1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Review Petition (Crl.) No.477 of 2018 in CRL.A. No.60 of 2007

JASWINDER SINGH (DEAD)

THROUGH LEGAL REPRESENTATIVE …Petitioner

Versus

NAVJOT SINGH SIDHU & ORS. …Respondents

With

Review Petition (Crl.) No.478/2018 in CRL.A. No.58/2007

Review Petition (Crl.) No.479/2018 in CRL.A. No.59/2007

J U D G M E N T

SANJAY KISHAN KAUL, J.

Background:

1. The original controversy emanates from an FIR dated 27.12.1988

under Section 304/34 of the Indian Penal Code, 1860 (hereinafter

2

referred to as the ‘IPC’) registered by the Sub-Inspector of P.S. Kotwali

of Patiala District, Punjab on the basis of the information given by one

Shri Jaswinder Singh (Informant) about an occurrence around 12:30 p.m.

at the traffic light of Battian Wala Chowk. The Informant and one Avtar

Singh (PW-3 and PW-4 respectively) were travelling with the deceased,

Gurnam Singh in a Maruti Car driven by the deceased. Apparently, a

dispute arose on the right of way between the accused and the deceased

and respondent No.1 (the first accused) came out of his vehicle, pulled

out the deceased from his vehicle and inflicted fist blows. As per the

Informant his endeavour to intervene resulted even in the second accused

(respondent No.2) (not mentioned in the FIR) getting out of the vehicle

and giving fist blows to the Informant. It was alleged that the car keys of

the deceased’s car were removed by the accused and they fled from the

scene of occurrence. PW-3 and PW-4 took the deceased in a rickshaw to

the hospital where the doctors announced that Gurnam Singh was dead.

2. A post-mortem was conducted by Dr. Jatinder Kumar Sadana

(PW-2), who recorded that the injuries were ante-mortem in nature and

caused by a blunt weapon though he reserved his opinion on the cause of

death as it could apparently be given only after receiving the report of the

3

pathologist. The Pathologist’s report dated 09.01.1989 noticed a large

number of abnormalities in the condition of the deceased’s heart and did

not notice any pathology insofar as the brain is concerned. Even after the

Pathologist’s report, PW-2 did not give a definite opinion regarding the

cause of death of Gurnam Singh. Thereafter, PW-2 wrote to the Civil

Surgeon, Patiala on 11.01.1989 requesting that the case be referred to

Forensic Expert, Government Medical College, Patiala, as a result of

which a Medical Board was constituted consisting of six members. Two

of these members were examined as PW-1 and PW-2 but a very cryptic

opinion was given by PW-1 with disinclination to give any further

clarification when sought for by the prosecution.

3. A chargesheet dated 06.03.1989 was filed on 14.07.1989 under

Section 304 of the IPC against respondent No.2, exonerating respondent

No.1. During the course of trial, the Sessions Court exercised its powers

under Section 319 of the Code of Criminal Procedure, 1973 (hereinafter

referred to as the ‘Cr.P.C.’) and after recording the statement of the

Informant summoned respondent No.1 to stand trial. The Informant also

filed a private complaint against both the accused for commission of

offences under Sections 302/324/323 read with Section 34 of the IPC.

4

Both the cases were consolidated and on 20.08.1994 charges under

Section 304 Part I were framed against both the accused arising from the

FIR. While in the complaint, charges were framed under Section 302 of

the IPC against respondent No.1 and under Section 302/34 of the IPC

against respondent No.2. Charges under Section 323/34 of the IPC were

framed against both the accused for causing hurt to the Informant.

4. The trial court post trial acquitted both the accused vide judgment

dated 22.09.1999. In terms of the judgment of the trial court, the death

was not caused by subdural haemorrhage and the deceased suffered

sudden cardiac arrest under stress because of which he fell and received

two abrasions leading to subdural haemorrhage. The death was caused

due to violence but it was not certain as to when precisely Gurnam Singh

had died.

