State of Rajasthan Vs.
Gajendra Singh  INSC 1306 (4 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of S.L.P. (Crl.) No.2295 of 2007) State of Rajasthan ...Appellant Versus
Gajendra Singh ...Respondent
Dr. ARIJIT PASAYAT,
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.
faced trial for alleged commission of offences punishable under Sections 376,
323 and 341 of the Indian Penal Code, 1860 (in short `the IPC').
was sentenced to undergo rigorous imprisonment for 10 years, six months and six
months respectively for the aforesaid three offences. Additionally, fine was
imposed in each case with default stipulations.
filed an appeal before the High Court questioning correctness of the judgment
passed by the learned Additional Sessions Judge, Fast Track Court No.3,
Bharatpur, in Sessions Case No.30 of 2002. By the impugned judgment, the High
Court directed the sentence to be reduced to a period of five years rigorous
imprisonment for the offence relatable to Section 376 IPC and also reduced the
sentence of six month's simple imprisonment to one month's simple imprisonment
in the case of Section 341 IPC, as according to the High Court, the same was
the maximum sentence.
is to be noted that before the High Court, the respondent did not question the
conviction, but only prayed for reduction of sentence. Though, the High Court
noted that under Sub-Section (1) of Section 376 IPC, the minimum sentence is of
seven years but that is subject to the provision that the court may for
"adequate and special reasons", impose a sentence of imprisonment for
a terms of less than seven years. Without indicating any reason, the High Court
held that this was a case where the proviso permitting the court to reduce the
sentence below the minimum prescribed was applicable.
counsel for the appellant-State submitted that the High Court has not even
indicated any reason or basis for directing reduction of sentence.
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 views expressed by 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, but should not be less
than seven years unless special and adequate reasons are cited by the Court for
giving lesser punishment.
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 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
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:
"It will be a
mockery of justice to permit the 7 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 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
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
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
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.
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.
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
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 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".
aspects have been elaborated in State of M.P. v. Ghanshyam Singh (2003(8) SCC
13), and State of M.P. v. Babbu Barkare alias Dalap Singh (2005 (5) SCC 413).
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.
requirement in law as to adequate and special reasons is cumulative. The High
Court has not recorded any reason, much less any adequate and special reasons
for reducing the sentence. The High Court was, therefore, not justified in
reducing the sentence below the prescribed minimum.
the background of what has been stated above, we set aside the judgment of the
High Court to the extent that in respect of the offence punishable under
Section 376 IPC, the respondent shall serve the minimum of seven years rigorous
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)