Kalicharan & Others vs State Of U.P.
2014 Latest Caselaw 2149 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. 43
 

 
Criminal Appeal No. 2988 of 2012 
 
1. Kali Charan s/o Mathuri Lal,
 
2. Peshkar s/o Mathuri Lal,
 
3. Durmeen s/o Badan Singh
 
All residents of Village Sabdalpur, P.S. Mujaria, Distt. Budaun
 
                             	...		...		...	Appellants
 
                                                     versus
 
State of U.P.                      ...	       ...                  Opposite Party
 

 
Counsel for the appellant :    Sri Preet Pal Singh Rathore
 
Counsel for the Respondent: Smt. Pashali Solanki, AGA 

Hon'ble Anil Kumar Sharma,J.

Challenge in this appeal is to the judgment and order dated 30.07.2012 passed by Sri Chander Pal Singh, the then Addl. Sessions Judge, Court No.5, Budaun in S.T. No. 1121 of 2006 arising out Case crime no. 397 of 2005 u/s 307/34 IPC P.S. Mujaria District Budaun whereby the appellants have been convicted for the offence punishable under section 307/34 IPC and each had been sentenced to undergo rigorous imprisonment for eight years and fine of Rs. 5,000/- with default stipulation.

2. Tersely the facts and evidence unfolded during investigation and trial are that complainant Sabinder Singh s/o Chander Pal r/o Village Sabdalpur P. S. Mujaria District Budaun submitted a written report with the police on 25.8.2005 at 1.30 p.m. wherein he stated that about 12-years ago Ahalkar and others had got his father implicated in the murder case of their father, but for quite some time they were living harmoniously. However, they bore enmity from inside. Today he along with his father had gone to the field for cutting fodder then at about 12 O'clock in the noon Ahalkar s/o Mathuri, his elder brother Kali Charan and younger brother Peshkar armed country made pistols and Durmeen carrying gandasa arrived there and hurling abuses all the three fired one shot each on his father and Durmeen assaulted him with gandasa. After sustaining injuries his father fell down in the field. On their alarm villagers Dharmendra son of Raghubir Singh and Shyam Lal s/o Ram Swarup challenging the accused persons arrived there and then they made their escape good towards northern side. The report further stated that the family members of the complainant had taken his father to the hospital. On the basis of this report case at Crime no. 397/05 u/s 307 IPC against Ahalkar and three others was registered at the police station, investigation whereof was entrusted to SI Ram Khilauna Sharma. Ere that injured Chander Pal was taken to District Hospital, Budaun by his son Virjendra, where he was medically examined by Dr. Virendra singh at 3.35 p.m. on 25.8.2005 and he found the following injuries on his person:

1. Multiple firearm wounds of entry in area of 23 cm x 14 cm on back of right side chest i.e. scapular region. Size varying from 0.3 cm x 0.3 cm to 0.2 x 0.2 cm x DNP (depth not probed);

2. Incised wound 1.5 cm x 0.5 cm on right side face 4 cm below right eye;

3. Lacerated Fire arm wound 1.5 cm x 0.5 cm x DNP on right side face 2 cm away from right ear;

4. Incised wound 9 cm x 0.5 cm x bone deep 7 cm above right ear on right skull;

5. Incised wound 3 cm x 0.5 cm x bone deep on right side skull 1 cm below injury no. 4;

6. Multiple tattooing in of area 17 cm x 10 cm on front of right side chest 4 cm below nipple.

In the opinion of the doctor injuries no. 1, 3 and 6 were caused by discharge of fire arm weapon. Injury no. 2, 4, and 5 were caused by sharp object. Injuries no. 1, 3, 4, and 6 were kept under observation with advise of x-ray and duration was fresh. Dr. Gyanendra Kumar Jain, Radiologist, District Hospital, Budaun conducted x-ray examination of skull with face and chest of the injured on 26.8.2005 and he found fracture in shaft of right collar bone in the middle. One small rounded radio opaque shadow of metallic density was seen on right side of chest. On the basis of x-ray examination report, Dr. Virendra Singh in his supplementary report had observed that injury no. 1 of the injured was grievous in nature while others were simple. The investigating officer recorded the statements of witnesses including the injured, collected blood stained and simple earth from the spot and prepared site plan. His investigation ended in charge-sheet against the accused-appellants.

