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THEORIES AND LAW RELATING TO PUNISHMENT AND SENTENCING

By:- N. Brajakanta Singh,


Lecturer, Manipur Judicial Academy, Imphal.

Introduction
WHY DO WE PUNISH SOMEONE? While attempting to answer this question, a student
of criminal law will find the following points:
1.
2.
3.
4.
5.

Criminals deserve to be punished.


Punishment will prevent criminals from committing further crimes.
It discourages others from committing criminal acts.
It protects society from dangerous or dishonest people.
It also tells the society that laws are not to be violated.

The modern concept of punishment involves at least three things: (1) the existence of an
authority which imposes punishment; (2) punishment is inflicted on a person who has committed
an offence; and (3) the punishment is meant to be unpleasant for the obvious reason to
discourage criminal behavior. It is well settled that punishment of criminals is inevitable for
protection of the society and almost all the legal systems of the world recognized the importance
of punishment. The object of punishment is not merely that of making the commission of a crime
an ill-bargain to the offender, but to prevent him from committing crime again, to deter other
persons from committing crime and also to bring about reformation of the offender. Punishment,
thus, seeks to prevent criminals from committing new crimes, influence insecure member of
society, deter potential offenders from committing crimes and adjust offenders to the society.
Different theories of punishment are propounded based on these objects of punishment. Four
well established theories of punishment are: deterrent theory, retributive theory, preventive
theory and reformative theory. Restorative justice is another emerging theory which seeks to use
punishment to repair and heal the harm done to the victim. Noted thinkers like Cesar Beccaria,
Jeremy Bentham and Plato, proponents of deterrent theory, promoted the ideas that punishment
should be justified through deterrence, and that sanctions must be certain and proportionate to
the offence committed. Punishment is used to deter offenders from reoffending or discouraging
others from following their examples. While Henry W. Longfellow and other supporters of
retributive theory viewed that law violators are punished because they have done something
wrong, and justice demands that guilty be punished. According to proponents of preventive
theory like Nigel Walker, the purpose of punishment is to isolate high-risk offenders in order to
limit their opportunities for committing crimes in future. But for reformists, the purpose of
punishment is to reform and rehabilitate the offender, and thus to reduce his propensity to

commit crimes in future. More recently, proponents of restorative justice propagate that the
purpose of punishment is to repair the harm to the victim and the community, to heal the victim
and the community, and to restore harmony between victims and offenders. Thus, punishment is
justified because of the guilt and blameworthiness of the wrongdoer or it prevents future crime,
reforms the offender, or helps the victim and the community heal. The present paper aims to
examine the sentencing pattern adopted by Indian judiciary in the light of above theories of
punishment.
Social context of sentencing
Sentencing of a criminal is to fix the penalty in accordance with penal law. Penal law
provides as to how much punishment can be inflicted and for what kinds of behavior. The very
essence of the criminal justice system is that guilty people should be awarded appropriate
punishment for their crime. A criminal must be punished in proportion to the gravity of the crime
he commits. The principle of just punishment is the bedrock of criminal sentencing. The object
of criminal law is to protect the society by stamping out criminal proclivity and the same can be
achieved by imposing appropriate sentence to the criminals. Prof. Freedman rightly said that
State of criminal law continues to be as it should be a decisive reflection of social
consciousness of society. The recent enactment of the Criminal Law Amendment Act, 2013
bringing about various changes in the major criminal laws of the country in response to the
report submitted by the Justice Verma Committee formed after the incident of Delhi Gang Rape
occurred on 22 December, 2012 reflects the adherence of criminal law to the demands of the
society and changing needs of time. Lord Justice Denning also stated that Punishment is the
way in which society expresses its denunciation of wrongdoing; and, in order to maintain respect
for the law, it is essential that punishment inflicted for grave crimes should adequately reflect the
revulsion felt by the great majority of citizens for them. It is a mistake to consider the objects of
punishments as being a deterrent or reformative or preventive and nothing else The truth is
that some crimes are so outrageous that society insists on adequate punishment, because the
wrongdoer deserves it, irrespective of whether it is deterrent or not. The social impact of the
crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of
public money, treason and other offences involving moral turpitude or moral delinquency which
have great impact on social order and public interest, cannot be lost sight of. The imposition of
appropriate punishment is the manner in which the court responds to the societys cry for justice
against the criminal. 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 criminal but also the rights of the victim of the crime and 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 the criminal and the victim belong.
The punishment should respond to the societys cry for justice against the criminal.

