Case BriefsSupreme Court

Supreme Court: Allowing the review petition in the 34-year-old road-rage case involving cricketer-turned-politician Navjot Singh Sidhu that resulted into the death of one 65-yer-old Gurnam Singh, the bench of AM Khanwilkar and Sanjay Kishan Kaul, JJ has imposed a sentence of one-year rigorous imprisonment on Sidhu in addition to the fine of Rs.1,000/- imposed in the order dated 15.05.2018.

In 1988, Sidhu got into a fight with the deceased over his right to way at a traffic light in Patiala. Sidhu had pulled the deceased out of his vehicle and inflicted fist blows. The incident eventually culminated in the death of Gurnam Singh. The Court, however, held that Sidhu had voluntarily caused hurt to Gurnam Singh punishable under Section 323 IPC.

While dealing with the review petition, the Court noticed that some material aspects which were required to be taken note of appear to have been somehow missed out at the stage of sentencing, such as the physical fitness of Sidhu as he was an international cricketer, who was tall and well built and aware of the force of a blow that even his hand would carry. The blow was not inflicted on a person identically physically placed but a 65-year-old person, more than double his age.

The Court observed that Sidhu cannot say that he did not know the effect of the blow or plead ignorance on this aspect.

“It is not as if someone has to remind him of the extent of the injury which could be caused by a blow inflicted by him. In the given circumstances, tempers may have been lost but then the consequences of the loss of temper must be borne.”

The Court went on to state that to some extent it had been indulgent in ultimately holding Sidhu guilty of an offence of simple hurt under Section 323 of the IPC.

Observing that the hand can also be a weapon by itself where say a boxer, a wrestler or a cricketer or an extremely physically fit person inflicts the same, the Court said that,

“When a 25-year-old man, who was an international cricketer, assaults a man more than twice his age and inflicts, even with his bare hands, a severe blow on victim’s head, the unintended consequence of harm would still be properly attributable to him as it was reasonably foreseeable. That it would cause the death of a person is another matter since the conviction is only under Section 323 of the IPC. Even though any harm might not be directly intended, some aggravated culpability must be attached if the person suffers a grievous hurt or dies as a result thereof.”

On the aspect of sentencing, the Court said that a disproportionately light punishment humiliates and frustrates a victim of crime when the offender goes unpunished or is let off with a relatively minor punishment as the system pays no attention to the injured’s feelings.

Noticing that indifference to the rights of the victim of crime is fast eroding the faith of the society in general and the victim of crime in particular in the criminal justice system, the Court observed,

“The society cannot long endure under serious threats and if the courts do not protect the injured, the injured would then resort to private vengeance and, therefore, 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.”

[Jaswinder Singh v. Navjot Singh Sidhu, 2022 SCC OnLine SC 652, decided on 19.05.2022]

Counsels

For Complainant: Senior Advocate Siddharth Luthra

For Sidhu: Senior Advocate Dr. Abhishek Manu Singhvi

Case BriefsSupreme Court

Supreme Court: In a case where a man had brutally raped and murdered a 7-year-old girl, the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari* and CT Ravikumar, JJ has reversed the concurrent findings of the Courts below and has commuted the death sentence into that of imprisonment for life, with the stipulation that the appellant shall not be entitled to premature release or remission before undergoing actual imprisonment for a period of 30 years.

The Court observed,

“The heinous nature of crime like that of present one, in brutal rape and murder of a seven-year-old girl child, definitely discloses aggravating circumstances, particularly when the manner of its commission shows depravity and shocks the conscience. But, at the same time, it is noticeable that the appellant has no criminal antecedents, comes from a very poor socio-economic background, has a family comprising of wife, children and aged father, and has unblemished jail conduct.”

The Trial Court and the High Court had sentenced the appellant to death for enticing a seven-year-old girl to accompany him on the pretext of picking lychee fruits; having thereafter committed rape upon the child; having caused her death; and having dumped the dead body near a bridge on the riverbank, after having dragged the dead body over a distance of one and one-quarter kilometres.

The Supreme Court, however, noticed that both the Trial Court as also the High Court have taken the abhorrent nature of crime alone to be the decisive factor for awarding death sentence in the present case.

The Trial Court convicted the appellant on 07.12.2016 and on the next day, proceeded to award the sentence. The sentencing order did not indicate if the appellant was extended reasonable opportunity to make out a case of mitigating circumstances by bringing relevant material on record. The sentencing order also failed to satisfy if the Trial Court consciously pondered over the mitigating factors before finding it to be a ‘rarest of rare’ case.

The Trial Court also observed that ‘if such heinous crime is committed by him, it is not justifiable to show any sort of mercy in the punishment.’

The High Court confirmed the order of the Trial Court, with a cursory observation that there were no substantial mitigating factors and the aggravating circumstances were aplenty, after making rather intense comments on the menace of rape and brutal murder of children as also on the society’s abhorrence of such crime.

In such circumstances, the Court observed that the approach of the Trial Court and High Court had been that the accused-appellant was about 33-34 years of age at the time of occurrence and was supposed to be sensible. The Supreme Court, hence, held that the impugned orders awarding and confirming death sentence could only be said to be of assumptive conclusions, where it has been assumed that death sentence has to be awarded because of the ghastly crime and its abhorrent nature.

Disagreeing with the concurrent findings of the Courts below, the Supreme Court held that,

“There is nothing on record to rule out the probability of reformation and rehabilitation of the appellant, in our view, it would be unsafe to treat this case as falling in ‘rarest of rare’ category.”

