CASE NO.: Appeal (crl.) 1646 of 1996 PETITIONER: STATE OF MADHYA PRADESH RESPONDENT: GHANSHYAM SINGH DATE OF JUDGMENT: 11/09/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT:
JUDGMENT
2003 Supp(3) SCR 618
The Judgment of the Court was delivered by :
ARIJIT PASAYAT, J.: State of Madhya Pradesh in Criminal appeal No. 1646 of
1996 has questioned correctness of the judgment rendered by Division Bench
of Madhya Pradesh High Court, Gwalior Bench, holding that respodent
(Ghanshyam Singh) was guilty of offence punishable under Section 304 of
Indian Penal Code, 1860 (for short ‘IPC‘). The sentence imposed was
restricted to the period already undergone, which was about 2 years and
fine of Rs. 15,000 which, if deposited, was directed to be paid as
compensation to the widow of Sarnam Singh (hereinafter referred to as ‘the
deceased’) and in her absence to other dependents and heirs of the
deceased. In default of payment of amount of fine, the default stipulation
was further imprisonment of two years.
Six persons including accused Ghanshyam faced trial for allegedly having
committed offences punishable under Sections 302 read with Section 149 IPC,
Section 148 IPC, Section 307 read with Section 149 IPC. While the
respondent-Ghanshyam Singh was found guilty of offence punishable udner
Sections 302, and 307 read with Sections 148 and 149, other accused persons
were convicted under Section 302 read with Section 149 IPC. They were also
convicted under Sections 148 and 307 read with Section 149 IPC. Various
sentences were imposed. All the six accused persons filed appeals before
the High Court. As accused no. 6 Diwan Singh expired during the pendency of
the appeal, it was held that the same stood abated so far as he is
concerned.
Prosecution case in a nutshell is as follows :
On 8.4.1981 Devi Singh (PW-1) with his sister Sushilabai (PW-3), his
sister’s husband and elder brother Maharaj Singh went to bus stand of
village Barod to see off Sushilabai and her husband, who were going by bus.
At that time, all the six accused reached there with different weapons in
their hands. Accused Ghanshyam Singh had a gun; Sitaram had a farsa and
Harnam Singh and Diwan Singh had lathis. They all surrounded Devi Singh
(PW-1) and jointly assaulted him. Sitaram gave a farsa blow on the backside
of his head. Amar Singh gave a lathi blow on his head which, however, fell
on the hand. When he raised a cry for help, Ghanshyam Singh then fiired at
him but the bullet missed. Hearing the alarm, Hanumant Singh (PW-4), father
of Devi Singh, deceased Sarnam Singh who was his uncle, and Jaswant Singh
(PW-5) came on the spot. Accused Ghanshyam Singh then fired at Jaswant
Singh and he received injury on the arm. He fired two shots thereafter
which hit Sarnam Singh on his leg and abdomen. Harbir Singh gave a farsa
blow on leg of Hanumant Singh (PW-4). Udham Singh (PW-12), Jagannath and
Banjara were at that time at motor-stand and they tried to save the
assault. Information was lodged at the police station. Injured persons were
sent for medical treatment. Subsequently, Sarnam Singh breathed his last.
On completion of investigation charge sheet was placed. Accused persons
pleaded innocence and false implication due to strained relationship. They
claimed to have been assaulted by deceased and his companions. The trial
Court convicted and sentenced the accused as indicated supra. Accused
persons challenged the conviction and sentence.
On consideration of the evidence adduced by the prosecution, the High Court
came to hold that the eye witnesses have given cogent and consistent
version that two shots were fired by Ghanshyam Singh causing serious
injuries to Sarnam Singh. It was noted that there were two parts of the
incident. In the first part it was noted that when Devi Singh ran away from
the bus stand to save himself and raised an alarm, accused-Ghanshyam Singh
came on the spot with his gun and fired. In the second part, there was free
fight between the parties. In this view the plea of self-defence by the
accused was rejected. It was however held that the act of using fire-arm
and firing two shot by Ghanshyam Singh would fall under Exception 4 of
Section 300 IPC. As the act was done in the course of sudden and free fight
the offence was not relatable to Section 302 IPC but was one under Section
304 Part-I IPC. He was acquitted of other charges. So far as other accused
persons are considered, they were held guilty of offence punishable under
Section 323 IPC. On the question of sentence, it was held that Ghanshyam
Singh was liable to undergo sentence and fine as noted supra. The special
leave petitions, so far as rest of the accused-respondents are concerned,
have been dismissed by order dated 6.9.1996.
