1/15 208-209 & 210 - [CASE NUMBER] pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 397 OF 2005 The [ENTITY] Appellant Versus [ENTITY] Age : 19 years, Occ: Agril R/o Belewadi Kalamma, Tal.: Kagal District : Kolhapur Respondent (Org. Accused) Ms. [ENTITY], APP for Appellant - State. Mr. [ENTITY], Advocate appointed for Respondent. WITH [CASE NUMBER] The [ENTITY] Appellant Versus Suresh Krishna Vanase residing at Matibai Chawl, Jivlapada, Borivali (East), Mumbai - [SECTION]00 066 Respondent (Org.Accused) Ms. [ENTITY], APP for Appellant - State. Mr. [ENTITY] for Respondent. Uploaded on - 1[SECTION]/08/2019 Downloaded on - 15/08/2019 02:13:1[SECTION] 2/15 208-209 & 210 - [CASE NUMBER] WITH [CASE NUMBER] The [ENTITY] Appellant Versus [ENTITY] R/o Titawe, Tal-Radhanagari, District - Kolhapur. Respondent (Org. Accused) Ms. [ENTITY], APP for Appellant - State. Mr. [ENTITY], Advocate appointed for Respondent. CORAM: [ENTITY], CJ. & [ENTITY], J. AUGUST 1[SECTION], 2019. [ENTITY] [Per [ENTITY], CJ.] :
1. In all the three captioned Appeals, the State is seeking enhancement of the sentence imposed upon the three accused who are respondents in the three Appeals.
2. In [CASE NUMBER] the grievance relates to sentence to undergo RI for three years for having committed an offence punishable under [SECTION] of the [ACT]. No grievance in the appeal has been made to the sentence 208-209 & 210 - [CASE NUMBER] to undergo RI for three months for the offence punishable under [SECTION] of the [ACT].
3. In [CASE NUMBER] the grievance is to the sentence till the rising of the Court for the offence punishable under [SECTION] of the [ACT].
[SECTION]. The grievance in [CASE NUMBER] is to the sentence to undergo RI for one year for the offence of attempt to rape. No grievance is raised for the sentence imposed for the offences punishable under [SECTION] and [SECTION] of the [ACT].
5. The age of the accused in [CASE NUMBER] when the offence was committed was 18 years. The age of the accused in [CASE NUMBER] was 19 years when the offence was committed. The age of the accused in [CASE NUMBER] was 21 years when the offence was committed.
6. Yesterday i.e. on 13.08.201[SECTION] deciding Criminal Appeal No. 569 of 2001 [ENTITY] vs. Shri Santosh Vasant Salunkhe pertaining to benefit to be let off on probation by extending the benefit under [SECTION] of the Probation of 208-209 & 210 - [CASE NUMBER] [ACT] read with [SECTION] of the [ACT], in paragraphs 7 to 25, we had recorded the law as under:-
7. [SECTION] of the Code relates to persons above 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less and to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of [SECTION] of the [ACT] is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. [SECTION] of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while [ACT] does make such a provision. While [SECTION] of the [ACT] states that the person found guilty of an offence and dealt with under [SECTION] or [SECTION] of the [ACT] shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to 208-209 & 210 - [CASE NUMBER] co-exist at the same time in the same area. Such co-
existence would lead to anomalous results. The intention to retain the provisions of [SECTION] of the Code and the provisions of the [ACT] as applicable at the same time in a given area cannot be gathered from the provisions of [SECTION] or any other provision of the Code. Therefore, by virtue of [SECTION] of the [ACT], where the provisions of the Act have been brought into force, the provisions of [SECTION] of the Code are wholly inapplicable.
8. Every accused person need not be detained, arrested and imprisoned-Liberty is precious and must not be curtailed unless there are good reasons to do so. Similarly, everybody convicted of a heinous offence need not be hanged however shrill the cry "off with his head"- and this cry is now being heard quite frequently. Life is more precious than liberty and must not be taken unless all other options are foreclosed. Just sentencing is as much an aspect of justice as a fair trial and every sentencing judge would do well to ask: Is the sentence being awarded fair and just?
208-209 & 210 - [CASE NUMBER]
9. In the decision reported as (1981)1 SCC [SECTION][SECTION]7 Ved Prakash v. State of Haryana the Court observed:
" It is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant.
A little later in the judgment, it was held that:
" Even if the Bar does not help, the Bench must fulfil the humanizing mission of sentencing implicit in such enactments as the [ACT]."
10. In other words, this Court was of the view that punishment should be rehabilitative and humanizing and, therefore, need not necessarily be retributive in character.
11. Subsequently, in the decision reported as (1988) [SECTION] SCC 551 Hari Singh v. Sukhbir Singh the Court held that extending the benefit of probation to first time offenders is generally not inappropriate. The humanizing principle was extended even to a conviction under [SECTION] of the [ACT] in the decision reported as [PRECEDENT] in which case the benefit of release on probation was granted to the convict.
