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Wednesday, August 19, 2015

“Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect — propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.”

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOs. 1049-1050 OF 2015
                     (@ SLP(Crl) Nos. 4099-4100 of 2015)



Raj Bala                                     ...   Appellant

                                   Versus


State of Haryana & Ors. Etc. Etc.            ...   Respondents





                               J U D G M E N T


Dipak Misra, J.


1.    In Gopal Singh v. State  of  Uttrakahand[1],  while  focusing  on  the
gravity of the crime and the  concept  of  proportionality  as  regards  the
punishment, the Court had observed:-
“Just punishment is the collective cry of the society. While the  collective
cry has to be kept uppermost in the mind, simultaneously  the  principle  of
proportionality between the crime and punishment cannot be  totally  brushed
aside. The principle of just punishment is  the  bedrock  of  sentencing  in
respect   of   a   criminal   offence.   A   punishment   should   not    be
disproportionately  excessive.  The  concept  of  proportionality  allows  a
significant discretion to the Judge  but  the  same  has  to  be  guided  by
certain principles.  In  certain  cases,  the  nature  of  culpability,  the
antecedents of the accused, the factum  of  age,  the  potentiality  of  the
convict to become a criminal in future, capability of  his  reformation  and
to lead an acceptable life in the prevalent milieu, the effect —  propensity
to become a social threat or nuisance, and sometimes lapse of  time  in  the
commission of the crime and his conduct in the interregnum bearing  in  mind
the nature  of  the  offence,  the  relationship  between  the  parties  and
attractability of the doctrine of bringing the convict  to  the  value-based
social mainstream may be the guiding factors. Needless to  emphasise,  these
are certain illustrative aspects put forth in a  condensed  manner.  We  may
hasten to add that there  can  neither  be  a  straitjacket  formula  nor  a
solvable theory in mathematical exactitude. It would  be  dependent  on  the
facts  of  the  case  and  rationalised  judicial  discretion.  Neither  the
personal perception of  a  Judge  nor  self-adhered  moralistic  vision  nor
hypothetical apprehensions should be allowed to have  any  play.  For  every
offence, a drastic measure cannot be  thought  of.  Similarly,  an  offender
cannot be allowed to be treated  with  leniency  solely  on  the  ground  of
discretion  vested  in  a  court.  The  real  requisite  is  to  weigh   the
circumstances in which the crime has been committed  and  other  concomitant
factors which we have indicated hereinbefore and also have been stated in  a
number of pronouncements by this Court. On such  touchstone,  the  sentences
are to be imposed. The discretion should not be in the realm  of  fancy.  It
should be embedded in the conceptual essence of just punishment.”
                                                            [Emphasis added]
2.    Seven years prior  to  that,  in  Shailesh  Jasvantbhai  v.  State  of
Gujarat[2], it has been held that:-

“7. The law regulates social interests, arbitrates  conflicting  claims  and
demands. Security of persons and property 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 answer 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 appropriate sentence. Therefore,  law  as
a  cornerstone  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 operating  the
sentencing system, law should adopt the corrective machinery  or  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.

8. Therefore, 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 v. State of T.N.[3]”
                                                         [Emphasis supplied]

      And again:-
“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 against the society to  which  the  criminal  and
the victim belong. The punishment to be awarded for  a  crime  must  not  be
irrelevant but it should conform to and be consistent with the atrocity  and
brutality with which the crime has been perpetrated,  the  enormity  of  the
crime warranting public abhorrence and it should “respond to  the  society’s
cry for justice against the criminal”.”

