{"id":22455,"date":"2005-05-13T00:00:00","date_gmt":"2005-05-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-babbu-barkare-dalap-singh-on-13-may-2005"},"modified":"2016-01-23T06:25:32","modified_gmt":"2016-01-23T00:55:32","slug":"state-of-madhya-pradesh-vs-babbu-barkare-dalap-singh-on-13-may-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-babbu-barkare-dalap-singh-on-13-may-2005","title":{"rendered":"State Of Madhya Pradesh vs Babbu Barkare @ Dalap Singh on 13 May, 2005"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Madhya Pradesh vs Babbu Barkare @ Dalap Singh on 13 May, 2005<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, S.H. Kapadia<\/div>\n
           CASE NO.:\nAppeal (crl.)  738 of 2005\n\nPETITIONER:\nState of Madhya Pradesh\t\t\t\t\t\n\nRESPONDENT:\nBabbu Barkare @ Dalap Singh\t\t\t\t\n\nDATE OF JUDGMENT: 13\/05\/2005\n\nBENCH:\nARIJIT PASAYAT & S.H. KAPADIA\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP (CRL.) No. 1162\/2004)<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tSince the only question involved in this Appeal is
\nwhether learned Single Judge was right in reducing the
\nsentence as imposed by the trial court on respondent,
\ndetailed reference to the factual aspects is unnecessary.\n<\/p>\n
\tThe respondent faced trial for alleged commission of
\noffences punishable under Section  376 of the Indian Penal
\nCode, 1860 (in short the ‘IPC’) The respondent- accused
\nBabbu was sentenced to undergo rigorous imprisonment for a
\nperiod of seven years with a fine of Rs.2,000\/- with default
\nstipulation.  The conviction was recorded by learned Third
\nSessions Judge, Betul who imposed the aforesaid sentences.
\nThe respondent-accused preferred an appeal (Crl. Appeal No.
\n320\/2003) in the High Court of Madhya Pradesh. By the
\nimpugned judgment, the High Court directed the sentence to
\nbe reduced to the period already undergone.  It noted that
\nthe learned counsel for the accused person who was the
\nappellant before the High Court did not challenge the
\nfinding of conviction but only prayed for reduction in
\nsentence. The High Court noticed that respondent-accused
\nhad undergone sentence of imprisonment for a period of about
\neleven months.  The only ground recorded for reducing the
\nsentence was that the accused person was an illiterate
\nlabourer aged about 20 years at the time of commission of
\noffence. That appeared to be a just and proper ground to the
\nlearned Single Judge to reduce the sentence to the period
\nalready undergone.\n<\/p>\n
\tIn support of the appeal, learned counsel for the
\nappellant-State submitted that the reduction of sentence as
\ndone by learned Single Judge is contrary to  law as laid
\ndown by this Court in several cases.  While dealing with the
\noffence of rape which was established, the direction for
\nreduction of sentence should not have been given on the
\nspecious reasonings indicated above.\n<\/p>\n
\tLearned counsel appearing for the respondent submitted
\nthat after considering the relevant aspects the learned
\nSingle Judge had directed reduction in sentence restricting
\nit to the period already undergone.  This Court should not
\ninterfere in the matter particularly under Article 136 of
\nthe Constitution of India, 1950 (in short the
\n‘Constitution’).\n<\/p>\n
The crucial question which needs to be decided is the
\nproper sentence and acceptability of reasons which weighed
\nwith learned Single Judge. It is to be noted that the
\nsentences prescribed for offences relatable to Section 376
\nare imprisonment for life or up to a period of 10 years.\n<\/p>\n
The offence of rape occurs in Chapter XVI of IPC. It is
\nan offence affecting the human body. In that Chapter, there
\nis a separate heading for ‘Sexual offence’, which
\nencompasses Sections 375, 376, 376-A, 376-B, 376-C, and 376-
\nD. ‘Rape’ is defined in Section 375. Sections 375 and 376
\nhave been substantially changed by Criminal Law (Amendment)
\nAct, 1983, and several new sections were introduced by the
\nnew Act, i.e. 376-A, 376-B, 376-C and 376-D.  The fact that
\nsweeping changes were introduced reflects the legislative
\nintent to curb with iron hand, the offence of rape which
\naffects the dignity of a woman. The offence of rape in its
\nsimplest term is ‘the ravishment of a woman, without her