3. After committal of the case to the Court of Session charge for the offence punishable u/s 307/34 IPC was framed against the accused-appellants, who abjured their guilt and claimed trial.

4. In support of the charge, the prosecution had examined complainant Savinder Singh PW-1, injured Chander Pal PW-2, Dr. Gyanendra Kumar Jain PW-3, Naresh Chandra PW-4, SI Ram Khilauna Sharma PW-5 and Constable Udai Bhan Singh PW-6.

5. The accused in their separate statements u/s 313 Cr.P.C. have stated that they have been falsely implicated in the case on account of old enmity. Accused Peshkar has further stated that accused Kali Charan is his brother while accused Durmeen is his real nephew. However, the accused have not adduced any evidence in defence.

6. Out of the six witnesses examined by the prosecution in the case complainant Savindra Singh PW-1 is the eye witness and son of the injured and Chander Pal PW-2 is the injured himself, while other witnesses are of formal character. Dr. Gyanendra Kumar Jain PW-3, the Radiologist has proved the x-ray report of the injured, Naresh Chandra PW-4 has proved the injury report and supplementary report of the injured prepared by Dr. Virendra Singh, as he has died. SI Ram Khilauna Sharma PW-5 is the investigating officer of the case, while Constable Udai Bhan PW-6 has proved the check report and copy of GD regarding registration of the case at the police station on 25.8.2005.

7. I have heard the counsel for the parties at length and perused the original record of the case carefully.

8. On 5.5.2014 during the course of the arguments Sri Preet Pal Singh Rathore, learned counsel for the appellants did not press the conviction of the appellants u/s 307 IPC and has addressed the court only on the quantum of sentence, as according to him, is too excessive and severe.

9. Learned counsel for the appellants has argued that all the appellants have been awarded rigorous imprisonment for eight years and fine of Rs. 5,000/- each with default stipulation and all of them are in jail since 30.7.2012, so they may be sentenced to period of imprisonment already gone by each of them. In support of his arguments, he has placed reliance on the following cases:

i) Ram Das Vs. State of Madhya Pradesh, (2009) 4 SCC 57; and

ii) Rajendra Harakchand Bhandari Vs. State of Maharashtra 2011 (73) ACC 693 (Supreme Court).

10. I have carefully perused these reports, but on account of distinguished facts, the ratio given in these cases do not apply to the facts of the instant case. In the case of Ram Das (supra) single sickle blow was given to the deceased who died two years after the incident because of ulcers caused by the injury. The trial Court awarded sentence of seven years' RI u/s 307 IPC which was altered by the High Court u/s 324 IPC and sentence was reduced to three years with fine of Rs. 2,000/-. On facts it was found that on the date of incident all of a sudden altercation ensued between the appellant and deceased on the issue of payment of Rs. 150 as interest amount. There was no evidence to indicate previous enmity between them. Only a single blow of sickle was inflicted by the appellant, but in autopsy 11 injuries were found on the dead body of the deceased, out of which injury no. 10 was the incised wound inflicted by the appellant on the back side of the deceased and according to doctor, injuries no. 1 to 9 were in the nature of 'ulcers' and indirect outcome of injury no. 10. The Court noted that the appellant had been prosecuting the case for last more than 14 years in various court and in that process he undoubtedly has undergone mental agony and financial sufferings. In these circumstances, the Apex Court reduced the sentence of 3-years imposed by the learned Single Judge of the High Court to the imprisonment already suffered by the appellant.

