Thursday, 24 October 2019

Supreme Court: Three tests for sentencing in Criminal case

Sentencing for crimes has to be analyzed on the touch stone of
three tests viz., crime test, criminal test and comparative
proportionality test. Crime test involves factors like extent of
planning, choice of weapon, modus of crime, disposal modus (if any),
role of the accused, antisocial
or abhorrent character of the crime,
state of victim. Criminal test involves assessment of factors such as
age of the criminal, gender of the criminal, economic conditions or
social background of the criminal, motivation for crime, availability
of defense, state of mind, instigation by the deceased or any one
from the deceased group, adequately represented in the trial,
disagreement by a judge in the appeal process, repentance,
possibility of reformation, prior criminal record (not to take pending
cases) and any other relevant factor (not an exhaustive list).
13. Additionally, we may note that under the crime test,
seriousness needs to be ascertained. The seriousness of the crime

may be ascertained by (i) bodily integrity of the victim; (ii) loss of
material support or amenity; (iii) extent of humiliation; and (iv)
privacy breach.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 690 OF 2014

STATE OF MADHYA PRADESH  Vs  UDHAM 

N.V. RAMANA, J .
Dated:October 22, 2019.

1. The present appeal is directed by the appellantState
against
the final order dated 06.11.2012, passed by the High Court of
Madhya Pradesh (Gwalior Bench) in Criminal Appeal No. 659 of
2011, whereby the High Court partly allowed the appeal filed by the
respondentsaccused
herein and reduced the sentence awarded by
the Trial Court to the period already undergone for the offences
under Section 326 of the Indian Penal Code [hereinafter referred to
as ‘IPC’] read with Section 34 of IPC, and Section 452 of the IPC.
2. The prosecution’s case is that the complainant lodged a report

on 15.04.2008 that at around 9 p.m., while he was sitting inside his
house with three other people, the respondentsaccused
barged in,
carrying weapons. More specifically, respondent nos. 1 and 3 were
carrying axes, while respondent nos. 2 and 4 were carrying sticks.
The respondentsaccused
asked the complainant why he had not
kept his cow tied, and subsequently, on respondent no. 4’s
exhortation, the respondentsaccused
attacked the complainant and
the others present at that time resulting in various injuries to them.
Respondentsaccused
then allegedly threatened the complainant
that if he did not keep his cow confined, he would be killed.
3. The Trial Court tried the respondentsaccused
and ultimately
convicted them for the offences under Section 326 read with Section
34 of IPC as well as the offence under Section 452 of IPC. The
respondentsaccused
were sentenced to undergo 3 years rigorous
imprisonment and a fine of Rs. 250/(
Rupees Two Hundred and
Fifty Only) each for the offence under Section 326 read with Section
34 of IPC. They were further sentenced to undergo rigorous
imprisonment for 1 year with a further fine of Rs. 250/(
Rupees Two
Hundred and Fifty Only) each for the offence under Section 452 of
IPC. In case of default of payment of fine, they were to undergo
further rigorous imprisonment for 6 months. All sentences were
made to run concurrently by the Trial Court.
2
4. Being aggrieved, the respondentsaccused
filed an appeal
before the High Court, challenging only the quantum of sentence
imposed on them by the Trial Court. Vide impugned order, the High
Court partly allowed the appeal and reduced the sentence to the
period of imprisonment already undergone by them, which was a
period of 4 days, while enhancing the fine amount imposed upon
them by Rs. 1500/(
Rupees One Thousand Five Hundred Only)
each. The respondentsaccused
were directed to deposit the
enhanced fine within a period of 30 days, failing which they were to
undergo simple imprisonment for a period of 30 days.
5. Aggrieved by the impugned order, the State has filed the
present appeal challenging the order of the High Court reducing the
sentence awarded to the respondentsaccused.
The learned counsel
for the appellantState
submitted that the High Court erred in not
considering the gravity of the offence and the facts and
circumstances of the case, particularly the fact that the
respondentsaccused
had undergone imprisonment of only 4 days.
6. On the other hand, the learned counsel for the respondentsaccused
submitted that the High Court has correctly appreciated the
facts and circumstances of the case in passing the impugned order,
and therefore, the same does not merit any interference from this

