HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 42 Case :- CRIMINAL APPEAL No. - 1147 of 2015 Appellant :- Ghasi Ram & 2 Others Respondent :- State of U.P. Counsel for Appellant :- Pankaj Satsangi Counsel for Respondent :- A.G.A. Hon'ble Amreshwar Pratap Sahi, J.
Hon'ble Pramod Kumar Srivastava, J.
(Delivered by Hon'ble P.K. Srivastava, J.)
1.This appeal has been preferred against the judgment of conviction and punishment dated 28.02.2015 passed by Additional Sessions Judge/ Special Judge (E.C. Act), Budaun in S.T. No. 871 of 2011 (State v. Ghasi Ram & Others) under Section 302/34 IPC in case crime no. 360/ 2011, p.s. Kadar Chauk, Budaun. By this judgment each of the three accused-appellant had been convicted for charge under section 304/34 IPC and sentenced to imprisonment for life and fine of Rs. 25000/- (in default of payment additional imprisonment for six months).
2.The prosecution case in brief is that on 21.05.2011 at about 3.30 p.m., Ghasi Ram, Nannaku, Maharaj Singh and Ashok had assaulted Virendra Pal Singh (father of informant Ajit Kumar) with fists and kicks. This incident was seen by Ram Das and Keshav, who intervened and took the injured Virendra Pal Singh to hospital, where he was declared dead.
3.Victim's son Ajit Kumar (PW-1) lodged the FIR on the basis whereof case crime number 360/ 2011 was registered. After completion of investigation charge-sheet was submitted against the said four accused, but during trial Maharaj Singh died. Sessions Trial No. 488/ 2005 was held against the remaining three accused (appellants), and upon conclusion the accused were convicted as above for the offence u/s 304 (First part) read with 34 IPC. This judgment is under challenge in present appeal.
4.The learned counsel appearing for the appellant admitted the death of Virendra Pal Singh due to injuries caused by appellants as charged but contended that it may be a case of causing simple hurt and not of culpable homicide. He pointed out that the medico-legal evidence does not prove it a case of inflicting injuries likely to cause death, as the doctor PW-4 Sher Singh Kakkar, who performed post-mortem, and prepared the report (Ex.Ka-4) has not confirmed the possibility of death due to injuries by fists and kicks.
5.The learned counsel appearing for the appellant fairly contented that taking note of various factors including the non user of any weapon, absence of pre-planning, simple nature of injuries, the appellant-accused being of young age and member of the same family, their family being dependent on them, they being the bread winners of their house, it is their first guilt and their hailing from a poor family; the award of maximum sentence of life imprisonment of life and a fine of Rs. 25000/- (in default to further undergo rigorous imprisonment for six months) is excessive. Appellants' counsel pointed out that these points were placed before the trial Court which had mentioned them in the judgment at the time of hearing on point of quantum of sentence, but were not considered at the time of awarding the punishment; and without assigning any reason the maximum possible punishment for the said offence was awarded. His only argument is that in the present matter conviction may be upheld but the sentence should be mitigated.
6.The learned Addl. Government Counsel appearing for the respondent State contended that judgment of conviction is correct and based on available evidence. He fairly submitted that the Court is competent and clothed with ample powers to impose an appropriate sentence in terms of Section 304 IPC.
7.We have given our anxious consideration to the rival submissions and perused the material available on record.
8.In view of the limited submission, there is no need to go into the findings regarding conviction under Sections 304 IPC. The only question to be considered is whether the sentence of life imprisonment and a fine of Rs 5,000/- is reasonable or excessive?
9.Section 304 IPC speaks about the punishment for culpable homicide not amounting to murder. It reads as under :
"304. Punishment for culpable homicide not amounting to murder --
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."
10.It is clear from the above statutory provision that for the offence of culpable homicidet the legislature intended to adopt strictness in awarding appropriate sentence. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases.
11.The Section 235 of the Criminal Procedure Code, 1973 reads :
"(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law".
