REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.              OF 2008 (Arising out of S.L.P. (Crl.) No.2295 of 2007)

State of Rajasthan …Appellant

Versus

Gajendra Singh …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. 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.

3. Respondent  faced  trial  for  alleged  commission  of

offences punishable under Sections 376, 323 and 341 of the 1

Indian  Penal  Code, 1860  (in short `the IPC').    He   was

sentenced to undergo rigorous imprisonment for 10 years, six

months and six months respectively for the  aforesaid three

offences.   Additionally, fine  was imposed  in each case  with

default stipulations.

5. Respondent  filed  an appeal  before  the  High Court

questioning  correctness  of  the  judgment  passed  by  the

learned  Additional  Sessions  Judge,  Fast  Track Court  No.3,

Bharatpur,  in  Sessions  Case  No.30  of  2002.   By  the

impugned judgment, the High Court directed the sentence to

be reduced to a period of five years rigorous imprisonment for

the offence relatable to Section 376 IPC and also reduced the

sentence of six month's simple imprisonment to one month's

simple  imprisonment  in  the  case  of  Section  341  IPC,  as

according to  the  High Court,  the  same  was the  maximum

sentence.

6. It  is  to  be  noted  that  before  the  High  Court,  the

respondent did not question the conviction, but only prayed

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for reduction of sentence.  Though, the High Court noted that

under  Sub-Section  (1)  of  Section  376  IPC,  the  minimum

sentence is of seven years but that is subject to the provision

that  the  court  may  for  “adequate  and  special  reasons”,

impose a sentence  of imprisonment for a terms of less than

seven years.  Without indicating any reason, the High Court

held that this was a case  where  the  proviso permitting the

court to reduce the sentence below the minimum prescribed

was applicable.

7. Learned  counsel  for  the  appellant-State  submitted

that the  High Court  has not  even  indicated  any reason or

basis for directing reduction of sentence.

8. There is no appearance on behalf of the respondent

in spite of service of notice.

9. The crucial question which needs  to be  decided  is

the proper sentence and acceptability of views expressed by

learned  Single  Judge.  It  is to be  noted  that the  sentences

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prescribed  for  offences  relatable  to  Section  376  are

imprisonment for life or up to a period of 10 years, but should

not  be  less  than seven  years  unless  special  and adequate

reasons are cited by the Court for giving lesser punishment.    

10. 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

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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  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.  

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11. 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.

12. 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

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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-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

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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."

13. 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).

14. 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

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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.  

15. 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

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unjustifiable  when  it  is  out  of  proportion  to  the  crime,

uniformly  disproportionate  punishment  has  some  very

undesirable practical consequences.            

16. 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

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the facts of each case, is the only way in which such judgment

may be equitably distinguished.

17. 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.  

18. 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

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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.  

19. 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.

20. Similar view has also been expressed in Ravji v. State

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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".  

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

v.  Ghanshyam Singh (2003(8) SCC 13), and  State  of M.P. v.

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

22. Both in cases of sub-sections (1) and (2) the  Court

has the discretion to impose a sentence of imprisonment less

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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.  

23. 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.   

24. The requirement  in law as to adequate  and special

reasons is cumulative.  The High Court has not recorded any

reason,  much  less  any  adequate  and  special  reasons  for

reducing the  sentence.   The High Court was, therefore,  not

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justified  in  reducing  the  sentence  below  the  prescribed

minimum.   

25. In the background of what has been stated above, we

set aside the judgment of the High Court to the extent that in

respect of the offence punishable under Section 376 IPC, the

respondent shall serve the minimum of seven years rigorous

imprisonment.

26. The appeal is allowed to the aforesaid extent.

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

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

New Delhi, August 4, 2008

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