Uttarakhand High Court
Amit Sharma And Others ... vs State Of Uttarakhand And Another on 9 May, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No.232 of 2024
Amit Sharma and others ...........Revisionists
Vs.
State of Uttarakhand and another ......... Respondents
Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Nipush Mola Joshi,
Advocate holding brief of Mr. Pankaj Kumar Sharma, Advocate for the
revisionists.
Mr. M.A. Khan, AGA for the State/respondent no.1.
Mr. Birendra Singh Adhikari, Advocate for respondent no.2.
With
Criminal Revision No.199 of 2024
Pankaj Ahluwalia ...........Revisionist
Vs.
State of Uttarakhand and others ......... Respondents
Mr. Birendra Singh Adhikari, Advocate for the revisionist.
Mr. M.A. Khan, AGA for the State/respondent no.1.
Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Nipush Mola Joshi,
Advocate for respondent nos.2 and 3.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
Since both these revisions are arise from
one and the same judgment, they are heard together and
are being decided by this common judgment.
2. For the sake of convenience, the parties are
referred to as they are placed in Criminal Revision
No.232 of 2024.
3. The challenge in Criminal Revision No.232
of 2024 is made to the following:-
(i) Judgment and order dated 12.03.2020,
passed in Criminal Case No.423 of 2020,
State vs. Amit Sharma and others, by the
court of Additional Chief Judicial Magistrate,
Haridwar (for short, "the case"), by which, the
revisionists have been convicted under
Section 323, 325 IPC and sentenced as
follows:-
(a) Under Section 323 IPC - to undergo
simple imprisonment for a period of six
months with a fine of `1000/-. In
default of payment of fine, to further
undergo additional simple
imprisonment for a period of seven
days.
(b) Under Section 325 IPC - to undergo
imprisonment for a period of three
years with a fine of `5000/-. In default
of payment of fine, to undergo simple
imprisonment for a further period of
one month; and
(ii) Judgment and order dated 16.02.2024,
passed in Criminal Appeal No.121 of 2021, Amit
Sharma and others vs. State of Uttarakhand, by
the court of Third Additional Sessions Judge,
Haridwar ("the appeal"). By it, the conviction has
been upheld, but the sentence has been reduced
to three months simple imprisonment.
4. The challenge in Criminal Revision No.199
of 2024 is made to the judgment and order dated
16.02.2024, passed in the appeal.
5. Heard learned counsel for the parties and
perused the record.
6. Facts necessary for the disposal of the
revision are as follows: the revisionist no.3, Satya
Prakash Sharma runs a shop in the name and style of
Namaskar Electronics. It appears that PW1 Pankaj
Ahluwalia had purchased certain articles relating to
Cooler. According to the FIR, on 02.06.2012, at 11:00
AM, PW1 Pankaj Ahluwalia visited the shop run by the
revisionist no.3, Satya Prakash Sharma to change the
blades of the Cooler and requested the revisionist no.3,
Satya Prakash Sharma to change the blades. FIR records
that instead of changing the blades, the revisionist no.3,
Satya Prakash Sharma shoved the PW1 Pankaj
Ahluwalia. Thereafter, abused and threatened him. In
this sequel, the FIR records that all the revisionists
having Saria and iron rod with them attacked the PW1
Pankaj Ahluwalia. Ishwar Chand Verma, Shobhit Verma,
Anil and other persons, who gathered at the spot and
tried to save the injured PW1 Pankaj Ahluwalia. PW1
Pankaj Ahluwalia got injuries on his hand. PW2 Shobhit
Verma also sustained the injuries on his head and some
other persons also sustained injuries. This report was
given by PW1 Pankaj Ahluwalia. Based on it, FIR No.177
of 2012, under Sections 323, 506, 356, 504 IPC was
lodged at Police Station Jwalapur, District Haridwar.
Investigation was carried out; all the injured were
medically examined.
7. In fact, PW2 Shobhit Verma had hairline
fracture on his skull. The other injured also sustained
injuries. The Investigating Officer collected injury
reports, supplementary reports, X-Ray plates, etc. He
prepared the site plan and after investigation, submitted
the charge-sheet against the revisionists, which is basis
of the case. On 11.09.2013, charges under Sections 323,
356, 326, 504, 506 IPC was framed against the
revisionists, to which, they denied and claimed trial.
