Reduced the sentence from life to 10 years in sec. 304 B IPC applying the participles laid down in commuting death penalty to life imprisonment, even though there is no guide lines and separate rules for lessor sentences - other than death sentences ; Apex court held that same principles laid down in death cases- would apply with little modifications for assessing the sentences in other cases =
whether sentence
of life imprisonment imposed on the accused-appellant for commission of the
offence under Section 304-B of the Penal Code is in any way excessive or
disproportionate so as to require interference by this Court. =
The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law
in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for
a term of years.
we see no reason as to why
the principles of sentencing evolved by this Court over the years through
largely in the context of the death penalty will not be applicable to all
lesser sentences so long as the sentencing judge is vested with the
discretion to award a lesser or a higher sentence resembling the swing of
the pendulum from the minimum to the maximum.
(1) the young age of the accused
(2) the possibility of reforming and rehabilitating the accused
(3) the accused had no prior criminal record
(4) the accused was not likely to be a menace or threat or
danger to society or the community
[pic](5) a few other reasons need to be mentioned such as the
accused having been acquitted by one of the courts
(6) the crime was not premeditated
(7) the case was one of circumstantial evidence
Would the above principles apply to sentencing of an accused found
guilty of the offence under Section 304-B inasmuch as the said offence is
held to be proved against the accused on basis of a legal presumption?
This is the next question that has to be dealt with.
So long there is
credible evidence of cruelty occasioned by demand(s) for dowry,
any
unnatural death of a woman within seven years of her marriage makes the
husband or a relative of the husband of such woman liable for the offence
of “dowry death” under Section 304-B
though there may not be any direct
involvement of the husband or such relative with the death in question.
In
a situation where commission of an offence is held to be proved by means of
a legal presumption the circumstances surrounding the crime to determine
the presence of aggravating circumstances (crime test) may not be readily
forthcoming unlike a case where there is evidence of overt criminal acts
establishing the direct involvement of the accused with the crime to enable
the Court to come to specific conclusions with regard to the barbarous or
depraved nature of the crime committed.
The necessity to combat the menace
of demand for dowry or to prevent atrocities on women and like social evils
as well as the necessity to maintain the purity of social conscience cannot
be determinative of the quantum of sentence inasmuch as the said parameters
would be common to all offences under Section 304-B of the Penal Code.
The
above, therefore, cannot be elevated to the status of acceptable
jurisprudential principles to act as a rational basis for awarding varying
degrees of punishment on a case to case basis.
The search for principles
to satisfy the crime test in an offence under Section 304-B of the Penal
Code must, therefore, lie elsewhere.
Perhaps, the time spent between
marriage and the death of the woman; the attitude and conduct of the
accused towards the victim before her death; the extent to which the demand
for dowry was persisted with and the manner and circumstances of commission
of the cruelty would be a surer basis for determination of the crime test.
Coupled with the above, the fact whether the accused was also charged with
the offence under Section 302 of the Penal Code and the basis of his
acquittal of the said charge would be another very relevant circumstance.
As against this the extenuating/mitigating circumstances which would
determine the “criminal test” must be allowed to have a full play.
The
aforesaid two sets of circumstances being mutually irreconcilable cannot be
arranged in the form of a balance sheet as observed in Sangeet (supra) but
it is the cumulative effect of the two sets of different circumstances that
has to be kept in mind while rendering the sentencing decision.
This,
according to us, would be the correct approach while dealing with the
question of sentence so far as the offence under Section 304-B of the Penal
Code is concerned.
14. Applying the above parameters to the facts of the present case it
transpires that the death of the wife of the accused-appellant occurred
within two years of marriage.
There was, of course, a demand for dowry and
there is evidence of cruelty or harassment.
The autopsy report of the
deceased showed external marks of injuries but the cause of death of
deceased was stated to be due to asphyxia resulting from strangulation.
In
view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted
the postmortem, the learned Trial Judge thought it proper to acquit the
accused of the offence under Section 302 of the Penal Code on the benefit
of doubt as there was no evidence that the accused was, in any way,
involved with the strangulation of the deceased.
The proved facts on the
basis of which offence under Section 304-B of the Penal Code was held to be
established, while acquitting the accused-appellant of the offence under
Section 302 of the Penal Code, does not disclose any extraordinary,
perverse or diabolic act on the part of the accused-appellant to take an
extreme view of the matter.
Coupled with the above, at the time of
commission of the offence, the accused-appellant was about 21 years old and
as on date he is about 42 years.
The accused-appellant also has a son who
was an infant at the time of the occurrence.
He has no previous record of
crime.
On a cumulative application of the principles that would be
relevant to adjudge the crime and the criminal test, we are of the view
that the present is not a case where the maximum punishment of life
imprisonment ought to have been awarded to the accused-appellant.
At the
same time, from the order of the learned Trial Court, it is clear that some
of the injuries on the deceased, though obviously not the fatal injuries,
are attributable to the accused-appellant.
In fact, the finding of the
learned Trial Court is that the injuries No. 1 (Laceration 1” x ½” skin
deep on the side of forehead near hair margin) and 2 (Laceration 1 ½” x 1”
scalp deep over the frontal area) on the deceased had been caused by the
accused-appellant with a pestle.
The said part of the order of the learned
Trial Court has not been challenged in the appeal before the High Court.
Taking into account the said fact, we are of the view that in the present
case the minimum sentence prescribed i.e. seven years would also not meet
the ends of justice.
Rather we are of the view that a sentence of ten
years RI would be appropriate. Consequently, we modify the impugned order
dated 4.4.2011 passed by the High Court of Delhi and impose the punishment
of ten years RI on the accused-appellant for the commission of the offence
under Section 304-B of the Penal Code.
The sentence of fine is maintained.
The accused-appellant who is presently in custody shall serve out the
remaining part of the sentence in terms of the present order.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1333 OF 2013
(Arising out of SLP(Crl.) No. 7002 of 2012)
Sunil Dutt Sharma ... Appellant(s)
Versus
State (Govt. of NCT of Delhi) ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
1. The accused-appellant was tried for offences under Sections 302 and
304-B of the Indian Penal Code (hereinafter for short the “Penal Code”) for
causing the death of his wife in the night intervening 16/17.05.92. He has
been acquitted of the offence under Section 302 of the Penal Code on the
benefit of doubt though found guilty for the offence under Section 304-B of
the Penal Code following which the sentence of life imprisonment has been
imposed. The conviction and sentence has been affirmed by the High Court.
Aggrieved, the appellant had moved this Court under Article 136 of the
Constitution.
2. Limited notice on the question of sentence imposed on the accused-
appellant having been issued by this Court the scope of the present appeal
stands truncated to a determination of the question as to
whether sentence
of life imprisonment imposed on the accused-appellant for commission of the
offence under Section 304-B of the Penal Code is in any way excessive or
disproportionate so as to require interference by this Court.
3. Section 304-B(2) of the Penal Code which prescribes the punishment
for the offence contemplated by Section 304-B(1) is in the following terms
:
“Whoever commits dowry death shall be punished with imprisonment
for a term which shall not be less than seven years but which
may extend to imprisonment for life.” (emphasis is ours).
4. Expressions similar to what has been noticed above are to be found in
different sections of the Penal Code which may be taken note of :
|(i) |Sections 115, 118, 123, 124, 126, | |
| |127, 134, 193, 201, 214, 216, | |
| |216A, 219, 220, 221, 222, 225, | |
| |231, 234, 243, 244, 245, 247, 249,|“may extend to seven |
| |256, 257, 258, 259, 260, 281, 293,|years/ten years”; |
| |308, 312, 317, 325, 333, 363, 365,| |
| |369, 370, 380, 381, 387, 393, 401,| |
| |402, 404, 407, 408, 409, 433, 435,| |
| |437, 439, 452, 455, 466, 468, 472,| |
| |473, 474, 477A, 489C, 493, 494, | |
| |495 and 496 | |
|(ii) |Sections 122, 222, 225, 305, 371, |“imprisonment for life or |
| |449, 450 |imprisonment for a term not|
| | |exceeding ten years” |
|(iii)|Sections 124A, 125, 128, 130, 194,|“imprisonment for life or |
| |232, 238, 255 etc. |with imprisonment of either|
| | |description which may |
| | |extend to ____ years” |
|(iv) |Sections 122, 225, 305, 371, 449 |“imprisonment for life or |
| | |with imprisonment of either|
| | |description for a term not |
| | |exceeding ___ years” |
|(v) |Section 304B |“imprisonment for a term |
| | |which shall not be less |
| | |than seven years but which |
| | |may extend to imprisonment |
| | |for life” |
|(vi) |Section 376 |“imprisonment of either |
| | |description for a term |
| | |which shall not be less |
| | |than seven years or for |
| | |life or for a term which |
| | |may extend to ten years” |
5. The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law
in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for
a term of years.
