http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

CASE NO.: Appeal (crl.)  762 of 2006

PETITIONER: State of Madhya Pradesh                                   

RESPONDENT: Santosh Kumar                                                    

DATE OF JUDGMENT: 14/07/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 5967 of 2005)

ARIJIT PASAYAT, J.  

       Leave granted.

       A six years old child was subjected to sexual abuse by  the respondent. He faced trial for alleged commission of  offences punishable under Section 376(2)(f) and Section 342 of  the Indian Penal Code, 1860 (in short the ’IPC’). The trial court  found respondent guilty of the offences for the offence  punishable under Section 372(2)(f) IPC. respondent was  sentenced to undergo imprisonment for 10 years R.I. with a  fine of Rs.500/- with default stipulation. He was further  sentenced to undergo imprisonment of three months for the  offence punishable in terms of Section 342 IPC. Both the  substantive sentences of imprisonment were ordered to run  concurrently.  In the appeal filed before the High Court the  accused did not question the conviction, but prayed for  reduction in sentence.  The High Court reduced the sentence  for the offence punishable under Section 376(2)(f) IPC to 5  years, while maintaining the sentence in respect of other  offence. The State of Madhya Pradesh has questioned  correctness of the judgment on the ground that the reduction  in sentence was clearly uncalled for. The only ground  indicated by the High Court to reduce the sentence was the  young age of the accused and he being member of the  Scheduled Tribe. 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.

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

The crucial question which needs to be decided is the  proper sentence and acceptability of reasons which weighed  with learned Single Judge.  

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

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.  In the  instant case a child aged about 6 years is the victim.  Law  frowns upon such acts and provides for more stringent  sentence as shall be dealt with infra.  

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  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-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

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.  

       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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

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, (more particularly a child of tender  age) 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

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.  Babbu Barkare alia Dalap Singh (2005(5) SCC 413).

Both in cases of sub-sections (1) and (2) of Section 376  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 the young age of the  accused and the fact that he belongs to a Scheduled Tribe.   The same can by no stretch of imagination be considered  either adequate or special.  The requirement in law is  cumulative.   

It is to be noted that the victim in the instant case is a  child who was about 6 years of age at the time of commission  of offence.  Sub section (2) of Section 376 IPC provides for a  more stringent punishment when the victim is under 12 years  of age.   

In the instant case the High Court was clearly in error  in  reducing the sentence without recording any adequate and  special reason in imposing lesser sentence.   

Considering the legal position as indicated above the  High Court’s order is clearly unsustainable.         Accordingly, the judgment of the High Court is set aside  and that of the trial court is restored.          Appeal is allowed.