It observed that when the appellant is not shown to be a person having criminal antecedents and is appellant is not shown to be a person having criminal antecedents and is not a hardened criminal, it cannot be said that there is no probability of him being reformed and rehabilitated. His unblemished jail conduct and having a family of wife, children and aged father would also indicate towards the probability of his reformation.

It was, however, observed that even when the present case is taken to be not falling in the category of ‘rarest of rare’ so as to require termination of the life of the appellant yet, the impact of the offences in question on the conscience of the society as a whole cannot be ignored. Hence, commutation of death sentence to life imprisonment without application of the provisions of premature release/remission before mandatory actual imprisonment, was found to be just and reasonable.

The Court, hence, awarded the punishment of imprisonment for life to the appellant for the offence under Section 302 IPC while providing for actual imprisonment for a minimum period of 30 years. All the substantive sentences to run concurrently.

[Pappu v. State of Uttar Pradesh, 2022 SCC OnLine SC 176, decided on 09.02.22]

*Judgment by: Justice Dinesh Maheshwari

Case BriefsSupreme Court

Supreme Court: In a case where it was argued before the bench of Dr. DY Chandrachud* and Surya Kant, JJ that in case the trial is conducted by the ordinary criminal court and not a court-martial under the Army Act, the accused would not be able to avail the benefit of being awarded a lower punishment under the Army Act, 1950, the Court has held,

“If that was the intent of the legislature – that is to protect persons subject to the Army Act by awarding them lesser punishment even for serious offences – then the Act would not have provided for concurrent jurisdiction of court-martial and ordinary criminal courts at all. Although the Army Act is special law compared to the IPC, if the statute in its text does not make any qualifications or exceptions to the general law, it would be impermissible for the court to read such qualifications in the Act.”

Section 69 of the Army Act

Subject to the provisions of section 70, any person subject to this Act who at any place in or beyond India, commits any civil offence, shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be 39 liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,

(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.

Jurisdiction of Criminal Court versus Court Martial

Section 69 does not ipso jure oust the jurisdiction of the ordinary criminal court. Where there exists concurrent jurisdiction in the court-martial and in the ordinary criminal court, primarily the discretion of conducting the court-martial in preference to a trial by the ordinary criminal court is entrusted to the designated officer under Section 125. The designated officer has been conferred with the discretion “to decide before which court the proceedings shall be instituted”. Moreover, Section 125 has a conjunctive requirement which is amplified by the expression “and, if that officer decides that they should be instituted before a court-martial”. Thus, the conjunctive requirement under Section 125 is that the competent officer has the discretion to decide before which court the proceedings shall be instituted and if the officer exercises that discretion to institute proceedings before a court-martial, then the officer will direct that the accused be detained in military custody. Section 125, in other words, not only recognizes that an element of discretion has been vested in the designated officer, but it also postulates that the designated officer should have decided that the proceedings be instituted by the court-martial in which event the court-martial would take place.

Is a person tried and convicted by a Court Martial at an advantageous position than a person tried and convicted by a Criminal Court owing to the lower punishment under the Army Act?

Sub-section (a) of Section 69 states if a person is convicted of a ‘civil offence’ which is punishable with death or transportation under the law in force, then he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the aforesaid law and such less punishment as is in this Act mentioned. In contrast with sub-Section (a), sub-Section (b) provides that in all other offences, the person convicted shall be liable to suffer the punishment assigned under the laws in force or imprisonment for a term which may extend to seven years, or such less punishment as provided in the Act.

The words of the statute clearly indicate that the legislature provided different punishments for serious offences which under law are punishable with death or life imprisonment, and for all other offences. In case of the former, sub-Section (a) of Section 69 provides that the court-martial may convict him and punish him with death or life imprisonment. In addition to this, the court-martial may also give a lesser punishment under the Army Act (such as cashiering, dismissal from service, etc., provided under Section 71). The use of the word “and” in sub-Section (a) clarifies the intent of the legislature, which is to ensure that the Army authorities have sufficient discretion to grant a punishment for serious offences, over and beyond what is permissible under Penal Code. This however, does not imply that a person who is otherwise liable for death or life imprisonment can be granted a lesser punishment under the Army Act.

In contrast, sub-Section (b) of Section 69 uses the term “or” to indicate that for offences that under the Penal Code or any other law are of less severity, the Army authorities may order a lesser punishment.

If the argument that in case the trial is conducted by the ordinary criminal court and not a court-martial under the Army Act, the accused would not be able to avail the benefit of being awarded a lower punishment under the Army Act, is accepted, it would imply that a person who is convicted and punished by a Court-martial under the Army Act will be in an advantageous position than a person who, though subject to the Army Act, has been convicted by an ordinary criminal court.

[State of Sikkim v. Jasbir Singh, 2022 SCC OnLine SC 128, decided on 01.02.2022[


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For State: Vivek Kohli, Advocate General and Aman Lekhi, Additional Solicitor General

For Accused: Senior Advocate Pradeep Kumar Dey

Case BriefsSupreme Court

Supreme Court: In a case where a 65-year-old man committed aggravated penetrative sexual assault on his 4-year-old neighbor, the bench of MR Shah* and BV Nagarathna, JJ has observed that any act of sexual assault or sexual harassment to the children should be viewed very seriously and all such offences of sexual assault, sexual harassment on the children have to be dealt with in a stringent manner and no leniency should be shown to a person who has committed the offence under the POCSO Act.

“Children are precious human resources of our country; they are the country’s future. The hope of tomorrow rests on them. But unfortunately, in our country, a girl child is in a very vulnerable position. There are different modes of her exploitation, including sexual assault and/or sexual abuse. In our   view, exploitation of children in such a manner is a crime against humanity and the society. Therefore, the children and more particularly the girl child deserve full protection and need greater care and protection whether in the urban or rural areas.”

