Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 942 OF 2014

(Arising out of S.L.P. (Crl.) 9658 of 2009)

Sumer Singh … Appellant

Versus

Surajbhan Singh and others …Respondents

J U D G M E N T

Dipak Misra, J.

1.The centripodal question that arises for consideration in

this appeal, by special leave, preferred by the injured, is

whether the learned single Judge of the High Court of

Judicature for Rajasthan, Bench at Jaipur, while converting

the conviction of the respondent-accused from one under

Page 2 2

Section 307 IPC to one under Section 308 IPC and

sustaining the conviction under Sections 148, 147, 326

and 323 IPC read with Section 149 IPC is justified in

restricting the period of sentence to seven days which the

respondent had already undergone and to impose a fine

of Rs.50,000/-, in default of payment of fine, to suffer

additional rigorous imprisonment of two years.

2.The factual score, as has been undraped, is that on

19.7.1982 about 3.30 p.m. when Sumer Singh, PW-4,

Janak Singh, PW-5, and his younger brother Jai Singh, PW-

7, having availed a tractor of another person, were

carrying out certain agricultural operation in their field,

accused persons, namely, Surajbhan Singh, Bhanwar

Singh, Vikram Singh, Surendra Singh and Prithvi Raj alias

Pappu, being armed with weapons, arrived at the field.

Accused Surajbhan Singh was carrying a sword and other

accused persons were having lathis. On coming to the

field, the accused persons stopped the tractor and Sumer

Singh, PW-4, and Mool Singh, PW-6, came to defend the

driver of the tractor. At that juncture, accused Vikram

Page 3 3

Singh gave a lathi blow on Mool Singh, PW-6, and

Surajbhan inflicted a sword injury on the left elbow of Mool

Singh, PW-6. Thereafter, when he attacked Sumer Singh

on the head with the sword, he put his hand in defence, as

a consequence of which the sword hit the wrist of the left

hand due to which the hand got chopped off from the

wrist and Sumer Singh lost his consciousness and

collapsed. As the narration would further show, the

accused persons assaulted others and left the place. Jai

Singh, PW-7, and the driver of the tractor took the injured

persons to Rajgarh Hospital where they were admitted

and the First Information Report was lodged by Janak

Singh, PW-5, and on the base of the F.I.R. crime was

registered for offences under Sections 147, 148, 149, 307,

323, 326 and 447 IPC.

3.After the criminal law was set in motion, the investigation

commenced and, eventually, the charge-sheet was placed

before the learned Magistrate, who committed the matter

to the Court of Session. The accused persons refuted the

allegations and stated that they had been falsely

Page 4 4

implicated due to land disputes. Because of such a plea,

matter was tried by the learned Additional District and

Sessions Judge No. 2, Alwar. During the trial the

prosecution examined 24 witnesses and brought on

record 37 documents which are marked as exhibits. The

defence, in support of its plea, examined two witnesses

and got certain documents exhibited.

4.The learned trial Judge appreciating the evidence on

record, convicted Surajbhan Singh under Section 307 IPC

for five years rigorous imprisonment and a fine of

Rs.3000/- and in default to further undergo one year

rigorous imprisonment. Under Section 447 IPC three

months rigorous imprisonment, under Section 326 IPC four

years rigorous imprisonment and fine of Rs.2,000/- and in

default to further undergo one year rigorous imprisonment

and under Section 323/149 IPC three months rigorous

imprisonment. As far as other accused persons, namely,

Prithvi Raj @ Pappu, Surendra Singh, Vikram Singh and

Bhanwar Singh are concerned, each one of them was

convicted under Section 147 IPC to undergo rigorous

Page 5 5

imprisonment for six months, under Section 447 IPC to

undergo rigorous imprisonment for three months, under

Section 307/149 IPC to undergo rigorous imprisonment for

three years and to pay fine of Rs.1000/-, in default of

payment of fine to undergo further rigorous imprisonment

for one year and for offence under Section 323 IPC to

rigorous imprisonment for six months with the stipulation

that all the sentences would be concurrent.

