Soman v State of Kerala
Supreme Court of India

14 December 2012
Cr.A. Nos. 1533-1534 of 2005
The Judgment was delivered by : Aftab Alam, J.
1. The short question that arises for consideration in these appeals is whether or not the social consequences of a culpable act and its impact on other people can be a relevant consideration for giving a heavier punishment, of course, within the limits fixed by the law. The facts and circumstances in which the question arises may be briefly stated thus. In October 2000, 31 people died, and more than 500 developed serious sicknesses, of which six lost their vision completely as a result of consuming spurious liquor, contaminated with methyl alcohol at different places in Kollam district, Kerala. Cases were initially registered at different police stations, but, later on, all the cases were consolidated into a single case and on the basis of investigations made by the police, 48 accused in all were put on trial. The accused were broadly classified into three groups: one, the maker and manufacturers of the spurious liquor; two, the distributors and suppliers of the killer brew; and third the retail vendors who sold the stuff to the consumers. The appellant who was accused No.41 before the trial court fell in the third category. The prosecution case, insofar as the appellant is concerned, was that he was engaged in the sale of liquor and he received his supplies from accused Nos. 25 & 26.
2. Before the trial court the prosecution was able to successfully establish that on October 21, 2000, two days prior to the tragic occurrence, fresh supply was brought to the appellant on a motor cycle. The arrack received by him on that date was sold to various persons and on consuming it, they became very ill and one of them, namely, Yohannan died. The post-mortem report of Yohannan showed that he died of methanol poisoning. At the time of post-mortem his blood and urine samples were taken for chemical analysis and the report (Ext.P1059) showed presence of methyl alcohol in the samples. Further, on the basis of a disclosure statement made by the appellant [Ext.P413(a)] a plastic can (M.O.98) containing the residue of the spirit sold by him was recovered and seized from his shop. On chemical analysis, the contents of the can were found adulterated with methyl alcohol.
On the basis of the evidences led before it, the trial court found and held, and quite rightly, that the spirit sold by the appellant that caused the death of Yohannan and sickness to several other persons was spurious, being contaminated with highly injurious and poisonous substances and held him guilty of Ss. 55(a) & (i), 57A and 58 of the (Kerala) Abkari Act (hereinafter 'the Act'). The trial court sentenced the appellant to undergo rigorous imprisonment for two years on each count and a fine of Rs. One Lakh on each count except under Section 57A and in default to undergo simple imprisonment for one year on each count. The trial court also found the appellant guilty u/s. 201 of the Penal Code and on that count sentenced him to rigorous imprisonment for six months and a fine of Rs.5,000/- with the default sentence of simple imprisonment for one month. The trial court directed that the sentences of imprisonment shall run concurrently.
3. Against the judgment and order passed by the trial court, appeals were preferred both by the accused, including the present appellant and the State. The State in its appeal questioned the acquittal of some of the accused and also demanded enhancement of sentence in respect of those who were convicted and sentenced by the trial court. The High Court by its judgment and order dated October 8, 2004 dismissed the appeals of the accused, including the one by the appellant. However, dealing with the question of sentence on the basis of the State's appeal deemed it fit to enhance the appellant's sentence of imprisonment from two years to five years. In this connection, the High Court made the following observations:-
"....Evidence adduced in this case clearly establishes that A 41 sold illicit arrack on 21.10.2000 and 22.10.2000 and Yohannan died due to methanol poisoning of taking liquor from him and several persons were sustained injuries also. His conviction for offences u/s. 55(a) and (i) and u/s. 58 are confirmed. Even though he was only a small retail seller, who got liquor from A 25, one person died and several persons were injured. But, he is punished only for two years u/s. 55(a) and (i) and punishment should commensurate with the offence. Hence, his conviction and sentence under Section 57A (2) (ii) is confirmed. U/s. 55 maximum punishment is ten years. We are of the opinion that the sentence imposed on him should be enhanced. He is sentenced to undergo rigorous imprisonment for five years (instead of two years as imposed by the Sessions Judge) and to pay a fine of Rs. one Lakh in default to undergo simple imprisonment for six months on each count under Ss. 55(a) and (i). His conviction and sentence for other offence are also confirmed. Sentences shall run concurrently."
4. Against the judgment and order passed by the High Court, the accused came to this Court in different batches. In some Special Leave Petitions filed by different accused leave was granted but the Special Leave Petition Nos.237-238 filed by one Sudhakaran @ Sudha and the present appellant was initially dismissed by order dated January 24, 2005. Later on, the appellant filed Review Petition (Crl.) Nos.613-614 of 2005, which were allowed by order dated November 14, 2005 and leave was granted. By the same order, the appellant was also enlarged on bail.
5. Learned counsel appearing for the appellant did not at all question the conviction of the appellant under the different provisions of the Act. He has, however, vehemently contended that the High Court was completely wrong in enhancing the appellant's sentence and imprisonment from two years to five years. Learned counsel submitted that the only ground on which the High Court has enhanced the appellant's sentence was that the spirit sold by the appellant led to the death of one person. According to the learned counsel, this could not have been the valid ground for giving a heavier punishment.
6. Before considering this submission made by the learned counsel, it will be apposite to take a look at the relevant provisions of the Act, including those under which the appellant has been held guilty. S. 8 of the Act prohibits manufacture, import, export, transport, transit, possession, storage, sales, etc., of arrack and it is in the following terms:-
"8.(1) Prohibition of manufacture, import, export, transport, transit, possession, storage, sales etc., of arrack.- No person shall manufacture, import, export, transport, [without permit transit], possess, store, distribute, bottle or sell arrack in any form.
(2) If any person contravenes any provisions of subsection (1), he shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh."
7. S. 55 of the Act insofar as relevant for the present, is as under:-
"55. For illegal import, etc.-Whoever in contravention of this Act or of any rule or order made under this Act:
(a)imports, exports, [transports, transits or possesses] liquor or any intoxicating drug; or
(b) xxxx
(c) xxxx
(d) xxxx
(e) xxxx; or
(f) xxxx; or
(g) xxxx; or
(h) bottles any liquor for purposes of sale; or
(i) [sells or stores for sale liquor] or any intoxicating drug;][shall be punishable]
(1) for any offence, other than an offence falling u/cl. (d) or clause (e), with imprisonment for a term which may extend to [ten years and with fine which shall not be less than rupees one lakh and]
(2) for an offence falling u/cl. (d) or clause (e), with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both."
8. Section 57A reads as under:-
"57A. For adulteration of liquor or intoxicating drug with noxious substances, etc.-(1) Whoever mixes or permits to be mixed any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable-
(i) if, as a result of such act, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;
(ii) if, as a result of such act, death is caused to any person, with death or imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;
(iii)in any other case, with imprisonment for a term which shall not be less than one year, but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.
Explanation.- For the purpose of this Section and Section 57B, the expression "grievous hurt" shall have the same meaning as in S. 320 of the Indian Penal Code, 1860 (Central Act 45 of 1860).