The Court observed that by awarding a suitable punishment commensurate with the act of sexual assault, sexual harassment, a message must be conveyed to the society at large that, if anybody commits any offence under the POCSO Act of sexual assault, sexual harassment or use of children for pornographic purposes they shall be punished suitably and no leniency shall be shown to them.

“Cases of sexual assault or sexual harassment on the children are instances of perverse lust for sex where even innocent children are not spared in pursuit of such debased sexual pleasure.”

In the case at hand the accused was aged approximately 65 year old man took advantage of  the  absence of the parents of his 4-year-old neighbor, when her mother went to fetch water and her father had gone to work, and committed aggravated penetrative sexual assault on her. The Court observed that this act demonstrated the mental state or mindset of the accused.

“As a neighbour, in fact, it was the duty of the accused to protect the victim girl when alone rather   than exploiting her innocence and vulnerability. The victim was barely a four years girl. The accused   –   appellant was the neighbour. The accused instead of showing fatherly love, affection and protection to the child against the evils of the society, rather made her the victim of lust.”

The Court observed that it is a case where trust has been betrayed and social values are impaired. Therefore, the Court was of the opinion that the accused as such does not deserve any sympathy and/or any leniency. However, the punishment provided for the offence under Section 6, at the relevant time was ten years RI and which may extend to imprisonment for life. Considering that now the accused is aged 70-75 years of age and is suffering from Tuberculosis (TB), the Court was of the opinion that if the life sentence is converted to fifteen years RI and the fine imposed by the Trial Court confirmed by the High Court to be maintained, it can be said to be an adequate punishment commensurate with the offence committed by the accused.

[Nawabuddin v. State of Uttarakhand, 2022 SCC OnLine SC 161, decided on 08.02.2022]


*Judgment by: Justice MR Shah


Counsels

For accused: Advocate Saju Jacob

For State: Advocate Krishnam Mishara

Case BriefsSupreme Court

Supreme Court: In a case where a Pakistan national was convicted under the NDPS Act by two Courts in two different trials and it was argued that the sentences should run concurrently, the bench of MR Shah* and BV Nagarathna, JJ has held that the offences under the NDPS Act are very serious in nature and against the society at large, hence, no discretion under Section 427 CrPC shall be exercised in favour of such accused who is indulging into the offence under the NDPS .

Factual background

In the case that dates back to 1999, the appellant – accused was convicted by two different courts in two different trials for the offences with respect to the different transactions.

  1. Amritsar Court: Sentenced to undergo 12 years RI for the offence under Section 23 and Section 21 of the NDPS Act by Amritsar Court for having in possession of 4 kg of heroin.
  2. Delhi Court: Sentenced to undergo 15 years RI for the offence under Section 29 read with Section 21(c) of the NDPS for having 750 grams of heroin.

The judgments in both the cases were delivered one after another and in the subsequent judgment by the Delhi court there is no specific order passed stating that the sentences have to run concurrently.

It was argued that the conduct of the appellant, who was 30 years of age when he was convicted and presently, he is 52 years old, in jail is good and there is no adverse remark made against him by the Jail Superintendent. Hence, the two sentences which the appellant is now undergoing, may be held to run concurrently under Section 427 Cr.P.C.

Analysis

Section 427 of Cr.PC – Explained

Under Section 427 of Cr.PC, when a person who is already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been   previously sentenced.  Meaning thereby the sentences in both the conviction shall run consecutively.

However, there is an exception to that, namely unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.

Further, as per Sub-section (2) of Section 427 of Cr.PC, when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. Therefore, in aforesaid two cases only the subsequent sentence shall run concurrently with previous sentence. Otherwise the subsequent sentence shall run consecutively and the imprisonment in subsequent sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced.

Principles laid down in a series of Supreme Court Rulings

(i) If a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced;

(ii) ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence;

(iii) the general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgments, concurrent sentence cannot be awarded under Section 427 of Cr.PC;

(iv) under Section 427 (1) of Cr.PC the court has the power and discretion to issue a direction that all the   subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence.

Discretion under Section 427 CrPC

Even otherwise as observed hereinabove under Section 427 (1) of Cr.PC, the Court has the power and discretion to issue a direction that the subsequent sentence to run concurrently with the previous sentence in that case also, the discretion has to be exercised judiciously depending upon the nature of offence or the offences committed.

“No leniency should be shown to an accused who is found to be guilty for the offence under the NDPS Act. Those persons who are dealing in narcotic drugs are instruments in causing death or in inflicting death blow to a number of innocent young victims who are vulnerable. Such accused causes deleterious effects and deadly impact on the society. They are hazard to the society. Such organized activities of clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have a deadly impact on the society as a whole.”

Therefore, it was noticed that while awarding the sentence or punishment in case of NDPS Act, the interest of the society as a whole is required to be taken into consideration and even while applying discretion under Section 427 of Cr.PC, the discretion shall not be in favour of the accused who is found to be indulging in illegal trafficking in the narcotic drugs and psychotropic substances.

Hence, even while exercising discretion under Section 427 of Cr.PC to run subsequent sentence concurrently with the previous sentence, the discretion is to be exercised judiciously and depending upon the offence/offences committed.

Ruling on facts

The Court outrightly rejected the submission of the appellant – accused that his subsequent sentence to run concurrently with the previous sentence as,

  • the appellant has been convicted with respect to two different transactions, there are different crime numbers and the cases have been decided by the different judgments.
  • there is no specific order or direction issued by the court while imposing the subsequent sentence that the subsequent sentence to run concurrently with the previous sentence.