5. The State and the complainant both moved the High Court vide

separate appeals. The High Court in terms of the judgment dated

01.12.2006 opined that the cases of the two accused were to be

considered separately. The High Court convicted respondent No.1 under

Section 304 Part II of the IPC based on the testimony of the doctors,

5

PW-1 and PW-2. As per their testimony, the cause of death was cardiac

failure and all that they had stated was that the cardiac condition of the

deceased was very weak. On the opening of the skull, subdural

haemorrhage was present over the left parietal region and brain. It was

the haemorrhage which caused the death of the deceased and not the

cardiac arrest. Insofar as respondent No.2 is concerned, he was held

guilty under Section 304 Part II read with Section 34 of the IPC as well

as Section 323 of the IPC.

6. Three criminal appeals were filed before this Court by the two

accused and the Informant.

7. The High Court judgment was analyzed by this Court, wherein it

was opined that the testimony of the witnesses was trustworthy. Merely

because there was a relationship between the Informant, Avatar Singh

and the deceased, and more witnesses were not examined, could not have

led to a conclusion that the case had not been proved beyond reasonable

doubt.

8. The post-mortem report was examined closely which indicated

only two external injuries – one on the temporal region and another on

6

the left knee of the deceased, and both were abrasions. The doctors had

opined that the second injury could be the result of the fall and, thus, it is

most unlikely that a person would simultaneously aim at the head and

also the knees of the victim while giving fist blows. Respondent No.1

possibly delivered more than one fist blows while only one of them

landed on the head of the deceased and others missed the target. This

Court did not agree with the observations of the High Court that the

death was caused by subdural haemorrhage and not cardiac arrest. There

was stated to be uncertainty regarding the cause of death of Gurnam

Singh and no weapon had been used, nor was there any past enmity

between the parties, and what happened was the result of an instant

brawl.

9. The case against respondent No.2 was held not to have been

proved and mere presence of respondent No.2 with respondent No.1 was

not sufficient to result in a conviction based on common intention. Even

for the offence under Section 323 of the IPC, respondent No.2 was held

not guilty.

10. The Court recognized that there were lapses in investigation but

7

then people are not convicted on the basis of doubts. Respondent No.1

was held not guilty of causing the death of Gurnam Singh, and the only

conclusion which was found acceptable was of the respondent No.1

causing voluntary hurt to Gurnam Singh which is punishable under

Section 323 of the IPC. It was noticed that respondent No.1 was an

international cricketer and a celebrity at the time of the incident and at

times there was an endeavour to turn a blind eye to the violations of law

committed by celebrities. On the question of sentence, a fine of

Rs.1,000/- alone was imposed vide order dated 06.12.2006, since the

incident was 30 years old at the time, there was no enmity between the

parties and no weapon was used.

On Expanding the Scope of Review Application:

11. A review application was filed by the complainant in which notice

was issued on 11.09.2018 limited to the question of enlargement of

sentence qua respondent no.1. The matter got delayed as initially the

counsel could not enter appearance for the accused. There was a change

of counsel and a change of senior counsel. However, when the

arguments were addressed, Mr. Luthra, learned senior counsel for the

8

complainant sought to persuade us to enlarge the notice qua the aspect of

review as a whole and not limited to the question of sentence.

12. The aforesaid plea was predicated on account of non-consideration

of the decision of the co-ordinate Benches of this Court in Richpal Singh

Meena v. Ghasi

1

and Virsa Singh v. State of Punjab

2

.

13. In Richpal Singh Meena

3

case, a proposition was advanced that

cases where a homicide had occurred, but the conviction is only for

causing grievous hurt, may even fall even within Section 300 (thirdly) of

the IPC and, therefore, would require reconsideration. Several judgments

were relied upon on this aspect. After referring to these judgments, the

jurisprudential aspect was discussed. In this behalf, it was submitted that

there were cases where in spite of death of a person and a finding in some

of them of an act of voluntarily causing grievous hurt, this Court has not

considered the provisions of Section 299 read with Section 304 of the

IPC. It was for the Court to determine on evidence, whether if it is a

culpable homicide, it amounts to murder as explained under Section 300

of the IPC or not as explained under Section 304 of the IPC. If culpable

1

(2014) 8 SCC 918.

