Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi) [OCTOBER 08, 2013]

Sunil Dutt Sharma Vs. State of N.C.T. of Delhi

[Criminal Appeal No.1333 of 2013 arising out of SLP (CRL.) No. 7002 of 2012]

RANJAN GOGOI, J.

1. The accused-appellant was tried for offences under Sections 302 and304-B of the Indian Penal Code (hereinafter for short the "Penal Code") for causing the death of his wife in the night intervening 16/17.05.92. He has been acquitted of the offence under Section 302 of the Penal Code on the benefit of doubt though found guilty for the offence under Section 304-B of the Penal Code following which the sentence of life imprisonment has been imposed. The conviction and sentence has been affirmed by the High Court. Aggrieved, the appellant had moved this Court under Article 136 of the Constitution.

2. Limited notice on the question of sentence imposed on the accused-appellant having been issued by this Court the scope of the present appeal stands truncated to a determination of the question as to whether sentence of life imprisonment imposed on the accused-appellant for commission of the offence under Section 304-B of the Penal Code is in any way excessive or disproportionate so as to require interference by this Court.

3. Section 304-B(2) of the Penal Code which prescribes the punishment for the offence contemplated by Section 304-B(1) is in the following terms: "Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

(emphasis is ours).

4. Expressions similar to what has been noticed above are to be found indifferent sections of the Penal Code which may be taken note of :

(i)

Sections 115, 118, 123, 124, 126, 127, 134, 193, 201, 214, 216, 216A, 219, 220, 221, 222, 225, 231, 234, 243, 244, 245, 247, 249,256, 257, 258, 259, 260, 281, 293,308, 312, 317, 325, 333, 363, 365,369, 370, 380, 381, 387, 393, 401,402, 404, 407, 408, 409, 433, 435,437, 439, 452, 455, 466, 468, 472,473, 474, 477A, 489C, 493, 494, 495 and 496

"may extend to seven years/ten years";

(ii)

Sections 122, 222, 225, 305, 371, 449, 450

"imprisonment for life or imprisonment for a term not exceeding ten years"

(iii)

Sections 124A, 125, 128, 130, 194,232, 238, 255 etc.

"imprisonment for life or with imprisonment of either description which may extend to ____ years"

(iv)

Sections 122, 225, 305, 371, 449

"imprisonment for life or with imprisonment of either description for a term not exceeding ___ years"

(v)

Section 304B

"imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life"

(vi)

Section 376

"imprisonment of either description for a term which shall not be less than seven years or for life or for a term which may extend to ten years"

5. The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for a term of years.

In the above situation, naturally, the sentencing power has been a matter of serious academic and judicial debate to discern an objective and rational basis for the exercise of the power and to evolve sound jurisprudential principles governing the exercise thereof. In this regard the Constitution Bench decision of this Court in Jagmohan Singh vs. The State of U.P.[1] (under the old Code), another Constitution Bench decision in Bachan Singh vs. State of Punjab[2], a three Judge Bench decision in Machhi Singh and Others vs. State of Punjab[3], are watersheds in the search for jurisprudential principles in the matter of sentencing.

Omission of any reference to other equally illuminating opinions of this Court rendered in scores of other monumental decisions is not to under play the importance thereof but solely on account of need for brevity. Two recent pronouncements of this Court in Sangeet and Another vs. State of Haryana[4] and Shankar Kisanrao Khade vs. State of Maharashtra[5] reflect the very labourious and painstaking efforts of this Court to summarize the net result of the judicial exercises undertaken since Jagmohan Singh(supra) and the unresolved issues and grey areas in this regard and the solutions that could be attempted.

The aforesaid decisions of this Court though rendered in the context of exercise of the power to award the death sentence, whether the principles laid down, with suitable adaptation and modification, would apply to all 'lesser' situations so long the court is confronted with the vexed problem of unraveling the parameters for exercise of the sentencing power is another question that needs to be dealt with.

6. For the sake of precision it may be sufficient to take note of the propositions held in Bachan Singh (supra) to have flown from Jagmohan Singh(supra) and the changes in propositions (iv)(a) and (v)(b) thereof which were perceived to be necessary in the light of the amended provision of Section 354(3) of the Code of Criminal Procedure, 1973. The above changes were noticed in Sangeet (supra) and were referred to as evolution of a sentencing policy by shifting the focus from the crime (Jagmohan Singh) to crime and the criminal (Bachan Singh). The two concepts were described as Phase-I and Phase-II of an emerging sentencing policy.