5. Grieved by the aforesaid judgment and conviction the

accused persons preferred Criminal Appeal No. 455 of

1984 and the High Court, as far as Surajbhan Singh is

concerned, found him guilty for offence under Sections

308, 148, 447, 326 and 323/149 IPC and sentenced him to

suffer imprisonment of seven days which he had already

undergone and to pay a fine of Rs.50,000/-. As far as

other accused-appellants were concerned, the High Court

found them guilty for offences under Sections 324/149,

147, 447 and 323 IPC and considering their age, restricted

the sentence to the period already undergone in respect

of some and released some of them under Sections 4 and

Page 6 6

12 of Probation of Offenders Act. As far as accused-

appellants Prithvi Raj @ Pappu and Vikram Singh are

concerned a fine amount of Rs.15,000/- was imposed. The

High Court has further directed that the fine amount by all

the accused persons to be deposited within three months

with the stipulation that the same shall be paid to the

injured Sumer Singh and on their failure to deposit the

amount of fine to suffer rigorous imprisonment for two

years.

6.We have heard Mr. Sushil Kumar Jain, learned senior

counsel for the appellant and Mr. Ratnakar Dash, learned

senior counsel for the respondent No. 1. Be it noted, as

the respondent No. 5 has died during the pendency of the

proceedings before this Court, the appeal abates against

him. At the outset, we must record that Mr. Jain has

confined his submissions to the imposition of inadequacy

of sentence on Surajbhan Singh and, we are inclined to

think, rightly so. Criticizing the justifiability of the

reduction of sentence to seven days under Section 326

IPC Mr. Jain, learned senior counsel, has contended that by

Page 7 7

such a lenient delineation especially regard being had to

the circumstances under which the crime was committed

and the severity of the crime is a mockery of the criminal

justice dispensation system because the plight of the

victim who has suffered a grievous injury as a

consequence of which has lost the use of his left hand

permanently. That apart, submits Mr. Jain, imposition of

such an inadequate sentence is a travesty of justice and

its impact on the collective in the absence of any special

features and circumstances, is not only extremely painful

but also would act as a catalyst for destroying the fabric of

rule of law. The learned senior counsel would contend

that in such a case only grant of compensation does not

subserve the cause of justice but on the contrary destroys

the milieu of an orderly society.

7.Mr. Dash, learned senior counsel appearing for the

respondent, in his turn has propounded that the

conviction recorded is absolutely flawed and, in fact, if the

circumstances would have been properly appreciated

keeping in view the factum that the accused persons had

Page 8 8

exercised their right of private defence, the case would

have ended in acquittal. It is urged by him that assuming

that it would have been held that they had exceeded right

of private defence even then the offence would have

converted to one punishable under Section 324 IPC and in

that background, restriction of the sentence to the period

already undergone could have not invited the frown of the

concept of just and adequate sentence. It is urged by him

that occurrence had taken place long back; and there was

a cavil over possession and further in the interregnum

period nothing has been brought on record that the

accused has been involved in any criminal offence and,

therefore, the order of sentence does not call for any

interference.

8.First we intend to deal with the submission of Mr. Dash

whether in an appeal preferred by the injured, the convict

can question the legal substantiality of his conviction. In

this regard, reference to Section 377(3) of the Code of

Criminal Procedure (for short “the Code”) would be apt. It

reads as follows: -

Page 9 9

“377. Appeal by the State Government

against sentence. – (1)………….

(2) ………….

(3) When an appeal has been filed against the

sentence on the ground of its inadequacy, the

Court of Session or, as the case may be, the High

Court shall not enhance the sentence except after

giving to the accused a reasonable opportunity of

showing cause against such enhancement and

while showing cause, the accused may plead for

his acquittal or for the reduction of the sentence.”