(2) Whoever omits to take reasonable precautions to prevent the mixing of any noxious substance or any substance which is likely to endanger human life or to cause grievous hurt to human beings, with any liquor or intoxicating drug shall, on conviction, be punishable,- (i)if as a result of such omission, grievous hurt is caused to any person, with imprisonment for a term which shall not be less than two years but which may extend to imprisonment for lie, and with fine which may extend to fifty thousand rupees;
(ii)if as a result of such omission, death is caused to any person, with imprisonment for a term which shall not be less than three years but which may extend to imprisonment for life, and with fine which may extend to fifty thousand rupees;
(iii) in any other case, with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.
(3) Whoever possesses any liquor or intoxicating drug in which any substance referred to in sub-s. (1) is mixed, knowing that such substance is mixed with such liquor or intoxicating drug shall, on conviction, be punishable with imprisonment for a term which shall not be less than one year but which may extend to ten years, and with fine which may extend to twenty-five thousand rupees.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) no person accused or convicted of an offence under subs. (1) or sub-s. (3) shall, if in custody, be released on bail or on his own bond, unless-
(a) the prosecution has been given an opportunity to oppose the application for such release, and
(b) where the prosecution opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence.
(5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872)-
(a) where a person is prosecuted for an offence under sub-s. (1) or sub-section (2), the burden of proving that he has not mixed or permitted to be mixed or, as the case may be, omitted to take reasonable precautions to prevent the mixing of, any substance referred to in that sub-section with any liquor or intoxicating drug shall be on him;
(b) where a person is prosecuted for an offence under sub-s. (3) for being in possession of any liquor or intoxicating drug in which any substance referred to in sub-s. (1) is mixed, the burden of proving that he did not know that such substance was mixed with such liquor or intoxicating drug shall be on him"
9. S. 58 reads as under:-
"58. For possession of illicit liquor.- Whoever, without lawful authority, has in his possession any quantity of liquor or of any intoxicating drug, knowing the same to have been unlawfully imported, transported or manufactured, or knowing [the duty, tax or rental payable under this Act] not to have been paid therefore, [shall be punishable with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh]."
10. It may be seen that all the three provisions as contained under Sections 55, 57A and 58 provide for long periods of imprisonment, leaving it to the discretion of the court to fix the exact sentence having regard to the facts and circumstances of a particular case. Section 57A which is one of the Sections under which the appellant is convicted provides for a minimum sentence of three years' imprisonment. When it was pointed out to the learned counsel that under the relevant provisions the sentence of imprisonment could vary from one day to ten years (u/s. 55) and from three years to a life term (under Section 57A(2)(ii)) and from one day to ten years under Section 58, he replied that the appellant's conviction was not maintainable under Section 57A(2) (ii) and so far as Ss. 55 and 58 are concerned, the relevant considerations for giving a life sentence of imprisonment would be the amount of spirit stored for sale. According to him, the death of a person as a result of sale of the spurious liquor could not have been a ground for imposition of a heavier sentence.
11. We find no substance in the submissions. First, no good reason is given to hold that the appellant's conviction u/s. 57 (2) (ii) is not sustainable; secondly, in regard to the main issue in the case, i.e., whether the consequences of an offence can be taken into consideration for determining the appropriate punishment, a complete answer is to be found in Section 57A itself. Under Section 57A, the adulteration of liquor or the omission to take reasonable precaution to prevent the mixing of any noxious substance with any liquor are made offences. And then different sentences are provided in clauses (i), (ii) and (iii), depending upon the different consequences resulting from the offence. In case of grievous hurt, the minimum sentence is two years' imprisonment, in case of death, three years and in any other case, one year's imprisonment. There is no reason why the same basis may not be adopted for sentencing under the other provisions of the Act, e.g., Sections 8, 55 (a) & (i) and 58.
12. Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges. In State of Punjab v. Prem Sagar (2008) 7 SCC 550 2008 Indlaw SC 997 this Court acknowledged as much and observed as under -
"2. In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines."
13. Nonetheless, if one goes through the decisions of this Court carefully, it would appear that this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation etc. (See: Ramashraya Chakravarti v. State of Madhya Pradesh (1976) 1 SCC 281 1975 Indlaw SC 273, Dhananjoy Chatterjee alias Dhana v. State of W.B. (1994) 2 SCC 220 1994 Indlaw SC 1743, State of Madhya Pradesh v. Ghanshyam Singh (2003) 8 SCC 13 2003 Indlaw SC 716, State of Karnataka v. Puttaraja (2004) 1 SCC 475 2003 Indlaw SC 1071, Union of India v. Kuldeep Singh (2004) 2 SCC 590 2003 Indlaw SC 1386, Shailesh Jasvantbhai and another v. State of Gujarat and others (2006) 2 SCC 359 2006 Indlaw SC 571, Siddarama and others v. State of Karnataka (2006) 10 SCC 673 2006 Indlaw SC 500, State of Madhya Pradesh v. Babulal (2008) 1 SCC 234 2007 Indlaw SC 1262, Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498) 2009 Indlaw SC 1921
14. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness. The question is whether the consequences of the offence can be taken as the measure for determining its harmfulness? In addition, quite apart from the seriousness of the offence, can the consequences of an offence be a legitimate aggravating (as opposed to mitigating) factor while awarding a sentence. Thus, to understand the relevance of consequences of criminal conduct from a Sentencing standpoint, one must examine: (1) whether such consequences enhanced the harmfulness of the offence; and (2) whether they are an aggravating factor that need to be taken into account by the courts while deciding on the sentence.
15. In Sentencing and Criminal Justice, 5th Edition, Cambridge University Press, 2010, Andrew Ashworth cites the four main stages in the process of assessing the seriousness of an offence, as identified in a previous work by Andrew Von Hirsch and Nils Jareborg.
1. Determining the interest that is violated (i.e. physical integrity, material support, freedom from humiliation or privacy/autonomy)
2. Quantification of the effect on the victim's living standard.
3. Culpability of the offender.
4. Remoteness of the Actual harm.
16. Ashworth then examines various specific offences to ascertain how seriousness is typically gauged. The most relevant example is that of drug trafficking, where the author notes the problem that the offence lies fairly remote from causing people's deaths. Ashworth further notes that harsh sentences for drug trafficking offences is justified more by deterrent rationales than proportionality concerns, although even the deterrent rationales are beset with problems. (See Pages 128 - 130)
17. Here, it needs to be noted that one major difference between production/sale of spurious liquor and drug trafficking is that in the case of spurious liquor, the consumer does not know what he is consuming, whereas in the case of drugs, the consumer, at least in the initial stages, knowingly and voluntarily chooses to consume the drugs.
18. Ashworth also examines the impact of unintended consequences on sentencing. He notes that there is a tendency to take those into account in manslaughter and for causing death by bad driving. The extent to which unintended consequences may be taken into account would depend, for instance, on the extent to which the offender was put on notice of the risk of death. Thus, where it is known that driving dangerously or under the influence of alcohol creates risk for the safety of others, there would be a greater emphasis on resulting death while determining the sentence. (See Pages 153 - 154).