3.    It needs  no  special  emphasis  to  state  that  prior  to  the  said
decision, there are  series  of  judgments  of  this  Court  emphasizing  on
appropriate sentencing.  Despite  authorities  existing  and  governing  the
field, it has come to the notice of this Court that sometimes the  court  of
first instance as well as  the  appellate  court  which  includes  the  High
Court, either  on  individual  notion  or  misplaced  sympathy  or  personal
perception seems to have been  carried  away  by  passion  of  mercy,  being
totally oblivious of lawful obligation to the collective as mandated by  law
and  forgetting  the  oft-quoted  saying  of  Justice  Benjamin  N.  Cardozo
“Justice, though due to the accused, is due to the accuser too”  and  follow
an  extremely  liberal   sentencing   policy   which   has   neither   legal
permissibility nor social acceptability.
4.    We have commenced the judgment with the aforesaid pronouncements,  and
our anguished observations, for the present case, in  essentiality,  depicts
an exercise of judicial discretion to be completely  moving  away  from  the
objective  parameters  of  law  which  clearly  postulate  that  the   prime
objective  of  criminal  law  is  the  imposition  of  adequate,  just   and
proportionate punishment which is commensurate with the gravity,  nature  of
the crime and manner in which the offence is committed keeping in mind   the
social interest and the conscience of the society, as has been laid down  in
State of M.P. v. Babu Lal[4], State of M.P. v. Surendra Singh[5]  and  State
of Punjab v. Bawa Singh[6].
5.    We sadly and indubitably with a pang proceed  to  pen  the  narrative.
The respondent nos. 2 to 4 stood trial  for  the  offence  punishable  under
Section 306 IPC.  Be it  noted,  initially  the  FIR  was  registered  under
Section 302 IPC but  during  investigation,  the  investigating  agency  had
converted the offence to one under Section 306 IPC.  The charge  was  framed
in respect of the offence under Section 306 IPC and the plea of the  accused
persons was one of complete denial.   The allegations  against  the  accused
persons were that on 23.10.2000, when ASI Daya Nand along with other  police
officials were patrolling at Qumaspur, informant Dharam Singh  met  him  and
stated that he is a resident of Village Qumaspur and working as Peon in  the
office of the Public Works Department (B&R), Sub Division No.4,  Engineering
College, Murthal and on that day about 1.00 p.m., Joginder, son  of  Dariyao
Singh had informed the informant on telephone that his  eldest  son  Krishan
Kumar, aged 19 years, had died.   After  receipt  of  the  information,  the
informant along with JE Sushil Kumar, JE Nafe Singh  and  SDC  Ramesh  Kumar
went to his house at village Qumaspur where he found his son was lying  dead
on a cot.  On queries made about death of his son, Ishwar  Singh  S/o.  Hari
Chand, Chet Ram s/o. Mir Singh, Shanti w/o Karan Singh and  Ganga  Die  w/o.
Mir Singh told the informant that on the  same  day  at  about  12.30  p.m.,
accused Satbir, Rajesh and Mukesh first gave severe beatings to his son  and
after that they brought him to his house and hanged him and thereafter  left
for their respective homes.  It  was  also  stated  by  the  informant  that
Dariya s/o. Lakhi, Sandeep s/o.  Rajender  Singh  and  Rinku  s/o.  Bijender
after tearing the rope removed the deceased Krishan from the  hand  and  put
him on the cot.  On the  basis  of  the  statement  of  the  informant,  the
criminal  law  was  set  in  motion  and  investigation  commenced.    After
completion of investigation, charge sheet was placed under Section  306  IPC
before the competent court which in turn committed the matter to  the  Court
of Session.
6.    To bring home the charge, the  prosecution  examined  as  many  as  16
witnesses.  The learned trial Judge on the basis of the material brought  on
record found the accused persons guilty  of  the  offence  punishable  under
Section 306 IPC.  It is pertinent to  state  here  that  the  learned  trial
Judge posed the question whether the deceased committed suicide  by  hanging
himself with a rope or the accused persons hanged  him  to  the  rope  which
resulted in his death.  He took note of the fact  that  initially  the  case
was registered under Section 302 IPC but  during  investigation  the  police
had found that the deceased had teased one Seema, daughter  of  the  accused
Satbir, and that is why he was assaulted at the  spot  and  thereafter  they
brought him to his house.  The trial court found that there was evidence  on
record that Seema was teased by the deceased while she was in her house  and
at that time she has raised an alarm which attracted the  attention  of  the
other witnesses and due to the  said  incident  he  was  assaulted,  and  he
eventually committed suicide.  The trial court has recorded a  finding  that
on being injured there was apprehension in  the  mind  of  the  deceased  of
further maltreatment and harassment at the hands of the  accused,  and  that
led him to commit suicide by hanging himself with a rope  inside  his  house
and thus, he was found in a hanging condition.  Analysing the  evidence  the
trial court found that the charge  leveled  against  the  accused  had  been
proved and accordingly found them guilty for the offence under  Section  306
IPC.
7.    After determining the guilt, while imposing the sentence, the  learned
trial Judge has held that:-