9.Section 386 of the Code, being relevant, is reproduced

below: -

“386. Powers of the Appellate Court. – After

perusing such record and hearing the appellant or

his pleader, if he appears, and the Public

Prosecutor if he appears, and in case of an appeal

under Section 377 or Section 378, the accused, if

he appears, the Appellate Court may, if it

considers that there is no sufficient ground for

interfering, dismiss the appeal, or may –

(a)in an appeal from an order of acquittal,

reverse such order and direct that further

inquiry be made, or that the accused be re-tried

or committed for trial, as the case may be, or

find him guilty and pass sentence on him

according to law;

(b)in an appeal from a conviction –

(i)reverse the finding and sentence and

acquit or discharge the accused, or

order him to be re-tried by a Court of

competent jurisdiction subordinate to

Page 10 10

such Appellate Court or committed for

trial, or

(ii)alter the finding, maintaining the

sentence, or

(iii)with or without altering the finding, after

the nature or the extent, or the nature

and extent, of the sentence, but not so

as to enhance the same;

(c)in an appeal for enhancement of sentence –

(i)reverse the finding and sentence and

acquit or discharge the accused or order

him to be re-tried by a Court competent

to try the offence, or

(ii)alter the finding maintaining the

sentence, or

(iii)with or without altering the finding, alter

the nature or the extent, or the nature

and extent, of the sentence, so as to

enhance or reduce the same;

(d)in an appeal from any other order, alter or

reverse such order;

(e)make any amendment or any consequential

or incidental order that may be just or proper:

Provided that the sentence shall not be

enhanced unless the accused has had an

opportunity of showing cause against such

enhancement:

Provided further that the Appellate Court

shall not inflict greater punishment for the offence

which in its opinion the accused has committed

than might have been inflicted for that offence by

Page 11 11

the Court passing the order or sentence under

appeal.”

10.Section 377(3), and its effect, and application in appeal

preferred after grant of special leave were considered in

State of U.P. v. Dharmendra Singh and another

1

,

wherein the two-Judge Bench has ruled that a perusal of

said provision shows that it is applicable only when the

matter is before the High Court and the same is not

applicable to this Court when an appeal for enhancement

of sentence is made under Article 136 of the Constitution.

It is to be noted that an appeal to this Court in criminal

matters is not provided under the Code except in cases

covered by Section 379 of the Code. It has been further

observed that an appeal to this Court under Article 136 of

the Constitution is not the same as a statutory appeal

under the Code, for this Court under Article 136 of the

Constitution is not a regular court of appeal to which an

accused can approach as of right. It is an extraordinary

jurisdiction which is exercisable only in exceptional cases

when this Court is satisfied that it should interfere to

1

(1999) 8 SCC 325

Page 12 12

prevent a grave or serious miscarriage of justice, as

distinguished from mere error in appreciation of evidence.

Proceeding further the court held:

“While exercising this jurisdiction, this Court is not

bound by the rules of procedure as applicable to

the courts below. This Court’s jurisdiction under

Article 136 of the Constitution is limited only by its

own discretion (see Nihal Singh v. State of

Punjab

2

). In that view of the matter, we are of the

opinion that Section 377(3) of the Code in terms

does not apply to an appeal under Article 136 of

the Constitution.

Thereafter, the Court relied upon the authority in

Chandrakant Patil v. State through CBI

3

and

distinguished the decision in U.J.S. Chopra v. State of

Bombay

4

and came to hold as follows: -

“This does not mean that this Court will be

unmindful of the principles analogous to those

found in the Code including those under Section

377(3) of the Code while moulding a procedure for

the disposal of an appeal under Article 136 of the

Constitution. Apart from the Supreme Court Rules

applicable for the disposal of the criminal appeals

in this Court, the Court also adopts such analogous

principles found in the Code so as to make the

procedure a “fair procedure” depending on the

facts and circumstances of the case.”

2

AIR 1965 SC 26

3

(1998) 3 SCC 38

4

AIR 1955 SC 633

Page 13 13

Eventually, the Court convicted the respondent to

argue for an acquittal in the appeal preferred by the State of

U.P. for enhancement of the sentence by adopting the

analogous provision found in Section 377(3) of the Code.

11.Relying on the said decision in State of Rajasthan v.

Kishan Lal

5

, the Court thought that it was an appropriate

case where it should permit the learned amicus curiae to

argue for acquittal of the respondent and, eventually,

reversed the judgment of conviction and acquitted the

respondent of all the charges levelled against him.

