Holding

The High Court was not justified in reducing the sentence; the respondent must serve the statutory minimum of seven years rigorous imprisonment for the offence under Section 376 IPC.

Summary

The appellant State of Rajasthan convicted Gajendra Singh under Sections 376, 323 and 341 of the Indian Penal Code, sentencing him to ten years rigorous imprisonment for rape and six months for the other offences. The High Court reduced the rape sentence to five years, invoking the proviso to Section 376 that permits a lower term if "adequate and special reasons" are recorded, but it gave no such reasons. The Supreme Court examined whether the High Court was authorized to lower the sentence below the statutory minimum of seven years without documenting those reasons. It held that the proviso requires a clear, recorded justification and that the High Court’s failure to do so rendered the reduction invalid. Consequently, the Court restored the minimum sentence of seven years rigorous imprisonment for the rape conviction. The appeal was partly allowed, modifying the sentence accordingly.

Issues considered

Whether the High Court could lawfully reduce the sentence for an offence under Section 376 IPC below the prescribed minimum of seven years without recording adequate and special reasons.
Whether the proviso to Section 376 IPC mandates the recording of such reasons for any departure from the minimum sentence.

Legislation cited

Indian Penal Code, 1860s. 323, s. 341, s. 376

Subjects

rapeSection 376 IPCminimum prescribed sentenceadequate and special reasonssentencing proportionalitycriminal lawappellate jurisdictionsentence reduction

Judgment

I
[_
[2008) 11 S.C.R. 816

A STATE OF RAJASTHAN
II.
GAJENDRA SINGH
(Criminal Appeal No. 1217 of 2008)
AUGUST 4, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
"t -..--
I
SHARMA, JJ.]

Sentence/Sentencing - Conviction uls 376 /PC - Trial
c . court imposing sentence of ten years R1 - Sentence reduced
to five years (below the minimum prescribed) by High Court -
Propriety of - Held: Proviso to s. 376 /PC permitting the court
to reduce the sentence below the minimum prescribed only
on recording of 'adequate and special reasons' - Failure on
the part of High Court to record such reasons, does not war-
0
rant reducing of the sentence - Criminal law adheres to the
principle of proportionality in sentencing -It is duty of the court
to award proper sentence in view of the nature and manner of
commission of offence -Undue sympathy to impose inad-
equate sentence would do more harm to justice system -
E Sentence is modified to seven years i.e. minimum prescribed
- Penal Code, 1860 - s. 376 proviso. I

I-
Words and Phrases- 'Rape'- Meaning of in the context
of /PC.
F Respondent was tried u/ss 376, 323 and 341 IPC. Trial ,..
court convicted and sentenced to undergo RI for ten years ~ '\
for the offence u/s 376 IPC. Respondent filed appeal pray-
ing for reduction of sentence. High Court, though noted
that the minimum sentence u/s 376 IPC is· seven years, yet
G reduced the sentence to five years RI in view of proviso to
the Section, permitting the court to reduce the sentence
below the minimum prescribed. Hence the present appeal.
Partly allowing the appeal, the Court

