Raj Kumar vs State Of U.P.
2014 Latest Caselaw 1810 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED
 

 
Criminal Appeal No. 1969 of  2009
 
Raj Kumar s/o Kshetra Pal Singh, r/o Nayaganj, 
 
Kasba & P. S. Khurja Nagar, Distt. Bulandshahr.
 
			       ...	     ... 		    ... 		Appellant
 
                                    
 
					Versus
 
State of U. P.   
 
                                           ... 		... 	 	... 	Respondent
 

 
Counsel for the appellants :   Sri R.B. Singhal, Senior Advocate
 
                                                assisted by Sri Aditya Singhal 
 

 
Counsel for the respondent :  Sri R.B. Yadav, A.G.A. Sri Shailendra
 
                                               Awasthi, Brief Holder
 

 
Hon'ble Anil Kumar Sharma, J.

This appeal challenges the judgment and order dated 18.03.2009 passed by Sri Mahesh Nautiyal, Additional Sessions Judge /FTC, Court No.21, Bulandshahr, whereby the appellant has been found guilty for the offence punishable under sections 307/149, 148 and 120-B IPC and had been sentenced to undergo 10 years' R.I. with fine of Rs. 10,000/-, three years R.I. and 6 months R.I. respectively with default stipulation. All the sentences were directed to run concurrently .

2. Facts stated in brief are that on 18.10.1997 at about 8.20 P.M. Kanval Jeet Singh s/o Sardar Santosh Singh, r/o Burj Usman, P. S. Khurja Nagar, District Bulandshahr submitted a written report in P. S. Kotwali, Khurja Nagar stating that at about 8.00 P.M. on that day while his brother Harjeet Singh @ Titu, Senior Vice President, Nagar Palika Parishad, Khurja was returning home he was surrounded by four persons near Ahirpada on Subhash road. One of them was having knife and three others were armed with country made pistols and in order to kill him they assaulted and seriously injured his brother Titu. The people had taken him to the hospital. The report further stated that this incident was witnessed by Mahesh Chandra Gupta s/o Mohan Lal, Rajvir Singh s/o Girdhari Lal and several others in electric light and they can recognize the assailants. Injured Harjeet Singh @ Titu was medically examined by Dr. Ashok Kumar Jain in Malkhan Singh District Hospital, Aligarh on the same night at 9.45 P.M. and he found the following injuries on his person:

1. Multiple fire arm wound of entry on left side chest in area of 15 cm x 9 cm above left nipple, average size 0.3 cm x 0.3 cm. depth s/c to cavity deep - under observation.

2. Lacerated wound 5 cm x 0.5 muscle deep on top of left shoulder.

3. Fire arm wound of entry with exit in crease between left thumb and left index finger size 4 cm x 1 cm. bone deep, blackening present.

4. Multiple fire arm wound of entry on palmer surface of right hand and right wrist - average size 0.3 cm x 0.3 cm x s/c to open deep - under observation.

5. Incised wound 3 cm x 1 cm x muscle deep in middle and outer part of left side neck.

6. Fire arm wound of entry 2.5 cm x 2 cm x depth under observation on upper and medial end of left scapula.

7. Black eye on left lower eyelid 2.5 cm x 1 cm.

In the opinion of the doctor injuries were fresh, injury nos. 1, 3, 4 and 6 were caused by fire-arm, injury no. 2 and 7 by blunt object and injury no. 5 was caused by some sharp edged object. Injuries no. 2, 5 and 7 were simple and rest were kept under observation with advise of x-ray. On the basis of written report of the complainant, case at crime no. 405/97, under section 307 I.P.C. was registered against unknown accused, investigation whereof was entrusted to S.I. S. P. Singh. He interrogated the complainant, inspected the spot at his instance and prepared site plan Ex. Ka-6. The complainant in his 2nd interrogation on 22.10.1997 disclosed the names of accused Raj Kumar, Arvind Sharma, Anwar and Jogendra in the case. Accused were searched but they could not be found on 26.10.1997. He interrogated witness Rajvir Singh and on 14.11.1997 statement of Mahesh Gupta was recorded. During investigation complicity of accused Sanjay, Jai Prakash and Rishi Pal was also revealed, therefore, sections 147, 148, 149 IPC were added in the crime-investigation. On 12.12.1997 police custody remand of accused Raj Kumar was taken, who got a country made pistol and a knife recovered. A knife was also recovered at the instance of accused Arvind. After completion of the investigation charge-sheet against accused Raj Kumar, Anwar, Arvind, Jogendra and Smt. Madhu Sharma was filed in the court.