12.At this juncture, it is useful to refer to the decision by

the Constitution Bench in P.S.R. Sadhanantham v.

Arunachalam and another

6

. In the said case, the

petitioner, an accused, was convicted in appeal by way of

special leave preferred by the brother of the deceased

who was not even the first informant. The convict-

petitioner preferred a writ petition under Article 32 of the

Constitution to upset the conviction on the ground that

5

(2002) 5 SCC 424

6

(1980) 3 SCC 141

Page 14 14

the proceedings were unconstitutional being violative of

Article 21. The Constitution Bench, adverting to the same,

opined that though Article 136 does not confer a right of

appeal on a party as such in express terms, yet it confers

a wide discretionary power on the Supreme Court to

interfere in suitable cases. The discretionary dimension is

considerable but that relates to the power of the Court.

The larger Bench proceeded to state thus: -

“In our view, it does. Article 136 is a special

jurisdiction. It is residuary power; it is

extraordinary in its amplitude, its limit, when it

chases injustice, is the sky itself. This Court

functionally fulfils itself by reaching out to injustice

wherever it is and this power is largely derived in

the common run of cases from Article 136.”

The Court further analyzing the point, observed that:-

“We have hardly any doubt that here is a

procedure necessarily implicit in the power vested

in the summit court. It must be remembered that

Article 136 confers jurisdiction on the highest

court. The founding fathers unarguably intended in

the very terms of Article 136 that it shall be

exercised by the highest judges of the land with

scrupulous adherence to judicial principles well

established by precedents in our jurisprudence.”

Thereafter, the larger Bench proceeded to observe as

follows: -

Page 15 15

“9. We may eye the issue slightly differently. If

Article 21 is telescoped into Article 136, the

conclusion follows that fair procedure is imprinted

on the special leave that the court may grant or

refuse. When a motion is made for leave to appeal

against an acquittal, this Court appreciates the

gravity of the peril to personal liberty involved in

that proceeding. It is fair to assume that while

considering the petition under Article 136 the

court will pay attention to the question of liberty,

the person who seeks such leave from the court,

his motive and his locus standi and the weighty

factors which persuade the court to grant special

leave. When this conspectus of processual

circumstances and criteria play upon the

jurisdiction of the court under Article 136, it is

reasonable to conclude that the desideratum of

fair procedure implied in Article 21 is adequately

answered.

10. Once we hold that Article 136 is a composite

provision which vests a wide jurisdiction and, by

the very fact of entrusting this unique jurisdiction

in the Supreme Court, postulates, inarticulately

though, the methodology of exercising that power,

nothing more remains in the objection of the

petitioner. It is open to the court to grant special

leave and the subsequent process of hearing are

(sic is) well-established. Thus, there is an integral

provision of power-cum-procedure which answers

with the desideratum of Article 21 justifying

deprivation of life and liberty.”

13.The said principle has been reiterated in Esher Singh

v. State of A.P.

7

by stating that this Court can entertain

appeals against acquittal by the High Court at the

7

(2004) 11 SCC 585

Page 16 16

instance of interested private parties, for the

circumstances that the Code does not provide for an

appeal to the High Court against an order of acquittal by a

subordinate court, at the instance of the private party, has

no relevance to the question of the power of this Court

under Article 136.

14.From the aforesaid enunciation of law two principles are

absolutely clear; first, an injured who is an aggrieved

party can prefer an appeal by special leave and this

Court’s power under Article 136 being of wide amplitude,

it can remove injustice when it witnesses it and second, in

an appeal preferred by State for enhancement of

sentence the accused can plead that he is entitled to an

acquittal as there is no material on record to sustain the

conviction.

15.In the case at hand, the State has not preferred any

appeal but the injured has been permitted to file the

appeal after obtaining leave. We have already stated that

the principles which are analogous to 377 (3) of the Code

Page 17 17

are applicable and the power under Article 136 is of wide

amplitude. Thus viewed, we do not see any reason why

this Court, while entertaining an appeal at the instance of

an injured, cannot impose adequate sentence when the

facts and circumstance so warrant. But prior to that, for

applying the requisite test, we should appreciate the

material on record to come to a conclusion whether the

recording of conviction is unjustified, and whether the

High Court has absolutely erred in restricting the sentence

to the period already undergone.

