08 October 2004
Supreme Court
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ADU RAM Vs MUKNA

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: Crl.A. No.-000646-000646 / 1999
Diary number: 8388 / 1998
Advocates: B. D. SHARMA Vs SUSHIL KUMAR JAIN


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CASE NO.: Appeal (crl.)  646 of 1999

PETITIONER: Adu Ram

RESPONDENT: Mukna and Ors.

DATE OF JUDGMENT: 08/10/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

[With Crl. Appeal no.647/1999]

ARIJIT PASAYAT, J.

       In our country where large number of people live below the  poverty line, destruction of a small quantity of crops, that too by  animals in many cases lead to fights and invariably loss of lives.  These are normally not pre-meditated and tempers rise at the spot,  physical force is used and by the time sanity prevails, damage is done.  Neighbours or even friends and relatives forget the existing comity,  and animal instincts take over. The case at hand belongs to such  category of cases.  

These two appeals are inter-linked being directed against the  same judgment rendered by a Division Bench of the Rajasthan High Court  at Jodhpur.  By the impugned judgment the High Court altered conviction  of the 5 respondents from Section 302 read with Section 149 and 148,  341 of the Indian Penal Code, 1860 (in short ’the IPC’) to Section 304  Part I read with Section 149, 148 and 341 IPC.   Criminal appeal  no.646/1999 has been filed by the informant while criminal appeal  no.647/1999 has been filed by the State of Rajasthan.

Five respondents (hereinafter referred to as the ’accused’) were  found guilty of the offences punishable under Section 302 read with  Sections 149 and 148, 341 of the IPC by the trial Court. Instead of  life imprisonment as awarded for the first offence, the High Court  restricted the custodial sentence to the period undergone which was  about 3 years. Accused persons had not seriously contested the  occurrence before the High Court.  They have only contended that the  offence was not covered by Section 302 read with Section 149.  

A brief reference to the factual aspects would be necessary.   

On 9.3.1995 over a trifle issue of damage of crop by goats there  was altercation between Adu Ram-informant (appellant in criminal appeal  no.646/1999) and Poora Ram (hereinafter referred to as the ’deceased’)  on one side and the accused persons on the other. According to the  informant, when he noticed that the goats of the accused Chola had  damaged part of the crop, there was exchange of hot words and the  respondents-accused surrounded the deceased with the intention to kill  him, started beating him with lathies and axes resulting his  instantaneous death.  Information was lodged at the police station and

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investigation was undertaken and on completion thereof the charge sheet  was placed.

Fourteen witnesses were examined to further the prosecution  version. While the accused persons took the plea that they have found  the dead body of the deceased in their fields and with the suspicion  that they had caused his murder, they have been implicated. The trial  court placed reliance on the evidence of eye-witness i.e. Ruparam (PW- 1), Prahlad (PW-5) and Lata (PW-11). It is to be noted that doctor (PW- 2) who conducted the post mortem found 34 injuries including several  fracture injuries. Accordingly, the trial Court recorded conviction as  aforesaid.  The High Court noted the fact that the fracture injuries  were all seen on the hand and other non-vital parts of the body and  there was no grievous injury on the head.  All the injuries on the head  were simple in nature. Accordingly, the conviction was altered to  Section 304 Part I IPC.  Taking note of the fact that sometime has been  spent during trial, custodial sentence was reduced to the period  undergone. The fine from Rs.2,000/- was enhanced to Rs.10,000/-. It was  directed that the fine as awarded if deposited, is to be paid to the  widow of the deceased as compensation.   

Learned counsel for the appellants submitted that alteration of  conviction is indefensible. In any event, the imposition of sentence to  period undergone is clearly irrational.  

Learned counsel for the respondents-accused, however, submitted  that there was no injury noticed on any vital part.  On the other hand  injuries on different part of the body clearly indicate that no  particular injury was intended. As a matter of fact, there were only  simple injuries on the vital parts of the body.   

It was further submitted that considering long passage of time  the custodial sentence as imposed is proper.  It was pointed out that  grievances of the prosecution party have been taken care of by the  direction to pay compensation to the widow of the deceased by enhancing  fine amount.  

So far as the alteration of conviction is concerned, we find that  the High Court has recorded adequate reasons for altering conviction.  The number of injuries is always not determinative of the offence.  It  would depend on the weapon used, place where the injuries were  inflicted and the nature of the injuries. Further, the assaults appear  to have been made in the course of quarrel.  That being so, no serious  infirmity is noticed in the High Court’s view regarding the conviction.  In fact, this is a case which falls under Section 304 Part II IPC.                                                                                                                   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 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 \026 as it should be \026 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

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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.  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."

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).                    

The criminal law adheres in general to the principle of  proportionality in prescribing liability according to the culpability  of each kind of criminal 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.  

       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 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.            

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

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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.

Imposition of sentence without considering its effect on the  social order in many cases may be in reality a futile exercise. The  social impact of the crime, e.g. where it relates to offences against  women, dacoity, kidnapping, misappropriation of public money, treason  and other offences involving moral turpitude or moral delinquency which  have great impact on social order, and public interest, cannot be lost  sight of and per se require exemplary treatment. Any liberal attitude  by imposing meager sentences or taking too sympathetic view merely on  account of lapse of time in respect of such offences will be result- wise counter productive in the long run and against societal interest  which needs to be cared for and strengthened by string of deterrence  inbuilt in the sentencing system.

In the instant case taking note of the background facts and  special features of the case custodial sentence of six years would  serve the ends of justice. Normally, sentence for conviction for  offence relatable to Section 304 Part I IPC would be more. But this is  a case which could be, on the facts of the case covered under Section  304 Part II IPC. Though there is no appeal on behalf of the accused  persons, the same is apparently because of reduction of sentence. The  enhanced fine has to be deposited, if not already done, within two  months from today. In case the fine is not deposited the default  custodial sentence will be two years RI.

Appeals are accordingly disposed of.