3. During committal proceedings, accused Anwar and Smt. Madhu Sharma had died, so the proceedings stood abated against them. Charges for the offence punishable under sections 147, 148, 120-B and 307 read with section 149 IPC were framed against accused Jogendra, Raj Kumar and Arvind. However, case of accused Arvind was separated by the trial court. The accused abjured their guilt and claimed trial.

4. In order to prove its case the prosecution had examined complainant Kanwal Jeet Singh PW-1, injured Harjeet Singh @ Titu PW-2, HCP Dharmpal Singh PW-3, Dr. Ashok Kumar Jain PW-4, S.I. Shiv Pal Singh Chauhan PW-5 and S.I. Jai Narayan Singh PW-6.

5, The accused in his statement under section 313 Cr.P.C. has again denied the entire prosecution story, however, he has not adduced any evidence in defence.

6. The learned trial court after hearing the parties' counsel has acquitted co-accused Jogendra while the appellant had been convicted and sentenced as indicated in para-1 of the judgment.

7. I have heard Sri R.B. Singhal, Senior Advocate for the appellant and Sri R. D. Yadav, AGA for the State and perused the original record of the trial court.

8. Learned Senior Advocate appearing for the appellant has argued that accused is not named in the FIR and has been implicated on account of admitted enmity with the injured; that he was not put up for test identification, so his complicity in the crime is not proved; that the witnesses named in the FIR have not been examined by the prosecution; that since the injured has admitted previous enmity with the appellant, so his sole testimony without any corroboration by other independent witness should not be relied upon; that the sentence awarded is too excessive and lastly, that the accused is in jail since 17.03.2009 and is not a previous convict.

9. In order to appreciate the arguments advanced by the parties' counsel it would be appropriate to narrate in brief the statements given by the prosecution witnesses in their examination-in-chief.

10. Complainant Kanwal Jeet Singh PW-1 has stated on oath that in the year 1997 his brother Harjeet Singh @ Titu was Vice President, Nagar Palika Parishad, Khurja. On 18.10.1997 while returning home, when he reached at triangular crossing of Burj Usman and Ahirpada at about 8.00 P.M. he was surrounded and attacked by 3-4 persons in order to kill with knife and country made pistols. He sustained serious injuries. The witnesses - Mahesh Chandra Gupta, Rajvir Singh and several others had seen the incident in electric light and can recognize the assailants. The people had taken his brother to the hospital. The complainant had proved the report as Ex. Ka-1. He has further stated that his brother was referred to Medical College, Aligarh and when he slightly recovered, he told the names of the accused persons to him. He further informed that accused Raj Kumar has robbed a golden bracelet from him before the incident, for which a report was lodged with the police. He has further stated that his brother had won the election against Smt. Madhu Sharma and accused Arvind her brother-in-law (Devar), a temporary employee in Nagar Palika was got suspended by his brother. The injured further told the complainant that Anwar is friend of Raj Kumar and Sanjay is Raj Kumar's brother-in-law (Sala) and in conspiracy with Joginder Thakur r/o Panchgai and Rishi Pal the attack was made on him. It has been further stated by the complainant that Jogendra, Anwar and Raj Kumar have assaulted his brother with country-made pistol while Sanjay and Arvind wielded knife on him. He has concluded that Smt. Madhu Sharma and Jai Prakash, Pradhan of Ganthala had threatened him not to contest the election.

