SUPREME COURT OF INDIA
State of Madhya Pradesh
Vs
Santosh Kumar
Appeal (Crl.) 762 of 2006(Arising out of SLP (Crl.) No. 5967 of 2005)
(Arijit Pasayat and L. S. Panta, JJ)
14.07.2006
ARIJIT PASAYAT, J.
Leave granted.
A six years old child was subjected to sexual abuse by the respondent. He faced
trial for alleged commission of offences punishable under Section 376(2)(f) and
Section 342 of the Indian Penal Code, 1860 (in short
the 'IPC'). The trial court found respondent guilty of the offences for the
offence punishable under Section 372(2)(f) IPC. respondent was sentenced to
undergo imprisonment for 10 years R.I. with a fine of Rs.500/- with default
stipulation. He was further sentenced to undergo imprisonment of three months
for the offence punishable in terms of Section 342 IPC. Both the substantive
sentences of imprisonment were ordered to run concurrently. In the appeal filed
before the High Court the accused did not question the conviction, but prayed
for reduction in sentence. The High Court reduced the sentence for the offence
punishable under Section 376(2)(f) IPC to 5 years, while maintaining the
sentence in respect of other offence. The State of Madhya Pradesh has
questioned correctness of the judgment on the ground that the reduction in
sentence was clearly uncalled for. The only ground indicated by the High Court
to reduce the sentence was the young age of the accused and he being member of
the Scheduled Tribe. 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.
There is no appearance on behalf of the respondent in spite of service of
notice.
The crucial question which needs to be decided is the proper sentence and
acceptability of reasons which weighed with learned Single Judge.
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. In the instant case a child
aged about 6 years is the victim. Law frowns upon such acts and provides for
more stringent sentence as shall be dealt with infra.
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 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. , 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 .
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.
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 5,
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, (more particularly a child of
tender age) 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.
In Dhananjoy Chatterjee v. State of W.B. 3, 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, . 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. Babbu
Barkare alia Dalap Singh .
Both in cases of sub-sections (1) and (2) of Section 376 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 the young age of the accused and the fact that
he belongs to a Scheduled Tribe. The same can by no stretch of imagination be
considered either adequate or special. The requirement in law is
cumulative.
It is to be noted that the victim in the instant case is a child who was about
6 years of age at the time of commission of offence. Sub section (2) of Section
376 IPC provides for a more stringent punishment when the victim is under 12
years of age.
In the instant case the High Court was clearly in error in reducing the
sentence without recording any adequate and special reason in imposing lesser
sentence.
Considering the legal position as indicated above the High Court's order is
clearly unsustainable.
Accordingly, the judgment of the High Court is set aside and that of the trial
court is restored.