2

1958 SCR 1495.

3

(supra)

9

homicide cannot be proved, then it will fall in the category of “not-

culpable homicide”. In cases relating to hurt (from Section 319 of the

IPC onwards), they do not postulate death as the end result. Apart from

this the issue of sentencing was also addressed. It was opined that the

Court should not ignore or overlook the question whether the homicide is

culpable or not but merely treat the case as one of voluntarily causing

grievous hurt punishable under Section 325 or Section 326 of the IPC.

14. The earlier judgment in Virsa Singh

4

case looked into the aspect

of intention to inflict the injury that is sufficient to cause death in the

ordinary course of nature. In such an eventuality, Section 300 thirdly of

the IPC would be unnecessary because the act would fall under the first

part of the Section. However, it was also stated that it has to be found

that the bodily injury was caused, the nature of injury must be established

and whether any vital organs were cut or so forth. Thereafter the focus

should shift to the intention to inflict the bodily injury that is found to be

present.

15. It was also urged by Mr. Luthra, learned senior counsel for the

complainant that the delay of 34 years cannot be a ground to acquit the

4

(supra)

10

accused when the delay was not attributable to the complainants or the

victims.

16. On the other hand, Dr. Singhvi, learned senior counsel for

respondent No.1 sought to emphasise that the incident is 34 years old

pertaining to a dispute of right of way. The case had gone through

several rounds of scrutiny at several stages and now re-assessing the

merits of the case in terms of the charge against the respondent would be

subversive of the basic foundations of criminal justice system.

17. On analysis of the aforesaid aspect, we are disinclined to enlarge

the notice to something more than the aspect of sentencing. The

evidence has been analysed in detail to come to a conclusion as to what is

the nature of injury. It has been taken into account that only one blow

with bare hands as inflicted by respondent No.1 had landed on the head

of the deceased. The finding is that apparently in the fist fight, other

blows may have been attempted but did not fall on the material part of

the body. Aspects such as lack of post enmity, lack of any weapon used

except bare hands and the result of a spontaneous fight over a right of

way were also taken into account.

11

18. We, thus, unequivocally reject the argument for expanding the

scope of the review application.

On Enhancement of Sentence:

19. Next we turn to the aspect of review, which persuaded us to issue

the notice, i.e., qua the sentence imposed – a fine of Rs.1,000/-. No

doubt the conviction is under Section 323 of the IPC relating to causing

hurt, which reads as under:

“323. Punishment for voluntarily causing hurt.—Whoever,

except in the case provided for by section 334, voluntarily

causes hurt, shall be punished with imprisonment of either

description for a term which may extend to one year, or with

fine which may extend to one thousand rupees, or with both.”

20. The punishment under Section 323 of the IPC has been prescribed

as a sentence of a term which may extend to one year or a fine which

may extend to Rs.1,000/- or both. In the present case, only the fine has

been imposed. The question, thus, to be analysed is whether in the given

factual scenario, grave error can be said to have been committed on the

issue of sentence by not punishing with imprisonment of any term

whatsoever.

12

21. Learned senior counsel for the complainant urged that the sentence

imposed under Section 323 of the IPC was not in line with the principles

of sentencing principles and that the observations on sentencing in Sunil

Dutt Sharma v. State

5

, albeit in the case of a death sentence, would

equally apply for lesser offences. It was held that the aggravating and

mitigating factors both were required to be considered before deciding

the question of sentence, more so when the judgment of the High Court is

sought to be upset, on the provisions under which it is based. The

sentence imposed, it was urged, should be proportionate to the offence

and should take into account the deterrence aspect. There cannot be

leniency in sentencing when the hurt/injury has resulted in death, nor can

the delay in trial be taken into account which was not attributable to the

complainants. Respondent No.1 at the relevant time was a young man of

25 years, who was playing international cricket and was athletically

physically fit. He is expected to know the effect of any blow to be

inflicted by him, more so, when on the opposite side the man is aged

about 65 years (more than his father’s age and elder to him by 40 years).

Thus, it was urged that simply because it was a spontaneous incident

5

(2014) 4 SCC 375.

13

where no weapon was used, the same cannot be a ground to inflict

minimal and innocuous punishment of fine of Rs.1,000/-.

