REPORTABLE

 IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.319  OF 2019 (Arising out of SLP(Crl.) No. 1837 of 2015)

The State of Madhya Pradesh Appellant(s)

VS.

Suresh          Respondent(s)

JUDGMENT

Dinesh Maheshwari., J

Leave granted.

2. In this appeal, the appellant-State of Madhya Pradesh has called in

question the judgment  and order dated 27.11.2012 in Criminal  Appeal

No. 260 of 1998 whereby, the High Court of Madhya Pradesh, even while

upholding the conviction of accused (respondent herein) for the offence

punishable under Section 304 Part II of the Indian Penal Code ('IPC'), has

modified the sentence of 3 years' rigours imprisonment as awarded by

the Trial Court to that of the period already undergone i.e., 3 months and

21 days.

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3.  The only question calling for determination in this appeal is: As to

whether, in the given set of facts and circumstances, the High Court was

justified in interfering with the punishment awarded by the Trial Court by

reducing the same to the period of imprisonment already undergone?  

4. The  background  aspects  of  the  case,  so  far  relevant  for  the

question at hand could be noticed as follows: The prosecution case had

been that on 13.05.1996, at about 4:30 p.m., the respondent assaulted his

father Tulsiram with a blunt object causing fracture on the parietal region

of  skull;  and the same night,  victim succumbed to the injury at  Betual

Hospital. On the basis of the information received from the hospital that

the deceased Tulsiram was brought  to  the hospital  by  the respondent

Suresh  in  unconscious  condition,  Marg  Information  No.  0/30/96  was

registered under section 174 Cr.P.C. However, when it was noticed from

the statements of PW-3 Sawalbai, PW-6 Basanti Bai and PW-10 Sarpach

Sukhlal that the respondent was seen hitting his father, he was arrested

on 20.05.1996 and FIR in Crime No. 120/1996 (Ex. P-19) came to be

registered at police station, Amla. After due investigation, the respondent

was charge-sheeted for the offences under Sections 201 and 302 IPC.  

5. In trial, the prosecution,  inter alia, relied on the testimony of PW-3

Smt. Sawalbai who stated that while working in a field near the place of

incident, she had seen the respondent assaulting his father with a lathi

(wooden log). PW-2 Babulal stated that upon hearing the cries of PW-3,

he saw the accused assaulting someone; he reached the spot and found

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that the injured person was the father of accused; and he prevented the

accused  from  further  assaulting  his  father.  PW-4  Dinesh  alias  Mathu

corroborated the testimonies of PW-2 and PW-3. On the other hand, the

accused-respondent attempted to suggest that his father sustained injury

when he fell from the roof while putting up khapra.

6. On appreciation of evidence, the Trial Court rejected the defence

version and found it proved beyond reasonable doubt that the respondent

did cause the fatal injury in question. However, the Trial Court proceeded

to  hold  that  the  act  of  the  accused-respondent  had  been of  culpable

homicide  not  amounting  to  murder  and  he  was  guilty  of  the  offence

punishable under Section 304 Part II IPC. The Trial Court was of the view

that  while  causing  injury  to  the  head  of  the  deceased,  the  accused-

respondent knew that his act was likely to cause death but he had no

such criminal intention as defined in Section 300 IPC and hence, he was

not guilty of the offence of murder under Section 302 IPC. The Trial Court

further  found  that  the  accused  furnished  a  wrong  information  about

accidental injury to the victim so as to save himself from legal punishment

and hence,  he was also guilty  of  the offence under Section 201 IPC.

However, for the reason that the accused stood convicted for the main

offence, the Trial Court chose not to convict him for the offence under

Section 201 IPC with reference to the decision of this Court in Kalawati

v. State of Himachal Pradesh: AIR 1953 SC 131.  

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7. Having  thus  convicted  the  accused-respondent  for  the  offence

under Section 304 Part II IPC, the Trial Court found it just and proper to

award him the punishment of 3 years' rigorous imprisonment while also

observing  that  the  period  of  detention  already  undergone  (from

20.05.1996  to  09.09.1996)  would  be  set  off  against  the  term  of

imprisonment imposed on him.  