In the above situation, naturally, the sentencing power
has been a matter of serious academic and judicial debate to discern an
objective and rational basis for the exercise of the power and to evolve
sound jurisprudential principles governing the exercise thereof.
In this
regard the Constitution Bench decision of this Court in Jagmohan Singh vs.
The State of U.P.[1] (under the old Code), another Constitution Bench
decision in Bachan Singh vs. State of Punjab[2], a three Judge Bench
decision in Machhi Singh and Others vs. State of Punjab[3], are watersheds
in the search for jurisprudential principles in the matter of sentencing.
Omission of any reference to other equally illuminating opinions of this
Court rendered in scores of other monumental decisions is not to underplay
the importance thereof but solely on account of need for brevity.
Two
recent pronouncements of this Court in Sangeet and Another vs. State of
Haryana[4] and Shankar Kisanrao Khade vs. State of Maharashtra[5] reflect
the very labourious and painstaking efforts of this Court to summarize the
net result of the judicial exercises undertaken since Jagmohan Singh
(supra) and the unresolved issues and grey areas in this regard and the
solutions that could be attempted.
The aforesaid decisions of this Court
though rendered in the context of exercise of the power to award the death sentence, whether the principles laid down, with suitable adaptation and modification, would apply to all ‘lesser’ situations so long the court is confronted with the vexed problem of unraveling the parameters for exercise of the sentencing power is another question that needs to be dealt with.
6. For the sake of precision it may be sufficient to take note of the
propositions held in Bachan Singh (supra) to have flown from Jagmohan Singh
(supra) and the changes in propositions (iv)(a) and (v)(b) thereof which
were perceived to be necessary in the light of the amended provision of
Section 354(3) of the Code of Criminal Procedure, 1973.
The above changes
were noticed in Sangeet (supra) and were referred to as evolution of a
sentencing policy by shifting the focus from the crime (Jagmohan Singh) to
crime and the criminal (Bachan Singh).
The two concepts were described as
Phase-I and Phase-II of an emerging sentencing policy.
7. The principles culled out from Jagmohan Singh (supra) in Bachan Singh
(supra) and the changes in proposition (iv)(a) and (v)(b) may now be
specifically noticed.
Bachan Singh vs. State of Punjab2
160. In the light of the above conspectus, we will now consider
the effect of the aforesaid legislative changes on the authority
and efficacy of the propositions laid down by this Court in
Jagmohan case.
These propositions may be summed up as under:
“(i) The general legislative policy that underlines the
structure of our criminal law, principally contained in the Indian
Penal Code and the Criminal Procedure Code, is to define an offence
with sufficient clarity and to prescribe only the maximum
punishment therefor, and to allow a very wide discretion to the
Judge in the matter of fixing the degree of punishment.
With the solitary exception of Section 303, the same policy
permeates Section 302 and some other sections of the Penal Code,
where the maximum punishment is the death penalty.
(ii)-(a) No exhaustive enumeration of aggravating or mitigating
circumstances which should be considered when sentencing an
offender, is possible. “The infinite variety of cases and facets to
each case would make general standards either meaningless ‘boiler
plate’ or a statement of the obvious that no Jury (Judge) would
need.” (referred to McGoutha v. California)
(b) The impossibility of laying down standards is at the very
core of the criminal law as administered in India which invests the
Judges with a very wide discretion in the matter of fixing the
degree of punishment.
(iii) The view taken by the plurality in Furman v. Georgia
decided by the Supreme Court of the United States, to the effect,
that a law which gives uncontrolled and unguided discretion to the
Jury (or the Judge) to choose arbitrarily between a sentence of
death and imprisonment for a capital offence, violates the Eighth
Amendment, is not applicable in India. We do not have in our
Constitution any provision like the Eighth Amendment, nor are we at
liberty to apply the test of reasonableness with the freedom with
which the Judges of the Supreme Court of America are accustomed to
apply “the due process” clause. There are grave doubts about the
expediency of transplanting western experience in our country.
Social conditions are different and so also the general
intellectual level. Arguments which would be valid in respect of
one area of the world may not hold good in respect of another area.
(iv)(a) This discretion in the matter of sentence is to be
exercised by the Judge judicially, after balancing all the
aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts.
The exercise of judicial discretion on well recognised principles
is, in the final analysis, the safest possible safeguard for the
accused.
In view of the above, it will be impossible to say that there
would be at all any discrimination, since crime as crime may appear
to be superficially the same but the facts and circumstances of a
crime are widely different. Thus considered, the provision in
Section 302, Penal Code is not violative of Article 14 of the
Constitution on the ground that it confers on the Judges an
unguided and uncontrolled discretion in the matter of awarding
capital punishment or imprisonment for life.
(v)(a) Relevant facts and circumstances impinging on the nature
and circumstances of the crime can be brought before the court at
the preconviction stage, notwithstanding the fact that no formal
procedure for producing evidence regarding such facts and
circumstances had been specifically provided. Where counsel
addresses the court with regard to the character and standing of
the accused, they are duly considered by the court unless there is
something in the evidence itself which belies him or the Public
Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to
choose either of the two alternative sentences provided in Section
302 Penal Code, “the court is principally concerned with the facts
and circumstances whether aggravating or mitigating, which are
connected with the particular crime under inquiry. All such facts
and circumstances are capable of being proved in accordance with
the provisions of the Indian Evidence Act in a trial regulated by
the CrPC. The trial does not come to an end until all the relevant
facts are proved and the counsel on both sides have an opportunity
to address the court. The only thing that remains is for the Judge
to decide on the guilt and punishment and that is what Sections
306(2) and 309(2), CrPC purport to provide for. These provisions
are part of the procedure established by law and unless it is shown
that they are invalid for any other reasons they must be regarded
as valid. No reasons are offered to show that they are
constitutionally invalid and hence the death sentence imposed after
trial in accordance with the procedure established by law is not
unconstitutional under Article 21”. (emphasis added)”
161. A study of the propositions set out above, will show that,
in substance, the authority of none of them has been affected by
the legislative changes since the decision in Jagmohan case.
Of
course, two of them require to be adjusted and attuned to the shift
in the legislative policy.
The first of those propositions is No.
(iv)(a) which postulates, that according to the then extant Code of
Criminal Procedure both the alternative sentences provided in
Section 302 of the Penal Code are normal sentences and the court
can, therefore, after weighing the aggravating and mitigating
circumstances of the particular case, in its discretion, impose
either of those sentences.
This postulate has now been modified by
Section 354(3) which mandates the court convicting a person for an
offence punishable with death or, in the alternative with
imprisonment for life or imprisonment for a term of years, not to
impose the sentence of death on that person unless there are
“special reasons” — to be recorded — for such sentence.
The
expression “special reasons” in the context of this provision,
obviously means “exceptional reasons” founded on the exceptionally
grave circumstances of the particular case relating to the crime as
well as the criminal.
Thus, the legislative policy now writ large
and clear on the face of Section 354(3) is that on conviction for
murder and other capital offences punishable in the alternative
with death under the Penal Code, the extreme penalty should be
imposed only in extreme cases.
163. Another proposition, the application of which, to an
extent, is affected by the legislative changes, is No. (v).