16.Presently, to the delineation on the first score. As

stated earlier, the singular contention of Mr. Dash is that

the accused persons exercised their right of private

defence and even assuming they exceeded that right, they

could only have been convicted for a lesser offence. Per

contra, Mr. Jain would contend that no plea for exercise of

right of private defence was taken under Section 313 of

the Code. Statement and, in any case, the appellants had

done nothing to provoke the accused persons to commit

the crime in such a heinous manner. It is well settled in

Page 18 18

law that exercise of right of private defence even if not

specifically taken in Section 313 of the Code, it can always

be gathered from surrounding facts and circumstances.

The said position has been stated in Vidya Singh v. The

State of Madhya Pradesh

8

, Sikandar Singh and

Others v. State of Bihar

9

and State of Rajasthan v.

Manoj Kumar

10

.

17. In the instant case, the trial court has held that it is

undisputed that by the judgment, Ex. P4, of the Revenue,

Appellate Officer, Alwar the decision about the disputed

field was given in favour of the Sumer Singh, PW-4 and

Janak Singh, PW-5, and order was issued about giving the

possession to these persons from the Receiver. Ram Bilas,

PW-15, Patwari, had delivered possession of the land in

compliance of the said order of the Revenue Appellate

Officer and it is clear from the evidence brought on record.

It is demonstrable that the Assistant Collector, Rajgarh,

took possession of this land from the Receiver and handed

8

AIR 1971 SC 1857

9

(2010) 7 SCC 477

10

(2014) 4 SCALE 724

Page 19 19

it over to Sumer Singh on 14.4.1982. A finding has been

returned that on the day of occurrence, that is, 19.7.1982

possession was with Sumer Singh, PW-4, and others and

the accused had no right to forcibly evict them. Be that as

it may, it is manifest from the evidence on record that the

victims were not armed with weapons and peacefully

carrying on their agricultural activities when the accused

persons came armed with weapon and attacked them.

The injury reports of Sumer Singh, PW-4, Mool Singh and

Umrao Singh contained in Ext. P-17 to Ext. P-19 clearly

show that they had received injuries and the injuries

inflicted on Sumer Singh were grievous in nature. The

injuries sustained by Mool Singh and Umarao Singh, as

opined by the treating doctor, were caused by sharp

weapon. Mr. Dash, learned senior counsel for the

respondent would contend that the accused persons had

also received injuries and that would show that they were

in possession and while defending their right there was a

fight which establishes exercise of right of private defense

and possibly exceeding the said right. On a scrutiny of

Page 20 20

the injury report, it appears that the injuries were

absolutely simple in nature. Regard being had to the

finding recorded on the basis of evidence as regards the

possession of the injured persons and also the nature of

injuries sustained by the accused persons, it cannot be

said that the defence had been able to establish the plea

of right of exercise of private defense, the question of

exceeding the said right does not arise. Therefore, the

irresistible conclusion is that the accused persons had

assaulted the injured persons and the High Court has

correctly recorded the conviction against the respondent

under Section 326 IPC.

18.The next question that is required to be addressed is

whether adequate sentence has been imposed for the

offence under Section 326 IPC regard being had to the

injuries caused. In Sham Sunder v. Puran and

another

11

, the High Court had convicted the accused-

appellant therein under Section 304 Part-I IPC and reduced

the sentence to the term of imprisonment already

11

AIR 1991 SC 8

Page 21 21

undergone, i.e. six months, while enhancing the fine. In

that context, the Court opined that the sentence awarded

was rather inadequate. Proceeding further it has been

opined as follows: -

“No particular reason has been given by the High

Court for awarding such sentence. The court in

fixing the punishment for any particular crime

should take into consideration the nature of the

offence, the circumstances in which it was

committed, the degree of deliberation shown by

the offender. The measure of punishment should

be proportionate to the gravity of the offence. The

sentence imposed by the High Court appears to be

so grossly and entirely inadequate as to involve a

failure of justice. We are of opinion that to meet

the ends of justice, the sentence has to be

enhanced.”