19. Arguably, one might surmise that manufacturers of spurious liquor must be able to reasonably foresee that consumption of spurious liquor would affect the health (and possibly life) of others. Thus, there may be some basis for taking into account the unintended consequences while determining sentence. The remoteness of harm would be a factor when a person, by consuming drugs, dies after a period of sustained use. Where a person consuming spurious liquor dies as a result of such consumption, the harm is much more direct and immediate, and remoteness of harm may not be as much of an issue.
20. Germane to the issue under consideration is a decision of the Supreme Court of Appeal of South Africa in S Nyathi and The State [2005] ZASCA 134 (23 May 2005) and we may usefully refer to it. The case relates to the death of six people resulting from the road accident in which a sedan driven by the appellant in that case collided with a minibus taxi. The impact caused the minibus to overturn, killing six of its occupants. Some other passengers were injured. The appellant was convicted of culpable homicide. The court found that the collision between the two vehicles had taken place on a blind rise where a double barrier line prohibited overtaking by vehicles coming from either direction. It was the admitted position at the trial that forward visibility was restricted. The court observed that overtaking on a barrier line, and specially on a double barrier line, where a motorist should realise that his inability to observe approaching traffic is compounded by the inability of the traffic in the opposite direction to see him is probably the most inexcusably dangerous thing a road user can do. Coming to the question of sentence, the Court observed:
"[13] Road accidents with calamitous consequences are frequently caused by inadvertence, often momentary. [Dube v S [2002] JOL (Judgments on Line) 9645 (T), a case mentioned by the regional magistrate, is an example. The appellant was the driver of a bus involved in an accident on a mountain pass which killed twenty eight passengers. On appeal a suspended sentence of two years' imprisonment was substituted for one of six years' imprisonment imposed by the trial court on the footing that the appellant's negligence had been slight.] Overtaking on a double barrier line is not inadvertence. It is a conscious decision to execute a manoeuvre that involves taking a fearfully high risk. Referring then to some earlier decisions of the Court in paragraph 14 of the judgment it observed as under:-
"[14] In S v Nxumalo [1982] 3 S.A. 856 (SCA) the court approved a passage from R v Barnardo [1960] 3 S.A. 552 where the court held that although no greater moral blameworthiness arises from the fact that a negligent act caused death, the punishment should acknowledge the sanctity of human life. It affirmed the dicta of Miller J who twenty years earlier in S v Ngcobo [1962] 2 S.A. 333 had set out the approach to road death cases.
'It seems to me that in determining an appropriate sentence in such cases the basic criterion to which the Court must have regard is the degree of culpability or blameworthiness exhibited by the accused in committing the negligent act. Relevant to such culpability or blameworthiness would be the extent of the accused's deviation from the norm of reasonable conduct in the circumstances and the foresee ability of the consequences of the accused's negligence. At the same time the Actual consequences of the accused's negligence cannot be disregarded. If they have been serious and particularly if the accused's negligence has resulted in serious injury to others or loss of life, such consequences will almost inevitably constitute an aggravating factor, warranting a more severe sentence than might otherwise have been imposed.'"
(Emphasis Added)
21. Punishment should acknowledge the sanctity of human life. We fully agree.
22. From the above, one may conclude that:
1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence.
2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor.
23. In light of the discussion made above, we are clearly of the view, that the High Court was fully justified in taking into account the death of a person, as a result of consuming the illicit liquor, sold by the appellant as a ground for enhancing his sentence from two years to five years rigorous imprisonment. There was absolutely no illegality or lack of jurisdiction in the order of the High Court and we would have unhesitatingly upheld the order of the High Court but for another reason. It is noted above that a number of appeals against the judgment and order by the High Court came before this Court at the instance of a number of accused. One of them happened to be accused No.25 who was the supplier of the illicit liquor to the appellant and from him the appellant had received the fatal supply that led to the death of Yohannan and sickness of a number of others.
The trial court had convicted accused no.25 under Section 57A(2)(ii) of the Act and sentenced him to imprisonment for life and a fine of Rs. fifty thousand with the default sentence of simple imprisonment for six months. He was convicted and sentenced to undergo rigorous imprisonment for five years and a fine of rupees fifty thousand with the default sentence of imprisonment for six months under Section 57A(2)(i) of the Act. He was also convicted under Sections 57A(2)(iii), 55(a)(i) and 58 of the Act. The High Court had maintained the conviction and sentence passed by the trial court.
This Court, however, by its judgment and order dated April 4, 2011 in Chandran v. State of Kerala (2011) 5 SCC 161 2011 Indlaw SCO 308 maintained the conviction of accused no.25 under the various provisions as recorded by the trial court and affirmed by the High Court. However, it accepted the plea made on behalf of accused no.25 to reduce his sentence from a life term to ten years imprisonment. Since this Court has deemed fit to reduce the sentence given to accused no.25 from a life term to ten years rigorous imprisonment, we feel that it will not be fair not to give the same concession to the appellant (accused no.41) who was the last and weakest link in the chain. We, accordingly, reduce his sentence from five years rigorous imprisonment to three years rigorous imprisonment, being the minimum under Section 57A (2) (ii) of the Act. The fines imposed by the courts below for the different offences remain unaltered.
24. In the result, the appeals are dismissed, subject to modification and reduction in sentence, as noted above.
25. The bail bonds of the appellant are cancelled. He will be taken into custody to serve his remainder sentence.
Appeals dismissed


State Of M.P v Bablu Natt
Supreme Court of India

18 December 2008
CRIMINAL APPEAL NO. 2060 OF 2008 [arising out of SLP (Criminal) No. 5644 of 2005]
The Judgment was delivered by : S. B. Sinha, J.
Leave granted.
1.  On 26.03.2000, Respondent bought paddy husk for a sum of Rs. 500/- from the father of the prosecutrix whereafter they were said to have become acquainted with each other. Respondent and his friend Mohan Bangali, who came with him, at their request were allowed to sleep in the Khalihan. However, in the middle of the night, he took the prosecutrix away with him. On the next day, i.e., on 27.03.2000, a First Information Report (FIR) was lodged by Shaktideen, father of the prosecutrix. The prosecutrix was a minor but a married woman. She was recovered on 27.7.2000. Respondent was arrested on 28.7.2000. Charges for commission of offences punishable under Sections 366 and 376 of the Indian Penal Code ('IPC' for short) were framed.
2.  Respondent in his defence raised a plea that prosecutrix was a consenting party. He also raised a plea that she was major. In support of the said contention, he produced an affidavit purported to have been affirmed by her stating where her age to be 18. Further contention of the respondent was that he had arranged the second marriage of Shaktideen, the father of the prosecutrix, subject to the condition that Lilawati (prosecutrix) would be married with him and that is why both the families were on visiting terms and Lilawati eloped with respondent voluntarily and had undergone a court marriage.
