Of Madhya Pradesh Vs.
Santosh Kumar 
Insc 412 (14 July 2006)
Pasayat & Lokeshwar Singh Panta
out of SLP (Crl.) No. 5967 of 2005) ARIJIT PASAYAT, J.
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
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.
is no appearance on behalf of the respondent in spite of service of notice.
crucial question which needs to be decided is the proper sentence and
acceptability of reasons which weighed with learned Single Judge.
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.
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.
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.
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
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
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).
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
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
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.
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
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.
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.
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
aspects have been elaborated in State of M.P.
v. Babbu Barkare alia Dalap Singh (2005(5) SCC 413).
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.
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.
same can by no stretch of imagination be considered either adequate or special.
The requirement in law is cumulative.
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.
instant case the High Court was clearly in error in reducing the sentence
without recording any adequate and special reason in imposing lesser sentence.
the legal position as indicated above the High Court's order is clearly
the judgment of the High Court is set aside and that of the trial court is