- 1 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.100216 OF 2019 (397(CR.PC)/438(BNSS)) BETWEEN: GOUSMODIN S/O. ABDULREHAMAN MULLA, AGE: 35 YEARS, OCC. DRIVER, R/O. YALAGACHCHA, TQ. AND DIST. HAVERI. …PETITIONER (BY MISS SHIVANI MURARI, ADVOCATE FOR SRI. A.P. MURARI, ADVOCATE) AND: THE STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. THROUGH GUTTAL P.S., HAVERI. …RESPONDENT (BY SRI. PRAVEENA Y. DEVAREDDIYAVARA, HCGP) THIS CRIMINAL PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.P.C. SEEKING TO CALL FOR THE RECORDS AND SET ASIDE THE JUDGMENT AND ORDER DATED 02.04.2019 IN CR.A.NO.53/2017 PASSED BY THE I-ADDL. DIST. & SESSIONS JUDGE, HAVERI, CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 23.11.2017 IN C.C.NO.687/2012 PASSED BY THE ADDL. CIVIL JUDGE & JMFC COURT, HAVERI AND ALSO ENHANCING THE SENTENCE FROM TWO MONTHS TO ONE YEAR FOR THE OFFENCES PUNISHABLE UNDER SECTION 304(A) OF IPC AND TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 23.11.2017 IN C.C.NO.687/2012 PASSED BY THE ADDL. CIVIL JUDGE & JMFC R - 2 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 COURT, HAVERI, CONVICTING THE ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 279, 304(A) OF IPC AND UNDER SECTION 134(A)(B) R/W. 187 OF M.V. ACT, AND SENTENCING HIM TO PAY A FINE OF RS.1000/- FOR THE OFFENCES PUNISHABLE UNDER SECTION 279 OF IPC AND IN DEFAULT TO PAY THE FINE TO UNDERGO SI FOR A PERIOD OF ONE MONTH; FOR THE OFFENCES PUNISHABLE UNDER SECTION 304(A) OF IPC, SENTENCING THE ACCUSED TO UNDERGO SI FOR A PERIOD OF TWO MONTHS; AND FOR THE OFFENCES PUNISHABLE UNDER SECTION 134(A)(B) R/W. 187 OF M.V. ACT, SENTENCING THE ACCUSED TO PAY A FINE OF RS. 500/- AND IN DEFAULT TO UNDERGO SI FOR A PERIOD OF ONE MONTH. THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: ORAL ORDER (PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA) Heard Miss.Shivani Murari, learned counsel appearing on behalf of Sri.A.P.Murari, learned counsel for the revision petitioner and Sri.Praveena Y. Devareddyavara, learned High Court Government Pleader for the State/respondent. 2. Revision petitioner is the accused who has suffered an order of conviction in CC No.687/2012 dated 23.11.2017 for the offences punishable under Section 279, 304A of IPC and Section 134(a) and (b) read with Section 187 of IMV Act and sentenced as under: - 3 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 “Acting U/Sec.255(2) of the Cr.P.C., the accused is convicted for the offences punishable U/Secs.279, 304(A) of IPC and U/Sec.134(A) (B) r/w 187 of M.V. Act. For the offence punishable u/Sec.279 of I.P.C. accused is sentenced to pay fine of Rs.1,000/-. In default to pay fine to undergo S.I. for a period of one month. And for the offence punishable u/Sec.304(A) of I.P.C. accused is sentenced to undergo S.I. for a period of two months. And for the offence punishable U/Sec.134(A) (B) r/w 187 of M.V. Act to pay a fine of Rs.500/- in default shall undergo simple imprisonment for a period of one month. The Bail bonds and surety bond executed u/Sec. 437(A) of Cr.P.C. shall remain in force for a period of six months.” 3. Validity of the order of conviction and sentence was challenged before the First Appellate Court in Crl.A.No.53/2017. 4. Learned Judge in the First Appellate Court entertaining the appeal of the accused, not only upheld the order of conviction, but in the appeal filed by the accused, enhanced the sentence to one year for the offence punishable under Section 304A of IPC. - 4 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 5. Being further aggrieved by the same, accused is before this Court, in this revision petition. 6. Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition contended that material on record would not justify the sustenance of the conviction of the revision petitioner for the offences punishable under Section 279, 304A of IPC and Section 134(a) and (b) read with Section 187 of IMV Act and sought for allowing the revision petition. 7. Alternatively, she would contend that in the event of this Court upholding the order of conviction, taking note of the fact that in the appeal filed by the accused, there was no scope for enhancing the sentence as the State did not challenge the quantum of sentence awarded by the learned Trial Magistrate, order of the learned Trial Magistrate can be restored by setting aside the enhancement of the sentence ordered by the learned Judge in the First Appellate Court and sought for allowing the revision petition. - 5 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 8. Per contra, learned High Court Government Pleader supports the impugned judgments and contended that without filing an appeal or revision, State can always seek for enhancement of the sentence in the appeal filed by the accused as the Trial Court has not taken into consideration the judgments of the Hon’ble Apex Court while passing appropriate sentence for the offence punishable under Section 304A of IPC. 9. Learned Judge in the First Appellate Court, did consider the order dated 25.02.2019, passed by the Hon’ble Apex Court in the case of Subash Chand v. State of Punjab in Crl.A.No.1827/2009 dated 25.02.2019 and therefore, adequate punishment can be granted in a given case even in the absence of any appeal or the revision filed by the State. 