SENTENCING

• In the modern era, crime rates have increased all around the world, and India is no
exception to it.

• The main legislations which govern criminal law in India are the Indian Penal Code, of
1860, The Indian Evidence Act, of 1872, and The Code of Criminal Procedure, of 1973.

• Sentencing is basically a statement provided in the judgments which show the quantum
of punishment for a particular offence as per the law.

• And when this sentence is put into action or operationalized, then it becomes
punishment.
• “Sentences” are declarations in judgments that specify the legal penalty to be
applied to a certain offence. When the same is put in action, and is
operationalized, it would be termed as ‘punishment’. A sentence is considered to
be the predecessor of the actual inflicting of punishment if any.
Aim of sentencing

• The main objective of a criminal trial is sentencing. When the victim is satisfied, justice through punishment
serves as a symbol for the current and subsequent generations. Therefore, the ultimate focus of the sentencing
policy is to keep an eye on crime and punish offenders.

• The criminal justice system is a series of government agencies and institutions which performs three basic
functions.

• 1. It defines what a ‘crime’ is, it adjudicates guilt of crimes and it imposes punishment for crimes.

• 2. The object is to suppress criminal enterprise and punish the guilty. Every criminal trial is a voyage
of discovery in which truth is the quest.

• 3. Goals include the rehabilitation of offenders, preventing other crimes, and moral support for
victims.
• Every criminal trial is essentially divided into two stages- the Conviction and
Sentencing.

• Conviction is where the guilt of the accused is determined. The sentencing thus,
comes at a stage after the person has been found guilty.

• As the fundamental validation of any criminal justice delivery system is

determined based on the kind of punishment given for various offences, therefore
the sentencing must be just and proportional.
DIFFERENCE BETWEEN SENTENCING AND PUNISHMENT

 Sentences are statements in judgements which lay out what the punishment for a
particular offence will be according to the law. When the same is put in action,
and is operationalized, it would be called the punishment. Thus, it can be said
that the sentence is the predecessor to the actual inflicting of punishment.
 Sentencing is simply about the imposition of punishment on individuals who
have been found guilty of criminal behaviour and does the work of stating and
defining the punishment in the law of land.
 Sentencing is not only what happens at the trial and what punishment the convict
is awarded with, it is also about how the legislature deals with particular criminal
phenomena.
SIGNIFICANCE OF SENTENCING AND SENTENCING POLICY

 Sentencing is not only significant for the accused before the Court but also for
his family, friends, the victims of the crime, and the society or community as a
whole.

 Sentencing can be perceived as an idea that is dependent on moral and social

values existing in a given society at a given point of time.

 Sentencing guidelines are a set of standards that are generally put in place to
establish rational and consistent sentencing practices within a particular
jurisdiction.
 The sentencing policy is necessary to promote a particular just
society, protection of rights of both the victim and the convict.

 The sentencing policy simply reflects the measure of judgement and

the rationale, the society has for a certain crime and can be considered
as a formula for calculating what is right for a particular crime
TYPES OF SENTENCING

 A concurrent sentence is served at the same time with another sentence

imposed earlier or at the same proceeding.

 A consecutive (or cumulative) sentence occurs when a defendant has been

convicted of several counts, each one constituting a distinct offence or
crime, or when a defendant has been convicted of several crimes at the same
time. The sentences for each crime are then "tacked" on to each other, so that
each sentence begins immediately upon the expiration of the previous one.
 A deferred sentence occurs when its implementation is postponed until some later time.

 A final sentence puts an end to a criminal case. It's distinguished from an interlocutory or interim
sentence.

 A determinate sentence is the same as a fixed sentence: It's for a fixed period of time.

 An indeterminate sentence, rather than stating a fixed period of time for imprisonment, instead
declares that the period shall be "not more than" or "not less than" a certain prescribed duration of
time. The authority to render indeterminate sentences is usually granted by statute in several
states.
 A life sentence represents the disposition of a serious criminal case, in which the
convicted person is sentenced to spending the remainder of their life in prison.

 A maximum sentence represents the outer limit of a punishment, beyond which a

convicted person may not be held in custody.

 A straight or flat sentence is a fixed sentence without a maximum or minimum.

