Indra Pal Singh And Another vs State Of U.P.
2022 Latest Caselaw 2442 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 21.04.2022
 
Delivered on 10.05.2022
 
Case :- CRIMINAL APPEAL No. - 6007 of 2009
 

 
Appellant :- Indra Pal Singh And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dr. Akhilesh Kumar Sharma,Brajesh Kumar,Prabhat Kumar Srivastava,R.B. Verma
 
Counsel for Respondent :- Govt. Advocate
 
                                           with
 
Case :- CRIMINAL APPEAL No. - 6024 of 2009
 

 
Appellant :- Sukhendra And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dr. Akhilesh Kumar Sharma,Brajesh Kumar,M.C.Tiwari,Prabhat Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Om Prakash-VII,J.

Hon'ble Narendra Kumar Johari,J.

1. Since these criminal appeals have been filed against the same judgment and order and have been heard together, therefore, the same are being decided by this judgment.

2. These criminal appeals have been preferred by the accused appellants against the judgment and order dated 27.8.2009 passed by Additional Sessions Judge, F.T.C. No.1, Mainpuri in Session Trial No. 69 of 2003 convicting and sentencing the appellants for the offence punishable under Section 364 IPC to undergo life imprisonment and a fine of Rs. 2000/- with default stipulation and for the offence under Sections 323 IPC to undergo one year's rigorous imprisonment and a fine of Rs. 1000/- with default stipulation.

3. At the very outset, it is very relevant to mention here that during pendency of Criminal Appeal No. 6024 of 2009, appellant - Sukhendra has died. Accordingly, by the order dated 18.7.2019, this Court passed order directing abatement of Criminal Appeal No. 6024 of 2009 as against the appellant - Sukhendra in the said appeal.

4. Now, we are proceeding to consider the criminal appeals in respect of rest of the appellants i.e. Indra Pal Singh, Kallu Singh and Rakesh Pal Singh.

5. The facts of the case, as unfolded by the informant Jorawal Singh son of Tilak Singh Thakur, resident of Harrer, P.S. Kurra, District Mainpuri, are that on 17.4.2002 at 12.00 O'clock he was present in his house. Raksh Pal Singh and Sukhendra Singh came there and asked him to accompany them. They also accompanied the brother-in-law of the informant which was witnessed by a number of villagers. They took them to their home. When Raksh Pal Singh reached his home, he beat the informant and his brother-in- law with kicks and fists and enquired as to who, after committing murder of the brother of Raksh Pal Singh on 25.3.2002, had hanged him with tree. They told that they had no knowledge. They further said that it was heard that Shiv Pal had committed suicide by hanging with a tree. On hearing this, Raksh Pal Singh, Sukhendra Pal Singh, son and brother of Raksh Pal again beat them and asked the informant to go and further said that his brother-in-law would go later. They threatened him to kill if he disclosed to anyone. Informant reached his house and waited for his brother in law till the evening and when he did not reach the house, he was being searched and his dead body was found in the forest of Shankerpur.

6. On the basis of the written report (Ext. ka-1), chik First Information Report was registered at Police Station concerned on 18.4.2002 at 8.30 a.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry was also made at the same time.

7. Investigation was started in the matter by the Investigating Officer Yashvir Singh - Station House Officer of the Police Station concerned. He inspected the place of occurrence and prepared site plan (Ex.t ka-7). He also prepared the inquest report (Ext. ka-4). The Investigating Officer also prepared photo lash (Ext. ka-5). The dead body was kept in sealed cover and was dispatched through constables Ram Gopal and Harish Chandra Pathak alongwith the police papers for post mortem.

8. Initially, injured /deceased was examined at C.H.C., Karhal, Mainpuri on 18.4.2002 and following injuries were found on his body at the time of examination:

'(1). Abraised contusion 2 cm x 1.5 cm on left side fore head 2 cm above from left eye brow. Radish in colour.

(2). Contusion 3.5 cm x 1.5 cm left side face adjoining let eye lower lid radish in colour.

(3). Abraised contusion 1.5 cm x 0.5 cm mid of upper lip. Radish in colour.

(4). Contusion 25 cm x 2 cm on back adjoining both side lower end of scapula. Radish in colour.

(5). Contusion 10 cm x 2 cm on right side back. 6 cm below from lower end of scapula.

(6). Contusion 24 cm x 2 cm back. 6 cm below from injury no. (1). Radish in colour.'

9. In the opinion of doctor, all injuries were simple in nature and caused by hard blunt object - Duration about one day old.

10. During treatment, deceased died and autopsy report (Ext. ka-3) was prepared after conducting the post mortem on 18.4.2002 at 3.20 p.m.

11. As per the post mortem report, the deceased was of 70 years old and was average built, probable time of death was about ¾ days. On external examination, rigor mortis was passed on both extremities. Left eye was open. Bleeding present from the right eye.

12. On examination of the dead body of the deceased, following ante-mortem injuries were found:

"(I) Abraded contusion 6 x 3 cm on the left part of fore head just above eyebrow.

(II) Contusion 6.5 cm x 2.5 cm on the left side of face extending down ward from the lateral end of left eyebrow.

(III) Contusion 2.5 cm x 1.5 cm on the dorsum of nose.

(IV) Abraded contusion 2 x 1.5 cm on the right patella at lower border of patella, 2 x 2 cm on the tuberasity of right tibia 2.5 cm x 2 cm.

(V) Abraded contusion 2.5 cm x 2 cm on the let patella.

(VI) Lacerated wound 2 x 0.5 cm on the left parietal region at its..... aspect.

(VII) Clotted blood (Brushed area) present on the sternops at the level of sternal angle 8 x 6 cm.