10. It is also his contention that Court cannot impose lesser punishment than the minimum punishment prescribed under the statute. Therefore, order of the First - 6 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 Appellate Court needs to be maintained by dismissing the revision petition in toto. 11. Having heard the parties in detail, this Court perused the material on record meticulously. 12. On such perusal of the material on record, order of conviction of the revision petitioner for the offences punishable under 279, 304A of IPC and Section 134(a) and (b) read with Section 187 of IMV Act, needs no interference as there was no explanation offered by the revision petitioner for the incriminatory circumstances found in the case of the prosecution. 13. It is found from the material on record that P.W.2 and 3 are the eye witnesses and panch witnesses have supported the case of the prosecution besides the complainant. 14. P.W.2 in the cross-examination, has specifically answered that he has seen the lorry which was moving in the wrong direction and resulted in the accident. - 7 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 15. Further, in the cross-examination of P.W.8, no doubt admitted that there are three road humps from the road proceeding from Haveri to Guttal, which is a busy road. He also admits that the place where the accident has taken place namely Shibara Cross where the road deviates to Kanavalli and Yalagaccha, is a busy road is admitted by the witness. 16. Taking note of the fact that prosecution witnesses are totally strangers to the revision petitioner, the argument that there is a false implication of accused in the incident, cannot be countenanced in law that too in the revisional jurisdiction. 17. Thus, order of the learned Trial Magistrate in convicting the revision petitioner for the aforesaid offences has been rightly reappreciated by the learned Judge in the First Appellate Court by supplementing the additional reasons to sustain the order of conviction. Therefore, conviction order needs no interference. - 8 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 18. However, insofar as sentence is concerned, learned Judge in the First Appellate Court misdirected himself that there is a minimum punishment prescribed for the offence punishable under Section 304A of IPC. 19. On perusal of the provision of Section 304A of IPC, no such minimum punishment is prescribed. 20. However, if State is aggrieved by the quantum of sentence ordered by the learned Trial Magistrate is inadequate, State would have filed an appeal or the revision challenging the quantum of sentence. 21. In the absence of any such challenge in the appeal filed by the revision petitioner, ordinarily, State could not have pressed into service the inadequacy of the sentence which has not been properly appreciated by the learned Judge in the First Appellate Court resulting in miscarriage of justice. 22. It is pertinent to note that statute in its wisdom, has provided appeal by the accused against the order of - 9 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 conviction and appeal filed by the State in two different provisions. 23. In this regard, it is just and necessary for this Court to cull out Section 374 and 378 of Cr.P.C. which reads as under: 374. Appeals from convictions.-(1)Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court. (2)Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial; may appeal to the High Court. (3)Save as otherwise provided in Sub-Section (2), any person; a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or b) sentenced under section 325, or c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session. - 10 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 [(4) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code (45 of 1860), the appeal shall be disposed of within a period of six months from the date of filing of such appeal.] 378. Appeal in case of acquittal.- [(1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5),- (a) the District Magistrate may in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b)the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause(a)] or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may subject to the provisions of sub-Section (3), also direct the Public Prosecutor to present an appeal- - 11 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.] (3) [No appeal to the High Court] [Substituted by Act 25 of 2005, Section 32, for "No appeal" (w.e.f. 23-6- 2006).] under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2). - 12 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 24. Likewise, what are the powers to be exercised by the First Appellate Court is enlisted under Section 386 of Cr.P.C. 25. For ready reference, Section 386 of Cr.P.C. is also culled out hereunder: 386. Powers of the Appellate Court-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in the case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may – (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction – (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence – (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court competent to try the offence, or - 13 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper: Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal. 26. On careful and conjoint reading of the above provisions, it is crystal clear that the powers to be exercised by the First Appellate Court under Section 374 of Cr.P.C., is different from the powers to be exercised under Section 378 of Cr.P.C. 27. It is also relevant to refer to Section 386 of Cr.P.C., wherein it has been contemplated as to how the appeal to the Sessions Court to be heard. - 14 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 28. Under Section 386 of Cr.P.C., First Appellate Court has the power to alter the nature or the extent, or the nature and extent of the sentence ordered by the learned Trial Magistrate. 29. However, as a general rule, sentence ordered by the learned Trial Magistrate, shall not be enhanced in an appeal filed by the accused. More so, when the State in its wisdom, did not chose to challenge the quantum of sentence ordered by the learned Trial Magistrate. 30. However, if the First Appellate Court chose to enhance the sentence in the absence of an appeal or the revision filed by the State or the victim, with regard to the quantum of sentence, before adverting to enhance the sentence, the First Appellate Court must and should notify the accused(appellant) about its intention to enhance the appeal and issue show cause notice as to why the sentence shall not be enhanced if the First Appellate court is of the opinion that there is inadequacy of the sentence. - 15 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 31. Needless to emphasize that such enhancement must the only in accordance with the penal provision or such penal statute where there is a prescription of imprisonment and monetary fine. 32. However, if the penal statute prescribes that for a given offence, only imprisonment or monetary fine, in such circumstances, First Appellate Court shall not as a general rule, venture to enhance the punishment in an appeal filed by the accused and when there is no challenge to the quantum or adequacy of the sentence passed by the Trial Court. 33. In this regard, this Court gainfully places reliance on the following judgments of the Hon’ble Apex Court: i. Govind Ramji Jadhav v. State of Maharashtra reported in (1990) 4 SCC 718. Relevant paragraphs are culled out here under: - 16 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 6. ‘Let punishment fit the crime’ is one of the main objects of the sentencing policy. To achieve this object, the Code of Criminal Procedure empowers the High Court to enhance the sentence in appropriate cases where the sentence awarded by the subordinate courts is grossly inadequate or unconscionably lenient or ‘flea-bite’ or is not commensurate with the gravity of the offence. The High Court enjoys the power of enhancing the sentence either in exercise of its revisional jurisdiction under Section 397 read with Section 401 or in its appellate jurisdiction under Section 377 read with Section 386(c) of the Criminal Procedure Code (hereinafter referred to as the ‘Code’) subject to the provisos (1) and (2) to Section 386 of the Code. It may be stated in this connection that it is permissible for the High Court while exercising its revisional jurisdiction under Section 397 read with Section 401 IPC to exercise the power of a court of appeal under Section 386(c) for enhancement of sentence. 8. Under Section 377(1) of the Code, the State Government in any case of conviction on a trial held by any court other than the High Court is empowered to direct the public prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Under sub-section (2) of Section 377, the Central Government under the circumstances stated therein is empowered to direct the public prosecutor to present an appeal to the High Court for enhancement of sentence. Before the introduction of this Section 377 on the recommendation of the Law Commission in its 41st Report, any error in sentencing could be remedied only by the exercise of the revisional power of the High Court. However, the High Court notwithstanding the exercise of its powers under the appellate jurisdiction in an appeal preferred under - 17 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 Section 377 of the Code have powers to act suo motu to enhance the sentence in appropriate cases while exercising its revisional jurisdiction even in the absence of an appeal against the inadequacy of the sentence as provided under Section 377. 15. From the above discussion, it is clear that the High Court both in exercise of its revisional jurisdiction under Section 397 read with Section 401 CrPC and its appellate jurisdiction under Section 377 read with Section 386(c) of CrPC in matters of enhancement of sentence should give the accused a reasonable opportunity of showing cause against such enhancement as contemplated under the first proviso to Section 386 as well under sub-section (3) of Section 377 of the Code. As pointed out in Surjit Singh case [1984 Supp SCC 518 : 1985 SCC (Cri) 90] , the rules of natural justice as also the prescribed procedure require issuing of notice to the appellant and affording an opportunity to be heard on the proposed action for enhancement of sentence. 