• A mandatory sentence is created by state or federal statutes and represents the
rendering of a punishment for which a judge has no room for discretion. Generally
it means that the sentence may not be suspended and that no probation may be
imposed, leaving the judge with no alternative but the "mandated" sentence.
 A minimum sentence represents the minimum punishment or the minimum time
a convicted person must spend in prison before becoming eligible for parole or
release.

 A suspended sentence actually has two different meanings. It may refer to a

withholding or postponing of pronouncing a sentence following a conviction or it
may refer to the postponing of the execution of a sentence after it has been
pronounced.
COMMITTEE REPORTS

• Malimath Committee- in March 2003, a Committee was formed by the

Ministry of Home Affairs to look into the Reforms of the Criminal
Justice System.

• Madhav Menon Committee - In 2008, the Committee on Draft

National Policy on Criminal Justice (the Madhava Menon Committee),
reasserted the need for statutory sentencing guidelines.
• The Malimath Committee further observed that, in order to bring “predictability in
the matter of sentencing,” a statutory committee should be established “to lay
guidelines on sentencing guidelines under the Chairmanship of a former Judge of
Supreme Court or a former Chief Justice of a High Court experienced in criminal
law with other members representing the prosecution, legal profession, police,
social scientist and women representative.”
• In an October 2010 news report, the then Law Minister stated that the
government is planning to establish a “uniform sentencing policy” in
line with the United States of America and the United Kingdom so as
to ensure uniformity while awarding sentences.

• However despite all such recommendations, still there are no steps

taken by the legislature to form uniform sentencing guidelines.
• whether a particular offence should be punished with the minimum or maximum penalty
prescribed for it, or somewhere from between the gap, depends solely on the judge’s
discretion.

• Section 354(1)(B) of the CrPC directs judges to record reasons behind awarding a
particular sentence, and according to Section 354(3), whenever any sentence authorizes
life imprisonment or death penalty, special reasons must be laid down.

• Despite the above provisions, it is undisputable that the absence of a sentencing policy
in India, leaves the judges and the judiciary with a lot of power.
• There can be various reasons why similar crimes may attract different punishments for offenders. One of the

reasons could be differences in the severity of the crime, where even though two crimes might appear similar

on the surface, there might be nuances in the details that affect the severity of the offence. Another reason

could be differences in the criminal history of the offender or the jurisdiction where the crime was committed.

Additionally, aggravating or mitigating circumstances, such as premeditation or self-defence, can also impact

the severity of the crime and corresponding punishment.

• Furthermore, bias or discrimination could also play a role in different punishments for the same crime, which

is a serious issue that should be addressed and corrected. It is important for the legal system to strive for

consistency and fairness in sentencing, while also considering the unique circumstances of each case.
 AGGRAVATING & MITIGATING
FACTORS
• When two different people are given different punishments for committing similar offences, it can be
perceived as unfair or unjust.

• However, there can be several reasons for this discrepancy. Some of the possible explanations include

a) differences in the severity of the crime,

b) the criminal history of the offender, the jurisdiction,

c) the circumstances of the offence,

d) the presence of aggravating or mitigating circumstances,

e) and bias or discrimination

• Each case is unique, and the court must consider all relevant factors when
determining an appropriate punishment. Ultimately, it is important to
remember that the goal of punishment is not only to punish the offender
but also to deter others from committing similar crimes. The punishment
must be proportional to the offence and serve the interests of justice.
• Aggravating circumstances refer to any factors or circumstances that may
increase the severity or culpability of a wrongdoing or offence. These
circumstances may be considered in legal or disciplinary proceedings, such
as in criminal trials or in academic misconduct cases. Examples of
aggravating circumstances may include premeditation, use of a weapon or
violence, involvement of minors or vulnerable individuals, or a history of
similar offences.
• Mitigating circumstances refer to any factors or circumstances that
may lessen the severity or culpability of a wrongdoing or offence.
These circumstances may be considered in legal or disciplinary
proceedings, such as in criminal trials or in academic misconduct
cases. Examples of mitigating circumstances may include mental
illness, coercion, or duress, etc., self-defence, etc.
 Lack of a prior criminal record.

 Minor role in the offense; Culpability of the victim.

 Circumstances at the time of the offense, such as provocation, stress, or

emotional problems that might not excuse the crime but might offer an
explanation.

