STATE OF MADHYA PRADESHversusSHEIKH SHAHID

                      [2009] 5 S.C.R. 1038

A                STATE OF MADHYA PRADESH
                                v.
                         SHEIKH SHAHID
                (Criminal Appeal No. 660 of 2004)
                         APRIL 15, 2009
B
     [DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
                 AND P. SATHASIVAM, JJ.]

        PENAL CODE, 1860:
c
      s.376 - Conviction by trial court - Sentence of 7 years
  imposed - Reduced by High Court to the period already
  undergone which was about six months only- HELD: The only
  reason indicated by the High Court being that accused
  belonged to rural areas, can neither be considered adequate
D                                                                 I
  nor special -· Requirement of law is cumulative - Order of
  High Court is clearly unsustainable and is set aside -
  Sentencing - Principles explained.

      Respondent no. 1 was convicted by trial court u/s 376
E IPC and was sentenced to 7 years RI. On appeal, the High
  Court reduced the sentence to the period already
  undergone which was about six months only.

      Allowing the appeal filed by the State Government,
F the Court

         HELD:1.1. Sections 375 and 376 IPC have been
    substantially changed by Criminal Law (Amendment) Act,
    1983, and several new sections have been introduced by
    the new Act, i.e. ss.376-A, 376- B, 376-C and 376-D. The
G 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'. The physical
H                               1038
       STATE OF MADHYA PRADESH v. SHEIKH SHAHID 1039
-~




     scar may heal up, but the mental scar will always remain.       A
     When a woman is ravished, what is inflicted is not merely
     physical injury but the deep sense of some deathless
     shame. [Para 6 and 7) [1042-G-H; 1043-A-F-G]

         Mahesh v. State of M.P. (1987) 2 SCR 710; Sevaka            B
     Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463 and
     Jashubha Bharatsinh Gohil v. State of Gujarat 1994 (4) SCC
     353, referred to.

         Dennis Councle McGautha v. State of California: 402 US
     183: 28 L.D. 2d 711, referred to.                               c
         1.2. 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,        D
     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 9) [1044-H; 1045-A-B]

         Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991         E
     SC 1463, relied on.

          1.3. 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          F
     aggravating and mitigating factors and circumstances in
     which a crime has been committed are to be delicately
     balanced by the court on the basis of really relevant
     circumstances in a dispassionate manner. Such act of
     balancing is indeed a difficult task. [Para 12) [1046-A-B]      G
          1.4. 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, and offences of
                                                                     H
    1040       SUPREME COURT REPORTS [2009) 5 S.C.R.


A 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 E1xemplary treatment. Any liberal attitude by
B 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
c inbuilt in the sentencing system. [Para 14] [1046-G-H;          :
  1047-A-B]

        Dhananjoy Chatterjee v. State of W.B. 1994 (2) SCC
    220; Ravji v. State of Rajasthan 1996 (2) SCC 175 and State
    of M.P. v. Ghanshyam Singh 2003 (8) SCC 13, referred to.
D
         2. In bc>th sub-sections (1) and (2) of s.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 than the prescribed
E   minimum for 'adequate and special reasons.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 reas;ons which would permit the court to impose·
F   a sentence less than the prescribed minimum. The reason
    has not only to be adequate but also special. If the court
    does not mEmtion such reasons in the judgment there Is
    no scope for awarding a sentence lesser than the
    prescribed minimum. In the instant case, the only reason
G   indicated by the High Court is tha't 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. Considering the legal
    position, the High Court's order is clearly unsustainable
H   and is acco1·dingly set aside. [Para 18 to 20] [1048-B-G]
             STATE OF MADHYA PRADESH v. SHEIKH SHAHID 1041

                                 Case Law Reference:                        A
                 (1987) 2 SCR 710           referred to         Para 8

                 AIR 1991 SC 1463           relied on           Para 9

                 402 US 183: 28 L.D. 2d 711      referred1o     Para 12     B
        ~

                 1994 (4) sec 353           referred to         Para 13

                 1994 (2) sec 220           referred to         Para 15

                 1996 (2) sec 115           referred to         Para 16     c
                 2003 (8) sec 13            referred to         Para 17

                CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
            No. 660 of 2004.                                                D
    ~
                From the Judgment & Order dated 11.08.2003 of the High
            Court of Madhya Pradesh at Jabalpur in Criminal Appeal No.
(           229 of 2003.
•
                  Govind Goel, Amboj Agarwal, C.D. Singh and Kamakshi       E
            for the Appellants.

