JASWINDER SINGH (DEAD) THROUGH LEGAL REPRESENTATIVE versus NAVJOT SINGH SIDHU & ORS.

[2022] 4 S.C.R. 725

JASWINDER SINGH (DEAD) THROUGH LEGALREPRESENTATIVE

NAVJOT SINGH SIDHU & ORS.

(Review Petition (Crl.) No. 477 of 2018)

MAY 19, 2022

[A. M. KHANWILKAR AND SANJAY KISHAN KAUL, JJ.]

Sentence/Sentencing:

Enhancement of sentence – Incident pertaining to disputeof right of way – Respondent No. 1-accused inflicted fist blows to a65 years old man, resulting in his death – High Court convicted theaccused u/s. 304 Part II IPC – However, in appeal, the SupremeCourt held that out of all the fist blows of the respondent, only oneof them landed on the head of the deceased, that there wasuncertainty regarding the cause of death, that no weapon used northere was past enmity, thus, respondent not held guilty of death butof causing voluntary hurt to the deceased, punishable u/s. 323 IPCand was sentenced with fine of Rs. 1000/- only – Review petition– Held: Accused, 25 year old international cricketer was extremelyphysically fit and his hand can also be weapon itself – He assaulteda man more than twice his age and inflicted even with his barehands, severe blow on victim’s head – Unintended consequenceof harm would still be properly attributable to him as it wasreasonably foreseeable – Even though the harm might not be directlyintended, some aggravated culpability must be attached if the personsuffers grievous hurt or dies – While sentencing the principle ofproportionality should be kept in mind – Disproportionately lightpunishment humiliates and frustrate victim of crime, and erodesthe faith of the society in the criminal justice system – Long periodhaving lapsed by the time the appeal was decided cannot be groundto award disproportionate and inadequate punishment – Thus,imposition of sentence of rigorous imprisonment for period ofone year – Review – Criminal jurisprudence.

Adequate sentence – Imposition of – Principles ofproportionality – Held: There is necessity of maintaining areasonable proportion between the seriousness of the crime and

Apunishment – While disproportionately severe sentence ought notto be passed, simultaneously it also does not clothe the courts toaward an inadequate sentence, having due regard to the nature ofthe offence, since an inadequate sentence would fail to produce adeterrent effect on the society at large.BPartly allowing the Review Petitions, the Court

HELD: 1.1 There is disinclination to enlarge the notice tosomething more than the aspect of sentencing. The evidencehas been analysed in detail to come to conclusion as to what isthe nature of injury. It has been taken into account that only oneCblow with bare hands as inflicted by respondent No.1 had landedon the head of the deceased. The finding is that apparently in thefist fight, other blows may have been attempted but did not fallon the material part of the body. Aspects such as lack of postenmity, lack of any weapon used except bare hands and the resultof spontaneous fight over right of way were also taken intoDaccount. Thus, the argument for expanding the scope of the reviewapplication is rejected. [Paras 17-18][735-D-F]1.2 Some material aspects which were required to be takennote of appear to have been somehow missed out at the stage ofsentencing, such as the physical fitness of respondent No.1 as heEwas an international cricketer, who was tall and well-built andaware of the force of blow that even his hand would carry. Theblow was not inflicted on person identically physically placedbut 65 years old person, more than double his age. RespondentNo.1 cannot say that he did not know the effect of the blow orFplead ignorance on this aspect. It is not as if someone has toremind him of the extent of the injury which could be caused by ablow inflicted by him. In the given circumstances, tempers mayhave been lost but then the consequences of the loss of tempermust be borne. In fact, this Court to some extent had beenindulgent in ultimately holding respondent No.1 guilty of anGoffence of simple hurt under Section 323 IPC. The question iswhether even on sentence, mere passage of time can result in afine of Rs.1,000/- being an adequate sentence where personhas lost his life by reason of the severity of blow inflicted byrespondent No.1 with his hands. The hand can also be weapon

JASWINDER SINGH (DEAD) THROUGH LEGAL REPRESENTATIVEv. NAVJOT SINGH SIDHU

by itself where say boxer, wrestler or cricketer or anextremely physically fit person inflicts the same. This may beunderstood where blow may be given either by physically fitperson or to more aged person. Insofar as the injury caused isconcerned, this Court has accepted the plea of single blow byhand being given on the head of the deceased. It is this significancewhich is an error apparent on the face of the record needing someremedial action. [Para 24][737-C-G]

