Holding

The Supreme Court may not reopen factual findings under Article 136 but may vary sentences on principle, reducing them where special circumstances such as youth and lack of overt act exist, while upholding the principal murder conviction.

Summary

The Supreme Court examined appeals by several accused convicted under IPC s.302 read with s.149 and s.325 for a murder. The High Court had reduced both convictions and sentences, but the appellants challenged the convictions and argued that the sentences were excessive. The Court held that, under Article 136, it would not reopen factual findings but could vary sentences on principle, taking into account the absence of overt act, the youth of certain appellants, and the rehabilitative purpose of sentencing. Consequently, it released a 16‑year‑old appellant who had no overt act, reduced the sentences of other appellants to two years’ rigorous imprisonment, and upheld the conviction and sentence of the principal murderer. The judgment also underscored the need for a Children Act in Bihar to ensure compassionate treatment of juvenile offenders.

Issues considered

Whether the Supreme Court can interfere with factual findings of the trial court under Article 136.
Whether the convictions under IPC s.302 read with s.149 and s.325 are sustainable.
Whether the sentences imposed should be varied on account of the appellants' age, lack of overt act, and principles of juvenile justice.
Whether constructive liability justifies conviction and sentencing of the accused.

Legislation cited

Indian Penal Code, 1860s. 149, s. 302, s. 325

Subjects

sentencingconstructive liabilityjuvenile justicespecial leaveArticle 136IPCSection 302Section 149Section 325rehabilitationChildren Act

Judgment

927

RAM PRASAD SAHU AND ORS. A
.• ~
v.
STATE OF BIHAR
October 12, 1979
[V. R. KRISHNA !YER AND R. S. PATHAK, JJ.] B

Special Leave, under Articll' 136 of the Constitution-Lilnitations-Sentencini
Verdict-Factors to be taken note of.

Tue appellants were held guilty by the Sessions Court under Section 302
read with Section 149 J.P.C. plus some lesser offences; but the High Court soften- C
·ed both the convictions and sentences h3.ving regard to all but one. Hence the
.appeals by special leave, limited to sentence.

Allowing in part, the Court,

HELD ; 1. Every error does not confer a visa into this Court lest the flood·
gates of litigation should flow as an irresistible stream making the Supreme
Court a superior High Court of appeal. Doing so, in exercise of this Court's D
jurisdiction under Art. 136 of the Constitution, would condemn the court to
functio~1al futility and defeat the design of the founding fathers that ordinarily
it shall operate as the nation's ~.ummit court deliberating and pronouncing upon
issues of great moment and constitutional portent. [928 D-EJ

Constructive liability notwithstanding, the sentencing process will take note of
the conspectus of circumstances including the absence of overt act, age and E
antecedents of the offender. It is wrong on principle to exclude such special
circumstances like injuries found on the accused, in apportioning the sentence.
[930 A-BJ

Rehabilitation of young offenders is b<isic to juvenile justice, which in turn,
is a component of social justice. The penological purpose being to convert the
offender into a non-offender, it \vill be a frustration of criminal justice, if young F
lads are walled in and caged in the hope that cruelty will correct. Further it is
widely accepted by penologists that the sharp shock of the initial phase of a pri·
son term is what hurts most and therefore, a long term may well be counter·
pr0ductive and a shorter term sufficiently deterrent. [929 F, 930 B-C]

t Observation.
[Unfortunately, despite repeated observations of this Court, the conscience G
of the State of Bihar has not been quickened into kindneoo towards children
and its legislature has not found the mood or time to pass a Children Act.
This is bad omen in the International Year of the Child and it is hoped that
amidst_ the general tumult the children will not suffer from legislative neglect,
Had there b'een a Children Act in the Bihar State like in most other States
of the country, a compassionate trial/ process would have been statutorily
mandatory and children could not be marched' into regular criminal courts B
for trial and t:onviction, nor incarcerated with adult criminals with obvious
debasement and subtle torture such as homosexual attacks.] (929 D-FJ
928 SUPREME COURT REPORTS [1980] 1 S.C.R.

\ A CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 6!J ~
and 614 of 1979.
Appeals by Special Leave from the Judgme)tt and Order dated
24-4-1979 of the Patna High Court in Criminal Appeal No. 289 of
1975.
B R. K. lain (613/79), A. N. M11lla (614179) and R. P. Singh for
the Appellants.
U. P. Singh for the Respondent.

The Judgment of the Court was delivered by
6 KRISHNA IYER, J.-These two appeals lend themselves to disposal
by a common judgment having been filed by two different sets of
accused against the same judgment convicting them all for different
offence~.

