STATE OF MADHYA PRADESHversusUDHAM AND OTHERS

976                      [2019]REPORTS
               SUPREME COURT    13 S.C.R. 976              [2019] 13 S.C.R.


A                      STATE OF MADHYA PRADESH
                                       v.
                           UDHAM AND OTHERS
                       (Criminal Appeal No. 690 of 2014)
B                             OCTOBER 22, 2019
          [N. V. RAMANA, MOHAN M. SHANTANAGOUDAR
                     AND AJAY RASTOGI, JJ.]
             Sentencing – Tests for – Complainant lodged report that
      respondents-accused entered his house, attacked him and the others
C
      present with axes and sticks resulting in various injuries –
      Respondents then allegedly threatened the complainant that if he
      did not keep his cow confined, he would be killed – Respondents
      were convicted u/s.326 r/w s.34, IPC & s.452, IPC and sentenced
      to 3 years rigorous imprisonment u/s.326 r/w s.34 – They were also
D     sentenced rigorous imprisonment for 1 year for the offence u/s.452,
      IPC – High Court partly allowed the appeal and reduced the
      sentence to the period of imprisonment already undergone (4
      days),while enhancing the fine amount by Rs.1500/- each – On
      appeal, held: In the present case, there is no detailed analysis of
      the facts of the case, nature of the injuries caused, weapons used,
E
      number of victims, etc. given by the High Court in the impugned
      order – While sentencing the accused, it did not consider the second
      charge proved against the respondents u/s.452, IPC – Even the fact
      that the respondents had only undergone sentence of 4 days at the
      time of passing of the impugned order, brings into question the High
F     Court pointing the same as reason for reducing their sentence –
      Sentencing for crimes has to be analyzed on the touch stone of
      three tests viz., crime test, criminal test and comparative
      proportionality test – Facts of the case need to be balanced with
      the fact that this was the first offence committed by the respondents
      and the motive, which is stated to be trivial – Occurrence of the
G
      crime is of 2008 and the respondents were only ordered to undergo
      4 days of jail term with fine of Rs.1,500/- – Same needs to be
      enhanced to commensurate with the guilt of the respondents – For
      offence u/s.326, IPC r/with s.34, IPC, the respondent nos.1-3 to
      serve rigorous imprisonment for 3 months and pay fine of
H
                                      976
   STATE OF MADHYA PRADESH v. UDHAM AND OTHERS                           977


Rs. 75,000/- each, within 1 month – For the offence u/s.452, IPC,        A
they are to serve rigorous imprisonment for 3 months and pay fine
of Rs. 25,000/- each, within 1 month– On default of payment of
fine, to suffer simple imprisonment for 3 months – For offence u/
s.326, IPC r/w s.34, IPC, the respondent no.4, aged around 80 years,
to serve rigorous imprisonment for 2 months and pay fine of
                                                                         B
Rs.50,000/- within 1 month – For offence u/s.452, IPC, he is to
serve rigorous imprisonment for 2 months and pay fine of Rs.15,000/
- within 1 month – On default of payment of fine, to suffer simple
imprisonment for 1 month – Sentences to run concurrently –
Respondents be taken into custody forthwith, to serve their remaining
sentence – Penal Code, 1860 – s.326 r/w ss.34, 452.                      C
      Partly allowing the appeal, the Court
      HELD: 1.1 In the present case, it is clear that there is no
detailed analysis of the facts of the case, the nature of the injuries
caused, the weapons used, the number of victims, etc. given by
the High Court in the impugned order. The High Court while               D
sentencing the accused, has not taken into consideration the
second charge proved against the respondents-accused herein,
under Section 452 of IPC. Even the fact that the respondents-
accused had only undergone sentence of 4 days at the time of
passing of the impugned order, brings into question the High             E
Court pointing to the same as a reason for reducing their
sentence. Sentencing for crimes has to be analyzed on the touch
stone of three tests viz., crime test, criminal test and comparative
proportionality test. Crime test involves factors like extent of
planning, choice of weapon, modus of crime, disposal modus (if
any), role of the accused, anti-social or abhorrent character of         F
the crime, state of victim. Criminal test involves assessment of
factors such as age of the criminal, gender of the criminal,
economic conditions or social background of the criminal,
motivation for crime, availability of defense, state of mind,
instigation by the deceased or any one from the deceased group,          G
adequately represented in the trial, disagreement by a judge in
the appeal process, repentance, possibility of reformation, prior
criminal record (not to take pending cases) and any other relevant
factor (not an exhaustive list). Under the crime test, seriousness
needs to be ascertained. The seriousness of the crime may be
                                                                         H
978            SUPREME COURT REPORTS                        [2019] 13 S.C.R.