11. Injured Harjeet Singh @ Titu has stated that on 18.10.1997 at about 8.00 P.M. he was having cold drink at the shop of Babu Lal Halwai along with Viresh who thereafter left on a Rikshaw. The shop of Babu Lal Halwai is situated at the triangular crossing of Subhash Road near Ahirpada. At some distance Arvind Sharma was standing who pointed him saying that said - he is Sardar Titu, then he saw that at the corner of the lane Raj Kumar Jat and Jogendra resident of Panchgai were standing. Raj Kumar fired shot from a 315 bore country-made pistol which caused injury on his neck and he fell down. Thereafter Sanjay and Arvind assaulted him with knife and Raj Kumar proclaimed that he should not be left alive. Thereafter he became unconscious. He was taken to the hospital and therefrom was sent to Aligarh Medical College. He was medically examined and treated and later on shifted to All India Institute of Medical Sciences, New Delhi from where he was discharged on 06.11.1997. He has further stated that in AIIMS bullet was taken out during surgery and still there are bullets in his body. He has further stated that on 21.11.1996 accused Raj Kumar has robbed his golden bracelet for which he lodged a report with the police. On that day he had demanded money of Wadhva Finance Company as guarantor from Raj Kumar and Dharmvir and that's why Raj Kumar bore enmity with him. He opposed him in election of Vice President but he won and Madhu Sharma was defeated. He has further stated that Madhu Sharma and her husband Dinesh have pressurized him to withdraw from election. Arvind Sharma was posted as Revenue Moharrir, whose work and conduct was not good, so he got him suspended. Jai Prakash, Pradhan of village Gangthala has approached him for revocation of suspension of Arvind Sharma. He also told him to withdraw from election and extended threat to him. He has further stated that in the bracelet robbery case Jai Prakash and Raj Kumar have asked him for compromise and on his denial the incident was caused with him. He has concluded that accused Sanjay is brother-in-law (Sala) of accused Raj Kumar and this incident was witnessed by Mahesh Chandra Gupta and Rajvir who have shifted him.

12. HCP Dharampal Singh has deposed that on 18.10.1997 he was posted as Head Moharrir in P. S. Khurja Nagar and on that day he has prepared check report no. 316 Crime no. 405/97 u/ s 307 IPC in his hand writing on the basis of written report of Kanwal Jeet Singh and entered the case in GD report no. 59 at 20:20 hrs. The original GD has weeded out. He has proved the check report and carbon copy of GD as Ex. Ka-2 and Ex. Ka-4. The report with regard to weeding out of GD has also been filed and proved Ex. Ka-3.

13. Dr. Ashok Kumar Jain PW-4 has stated that on 18.10. 1997 he was posted in District Hospital, Aligarh and on that day he has medically examined Har Jeet Singh @ Teetu s/o Santosh Singh r/o 320, Burj Usman, Khurja P. S. Khurja Nagar, Bulandshahr at 9.45 p.m. Dr. Jain has proved the injury report prepared by him as also the injuries found on the person of injured as Ex. Ka-5, which had been reproduced in para-2 of the judgment above.

