State of M.P. Vs.
Sheikh Shahid  INSC 765 (15 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.660 OF 2004 State
of Madhya Pradesh ...Appellant Versus Sheikh Shahid ....Respondent
Dr. ARIJIT PASAYAT,
the only question involved in this appeal is whether learned Single Judge was
right in reducing the sentence as imposed on the respondent, detailed reference
to the factual aspects is unnecessary.
respondent faced trial for alleged commission of offence punishable under
Section 376 of the Indian Penal Code, 1860 (in short the `IPC'). The
respondent-accused Sheikh Shahid was sentenced to undergo rigorous imprisonment
for a period of seven years with a fine of Rs.1,000/- with default stipulation.
The conviction was recorded by learned Additional Sessions Judge, Sihore,
Jabalpur, who imposed the aforesaid sentences.
respondents-accused preferred an appeal (Crl. Appeal No.299/2003) 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 Sheikh Shahid had
undergone sentence of imprisonment for a period of about six months. The only
ground recorded for reducing the sentence was that the accused person comes
from rural areas. That appeared to be a just and proper ground to the learned
Single Judge to reduce the sentence to the period already undergone.
is no appearance for the respondent in spite of service of notice.
dealing with the offence of rape which was established, the direction for
reduction of sentence should not have been given on the specious reasoning that
the respondent-accused belonged to the rural areas.
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 upto 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
`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 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
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 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 the sentencing process should 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 desserts' as the basis of
punishment and create cases of apparent injustice that are serious and
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. 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 from 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 a 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 and 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 an extremely
heinous crime of murder perpetrated in a very brutal manner without any
provocation, the most deterrent punishment is not given, the case of deterrent
punishment will lose its relevance.
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.
Both 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
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 legal position as indicated above, the High Court's order is clearly
unsustainable and is accordingly set aside. The respondent is directed to
surrender to custody forthwith to serve the remainder of sentence. The appeal
is allowed to the extent indicated.
(Dr. ARIJIT PASAYAT)
(LOKESHWAR SINGH PANTA)