Court.
7. Heard learned counsel for the parties.
8. At the outset, it is pertinent to note that the reasoning of the
High Court, for passing the impugned order and partly allowing the
appeals of the respondentsaccused
herein, is limited to one
sentence. The High Court states in its order that looking to the
nature of the offence, the fact that this is the first offence of the
respondents and the period of sentence already undergone by them,
it is passing the impugned order.
9. At this stage the observations of this Court in Accused ‘X’ v.
State of Maharashtra, (2019) 7 SCC 1, in which two of us were
part of the Bench, with respect to sentencing in India are relevant
here“
49. Sentencing is appropriate allocation of criminal
sanctions, which is mostly given by the judicial
branch. [Nicola Padfield, Rod Morgan and Mike
Maguire, “Out of Court, Out of Sight? Criminal
Sanctions and No Judicial Decisionmaking”,
The
Oxford Handbook of Criminology (5th Edn.).] This
process occurring at the end of a trial still has a large
impact on the efficacy of a criminal justice system. It
is established that sentencing is a sociolegal
process, wherein a Judge finds an appropriate
punishment for the accused considering factual
circumstances and equities. In light of the fact
that the legislature provided for discretion to the
Judges to give punishment, it becomes important
to exercise the same in a principled manner. We
need to appreciate that a strict fixed punishment
approach in sentencing cannot be acceptable, as the
Judge needs to have sufficient discretion as well.
4
50. Before analysing this case, we need to address the
issue of the impact of reasoning in the sentencing
process. The reasoning of the trial court acts as a link
between the general level of sentence for the offence
committed and to the facts and circumstances. The
trial court is obligated to give reasons for the
imposition of sentence, as firstly, it is a fundamental
principle of natural justice that the adjudicators
must provide reasons for reaching the decision and
secondly, the reasons assume more importance as
the liberty of the accused is subject to the
aforesaid reasoning. Further, the appellate court is
better enabled to assess the correctness of the
quantum of punishment challenged, if the trial court
has justified the same with reasons...”
(emphasis supplied)
10. In the present case, it is clear that there is no detailed analysis
of the facts of the case, the nature of the injuries caused, the
weapons used, the number of victims, etc. given by the High Court
in the impugned order. The High Court while sentencing the
accused, has not taken into consideration the second charge proved
against the respondentsaccused
herein, under Section 452 of IPC.
Even the fact that the respondentsaccused
had only undergone
sentence of 4 days at the time of passing of the impugned order,
brings into question the High Court pointing to the same as a reason
for reducing their sentence. As such, the order of the High Court
merits interference by this Court.
11. We are of the opinion that a large number of cases are being

filed before this Court, due to insufficient or wrong sentencing
undertaken by the Courts below. We have time and again cautioned
against the cavalier manner in which sentencing is dealt in certain
cases. There is no gainsaying that the aspect of sentencing should
not be taken for granted, as this part of Criminal Justice System has
determinative impact on the society. In light of the same, we are of
the opinion that we need to provide further clarity on the same.
12. Sentencing for crimes has to be analyzed on the touch stone of
three tests viz., crime test, criminal test and comparative
proportionality test. Crime test involves factors like extent of
planning, choice of weapon, modus of crime, disposal modus (if any),
role of the accused, antisocial
or abhorrent character of the crime,
state of victim. Criminal test involves assessment of factors such as
age of the criminal, gender of the criminal, economic conditions or
social background of the criminal, motivation for crime, availability
of defense, state of mind, instigation by the deceased or any one
from the deceased group, adequately represented in the trial,
disagreement by a judge in the appeal process, repentance,
possibility of reformation, prior criminal record (not to take pending
cases) and any other relevant factor (not an exhaustive list).
13. Additionally, we may note that under the crime test,
seriousness needs to be ascertained. The seriousness of the crime