\nconsent, by force, fear or fraud’, or as ‘the carnal
\nknowledge of a woman by force against her will’. ‘Rape’ or
\n‘Raptus’ is when a man hath carnal knowledge of a woman by
\nforce and against her will (Co. Litt. 123-b); or as
\nexpressed more fully,’ rape is the carnal knowledge of any
\nwoman, above the age of particular years, against her will;
\nor of a woman child, under that age, with or against her
\nwill’ (Hale PC 628). The essential words in an indictment
\nfor rape are rapuit and carnaliter cognovit; but carnaliter
\ncognovit, nor any other circumlocution without the word
\nrapuit, are not sufficient in a legal sense to express rape;
\n1 Hon.6, 1a, 9 Edw. 4, 26 a (Hale PC 628). In the crime of
\nrape, ‘carnal knowledge’ means the penetration to any the
\nslightest degree of the organ alleged to have been carnally
\nknown by the male organ of generation (Stephen’s “Criminal
\nLaw” 9th Ed. p.262). In ‘Encyclopedia of Crime and
\nJustice’ (Volume 4, page 1356) it is stated “……even
\nslight penetration is sufficient and emission is
\nunnecessary”. In Halsbury’s Statutes of England and Wales
\n(Fourth Edition) Volume 12, it is stated that even the
\nslightest degree of penetration is sufficient to prove
\nsexual intercourse. It is violation with violence of the
\nprivate person of a woman-an-outrage by all means. By the
\nvery nature of the offence it is an obnoxious act of the
\nhighest order.\n<\/p>\n
The physical scar may heal up, but the mental scar will
\nalways remain. When a woman is ravished, what is inflicted
\nis not merely physical injury but the deep sense of some
\ndeathless shame. The offender robs the victim of her most
\nvaluable and priceless possession that is dignity.\n<\/p>\n
The law regulates social interests, arbitrates
\nconflicting claims and demands.  Security of persons and
\nproperty of the people is an essential function of the
\nState.  It could be achieved through instrumentality of
\ncriminal law. Undoubtedly, there is a cross cultural
\nconflict where living law must find answer to the new
\nchallenges and the courts are required to mould the
\nsentencing system to meet the challenges. The contagion of
\nlawlessness would undermine social order and lay it in
\nruins.  Protection of society and stamping out criminal
\nproclivity must be the object of law which must be achieved
\nby imposing appropriate sentence. Therefore, law as a
\ncorner-stone of the edifice of “order” should meet the
\nchallenges confronting the society. Friedman in his “Law in
\nChanging Society” stated that, “State of criminal law
\ncontinues to be  as it should be  a decisive reflection of
\nsocial consciousness of society”.  Therefore, in operating
\nthe sentencing system, law should adopt the corrective
\nmachinery or the deterrence based on factual matrix.  By
\ndeft modulation sentencing process be stern where it should
\nbe, and tempered with mercy where it warrants to be. The
\nfacts and given circumstances in each case, the nature of
\nthe crime, the manner in which it was planned and committed,
\nthe motive for commission of the crime, the conduct of the
\naccused, the nature of weapons used and all other attending
\ncircumstances are relevant facts which would enter into the
\narea of consideration.  For instance a murder committed due
\nto deep-seated mutual and personal rivalry may not call for
\npenalty of death.  But an organized crime or mass murders of
\ninnocent people would call for imposition of death sentence
\nas deterrence.  In Mahesh v. State of M.P. (1987) 2 SCR\n<\/p>\n
710), this Court while refusing to reduce the death sentence
\nobserved thus:\n<\/p>\n
“It will be a mockery of justice to
\npermit the accused to escape the extreme
\npenalty of law when faced with such evidence
\nand such cruel acts. To give the lesser
\npunishment for the accused would be to
\nrender the justicing system of the country
\nsuspect.  The common man will lose faith in
\ncourts.  In such cases, he understands and
\nappreciates the language of deterrence more
\nthan the reformative jargon.”\n<\/p>\n
Therefore, undue sympathy to impose inadequate
\nsentence would do more harm to the justice system to
\nundermine the public confidence in the efficacy of law and
\nsociety could not long endure under such serious threats.
