Arvind Alias Munnu vs State Of U.P.
2015 Latest Caselaw 3045 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							A.F.R.
 
			JUDGMENT RESERVED ON : 17.09.2015
 
			JUDGMENT DELIVERED ON : 09.10.2015
 

 
Case :- CRIMINAL APPEAL No. - 8160 of 2010 
 
Appellant :- Arvind Alias Munnu 
 
Respondent :- State Of U.P.

Counsel for Appellant :- J. S. Sengar,Ajit Kumar Singh Solanki,Amit Daga

Counsel for Respondent :- Govt. Advocate,Sushil Kumar Pandey

Hon'ble Om Prakash-VII,J

1. Present Criminal Appeal is directed by the appellant Arvind @ Munnu against the judgment and order dated 16.12.2010 passed by the Additional Sessions Judge, Court No. 10, Muzaffar Nagar in Sessions Trial No. 1847 of 2007 (State Vs. Arvind alias Munnu) pertaining to crime no. 1434 of 2007, Police Station Kotwali Nagar, district Muzaffar Nagar whereby the court below has convicted and sentenced the accused appellant for the offence under Section 307, 384 and 506 IPC, for the offence under Section 307 IPC to undergo 10 years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of fine to undergo one year additional imprisonment, for the offence under Section 384 IPC to undergo 2 years imprisonment and for the offence under Section 506 IPC to undergo 2 years imprisonment.

2. Prosecution story in nutshell as unfolded in the chik F.I.R. is as follows :

3. Written report (Ext. Ka.-1) dated 22.8.2007 was moved by the informant Dhan Prakash scribed by Ashwani Tyagi to the Police Station concerned mentioning therein that on 22.8.2007 his son Satish Tyagi was standing outside his house after taking meal. At about 8.30 P.M. Arvind @ Munnu Tyagi, accused came there and asked him to give Rs. 50 to take wine. Informant's son refused the request. Feeling annoyed accused Arvind @ Munnu took out knife from pocket and told that how dared you to refuse and immediately inflicted knife injury in the abdomen of Satish Tyagi. The informant's son made hue and cry then Ali Hasan, Hemant, Rajat and other villagers came on the spot. Thereafter accused threatening to kill, ran away from the spot. Injured was taken to the hospital with the help of the villagers by the informant. Doctor referred the injured to the Meerut Medical College HoHoHospital. Informant came to the police station to lodge the F.I.R. after sending the injured with the help of the villagers to the Meerut Medical College

4. On the basis of this written report (Ext. Ka.-1) chik F.I.R. was registered for the offence under Section 324, 384, 506 IPC on the same day at 22.30 hrs. G.D. entry (Ext. Ka.-3) was also made.

5. Initially on 22.8.2007 the injured was medically examined at District Hospital, Muzaffar Nagar and injury report was prepared. Following injuries were found on his body :

"Incised wound 5 cm x 2 cm x dept not probed present on middle just below sternum 13 cm above from umbilical at 12 O'clock position on epegastrium."

6. In the opinion of the Doctor injury was caused by some sharp edged weapon and was fresh in duration. Injury was kept under observation.

7. Supplementary report (Ext. Ka-5) was prepared in respect of the injuries. Bed Head Ticket and operation notes (Ext. Ka-6 and Ka-7) were also prepared.

8. It is also made clear that during investigation the case was converted into the offence under Section 307 IPC on the basis of the medical report. Investigating Officer recorded the statement of the witnesses and prepared the site plan (Ext. Ka.-8 ). After fulfilling the formalities submitted charge sheet (Ext. Ka.-9) for the offence under Section 384, 307, 506 IPC. against the accused appellant

9. Concerned Magistrate took the cognizance in the matter and fulfilling the formalities, as required, under the Code of Criminal Procedure case was committed to the court of sessions for trial.

10. Accused appellant appeared and charge against him for the offence under Section 384, 307, 506 IPC were framed to which he denied and pleaded himself innocent and claimed his trial.

11. In order to prove its case the prosecution examined eight witnesses. P.W.-1 informant Dhan Prakash; P.W.-2 Satish Kumar; P.W.-3 Raj Kumar Sharma, the chik writer; P.W.-4 Dr. Pawan Kumar Jain; P.W.-5 Ali Hasan, who has claimed himself to be an eye witness; P.W.-6 Dr. Neeraj Goyal; P.W.-7 S.I. Yash Pal Rana and P.W.-8 S.I. Tej Pal Singh.

12. After closer of the prosecution evidence statement of the accused under Section 313 Cr. P.C. was recorded in which he claimed himself to be innocent and stated the prosecution evidence to be false. He further pleaded that he was falsely implicated in this matter.

13. No any oral or documentary evidence was adduced in his defence by the appellant except the cross examination made to the prosecution witnesses at initial stage.

14. Trial court after hearing the parties vide impugned judgment and order convicted and sentenced the accused appellant, as above, hence this appeal.

15. I have heard Sri Amit Daga, learned counsel for the appellant and Sri Sushil Kumar Pandey, learned A.G.A.

16. Learned counsel for the appellant waiving all other grounds taken in the memo of appeal made only submission that the accused appellant is languishing in jail in the matter for the last about seven years. Maximum sentence imposed upon him is of ten years and fine. It is a case of single blow. There was no any premeditation or intention to commit the present offence hence the trial court ought to have adopted lenient view. It was further submitted that present case does not come in the purview of Section 307 IPC. It was lastly submitted that appeal be disposed of enlarging the accused appellant on the ground of imprisonment already undergone.

