Jasvantbhai & Anr Vs. State of Gujarat & Ors  Insc 29 (19 January 2006)
Pasayat & S.H. Kapadia
out of SLP(Crl.) No. 1494 of 2004) With CRIMINAL APPEAL NO. 119 OF 2006
(Arising out of SLP(Crl.) No. 3908 of 2004) ARIJIT PASAYAT, J.
these two appeals, one is by the State of Gujarat and the other by the victim of the crime. They assail correctness of
the judgment rendered by a Division Bench of the Gujarat High Court. By the
impugned judgment while upholding the conviction recorded by the trial court
the High Court reduced the sentence to the period already undergone; but
awarded compensation to the victims.
facts in a nutshell are as under:
On 30th March, 2002, first information report was
lodged alleging that the respondents Pratapji and Jayantubha (hereinafter
referred to as accused by their respective names) assaulted the informant Sameer
Kumar and the appellant Shailesh Jasvantbhai causing serious injuries. On the
basis of the information lodged, investigation was undertaken and the accused
persons were tried for alleged commission of offence punishable under Sections
307,324, 504 read with Section 114 of the Indian Penal Code,1860( in short the
'IPC') and section 135 of the Bombay Police Act. The trial court held the
accused persons to be guilty and sentenced each to undergo rigorous
imprisonment for 10 years with fine of Rs.3,000/- with default stipulation for
the offences punishable under Sections 307 and 114 IPC. No separate sentence
was imposed for the offences punishable under Sections 324 and 114 IPC. The
accused persons were, however, acquitted of the charges relating to Section 504
IPC and Section 135 of the Bombay Police Act. The incident as described in the
first information report and as unfolded during trial was that the incident in
question happened on 30th
March, 2002 when
complainant Sameer Kumar and his friend appellant Shailesh were standing near a
pan shop situated on Bhabhar
having their pans, both the accused came there and asked the complainant to pay
the charges for their pans. A quarrel started as the complainant refused to
accept the demand of the accused. Thereafter at about 9.30 p.m. on the next
day, when complainant and his friend's, Balmukund and Shailesh were standing at
the pan shop situated opposite a PCO, both the accused came there, each was
armed with a knief and started abusing the complainant. Accused No. 2 Jayantubha
caught hold of the complainant and accused No. 1 Pratap gave knife blow on the
right hand of the complainant. He also gave another blow on the left hand of
the complainant shouted for help, appellant Shailesh intervened. Both the
accused diverted their attention to Shailesh by inflicting blows with knife on
him. Shailesh sustained injury on the left side of the neck and fell down on
the ground. Thereafter Balmukund and Bharat also intervened. Accused thereafter
fled. Both the injured were taken to Dr. Dhirajbhai (PW1) for the treatment who
also informed the police. The police thereafter recorded the complaint and
started investigation, submitted the chargesheet against accused. Trial was
held as accused persons pleaded innocence. As noted above, the trial court
found them guilty and convicted and sentenced them. Trial Court's judgment was
assailed before the High Court.
the hearing of the appeal before the High Court conviction was not questioned,
but it was submitted that the accused Pratapji had appeared in Standard X
examination before a week of the incident, the sentence was harsh, had the
likelihood of spoiling the careers of the accused persons. It was, therefore,
submitted that a lenient view should be taken in the matter by providing
adequate compensation to the injured persons. The plea was resisted by the
State. But the High Court was of the view that even though the conviction was
not seriously questioned, the same was rightly so done because the conviction
was in order. However, it was held that as both the accused persons were in
prison and one of them had appeared in Standard X examination, and had no
criminal antecedent the sentence was restricted to the period already undergone
i.e. for about two years with the fine of Rs.60,000/- (Rupees sixty thousand)
which was to be paid as compensation to the injured.
support of the appeal learned counsel for the appellants submitted that no
sympathy or leniency should have been shown to the accused persons. The order
was passed even without any notice to the injured persons who would have shown
as to how no leniency was warranted. The factor which weighed with the High
Court i.e. the accused persons being student with no criminal antecedent had
merely no relevance. It was also factually not correct that the accused persons
had no criminal antecedent. In reality they were involved in large number of
Counsel for the respondents supported the impugned judgment.
law regulates social interests, arbitrates conflicting claims and demands.
