REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2022

(Arising out of Special Leave Petition (Criminal) No. of 2022

Arising out of Diary No. 21596/2020)

State of Rajasthan …Appellant

Versus

Banwari Lal and another …Respondents

J U D G M E N T

M.R. SHAH, J.

1.Leave granted.

2.Feeling aggrieved and dissatisfied with the impugned judgment

and order dated 06.05.2015 passed by the High Court of Judicature for

Rajasthan at Jaipur in S.B. Criminal Appeal No. 36/1993, by which the

High Court has partly allowed the said appeal and while maintaining the

conviction of respondent no.1 herein for the offence under Section 307

IPC, has reduced the sentence from three years rigorous imprisonment

to the period already undergone by him in confinement (44 days), and so

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far as the accused – Mohan Lal is concerned, the High Court has not

interfered with the order of the trial Court convicting him under Section

324 IPC, and releasing him on probation under Section 360 Cr.P.C., the

State has preferred the present appeal.

3.That the respondents herein and others were tried by the learned

trial Court for the offences under Sections 147, 148, 149, 447 & 323 IPC

and also under Section 307 IPC (so far as accused Banwari Lal –

respondent no.1 herein is concerned). Respondent No.1 herein –

Banwari Lal was tried for the offence under Section 307 IPC for having

caused grievous injuries on the skull/middle of the head of the injured

person – Phool Chand. That the injured Phool Chand sustained one

lacerated wound of size 10 x 1 cms bone deep extending up to brain

membrane in the centre of the skull and the bone was emerging out. He

also sustained other injuries.

3.1On appreciation of evidence, the learned trial Court held that the

prosecution has proved beyond reasonable doubt that the injuries

suffered by the injured Phool Chand which were caused by the accused

– Banwari Lal were sufficient for causing death, in the ordinary course of

nature. By observing so, the learned trial Court convicted the

respondent – Banwari Lal for the offence under Section 307 IPC and

sentenced him to undergo three years rigorous imprisonment. However,

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so far as the accused Mohan Lal is concerned, the learned trial Court,

though convicted him, but granted the benefit of probation.

3.2Feeling aggrieved and dissatisfied with the judgment and order of

conviction and sentence passed by the learned trial Court, the

respondents – accused Banwari Lal and Mohan Lal, both, preferred an

appeal before the High Court. Before the High Court, the main

submissions were made on behalf of the accused – Banwari Lal, in

which the respondents did not challenge their conviction but prayed to

reduce the sentence so far as the accused Banwari Lal is concerned, on

the grounds that occurrence took place on 31.03.1989, i.e., about 26

years ago; that they were facing trial since last 26 years; and when the

occurrence took place, they were young and now they are old/aged

persons. It was also submitted on behalf of the accused Banwari Lal

that as the benefit of probation has been given to the accused Mohan

Lal, he may also be given the benefit of probation. Thereafter, without

assigning any further reasons whatsoever and without considering the

nature or gravity of offence and the serious injuries caused by the

accused Banwari Lal on the injured Phool Chand, the High Court has

partly allowed the said appeal and while maintaining the conviction, has

reduced the sentence to the period already undergone by him (44 days).

The High Court has dismissed the appeal in respect of the accused

Mohan Lal.

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3.3Feeling aggrieved and dissatisfied with the impugned judgment

and order passed by the High Court, interfering with the sentence

imposed by the learned trial Court and reducing it to the period already

undergone (44 days) from three years rigorous imprisonment imposed

by the learned trial Court insofar as accused Banwari Lal is concerned,

as also, confirming the order of probation insofar as accused Mohan Lal

is concerned, the State has preferred the present appeal.

3.4There is a huge delay of 1880 days in preferring the appeal and

therefore a separate criminal miscellaneous application is filed by the

State, praying to condone the delay.

4.Shri Vishal Meghwal, learned Advocate appearing on behalf of the

State has vehemently submitted that in the facts and circumstances of

the case, the impugned judgment and order passed by the High Court

reducing the sentence to the period already undergone (44 days) from

three years’ rigorous imprisonment imposed by the learned trial Court is

unsustainable.