1.3 While disproportionately severe sentence ought notto be passed, simultaneously it also does not clothe the law courtsto award sentence which would be manifestly inadequate, havingdue regard to the nature of the offence, since an inadequatesentence would fail to produce deterrent effect on the societyat large. Punishments are awarded not because of the fact that ithas to be an eye for an eye or tooth for tooth, rather having itsdue impact on the society; while undue harshness is not requiredbut inadequate punishment may lead to sufferance of thecommunity at large. [Para 25][737-G-H; 738-A-B]

1.4 Any undue sympathy to impose inadequate sentencewould do more harm to justice system and undermine the publicconfidence in the efficacy of law. The society can not long endureunder 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 havingregard to the nature of the offence and the manner in which itwas executed or committed. Thus, the punishment to be awardedfor crime must not be irrelevant but it should conform to and beconsistent with the atrocity and brutality with which the crimehas been perpetrated. [Para 26][738-C-D]

1.5 The sentencing philosophy for an offence has socialgoal that the sentence has to be based on the principle that theaccused must realise that the crime committed by him has notonly created dent in his life but also concavity in the socialfabric. While opportunity to reform has to be kept in mind, theprinciple of proportionality also has to be equally kept in mind.[Para 28][738-F]

A1.6 When 25 years old man, who was an internationalcricketer, assaults man more than twice his age and inflicts,even with his bare hands, severe blow on his victim’s head, theunintended consequence of harm would still be properlyattributable to him as it was reasonably foreseeable. That it wouldcause the death of person is another matter since the convictionBis only under Section 323 IPC. In that context it has been observedthat even though any harm might not be directly intended, someaggravated culpability must be attached if the person suffers agrievous hurt or dies as result thereof. The Court was not greatlyinfluenced by the fact that 26 years had passed since the incidentCand observed that because long period had lapsed by the timethe appeal was decided cannot be ground to award thepunishment which was disproportionate and inadequate. [Para32][740-G-H; 741-A-B]

1.7 disproportionately light punishment humiliates andDfrustrates victim of crime when the offender goes unpunishedor is let off with relatively minor punishment as the systempays no attention to the injured’s feelings. Indifference to therights of the victim of crime is fast eroding the faith of the societyin general and the victim of crime in particular in the criminaljustice system. [Para 35][741-E-F]E

1.8 This Court is not setting forth much about how theinvestigation proceeded initially, how the court had to interveneto see that the relevant people are charged, the manner of leadingof evidence, the hesitancy of doctors all of which weighed in thisCourt opining that case beyond reasonable doubt could be onlyFof one under Section 323 of the IPC. It is believed that theindulgence was not required to be shown at the stage of sentenceby only imposing sentence of fine and letting the respondent gowithout any imposition of sentence. The instant case is not onewhere two views are possible such that review should not beGexercised. It is case where some germane facts for sentencingappear to have been lost sight of while imposing only fine onrespondent No.1 and, therefore, no question of choosing betweentwo possible views arises. Thus, in addition to the fine imposedit is considered appropriate to impose sentence of imprisonmentfor period of one year rigorous imprisonment to be undergoneHby respondent No.1. [Para 38-40][742-D-F]

JASWINDER SINGH (DEAD) THROUGH LEGAL REPRESENTATIVEv. NAVJOT SINGH SIDHU

Richpal Singh Meena v. Ghasi (2014) 8 SCC 918 :[2014] 9 SCR 857; Virsa Singh v. State of Punjab [1958]SCR 1495; Sunil Dutt Sharma v. State (2014) 4 SCC375 : [2013] 9 SCR 1000; Parvinder Kansal v. State ofNCT 2020 SCC Online SC 685; Mallikarjun Kodagaliv. State of Karnataka & Ors. (2019) 2 SCC 752 : [2018]13 SCR 1; Manohar Singh v. State of Rajasthan (2015)3 SCC 449; Jai Kumar v. State of Madhya Pradesh(1999) 5 SCC 1 : [1999] 3 SCR 426; Sumer Singh v.Surajbhan Singh (2014) 7 SCC 323 : [2014] 5 SCR882; Ravji v. State of Rajasthan (1996) 2 SCC 175 :[1995] 6 Suppl. SCR 195; State of Karnataka v.Krishnappa (2000) 4 SCC 75 : [2000] 2 SCR 761;Shyam Narain v. State (NCT of Delhi) (2013) 7 SCC 77: [2013] 8 SCR 951; Rattiram v. State of M.P. (2012) 4SCC 516 : [2012] 3 SCR 496; Gopal Singh v. State ofUttarakhand (2013) 7 SCC 545 : [2013] 4 SCR 104;Alister Anthony Pareira v. State of Maharashtra AIR2012 SC 3802 : [2012] 1 SCR 145; Jagjeet Singh &Ors. v. Ashish Mishra @ Monu & Anr. 2022 SCCOnLine SC 453; State of Rajasthan v. Banwari Lal &Anr. Decided on 8.4.2022; Soman v. State of Kerala(2013) 11 SCC 382 : [2012] 11 SCR 1155 – referredto.Payne v. Tennessee 501 US 808 (1991); Booth v.Maryland 482 U.S. 496 (1987); Snyder v. Massachusetts291 US 97 (1934) – referred to.