Security of persons and property of the people is an essential function of the
State. It could be achieved through instrumentality of criminal law.
there is a cross cultural conflict where living law must find answer to the new
challenges and the courts are required to mould the sentencing system to meet
the challenges. The contagion of lawlessness would undermine social order and
lay it in ruins. Protection of society and stamping out criminal proclivity
must be the object of law which must be achieved by imposing appropriate
law as a corner-stone of the edifice of "order" should meet the
challenges confronting the society. Friedman in his "Law in Changing
Society" stated that, "State of criminal law continues to be - as it
should be - a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective
machinery or the deterrence based on factual matrix. By deft modulation
sentencing process be stern where it should be, and tempered with mercy where
it warrants to be. The facts and given circumstances in each case, the nature
of the crime, the manner in which it was planned and committed, the motive for
commission of the crime, the conduct of the accused, the nature of weapons used
and all other attending circumstances are relevant facts which would enter into
the area of consideration.
undue sympathy to impose inadequate sentence would do more harm to the justice
system to undermine the public confidence in the efficacy of law and society
could not long endure under such serious threats. It is, therefore, the duty of
every court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc. This position was
illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu (1991 (3) SCC 471).
criminal law adheres in general to the principle of proportionality in
prescribing liability according to the culpability of each kind of criminal
conduct. It ordinarily allows some significant discretion to the Judge in
arriving at a sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are raised by the
special facts of each case. Judges in essence affirm that punishment ought
always to fit the crime; yet in practice sentences are determined largely by
it is the correctional needs of the perpetrator that are offered to justify a
sentence. Sometimes the desirability of keeping him out of circulation, and
sometimes even the tragic results of his crime. Inevitably these considerations
cause a departure from just desert as the basis of punishment and create cases
of apparent injustice that are serious and widespread.
between crime and punishment is a goal respected in principle, and in spite of
errant notions, it remains a strong influence in the determination of
practice of punishing all serious crimes with equal severity is now unknown in
civilized societies, but such a radical departure from the principle of
proportionality has disappeared from the law only in recent times. Even now for
a single grave infraction drastic sentences are imposed.
less than a penalty of greatest severity for any serious crime is thought then
to be a measure of toleration that is unwarranted and unwise. But in fact,
quite apart from those considerations that make punishment unjustifiable when
it is out of proportion to the crime, uniformly disproportionate punishment has
some very undesirable practical consequences.
giving due consideration to the facts and circumstances of each case, for
deciding just and appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in which a crime has been
committed are to be delicately balanced on the basis of really relevant
circumstances in a dispassionate manner by the Court. Such act of balancing is
indeed a difficult task. It has been very aptly indicated in Dennis Councle MCGDautha
v. State of Callifornia (402 US 183: 28 L.D. 2d 711) that no formula of a
foolproof nature is possible that would provide a reasonable criterion in
determining a just and appropriate punishment in the infinite variety of
circumstances that may affect the gravity of the crime. In the absence of any
foolproof formula which may provide any basis for reasonable criteria to
correctly assess various circumstances germane to the consideration of gravity
of crime, the discretionary judgment in the facts of each case, is the only way
in which such judgment may be equitably distinguished.
Chatterjee v. State of W.B. (1994 (2) SCC 220), this Court has
observed that shockingly large number of criminals go unpunished thereby
increasingly, encouraging the criminal and in the ultimate making justice
suffer by weakening the system's creditability. The imposition of appropriate
punishment is the manner in which the Court responds to the society's cry for
justice against the criminal.
demands that Courts should impose punishment befitting the crime so that the
Courts reflect public abhorrence of the crime. The Court must not only keep in
view the rights of the criminal but also the rights of the victim of the crime
and the society at large while considering the imposition of appropriate
view has also been expressed in Ravji v. State of Rajasthan (1996 (2) SCC 175). It has been
held in the said case that it is the nature and gravity of the crime but not
the criminal, which are germane for consideration of appropriate punishment in
a criminal trial. 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". If for extremely heinous crime of murder
perpetrated in a very brutal manner without any provocation, most deterrent
punishment is not given, the case of deterrent punishment will loss its
relevance. In State of M.P.
Nahara Ram and Anr.
(2004 (6) SCC 513) and State of M.P.
was again highlighted.
find from the record that before learned Additional Sessions Judge, Deesa an
affidavit was filed by the sub inspector of Police that accused Pratapji was
involved in large number of cases and details of nine cases were given.
it was stated that the accused no.2 Jayantubha, who was an accomplice of
accused no.1 was also involved in nine cases. The trial court while dealing
with the bail application filed by the accused also noted about the pendency of
the cases. It further appears that during pendency of the trial the bail
granted to accused Pratapji was cancelled for breach of conditions imposed by
the court for grant of bail. These aspects do not appear to have been
considered by the High Court. It proceeded on factually erroneous premises
without keeping in view correct principles relating to punishment.
being the position we set aside the impugned judgment of the High Court and
remit the matter to the High Court for a fresh hearing on the question of
sentence, uninfluenced by any observation made in these appeals.
appeals are allowed to the aforesaid extent.