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PETITIONER: RAM PRASAD SAHU AND ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT12/10/1979

BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S.

CITATION:  1980 AIR   83            1980 SCR  (1) 927  1980 SCC  (1)  74

ACT:      Special Leave,  under Article  136 of the Constitution- Limitations Sentencing Verdict-Factors to be taken note of.

HEADNOTE:      The appellants  were held  guilty by the Sessions Court under Section  302 read  with Section  149 I.P.C.  plus some lesser offences;  but  the  High  Court  softened  both  the convictions and  sentences having  regard to  all  but  one. Hence the appeals by special leave, limited to sentence.      Allowing in part, the Court, ^      HELD: 1.  Every error  does not confer a visa into this Court lest  the flood-gates  of litigation should flow as an irresistible stream making the Supreme Court a superior High Court of  appeal. Doing  so, in  exercise of  this Court’s D jurisdiction under  Art.  136  of  the  Constitution,  would condemn the  court to  functional futility  and  defeat  the design of  the founding  fathers that  ordinarily  it  shall operate  as  the  nation’s  summit  court  deliberating  and pronouncing upon  issues of  great moment and constitutional portent. [928 D-E]      Constructive liability  notwithstanding, the sentencing process will  take note  of the  conspectus of circumstances including the  absence of  overt act, age and antecedents of the offender.  It is  wrong on  principle  to  exclude  such special circumstances like injuries found on the accused, in apportioning the sentence. [930 A-B]      Rehabilitation of  young offenders is basic to juvenile justice, which  in turn,  is a  component of social justice. The penological purpose being to convert the offender into a non-offender, it  will be a frustration of criminal justice, if young  lads are  walled in  and caged  in the  hope  that cruelty will  correct. Further  it  is  widely  accepted  by penologists that  the sharp  shock of the initial phase of a prison term  is what  hurts most  and therefore, a long term may  well   be  counterproductive   and   a   shorter   term sufficiently deterrent. [929 F, 930 B-C] Observation.      [Unfortunately, despite  repeated observations  of this Court, the  conscience of  the State  of Bihar  has not been quickened into kindness towards children and its legislature

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has not  found the mood or time to pass a Children Act. This is bad omen in the International Year of the Child and it is hoped that  amidst the  general tumult the children will not suffer from  legislative neglect,  Had there been a Children Act in  the Bihar  State like  in most  other States  of the country, a  compassionate  trial  process  would  have  been statutorily mandatory and children could not be marched into regular  criminal  courts  for  trial  and  conviction,  nor incarcerated with  adult criminals  with obvious  debasement and subtle torture such as homosexual attacks.] [929 D-F] 928

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION : Criminal Appeal Nos. 613 and 614 of 1979. . .      Appeals by  Special Leave  from the  Judgment and order dated . 24-4-1979 of the Patna High Court in Criminal Appeal No. 289 of 1975.      R. K.  Jain (613/79),  A. N.  Mulla (614/79)  and R. P. Singh for the Appellants.      U. P. Singh for the Respondent.      The Judgment of the Court was delivered by      KRISHNA IYER,  J.-These two  appeals lend themselves to disposal by  a common  judgment having  been  filed  by  two different  sets   of  accused   against  the  same  judgment convicting them all for different offences.      The facts  found by  the  High  Court  have  our  broad concurrence although  Shri R.  K. Jain, Advocate in Criminal Appeal No.  613 of  1 1979, has, to some extent, made a dent on the  veracity of  the prosecution version. But we are not inclined  to  re-open  the  findings  of  fact  concurrently rendered in  exercise of  our jurisdiction under Article 136 even assuming  there are  some errors  of fact  and of  law. Every error  does not confer a visa into this Court lest the floodgates of  litigation should  flow  as  an  irresistible stream making  the Supreme  Court a  superior High  Court of appeal. Doing  so would  condemn  the  court  to  functional futility and  defeat the design of the founding fathers that ordinarily it  shall operate  as the  nation’s summit  court deliberating and pronouncing upon issues of great moment and constitutional portent.  For these  reasons we have confined leave to  appeal to  the nature  of the offence disclosed on the findings  on record  and the  sentence to  be imposed if variance is justified on principle.      The appellants  in both  these appeals  have been  held guilty by  the j;  Sessions Court  under s. 302 read with s. 149 I.P.C.  plus some  lesser offences;  but the  High Court softened both the convictions and sentences having regard to all but  one. The  plea of  the appellants  in both  the  is appeals is that the conviction is un-sustainable and, in any case, the sentence is harsher than the law permits.      A few facts. The deceased-one man dies as a result of a murderous assault  and  so  it  was  that  the  trial  court rendered conviction under s. 302 read with s. 149 I.P.C.-was attacked by  the group  of accused each playing a particular role, the  lethal blow  being attributed  to  accused  Bansi Sahu. We do not interfere with the conviction and 929 sentence of  Bansi Sahu. The appellants in Cr. Appeal 613/79 (arising out  of SLP  (Crl.) 2340  of 1979)  have been freed from overt acts by the High Court and consequently they have been found  culpable under  s. 325  read with  s. 149 I.P.C. having regard  to the  quantum of  common object  which made