In
portion (a) of that proposition, it is said that circumstances
impinging on the nature and circumstances of the crime can be
brought on record before the pre-conviction stage.
In portion (b),
it is emphasised that while making choice of the sentence under
Section 302 of the Penal Code, the court is principally concerned
with the circumstances connected with the particular crime under
inquiry.
Now, Section 235(2) provides for a bifurcated trial and
specifically gives the accused person a right of pre-sentence
hearing, at which stage, he can bring on record material or
evidence, which may not be strictly relevant to or connected with
the particular crime under inquiry, but nevertheless, have,
consistently with the policy underlined in Section 354(3), a
bearing on the choice of sentence.
The present legislative policy
discernible from Section 235(2) read with Section 354(3) is that in
fixing the degree of punishment or making the choice of sentence
for various offences, including one under Section 302 of the Penal
Code, the court should not confine its consideration “principally”
or merely to the circumstances connected with the particular crime,
but also give due consideration to the circumstances of the
criminal.
164. Attuned to the legislative policy delineated in Sections
354(3) and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan
shall have to be recast and may be stated as below:
“(a) The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court can
depart from that rule and impose the sentence of death only if
there are special reasons for doing so. Such reasons must be
recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for
the offence of murder under Section 302 of the Penal Code, the
court must have regard to every relevant circumstance relating to
the crime as well as the criminal. If the court finds, but not
otherwise, that the offence is of an exceptionally depraved and
heinous character and constitutes, on account of its design and the
manner of its execution, a source of grave danger to the society at
large, the court may impose the death sentence.”
8. In Sangeet (supra) the Court also took note of the “suggestions”
(offered at the Bar) noticed in Bachan Singh (supra) to be relevant in a
determination of the circumstances attending the crime (described as
aggravating circumstances) as well as those which pertain to the criminal
as distinguished from the crime (referred to as the mitigating
circumstances). The attempt at evolution of a principle based sentencing
policy as distinguished from a judge centric one was noted to have suffered
some amount of derailment/erosion. In fact, the several judgments noted
and referred to in Sangeet (supra) were found to have brought in a fair
amount of uncertainty in application of the principles in awarding life
imprisonment or death penalty, as may be, and the varying perspective or
responses of the court based on the particular facts of a given case rather
than evolving standardized jurisprudential principles applicable across the
board.
9. The above position was again noticed in Shankar Kisanrao Khade
(supra). In the separate concurring opinion rendered by Brother Madan B.
Lokur there is an exhaustive consideration of the judgments rendered by
this Court in the recent past (last 15 years) wherein death penalty has
been converted to life imprisonment and also the cases wherein death
penalty has been confirmed. On the basis of the views of this Court
expressed in the exhaustive list of its judgments, reasons which were
considered adequate by the Court to convert death penalty into life
imprisonment as well as the reasons for confirming the death penalty had
been set out in the concurring judgment at paragraphs 106 and 122 of the
report in Shankar Kisanrao Khade (supra) which paragraphs may be extracted
hereinbelow to notice the principles that have unfolded since Bachan Singh
(supra).
“106. A study of the above cases suggests that there are several
reasons, cumulatively taken, for converting the death penalty to
that of imprisonment for life.
However, some of the factors that
have had an influence in commutation include:
(1) the young age of the accused [Amit v. State of
Maharashtra[6] aged 20 years, Rahul[7] aged 24 years, Santosh Kumar
Singh[8] aged 24 years, Rameshbhai Chandubhai Rathod (2)[9] aged 28
years and Amit v. State of U.P.[10] aged 28 years];
(2) the possibility of reforming and rehabilitating the accused
(in Santosh Kumar Singh8 and Amit v. State of U.P.10 the accused,
incidentally, were young when they committed the crime);
(3) the accused had no prior criminal record (Nirmal Singh[11],
Raju[12], Bantu[13], Amit v. State of Maharashtra6, Surendra Pal
Shivbalakpal[14], Rahul7 and Amit v. State of U.P.10);
(4) the accused was not likely to be a menace or threat or
danger to society or the community (Nirmal Singh11, Mohd.
Chaman[15], Raju12, Bantu13, Surendra Pal Shivbalakpal14, Rahul7
and Amit v. State of U.P.10).
[pic](5) a few other reasons need to be mentioned such as the
accused having been acquitted by one of the courts (State of T.N.
v. Suresh[16], State of Maharashtra v. Suresh[17], Bharat Fakira
Dhiwar[18], Mansingh[19] and Santosh Kumar Singh8);
(6) the crime was not premeditated (Kumudi Lal[20], Akhtar[21],
Raju12 and Amrit Singh[22]);
(7) the case was one of circumstantial evidence (Mansingh19 and
Bishnu Prasad Sinha[23]).
In one case, commutation was ordered since there was apparently
no “exceptional” feature warranting a death penalty (Kumudi Lal20)
and in another case because the trial court had awarded life
sentence but the High Court enhanced it to death (Haresh Mohandas
Rajput[24]).
122. The principal reasons for confirming the death penalty in the
above cases include:
(1) the cruel, diabolic, brutal, depraved and gruesome nature of
the crime (Jumman Khan[25], Dhananjoy Chatterjee[26], Laxman
Naik[27], Kamta Tiwari[28], Nirmal Singh11, Jai Kumar[29],
Satish[30], Bantu[31], Ankush Maruti Shinde[32], B.A. Umesh[33],
Mohd. Mannan[34] and Rajendra Pralhadrao Wasnik[35]);
(2) the crime results in public abhorrence, shocks the judicial
conscience or the conscience of society or the community (Dhananjoy
Chatterjee26, Jai Kumar29, Ankush Maruti Shinde32 and Mohd.
Mannan34);
(3) the reform or rehabilitation of the convict is not likely or
that he would be a menace to society (Jai Kumar29, B.A. Umesh33 and
Mohd. Mannan34);
(4) the victims were defenceless (Dhananjoy Chatterjee26, Laxman
Naik27, Kamta Tiwari28, Ankush Maruti Shinde32, Mohd. Mannan34 and
Rajendra Pralhadrao Wasnik35);
(5) the crime was either unprovoked or that it was premeditated
(Dhananjoy Chatterjee26, Laxman Naik27, Kamta Tiwari28, Nirmal
Singh11, Jai Kumar29, Ankush Maruti Shinde32, B.A. Umesh33 and
[pic]Mohd.Mannan34) and in three cases the antecedents or the prior
history of the convict was taken into consideration (Shivu[36],
B.A. Umesh33 and Rajendra Pralhadrao Wasnik35).”
However, in paragraph 123 of the report the cases where the reasons
for taking either of the views i.e. commutation or confirmation as above
have been deviated from have been noticed. Consequently, the progressive
march had been stultified and the sentencing exercise continues to stagnate
as a highly individualized and judge centric issue.
10. Are we to understand that the quest and search for a sound
jurisprudential basis for imposing a particular sentence on an offender is
destined to remain elusive and the sentencing parameters in this country
are bound to remain judge centric? The issue though predominantly dealt
with in the context of cases involving the death penalty has tremendous
significance to the Criminal Jurisprudence of the country inasmuch as in
addition to the numerous offences under various special laws in force,
hundreds of offences are enumerated in the Penal Code, punishment for
which could extend from a single day to 10 years or even for life, a
situation made possible by the use of the seemingly same expressions in
different provisions of the Penal Code as noticed in the opening part of
this order.
11. As noticed, the “net value” of the huge number of in depth exercises
performed since Jagmohan Singh (supra) has been effectively and
systematically culled out in Sangeet and Shankar Kisanrao Khade (supra).
The identified principles could provide a sound objective basis for
sentencing thereby minimizing individualized and judge centric
perspectives. Such principles bear a fair amount of affinity to the
principles applied in foreign jurisdictions, a resume of which is available
in the decision of this Court in State of Punjab vs. Prem Sagar and
Others[37].
The difference is not in the identity of the principles; it
lies in the realm of application thereof to individual situations.