3.  The learned Sessions Judge found that he had committed sexual intercourse with the prosecutrix without her consent and against her will. But even if it is accepted that she was a consenting party, as she was not more than 13 years of age, such purported consent was of no moment. Accused was found to have committed sexual intercourse with the prosecutrix on more than one occasion against her will and without her consent between 26th and 27th March, 2000 till the date of her recovery, i.e, 27.7.2000, and, thus, is guilty of commission of offences punishable under Sections 366 and 376 of IPC.
4. The learned Sessions Judge, upon considering the materials on record, found that respondent had taken away the prosecutrix from the lawful custody of her lawful guardian Shaktideen - her father - without his consent, with the intention that she be forced to illicit sexual intercourse. It was further held that the appellant had knowledge that the prosecutrix was married but even then he took her away with himself and committed sexual intercourse with the prosecutrix against her will and without her consent.
Upon hearing respondent on the question of sentence, it was held:
"22. It was argued on behalf of accused that this is his first offence therefore he should be pardoned. Argument and request was heard and considered. As has been found above that being well aware of the fact that prosecutrix is married and a minor, even then he took away prosecutrix from the lawful keeping of guardianship of her father without the consent of the father for committing illicit sexual intercourse with her and committed sexual intercourse with prosecutrix against her will and without her consent. In such a circumstance, the above-proved act of the accused does not deserve any pardon. But as the accused is a young man of 20 years therefore, accused Bablu Natt is sentenced to undergo 7-7 years of rigorous imprisonment (for each offence) and with a fine of Rs.500/-, 500/- (five hundred) (for each offence) for committing offences punishable under Section 366/376 of IPC. In case of default of payment of fine, accused had to further undergo 2-2 years of rigorous imprisonment for default of payment of each amount of fine."
5.  An appeal was preferred thereagainst. The High Court, by reason of the impugned judgment, while upholding the judgment of conviction interfered with the quantum of sentence, stating:
"11. Yet there is another facet of the case. True, the prosecutrix was minor and did not attain the age of majority. But it is equally true that she is sensible girl having age of 15 years, she did not complain to anybody and she lived for several days with appellant at Chhatarpur. She also traveled at several places in bus she did not complain to anybody. Not only this, she also sworn an affidavit at District Court, Chhatarpur mentioning her age to be 18 years and stated that she is living with appellant as his wife. The prosecutrix admitted in her testimony that she executed affidavit Ex. D/1. In this view of the matter, looking to the totality of the facts and surrounding circumstances, this is a fit case for interfering in the quantum of punishment. For the reasons assigned hereinabove, the view of this Court is that for the ends of justice it would be justifiable to enlarge the appellant for the period he has already undergone. From verifying the record, learned counsel for the respondent has submitted that appellant has undergone a jail sentence of four years and two months, according to me, this would be sufficient punishment for him."
The State is, thus, before us.
6.  Mr. Vibha Datta Makhija, learned counsel appearing on behalf of appellant submitted that rigorous imprisonment for seven years having been prescribed by the Parliament, the reasons assigned for sentencing the respondent for the period undergone should not be upheld.
7.  Mr. Anish Kumar Gupta, learned counsel appearing on behalf of respondent, however, supported the judgment of the High Court contending that the reasons assigned by the High Court are not only sufficient but also cogent for the purpose of invoking the proviso appended to Section 376 of the IPC.
8.  Indisputably, sentence in terms of Section 366 of the I.P.C. may extend to rigorous imprisonment for a term of ten years or fine or with both. Section 376 thereof provides for sentence for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. The proviso appended thereto, however, provides that 'the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years'.
9.  Was it a case where the proviso to Section 376 could be invoked is the question. The prosecutrix and the respondent were unknown to each other. They came to know each other only on the night of 26.3.2000. A finding of fact had been arrived at that she was minor. The fact that she was subjected to sexual intercourse was supported by the medical evidence. Medical opinion was rendered that rape was committed on her and she was not habituated to sexual intercourse. On medical examination, her age was assessed between 11 and 13 years.
10.  We may place on record a few questions put to the said witness and answers thereof:
"Question: What happened to you?
Answer: When I asked the accused to take me to my house then he started talking nonsense and started telling me.
Question: What nonsense he started talking with you and what he started telling you?
Answer: Accused asked me to sleep with him and I refused, the accused made me sleep with him by use of force and took off my Saari and also took off my clothes and humiliated me and did bad act with me. (One sentence omitted).
I could not even go to my parents house because the accused was keeping me in his house
XXX XXX XXX
Everyone in my house call me Bitti. It is wrong to say that I went with accused Bablu on my own volition. It is wrong to say that I married with accused Bablu in the Chattarupur Court by my own will. It is wrong to say that an affidavit was signed in this respect. It is correct that such paperwork was completed in the Court and accused told me to tell my age to be 18 years therefore, I told my age to be 18 years. It is wrong to say that I completed such paperwork. When I was caught in the house of the accused, I was kept there by the accused for 6 days. I do not know that whose house is located besides the house of accused Bablu. When witness was shown affidavit of Exhibit D-4, witness says that photograph pasted on it from A to A belongs to her. It is wrong to say that Bablu did not elope me. It is wrong to say that I came to his house on my own will."
11.  Admittedly, an offence with which respondent was charged had been proved to have been committed. He also got an affidavit affirmed by the prosecutrix showing her age to be 18 years, which was found to be false. He, therefore, knew the intricacies of law.
12.  The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with. Socio-economic status, religion, race, caste or creed of the accused and the victim although may not be wholly irrelevant, should be eschewed in a case of this nature, particularly when Parliament itself had laid down minimum sentence. In India, we do not have sentencing guidelines. Necessity of the guidelines on the judicial side has been highlighted in State of Punjab vs. Prem Sagar & Others.[(2008) 7 SCC 550 2008 Indlaw SC 997], wherein it was noticed:
"5. Whether the Court while awarding a sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality, would no doubt depend upon the facts and circumstances of each case. While doing so, however, the nature of the offence said to have been committed by the accused plays an important role. The offences which affect public health must be dealt with severely. For the said purpose, the courts must notice the object for enacting Article 47 of the Constitution of India.
6. There are certain offences which touch our social fabric. We must remind ourselves that even while introducing the doctrine of plea bargaining in the Code of Criminal Procedure, certain types of offences had been kept out of the purview thereof. While imposing sentences, the said principles should be borne in mind.
7. A sentence is a judgment on conviction of a crime. It is resorted to after a person is convicted of the offence. It is the ultimate goal of any justice-delivery system. Parliament, however, in providing for a hearing on sentence, as would appear from sub-section (2) of Section 235, sub-section (2) of Section 248, Section 325 as also Sections 360 and 361 of the Code of Criminal Procedure, has laid down certain principles. The said provisions lay down the principle that the court in awarding the sentence must take into consideration a large number of relevant factors; sociological backdrop of the accused being one of them.