A     ascertained by (i) bodily integrity of the victim; (ii) loss of material
      support or amenity; (iii) extent of humiliation; and (iv) privacy
      breach. The injuries on some of the victims are not specifically
      attributed. The respondent group was numerically matched with
      that of the victims and there were two respondents-accused within
      the group carrying lathis. The bodily integrity was compromised
B
      as a result of the injury caused, but there was no evidence led to
      indicate any permanent embellishments of any part. The scope
      of intrusion of privacy due to the assault is also minimal. There
      was no material destruction involved in the crime. [Paras 10, 12,
      13-15][982-C-D; F-H; 983-A, E-F]
C           1.2 The facts of the case highlighted, however, need to be
      balanced with the fact that this was the first offence committed by
      the respondents-accused and that the motive, which is stated to
      be trivial. Having regard to the fact that the occurrence of the
      crime is of the year 2008 and the respondents-accused have been,
D     in a way, only ordered to undergo four days of jail term with a fine
      of Rs. 1,500/-, the same needs to be enhanced to commensurate
      with the guilt of the respondents-accused. For the commission of
      the offence under Section 326 of IPC read with Section 34 of
      IPC, the respondent nos. 1, 2 and 3 are sentenced to serve
      rigorous imprisonment for 3 months and to pay a fine of Rs.
E     75,000/- each within a period of 1 month, on default of payment of
      which they are to suffer simple imprisonment for 3 months. For
      the offence under Section 452 of IPC, the respondent nos. 1, 2
      and 3 are sentenced to serve rigorous imprisonment for 3 months
      and to pay a fine of Rs. 25,000/- each within a period of 1 month,
F     on default of payment of which they are to suffer simple
      imprisonment for 3 months. For the offence under Section 326 of
      IPC read with Section 34 of IPC, the respondent no. 4, who is
      presently aged around 80 years, is sentenced to serve rigorous
      imprisonment for 2 months and to pay a fine of Rs.50,000/- within
      a period of 1 month, on default of payment of which he is to suffer
G     simple imprisonment for 1 month. For the offence under Section
      452 of IPC, respondent no. 4 is sentenced to serve rigorous
      imprisonment for 2 months and to pay a fine of Rs.15,000/- within
      a period of 1 month, on default of payment of which he is to suffer
      simple imprisonment for 1 month. The sentences are to run
H     concurrently. The respondents are directed to be taken into
   STATE OF MADHYA PRADESH v. UDHAM AND OTHERS                               979