It needs to be noted that though the High Court had held that the appeal
against Diwan Singh had abated, yet he was made a party in the special
leave petition. But that is really of no consequence as the special leave
petition has been dismissed so far as he and other accused 2 to 5 are
concerned.
Learned counsel for the State submitted that the High Court was not
justified in holding that case under Section 302 IPC was not made out. In
any event, after having held that the case of homicide not amounting to
murder has been made out against Ghanshyam Singh for offence punishable
under Section 304 Part-I IPC, the custodial sentence of two years is too
meager, considering the gravity of the offences and the brutal manner of
attacks. He referred to the factual background and findings to substantiate
both the above pleas.
In response learned counsel for the respondent – Ghanshyam Singh submitted
that the High Court had rightly held that the offence was punishable under
Section 304 Part-1, IPC. In view of the fact that the occurrence took place
in 1981, the sentence awarded is just and proper. In any event, after two
decades it would be unreasonable and inequitable to send the accused back
to custody, particularly when the fine amount has been deposited. Reference
was made to State of Punjab v. Bira Singh and Ors., [1995] Supp 3 SCC 708;
Pashora Singh and Anr. v. State of Punjab, [1993] Supp 2 SCC 33, Dilbagh
Singh v. State of Punjab, [1979] 2 SCC 103 to contend that liberal view is
desirable in such matters.
We have considered the rival submissions.
So far as conclusion of the High Court about the applicability of Section
304 Part-I, IPC is concerned, the High Court has rightly held on the
evidence on record that the offence committed by accused-Ghanshyam Singh is
relatable to Section 304 Part-I and not Section 302 IPC.
The crucial question which needs to be decided is the proper sentence and
merely because of lapse of time, the accused is to be waived from
undergoing it. It is to be noted that the sentences prescribed for offences
relatable to Section 304 Part-I are imprisonment for life or up to a period
of 10 years. It is true that no minimum sentence has been prescribed. The
sentences can be compared with prescription of similar sentences and other
provisions like Section 326 IPC and Section 307 IPC when hurt is caused.
Section 304 Part-I is a species of homicidal death. It is statutorily
described as culpable homicide though not amounting to murder as defined
under the IPC. Taking note of the purpose for which a sentence is imposed,
it cannot be laid down as a rule of universal application that long passage
of time in all cases would justify minimal sentence. Long pendency of a
matter by itself could not justify lesser sentence.
The law regulates social interests, arbitrates conflicting claims and
damands. Security of persons and peoperty 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 areas 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.”
Therefore, 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, AIR (1991) SC 1463.
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. 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 widespread.
Proportion 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.
After 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.
2711 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.
In Jashubha Bharat Singh 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.
Imposition of sentence without considering its effect on the social order
in many cases may be in reality a futile exercise. The social impact of the
cirme, e.g. where it relates to offences against women, dacoity,
kidnapping, misappropriation of public money, treason and other offences
involving moral turpitude or moral delinquency which have great impact on
social order, and public interest, cannot be lost sight of and per se
require exemplary treatment. Any liberal attitude by imposing meager
sentences or taking too sympathetic view merely on account of lapse of time
in respect of such offences will be result-wise counter productive in the
long run and against societal interest which needs to be cared for and
strengthened by string of deterrence inbuilt in the sentencing system.
In Dhananjoy 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 criminals 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. Justice 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
punishment. Similar 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 lose its relevance.
Taking into account the all relevant aspects of this case in the background
of principles governing award of appropriate sentence, we feel that even on
a liberal approach, custodial sentence of 6 years would serve the ends of
justice. While fixing the sentence we have taken note of the fine imposed
which remains unaltered. It is said to have been paid. There was
stipulation for 2 years RI in case of default. The respondent, who is on
bail, shall surrender to custody to serve balance of sentence.
Criminal Appeal No. 1646 of 1996 is allowed to the extent indicated. In
view of the order passed in Criminal Appeal No. 1646 of 1996, there is no
necessity for passing any order in Criminal Miscellaneous Petition No.
489/1996 filed by the informant for enhancement of sentence and the same is
rejected.