11. In the facts of the case of Rajendra Harakchand Bhandari (supra), six persons were convicted by the trial Court for the offences punishable u/s 147, 148, 307/149, 332/149, 353/149 and each was sentenced to undergo RI for five years and fine of Rs. 5,000/- u/s 307/149 IPC with different sentences on other counts. In appeal the High Court set aside the conviction u/s 147 and 148 and altered their conviction on other counts but with the aid of section 34 instead of 149 IPC. However, the sentence awarded by the trial Court was not interfered. In appeal before the Supreme Court the conviction of the appellants under above mentioned offences was not seriously contested and the counsel prayed for reduction in setence on the premise that the appellants are sugarcane growers and the incident occurred because PW-8 refused to make entry of sugarcane planted by A-2; that the incident is almost two decades old and during this time, relations between the parties have become cordial and, as a matter of fact, they have compromised their dispute; that the appellants do not have any criminal back ground and they have not been involved in any crime earlier. In these peculiar circumstances, although the Apex Court observed that section 307 IPC is not compoundable in terms of section 320(9) Cr.P.C., however, the substantive sentence awarded to the appellants was reduced to the period already undergone (two and half years) without disturbing the fine imposed on each appellant.

12. In the peculiar facts of the instant case, in the opinion of the Court, the above cases do not help the appellant. The incident had taken place on 25.8.2005. The accused-appellants have used gandasa and country made pistols in the incident. The injuries of these weapons have been found on the person of the injured. Admittedly, the incident is the outcome of old enmity between the parties, as in the written report itself it had been mentioned that about 12-years prior to the incident, the injured was nominated as an accused in the murder case of the father of the accused persons. Although both the families were living happily after forgetting the earlier enmity, but according to the complainant, the accused internally bore animosity with the injured. Here neither the parties have compromised the case nor the appellants are prosecuting the case for a long time, because now it is only 9th year from the date of incident. Injury no. 1 (a fire-arm entry wound) had been found grievous after x-ray examination of the injured.

13. In the recent case of Hazara Singh Versus Raj Kumar & Ors. (2013) 9 SCC 516, the Apex Court has noted the 'sentencing policy' in a criminal trial as under:

"Sentencing Policy:

7) 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.

8) 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 and others (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.'

9) This position was reiterated by a three-Judge Bench of this Court I 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 this 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.

10) 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.'

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

'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.'

12) 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.

13) 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."

14. In the case of State of M. P. Vs. Ghanshyam Singh (2003) 8 SCC 13 : 2003 Cri LJ 4339 a division bench of the M. P. High Court converted the conviction of Ghanshyam Singh from 302 IPC to 304, Part-I IPC and awarded custodial sentence of 2 years. It was observed by the Apex Court that lesser sentence should not be imposed merely on the ground of long pendency of matter. In that case, it was further observed that two years' custodial sentence for the offence under Section 304, Part-I, IPC was not proper and the sentence was enhanced to six years.

15. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, the Apex Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. 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 criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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 the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

16. In a case of assault between two groups in regard to the right to bid for certain shamlat land, consequent to which two persons died due to the injuries suffered in the attack, the trial Court held that sentence of 8-years with a fine of Rs. 1,000 each would serve the ends of justice. This sentence was reduced by the High Court to a period of 5 years. The Supreme Court held that the setence awarded by the High Court was reasonable. [Vide - Tarsem Singh Vs. State AIR 2002 SC 760]

17. Thus considering the law laid down by the Apex Court in the above mentioned cases, in the facts and circumstances of the instant case, in my opinion, 8-years' rigorous imprisonment awarded by the trial Court, although appears to be on higher side, but it cannot be reduced to the period of imprisonment already undergone (less than three years) by each appellant. In the considered opinion of the Court, the ends of justice would be met if the custodial sentence of 8-years is reduced to 5-years' rigorous imprisonment without reducing the amount of fine imposed by the trial Court against each accused-appellant.

18. In view of the above, the appeal is partly allowed. The conviction of the appellants for the offence punishable u/s 307/34 is confirmed. However, instead of 8-years' RI, each appellant is sentenced to undergo five years' rigorous imprisonment and sentence of fine of Rs. 5,000/- with default imprisonment, as awarded by the trial Court, is maintained. The appellants are already in jail. The learned trial Court would issue modified conviction warrant of each appellant to the Jail authorities concerned forthwith.

19. Let certified copy of the judgment be sent to the Court concerned immediately for compliance, which should be reported within 4-weeks.

(Anil Kumar Sharma, J)

May 29, 2014

LBY/-