Court No. - 78
Case :- CRIMINAL APPEAL No. - 2822 of 1981 Appellant :- Tika Ram and others Respondent :- State Counsel for Appellant :- Prem Prakash,Brijesh Sahai,Keshav Sahai,Raghuvansh Misra,Rahul Misra Counsel for Respondent :- A.G.A. Hon'ble Ajit Singh,J.
1. The present criminal appeal has been filed against the judgement and order dated 27.11.1981 passed by third Additional District and Sessions Judge, Bareilly in S.T. No. 416 of 1980 (State vs. Tika Ram and three others), whereby learned Judge had convicted and sentenced all the appellants to undergo five years’ rigorous imprisonment under Section 304 Part II read with Section149 I.PC. and the appellants Roshan and Bhupat were convicted and sentenced to undergo further one years’ rigorous imprisonment under Section 147 of the IPC, and appellants Pancham and Tika Ram were further convicted and sentenced to years’ R.I. under Section 148 IPC. All the sentences so awarded under the impugned judgment and order were directed to run concurrently.
2. So far as the appellant No. 2 – Roshan, appellant No. 3 – Bhupat, appellant No. 4 – Pancham are concerned, they have expired during the pendency of this appeal and as such this appeal on their behalf stands abated, vide order dated 25.08.2018, passed by another coordinate bench of this Court. In this regard there is a report dated 10.10.2017 submitted by the Chief Judicial Magistrate, Bareilly. This appeal has been heard and is being decided in respect to the surviving appellant No. 1 Tika Ram only.
3. In brief the prosecution story is that accused persons Tima Ram, Roshan, Bhupat, Pancham and Chhotey Lal @ Ram Bharosey had formed an unlawful assembly with a common intention to commit the murder of Sobha Ram and they actually committed his murder. It is alleged in the prosecution story that accused Pancham and Tika Ram were armed with deadly weapons like spears and they were charged under Section 148 IPC besides other sections and other accused namely Roshan, Bhupat and Chhotey Lal @ Ram Bharosey were charged under Section 147 I PC for helping to fulfil the common object of the said assembly of committing murder of the deceased Sobha Ram. The incident the matter was reported to the police by P.W. 1 Devi Charan.
4. After lodging of the FIR the matter was investigated by the police and the accused persons were charge sheeted and trial proceeded against them resulting in their conviction and sentence by the impugned judgment and order, hence the present appeal was preferred by them in this High Court.
5. P.W. 1 Devi Charan is the informant. He happens to be son of deceased. Prior to this incident a litigation about agricultural land was going on and that decided in favour of deceased Sobha Ram. Tika Ram and deceased were real brothers. Roshan is grand father of Tika Ram. Accused Pancham is son of Roshan. Ved Ram died issueless. Tika Ram wanted to get the land of Ved Ram also. It has also been narrated that accused Bhupat got executed some fictitious sale deed executed by his brother’s wife in his favour. The pairavi of the litigation against Bhupat was being done by the deceased and it was the reason Bhupat was having enmity with deceased and for these circumstances and litigation going one one after another, the unlawful assembly was formed resulting in murder of the deceased. PW 1 has deposed that just before the incident accused Chhotey Lal called Sobha Ram. Thereafter, accused Tika Ram, Pancham, Roshan and Bhupta assaulted him. The deceased cried. Besides PW-1 and his inmates, other witnesses Nanhe and Birbal rushed there. All of them saw the assault blows made to the deceased with spears by Pancham and Tika Ram and with lathis by Roshan and Bhupat. The testimony of PW 1 finds corroboration with the deposition of PW. 2 and PW 3. PW – 4 is Station Officer, PW – 5 Ram Autar, Police Constable and PW – 6 Dr. I.J. Punihani conducted the post-mortem of the deceased. All these witnesses supported the prosecution case in trial proceeding. After conclusion and completion of the trial, the accused appellants were found guilty of the offences and they were convicted and sentenced by the impugned judgment and order as narrated in para – 1 of this judgement.
