Parmeshwar Dass And Others vs State
2015 Latest Caselaw 1666 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 10.04.2015
 
Delivered on 07.08.2015
 
Court No. - 34
 

 
Case :- CRIMINAL REVISION No. - 528 of 1992
 
Revisionist :- Parmeshwar Dass And Others
 
Opposite Party :- State
 
Counsel for Revisionist :- K.K. Dubey
 
Counsel for Opposite Party :- A.G.A.
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri K.K.Dubey, learned counsel for the revisionist and learned A.G.A. for the opposite party.

2. This criminal revision under Section 401 Cr.P.C. has arisen from judgment dated 3rd April, 1992 passed by Sri Tej Shanker, Sessions Judge, Jhansi maintaining conviction and sentence of revisionists under Section 323, 452, 506 IPC.

3. The revisionists were tried in Criminal Case No.454 of 1990 under Sections 452, 323, 504, 506 IPC and convicted by Sri Dilip Singh, IInd Additional Chief Judicial Magistrate, Jhansi vide judgment dated 08.5.1991. The Trial Court sentenced Parmeshwari, Ram Prasad and Datar Singh under Section 323 for rigorous imprisonment of six months, under Section 452 IPC for three months' rigorous imprisonment and fine of Rs.200/- each, under Section 504 IPC for rigorous imprisonment of one month and under Section 506 IPC for rigorous imprisonment of three months each. However, the fourth accused Smt. Sada Rani was separately punished under Section 452 IPC, till arising of the Court, and fine of Rs.200/- and under Sections 323, 504, 506 IPC, for fine of Rs.200/- under each section. In case of non payment of fine, further rigorous imprisonment was also provided in the aforesaid judgment. The Appellate Court, however, modified judgment of Trial Court and conviction and sentence of all the revisionists under Section 504 IPC has been set aside but has been maintained under Section 323, 452 and 506 IPC.

4. The prosecution case set up was that 12-13 days before the date of incident, there was an altercation between the accused Parmeshwari Das, Ram Prasad and the complainant on account of some enmity between them. On 3rd May, 1986, at about 8 P.M., when complainant Badam Singh was sitting at his door the accused persons went there. Parmeshwari was armed with Danda while Ram Prasad was armed with Lathi. Datar Singh and Smt. Sada Rani were empty handed. They started abusing the complainant in filthy language and threatened that he would not be left alive. The complainant, getting frightened, went inside the house whereupon all the four accused entered the house and beat him with Lathi, Danda, fists and kicks. On the alarm being raised by complainant, witnesses Bhagwan Singh and Chandan Singh reached there and saved him. The wife of complainant and others also ran to save him whereupon the accused persons ran away. In this altercation/ Marpeet, accused Ram Prasad and Sada Rani also received several injuries. The complainant Badam Singh lodged report at Police Station Babina whereupon the case was registered and investigation commenced. The charge sheet was submitted against all the accused under Sections 452/34, 323/34, 504 and 506 IPC. The accused denied charges stating that they have been falsely implicated on account of Partybandi. The prosecution examined six witnesses i.e. Badam Singh PW-1, Smt. Prem Kumari PW-2 and Bhagwan Singh PW-3 who are witnesses of fact. The forth witnesses was Dr. V.K.Jain PW-4, who had medically examined the complainant; Head Constable Amar Singh PW-5 who registered the case in G.D.; and, PW 6 S.I. Ram Avtar Mathur, who investigated the case. The accused persons did not examine any person in defence. The Magistrate accepted prosecution version and convicted accused and sentenced as noticed above. The accused preferred appeal no.40 of 1991 which was partly allowed and conviction and sentence under Section 504 IPC was set aside.

5. Learned counsel for the revisionist contended that Courts below have not examined the evidence properly and therefore, conviction is not sustainable.

6. However, I find difficult to accept the above submission for the reason that in revisional jurisdiction this Court cannot sit in appeal and re-appreciate the evidence.

7. The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained.

8. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 Sc 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record.

9. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise.

10. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.).

11. In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct.

12. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact.

13. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 the Court said:

"The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged."

14. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665, in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said:

"4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice."

15. Looking to the matter in hand, I find that the virtual ground taken in this revision is that the Courts have not properly appreciated evidence led on behalf of accused though both the courts below have recorded concurrent findings of fact holding revisionists guilty for the offence and have sentenced accordingly. Despite repeated query, learned counsel for the revisionists, except of reading the judgment, could not point out any manifest illegality in the concurrent findings of fact and also could not show that any relevant evidence has been ignored or omitted or inadmissible evidence has been relied or there is any other manifest error in the judgment.

16. It is then contended that the incident relates to the year 1986 and almost 29 years have passed since then. Even this revision is pending for the last more than 22 years. Therefore, looking to the facts and circumstances of this case, punishment imposed upon accused 1, 2 and 3 be reduced to the period of imprisonment already undergone and, if necessary, the Court may enhance the amount of fine.

17. The conviction of revisionists no. 1, 2 and 3 under Sections 323, 452 and 506 IPC has been maintained by Lower Appellate Court and to this extent, there is a concurrent finding recorded by both the Courts below. Whether this Court as a rule of thumb should reduce sentence where offence committed by accused persons is fully proved by evidence, only on the ground of pendency of case in Court for a long time, is the only moot question need be considered in this revision.