custody forthwith, to serve out their remaining sentence, as                 A
imposed. The impugned order of the High Court is modified in
the afore-stated terms. [Paras 16-20][983-G-H; 984-A-G]
      Accused ‘X’ v. State of Maharashtra (2019) 7 SCC 1 –
      relied on.
      Yashwant v. State of Maharashtra AIR 2018 SC 4067                      B
      – referred to.
                        Case Law Reference
(2019) 7 SCC 1                    relied on                Para 9
AIR 2018 SC 4067                  referred to              Para 16           C
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
690 of 2014.
      From the Judgment and Order dated 06.11.2012 of the High Court
of Madhya Pradesh Bench at Gwalior in Criminal Appeal No. 659 of
                                                                             D
2011.
      R.K. Rathore, Rahul Kaushik, Harsh Parasher, Mrs. Swarupama
Chaturvedi, Advs. for the Appellant.
      Soumen Talukdar, R.D. Rathore, Ms. S. Ramamani, Advs. for
the Respondents.                                                             E
      The judgment of the Court was delivered by
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
690 of 2014.
      N. V. RAMANA, J.                                                       F
      1. The present appeal is directed by the appellant-State against
thefinal order dated 06.11.2012, passed by the High Court of Madhya
Pradesh (Gwalior Bench) in Criminal Appeal No. 659 of 2011, whereby
the High Court partly allowed the appeal filed by the respondents-accused
hereinand reduced the sentence awarded by the Trial Court to the period
                                                                             G
already undergone for the offences under Section326 of the Indian Penal
Code [hereinafter referred to as ‘IPC’] read with Section 34 of IPC,
and Section 452 of the IPC.
      2. The prosecution’s case is that the complainant lodged a report
on 15.04.2008 that at around 9 p.m., while he was sitting inside his house
                                                                             H
980            SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A     with three other people, the respondents-accused barged in, carrying
      weapons. More specifically,respondentnos. 1 and 3 were carrying axes,
      while respondent nos. 2 and 4 were carrying sticks. The respondents-
      accused asked the complainant why he had not kept his cow tied, and
      subsequently, on respondent no. 4’s exhortation,the respondents-accused
      attacked the complainant and the others present at that time resulting in
B
      various injuries to them. Respondents-accused then allegedly threatened
      the complainant that if he did not keep his cow confined, he would be
      killed.
              3. The Trial Court tried the respondents-accused and ultimately
      convicted themfor the offences under Section 326 read with Section 34
C     of IPC as well as the offence under Section 452 of IPC. The respondents-
      accused were sentenced to undergo 3 years rigorous imprisonment and
      a fine of Rs. 250/- (Rupees Two Hundred and Fifty Only) eachfor the
      offence under Section 326 read with Section 34 of IPC. They were
      further sentenced to undergo rigorous imprisonment for 1 year with a
D     further fine of Rs. 250/- (Rupees Two Hundred and Fifty Only) each for
      the offence under Section 452 of IPC. In case of default of payment of
      fine, they were to undergo further rigorous imprisonment for 6 months.
      All sentences were made to run concurrently by the Trial Court.
            4. Being aggrieved,the respondents-accused filed an appeal before
E     the High Court, challenging only the quantum of sentence imposed on
      them by the Trial Court. Vide impugned order, the High Court partly
      allowed the appeal and reduced the sentence to the period of
      imprisonment already undergone by them, which was a period of 4 days,
      while enhancing the fine amount imposed upon them by Rs. 1500/-
      (Rupees One Thousand Five Hundred Only) each. The respondents-
F     accused were directed to deposit the enhanced fine within a period of
      30 days, failing which they were to undergo simple imprisonment for a
      period of 30 days.
             5. Aggrieved by the impugned order, the State has filed the present
      appeal challenging the order of the High Court reducing the sentence
G     awarded to the respondents-accused. The learned counsel for the
      appellant-State submitted that the High Court erred in not considering
      the gravity of the offence and the facts and circumstances of the case,
      particularly the fact that the respondents-accused had undergone
      imprisonment of only 4 days.
H
    STATE OF MADHYA PRADESH v. UDHAM AND OTHERS                                 981
                 [N. V. RAMANA, J.]