 Mental or physical illness; and

 Genuine remorse.
• Aggravating circumstances refers to factors that increase the severity or
culpability of a criminal act. The presence of an aggravating circumstance will
lead to a harsher penalty for a convicted criminal. It includes heinousness of the
crime, lack of remorse, and prior conviction of another crime.

• A mitigating factor is the opposite of an aggravating circumstance, as a mitigating

factor provides reasons as to why punishment for a criminal act's ought to be
lessened.
• In the case of Bachan Singh v. State of Punjab, the Court established the principle that the
punishment for a crime should be proportionate to the crime committed and the offender’s
circumstances. This decision highlighted the need for the sentencing Judge to consider the
nature of the crime, the motive, the method of commission, and the offender’s previous
conduct, as well as the nature of the society and the public conscience.

• The Court emphasised that the sentence should not be excessively harsh or unduly
lenient.
• Similarly, in State of Maharashtra v. Sukhdev Singh, the court held that while the law
prescribes a maximum sentence for a particular offence, it does not mandate that
sentence in every case.

• The court emphasised that the sentencing Judge must exercise discretion in
determining the appropriate sentence based on the facts and circumstances of the
case, including aggravating, and mitigating factors....
• The landmark judgment in State v. T. Makwanyane, is another example of the
importance of considering the individual circumstances of each case when determining
a sentence. In this case, the Constitutional Court of South Africa held that the death
penalty was unconstitutional because it violated the right to life and dignity, as well as
the prohibition against cruel, inhuman, and degrading punishment.

• The court emphasised that the punishment should be tailored to the individual offender
and the crime committed, rather than being a mandatory sentence prescribed by law.
PUNISHMENTS UNDER IPC

• Section 53 of the Indian Penal Code, 1860 describes various types of punishments
that a court of law can give to a wrongdoer while awarding punishment.

(1) Death

(2) Life imprisonment

(3) Imprisonment which may be – rigorous or simple

(4) Forfeiture of property

(5) fine
• Judicial authorities all over the world have been struggling hard to establish a coherent
set of principles for judicial sentencing but the fundamental question is as to which of
the four, namely, deterrence, retribution, prevention or reformation, should take
precedence in the process of sentencing.

• It is on this point that the judges, the lawyers, the magistrates and the people in general
disagree. The crucial problem in context with judicial sentencing is whether it is the
'protection of society, or the prevention of crime', which should gain primacy in
awarding the sentence.
• 1. In ordering punishments, if a Judge leans too far towards uniformity, be is not

displaying the wisdom, compassion, and judiciousness which the people expect from him.

• Rather the personality of the offender and the gravity of the offence should be the guiding

factor for a Judge in judicial sentencing.

• The age antecedents, past criminal record, responsiveness and prospects of reformation

of the offender as also the circumstances in which he committed the crime, should be

taken into consideration while deciding the quantum of punishment.

• As rightly pointed out by Bentham, quantum of punishment should vary
according to the offender's capacity to suffer.

• He enumerated as many as thirty-two invariables of capacity for suffering

some of which are sex, age, physical and mental health. religion, lineage etc.

