State Of M.P vs Basodi

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) Mr.C.D.Singh, Adv.

For Respondent(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

Mukundakam Sharma.

The appeal is allowed in terms of the signed

judgment.

(Shashi Sareen) (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

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge 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.

2. High Court reduced the period to already undergone on the ground that the accused

was an illiterate labourer and belonged to Scheduled Tribe.

3. Learned 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.

4. The 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.

5. 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 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

highest order.

6. 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.

7. 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 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 reformative jargon."

8. 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 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).

9. 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.

10. 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.

11. 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

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.

12. In 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

issue.

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, 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 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. Similar 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.

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.

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, 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 is

cumulative.

19. The 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).

20. The order of the High Court is clearly indefensible and is set aside. Order of the trial

Court is restored.

21. The appeal is allowed.

........................J. (Dr. ARIJIT PASAYAT)

..........................J. (D.K. JAIN)

.........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi April 27, 2009