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2006 Supreme(MP) 828
2006(3) JLJ 1
(SUPREME COURT)
Arijit Pasayat and Lokeshwar Singh Panta, JJ.
State of M.P. v. Santosh Kumar
Criminal Appeal No. 762 of 2006 : against the judgment of
M.P High Court passed in Criminal Appeal
No. 776 of 2002; Decided on 14.7.2006
C.D. Singh for State.
Headnote:(1) Penal Code, 1860 -- S. 376(2)(f) -- rape with a child of six years -- minimum sentence of 10 years -- cannot be reduced without recording proper and legal reasons -- it is the duty of Court to award proper sentence having regard to nature and manner of offence.
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)(1) and section 342 of the Indian Penal Code, 1860 (in short the ‘IPC‘). The trial Court found respondent guilty for the offences punishable under section 376(2)(f), IPC. Respondent was sentenced to undergo imprisonment for 10 years RI 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 tiled 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. [Para 2
Held : 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. 1987 JLJ 558 (SC), AIR 1991 SC 1463,402 (US) 183, (1994)4 SCC 353, (1994)2 SCC 220 (1996)2 SCC 175 and (2005)5 SCC 413 relied on. [Paras 19, 20 and 8
(2) Penal Code, 1860 -- Ss. 375, 376, 376A to 376D -- Criminal Law (Amendment) Act, 1983 -- changes made in Ss. 375 and 376 and new Ss. 376A to 376D introduced by the Act -- reflect legislative intention to curb with iron hands the offence of rape. [Para 5
(3) Penal Code, 1860 -- S. 375 -- rape -- ‘carnal knowledge‘ -- means penetration to any slightest degree of organ alleged to have been carnally known by male organ of generation. Stephen‘s Criminal Law, 9th Edn. p.262, Halsbury‘s Statute of England and Wahas, 4th Edn. Vol. 12 relied on. [Para 5
¼1½ naM lafgrk] 1860 && /kkjk 376¼2½¼p½ && Ng o"kZ dh ckfydk ls cykRlax && 10 o"kZ dk U;wure naMkns‘k && mfpr vkSj oS/k dkj.k vfHkfyf[kr fd, fcuk de ugha fd;k tk ldrk && vijk/k dh izd`fr vkSj <ax /;ku esa j[krs gq, mfpr naMkns‘k vf/kfu.khZr djuk U;k;ky; dk drZO; gSA
izR;FkhZ us ,d Ng o"khZ; ckfydk ls ySafxd nqjkpkj fd;kA vfHkdfFkr :i ls Hkkjrh; naM lafgrk] 1860 ¼la{ksi esa ^^naM lafgrk**½ dh /kkjk 376¼2½¼p½ vkSj /kkjk 342 ds v/khu naMuh; vijk/k djus ds fy, mlus fopkj.k dk lkeuk fd;kA fopkj.k dk fu"d"kZ Fkk fd izR;FkhZ naM lafgrk dh /kkjk 376¼2½¼p½ ds v/khu naMuh; vijk/k dk nks"kh gSA izR;FkhZ dks O;frØe vuqca/k ds lkFk :- 500@& ds tqekZus lfgr 10 o"kZ dk dfBu dkjkokl Hkksxus dk naMkns‘k fn;k x;kA mls naM lafgrk dh /kkjk 342 ds fuca/kukuqlkj naMuh; vijk/k ds fy, rhu ekl dk dkjkokl Hkksxus dk vfrfjDr naMkns‘k fn;k x;kA dkjkokl ds nksuksa eq[; naMkns‘k lkFk&lkFk pyus dk vkns‘k fn;k x;kA mPp U;k;ky; ds le{k Qkby dh xbZ vihy esa vfHk;qDr us nks"kflf) iz‘uxr ugha dh] vfirq naMkns‘k esa dVkSrh dh izkFkZuk dhA mPp U;k;ky; us naM lafgrk dh /kkjk 376¼2½¼p½ ds v/khu naMuh; vijk/k ds fy, naMkns‘k esa dVkSrh dh tcfd vU; vijk/k ds laca/k esa naMkns‘k dk;e j[kkA e/; izns‘k jkT; us fu.kZ; dh ‘kq)rk bl vk/kkj ij iz‘uxr dh gS fd naMkns‘k esa dVkSrh Li"Vr% vokaNuh; FkhA ¼iSjk 2
vfHkfu/kkZfjr % /;krO; gS fd izLrqr ekeys esa vkgr ,d ckfydk gS tks vijk/k fd, tkus ds le; yxHkx Ng o"kZ dh FkhA naM lafgrk dh /kkjk 376 dh mi/kkjk ¼2½ esa vkSj vf/kd dBksj naM micaf/kr fd;k x;k gS tc vkgr 12 o"kZ dh o; ls de dh gksA
izLrqr ekeys esa mPp U;k;ky; }kjk U;wurj naMkns‘k vf/kjksfir djrs le; dksbZ i;kZIr ;k fo‘ks"k dkj.k vfHkfyf[kr fd, fcuk naMkns‘k de dj Li"Vr% xyrh dh gSA 1987 ts ,y ts 558 ¼mPpre U;k-½] , vkb vkj 1991 ,l lh 1463] 402 ;w ,l 138] ¼1994½4 ,l lh lh 353] ¼1994½2 ,l lh lh 220] ¼1996½2 ,l lh lh 175 rFkk ¼2005½5 ,l lh lh 413 voyafcrA ¼iSjk 19] 20 ,oa 8
¼2½ naM lafgrk] 1860 && /kkjk 375] 376] 376d ls 376?k && nkafMd fof/k la‘kks/ku vf/kfu;e] 1983 && vf/kfu;e }kjk /kkjk 375 rFkk 376 esa fd, x, ifjorZu rFkk tksM+h xbZ /kkjk 376d ls 376?k && cykRlax dk vijk/k dBksjrk ls jksdus dk fo/kk;h vk‘k; izfrcaf/kr gksrk gSA ¼iSjk 5
¼3½ naM lafgrk] 1860 && /kkjk 375 && cykRlax && ^eSFkqu* && vFkZ gS] vfHkdfFkr :i ls eSFkqu ds vax esa iq:‘k dk iztuu vax }kjk fdafpr~ Hkh izos‘kuA LVhQu d`r fØfeuy yk] uoe laLdj.k i`"B 262] gSYLcjh d`r LVSP;wV vkQ baXySaM ,aM osYl] prqFkZ laLdj.k ftYn 12 voyafcrA ¼iSjk 5
Pasayat, J. -
1. 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 for the offences punishable under section 376(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, 376A, 376B, 376C and 376D 'Rape' is defined in section 375. Sections 375 and 376 have been substantially changed in Criminal Law (Amendment) Act, 1983, and several new sections were introduced by the new Act, i.e., 376A, 68, 376C and 376D. The fact that sweeping changes were introduced affects the legislative intention to curb with iron hand, the offence 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.L 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 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 'Encyclopedia 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.
6. The physical scar may heal up, but the mental scar will always remain. When a woman is revished, what i