       6. On the other hand, the learned counsel for the respondents-           A
accused submitted that the High Court has correctly appreciated the
facts and circumstances of the case in passing the impugned order, and
therefore, the same does not merit any interference from this Court.
      7. Heard learned counsel for the parties.
       8. At the outset, it is pertinent to note that the reasoning of the      B
High Court, for passing the impugned order and partly allowing the appeals
of the respondents-accused herein, is limited to one sentence. The High
Court states in its order that looking to the nature of the offence, the fact
that this is the first offence of the respondents and the period of sentence
already undergone by them, it is passing the impugned order.                    C
       9. At this stage the observations of this Court in Accused ‘X’ v.
State of Maharashtra, (2019) 7 SCC 1,in which two of us were part of
the Bench, with respect to sentencing in India are relevant here-
      “49. Sentencing is appropriate allocation of criminal sanctions,
      which is mostly given by the judicial branch. [Nicola Padfield,           D
      Rod Morgan and Mike Maguire, “Out of Court, Out of Sight?
      Criminal Sanctions and No Judicial Decision-making”, The Oxford
      Handbook of Criminology (5th Edn.).] This process occurring
      at the end of a trial still has a large impact on the efficacy of a
      criminal justice system. It is established that sentencing is a           E
      socio-legal process, wherein a Judge finds an appropriate
      punishment for the accused considering factual
      circumstances and equities. In light of the fact that the
      legislature provided for discretion to the Judges to give
      punishment, it becomes important to exercise the same in
      a principled manner. We need to appreciate that a strict fixed            F
      punishment approach in sentencing cannot be acceptable, as the
      Judge needs to have sufficient discretion as well.
      50. Before analysing this case, we need to address the issue of
      the impact of reasoning in the sentencing process. The reasoning
      of the trial court acts as a link between the general level of sentence   G
      for the offence committed and to the facts and circumstances.
      The trial court is obligated to give reasons for the imposition of
      sentence, as firstly, it is a fundamental principle of natural
      justice that the adjudicators must provide reasons for
                                                                                H
982             SUPREME COURT REPORTS                           [2019] 13 S.C.R.


A            reaching the decision and secondly, the reasons assume
             more importance as the liberty of the accused is subject to
             the aforesaid reasoning. Further, the appellate court is better
             enabled to assess the correctness of the quantum of punishment
             challenged, if the trial court has justified the same with reasons...”
B                                                            (emphasis supplied)
             10. In the present case, it is clear that there is no detailed analysis
      of the facts of the case, the nature of the injuries caused, the weapons
      used, the number of victims, etc. given by the High Court in the impugned
      order. The High Court while sentencing the accused, has not taken into
C     consideration the second charge proved against the respondents-accused
      herein, under Section 452 of IPC.Even the fact that the respondents-
      accused had only undergone sentence of 4 days at the time of passing of
      the impugned order, brings into question the High Court pointing to the
      same as a reason for reducing their sentence. As such, the order of the
      High Court merits interference by this Court.
D
             11. We are of the opinion that a large number of cases are being
      filed before this Court, due to insufficient or wrong sentencing undertaken
      by the Courts below. We have time and again cautioned against the
      cavalier manner in which sentencing is dealt in certain cases. There is
      no gainsaying that the aspect of sentencing should not be taken for
E     granted, as this part of Criminal Justice System has determinative impact
      on the society. In light of the same, we are of the opinion that we need to
      provide further clarity on the same.
             12. Sentencing for crimes has to be analyzed on the touch stone
      of three tests viz., crime test, criminal test and comparative proportionality
F     test.Crime test involves factors like extent of planning, choice of weapon,
      modus of crime, disposal modus (if any), role of the accused, anti-social
      or abhorrent character of the crime, state of victim. Criminal test involves
      assessment of factors such as age of the criminal, gender of the criminal,
      economic conditions or social background of the criminal, motivation for
      crime, availability of defense, state of mind, instigation by the deceased
G
      or any one from the deceased group, adequately represented in the trial,
      disagreement by a judge in the appeal process, repentance, possibility of
      reformation, prior criminal record (not to take pending cases) and any
      other relevant factor (not an exhaustive list).

H
    STATE OF MADHYA PRADESH v. UDHAM AND OTHERS                                    983
                 [N. V. RAMANA, J.]

