Court No. - 78
Case :- CRIMINAL APPEAL No. - 971 of 1982 Appellant :- Ram Bachan Respondent :- State Counsel for Appellant :- Padamnath Singh,Anand Kr Srivastava,Atul Kumar,Indra Sen Singh Tomar,Man Bahadur Singh,Raj Kumari Devi Counsel for Respondent :- A.G.A
Hon'ble Ajit Singh,J.
This criminal appeal has been filed by appellants Ram Bachan and Achchey Lal against a judgement dated 20.4.1982 passed by the Addl. Sessions Judge, Azamgarh in S.T. No. 129 of 1981 (State vs. Ram Bachan and Achchey Lal), under Sections 304 part II read with Section 34 I.P.C., P.S. Mau, district-Azamgarh, whereby learned Judge convicted and sentenced the appellants to undergo 4 years rigorous imprisonment.
The prosecution story in brief is that accused had assaulted Bhirgu Teli by throwing bricks on him at about 7 A.M. on 9.8.1980 in village Raini, P.S. Mau, District Azamgarh who died on the same day and the report of the said incident was lodged by Sheshnath son of the deceased and it was alleged in the FIR that quarrel took place between one Dhyani, father of the accused and Kannar, the uncle of the complainant, regarding the flow of water. At that time, the deceased whose house is also situated there, reached at the spot and tried to mediate between them and at that time, the appellants came there and said that the deceased was helping Kannar, due to which they assaulted the deceased with bricks. After sustaining injuries the deceased fell down and both the accused had ran away. The deceased was taken to hospital where he succumbed to injuries. Postmortem was conducted by Dr. S.D.P. Gupta, who found the following ante mortem injuries on the body of the deceased :-
i. Contusion in area of 6 cm x 3 in ration of left upper eye-lid and left eye- brow, entering under tissue
ii. Contusion swelling in area of 8 cm x 6 cm on left side fore head, 4 cm above injury no.1.
iii. Abrasion contusion 3 cm x 2 cm on top of head 7 cm above injury no.2.
iv. Contusion 6 cm x 3 cm on left side face inner in left ear.
v. Abrasion 1.5 cm x 5 cm on outer side of right knee.
vi. He also find fracture on parietal bone on left side.
To prove his case the prosecution examined P.W.-1 Sheshnath, who is the complainant and is also an eye witness of the incident. He has corroborated the prosecution story and proved the written FIR Ex. Ka-1 to have been lodged by him and who is specifically stated that both the accused had hit his father with bricks. He has further stated that at the first, his father was taken to Thana and thereafter, he was sent to Mau Hospital, where his father was declared dead. P.W.-2, Mahatam has also corroborated the prosecution version and prove the Panchnama Ex. Ka-2 and P.W.-3 Dr. S.K. Singh, who has first examined the deceased, has stated that the deceased was brought to him at about 9:15 A.M. on 9.8.1980 in an unconsciousness and gasping condition and he also gave him some treatment and told that condition of the deceased was serious and he referred him to District Hospital, Azamgarh. P.W.-5, Dr. S.D.P. Gupta, conducted the postmortem of the deceased and proved the postmortem report, which is at Ex.Ka13. Investigating Officer proved the chik FIR and the relevant G.D. entries and Panchnama were also prepared by the Investigating Officer in a prescribed manner who has proved other relevant papers and also said that he investigated the matter and after investigation, he submitted charge sheet against the accused persons and has also proved the charge sheet.
After prosecution evidence was closed the accused persons were examined under Section 313 Cr.P.C., and they have denied their involvement in the crime.
After considering the oral and documentary evidence, on record, the trial court convicted the accused persons as aforesaid.
Aggrieved by the trial court judgment and order this appeal has been preferred.
Learned counsel for appellants submitted that at present appellant no. 1 Ram Bachan, is aged about more than 62 years and the appellant no. 2 Achchey Lal is more than 60 years and after conviction in the year 1982 they have led a peaceful life and and they have not misused the liberty of bail during trail. He further submitted that the incident had taken place in the year 1980 and the accused persons were convicted in the year 1982. He next submitted that he does not want to argue the case on merits but he is arguing the matter only on the quantum of sentence and has prayed that both the accused persons had suffered mental agony of punishment for the last 40 years and they had not intended to cause the death of deceased. He has further prayed for lenient view of this Court.
Learned AGA has vehemently opposed the prayer and submits that the appellant were rightly convicted under Sections 304 part II read with Section 34 I.P.C., and sentence passed by the trial court is not required any interference.
I have perused the entire material available on record and the evidence as well as judgment of the trial court. The learned counsel for the accused-appellants does not want to press the appeal on its merit and requests to take a lenient view of the matter.
After considering the facts and circumstances and evidence on record and also considering that the 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.
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 has dealt by the High Courts and Trial Courts. Hon'ble Apex Court has held in (para 49 of Accused "X' vs. State of Maharashtra (2019) 7 SCC 1)
A. "... 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 ofthe fact that the legislature peroxided for discretion to the Judges to give punishment, it becomes important to exercise the same in principled manner."
B. Sentencing for crimes has to be analyze on the touchstones of three 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 case) and any other relevant factor (not an exhaustive list).
C. Hon'ble Apex 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 para 11, 31 and 54 which are as follows :-
"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."
This Court has given full consideration to the entire evidence of this case and finds that the incident had taken place in the year 1980 and the accused were convicted in the year 1982 and at that time they were young persons aged about 20 years and after the conviction they had suffered agony since last 40 years after awarded sentence to them in the year 1982. They have suffered physical incarceration in jail and they have also suffered mental incarceration for a long period.
After considering the entire scenario of this case and the time of incident which occurred about 40 years ago. As there is no minimum sentence prescribed under Section 304 part II I.P.C. and incident had taken place at the spur of moment and accused had not intended to cause death of the deceased.
This Court considers it fit to modify the sentence of four years rigorous imprisonment awarded by the trial court to the period already under gone by the appellant during trial and after conviction and a fine of Rs.10,000/- each is imposed upon them and the amount of fine shall be deposited by the appellant within six months from the date of judgment. That amount will be paid to the complainant if he is alive and in case of complainant is dead then compensation amount will be paid to legal heirs of the deceased and the bail bonds of the accused- appellants are cancelled. It is also directed that if they fail to deposit the fine amount, they shall further undergo three months simple imprisonment.
The appeal is partly allowed.
Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance of the order of this Court.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the learned counsel for the applicant along with a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 22.9.2021 Md Faisal