8. In this case, in total 07 witnesses have
been examined namely, PW1 Pankaj Ahluwalia, PW2
Shobhit Verma, PW3 Ishwar Chand Verma, PW4 Anil
Kumar, PW5 Dr. Naresh Johri, PW6 S.I. Manohar Singh
and PW7 R.K. Gupta, who proved the supplementary
report and has stated that there was a hairline fracture
in the parietal bone of PW2 Shobhit Verma.
9. The revisionists were examined under
Section 313 of the Code of Criminal Procedure, 1973
("the Code"). According to them, they have been falsely
implicated due to some property dispute.
10. After hearing the parties, by the impugned
judgment and order passed in the case, the revisionists
were convicted and sentence, as stated hereinbefore, but
in appeal while maintaining the conviction, the sentence
has been reduced.
11. The revisionists have challenged the
conviction and sentence. Their revision has been
admitted merely on the question of examining the
sentence.
12. In Criminal Revision No. 199 of 2024, PW1
Pankaj Ahluwalia has preferred the revision against the
judgment and order passed in the appeal, by which the
sentence has been reduced. He seeks enhancement of
the sentence.
13. Learned Senior Counsel appearing for the
revisionists would submit that the incident took place in
the year 2012; thereafter, no untoward incident took
place between the parties; there are no criminal
antecedents of any of the revisionists; they are
businessmen; they did not go anywhere to attack or
assault the injured or any of them instead the alleged
incident took place at their shop; it was not any pre-plan
of the revisionists. Therefore, the interest of justice
would be served, if the revisionists are released on the
probation of good conduct.
14. Learned counsel for the PW1 Pankaj
Ahluwalia, who has preferred criminal revision No.199 of
2024 would submit that the trial court has adequately
imposed the sentence, which has been reduced by the
court in appeal without any plausible reason. He would
refer to paras 24 and 40 of the judgment in appeal to
argue that merely on the ground that the injury was only
on PW2 Shobhit Verma and it is a hairline fracture, the
sentence has been reduced, which according to the
learned counsel, may not be a ground to reduce the
sentence.
15. In support of his contention, learned
counsel has placed reliance upon the principle of law, as
laid down in the case of Raj Bala vs. State of Haryana
and others, (2016)1 SCC 463, Rohtas and another vs.
State of Haryana and in connected matters, (2021)19
SCC 465.
16. In the case of Raj Bala, the Hon'ble
Supreme Court has discussed the factors for imposition
of sentence. Reference has been made to paragraph 2 of
the judgment, in which, the Hon'ble Supreme Court has
referred to the principle of law, as laid down in the case
of Shailesh Jaswanti Bhai vs. State of Gujarat, (2006)2
SCC 359; wherein the Court has held 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, 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. ........".
17. In the case of Rohtas (supra), the Hon'ble
Supreme Court inter alia had, "The appellants have not
undergone even half of their sentence period. Having
enjoyed the more productive part of their lives
outside jail cannot be, per se, taken as a mitigating
factor. Any misplaced sympathy with the appellants
is likely to cause injustice to the victim of the crime.
We, therefore, do not find any justification to show
leniency and reduce the sentence."
18. In fact, once a conviction is recorded,
sentencing is one of the important tasks in the Criminal
Justice System. The principles have been laid down in a
number of cases by the Hon'ble Supreme Court. In the
case of State of Madhya Pradesh Vs. Udham and others,
(2019)10 SCC 300, Hon'ble Supreme Court observed as
follows:-
"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 or amenity; (iii) extent
of humiliation; and (iv) privacy breach."
19. In the case of State of Madhya Pradesh vs.
Suresh, (2019)14 SCC 151, the Hon'ble Supreme Court
discussed the factors that while imposition of a sentence
and in para 13 Hon'ble Supreme Court observed as
under:-
"13. Therefore, awarding of just and adequate
punishment to the wrongdoer in case of proven crime
remains a part of duty of the court. The punishment to be
awarded in a case has to be commensurate with the
gravity of crime as also with the relevant facts and
attending circumstances. Of course, the task is of striking
a delicate balance between the mitigating and aggravating
circumstances. At the same time, the avowed objects of
law, of protection of society and responding to the society's
call for justice, need to be kept in mind while taking up
the question of sentencing in any given case. In the
ultimate analysis, the proportion between the crime and
punishment has to be maintained while further balancing
the rights of the wrongdoer as also of the victim of the
crime and the society at large. No straitjacket formula for
sentencing is available but the requirement of taking a
holistic view of the matter cannot be forgotten."
