THE STATE OF MADHYA PRADESH versus SURESH on 20 February 2019

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SUPREME COURT REPORTS

[2019] 5 S.C.R.

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THE STATE OF MADHYA PRADESH

v.

SURESH

(Criminal Appeal No. 319 of 2019)

BFEBRUARY 20, 2019

[ABHAY MANOHAR SAPRE AND

DINESH MAHESHWARI, JJ.]

Sentencing – Principle of Proportionality – Case of theCprosecution that the accused-respondent assaulted his father wholater succumbed to the injury – Trial Court found the respondentguilty u/s.304 Part II, IPC and awarded him 3 years’ rigorousimprisonment while setting off the period of detention alreadyundergone (3 months, 21 days) against the term of imprisonmentimposed on him – High Court though upheld the conviction of theDrespondent but modified the sentence of 3 years’ rigorousimprisonment to that of the period already undergone i.e. 3 monthsand 21 days – On appeal, held: When an accused is convicted forthe offence u/Part II of s.304, he could be sentenced to imprisonmentfor a term which may extend to a period of 10 years, or with fine, orEboth – In this case, the Trial Court chose to award 3 years’ rigorousimprisonment to the respondent – Punishment so awarded by theTrial Court was itself leaning towards leniency, essentially in viewof the fact that the respondent was 26 years of age at the time of theincident in question – However, the High Court further reduced thepunishment to the period already undergone – Further indulgenceFby the High Court, over and above the leniency already shown bythe Trial Court was totally uncalled for – High Court omitted toconsider the requirement of balancing the mitigating andaggravating factors while dealing with the question of awardingadequate punishment – Punishment to be awarded in a case has toGbe commensurate with the gravity of crime as also with the relevantfacts and attending circumstances – Offending act in question hadbeen of respondent assaulting his father and then the attempt tocover up the crime by taking his father to hospital and suggestingas if the victim sustained injury because of fall from the roof – Actsand deeds of the respondent had been of killing his own father andH

then, of furnishing false information – In such a case, there was nofurther scope for leniency on the question of punishment than whatwas already shown by the Trial Court – High Court not justified inreducing the sentence to an abysmally inadequate period of lessthan 4 months – Judgment of the High Court set aside andthat of the Trial Court restored – Penal Code, 1860 – ss.201, 304Part II, 302.

Allowing the appeal, the Court

HELD: 1.1 The High Court interfered with and reducedthe sentence awarded by the Trial Court on rather irrelevantconsiderations, while ignoring the relevant factors and thegoverning principles for the award of punishment and hence, theorder impugned cannot be sustained. With the evidence on record,it was clearly established that the respondent was author of thefatal injury in question. [Para 10-11][843-B-D]

1.2 Awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the Court.The punishment to be awarded in a case has to be commensuratewith the gravity of crime as also with the relevant facts andattending circumstances. The task is of striking a delicate balancebetween the mitigating and aggravating circumstances. No straitjacket formula for sentencing is available but the requirement oftaking a holistic view of the matter cannot be forgotten. In theprocess of sentencing, any one factor, whether of extenuatingcircumstance or aggravating, cannot, by itself, be decisive of thematter. [Paras 14, 15][847-E-H]

1.3 When an accused is convicted for the offence underPart II of Section 304, he could be sentenced to imprisonmentfor a term which may extend to a period of 10 years, or with fine,or both. In this case, the Trial Court chose to award thepunishment of 3 years’ rigorous imprisonment to the respondent.The punishment so awarded by the Trial Court had itself beenleaning towards leniency, essentially in view of the fact that therespondent was 26 years of age at the time of the incident inquestion. However, the High Court further proceeded to reducethe punishment to the period already undergone (i.e., 3 monthsand 21 days) on consideration of the factors: (i) that the incident AB