Shri P. Babulu Reddy Foundation Lecture, Victims ofCrime – The Unseen Side by Dr. Justice A.S. Anand,Judge, Supreme Court of India (as he then was) (1998)1 SCC (Jour) 3. Delivered at Hyderabad on 28thSeptember 1997 – referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Review Petition(Crl.) No. 477 of 2018 in Crl. A. No. 60 of 2007.

From the Judgment dated 15.05.2018 passed by this Hon’ble CourtEin Criminal Appeal No. 60 of 2007.

With

Review Petition (Crl.) No. 478 of 2018 in Crl. A. No.58 of 2007and Review Petition (Crl.) No. 479 of 2018 in Crl. A. No. 59 of 2007.

Sidharth Luthra, Sr. Adv., Sudhir Walia, Ms. Niharika Ahluwalia,Ms. Sneh Kohli, Ms. Shubhangni Jain, Ms. Ambika Atrey, Dr. AbhishekAtrey, Ms. Jyoti Mendiratta, Advs. for the Petitioner.

Dr. Abhishek Manu Singhvi, R. Basant, Sr. Advs., Manu Sharma,Ms. Tarannum Cheema, Amit Bhandari, A. Karthik, Gaurav Khanna,GMs. Ridhima Mandhar, Kartik Khanna, Vijay Singh, Ms. Smrithi Suresh,Saaketh Kasibhatla, Arsh Khan, Akshay Sahay, Advs. for theRespondents.

JASWINDER SINGH (DEAD) THROUGH LEGAL REPRESENTATIVEv. NAVJOT SINGH SIDHU

The Judgment of the Court was delivered by

SANJAY KISHAN KAUL, J.

Background:

1. The original controversy emanates from an FIR dated27.12.1988 under Section 304/34 of the Indian Penal Code, 1860(hereinafter referred to as the ‘IPC’) registered by the Sub-Inspector ofP.S. Kotwali of Patiala District, Punjab on the basis of the informationgiven by one Shri Jaswinder Singh (Informant) about an occurrencearound 12:30 p.m. at the traffic light of Battian Wala Chowk. TheInformant and one Avtar Singh (PW-3 and PW-4 respectively) weretravelling with the deceased, Gurnam Singh in Maruti Car driven bythe deceased. Apparently, dispute arose on the right of way betweenthe accused and the deceased and respondent No.1 (the first accused)came out of his vehicle, pulled out the deceased from his vehicle andinflicted fist blows. As per the Informant his endeavour to interveneresulted even in the second accused (respondent No.2) (not mentionedin the FIR) getting out of the vehicle and giving fist blows to the Informant.It was alleged that the car keys of the deceased’s car were removed bythe accused and they fled from the scene of occurrence. PW-3 andPW-4 took the deceased in rickshaw to the hospital where the doctorsannounced that Gurnam Singh was dead.

2. post-mortem was conducted by Dr. Jatinder Kumar Sadana(PW-2), who recorded that the injuries were ante-mortem in nature andcaused by blunt weapon though he reserved his opinion on the causeof death as it could apparently be given only after receiving the report ofthe pathologist. The Pathologist’s report dated 09.01.1989 noticed largenumber of abnormalities in the condition of the deceased’s heart and didnot notice any pathology insofar as the brain is concerned. Even afterthe Pathologist’s report, PW-2 did not give definite opinion regardingthe cause of death of Gurnam Singh. Thereafter, PW-2 wrote to theCivil Surgeon, Patiala on 11.01.1989 requesting that the case be referredto Forensic Expert, Government Medical College, Patiala, as result ofwhich Medical Board was constituted consisting of six members. Twoof these members were examined as PW-1 and PW-2 but very crypticopinion was given by PW-1 with disinclination to give any furtherclarification when sought for by the prosecution.