22. On the other hand, learned senior counsel for respondent No.1

urged that a review petition on the quantum of sentence was not

maintainable. He sought to place reliance on the judgment of this Court

in Parvinder Kansal v. State of NCT

6

and Mallikarjun Kodagali v. State

of Karnataka & Ors.

7

His submission was that the victim’s right to

appeal ought to be restricted to only three eventualities, i.e., acquittal of

the accused, conviction for lesser offence, or for imposing inadequate

compensation, but there was no provision of appeal for the victim to

question the quantum of sentence as inadequate. Such a right was

available under Section 377 Cr.P.C. for the State.

23. Learned senior counsel also relied upon the judgment of this Court

in Manohar Singh v. State of Rajasthan

8

to contend that even a fine is

fully adequate without any incarceration when there is a prolonged time

since the date of occurrence.

6

2020 SCCOnline SC 685.

7

(2019) 2 SCC 752.

8

(2015) 3 SCC 449.

14

Our View:

24. We have given our thought to the matter. In our view, some

material aspects which were required to be taken note of appear to have

been somehow missed out at the stage of sentencing, such as the physical

fitness of respondent No.1 as he was an international cricketer, who was

tall and well built and aware of the force of a blow that even his hand

would carry. The blow was not inflicted on a person identically

physically placed but a 65 year old person, more than double his age.

Respondent No.1 cannot say that he did not know the effect of the blow

or plead ignorance on this aspect. It is not as if someone has to remind

him of the extent of the injury which could be caused by a blow inflicted

by him. In the given circumstances, tempers may have been lost but then

the consequences of the loss of temper must be borne. In fact, this Court

to some extent had been indulgent in ultimately holding respondent No.1

guilty of an offence of simple hurt under Section 323 of the IPC. The

question is whether even on sentence, mere passage of time can result in

a fine of Rs.1,000/- being an adequate sentence where a person has lost

his life by reason of the severity of blow inflicted by respondent No.1

with his hands. The hand can also be a weapon by itself where say a

15

boxer, a wrestler or a cricketer or an extremely physically fit person

inflicts the same. This may be understood where a blow may be given

either by a physically fit person or to a more aged person. Insofar as the

injury caused is concerned, this Court has accepted the plea of a single

blow by hand being given on the head of the deceased. In our view, it is

this significance which is an error apparent on the face of the record

needing some remedial action.

25. We would like to deliberate a little more in detail on the necessity

of maintaining a reasonable proportion between the seriousness of the

crime and the punishment. While a disproportionately severe sentence

ought not to be passed, simultaneously it also does not clothe the law

courts to award a sentence which would be manifestly inadequate, having

due regard to the nature of the offence, since an inadequate sentence

would fail to produce a deterrent effect on the society at large.

Punishments are awarded not because of the fact that it has to be an eye

for an eye or a tooth for a tooth, rather having its due impact on the

society; while undue harshness is not required but inadequate punishment

may lead to sufferance of the community at large.

9

9

Jai Kumar v. State of Madhya Pradesh (1999) 5 SCC 1.

16

26. An important aspect to be kept in mind is that any undue sympathy

to impose inadequate sentence would do more harm to justice system and

undermine the public confidence in the efficacy of law. The society can

not long endure under serious threats and if the courts do not protect the

injured, the injured would then resort to private vengeance and, therefore,

it is 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.

10

It has, thus, been observed that 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.

11

27. A three Judges Bench of this Court in State of Karnataka v.

Krishnappa

12

while discussing the purpose of imposition of adequate

sentence opined in para 18 that “.....Protection of society and deterring

the criminal is the avowed object of law and that is required to be

achieved by imposing an appropriate sentence.”

10

Sumer Singh v. Surajbhan Singh (2014) 7 SCC 323.

11

Ravji v. State of Rajasthan (1996) 2 SCC 175.

12

(2000) 4 SCC 75.

17

28. The sentencing philosophy for an offence has a social goal that the

sentence has to be based on the principle that the accused must realise

that the crime committed by him has not only created a dent in his life

but also a concavity in the social fabric.

13

While opportunity to reform

has to be kept in mind, the principle of proportionality also has to be

equally kept in mind.