While
in India application of the principles is left to the judge hearing the
case, in certain foreign jurisdictions such principles are formulated under
the authority of the statute and are applied on principles of
categorization of offences which approach, however, has been found by the
Constitution Bench in Bachan Singh (supra) to be inappropriate to our
system.
The principles being clearly evolved and securely entrenched,
perhaps, the answer lies in consistency in approach.
12. To revert to the main stream of the case, we see no reason as to why
the principles of sentencing evolved by this Court over the years through
largely in the context of the death penalty will not be applicable to all
lesser sentences so long as the sentencing judge is vested with the
discretion to award a lesser or a higher sentence resembling the swing of
the pendulum from the minimum to the maximum.
In fact, we are reminded of
the age old infallible logic that what is good to one situation would hold
to be equally good to another like situation.
Beside paragraph 163
(underlined portion) of Bachan Singh (supra), reproduced earlier, bears
testimony to the above fact.
13. Would the above principles apply to sentencing of an accused found
guilty of the offence under Section 304-B inasmuch as the said offence is
held to be proved against the accused on basis of a legal presumption?
This is the next question that has to be dealt with.
So long there is
credible evidence of cruelty occasioned by demand(s) for dowry,
any
unnatural death of a woman within seven years of her marriage makes the
husband or a relative of the husband of such woman liable for the offence
of “dowry death” under Section 304-B
though there may not be any direct
involvement of the husband or such relative with the death in question.
In
a situation where commission of an offence is held to be proved by means of
a legal presumption the circumstances surrounding the crime to determine
the presence of aggravating circumstances (crime test) may not be readily
forthcoming unlike a case where there is evidence of overt criminal acts
establishing the direct involvement of the accused with the crime to enable
the Court to come to specific conclusions with regard to the barbarous or
depraved nature of the crime committed.
The necessity to combat the menace
of demand for dowry or to prevent atrocities on women and like social evils
as well as the necessity to maintain the purity of social conscience cannot
be determinative of the quantum of sentence inasmuch as the said parameters
would be common to all offences under Section 304-B of the Penal Code.
The
above, therefore, cannot be elevated to the status of acceptable
jurisprudential principles to act as a rational basis for awarding varying
degrees of punishment on a case to case basis.
The search for principles
to satisfy the crime test in an offence under Section 304-B of the Penal
Code must, therefore, lie elsewhere.
Perhaps, the time spent between
marriage and the death of the woman; the attitude and conduct of the
accused towards the victim before her death; the extent to which the demand
for dowry was persisted with and the manner and circumstances of commission
of the cruelty would be a surer basis for determination of the crime test.
Coupled with the above, the fact whether the accused was also charged with
the offence under Section 302 of the Penal Code and the basis of his
acquittal of the said charge would be another very relevant circumstance.
As against this the extenuating/mitigating circumstances which would
determine the “criminal test” must be allowed to have a full play.
The
aforesaid two sets of circumstances being mutually irreconcilable cannot be
arranged in the form of a balance sheet as observed in Sangeet (supra) but
it is the cumulative effect of the two sets of different circumstances that
has to be kept in mind while rendering the sentencing decision.
This,
according to us, would be the correct approach while dealing with the
question of sentence so far as the offence under Section 304-B of the Penal
Code is concerned.
14. Applying the above parameters to the facts of the present case it
transpires that the death of the wife of the accused-appellant occurred
within two years of marriage.
There was, of course, a demand for dowry and
there is evidence of cruelty or harassment.
The autopsy report of the
deceased showed external marks of injuries but the cause of death of
deceased was stated to be due to asphyxia resulting from strangulation.
In
view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted
the postmortem, the learned Trial Judge thought it proper to acquit the
accused of the offence under Section 302 of the Penal Code on the benefit
of doubt as there was no evidence that the accused was, in any way,
involved with the strangulation of the deceased.
The proved facts on the
basis of which offence under Section 304-B of the Penal Code was held to be
established, while acquitting the accused-appellant of the offence under
Section 302 of the Penal Code, does not disclose any extraordinary,
perverse or diabolic act on the part of the accused-appellant to take an
extreme view of the matter.
Coupled with the above, at the time of
commission of the offence, the accused-appellant was about 21 years old and
as on date he is about 42 years.
The accused-appellant also has a son who
was an infant at the time of the occurrence.
He has no previous record of
crime.
On a cumulative application of the principles that would be
relevant to adjudge the crime and the criminal test, we are of the view
that the present is not a case where the maximum punishment of life
imprisonment ought to have been awarded to the accused-appellant.
At the
same time, from the order of the learned Trial Court, it is clear that some
of the injuries on the deceased, though obviously not the fatal injuries,
are attributable to the accused-appellant.
In fact, the finding of the
learned Trial Court is that the injuries No. 1 (Laceration 1” x ½” skin
deep on the side of forehead near hair margin) and 2 (Laceration 1 ½” x 1”
scalp deep over the frontal area) on the deceased had been caused by the
accused-appellant with a pestle.
The said part of the order of the learned
Trial Court has not been challenged in the appeal before the High Court.
Taking into account the said fact, we are of the view that in the present
case the minimum sentence prescribed i.e. seven years would also not meet
the ends of justice.
Rather we are of the view that a sentence of ten
years RI would be appropriate. Consequently, we modify the impugned order
dated 4.4.2011 passed by the High Court of Delhi and impose the punishment
of ten years RI on the accused-appellant for the commission of the offence
under Section 304-B of the Penal Code.
The sentence of fine is maintained.
The accused-appellant who is presently in custody shall serve out the
remaining part of the sentence in terms of the present order.
15. Accordingly, the appeal is partly allowed to the extent indicated
above.
..………………………..………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
..………………………..………………………J.
[RANJAN GOGOI]
NEW DELHI
OCTOBER 08, 2013
-----------------------
[1] (1973) 1 SCC 20
[2] (1980) 2 SCC 684
[3] (1983) 3 SCC 470
[4] (2013) 2 SCC 452
[5] (2013) 5 SCC 546
[6] (2003) 8 SCC 93
[7] Rahul v. State of Maharashtra, (2005) 10 SCC 322
[8] Santosh KumarSingh v. State, (2010) 9 SCC 747
[9] Rameshbhai Chandubhai Rathod(2) v. State of Gujarat, (2011) 2 SCC
764
[10] (2012) 4 SCC 107
8
1
[11] Nirmal Singh v. State of Haryana (1999) 3 SCC 670
[12] Raju v. State of Haryana (2001) 9 SCC 50
[13] Bantu v State of M.P. (2001) 9 SCC 615
6
[14] Surendra Pal Shivbalakpal v. State of Gujarat (2005) 3 SCC 127
7
1
1
[15] Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28
[16] (1998) 2 SCC 372
[17] (2000) 1 SCC 471
[18] State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622
[19] State of Maharashtra v. Mansingh, (2005) 3 SCC 131
[20] Kumudi Lal v. State of U.P., (1999) 4 SCC 108
[21] Akhtar v. State of U.P., (1999) 6 SCC 60
[22] Amrit Singh v. State of Punjab (2006) 12 SCC 79
[23] Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC 467
[24] Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56
[25] Jumman Khan v. State of U.P., (1991) 1 SCC 752
[26] Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220
[27] Laxman Naik v. State of Orissa, (1994) 3 SCC 381
[28] Kamta Tiwari v. State of M.P., (1996) 6 SCC 250
[29] Jai Kumar v. State of M.P., (1999) 5 SCC 1
[30] State of U.P. v. Satish, (2005) 3 SCC 114
[31] Bantu v. State of U.P., (2008) 11 SCC 113
[32] Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667
[33] B.A. Umesh v. State of Karnataka, (2011) 3 SCC 85
[34] Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317
[35] Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
[36] Shivu v. High Court of Karnataka, (2007) 4 SCC 713
[37] (2008) 7 SCC 550
-----------------------
23
whether sentence
of life imprisonment imposed on the accused-appellant for commission of the
offence under Section 304-B of the Penal Code is in any way excessive or
disproportionate so as to require interference by this Court. =
The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law
in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for
a term of years.
we see no reason as to why
the principles of sentencing evolved by this Court over the years through
largely in the context of the death penalty will not be applicable to all
lesser sentences so long as the sentencing judge is vested with the
discretion to award a lesser or a higher sentence resembling the swing of
the pendulum from the minimum to the maximum.