16. In the backdrop of this legal position, we may revert to the case on hand. The High Court has enhanced the sentence unmindful of the relevant provisions of the Code of Criminal Procedure and also the rules of natural justice and by overstepping its jurisdiction adopted a leeway in enhancing the sentence from 3 years to 7 years for the conviction under Section 201 IPC which exercise of powers in violation of the prescribed procedure, is impermissible for the reasons stated albeit. 17. We, therefore, set aside the order of the High Court enhancing the sentence to 7 years and restore the order of the trial court inflicting the sentence of 3 years rigorous imprisonment and the fine of Rs 2500 with the default clause. - 18 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 ii. State of Himachal Pradesh v. Nirmala Devi reported in (2017) 7 SCC 262. Relevant paragraphs are culled out here under: 14. Section 386 of the Code of Criminal Procedure enlists the powers of the appellate court while hearing the appeals from the trial court. In an appeal from conviction, if the conviction is maintained, the appellate court has the power to alter the nature or the extent, or the nature and extent, of the sentence (though it cannot enhance the same). However, such a power has to be exercised in terms of the provisions of the Penal Code, etc. for which the accused has been convicted. Power to alter the sentence would not extend to exercising the powers contrary to law. It clearly follows that the High Court committed a legal error in doing away with the sentence of imprisonment altogether. 15. The second question is as to whether the circumstances pleaded by the respondent justify taking a lenient view in the matter. The acts committed by the respondent constitute heinous offences. Having common intention along with co- accused, she administered poison like substance to the complainant; robbed him of his money; and even attempted to kill him. As already held, award of sentence of imprisonment is a must. The question is, in the wake of the commission of crime of this nature, to what extent the mitigating factor viz. the respondent being a woman and having three minor children, be taken into consideration for the purposes of sentencing? - 19 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 16. In Zunjarrao Bhikaji Nagarkar case [Zunjarrao Bhikaji Nagarkar v. Union of India, (1999) 7 SCC 409 : 1999 SCC (L&S) 1299] , it was impressed upon by this Court that the penalty to be imposed has to commensurate with the gravity of the offence. In Narinder Singh v. State of Punjab [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] , there is a brief narration of the jurisprudential theories of punishment in criminal cases, described as under: (Narinder Singh case [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] , SCC pp. 475-77, paras 14-17) “14. The law prohibits certain acts and/or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kinds. Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why are those persons who commit offences subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. 15. Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date. The prevalence of such - 20 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well, namely, whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation, etc. In the absence of such guidelines in India, the courts go by their own perception about the philosophy behind the prescription of certain specified penal consequences for particular nature of crime. For some deterrence and/or vengeance becomes more important whereas another Judge may be more influenced by rehabilitation or restoration as the goal of sentencing. Sometimes, it would be a combination of both which would weigh in the mind of the court in awarding a particular sentence. However, that may be a question of quantum. 16. What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter others effectively as it amounts to greatest good of the greatest number of persons in a society. It is in this context that - 21 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 we have to understand the scheme/philosophy behind Section 307 of the Code. 17. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the court, particularly in those cases where the crimes committed are heinous in nature or depict depravity, or lack morality. At times it is to satisfy the element of “emotion” in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious, namely, cases involving heinous crime with element of criminality against the society and not parties inter se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences, etc. would clearly fall in this category. After all, justice requires long-term vision. On the other hand, - 22 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 there may be offences falling in the category where the “correctional” objective of criminal law would have to be given more weightage in contrast with “deterrence” philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two