After so stating the Court enhanced the sentenced to

one of rigorous imprisonment for a period of five years.

19.In Sevaka Perumal and another v. State of Tamil

Nadu

12

, after referring to the decision in Mahesh v.

State of M.P.

13

, the Court observed that 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

12

(1991) 3 SCC 471

13

(1987) 3 SCC 80

Page 22 22

serious threats. The Court further observed that if the

courts do not protect the injured, the injured would then

resort to private vengeance and, 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.

20.In State of M.P. v. Saleem alias Chamaru and

another

14

, the Court opined that the object of sentencing

should be to protect society and to deter the criminal that

bing the avowed object of law. It further ruled that 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.

21.In Ravji alias Ram Chandra v. State of Rajasthan

15

the Court while giving emphasis on relevance of imposition

of adequate sentencing in the social context observed

thus:-

14

(2005) 5 SCC 554

15

(1996) 2 SCC 175

Page 23 23

10. 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”. In our view, if

for such heinous crimes the most deterrent

punishment for wanton and brutal murders is not

given, the case of deterrent punishment will lose

its relevance.”

22.In State of Karnataka v. Krishnappa

16

, a three-Judge

Bench, while discussing about the purpose of imposition of

adequate sentence, opined 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 and the sentencing Courts are expected to

consider all relevant facts and circumstances bearing on

the question of sentence and proceed to impose a

sentence commensurate with the gravity of the offence.

16

AIR 2000 SC 1470

Page 24 24

23.In Jameel v. State of Uttar Pradesh

17

, the trial court

had convicted the appellant therein under Section 308 IPC

along with another and punished them with two years

rigorous imprisonment. In appeal, the conviction and

sentence of the appellant were affirmed. By the time the

matter came to be considered by this Court, the appellant

had already undergone eight months in custody. While

reducing the sentence, the Court observed as under: -

“15. In operating the sentencing system, law

should adopt the corrective machinery or

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.

16. 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. The sentencing courts are expected

to consider all relevant facts and circumstances

bearing on the question of sentence and proceed

to impose a sentence commensurate with the

gravity of the offence.”

17

(2010) 12 SCC 532

Page 25 25

24.In Shyam Narain v. State (NCT of Delhi)

18

, it has

been ruled that primarily it is to be borne in mind that

sentencing for any offence has a social goal. Sentence is

to be imposed regard being had to the nature of the

offence and the manner in which the offence has been

committed. The fundamental purpose of imposition of

sentence is based on the principle that the accused must

realize that the crime committed by him has not only

created a dent in his life but also a concavity in the social

fabric. The purpose of just punishment is designed so that

the individuals in the society which ultimately constitute

the collective do not suffer time and again for such crimes,

for it serves as a deterrent. The Court observed, true it is,

on certain occasions, opportunities may be granted to the

convict for reforming himself but it is equally true that the

principle of proportionality between an offence committed

and the penalty imposed are to be kept in view. It has

been further opined that while carrying out this complex

exercise, it is obligatory on the part of the court to see the

18

(2013) 7 SCC 77

Page 26 26

impact of the offence on the society as a whole and its

ramifications on the immediate collective as well as its

repercussions on the victim.

25.In Guru Basavaraj v. State of Karnataka

19

, the

Court, discussing about the sentencing policy, had to say

this: -

“33. There can hardly be any cavil that there has

to be a proportion between the crime and the

punishment. It is the duty of the court to see that

appropriate sentence is imposed regard being had

to the commission of the crime and its impact on

the social order. The cry of the collective for

justice which includes adequate punishment

cannot be lightly ignored.”

26.In Rattiram v. State of M.P.

20

though in a different

context, it has stated that: -

“64. … the 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. The view of

the victim is given due regard and respect in

certain countries…. it is the duty of the court to

see that the victim’s right is protected.”

