of Madhya Pradesh Vs. Babbu Barkare @ Dalap Singh
 Insc 343 (13 May
Pasayat & S.H. Kapadia
out of SLP (CRL) No. 1162/2004) ARIJIT PASAYAT, J.
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.
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
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.
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.
counsel appearing for the respondent submitted that after considering the
relevant aspects the learned 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').
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.
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;
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;
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.
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.
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. (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. 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
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).
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.
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. 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.
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. 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.
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
aspects have been elaborated in State of M.P.
v. Ghanshyam Singh (2003(8) SCC 13).
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. 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.
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.
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.
appeal is accordingly disposed of.