[2008) 11 S.C.R. 816

STATE OF RAJASTHAN

II.

GAJENDRA SINGH (Criminal Appeal No. 1217 of 2008)

AUGUST 4, 2008

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

Sentence/Sentencing - Conviction uls 376 /PC - Trial c . court imposing sentence of ten years R1 - Sentence reduced to five years (below the minimum prescribed) by High Court - Propriety of - Held: Proviso to s. 376 /PC permitting the court to reduce the sentence below the minimum prescribed only on recording of 'adequate and special reasons' - Failure on

0 the part of High Court to record such reasons, does not warrant reducing of the sentence - Criminal law adheres to the principle of proportionality in sentencing -It is duty of the court to award proper sentence in view of the nature and manner of commission of offence -Undue sympathy to impose inadequate sentence would do more harm to justice system - E Sentence is modified to seven years i.e. minimum prescribed

- Penal Code, 1860 - s. 376 proviso.

Words and Phrases- 'Rape'- Meaning of in the context of /PC.

I [_

-I ..--

I I-

F Respondent was tried u/ss 376, 323 and 341 IPC. Trial ,.. court convicted and sentenced to undergo RI for ten years '\ for the offence u/s 376 IPC. Respondent filed appeal praying for reduction of sentence. High Court, though noted that the minimum sentence u/s 376 IPC is seven years, yet G reduced the sentence to five years RI in view of proviso to the Section, permitting the court to reduce the sentence

below the minimum prescribed. Hence the present appeal.

Partly allowing the appeal, the Court

STATE OF RAJASTHAN v. GAJENDRA 817

SINGH

- ,,,

HELD: 1.1 The High Court was not justified in reduc- A ing the sentence below the prescribed minimum. The respondent shall serve the minimum of seven years rigorous imprisonment. In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record "adequate and special reasons" B ,,. 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 c 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 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 sen- D • 'f tence. Paras 23, 24 and 25] [826 E, F, G, 826 G, H, 827 A]

1.2 Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, E law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. 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 tampered with mercy where it warrants to be. The F .,...., .. 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 G would enter into the area of consideration. [Para 12] [822

F, G, H, 823, A,8] .. ,,. 1.3 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 aggra- H

SUPREME COURT REPORT;>

[2008] 11 S.C.R.

A vating and mitigating factors and circumstances in which a crime has been committed ar.e to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. [Para 16] [824 E, F]

Dennis Councle MCGOautha v. State of Ca/lifornia: 402 8 US 183: 28 L.D. 2d 711 - referred to.

1.4 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 ordi- -c narily 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 D largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to jus- ,.._::: tify 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 de- E parture from ; ust desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. But in fact, quite apart from those considerations that make punishment unjustifiable when_ it is out of proportion to the crime, uniformly disproportionate F punishment has some very undesirable practical consequences. [Paras 14 and 15] [823 G, H, 824 A, B, C, D, E] ~

1.5 Imposition of sentence without considering jts effect on the social order in many cases may be in reality G a futile exercise. The social impact of the crime, e.g. where it relijtes 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 inter-

H est, cannot be lost sight of and per se require exemplary

STATE OF RAJASTHAN v. GAJENDRA

SINGH

treatment. Any liberal attitude by imposing meager sen- A tences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise 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 sys- B tern. [Para 18] [825 C, D, E]

1.6 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, C 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. [Para

13] [823 E, F] D Mahesh v. State of M.P 1987 (2) SCR 710; Sevaka --

'I- Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463; Dhananjoy Chatterjee v. State ofWB. 1994 (2) SCC 220; Ravji

v. State of Rajasthan, 1996 (2) SCC 175; State of M.P v.

Ghanshyam Singh 2003(8) SCC 13; State of M.P v. Babbu Barkare alias Dalap Singh 2005 (5) sec 413 - relied on.

"Criminal Law" by Stephen 9th Ed. p.262; 'Encyclopedia of Crime and Justice' Volume 4, page 1356; Halsbury's

Statutes of England and Wales (Fourth Edition) Volume 12; 'Law in Changing Society' by Friedman - referred to.

Case Law Reference

1987 (2) SCR 710 Relied on.

Para 12

AIR 1991 SC 1463 Relied on.

Para 13

402 US 183: 28 LO. 2d 711 Referred to. Para 16

1994 (2) SCC 220 Relied on.

Para 19

1996 (2) sec 115

2003(8) sec 13

2005 (5) sec 413

Relied on.

Relied on.

Retied on.

Para 20

Para 21

Para 21

A CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1217 of 2008

From the final Judgment and Order dated 22.5.2006 of the High Court of Judicature for Rajasthan at Jaipur Bench, B Jaipur in S.B. Criminal Appeal No. 1105 of 2002

Madhurima Tatia and Aruneshwar Gupta for the Appellant.

The Judgment of the Court was delivered by

'O'r; 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.

