REPORTABLE
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
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Punjab and Haryana High Court.
Respondent (hereinafter referred to as the `accused’) was
found guilty of offence punishable under Sections 366 & 376
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of 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 Rs.500/-.
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 letters.
3. Learned 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.
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4. Learned counsel for the respondent-accused on the other
hand supported the judgment of the High Court.
5. The 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.
6. The 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
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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 `Encyclopoedia of Crime and Justice’
(Volume 4, page 1356) it is stated “……even slight penetration
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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.
7. 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.
8. The 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
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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-
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seated 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 reformative
jargon.”
9. 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
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which 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).
10. The 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. 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.
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11. Proportion 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.
12. After 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
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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.
13. Imposition 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,
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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.
14. In 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
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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.
15. These aspects have been elaborated in State of M.P. v.
Ghanshyam Singh (2003(8) SCC 13).
16. In both sub-sections (1) and (2) of Section 376 minimum
sentences are prescribed.
17. 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
prescribed minimum.
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18. In 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.
19. Undisputedly, 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.
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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.
20. Considering 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.
21. The respondent is directed to surrender to custody
forthwith to serve the remainder of the sentence. The appeal is
allowed to the extent indicated.
……………………………………J.
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(Dr. ARIJIT PASAYAT)
……………………………………..J.
(Dr. MUKUNDAKAM SHARMA)
New Delhi
August 29, 2008
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