Hon'ble Pramod Kumar Srivastava, J.
(Delivered by Hon'ble P.K. Srivastava, J)
1. This appeal has been preferred against the joint judgment dated 15.5.2015 passed by Additional Sessions Judge, Court No.-7, Hardoi in ST no. 546 of 2001, State Vs. Suresh and another, Crime No. 160 of 2001, section 302, 307 IPC and Section 3(2)(v) Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act [ hereinafter referred to as SC / ST Act], ST no. 687 of 2001, State Vs. Suresh, Crime No. 162 of 2001, section 3/25 Arms Act and ST No. 588 of 2001, State Vs. Lala Ram, Crime No. 163 of 2001, Section 3/25 Arms Act related to police station Sandila, district Hardoi by which accused Suresh was convicted for charge under section 302 IPC read with Section 3/25 SC/ST Act for imprisonment for life and fine of Rs. 10000/-, for charge under section 307 IPC read with 3/25 SC/ST Act for imprisonment for life and fine of Rs. 5000/-, and for the charge under section 3/25 Arms Act for rigorous imprisonment of one year and fine of Rs. 1000/- with direction that sentences would run concurrently. Co-accused Lala Ram was also convicted in this matter but his appeal is not before us.
2. Prosecution case in brief was that on 13.5.2001 in house of complainant namely Udan (PW-2) was one ceremony relating to marriage of complainant's son. On that night musical programmes were going on in the village. At that time it was informed that one person had fallen down from the roof. After getting this information Sukhdeo, Vinod, Sarvesh, Munna, Sunil and other persons had rushed on the spot of incident. Suddenly someone fired at 9:30 p.m. due to which Sukhdeo (PW-1), Vinod, Sarvesh, Munna and Sunil were injured and rushed to Government Hospital. Sukhdeo (PW-1) and Udan (PW-2) and Sarvesh Kumar (PW-5) and Anuj were referred for further treatment to Lucknow hospital; however Sunil had died due to said fire-arm injury before the start of treatment in hospital. The complainant Udan had lodged the report of this incident.
3. After investigation charge-sheet was submitted against Suresh, Lala Ram for offences under sections 302, 307 IPC and section 3(2)(v) of SC/ST Act. During investigation fire arms were recovered from both the accused Suresh and Lala Ram and charge sheet were submitted against them for offence under section 3/25 Arms Act also.
4. Both the accused were charged for aforesaid offences, which they denied. Then prosecution side had adduced oral and documentary evidences, after which statements under section 313 Cr.P.C. of accused were recorded. But they had not adduced any oral or documentary evidence. Then trial court had passed impugned judgment dated 15.5.2015 by which accused were convicted for aforesaid charges and after hearing on point of sentence the trial court had sentenced them as stated.
5. Aggrieved by this impugned judgment of conviction, present appeal has been preferred by one accused Suresh.
6. Learned counsel for the appellant contended that from the evidence it is proved that admittedly there was no intention to cause death or any injury to any person. He submitted that firing during celebration (''Harsh Firing') accident had happened causing death of one and injury to other persons. Therefore, conviction may be mitigated with lesser offence. He further submitted that in this incident no overt act was committed against the deceased or injured because of their caste or community, so no case under provisions of SC/ST Act is made out, and conviction in that regard is erroneous; and for such charge appeal should be allowed.These arguments were refuted by learned AGA, who submitted that in present matter although Harsh firing was being carried but in present case it was such a serious criminal negligence which amounts to culpable homicide amounting to murder.
7. From the evidence, it has been proved that in the ceremony relating to marriage of son of informant several persons including the accused were firing in air, but suddenly information spread about the falling of a person from roof. On this information people started rushing towards the spot of that accident. Therefore, their shots had strayed towards the crowd that included victim Sunil Kumar and other injured persons including PW-3 Vinod Kumar and PW-4 Mahadeo and PW-5 Sarvesh Kumar. Accused appellant had no enmity or any motive against any of the injured or deceased. Before receiving the information of falling of a person from roof, there was no accident or injury to any person, but immediately after spreading of this news accidental fires had caused injuries to these persons. These facts were proved from oral evidences of injured and other witnesses.
8. We have given our consideration to the rival submissions and perused the material and evidences available on record.This fact relating to charge was not challenged by the learned counsel for the appellant that on the date of charged incident, accused Suresh had inflicted injuries on the body of victim and also on the body of several others. It was also admitted that those injuries were caused by firing during celebration (Harsh Firing). Thus, it is proved that at the time of incident there was no motive to cause injury. It is a case of serious negligence on part of appellant.
9. Section 3(2)(iv) and (v) of the Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act, 1989 reads as under:
"3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe-
(iv) commits mischief by fire or any explosive substance intending to cause or knowing it to be likely that he will thereby cause destruction of any building which is ordinarily used as a place of worship or as a place for human dwelling or as a place for custody of the property by a member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for life and with fine;
(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine"
10. The provision of Section 3(2)(iv) or (v) of the Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act, 1989, as noted above provides that a person can be punished under these provisions only when he commit such offence against person of SC/ST community on the ground that such a person/victim is a member of SC/ST. From the evidence in present case, it is proved that charged incident had been committed by accused-appellant only due to accident, and not for any other reason. There is no evidence from prosecution case that offence was committed because victim belongs to scheduled-caste community. At least there is no evidence in this regard. Therefore, we are of well thought-out opinion that accused-appellant cannot be punished for offence punishable under Section 3(2)(v) of SC/ST Act.
