Sachdev vs Jaibir @ Jaidev & Ors

Sahdev ....Appellant

Versus

Jaibar @ Jai Dev & Ors. ...Respondents

JUDGMENT

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

1 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

3 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.

4 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

5 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

6 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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