12.In Dagdu and Ors. v. State of Maharashtra, (1977) 3 SCC 68 Hon'ble Apex Court had held that :
"The imperative language of Sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under Section 360. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court which the accused, prior to the enactment of the Code of 1973, had no opportunity to do. The social compulsions, the pressure of poverty, the retributive instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity- all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of Section 235(2) must, therefore, be obeyed in its letter and spirit."
13.In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 Hon'ble Supreme Court had held :
"The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) he Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction."
14. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516" Hon'b'e Apex Curt had held that :
"it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
15.In present case after the verdict of conviction the accused appellants had, at the time of hearing on point of quantum of sentence, placed all relevant factors which should have been well thought out for determining the appropriate amount of sentence. But the trial Court, after mentioning them in order, had not considered them, and without assigning any special reason the learned Sessions Judge has awarded maximum possible punishment. Thus the Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation.
16.There is no justification for the trial court while convicting the accused-appellants for an offence under Section 304 IPC to sentence them with maximum possible life imprisonment. Only because Section 304 IPC provides life imprisonment as the maximum sentence it does not mean that the Court should mechanically proceed to impose the maximum sentences, more particularly when the incident had occurred suddenly, without planning and without use of any weapon, and apparently without real intention of causing death as is evidence from the evidence led by the prosecution in the present case. There is no justification for awarding the maximum sentence of life imprisonment to the appellants in the present case.
17.In Hem Chand v. State of Haryana, (1994) 6 SCC 727 Hon'ble Apex Court had held that :
"As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."
18.In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court had held :
"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."
19.It lies in the discretion of the trial court to choose a particular sentence within the available range from minimum to maximum; and in the present case the discretion has not been judiciously applied. Therefore the impugned judgment warrants interference in exercise of our appellate jurisdiction.
20.In considering the adequacy of the sentence which neither be too severe nor too lenient the court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and situation in life of the offender. In awarding the sentence the judge, when he is free, is still not wholly free. He is to draw his inspiration from consecrated principles.
21.The Indian Penal Code has prescribed offences and punishments for the offences. For many offences only the maximum punishment is prescribed and for some offences the minimum is prescribed. The Court has wide discretion in awarding the sentence within the statutory limits. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. Therefore each Judge exercises discretion accordingly to his own judgment. There is, therefore, no uniformity. Some Judges are lenient and some Judges are harsh. Exercise of unguided discretion is not good even if it is the Judge that exercises the discretion. No exhaustive, explicit and uniform legal principles have been evolved in India regarding sentencing. In India neither the legislature nor the judiciary has issued structured sentencing guidelines. There is need to adopt such guidelines in order to minimize uncertainty in awarding sentences. The higher courts, recognizing the absence of such guidelines, have provided judicial guidance in the form of principles and factors that courts must take into account while exercising discretion in sentencing.
22.In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 Hon'ble Apex Court had discussed points to be taken into account before passing appropriate sentence as under :
"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
24.The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."
23. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the sentence of life imprisonment of the appellants under Section 304 IPC cannot be sustained. In the present case the circumstances presented before the Sessions Judge, at the time of hearing under section 235(2) CrPC on point of quantum of sentence, as discussed above, were available for awarding a lesser sentence. So, it appears appropriate that, in the present case the sentence should not exceed more than 10 years imprisonment and lesser fine. In our considered view, the appellant-accused ought to have been sentenced under Section 304 with ten years' R.I. And fine.
24. In view of above facts and discussions, the order of conviction u/s 304 IPC imposed on the each of the appellants is hereby confirmed. But the sentence of imprisonment for life is modified to rigorous imprisonment of ten years with a fine of Rs. 10000/-, in default to further undergo rigorous imprisonment for three months. With this modification of sentence, the appeal stands disposed off.
25. Let a copy of this judgment be sent to the learned Sessions Judge, Budaun for ensuring compliance.
Order Date:- 4.8.2015 SR