Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.660 OF 2004
State of Madhya Pradesh ...Appellant
Versus
Sheikh Shahid ....Respondent
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Since the only question 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 offence
punishable under Section 376 of the Indian Penal Code, 1860 (in short the
‘IPC’). The respondent-accused 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 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 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 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 have been given on the
specious reasoning that the respondent-accused belonged to the rural areas.
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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 upto 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 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
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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
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generation (Stephen’s “Criminal Law” 9 Ed. p.262). In ‘Encyclopoedia 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.
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.
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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 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 the sentencing
process should 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
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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 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.
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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).
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 desserts’ 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. 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 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 McGautha v. State of California: 402 US 183: 28 L.D. 2d
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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. 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 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 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 though the principles were indicated in the background of
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death sentence and life sentence, the logic applies to all cases where
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, 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 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 inbuilt in the sentencing system.
15. 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
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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.
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 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”.
If for an extremely heinous crime of murder perpetrated in a very brutal
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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 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.
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 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
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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.
20. Considering the legal position as indicated above, the 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.
…………………………………..J.
(Dr. ARIJIT PASAYAT)
……………………………..……J.
(LOKESHWAR SINGH PANTA)
……………………………..……J.
(P. SATHASIVAM)
New Delhi,
April 15, 2009
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