“As per record, all the convicts  are  the  first  offender  and  they  also
belong to a weaker section of the  society.   While  it  has  also  come  on
record that the deceased  had  teased  Seema,  daughter  of  accused  Satbir
Singh.  As such, all of them have committed an offence  punishable  u/s  306
of the Indian Penal Code.  So, keeping in view the  nature  of  the  offence
and other circumstances of the case  and  in  order  to  meet  the  ends  of
justice, I think that a lenient view is required to be taken on the  quantum
of sentence. So, I sentence all  the  three  convicts  to  undergo  rigorous
imprisonment for a period of three years each  with  a  fine  of  Rs.3,000/-
(Rs. Three thousand only) each and in default of payment thereof to  undergo
R.I. for six months. ”

8.    Being aggrieved by the  said  judgment  of  conviction  and  order  of
sentence, the respondents preferred a criminal appeal before the High  Court
which affirmed the conviction.  It is necessary to  mention  here  that  the
informant had preferred a criminal revision for conversion of  the  criminal
offence  but  the  same  did  not  find  favour  with  the  High  Court  and
accordingly it dismissed the same.
9.    As far as the criminal appeal is concerned, the High  Court  gave  the
stamp of approval to the conviction but as regards  the  sentence,  it  held
thus:-
“As regards the quantum of sentence of  imprisonment,  this  Court,  hereby,
refers  to  the  jail  custody  certificates,  as  per  which  each  of  the
appellants has undergone a period of 4 months and 20  days.   They  are  not
found to be involved in any other criminal case.

In view of  the  totality  of  the  circumstances,  this  Court  is  of  the
considered view that no  useful  purpose  will  be  served  by  sending  the
appellants back to jail for remaining sentences of  imprisonment.   Ends  of
justice would be amply met if their substantive  sentences  of  imprisonment
are reduced to the one already undergone by them.

