30 November 2004
Supreme Court
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STATE OF U.P. Vs KISHAN

Bench: ARIJIT PASAYAT,S.H. KAPADIA
Case number: Crl.A. No.-001381-001381 / 2004
Diary number: 20492 / 2003


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CASE NO.: Appeal (crl.)  1381 of 2004

PETITIONER: State of U.P.

RESPONDENT: Shri Kishan  

DATE OF JUDGMENT: 30/11/2004

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

(Arising out of SLP (Crl.) No. 4982 of 2003)

ARIJIT PASAYAT, J                  Leave granted.

       The State of U.P. is in appeal against the judgment of the  learned Single Judge of the Allahabad High Court, Lucknow Bench. By the  said impugned judgment, Criminal Appeal No.37 of 1995 was disposed of  by reducing the respondent’s sentence of 7 years RI imposed in respect  of offence punishable under Section 304 Part II of the Indian Penal  Code, 1860 (in short the ’IPC’) to the period already undergone with a  direction to pay fine of Rs.15,000/- with default stipulation of one  year RI.  

       The respondent (hereafter referred to as the ’accused’) was found  guilty by the learned Sessions Judge, Sitapur. The accused had faced  trial for offence punishable under Section 302 IPC for having caused  homicidal death of one Chetai (hereinafter referred to as the  ’deceased’) on 7.5.1988. The injury was caused by a spade over a land  dispute. Though the accused was charged for commission of offence  punishable under Section 302 IPC, the trial Judge held that appropriate  conviction would be under Section 304 Part II IPC and rigorous  imprisonment for 7 years was awarded.  Before the High Court the  accused did not press appeal on merits but only addressed on the  question of sentence. It was submitted that the alleged occurrence took  place in 1988 and a lenient view should be taken. The High Court  practically by an unreasoned and non-speaking order which is impugned  in this appeal disposed of the appeal reducing the custodial sentence  as afore-noted.  All that the High Court said in the judgment is as  follows:

       "Considering all facts and circumstances of the  case as well as age, character and other antecedents  of the appellant, I find that it will meet the ends  of justice if the sentence awarded to the appellant  is modified and reduced.  

       The appeal is accordingly dismissed. The  conviction recorded against the appellant under  Section 304 (Part II} IPC is maintained, but the  sentence awarded is reduced to the period already  undergone and to pay a fine of Rs.15,000/- and in  default of payment of fine to further undergo RI for  a period of one year."

       The logic behind the sentence in a criminal trial has been

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highlighted by this Court in State of M.P. v. Ghanashyam Singh (2003  (8) SCC 13).  

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).                    

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.

The object should be to protect the society and to deter the  criminal in achieving the avowed object of 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.

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.  

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".  

       It is rather surprising that the High Court has not even  indicated what period of custody the respondent has suffered.                   Since all these aspects have not been noted by the High Court and  by practically unreasoned order the matter was disposed of in a most  unsatisfactory manner, it would be appropriate for the High Court to  re-hear the appeal on the question of sentence. It goes without saying

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that while deciding the matter afresh the High Court shall keep in view  the position in law as highlighted by this Court in Ghanshyam Singh’s  case (supra). We make it clear that we have not expressed any opinion  on the quantum of punishment to be awarded.  

       The appeal is accordingly disposed of.