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Ahad taken place at spur of the moment; (ii) that the respondentwas 26 years of age at the time of incident; and (iii) that therespondent himself took his father to hospital. On theseconsiderations and after finding that the respondent had spent 3months and 21 days in custody, the High Court concluded that“no useful purpose would be served in sending appellant back toBjail”. Further indulgence by the High Court, over and above theleniency already shown by the Trial Court, was totally uncalledfor. So far the mitigating factors, as taken into consideration bythe High Court are concerned, the same had already gone intoconsideration when the Trial Court awarded a comparatively lesserCpunishment of 3 years’ imprisonment for the offence punishablewith imprisonment for a term that may extend to 10 years, orwith fine, or with both. In fact, the factor that the incident hadhappened at the ‘spur of moment’ had been the basic reason forthe respondent having been convicted for the offence of culpablehomicide not amounting to murder under Section 304 Part II IPCDthough he was charged for the offence of murder under Section302 IPC. This factor could not have resulted in awarding just asymbolic punishment. Then, the factor that the respondent was26 years of age had been the basic reason for awardingcomparatively lower punishment of 3 years’ imprisonment. ThisEfactor has no further impelling characteristics which would justifyyet further reduction of the punishment than that awarded by theTrial Court. Moreover, the third factor, of the respondent himselftaking his father to hospital, carries with it the elements ofpretence as also deception on the part of the respondent,particularly when he falsely stated that the victim sustained injuryFdue to the fall.[Paras 17, 18][848-F-H; 849-A-E]

1.4 The High Court also appears to have omitted to considerthe requirement of balancing the mitigating and aggravatingfactors while dealing with the question of awarding just andadequate punishment. The facts and the surrounding factors ofGthis case make it clear that, the offending act in question hadbeen of respondent assaulting his father with a blunt object whichresulted in the fracture of skull of the victim at parietal region.Then, the respondent attempted to cover up the crime by takinghis father to hospital and suggesting as if the victim sustainedH

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injury because of fall from the roof. Thus, the acts and deeds ofthe respondent had been of killing his own father and then, offurnishing false information. The homicidal act of the respondenthad, in fact, been of patricide; killing of one’s own father. In sucha case, there was no further scope for leniency on the question ofpunishment than what had already been shown by the Trial Court;and the High Court was not justified in reducing the sentence toan abysmally inadequate period of less than 4 months. Theobservations of the High Court that no useful purpose would beserved by detention of the accused cannot be approved in thiscase for the reason that the objects of deterrence as also protectionof society are not lost with mere passage of time. [Para 19][849-F-H; 850-A-B]

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Jinnat Mia v. State of Assam (1998) 9 SCC 319 – heldinapplicable.

State of M.P. v. Ganshyam (2003) 8 SCC 13 : [2003]3 Suppl. SCR 618 ; Alister Anthony Pareira v. State ofMaharashtra (2012) 2 SCC 648 : [2012] 1 SCR 145 – relied on.

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Kalawati v. State of Himachal Pradesh AIR 1953 SC131 : [1953] SCR 546 ; State of Karnataka v.Krishnappa (2004) 4 SCC 75 ; Dalbir Singh v. State ofHaryana (2000) 5 SCC 82 : [2000] 3 SCR 1000 ; Stateof M.P. v. Saleem (2005) 5 SCC 554 : [2005] 1 Suppl.SCR 562 ; Ravji v. State of Rajasthan (1996) 2 SCC175:[1995] 6 Suppl. SCR 195 – referred to.

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Case Law Reference

[1953] SCR 546[2012] 1 SCR 145(1998) 9 SCC 319[2003] 3 Suppl. SCR 618(2004) 4 SCC 75[2000] 3 SCR 1000[2005] 1 Suppl. SCR 562

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A[1995] 6 Suppl. SCR 195referred toPara 13

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 319 of 2019.

From the Judgment and Order dated 27.11.2012 of the High Courtof Madhya Pradesh at Jabalpur Criminal Appeal No. 260 of 1998.B

Varun K. Chopra, AAG, Mrs.Swarupama Chaturvedi, B. N. Dubey,Mukesh Kumar, Ms. Indira Bhakar, Ms.Aparna Trivedi, Santanu Singh,Gurtej Pal Singh, Advs. for the Appellant.

D. P. Chaturvedi, (A.C.), Ms. Priyank Jain, Advs. for theCRespondent.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J. 1. Leave granted.

