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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

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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

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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

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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

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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

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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

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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

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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: -

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“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

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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

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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 another1,  

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

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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  Punjab2). 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  CBI3 and  

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

Bombay4 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

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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 Lal5, 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  another6.   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

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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: -

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“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

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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

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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

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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  Pradesh8,  Sikandar  Singh  and  

Others v. State of Bihar9 and State of Rajasthan v.  

Manoj Kumar10.

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

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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

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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  

another11,  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

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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  

Nadu12,  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

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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  

another14, 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 Rajasthan15  

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

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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. Krishnappa16, 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

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23. In Jameel v. State of Uttar Pradesh17, 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

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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

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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  Karnataka19,  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

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

others21, 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

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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 others22.

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

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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   

Process23: -

23 Yale University Press, 1921 Edn., p.114

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“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 Import24: -

“…  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, 6th Edn., p. 273).”

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

Suri25 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

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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

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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

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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: -

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“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)

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May 05, 2014.