7. The principles culled out from Jagmohan Singh (supra) in Bachan Singh(supra) and the changes in proposition (iv)(a) and (v)(b) may now be specifically noticed. Bachan Singh vs. State of Punjab2 160. In the light of the above conspectus, we will now consider the effect of the aforesaid legislative changes on the authority and efficacy of the propositions laid down by this Court in Jagmohan case.

These propositions may be summed up as under:

"(i) The general legislative policy that underlines the structure of our criminal law, principally contained in the Indian Penal Code and the Criminal Procedure Code, is to define an offence with sufficient clarity and to prescribe only the maximum punishment there for, and to allow a very wide discretion to the Judge in the matter of fixing the degree of punishment. With the solitary exception of Section 303, the same policy permeates Section 302 and some other sections of the Penal Code, where the maximum punishment is the death penalty.

(ii)-(a) No exhaustive enumeration of aggravating or mitigating circumstances which should be considered when sentencing an offender, is possible. "The infinite variety of cases and facets to each case would make general standards either meaningless 'boiler plate' or a statement of the obvious that no Jury (Judge) would need." (referred to McGoutha v. California) (b) The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment.

(iii) The view taken by the plurality in Furman v. Georgia decided by the Supreme Court of the United States, to the effect, that a law which gives uncontrolled and unguided discretion to the Jury (or the Judge) to choose arbitrarily between a sentence of death and imprisonment for a capital offence, violates the Eighth Amendment, is not applicable in India. We do not have in our Constitution any provision like the Eighth Amendment, nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply "the due process" clause. There are grave doubts about the expediency of transplanting western experience in our country. Social conditions are different and so also the general intellectual level. Arguments which would be valid in respect of one area of the world may not hold good in respect of another area.

(iv)(a) This discretion in the matter of sentence is to be exercised by the Judge judicially, after balancing all the aggravating and mitigating circumstances of the crime. (b) The discretion is liable to be corrected by superior courts. The exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused. In view of the above, it will be impossible to say that there would be at all any discrimination, since crime as crime may appear to be superficially the same but the facts and circumstances of a crime are widely different. Thus considered, the provision in Section 302, Penal Code is not violative of Article 14 of the Constitution on the ground that it confers on the Judges an unguided and uncontrolled discretion in the matter of awarding capital punishment or imprisonment for life.

(v)(a) Relevant facts and circumstances impinging on the nature and circumstances of the crime can be brought before the court at the preconviction stage, notwithstanding the fact that no formal procedure for producing evidence regarding such facts and circumstances had been specifically provided. Where counsel addresses the court with regard to the character and standing of the accused, they are duly considered by the court unless there is something in the evidence itself which belies him or the Public Prosecutor challenges the facts.

(b) It is to be emphasised that in exercising its discretion to choose either of the two alternative sentences provided in Section 302 Penal Code , "the court is principally concerned with the facts and circumstances whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the CrPC. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what Sections 306(2) and 309(2), CrPC purport to provide for. These provisions are part of the procedure established by law and unless it is shown that they are invalid for any other reasons they must be regarded as valid. No reasons are offered to show that they are constitutionally invalid and hence the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article 21".

(emphasis added)"

161. A study of the propositions set out above, will show that, in substance, the authority of none of them has been affected by the legislative changes since the decision in Jagmohan case. Of course, two of them require to be adjusted and attuned to the shift in the legislative policy. The first of those propositions is No. (iv)(a) which postulates, that according to the then extant Code of Criminal Procedure both the alternative sentences provided in Section 302 of the Penal Code are normal sentences and the court can, therefore, after weighing the aggravating and mitigating circumstances of the particular case, in its discretion, impose either of those sentences.

This postulate has now been modified by Section 354(3) which mandates the court convicting a person for an offence punishable with death or, in the alternative with imprisonment for life or imprisonment for a term of years, not to impose the sentence of death on that person unless there are "special reasons" - to be recorded - for such sentence. The expression "special reasons" in the context of this provision, obviously means "exceptional reasons" founded on the exceptionally grave circumstances of the particular case relating to the crime as well as the criminal. Thus, the legislative policy now writ large and clear on the face of Section 354(3) is that on conviction for murder and other capital offences punishable in the alternative with death under the Penal Code, the extreme penalty should be imposed only in extreme cases.