8. In appeal by the accused, the High Court of Madhya Pradesh, in its

impugned  judgment  and  order  dated  27.11.2012,  found  no  reason  to

consider  interference  in  the  findings  recorded  by  the  Trial  Court  as

regards conviction for the offence under Section 304 Part II IPC but, on

the  question  of  punishment,  proceeded  to  reduce  the  sentence  of

rigorous imprisonment from the period of 3 years to that of the period

already undergone i.e., 3 months and 21 days. The relevant part of the

order passed by the High Court,  carrying the reasons for reduction of

sentence, reads as under:

"5.  The incident had taken place on 13.5.1996. From the perusal of the statement of eye-witnesses Babulal (PW-2), Sawla Bai (PW-3), Dinesh (PW-4) it seems that the incident had taken place at the spur of the moment. The appellant at the time of the incident was a young man  aged  26  years.  The  appellant  himself  took  his father  namely  Tulsiram to  the hospital.  The appellant has remained in jail  for a period of three months and twenty one days i.e. from 20.05.1996. In the facts and circumstances of the case and taking into account the period which has elapsed, no useful purpose would be served in sending appellant back to jail, I therefore set aside the jail sentence awarded to the appellant under Section  304  Part  II  of  the  Indian  Penal  Code  and instead award the sentence to the appellant for a period of imprisonment already undergone by him."

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9. Assailing  the  order  aforesaid,  learned  counsel  for  the  appellant-

State  has  strenuously  argued  that  the  High  Court  has  modified  and

reduced  the  sentence  awarded  by  the  Trial  Court  without  any  cogent

reason and without any justification. The learned counsel would submit

that the High Court has failed to appreciate the nature and gravity of the

offence committed by the respondent  that  resulted in the death of  his

father and has argued for restoration of the order of the Trial Court, while

relying  on  the  decision  in  Alister  Anthony  Pareira  v.  State  of

Maharashtra: (2012) 2 SCC 648  wherein, this Court has re-emphasised

on the principle of proportionality in the determination of sentence for an

offence.  Per contra, the learned counsel appearing for the respondent-

accused has supported the impugned order with the submissions that the

same meets the ends of  justice,  particularly when the respondent was

only 26 years of age at the time of the incident in question that occurred at

the  spur  of  moment  and  without  any  intention  on  the  part  of  the

respondent  to  cause  the  death  of  his  father.  Learned  counsel  would

submit that the High Court exercising its appellate powers has reduced

the sentence to the period already undergone after due consideration of

all the relevant factors; and while relying on the decision of this Court in

Jinnat Mia v. State of Assam: (1998) 9 SCC 319,  has urged that the

present matter does not call for interference by this Court.  

10. Having heard the respective learned counsel and having examined

the record with reference to the law applicable, we are clearly of the view

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that  in  this  case,  the  High  Court  has  interfered  with  and reduced the

sentence awarded by the Trial Court on rather irrelevant considerations,

while ignoring the relevant factors and the governing principles for the

award  of  punishment  and  hence,  the  order  impugned  cannot  be

sustained.  

11. The respondent was tried for offence under Sections 302 and 201

IPC.  With  the  evidence  on  record,  it  was  clearly  established  that  the

respondent was author of the fatal injury in question. The Trial Court, with

reference  to  the  nature  of  the  act  of  respondent  and  the  attending

circumstances,  convicted  him  for  culpable  homicide  not  amounting  to

murder under Section 304 Part II IPC and let him off for the offence under

Section 201 IPC because he had been convicted for the main offence.

This part of the order of the Trial Court having attained finality and having

not been questioned even in this appeal, we would leave the matter as

regards  conviction  at  that  only.  However,  the  question  remains  as  to

whether  all  the facts  and circumstances of  case taken together  justify

such  indulgence  that  the  punishment  of  rigorous  imprisonment  for  a

period of 3 years, as awarded by the Trial Court, be reduced to that of 3

months and 21 days? In our view, the answer to this question could only

be in the negative.  

12. In the case of  State of M.P. v.  Ganshyam :  (2003) 8 SCC 13,

relating to the offence punishable under Section 304 Part  I  IPC ,  this

Court found sentencing for a period of 2 years to be to inadequate and

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even on the liberal approach, found the custodial sentence of  6 years

serving  the  ends  of  justice.  This  Court  underscored  the  principle  of

proportionality  in  prescribing  liability  according  to  the  culpability;  and

while  also  indicating  the  societal  angle  of  sentencing,  cautioned  that

undue sympathy leading to inadequate sentencing would do more harm

to the justice system and undermine public confidence in the efficacy of

law. This Court observed, inter alia, as under:   

“12. 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 v.  State of Tamil  Nadu: (1991) 3 SCC 471.

13. 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 deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.

14. 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

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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.

15. 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 MCGautha v. State of California: 402 US 183: 28 L Ed 2d 711 (1071) 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.

*** *** *** 17. 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  crime  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 meagre sentences or taking too sympathetic a view merely on account of lapse of time in respect of

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such offences will  be result-wise counterproductive in the long run and against societal interest which needs to  be  cared  for  and  strengthened  by  a  string  of deterrence inbuilt in the sentencing system.