4.1It is vehemently submitted that as such there are no specific

reasons assigned by the High Court while reducing the sentence

imposed by the trial Court.

4.2It is contended that while reducing the sentence the High Court

has not at all dealt with and/or considered the mitigating and aggravating

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circumstances, which are relevant for the purpose of imposing an

appropriate punishment/sentence.

4.3It is submitted that the High Court has not at all considered the

gravity of the offence and the serious injuries sustained by the

victim/injured Phool Chand.

4.4It is further submitted that when the judicial discretion was

exercised by the learned trial Court sentencing the accused to undergo

three years’ rigorous imprisonment (Banwari Lal) for the offence under

Section 307 IPC, the same ought not to have been interfered with by the

High Court, more particularly, when the appeal challenging the

conviction was not pressed.

4.5Making the above submissions and relying upon the decisions of

this Court in the cases of State of Rajasthan v. Mohan Lal, reported in

(2018) 18 SCC 535; State of Madhya Pradesh v. Udham, reported in

(2019) 10 SCC 300; and Satish Kumar Jayanti Lal Dabgar v. State of

Gujarat, reported in (2015) 7 SCC 359, it is prayed to allow the present

appeal, quash and set aside the impugned judgment and order passed

by the High Court and restore the judgment of the learned trial Court.

5.The present appeal is vehemently opposed by Shri Abhishek

Gupta, learned Advocate appearing on behalf of the respondents.

5.1Shri Abhishek Gupta, learned counsel appearing on behalf of the

accused has vehemently submitted that there is a huge delay of 1880

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days in preferring the appeal against the impugned judgment and order

passed by the High Court. That the accused have resettled in their lives

and their conduct has since been satisfactory and after the impugned

judgment is passed, they have not indulged in any criminal activity and

the occurrence is of the year 1989, to revive the proceedings would be

extremely harsh and unjustified. Therefore, it is prayed not to condone

the huge delay of 1880 days in preferring the appeal.

5.2On merits, learned counsel appearing on behalf of the accused

has vehemently submitted that while reducing the sentence the High

Court has considered the submissions on behalf of the accused Banwari

Lal that the occurrence took place about 26 years ago and that the

accused were facing trial since last 26 years and that when the

occurrence took place in the year 1989, the accused were young and

now they are aged persons. It is submitted that the aforesaid can be

said to be relevant considerations while reducing the sentence to the

period already undergone (44 days).

5.3Learned counsel appearing on behalf of the accused has further

submitted that insofar as granting the benefit of probation to the accused

Mohan Lal is concerned, the same was granted by the learned trial Court

against which the State did not prefer any appeal before the High Court.

It is therefore submitted that when the High Court by the impugned

judgment and order has dismissed the appeal preferred by the accused

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Mohan Lal, it is not open for the State to now challenge the order

granting benefit of probation to the accused Mohan Lal, when the same

was not challenged by the State before the High Court.

5.4Making the above submissions, it is prayed to reject the application

for condonation of delay as well as the appeal even on merits.

6.We have heard learned counsel for the respective parties at

length.

At the outset, it is required to be noted that the accused Banwari

Lal was convicted by the learned trial Court for the offence under Section

307 IPC for having caused serious injuries on the vital part of the body of

the victim/injured Phool Chand. That the injured Phool Chand sustained

one lacerated wound of size 10 x 1 cms bone deep extending up to brain

membrane in the centre of the skull and the bone was protruding.

Thereafter, having found the accused Banwari Lal guilty, the learned trial

Court sentenced him to undergo three years’ rigorous imprisonment. In

an appeal before the High Court, the accused did not challenge the

conviction, but only prayed the Court to reduce the sentence to the

period already undergone by him by submitting that occurrence took

place on 31.03.1989, i.e., about 26 years ago; that they were facing trial

since last 26 years; and when the occurrence took place, they were

young and now they are aged persons. The High Court, without any

detailed analysis of the facts of the case, nature of injuries caused,

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weapon used, has simply reduced the sentence to the period already

undergone (44 days). Relevant part of the impugned judgment reads as

under:

“I have heard learned counsel for the parties and carefully perused the

relevant material on record.

