[2009] 6 S.C.R. 1166

STATE OF M.P.

BASODI (Criminal Appeal No. 1002 of 2004)

APRIL 27, 2009

[DR. ARIJIT PASAYAT, D.K. JAIN AND DR.

MUKUNDAKAM SHARMA, JJ.]

Sentence/Sentencing :

Conviction uls. 376 /PC - In appeal, High Court reducing the sentence to less than prescribed minimum -- Held: The Court has the discretion to award sentence lesser than the prescribed minimum, only for adequate and special reasons

0 and not otherwise -- On facts, reason ascribed for reducing the sentence was not adequate and special - Order of trial Court restored.

Award of punishment - Criteria for detennination - Role of Courts - Discussed.

'Words and Phrases - 'Rape' and carnal knowledge' - Meaning of, in the context of s. 376 /PC.

The question for consideration in the present appeal F is whether High Court, while upholding the conviction of the respondent-accused u/s. 376 IPC was right in reducing the sentence to less than the prescribed minimum.

Allowing the appeal, the Court

HELD: 1. In both sub-sections (1) and (2) of Section 376 IPC, 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

H 1166

" than the prescribed minimum for 'adequate and special A reasons'. 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. If the court does not mention such reasons in the judgment there is no scope for awarding a sentence B lesser than the prescribed minimum. In the instant case, the only reason indicated by the High Court is that the accused belonged to rural. areas, was an illiterate labourer and belonged to Scheduled Tribe. The same can by no stretch of imagination be considered either c adequate or special. The requirement in law is cumulative. [Paras 16, 17 and 18] [1177-8-C; 1177-0-F]

State of M.P. v. Babbu Barkare @ Dalap Singh, 2005 (5) •sec 413 and State of M.P. v. Babula/, 2008 (1) sec 234,_ D relied on. "

2.1. 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 E 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. [Para 7] [1173-8-D] F

2.2. 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, G ..., 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 8] [1173-G-H; 117 4-A]

A 2.3. 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, B 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 i.n practice sentences are determined largely by other c 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~

0 from just desert as the basis of punishment and create cases of apparent injustice that are serious and .., widespread. [Para 9) [117 4-8-E]

2.4. After giving due consideration to the facts and circumstances of each case, for deciding just and E 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. [Para 11) [1174-H;

F 1175-A-B]

2.5. 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 G circumstances that may affect the gravity of the crirne; In

the absence of any foolproof formula which may provide ,.. any basis for reasonable crieteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts H of each case, is the only way in which such judgment

may be equitably distinguished. [Para 11] [1175-C-D] A

2.6. 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, 8 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 C on account of lapse of time in respect of such offences will be resul.t-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. [Para 13] [1175-G-H; 1176-A-B] D

2.7. 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 irrview the rights of the criminal but also the rights E of the victim of the crime and the society at large while considering the imposition of appropriate punishment) [Para 14] [1176-D-E]

2.8. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be F 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". [Para

15] [1176-F-H] G

Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463 - relied on

A Mahesh v. State of M.P. 1987 2 SCR 710; Jashubha

Bharatsinh Gohi/ v. State of Gujarat, 1994 (4) SCC 353; Dhananjoy Chatterjee v. State of WB. 1994 (2) SCC 220 and Ravji v. State of Rajasthan, 1996 (2) SCC 175, referred to

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

1 Hon.6, 1a, 9 Edw. 426 a (Hale PC 628); Encyclopedia of Crime andJustice, volume 4, page 1356; Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12; c Law in changing Society by friedman, referred to.

Case Law Reference:

1987 2 SCR 710 referred to Para 7

AIR 1991 SC 1463 relied on Para 8

402 US 183: 28 L.D. 2d 711 referred to Para 11

1994 (4) sec 353 referred to Para 12

E 1994 (2) sec 220 referred to Para 14

1996 (2) sec 115 referred to Para 15

2005 (5) sec 413 relied on Para 19

2008 (1) sec 234 relied on Para 19

F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1002 of 2004.

From the Judgment & Order dated 15.7.2003 of the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.

G 291 of 2003.

i C.D. Singh and Sunny Chaudhary for the Appellant.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is A to the judgment of a learned Single Judge of the Madhya Pradesh High Court at Jabalpur. By the impugned judgment the High Court while upholding the conviction of the respondent for offence punishable under Section 376 of the Indian Penal Code, 1860 (in short the 'IPC') reduced the sentence to the B period already undergone. It is to be noted that during hearing of the appeal before the High Court the conviction was not questioned and only the sentence was stated to be high.

2. High Court reduced the period to already undergone on c the ground that the accused was an illiterate labourer and belonged to Scheduled Tribe.

3. Learned counsel for the appellant submitted that the reasons indicated do not justify the reduction. There is no appearance on behalf of the respondent in spite of service of D " notice. '

4. The crucial question which needs to be decided is the proper sentence and acceptability of reasons which weighed with learned Single Judge. It is to be noted that the sentences prescribed for offences relatable to Section 376 are E

imprisonment for life or up to a period of 10 years.

5. 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 F

Sections 375, 376, 376-A, 376-8, 376-C, and 376-0. '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 376-0. The fact that sweeping G _.

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 H

A 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 B 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, c '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 'Encyclopedia of Crime and Justice' (Volume 4, page

1356) it is stated " ...... even slight penetration is sufficient and

0 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 E offence it is an obnoxious act of the highest order.

6. 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 F priceless possession that is dignity.

7. 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 G 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 H

be the object of law which must be achieved by imposing A 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".

B 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 strn where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the c 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 D

'.) 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 E 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 F 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. n G

8. 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 H

A 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).

9. 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 c 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

D 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.

10. 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

F 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

G 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.

11. After giving due consideration to the facts and H circumstances of each case, for deciding just and appropriate

sentence to be awarded for an offence, the aggravating and A 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 Counc/e McGautha v. State of B California: 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 C 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.

12. 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 anc::I mould the sentencing system to meet these E challenges. 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. Even F though the principles were indicated in the background of death sentence and life sentence, the logic applies to all cases where appropriate sentence is the issue.

13. Imposition of sentence without considering its effect on G 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 H

A impact on social order, and public interest, cannot be lost sight

.'f

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 B societal interest which needs to b:! cared for and strengthened by string of deterrence inbuilt in tt.e sentencing system.

14. In Dhananjoy Chatterjee v. State of WB. (1994 (2) SCC 220), this Court has observed that shockingly large c 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 manne~ in which the Court responds to the society's cry for justice against the criminal.

D 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.

15. 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 but not the criminal, which are germane for consideration of appropriate y • - F 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

G 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 the extremely heinous crime of murder

H perpetrated in a very brutal manner without any provocation,

most deterrent punishment is not given, the case of deterrent A punishment will lose its relevance.

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 B

has the discretion to impose a sentence of imprisonment less than the prescribed minimum for 'adequate and special reasons'. If th& Court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than the prescribed minimum.

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 D 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 E sentence is equally applicable to the High Court. The only reason indicated by the High Court is that the accused belonged to rural areas, was an illiterate labourer and belonged to scheduled tribe. The same can by no stretch of imagination be considered either adequate or special. The requirement in F law is cumulative.

19. The above position was highlighted in State of M.P.

v. Babbu Barkare@ Dalap Singh (2005 (5) SCC 413) and State of M.P. v. Babula/ (2008 (1) SCC 234).

20. The order of the High Court is clearly indefensible and is set aside. Order of the trial Court is restored.

21. The appeal is allowed.

K.K.T.

Appeal allowed.

H .