17. Learned A.G.A. argued that injury was caused to the injured with the intention or knowledge and under such circumstances that if by that act death of the deceased was caused he would be guilty of murder. Doctor has clearly opined that injuries found on the person of injured was dangerous to life hence the trial court's view for imposing ten years' imprisonment for the offence under Section 307 IPC could not be termed to be unreasonable or disproportionate punishment. Looking to the fact and circumstances under which the offence has been committed and the nature of the injuries lenient view could not be adopted in the matter.

18. I have considered the rival submissions at length and have also gone through entire record.

19. Though the learned counsel for the appellant has waived all other grounds taken in the memo of appeal except the quantum of punishment but to ascertain the legality and illegality of the findings, I have carefully gone through the entire evidence available on record.

20. In the present matter informant P.W.-1 Dhan Prakash, the eye witness; P.W.-2 Satish Kumar, the injured; P.W.-5 Ali Hasan, an eye witness have clearly supported the version taken in the written report (Ext. Ka-1), oral version of the witnesses find support from the medical evidence, injury is on the abdomen of the injured caused by the knife, Doctor has clearly stated that the injuries found on the person of the injured could be caused by the sharp edged weapon, accused appellant is assigned the weapon knife, prosecution was also able to establish that an operation took place regarding the injuries, F.I.R. is lodged in the matter just after the medical aid provided to the injured, date, time, and place of the occurrence were also proved beyond reasonable doubt by the prosecution witnesses thus the court proceeds directly to the submissions raised by the learned counsel for the appellant regarding quantum of punishment without making any detailed discussion on above points.

21. So far as the quantum of punishment is concerned, learned counsel for the appellant has placed reliance on the law laid down by the Hon'ble Supreme Court in Gurmukh Singh Vs. State of Haryana reported in (2009) 15 SCC 635 and also on a Division Bench judgment of this Court dated 4.8.2015 rendered in Criminal Appeal No. 1147 of 2015 (Ghasi Ram and two others Vs. State of U. P.).

22. Hon'ble the Apex Court in Gurmukh Singh (Supra) in para no. 23 and 24 held 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 pre-

meditation 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. I have also gone through the law laid down in Sumer Singh Vs. Suraj Bhan Singh and others reported in (2014) 7 SCC 323.

24. So far as the submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.

25. Settled legal position is that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, 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. 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 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'.

26. Thus in view of the above the punishment should be awarded in proportionate to the gravity, dimension and nature of the injuries. At the same time it is also essential that undue sympathy should not be given to the accused while awarding punishment. In the present matter pure and simple question of the prosecution is that accused appellant came at the house of the injured and asked from him to give Rs. 50/- to take wine. The injured refused to give. Thereafter the accused appellant took out the knife from his pocket and caused injuries to the injured in his abdomen. Doctor has opined that injury found on the person of the injured was grievous in nature and dangerous to life. Before analysing the submissions in the light of the guidelines laid down by the Hon'ble Supreme Court I would refer to the provisions of Section 307 IPC :

"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by life convicts.--When any person offending under this section is under sentence of 1[imprisonment for life], he may, if hurt is caused, be punished with death."

27. Provision of Section 307 is attracted where the offence was caused by the accused with the intention or knowledge and under such circumstances that, if he by that act caused death he would be guilty of murder. In such situation accused could be punished with a maximum imprisonment of either description which may extend to 10 years and shall also be liable to fine. If accused caused hurt to such person then he may be punished for imprisonment of life or other punishment provided herein before.

28. In the present matter accused has caused injuries to the injured. Injuries is on vital part. Medical evidence clearly suggests that it was grievous in nature and dangerous to life. Maximum punishment imposed upon the accused appellant is of ten years rigorous imprisonment and a fine of Rs. 10,000/- and in default of payment of one year additional imprisonment. Accused appellant has served out about seven years sentence out of ten years.

29. Considering the entire facts and circumstances of the case and the guidelines laid down in Gurmukh Singh (Supra) and Sumer Singh (Supra) applying the settled principles of law, this court is of the view that if accused appellant is punished for the offence under Section 307 IPC with seven years rigorous imprisonment instead of ten years rigorous imprisonment the purpose for sentencing the accused would be sub served. Not only this it would be in the conformity of the conscience of the society. Awarding of seven years rigorous imprisonment in place of ten years rigorous imprisonment would also not be taken as giving undue sympathy to the accused. Prosecution could not show that accused appellant is a previous convict.

30. In view of the facts and circumstances discussed above, I am of the view that appeal is liable to be allowed partly modifying the sentence of imprisonment for the offence under Section 307 IPC reducing it to seven years instead of ten years. The fine part imposed for the offence under Section 307 IPC and the sentence imposed for the offence under Section 384 and 506 IPC would remain unchanged and in default of payment of fine the accused appellant would serve the additional imprisonment as ordered by the trial court.

31. Thus for the foregoing discussions made herein above the appeal having some merit is partly allowed. Conviction of the accused appellant Arvind alias Munnu for the offence under Section 307, 384, 506 IPC is upheld but the sentence of imprisonment imposed upon the accused appellant for the offence under Section 307 IPC is modified and reduced to seven years instead of ten years. Fine imposed by the trial court for the offence under Section 307 IPC would remain same. Similarly the punishment imposed for the offence under Section 384, 506 IPC would also remain unchanged. All the sentences shall run concurrently.

32. Record of the trial court along with copy of this judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.

October 9, 2015

Sachdeva