14. SI Shiv Pal Singh Chauhan PW-5 has stated that case crime no. 405/97 was registered by complainant Kanwal Jeet Singh at the police station, investigation whereof was entrusted to him. On 18.10.1997 he has recorded the statement of the complainant, at his instance inspected the spot and prepared site plan Ex. Ka-6. He searched for the accused and again on 22.10.1997 statement of the complainant was recorded who disclosed the names of assailants as Raj Kumar, Arvind Sharma, Anwar and Jogendra. On 26.10.1997 he recorded the statement of Rajvir Singh and on 6.11.1997 property of Raj Kumar and Arvind was attached. Accused Madhu Sharma was arrested on 10.11.1997 and on 14.11.1997 he interrogated witness Mahesh Chand Gupta. On 16.11.1997 he recorded the statement of SO Kwarsi (Aligarh) Sunil Kumar Tyagi who had earlier arrested accused Anwar and on 20.11.1997 accused Jogendra was arrested and interrogated by him. On 3.12.1997 injury report of injured Harjeet Singh was procured by Constable Rajendra Kumar. He has further stated that on 7.12.1997 complicity of accused Jai Prakash and Rishipal was also found so sections 147, 148 and 149 were added. On 12.12.1997 police custody remand of accused Raj Kumar was obtained and he got a country made pistol and knife recovered. A knife was also recovered on pointing out of accused Arvind and site plan of these recoveries had been proved as Ex. Ka-7. He has concluded that on 12.12.1997 he has submitted charge-sheet against accused Raj Kumar, Anwar, Arvind, Jogendra and Madhu Sharma which has been proved as Ex. Ka-8.

15. SI Jai Narain Singh PW-6 has deposed that in the year 1998 he had been posted with SI Shiv Pal Singh and is acquainted with his hand-writing and signature. He has proved the memo of taking plain and blood stained earth from the spot as Ex. Ka-9.

16. On perusal of the record we find that the injured-PW-2 has counted enmity with the accused-appellant on various grounds, which have not been denied by the defence. The police has submitted charge-sheet against the accused in robbery case which took place prior to the incident, copy of this charge-sheet had been filed in appeal by the injured. It is trite that enmity is a double edged weapon, as it cuts both ways. An accused can be falsely implicated in criminal case on account of enmity whereas this very factor is instrumental for him to commit the crime. Ultimately the success of the prosecution would depend upon the reliability of the witnesses examined during trial including injured witness, if any, as also the corroboration of the prosecution story with other evidence including medical evidence.

17. No doubt the accused is not named in the FIR, simply because the complainant is not an eye witness of the incident. The two eye witnesses named in the FIR have not been examined during trial. Alleged eye witness Mahesh Chand Gupta could not be examined in the case as he was no more. Rajvir Singh was not examined by the proseution, however, a request was made by the accused at the fag end of the trial, to summon him as a Court witness, but the trial Court rejected the application observing that it has been filed just to delay the disposal of the case. It appears that the accused-appellant had challenged the order before this Court, but its result has not seen light of the day. The prosecution ought to have examined him, but his non-examination, in the facts and circumstances of this case, is not fatal, because the entire prosecution story has been vividly narrated by injured PW-2. In this connection, I find force in the arguments of the learned AGA that the accused-appellant is a hardened criminal having criminal history of more than two dozen criminal cases till the incident, so no body would muster courage to depose against him in the Court. In the rejoinder affidavit of Sanjeev Kumar filed on behalf of the appellant it has been admitted that the accused-appellant was convicted and sentenced in a murder case and his appeal in the Court is pending. It was further stated that in 12-cases the appellant had been acquitted by the Court, but copy of judgment of only 3-cases was filed and in two cases including one murder case, the witnesses did not support the prosecution story. It lends support to the argument advanced by the learned AGA about the witnesses being scared on account of criminal proclivities of the accused-appellant. The conviction of the appellant in a murder case was recorded prior to the impugned judgment as the Criminal Appeal filed by him is no. 3897 of 2005, in which he had been granted bail. In this way, non-examination of any independent witness in the case would not vitally affect the prosecution story.

18. It is important to note that had the appellant been indicted in the case only on the account of previous enmity, then there was no problem or hitch for the complainant to name him in his promptly lodged report with the police. The names of the accused in the case including the appellant had been disclosed by the injured to his brother (complainant-PW/1) on 21.10.1997 when the latter had visited him in Delhi, and he had told the same promptly to the investigating officer in his subsequent statement dated 22.10.1997 recorded at his residence. This fact finds corroboration from the testimony of 1st investigating officer SI Shiv Pal Singh Chauhan PW-5 in his cross-examination.