6. This incident is alleged to have taken place in year 1980 and by now, all the accused appellants had expired and only Tika Ram is surviving. It is also a fact of this unfortunate case that the appellants including the surviving appellant Tika Ram were convicted on 27.11.1981 under Section 304 I PC Part – II and the Trial Court has found that the deceased had suffered only one injury No. 1 which was fatal to life and which was found sufficient in the ordinary course of nature to have caused death to the deceased and it is submitted by the learned counsel for the appellant that that injury might have been inflicted by other co-accused who were having lathi and the present surviving appellant Tika Ram is alleged having a spear in his hand and the deceased received two injuries on his person and only one injury on his chest was opined by the doctor to be fatal to cause death to the deceased. It is also a fact of this case that besides Tika Ram, co-accused Pancham was also having spear in his hand and was seen to have assaulted the deceased. Co-accused Pancham has died during the pendency of this appeal and there is not a categorical finding recorded by the learned Trial Court as to who was the author of the injury inflicted on the chest of the deceased resulting in his death - either Pancham or Tika Ram. The learned counsel also submits that he does not press this appeal on its merit. Rather he presses it on the quantum of sentence. He also requests that a lenient view be taken by this Court at this belated stage of the matter. He also submits that the incident had taken place as far as back in year 1980 and all the accused persons except Tika Ram have expired.
7. In view of the submissions made by the learned counsel for the surviving appellant this Court does not want to enter into the analysis of the facts of this incident and the evidence brought on record by the prosecution as well as the evidence of the defence in view of the submission made by the learned counsel for the appellant, on instructions, that he does not propose to challenge the impugned judgement and order on its merits. The learned counsel, however, prays for modification of the order of the sentence for the period already undergone by the appellant.
9. Learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances.
10. Since the learned counsel for the appellant has given up challenge to the findings of conviction and there is ample evidence including eyewitness account and medical report to base conviction, accordingly, the conviction of the surviving appellant for the aforesaid offence stands affirmed.
11. However, on the quantum of sentence, learned counsel for the appellant has argued that the appellant is not previous convict. The surviving accused appellant is on bail. He has next submitted that the incident of this case had occurred in year 1980 and by now, more than 40 years have passed. Moreover, accused- appellants were convicted and sentenced in the year 1981 and after conviction about fourty years have passed. Accused-appellant had suffered the mental agony of punishment since the date of incident and thereafter, since the date of their conviction. Accused- appellant at the time of the incident was 18 years old and by now he is senior citizen and aged about more than 60 years and is suffering from age related ailments. He next submitted that it was the first offence of the accused-appellants and after conviction the accused had not indulged in any other criminal activity. He further submitted that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking a lenient view considering the age of the accused and his age related ailments. At this fag end of his life it would not be just and proper to send the accused-appellant to jail. Rather, the impugned judgment and order be modified and sentence passed be substituted with the period of imprisonment already undergone by the accused-appellant with a fine which this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.
12. This Court is well aware of that while dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under:
"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole.
Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their officiousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."
13. In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:-
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante- social behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
14. In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:
"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."
15. In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-
"In operating the sentencing system, law should adopt the corrective machinery or the 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 dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."
16. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
17. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323, State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463.
18. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.
19. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323, State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced.
20. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
21. Considering the facts and circumstances of the case and the substantive period already undergone by the appellant in this case and the fact that the appellant is married person and he is having children; there is no bread winner in the family of the appellant and that he has realized the mistake committed by him and is remorseful of his conduct to the society to which he belongs and now he wants to transform himself into a law abiding citizen, I am of the considered opinion that the appellant has suffered mental agony and mental incarceration for almost more than four decades, at this stage it would not be proper to send him into jail to serve out the remaining sentence. It would be just and proper he should be given a chance to reform himself and be allowed to give his better contribution to the society to which he belongs to.
22. Consequently, the sentence is modified to the period already undergone by the surviving appellant in this case with a direction that he shall deposit a fine of Rs.5,000/- in court below within a period of four months from today and in case of default, he will serve out a simple imprisonment of two months RI.
23. The appeal stands partly allowed.
24. The appellant is on bail. His personal bonds and bail bonds given by sureties shall stand discharged forthwith.
25. Office is directed to transmit a copy of this order to the learned Sessions Judge, Bareilly for compliance.
26. Office is also directed to send back the record of the trial court, if any, immediately.
Order Date :- 30.09.2021 LBY