H 816
STATE OF RAJASTHAN v. GAJENDRA 817
- ,,, SINGH

HELD: 1.1 The High Court was not justified in reduc- A
ing the sentence below the prescribed minimum. The re-
spondent shall serve the minimum of seven years rigor-
ous imprisonment. In order to exercise the discretion of
reducing the sentence the statutory requirement is that
the Court has to record "adequate and special reasons" B
,,. in the judgment and not fanciful reasons which would
permit the Court to impose a sentence less than the pre-
scribed minimum. The reason has not only to be adequate
but also special. What is adequate and special would de-
pend upon several factors and no strait-jacket formula can
be indicated. What is applicable to trial Courts regarding c
recording reasons for a departure from minimum sentence
is equally applicable to the High Court. The requirement
in law as to adequate and special reasons is cumulative.
The High Court has not recorded any reason, much less
any adequate and special reasons for reducing the sen- D
tence. Paras 23, 24 and 25] [826 E,F,G, 826 G,H, 827 A]
• 'f
1.2 Protection of society and stamping out criminal
proclivity must be the object of law which must be
achieved by imposing appropriate sentence. Therefore,
law as a corner-stone of the edifice of "order" should meet E
the challenges confronting the society. In operating the
sentencing system, law should adopt the corrective ma-
chinery or the deterrence based on factual matrix. By deft
modulation sentencing process be stern where it should
be, and tampered with mercy where it warrants to be. The F
.,...., .. facts and given circumstances in each case, the nature
of the crime, the manner in which it was planned and com-
mitted, the motive for commission of the crime, the con-
duct of the accused, the nature of weapons used and all
other attending circumstances are relevant facts which G
would enter into the area of consideration. [Para 12] [822
F,G,H, 823, A,8]
.. ,,.
1.3 After giving due consideration to the facts and
circumstances of each case, for deciding just and appro-
priate sentence to be awarded for an offence, the aggra- H
818 SUPREME COURT REPORT;> [2008] 11 S.C.R.

A vating and mitigating factors and circumstances in which
a crime has been committed ar.e to be delicately balanced
·on the basis of really relevant circumstances in a dispas-
sionate manner by the Court. [Para 16] [824 E,F]
Dennis Councle MCGOautha v. State of Ca/lifornia: 402
8 US 183: 28 L.D. 2d 711 - referred to.
1.4 The criminal law adheres· in general to· the prin-
ciple of proportionality in prescribing liability according
·to the culpability of each kind of criminal conduct. It ordi-
-c narily 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 cul-
pability 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
D largely by other considerations. Sometimes it is the cor-
rectional needs of the perpetrator that are offered to jus- ~ ,.._:::
tify 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 de-
E parture from ;ust desert as the basis of punishment and
create cases of apparent injustice that are serious and
widespread. But in fact, quite apart from those consider-
ations that make punishment unjustifiable when_ it is out
of proportion to the crime, uniformly disproportionate
F punishment has some very undesirable practical conse-
quences. [Paras 14 and 15] [823 G,H, 824 A,B,C,D,E] ~ ~

1.5 Imposition of sentence without considering jts
effect on the social order in many cases may be in reality
G a futile exercise. The social impact of the crime, e.g. where
it relijtes to offences against women, dacoity, kidnapping,
misappropriation of public money, treason and other of-
fences involving moral turpitude or moral delinquency "(-"
which have great impact on social order, and public inter-
est, cannot be lost sight of and per se require exemplary
H
STATE OF RAJASTHAN v. GAJENDRA 819
SINGH

treatment. Any liberal attitude by imposing meager sen- A
tences or taking too sympathetic 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 soci-
etal interest which needs to be cared for and strength-
ened by string of deterrence inbuilt in the sentencing sys- B
tern. [Para 18] [825 C,D,E]
1.6 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, C
therefore, the duty of every court to award proper sen-
tence having regard to the nature of the offence and the
manner in which it was executed or committed etc. [Para
13] [823 E,F]
D
Mahesh v. State of M.P 1987 (2) SCR 710; Sevaka
-- 'I- Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463;
Dhananjoy Chatterjee v. State ofWB. 1994 (2) SCC 220; Ravji
v. State of Rajasthan, 1996 (2) SCC 175; State of M.P v.
Ghanshyam Singh 2003(8) SCC 13; State of M.P v. Babbu
Barkare alias Dalap Singh 2005 (5) sec 413 - relied on. E
"Criminal Law" by Stephen 9th Ed. p.262; 'Encyclo-
pedia of Crime and Justice' Volume 4, page 1356; Halsbury's
Statutes of England and Wales (Fourth Edition) Volume 12;
'Law in Changing Society' by Friedman - referred to. F