[Mohd. Zahid v. State through NCB, 2021 SCC OnLine SC 1183, decided on 07.12.2021]


Counsels

For appellant: Advocate Sangeeta Kumar

For State: Advocate Akaanksha Kaul


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: Explaining the principles of sentencing policy, the 3-judge bench of NV Ramana, CJ and Surya Kant* and AS Bopanna, JJ has held that while there are practical difficulties in achieving absolute consistency in regards to sentencing, the awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence.

Principle of proportionality

Explaining the principle of proportionality, the Court said that this principle of commensurate sentencing treats offenders as agents capable of evaluating their own illegal conduct and the social censure associated with it, which is communicated to them by imposing a proportionate sentence. The exercise for assessing ‘proportionality’ is thus dependent upon the gravity of the offence which is determined according to –

(a) mischief caused or risk involved in the offense;

(b) the overall conduct of the offender and;

(c) motives ascribed to the felon.

The Court also stressed upon the guarantee of even-handedness before the law(s), as enshrined in Article 14 of the Constitution and said that the equality of treatment so as to eliminate discriminatory practices in the award of sentencing, is integral to the canons of proportionality.

It, however, clarified that,

“… we cannot be incognizant of the fact that there are practical difficulties in achieving absolute consistency in regards to sentencing. It must be candidly acknowledged that there is an element of discretion present while adjudicating the issue of sentence, however, the same cannot be exercised in an unprincipled manner. This Court has explicitly ruled out the practice of awarding disproportionate sentences, especially those that showcase undue leniency, for it would undermine the public confidence in efficacy of law.”

What should the Courts do? 

Noticing that the sentencing policy keeps pace with changing time, the Court said that the primary emphasis while deciding the quantum of sentence should lie on the gravity or penal value of the offense. However, other guiding elements of rehabilitative justice model, including, appreciation of grounds for mitigation of sentence also deserve to be duly considered within the permissible limits of judicial discretion.

“The awarding of just and proportionate sentence remains the solemn duty of the Courts and they should not be swayed by nonrelevant factors while deciding the quantum of sentence. Naturally, what factors should be considered as ‘relevant’ or ‘non-relevant’ will depend on the facts and circumstances of each case, and no straight jacket formula can be laid down for the same.”

[Surinder Singh v. State, 2021 SCC OnLine SC 1135, decided on 26.11.2021]


*Judgment by: Justice Surya Kant

Know Thy Judge | Justice Surya Kant


Also read:

Explained| Is ‘motive’ an indispensable ingredient for proving the charge of attempt to murder?

Case BriefsHigh Courts

Bombay High Court: Pained to note the permitting of questions by the Lower Court which crossed all lines of dignity of a woman, Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., while denying reducing the sentence of the 3 accused who raped a woman, expressed regarding sentencing policy that,

“…object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.”

“Sentencing Policy adopted by the Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent”

Prosecutrix was taken to various places and then to a secluded place where all 3 accused appellants committed rape on her one after the other and later she was left near her residence. In the meantime, police was informed by the relatives of prosecutrix’s who were searching for her.

FIR was lodged under various sections including Section 376(2)(g) of the Penal Code, 1860. All the accused were arrested and the Indica Car in which the prosecutrix was taken to various places was also seized.

What transpired the above-stated facts?

Prosecutrix while waiting for a bus to reach a destination was approached by a maroon coloured Indica car and the driver offered the prosecutrix to drop her. PW-1 was aware that some vehicles operating for the Call Centers were used to take other passengers and under the said impression in light of getting late she decided to go in that car.

On the way accused 1 told the prosecutrix that there would be 8-10 more people who would commit rape on her. The accused even bought beer and some food and consumed the same.

Further, accused 1 asked PW-1 to make a call to her mother and inform her that she would be late so that nobody starts searching for her. After that, she was taken to a secluded place where she was raped by one after the other and dropped around 12.45 near her residence. On reaching her place she immediately called her mother and after that, her aunt and two friends came to her flat and then the police also arrived.

She was taken to a hospital for medical examination, and she even identified all the accused in the Court.

Bench noted that defence tried to develop a theory of consensual sex and kept giving certain suggestions which this Court disapproved of.

Court stated that it was pained because of the passive approach adopted by the Judged in allowing such questions. The said questions crossed all lines of basic dignity.

“Under the garb of giving suggestions. Graphic details of the act were put to the witness.”

Under Section 152 of the Indian Evidence Act, the Court was duty-bound to forbid any question which appeared to be intended to insult or annoy or which though proper in itself appeared to the Court needlessly offensive in form. Section 151 of the Indian Evidence Act also empowers the Court to forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Noting the above, lower Court Judge failed in his duty in not protecting the dignity of PW-1 and not exercising his powers under Sections 151 and 152 of the Indian Evidence Act.

High Court added that it is necessary to remind trial Courts that under Section 148 of the Indian Evidence Act, it is their duty to decide when the witness shall be compelled to answer.

PW-1 had denied the theory of consensual sex and, therefore, all further suggestions in respect of the actual act of intercourse were totally unnecessary.

Special Public Prosecutors

“Not happy with the silence kept by the Special Public Prosecutor by not objecting to the suggestions.”

Court expressed that it is necessary to remind the prosecutors that under the scheme of CrPC, they are in-charge of the conduct of the prosecution. They are supposed to perform their duties responsibly and they are supposed to render sincere assistance to the Court. It is their responsibility to protect the interest of the victims and the witnesses before the Court.

“Prosecutors cannot only concentrate on securing conviction, but the conduct of the proper trial is also their duty.”

