State of M.P. Vs.
Basodi  INSC 832 (27 April 2009)
SUPREME COURT OF INDIA RECORD OF PROCEEDINGS CRIMINAL APPEAL NO. 1002 OF 2004
STATE OF M.P. Appellant (s) VERSUS BASODI Respondent (s) Date :27/04/2009 This
Petition was called on for judgment today.
For Appellant (s)
Hon'ble Dr. Justice Arijit Pasayat pronounced Judgment of the Bench comprising
His Lordship and Hon'ble Mr. Justice D.K.Jain and Hon'ble Dr. Justice
The appeal is allowed
in terms of the signed judgment.
(Shashi Bala Vij) Court Master Court Master Signed Reportable judgment is
placed on the file.
REPORTABLE IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICITON CRIMINAL APPEAL NO. 1002
OF 2004 State of M.P. ...Appellant Versus Basodi ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Madhya
Pradesh High Court at Jabalpur. By the impugned judgment the High Court while
upholding the conviction of the respondent for offence punishable under Section
376 of the Indian Penal Code, 1860 (in short the `IPC') reduced the sentence to
the period already undergone. It is to be noted that during hearing of the
appeal before the High Court the conviction was not questioned and only the
sentence was stated to be high.
Court reduced the period to already undergone on the ground that the accused
was an illiterate labourer and belonged to Scheduled Tribe.
counsel for the appellant submitted that the reasons indicated do not justify
the reduction. There 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. 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). 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
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:
"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 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. Sometimes the desirability of keeping him
out of circulation, and sometimes even the tragic results of his crime.
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. 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
McGautha v. State of California: 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, 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 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
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 the 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.
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, was an
illiterate labourer and belonged to scheduled tribe. The same can by no stretch
of imagination be considered either adequate or special. The requirement in law
above position was highlighted in State of M.P. v. Babbu Barkare @ Dalap Singh
(2005 (5) SCC 413) and State of M.P. v. Babulal (2008 (1) SCC 234).
order of the High Court is clearly indefensible and is set aside. Order of the
trial Court is restored.
appeal is allowed.
(Dr. ARIJIT PASAYAT)