2. In this appeal, the appellant-State of Madhya Pradesh has calledin question the judgment and order dated 27.11.2012 in Criminal AppealDNo. 260 of 1998 whereby, the High Court of Madhya Pradesh, evenwhile upholding the conviction of accused (respondent herein) for theoffence punishable under Section 304 Part II of the Indian Penal Code(‘IPC’), has modified the sentence of 3 years’ rigours imprisonment asawarded by the Trial Court to that of the period already undergone i.e.,E3 months and 21 days.

3. The only question calling for determination in this appeal is: Asto whether, in the given set of facts and circumstances, the High Courtwas justified in interfering with the punishment awarded by the TrialCourt by reducing the same to the period of imprisonment alreadyFundergone?

4. The background aspects of the case, so far relevant for thequestion at hand could be noticed as follows: The prosecution case hadbeen that on 13.05.1996, at about 4:30 p.m., the respondent assaulted hisfather Tulsiram with a blunt object causing fracture on the parietal regionGof skull; and the same night, victim succumbed to the injury at BetualHospital. On the basis of the information received from the hospital thatthe deceased Tulsiram was brought to the hospital by the respondentSuresh in unconscious condition, Marg Information No. 0/30/96 wasregistered under section 174 Cr.P.C. However, when it was noticed fromthe statements of PW-3 Sawalbai, PW-6 Basanti Bai and PW-10 SarpachH

Sukhlal that the respondent was seen hitting his father, he was arrestedon 20.05.1996 and FIR in Crime No. 120/1996 (Ex. P-19) came to beregistered at police station, Amla. After due investigation, the respondentwas charge-sheeted for the offences under Sections 201 and 302 IPC.

5. In trial, the prosecution, inter alia, relied on the testimony ofPW-3 Smt. Sawalbai who stated that while working in a field near theplace of incident, she had seen the respondent assaulting his father witha lathi (wooden log). PW-2 Babulal stated that upon hearing the cries ofPW-3, he saw the accused assaulting someone; he reached the spot andfound that the injured person was the father of accused; and he preventedthe accused from further assaulting his father. PW-4 Dinesh alias Mathucorroborated the testimonies of PW-2 and PW-3. On the other hand, theaccused-respondent attempted to suggest that his father sustained injurywhen he fell from the roof while putting up khapra.

6. On appreciation of evidence, the Trial Court rejected the defenceversion and found it proved beyond reasonable doubt that the respondentdid cause the fatal injury in question. However, the Trial Court proceededto hold that the act of the accused-respondent had been of culpablehomicide not amounting to murder and he was guilty of the offencepunishable under Section 304 Part II IPC. The Trial Court was of theview that while causing injury to the head of the deceased, the accused-respondent knew that his act was likely to cause death but he had nosuch criminal intention as defined in Section 300 IPC and hence, he wasnot guilty of the offence of murder under Section 302 IPC. The TrialCourt further found that the accused furnished a wrong information aboutaccidental injury to the victim so as to save himself from legal punishmentand hence, he was also guilty of the offence under Section 201 IPC.However, for the reason that the accused stood convicted for the mainoffence, the Trial Court chose not to convict him for the offence underSection 201 IPC with reference to the decision of this Court in Kalawativ. State of Himachal Pradesh: AIR 1953 SC 131.

7. Having thus convicted the accused-respondent for the offenceunder Section 304 Part II IPC, the Trial Court found it just and proper toaward him the punishment of 3 years’ rigorous imprisonment while alsoobserving that the period of detention already undergone (from 20.05.1996to 09.09.1996) would be set off against the term of imprisonment imposedon him.