8. Although a wide discretion has been conferred upon the court, the same must be exercised judiciously. It would depend upon the circumstances in which the crime has been committed and his mental state. Age of the accused is also relevant."
13. Upon noticing the development of law in this behalf in other countries, it was opined:
"31. We have noticed the development of law in this behalf in other countries only to emphasise that the courts while imposing sentence must take into consideration the principles applicable thereto. It requires application of mind. The purpose of imposition of sentence must also be kept in mind."
14.  One of the principles that the judiciary had all along kept in its mind that rape being a violation with violence of the private person of a woman causes mental scar, thus, not only a physical injury but a deep sense of some deathless shame is also inflicted. (See Mohan Anna Chavan vs. State of Maharashtra [2008 (9) Scale 474 2008 Indlaw SC 913] and Bantu vs. The State of U.P. [2008 (10) Scale 336 2008 Indlaw SC 1142]
15. Although, with utmost respect to the Hon'ble Judges, one may not entirely agree with invocation of doctrine of proportionality in imposing death sentence as has been highlighted in the above two cases, we may notice that in latter doctrine of proportionality has been invoked, stating:
"The 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 desert as the basis of punishment and create cases of apparent injustice that are serious and widespread."
16.  We may also notice that in State of M.P. vs. Bala alias Balaram [(2005) 8 SCC 1 2005 Indlaw SC 649], this Court commenting upon the grossly inadequate sentence imposed upon by the High Court of Madhya Pradesh, stated:
"Sub-section (1) of Section 376 I.P.C. provides that whoever, except in the cases provided for by Sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. In the category of cases covered under Sub-section (2) of Section 376, the sentence cannot be less than 10 years but which may be for life and shall also be liable to fine. The proviso appended to Sub-section (1) lays down that the Court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. There is a similar proviso to Sub-section (2) which empowers the Court to award a sentence of less than 10 years for adequate and special reasons to be mentioned in the judgment. The High Court in the impugned order has awarded a sentence which is not only grossly inadequate but is also contrary to express provision of law. The High Court has not assigned any satisfactory reason much less adequate and special reasons for reducing the sentence to a term which is far below the prescribed minimum. Therefore, the sentence awarded by the High Court is clearly illegal."
P. K. Balasubramanyan, J. in his judgment added:
"The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. The penal statute has prescribed a maximum and a minimum punishment for an offence under Section 376 I.P.C. To view such an offence once it is proved, lightly, is itself an affront to society. Though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative. The provisos to Section 376(1) and 376(2) I.P.C. give the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason.
13. The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilized society does not revert to the days of 'an eye for an eye and a tooth for a tooth'. Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted."
17.  The said line of reasonings was adopted in about twelve short orders following the said decision.
18.  In State of Karnataka vs. Raju [(2007) 11 SCC 490 2007 Indlaw SC 944], it was held:
"It needs no emphasis that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.
It is to be noted that in Sub-section (2) of Section 376 I.P.C. more stringent punishment can be awarded taking into account the special features indicated in the said sub-section. The present case is covered by Section 376(2)(f) IPC i.e. when rape is committed on a woman when she is under 12 years of age."
19.  We have noticed hereinbefore that the age of the prosecutrix was assessed between 11 and 13 years, but by way of abundant precaution, the learned Sessions Judge held her age to be less than 13. The court has not, therefore, awarded any punishment in terms of Section 376(2)(f) of the Indian Penal Code. But even in doing so, the learned trial judge herein imposed the minimum sentence, should have met the approval of the High Court. It was a case where the minimum sentence, to say the least, could be imposed. While saying so, we may notice that this Court in State of U.P. vs. Bodem Sundara Rao [(1995) 6 SCC 230]1995 Indlaw SC 1760 stated the law thus:
"After its amendment, Section 376(1) provides for a minimum sentence of seven years which may extend to life or for a term which may extend to 10 years besides fine for the offence of rape. The proviso to Sub-Section (1) lays that the Court may for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.
Keeping in view the nature of the offence and the helpless condition in which the prosecutrix a young girl of 13/14 years was placed, the High Court was clearly in error in reducing the sentence imposed upon the respondent and that too without assigning any reasons, much less special and adequate reasons. The High Court appears to have overlooked the mandate of the Legislature as reflected in Section 376(1) IPC.
In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane. There are no extenuating or mitigating circumstances available on the record which may justify imposition of sentence less than the minimum prescribed by the Legislature under Section 376(1) of the Act."
20.  The imposition of minimum sentence having been brought about by an amendment in the statute, the court should always bear in mind the effect thereof. The power conferred on the court to impose a sentence less than the minimum prescribed must not only be supported by any reason but adequate and special reasons ought to be mentioned therefor. The High Court did not do so. It is difficult to comprehend as to on what materials the High Court opined that 'she was a sensible girl having age of 15 years, she did not complain to anybody and lived for several days with respondent at Chhatarpur'. The fact that she was a minor and subjected to rape and furthermore, as noticed hereinbefore, according to her, she was compelled to live for several days with the respondent at Chhatarpur as he would not listen to her plea of taking her to her father was lost sight of by the High Court. The affidavit affirmed by her was found to have been obtained without her knowing the contents thereof and at the instance of respondent. The very fact that she was made to state that her age was 18 years and she was living with the respondent as a wife clearly goes to show the mental trauma which she was undergoing.
21. We are, therefore, of the opinion that the contents of the said affidavit were wrongly used for imposing a sentence less than minimum prescribed sentence considering the same to be mitigating factor.
22.  Our attention, however, has been drawn to the decision of this Court in State of Punjab vs. Gurmit Singh & Ors. [(1996) 2 SCC 384 1996 Indlaw SC 1087], wherein this Court imposed less sentence than the minimum prescribed one. In that case, a judgment of acquittal was passed. This Court reversed the said judgment. It was in the aforementioned situation, balance was sought to be struck, stating:
"...In this case the occurrence took place on 30.3.1984 (more than 11 years ago. The respondents were aged between 21-24 years of age at the time when the offence was committed. We are informed that the respondents have not been involved in any other offence after they were acquitted by the trial court on 1.6.85, more than a decade ago. All the respondents as well as prosecutrix must have by now got married and settled down in life. These are some of the factors which we need to take into consideration while imposing an appropriate sentence on the respondents.
We accordingly sentence the respondents for the offence Under Section 376 IPC to undergo five years' RI each and to pay a fine of Rs. 5000 each and in default of payment of fine to 1 year's RI each. For the offence Under Section 363 IPC we sentence them to undergo three years R.I. each but impose no separate sentence for the offence Under Section 366/368 IPC. The substantive sentences of imprisonment shall, however, run concurrently."
23.  The decision does not lay down any legal principle. It does not create a binding precedent. We have noticed that the same learned judge has spoken in different voice in Bodem Sundara Rao1995 Indlaw SC 1760 (supra).