\nIt is, therefore, the duty of every court to award proper
\nsentence having regard to the nature of the offence and the
\nmanner in which it was executed or committed etc. This
\nposition was illuminatingly stated by this Court in Sevaka
\nPerumal etc. v. State of Tamil Nadu (AIR 1991 SC 1463).\n<\/p>\n
The criminal law adheres in general to the principle of
\nproportionality in prescribing liability according to the
\nculpability of each kind of criminal conduct. It ordinarily
\nallows some significant discretion to the Judge in arriving
\nat a sentence in each case, presumably to permit sentences
\nthat reflect more subtle considerations of culpability that
\nare raised by the special facts of each case.  Judges in
\nessence affirm that punishment ought always to fit the
\ncrime; yet in practice sentences are determined largely by
\nother considerations. Sometimes it is the correctional needs
\nof the perpetrator that are offered to justify a sentence.
\nSometimes the desirability of keeping him out of
\ncirculation, and sometimes even the tragic results of his
\ncrime. Inevitably these considerations cause a departure
\nfrom just desert as the basis of punishment and create cases
\nof apparent injustice that are serious and widespread.\n<\/p>\n
\tProportion between crime and punishment is a goal
\nrespected in principle, and in spite of errant notions, it
\nremains a strong influence in the determination of
\nsentences. The practice of punishing all serious crimes with
\nequal severity is now unknown in civilized societies, but
\nsuch a radical departure from the principle of
\nproportionality has disappeared from the law only in recent
\ntimes. Even now for a single grave infraction drastic
\nsentences are imposed. Anything less than a penalty of
\ngreatest severity for any serious crime is thought then to
\nbe a measure of toleration that is unwarranted and unwise.
\nBut in fact, quite apart from those considerations that make
\npunishment unjustifiable when it is out of proportion to the
\ncrime, uniformly disproportionate punishment has some very
\nundesirable practical consequences.\n<\/p>\n
After giving due consideration to the facts and
\ncircumstances of each case, for deciding just and
\nappropriate sentence to be awarded for an offence, the
\naggravating and mitigating factors and circumstances in
\nwhich a crime has been committed are to be delicately
\nbalanced on the basis of really relevant circumstances in a
\ndispassionate manner by the Court.  Such act of balancing is
\nindeed a difficult task.  It has been very aptly indicated
\nin Dennis Councle MCGDautha v. State of Callifornia: 402 US
\n183: 28 L.D. 2d 711  that no formula of a foolproof nature
\nis possible that would provide a reasonable criterion in
\ndetermining a just and appropriate punishment in the
\ninfinite variety of circumstances that may affect the
\ngravity of the crime.  In the absence of any foolproof
\nformula which may provide any basis for reasonable criteria
\nto correctly assess various circumstances germane to the
\nconsideration of gravity of crime, the discretionary
\njudgment in the facts of each case, is the only way in which
\nsuch judgment may be equitably distinguished.\n<\/p>\n
In Jashubha Bharatsinh Gohil v. State of Gujarat<\/a> (1994
\n(4) SCC 353), it has been held by this Court that in the
\nmatter of death sentence, the Courts are required to answer
\nnew challenges and mould the sentencing system to meet these
\nchallenges.  The object should be to protect the society and
\nto deter the criminal in achieving the avowed object to law
\nby imposing appropriate sentence. It is expected that the
\nCourts would operate the sentencing system so as to impose
\nsuch sentence which reflects the conscience of the society
\nand the sentencing process has to be stern where it should
\nbe. Even though the principles were indicated in the
\nbackground of death sentence and life sentence, the logic
\napplies to all cases where appropriate sentence is the
\nissue.\n<\/p>\n
Imposition of sentence without considering its effect
\non the social order in many cases may be in reality a futile
\nexercise. The social impact of the crime, e.g. where it
\nrelates to offences against women, dacoity, kidnapping,
\nmisappropriation of public money, treason and other offences
\ninvolving moral turpitude or moral delinquency which have
\ngreat impact on social order, and public interest, cannot be
\nlost sight of and per se require exemplary treatment. Any
\nliberal attitude by imposing meager sentences or taking too
\nsympathetic view merely on account of lapse of time in
\nrespect of such offences will be result-wise counter
\nproductive in the long run and against societal interest
\nwhich needs to be cared for and strengthened by string of