Lack of a concrete sentencing policy


Till today, our country does not have a sentencing Act, not even a uniform sentencing
policy or guidelines governing the exercise of the vast discretion in the matter of sentencing.
Indian Penal Code or any other law in force does not provide any norm or guidelines to dictate
the courts to follow in the sentencing stage. The Central Government had earlier set up two
committees, namely, (1) the Malimath Committee (2003) and (2) the Madhava Menon
Committee (2007) to look into the possibility of framing specific guidelines on sentencing but no
statutory sentencing guidelines or policy has been framed so far. The courts listen to the
prosecution and the defense and choose from a range of sentences. The judges also consider
precedents that have already been decided by higher courts that are similar enough to provide
some guidance and to assist with arriving at a fit sentence. In determining an adequate sentence
to be awarded in a given case, judges are influenced in varying degrees by different theories of
punishment, the age of the accused, his physical/mental health condition, the nature of the
offence, the weapon used, the brutality of the crime, the defenseless and unprotected state of the
victim, etc. Judges also consider the offenders motivation for the crime, past criminal behavior
of the offender as well as the offenders potential for reform and rehabilitation. After an overall
assessment of the case, the judge imposes a punishment proportionate to the harm done by the
crime, i.e. punishment which fits the crime as well as the offender.
Discretion in sentencing
In India, criminal trials are conducted in either the Magistrates court or Sessions court. The
High Court can conduct criminal trial, but seldom does it. The nature of offences alleged against
the accused person determines the courts by which such offences are to be tried. A criminal trial
has two broad stages, namely, (1) guilt confirmation stage and (2) sentencing stage. Once the
trial court found, after conclusion of fair trial, an accused person guilty, it has to necessarily
decide on quantum of punishment to be awarded to the accused. A judge should not pronounce
the punishment on the day of conviction of the accused person. As provided in Section 235(2) of
the Criminal Procedure Code, 1973, the judge shall, unless he proceeds in accordance with the
provisions of Section 360, hear the accused on the question of sentence, and award punishment
accordingly. Thus, a separate sentence hearing shall be held for the determination of the quantum
of punishment to be awarded to the convict. It is useful to consider the pre-sentence report, if
any, submitted by probation officer. The sentencing judge may also consider the victims
statement regarding the effect of the crime, as done in some foreign jurisdictions. In Rattan
Singh v. State of Punjab, AIR 1980 SC 84, the Supreme Court observed: It is a weakness of our
jurisprudence that the victim of the crime and the distress of the dependants of the prisoner do
not attract the attention of the law; victim reparation is still the vanishing point in our criminal
law. Different offences have different sentences ranges depending on the nature of the offences.
Some crimes call for just fines, some crimes attract simple imprisonment, some crimes draw
rigorous imprisonment, while some other heinous offences call for either life imprisonment or
capital punishment. In Indian criminal jurisprudence, the maximum and minimum punishment

