Bhagwan Swaroop vs State Of U.P.
2022 Latest Caselaw 646 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on - 4.3.2022
 
Delivered on - 7.4.2022
 
Court No. - 34
 

 
Case :- CRIMINAL APPEAL No. - 3777 of 2017
 
Appellant :- Bhagwan Swaroop
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shashi Kumar Mishra,Mohammad Khalid,Noor Mohammad,Ram Jatan Yadav,Shivajee Srivastava,Upendra Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
with
 

 
Case :- CRIMINAL APPEAL No. - 5188 of 2017
 
Appellant :- Ranno
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Mohammad Khalid,Jitendra Kumar Mishra,Nagendra Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Both above-referred appeals are preferred by the appellants namely Bhagwan Swaroop (Criminal Appeal No.3777 of 2017) and Ranno (Criminal Appeal No.5188 of 2017) against the judgment and order dated 30.6.2017 passed by Additional Sessions Judge/Fast Track Court, Court No.1, Kasganj in Session Trial No.220 of 2001, State vs. Ranno and another, arising out of Case Crime No.347 of 2000, under Section 364 IPC, Police Station - Soron, District - Kasganj whereby appellants - Bhagwan Swaroop and Ranno have been convicted under Section 364 IPC and sentenced for 10 years' imprisonment with fine of Rs.10,000/- and in default, further to undergo three months' imprisonment and also convicted in Sessions Trial No.221 of 2001, arising out of Case Crime No.348 of 2000, under Section 147 IPC and sentenced for one year Rigorous Imprisonment with fine of Rs.1,000/- and in default, further to undergo five days' simple imprisonment; under Section 148 IPC sentenced for two years' imprisonment with fine of Rs.1,000/- in default, further to undergo five days' imprisonment and under Section 307 read with Section 149 IPC, sentenced for four years' imprisonment with fine of Rs.5,000/- and in default, further to undergo one month's imprisonment. Appellant - Bhagwan Swaroop is also convicted under Section 25 Arms Act for a period of one year's imprisonment with fine of Rs.1,000/- and in default, further to undergo five days additional imprisonment in S.T. No.221 arising out of Case Crime No.350/2000.

2. Shri Noor Mohammad and Shri Jitendra Kumar Mishra, learned counsels for appellants submits appellant - Bhagwan Swaroop was not named in the First Information Report lodged by Udaiveer - father of victim (PW-1) and Rajkumar @ Raju (PW-2). Appellant - Ranno was one of the four named accused. It was alleged in First Information Report that seven persons abducted the victim from the fields. During investigation, victim was recovered and appellant - Bhagwan Swaroop and co-accused Jasveer were apprehended on the spot and other five accused persons namely appellant - Ranno, Chhatrapal, Ajay Pal, Satveer and Malkhan fled away. The victim - Rajkumar @ Raju was medically examined by Dr. D.K. Saxena and according to his opinion, no injury was found.

3. The charge sheet was filed against all the accused persons in Case Crime No.374 of 2000, under Section 346 IPC and Case Crime No.348 of 2000, under Sections 147, 148, 307/149 IPC and Case Crime No.350 of 2000, under Arms Act. All the criminal trials were clubbed. After trial, the accused persons including the appellants were convicted as referred above.

4. Learned counsel for appellants submits that appellant - Bhagwan Swaroop was not named in the First Information Report and his name is came into light at the stage of investigation and no incriminating material/article was recovered from his possession. However, appellant - Ranno was one of the named accused along with three other co-accused. The victim - Rajkumar @ Raju (PW-2) was recovered from the hut and in his testimony, he stated that he was kidnapped by the appellants - Bhagwan Swaroop and Ranno along with three other co-accused persons. They were having country-made pistol. They flashed country-made pistols and extended threat to him. In this case, admittedly, there was no call for ransom. Learned counsel further submitted that in order to make out a case for under Section 364 IPC, prosecution has to prove that kidnapping or abducting was committed in order to commit murder of person so abducted or kidnapped or he may be put in danger being murdered whereas in present case, there was no evidence in this regard. Therefore, no offence is made out under Section 364 IPC and it could be a case only under Section 365 IPC which is for kidnapping or abducting secretly or wrongfully confined a person, which could be punished with imprisonment of either description for a term which may be extended to 7 years and was also be liable to fine.