Looking to the facts and circumstances of the case, I do not think it just

and proper to interfere in the impugned judgment and order passed by the

trial court qua appeal filed by appellant Mohan Lal is concerned.

So far as the appeal filed by accused appellant Banwari Lal is concerned,

keeping in mind the arguments of learned counsel for the appellants that

accused appellant Banwari Lal is facing the trial for the last 26 years; he

has remained in custody for 44 days during trial; he is not the previously

convicted person, in my view, ends of justice would be met if the sentence

awarded to the appellant Banwari is reduced to the period already

undergone by him in confinement, as indicated herein-above. Hence, this

appeal is disposed of with the following directions:

i)The appeal filed by the appellant Banwari is partly allowed;

ii)His conviction is maintained. His sentence is reduced and he is

released for the period already undergone by him in confinement, as

indicated above.

iii)The sentence of the accused appellant Banwari Lal was

suspended and he is on bail. He need not to surrender and his bail

bonds stand cancelled.

iv)So far as appeal filed by accused Mohan Lal is concerned, since

he has already been given the benefit of probation, I do not find any

force in his appeal and consequently, the appeal, qua accused Mohan

Lal, is dismissed after confirming the judgment and order passed by the

trial court.

Impugned judgment stands modified, as indicated hereinabove.”

6.1The manner in which the High Court has dealt with the appeal and

has reduced the sentence, without adverting to the relevant facts and

without considering the gravity and nature of offence, is unsustainable.

The High Court has dealt with the appeal in a most casual and cavalier

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manner. The judgment and order passed by the High Court reducing the

sentence is nothing but an instance of travesty of justice and against all

the principles of law laid down by this Court in a catena of decisions on

imposing appropriate punishment/suitable punishment.

7.At this stage, few decisions of this Court on principles for

sentencing and tests for awarding an appropriate sentence in a given

case are required to be referred to and considered.

i)In the case of Mohan Lal (supra), the High Court modified the

judgment and order passed by the learned trial Court and sentenced

the accused to the period already undergone by him, which was only

six days and absolutely no reasons, much less valid reasons, were

assigned by the High Court. While setting aside the order passed by

the High Court, this Court has observed in paragraphs 9 to 13 as

under:

“9. The High Court simply brushed aside the aforementioned material

facts and sentenced the accused to the period already undergone by him,

which is only 6 days in this case. In our view, the trial court and the High

Court have taken a lenient view by convicting the accused for offences

under Sections 325 and 323 IPC. Absolutely no reasons, much less valid

reasons, are assigned by the High Court to impose the meagre sentence

of 6 days. Such imposition of sentence by the High Court shocks the

judicial conscience of this Court.

10. Currently, India does not have structured sentencing guidelines that

have been issued either by the legislature or the judiciary. However, the

courts have framed certain guidelines in the matter of imposition of

sentence. A Judge has wide discretion in awarding the sentence within the

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statutory limits. Since in many offences only the maximum punishment is

prescribed and for some offences the minimum punishment is prescribed,

each Judge exercises his discretion accordingly. There cannot, therefore,

be any uniformity. However, this Court has repeatedly held that the courts

will have to take into account certain principles while exercising their

discretion in sentencing, such as proportionality, deterrence and

rehabilitation. In a proportionality analysis, it is necessary to assess the

seriousness of an offence in order to determine the commensurate

punishment for the offender. The seriousness of an offence depends, apart

from other things, also upon its harmfulness.

11. This Court in Soman v. State of Kerala [Soman v. State of Kerala,

(2013) 11 SCC 382 : (2012) 4 SCC (Cri) 1] observed thus: (SCC p. 393,

para 27)

“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.

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.”

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12. The same is the verdict of this Court in Alister Anthony Pareira v. State

of Maharashtra [Alister Anthony Pareira v. State of Maharashtra, (2012) 2

SCC 648 : (2012) 1 SCC (Civ) 848 : (2012) 1 SCC (Cri) 953] wherein it is

observed thus: (SCC p. 674, para 84)

“84. Sentencing is an important task in the matters of crime. One of the

prime objectives of the criminal law is imposition of appropriate,

adequate, just and proportionate sentence commensurate with the

nature and gravity of crime and the manner in which the crime is done.

