undue sympathy = 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 15 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.


Hon’ble Mr. Justice Dinesh Maheshwari 

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.

  1. 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.
    1
  2. 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?
  3. 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.
  4. 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
    2
    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.
  5. 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 accusedrespondent 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.
    3
  6. 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.
  7. 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.”
    4
  8. Assailing the order aforesaid, learned counsel for the appellantState 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 respondentaccused 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.
  9. Having heard the respective learned counsel and having examined
    the record with reference to the law applicable, we are clearly of the view
    5
    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.
  10. 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.
  11. 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
    6
    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.
  12. 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.
  13. 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
    7
    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.
  14. 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.

  1. 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
    8
    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.

  1. 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)
  2. 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
    9
    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.
  3. 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).
    10
  4. 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.
  5. 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.
    11
  6. 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.”
  7. 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
    12
    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.
  8. 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
    13
    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.
  9. 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
    14
    for the reason that the objects of deterrence as also protection of society
    are not lost with mere passage of time.
  10. 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.
  11. 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.
  12. 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
    15
    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.
    16