alleged commission of offences  punishable under Sections 450, 376(1)/109(1) of the Indian Penal Code,  1860 (in short the ’IPC’) The respondent- accused Munna was sentenced  to undergo rigorous imprisonment for a period of seven years with a  fine of Rs.2,000/- with default stipulation for the offence relatable  to Section 376(1). He was also sentenced to undergo imprisonment of  five years for the offence punishable under Section 450 IPC.  Respondent-accused Ghanshyam was similarly sentenced.  Both the  substantive sentences were directed to run concurrently.  The  conviction was recorded by learned Session Judge Chhatarpur, who  imposed the aforesaid sentences. The respondents-accused preferred an  appeal (Crl. Appeal No. 829/2000) 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 persons who were the appellants 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  Munna had undergone sentence of imprisonment for a period of about  three years and six months, while respondent\026accused Ghanshyam had  undergone sentence of imprisonment for a period of about two months.   The only ground recorded for reducing the sentence was that the accused  persons come from rural areas. 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 was contrary to the 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 reasoning that the respondents-accused belonged to the  rural areas.

       Learned counsel appearing for the respondents submitted that the  alleged occurrence took place nearly six years back and after  considering the relevant aspects the learned Single Judge had directed  reduction in sentence restricting it to the period already undergone.   This Court should not interfere in the matter particularly under

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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 merely because of lapse of time or that the accused  belonged to rural areas, the accused is to be waived from undergoing  it. 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 ’Encyclopoedia  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 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 \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

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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 organised 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 Naidu (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.  

       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

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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.  

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

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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.  The respondents are directed to surrender to custody forthwith to serve  the remainder of sentence. The appeal is allowed to the extent  indicated.