have been prescribed giving the judges wide discretionary powers to decide on the quantum of
sentence. Though punishment is the discretion of the court, yet it must be exercised judicially.
Judicial discretion must be exercised objectively having regard to the facts and circumstances of
each case. In exercising this discretion the court must consider the gravity of the offence, the
manner in which it was committed, the mitigating and aggravating circumstances of the case
which may justify the award of the lesser or maximum sentence.
The penal laws of the country determine the types of punishment in accordance with the
gravity of the offence. In imposing a punishment, the concern of the court is with the nature of
the act viewed as a crime or breach of the law. The maximum sentence or fine provided in law is
an indicator on the gravity of the act. After considering the nature and mode of commission of an
offence by the accused and all other mitigating or aggravating factors, the court has to take a
decision as to whether the charged established warrants the maximum punishment or lesser than
maximum sentence could be awarded to the person. The judge has to delicately balance all the
relevant circumstances in a dispassionate manner to arrive at a just and appropriate sentence. It is
expected that the courts would operate the sentencing system so as to impose such sentence
which reflects the conscience of the society. To give lesser punishment in serious offences will be
a mockery of justice and the common man will lose faith in the courts. Awarding lesser sentence
encourages any criminal and as a result of the same, the society suffers. On the other hand,
punishing a person with rigorous imprisonment for a period of two years for acceptance of a
bribe of Rs. 300/- would be an inappropriate sentence. Thus, the punishment should neither be so
lenient that it shocks the conscience of the society nor excessive which would render it to
miscarriage of justice.
Another important area in sentencing is related to offences punishable with a minimum term
of imprisonment which may extend to a maximum term of imprisonment. For instance, for
causing dowry death the offender shall be punishable with imprisonment for a term which shall
not be less than seven years but which may extend to imprisonment for life. In such cases, the
court is bound to award the minimum sentence provided for the commission of such offences.
The judge can exercise his judicial discretion only not to award the maximum if mitigating
circumstances weigh more than the aggravating circumstances. Furthermore, there are other
offences in which the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment lesser than the minimum sentence. In such cases,
there is a duty cast upon the court to record adequate and special reasons for awarding lesser
sentence. However, there is no concrete formula as to what constitute adequate and special
reasons. In State of Rajasthan v. Vinod Kumar, (2012)6 SCR 1, the Supreme Court observed:
In order to impose the punishment lesser than the prescribed in the statute, there must be
exceptional reasons relating to the crime as well as to the criminal. In the instant case, the
Supreme Court also observed that religion, race, caste, economic or social status of the accused
or victim are not relevant factors for determining the quantum of punishment.
Death Penalty

When we discuss sentencing pattern, it would not be out of context to add the sentencing
guidelines/principles provided by the Supreme Court in plethora of cases dealing with award of
death penalty. In the landmark case of Bachan Singh v. State of Punjab, (1980) 2SCC 684, the
Constitution Bench of the Supreme Court observed 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. In the instant case, the Apex Court held that death penalty should be awarded only in
the rarest of the rare cases. The Supreme Court has laid down five circumstances that constitute
rarest of the rare case in the case of Machhi Singh v. State of Punjab, AIR 1983 SC 957. The
five circumstances are summarized as under:
Manner

--- when the murder is committed with extreme brutality.

Motive

--- when the motive reveals total depravity and meanness.

Anti-Social nature

--- when the murder is socially abhorrent.

Magnitude

--- when the crime is enormous in proportion.

Personality of the victim --- when the victim is an innocent child, a helpless woman, or
a reputed public figure (political murder).
However, these guidelines are merely illustrative. The judges need to apply their mind
judiciously in the light of circumstances of each case and decide whether death penalty should be
awarded or not.
Due consideration of victims, a new trend in sentencing pattern is also emerging in the
country. Courts have ordered payment of compensation to the victims when fines are recovered
from the convicts. Serious attention can be paid by the courts for rehabilitation of the victims or
their dependents.

Conclusion
The sentencing decision is resulted from a process of gathering and interpreting
information concerning the offence, the offender, the victim and the surrounding circumstances.
Judges consider the harm done by the crime, the blameworthiness and culpability of the offender,

past criminal records of the offender, motivation for the crime, the offenders potential for reform
and rehabilitation, his conduct since arrest , societal response to the crime, etc to tailor sentences
fit to the facts and circumstances of the case in hand. It can be safely conclude that the ambiguity
and uncertainty inherent in the sentencing process coupled with the fact that judges exercise
considerable discretion in deciding what the sentence will be in a particular case, there cannot be
a concrete conclusion as to how a judge arrived at a particular sentence in a case before him.
Sentencing is a very important stage in the process of criminal justice administration and as such
it must receive serious attention of the court. The purpose of the sentence is protection of the
society, by deterring potential offenders from committing further offences and by reforming and
turning them into law abiding citizens. A proper sentence conceived in the light of the relevant
circumstances of the case can be helpful to curb the increasing crime rate.