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.
-----------------------
[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
-----------------------
15
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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