(1) the young age of the accused
(2) the possibility of reforming and rehabilitating the accused
(3) the accused had no prior criminal record
(4) the accused was not likely to be a menace or threat or
danger to society or the community
[pic](5) a few other reasons need to be mentioned such as the
accused having been acquitted by one of the courts
(6) the crime was not premeditated
(7) the case was one of circumstantial evidence
Would the above principles apply to sentencing of an accused found
guilty of the offence under Section 304-B inasmuch as the said offence is
held to be proved against the accused on basis of a legal presumption?
This is the next question that has to be dealt with.
So long there is
credible evidence of cruelty occasioned by demand(s) for dowry,
any
unnatural death of a woman within seven years of her marriage makes the
husband or a relative of the husband of such woman liable for the offence
of “dowry death” under Section 304-B
though there may not be any direct
involvement of the husband or such relative with the death in question.
In
a situation where commission of an offence is held to be proved by means of
a legal presumption the circumstances surrounding the crime to determine
the presence of aggravating circumstances (crime test) may not be readily
forthcoming unlike a case where there is evidence of overt criminal acts
establishing the direct involvement of the accused with the crime to enable
the Court to come to specific conclusions with regard to the barbarous or
depraved nature of the crime committed.
The necessity to combat the menace
of demand for dowry or to prevent atrocities on women and like social evils
as well as the necessity to maintain the purity of social conscience cannot
be determinative of the quantum of sentence inasmuch as the said parameters
would be common to all offences under Section 304-B of the Penal Code.
The
above, therefore, cannot be elevated to the status of acceptable
jurisprudential principles to act as a rational basis for awarding varying
degrees of punishment on a case to case basis.
The search for principles
to satisfy the crime test in an offence under Section 304-B of the Penal
Code must, therefore, lie elsewhere.
Perhaps, the time spent between
marriage and the death of the woman; the attitude and conduct of the
accused towards the victim before her death; the extent to which the demand
for dowry was persisted with and the manner and circumstances of commission
of the cruelty would be a surer basis for determination of the crime test.
Coupled with the above, the fact whether the accused was also charged with
the offence under Section 302 of the Penal Code and the basis of his
acquittal of the said charge would be another very relevant circumstance.
As against this the extenuating/mitigating circumstances which would
determine the “criminal test” must be allowed to have a full play.
The
aforesaid two sets of circumstances being mutually irreconcilable cannot be
arranged in the form of a balance sheet as observed in Sangeet (supra) but
it is the cumulative effect of the two sets of different circumstances that
has to be kept in mind while rendering the sentencing decision.
This,
according to us, would be the correct approach while dealing with the
question of sentence so far as the offence under Section 304-B of the Penal
Code is concerned.
14. Applying the above parameters to the facts of the present case it
transpires that the death of the wife of the accused-appellant occurred
within two years of marriage.
There was, of course, a demand for dowry and
there is evidence of cruelty or harassment.
The autopsy report of the
deceased showed external marks of injuries but the cause of death of
deceased was stated to be due to asphyxia resulting from strangulation.
In
view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted
the postmortem, the learned Trial Judge thought it proper to acquit the
accused of the offence under Section 302 of the Penal Code on the benefit
of doubt as there was no evidence that the accused was, in any way,
involved with the strangulation of the deceased.
The proved facts on the
basis of which offence under Section 304-B of the Penal Code was held to be
established, while acquitting the accused-appellant of the offence under
Section 302 of the Penal Code, does not disclose any extraordinary,
perverse or diabolic act on the part of the accused-appellant to take an
extreme view of the matter.
Coupled with the above, at the time of
commission of the offence, the accused-appellant was about 21 years old and
as on date he is about 42 years.
The accused-appellant also has a son who
was an infant at the time of the occurrence.
He has no previous record of
crime.
On a cumulative application of the principles that would be
relevant to adjudge the crime and the criminal test, we are of the view
that the present is not a case where the maximum punishment of life
imprisonment ought to have been awarded to the accused-appellant.
At the
same time, from the order of the learned Trial Court, it is clear that some
of the injuries on the deceased, though obviously not the fatal injuries,
are attributable to the accused-appellant.
In fact, the finding of the
learned Trial Court is that the injuries No. 1 (Laceration 1” x ½” skin
deep on the side of forehead near hair margin) and 2 (Laceration 1 ½” x 1”
scalp deep over the frontal area) on the deceased had been caused by the
accused-appellant with a pestle.
The said part of the order of the learned
Trial Court has not been challenged in the appeal before the High Court.
Taking into account the said fact, we are of the view that in the present
case the minimum sentence prescribed i.e. seven years would also not meet
the ends of justice.
Rather we are of the view that a sentence of ten
years RI would be appropriate. Consequently, we modify the impugned order
dated 4.4.2011 passed by the High Court of Delhi and impose the punishment
of ten years RI on the accused-appellant for the commission of the offence
under Section 304-B of the Penal Code.
The sentence of fine is maintained.
The accused-appellant who is presently in custody shall serve out the
remaining part of the sentence in terms of the present order.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1333 OF 2013
(Arising out of SLP(Crl.) No. 7002 of 2012)
Sunil Dutt Sharma ... Appellant(s)
Versus
State (Govt. of NCT of Delhi) ... Respondent(s)
J U D G M E N T
RANJAN GOGOI, J.
1. The accused-appellant was tried for offences under Sections 302 and
304-B of the Indian Penal Code (hereinafter for short the “Penal Code”) for
causing the death of his wife in the night intervening 16/17.05.92. He has
been acquitted of the offence under Section 302 of the Penal Code on the
benefit of doubt though found guilty for the offence under Section 304-B of
the Penal Code following which the sentence of life imprisonment has been
imposed. The conviction and sentence has been affirmed by the High Court.
Aggrieved, the appellant had moved this Court under Article 136 of the
Constitution.
2. Limited notice on the question of sentence imposed on the accused-
appellant having been issued by this Court the scope of the present appeal
stands truncated to a determination of the question as to
whether sentence
of life imprisonment imposed on the accused-appellant for commission of the
offence under Section 304-B of the Penal Code is in any way excessive or
disproportionate so as to require interference by this Court.
3. Section 304-B(2) of the Penal Code which prescribes the punishment
for the offence contemplated by Section 304-B(1) is in the following terms
:
“Whoever commits dowry death shall be punished with imprisonment
for a term which shall not be less than seven years but which
may extend to imprisonment for life.” (emphasis is ours).
4. Expressions similar to what has been noticed above are to be found in
different sections of the Penal Code which may be taken note of :
|(i) |Sections 115, 118, 123, 124, 126, | |
| |127, 134, 193, 201, 214, 216, | |
| |216A, 219, 220, 221, 222, 225, | |
| |231, 234, 243, 244, 245, 247, 249,|“may extend to seven |
| |256, 257, 258, 259, 260, 281, 293,|years/ten years”; |
| |308, 312, 317, 325, 333, 363, 365,| |
| |369, 370, 380, 381, 387, 393, 401,| |
| |402, 404, 407, 408, 409, 433, 435,| |
| |437, 439, 452, 455, 466, 468, 472,| |
| |473, 474, 477A, 489C, 493, 494, | |
| |495 and 496 | |
|(ii) |Sections 122, 222, 225, 305, 371, |“imprisonment for life or |
| |449, 450 |imprisonment for a term not|
| | |exceeding ten years” |
|(iii)|Sections 124A, 125, 128, 130, 194,|“imprisonment for life or |
| |232, 238, 255 etc. |with imprisonment of either|
| | |description which may |
| | |extend to ____ years” |
|(iv) |Sections 122, 225, 305, 371, 449 |“imprisonment for life or |
| | |with imprisonment of either|
| | |description for a term not |
| | |exceeding ___ years” |
|(v) |Section 304B |“imprisonment for a term |
| | |which shall not be less |
| | |than seven years but which |
| | |may extend to imprisonment |
| | |for life” |
|(vi) |Section 376 |“imprisonment of either |
| | |description for a term |
| | |which shall not be less |
| | |than seven years or for |
| | |life or for a term which |
| | |may extend to ten years” |
5. The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law
in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for
a term of years.