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them constructively liable. They have been awarded six years R.l. each.  Some of these accused have received injuries for which the  prosecution has  offered no credible explanation. The special  circumstances present  in the  case do  not al- together absolve  the prosecution  from blame.  While  these suggest some distortion in the version of the State, they do not amount  to any  specific defence  provided in  the Penal Code and  cannot disturb  the conviction  or the core of the prosecution version.  Nevertheless, it is wrong on principle to exclude such circumstances in apportioning; the sentence.      Secondly, a  vital factor  with  grave  impact  on  the sentencing verdict  , has  been altogether  omitted  by  the courts below.  Appellant No.  2 Sankar  Sahu was  barely  16 years old,  but was  tried, convicted  and sentenced like an adult.  Satyanarayan  Sahu  appellant  No.  1  in  the  same criminal appeal is stated to be 20 years old. Had there been a Children Acts in the Bihar State like in most other States of the  country, .  a compassionate trial process would have been statutorily mandatory and children could not be marched into regular  criminal courts  for trial and conviction, nor incarcerated with  adult criminals  with obvious  debasement and   subtle    torture   such    as   homosexual   attacks. Unfortunately, despite  repeated observations of this Court. the conscience  of the State of Bihar has not been quickened into kindness  towards children  and its legislature has not found the mood or time to pass a Children Act. This is a bad omen in the International Year of the Child and we hope that amidst the  general tumult the children will not suffer from legislative neglect.  Rehabilitation of  young offenders  is basic to  juvenile justice which, in turn, is a component of social justice. Will the International Year of the Child see the end  of this indifference on the part of the legislature and the  executive ?  We leave  this part  of the  case on a hopeful note.      Had there  been a  Children Act,  the above two accused appellants 1  and 2,  would have received more compassionate consideration at  the hands  of the court. We emphasise this aspect not merely with respect to the. present case but also having  in   mind  the   generality  of   cases  where,  the sensitivity of  the court  and the  literacy of the Bar have not risen to tile level where Indian children can claim that charity due to them is being meted out. s-743 SCI/79 930      For these  reasons we  consider that appellant No. 2 in Crl.  Appeal   No.  614   of  1979  be  released  forthwith, particularly because  he is  young  and  has  no  overt  act attributed to  him and  more than all, has suffer d around 5 months’   imprisonment   already.   Constructive   liability notwithstanding the sentencing process will take note of the conspectus of  circumstances including  the absence of overt act, age  and antecedents  of the  offender. The penological purpose being  to convert  the offender into a non-offender, it will  be a  frustration of criminal justice if young lads are walled  in and  cased in  the hope that cruelty will cor rect. We direct appellant No. 2 to be discharged from prison at once.      The other  appellants 1,  3 and  4, who  are  also  not guilty of  any overt  acts deserve sentencing commiseration. Currently, it  is widely  accepted by  penologists that  the sharp shock  of the  initial phase  of a prison term is what hurts most  and therefore,  a long term may well be counter- productive and  a shorter  term sufficiently  deterrent.  We therefore, reduce  their sentence  to two  years’ R.I. while confirming the conviction against them. S. R.                               Appeals allowed in part.

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