24.  For the reasons aforementioned, the judgment of the High Court is set aside so far as it relates to the quantum of sentence and the judgment awarded by the trial court is restored. It is directed that the respondent be taken in custody forthwith to serve out the remaining sentence. The appeal is allowed to the aforementioned extent.
Appeal allowed


Hari Kishan And Anr. v Sukhbir Singh And Ors
Supreme Court of India

25 August 1988
Criminal Appeal No. 74 and 75 of 1986.
The Judgment was delivered by : K. J. Shetty, J.
1.  These two appeals, by special leave, are directed against a judgment of the High Court of Punjab & Haryana in Criminal Appeal No. 128-SP of 1984. The common respondents in the appeals. were prosecuted for various offenses in the court of Additional Sessions judge, Faridkot. By judgment dated February 28, 1984 learned Judge convicted and sentenced the accused as follows:
"Keeping in view the circumstances of the case and the part played by each of them I, hereby sentence Sukhbir, Sukhpal and Surat Singh accused to undergo R.I. for four years u/s 307/149 IPC. Each of Om Pal, Dhan Pal, Mannu and Siri Chand are ordered to undergo R.I. for three year. u/s 307/149 IPC.
Each of the seven accused are further ordered to undergo R.I. for one year 148 IPC, two years R.I. u/s 325 149 IPC and one year R. I. s/u 323/149 IPC. Keeping in view the circumstances of the case. all the sentences shall run concurrently."
2.  The accused appealed t the High Court challenging the conviction and sentence. The High Court by the judgment under appeals acquitted Sukhpal Singh and Surat singh of all charges by giving them the benefit of doubt. The other accused who are respondents herein are also acquitted of the offence under s. 307/149 and s. 148 IPC. There conviction and sentence under s. 325/149, 323/149 and s. 148 IPC are however. maintained. They are released on probation of good conduct. Each one of them, is ordered to pay compensation of Rs. 2,500 to Joginder who was seriously injured in the incident. In default to pay the compensation they are directed to serve their sentence. The operative portion of the judgment runs like this:
"There is no previous history of enmity between two parties. The occurrence is the outcome of a sudden flare up. I think, these five appellants namely Sukhbir Singh Dhanpal, Mannu, Siri Chand and Om Pal are entitled their benefit under s. 360 Cr. P.C. Consequently, I suspend their sentence under s. 325/149, 323/149 and s. 148 IPC and order that the appellants namely Sukhbir Singh, Dhan Pal Mannu. Siri Chand and Om Pal be released on probation on their entering into bonds of Rs.3,000 each with one surety in the like amount for a period of one year, to the satisfaction of the trial court, undertaking to appear in the court to receive the sentence during the said period whenever called upon to do so and in the meantime to keep peace and be of good behavior. However, each one of the appellant would pay Rs.2,500 as compensation payable to Joginder injured. Compensation if not paid within two months, the appellants namely Sukhbir Singh, Dhanpal. Mannu, Siri Chand and Om Pal would be called upon to serve their sentence. But for this modification, appeal fails and is hereby dismissed.
In view of s. 12 of the Probation of Offenders Act no disqualification would attach to the appellants due to this conviction.
Sd/-K.P.S.Sandhu
Judge"
Dt. November 13, 1984
3.  In these appeals, there is no serious dispute with regard to acquittal of Sukhpal Singh and Surat Singh. The prosecution case that they were armed with Barchha has not been proved. There was no incised injury on the victim or any of the prosecution witnesses. Their participation in the commission of crime therefore appears to be doubtful. The High Court was justified in acquitting them.
4.  Counsel for the appellants are, however, vary critical of the order of High Court with regard to the remaining accused. It is urged that the High Court was too much charitable to, them. The intention of accused was obviously to commit murder of joginder. Their acquittal under s. 307 IPC is characterised as perverse. At any rate, it is said that they ought not have been put on probation. It is an abuse of the process of Court. They should have been properly sentenced by term of imprisonment and fine. It is also urged that Joginder has sustained permanent disability due to head injury and no amount of compensation would be adequate for him except severe punishment to the accused as a general deterrence. Counsel for the accused on the other hand, seeks to support the order of the High Court in every respect.
5.  In the light of the submissions, three questions arise consideration (i) whether the respondents are not guilty of the offence under s. 307/149 IPC; (ii) whether the High Court was justified in extending the benefit of s. 360 Cr.P.C. and releasing the accused on probation of good conduct; and (iii) whether the compensation awarded to Joginder could be legally sustained, and if so, what should be the proper compensation?
6.  For a proper consideration of these questions, we may summarise briefly the factual background: The rival parties in this case are collaterals. On September 28, 1982 at about 8/9 a.m. they had an altercation near the tubewell belonging to Hari Kishan. Joginder is the son of Hari Kishan. Virender another injured in this case is nephew of Hari Kishan. Hari Kishan was sitting near his tubewell. Virender and Joginder were sowing Berseem crop. The accused carne from the side of the tubewell. They were armed with Ballams and Dangas. One of them raised a Lalkara at which the accused attacked Virender and Joginder. In the brawl that followed some of the accused were also injured. The injured were removed to Civil Hospital, Ballabgarh. The Medical Officer there referred them to Safdarjung Hospital, New Delhi. Finally they landed themselves at the AIIMS, New Delhi. They were examined by the Doctors. Virender was found to have two injuries caused by blunt weapons. Joginder was found to have head injury. Amongst the accused Siri Chand, Dhan Pal, Om Pal and Sukhbir Singh were injured. They were medically examined in AIIMS or Safdarjung Hospital, New Delhi. Siri Chand had four injuries including a fracture caused by blunt weapon. that has been proved by Dr. Rita Sood (DW1). Dhan Pal and Om Pal each had four injuries but simple. They were also, caused by blunt weapons. Dr. V.K. Dhingra (DW 2) has spoken to that. Sukhbir singh had one incised wound on his person. Dr.Anurag Saxena (DW 3) has testified.
7.  On the first question as to acquittal of the accused under s.3O7/149 IPC, some significant aspects may be borne in mind. Under s.307 IPC what the Court has to see is, whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in that section. The intention or knowledge or the accused must be such as is necessary constitute' murder. Without this ingredient being established, there can be no offence of "attempt to murder". Under s. 307 the intention precedes the act attributed to accused. Therefore, the intention is to be gathered from all circumstances, and not merely from the consequences that ensue. The nature of the weapon used, manner in which it is used. motive for the crime, severity of the blow, the part of the body where the injury is inflicted are some of the factors that may be taken into consideration it, determine the intention.In this case, two parties in the course of a fight inflicted on each other injuries both serious and minor. The accused though armed with ballam never used the sharp edge of it.
8.  They used only the blunt side of it despite they being attacked by the other side. They suffered injuries but not provoked or tempted to use the cutting edge of the weapon. It is very significant. It seems to us that they had no intention to commit murder. They had no motive either. The fight as the High Court has observed, might have been a sudden flare up. Where the fight is accidental owing to a sudden quarrel, the conviction under s. 307 is generally not called for. We, therefore, see no reason to disturb the acquittal of accused under s. 307 IPC.