Bench held that the circumstances of the case sufficiently prove the guilt of the accused.

Medical evidence had also shown that PW-1 was subjected to forceful sexual intercourse.

Prosecution had established its case against all the accused beyond all reasonable doubt.

While concluding, Court stated that in the present matter, PW-1 innocently took the lift from accused 1. Accused 1 & 2 and accused 3 who joined them subsequently, took advantage of her helpless condition. They committed rape on her. She was threatened. PW-1 has suffered extreme trauma.

Court upheld the decision of the trial court. [Ranjeet Shahaji Gade v. State of Maharashtra, 2021 SCC OnLine Bom 3061, decided on 28-9-2021]


Advocates before the Court:

Ms Anjali Patil, Advocate a/w. Mr Nauman Shaikh, for the Appellant in Criminal Appeal No. 310/2012.

Mr P.G. Sarda, Advocate for the Appellants in Criminal Appeal No.184/2012.

Ms S.V. Sonawane, APP for the Respondent–State.

Case BriefsSupreme Court

Supreme Court: In a case where a man was convicted for killing his wife on the suspicion of her infidelity and was sentenced to undergo rigorous imprisonment for life, the bench of L. Nageswara Rao and BR Gavai, JJ has refused to go into the question of propriety of specifying rigorous imprisonment while imposing life sentence and has held that imprisonment for life is equivalent to rigorous imprisonment for life.

While there are several judicial precedents where the Supreme Court has held that imprisonment for life has been regarded as equivalent to rigorous imprisonment for life, the verdict in Naib Singh v. State of Punjab, (1983) 2 SCC 454 makes this position amply clear.

In the aforesaid case, the Petitioner was originally sentenced to death for committing an offence of murder under Section 302 IPC. Later, the death sentence was commuted to imprisonment for life by the Government of Punjab. After having undergone sentence of 22 years, Naib Singh filed a Writ Petition under Article 32 of the Constitution of India challenging his continued detention. One of the points argued by the Petitioner relates to sentence of imprisonment for life not to be equated to rigorous imprisonment for life.

The Court, in the said judgment, held,

“… in view of the authoritative pronouncements made by the Privy Council and this Court in Kishori Lal case [Kishori Lal v. Emperor, AIR 1945 PC 64 : 72 IA 1 : 219 IC 350] and Gopal Godse case [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 3 SCR 440 : (1962) 1 SCJ 423 : (1961) 1 Cri LJ 736] respectively, it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life.”

[Md. Alfaz Ali v. State of Assam, 2021 SCC OnLine SC 719, order dated 14.09.2021]


For Petitioner: Advocate Ajay Marwah

For State: Advocate Debojit Borkakati

Case BriefsHigh Courts

Punjab and Haryana High Court: Sudhir Mittal, J., while addressing an issue with regard to the dishonour of cheque held that,

“Offence under Section 138 NI Act is quasi-criminal in nature and it is not an offence against society, hence an accused can escape punishment by settling with the complainant.”

Revision petitioner issued a cheque to the complainant–respondent 1 which was dishonored. 

On the dishonour of cheque, the complainant sent a notice demanding payment of the cheque amount but no response was received.

In view of the above, he filed a complaint under Section 138 of the Negotiable Instruments Act, 1881.

Revision petitioner was acquitted and later he filed an appeal against the said Judgment and the case was remanded for a fresh decision.

Appeal against the aforementioned judgment of conviction was dismissed which lead to the filing of the present revision petition.

In the present appeal, the revision petitioner prayed for a reduction in the quantum of sentence.

Question for adjudication is — Whether the petitioner is entitled to reduction of his sentence?

When can a Revisional Court exercise its powers to alter the nature or the extent or the nature and extent of the sentence?

Do sympathetic consideration have any role to play in the matter of sentencing?

Sentencing is primarily a matter of discretion as there are no statutory provisions governing the matter.

Bench citing the decision of the Supreme Court in State of Himachal Pardesh v. Nirmala Devi, 2017 (2) RCR (Criminal) 613, stated that the sentence imposed must be commensurate with the crime committed and in accordance with jurisprudential justification such as deterrence, retribution or restoration. Mitigating and aggravating circumstances, both should be kept in mind.

Court added that the provisions inserted for inculcating greater faith in banking transactions needed more teeth so that cases involving dishonour of cheques reduced.

Therefore, it is apparent that deterrence and restoration are the principles to be kept in mind for sentencing.

In the present matter, the order of sentence for 2 years has been imposed on the grounds that the offence is a socio-economic offence.

Award of compensation is also justified and reflects a judicious exercise of mind.

In view of the above, the revision petition was dismissed and maintained. [Rakesh Kumar v. Jasbir Singh, 2020 SCC OnLine P&H 1197, decided on 11-08-2020]


Also Read:

Dishonour of Cheque [S. 138 NI Act and allied sections]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of S.S. Shinde and M.S. Karnik, JJ., partly allowed an appeal by reducing the sentence of the accused in light of the sentencing policy.

In the present matter, the lower Court’s decision was challenged.

Appellant faced trial for alleged commission of the offences punishable under Sections 307 along with 341 of the Penal Code, 1860.

Prosecution Version

Victim used to reside with her brothers at her maternal uncle’s house and worked as a babysitter. Appellant-Accused and the victim were residing in the same area and eventually from acquaintance they turned into lovers.

Victim’s uncle objected the affair, after which the victim stopped meeting the appellant-accused. Later, she expressed her clear refusal to continue the relationship.

On victim’s refusal, appellant-accused kept threatening her and on one occasion he had beaten her up too as he wanted her to marry him.

