State Of Rajasthan vs Gajendra Singh

learned Single Judge. It is to be noted that the sentences 3 prescribed for offences relatable to Section 376 are

imprisonment for life or up to a period of 10 years, but should

not be less than seven years unless special and adequate

reasons are cited by the Court for giving lesser punishment.

10. 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 4 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 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.

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11. 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.

12. 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 6 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

7 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."

13. 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).

14. 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

8 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.

15. 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 9 unjustifiable when it is out of proportion to the crime,

uniformly disproportionate punishment has some very

undesirable practical consequences.

16. 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 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 10 the facts of each case, is the only way in which such judgment

may be equitably distinguished.

17. 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.

18. 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 11 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.

19. 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.

20. Similar view has also been expressed in Ravji v. State 12 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".

21. These aspects have been elaborated in State of M.P.

v. Ghanshyam Singh (2003(8) SCC 13), and State of M.P. v.

Babbu Barkare alias Dalap Singh (2005 (5) SCC 413).

22. Both in cases of sub-sections (1) and (2) the Court

has the discretion to impose a sentence of imprisonment less 13 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.

23. 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.

24. The requirement in law as to adequate and special

reasons is cumulative. The High Court has not recorded any

reason, much less any adequate and special reasons for

reducing the sentence. The High Court was, therefore, not 14 justified in reducing the sentence below the prescribed

minimum.

25. In the background of what has been stated above, we

set aside the judgment of the High Court to the extent that in

respect of the offence punishable under Section 376 IPC, the

respondent shall serve the minimum of seven years rigorous

imprisonment.

26. The appeal is allowed to the aforesaid extent.

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

...........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, August 4, 2008

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