Case Law Reference
1987 (2) SCR 710 Relied on. Para 12
AIR 1991 SC 1463 Relied on. Para 13
402 US 183: 28 LO. 2d 711 Referred to. Para 16 G
1994 (2) SCC 220 Relied on. Para 19
1996 (2) sec 115 Relied on. Para 20
2003(8) sec 13 Relied on. Para 21
2005 (5) sec 413 Retied on. Para 21 H
820 SUPREME COURT REPORTS [2008] 11 S.C.R.
'(-
\
A CRIMINALAPPELLATE JURISDICTION: Criminal Appeal '

·No. 1217 of 2008
From the final Judgment and Order dated 22.5.2006 of
the High Court of Judicature for Rajasthan at Jaipur Bench,
B Jaipur in S.B. Criminal Appeal No. 1105 of 2002
Madhurima Tatia and Aruneshwar Gupta for the Appellant.
The Judgment of the Court was delivered by
'O'r; ARiJIT PASAYAT, J. 1. Leave .granted.
c 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, Respondent faced trial for alleged commission of of-
0
fences punishable under Sections 376, 323 and 341 of the In-
dian Penal Code, 1860 (in short 'the IPC'). He was sentenced -¥ •
to undergo rigorous imprisonment for 10 years, six months and
six months respectively for the aforesaid three offences. Addi-
E tionally, fine was imposed in each case with default stipulations.
5. Respondent filed an appeal before the High Court ques-
tioning correctness of the judgment passed by the learned Ad-
ditional Sessions Judge, Fast Track Court No.3, Bharatpur, in
Sessions Case No.30 of 2002. By the impugned judgment, the
F High Court directed the sentence to be reduced to a period of
five years rigorous imprisonment for the offence relatable to ,.. '-.
Section 376 IPC and also reduced the sentence of six month's
simple imprisonment to one month's simple imprisonment in
the case of Section 341 IPC, as according to the High Court,
G the same was the maximum sentence.
6. It is to be noted that before the High Court, the respon-
dent did not question the conviction, but only prayed for re.duc- .....
'f.' •
ti'on of·sentence. Though, the High Court noted that under Sub-
section (1) of Section 376 IPC, the minimum sentence ·is -of
t4 seven years but that is subject to the provision that the court
STATE OF RAJASTHAN v.-GAJENDRA 821
·~ ",! SINGH [DR. ARIJIT PASAYAT, J.]

may for "adequate and special reasons", impose a sentence of A
imprisonment for a terms of less than seven years. Without in-
dicating any reason, the High Court held that this was a case
where the proviso permitting the court to reduce the sentence
below the minimum prescribed was applicable.
7. Learned counsel fo.r the appe.llant-State .submitted that B
t
. the High Court has not even indicated any reason or basis fo.r
directing reduction.of sentence.
8. There is no appearance on behalf of the respondent in
spite of service of notice. c
9. The crucial question which needs to be decided is the
proper sentence and acceptability of views expressed by
learned Single Judge. It is to be noted that the sentences pre-
scribed for offences relatable to Section 376 are imprisonment
for life or up to a period of 10 years, but should not be less than D
seven years unless special and adequate reasons are cited by
the Court for giving lesser punishment.
10. 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 E
Sections 375, 376, 376-A, 376-B, 376-C, and 376-Q. 'Rape' is
defined in Section 375. Sections 375 and 376 have been sub-
stantially changed by Crimtnal Law (Ame-ndment) Act, 1983,' and
several new sections were introduce.a by the new Act, i.e. 376-
A, 376-B, 376·C and 376-D. The fact thpt sweeping changes F
.).
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 s-implest 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' G
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 es- H
822 SUPREME COURT REPORTS [2008) 11 S.C.R.
y _._
I