Day of the incident

Appellant- accused suddenly entered the rickshaw in which the victim was seated. The victim was pulled out of the rickshaw. The appellant-accused threatened the rickshaw driver and forced him to leave. The appellant-accused assaulted the victim with his fists and pulled her to the footpath.

On her refusal, the appellant-accused took out a knife from the right side pocket of his pant and inflicted injuries on her neck.

At that time, one police vehicle arrived. The appellant-accused ran away from the spot. The victim was taken to the hospital and on the basis of her statement, the offences under Section 307 and 341 of the IPC came to be registered.

Submissions

Appellant-accused’s counsel submitted that the cardinal principle of sentencing policy is that the sentence imposed on the offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence.

APP on behalf of the respondent-State submitted that the sentence imposed by the trial Court in the facts and circumstances of this case cannot be said to be unjustified. In support of his submission that the appellant-accused deserves no leniency, he relied on the Supreme Court’s decision in State of M.P. v. Kashiram, (2009) 4 SCC 26.

Decision

In view of the facts and circumstances of the case, bench stated that it would be profitable to refer to the decision of the Supreme Court in State of Punjab v. Bawa Singh, (2015) 3 SCC 441, in the context of duty of the Court to award proper sentence, wherein the following was stated:

“16. ………… undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. 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.”

In the present case, Court opined that the sentence imposed by the trial court required to be reduced.

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.

Court stated that in view of the dicta of the Supreme Court, “we are conscious of the social impact of the crime against women cannot be lost sight of and per se require exemplary treatment.”

Hence, considering the totality of circumstances, the imposition of sentence of imprisonment for life by the trial court appears to be harsh and hence the same needs to be reduced by maintaining the conviction.

Therefore, sentence of 10 years would meet the ends of justice. [Arumugum Arundatiyar v. State of Maharashtra, 2020 SCC OnLine Bom 844, decided on 05-08-2020]

Case BriefsSupreme Court

Supreme Court: Upholding the constitutional validity of Rule 8(2)(i) of the Rajasthan Prisons (Shortening of Sentences) Rules, 2006, the bench of Arun Mishra and Navin Sinha, JJ said,

“Manifestly remission not being a matter of right, much less upon completion of 14 years of custody, but subject to rules framed in that regard, including complete denial of the same in specified circumstances, as a matter of State policy, nothing prevents the State from imposing restrictions  in the manner done by Rule 8(2)(i) to consider claims for remission.”

Background

The Court was hearing a batch of appeals filed by persons convicted under Section 302 and other provisions of the Penal Code in different Sessions trials arising from separate unconnected incidents   and sentenced to imprisonment for life. They had contended that they had served more than 14 years in custody but their cases were not placed by the Jail Authorities before the State Advisory Boards for shortening of their sentences and premature release. The had hence, challenged the constitutionality of the impugned Rule for putting a fetter on consideration of their cases till they earned a minimum of four years of remission after completing 14 years of actual imprisonment   excluding remission, as being contrary to Section 433­A Cr.P.C.

Rajasthan High Court’s verdict

The Rules, 2006 were framed by the State Government in exercise of powers under Clause (2) & (5) of Section 59 (1) of the Prisons Act, 1894. The Rajasthan High Court held that the Rules not having been placed before the Legislature of the State as required by Section 59(2) of the Act did not acquire statutory force. Furthermore, the Rules could not have been framed contrary to Section 433­A CrPC. It, hence, struck down the latter part of Rule 8(2)(i) requiring a minimum of four years remission after completion of 14 years in custody on both counts.

SC on Section 59(2) of the Prisons Act

In appeal, the Court held that that

“the plain language of Section 59(2) makes it manifest that there is no requirement for laying of the Rules before the Legislature prior to promulgation. No time limit for laying has been provided. As rightly urged, the use of words “as soon as” coupled with the absence of any consequence for not laying makes the provision directory and not mandatory.”

SC on Section 433-A CrPC

Section 433-­A Cr.P.C. provides that remission or commutation shall not enable release of the convict from prison unless the person had served at least 14 years of imprisonment. It, therefore, fixes a minimum period before which remission could not be considered.

“Any rule that may provide to consider remission before 14 years would obviously be bad in view of the statutory provision contained in the Code.”

[State of Rajasthan v. Mukesh Sharma, 2019 SCC OnLine SC 572, decided on 22.04.2019]

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of NV Ramana, MM Shantanagoudar and Indira Banerjee, JJ held

“it needs to be understood that prisoners tend to have increased affinity to mental illness. Moreover, due to legal constraints on the recognition of broad­spectrum mental illness within the Criminal Justice System, prisons inevitably become home for a greater number of mentally­ill prisoners of various degrees. There is no overlooking of the fact that the realities within the prison walls may well compound and complicate these problems.”

It said that the aspiration of the Mental Healthcare Act, 2017 was to provide mental health care facility for those who are in need including prisoners. The State Governments are obliged under Section 103 of the Act to setup a mental health establishment in the medical wing of at least one prison in each State and Union Territory, and prisoners with mental illness may ordinarily be referred to andcared for in the said mental health establishment.

The Court was hearing a case of a death row convict suffering from post-conviction mental illness. He is on death row since almost 17 years for rape and murder of 2 young girls. The Court was, hence, called upon to decide

• How culpability be assessed for sentencing those with mental illness?
• Is treatment better suited than punishment?\

The Court noticed that there are no set disorders/disabilities for evaluating the ‘severe mental illness’, however a ‘test of severity’ can be a guiding factor for recognizing those mental illness which qualify for an exemption. Therefore,

“the test envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that a medical professional would objectively consider the illness to be most serious so that he cannot understand or comprehend the nature and purpose behind the imposition of such punishment. These disorders generally include schizophrenia, other serious psychotic disorders, and dissociative disorders­with schizophrenia.”