A3. chargesheet dated 06.03.1989 was filed on 14.07.1989 underSection 304 of the IPC against respondent No.2, exonerating respondentNo.1. During the course of trial, the Sessions Court exercised its powersunder Section 319 of the Code of Criminal Procedure, 1973 (hereinafterreferred to as the ‘Cr.P.C.’) and after recording the statement of theInformant summoned respondent No.1 to stand trial. The Informant alsoBfiled private complaint against both the accused for commission ofoffences under Sections 302/324/323 read with Section 34 of the IPC.Both the cases were consolidated and on 20.08.1994 charges underSection 304 Part I were framed against both the accused arising fromthe FIR. While in the complaint, charges were framed under SectionC302 of the IPC against respondent No.1 and under Section 302/34 of theIPC against respondent No.2. Charges under Section 323/34 of the IPCwere framed against both the accused for causing hurt to the Informant.

4. The trial court post trial acquitted both the accused vide judgmentdated 22.09.1999. In terms of the judgment of the trial court, the deathDwas not caused by subdural haemorrhage and the deceased sufferedsudden cardiac arrest under stress because of which he fell and receivedtwo abrasions leading to subdural haemorrhage. The death was causeddue to violence but it was not certain as to when precisely GurnamSingh had died.

E5. The State and the complainant both moved the High Court videseparate appeals. The High Court in terms of the judgment dated01.12.2006 opined that the cases of the two accused were to beconsidered separately. The High Court convicted respondent No.1 underSection 304 Part II of the IPC based on the testimony of the doctors,PW-1 and PW-2. As per their testimony, the cause of death was cardiacFfailure and all that they had stated was that the cardiac condition of thedeceased was very weak. On the opening of the skull, subduralhaemorrhage was present over the left parietal region and brain. It wasthe haemorrhage which caused the death of the deceased and not thecardiac arrest. Insofar as respondent No.2 is concerned, he was heldGguilty under Section 304 Part II read with Section 34 of the IPC as wellas Section 323 of the IPC.

6. Three criminal appeals were filed before this Court by the twoaccused and the Informant.

7. The High Court judgment was analyzed by this Court, whereinHit was opined that the testimony of the witnesses was trustworthy. Merely

because there was relationship between the Informant, Avatar Singhand the deceased, and more witnesses were not examined, could nothave led to conclusion that the case had not been proved beyondreasonable doubt.

8. The post-mortem report was examined closely which indicatedonly two external injuries – one on the temporal region and another onthe left knee of the deceased, and both were abrasions. The doctors hadopined that the second injury could be the result of the fall and, thus, it ismost unlikely that person would simultaneously aim at the head andalso the knees of the victim while giving fist blows. Respondent No.1possibly delivered more than one fist blows while only one of them landedon the head of the deceased and others missed the target. This Court didnot agree with the observations of the High Court that the death wascaused by subdural haemorrhage and not cardiac arrest. There wasstated to be uncertainty regarding the cause of death of Gurnam Singhand no weapon had been used, nor was there any past enmity betweenthe parties, and what happened was the result of an instant brawl.

9. The case against respondent No.2 was held not to have beenproved and mere presence of respondent No.2 with respondent No.1was not sufficient to result in conviction based on common intention.Even for the offence under Section 323 of the IPC, respondent No.2was held not guilty.

10. The Court recognized that there were lapses in investigationbut then people are not convicted on the basis of doubts. RespondentNo.1 was held not guilty of causing the death of Gurnam Singh, and theonly conclusion which was found acceptable was of the respondent No.1causing voluntary hurt to Gurnam Singh which is punishable under Section323 of the IPC. It was noticed that respondent No.1 was an internationalcricketer and celebrity at the time of the incident and at times therewas an endeavour to turn blind eye to the violations of law committedby celebrities. On the question of sentence, fine of Rs.1,000/- alonewas imposed vide order dated 06.12.2006, since the incident was 30years old at the time, there was no enmity between the parties and noweapon was used.