163. Another proposition, the application of which, to an extent, is affected by the legislative changes, is No. (v). In portion (a) of that proposition, it is said that circumstances impinging on the nature and circumstances of the crime can be brought on record before the pre-conviction stage. In portion (b), it is emphasised that while making choice of the sentence under Section 302 of the Penal Code , the court is principally concerned with the circumstances connected with the particular crime under inquiry. Now, Section 235(2) provides for a bifurcated trial and specifically gives the accused person a right of pre-sentence hearing, at which stage, he can bring on record material or evidence, which may not be strictly relevant to or connected with the particular crime under inquiry, but nevertheless, have, consistently with the policy underlined in Section 354(3), a bearing on the choice of sentence. The present legislative policy discernible from Section 235(2) read with Section 354(3) is that in fixing the degree of punishment or making the choice of sentence for various offences, including one under Section 302 of the Penal Code , the court should not confine its consideration "principally" or merely to the circumstances connected with the particular crime, but also give due consideration to the circumstances of the criminal.

164. Attuned to the legislative policy delineated in Sections 354(3) and 235(2), propositions (iv)(a) and (v)(b) in Jagmohan shall have to be recast and may be stated as below: "(a) The normal rule is that the offence of murder shall be punished with the sentence of life imprisonment. The court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence. (b) While considering the question of sentence to be imposed for the offence of murder under Section 302 of the Penal Code , the court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the court may impose the death sentence."

8. In Sangeet (supra) the Court also took note of the "suggestions"(offered at the Bar) noticed in Bachan Singh (supra) to be relevant in a determination of the circumstances attending the crime (described as aggravating circumstances) as well as those which pertain to the criminal as distinguished from the crime (referred to as the mitigating circumstances). The attempt at evolution of a principle based sentencing policy as distinguished from a judge centric one was noted to have suffered some amount of derailment/erosion. In fact, the several judgments noted and referred to in Sangeet (supra) were found to have brought in a fair amount of uncertainty in application of the principles in awarding life imprisonment or death penalty, as may be, and the varying perspective or responses of the court based on the particular facts of a given case rather than evolving standardized jurisprudential principles applicable across the board.

9. The above position was again noticed in Shankar Kisanrao Khade(supra). In the separate concurring opinion rendered by Brother Madan B. Lokur there is an exhaustive consideration of the judgments rendered by this Court in the recent past (last 15 years) wherein death penalty has been converted to life imprisonment and also the cases wherein death penalty has been confirmed.

On the basis of the views of this Court expressed in the exhaustive list of its judgments, reasons which were considered adequate by the Court to convert death penalty into life imprisonment as well as the reasons for confirming the death penalty had been set out in the concurring judgment at paragraphs 106 and 122 of the report in Shankar Kisanrao Khade (supra) which paragraphs may be extracted herein below to notice the principles that have unfolded since Bachan Singh(supra). "106. A study of the above cases suggests that there are several reasons, cumulatively taken, for converting the death penalty to that of imprisonment for life. However, some of the factors that have had an influence in commutation include:

(1) the young age of the accused [Amit v. State of Maharashtra[6] aged 20 years, Rahul[7] aged 24 years, Santosh Kumar Singh[8] aged 24 years, Rameshbhai Chandubhai Rathod (2)[9] aged 28 years and Amit v. State of U.P.[10] aged 28 years];

(2) the possibility of reforming and rehabilitating the accused (in Santosh Kumar Singh8 and Amit v. State of U.P.10 the accused, incidentally, were young when they committed the crime);

(3) the accused had no prior criminal record (Nirmal Singh[11], Raju[12], Bantu[13], Amit v. State of Maharashtra6, Surendra Pal Shivbalakpal[14], Rahul7 and Amit v. State of U.P.10);

(4) the accused was not likely to be a menace or threat or danger to society or the community (Nirmal Singh11, Mohd. Chaman[15], Raju12, Bantu13, Surendra Pal Shivbalakpal14, Rahul7 and Amit v. State of U.P.10). [pic]

(5) a few other reasons need to be mentioned such as the accused having been acquitted by one of the courts (State of T.N. v. Suresh[16], State of Maharashtra v. Suresh[17], Bharat Fakira Dhiwar[18], Mansingh[19] and Santosh Kumar Singh8);

(6) the crime was not premeditated (Kumudi Lal[20], Akhtar[21], Raju12 and Amrit Singh[22]);

(7) the case was one of circumstantial evidence (Mansingh19 and Bishnu Prasad Sinha[23]). In one case, commutation was ordered since there was apparently no "exceptional" feature warranting a death penalty (Kumudi Lal 20) and in another case because the trial court had awarded life sentence but the High Court enhanced it to death (Haresh Mohandas Rajput[24]).