9.  The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not shown to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to first offenders cannot be said to be inappropriate.
10.  This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs. 2,500 as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to s. 357 Cr. P.C. Section 357, leaving aside the unnecessary, provides:
"357. Order to pay compensation:
(1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part,the Court may. when passing judgment. order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence. When compensation is in the opinion of the Court, recoverable by such person in a civil Court;
XXXXX XXXXX XXXX XXXXX XXXXX XXXXX
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment. order the accused person to pay, by way of compensation. such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter. the Court shall take into account any sum paid or recovered as compensation under this section."
11.  Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case. we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to re-assure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent. a constructive approach to, crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
12.  The payment by way of compensation must, however, be reasonable What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default.
13.  Joginder in this case is an unfortunate victim. His power of speech has been permanently impaired. Doctor has certified that he is unable to speak and that is why he has not stepped into the witness box for the prosecution. The life long disability of the victim ought not to be bye- passed by the Court. He must be made to feel that the Court and accused have taken care of him. Any such measure which would give him succor is far better than a sentence by deterrence.
14.  The compensation awarded by the High Court, in our opinion, appears to be inadequate having regard to the nature of injury suffered by Joginder. We have ascertained the means of accused and their ability to pay further sum to the victim. We are told that they are not unwilling to bear the additional burden. Mr. Lalit learned counsel said that his clients are willing to pay any amount determined by this Court. It is indeed a good gesture on the part of counsel and his clients.
15.  With due regard to all the facts and circumstances of the case, we consider that Rs.50,000 compensation to Joginder would meet the ends of justice. We direct the respondents to pay the balance within two months in equal proportions.
16.  The order of the High Court is modified only to the extent of Compensation as indicated above and in all other respects it is kept undisturbed. The appeals are accordingly disposed of.
Appeal disposed of


Kashmiri Lal v State Of Haryana
Supreme Court of India

15  May  2013
CRIMINAL APPEAL NO. 1576 OF 2009
The Judgment was delivered by : Dipak Misra, J.
1. This Appeal by Special Leave is directed against the judgment of conviction and order of sentence dated July 31, 2008 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 543-SB of 1996 whereby the learned Single Judge has given the stamp of approval to the conviction and sentence recoded by the learned Additional Sessions Judge, Kurukshetra in S.T. No. 15 of 1993 on 24.7.1996 whereby he, after finding the accused-appellant guilty of the offence punishable u/s. 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for brevity 'the Act'), had sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to suffer further rigorous imprisonment for a period of one year.
2. The factual matrix as has been undraped by the prosecution is that on 23.12.1992 about 10.00 A.M., Kaptan Singh, the Sub-Inspector, along with other police officials, was present near Deer Park, Pipli, in connection with excise checking in a Tata Mobile Vehicle. Receiving a secret and reliable information to the effect that the accused- appellant would come to the 'dhaba' situated on the G.T. Road, on his scooter, carrying opium and if a picket was held, he could be apprehended, he sent a V.T. message to the Additional Superintendent of Police to reach the place. Thereafter, Kaptan Singh, along with other police officials, went to the T-point of Jahajo Wali Road on G.T. Road and held a picket. In the meanwhile, the accused was seen coming on his scooter, bearing No. DLS-1756 and at that time Mohmad Akil, Additional S.P., Kurukshetra, along with his staff arrived at the spot. He was apprised of the situation and, thereafter, on his instructions search of the tool box of the scooter was conducted and a polythene bag containing of 5 Kg. of opium was recovered. Ten grams opium was separated as sample and the remaining opium was put into a separate container. The sample and the container, containing the remaining opium, were converted into parcels duly sealed with seals and taken into possession vide a separate recovery memo. The accused was arrested and a ruqa was sent to the police station on the basis whereof a formal FIR was registered. After completing the investigation the charge-sheet was submitted before the competent court.
3. Before the trial court the accused abjured his guilt, pleaded false implication and claimed to be tried.
4. The prosecution to substantiate its case examined Banarsi Das, Head Constable, PW-1, Dharam Singh, ASI, PW-2, Mam Chand, Constable, PW-3, Ram Udit, Head Constable, PW-4, Akil Mohamad, S.P., PW-5 and Kaptan Singh and the Investigating Officer, PW-6. The accused in his statement u/s. 313 of the Code of Criminal Procedure stated that he was employed in the 'dhaba', namely, Man Driver Dhaba at village Teora and he had been apprehended from the 'dhaba' and falsely implicated. In support of his defence, he examined Karan Singh, DW-1, who had recorded the statements of PW-1 and PW-3.
5. Before the learned trial Judge, it was contended that the prosecution had miserably failed to bring home the charge by resting its case solely on the version of official witnesses and not examining any independent witness despite the fact that the accused was apprehended and alleged contraband articles were seized while he was in a 'dhaba'; that there had been non-compliance of S. 50 of the Act inasmuch as he was not properly informed about his right to be searched in presence of a gazetted officer or a Magistrate; that the recovery from the tool box of the scooter would not amount to conscious possession of the contraband article by the accused; and that the non-production of the scooter in court falsified the version of the prosecution. The learned trial Judge dealt with all the aspects and came to hold that the search and seizure was valid; that the accused had not been falsely implicated; and that the non-production of the scooter did not in any manner affect the case of the prosecution. Being of this view, he found the accused guilty and sentenced him as has been stated hereinbefore.
6. Against the conviction and sentence the accused preferred an appeal before the High Court. Apart from raising the contentions which were raised before the learned trial Judge, a further submission was put forth that as per the report of the Forensic Science Laboratory morphine content contained in the sample was found only to be 1.66% and as the morphine percentage in the bulk of the opium was required to be taken into consideration, the alleged recovery of opium did not fall within the ambit of non-commercial quantity and hence, the sentence should have been imposed regard being had to the non- commercial quantity and not commercial quantity. The High Court concurred with the view expressed by the learned trial Judge and proceeded to deal with the additional submission and ultimately held that as the seizure had taken place on 23.12.1992, the amendment which has been brought into the Act in the year 2001 would not be attracted.
Be it noted, the non-production of the scooter before the trial court was highlighted with immense vehemence but the learned Single Judge repelled the said submission being devoid of any substance and further directed confiscation of the scooter in question as envisaged under the provisions contained in Ss. 60(3) and 63 of the Act. The aforesaid conclusions led to the dismissal of the appeal.
7. Questioning the legal substantiality of the judgment of conviction learned counsel for the appellant, has raised the following contentions: -
(i) It was incumbent on the part of the prosecution to examine the independent witnesses when the search and seizure had taken at a public place, i.e., in a 'dhaba' and not to rely exclusively on the official witnesses to prove the case against the accused.
(ii) There has been non-compliance of S. 50 of the Act as he had not been informed about his right to be searched in presence of a gazetted officer or a Magistrate and that vitiates the conviction.