There is no straitjacket formula for sentencing an accused on proof of

crime. The courts have evolved certain principles: the twin objective of

the sentencing policy is deterrence and correction. What sentence

would meet the ends of justice depends on the facts and circumstances

of each case and the court must keep in mind the gravity of the crime,

motive for the crime, nature of the offence and all other attendant

circumstances.”

13. From the aforementioned observations, it is clear that the principle

governing the imposition of punishment will depend upon the facts and

circumstances of each case. However, the sentence should be

appropriate, adequate, just, proportionate and commensurate with the

nature and gravity of the crime and the manner in which the crime is

committed. The gravity of the crime, motive for the crime, nature of the

crime and all other attending circumstances have to be borne in mind

while imposing the sentence. The court cannot afford to be casual while

imposing the sentence, inasmuch as both the crime and the criminal are

equally important in the sentencing process. The courts must see that the

public does not lose confidence in the judicial system. Imposing

inadequate sentences will do more harm to the justice system and may

lead to a state where the victim loses confidence in the judicial system and

resorts to private vengeance.”

ii)In the case of Udham (supra), in paragraphs 11 to 13, it is

observed and held as under:

“11. We are of the opinion that a large number of cases are being filed

before this Court, due to insufficient or wrong sentencing undertaken by

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the courts below. We have time and again cautioned against the cavalier

manner in which sentencing is dealt in certain cases. There is no

gainsaying that the aspect of sentencing should not be taken for granted,

as this part of Criminal Justice System has determinative impact on the

society. In light of the same, we are of the opinion that we need to provide

further clarity on the same.

12. Sentencing for crimes has to be analysed on the touchstone of three

tests viz. crime test, criminal test and comparative proportionality test.

Crime test involves factors like extent of planning, choice of weapon,

modus of crime, disposal modus (if any), role of the accused, anti-social or

abhorrent character of the crime, state of victim. Criminal test involves

assessment of factors such as age of the criminal, gender of the criminal,

economic conditions or social background of the criminal, motivation for

crime, availability of defence, state of mind, instigation by the deceased or

any one from the deceased group, adequately represented in the trial,

disagreement by a Judge in the appeal process, repentance, possibility of

reformation, prior criminal record (not to take pending cases) and any

other relevant factor (not an exhaustive list).

13. Additionally, we may note that under the crime test, seriousness needs

to be ascertained. The seriousness of the crime may be ascertained by (i)

bodily integrity of the victim; (ii) loss of material support or amenity; (iii)

extent of humiliation; and (iv) privacy breach.”

In the said decision, this Court again cautioned against the cavalier

manner in which sentencing is dealt with in certain cases.

iii)In the case of Satish Kumar Jayanti Lal Dabgar (supra), this Court

has observed and held that the purpose and justification behind

sentencing is not only retribution, incapacitation, rehabilitation but

deterrence as well.

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8.Applying the law laid down by this Court on principles for

sentencing, to the facts of the case on hand, we are of the opinion that

the approach of the High Court is most cavalier. Therefore, the order of

the High Court merits interference by this Court. Merely on the

technical ground of delay and merely on the ground that after the

impugned judgment and order, which is unsustainable, the accused

have resettled in their lives and their conduct has since been

satisfactory and they have not indulged in any criminal activity, is no

ground not to condone the delay and not to consider the appeal on

merits. Hence, the delay of 1880 days in preferring the appeal is

condoned.

9.In the matter on hand, it is proved that the victim Phool Chand has

sustained a grievous injury on vital portion of body, i.e, head and there

was a fracture on the skull. Doctor has also opined that the injury was

life-threatening and the injury suffered by the injured Phool Chand was,

in the ordinary course of nature, sufficient to cause death. As per

Section 307 IPC, whoever does any act with such intention or

knowledge, and under such circumstances that, if he by that act caused

death, he would be guilty of murder, shall be punished with

imprisonment of either description for a term which may extend to ten

years and shall also be liable to fine; and if hurt is caused to any person

by such act, the offender shall be liable either to imprisonment for life or

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to such punishment as mentioned in Section 307 IPC. Thus, in the

