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CRIMINOLOGY Penology and Sentencing Sentencing As The CRIMINOLOGY Penology and Sentencing Sentencing as the Means of Insuring Victims Justice Component – I (A) - Personal Details Role Name Affiliation Principal Investigator Prof(Dr) G S Bajpai Registrar National Law University Delhi Paper Coordinator Neeraj Tiwari Assistant Professor, National Law University, Delhi Content Writer/Author Nikhil Kashyap Assistant Professor, Amity Law School, Amity University, Noida, UP Content Reviewer Prof. BB Pande Former Professor, Faculty of Law, Delhi University Component - I (B) - Description of Module Description of Module Subject Name Criminology Paper Name Penology and Sentencing Module No. Criminology/Penology & Sentencing/23 Module Name/Title Sentencing as the means of insuring victim justice Pre-requisites Basic knowledge of criminal procedure and trials. Objectives The student will be able to argue the importance of Sentencing. The student will be able to appraise the importance of victim at the stage of sentencing The student will be able analyze the necessary steps that are required to realize the goal of restorative justice at the stage of sentencing. Keywords Sentencing, Victims, Justice 1. Introduction Sentencing is a very crucial part of criminal trial. It is indeed the last part of the trial. Sentencing takes place after the conviction is made against the accused. There are various purposes of sentencing. They are as under: Deterrence Protection of Society Sentencing Denunciation Rehabilitation Deterrence refers to the process of avoiding similar future criminal conduct. Denunciation refers to the act of society that shows the feeling of hatred for the crime committed. Rehabilitation is the process by which the offender is reformed and rehabilitated to be a part of civil society. The latter purpose is to protect the society from the re-occurrence of the crime by the same offender. There are various purposes or objectives of the sentencing. One of the main purposes of the sentencing is to protect the society. This aim is achieved by reforming the convict and preventing others (society) from committing the crime in future. Originally sentencing had three main purposes; justice, deterrent to the society & reformation of the convict. In all of these, the victim could only get revenge for the crime committed against him/her. Till date the pertinent question that remains unanswered is that what does the victim expect from the sentencing and what does he actually get in the complete process of justice. This module will be focusing on the concept of Sentencing, Its importance and its development. Further, the focus will shift on the role of victim in sentencing of the accused or in the criminal justice system. Subsequently, the role and expectations of victims in sentencing will be discussed. Learning Outcome: The student will be able to demonstrate the following: Concept of Sentencing Relationship between victim and sentencing Role & Expectations of Victim from Sentencing 2. Sentencing: concept & its importance 2.1 Sentencing as concept The ancient Indian author Manu stated that the most important sanction behind any state is force. He further adds that the If the force is not used, then the law of the jungle will prevail. He says Danda is the only saviour of people’s life and property. He acknowledges the importance of using the physical force in the rightful manner. The only way that a man might be kept pure and righteous was by fear of danda (punishment) (VII.22-24).1 The modern Sentencing (or danda) is defined as the punishment given to a person convicted of a crime. A sentence is ordered by the judge, based on the verdict of the 1Manu: Legal Jurisprudence & Social Laws by Dr. Ruchi Tyagi Associate Professor Department of Political Science Kalindi College available at http://kalindi.du.ac.in/uploads/polsc/MANU%20on%20Legal%20Jurisprudence%20&%20Soci al%20LAws.pdf jury (or the judge's decision if there is no jury) within the possible punishments set by state law (or federal law in convictions for a federal crime). 2 In other words, sentencing means the amount of jail, fine, community service etc are ordered against him against committing of a crime. 2.2 Factors leading to a Sentence 47th Report of Law Commission of India on the trial and punishment of the social and economic offences stated many factors for sentencing an offender. They are provided as under: the nature of offence, the circumstances extenuating or aggravating the offence, the prior criminal record if any of the offender, the age of the offender, the professional, social record of the offender, the background of the offender with reference to education, home life, the mental condition of the offender, the prospective rehabilitation of the offender, the possibility of treatment or training of the offender, Lastly, the sentence by serving as a deterrent in the community for recurrence of the particular offence. The apex court of the country also stated various factors in reaching a composite and satisfactory sentence. In Re. Gopal Singh Case (2013) 3 suggested the considerations while passing the sentences. The court stated that: “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. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the 2 Law.com available at http://dictionary.law.com/Default.aspx?selected=1917 3 Gopal Singh v. State of Uttrakahand (2013) 7 SCC 545 antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect — propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.”4 The above stated case provided factors related to the sentencing and reforming the offender. 2.3 Importance of Sentencing It is a general belief in Courts that sentence should suit the crime as well as criminal. The sentencing is a very important part of the criminal justice system. The Supreme Court in Dhananjoy Chatterjee v. State of West Bengal5stated the importance of appropriate sentence. The court stated that: 4Ibid 5 (1994)2SCC220 “Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.” These lines provide that the sentencing is a medium for the judiciary to respond back to the society’s cry for justice. Punishment provided in a case is the outcome of the criminal trial in a court. If the resultant is not appropriate, even though the process was perfect, still the process will remain a complete failure. So, the sentencing part is very important to reach the correct resultant of the criminal trial. 3. Victim in Sentencing It is pertinent to start with the importance of the victim in the state of criminal justice in India today, the Government Notification constituting the Criminal Justice Reforms committee (Malimath Committee) observed: “...People by and large have lost confidence in the Criminal Justice System .... Victims feel ignored and are crying for attention and justice ….. There is need for developing a cohesive system, in which, all parts work in co-ordination to achieve the common goal.” 6 From the victim’s perspective there can be two set of rights that are considered in many jurisdictions across the world. First right is right to participate in criminal proceedings and lastly, the right to compensation for the injuries suffered etc. In a criminal proceeding the most important part is of sentencing as there are many factors that might make the sentence harsh or light. Both the scenarios of the sentencing are not good for the society at large. In the year 1985, the United Nations General Assembly adopted the Declaration of Basic principles of Justice for Victims of Crime and Abuse of Power in which one of 6As provided in Malimath Committee Report, p 75. the rights was providing assistance to the victim during the criminal trial.7 Recently, the debate has been initiated with regard to the inclusion of victim’s perspective in reaching the correct sentence.
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