[2009] 5 S.C.R. 1038

STATE OF MADHYA PRADESH

SHEIKH SHAHID (Criminal Appeal No. 660 of 2004)

APRIL 15, 2009

[DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA

AND P. SATHASIVAM, JJ.]

PENAL CODE, 1860: c s.376 - Conviction by trial court - Sentence of 7 years imposed - Reduced by High Court to the period already undergone which was about six months only- HELD: The only reason indicated by the High Court being that accused

D belonged to rural areas, can neither be considered adequate I nor special -· Requirement of law is cumulative - Order of High Court is clearly unsustainable and is set aside - Sentencing - Principles explained.

Respondent no. 1 was convicted by trial court u/s 376 E IPC and was sentenced to 7 years RI. On appeal, the High Court reduced the sentence to the period already undergone which was about six months only.

Allowing the appeal filed by the State Government, F the Court

HELD:1.1. Sections 375 and 376 IPC have been substantially changed by Criminal Law (Amendment) Act, 1983, and several new sections have been introduced by

G the new Act, i.e. ss.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,

H without her consent, by force, fear or fraud'. The physical

scar may heal up, but the mental scar will always remain.

A When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. [Para 6 and 7) [1042-G-H; 1043-A-F-G]

Mahesh v. State of M.P. (1987) 2 SCR 710; Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463 and B

Jashubha Bharatsinh Gohil v. State of Gujarat 1994 (4) SCC 353, referred to.

Dennis Councle McGautha v. State of California: 402 US 183: 28 L.D. 2d 711, referred to. c

1.2. 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, D 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 9) [1044-H; 1045-A-B]

Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991 E

SC 1463, relied on.

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 F aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced by the court on the basis of really relevant circumstances in a dispassionate manner. Such act of balancing is indeed a difficult task. [Para 12) [1046-A-B] G

1.4. 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, and offences of H

A 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 E1xemplary treatment. Any liberal attitude by B 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 c inbuilt in the sentencing system. [Para 14] [1046-G-H; :

1047-A-B]

Dhananjoy Chatterjee v. State of W.B. 1994 (2) SCC 220; Ravji v. State of Rajasthan 1996 (2) SCC 175 and State of M.P. v. Ghanshyam Singh 2003 (8) SCC 13, referred to.

2. In bc>th sub-sections (1) and (2) of s.376 IPC, minimum sentences are prescribed. Both in cases of subsections (1) and (2) the court has the discretion to impose a sentence of imprisonment less than the prescribed E minimum for 'adequate and special reasons.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 reas; ons which would permit the court to impose F a sentence less than the prescribed minimum. The reason has not only to be adequate but also special. If the court does not mEmtion such reasons in the judgment there Is no scope for awarding a sentence lesser than the prescribed minimum. In the instant case, the only reason G indicated by the High Court is tha't 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. Considering the legal position, the High Court's order is clearly unsustainable H and is acco1dingly set aside. [Para 18 to 20] [1048-B-G]

Case Law Reference: A

(1987) 2 SCR 710 referred to Para 8

AIR 1991 SC 1463 relied on Para 9

402 US 183: 28 L.D. 2d 711 referred1o Para 12 B

1994 (4) sec 353 referred to Para 13

1994 (2) sec 220 referred to Para 15

1996 (2) sec 115 referred to Para 16 c

2003 (8) sec 13 referred to Para 17

CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal No. 660 of 2004.

~ From the Judgment & Order dated 11.08.2003 of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.

( 229 of 2003. •

Govind Goel, Amboj Agarwal, C.D. Singh and Kamakshi E for the Appellants.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Since the only question F 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 G offence punishable under Section 376 of the Indian Penal Code, 1860 (in short. the 'IPC'). The respondent-accused t 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 H

SUPREME COURT REPORT3 [2009) 5 S.C.R.

A 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 B 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 c 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 E have been given on the specious reasoning that the respondent-accused belonged to the rural areas.

5. The crucial question which needs to be decided is the proper sentence and whether merely because of lapse of time

F 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 G an offence affecting the human body. In that Chapter, there is a separate heading for sexual offence', which encompasses Sections 375, 376, 376-A, 376-8, 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, H and several new sections were introduced by the new Act, i.e.

[DR. ARIJIT PASAYAT, J.]

376-A, 376-B, 376-C and 376-D. The fact that sweeping A 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 B 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 c 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, D t 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 'Encyclopaedia of Crime and Justice' (Volume 4, page 1356) it is stated " ...... even slight penetration is sufficient E 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 H

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 B be the object of law which must be achieved by imposing

~ appropriate sentence. Therefore, law as a corner-stone of the edifice of "orde~· 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 c 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

D to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and 1 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

E 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 F 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

G 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 t appreciates the language of deterrence more than the reformative jargon."

9. Therefore, undue sympathy to impose inadequate

~-,1\TE OF MADHYA PRADESH v. SHEIKH SHAHID 1045

[DR. ARIJIT PASAYAT, J.}

sentence would do more harm to the justice system to A 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 B 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 prescnbing liability according to the culpability C 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 D 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 E departure from just desserts' as the basis of punishment and create cases of apparent injustice that are serious and widespread. ·

11. Proportion between crime and punishment is a goal F 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 G 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.

1046 SUPREME COURT RE~ORTS [2009] 5 s.c.R;

A . .

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 asis of really B relevant Circumstances in a dispassionate manner by the Court.

Such actof 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 711 that no formula of a foolproof nature is possible that would provide a reasonable c 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 fortriula which may provide any basis for reasonable criteria to correctly assess various circumstances germane_ to the consideration of gravity

0 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 E 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 F . would operate the sentencing system so as to impose. such

sentenee which reflects.the conscience of the society and the sentencing process has to be stem 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 G 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, H misappropriation of public money, treason and other offences .

STATE OF MADHYA PRADESH v. SHEIKH SHAHID 1047

[DR. ARIJIT PASAYAT, J.]

involving moral turpitude or moral delinquency which have great A 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 B 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) c 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 D ) 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 E 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 F .. 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 G 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 H

A criminal". If for an extremely heinous crime of murder perpetrated in a very brutal 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 subsections (1) and (2) the Court has the discretion to impose a C 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 E 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 F 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 G 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.

H R.P.

Appeal allowed.

....