On Expanding the Scope of Review Application:

11. review application was filed by the complainant in whichnotice was issued on 11.09.2018 limited to the question of enlargement

Aof sentence qua respondent no.1. The matter got delayed as initially thecounsel could not enter appearance for the accused. There was changeof counsel and change of senior counsel. However, when the argumentswere addressed, Mr. Luthra, learned senior counsel for the complainantsought to persuade us to enlarge the notice qua the aspect of review asa whole and not limited to the question of sentence.B

12. The aforesaid plea was predicated on account of non-consideration of the decision of the co-ordinate Benches of this Court inRichpal Singh Meena v. Ghasi[1] and Virsa Singh v. State of Punjab[2].

13. In Richpal Singh Meena[3]case, proposition was advancedCthat cases where homicide had occurred, but the conviction is only forcausing grievous hurt, may even fall even within Section 300 (thirdly) ofthe IPC and, therefore, would require reconsideration. Several judgmentswere relied upon on this aspect. After referring to these judgments, thejurisprudential aspect was discussed. In this behalf, it was submittedthat there were cases where in spite of death of person and findingDin some of them of an act of voluntarily causing grievous hurt, this Courthas not considered the provisions of Section 299 read with Section 304of the IPC. It was for the Court to determine on evidence, whether if itis culpable homicide, it amounts to murder as explained under Section300 of the IPC or not as explained under Section 304 of the IPC. IfEculpable homicide cannot be proved, then it will fall in the category of“not-culpable homicide”. In cases relating to hurt (from Section 319 ofthe IPC onwards), they do not postulate death as the end result. Apartfrom this the issue of sentencing was also addressed. It was opined thatthe Court should not ignore or overlook the question whether the homicideis culpable or not but merely treat the case as one of voluntarily causingFgrievous hurt punishable under Section 325 or Section 326 of the IPC.

14. The earlier judgment in Virsa Singh[4] case looked into theaspect of intention to inflict the injury that is sufficient to cause death inthe ordinary course of nature. In such an eventuality, Section 300 thirdlyof the IPC would be unnecessary because the act would fall under theGfirst part of the Section. However, it was also stated that it has to befound that the bodily injury was caused, the nature of injury must be

1 (2014) 8 SCC 918.

2 1958 SCR 1495.

3 (supra)

H4 (supra)

established and whether any vital organs were cut or so forth. Thereafterthe focus should shift to the intention to inflict the bodily injury that isfound to be present.

15. It was also urged by Mr. Luthra, learned senior counsel forthe complainant that the delay of 34 years cannot be ground to acquitthe accused when the delay was not attributable to the complainants orthe victims.

16. On the other hand, Dr. Singhvi, learned senior counsel forrespondent No.1 sought to emphasise that the incident is 34 years oldpertaining to dispute of right of way. The case had gone through severalrounds of scrutiny at several stages and now re-assessing the merits ofthe case in terms of the charge against the respondent would be subversiveof the basic foundations of criminal justice system.

17. On analysis of the aforesaid aspect, we are disinclined toenlarge the notice to something more than the aspect of sentencing.The evidence has been analysed in detail to come to conclusion as towhat is the nature of injury. It has been taken into account that only oneblow with bare hands as inflicted by respondent No.1 had landed on thehead of the deceased. The finding is that apparently in the fist fight,other blows may have been attempted but did not fall on the materialpart of the body. Aspects such as lack of post enmity, lack of any weaponused except bare hands and the result of spontaneous fight over rightof way were also taken into account.

18. We, thus, unequivocally reject the argument for expanding thescope of the review application.

On Enhancement of Sentence:

19. Next we turn to the aspect of review, which persuaded us toissue the notice, i.e., qua the sentence imposed – fine of Rs.1,000/-.No doubt the conviction is under Section 323 of the IPC relating tocausing hurt, which reads as under:

“323. Punishment for voluntarily causing hurt.—Whoever,except in the case provided for by section 334, voluntarily causeshurt, shall be punished with imprisonment of either description fora term which may extend to one year, or with fine which mayextend to one thousand rupees, or with both.”

A20. The punishment under Section 323 of the IPC has beenprescribed as sentence of term which may extend to one year or afine which may extend to Rs.1,000/- or both. In the present case, onlythe fine has been imposed. The question, thus, to be analysed is whetherin the given factual scenario, grave error can be said to have beencommitted on the issue of sentence by not punishing with imprisonmentBof any term whatsoever.