Test of severity of post-conviction mental disability

  • The post­conviction severe mental illness will be a mitigating factor that the appellate Court, in appropriate cases, needs to consider while sentencing an accused to death penalty.
  • The assessment of such disability should be conducted by a multi­disciplinary team of qualified professionals (experienced medical practitioners, criminologists etc), including professional with expertise in accused’s particular mental illness.
  • The burden is on the accused to prove by a preponderance of clear evidence that he is suffering with severe mental illness. The accused has to demonstrate active, residual or prodromal symptoms, that the severe mental disability was manifesting.
  • The State may offer evidence to rebut such claim.
  • Court in appropriate cases could setup a panel to submit an expert report.
  • ‘Test of severity’ envisaged herein predicates that the offender needs to have a severe mental illness or disability, which simply means that objectively the illness needs to be most serious that the accused cannot understand or comprehend the nature and purpose behind the imposition of such punishment.

Mitigation of sentence in case at hand

The Court noticed that the present accused has been reeling under bouts of some form of mental irritability since 1994, as apparent from the records placed before us. Moreover, he has suffered long incarceration as well as a death row convict. It is this state of ‘accused x’ that obliges the State to act as parens patriae. In this state ‘accused x’ cannot be ignored and left to rot away, rather, he requires care and treatment. The Court, hence, held,

“the petition is allowed to the extent that the sentence of death awarded to the Petitioner is commuted to imprisonment for the remainder of his life sans any right to remission.”

[‘X’ v. State of Maharashtra, 2019 SCC OnLine SC 543, decided on 12.04.2018]

Case BriefsSupreme Court

Supreme Court: In the case where a 4-year old girl was raped and battered to death by the petitioner, the bench of Dipak Misra, R.F. Nariman and U.U. Lalit, JJ refused to review the death sentence imposed by the bench in Vasanta Sampat Dupare v. State of Maharashtra, (2015) 1 SCC 253. The petitioner had allegedly lured the victim by giving her chocolates, kidnapped and raped her and had then caused crushing injuries to her with the help of stones weighing about 8.5 kg and 7.5 kg.

The review was sought on the grounds that after the Court awarded him death sentence via judgment dated 26.11.2015, the petitioner has completed Bachelors Preparatory Programme offered by the Indira Gandhi National Open University enabling him to prepare for Bachelor level study and that he has also completed the Gandhi Vichar Pariksha and had participated in drawing competition organized sometime in January 2016. It was also asserted that the jail record of the petitioner is without any blemish.

Rejecting the contention, the Court said that the aggravating circumstances namely the extreme depravity and the barbaric manner in which the crime was committed and the fact that the victim was a helpless girl of four years clearly outweigh the mitigating circumstances now brought on record. Hence, it was held that no case was made out to take a different view in the matter. [Vasanta Sampat Dupare v. State of Maharashtra, 2017 SCC OnLine SC 524, decided on 03.05.2017]

Case BriefsSupreme Court

Supreme Court: In the case where death penalty was sought for a man who allegedly set his 7-month pregnant wife on fire by pouring kerosene oil and also threw their 3-year-old son on the burning body of the deceased, the bench of P.C. Ghose and R.F. Nariman, JJ refused to award death penalty and held that confinement till natural life of the accused shall fulfill the requisite criteria of punishment in peculiar facts and circumstances of the case.

In the present case, the medical evidence had proved that the deceased met an unnatural death. Considering the fact that there is no other eye-witness to the incident as the accused and the deceased were alone at the house at the time of commission of offence, the Court noticed that the failure on the part of the accused to explain how his pregnant wife and their minor child met with unnatural death due to burn injuries sustained at their house leads to an inference which goes against the accused. The Court also took note of the the dying declarations of the deceased with consistent allegations about demand of dowry and modus operandi of the offence which resulted into the death of the declarant and her minor child and held that it is evident that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are complete and the conclusion of the guilt is fully established.

However, based on the recommendation of the Law Commission of India in the Report Number 262 where the abolition of death penalty for all the crimes other than terrorism related offences and waging war (offences affecting National Security) was recommended, the Court said that capital punishment has become a distinctive feature of death penalty apparatus in India which somehow breaches the reformative theory of punishment under criminal law and hence, refused to award the same in the peculiar facts and circumstances of the present case. [State of Maharashtra v. Nisar Ramzan Sayyed, 2017 SCC OnLine SC 356, decided on 07.04.2017]

 

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dipak Misra, R. Banumathi and Ashok Bhushan, JJ, while considering the affidavits filed to show the mitigating circumstances by the 4 accused persons in the appeal against the capital punishment in the Nirbhaya Case, noticed that the affidavit filed by the accused Mukesh does not cover many aspects, namely, socio-economic background, criminal antecedents, family particulars, personal habits, education, vocational skills, physical health and his conduct in the prison. It was argued by M.L. Sharma, appearing for Mukesh that the same has not been submitted by the Superintendent of Jail.

The Court, hence, stating that the Superintendent of Jail should have filed the report with regard to the conduct of the accused persons since they are in custody for almost four years as that would have thrown light on their conduct, directed that the report be filed by the Superintendent of Jail in a sealed cover in the Court on the next date of hearing i.e. 20.03.2017.