8. In appeal by the accused, the High Court of Madhya Pradesh, A

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Ain its impugned judgment and order dated 27.11.2012, found no reason toconsider interference in the findings recorded by the Trial Court as regardsconviction for the offence under Section 304 Part II IPC but, on thequestion of punishment, proceeded to reduce the sentence of rigorousimprisonment from the period of 3 years to that of the period alreadyundergone i.e., 3 months and 21 days. The relevant part of the orderBpassed by the High Court, carrying the reasons for reduction of sentence,reads as under:

“5. The incident had taken place on 13.5.1996. From theperusal of the statement of eye-witnesses Babulal (PW-2),Sawla Bai (PW-3), Dinesh (PW-4) it seems that the incidentChad taken place at the spur of the moment. The appellant atthe time of the incident was a young man aged 26 years. Theappellant himself took his father namely Tulsiram to thehospital. The appellant has remained in jail for a period ofthree months and twenty one days i.e. from 20.05.1996. InDthe facts and circumstances of the case and taking into accountthe period which has elapsed, no useful purpose would beserved in sending appellant back to jail, I therefore set asidethe jail sentence awarded to the appellant under Section 304Part II of the Indian Penal Code and instead award thesentence to the appellant for a period of imprisonment alreadyEundergone by him.”

9. Assailing the order aforesaid, learned counsel for the appellant- State has strenuously argued that the High Court has modified andreduced the sentence awarded by the Trial Court without any cogentreason and without any justification. The learned counsel would submitFthat the High Court has failed to appreciate the nature and gravity of theoffence committed by the respondent that resulted in the death of hisfather and has argued for restoration of the order of the Trial Court,while relying on the decision in Alister Anthony Pareira v. State ofMaharashtra: (2012) 2 SCC 648wherein, this Court has re-Gemphasised on the principle of proportionality in the determination ofsentence for an offence. Per contra, the learned counsel appearing forthe respondent-accused has supported the impugned order with thesubmissions that the same meets the ends of justice, particularly whenthe respondent was only 26 years of age at the time of the incident inquestion that occurred at the spur of moment and without any intentionH

on the part of the respondent to cause the death of his father. Learnedcounsel would submit that the High Court exercising its appellate powershas reduced the sentence to the period already undergone after dueconsideration of all the relevant factors; and while relying on the decisionof this Court in Jinnat Mia v. State of Assam: (1998) 9 SCC 319, hasurged that the present matter does not call for interference by this Court.

10. Having heard the respective learned counsel and havingexamined the record with reference to the law applicable, we are clearlyof the view that in this case, the High Court has interfered with andreduced the sentence awarded by the Trial Court on rather irrelevantconsiderations, while ignoring the relevant factors and the governingprinciples for the award of punishment and hence, the order impugnedcannot be sustained.

11. The respondent was tried for offence under Sections 302 and201 IPC. With the evidence on record, it was clearly established that therespondent was author of the fatal injury in question. The Trial Court,with reference to the nature of the act of respondent and the attendingcircumstances, convicted him for culpable homicide not amounting tomurder under Section 304 Part II IPC and let him off for the offenceunder Section 201 IPC because he had been convicted for the mainoffence. This part of the order of the Trial Court having attained finalityand having not been questioned even in this appeal, we would leave thematter as regards conviction at that only. However, the question remainsas to whether all the facts and circumstances of case taken togetherjustify such indulgence that the punishment of rigorous imprisonment fora period of 3 years, as awarded by the Trial Court, be reduced to that of3 months and 21 days? In our view, the answer to this question couldonly be in the negative.

12. In the case of State of M.P. v. Ganshyam : (2003) 8 SCC13, relating to the offence punishable under Section 304 Part I IPC , thisCourt found sentencing for a period of 2 years to be to inadequate andeven on the liberal approach, found the custodial sentence of 6 yearsserving the ends of justice. This Court underscored the principle ofproportionality in prescribing liability according to the culpability; andwhile also indicating the societal angle of sentencing, cautioned that unduesympathy leading to inadequate sentencing would do more harm to thejustice system and undermine public confidence in the efficacy of law.This Court observed, inter alia, as under:

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“12.Therefore, undue sympathy to impose inadequatesentence would do more harm to the justice system toundermine the public confidence in the efficacy of lawandsociety could not long endure under such serious threats. Itis, therefore, the duty of every court to award proper sentencehaving regard to the nature of the offence and the manner inwhich it was executed or committed etc. This position wasilluminatingly stated by this Court in Sevaka Perumal v. Stateof Tamil Nadu: (1991) 3 SCC 471.