A sential words in an indictment for ~ape are r~p.uit and carnaliter
cogriovit; 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 th_e penetration to the
8 slightest degree of the organ alleged to have been carnally
known by the male organ of generation (Stephen's "Criminal i•
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 unnecess~ry". ID Halsbury's Stat-
c utes 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 th_e highest order.
D 11. 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 death-
less shame. The offender robs the victim of her most valuable
and priceless possession that is dignity.
E 12. The law regulates socjal interests, arbitrates conflict-
ing claims and demands. Security of persons and prope.rty of
the people is an essential function of the State. It could be
achieved through instrumentality of criminal law. Undoubtedly,
there is a cross cultural conflict where living law must find an-
F swer 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
be the object of law which must be achieved by imposing ap-
G propriate sentence. Therefore, law as a corner-stone of the
edifice of "order" 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
reflection of social consciousness of society". Therefore, in op-
H erating the sentencing system, law should adopt the corrective
STATE OF RAJASTHAN v. GAJENDRA 823
SINGH [DR. ARIJIT PASAYAT, J.]
·- .'i
machinery or the deterrence based on factual matrix. By deft A
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 na- B
)-- tu re of weapons used and all other attending circumstances are
relevant facts which would enter into the area of consideration.
For instance a murder committed 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 c
for imposition of death sentence as deterrence. In Mahesh v.
State of MP [(1987) 2 SCR 710], this Court while refusing to
reduce the death sentence observed thus:
"It will be a mockery of justice to permit the accused to
escape the extreme penalty of law when faced with such D
evidence and such cruel acts. To give the lesser
..... y 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
appreciates the language of deterrence more than the E
reformative jargon."
13. Therefore, undue sympathy to impose inadequate sen-
tence 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 F
). duty of every court to award proper sentence having regard to
the nature of the offence and the manner in which it was ex-
ecuted or committed etc. This position was illuminatingly stated
by this Court in Sevaka Perumal etc. v. State of Tamil Nadu
(AIR 1991 SC 1463). G

14. The criminal law adheres in general to the principle of
1--.-y. proportionality in prescribing liability according to the culpabil-
ity of each kind of criminal conduct. It ordinarily allows some
significant discretion to the Judge in arriving at a sentence in
H
824 SUPREME COURT REPORTS (2008] 11 S.C.R.
I-
v+-
I-
A each case, presumably to permit sentences that reflect more
subtle considerations of culpability that are raised by the spe-
cial facts of each case. Judges in essence affirm that punish-
ment ought always to fit the crime; yet in practice sentences are
determined largely by other considerations. Sometimes it is the
B "correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes the desirability of keeping him out of. cir- i
culation, 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 appar-
c ent injustice that are serious and widespread.
15. Proportion between crime and punishment is a goal
respected in principle, and in spite of errant notions, it remains
a strong influence in the determination of s~ntences. Even now
for a single grave infraction drastic sentences are imposed.
D Anything less than a penalty of greatest severity for any serious
crime is thought then to be a measure of toleration that is un- ....
warranted and unwise. But in fact, quite apart from those con- ""'
siderations that make punishment unjustifiable when it is out of
proportion to the crime, uniformly disproportionate punishment
E has some very undesirable practical consequences.
16. After giving due consideration to the facts and circum-
stances of each case, for deciding just and appropriate sen~
tence to be awarded for an offence, the aggravating and miti-
a
gating factors and circumstances in which crime has been com-
F mitted are ~o be delicately ba~anced on the basis of really rel-
..._
evant circumstances in a dispassionate manner by the Court. -4
Such act of balancing is indeed a difficult task. It has been very
,aptly indi9ated in Dennis Councle MCGDautha v. State of
CaHifornia: 402 US 183: 28 L.D. 2d 711 that no formula of a
G foolproof nature is possible that would provide a reasonable cri-
terion in determining a just and appropriate punishment in the
infinite yariety of circumstances that may affect the gravity of the
;y-A.
crime. In the absence of any foolproof formula which may provide
any basis for reasonable criteria to correctly assess various cir-
H cumstances germane to the consideration of gravity of crime,
STATE OF RAJASTHAN v. GAJENDRA 825
SINGH [DR. ARIJIT PASAYAT, J.]
'"' ~
the discretionary judgment in the facts of each case, is the only A
way in which such judgment may be equitably distinguished.
17. The object should be to protect the society and to de-
ter the criminal in achieving the avowed object to law by impos-
ing appropriate sentence. It is expected that the Courts would
operate the sentencing system so as to impose such sentence B
')
which reflects the conscience of the society and the sentencing
process has to be stern where it should be.
18. Imposition of sentence without considering its effect
on the social order in many cases may be in reality a futile exer- c
cise. The social impact of the crime, e.g. where it relates to
offences against women, dacoity, kidnapping, misappropria-
tion of public money, treason and other offences involving moral
turpitude or moral delinquency which have great impact on so-
cial order, and public interest, cannot be lost sight of and per se
D
require exemplary treatment. Any liberal attitude by imposing
',,..... y meager sentences or taking too sympathetic view merely on
account of lapse of time in respect of such offences will be re-
suit-wise counter productive in the long run and against societal
interest which needs to be cared for and strengthened by string
of deterrence inbuilt in the sentencing system. E