On 03.02.2017, the Court had agreed to hear the appeal against the capital punishment imposed on the accused persons in the Nirbhaya case and had noticed that there are two modes of dealing the matter at hand, one is to remand the matter and the other is to direct the accused persons to produce necessary data and advance the contention on the question of sentence. However, considering the nature of the case, the bench decided to go with the second mode. [Mukesh v. State for NCT of Delhi, 2017 SCC OnLine SC 213, order dated 06.03.2017]

 

Case BriefsSupreme Court

Supreme Court: In the case where the refusal to marriage proposal by a girl resulted into a house trespass by the accused carrying an acid bottle and pouring it over the head of the girl and the Hyderabad High Court had reduced the sentence of one year imposed by the Trail Court to the imprisonment already undergone by the accused i.e. 1 month,  the Court said that when a substantive sentence of thirty days is imposed, in the crime of present nature, that is, acid attack on a young girl, the sense of justice is not only ostracized, but also is unceremoniously sent to “Vanaprastha”.

The Court said that the case at hand is an example of uncivilized and heartless crime committed by the accused. It is completely unacceptable that concept of leniency can be conceived of in such a crime. A crime of this nature does not deserve any kind of clemency as it is individually as well as collectively intolerable. When there is medical evidence that there was an acid attack on the young girl and the circumstances having brought home by cogent evidence and the conviction is given the stamp of approval, there was no justification to reduce the sentence to the period already undergone. The bench said that it unfathomable whether the High Court has been guided by some unknown notion of mercy absolutely ignoring the plight and the pain of the victim; a young girl who had sustained an acid attack, a horrendous assault on the physical autonomy of an individual that gets more accentuated when the victim is a young woman or remaining oblivious of the precedents relating to sentence or for that matter, not careful about the expectation of the collective from the court, for the society at large eagerly waits for justice to be done in accordance with law.

Apart from setting aside the order of the High Court and restoring the sentence imposed by the Trial Court, the Court directed the accused to pay a compensation of Rs.50,000/- and the State to pay a compensation of Rs. 3 lakhs. It was further directed that if the accused fails to pay the compensation amount within six months, he shall suffer further rigorous imprisonment of six months, in addition to what has been imposed by the trial court. [Ravad Sasikala v. State of Andhra Pradesh, 2017 SCC OnLine SC 175, decided on 27.02.2017]

Case BriefsSupreme Court

Supreme Court: In the review petition seeking modification of sentence awarded to  Sushil Ansal and Gopal Ansal, convicted in the Uphaar Tragedy, the Court refused to reduce the sentence of Gopal Ansal but reduced Sushil Ansal’s sentence of imprisonment to the period undergone owing to the old age and the fact that of the one year period imposed by the Delhi High Court, he has already undergone around nine months including remission. Both will, however, be paying the fine of Rs. 30 Crores each.

Justice Ranjan Gogoi and Kurian Joseph, JJ said that having regard to the fact that the High Court and this Court, in appeal, had limited the imprisonment to one year, the punishment which would serve deterrence and public purpose by both imprisonment and exemplary fine, would be an appropriate punishment in a case like this. They were of the opinion that imposition of expiatory fine in addition to incarceration would serve the penalogical purpose of deterrence having regard also to recidivism.

However, A.K. Goel, J on the other hand said that there is neither any illegality nor any impropriety warranting review of said order passed by this Court. He said that Order of the Court has to be seen as a whole and cannot be split into different sentences. The operative part of the order shows that the Court has tried to balance the interest of justice and while holding that sentence was required to be enhanced, it was added that in lieu of additional period of enhanced sentence, substantial amount of fine was required to be imposed and the fine was to be utilized for setting up of or upgrading the trauma centres of hospitals managed by the Government of Delhi.

On 13.06.1997, there was a fire in Uphaar Cinema, Delhi wherein 59 persons lost their life and about 100 persons were injured. On charge of criminal negligence, apart from others, Sushil Ansal the licencee for running the cinema and his brother Gopal Ansal who was in fact conducting the business of cinema, were convicted under Sections 304-A, 337, 338 read with Section 36, IPC. The Trial Court sentenced them to undergo imprisonment upto two years which was reduced by the High Court to one year. [Association of Victims of Uphaar Tragedy v. Sushil Ansal, 2017 SCC OnLine SC 108, decided on 09.02.2017]

Supreme Court

Supreme Court: Showing immense anguish over the disreputable record of road accidents in India, the bench of Dipak Misra and P.C. Pant, JJ asked the lawmakers to scrutinize, re-look and re-visit the sentencing policy in Section 304A IPC.

In the present case, the 2 people had died as an outcome of the rash and negligent driving of a motor vehicle by the respondent. The Punjab and Haryana High Court had reduced the 1 year imprisonment to 24 days i.e. the period already undergone during the trial upon payment of compensation by the respondent. Terming this reduction of sentence to be a mockery of justice, the Court held that the said decision by the High Court was taken absolutely in the realm of misplaced sympathy and that such a crime blights not only the lives of the victims but of many others around them and ultimately shatters the faith of the public in judicial system. Hence, it was held that the one year imprisonment awarded by the Trial Court should be reduced to 6 months and that the respondent be taken into custody forthwith to suffer the remaining period of sentence.

Quoting the words of Sophocles that “Law can never be enforced unless fear supports them”, the Court said that the non-challan drivers feel that they are the “Emperors of all they survey” and that in such cases deterrence is an imperative necessity. Stating that life to the poor or the impecunious is as worth living for as it is to the rich and the luxuriously temperamental, it was further said that neither the law nor the court that implements the law should ever get oblivious of the fact that in such accidents precious lives are lost or the victims who survive are crippled for life which, in a way, worse than death. State of Punjab v. Saurabh Bakshi2015 SCC OnLine SC 278decided on 30.03.2015