REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.660 OF 2004

State of Madhya Pradesh ...Appellant

Versus

Sheikh Shahid ....Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Since the only question involved in  this  appeal  is  whether  learned

Single  Judge  was  right  in  reducing  the  sentence  as  imposed  on  the

respondent, detailed reference to the factual aspects is unnecessary.    

2. The  respondent  faced  trial  for  alleged  commission  of  offence

punishable under Section 376 of the Indian Penal Code, 1860 (in short the

‘IPC’).  The respondent-accused Sheikh Shahid was sentenced to undergo

rigorous imprisonment for a period of seven years with a fine of Rs.1,000/-

with default stipulation.  The conviction was recorded by learned Additional

Sessions  Judge,  Sihore,  Jabalpur,  who  imposed  the  aforesaid  sentences.

The respondents-accused preferred an appeal (Crl. Appeal No.299/2003) 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   Sheikh  Shahid  had  undergone  sentence  of

imprisonment for a period of about six months.  The only ground recorded

for  reducing  the sentence  was  that  the  accused person comes 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.

3. There  is  no  appearance  for  the  respondent  in  spite  of  service  of

notice.        

4. 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 respondent-accused belonged to the rural areas.

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

and whether 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 upto a period of 10 years.

6. 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

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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.

7. 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.

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8. 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  the  sentencing

process should 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

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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."

9. 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.

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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).

10. 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 desserts’ as the

basis of punishment and create cases of apparent injustice that are serious

and widespread.  

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11. 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. 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.            

12. 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

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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.

13. 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  from 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

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

appropriate sentence is the issue.

14. 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 a 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.

15. 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

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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.

16. 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  and  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 an extremely heinous crime of murder perpetrated in  a very  brutal

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manner  without  any  provocation,  the  most  deterrent  punishment is  not

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

17. These aspects have been elaborated in  State of M.P. v.  Ghanshyam

Singh (2003 (8) SCC 13).

18. 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.

19. 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

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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.

20. Considering the legal position as indicated above, the High Court's

order is clearly unsustainable and is accordingly set aside. The respondent is

directed  to  surrender  to  custody  forthwith  to  serve  the  remainder  of

sentence. The appeal is allowed to the extent indicated.

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

……………………………..……J. (LOKESHWAR SINGH PANTA)

……………………………..……J. (P. SATHASIVAM)

New Delhi, April 15, 2009

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