JUDGMENT : Crl. M.A. No. 808/2014 (Exemption) Allowed, subject to just exceptions. Crl. A. 808/2014 1. The appellant prefers this appeal aggrieved by the order of the learned Additional Sessions Judge dated May 20, 2014 awarding the respondent a sentence of Rigorous imprisonment for a period of five years and a fine of Rs. 1,000/- pursuant to the judgment dated May 17, 2014 convicting him for an offence under Section 304 Part-II IPC. 2. The respondent was charged for an offence punishable under Section 302 IPC. He has been convicted for the offence punishable under Section 304 Part-II IPC, which judgment is neither challenged by him nor by the State before this Court. 3. The factual foundation of the case is based on the testimony of two witnesses i.e. PW-1 Aarti, mother of the deceased and PW-2 Dilip, maternal uncle of the deceased. The respondent is the father of the deceased Ankit, an 18 month old child. Aarti deposes that she got married to the respondent around three years prior to the incident and after 1½ years of the wedlock the deceased Ankit born to them. Both the husband and wife were working as labourer, thus residing in Gurgaon, Faridabad and Gujarat on different periods. For the last one month, the respondent was suspecting infidelity and would thus assault Aarti after taking liquor. Fed up with the behaviour of the respondent, Aarti with her son went to place of her in-laws at Village Bhadohi, District Etawa, U.P. on April 15, 2014. After three days of reaching the village, the respondent made a phone call to Aarti and threatened her that she would stay in the village without food and she and her son will not be permitted to move from there. Finally on 19th of the same month, she along with her son reached Delhi and came to the house of her mother. Since her mother’s house was locked, she went to her sister Anita’s house situated in a gali nearby. After two three days, the respondent arrived at Delhi and reached her sister’s house. The respondent asked Aarti to come to the room of her mother. Thus, both Aarti and respondent along with their child went to the room of the mother with PW-2 Dilip, brother of PW-1 accompanying them. The room of the mother was on the second floor and was locked. The respondent asked Aarti to come to the room of her mother. Thus, both Aarti and respondent along with their child went to the room of the mother with PW-2 Dilip, brother of PW-1 accompanying them. The room of the mother was on the second floor and was locked. So the younger sister of Aarti went to fetch the keys from her mother, who was working as maid in the nearby houses. While the child was in the arms of PW-1, the child got out of the lap of Aarti and went to the lap of respondent. He slept in the lap of the respondent after playing for some time with him, since the child was off to sleep, Aarti asked the respondent to give the child to her so that she could make him sleep comfortably. On this, the respondent uttered “Le Ankit So Gaya Hai Mein ise Hamesha Ke Liye Sula Deta Hun” and then holding the child in both hands the respondent proceeded and threw the child from the second floor towards the road. The child’s head burst and he died on the spot. The respondent tried to run away however, he was caught on the spot. 4. Since Aarti and Dilip stood by their earlier version in the witness box, the learned Trial Court convicted the appellant for offence of culpable homicide not amounting to murder punishable under Section 304 Part-II IPC though he was charged for offence punishable under section 302 IPC. The reasoning behind convicting him for offence under section 304 Part-II IPC was that though altercation had not come on record however, from the context it is apparent that the respondent threw the child in a fit of rage generated by some altercation between the respondent and Aarti and thus committed the offence in a heat of passion, not further aggravated by accused having acted with undue advantage or in a cruel and unusual manner. It was held that throwing of the child in such a situation leads to the inference that the respondent went out of his control and happened to commit the act. 5. The factum that the deceased was none else but the infant of the respondent, the act was in a sudden heat of passion when the child was in the lap of the respondent, prevailed on the court to award the sentence as noted above. 6. 5. The factum that the deceased was none else but the infant of the respondent, the act was in a sudden heat of passion when the child was in the lap of the respondent, prevailed on the court to award the sentence as noted above. 