19

(2012) 8 SCC 734

20

(2012) 4 SC 516

Page 27 27

27.In State of Madhya Pradesh v. Najab Khan and

others

21

, the State had preferred an appeal as the High

Court, while maintaining the conviction under Section 326

IPC read with Section 34 IPC, had reduced the sentence to

the period already undergone, i.e., 14 days. In that

context, the Court, after referring to number of authorities

and reiterating the principles, stated that in operating the

sentencing system, law should adopt the corrective

machinery or deterrence based on factual matrix. 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. It was further

observed that undue sympathy in imposing inadequate

sentence would do more harm to the justice dispensation

system and undermine the public confidence in the

efficacy of law. It is the duty of every court to award

21

(2013) 9 SCC 509

Page 28 28

proper sentence having regard to the nature of the offence

and the manner in which it was executed or committed.

The courts must not only keep in view the rights of the

victim of the crime but also the society at large while

considering the imposition of appropriate punishment.

After so stating the sentence imposed by the High Court

was set aside and that of the trial Judge, whereby he had

convicted the accused to suffer rigorous imprisonment for

three years, was restored. Similar principle has been

assertively reiterated in Hazara Singh v. Raj Kumar

and others

22

.

28.The factual matrix of the instant case has to be tested

on the touchstone of aforesaid principles. On a perusal of

the judgment of the High Court, we find that no reason

whatsoever has been ascribed. The manner in which the

crime was committed speaks eloquently about its brutality.

The gravity of the offence speaks for itself. A young man’s

hand has been cut off from the wrist. How the fear

psychosis would have reigned in the society at the

22

(2013) 9SCC 516

Page 29 29

relevant time does not require Solomon’s wisdom to

visualize. It is difficult to fathom what possible reason the

High Court could have envisioned or thought of while

reducing the sentence to the period already undergone,

i.e., seven days for such an offence. Possibly, the High

Court felt that increase of fine amount would serve the

cause of justice and ameliorate the grievance of the victim

and pacify the collective cry. We are not inclined to think

so.

29.It is seemly to state here that though the question of

sentence is a matter of discretion, yet the said discretion

cannot be used by a court of law in a fanciful and

whimsical manner. Very strong reasons on consideration

of the relevant factors have to form the fulcrum for lenient

use of the said discretion. It is because the ringing of

poignant and inimitable expression, in a way, the warning

of Benjamin N. Cardozo in The Nature of the Judicial

Process

23

: -

23

Yale University Press, 1921 Edn., p.114

Page 30 30

“The Judge even when he is free, is still not wholly

free. He is not to innovate at pleasure. He is not a

knight errant roaming at will in pursuit of his own

ideal of beauty or of goodness. He is to draw his

inspiration from consecrated principles. He is not

to yield to spasmodic sentiment, to vague and

unregulated benevolence. He is to exercise a

discretion informed by tradition, methodized by

analogy, disciplined by system, and subordinated

to ‘the primordial necessity of order in social life’.”

30.In this regard, we may usefully quote a passage from

Ramji Dayawala & Sons (P.) Ltd. v. Invest Import

24

: -

“… when it is said that a matter is within the

discretion of the court it is to be exercised

according to well established judicial principles,

according to reason and fair play, and not

according to whim and caprice. ‘Discretion’, said

Lord Mansfield in R. v. Wilkes, ((1770) 98 ER 327),

‘when applied to a court of justice, means sound

discretion guided by law. It must be governed by

rule, not by humour; it must not be arbitrary,

vague, and fanciful, but legal and regular’ (see

Craies on Statute Law, 6

th

Edn., p. 273).”