122. The principal reasons for confirming the death penalty in the above cases include:

(1) the cruel, diabolic, brutal, depraved and gruesome nature of the crime (Jumman Khan[25], Dhananjoy Chatterjee[26], Laxman Naik[27], Kamta Tiwari[28], Nirmal Singh11, Jai Kumar[29], Satish[30], Bantu[31], Ankush Maruti Shinde[32], B.A. Umesh[33], Mohd. Mannan[34] and Rajendra Pralhadrao Wasnik[35]);

(2) the crime results in public abhorrence, shocks the judicial conscience or the conscience of society or the community (Dhananjoy Chatterjee26, Jai Kumar29, Ankush Maruti Shinde32 and Mohd. Mannan34);

(3) the reform or rehabilitation of the convict is not likely or that he would be a menace to society (Jai Kumar29, B.A. Umesh33 and Mohd. Mannan34);

(4) the victims were defenceless (Dhananjoy Chatterjee26, Laxman Naik27, Kamta Tiwari28, Ankush Maruti Shinde32, Mohd. Mannan34 and Rajendra Pralhadrao Wasnik35);

(5) the crime was either unprovoked or that it was premeditated (Dhananjoy Chatterjee26, Laxman Naik27, Kamta Tiwari 28, Nirmal Singh11, Jai Kumar29, Ankush Maruti Shinde32, B.A. Umesh33 and [pic]Mohd.Mannan34) and in three cases the antecedents or the prior history of the convict was taken into consideration (Shivu[36], B.A. Umesh33 and Rajendra Pralhadrao Wasnik35)." However, in paragraph 123 of the report the cases where the reasons for taking either of the views i.e. commutation or confirmation as above have been deviated from have been noticed. Consequently, the progressive march had been stultified and the sentencing exercise continues to stagnate as a highly individualized and judge centric issue.

10. Are we to understand that the quest and search for a sound jurisprudential basis for imposing a particular sentence on an offender is destined to remain elusive and the sentencing parameters in this country are bound to remain judge centric? The issue though predominantly dealt with in the context of cases involving the death penalty has tremendous significance to the Criminal Jurisprudence of the country inasmuch as in addition to the numerous offences under various special laws in force, hundreds of offences are enumerated in the Penal Code, punishment for which could extend from a single day to 10 years or even for life, a situation made possible by the use of the seemingly same expressions indifferent provisions of the Penal Code as noticed in the opening part of this order.

11. As noticed, the "net value" of the huge number of in depth exercises performed since Jagmohan Singh (supra) has been effectively and systematically culled out in Sangeet and Shankar Kisanrao Khade (supra).The identified principles could provide a sound objective basis for sentencing thereby minimizing individualized and judge centric perspectives. Such principles bear a fair amount of affinity to the principles applied in foreign jurisdictions, a resume of which is available in the decision of this Court in State of Punjab vs. Prem Sagar and Others[37].

The difference is not in the identity of the principles; it lies in the realm of application thereof to individual situations. While in India application of the principles is left to the judge hearing the case, in certain foreign jurisdictions such principles are formulated under the authority of the statute and are applied on principles of categorization of offences which approach, however, has been found by the Constitution Bench in Bachan Singh (supra) to be inappropriate to our system. The principles being clearly evolved and securely entrenched, perhaps, the answer lies in consistency in approach.

12. To revert to the main stream of the case, we see no reason as to why the principles of sentencing evolved by this Court over the years through largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, we are reminded of the age old infallible logic that what is good to one situation would hold to be equally good to another like situation. Beside paragraph 163(underlined portion) of Bachan Singh (supra), reproduced earlier, bears testimony to the above fact.

13. Would the above principles apply to sentencing of an accused found guilty of the offence under Section 304-B inasmuch as the said offence is held to be proved against the accused on basis of a legal presumption? This is the next question that has to be dealt with. So long there is credible evidence of cruelty occasioned by demand(s) for dowry, any unnatural death of a woman within seven years of her marriage makes the husband or a relative of the husband of such woman liable for the offence of "dowry death" under Section 304-B though there may not be any direct involvement of the husband or such relative with the death in question.

