of Madhya Pradesh Vs. Munna Choubey & Anr  Insc
55 (24 January 2005)
Pasayat & S.H. Kapadia
out of SLP (CRL.) No. 4693/2004) ARIJIT PASAYAT, J.
the only question involved in this Appeal is whether learned Single Judge was
right in reducing the respective sentence as imposed on each of the
respondents, detailed reference to the factual aspects is unnecessary.
respondents faced trial for alleged commission of offences punishable under
Sections 450, 376(1)/109(1) of the Indian Penal Code, 1860 (in short the 'IPC')
The respondent- accused Munna was sentenced to undergo rigorous imprisonment
for a period of seven years with a fine of Rs.2,000/- with default stipulation
for the offence relatable to Section 376(1). He was also sentenced to undergo
imprisonment of five years for the offence punishable under Section 450 IPC.
Ghanshyam was similarly sentenced. Both the substantive sentences were directed
to run concurrently. The conviction was recorded by learned Session Judge Chhatarpur,
who imposed the aforesaid sentences. The respondents-accused preferred an
appeal (Crl. Appeal No. 829/2000) in the High Court of Madhya Pradesh.
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
persons who were the appellants 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 Munna had undergone sentence of imprisonment
for a period of about three years and six months, while respondentaccused Ghanshyam
had undergone sentence of imprisonment for a period of about two months.
only ground recorded for reducing the sentence was that the accused persons
come 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.
support of the appeal learned counsel for the appellant-State submitted that
the reduction of sentence as done by learned Single Judge was contrary to the
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 reasoning that the respondents-accused
belonged to the rural areas.
counsel appearing for the respondents submitted that the alleged occurrence
took place nearly six years back and after considering the relevant aspects the
learned Single Judge had directed reduction in sentence restricting it to the
period already undergone.
Court should not interfere in the matter particularly under Article 136 of the
Constitution of India, 1950 (in short the 'Constitution').
crucial question which needs to be decided is the proper sentence and 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 up to a period of 10 years.
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).
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 '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.
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.
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 organised 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:
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.
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 Naidu (AIR 1991 SC 1463).
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.
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.
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.
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.
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.
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.
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
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.
imposition of appropriate punishment is the manner in which the Court responds
to the society's cry for justice against the criminal.
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
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.
aspects have been elaborated in State of M.P. v. Ghanshyam Singh (2003(8) SCC
both sub-sections (1) and (2) of Section 376 minimum sentences are prescribed.
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.
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.
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
requirement in law is cumulative.
the legal position as indicated above the High Court's order is clearly
unsustainable and is accordingly set aside.
respondents are directed to surrender to custody forthwith to serve the
remainder of sentence. The appeal is allowed to the extent indicated.