5. Learned counsel for appellants further submitted that appellant - Ranno has already undergone about 8 years 7 months and 20 days of imprisonment as on date i.e. 14.12.2021 as per custody certificate issued by the Jail Authorities. Appellant - Bhagwaan Swaroop has already undergone about 4 years 11 months and 18 days of imprisonment as on 15.11.2021 and with remission he has already undergone about 6 years 3 months and 7 days of imprisonment as on 15.11.2021. Learned counsel also relied upon a judgment passed by the Supreme Court in Shaik Ahmed vs. State of Telangana; 2021; 2021 (9) SCC 59 and a judgment passed by the Division Bench of this Court in Guddoo @ Nitin Singh vs. State of U.P.; 2020 0 Supreme (All) 545 that since the ingredients of Section 364 IPC are absent, therefore, the present case is an appropriate case to modify charges and, as such, conviction and sentence awarded to the appellants be under Section 365 IPC, punishable with the maximum sentence of 7 years and considering that appellant - Ranno has already undergone about more than 8 years and appellant - Bhagwan Swaroop has undergone about 5 years (without remission) and more than 6 years (with remission), sentence be modified to period already undergone.

6. Learned A.G.A. for State submitted that in present case, evidence of victim was specific in regard to the threat as he was put under threat by showing him country-made pistol. However, he has failed to contradict the submission of learned counsel for appellants that no injury was caused to him, no ransom was called and he was recovered at the time when all the accused persons ran away when the police party raid at the place where the victim was confined.

7. Heard learned counsel for parties and perused the record as well as written submission.

8. The crux of the argument of learned counsel for appellants is that on the basis of prosecution case and the evidence led before the Trial Court, they cannot be convicted under Section 365 IPC as there is no evidence that kidnapping was done in order to murder the victim or he was put in danger of being murdered and the conviction could not travel beyond Section 365 IPC which is punishable with imprisonment of either description of a term which may extend to 7 years.

9. I have perused the impugned judgment and material on record and the evidence of prosecution witnesses. PW-1 - father of victim has stated that his son was kidnapped by the named accused persons by flashing country-made pistols. The victim was recovered on the same day (late night), when police conducted the raid. According to the testimony of doctor, no injury was caused to the victim. PW-2/victim - Rajkumar @ Raju has supported the prosecution case that he was kidnapped by named accused persons and when he tried to raise alarm, his mouth was closed, his hands and legs were tied by rope. When police raided at the place of occurrence, he was lying down and he was rescued. Therefore, from the evidence of victim, there was no evidence to the fact that kidnapping was done to commit murder of victim or to put him in danger of being murdered. Considering Guddoo @ Nitin Singh (Supra), the ingredients of Section 364 IPC are not made out but on the basis of evidence on record, all ingredients of Section 365 IPC are made out because the victim was kidnapped or abducted with intent to cause victim to be secretly and wrongfully confined. Therefore, it is a fit case to modify the charge and, therefore, conviction and sentence awarded to both the appellants are modified to be under Section 365 IPC in place of Section 364 IPC.

10. In the present case, the occurrence took place on 12.10.2000 i.e. about 22 years ago. Appellant - Ranno has already undergone more than 8 years ie. more than maximum sentence which could be awarded under Section 364 IPC whereas appellant - Bhagwan Swaroop has already undergone about more than 5 years (without remission) and more than 6 years (with remission).

Re: Principle of Sentencing

11. Indian legislature has not given any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in India.

12. Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt by High Courts and Trial Courts.

"..... It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature peroxided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." (para 49 of Accused ''X' vs. State of Maharastra (2019) 7 SCC 1)

"12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).

13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach." (State of Madhya Pradesh vs. Udham and others (2019) 10 SCC 300).

13. It is also notable that ".... where minimum sentence if provided for, the Court cannot impose less than minimum sentence." (Para 8 of State of Madhya Pradhesh vs. Vikram Das (2019) 4 SCC 125)

Re : Compensation

14. Section 357 Cr.P.C. provides power to the Court to award compensation to victim, which is in addition and not ancillary to other sentences. While granting just and proper compensation Court ought to have consider capacity of the accused for such payment as well as relevant factors such as medical expenses, loss of earning, pain and sufferings etc.

15. Supreme Court has reiterated need for proper exercise of power of granting compensation under Section 357 Cr.P.C. in Manohar Singh Vs. State of Rajasthan and others : (2015) 3 SCC 449 and in paras 11, 31 and 54 it is stated that:

"11. .....Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357- A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation."

"31. The amount of compensation, observed this Court, was to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay."

"54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision."

16. Considering the principles of sentence and compensation, referred hereinabove as well as facts and circumstances of the present cases, these appeals are finally disposed of with following directions :-

(a) The conviction of both the appellants under Section 364 IPC is modified to be under Section 365 IPC.

(b) Appellant - Ranno has already undergone the maximum sentence which could be awarded under Section 365 IPC, therefore, he shall be released forthwith.

(c) Appellant - Bhagwan Swaroop, who has undergone about more than 5 years (without remission) and more than 6 years (with remission), therefore, order for sentence is modified for the period already undergone. He shall pay compensation of Rs.20,000/- to the victim within a period of eight weeks after he released from the jail.

(d) Lower Court's record and a copy of judgment be sent to the Court concerned forthwith.

Order Date :- 7.4.2022

Rishabh

[Saurabh Shyam Shamshery, J.]