13. Criminal law adheres in general to the principle ofproportionality in prescribing liability according to theculpability of each kind of criminal conduct. It ordinarilyallows some significant discretion to the Judge in arriving ata sentence in each case, presumably to permit sentences thatreflect more subtle considerations of culpability that are raisedby the special facts of each case. Judges, in essence, affirmthat punishment ought always to fit the crime; yet in practicesentences are determined largely by other considerations.Sometimes it is the correctional needs of the perpetrator thatare offered to justify a sentence, sometimes the desirability ofkeeping him out of circulation, and sometimes even the tragicresults of his crime. Inevitably, these considerations cause adeparture from just deserts as the basis of punishment andcreate cases of apparent injustice that are serious andwidespread.

14. Proportion between crime and punishment is a goalrespected in principle, and in spite of errant notions, it remainsa strong influence in the determination of sentences.Thepractice of punishing all serious crimes with equal severity isnow unknown in civilized societies, but such a radicaldeparture from the principle of proportionality hasdisappeared from the law only in recent times. Even now fora single grave infraction drastic sentences are imposed.Anything less than a penalty of greatest severity for any seriouscrime is thought then to be a measure of toleration that isunwarranted and unwise. But in fact, quite apart from thoseconsiderations that make punishment unjustifiable when it isout of proportion to the crime, uniformly disproportionate punishment has some very undesirable practicalconsequences.

15. After giving due consideration to the facts andcircumstances of each case, for deciding just and appropriatesentence to be awarded for an offence, the aggravating andmitigating factors and circumstances in which a crime hasbeen committed are to be delicately balanced on the basis ofreally relevant circumstances in a dispassionate mannerbythe court. Such act of balancing is indeed a difficult task. Ithas been very aptly indicated in Dennis Councle MCGauthav. State of California: 402 US 183: 28 L Ed 2d 711 (1071)that no formula of a foolproof nature is possible that wouldprovide a reasonable criterion in determining a just andappropriate punishment in the infinite variety of circumstancesthat may affect the gravity of the crime. In the absence of anyfoolproof formula which may provide any basis for reasonablecriteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionaryjudgment in the facts of each case is the only way in whichsuch judgment may be equitably distinguished.

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17. Imposition of sentence without considering its effect onthe social order in many cases may be in reality a futileexercise. The social impact of the crime e.g. where it relatesto offences against women, dacoity, kidnapping,misappropriation of public money, treason and other offencesinvolving moral turpitude or moral delinquency which havegreat impact on social order and public interest cannot belost sight of and per se require exemplary treatment. Any liberalattitude by imposing meagre sentences or taking toosympathetic a view merely on account of lapse of time in respect-of such offences will be resultwise counterproductive in thelong run and against societal interestwhich needs to be caredfor and strengthened by a string of deterrence inbuilt in thesentencing system.

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A19. Similar view has also been expressed in Ravji v. State ofRajasthan: (1996) 2 SCC 175. It has been held in the saidcase that it is the nature and gravity of the crime but not thecriminal, which are germane for consideration of appropriatepunishment in a criminal trial. The court will be failing in itsduty if appropriate punishment is not awarded for a crimeBwhich has been committed not only against the individual victimbut also against the societyto which the criminal and victimbelong. The punishment to be awarded for a crime must notbe irrelevant but it should conform to and be consistent withthe atrocity and brutality with which the crime has beenCperpetrated, the enormity of the crime warranting publicabhorrence and it should “respond to the society’s cry forjustice against the criminal”. …...”

13. In the Case of Alister Anthony Pareira (supra), the allegationsDagainst the appellant had been that while driving a car in drunken condition,he ran over the pavement, killing 7 persons and causing injuries to 8. Hewas charged for the offences under Sections 304 Part II and 338 IPC;was ultimately convicted by the High Court under Sections 304 Part II,338 and 337 IPC; and was sentenced to 3 years’ rigorous imprisonmentEwith a fine of Rs. 5 lakhs for the offence under Section 304 Part II IPCand to rigorous imprisonment for 1 year and for 6 months respectivelyfor the offences under Section 338 and 337 IPC . Apart from othercontentions, one of the pleas before this Court was that in view of fineand compensation already paid and willingness to make further paymentas also his age and family circumstances, the appellant may be releasedFon probation or his sentence may be reduced to that already undergone.As regards this plea for modification of sentence, this Court traversedthrough the principles of penology, as enunciated in several of the pastdecisions[1] and, while observing that the facts and circumstances of thecase show ‘a despicable aggravated offence warranting punishmentGproportionate to the crime’, this Court found no justification for extendingthe benefit of probation or for reduction of sentence. On the question ofsentencing, this Court re-emphasised as follows:- 1This Court referred, amongst others, to the decisions in State of Karnataka v.Krishnappa: (2004) 4 SCC 75; Dalbir Singh v. State of Haryana: (2000) 5 SCC82; State of M.P. v. Saleem (2005) 5 SCC 554; Ravji v. State of Rajasthan (1996)

