REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1365  OF 2008

(Arising out of SLP (Crl.) No. 5967 of 2006)

State of Punjab   ....Appellant

Versus

Rakesh Kumar ....Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned

Single  Judge  of  the  Punjab  and  Haryana  High  Court.

Respondent  (hereinafter  referred  to  as  the  ‘accused’)  was

found guilty of offence punishable under Sections 366 & 376

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of the Indian Penal Code, 1860 (in short the ‘IPC’)  and was

sentenced to undergo rigorous imprisonment for a period of

three  years  and  to  pay  a  fine  of  Rs.500/-  with  default

stipulation in respect of offence punishable under Section 366

IPC  and  7  years  rigorous  imprisonment  for  the  offence

relatable  to Section 376 IPC and to pay a fine of Rs.500/-.

Though  the  conviction  as  recorded  by  learned  Additional

Sessions  Judge,  Patiala,  was  affirmed by the  High Court  it

reduced the sentence to the period undergone.  The reason for

such  reduction  appears  from the  cryptic  order  of  the  High

Court that the appellant was aged about 19 years at the time

of his statement recorded under Section 313 of the Code of

Criminal  Procedure,  1973 (in  short  ‘Cr.P.C.)  and the  victim

and the accused appeared to be in love with each other as is

evident from love letters.   

3. Learned counsel  for the appellant-State submitted that

the  parameters  relating  to  imposition of  lesser  sentence  for

offence  relatable  to  Section 376  IPC  have  not  been  kept  in

view.

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4. Learned counsel for the respondent-accused on the other

hand supported the judgment of the High Court.

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 up to 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

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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

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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.

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

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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-

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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.”

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.  It

is, therefore, the duty of every court to award proper sentence

having regard to the nature of the offence and the manner in

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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).                    

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 desert  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.

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.            

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

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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.

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,

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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

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

Ghanshyam Singh (2003(8) SCC 13).

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.  

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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.  The same can by no stretch

of imagination be considered either adequate or special.  The

requirement in law is cumulative.   

19. Undisputedly, the victim was less than 16 years of age at

the time of occurrence.  Evidence also shows that the victim

and accused were in love  and the victim admitted that she

had  sexual  intercourse  with  the  accused  because  of  that.

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That of course has no relevance because of her age being less

than sixteen years. The father of the victim had also filed an

affidavit before the High Court that since the victim is settled

in  life  a  liberal  view  may  be  taken  so  far  as  sentence  is

concerned.

20. Considering all these facts, as was done in Iqbal v. State

of  Kerala,  Criminal  Appeal  No.1463  of  2007  decided  on

24.10.2007,  the sentence  is fixed at 3 years  RI  and fine of

Rs.10,000/- to be deposited within three months.  In case of

default in making deposit, default sentence shall be one year.

In case deposit is made, a sum of Rs.8,000/- shall be paid to

the victim.

21. The  respondent  is  directed  to  surrender  to  custody

forthwith to serve the remainder of the sentence. The appeal is

allowed to the extent indicated.

..........................................J.

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(Dr. ARIJIT PASAYAT)

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

New Delhi August 29, 2008

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