STATE OF MADHYA PRADESHversusSANTOSH KUMAR

A                        STA TE OF MAD HYA PRADESH
                                     v.
                              SANTOSH KUMAR

                                   JULY 14, 2006

B           [ARJJJTPASAYAT AND LOKESHWARSINGH PANTA,JJ.]


         Penal Code, 1860; Ss. 342, 375 and 376 with Criminal Law
    (Amendment) Act, 1983:

c          Rape of a minor-Trial Court found accused guilty of offences under
    Sections 342, 376(2)(/) and sentenced him to undergo rigorous imprisonment
    for 10 years-High Court reducing sentence to 5 years-On appeal, Held:
    Law frowns upon acts constituting rape and provides for more stringent
    sentence to accused-Protection ofsociety by stamping out criminal proclivity
D   must he the object of law which could be acknowledged by imposing
    appropriate sentence-Sentencing process must be stern where it should be
    tempered with mercy where it warrants to be-It is the duty of the Court to
    award proper sentence having regard to the nature of the offence and the
    manner in which it was committed-Proportion between crime and punishment
     is a goal respected in principle and follows in determining sentences-
£    Disproportionate punishment has some very undesirable practical
    consequences-Aggravating and mitigating factors need to be delicately
    balanced in terms of relevant circumstances in a dispassionate manner by the
     Court-In terms ofprovisions of Section 376, though the Court has discretion
    to impose sentence less than prescribed by assigning adequate and special
F   reasons, High Court has failed to indicate such reasons-Besides, provisions
     of law under Section 376(2) provide for more stringent punishment to accused
    when the victim is under 12 years of age-The High Court erred in reducing
     the sentence since it failed to record any special and adequate reasons
     therefor-Sentencing.

G         The question which arose for determination in this appeal before this
    Court was as to whether the High Court was right in reducing the sentence
    of rigorous imprisonment against the accused of rape of a minor without
    assigning any special reasons thereof.


H                                       548
             STA TE OF MAD HY A PRADESH v. SANTOS!-! KUMAR                   549

       Allowing the appeal, the Court                                               A
       HELD: I.I. Sections 375 and 376 IPC have been substantially changed
by Criminal Law (Amendment) Act, 1983, and several new sections were
introduced by the new Act. 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.1552-E-FI                                            B
     Criminal law (Ninth Edition) by Stephen and Halsbury's Statutes of
England and Wales (Fourth Edition) Volume 12, referred to.

      1.2. 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            C
victim of her most valuable and priceless possession that is dignity.
                                                                      1553-B-CI

      2.1. 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          D
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 oflaw. 1553-D-El

       "law in Changing Society" by Friedman, referred to.

      2.2. By deft.modulation sentencing process be stern where it should be,       E
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                 F
consideration. [553-F-Gl

      Mahesh v. State of MP., [19871 2 SCR 710, relied on.

      2.3. Undue sympathy to impose inadequate sentence would do more harm
to the justice system to undermine the public confidence in the efficacy of         G
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. 1554-B-CI

      Sevaka Perumal etc. v. State of Tamil Nadu, AIR (1991) SC 1463, relied
on.                                                                                 H
    550                     SUPREME COURT REPORTS 12006] SUPP. 3 S.C.R.

A         2.4. 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
B 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. These considerations cause a departure from just
    desert as the basis of punishment and create cases of apparent injustice that
    are serious and widespread. 1554-D-EI

C         3.1. Proportion between crime and punishment is a goal respected in
    principle, and inspite of errant notions, it remains a strong influence in the
    determination of sentences. 1554-FI

         3.2. In fact, quite apart from those considerations that make punishment
    unjustifiable when it is out of proportion to the crime, uniformly
D   disproportionate punishment has some very undesirable practical
    consequences. 1554-Hi

          3.3. 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
E   a crime has been committed are to be delicately balanced on the basis of really
    relevant circumstances in a dispassionate manner by the Court. 1555-A-BI

          Jashubha Bharatsinh Gohil v. State a/Gujarat. 1199414 SCC 353, relied
    on.

F         Dennis Councle MCGDautha v. State of Callifornia: 402 US 183: 28
    L. D. 2d 71 t, referred to.

          4.1. 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 where it relates to offences against women, more particularly
G   against a child of tender age, which have great impact on social order, and
    public interest, cannot be lost sight of and per se require exemplary treatment.
    Any liberal atti~ude by imposing meagre 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
H   which needs to be cared for and strengthened by string of deterrence inbuilt
        STA TE OF MADHYA PRADESH v. SAN TOSH KUMAR [PASA Y AT. J.]           551

in the sentencing system. 1555-F-G-HI                                                A
      Dhananjoy Cha11e1jee v. State of W.B., 1199412 SCC 220; Ravji v. State
of Rajasthan, I 199612 SCC 175 and State of MP. v. Babbu Barkare alia Dalap
Singh, 1200515SCC413, relied on.

      4.2. In order to exercise the discretion of reducing the sentence the          B
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 only
reason indicated by the High Court in the instant case is the young age of the
accused and the fact that he belongs to a Scheduled Tribe. The same can by           C
no stretch of imagination be considered either adequate or special reasons.
The requirement in law is cumulative. The victim is a child who was about 6
years of age at the time of commission of offence. Sub section (2) of Section
376 IPC provides for a more stringent punishment when the victim is underl2
years of age. Hence, the High Court was clearly in error in reducing the
sentence without recording any adequate and special reason in imposing lesser        D
sentence.1556-G-H; 557-A-B-CI

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 762 of
2006.