*** *** *** 19. 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”. …...”

(underlining supplied for emphasis)

13. In  the  Case  of  Alister  Anthony  Pareira (supra),  the  allegations

against  the  appellant  had  been  that  while  driving  a  car  in  drunken

condition,  he  ran  over  the  pavement,  killing  7  persons  and  causing

injuries to 8. He was charged for the offences under Sections 304 Part II

and 338 IPC; was ultimately convicted by the High Court under Sections

304 Part II, 338 and 337 IPC; and was sentenced to 3 years' rigorous

imprisonment with a fine of Rs. 5 lakhs for the offence under Section 304

Part  II  IPC and to rigorous imprisonment for 1 year and for 6 months

respectively for the offences under Section 338 and 337 IPC . Apart from

other contentions, one of the pleas before this Court was that in view of

fine  and  compensation  already  paid  and  willingness  to  make  further

payment as also his age and family circumstances, the appellant may be

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released on probation or his sentence may be reduced to that already

undergone. As regards this plea for modification of sentence, this Court

traversed through the principles of penology, as enunciated in several of

the past decisions1 and, while observing that the facts and circumstances

of  the  case  show  'a  despicable  aggravated  offence  warranting

punishment proportionate to the crime',  this Court found no justification

for extending the benefit of probation or for reduction of sentence. On the

question of sentencing, this Court re-emphasised as follows:-

"84. Sentencing is an important task in the matters of crime.  One of the prime objectives of the criminal law is  imposition  of  appropriate,  adequate,  just  and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles:  the twin objective of the sentencing policy  is  deterrence  and  correction.  What  sentence would meet the ends of justice depends on the facts and circumstances of  each case and the court  must keep in mind the gravity of the crime, motive for the crime,  nature  of  the  offence  and  all  other  attendant circumstances.

85.  The  principle  of  proportionality  in  sentencing  a crime-doer is well entrenched in criminal jurisprudence. As  a  matter  of  law,  proportion  between  crime  and punishment  bears  most  relevant  influence  in determination of sentencing the crime-doer.  The court has  to  take  into  consideration  all  aspects  including social  interest  and  consciousness  of  the  society  for award of appropriate sentence.

(underlining supplied for emphasis)

1 This Court referred, amongst others, to the decisions in State of Karnataka v. Krishnappa:  (2004) 4 SCC 75; Dalbir Singh v. State of Haryana: (2000) 5 SCC 82; State of M.P. v.  Saleem (2005) 5 SCC 554; Ravji v. State of Rajasthan (1996) 2 SCC 175; and State of M. P.  v. Ghanshyam Singh (supra).  

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14. Therefore, awarding of just and adequate punishment to the wrong

doer in case of proven crime remains a part of duty of the Court. The

punishment to be awarded in a case has to be commensurate with the

gravity  of  crime  as  also  with  the  relevant  facts  and  attending

circumstances.  Of  course,  the  task  is  of  striking  a  delicate  balance

between the mitigating and aggravating circumstances. At the same time,

the avowed objects of law, of protection of society and responding to the

society's  call  for  justice,  need to  be kept  in  mind while taking up the

question of sentencing in any given case. In the ultimate analysis, the

proportion between the crime and punishment has to be maintained while

further balancing the rights of the wrong doer as also of the victim of the

crime and the society at large. No strait jacket formula for sentencing is

available but the requirement of taking a holistic view of the matter cannot

be forgotten.  

15. In  the  process  of  sentencing,  any  one  factor,  whether  of

extenuating circumstance or aggravating, cannot, by itself, be decisive of

the matter. In the same sequence, we may observe that mere passage of

time, by itself, cannot be a clinching factor though, in an appropriate case,

it may be of some bearing, along with other relevant factors. Moreover,

when certain extenuating or mitigating circumstances are suggested on

behalf of the convict, the other factors relating to the nature of crime and

its impact on the social order and public interest cannot be lost sight of.  

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16. Keeping in view the principles aforesaid, when the present matter is

examined, we find that the respondent is convicted of the offence under

Section 304 Part II IPC. Section 304 IPC reads as under:-

“Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting  to  murder,  shall  be  punished  with imprisonment  for  life,  or  imprisonment  of  either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death,  or  of  causing such bodily  injury as is  likely  to cause death;

or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to  cause  death,  but  without  any  intention  to  cause death,  or  to  cause  such  bodily  injury  as  is  likely  to cause death.”