19. It has been argued by the learned counsel for the appellants that PW-1 in his examination-in-chief has stated that he was told about the incident by Mahesh Chand and Rajvir and in cross-examination he has reiterated this fact stating that these witnesses came at his house at about 8.15 p.m., but it has not been asked from this witness whether the aforesaid witnesses knew the accused from before. It was necessary because in the written report the complainant has clearly stated that the witnesses can recognize the assailants, if they are brought before them. It is thus clear that the witnesses did not disclose the names of any accused to the complainant when they narrated the incident to him soon after the occurrence. From the testimony of PW-1 also it transpires that he had not seen his brother at Khurja hospital, so there was no occasion for him to get the names of assailants from the injured on the night of incident. It is relevant to note that the injured (PW-2) was medically examined at District Hospital, Aligarh at about 9.45 p.m. on 18.10.1997, the distance from Khurja to Aligarh is about 50 Kms. Thus, there was no delay either in reporting the crime to the police or in getting medical examination of the injured conducted and to provide him medical help. The investigating officer PW-5 has stated in his examination-in-chief that he has interrogated Rajvir Singh on 26.10.1997 and Mahesh Chand Gupta on 14.11.1997, but from this witness also it has not been asked during cross-examination by the defence counsel whether the above witnesses have disclosed the names of assailants in their police statements recorded by him. Thus, there is no inconsistency in the prosecution story about the manner in which the names of the accused have come during investigation.

20. Learned counsel for the appellant has vehemently argued that when there was previous enmity between the injured and the appellant, so the sole testimony of latter without corroboration from any other independent witness should not be relied upon. Merely because there was some sort of enmity between the parties prior to the incident, it can not be inferred that the accused had been falsely indicted in the case. In the instant case right from the beginning the consistent case of the prosecution is that prior to the instant incident, accused Raj Kumar has committed robbery with the injured, for which FIR was lodged and charge-sheet was also filed against the accused-appellant, so there was no occasion for the injured to falsely implicate him in the case. Had it been so, then the name of accused-appellant would have certainly found place in the prompt report of PW-1, who was aware about the previous enmity between his brother (PW-2) and the accused-appellant. Thus, it cannot be said by any stretch of imagination that the accused-appellant had been falsely indicted in the case only on account of his previous enmity with PW-2.

21. As we have already noted that PW-1 is not an eye witness of the incident and he has nominated the accused persons in his 2nd police statement given to the investigating officer after he was told by PW-2 in Delhi on 21.11.1997. The injured has vividly narrated the incident in his deposition before the trial Court. The facts deposed by him in cross-examination and the site-plan show that the place of incident is a busy market of qasba Khurja. Few shops were open and few were closed. He has stated that he did not see country made pistol in the hand of Raj Kumar, but he fired shot on the exhortation of Arvind from distance of about 5-6 feets and after sustaining injury he fell down. He has further stated he sustained five fire-arm injuries and two knife blows. According to him, he was taken to Khurja hospital by his brother Harjeet Singh, where the doctor gave him 1-2 injections but no dressing on the injuries was made. Thereafter he was taken to Aligarh hospital in Ambassador taxi car. He remained in Aligarh hospital for two days and till 6.11.1997 he was admitted in AIIMS, New Delhi. He has further stated in cross-examination that he was interrogated in Delhi by the investigating officer. He has specifically denied the suggestion that some unknown person had assaulted him during night and he was not shot by accused Raj Kumar. According to him Kanwal Jeet Singh is his brother who was not present at the time of incident. On close scrutiny of the entire statement of injured PW-2, we find no cogent reasons to disbelieve his ocular testimony, who is a most natural and star injured witness and whose presence at the spot can not be questioned. He had sustained injuries at the hands of the accused in the occurrence; there are no improvements or embellishments in it and he has successfully withstood the test of cross-examination. He did not deviate from the core facts and named the accused causing fatal injuries to him. The medical evidence on record in the shape of statement of Dr. A. K. Jain PW-4 fully corroborates the testimony of injured PW-2. Dr. Jain has proved his injury report Ex. Ka-5 prepared by him within 2-hours of the incident at Aligarh hospital. There is no inconsistency in the medical evidence vis-a-vis the ocular evidence of injured PW-2. His testimony thus inspires confidence. The law on this issue has been highlighted by the Apex Court in the case of State of Uttar Pradesh vs. Naresh and ors. (2011) 4 Supreme Court Cases 324 as under :

