Sachdev Vs. Jaibir @
Jaidev & Ors  INSC 443 (27 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 403 OF 2009
(Arising out of S.L.P. (Crl.) No.3181 of 2006) Sahdev ....Appellant Versus
Jaibar @ Jai Dev & Ors. ...Respondents
Dr. ARIJIT PASAYAT,
in this appeal by the informant is to the judgment of a learned Single Judge of
the Punjab and Haryana High Court by which the High Court while upholding the
conviction of respondents 1 to 4 for offence punishable under Sections 307 and
326 read with Section 34 of the Indian Penal Code, 1860 (in short the `IPC')
reduced the sentence from 10 years to 7 years in respect of first offence.
factual scenario has been described in detail in Criminal Appeal No.16/2007 and
Criminal Appeal No........ of 2009 (Arising out of SLP (Crl.) 2007 of 2008)
disposed of by us today. In the present appeal filed by the complainant, who
had suffered injuries the legality of the order so far as it relates to
reduction of sentence is concerned, has been questioned. It has been stated
that the victims were mercilessly beaten and large number of injuries were
caused to them. Without even indicating any basis, the sentence has been
reduced. Injured Ram Swarup could not be examined because, as per the opinion
of the doctor, he has lost his memory due to the injury caused to him. So far
as the injuries on Ram Swarup are concerned they are as follows:
1. An incised wound
10x4x2 cm. deep over front of the neck just above the thyrod cartilage. The
trachea was cut and exposed. Advised E.N.T. Surgeon's opinion.
2. An incised wound
16x2 cm X bone deep over right side of the scalp extending from right eyebrow
to the parietal region up to the mid line.
3. Incised wound 6 cm
x 1 cm bone deep over left side of the scalp extending from the left eyebrow
over the scalp. Advised Surgeon's opinion.
4. Incised wound
4x1x1 cm deep over the left side of the forehead 1 cm deep over the left side
of the forehead 1 cm. of mild line.
5. Incised wound 4 x
1 x 1 cm. over the anterior aspect of left shoulder.
6. Crush injury 16 cm
x 8 cm x bone deep over the right shoulder underlying bone muscles were
The order of the High
Court is supported by learned counsel for the accused persons.
It is noticed that
the injuries were definitely of a very serious nature, as these injuries noted
above go to show. The trial Court has imposed a sentence of 10 years in respect
of offence relatable to Section 307 IPC. The High Court has not indicated any
reason for reducing the sentence to 7 years.
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.
Undoubtedly, there is a cross cultural conflict where living law must find
answer to the new challenges and the courts are required to mould the
sentencing system to meet the challenges. The contagion of lawlessness would
undermine social order and lay it in ruins. Protection of society and stamping
out criminal proclivity must be the object of law which must be achieved by
imposing appropriate sentence. Therefore, law as a corner-stone of the edifice
of "order" should meet the challenges confronting the society.
Friedman in his "Law in Changing Society" stated that, "State of
criminal law continues to be - as it should be - a decisive reflection of
social consciousness of society". Therefore, in operating the sentencing
system, law should adopt the corrective machinery or the deterrence based on
factual matrix. By deft modulation sentencing process be stern where it should
be, and tempered with mercy where it warrants to be. The facts and given
circumstances in each case, the nature of the crime, the manner in which it was
planned and committed, the motive for commission of the crime, the conduct of
the accused, the nature of weapons used and all other attending circumstances
are relevant facts which would enter into the area of consideration. For instance
a murder committed due to deep-seated mutual and personal rivalry may not call
for penalty of death.
But an organised
crime or mass murders of innocent people would call for imposition of death
sentence as deterrence. In Mahesh v. State of M.P. (1987) 2 SCR 710), this
Court while refusing to reduce the death sentence observed thus:
"It will be a
mockery of justice to permit the accused to escape the extreme penalty of law
when faced with such evidence and such cruel acts. To give the lesser punishment
for the accused would be to render the justicing system of the country suspect.
The common man will lose faith in courts. In such cases, he understands and
appreciates the language of deterrence more than the reformative jargon."
undue sympathy to impose inadequate sentence would do more harm to the justice
system to undermine the public confidence in the efficacy of law and society
could not long endure under such serious threats. It is, therefore, the duty of
every court to award proper sentence having regard to the nature of the offence
and the manner in which it was executed or committed etc. This position was
illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil
Naidu (AIR 1991 SC 1463).
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 other considerations.
Sometimes it is the correctional needs of the perpetrator that are offered to
justify a sentence. Sometimes the desirability of keeping him out of
circulation, and sometimes even the tragic results of his crime. Inevitably
these considerations cause a departure from just desert as the basis of
punishment and create cases of apparent injustice that are serious and
between crime and punishment is a goal respected in principle, and in spite of
errant notions, it remains a strong influence in the determination of
sentences. The practice of punishing all serious crimes with equal severity is
now unknown in civilized societies, but such a radical departure from the
principle of proportionality has disappeared from the law only in recent times.
Even now for a single grave infraction drastic sentences are imposed. Anything
less than a penalty of greatest severity for any serious crime is thought then
to be a measure of toleration that is 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.
Jashubha Bharatsinh Gohil v. State of Gujarat (1994 (4) SCC 353), it has been
held by this Court that in the matter of death sentence, the Courts are
required to answer new challenges and mould the sentencing system to meet these
challenges. The object should be to protect the society and to deter the
criminal in achieving the avowed object to law by imposing appropriate
sentence. It is expected that the Courts would operate the sentencing system so
as to impose such sentence which reflects the conscience of the society and the
sentencing process has to be stern where it should be. Even though the
principles were indicated in the background of death sentence and life
sentence, the logic applies to all cases where appropriate sentence is the
issue. (See: State of M.P. v. Ghanshyan Singh (2003 8 SCC 13).
injuries on Ram Sarup were attributed to accused Raj Kumar.
Therefore, so far as
he is concerned, the appeal is allowed by enhancing the sentence from 7 years to
10 years. So far as the other two respondent accused persons are concerned,
though no reason has been indicated, considering the nature of the injuries
caused by them, the sentence as imposed by the High Court does not appears to
be on the lower side.
appeal is allowed to the extent that the sentence in respect of accused Raj
Kumar is enhanced from 7 years to 10 years in respect of offence relatable to
Section 307 IPC. The appeal fails so far as the other co- accused persons are
concerned in relation to the prayer for enhancement of sentence.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)
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