The facts found by the High Court have our broad concurrence
D although Shri R. K. Jain, Advocate in Criminal Appeal No. 613 of
1979, has, to some extent, made a dent on the veracity of the prosecu-
tion version. But we are not inclined to re-open the findings of
fact concurrently rendered in exercise of our jurisdiction under Article
136 even assuming there are some errors of fact and of law. Every
error does not confer a visa into this Court lest the floodgates of
E litigation should flow as an irresistible stream making the Supreme
Court a superior High Court of appeal. Doing so would condemn the
court to functional futility and defeat the design of the founding fathers
that ordinarily it shall operate as the nation's summit court deliberating
and pronouncing upon issues of great moment and constitutional por-
tent. For these reasons we have confined leave to appeal to the
I!' nature of the offence disclosed on the findings on record and the
sentence to be imposed if variance is justified on p.rinciple.
The appellants in both these appeals, have been held guilty by the
Sessions Court under s. 302 read with s. 149 I.P.C. plus. some lesser
offences; but the High Court softened both the convictions and sentences
G having regard to all but one. The plea of the appellants in both the
appeals is that the conviction is un-sustainable and, in any case, the
sentence is harsher than the law· permits.
A few facts. The deceased-one man dies as a result of a mur-
derous assault and so it was that the trial court rendered conviction
H under s. 302 read with s. 149 I.P.C.-was attacked by the group of
accused each playing a particular role, the lethal blow being attributed
to accused Bansi Sahu. We do not interfere with the conviction and
R. P. SAHU v. Bll!AR (Krishna Iyer, J:) 929

sentence of Bansi' Sahu. The appellants in Cr. Appeal 61 3179 A
•
-', (arising out of SLP (Cr!.) 2340 of 1979) have been freed from overt
acts by the High Court and consequently they have been found culpable
under s. 325 read withs. 149 I.P.C. having regard to the quantum of
common object which made them constructively liable. They have
been awarded six years R.I. each. Some of these accuse? have
received injuries for which the prosecution has offered no credible ex- B
planation. The special circumstances present in the case do _not al-
together' absolve the proi;ecution from blame. While these suggest
some distortion in the version of the State, they do not amount to any
specific defence provided in the Penal OJde and cannot disturb t11e
conviction or the core of the . prosecntion version. Neverthdess, it c
is wrong on principle to exclude such circumstances in apportioning
the sentence.

Secondly, a vital factor with grave impact on the sentencing verdict
has been altog;other omitted by the courts below. Appellant "No. 2
Sankar Sahu was barely 16 years old, but was tried, convicted and
D
sentenced like an adult. Satyanarayan Sahu appellant No. 1 in the
same criminal appeal is stated·to be 20 years old. Had there beeh a
Children A~I in the Bihar State like in most other States of th;o country,
a compassionate trial process would have been statntorily mandatory
and children could not be marched into regular criminal courts for
trial and conviction, nor incarcerated with adult criminals with obvious E
debasement and subtle torture such as homosexual attacks. Unfor-
tunately, despite rep~ated observations of this Court, the conscience
of the State of Bihar hai; not been quickened into kindness towards
children and its lejlislature has not found the mood or time to pass a
Children Act. This is a bad omen ih the International Year of the
Child and we hope that amidst the general tumult the children will F
not suffer from legislative neglect. Rehabilitation of young offenders
is basic to juvenile justice which, in turn, is a component of social
justice. Will the Internatianal Year of the Child see the end of this i'n-
difference on the part of the ~;ogislature and the executive ? We leave
this part of the case on a hopeful note.
G
Had there been a Children Act, the above two accused appellants
1 and 2, would have received more compassionate consideration at the
hands of the court. We emphasise this aspect not merely with respect
to the present case but also havi"ng in mind the gen•;orality of cases
where the sensitivity of the court and the literacy of the Bar have not
risen to the ;eve! where Indian children can claim that charity due to H
them is being meted out.
5-'/43 SCI/79
930 SUPREME COURT REPORTS [1980] 1 s.c.a.

A For these reasons we consider that appellant No. 2 in Cr!. Appeal
No. 614 of 1979 be released forthwith, particularly because be is
young and has no overt act attributed to him and more than all, laas
suffer~d around 5 months' imprisonment already. Constructive liability
notwithstanding the sehtencing process will take note of the com;pectus
of circumstances including \he apsence of overt act, age and antece-
B dents of the offender. The peno!ogical purpose being to convert the
offender into a non-offender, it will be a frustration of criminal justice
if young lads are walled in and caged in the hope that cruelty will cor-
rect. We direct appellant No. 4 to \le discharged from prison at
once.
c The other appellants 1, 3 and 4, who are also not guilty of any
overt acts deserve sentencing commiseration. Currently, it is widely
accepted by penologists that the sharp shock of the intial phase of a
prison term is what hurts most and therefore, a long term may well
be counter-productive and a shoher term sufficiently deterrent. We
therefore, reduce their sen~mce to two years' R.l. while confirming the
D conviction against them.

S. R. Appeals allowed in part.