may be ascertained by (i) bodily integrity of the victim; (ii) loss of
material support or amenity; (iii) extent of humiliation; and (iv)
privacy breach.
14. Coming to the appropriate sentence which is to be imposed on
the respondentsaccused
in this case, the facts of this case need
closer scrutiny. The respondentsaccused
entered the house of the
complainant, attacked the others present with axes and with sticks.
Four people, including the complainant, were injured. The injuries
caused were incised wounds on the hands and backs of the victims,
an incised wound next to the ear of one of the victims and bruising,
etc. The respondentsaccused
were convicted for the offence under
Section 326 read with Section 34 of IPC, which carries a maximum
sentence of life imprisonment, or of imprisonment of a term which
may extend to ten years, and fine. They were also convicted under
Section 452 of IPC, which carries a maximum sentence of seven
years along with fine.
15. The respondentsaccused
herein were males of age 33 years, 33
years, 28 years and 70 years respectively at the time of the incident.
The main allegation as against the respondent nos. 1 and 3 is that
they had used an axe to attack the victim. In this scuffle there is no
dispute that some of the respondentsaccused
herein were also

injured profusely. Further the motivation seems to be that the cow
belonging to the victims had entered the household of the accused
and the respondent no. 1 with his coaccused
are proved to be the
aggressor herein. From the perusal of the record, the injuries on
some of the victims are not specifically attributed. The respondent
group was numerically matched with that of the victims and there
were two respondentsaccused
within the group carrying lathis. The
bodily integrity was compromised as a result of the injury caused,
but there was no evidence led to indicate any permanent
embellishments of any part. The scope of intrusion of privacy due to
the assault is also minimal. There was no material destruction
involved in the crime.
16. In this context, we need to note that the facts of the case
highlighted above, however, need to be balanced with the fact that
this was the first offence committed by the respondentsaccused
and
that the motive, which is stated to be trivial. There is a requirement
to treat the crime committed herein differently than other
objectionable situations such as police atrocities etc. [refer to
Yashwant v. State of Maharashtra, AIR 2018 SC 4067] Having
regard to the fact that the occurrence of the crime is of the year
2008 and the respondentsaccused
have been, in a way, only
ordered to undergo four days of jail term with a fine of Rs. 1,500/,

we need to enhance the same to commensurate with the guilt of the
respondentsaccused.
17. Comparatively, having perused certain precedents of this
Court, we are of the considered opinion and accordingly direct that
for the commission of the offence under Section 326 of IPC read with
Section 34 of IPC, the respondent nos. 1, 2 and 3 are sentenced to
serve rigorous imprisonment for 3 months and to pay a fine of Rs.
75,000/(
Rupees SeventyFive
Thousand Only) each within a period
of 1 month, on default of payment of which they are to suffer simple
imprisonment for 3 months. For the offence under Section 452 of
IPC, the respondent nos. 1, 2 and 3 are sentenced to serve rigorous
imprisonment for 3 months and to pay a fine of Rs. 25,000/(
Rupees TwentyFive
Thousand Only) each within a period of 1
month, on default of payment of which they are to suffer simple
imprisonment for 3 months.
18. For the offence under Section 326 of IPC read with Section 34
of IPC, the respondent no. 4, who is presently aged around 80 years,
is sentenced to serve rigorous imprisonment for 2 months and to
pay a fine of Rs.50,000/(
Rupees Fifty Thousand Only) within a
period of 1 month, on default of payment of which he is to suffer
simple imprisonment for 1 month. For the offence under Section 452

of IPC, respondent no. 4 is sentenced to serve rigorous
imprisonment for 2 months and to pay a fine of Rs.15,000/(
Rupees
Fifteen Thousand Only) within a period of 1 month, on default of
payment of which he is to suffer simple imprisonment for 1 month.
19. The above sentences are to run concurrently. Further, the
respondents are directed to be taken into custody forthwith, to serve
out their remaining sentence, as imposed hereinabove.
20. Accordingly, the appeal is partly allowed and the impugned
order of the High Court is modified in the aforestated
terms.
..............................................J.
(N.V. RAMANA)
..............................................J.
(MOHAN M. SHANTANAGOUDAR)
..............................................J.
(AJAY RASTOGI)
NEW DELHI;
October 22, 2019.

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