29. Criminal jurisprudence with the passage of time has laid emphasis

on victimology, which fundamentally is a perception of a trial from the

viewpoint of the criminal as well as the victim. Both are viewed in the

social context and, thus, victim’s rights have to be equally protected

14

. It

would be useful to rely on the observations of this Court in Gopal Singh

v. State of Uttarakhand

15

that just punishment is the collective cry of the

society and while collective cry has to be kept uppermost in mind,

simultaneously the principle of proportionality between the crime and

punishment cannot be totally brushed aside. Thus, the principle of just

punishment is the bedrock of sentencing in respect of a criminal offence.

No doubt there cannot be a straitjacket formula nor a solvable theory in

13

Shyam Narain v. State (NCT of Delhi) (2013) 7 SCC 77.

14

Rattiram v. State of M.P. (2012) 4 SCC 516.

15

(2013) 7 SCC 545.

18

mathematical exactitude. An offender cannot be allowed to be treated

with leniency solely on the ground of discretion vested in a court.

Similarly, in Alister Anthony Pareira v. State of Maharashtra

16

, the

twin objective of the sentencing policy to be kept in mind was

emphasised as deterrence and correction and, thus, principle of

proportionality in sentencing a convict were held to be well entrenched in

the criminal jurisprudence.

30. We may also take note of the recent judgment of this Court

decided by a three Judges bench on 18.04.2022 in Jagjeet Singh & Ors.

v. Ashish Mishra @ Monu & Anr.

17

albeit, on the issue of bail. It

emphasised the victim’s right to be heard. What is relevant for us to note

is that the victim being the de facto sufferer of a crime had no

participation in the adjudicatory process. The current ethos of criminal

justice dispensation to prevent and punish crime had surreptitiously

turned its back on the victim. No doubt in the present case at every stage

the victim has been heard and the present application is also by the

victim. The near and dear ones whether as guardians or legal heirs are

required to be treated as victims. It was, thus, observed in para 23 as

16

AIR 2012 SC 3802.

17

2022 SCC OnLine SC 453.

19

under:

“23. It cannot be gainsaid that the right of a victim

under the amended Cr.P.C. are substantive, enforceable, and are

another facet of human rights. The victim’s right, therefore,

cannot be termed or construed restrictively like a brutum fulmen.

We reiterate that these rights are totally independent,

incomparable, and are not accessory or auxiliary to those of the

State under the Cr.P.C. The presence of ‘State’ in the proceedings,

therefore, does not tantamount to according a hearing to a ‘victim’

of the crime.”

31. In the similar vein in Criminal Appeal No.579/2022 titled State of

Rajasthan v. Banwari Lal & Anr.

18

, this Court has again frowned upon

the tendency of courts to reduce the sentence to the period already

undergone. An earlier judgment of this Court in Soman v. State of

Kerala

19

was referred to, more specifically para 27, which reads as under:

“27.1. Courts ought to base sentencing decisions on various different

rationales — most prominent amongst which would be proportionality

and deterrence.

27.2. The question of consequences of criminal action can be relevant

from both a proportionality and deterrence standpoint.

27.3. Insofar as proportionality is concerned, the sentence must be

commensurate with the seriousness or gravity of the offence.

27.4. One of the factors relevant for judging seriousness of the offence

is the consequences resulting from it.

18

Decided on 8.4.2022.

19

(2013) 11 SCC 382.

20

27.5. Unintended consequences/harm may still be properly attributed

to the offender if they were reasonably foreseeable. In case of illicit

and underground manufacture of liquor, the chances of toxicity are so

high that not only its manufacturer but the distributor and the retail

vendor would know its likely risks to the consumer. Hence, even

though any harm to the consumer might not be directly intended,

some aggravated culpability must attach if the consumer suffers some

grievous hurt or dies as result of consuming the spurious liquor.”

