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Report No. 202

3.9 Principle of Proportionality in Prescription of Punishment:

3.9.1 The principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct has been very aptly elaborated by the Supreme Court in the case of Lehna v. State of Haryana, (2002) 3 SCC 76. It will be expedient to refer to the observations made by the apex court on this subject as under:

"The 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.

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 widespread.

The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hard less familiar or less important than the principle that only the guilty ought to be punished indeed, the requirement that punishment not to be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment.

Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis.

Proportion between crime and punishment is a goal espected 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 a single grave infraction is thought to call for uniformly drastic measures.

Anything less than a penalty of greatest severity for any serious crime is thought than 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."

3.9.2 There is another important aspect that needs to be kept in view while dealing the subject under consideration, that is to say, the need for keeping emotional and sentimental feelings generated why incidence of dowry death within permissible bounds both while prescribing sentence for an offence and also while awarding a sentence in any case. It will be useful to refer the following observations made in the case of State (Delhi Administration) v. Laxman Kumar, AIR 1986 SC 250:

"We appreciate the anxiety displayed by some of the women organizations in cases of wife burning crime to be condemned by one and all and if proved deserving the severest sentence. The evil of dowry is equally a matter of concern for the society as a whole and should be looked upon contemptuously both on the giver and the taker.

The Courts cannot allow an emotional and sentimental feeling to come into the judicial pronouncements. Once sentimental and emotional feelings are allowed to enter the judicial mind the Judge is bound to view the evidence with a bias and in that case the conclusion may also be biased resulting in some cases in great injustice. The cases have to be decided strictly on evidence howsoever cruel or horrifying the crime may be. All possible chances of innocent man being convicted have to be ruled out. There should be no hostile atmosphere against an accused in court. A hostile atmosphere is bound to interfere in an unbiased approach as well as a decision. This has to be avoided at all costs."

3.9.3 The Court further observed as follows: We were, however, disturbed by the fact that the High Court took notice of publicity through the news media and indicated its apprehension of flutter in the public mind. It is the obligation of every court to find out the truth and act according to law once the truth is discovered. In that search for truth obviously the Court has to function within the bounds set by law and act on the evidence placed before it.

What happens outside the Court room when the Court is busy in its process of adjudication is indeed irrelevant and unless a proper cushion is provided to keep the proceedings within the court room dissociated from the heat generated outside the court room either through the news media or through flutter in the public mind, the cause of justice is bound to suffer. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical power of litigating individual or the might of the ruler nor even the opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment.

Award of punishment following conviction at a trial in a system wedded to rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecutor is given an opportunity of supporting the charge and the accused is equally given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed mind of the Judge that leads to determination of the lis. If the cushion is lost and the Court room is allowed to vibrate with the heat generated outside it, the adjudicatory process suffers and the search for truth is stifled.

3.9.4 The above approach may be germane to judicial proceedings before a court determining the guilt of an accused. It is not so in respect of legislative proceedings concerning prescription of a sentence in law for any given offence. The legislature ought not be oblivious to public sentiments and demands. Laws are made to satiasfy the needs of the society in which they operate. Admittedly, having regard to the number and the manner of dowry deaths, there are widespread public demands for stringent legal measures to effectively curb this social evil.

But, at the same time, the cardinal principles of penology, especially those relating to sentencing, have to be duly adhered to. It is important that legal sanctions must be appropriate, pragmatic and effective. Sentence must not be too less or too harsh and more than what is necessary. Both will be counterproductive. A rational balance has to be made in prescribing punishment for dowry deaths.

3.9.5 It may be expedient to reiterate the word of caution sounded by this Commission in its 91st Report, viz; Given all these circumstances of the usual 'dowry death', it will be conceded that even where there is in a particular case, moral certainty that the death is the result of murder, the circumstances would be hostile to an early or easy discovery of the truth. Punitive measures - such that can be pursued with the ambit of the existing law - may be adequate in their formal content. But their successful enforcement is a matter of difficulty.

That is why there is need to supplement the punitive measures by appropriate preventive measures. This Report seeks to make a few modest suggestions as to what can be done in this regard. It is possible that the measures recommended here will be regarded as very mild by some persons or as radicals by others. But it is hoped that the discussion will at least give a new stance to the thinking on the subject.

Some effective preventive measures whatever be there content and drift, are needed urgently. If this is not done soon, there is a grave risk that the problem of bride burning will grow out of control and a stage will come when one of the two possibilities will become real. Either there will be no enthusiasm left for trying out concrete solutions or there will come to be adopted solutions that might be worse than the problem. It will be the earnest endeavour of this Commission to see that neither of the two possibilities is materialized.

3.9.6 Keeping this in view, we are of the considered view that there is no warrant for prescribing death sentence for the offence of dowry death as defined in Section 304B IPC having regard to presumptive character of the offence, absence of direct connection in between the death and the offender and gravity of the culpable conduct as well as the object sought to be achieved thereby.

3.9.7 The reason for this is not for to seek Capital punishment has already been prescribed in Section 302 I.P.C (in a case of murder). There is no necessity to prescribe capital punishment for offence committed under Section 304B (dowry death). There is distinction between section 302 (murder), section 304B (dowry death) and Section 306 (abetment to suicide) of the Indian Penal Code.

If charge is framed under Section 304B, but after recording and appreciation of evidence, the case proved to be a case under Section 302, the charge can be altered and the accused can very well be punished under Section 302 and if the court finds that the case under Section 302 to be a rarest of rare cases, then the offender can very well be awarded with capital punishment.

3.9.8 In Panakanti Sampath Rao v. State of A.P., (2006) 9 SCC 658 the Hon'ble Supreme Court affirmed the order passed by the High Court converting conviction u/s 304B and 398A to 302 I.P.C. the Hon'ble Supreme court held that:

"There is ample evidence which shows that the appellant has harassed and ill-treated the deceased for dowry and the circumstances point out that he has caused the death of the deceased. Therefore, we find the appellant (A-1) guilty of the offence under Section 302 IPC"



Proposal to amend Section 304-B of the Indian Penal Code Back




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