31.In M/s. Aero Traders Pvt. Ltd. v. Rvinder Kumar

Suri

25

the Court observed: -

“According to Black’s Law Dictionary “Judicial

discretion” means the exercise of judgment by a

judge or Court based on what is fair under the

circumstances and guided by the rules and

principles of law; a Court’s power to act or not act

when a litigant is not entitled to demand the act as

24

AIR 1981 SC 2085

25

AIR 2005 SC 15

Page 31 31

a matter of right. The word “discretion” connotes

necessarily an act of a judicial character, and, as

used with reference to discretion exercised

judicially, it implies the absence of a hard-and-fast

rule, and it requires an actual exercise of

judgment and a consideration of the facts and

circumstances which are necessary to make a

sound, fair and just determination, and a

knowledge of the facts upon which the discretion

may properly operate. (See 27 Corpus Juris

Secundum page 289). When it is said that

something is to be done within the discretion of

the authorities that something is to be done

according to the rules of reason and justice and

not according to private opinion; according to law

and not humour. It only gives certain latitude or

liberty accorded by statute or rules, to a judge as

distinguished from a ministerial or administrative

official, in adjudicating on matters brought before

him.”

Thus, the judges are to constantly remind themselves

that the use of discretion has to be guided by law, and what

is fair under the obtaining circumstances.

32.Having discussed about the discretion, presently we

shall advert to the duty of the court in the exercise of

power while imposing sentence for an offence. It is the

duty of the court to impose adequate sentence, for one of

the purposes of imposition of requisite sentence is

protection of the society and a legitimate response to the

Page 32 32

collective conscience. The paramount principle that

should be the guiding laser beam is that the punishment

should be proportionate. It is the answer of law to the

social conscience. In a way, it is an obligation to the

society which has reposed faith in the court of law to

curtail the evil. While imposing the sentence it is the

Court’s accountability to remind itself about its role and

the reverence for rule of law. It must evince the

rationalized judicial discretion and not an individual

perception or a moral propensity. But, if in the ultimate

eventuate the proper sentence is not awarded, the

fundamental grammar of sentencing is guillotined. Law

cannot tolerate it; society does not withstand it; and

sanctity of conscience abhors it. The old saying “the law

can hunt one’s past” cannot be allowed to be buried in an

indecent manner and the rainbow of mercy, for no

fathomable reason, should be allowed to rule. True it is, it

has its own room, but, in all circumstances, it cannot be

allowed to occupy the whole accommodation. The victim,

in this case, still cries for justice. We do not think that

Page 33 33

increase in fine amount or grant of compensation under

the Code would be a justified answer in law. Money

cannot be the oasis. It cannot assume the centre stage for

all redemption. Interference in manifestly inadequate and

unduly lenient sentence is the justifiable warrant, for the

Court cannot close its eyes to the agony and anguish of

the victim and, eventually, to the cry of the society.

Therefore, striking the balance we are disposed to think

that the cause of justice would be best subserved if the

respondent is sentenced to undergo rigorous

imprisonment of two years apart from the fine that has

been imposed by the learned trial judge.

33.Before parting with the case we are obliged, nay,

painfully constrained to state that it has come to the

notice of this Court that in certain heinous crimes or

crimes committed in a brutal manner the High Courts in

exercise of the appellate jurisdiction have imposed

extremely lenient sentences which shock the conscience.

It should not be so. It should be borne in mind what Cicero

had said centuries ago: -

Page 34 34

“it can truly be said that the magistrate is a

speaking law, and the law a silent magistrate.

26

”

34.A few decades ago thus spoke Felix Frankfurter: -

“For the highest exercise of judicial duty is to

subordinate one’s personal pulls and one’s private

views to the law of which we are all guardians –

those impersonal convictions that make a society

a civilized community, and not the victims of

personal rule.”

27

35.We part with the aforesaid reminder.

36.Consequently, the appeal is allowed in part, the

conviction recorded by the trial court as well as by the

High Court is maintained and the sentence imposed by the

learned trial Judge and that by the High Court is modified

to the extent indicated hereinabove.

……………………………………… .J.

[Sudhansu Jyoti Mukhopadhaya]

……………………………………… .J.

[Dipak Misra]

New Delhi;

26

CICERO, De Republica, De Legibus (Loeb Classical Library, Keyes, Clinton Walker, trans.,

Cambridge, Massachusetts: Harvard University Press, 1928), p. 461.

27

Frankfurter, Felix, in Clark, Tom C., “Mr. Justice Frankfurter: ‘A Heritage for all Who Love

the Law’”. 51 A.B.A.J. 330, 332 (1965)

Page 35 35

May 05, 2014.