Supreme Court of India
STATE OF M.P.versusBASODI
- Citation
- 2009 INSC 610
- Decided
- 27 April 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
A sentence under Section 376 IPC may be reduced below the prescribed minimum only when the court records adequate and special reasons, which were absent in this case, so the High Court's reduction is set aside.
Summary
The State of Madhya Pradesh appealed a High Court order that reduced the sentence of the accused, Basodi, who had been convicted under Section 376 of the Indian Penal Code for rape. The High Court had lowered the term to the period already served, citing the accused's illiteracy, rural background, and Scheduled Tribe status. The Supreme Court examined whether such a reduction was permissible, noting that both sub‑sections of Section 376 prescribe minimum sentences and that a lower sentence can be imposed only for "adequate and special" reasons expressly recorded in the judgment. The Court held that the reasons given were neither adequate nor special, and therefore the High Court’s reduction was indefensible. Consequently, the trial court’s original sentence was restored and the appeal was allowed.
Issues considered
- Whether a court may reduce the sentence prescribed under Section 376 IPC below the statutory minimum without recording adequate and special reasons.
- Whether the reasons of illiteracy, rural background and Scheduled Tribe status constitute adequate and special reasons for reducing the sentence.
Legislation cited
- Indian Penal Code, 1860s. 376
Subjects
rapeSection 376 IPCminimum sentencesentencing discretionadequate and special reasonscriminal lawdeterrence
Judgment
[2009] 6 S.C.R. 1166
A STATE OF M.P.
v.
BASODI
(Criminal Appeal No. 1002 of 2004)
APRIL 27, 2009
B
[DR. ARIJIT PASAYAT, D.K. JAIN AND DR.
MUKUNDAKAM SHARMA, JJ.]
Sentence/Sentencing :
c
Conviction uls. 376 /PC - In appeal, High Court reducing
the sentence to less than prescribed minimum -- Held: The
Court has the discretion to award sentence lesser than the
prescribed minimum, only for adequate and special reasons
and not otherwise -- On facts, reason ascribed for reducing
0
the sentence was not adequate and special - Order of trial
Court restored.
Award of punishment - Criteria for detennination - Role
of Courts - Discussed.
E
'Words and Phrases - 'Rape' and ·carnal knowledge' -
Meaning of, in the context of s. 376 /PC.
The question for consideration in the present appeal
F is whether High Court, while upholding the conviction of
the respondent-accused u/s. 376 IPC was right in
reducing the sentence to less than the prescribed
minimum.
Allowing the appeal, the Court
G
HELD: 1. In both sub-sections (1) and (2) of Section
376 IPC, 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
H 1166
STATE OF M.P. v. BASODI 1167
" than the prescribed minimum for 'adequate and special A
reasons'. 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. If the court does not mention such reasons in
the judgment there is no scope for awarding a sentence B
lesser than the prescribed minimum. In the instant case,
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 c
adequate or special. The requirement in law is cumulative.
[Paras 16, 17 and 18] [1177-8-C; 1177-0-F]
State of M.P. v. Babbu Barkare @ Dalap Singh, 2005 (5)
•sec 413 and State of M.P. v. Babula/, 2008 (1) sec 234,_
relied on. D
"
2.1. 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 E
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. [Para 7] [1173-8-D] F
2.2. 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,
..., G
_. 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.
[Para 8] [1173-G-H; 1174-A]
H
1168 SUPREME COURT REPORTS [2009] 6 S.C.R.
A 2.3. 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,
B 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 i.n practice
sentences are determined largely by other
c 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~
0 from just desert as the basis of punishment and create
cases of apparent injustice that are serious and ..,
widespread. [Para 9) [117 4-8-E]
2.4. After giving due consideration to the facts and
circumstances of each case, for deciding just and
E 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. [Para 11) [1174-H;
F 1175-A-B]
2.5. 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
G circumstances that may affect the gravity of the crirne; In
the absence of any foolproof formula which may provide ,..