present case, the accused could have been sentenced to undergo life

imprisonment and/or at least up to ten years. The learned trial Court

sentenced the accused Banwari Lal to undergo three years rigorous

imprisonment. Therefore, as such, the learned trial Court had already

taken a very lenient view while imposing the sentence of only three

years’ rigorous imprisonment. Therefore, the High Court ought not to

have interfered with the same. Though the High Court has not stated

anything, from the impugned judgment and order passed by the High

Court, it appears that what weighed with the High Court is the

submission on behalf of the accused that the occurrence of the incident

took place on 31.03.1989, i.e., about 26 years ago; that they were

facing trial since last 26 years; and when the occurrence took place,

they were young and now they are aged persons. The aforesaid cannot

be the sole consideration while awarding an appropriate and/or

adequate sentence. Even with regard to the submission on behalf of

the accused that there is no minimum sentence under Section 307 IPC

and that the sentence would be up to ten years, the same is answered

by holding that discretion has to be exercised judiciously and the

sentence has to be imposed proportionately and looking to the nature

and gravity of the offence committed and by considering the principles

for imposing sentence, referred to hereinabove.

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10.Merely because a long period has lapsed by the time the appeal is

decided cannot be a ground to award the punishment which is

disproportionate and inadequate. The High Court has not at all

adverted to the relevant factors which were required to be while

imposing appropriate/suitable punishment/sentence. As observed

hereinabove, the High Court has dealt with and disposed of the appeal

in a most cavalier manner. The High Court has disposed of the appeal

by adopting shortcuts. The manner in which the High Court has dealt

with and disposed of the appeal is highly deprecated. We have come

across a number of judgments of different High Courts and it is found

that in many cases the criminal appeals are disposed of in a cursory

manner and by adopting truncated methods. In some cases, the

convictions under Section 302 IPC are converted to Section 304 Part I

or Section 304 Part II IPC without assigning any adequate reasons and

solely recording submissions on behalf of the accused that their

conviction may be altered to Section 304 Part I or 304 Part II IPC. In

cases, like the present one, the accused did not press any challenge to

the conviction and prayed for reduction in sentence and the same is

considered and an inadequate and inappropriate sentence has been

imposed without assigning any further reasons and without adverting to

the relevant factors which are required to be considered while imposing

appropriate punishment/sentence. We deprecate such practice of

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disposing of criminal appeals by adopting shortcuts. Therefore, the

impugned judgment and order passed by the High Court reducing the

sentence to the period already undergone (44 days) from three years

rigorous imprisonment imposed by the learned trial Court in respect of

accused Banwari Lal is absolutely unsustainable and the same

deserves to be quashed and set aside.

11.Now so far as the appeal preferred by the State against the

accused Mohan Lal is concerned, it is required to be noted that even

the learned trial Court granted the benefit of probation to the said

accused, against which the State did not prefer any appeal before the

High Court and it was the accused who preferred appeal, which came

to be dismissed. Therefore, the State ought not to have preferred the

present appeal against the accused Mohan Lal, when his appeal before

the High Court came to be dismissed and the conviction came to be

confirmed. If the State was aggrieved against granting the benefit of

probation, in that case, in the first instance, the State ought to have

preferred an appeal before the High Court.

12.In view of the aforesaid discussion and for the reasons stated

above, the present appeal is allowed insofar as the accused Banwari

Lal is concerned. The impugned judgment and order passed by the

High Court interfering with the order of sentence imposed by the

learned trial Court and sentencing the accused Banwari Lal to undergo

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the sentence to the period already undergone by him (44 days) from

three years’ rigorous imprisonment imposed by the learned trial Court

under Section 307 IPC is hereby quashed and set aside. The judgment

and order passed by the learned trial Court sentencing the accused

Banwari Lal to undergo three years’ rigorous imprisonment under

Section 307 IPC is hereby restored. The accused Banwari Lal is

directed to surrender before the appropriate jail authority/concerned

Court, within a period of four weeks from today, to undergo the

remaining sentence.

Insofar as the appeal preferred by the State against the accused

Mohan Lal is concerned, the same is hereby dismissed.

……………………………….J.

[M.R. SHAH]

NEW DELHI; ……………………………….J.

APRIL 08, 2022. [B.V. NAGARATHNA]

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