(VIII) Right II, III, IV,, V, VI ribs are fractured clotted blood present at the site of fracture.

(IX) Left II, II, IV, V, VI ribs are fractured clotted blood present at fractured side.

(X) 400 ml of blood present on right plural cavity.

(XI) 350 ml of blood present in the right plural cavity."

13. In the opinion of the doctor, death was caused due to shock and hemorrhage as a result of ante-mortem injuries.

14. After completion of the investigation, charge-sheet (Ext. ka-9) against the accused appellants was filed. Concerned Magistrate took cognizance and the case being exclusively triable by Sessions Court was committed to the Court of Sessions.

15. Accused/appellants appeared and charge under Sections 323, 506, 302, 364 IPC was framed in the trial court against them. Accused have denied the charges framed against them and claimed their trial.

16. Trial proceeded and on behalf of prosecution, seven witnesses i.e. PW-1 Ram Beti, PW-2 Jorawar Singh (informant), PW-3 Dr. A.K. Dubey, who examined the injured / deceased initially, PW-4 Dr. R.D. Yadav, who has conducted the post mortem on the body of deceased and prepared post-mortem report, PW-5 S.I. Yashvir Singh, the Investigating Officer, PW-6 Constable Raj Singh and PW-7 Pairokar Munna Lal, were examined.

17. After closure of prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded in which they denied the allegations and stated that they have been falsely implicated due to parti-bandi.

18. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants, hence this appeal.

19. We have heard Shri Prabhat Kumar Srivastava, learned counsel for the appellants as well as the learned AGA appearing for the State.

20. Castigating the impugned judgment and order, it was submitted by the learned counsel for the appellants that the appellants are innocent and they have not committed the present offence. Prosecution was not able to prove its case beyond reasonable doubt. It was further submitted that appellants have been convicted and sentenced for the offence under Section 364 IPC and maximum sentence of life imprisonment has been imposed upon them. Referring to findings arrived at by the trial court in the impugned judgment and order, learned counsel for the appellants confined his argument only to the extent of punishment and submitted that since in this matter appellants are in jail since 27.8.2009 and have served-out around 13 years of sentence against the imprisonment awarded to them by the trial court, the appeal may be decided extending leniency on the point of sentence. It is not a case in which maximum sentence should have been awarded. No other argument touching the merits of the case was advanced.

21. Per contra, learned A.G.A. appearing for the State submitted that from the statement of witnesses examined in the matter charges levelled against the accused appellants have been fully established. Prosecution was able to prove its case beyond reasonable doubt. The findings recorded by the trial court regarding guilt of accused appellants are based on correct appreciation of facts and evidence. There is no illegality, infirmity or perversity in the findings of the trial court warranting interference by this Court. Though appellants are in jail since 27.8.2009 yet sentence of life imprisonment awarded to the appellants is adequate to the gravity of the offence. Findings of the trial court on this point need no interference. Unnecessary leniency and sympathy shall defeat the very object for which the punishments are provided. Hence, the appeals deserve to be dismissed.

22. We have considered the rival submissions advanced by learned counsel for the parties and have gone through the entire record carefully.

23. In this matter, as is evident, though the learned counsel for the appellants has confined his submission only on the point of sentence, yet we have perused the entire record including the impugned judgment and order carefully and on close scrutiny of entire evidence in consonance of the findings recorded by the trial court and also in view of the settled legal position, this Court is of the view that the prosecution was able to establish the guilt of the accused appellants beyond reasonable doubt for the offence under Sections 364 and 323 IPC and the said findings recorded by the trial Court in the impugned judgment and order are correct and do not require interference by this Court.

24. Now before dealing with the submission on the point of sentence, we find it necessary to quote the provisions of Section 364 IPC, which are as under:

"364. Kidnapping or abducting in order to murder.--Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

25. 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.

26. It is settled legal position 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'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

27. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.

28. The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered the sentence. Paragraph 31 of the said judgment is reproduced below:

"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I. P. C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I. P. C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."

29. The trial court vide impugned judgment and order has imposed sentence of imprisonment for life upon the appellants.

30. Applying the principle laid down by the Apex Court in the aforesaid judgment and having regard to the totality of the facts and circumstances of the case, particularly the fact that the offence was committed in the year 2002, the appellants are in jail since the year 2009 and sentence for the offence under Section 364 IPC could also be imposed upto ten years and the appellants have served-out around thirteen years of the imprisonment imposed upon them, we are of the considered view that the ends of justice would meet if the sentence of the appellants awarded to them for the offence under Section 364 is reduced / modified to the imprisonment already undergone including the additional imprisonment imposed upon them in case of default in payment of fine.

31. In the light of foregoing discussions, the appeals are liable to be allowed in part. Conviction of the accused appellants for the offence punishable under Sections 364 and 323 IPC is liable to be upheld. The impugned judgment and order dated 27.8.2009 is liable to be modified to the extent as discussed above.

32. Accordingly, criminal appeals are allowed in part and the conviction of the appellants under Sections 364 and 323 IPC is upheld. The sentence of imprisonment awarded to the appellants for their conviction under Section 364 IPC is altered and reduced to the imprisonment already undergone. Appellants are in jail. They be released forthwith, if not wanted in any other case. It is clarified that additional imprisonment in lieu of default of payment of fine is included in the period already undergone, hence, the appellants need not be detained to realize the fine amount.

33. Let a copy of this judgment along with lower court record be sent to the Sessions Judge, Mainpuri for compliance. A compliance report be sent to this Court.

34. Copy of this order be also kept on the record of aforesaid Criminal Appeal No. 6024 of 2009.

Order Date :- 10.05.2022

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