21. Learned senior counsel for the complainant urged that thesentence imposed under Section 323 of the IPC was not in line with theprinciples of sentencing principles and that the observations on sentencingin Sunil Dutt Sharma v. State[5], albeit in the case of death sentence,Cwould equally apply for lesser offences. It was held that the aggravatingand mitigating factors both were required to be considered before decidingthe question of sentence, more so when the judgment of the High Courtis sought to be upset, on the provisions under which it is based. Thesentence imposed, it was urged, should be proportionate to the offenceDand should take into account the deterrence aspect. There cannot beleniency in sentencing when the hurt/injury has resulted in death, norcan the delay in trial be taken into account which was not attributable tothe complainants. Respondent No.1 at the relevant time was youngman of 25 years, who was playing international cricket and was athleticallyphysically fit. He is expected to know the effect of any blow to beEinflicted by him, more so, when on the opposite side the man is agedabout 65 years (more than his father’s age and elder to him by 40 years).Thus, it was urged that simply because it was spontaneous incidentwhere no weapon was used, the same cannot be ground to inflictminimal and innocuous punishment of fine of Rs.1,000/-.

22. On the other hand, learned senior counsel for respondent No.1urged that review petition on the quantum of sentence was notmaintainable. He sought to place reliance on the judgment of this Courtin Parvinder Kansal v. State of NCT[6] and Mallikarjun Kodagali v.State of Karnataka & Ors.[7] His submission was that the victim’s rightGto appeal ought to be restricted to only three eventualities, i.e., acquittalof the accused, conviction for lesser offence, or for imposing inadequatecompensation, but there was no provision of appeal for the victim to

5 (2014) 4 SCC 375.

6 2020 SCCOnline SC 685.

H7 (2019) 2 SCC 752.

question the quantum of sentence as inadequate. Such right wasavailable under Section 377 Cr.P.C. for the State.

23. Learned senior counsel also relied upon the judgment of thisCourt in Manohar Singh v. State of Rajasthan[8] to contend that even afine is fully adequate without any incarceration when there is prolongedtime since the date of occurrence.

Our View:

24. We have given our thought to the matter. In our view, somematerial aspects which were required to be taken note of appear tohave been somehow missed out at the stage of sentencing, such as thephysical fitness of respondent No.1 as he was an international cricketer,who was tall and well built and aware of the force of blow that evenhis hand would carry. The blow was not inflicted on person identicallyphysically placed but 65 year old person, more than double his age.Respondent No.1 cannot say that he did not know the effect of the blowor plead ignorance on this aspect. It is not as if someone has to remindhim of the extent of the injury which could be caused by blow inflictedby him. In the given circumstances, tempers may have been lost butthen the consequences of the loss of temper must be borne. In fact, thisCourt to some extent had been indulgent in ultimately holding respondentNo.1 guilty of an offence of simple hurt under Section 323 of the IPC.The question is whether even on sentence, mere passage of time canresult in fine of Rs.1,000/- being an adequate sentence where personhas lost his life by reason of the severity of blow inflicted by respondentNo.1 with his hands. The hand can also be weapon by itself where saya boxer, wrestler or cricketer or an extremely physically fit personinflicts the same. This may be understood where blow may be giveneither by physically fit person or to more aged person. Insofar as theinjury caused is concerned, this Court has accepted the plea of singleblow by hand being given on the head of the deceased. In our view, it isthis significance which is an error apparent on the face of the recordneeding some remedial action.

25. We would like to deliberate little more in detail on the necessityof maintaining reasonable proportion between the seriousness of thecrime and the punishment. While disproportionately severe sentenceought not to be passed, simultaneously it also does not clothe the law

Acourts to award sentence which would be manifestly inadequate, havingdue regard to the nature of the offence, since an inadequate sentencewould fail to produce deterrent effect on the society at large.Punishments are awarded not because of the fact that it has to be aneye for an eye or tooth for tooth, rather having its due impact on thesociety; while undue harshness is not required but inadequate punishmentBmay lead to sufferance of the community at large.[9]

26. An important aspect to be kept in mind is that any unduesympathy to impose inadequate sentence would do more harm to justicesystem and undermine the public confidence in the efficacy of law. Thesociety can not long endure under serious threats and if the courts do notCprotect the injured, the injured would then resort to private vengeanceand, therefore, it is the duty of every court to award proper sentencehaving regard to the nature of the offence and the manner in which itwas executed or committed.[10] It has, thus, been observed that thepunishment to be awarded for crime must not be irrelevant but it shouldDconform to and be consistent with the atrocity and brutality with whichthe crime has been perpetrated.[11]

27. three Judges Bench of this Court in State of Karnataka v.Krishnappa[12] while discussing the purpose of imposition of adequatesentence opined in para 18 that “.....Protection of society and deterringEthe criminal is the avowed object of law and that is required to beachieved by imposing an appropriate sentence.”

