State of Punjab Vs.
Rakesh Kumar  INSC 1472 (29 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1365 OF 2008
(Arising out of SLP (Crl.) No. 5967 of 2006) State of Punjab ....Appellant
Versus Rakesh Kumar ....Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Punjab and
Haryana High Court.
(hereinafter referred to as the `accused') was found guilty of offence
punishable under Sections 366 & 376 1of the Indian Penal Code, 1860 (in
short the `IPC') and was sentenced to undergo rigorous imprisonment for a
period of three years and to pay a fine of Rs.500/- with default stipulation in
respect of offence punishable under Section 366 IPC and 7 years rigorous
imprisonment for the offence relatable to Section 376 IPC and to pay a fine of
Though the conviction
as recorded by learned Additional Sessions Judge, Patiala, was affirmed by the
High Court it reduced the sentence to the period undergone. The reason for such
reduction appears from the cryptic order of the High Court that the appellant
was aged about 19 years at the time of his statement recorded under Section 313
of the Code of Criminal Procedure, 1973 (in short `Cr.P.C.) and the victim and
the accused appeared to be in love with each other as is evident from love
counsel for the appellant-State submitted that the parameters relating to
imposition of lesser sentence for offence relatable to Section 376 IPC have not
been kept in view.
counsel for the respondent-accused on the other hand supported the judgment of
the High Court.
crucial question which needs to be decided is the proper sentence and whether
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 3sweeping
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 `Encyclopoedia of Crime and Justice' (Volume 4,
page 1356) it is stated "......even slight penetration 4is 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 5required 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
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- 6seated 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:
"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
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 7which 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. Judges in essence affirm that punishment ought
always to fit the crime; yet in practice sentences are determined largely by
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
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.
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 9mitigating 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.
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, 10misappropriation
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
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 11befitting 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
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. 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.
the victim was less than 16 years of age at the time of occurrence. Evidence
also shows that the victim and accused were in love and the victim admitted
that she had sexual intercourse with the accused because of that.
That of course has no
relevance because of her age being less than sixteen years. The father of the
victim had also filed an affidavit before the High Court that since the victim
is settled in life a liberal view may be taken so far as sentence is concerned.
all these facts, as was done in Iqbal v. State of Kerala, Criminal Appeal
No.1463 of 2007 decided on 24.10.2007, the sentence is fixed at 3 years RI and
fine of Rs.10,000/- to be deposited within three months. In case of default in
making deposit, default sentence shall be one year.
In case deposit is
made, a sum of Rs.8,000/- shall be paid to the victim.
respondent is directed to surrender to custody forthwith to serve the remainder
of the sentence. The appeal is allowed to the extent indicated.
(Dr. ARIJIT PASAYAT)