IMPORTANT POINT
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.

Headnote:Indian Penal Code, 1860 — Section 376(2)(f) — Sexual abuse of six year old girl — Sentence — Respondent convicted under by trial Court and sentenced to undergo imprisonment for 10 years R.I. with fine — In appeal before High Court accused did not question conviction but prayed for reduction in sentence — High Court reduced sentence to 5 years and only ground indicated to reduce sentence was young age of accused and he being member of Schedule Tribe — State appeal — Sweeping changes by Amendment Act in offence of rape reflected legislative intent to curb offence with iron hand — In operating the sentencing system law should adopt corrective machinery or the deterrence based on factual matrix — Undue sympathy to impose inadequate sentence would do more harm to justice system to undermine public confidence in efficacy of law — 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 in a dispassionate manner by Court — Court had discretion to impose a sentence of imprisonment less than the minimum prescribed against accused “for adequate and special reason" — Reasons recorded by High Court could not be considered to be either adequate or Special — High Court erred in reducing sentence and impugned order was liable to be set aside — Sentence awarded by Trial Court was liable to be restored.
       Held : 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.(Para 7)
       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 the facts of each case, is the only way in which such judgment may be equitably distinguished.(Para 11)
       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. 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 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 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 sentence without recording any adequate and special reason in imposing lesser sentence. Considering the legal position as indicated above the High Courts order is clearly unsustainable. Accordingly, the judgment of the High Court is set aside and that of the trial court is restored.(Paras 17 to 22)

JUDGMENT

Arijit Pasayat, J. — Leave granted.

2. 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)(f) 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 punishable under Section 372(2)(f) IPC. respondent was sentenced to undergo imprisonment for 10 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 terms of Section 342 IPC. 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 reduction in sentence. The High Court reduced the sentence for the offence punishable under Section 376(2)(f) 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 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 above.

3. There is no appearance on behalf of the respondent in spite of service of notice.

4. The crucial question which needs to be decided is the proper sentence and acceptability of reasons which weighed with learned Single Judge.

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 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 been carnally known by the male organ of generation (Stephens "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 Halsburys 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.

6. The physical scar may heal up, but the mental scar will always remain. When a woman i

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2006 Supreme(SC) 620

IMPORTANT POINTFor 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.

Cases Referred (5)

IMPORTANT POINT
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.