State Of Punjab vs Rakesh Kumar

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

4 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

5 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-

6 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

7 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

9 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,

10 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

11 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.

13 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.

14 (Dr. ARIJIT PASAYAT)

............................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi August 29, 2008

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