6. Learned APP for the state assails this order on the ground that such a barbaric act by the own father of an 18 months old in­fant child was diabolic and sentence awarded was highly inadequate. Reliance is placed on 2014 (3) JCC 2282 : 2014 (6) Scale 187 Sumer Singh v. Surajbhan Singh & Ors. In Sumer Singh the court was dealing with the conviction for offence under Section 308 IPC wherein the sentence of seven days imprisonment having already undergone and a fine of Rs. 50,000/- was imposed on the respondent. Commenting on the inadequacy of the sentence, the report relied upon on an earlier decision in AIR 1991 SC 8 Sham Sunder v. Puran & Anr. wherein the Hon’ble Supreme Court enhanced the sentence from the period already undergone being six months to rigours imprisonment for five years. The report noted : 28. The factual matrix of the instant case has to be tested on the touchstone of aforesaid principles. On a perusal of the judgment of the High Court, we find that no reason whatsoever has been ascribed. The manner in which the crime was committed speaks eloquently about its brutality. The gravity of the offence speaks for itself. A young man’s hand has been cut off from the wrist. How the fear psychosis would have reigned in the Society at the relevant time does not require Solomon’s wisdom to visualize. It is difficult to fathom what possible reason the High Court could have envisioned or thought of while reducing the sentence to the period already undergone, i.e., seven days for such an offence. Possibly, the High Court felt that increase of fine amount would serve the cause of justice and ameliorate the grievance of the victim and pacify the collective cry, we are not inclined to think so. 29. Possibly, the High Court felt that increase of fine amount would serve the cause of justice and ameliorate the grievance of the victim and pacify the collective cry, we are not inclined to think so. 29. 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, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life.” 30. In this regard, we may usefully quote a passage from Ramji Dayawala and Sons (P) Ltd. v. Invest Import, AIR 1981 SC 2085 : “...when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. ‘Discretion’, said Lord Mansfield in R. v. Wilkes ((1770) 98 ER 327), ‘when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular (see craies on Statute Law, 6th Edn., p.273). 31. ‘Discretion’, said Lord Mansfield in R. v. Wilkes ((1770) 98 ER 327), ‘when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular (see craies on Statute Law, 6th Edn., p.273). 31. In M/s. Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri, AIR 2005 SC 15 the Court observed: “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 page 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 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. 32. 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 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 rationalized 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 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 of two years apart from the fine that has been imposed by the learned trial judge. 7. Thus, the Supreme Court emphasised the need for a balanced approach while exercising the judicial discretion of awarding sentence, it also emphasised that the court should record reasons that weigh in its mind white passing the order on sentence. 7. Thus, the Supreme Court emphasised the need for a balanced approach while exercising the judicial discretion of awarding sentence, it also emphasised that the court should record reasons that weigh in its mind white passing the order on sentence. In (1990) 4 SCC 718 Govind Ramji Jadhav v. State of Maharashtra while dealing with the enhancement of sentence by the High Court, it was held that the High court notwithstanding its power under the appellate jurisdiction in an appeal preferred under section 377 of the code has powers to act suo motu to enhance the sentence and 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 IPC, would act where the sentence awarded by the subordinate courts is grossly inadequate or unconscionably lenient or ‘fleabite’ or is not commensurate with the gravity of the offence. 8. Further the consistent approach of the Hon’ble Supreme Court and this Court is to award a sentence of rigorous imprisonment for a period of around five years for conviction under section 304 Part-II IPC. In 2007 (4) JCC 3132 : (2007) 13 SCC 518 Suresh Singh & Anr. v. State of Haryana wherein the accused gave a pharsa blow on the head of the deceased, in JT 2011 (6) SC 617 Buddhu Singh v. State of Bihar where an exe blow was given on the head of the deceased and other similar cases, the Supreme Court had modified the sentence of Rigorous Imprisonment for a period of 5 years and fine. 9. In view of the aforesaid discussion sentence of rigorous imprisonment for five years for offence punishable under Section 304 Part-II IPC cannot be said to be highly inadequate. There is no appeal by the State or the complainant against acquittal of the respondent for an offence under Section 302 IPC. Thus we find no infirmity in the impugned order.