19. In Dhananjoy Chatterjee v. State of WB. (1994 (2)
SCC 220), this Court has observed that shockingly large num-
ber of criminals go unpunished thereby increasingly, encourag-
ing the criminals and in the ultimate making justice suffer by F
weakening the system's creditability. The imposition of appro-
)-
priate punishment is the manner in which the Court responds to
the society's cry for justice against the criminal. Justice demands
that Courts should impose punishment befitting the crime so
that the Courts reflect public abhorrence of the crime. The Court
G
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
•y considering the imposition of appropriate punishment.

20. Similar view has also been expressed in Ravji v. State
of Rajasthan, (1996 (2) SCC 175). It has been held in the said H
826 SUPREME COURT REPORTS [2008] 11 S.C.R.
t'
¥.,..-,
.A case that it is the nature and gravity of the crime but not the
criminal, which are germane for consideration of appropriate
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
B against the society to which the criminal and victim belong. The.
punishment to be awarded for a crime must not be irrelevant ; t I
but it should conform to and be consistent with the atrocity and
brutality with which the crime has been perpetrated, the enor-
~
mity of the crime warranting public abhorrence ·and it should
c "respond to the society's cry for justice against the criminal".
21. These aspects have been elaborated in State of M.P
v. Ghanshyam Singh (2003(8) SCC 13), and State of M.P v.
Babbu Barkare alias Oalap Singh (2005 (5) SCC 413).
22. Both ·in cases of sub-sections (1) and (2) the Court
D
has the discretion to impose a sentence bf imprisonment less
than the prescribed minimum for 'adequate and special rea- ~
~

sons'. If the Court does not mention such reasons in the judg-
ment there is no scope for awarding a sentence lesser than the
prescribed minimum.
E
23. In order to exercise the discretion of reducing the sen-
tence the statutory requirement is that the Court has to record
"adequate and special reasons" in the judgment and not fanci-
ful reasons which would permit the Court to impose a sentence
F 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 faetors 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.
G
24. The requirement in Jaw as to adequate antj special
reasons is cumulative. The High Court has not recorded any
,,.., ....
reason, much less any adequate and special reasons for re-
ducing the sentence. The High Court was, therefore, not justi-
H fied in reducing the sentence below the prescribed minimum.
STATE OF RAJASTHAN v. GAJENDRA 827
SINGH [DR. ARIJIT PASAYAT, J.]

25. In the background of what has been stated above, we A
set aside the judgment of the High Court to the extent that in
respect of the offence punishable under Section 376 IPC, the
respondent shall serve the minimum of seven years rigorous
imprisonment.
26. The appeal is allowed to the aforesaid extent. B
)
K.K.T. Appeal partly allowed.