28. The sentencing philosophy for an offence has social goalthat the sentence has to be based on the principle that the accused mustrealise that the crime committed by him has not only created dent inFhis life but also concavity in the social fabric.[13] While opportunity toreform has to be kept in mind, the principle of proportionality also has tobe equally kept in mind.

29. Criminal jurisprudence with the passage of time has laidemphasis on victimology, which fundamentally is perception of trialGfrom the viewpoint of the criminal as well as the victim. Both are viewedin the social context and, thus, victim’s rights have to be equally

9 Jai Kumar v. State of Madhya Pradesh (1999) 5 SCC 1.

10 Sumer Singh v. Surajbhan Singh (2014) 7 SCC 323.

11 Ravji v. State of Rajasthan (1996) 2 SCC 175.

12 (2000) 4 SCC 75.

13 Shyam Narain v. State (NCT of Delhi) (2013) 7 SCC 77.

protected[14]. It would be useful to rely on the observations of this Courtin Gopal Singh v. State of Uttarakhand[15] that just punishment is thecollective cry of the society and while collective cry has to be keptuppermost in mind, simultaneously the principle of proportionality betweenthe crime and punishment cannot be totally brushed aside. Thus, theprinciple of just punishment is the bedrock of sentencing in respect of acriminal offence. No doubt there cannot be straitjacket formula nor asolvable theory in mathematical exactitude. An offender cannot be allowedto be treated with leniency solely on the ground of discretion vested in acourt. Similarly, in Alister Anthony Pareira v. State of Maharashtra[16],the twin objective of the sentencing policy to be kept in mind wasemphasised as deterrence and correction and, thus, principle ofproportionality in sentencing convict were held to be well entrenchedin the criminal jurisprudence.30. We may also take note of the recent judgment of this Courtdecided by three Judges bench on 18.04.2022 in Jagjeet Singh &Ors. v. Ashish Mishra @ Monu & Anr.[17] albeit, on the issue of bail. Itemphasised the victim’s right to be heard. What is relevant for us to noteis that the victim being the de facto sufferer of crime had noparticipation in the adjudicatory process. The current ethos of criminaljustice dispensation to prevent and punish crime had surreptitiously turnedits back on the victim. No doubt in the present case at every stage thevictim has been heard and the present application is also by the victim.The near and dear ones whether as guardians or legal heirs are requiredto be treated as victims. It was, thus, observed in para 23 as under:

“23. It cannot be gainsaid that the right of victim underthe amended Cr.P.C. are substantive, enforceable, and areanother facet of human rights. The victim’s right, therefore,cannot be termed or construed restrictively like brutumfulmen. We reiterate that these rights are totally independent,incomparable, and are not accessory or auxiliary to those ofthe State under the Cr.P.C. The presence of ‘State’ in theproceedings, therefore, does not tantamount to according ahearing to ‘victim’ of the crime.”

14 Rattiram v. State of M.P. (2012) 4 SCC 516.

15 (2013) 7 SCC 545.

16 AIR 2012 SC 3802.

17 2022 SCC OnLine SC 453.

A31. In the similar vein in Criminal Appeal No.579/2022 titled Stateof Rajasthan v. Banwari Lal & Anr.[18], this Court has again frownedupon the tendency of courts to reduce the sentence to the period alreadyundergone. An earlier judgment of this Court in Soman v. State ofKerala[19] was referred to, more specifically para 27, which reads asunder:B

“27.1. Courts ought to base sentencing decisions on variousdifferent rationales — most prominent amongst which wouldbe proportionality and deterrence.

27.2. The question of consequences of criminal action canCbe relevant from both proportionality and deterrencestandpoint.

27.3. Insofar as proportionality is concerned, the sentencemust be commensurate with the seriousness or gravity of theoffence.

D27.4. One of the factors relevant for judging seriousness ofthe offence is the consequences resulting from it.

