Full Judgment Text
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CASE NO.:
Appeal (crl.) 738 of 2005
PETITIONER:
State of Madhya Pradesh
RESPONDENT:
Babbu Barkare @ Dalap Singh
DATE OF JUDGMENT: 13/05/2005
BENCH:
ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (CRL.) No. 1162/2004)
ARIJIT PASAYAT, J.
Leave granted.
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.
The respondent faced trial for alleged commission of
offences punishable under Section 376 of the Indian Penal
Code, 1860 (in short the ’IPC’) The respondent- accused
Babbu was sentenced to undergo rigorous imprisonment for a
period of seven years with a fine of Rs.2,000/- with default
stipulation. The conviction was recorded by learned Third
Sessions Judge, Betul who imposed the aforesaid sentences.
The respondent-accused preferred an appeal (Crl. Appeal No.
320/2003) 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
had undergone sentence of imprisonment for a period of about
eleven months. The only ground recorded for reducing the
sentence was that the accused person was an illiterate
labourer aged about 20 years at the time of commission of
offence. That appeared to be a just and proper ground to the
learned Single Judge to reduce the sentence to the period
already undergone.
In support of the appeal, learned counsel for the
appellant-State submitted that the reduction of sentence as
done by learned Single Judge is contrary to law as laid
down by this Court in several cases. While dealing with the
offence of rape which was established, the direction for
reduction of sentence should not have been given on the
specious reasonings indicated above.
Learned counsel appearing for the respondent submitted
that after considering the relevant aspects the learned
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Single Judge had directed reduction in sentence restricting
it to the period already undergone. This Court should not
interfere in the matter particularly under Article 136 of
the Constitution of India, 1950 (in short the
’Constitution’).
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 imprisonment for life or up to a period of 10 years.
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 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 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.
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.
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
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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 \026 as it should be \026 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 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."
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).
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 desert as the basis of punishment and create cases
of apparent injustice that are serious and widespread.
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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 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 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.
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 the facts of each case, is the only way in which
such judgment may be equitably distinguished.
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 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 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.
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 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.
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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.
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 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 extremely heinous crime of murder
perpetrated in a very brutal manner without any provocation,
most deterrent punishment is not given, the case of
deterrent punishment will lose its relevance.
These aspects have been elaborated in State of M.P. v.
Ghanshyam Singh (2003(8) SCC 13).
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.
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.
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.
Considering the legal position as indicated above the
High Court’s order is clearly unsustainable and is
accordingly set aside.
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We remit the matter to the High Court to hear the
matter only relating to sentence. Normally, in view of the
established law on the subject we would have closed the
matter. But learned counsel for the accused submitted that
the High Court has not noted several other mitigating
factors which were placed for consideration and granted
relief on the indicated reasons. The High Court shall
consider factors to be placed for consideration and decide
the question of sentence keeping in view the principles
indicated above.
The appeal is accordingly disposed of.