State Of M.P vs Sheikh Shahid

State of Madhya Pradesh ...Appellant

Versus

Sheikh Shahid ....Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Since 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.

2. The 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.

The 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.

3. There is no appearance for the respondent in spite of service of

notice.

4. While 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.

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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 upto 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 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

3 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 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.

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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 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

5 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."

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.

6 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).

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 desserts' 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. 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 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

8 711 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. 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 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

9 death sentence and life sentence, the logic applies to all cases where

appropriate sentence is the issue.

14. 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 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 system.

15. 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

10 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.

16. 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 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

11 manner without any provocation, the most deterrent punishment is not

given, the case of deterrent punishment will lose its relevance.

17. These aspects have been elaborated in State of M.P. v. Ghanshyam

Singh (2003 (8) SCC 13).

18. In 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 prescribed minimum.

19. 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

12 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.

20. Considering 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.

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

.........................................J. (LOKESHWAR SINGH PANTA)

.........................................J. (P. SATHASIVAM) New Delhi, April 15, 2009

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