"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraje v. State of Maharashtra and Abdul Sayeed v. State of M.P.)"

In view of the afore-noted law laid down by the Apex Court, the testimony of injured witness has a special status and cannot be rejected unless there are material contradictions and discrepancies therein. Further, if the testimony of an injured witness is corroborated by the FIR and the medical evidence then it does not require any further corroboration from any other witness. In such circumstances, the single testimony of an injured witness is itself sufficient for conviction of the concerned accused.

22. Now coming to the last limb of the argument advanced by the learned senior counsel for the appellant regarding excessive sentence awarded to the appellant and for taking lenient view as he is not a previous convict. However, on perusal of the record we find that the argument regarding previous conviction of the accused-appellant and his other criminal proclivities is not correct. In appeal through the rejoinder affidavit of Sanjeev Kumar filed on behalf of the appellant it has been admitted that the accused-appellant was convicted and sentenced in a murder case and his appeal in the Court is pending. It was further stated that in 12-cases the appellant had been acquitted by the Court, but copy of judgment of only 3-cases was filed and in two cases including one murder case, the witnesses did not support the prosecution story. The conviction of the appellant in a murder case was recorded prior to the impugned judgment as the Criminal Appeal filed by him is no. 3897 of 2005, in which he had been granted bail.

23. In the case of Hazara Singh Versus Raj Kumar & others, (2013) 9 SCC 516, the Apex Court with regard to 'Sentencing Policy' has observed as under:

11) The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. This Court has repeatedly stressed the central role of proportionality in sentencing of offenders in numerous cases.

12) The factual matrix of this case is similar to the facts and circumstances of the case in Shailesh Jasvantbhai and another Vs. State of Gujarat, (2006) 2 SCC 359, wherein the accused was convicted under Section 307/114 IPC and for the same the trial Court sentenced the accused for 10 years. However, the High Court, in its appellate jurisdiction, reduced the sentence to the period already undergone. In this case, this Court held that the sentence imposed is not proportionate to the offence committed, hence not sustainable in the eyes of law. This Court, observed thus:

'7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law, which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.

8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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 etc.

13) This position was reiterated by a three-Judge Bench of this Court in Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-

"99. The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."

In that case, the court further goes to state that meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of society.

14) In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: -

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.

16. 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 sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

15) In Guru Basavaraj vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, this Court expressed that:

'33... It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored.'

16) Recently, this Court in Gopal Singh Vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:-

"18. 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."

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."

Keeping in mind the above principles, the facts of the case for considering the argument advanced on behalf of the appellant show that on account of well established enmity, the accused-appellant hatched a conspiracy along with other co-accused and made a murderous assault on the unarmed injured in the busy market, however, luckily he survived. In these circumstances, the accused does not deserve any sympathy of the Court in the matter of sentence awarded to him by the trial Court.

24. In view of what has been said and done above, lead us to this irresistible conclusion that the prosecution has successfully proved its case against the accused-appellant beyond all reasonable doubt and he has been rightly found guilty by the learned trial Court and the sentence awarded to him on different count does not require any interference by this Court. The appeal is merit less and is accordingly dismissed. The appellant is in jail and would serve out the remainder of his sentence.

25. Let copy of the judgment be sent to the Court concerned for information and compliance.

(Anil Kumar Sharma, J)

May 16, 2014

Imroz/-