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CASE NO.: Appeal (crl.)  118 of 2006

PETITIONER: Shailesh Jasvantbhai & Anr.

RESPONDENT: State of Gujarat & Ors.

DATE OF JUDGMENT: 19/01/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: JUDGMENT   (Arising out of SLP(Crl.) No. 1494 of 2004)                                                 With CRIMINAL APPEAL NO.    119         OF 2006 (Arising out of SLP(Crl.) No. 3908 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.

       Of these two appeals, one is by the State of Gujarat and  the other by the victim of the crime. They assail correctness of  the judgment rendered by a Division Bench of the Gujarat  High Court. By the impugned judgment while upholding the  conviction recorded by the trial court the High Court reduced  the sentence to the period already undergone; but awarded  compensation to the victims.  

Background facts in a nutshell are as under:

       On 30th March, 2002, first information report was lodged  alleging that the respondents Pratapji and Jayantubha  (hereinafter referred to as accused by their respective names)  assaulted the informant Sameer Kumar and the appellant  Shailesh Jasvantbhai causing serious injuries.  On the basis  of the information lodged, investigation was undertaken and  the accused persons were tried for alleged commission of  offence punishable under Sections 307,324, 504  read with  Section 114 of the Indian Penal Code,1860( in short the ’IPC’)  and section 135 of the Bombay Police Act. The trial court held  the accused persons to be guilty and sentenced each to  undergo rigorous imprisonment for 10 years with fine of  Rs.3,000/- with default stipulation for the offences punishable  under Sections 307 and 114 IPC.  No separate sentence was  imposed for the offences punishable under Sections 324 and  114 IPC. The accused persons were, however, acquitted of the  charges relating to Section 504 IPC and Section 135 of the  Bombay Police Act. The incident as described in the first  information report and as unfolded during trial was that the  incident in question happened on 30th March, 2002 when  complainant Sameer Kumar and his friend appellant Shailesh  were standing near a pan shop situated on Bhabhar Highway.   After having their pans, both the accused came there and  asked the complainant to pay the charges for their pans. A  quarrel started as the complainant refused to accept the  demand of the accused.  Thereafter at about 9.30 p.m. on the  next day, when complainant and his friend’s, Balmukund and  Shailesh were standing at the pan shop situated opposite a

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PCO, both the accused came there, each was armed with a  knief and started abusing the complainant. Accused No. 2  Jayantubha caught hold of the complainant and accused No.  1 Pratap gave knife blow on the right hand of the complainant.   He also gave another blow on the left hand of the complainant.  When the complainant shouted for help, appellant Shailesh  intervened.  Both the accused diverted their attention to  Shailesh by inflicting blows with knife on him. Shailesh  sustained injury on the left side of the neck and fell down on  the ground.  Thereafter Balmukund and Bharat also  intervened.  Accused thereafter fled.  Both the injured were  taken to Dr. Dhirajbhai (PW1) for the treatment who also  informed the police. The police thereafter recorded the  complaint and started investigation, submitted the  chargesheet against accused. Trial was held as accused  persons pleaded innocence. As noted above, the trial court  found them guilty and convicted and sentenced them. Trial  Court’s judgment was assailed before the High Court.

During the hearing of the appeal before the High Court  conviction was not questioned, but it was submitted that the  accused Pratapji had appeared in Standard X examination  before a week of the incident, the sentence was harsh, had the  likelihood of spoiling the careers of the accused persons.  It  was, therefore, submitted that a lenient view should be taken  in the matter by providing adequate compensation to the  injured persons.  The plea was resisted by the State. But the  High Court was of the view that even though the conviction  was not seriously questioned, the same was rightly so done  because the conviction was in order.  However, it was held  that as both the accused persons were in prison and one of  them had appeared in Standard X examination, and had no  criminal antecedent the sentence was restricted to the period  already undergone i.e. for about two years with the fine of  Rs.60,000/- (Rupees sixty thousand) which was to be paid as  compensation to the injured.    In support of the appeal learned counsel for the  appellants submitted that no sympathy or leniency should  have been shown to the accused persons. The order was  passed even without any notice to the injured persons who  would have shown as to how no leniency was warranted. The  factor which weighed with the High Court i.e. the accused  persons being student with no criminal antecedent had merely  no relevance.  It was also factually not correct that the  accused persons had no criminal antecedent. In reality they  were involved in large number of similar cases.

Learned Counsel for the respondents supported the  impugned judgment.  

       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

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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.            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 Nadu (1991 (3) SCC 471).         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 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

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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.         In Dhananjoy Chatterjee v. State of W.B. (1994 (2) SCC  220), this Court has observed that shockingly large number of  criminals go unpunished thereby increasingly, encouraging  the criminal and in the ultimate making justice suffer by  weakening the system’s creditability. The imposition of  appropriate punishment is the manner in which the Court  responds to the society’s cry for justice against the criminal.  Justice demands that Courts should impose punishment  befitting the crime so that the Courts reflect public abhorrence  of the crime. The Court must not only keep in view the rights  of the criminal but also the rights of the victim of the crime  and the society at large while considering the imposition of  appropriate punishment.         Similar view has also been expressed in Ravji v. State of  Rajasthan (1996 (2) SCC 175).  It has been held in the said  case that it is the nature and gravity of the crime but not the  criminal, which are germane for consideration of appropriate  punishment in a criminal trial. 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  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". If for extremely heinous crime of  murder perpetrated in a very brutal manner without any  provocation, most deterrent punishment is not given, the case  of deterrent punishment will loss its relevance. In State of M.P.  vs. Ghanshyam Singh (2003(8) SCC 13), Surjit Singh Vs.  Nahara Ram and Anr. (2004 (6) SCC 513) and State of M.P.  Vs. Munna Choubey and Anr. (2005 (2) SCC 710) the position  was again highlighted.   

We find from the record that before learned Additional  Sessions Judge, Deesa an affidavit was filed by the sub  inspector of Police that accused Pratapji was involved in large  number of cases and details of nine cases were given.   Similarly it was stated that the accused no.2 Jayantubha, who  was an accomplice of accused no.1 was also involved in nine  cases.  The trial court while dealing with the bail application  filed by the accused also noted about the pendency of the  cases.  It further appears that during pendency of the trial the  bail granted to accused Pratapji was cancelled for breach of  conditions imposed by the court for grant of bail.  These  aspects do not appear to have been considered by the High  Court. It proceeded on factually erroneous premises without  keeping in view correct principles relating to punishment.  

Above being the position we set aside the impugned  judgment of the High Court and remit the matter to the High  Court for a fresh hearing on the question of sentence,  uninfluenced by any observation made in these appeals.

The appeals are allowed to the aforesaid extent.