11. Hon'ble Supreme Court in Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 has held as under:
"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.
16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), IPC does not per se become life sentence."
12. Hon'ble Supreme Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170 has held as under:
"11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."
13. On the basis of above discussion it is explicitly clear that charged offence of firing had not been committed because any victim was a member of SC/ST community. This offence appears to have been committed only because of accidental and negligent firing. In such a case offence punishable under section 3(2)(v) of Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act has not been committed. Therefore the finding of trial Court holding the appellant guilty for the offence under SC/ST Act is erroneous and is liable to be set aside.
14. A culpable homicide is a murder if the act which causes death is done with the intention of causing death or is done with intention of causing a bodily injury and injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. All murder is culpable homicide but not vice versa. This is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.
15. In "Kesar Singh v. State of Haryana, (2008) 15 SCC 753" Hon'ble Apex had held :
"To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "Thirdly":
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; these are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and, indisputably, the burden is on the prosecution throughout) the offence is murder under Section 300 "Thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury is actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."
16. In the matter in hand, it is proved from the evidence that the charged act was committed by appellant without intention of murder. From the evidences, it appears probable that the appellant had negligently caused injures to every person who was found near range of fire without properly knowing as to whether it may cause death or serious injury. This matter comes within Exception 1 of Section 300 IPC. Therefore the appellants are found guilty of act of culpable homicide not amounting to murder which is punishable under section 304 IPC.
17. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516" Hon'b'e Apex Curt had held that :
"it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate 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. It is 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. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
18. Only because Section 304 IPC provides the life imprisonment as the maximum sentence, does not mean that Court should mechanically proceed to impose the maximum sentences, more particularly when the incident had occurred suddenly, and accidently due to negligence.
19. In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court had held :
"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."
20. In 'Ramashraya Chakravarti v. State of M.P., (1976) 1 SCC 281' Hon'ble Apex Court had observed :
"To adjust the duration of imprisonment to the gravity of a particular offence is not always an easy task. Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in the context of the times and events in the light of social imperatives. It is always a matter of judicial discretion subject to any mandatory minimum prescribed by law."
"In judging the adequacy of a sentence the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts trial courts in this country already overburdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by the accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice pre-sentence investigation may be of great sociological value."
21. One of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. For sentencing an accused on proof of crime the courts have evolved certain principles; the twin objective of the sentencing policy is deterrence and correction. It lies within the discretion of the court to choose a particular sentence within the available range from minimum to maximum. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
22. In considering the adequacy of the sentence which neither be too severe nor too lenient the court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and situation in life of the offender.
23. In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 Hon'ble Apex Court had discussed points to be taken into account before passing appropriate sentence 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 premeditation 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.
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."
24. Now matter is limited to sentence for offence u/s 304 IPC, and we have to consider about the appropriate deserts for the appellant in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered. At the time of commission of charged incident age of appellant was about 35 years. He had knowledge of the fact that he had no licence to use the fire arm actually used by him. It is a thing of common knowledge that Harsh Firing is not proper, especially in a crowded area. From facts and circumstances of the case it is clear that the appellant initially had no intention for murder/ homicide or causing any injury. Appellant has no criminal history and is in incarceration for about 14 years. Apart from these mitigating circumstances, it is noteworthy that charged incident was due to negligence. Appellant had committed the charged act deliberately.
25. When we apply the settled principles of law which have been enumerated in the aforementioned cases, the sentence of life imprisonment of the appellant under Section 304 IPC appears inappropriate. In present case after considering the circumstances presented before the Sessions Judge and before us during hearing of appeal, it appears appropriate that, the conviction u/s 302IPC read with section 3(2)(v) SC/ST Act and sentence for it should be converted in conviction u/s 304 IPC only and its sentence should not exceed more than 14 years' imprisonment.
26. Likewise we found it appropriate that conviction for charge under section 307 IPC read with section 3(2)(v) of SC/ST Act be converted under section 307 IPC only and sentence should be should also be mitigated in present set of circumstances to 7 years' imprisonment which would serve the ends of justice.
27. In view of above facts and discussion, the order of conviction for offence u/s 3(2)(V) of SC/ST Act is set aside. The conviction u/s 302 IPC imposed on the appellant is hereby modified u/s 304 IPC, and the sentence of imprisonment for life is modified to period of imprisonment for 14 years. The conviction u/s 307 IPC imposed on the appellant is hereby confirmed but the sentence of imprisonment for life is modified to 7 years. The conviction and sentence u/s 3/25 Arms Act imposed on the appellant is confirmed. With this modification of conviction, punishment and sentence, the appeal is partially allowed. Sentences will run concurrently.
28. Let the copy of this judgment be sent to Sessions Judge, Hardoi for ensuring compliance.
Order Date :- 30.06.2016 SKS