    From the Judgment and Order dated 7.2.2004 of the High Court of                  E
Madhya Pradesh at Jabalpur in Criminal Appeal No. 776/2002.

        G.D. Singh for the Appellant.

        The Judgment of the Court was delivered by
                                                                                     F
        ARIJIT PASA YAT, J. Leave granted.

      A six years old child was subjected to sexual abuse by the respondent.
He faced trial for alleged commission of offences punishable under Section
376(2)(t) and Section 342 of the Indian Penal Code, 1860 (in short the 'IPC').
The trial court found respondent guilty of the offences for the offence              G
punishable under Section 376(2)(t) !PC. respondent was sentenced to undergo
imprisonment for I 0 years R.I. with a fine of Rs. 500/- with default stipulation.
He was further sentenced to undergo imprisonment of three months for the
offence punishable in tenns of Section,342 !PC. Both the substantive sentences
of imprisonment were ordered to run concurrently. In the appeal filed before
the High Court the accused did not question the conviction, but prayed for           H
    552                     SUPREME COURT REPORTS 12006] SUPP. 3 S.C.R.

A reduction in sentence. The High Cou1t reduced the sentence for the offence
  punishable under Section 376(2)(1) IPC to 5 years, while maintaining the
  sentence in respect of other offence. The State of Madhya Pradesh has
  questioned correctness of the judgment on the ground that the reduction in
  sentence was clearly uncalled for. The only ground indicated by the High
B Court to reduce the sentence was the young age of the accused and he being
  member of the Scheduled Tribe. Learned counsel for the appellant-State
  submitted that the reduction of sentence as done by learned Single Judge is
  contrary to law as laid down by this Court in several cases. While dealing
  with the offence of rape which was established, the direction for reduction
  of sentence should not have been given on the specious reasonings indicated
C above.
          There is no appearance on behalf of the respondent in spite of service
    of notice.

          The crucial question which needs to be decided is the proper sentence
D and acceptability of reasons which weighed with learned Single Judge.
         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
E 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
F 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 ofa 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 h.:r will' (Hale PC 628). The essential words in an indictment
G 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; I Hon.6, la, 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
H generation (Stephen's "Criminal Law" 9th Ed. p.262). In 'Encyclopedia of Crime
      STATEOFMADHYAPRADESHv. SANTOSHKUMAR[PASAYATJ] 553

and Justice' (Volume 4, page 1356) it is stated "...... even slight penetration is A
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.
                                                                                  B
      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. In the instant case a
child aged about 6 years is the victim. Law frowns upon such acts and             C
provides for more stringent sentence as shall be dealt with infra.

      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   D
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.     E
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           F
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
commined, 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
commined due to deep-seated mutual and personal rivalry may not call for          G
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 MP., [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 H
    554                     SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A           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."
B
         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
C 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.

         The criminal law adheres in general to the principle of proportionality
  in prescribing liability according to the culpability of each kind of criminal
D 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
E 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.
F        Proportion between crime and punishment is a goal respected in principle,
  and in spite of errant notions, it remains a strong influence in the detennination
  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.
G 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
H some very undesirable practical consequences.
     STATE OF MAD HY A PRADESH v. SANTOSH KUMAR [PASAYA T. J.] SSS

       After giving due consideration to the facts and circumstances of each A
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 Counc/e B
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 C
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.

       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 D
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 E
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.

      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 p
crime, e.g. where it relates to offences against womel!, (more particularly a
child of tender age) 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 r:ieager sentences or taking too sympathetic view merely on account G
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.
                                                                              H
    556                    SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A       In Dhananjoy Chatterjee v. State of WB., [1994] 2 SCC 220, this Court
  has observed that shocking:y 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
B 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.

C        Similar view has also been expressed in Ravji v. State of Rajasthan,
  [1996] 2 sec 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
D 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 extremely heinous
E 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.

          These aspects have been elaborated in State of M.P. v. Babbu Barkare
    alia Dalap Singh, (2005] 5 SCC 413.
F
          Both in cases of sub-sections ( 1) and (2) of Section 376 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.
G
        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
H upon several factors and no strait-jacket formula can be indicated. What is
           STATE OF MAD HY A PRADESH v. SANTOSH KUMAR [PASAYA T, J.]            557
r
      applicable to trial Courts regarding recording reasons for a departure from A
      minimum sentence is equally applicable to the High Court. The only reason
      indicated by the High Court is the young age of the accused and the fact that
      he belongs to a Scheduled Tribe. The same can by no stretch of imagination
      be considered either adequate or special. The requirement in law is cumulative.

            It is to be noted that the victim in the instant case is a child who was   B
      about 6 years of age at the time of commission of offence. Sub section (2)
      of Section 376 IPC provides for a more stringent punishment when the victim
      is under 12 years of age.

            In the instant case the High Court was clearly in error in reducing the    C
      sentence without recording any adequate and special reason in imposing
      lesser sentence.

            Considering the legal pos1t1on as indicated above the High Court's
      order is clearly unsustainable.

             Accordingly, the judgment of the High Court is set aside and that of D
      the trial court is restored.

           Appeal is allowed.

      S.K.S.                                                       Appeal allowed.
.<.