In the above situation, naturally, the sentencing power
has been a matter of serious academic and judicial debate to discern an
objective and rational basis for the exercise of the power and to evolve
sound jurisprudential principles governing the exercise thereof.
In this
regard the Constitution Bench decision of this Court in Jagmohan Singh vs.
The State of U.P.[1] (under the old Code), another Constitution Bench
decision in Bachan Singh vs. State of Punjab[2], a three Judge Bench
decision in Machhi Singh and Others vs. State of Punjab[3], are watersheds
in the search for jurisprudential principles in the matter of sentencing.
Omission of any reference to other equally illuminating opinions of this
Court rendered in scores of other monumental decisions is not to underplay
the importance thereof but solely on account of need for brevity.
Two
recent pronouncements of this Court in Sangeet and Another vs. State of
Haryana[4] and Shankar Kisanrao Khade vs. State of Maharashtra[5] reflect
the very labourious and painstaking efforts of this Court to summarize the
net result of the judicial exercises undertaken since Jagmohan Singh
(supra) and the unresolved issues and grey areas in this regard and the
solutions that could be attempted.
The aforesaid decisions of this Court
though rendered in the context of exercise of the power to award the death sentence, whether the principles laid down, with suitable adaptation and modification, would apply to all ‘lesser’ situations so long the court is confronted with the vexed problem of unraveling the parameters for exercise of the sentencing power is another question that needs to be dealt with.
6. For the sake of precision it may be sufficient to take note of the
propositions held in Bachan Singh (supra) to have flown from Jagmohan Singh
(supra) and the changes in propositions (iv)(a) and (v)(b) thereof which
were perceived to be necessary in the light of the amended provision of
Section 354(3) of the Code of Criminal Procedure, 1973.
The above changes
were noticed in Sangeet (supra) and were referred to as evolution of a
sentencing policy by shifting the focus from the crime (Jagmohan Singh) to
crime and the criminal (Bachan Singh).
The two concepts were described as
Phase-I and Phase-II of an emerging sentencing policy.
7. The principles culled out from Jagmohan Singh (supra) in Bachan Singh
(supra) and the changes in proposition (iv)(a) and (v)(b) may now be
specifically noticed.
Bachan Singh vs. State of Punjab2
160. In the light of the above conspectus, we will now consider
the effect of the aforesaid legislative changes on the authority
and efficacy of the propositions laid down by this Court in
Jagmohan case.
These propositions may be summed up as under:
“(i) The general legislative policy that underlines the
structure of our criminal law, principally contained in the Indian
Penal Code and the Criminal Procedure Code, is to define an offence
with sufficient clarity and to prescribe only the maximum
punishment therefor, and to allow a very wide discretion to the
Judge in the matter of fixing the degree of punishment.
With the solitary exception of Section 303, the same policy
permeates Section 302 and some other sections of the Penal Code,
where the maximum punishment is the death penalty.
(ii)-(a) No exhaustive enumeration of aggravating or mitigating
circumstances which should be considered when sentencing an
offender, is possible. “The infinite variety of cases and facets to
each case would make general standards either meaningless ‘boiler
plate’ or a statement of the obvious that no Jury (Judge) would
need.” (referred to McGoutha v. California)
(b) The impossibility of laying down standards is at the very
core of the criminal law as administered in India which invests the
Judges with a very wide discretion in the matter of fixing the
degree of punishment.
(iii) The view taken by the plurality in Furman v. Georgia
decided by the Supreme Court of the United States, to the effect,
that a law which gives uncontrolled and unguided discretion to the
Jury (or the Judge) to choose arbitrarily between a sentence of
death and imprisonment for a capital offence, violates the Eighth
Amendment, is not applicable in India. We do not have in our
Constitution any provision like the Eighth Amendment, nor are we at
liberty to apply the test of reasonableness with the freedom with
which the Judges of the Supreme Court of America are accustomed to
apply “the due process” clause. There are grave doubts about the
expediency of transplanting western experience in our country.
Social conditions are different and so also the general
intellectual level. Arguments which would be valid in respect of
one area of the world may not hold good in respect of another area.
(iv)(a) This discretion in the matter of sentence is to be
exercised by the Judge judicially, after balancing all the
aggravating and mitigating circumstances of the crime.
(b) The discretion is liable to be corrected by superior courts.
The exercise of judicial discretion on well recognised principles
is, in the final analysis, the safest possible safeguard for the
accused.
In view of the above, it will be impossible to say that there
would be at all any discrimination, since crime as crime may appear
to be superficially the same but the facts and circumstances of a
crime are widely different. Thus considered, the provision in
Section 302, Penal Code is not violative of Article 14 of the
Constitution on the ground that it confers on the Judges an
unguided and uncontrolled discretion in the matter of awarding
capital punishment or imprisonment for life.
(v)(a) Relevant facts and circumstances impinging on the nature
and circumstances of the crime can be brought before the court at
the preconviction stage, notwithstanding the fact that no formal
procedure for producing evidence regarding such facts and
circumstances had been specifically provided. Where counsel
addresses the court with regard to the character and standing of
the accused, they are duly considered by the court unless there is
something in the evidence itself which belies him or the Public
Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to
choose either of the two alternative sentences provided in Section
302 Penal Code, “the court is principally concerned with the facts
and circumstances whether aggravating or mitigating, which are
connected with the particular crime under inquiry. All such facts
and circumstances are capable of being proved in accordance with
the provisions of the Indian Evidence Act in a trial regulated by
the CrPC. The trial does not come to an end until all the relevant
facts are proved and the counsel on both sides have an opportunity
to address the court. The only thing that remains is for the Judge
to decide on the guilt and punishment and that is what Sections
306(2) and 309(2), CrPC purport to provide for. These provisions
are part of the procedure established by law and unless it is shown
that they are invalid for any other reasons they must be regarded
as valid. No reasons are offered to show that they are
constitutionally invalid and hence the death sentence imposed after
trial in accordance with the procedure established by law is not
unconstitutional under Article 21”. (emphasis added)”
161. A study of the propositions set out above, will show that,
in substance, the authority of none of them has been affected by
the legislative changes since the decision in Jagmohan case.
Of
course, two of them require to be adjusted and attuned to the shift
in the legislative policy.
The first of those propositions is No.
(iv)(a) which postulates, that according to the then extant Code of
Criminal Procedure both the alternative sentences provided in
Section 302 of the Penal Code are normal sentences and the court
can, therefore, after weighing the aggravating and mitigating
circumstances of the particular case, in its discretion, impose
either of those sentences.
This postulate has now been modified by
Section 354(3) which mandates the court convicting a person for an
offence punishable with death or, in the alternative with
imprisonment for life or imprisonment for a term of years, not to
impose the sentence of death on that person unless there are
“special reasons” — to be recorded — for such sentence.
The
expression “special reasons” in the context of this provision,
obviously means “exceptional reasons” founded on the exceptionally
grave circumstances of the particular case relating to the crime as
well as the criminal.
Thus, the legislative policy now writ large
and clear on the face of Section 354(3) is that on conviction for
murder and other capital offences punishable in the alternative
with death under the Penal Code, the extreme penalty should be
imposed only in extreme cases.
163. Another proposition, the application of which, to an
extent, is affected by the legislative changes, is No. (v).
In
portion (a) of that proposition, it is said that circumstances
impinging on the nature and circumstances of the crime can be
brought on record before the pre-conviction stage.
In portion (b),
it is emphasised that while making choice of the sentence under
Section 302 of the Penal Code, the court is principally concerned
with the circumstances connected with the particular crime under
inquiry.