208-209 & 210 - [CASE NUMBER]
12. The benefit of the provisions of [SECTION] of the [ACT] (relating to restrictions on the imprisonment of offenders below 21 years of age) was extended to persons convicted of attempt to rape in the decision reported as [PRECEDENT] State of Haryana v. [ENTITY] which was followed in the decision reported as (200[SECTION]) 9 SCC 681 State of Himachal Pradesh v. [ENTITY], where again the accused was held guilty of the offence of attempt to rape.
13. Similarly, in the decision reported as (2001) 10 SCC [SECTION]77 Om Prakash v. State of Haryana the convicts, first time offenders, were given the benefit of [SECTION] and [SECTION] of the [ACT] and it was held that reasons ought to have been recorded for the denial of such a benefit. The offence in this case was punishable under [SECTION] and [SECTION] read with [SECTION] and [SECTION] of the [ACT].
1[SECTION]. In the decision reported as [PRECEDENT] the Appellant was convicted of an offence of outraging the modesty of a 208-209 & 210 - [CASE NUMBER] woman punishable under [SECTION] of the [ACT]. This was held to be "a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded" and so the benefit of the [ACT] was not given to him. This may be contrasted with [ENTITY] and subsequently [ENTITY] where the convict was guilty of a far more serious offence of attempt to rape and yet granted the benefit of the [ACT], notwithstanding the nature of the crime, and only because of his age.
15. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift- from punishment being a humanizing mission to punishment being deterrent and retributive. This shift may be necessary in today's social context (though no opinion is expressed), but given the legislative mandate of [SECTION] and [SECTION] of the [ACT] and the [ACT], what is imperative for the judge is to strike a fine balance between releasing a convict after admonition or on probation or putting such a convict in jail. This can be 208-209 & 210 - [CASE NUMBER] decided only on a case by case basis but the principle of rehabilitation and the humanizing mission must not be forgotten.
16. There are other legislative requirements that need to be kept in mind. The [ACT] provides, in [SECTION] thereof for payment of compensation to the victim of a crime (as does [SECTION] of the [ACT]). Yet, additional changes were brought about in the [ACT] in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?
17. In the decision reported as (2013) 6 SCC 770 [ENTITY] v. [ENTITY] and in the decision reported as [PRECEDENT] the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from [ENTITY]:
"While the award or refusal of compensation in a particular case may be within the court's discretion, 208-209 & 210 - [CASE NUMBER] there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation."
18. This being the position in law, there is a necessity of giving justice to the victims of a crime and by arriving at a fair balance, awarding a just sentence to the convicts by treating them in a manner that tends to assist in their rehabilitation. The amendments brought about in the [ACT] in 2006 also include a chapter on plea bargaining, which again is intended to assist and enable the Trial Judge to arrive at a mutually satisfactory disposition of a criminal case by actively engaging the victim of a crime. It is the duty of a Trial Judge to utilize all these tools given by Parliament for ensuring a fair and just termination of a criminal case.
19. In the decision reported as AIR 2000 SC 1[SECTION]70 State of Karnataka v/s Krishnappa, a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and 208-209 & 210 - [CASE NUMBER] that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.
20. In the decision reported as [PRECEDENT], the trial court had convicted the appellant therein under [SECTION] [ACT] along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by Court, the Court observed as under: -
"In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime,the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. It is the duty of 208-209 & 210 - [CASE NUMBER] every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
21. In the decision reported as [PRECEDENT], it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the 208-209 & 210 - [CASE NUMBER] principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.
22. In the decision reported as (2012) 8 SCC 73[SECTION] Guru Basavaraj v. State of Karnata, the Court, discussing about the sentencing policy, had to say this: -
"There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored."
23. In the decision reported as (2012) [SECTION] SC 516 Rattiram v. State of M. P. though in a different context, it has stated that: -
"the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which 208-209 & 210 - [CASE NUMBER] fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries it is the duty of the court to see that the victim's right is protected."
2[SECTION]. It is seemly to state here that though the question of sentence is a matter of discretion, vague and unregulated benevolence. It is to be exercised a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life.
25. In the decision reported as [PRECEDENT] : -
"when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. `Discretion', said Lord [ENTITY] in R.v. Wilkes, 1770) 98 ER 327), `when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal 208-209 & 210 - [CASE NUMBER] and regular' (see Craies on Statute Law, 6th Edn., p.273)."
7. Thus, deciding the three appeals today with the dates of incident going back to the years 1992, 2003 and 200[SECTION], noting the age of the accused we would be constrained to grant benefit of probation even if we were to enhance the sentence because when the crime was committed the requirement of law was to impose a minimum sentence to undergo RI for a period of seven years for the offence of rape but to give a lesser sentence by recording reasons and the decisions above referred to warranting benefit of probation to be extended. Of course, it is shocking that for an offence of rape the sentence till the rising of the Court, inflicted upon the respondent in [CASE NUMBER]. But, keeping in view his age even if we were to enhance the sentence to undergo RI for seven years, we would still be extending the benefit of probation to him. There is no evidence of the three accused having any other brush with criminal law.
8. The Appeals are accordingly dismissed.
[ENTITY],J. CHIEF JUSTICE