17. Therefore, when an accused is convicted for the offence under Part

II of Section 304 ibid., he could be sentenced to imprisonment for a term

which may extend to a period of 10 years, or with fine, or both. In this

case, the Trial Court chose to award the punishment of 3 years' rigorous

imprisonment to the respondent. The punishment so awarded by the Trial

Court had itself been leaning towards leniency, essentially in view of the

fact that the respondent was 26 years of age at the time of the incident in

question.  However,  the  High  Court  further  proceeded  to  reduce  the

punishment to the period already undergone (i.e., 3 months and 21 days)

on consideration of the factors: (i) that the incident had taken place at

spur of the moment; (ii) that the respondent was 26 years of age at the

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time of incident; and (iii) that the respondent himself took his father to

hospital. On these considerations and after finding that the respondent

had spent 3 months and 21 days in custody, the High Court concluded

that “no useful purpose would be served in sending appellant back to jail”.

We are clearly of the view that, further indulgence by the High Court, over

and above the leniency already shown by the Trial  Court,  was totally

uncalled for.  

18. So far  the mitigating factors,  as  taken into  consideration by the

High Court  are concerned,  noticeable it  is  that  the same had already

gone into consideration when the Trial  Court  awarded a comparatively

lesser punishment of 3 years'  imprisonment for the offence punishable

with imprisonment for a term that may extend to 10 years, or with fine, or

with both. In fact, the factor that the incident had happened at the 'spur of

moment'  had  been  the  basic  reason  for  the  respondent  having  been

convicted for the offence of culpable homicide not amounting to murder

under Section 304 Part II IPC though he was charged for the offence of

murder under Section 302 IPC. This  factor could not have resulted in

awarding  just  a  symbolic  punishment.  Then,  the  factor  that  the

respondent was 26 years of age had been the basic reason for awarding

comparatively lower punishment of 3 years' imprisonment. This factor has

no  further  impelling  characteristics  which  would  justify  yet  further

reduction  of  the  punishment  than  that  awarded  by  the  Trial  Court.

Moreover, the third factor, of the respondent himself taking his father to

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hospital, carries with it the elements of pretence as also deception on the

part of the respondent, particularly when he falsely stated that the victim

sustained injury due to the fall. Therefore, all the aforementioned factors

could not have resulted in further reduction of the sentence as awarded

by the Trial Court.

19. The  High  Court  also  appears  to  have  omitted  to  consider  the

requirement  of  balancing  the  mitigating  and  aggravating  factors  while

dealing with the question of awarding just and adequate punishment. The

facts  and the  surrounding  factors  of  this  case make it  clear  that,  the

offending act in question had been of respondent assaulting his father

with a blunt object which resulted in the fracture of skull of the victim at

parietal region. Then, the respondent attempted to cover up the crime by

taking his  father  to  hospital  and suggesting as if  the victim sustained

injury  because of  fall  from the  roof.  Thus,  the  acts  and deeds  of  the

respondent had been of killing his own father and then, of furnishing false

information. The homicidal act of the respondent had, in fact,  been of

patricide; killing of one's own father. In such a case, there was no further

scope for leniency on the question of punishment than what had already

been shown by the Trial Court; and the High Court was not justified in

reducing the sentence to an abysmally inadequate period of less than 4

months. The observations of the High Court that no useful purpose would

be served by detention of the accused cannot be approved in this case

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for the reason that the objects of deterrence as also protection of society

are not lost with mere passage of time.

20. In the given set of  facts and circumstances, the observations in

Jinnat Mia (supra) on the powers of the High Court to review the entire

matter in appeal and to come to its own conclusion or that the practice of

this  Court  not  to  interfere on  questions  of  facts  except  in  exceptional

cases shall have no application to the present case, particularly when we

find that the High Court has erred in law and has not been justified in

reducing the sentence to a grossly inadequate level while ignoring the

relevant considerations.

21.    To sum up, after taking into account all the circumstances of this

case, we are of the considered view that the High Court had been in error

in  extending  undue sympathy  and in  awarding  the  punishment  of  the

rigorous imprisonment for the period already undergone i.e.,  3 months

and 21 days for the offence under Section 304 Part II IPC. In our view,

there was absolutely no reason for the High Court to interfere with the

punishment  awarded  by  the  Trial  Court,  being  that  of  rigorous

imprisonment for 3 years.  

22. For what has been discussed hereinabove, this appeal succeeds

and is allowed; the impugned judgment and order of the High Court dated

27.11.2012 is set aside and that of the Trial Court dated 06.01.1998 is

restored.  The  respondent  shall  surrender  before  the  Court  concerned

within a period of 4 weeks from today and shall undergo the remaining

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part  of  the  sentence.  In  case  he  fails  to  surrender  within  the  period

aforesaid,  the Trial  Court  will  take  necessary  steps to  ensure that  he

serves  out  the  remaining  part  of  sentence,  of  course,  after  due

adjustment of the period already undergone.  

...............................................J.        (ABHAY MANOHAR SAPRE)

      ..............................................J.        (DINESH MAHESHWARI)   1

New Delhi  Dated:   20th February, 2019.

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