Important point
For deciding just and appropriate sentence to be awarded for an offence, aggravating and mitigating factors and circumstances in which crime was committed are to be delicately balanced.

Headnote:Indian Penal Code, 1860—Section 377—Offence of rape—Sentence—Trial Court holding respondent-accused guilty for offence awarded a sentence of seven years imprisonment and fine—High Court directed sentence to be reduced to period already undergone and accused had undergone imprisonment for about eleven months—Only ground recorded for reducing sentence was that accused was illiterate aged about 20 years—State appeal—In operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix—Undue sympathy to impose inadequate sentence would do more harm to justice system to undermine public confidence—Principle of proportionality—Aggravating and mitigating factors in which crime was committed are to be delicately balanced—Court has to record reasons “adequate and special” to exercise discretion of reducing sentence—Reason recorded by High Court in reducing sentence could not be considered adequate or special—Impugned judgment was liable to be set aside and matter remitted.
Held : 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). 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. (Paras 10 and 11)
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. Considering the legal position as indicated above the High Court’s order is clearly unsustainable and is accordingly set aside. We remit the matter to the High Court to hear the matter only relating to sentence. Normally, in view of the established law on the subject we would have closed the matter. But learned counsel for the accused submitted that the High Court has not noted several other mitigating factors which were placed for consideration and granted relief on the indicated reasons. The High Court shall consider factors to be placed for consideration and decide the question of sentence keeping in view the principles indicated above. (Paras 21 to 23)

Judgment

Arijit Pasayat, J.—Leave granted.

2. Since the only question involved in this Appeal is whether learned Single Judge was right in reducing the sentence as imposed by the trial court on respondent, detailed reference to the factual aspects is unnecessary.

3. The respondent faced trial for alleged commission of offences punishable under Section 376 of the Indian Penal Code, 1860 (in short the ‘IPC’) The respondent- accused Babbu was sentenced to undergo rigorous imprisonment for a period of seven years with a fine of Rs. 2,000/- with default stipulation. The conviction was recorded by learned Third Sessions Judge, Betul who imposed the aforesaid sentences. The respondent-accused preferred an appeal (Crl. Appeal No. 320/2003) in the High Court of Madhya Pradesh. By the impugned judgment, the High Court directed the sentence to be reduced to the period already 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 had undergone sentence of imprisonment for a period of about eleven months. The only ground recorded for reducing the sentence was that the accused person was an illiterate labourer aged about 20 years at the time of commission of offence. That appeared to be a just and proper ground to the learned Single Judge to reduce the sentence to the period already undergone.

4. In support of the appeal, 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 above.

5. Learned counsel appearing for the respondent submitted that after considering the relevant aspects the learned Single Judge had directed reduction in sentence restricting it to the period already undergone. This Court should not interfere in the matter particularly under Article 136 of the Constitution of India, 1950 (in short the ‘Constitution’).

6. 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 prescribed for offences relatable to Section 376 are imprisonment for life or up to a period of 10 years.

7. 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 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 any the slightest degree of the organ alleged to have be

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2005 Supreme(SC) 848

Important pointFor deciding just and appropriate sentence to be awarded for an offence, aggravating and mitigating factors and circumstances in which crime was committed are to be delicately balanced.

Cases Referred (6)

Important point
For deciding just and appropriate sentence to be awarded for an offence, aggravating and mitigating factors and circumstances in which crime was committed are to be delicately balanced.