• The use of individualised methods of punishment such as probation, parole,

suspension of sentence, etc. may achieve some element of rationality in the
penal policy.
• 2. Humanity, consciousness about societal values and frugality are some
the limitating factors in judicial sentencing. Disparities in sentencing
may be due to disparities between individual Judges, disparities between
offenders convicted for the same offence under similar situations,
disparities due to locational comparisons or disparities due to racial or
class prejudices' etc. These are rather inevitable in the modern complex
society.
• 3. The discretion of the Judge in matters of sentencing is limited by
the penal law itself which sets a legal maximum sentence for a
particular offence. However, there may be mandatory penalties for
certain offences where the law gives the court no choice. For example,
the offence of murder carries the minimum sentence of life
imprisonment under Section 302 of the Indian Penal Code.
• The terms minimum and maximum may serve to mark the extremes of
punishment, which require equal attention. Spelling out the limits of
minimum punishment, the Supreme Court held that, "the value of the
punishment must not be less in any case than what is sufficient to outweigh
that of the profit of the offence. By the profit of the crime, must be
understood not only pecuniary profit, but every advantage real or apparent,
which has operated as a motive to the commission of The the crime."
• 4. For professional criminals or political terrorists who indulge in ruthless
Violence and are a potential danger for the community, an extended period of
preventive detention after serving the penal sentence may prove appropriate
keeping in view the public safety and security against these dangerous
hardened offenders. For this purpose. a distinction has to be drawn between
hardened criminals and the recidivists. The former are 'positive danger' to
society whereas the latter are a aisance rather than a threat.
• 5. The offences committed by public servants should be severely dealt
with and deserve no leniency in sentencing. Particularly, a public
servant found guilty of accepting or obtaining illegal gratification or
persons guilty of food adulteration or any other socio-economic
offence such as hoarding, profiteering, black-marketing. tax evading
etc. must be sternly punished as they are a menace to society.
• 6. Judicial sentencing is a personal responsibility of the Judge, a matter for his conscience alone. Any
intrusion into his decision should be considered most unreasonable. But things have now considerably
changed. It is said that today 'even Judges are judged'.' They are expected to be fair and free from
prejudices in pronouncing sentences. A Judge should also be aware of the various issues involved in
the crime and the factors influencing the criminal who is standing trial before him. Though maturity
and experience are great merits of a sentencer, but his decisions should not be out of tune with the
advancing society. In other words, he should command public confidence through his pragmatic
pronouncements. Needless to say, that despite legal training and limitations of criminal law, personal
backgrounds and attributes of the Judge do play a vital role in judicial sentencing.
• 7. Though remotely, the judicial sentencing is likely to be influenced by
the manner and mode of appointment of the Judges, particularly in
countries where the Judges are elected like Legislators and are
answerable to the electorates, they are prone to fall an easy prey to
unjust local prejudices and pressures. Therefore, political element
should not be allowed to enter into the powers of appointment of
Judicial Magistrates.
• 8. The standards of sentencing are bound to differ depending on whether the Judges are
drawn from among the lawyers or laymen from public. It is generally presumed that
lawyers with adequate legal training are better sentencers for the reason that they are
able to take an account of genuinely relevant factors, can weigh arguments and reach
conclusions and beyond all, they are rigid and less vulnerable to pressures. On the other
hand, the yard-stick for lay-Judges is often the robust common sense guided by genuine
human problems and they are fallible to pressures from those around them. The general
trend today is to have the criminal courts staffed by well qualified lawyers.
• 9. Sentencing by the Judge largely depends on the way and the manner in
which the case is presented before him by the police or the prosecutor.
Therefore, conviction or acquittal shall inevitably depend on the evidence
put forth by these personnel which may be biased or mistaken thus
jeopardising the interests of criminal-justice. Miscarriage of justice is
generally due to distortion or manipulation of evidence or the witnesses
turning hostile due to pressure or threat exercised by the dreadful offender.
• 10. In order to eliminate chances of injustice to the accused due to
miscalculated sentencing, the law provides for appeal to higher courts.
The appellate courts not only remove individual injustices but also
formulate precedents which the subordinate courts are bound to follow
in their verdicts. This is indeed an effective method of eliminating
possibilities of miscarriage of justice.
• The Supreme Court in Gurumukh Singh v. State of Haryana 2009, enumerated

number of factors which should be taken into account while determining sentence

of the accused. They are:-

• (1) motive or previous enmity;

• (2) whether incident had taken place in a spur of moment;

• (3) intention/knowledge of the accused while inflicting injury or blow,

• 4) gravity, dimension or nature of injury caused;

• (5) the age and general health of the accused;

• (6) whether injury was caused without pre-meditation or in a sudden fight

• (7) the nature and size of weapon used for inflicting injury;

• (8) force used in committing the offence;

• (9) criminal background or adverse history of the accused;

• (10) whether death was caused due to shock;

• (11) number of other criminal cases pending against the caused;

• (12) whether the incident occurred within the family members or close
relations;

• (13) conduct and behaviour of the accused after the incident;

• (14) whether accused has taken the injured/deceased to the b immediately to

ensure the latter gets proper medical treatment
CONSTRAINTS IN THE USE OF
PUNISHMENT
• 1. "Punishment should not be so severe or torturous as to be inhumane or cruel.

• 2. It should not be imposed in a manner that results into violation of offender's protective rights.
That is, punishment should not only be in accordance with the procedure established by law but
also conform to due process of law.

• 3. The rule of proportionality should be the guiding principle of sentencing policy. That is,
graver the offence, more severe should be the punishment.

• 4. Where there is doubt as to the choice between two punishments, less severe should be
imposed as a general rule