0 3, Respondent faced trial for alleged commission of offences punishable under Sections 376, 323 and 341 of the In-

'(-

dian 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. Addi- E tionally, 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 F 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 for re.ducti'on ofsentence. Though, the High Court noted that under Subsection (1) of Section 376 IPC, the minimum sentence is -of t4 seven years but that is subject to the provision that the court

..... 'f.' •

STATE OF RAJASTHAN v.-GAJENDRA 821

~ ",!

SINGH [DR. ARIJIT PASAYAT, J.]

may for "adequate and special reasons", impose a sentence of A 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 fo.r the appe.llant-State .submitted that B t

. the High Court has not even indicated any reason or basis fo.r

directing reduction.of sentence.

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

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 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 D 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 E separate heading for 'Sexual offence', which encompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-Q. 'Rape' is defined in Section 375. Sections 375 and 376 have been substantially changed by Crimtnal Law (Ame-ndment) Act, 1983,' and several new sections were introduce.a by the new Act, i.e. 376- A, 376-B, 376C and 376-D. The fact thpt sweeping changes F

.). 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 s-implest 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' G 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 es- H

y _._

I A sential words in an indictment for ape are rp.uit and carnaliter cogriovit; 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 th_e penetration to the 8 slightest degree of the organ alleged to have been carnally known by the male organ of generation (Stephen's "Criminal i•

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 unnecessry". ID Halsbury's Statc utes 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 th_e highest order.

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 socjal interests, arbitrates conflicting claims and demands. Security of persons and prope.rty of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly,

F 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 ap- G propriate 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 op- H erating the sentencing system, law should adopt the corrective

STATE OF RAJASTHAN v. GAJENDRA 823

SINGH [DR. ARIJIT PASAYAT, J.] ·- .'i machinery or the deterrence based on factual matrix. By deft A 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 na- B

)-- tu re 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 c for imposition of death sentence as deterrence. In Mahesh v.

State of MP [(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 D evidence and such cruel acts. To give the lesser ..... y 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 E 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 F

). 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

1--.-y. 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 H

Iv+-

I- A 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 B "correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of. ciri culation, 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 apparc ent 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 sntences. Even now for a single grave infraction drastic sentences are imposed.

D Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is un- .... warranted and unwise. But in fact, quite apart from those con- ""' siderations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment E has some very undesirable practical consequences.

16. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sen~ tence to be awarded for an offence, the aggravating and miti-

F gating factors and circumstances in which a crime has been committed are o be delicately baanced on the basis of really relevant circumstances in a dispassionate manner by the Court. -4

..._

Such act of balancing is indeed a difficult task. It has been very , aptly indi9ated in Dennis Councle MCGDautha v. State of CaHifornia: 402 US 183: 28 L.D. 2d 711 that no formula of a G foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite yariety of circumstances that may affect the gravity of the ; y-A. crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various cir- H cumstances germane to the consideration of gravity of crime,

STATE OF RAJASTHAN v. GAJENDRA 825

SINGH [DR. ARIJIT PASAYAT, J.]

'"' ~

the discretionary judgment in the facts of each case, is the only A 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 B 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 exerc cise. 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 D require exemplary treatment. Any liberal attitude by imposing ' meager sentences or taking too sympathetic view merely on ,,..... y

account of lapse of time in respect of such offences will be resuit-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string E of deterrence inbuilt in the sentencing system.

19. In Dhananjoy Chatterjee v. State of WB. (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 F

)- 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 G 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 •y considering the imposition of appropriate punishment.

20. Similar view has also been expressed in Ravji v. State of Rajasthan, (1996 (2) SCC 175). It has been held in the said H

¥.,..-, .A 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

B against the society to which the criminal and victim belong. The.

punishment to be awarded for a crime must not be irrelevant ; t but it should conform to and be consistent with the atrocity and

brutality with which the crime has been perpetrated, the enor-

~ mity of the crime warranting public abhorrence and it should c "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 Oalap Singh (2005 (5) SCC 413).

22. Both in cases of sub-sections (1) and (2) the Court has the discretion to impose a sentence bf imprisonment less than the prescribed minimum for 'adequate and special rea- ~ sons'. If the Court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the

E 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

F 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 faetors and no strait-jacket formula can be indicated. , What is applicable to trial Courts regarding recording reasons for a departure from minimum sentence is

G equally applicable to the High Court.

24. The requirement in Jaw as to adequate antj special reasons is cumulative. The High Court has not recorded any reason, much less any adequate and special reasons for re-

,,.., ....

ducing the sentence. The High Court was, therefore, not justi- H fied in reducing the sentence below the prescribed minimum.

STATE OF RAJASTHAN v. GAJENDRA 827

SINGH [DR. ARIJIT PASAYAT, J.]

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

K.K.T.

Appeal partly allowed.