BALAKRISHNAN Vs. STATE OF KERALA

JUDGEMENT

(1.) A pedagogue, past middle age, in a fit of foolish romance, dashed towards a fellow teacher of the female sex finding her accidentally alone in a room on a Saturday afternoon, shortly after the classes had dispersed earlier than usual, turned her face towards his and planted a fleeting kiss on her cheek (or lips?) as she was trying to make a cup of ovaltine; and when the offended lady screamed, the randy offender ran away. This, in brief, is the judicial finding concurrently made in affirmation of the prosecution version. While some criticism is possible about the evidence for the prosecution and its appreciation by the courts below I am satisfied not only that there is no real room for interference in revision but that there is basic truth (embroidered by fringes of falsehood, perhaps) in the case unfolded by the lady before the police shortly after the occurrence and substantially repeated later before the magistrate. I, therefore, decline to disturb the conviction and confine myself to a consideration of that delicate, difficult and yet important finale of a criminal trial, viz. , the sentence to be awarded. The learned magistrate imposed a punishment of 3 months simple imprisonment.

(2.) EVERY criminal proceeding should be dichotomised into two stages; the pre-conviction and the post-conviction phases. What is relevant in fixing the sentence may be irrelevant and even objectionable in the fixing of the guilt and all that is relevant at the conviction stage, pooled and presented to the court, may be altogether inadequate for the sentencing process. That is why judges, when they sentence offenders, have too little knowledge of the real circumstances of the offender and of the factors which really caused him to do what he did, the motivation for the crime and of the curative prescription that would protect the community and salvage the individual. If the discretion given to the judge in the matter of personalising punishment is to be effectively exercised, additional fact-finding processes have to be resorted to by the judge either in the shape of a judicial hearing before sentencing, for which there is no express provision in our Code, or through the instrumentality of the Public Prosecutor and counsel for the defence who may be in a position to lay before the court, after the prisoner's guilt has been fixed, such reliable information as would enable the court to adjust and adapt its sentence to the needs of the case. The criminal law of india being largely offence-oriented and very inadequately offender-oriented, there is really no statutory procedure for the post-conviction fact-finding programme unlike in many other systems of penal law. I have sought the help of counsel for materials relevant in this regard.

(3.) WHAT are the relevant individual and family factors about the culprit in this case? As usual, it is an ill-lit area and very little data have been gathered on this aspect in this case. However, being a teacher he has an educational background and being a fifty-year old man he is prone to be sensitive to the public opprobrium of a criminal conviction and may react favourably to admonition by court. In the absence of evidence contra, one may view him as a first offender and not as a nymphomaniac. Harsh punishment is contra-indicated in such cases. A man's family and associates usually influence his behaviour. His cultural pursuits and responsible positions in quasi-public organisations, if any, may steady his conduct. But we know next to nothing about these facets of the accused's life.