32. We find the observations in para 27.5 as quoted above of some

significance in the context of the facts of the present case. Thus, when a

25 year old man, who was an international cricketer, assaults a man more

than twice his age and inflicts, even with his bare hands, a severe blow

on his (victim’s) head, the unintended consequence of harm would still

be properly attributable to him as it was reasonably foreseeable. That it

would cause the death of a person is another matter since the conviction

is only under Section 323 of the IPC. In that context it has been observed

that even though any harm might not be directly intended, some

aggravated culpability must be attached if the person suffers a grievous

hurt or dies as a result thereof. Another similarity in terms of the facts of

the case at hand and that of Soman

20

is that the Court was not greatly

influenced by the fact that 26 years had passed since the incident and

20

(supra).

21

observed that because a long period had lapsed by the time the appeal

was decided cannot be a ground to award the punishment which was

disproportionate and inadequate.

33. Among the factors to be taken note of are the “defenceless and

unprotected state of victim” appropriate in the facts of the present case.

34. The US Supreme Court has also moved in the same direction in

Payne v. Tennessee

21

while examining the aspect of the “victim impact

statement” in a case of capital offence at the time of sentencing. The

court considered the aspect from the dissenting judgment in the case of

Booth v. Maryland

22

which emphasized on “reminding the sentencer that

just as the murderer should be considered as an individual, so too the

victim is an individual whose death represents a unique loss to society

and in particular to his family.” The words of Justice Benjamin Cardozo

in Snyder v. Massachusetts

23

bring out that “justice, though due to the

accused, is due to the accuser also. The concept of fairness must not be

strained till it is narrowed to a filament. We are to keep the balance

true.”

21

501 US 808 (1991).

22

482 U.S. 496 (1987).

23

291 US 97 (1934).

22

35. Thus, a disproportionately light punishment humiliates and

frustrates a victim of crime when the offender goes unpunished or is let

off with a relatively minor punishment as the system pays no attention to

the injured’s feelings. Indifference to the rights of the victim of crime is

fast eroding the faith of the society in general and the victim of crime in

particular in the criminal justice system.

24

36. We noticed the aforesaid judgments to repel the contention of

learned senior counsel for the respondent that the victim should have no

say in the matter of enhancement of sentence.

37. In a nutshell, the aspects of sentencing and victimology are

reflected in the following ancient wisdom:

“यथावयो यथाकालं यथा प्राणं च ब्राह्मणे ।

प्रायश्चितं प्रदातव्यं ब्राह्मणैर्धर्ध पाठकै ैः ।

येन शुध्ददर्वाप्नोश्चत न च प्राणैश्चवधयुज्यते ।

आश्चतिं वा र्हतीं यश्चत न चैतद् व्रतर्ा श्चदशेत ।।“

It means: The person dispensing justice as per Dharmashastra should

prescribe a penance appropriate to the age, the time and strength of

24

Shri P. Babulu Reddy Foundation Lecture, Victims of Crime – The Unseen Side by Dr. Justice A.S.

Anand, Judge, Supreme Court of India (as he then was) (1998) 1 SCC (Jour) 3. Delivered at Hyderabad on

28

th

September 1997.

23

the sinner, the penance being such that he may not lose his life and yet

he may be purified. A penance causing distress should not be

prescribed.

38. We are not setting forth much about how the investigation

proceeded initially, how the court had to intervene to see that the relevant

people are charged, the manner of leading of evidence, the hesitancy of

doctors all of which weighed in this Court opining that a case beyond

reasonable doubt could be only of one under Section 323 of the IPC. We

do believe that the indulgence was not required to be shown at the stage

of sentence by only imposing a sentence of fine and letting the

respondent go without any imposition of sentence.

39. The present case is not one where two views are possible such that

review should not be exercised. It is a case where some germane facts for

sentencing appear to have been lost sight of while imposing only a fine

on respondent No.1 and, therefore, no question of choosing between two

possible views arises

Conclusion:

40. The result of the aforesaid is that the review applications/petitions

24

are allowed to the aforesaid extent and in addition to the fine imposed we

consider it appropriate to impose a sentence of imprisonment for a period

of one year rigorous imprisonment to be undergone by respondent No.1.

The parties are left to bear their own costs.

………………………J.

[A.M. Khanwilkar]

....……………………J.

[Sanjay Kishan Kaul]

New Delhi.

May 19, 2022.