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2 SCC 175; and State of M. P. v. Ghanshyam Singh (supra).

“84. Sentencing is an important task in the matters of crime.One of the prime objectives of the criminal law is impositionof appropriate, adequate, just and proportionate sentencecommensurate with the nature and gravity of crime and themanner in which the crime is done. There is no straitjacketformula for sentencing an accused on proof of crime. Thecourts have evolved certain principles: the twin objective ofthe sentencing policy is deterrence and correction. Whatsentence would meet the ends of justice depends on the factsand circumstances of each case and the court must keep inmind the gravity of the crime, motive for the crime, nature ofthe offence and all other attendant circumstances.

85. The principle of proportionality in sentencing a crime-doer is well entrenched in criminal jurisprudence. As a matterof law, proportion between crime and punishment bears mostrelevant influence in determination of sentencing the crime-doer. The court has to take into consideration all aspectsincluding social interest and consciousness of the society foraward of appropriate sentence.

14. Therefore, awarding of just and adequate punishment to thewrong doer in case of proven crime remains a part of duty of the Court.The punishment to be awarded in a case has to be commensurate withthe gravity of crime as also with the relevant facts and attendingcircumstances. Of course, the task is of striking a delicate balancebetween the mitigating and aggravating circumstances. At the same time,the avowed objects of law, of protection of society and responding to thesociety’s call for justice, need to be kept in mind while taking up thequestion of sentencing in any given case. In the ultimate analysis, theproportion between the crime and punishment has to be maintained whilefurther balancing the rights of the wrong doer as also of the victim of thecrime and the society at large. No strait jacket formula for sentencing isavailable but the requirement of taking a holistic view of the mattercannot be forgotten.

15. In the process of sentencing, any one factor, whether ofextenuating circumstance or aggravating, cannot, by itself, be decisiveof the matter. In the same sequence, we may observe that mere passage AB

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Aof time, by itself, cannot be a clinching factor though, in an appropriatecase, it may be of some bearing, along with other relevant factors.Moreover, when certain extenuating or mitigating circumstances aresuggested on behalf of the convict, the other factors relating to the natureof crime and its impact on the social order and public interest cannot belost sight of.B

16. Keeping in view the principles aforesaid, when the presentmatter is examined, we find that the respondent is convicted of theoffence under Section 304 Part II IPC. Section 304 IPC reads asunder:- C“Punishment for culpable homicide not amounting tomurder.—Whoever commits culpable homicide not amountingto murder, shall be punished with imprisonment for life, orimprisonment of either description for a term which mayextend to ten years, and shall also be liable to fine, if the actby which the death is caused is done with the intention ofDcausing death, or of causing such bodily injury as is likely tocause death; or with imprisonment of either description for a termwhich may extend to ten years, or with fine, or with both, ifthe act is done with the knowledge that it is likely to causeEdeath, but without any intention to cause death, or to causesuch bodily injury as is likely to cause death.”