\ndeterrence inbuilt in the sentencing system.\n<\/p>\n
In Dhananjoy Chatterjee v. State of W.B.<\/a> (1994 (2) SCC\n<\/p>\n
220), this Court has observed that shockingly large number
\nof criminals go unpunished thereby increasingly, encouraging
\nthe criminals and in the ultimate making justice suffer by
\nweakening the system’s creditability. The imposition of
\nappropriate punishment is the manner in which the Court
\nresponds to the society’s cry for justice against the
\ncriminal. Justice demands that Courts should impose
\npunishment befitting the crime so that the Courts reflect
\npublic abhorrence of the crime.  The Court must not only
\nkeep in view the rights of the criminal but also the rights
\nof the victim of the crime and the society at large while
\nconsidering the imposition of appropriate punishment.\n<\/p>\n
Similar view has also been expressed in Ravji v. State
\nof Rajasthan, (1996 (2) SCC 175). It has been held in the
\nsaid case that it is the nature and gravity of the crime but
\nnot the criminal, which are germane for consideration of
\nappropriate punishment in a criminal trial.  The Court will
\nbe failing in its duty if appropriate punishment is not
\nawarded for a crime which has been committed not only
\nagainst the individual victim but also against the society
\nto which the criminal and victim belong.  The punishment to
\nbe awarded for a crime must not be irrelevant but it should
\nconform to and be consistent with the atrocity and brutality
\nwith which the crime has been perpetrated, the enormity of
\nthe crime warranting public abhorrence and it should
\n“respond to the society’s cry for justice against the
\ncriminal”. If for extremely heinous crime of murder
\nperpetrated in a very brutal manner without any provocation,
\nmost deterrent punishment is not given, the case of
\ndeterrent punishment will lose its relevance.\n<\/p>\n
These aspects have been elaborated in State of M.P. v.
\nGhanshyam Singh<\/a> (2003(8) SCC 13).\n<\/p>\n
In both sub-sections (1) and (2) of Section 376
\nminimum sentences are prescribed.\n<\/p>\n
Both in cases of sub-sections (1) and (2) the Court has
\nthe discretion to impose a sentence of imprisonment less
\nthan the prescribed minimum for ‘adequate and special
\nreasons’. If the Court does not mention such reasons in the
\njudgment there is no scope for awarding a sentence lesser
\nthan the prescribed minimum.\n<\/p>\n
In order to exercise the discretion of reducing the
\nsentence the statutory requirement is that the Court has to
\nrecord “adequate and special reasons” in the judgment and
\nnot fanciful reasons which would permit the Court to impose
\na sentence less than the prescribed minimum. The reason has
\nnot only to be adequate but also special. What is adequate
\nand special would depend upon several factors and no strait-
\njacket formula can be indicated. What is applicable to trial
\nCourts regarding recording reasons for a departure from
\nminimum sentence is equally applicable to the High Court.
\nThe only reason indicated by the High Court is that the
\naccused belonged to rural areas.  The same can by no stretch
\nof imagination be considered either adequate or special.
\nThe requirement in law is cumulative.\n<\/p>\n
Considering the legal position as indicated above the
\nHigh Court’s order is clearly unsustainable and is
\naccordingly set aside.\n<\/p>\n
We remit the matter to the High Court to hear the
\nmatter only relating to sentence.  Normally, in view of the
\nestablished law on the subject we would have closed the
\nmatter.  But learned counsel for the accused submitted that
\nthe High\t Court has not noted several other mitigating
\nfactors which were placed for consideration and granted
\nrelief on the indicated reasons.  The High Court shall
\nconsider factors to be placed for consideration and decide
\nthe question of sentence keeping in view the principles
\nindicated above.\n<\/p>\n
The appeal is accordingly disposed of.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Madhya Pradesh vs Babbu Barkare @ Dalap Singh on 13 May, 2005 Author: A Pasayat Bench: Arijit Pasayat, S.H. Kapadia CASE NO.: Appeal (crl.) 738 of 2005 PETITIONER: State of Madhya Pradesh RESPONDENT: Babbu Barkare @ Dalap Singh DATE OF JUDGMENT: 13\/05\/2005 BENCH: ARIJIT PASAYAT & S.H. KAPADIA JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-22455","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Madhya Pradesh vs Babbu Barkare @ Dalap Singh on 13 May, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-babbu-barkare-dalap-singh-on-13-may-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Madhya Pradesh vs Babbu Barkare @ Dalap Singh on 13 May, 2005 - 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