20. Not only the injuries, but various factors like
planning, choice of weapon, manner of planning,
economic and social backgrounds of the offenders,
litigations, availabilities of defence and so on, are to be
taken into consideration while awarding punishment.
There may hardly be similar punishment even for similar
kind of offences that may be awarded in two different
situations. The factors relating to the offenders is also
relevant while awarding a sentence.
21. What is proved is that the PW1 Pankaj
Ahluwalia had visited the shop run by the revisionist
no.3, Satya Prakash Sharma, but he was attacked. Saria
and iron rods were used and in that process, when
Ishwar Chand and Shobhit Verma came to rescue him,
they were also attacked, due to which, there were
fractures on the head of PW2 Shobhit Verma.
22. Definitely, the revisionists did not plan in
advance that as and when PW1 Pankaj Ahluwalia would
visit their shop they would attack him. But, planning
can be done at the spot, at the place of incident itself.
Intentions are so formulated instantly. Undoubtedly, the
genesis of the offences is quite trivial.
23. The trial court has imposed punishment of
three years under Section 325 IPC. It has been restricted
to three months' period by the court in appeal. It is true
that in para 40 in the judgment of court of appeal, one of
the reasons for reducing the sentence that has been
noted is the number of injuries and the kind of injuries.
It is also one of the factors though, it is not the sole
factor for awarding a sentence.
24. There are three revisionists. The revisionist
no.3 Satya Prakash Sharma, it is stated, is 63 years of
age and suffering with gangrene in his leg. This Court
may deal with him in his short while. In so far as
revisionists nos.1 and 2 namely, Amit Sharma and
Deepak Sharma are concerned, both have been assigned
the role of assaulting with Saria and iron rod, etc. The
appellate court has reduced the sentence while
considering the nature of injuries and number of injuries
also. The deduction qua the revisionist nos.1 and 2
namely, Amit Sharma and Deepak Sharma cannot be
termed to be unlawful and this Court is of the view that
the sentence that has been reduced in so far as it relates
to Amit Sharma and Deepak Sharma does not need any
interference.
25. Having considered the entirety of facts
including the offence, its genesis, the kind of weapon
used, the kind of injuries, the number of injured and
other attending factors, this Court is of the view that it is
not a case fit for probation so far as it relates to the
revisionist nos.1 and 2 namely, Amit Sharma and
Deepak Sharma. It is also not a case for enhancement of
sentence in so far as revisionist nos.1 and 2 are
concerned.
26. In so far as the revisionist no.3, Satya
Prakash Sharma is concerned, it is stated that he is
unwell; he is 63 years of age; he is suffering with
gangrene; he has a lot of problems; he cannot sit or
walk; in fact, while admitting the revisions and granting
the bail to the revisionist no.3, Satya Prakash Sharma,
these factors were taken into consideration and recorded
in the Court's order dated 30.04.2024.
27. Having considered the condition of
revisionist no.3, Satya Prakash Sharma, this Court is of
the view that instead of sentencing at once to any
punishment, he may be released on the probation of
good conduct.
28. The conviction and sentence of the
revisionists no.1, Amit Sharma and revisionist no.2
Deepak Sharma recorded on 16.02.2024 in the appeal is
upheld.
29. The conviction of revisionist no.3, Satya
Prakash Sharma, under Sections 323, 325 IPC is
upheld. But, instead of sentencing him at once to any
punishment, let the revisionist no.3 be released on his
entering into a bond with two sureties to appear and
receive the sentence whenever called upon during the
period of three months and in the meantime to keep a
peace and be a good behaviour.
30. Impugned judgment and order in appeal is
modified to the extent, as indicated above.
31. Both the revisions stand disposed of
accordingly.
32. Let a copy of this judgment along with the
lower court record be forwarded to the court concerned
for necessary compliance.
(Ravindra Maithani, J.)
09.05.2024
Sanjay
