Important Point
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 prescribed minimum.

Headnote:Indian Penal Code, 1860 – Sections 366 & 376 – Conviction of Respondent accused for offence punishable under Sections 366 & 376 of IPC by Trial Court sentencing him to undergo rigorous imprisonment for a period of three years and 7 years – High Court while affirming conviction reduced sentence to period undergone by a cryptic order – Appeal – Plea of appellant-State that parameters relating to imposition of lesser sentence for offence relatable to Section 376 IPC had not been kept in view – Held in both sub-sections (1) and (2) of Section 376 minimum sentences are prescribed – Both in cases of sub-sections (1) and (2) Court has discretion to impose a sentence of imprisonment less than prescribed minimum for ‘adequate and special reasons’ – If Court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than 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 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 High Court – Only reason indicated by High Court was that accused belonged to rural areas – The same could by no stretch of imagination be considered either adequate or special – Undisputedly, victim was less than 16 years of age at time of occurrence – Evidence on record also showed that victim and accused were in love and victim admitted that she had sexual intercourse with accused because of that-That of course had no relevance because of her age being less than sixteen years – The father of the victim had also filed an affidavit before High Court that since victim was settled in life a liberal view may be taken so far as sentence was concerned – In view of facts and circumstances of case sentence fixed at 3 years RI – Appeal allowed to aforesaid extent. (Paras 16 to 21)
       Facts of the Case :
       1.Respondent accused was convicted herein in the instant case for offence punishable under Sections 366 & 376 of IPC by Trial Court sentencing him to undergo rigorous imprisonment for a period of three years and 7 years. High Court while affirming conviction reduced sentence to period undergone by a cryptic order
       2.Present appeal has been filed against said order of High Court reducing sentence Plea of appellant-State that parameters relating to imposition of lesser sentence for offence relatable to Section 376 IPC had not been kept in view.
       Findings of the Court :
       Held in both sub-sections (1) and (2) of Section 376 minimum sentences are prescribed. Both in cases of sub-sections (1) and (2) Court has discretion to impose a sentence of imprisonment less than prescribed minimum for ‘adequate and special reasons’. If Court does not mention such reasons in the judgment there is no scope for awarding a sentence lesser than 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 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 High Court. Only reason indicated by High Court was that accused belonged to rural areas. The same could by no stretch of imagination be considered either adequate or special. Undisputedly, victim was less than 16 years of age at time of occurrence. Evidence on record also showed that victim and accused were in love and victim admitted that she had sexual intercourse with accused because of that. That of course had no relevance because of her age being less than sixteen years. The father of victim had also filed an affidavit before High Court that since the victim was settled in life a liberal view may be taken so far as sentence was concerned. In view of facts and circumstances of case sentence fixed at 3 years RI. Appeal allowed to aforesaid extent.
       Result : Appeal allowed in part.

Judgment

Dr. Arijit Pasayat, J. —

1.Leave granted.

2.Challenge in this appeal is to the Judgment of a learned Single Judge of the Punjab and Haryana High Court. Respondent (hereinafter referred to as the ‘accused’) was found guilty of offence punishable under Sections 366 & 376 of the Indian Penal Code, 1860 (in short the ‘IPC’) and was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- with default stipulation in respect of offence punishable under Section 366 IPC and 7 years rigorous imprisonment for the offence relatable to Section 376 IPC and to pay a fine of Rs.500/-. Though the conviction as recorded by learned Additional Sessions Judge, Patiala, was affirmed by the High Court it reduced the sentence to the period undergone. The reason for such reduction appears from the cryptic Order of the High Court that the appellant was aged about 19 years at the time of his statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C.) and the victim and the accused appeared to be in love with each other as is evident from love letters.

3.Learned counsel for the appellant-State submitted that the parameters relating to imposition of lesser sentence for offence relatable to Section 376 IPC have not been kept in view.

4.Learned counsel for the respondent-accused on the other hand supported the Judgment of the High Court.

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 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 up to a period of 10 years.

6.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 (Stephen’s “Criminal Law” 9th Ed. p.262). In ‘Encyclopoedia 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 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.

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

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2008 Supreme(SC) 1299

2008(6) Supreme 177SUPREME COURT OF INDIADr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.State of Punjab — AppellantversusRakesh Kumar — RespondentCriminal Appeal No. 1365 of 2008(Arising out of SLP (Crl.) No. 5967 of 2006)Decided on : 29-08-08

Important PointIn 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 prescribed minimum.

Cases Referred (4)

2008(6) Supreme 177
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
State of Punjab — Appellant
versus
Rakesh Kumar — Respondent
Criminal Appeal No. 1365 of 2008
(Arising out of SLP (Crl.) No. 5967 of 2006)
Decided on : 29-08-08

Important Point
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 prescribed minimum.