                The Judgment of the Court was delivered by

                 DR. ARIJIT PASAYAT, J. 1. Since the only question          F
            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
                                                                             G
            offence punishable under Section 376 of the Indian Penal
            Code, 1860 (in short. the 'IPC'). The respondent-accused
    t       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
                                                                             H
    1042       SUPREME COURT REPORT3 [2009) 5 S.C.R.


A 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
B 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
c 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.
D        3. There is no appearance for the respondent in spite of
                                                                      "f
    service of notice.

      4. While dealing with the offence of rape which was
  established, the direction for reduction of sentence should not
E have been given on the specious reasoning that the
  respondent-accused belonged to the rural areas.

       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
F 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
G an offence affecting the human body. In that Chapter, there is a
  separate heading for ·sexual offence', which encompasses
  Sections 375, 376, 376-A, 376-8, 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,
H and several new sections were introduced by the new Act, i.e.
             STATE OF MADHYA PRADESH v. SHEIKH SHAHID 1043
                       [DR. ARIJIT PASAYAT, J.]
            376-A, 376-B, 376-C and 376-D. The fact that sweeping A
            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 B
            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 c
            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,
        t
                                                                                  D
             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 'Encyclopaedia 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 E
            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.           F

                 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.                                                               G
                 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
                                                                                 H
    1044        SUPREME COURT REPORTS [2009] 5 S.C.R.


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
B be the object of law which must be achieved by imposing                  ~
   appropriate sentence. Therefore, law as a corner-stone of the
   edifice of "orde~· 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
c 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
D                                                                          1
  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
E 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      ~
F 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
G       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             t
        appreciates the language of deterrence more than the
        reformative jargon."
H       9. Therefore, undue sympathy to impose inadequate
      ~-,1\TE OF MADHYA PRADESH v. SHEIKH SHAHID 1045
                     [DR. ARIJIT PASAYAT, J.}
     sentence would do more harm to the justice system to                A
     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           B
     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 prescnbing liability according to the culpability C
     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 D
     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 E
     departure from ·just desserts' as the basis of punishment and
     create cases of apparent injustice that are serious and
     widespread.         ·

.'        11. Proportion between crime and punishment is a goal F
     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 G
     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.
                                                                         H
                                                                        I

                                                                        i
    1046          SUPREME COURT RE~ORTS [2009] 5 s.c.R;

A ..     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 ~asis of really
B relevant Circumstances in a dispassionate manner by the Court.
   Such actof 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 711 that no formula of a
  foolproof nature is possible that would provide a reasonable
c 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 fortriula which may
  provide any basis for reasonable criteria to correctly assess
  various circumstances germane_to the consideration of gravity
0 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
E 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
F . would operate the sentencing system so as to impose.such
    sentenee which reflects.the conscience of the society and the
    sentencing process has to be stem where it should be. Even
    though the principles were indicated in the background of death
  . sentence and life sentence, the logic applies to all cases where
G 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,
H misappropriation of public money, treason and other offences .
         STATE OF MADHYA PRADESH v. SHEIKH SHAHID 1047
                   [DR. ARIJIT PASAYAT, J.]
       involving moral turpitude or moral delinquency which have great         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 a
       view merely on account of lapse of time in respect of such
       offences will be result-wise counter productive in the long run         B
       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                c
        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.         D
   )
       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                E
       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
                                                                               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
       been committed not only against the individual victim but also
       against the society to which the criminal and victim belong. The
                                                                               G
       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
                                                                               H
    1048       SUPREME COURT REPORTS [2009] 5 S.C.R.


A criminal". If for an extremely heinous crime of murder
  perpetrated in a very brutal 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.
8
    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
C 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.

0      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
E 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
F 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
G 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.

H R.P.                                           Appeal allowed.