        13. Additionally, we may note that under the crime test, seriousness       A
needs to be ascertained. The seriousness of the crime may be ascertained
by (i) bodily integrity of the victim; (ii) loss of material support or amenity;
(iii) extent of humiliation; and (iv) privacy breach.
       14. Coming to the appropriate sentence which is to be imposed on
the respondents-accused in this case, the facts of this case need closer           B
scrutiny. The respondents-accused entered the house of the complainant,
attacked the others present with axes and with sticks. Four people,
including the complainant, were injured. The injuries caused were incised
wounds on the hands and backs of the victims, an incised wound next to
the ear of one of the victims and bruising, etc. The respondents-accused
were convicted for the offence under Section 326 read with Section 34              C
of IPC, which carries a maximum sentence of life imprisonment, or of
imprisonment of a term which may extend to ten years, and fine. They
were also convicted under Section 452 of IPC, which carries a maximum
sentence of seven years along with fine.
       15. The respondents-accused herein were males of age 33 years,              D
33 years, 28 years and 70 years respectively at the time of the incident.
The main allegation as against the respondent nos. 1 and 3 is that they
had used an axe to attack the victim. In this scuffle there is no dispute
that some of the respondents-accused herein were also injured profusely.
Further the motivation seems to be that the cow belonging to the victims           E
had entered the household of the accused and the respondent no. 1 with
his co-accused are proved to be the aggressor herein. From the perusal
of the record, the injuries on some of the victims are not specifically
attributed. The respondent group was numerically matched with that of
the victims and there were two respondents-accused within the group
carrying lathis.The bodily integrity was compromised as a result of the            F
injury caused, but there was no evidence led to indicate any permanent
embellishments of any part. The scope of intrusion of privacy due to the
assault is also minimal. There was no material destruction involved in
the crime.
       16. In this context, we need to note that the facts of the case             G
highlighted above, however, need to be balanced with the fact that this
was the first offence committed by the respondents-accused and that
the motive, which is stated to be trivial. There is a requirement to treat
the crime committed herein differently than other objectionable situations
                                                                                   H
984            SUPREME COURT REPORTS                         [2019] 13 S.C.R.


A     such as police atrocities etc. [refer to Yashwant v. State of
      Maharashtra, AIR 2018 SC 4067] Having regard to the fact that the
      occurrence of the crime is of the year 2008 and the respondents-accused
      have been,in a way, only ordered to undergo four days of jail term with
      a fine of Rs. 1,500/-, we need to enhance the same to commensurate
      with the guilt of the respondents-accused.
B
             17. Comparatively, having perused certain precedents of this Court,
      we are of the considered opinion and accordingly direct that for the
      commission of the offence under Section 326 of IPC read with Section
      34 of IPC,the respondent nos. 1, 2 and 3 are sentenced to serve rigorous
      imprisonment for3 months and to pay a fine of Rs. 75,000/- (Rupees
C     Seventy-Five Thousand Only) eachwithin a period of 1 month,on default
      of payment of which they are to suffer simple imprisonment for 3 months.
      For the offence under Section 452 of IPC,the respondent nos. 1, 2 and 3
      are sentenced to serve rigorous imprisonment for 3 months and to pay a
      fine of Rs. 25,000/- (Rupees Twenty-Five Thousand Only) each within
D     a period of 1 month, on default of payment of which they are to suffer
      simple imprisonment for 3 months.
             18. For the offence under Section 326 of IPC read with Section
      34 of IPC, the respondent no. 4, who is presently aged around 80 years,
      is sentenced to serve rigorous imprisonment for 2 months and to pay a
E     fine of Rs.50,000/- (Rupees Fifty Thousand Only)within a period of 1
      month, on default of payment of which he is to suffer simple imprisonment
      for1 month.For the offence under Section 452 of IPC,respondent no. 4
      is sentenced to serve rigorous imprisonment for 2 months and to pay a
      fine of Rs.15,000/- (Rupees Fifteen Thousand Only) within a period of 1
      month, on default of payment of which he is to suffer simple imprisonment
F     for1 month.
             19. The above sentences are to run concurrently. Further,
      therespondents are directed to be taken into custody forthwith, to serve
      out their remaining sentence, as imposed hereinabove.

G           20. Accordingly, the appeal is partly allowed and the impugned
      order of the High Court is modifiedin the afore-stated terms.


      Divya Pandey                                           Appeal partly allowed.


H