18. A criminal offence is considered as a wrong against the state, and, society in particular, even though it is committed against individual(s). This Court in State of U.P. Vs. Babu and others 2007(9) ADJ, 107 (DB) has said:

"The duty of the Court of law is heavy in the sense that it should ensure that no innocent should be punished but simultaneously it is also under an obligation to see that no guilty person should escape from the clutches of law by taking advantage of so-called technicalities as this will not only lead to further serious threats to the entire society but may also shake the confidence of public at large in the system of dispensation of justice. Our experience has shown that exonerating a guilty person due to any reason whatsoever has caused more damage to the society since it has multiplied the occurrence of crime as well as has also produced more criminals attracting them to commit crime since easy acquittal has resulted in encouraging them to break law with impunity. It will be useful to remind with the words of caution as observed by the Hon'ble Apex Court (Krishna Ayer J.) in Shiva Ji Sahabrao Bobade (supra) emphasizing to keep balance between the individual liberty and evil of acquitting guilty persons. The Court observed that we should remind ourselves of necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The Courts having duty of judicial review owe the public accountability of such system. The golden thread of proof beyond reasonable doubt should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumption against indicted persons and more severe punishment of those who are found guilty. Too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. Miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of innocent." (emphasis added)

19. The above observations were made on the question of conviction but, in my view, once the prosecution has succeeded to prove its case and conviction is upheld by all the Courts, if its consequence is allowed to be diluted by modifying punishment to the extent of having no consequence merely on the ground of time consumed in legal remedy, whatsoever, it would make a mockery of entire criminal system of justice since the victim and his family i.e. the real suffers as also the society has no control over such proceedings and delay occurred therein.

20. Commenting upon the sentencing policy, in State of U.P. Vs. Sanjay Kumar 2012 (8) SCC 537, the Court said that punishments should reflect the gravity of offence and also the criminal background of convict. The graver the offence and longer the criminal record, more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of crime to the circumstances of offender and needs of victim and community, restorative justice eschews uniformity of sentencing. In para 21 of the judgment, the Court further said:

"Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats"

21. The Court further said that it is the duty of Courts to award proper sentence, having regard to the nature of offence and the manner in which it was executed or committed, etc. The Courts should impose a punishment befitting the crime so that Courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a futile exercise.

22. In Rajendra Pralhadrao Wasnik Vs. State of Maharashtra AIR 2012 SC 1377, the Court said:

"Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole."

23. In Hazara Singh Vs. Raj Kumar and others (2013) 9 SCC 516, the Court referred to its earlier decision in Shailesh Jasvantbhai and another Vs. State of Gujarat and others (2006) 2 SCC 359 and quoted with approval the following passage:

"... 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."

24. In Ahmed Hussein Vali Mohammed Saiyed and Anr. Vs. State of Gujarat 2009 (7) SCC 254, the Court said:

"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. ....

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."

25. In Hazara Singh Vs. Raj Kumar and others (supra), the Court in para 17 also said:

"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."

26. In the matter of awarding punishment multiple factors have to be considered by this Court. Law regulates social interests, arbitrates conflicting claims and demands. Security of individuals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. The inherent cardinal principle of criminal administration of justice is that the punishment imposed on an offender should be adequate so as to serve the purpose of deterrence as well as reformation. It should reflect the crime, the offender has committed and should be proportionate to the gravity of offence. Sentencing process should be stern so as to give a message to the offender as well as the person like him, roaming free in the society, not to indulge in criminal activities but also to give a message to society that an offence if committed, would not go unpunished. The offender should be suitably punished so that society also get a message that if something wrong has been done, one will have to pay for it in proper manner, irrespective of time lag.

27. Further sentencing process should be stern but tampered with mercy where-ever it is so warranted. How and in what manner element of leniency shall prevail, will depend upon multifarious reasons including the facts and circumstances of individual case, nature of crime, the matter in which it was committed, whether preplanned or otherwise, the motive, conduct, nature of weapon used etc. But one cannot lose sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. It is duty of court to give adequate, proper and suitable sentence, having regard to various aspects, some of which, are noticed above.

28. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat (supra) the Court confirmed that:

"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". (Emphasis added)

29. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532, the Court held that:

"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."

30. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734, the Court said that:

"The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

31. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444, the court said 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"

32. The revisionists have not shown that punishment, awarded by court below, is unjust, arbitrary or otherwise illegal. However, what they are trying is to take advantage of delay in Court. Their endeavour is that the act of Court should come to their rescue inasmuch as it is this Court which has taken two decades and more in taking up this revision and this should come to their rescue for making reduction in punishment drastically though otherwise what has been done by court below cannot be said per-se illegal, unjust or improper.

33. It is well settled that the act of court prejudices none. The failure of this court in taking up these matters within a reasonable time should not become a hand tool to the offenders, like present one to claim reduction in punishment as a matter of right, ignoring the fact that society requires that an offender should be punished adequately, and, over the above, the victim(s), who has/have suffered, is waiting in its/their own rights for having offender punished suitably, even if the system of justice takes a long time. The delay in Courts cannot become a factor to convert an accused, a victim, ignoring all the rights of actual victim, who has suffered, his family and the society in general. Moreover, when finding of guilt and punishment imposed by court below is not found erroneous in any manner. I am of the view that such an order of court(s) below cannot/shall and must not be interfered in exercise of revisional jurisdiction of this Court.

34. In the result, I have no hesitation in holding that this revision lacks merit. Dismissed.

35. The accused, Parmeshwar Dass, Ram Prasad, Dattar Singh and Smt. Sada Rani are on bail. Their bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause them to be arrested and lodged in jail to serve out the sentence passed against them. The compliance shall be reported at the earliest.

36. Certify this judgment to the lower court immediately.

Order Date :- 07.8.2015

KA