Now, Section 235(2) provides for a bifurcated trial and
specifically gives the accused person a right of pre-sentence
hearing, at which stage, he can bring on record material or
evidence, which may not be strictly relevant to or connected with
the particular crime under inquiry, but nevertheless, have,
consistently with the policy underlined in Section 354(3), a
bearing on the choice of sentence.
The present legislative policy
discernible from Section 235(2) read with Section 354(3) is that in
fixing the degree of punishment or making the choice of sentence
for various offences, including one under Section 302 of the Penal
Code, the court should not confine its consideration “principally”
or merely to the circumstances connected with the particular crime,
but also give due consideration to the circumstances of the
criminal.
164. Attuned to the legislative policy delineated in Sections
354(3) and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan
shall have to be recast and may be stated as below:
“(a) The normal rule is that the offence of murder shall be
punished with the sentence of life imprisonment. The court can
depart from that rule and impose the sentence of death only if
there are special reasons for doing so. Such reasons must be
recorded in writing before imposing the death sentence.
(b) While considering the question of sentence to be imposed for
the offence of murder under Section 302 of the Penal Code, the
court must have regard to every relevant circumstance relating to
the crime as well as the criminal. If the court finds, but not
otherwise, that the offence is of an exceptionally depraved and
heinous character and constitutes, on account of its design and the
manner of its execution, a source of grave danger to the society at
large, the court may impose the death sentence.”
8. In Sangeet (supra) the Court also took note of the “suggestions”
(offered at the Bar) noticed in Bachan Singh (supra) to be relevant in a
determination of the circumstances attending the crime (described as
aggravating circumstances) as well as those which pertain to the criminal
as distinguished from the crime (referred to as the mitigating
circumstances). The attempt at evolution of a principle based sentencing
policy as distinguished from a judge centric one was noted to have suffered
some amount of derailment/erosion. In fact, the several judgments noted
and referred to in Sangeet (supra) were found to have brought in a fair
amount of uncertainty in application of the principles in awarding life
imprisonment or death penalty, as may be, and the varying perspective or
responses of the court based on the particular facts of a given case rather
than evolving standardized jurisprudential principles applicable across the
board.
9. The above position was again noticed in Shankar Kisanrao Khade
(supra). In the separate concurring opinion rendered by Brother Madan B.
Lokur there is an exhaustive consideration of the judgments rendered by
this Court in the recent past (last 15 years) wherein death penalty has
been converted to life imprisonment and also the cases wherein death
penalty has been confirmed. On the basis of the views of this Court
expressed in the exhaustive list of its judgments, reasons which were
considered adequate by the Court to convert death penalty into life
imprisonment as well as the reasons for confirming the death penalty had
been set out in the concurring judgment at paragraphs 106 and 122 of the
report in Shankar Kisanrao Khade (supra) which paragraphs may be extracted
hereinbelow to notice the principles that have unfolded since Bachan Singh
(supra).
“106. A study of the above cases suggests that there are several
reasons, cumulatively taken, for converting the death penalty to
that of imprisonment for life.
However, some of the factors that
have had an influence in commutation include:
(1) the young age of the accused [Amit v. State of
Maharashtra[6] aged 20 years, Rahul[7] aged 24 years, Santosh Kumar
Singh[8] aged 24 years, Rameshbhai Chandubhai Rathod (2)[9] aged 28
years and Amit v. State of U.P.[10] aged 28 years];
(2) the possibility of reforming and rehabilitating the accused
(in Santosh Kumar Singh8 and Amit v. State of U.P.10 the accused,
incidentally, were young when they committed the crime);
(3) the accused had no prior criminal record (Nirmal Singh[11],
Raju[12], Bantu[13], Amit v. State of Maharashtra6, Surendra Pal
Shivbalakpal[14], Rahul7 and Amit v. State of U.P.10);
(4) the accused was not likely to be a menace or threat or
danger to society or the community (Nirmal Singh11, Mohd.
Chaman[15], Raju12, Bantu13, Surendra Pal Shivbalakpal14, Rahul7
and Amit v. State of U.P.10).
[pic](5) a few other reasons need to be mentioned such as the
accused having been acquitted by one of the courts (State of T.N.
v. Suresh[16], State of Maharashtra v. Suresh[17], Bharat Fakira
Dhiwar[18], Mansingh[19] and Santosh Kumar Singh8);
(6) the crime was not premeditated (Kumudi Lal[20], Akhtar[21],
Raju12 and Amrit Singh[22]);
(7) the case was one of circumstantial evidence (Mansingh19 and
Bishnu Prasad Sinha[23]).
In one case, commutation was ordered since there was apparently
no “exceptional” feature warranting a death penalty (Kumudi Lal20)
and in another case because the trial court had awarded life
sentence but the High Court enhanced it to death (Haresh Mohandas
Rajput[24]).
122. The principal reasons for confirming the death penalty in the
above cases include:
(1) the cruel, diabolic, brutal, depraved and gruesome nature of
the crime (Jumman Khan[25], Dhananjoy Chatterjee[26], Laxman
Naik[27], Kamta Tiwari[28], Nirmal Singh11, Jai Kumar[29],
Satish[30], Bantu[31], Ankush Maruti Shinde[32], B.A. Umesh[33],
Mohd. Mannan[34] and Rajendra Pralhadrao Wasnik[35]);
(2) the crime results in public abhorrence, shocks the judicial
conscience or the conscience of society or the community (Dhananjoy
Chatterjee26, Jai Kumar29, Ankush Maruti Shinde32 and Mohd.
Mannan34);
(3) the reform or rehabilitation of the convict is not likely or
that he would be a menace to society (Jai Kumar29, B.A. Umesh33 and
Mohd. Mannan34);
(4) the victims were defenceless (Dhananjoy Chatterjee26, Laxman
Naik27, Kamta Tiwari28, Ankush Maruti Shinde32, Mohd. Mannan34 and
Rajendra Pralhadrao Wasnik35);
(5) the crime was either unprovoked or that it was premeditated
(Dhananjoy Chatterjee26, Laxman Naik27, Kamta Tiwari28, Nirmal
Singh11, Jai Kumar29, Ankush Maruti Shinde32, B.A. Umesh33 and
[pic]Mohd.Mannan34) and in three cases the antecedents or the prior
history of the convict was taken into consideration (Shivu[36],
B.A. Umesh33 and Rajendra Pralhadrao Wasnik35).”
However, in paragraph 123 of the report the cases where the reasons
for taking either of the views i.e. commutation or confirmation as above
have been deviated from have been noticed. Consequently, the progressive
march had been stultified and the sentencing exercise continues to stagnate
as a highly individualized and judge centric issue.
10. Are we to understand that the quest and search for a sound
jurisprudential basis for imposing a particular sentence on an offender is
destined to remain elusive and the sentencing parameters in this country
are bound to remain judge centric? The issue though predominantly dealt
with in the context of cases involving the death penalty has tremendous
significance to the Criminal Jurisprudence of the country inasmuch as in
addition to the numerous offences under various special laws in force,
hundreds of offences are enumerated in the Penal Code, punishment for
which could extend from a single day to 10 years or even for life, a
situation made possible by the use of the seemingly same expressions in
different provisions of the Penal Code as noticed in the opening part of
this order.
11. As noticed, the “net value” of the huge number of in depth exercises
performed since Jagmohan Singh (supra) has been effectively and
systematically culled out in Sangeet and Shankar Kisanrao Khade (supra).
The identified principles could provide a sound objective basis for
sentencing thereby minimizing individualized and judge centric
perspectives. Such principles bear a fair amount of affinity to the
principles applied in foreign jurisdictions, a resume of which is available
in the decision of this Court in State of Punjab vs. Prem Sagar and
Others[37].
The difference is not in the identity of the principles; it
lies in the realm of application thereof to individual situations.
While
in India application of the principles is left to the judge hearing the
case, in certain foreign jurisdictions such principles are formulated under
the authority of the statute and are applied on principles of
categorization of offences which approach, however, has been found by the
Constitution Bench in Bachan Singh (supra) to be inappropriate to our
system.
