REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.     403           OF 2009 (Arising out of S.L.P. (Crl.) No.3181 of 2006)

Sahdev ….Appellant  

Versus

Jaibar @ Jai Dev & Ors. …Respondents  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge  in  this  appeal  by the informant  is  to  the judgment  of  a

learned Single Judge of the Punjab and Haryana High Court by which the

High Court while upholding the conviction of respondents 1 to 4 for offence

punishable under Sections 307 and 326 read with Section 34 of the Indian

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Penal Code, 1860 (in short the ‘IPC’) reduced the sentence from 10 years to

7 years in respect of first offence.   

3. The factual scenario has been described in detail in Criminal Appeal

No.16/2007 and Criminal Appeal No…….. of 2009 (Arising out of  SLP

(Crl.) 2007 of 2008) disposed of by us today.  In the present appeal filed by

the complainant, who had  suffered injuries the legality of the order so far as

it relates to reduction of sentence is concerned, has been questioned.  It has

been stated that the victims were mercilessly beaten and large number of

injuries  were  caused  to  them.  Without  even  indicating  any  basis,  the

sentence  has  been reduced.  Injured  Ram Swarup  could  not  be  examined

because, as per the opinion of the doctor, he has lost his memory due to the

injury caused to him.  So far as the injuries on Ram Swarup are concerned

they are as follows:

1. An incised wound 10x4x2 cm. deep over front of the neck just above

the  thyrod  cartilage.  The  trachea  was  cut  and  exposed.  Advised

E.N.T. Surgeon's opinion.  

2. An incised wound 16x2 cm X bone deep over right side of the scalp

extending from right eyebrow to the parietal region up to the mid line.

Advised Surgeon's opinion.  

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3. Incised  wound 6 cm x 1 cm bone deep over  left  side of the scalp

extending from the left  eyebrow over the scalp.  Advised Surgeon's

opinion.  

4. Incised wound 4x1x1 cm deep over the left side of the forehead 1 cm

deep over the left side of the forehead 1 cm. of mild line.  

5. Incised wound 4 x 1 x 1 cm. over the anterior aspect of left shoulder.

6. Crush  injury  16  cm x  8  cm x  bone  deep  over  the  right  shoulder

underlying bone muscles were exposed.

The order of the High Court is supported by learned counsel for the

accused persons.

It is noticed that the injuries were definitely of a very serious nature,

as these injuries noted above go to show. The trial  Court  has imposed a

sentence of 10 years in respect of offence relatable to Section 307 IPC.  The

High Court  has  not  indicated  any reason  for  reducing  the  sentence  to  7

years.

4. The law regulates  social  interests,  arbitrates  conflicting  claims and

demands.   Security of  persons  and property of  the people is  an essential

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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  corner-stone  of  the  edifice  of  “order”  should  meet  the  challenges

confronting the society. Friedman in his “Law in Changing Society” stated

that, “State of criminal law continues to be – as it should be – a decisive

reflection of social consciousness of society”.  Therefore, in operating the

sentencing  system,  law  should  adopt  the  corrective  machinery  or  the

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.  For instance a murder committed due to

deep-seated mutual and personal rivalry may not call for penalty of death.

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But an organised crime or mass murders of innocent people would call for

imposition  of  death sentence as  deterrence.   In  Mahesh v.  State of  M.P.

(1987) 2 SCR 710), this Court while refusing to reduce the death sentence

observed thus:

“It  will  be  a  mockery  of  justice  to  permit  the accused  to  escape  the  extreme  penalty  of  law  when faced with such evidence and such cruel acts. To give the  lesser  punishment  for  the  accused  would  be  to render the justicing system of the country suspect.  The common man will lose faith in courts.  In such cases, he understands and appreciates the language of deterrence more than the reformative jargon.”

5. 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 etc. v. State of Tamil Naidu (AIR 1991 SC 1463).