In a situation where commission of an offence is held to be proved by means of a legal presumption the circumstances surrounding the crime to determine the presence of aggravating circumstances (crime test) may not be readily forthcoming unlike a case where there is evidence of overt criminal acts establishing the direct involvement of the accused with the crime to enable the Court to come to specific conclusions with regard to the barbarous or depraved nature of the crime committed. The necessity to combat the menace of demand for dowry or to prevent atrocities on women and like social evils as well as the necessity to maintain the purity of social conscience cannot be determinative of the quantum of sentence inasmuch as the said parameters would be common to all offences under Section 304-B of the Penal Code.

The above, therefore, cannot be elevated to the status of acceptable jurisprudential principles to act as a rational basis for awarding varying degrees of punishment on a case to case basis. The search for principles to satisfy the crime test in an offence under Section 304-B of the Penal Code must, therefore, lie elsewhere. Perhaps, the time spent between marriage and the death of the woman; the attitude and conduct of the accused towards the victim before her death; the extent to which the demand for dowry was persisted with and the manner and circumstances of commission of the cruelty would be a surer basis for determination of the crime test. Coupled with the above, the fact whether the accused was also charged with the offence under Section 302 of the Penal Code and the basis of his acquittal of the said charge would be another very relevant circumstance.

As against this the extenuating/mitigating circumstances which would determine the "criminal test" must be allowed to have a full play. The aforesaid two sets of circumstances being mutually irreconcilable cannot be arranged in the form of a balance sheet as observed in Sangeet (supra) but it is the cumulative effect of the two sets of different circumstances that has to be kept in mind while rendering the sentencing decision. This, according to us, would be the correct approach while dealing with the question of sentence so far as the offence under Section 304-B of the Penal Code is concerned.

14. Applying the above parameters to the facts of the present case it transpires that the death of the wife of the accused-appellant occurred within two years of marriage. There was, of course, a demand for dowry and there is evidence of cruelty or harassment. The autopsy report of the deceased showed external marks of injuries but the cause of death of deceased was stated to be due to asphyxia resulting from strangulation. In view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted the postmortem, the learned Trial Judge thought it proper to acquit the accused of the offence under Section 302 of the Penal Code on the benefit of doubt as there was no evidence that the accused was, in any way, involved with the strangulation of the deceased.

The proved facts on the basis of which offence under Section 304-B of the Penal Code was held to be established, while acquitting the accused-appellant of the offence under Section 302 of the Penal Code , does not disclose any extraordinary, perverse or diabolic act on the part of the accused-appellant to take an extreme view of the matter. Coupled with the above, at the time of commission of the offence, the accused-appellant was about 21 years old and as on date he is about 42 years. The accused-appellant also has a son who was an infant at the time of the occurrence. He has no previous record of crime. On a cumulative application of the principles that would be relevant to adjudge the crime and the criminal test, we are of the view that the present is not a case where the maximum punishment of life imprisonment ought to have been awarded to the accused-appellant.

At the same time, from the order of the learned Trial Court, it is clear that some of the injuries on the deceased, though obviously not the fatal injuries, are attributable to the accused-appellant. In fact, the finding of the learned Trial Court is that the injuries No. 1 (Laceration 1" x 1/2" skin deep on the side of forehead near hair margin) and 2 (Laceration 1 1/2" x 1"scalp deep over the frontal area) on the deceased had been caused by the accused-appellant with a pestle. The said part of the order of the learned Trial Court has not been challenged in the appeal before the High Court. Taking into account the said fact, we are of the view that in the present case the minimum sentence prescribed i.e. seven years would also not meet the ends of justice.

Rather we are of the view that a sentence of ten years RI would be appropriate. Consequently, we modify the impugned order dated 4.4.2011 passed by the High Court of Delhi and impose the punishment of ten years RI on the accused-appellant for the commission of the offence under Section 304-B of the Penal Code. The sentence of fine is maintained. The accused-appellant who is presently in custody shall serve out the remaining part of the sentence in terms of the present order.

15. Accordingly, the appeal is partly allowed to the extent indicated above.

........................J. [SUDHANSU JYOTI MUKHOPADHAYA]

........................J. [RANJAN GOGOI]

NEW DELHI

OCTOBER 08, 2013

[1] (1973) 1 SCC 20

[2] (1980) 2 SCC 684

[3] (1983) 3 SCC 470

[4] (2013) 2 SCC 452

[5] (2013) 5 SCC 546

[6] (2003) 8 SCC 93

[7] Rahul v. State of Maharashtra, (2005) 10 SCC 322