any basis for reasonable crieteria to correctly assess
various circumstances germane to the consideration of
gravity of crime, the discretionary judgment in the facts
H of each case, is the only way in which such judgment
STATE OF M.P. v. BASODI 1169
may be equitably distinguished. [Para 11] [1175-C-D] A
2.6. 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
8
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 C
on account of lapse of time in respect of such offences
will be resul.t-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. [Para 13] [1175-G-H; 1176-A-B] D
2.7. 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 irrview the rights of the criminal but also the rights E
of the victim of the crime and the society at large while
considering the imposition of appropriate punishment)
[Para 14] [1176-D-E]
.. 2.8. The punishment to be awarded for a crime must
not be irrelevant but it should conform to and be F
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". [Para
15] [1176-F-H] G
Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991
SC 1463 - relied on
H
1170 SUPREME COURT REPORTS [2009] 6 S.C.R.
y
A Mahesh v. State of M.P. 1987 2 SCR 710; Jashubha
Bharatsinh Gohi/ v. State of Gujarat, 1994 (4) SCC 353;
Dhananjoy Chatterjee v. State of WB. 1994 (2) SCC 220 and
Ravji v. State of Rajasthan, 1996 (2) SCC 175, referred to
Dennis Councle McGautha v. State of California: 402 US
B
183: 28 L.D. 2d 711, referred to.
1 Hon.6, 1a, 9 Edw. 426 a (Hale PC 628); Encyclopedia
of Crime andJustice, volume 4, page 1356; Halsbury's
Statutes of England and Wales (Fourth Edition) Volume 12;
c Law in changing Society by friedman, referred to.
Case Law Reference:
1987 2 SCR 710 referred to Para 7
D AIR 1991 SC 1463 relied on Para 8
402 US 183: 28 L.D. 2d 711 referred to Para 11
1994 (4) sec 353 referred to Para 12
1994 (2) sec 220 referred to Para 14
E
1996 (2) sec 115 referred to Para 15
2005 (5) sec 413 relied on Para 19
2008 (1) sec 234 relied on Para 19 ~
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1002 of 2004.
From the Judgment & Order dated 15.7.2003 of the High
Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.
G 291 of 2003.
i
C.D. Singh and Sunny Chaudhary for the Appellant.
The Judgment of the Court was delivered by
H
STATE OF M.P. v. BASODI 1171
.. A
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 B
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
c
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 D
" 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 E
prescribed for offences relatable to Section 376 are
imprisonment for life or up to a period of 10 years.
'1 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 F
Sections 375, 376, 376-A, 376-8, 376-C, and 376-0. '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 376-0. The fact that sweeping G
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 H
•
1172 SUPREME COURT REPORTS [2009] 6 S.C.R.
A 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
B 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,
c '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
0
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
E 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
F 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
G 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
H
•
STATE OF M.P. v. BASODI [DR. ARIJIT PASAYAT, J.] 1173
be the object of law which must be achieved by imposing A
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". B
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 st~rn
where it should be, and tempered with mercy where it warrants
to be. The facts and given circumstances in each case, the c
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 D
'.) 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
E
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 F
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. n
G
,j 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
H
1174 SUPREME COURT REPORTS (2009] 6 S.C.R.
A 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).
B 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
c 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
D 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.
E 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
'i
now unknown in civilized societies, but such a radical departure
F 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
G
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
H circumstances of each case, for deciding just and appropriate
STATE OF M.P. v. BASODI [DR. ARIJIT PASAYAT, J.] 1175
sentence to be awarded for an offence, the aggravating and A
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 Counc/e McGautha v. State of B
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 C
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. D
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 anc::I mould the sentencing system to meet these E
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 F
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 G
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 H
1176 SUPREME COURT REPORTS [2009] 6 S.C.R.
.'f
A 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
B societal interest which needs to b:! cared for and strengthened
by string of deterrence inbuilt in tt.e sentencing system.
14. In Dhananjoy Chatterjee v. State of WB. (1994 (2)
SCC 220), this Court has observed that shockingly large
number of criminals go unpunished thereby increasingly,
c encouraging the criminals and in the ultimate making justice
suffer by weakening the system's creditability. The imposition
of appropriate punishment is the manne~ in which the Court
responds to the society's cry for justice against the criminal.
Justice demands that Courts should impose punishment
D 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.
E
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
F punishment in a criminal trial. The Court will be failing in its duty
if appropriate punishment is not awarded for a crime which has
y •
-
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
G
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,
H
STATE OF M.P. v. BASODI [DR. ARIJIT PASAYAT, J.] 1177
most deterrent punishment is not given, the case of deterrent A
punishment will lose its relevance.
16. In both sub-sections (1) and (2) of Section 376
minimum sentences are prescribed.
B
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 th& Court does not mention such reasons in the
judgment there is no scope for awarding a sentence lesser than
the prescribed minimum. C
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 D
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 E
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 F
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. Babula/ (2008 (1) SCC 234).
G
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.
K.K.T. Appeal allowed. H .
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "rape"Sign in to search