6. The criminal law adheres in general to the principle of proportionality

in prescribing liability according to the culpability of each kind of criminal

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conduct.  It  ordinarily  allows  some significant  discretion  to  the  Judge  in

arriving  at  a  sentence  in  each case,  presumably  to  permit  sentences  that

reflect  more  subtle  considerations  of  culpability  that  are  raised  by  the

special facts of each case.  Judges in essence affirm that punishment ought

always to fit the crime; yet in practice sentences are determined largely by

other  considerations.  Sometimes  it  is  the  correctional  needs  of  the

perpetrator that are offered to justify a sentence. Sometimes the desirability

of keeping him out of circulation, and sometimes even the tragic results of

his crime. Inevitably these considerations cause a departure from just desert

as the basis of punishment and create cases of apparent injustice that are

serious and widespread.  

7. Proportion  between  crime  and  punishment  is  a  goal  respected  in

principle, and in spite of errant notions, it remains a strong influence in the

determination  of  sentences.  The  practice  of  punishing  all  serious  crimes

with equal severity is now unknown in civilized societies, but such a radical

departure from the principle of proportionality has disappeared from the law

only  in  recent  times.  Even  now  for  a  single  grave  infraction  drastic

sentences are imposed. Anything less than a penalty of greatest severity for

any  serious  crime  is  thought  then  to  be  a  measure  of  toleration  that  is

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unwarranted and unwise. But in fact, quite apart from those considerations

that make punishment unjustifiable when it is out of proportion to the crime,

uniformly disproportionate punishment has some very undesirable practical

consequences.            

8. After giving due consideration to the facts and circumstances of each

case,  for  deciding  just  and  appropriate  sentence  to  be  awarded  for  an

offence, the aggravating and mitigating factors and circumstances in which

a crime has been committed are to be delicately balanced on the basis of

really relevant circumstances in a dispassionate manner by the Court.  Such

act of balancing is indeed a difficult task.  It has been very aptly indicated in

Dennis Councle MCGDautha v.  State of Callifornia: 402 US 183: 28 L.D.

2d 711  that no formula of a foolproof nature is possible that would provide

a reasonable criterion in determining a just and appropriate punishment in

the infinite variety of circumstances that may affect the gravity of the crime.

In the absence of any foolproof formula which may provide any basis for

reasonable criteria to correctly assess various circumstances germane to the

consideration of gravity of crime, the discretionary judgment in the facts of

each  case,  is  the  only  way  in  which  such  judgment  may  be  equitably

distinguished.

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9. In Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353),

it has been held by this Court that in the matter of death sentence, the Courts

are required to answer new challenges and mould the sentencing system to

meet these challenges.  The object should be to protect the society and to

deter  the  criminal  in  achieving  the  avowed  object  to  law  by  imposing

appropriate  sentence.  It  is  expected  that  the  Courts  would  operate  the

sentencing  system  so  as  to  impose  such  sentence  which  reflects  the

conscience of the society and the sentencing process has to be stern where it

should be. Even though the principles were indicated in the background of

death  sentence  and  life  sentence,  the  logic  applies  to  all  cases  where

appropriate sentence is the issue. (See:  State of M.P. v. Ghanshyan Singh

(2003 8 SCC 13).

10. The injuries  on Ram Sarup were attributed to accused Raj  Kumar.

Therefore, so far as he is concerned, the appeal is allowed by enhancing the

sentence  from 7  years  to  10  years.   So  far  as  the  other  two  respondent

accused  persons  are  concerned,  though  no  reason  has  been  indicated,

considering  the  nature  of  the  injuries  caused  by  them,  the  sentence  as

imposed by the High Court does not appears to be on the lower side.

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11. The appeal is allowed to the extent  that  the sentence in respect  of

accused  Raj  Kumar  is  enhanced  from 7  years  to  10  years  in  respect  of

offence relatable to Section 307 IPC.  The appeal fails so far as the other co-

accused persons are concerned in relation to the prayer for enhancement of

sentence.

12. The appeal is allowed to the aforesaid extent.        

          ………

….....................................J. (Dr. ARIJIT PASAYAT)              

………….……….........................J.          (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 27, 2009

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