17. Therefore, when an accused is convicted for the offence underPart II of Section 304 ibid., he could be sentenced to imprisonment fora term which may extend to a period of 10 years, or with fine, or both. InFthis case, the Trial Court chose to award the punishment of 3 years’rigorous imprisonment to the respondent. The punishment so awardedby the Trial Court had itself been leaning towards leniency, essentially inview of the fact that the respondent was 26 years of age at the time ofthe incident in question. However, the High Court further proceeded toGreduce the punishment to the period already undergone (i.e., 3 monthsand 21 days) on consideration of the factors: (i) that the incident hadtaken place at spur of the moment; (ii) that the respondent was 26 yearsof age at the time of incident; and (iii) that the respondent himself tookhis father to hospital. On these considerations and after finding that therespondent had spent 3 months and 21 days in custody, the High Court H

concluded that “no useful purpose would be served in sendingappellant back to jail”. We are clearly of the view that, furtherindulgence by the High Court, over and above the leniency already shownby the Trial Court, was totally uncalled for.

18. So far the mitigating factors, as taken into consideration bythe High Court are concerned, noticeable it is that the same had alreadygone into consideration when the Trial Court awarded a comparativelylesser punishment of 3 years’ imprisonment for the offence punishablewith imprisonment for a term that may extend to 10 years, or with fine,or with both. In fact, the factor that the incident had happened at the‘spur of moment’ had been the basic reason for the respondent havingbeen convicted for the offence of culpable homicide not amounting tomurder under Section 304 Part II IPC though he was charged for theoffence of murder under Section 302 IPC. This factor could not haveresulted in awarding just a symbolic punishment. Then, the factor thatthe respondent was 26 years of age had been the basic reason forawarding comparatively lower punishment of 3 years’ imprisonment.This factor has no further impelling characteristics which would justifyyet further reduction of the punishment than that awarded by the TrialCourt. Moreover, the third factor, of the respondent himself taking hisfather to hospital, carries with it the elements of pretence as also deceptionon the part of the respondent, particularly when he falsely stated that thevictim sustained injury due to the fall. Therefore, all the aforementionedfactors could not have resulted in further reduction of the sentence asawarded by the Trial Court.

19. The High Court also appears to have omitted to consider therequirement of balancing the mitigating and aggravating factors whiledealing with the question of awarding just and adequate punishment.The facts and the surrounding factors of this case make it clear that, theoffending act in question had been of respondent assaulting his fatherwith a blunt object which resulted in the fracture of skull of the victim atparietal region. Then, the respondent attempted to cover up the crime bytaking his father to hospital and suggesting as if the victim sustainedinjury because of fall from the roof. Thus, the acts and deeds of therespondent had been of killing his own father and then, of furnishingfalse information. The homicidal act of the respondent had, in fact, beenof patricide; killing of one’s own father. In such a case, there was nofurther scope for leniency on the question of punishment than what had A

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Aalready been shown by the Trial Court; and the High Court was notjustified in reducing the sentence to an abysmally inadequate period ofless than 4 months. The observations of the High Court that no usefulpurpose would be served by detention of the accused cannot be approvedin this case for the reason that the objects of deterrence as also protectionof society are not lost with mere passage of time.

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20. In the given set of facts and circumstances, the observationsin Jinnat Mia (supra) on the powers of the High Court to review theentire matter in appeal and to come to its own conclusion or that thepractice of this Court not to interfere on questions of facts except inexceptional cases shall have no application to the present case, particularlyCwhen we find that the High Court has erred in law and has not beenjustified in reducing the sentence to a grossly inadequate level whileignoring the relevant considerations.

21. To sum up, after taking into account all the circumstances ofthis case, we are of the considered view that the High Court had been inDerror in extending undue sympathy and in awarding the punishment ofthe rigorous imprisonment for the period already undergone i.e., 3 monthsand 21 days for the offence under Section 304 Part II IPC. In our view,there was absolutely no reason for the High Court to interfere with thepunishment awarded by the Trial Court, being that of rigorousEimprisonment for 3 years.

22. For what has been discussed hereinabove, this appeal succeedsand is allowed; the impugned judgment and order of the High Courtdated 27.11.2012 is set aside and that of the Trial Court dated 06.01.1998is restored. The respondent shall surrender before the Court concernedFwithin a period of 4 weeks from today and shall undergo the remainingpart of the sentence. In case he fails to surrender within the periodaforesaid, the Trial Court will take necessary steps to ensure that heserves out the remaining part of sentence, of course, after due adjustmentof the period already undergone.

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Divya Pandey

Appeal allowed.

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