The principles being clearly evolved and securely entrenched,
perhaps, the answer lies in consistency in approach.
12. To revert to the main stream of the case, we see no reason as to why
the principles of sentencing evolved by this Court over the years through
largely in the context of the death penalty will not be applicable to all
lesser sentences so long as the sentencing judge is vested with the
discretion to award a lesser or a higher sentence resembling the swing of
the pendulum from the minimum to the maximum.
In fact, we are reminded of
the age old infallible logic that what is good to one situation would hold
to be equally good to another like situation.
Beside paragraph 163
(underlined portion) of Bachan Singh (supra), reproduced earlier, bears
testimony to the above fact.
13. Would the above principles apply to sentencing of an accused found
guilty of the offence under Section 304-B inasmuch as the said offence is
held to be proved against the accused on basis of a legal presumption?
This is the next question that has to be dealt with.
So long there is
credible evidence of cruelty occasioned by demand(s) for dowry,
any
unnatural death of a woman within seven years of her marriage makes the
husband or a relative of the husband of such woman liable for the offence
of “dowry death” under Section 304-B
though there may not be any direct
involvement of the husband or such relative with the death in question.
In
a situation where commission of an offence is held to be proved by means of
a legal presumption the circumstances surrounding the crime to determine
the presence of aggravating circumstances (crime test) may not be readily
forthcoming unlike a case where there is evidence of overt criminal acts
establishing the direct involvement of the accused with the crime to enable
the Court to come to specific conclusions with regard to the barbarous or
depraved nature of the crime committed.
The necessity to combat the menace
of demand for dowry or to prevent atrocities on women and like social evils
as well as the necessity to maintain the purity of social conscience cannot
be determinative of the quantum of sentence inasmuch as the said parameters
would be common to all offences under Section 304-B of the Penal Code.
The
above, therefore, cannot be elevated to the status of acceptable
jurisprudential principles to act as a rational basis for awarding varying
degrees of punishment on a case to case basis.
The search for principles
to satisfy the crime test in an offence under Section 304-B of the Penal
Code must, therefore, lie elsewhere.
Perhaps, the time spent between
marriage and the death of the woman; the attitude and conduct of the
accused towards the victim before her death; the extent to which the demand
for dowry was persisted with and the manner and circumstances of commission
of the cruelty would be a surer basis for determination of the crime test.
Coupled with the above, the fact whether the accused was also charged with
the offence under Section 302 of the Penal Code and the basis of his
acquittal of the said charge would be another very relevant circumstance.
As against this the extenuating/mitigating circumstances which would
determine the “criminal test” must be allowed to have a full play.
The
aforesaid two sets of circumstances being mutually irreconcilable cannot be
arranged in the form of a balance sheet as observed in Sangeet (supra) but
it is the cumulative effect of the two sets of different circumstances that
has to be kept in mind while rendering the sentencing decision.
This,
according to us, would be the correct approach while dealing with the
question of sentence so far as the offence under Section 304-B of the Penal
Code is concerned.
14. Applying the above parameters to the facts of the present case it
transpires that the death of the wife of the accused-appellant occurred
within two years of marriage.
There was, of course, a demand for dowry and
there is evidence of cruelty or harassment.
The autopsy report of the
deceased showed external marks of injuries but the cause of death of
deceased was stated to be due to asphyxia resulting from strangulation.
In
view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted
the postmortem, the learned Trial Judge thought it proper to acquit the
accused of the offence under Section 302 of the Penal Code on the benefit
of doubt as there was no evidence that the accused was, in any way,
involved with the strangulation of the deceased.
The proved facts on the
basis of which offence under Section 304-B of the Penal Code was held to be
established, while acquitting the accused-appellant of the offence under
Section 302 of the Penal Code, does not disclose any extraordinary,
perverse or diabolic act on the part of the accused-appellant to take an
extreme view of the matter.
Coupled with the above, at the time of
commission of the offence, the accused-appellant was about 21 years old and
as on date he is about 42 years.
The accused-appellant also has a son who
was an infant at the time of the occurrence.
He has no previous record of
crime.
On a cumulative application of the principles that would be
relevant to adjudge the crime and the criminal test, we are of the view
that the present is not a case where the maximum punishment of life
imprisonment ought to have been awarded to the accused-appellant.
At the
same time, from the order of the learned Trial Court, it is clear that some
of the injuries on the deceased, though obviously not the fatal injuries,
are attributable to the accused-appellant.
In fact, the finding of the
learned Trial Court is that the injuries No. 1 (Laceration 1” x ½” skin
deep on the side of forehead near hair margin) and 2 (Laceration 1 ½” x 1”
scalp deep over the frontal area) on the deceased had been caused by the
accused-appellant with a pestle.
The said part of the order of the learned
Trial Court has not been challenged in the appeal before the High Court.
Taking into account the said fact, we are of the view that in the present
case the minimum sentence prescribed i.e. seven years would also not meet
the ends of justice.
Rather we are of the view that a sentence of ten
years RI would be appropriate. Consequently, we modify the impugned order
dated 4.4.2011 passed by the High Court of Delhi and impose the punishment
of ten years RI on the accused-appellant for the commission of the offence
under Section 304-B of the Penal Code.
The sentence of fine is maintained.
The accused-appellant who is presently in custody shall serve out the
remaining part of the sentence in terms of the present order.
15. Accordingly, the appeal is partly allowed to the extent indicated
above.
..………………………..………………………J.
[SUDHANSU JYOTI MUKHOPADHAYA]
..………………………..………………………J.
[RANJAN GOGOI]
NEW DELHI
OCTOBER 08, 2013
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[1] (1973) 1 SCC 20
[2] (1980) 2 SCC 684
[3] (1983) 3 SCC 470
[4] (2013) 2 SCC 452
[5] (2013) 5 SCC 546
[6] (2003) 8 SCC 93
[7] Rahul v. State of Maharashtra, (2005) 10 SCC 322
[8] Santosh KumarSingh v. State, (2010) 9 SCC 747
[9] Rameshbhai Chandubhai Rathod(2) v. State of Gujarat, (2011) 2 SCC
764
[10] (2012) 4 SCC 107
8
1
[11] Nirmal Singh v. State of Haryana (1999) 3 SCC 670
[12] Raju v. State of Haryana (2001) 9 SCC 50
[13] Bantu v State of M.P. (2001) 9 SCC 615
6
[14] Surendra Pal Shivbalakpal v. State of Gujarat (2005) 3 SCC 127
7
1
1
[15] Mohd. Chaman v. State (NCT of Delhi), (2001) 2 SCC 28
[16] (1998) 2 SCC 372
[17] (2000) 1 SCC 471
[18] State of Maharashtra v. Bharat Fakira Dhiwar, (2002) 1 SCC 622
[19] State of Maharashtra v. Mansingh, (2005) 3 SCC 131
[20] Kumudi Lal v. State of U.P., (1999) 4 SCC 108
[21] Akhtar v. State of U.P., (1999) 6 SCC 60
[22] Amrit Singh v. State of Punjab (2006) 12 SCC 79
[23] Bishnu Prasad Sinha v. State of Assam, (2007) 11 SCC 467
[24] Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56
[25] Jumman Khan v. State of U.P., (1991) 1 SCC 752
[26] Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220
[27] Laxman Naik v. State of Orissa, (1994) 3 SCC 381
[28] Kamta Tiwari v. State of M.P., (1996) 6 SCC 250
[29] Jai Kumar v. State of M.P., (1999) 5 SCC 1
[30] State of U.P. v. Satish, (2005) 3 SCC 114
[31] Bantu v. State of U.P., (2008) 11 SCC 113
[32] Ankush Maruti Shinde v. State of Maharashtra, (2009) 6 SCC 667
[33] B.A. Umesh v. State of Karnataka, (2011) 3 SCC 85
[34] Mohd. Mannan v. State of Bihar, (2011) 5 SCC 317
[35] Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2012) 4 SCC 37
[36] Shivu v. High Court of Karnataka, (2007) 4 SCC 713
[37] (2008) 7 SCC 550
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23