(iii) The High Court has fallen into serious error by not treating the seized opium failing within non-commercial quantity despite the report of the Forensic Science Laboratory that the morphine content contained in the sample was 1.66%.
(iv) The non-production of the scooter creates an incurable dent in the foundation of the case of the prosecution and the said aspect having not been appositely dealt with by the learned trial Judge as well as by the High Court, the judgment of conviction and order of sentence are liable to be set aside.
8. Learned counsel for the State, resisting the aforesaid submissions, has advanced the following proponements: -
(a) The non-examination of independent witnesses in the case at hand does not affect the prosecution case, for there is no absolute rule that the prosecution cannot establish the charge against the accused by placing reliance on the official witnesses.
(b) As the contraband goods have been seized from the tool box of the scooter and not from the person of the accused, S. 50 of the Act has no applicability.
(c) The morphine content in the seized opium, in the case at hand, has no relevance to determine the commercial or non-commercial quantity regard being had to the fact that the occurrence had taken place in the year 1992 whereas the amendment was incorporated in the statute book in 2001.
(d) The non-production of the scooter in the court cannot be a ground for setting aside the conviction since all the witnesses have specifically mentioned about the registration number of the scooter and there is no justification to discard their testimony.
9. As far as first submission is concerned, it is evincible from the evidence on record that the police officials had requested the people present in the 'dhaba; to be witnesses, but they declined to cooperate and, in fact, did not make themselves available. That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence. These aspects have been highlighted in State of U.P. v. Anil Singh, 1988 Supp SCC 686 1988 Indlaw SC 28, State, Govt. of NCT of Delhi v. Sunil and another, (2001) 1 SCC 652 2000 Indlaw SC 3131 and Ramjee Rai and others v. State of Bihar, (2006) 13 SCC 229 2006 Indlaw SC 459. Appreciating the evidence on record on the unveil of the aforesaid principles, we do not perceive any acceptable reason to discard the testimony of the official witnesses which is otherwise reliable and absolutely trustworthy.
10. The second plank of submission pertains to non-compliance of S. 50 of the Act. There is no dispute over the fact that the seizure had taken place from the tool box of the scooter. There is ample evidence on record that the scooter belongs to the appellant. When a vehicle is searched and not the person of an accused, needless to emphasise, S. 50 of the Act is not attracted. This has been so held in Ajmer Singh v. State of Haryana, (2010) 3 SCC 746 2010 Indlaw SC 1516, Madan Lal v. State of H.P., (2003) 7 SCC 465 2003 Indlaw SC 631 and State of H.P. v. Pawan Kumar, (2005) 4 SCC 350 2005 Indlaw SC 285. Thus, the aforesaid submission of the learned counsel for the appellant is without any substance.
11. The third limb of submission pertains to determination of commercial and non-commercial quantity. The learned counsel for the appellant has commended us to the decision in E. Micheal Raj v. Intelligence Officer, Narcotic Control Bureau, 2008 (4) SCALE 592 2008 Indlaw SC 393. In the said case it has been held as follows: -
"12. As a consequence of the Amending Act, the sentence structure underwent a drastic change. The Amending Act for the first time introduced the concept of 'commercial quantity' in relation to narcotic drugs or psychotropic substances by adding clause (viia) in Section 2, which defines this term as any quantity greater than a quantity specified by the Central Government by notification in the Official Gazette. Further, the term 'small quantity' is defined in Section 2, clause (xxiiia), as any quantity lesser than the quantity specified by the Central Government by notification in the Official Gazette. Under the rationalized sentence structure, the punishment would vary depending upon whether the quantity of offending material is 'small quantity', 'commercial quantity' or something in-between."
After so stating, the two learned Judges proceeded to state that the intention of the legislature for introduction of the amendment to punish the people who commit less serious offence with less severe punishment and those who commit great crimes, to impose more severe punishment. Be it noted, in the said case, the narcotic drug which was found in possession of the appellant as per the Analyst's report was 60 gms., which was more than 5 gms., i.e., small quantity, but less than 250 gms., i.e., commercial quantity.
12. In the case at hand, the High Court has opined that as the opium was seized on 23.12.2992, the amendment brought in the statute book would have no applicability. It is also wroth noting that the appeal was preferred in the year 1996. In Basheer Alias N.P. Basheer v. State of Kerala, (2004) 3 SCC 609 2004 Indlaw SC 1092 while dealing with the constitutional validity of the proviso to sub-s. (1) of S. 41 of the Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001 (Act 9 of 2001), this Court upheld the constitutional validity of the said provision and opined thus: -
"In the result, we are of the view that the proviso to S. 41(1) of the Amending Act 9 of 2001 is constitutional and is not hit by Art. 14. Consequently, in all cases, in which the trial had concluded and appeals were pending on 2.10.2001, when Amending Act 9 of 2001 came into force, the amendments introduced by the Amending Act 9 of 2001 would not be applicable and they would have to be disposed of in accordance with the NDPS Act, 1985, as it stood before 2.10.2001."
13. Yet again in Nayak Ramesh Chandra Keshavlal v. State of Gujarat, (2004) 11 SCC 399 2004 Indlaw SC 545 a contention was raised that when the quantity seized is small one, as enumerated in notification bearing SO No. 1055 (E) dated 19.10.2001, published in the Gazettee of India (Extra), Part II, S. 3(ii) dated 19.10.2011, the punishment should be less. The Court, while repealing the said submission expressed as follows: -
"Proviso to S. 41 of the amending Act referred to above, lays down that the provisions of the amending Act shall not apply to cases pending in appeal, validity of which was challenged before this Court on the ground that the same, being discriminatory, was violative of Art. 14 of the Constitution. But this Court in the case of Basheer upheld the validity of the said provision and, consequently, the provisions of the Amendment Act shall have no application in the present case, as on the date of coming into force of the amending Act, the case of the appellant was pending in appeal before the High Court."
14. As in the case at hand, the appeal was pending in 1996, the ameliorative provision brought by way of amendment in the year 2001 would not be applicable to the accused-appellant. Therefore, the submission advanced by the learned counsel for the appellant is devoid of any substratum and, accordingly, stands rejected.
15. The last contention urged relates to the non-production of the scooter in the court. The learned counsel for the appellant has harped and hammered on this submission and we must say that the vehemence of the argument reflected in this regard is much ado about nothing. All the documents pertaining to the scooter were seized and the witnesses had stated in a categorical manner about the registration number of the scooter. From the material brought on record, it is crystal clear that the scooter belonged to the appellant and the search and seizure was made in the tool box of the scooter. Under these circumstances, it can safely be concluded that the submission that the scooter was not produced in the court is entirely devoid of merit and, in fact, it amounts to an effort which is like building a castle in Spain. Thus, we unhesitatingly repel the aforesaid contention.
16. Resultantly, the appeal, being devoid of merit, stands dismissed.
Appeal dismissed