conflicting interests which is to be achieved by the court after examining all these parameters and then deciding as to which course of action it should take in a particular case.” 17. The offences for which the respondent is convicted prescribe maximum imprisonment and there is no provision for minimum imprisonment. Thus, there is a wide discretion given to the court to impose any imprisonment which may be from one day (or even till the rising of the court) to ten years/life. However, at the same time, the judicial discretion which has been conferred upon the court, has to be exercised in a fair manner keeping in view the well-established judicial principles which have been laid down from time to time, the prime consideration being reason and fair play. Some of the judgments highlighting the manner in which discretion has to be exercised were taken note of in Satish Kumar Jayanti Lal Dabgar v. State of Gujarat [Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359 : (2015) 3 SCC (Cri) 108] and I may reproduce the same: (SCC pp. 370-72, para 18) - 23 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 “18. Likewise, this Court made the following observations regarding sentencing in the cases involved in sexual offences in Sumer Singh v. Surajbhan Singh [Sumer Singh v. Surajbhan Singh, (2014) 7 SCC 323 : (2014) 3 SCC (Cri) 184] : (SCC pp. 337-39, paras 33-36) ‘33. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion. It is because the ringing of poignant and inimitable expression, in a way, the warning of Benjamin N. Cardozo in The Nature of the Judicial Process (Yale University Press, 1921 Edn.) p. 114: “The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated to “the primordial necessity of order in social life”.” 34. In this regard, we may usefully quote a passage from Ramji Dayawala and Sons (P) Ltd. v. Invest Import [Ramji Dayawala and Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80] : (SCC p. 96, para 20) “20. … when it is said that a matter is within the discretion of the court it is to be exercised - 24 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 according to well-established judicial principles, according to reason and fair play, and not according to whim and caprice. “Discretion”, said Lord Mansfield in R. v. Wilkes [R. v. Wilkes, (1770) 4 Burr 2527 : (1558-1774) All ER Rep 570 : 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 and regular’ (see Craies on Statute Law, 6th Edn., p. 273).” 35. In Aero Traders (P) Ltd. v. Ravinder Kumar Suri [Aero Traders (P) Ltd. v. Ravinder Kumar Suri, (2004) 8 SCC 307] the Court observed: (SCC p. 311, para 6) “6. … According to Black's Law Dictionary “judicial discretion” means the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word “discretion” connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27 Corpus Juris Secundum, p. 289.) When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty - 25 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 accorded by statute or rules, to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.” Thus, the Judges are to constantly remind themselves that the use of discretion has to be guided by law, and what is fair under the obtaining circumstances. 36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalised judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying “the law can hunt one's past” cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to - 26 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment for two years apart from the fine that has been imposed by the learned trial Judge.’” 18. Likewise, stressing upon the principle of proportionality in sentencing in Hazara Singh v. Raj Kumar [Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 : (2014) 1 SCC (Cri) 159] , this Court stressed that special reasons must be assigned for taking lenient view and undue sympathy for the accused is not justified. It was equally important to keep in mind rights of the victim as well as society at large and the corrective theory on the one hand and deterrence principle on the other hand should be adopted on the basis of factual matrix. The following paragraphs from the said judgment under the caption “sentencing policy” need to be referred to: (SCC pp. 521-24, paras 11-17) “11. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. This Court has repeatedly stressed on the central role of - 27 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 proportionality in sentencing of offenders in numerous cases. 12. The factual matrix of this case is similar to the facts and circumstances in Shailesh Jasvantbhai v. State of Gujarat [Shailesh Jasvantbhai v. State of Gujarat(2006) 2 SCC 359 : (2006) 1 SCC (Cri) 499] wherein the accused was convicted under Sections 307/114 IPC and for the same the trial court sentenced the accused for 10 years. However, the High Court, in its appellate jurisdiction, reduced the sentence to the period already undergone. In that case, this Court held that the sentence imposed is not proportionate to the offence committed, hence not sustainable in the eye of the law. This Court observed thus: (SCC pp. 361-62, paras 7-8) ‘7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of “order” should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: “State of criminal law continues to be—as it should be—a decisive reflection of social consciousness of society.” - 28 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 Therefore, 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. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc.’ 13. This position was reiterated by a three-Judge Bench of this Court in Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat [Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 : (2009) 3 SCC (Cri) 368] , wherein it was observed as follows: (SCC p. 281, paras 99-100) ‘99. … The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to (sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience - 29 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong.’ In that case, the Court further goes to state that meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society. 14. 14. In Jameel v. State of U.P. [Jameel v. State of U.P., (2010) 12 SCC 532 : (2011) 1 SCC (Cri) 582] , this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: (SCC p. 535, paras 15-16) - 30 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 ‘15. 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. 16. It is the duty of 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.’ 15. In Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 : (2013) 1 SCC (Cri) 972] , while discussing the concept of appropriate sentence, this Court expressed that: (SCC pp. 744-45, para 33) ‘33. … 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.’ 16. Recently, this Court in Gopal Singh v. State of Uttarakhand [Gopal Singh v. State of - 31 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608] held as under: (SCC p. 551, para 18) ‘18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence.’ 17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of 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 court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.” 19. The following principles can be deduced from the reading of the aforesaid judgment: 19.1. Imprisonment is one of the methods used to handle the convicts in such a way as to protect and prevent them to commit further crimes for a specific - 32 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 period of time and also to prevent others from committing crime on them out of vengeance. The concept of punishing the criminals by imprisonment has recently been changed to treatment and rehabilitation with a view to modify the criminal tendency among them. 19.2. There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. 19.3. Notwithstanding the above theories of punishment, when it comes to sentencing a person for committing a heinous crime, the deterrence theory as a rationale for punishing the offender becomes more relevant. In such cases, the role of mercy, forgiveness and compassion becomes secondary. 19.4. In such cases where the deterrence theory has to prevail, while determining the quantum of sentence, discretion lies with the court. While exercising such a discretion, the court has to govern itself by reason and fair play, and discretion is not to be exercised according to whim and caprice. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. 19.5. While considering as to what would be the appropriate quantum of imprisonment, the Court is empowered to take into consideration mitigating circumstances, as well as aggravating circumstances. - 33 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 34. Thus, applying the legal principles to the case on hand, learned Judge in the First Appellate Court did not consider the fact that learned Trial Magistrate has imposed punishment of two months by exercising the discretionary power and monetary fine for the proved offence, resulting in miscarriage of justice. 35. Moreover, material on record including the impugned judgment of the First Appellate Court, does not depict that the First Appellate Court had sufficiently cautioned the accused/appellant that it is proposing to enhance the sentence and hear the accused on the inadequacy of the sentence. 36. Therefore, in the absence of any special circumstances that has been placed on record, First Appellate Court ought not to have enhanced the sentence in the appeal filed by the accused especially, when there was no challenge by the State with regard to the inadequacy of the sentence. - 34 - NC: 2025:KHC-D:6670 CRL.RP No. 100216 of 2019 37. Therefore, from the above discussion, the following: ORDER i. Revision petition is allowed in part. ii. While maintaining the conviction of the revision petitioner for the offences punishable under Section 279, 304A of IPC and Section 134(a) and (b) read with Section 187 of IMV Act, sentence ordered by the learned Trial Magistrate is restored by setting aside the enhancement of the sentence passed by the learned Judge in the First Appellate Court under Section 304A of IPC. iii. Time is granted to surrender before the Trial Court till 15.05.2025. Office is directed to return the Trial Court Records with copy of this order forthwith. Sd/- (V.SRISHANANDA) JUDGE KAV/CT:PA/LIST NO.: 2 SL NO.: 45