27.5. Unintended consequences/harm may still be properlyattributed to the offender if they were reasonably foreseeable.In case of illicit and underground manufacture of liquor, theEchances of toxicity are so high that not only its manufacturerbut the distributor and the retail vendor would know its likelyrisks to the consumer. Hence, even though any harm to theconsumer might not be directly intended, some aggravatedculpability must attach if the consumer suffers some grievousFhurt or dies as result of consuming the spurious liquor.”

32. We find the observations in para 27.5 as quoted above ofsome significance in the context of the facts of the present case. Thus,when 25 year old man, who was an international cricketer, assaults aman more than twice his age and inflicts, even with his bare hands, asevere blow on his (victim’s) head, the unintended consequence of harmGwould still be properly attributable to him as it was reasonably foreseeable.That it would cause the death of person is another matter since theconviction is only under Section 323 of the IPC. In that context it has

18 Decided on 8.4.2022.H19 (2013) 11 SCC 382.

been observed that even though any harm might not be directly intended,some aggravated culpability must be attached if the person suffers agrievous hurt or dies as result thereof. Another similarity in terms ofthe facts of the case at hand and that of Soman[20]is that the Court wasnot greatly influenced by the fact that 26 years had passed since theincident and observed that because long period had lapsed by the timethe appeal was decided cannot be ground to award the punishmentwhich was disproportionate and inadequate.33. Among the factors to be taken note of are the “defencelessand unprotected state of victim” appropriate in the facts of the presentcase.

34. The US Supreme Court has also moved in the same directionin Payne v. Tennessee[21] while examining the aspect of the “victim impactstatement” in case of capital offence at the time of sentencing. Thecourt considered the aspect from the dissenting judgment in the case ofBooth v. Maryland[22] which emphasized on “reminding the sentencerthat just as the murderer should be considered as an individual, so toothe victim is an individual whose death represents unique loss to societyand in particular to his family.” The words of Justice Benjamin Cardozoin Snyder v. Massachusetts[23] bring out that “justice, though due to theaccused, is due to the accuser also. The concept of fairness must not bestrained till it is narrowed to filament. We are to keep the balancetrue.”

35. Thus, disproportionately light punishment humiliates andfrustrates victim of crime when the offender goes unpunished or is letoff with relatively minor punishment as the system pays no attention tothe injured’s feelings. Indifference to the rights of the victim of crime isfast eroding the faith of the society in general and the victim of crime inparticular in the criminal justice system.[24]

36. We noticed the aforesaid judgments to repel the contention oflearned senior counsel for the respondent that the victim should have nosay in the matter of enhancement of sentence.

20 (supra).21 501 US 808 (1991).

22 482 U.S. 496 (1987).

23 291 US 97 (1934).

24 Shri P. Babulu Reddy Foundation Lecture, Victims of Crime – The Unseen Side byDr. Justice A.S. Anand, Judge, Supreme Court of India (as he then was) (1998) 1 SCC(Jour) 3. Delivered at Hyderabad on 28[th] September 1997.

A37. In nutshell, the aspects of sentencing and victimology arereflected in the following ancient wisdom:

It means: The person dispensing justice as per Dharmashastrashould prescribe penance appropriate to the age, the time and strengthof the sinner, the penance being such that he may not lose his life and yetChe may be purified. penance causing distress should not be prescribed.

38. We are not setting forth much about how the investigationproceeded initially, how the court had to intervene to see that the relevantpeople are charged, the manner of leading of evidence, the hesitancy ofdoctors all of which weighed in this Court opining that case beyondDreasonable doubt could be only of one under Section 323 of the IPC.We do believe that the indulgence was not required to be shown at thestage of sentence by only imposing sentence of fine and letting therespondent go without any imposition of sentence.

39. The present case is not one where two views are possibleEsuch that review should not be exercised. It is case where somegermane facts for sentencing appear to have been lost sight of whileimposing only fine on respondent No.1 and, therefore, no question ofchoosing between two possible views arises.

Conclusion:F

40. The result of the aforesaid is that the review applications/petitions are allowed to the aforesaid extent and in addition to the fineimposed we consider it appropriate to impose sentence of imprisonmentfor period of one year rigorous imprisonment to be undergone byrespondent No.1. The parties are left to bear their own costs.

Nidhi Jain

(Assisted by : Shashwat Jain, LCRA)

Review Petitions partly allowed.