10.   The reduction of sentence is the  primary  grievance  in  one  of  the
appeals herein.  As far as the dismissal of revision petition  by  the  High
Court is concerned, no infirmity is perceived, for there could neither  have
been conversion of the  offence  nor  enhancement  of  sentence.   Thus,  we
restrict our delineation as regards the reduction of sentence  by  the  High
Court while dealing with the Criminal Appeal No. 1460 of  2004  arising  out
of judgment of conviction and  order  of  sentence  passed  by  the  learned
Additional Sessions Judge, Sonepat in Sessions Case No. 161 of 2003.
11.    Analysed  on  the  touchstone  of  aforesaid  principles  stated  and
reiterated by this Court, as regards  the  imposition  of  sentence,  it  is
really unfathomable how the High Court could have observed  that  no  useful
purpose  would  be  serve  by  sending  the  accused  persons  to  jail  for
undergoing their remaining sentences of imprisonment,  for  the  High  Court
itself has recorded that the appellants  therein  had  remained  in  custody
only for a period of four months and twenty days.   Section  306  IPC  deals
with abetment of suicide and further stipulates that whoever  abets  in  the
crime would be punished with imprisonment for either description for a  term
which may extend to ten years and shall also be liable  to  fine.   The  two
ingredients are essential to prove the offence, that is,  the  death  should
be suicidal in nature and there  must  be  abetment  thereof.   The  learned
trial  Judge  has  arrived  at  the  conclusion  that  the  respondents  had
committed the offence under Section 306 IPC.  He has applied the  test  that
the accused persons are first offenders and belong to weaker section of  the
society.  Another mitigating fact that has been recorded  is  that  daughter
of the accused Satbir Singh was teased.  He has also  mentioned  the  nature
of the offence and  other  circumstances  of  the  case.   It  is  also  not
discernible how the principle of “first offender” would come  into  play  in
such a case.  Once the offence  under  Section  306  IPC  is  proved,  there
should have been adequate and appropriate  punishment.   The  learned  trial
Judge has, on the basis of the appreciation of the evidence on record,  come
to the conclusion that the deceased was assaulted and being apprehensive  of
further torture, he committed suicide.  The mitigating  factors  which  have
been highlighted by the learned trial Judge  are  absolutely  non-mitigating
factors and, in a way, totally inconsequential for imposing  a  sentence  of
three years.  The approach of the High Court, as the reasoning  would  show,
reflects more of a casual and fanciful one rather than just one.   A  Court,
while imposing sentence, has a duty to respond to the collective cry of  the
society.  The legislature in its wisdom  has  conferred  discretion  on  the
Court but the duty of the court in such a situation becomes  more  difficult
and complex.  It has to exercise the discretion on reasonable  and  rational
parameters.  The discretion cannot be allowed to yield to fancy  or  notion.
A Judge has to keep in mind the paramount concept of rule  of  law  and  the
conscience  of  the  collective  and  balance  it  with  the  principle   of
proportionality but  when  the  discretion  is  exercised  in  a  capricious
manner, it tantamounts to relinquishment of duty  and  reckless  abandonment
of responsibility.  One cannot remain a total alien to  the  demand  of  the
socio-cultural milieu regard being had to the command of law and also  brush
aside the agony of the victim or the  survivors  of  the  victim.    Society
waits with patience to see that justice is done.  There is  a  hope  on  the
part of the society and when the criminal  culpability  is  established  and
the discretion is irrationally exercised by the  court,  the  said  hope  is
shattered and the patience is wrecked.  It is the duty of the court  not  to
exercise the discretion in such a manner  as  a  consequence  of  which  the
expectation inherent in patience, which is the “finest  part  of  fortitude”
is  destroyed.   A  Judge  should  never  feel  that  the  individuals   who
constitute the society as a  whole  is  imperceptible  to  the  exercise  of
discretion.  He should always bear in mind  that  erroneous  and  fallacious
exercise of discretion is perceived by a visible collective.
12.   In the instant case, we  are  constrained  to  say  that  the  learned
Single Judge while dealing with the appeal preferred by the respondents  has
remained quite unmindful and unconcerned to the obvious and, therefore,  the
reduction of sentence by the High Court to the period already  undergone  is
set aside and the sentence imposed by the learned trial Judge  is  restored.

13.   We may hasten to add though we have commented on the approach  of  the
learned trial Judge, we cannot change the scenario in  the  absence  of  any
appeal either by the State or the persons aggrieved in that regard.   Though
a revision preferred by the informant has been dismissed by the High  Court,
the same did not pertain to the challenge to the quantum of sentence  as  it
could not have.
14.   Consequently, the appeal, as far as the challenge to the reduction  of
sentence by the High Court is concerned, is  allowed  and  the  judgment  of
conviction and order of sentence  by  the  trial  Judge  is  restored.   The
appeal challenging the order passed in the revision by  the  High  Court  is
dismissed.  The respondent nos. 2 to 4 be taken into  custody  forthwith  to
undergo the remaining part of their sentences.


                                           ...............................J.
[Dipak Misra]



                                           ...............................J.
                                             [Prafulla C. Pant]

NEW DELHI
AUGUST 18, 2015.

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[1]     (2013) 7 SCC 545
[2]     (2006) 2 SCC 359
[3]     (1991) 3 SCC 471
[4]     (2014) 9 SCC 281
[5]     (2015) 1 SCC 222
[6]     (2015) 3 SCC 441

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