Allahabad High Court
Haroon @ Raja vs State Of U.P. on 13 July, 2020
Equivalent citations: AIRONLINE 2020 ALL 1742
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved On:04.02.2020 Delivered On:13.07.2020 Court No. - 86 Case :- CRIMINAL APPEAL No. - 2816 of 2019 Appellant :- Haroon @ Raja Respondent :- State of U.P. Counsel for Appellant :- Om Prakash Yadav,Yogesh Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Anil Kumar-IX,J.
This appeal has been preferred on behalf of the accused appellant Haroon @ Raja against judgement and order dated 03.08.2018 passed by Additional Sessions Judge/Special Judge (E.C. Act) Jhansi whereby appellant has been convicted and sentenced in Section 307 I.P.C. in Session Trial No. 70/2009 (Case Crime No.368 of 2008), P.S. Sipari, District- Jhansi to undergo rigorous imprisonment of two years eight months and fine of Rs.1,000/- and in default of payment of fine additional imprisonment for 15 days, in Section 411 I.P.C in Session Trial No.71 of 2009 (Case Crime No. Nil/2008), P.S. Sipari, District-Jhansi to undergo R.I. of two years eight months and fine of Rs.1,000/- in default of payment of fine additional imprisonment of 15 days and in Section 380 and 411 I.P.C. in Session Trial No. 95 of 2009 (Case Crime No. 342 of 2008), P.S. Sipari, District Jhansi to undergo R.I. of two years eight months and fine of Rs. 1,000/- in each sections and in default of payment of fine additional imprisonment for 15 days. In this appeal prayer has been made to set aside the impugned judgement and order to the extent of quantum of sentence awarded by the learned Trial Court.
Brief facts giving rise to this appeal are that in night of 13.03.2008. The informant R.K. Sharma then posted as officer in charge in Police Station-Sipari, District-Jhansi was busy in search of wanted accused and patrolling duty along with other Police personnel. While their duty in that area Police party had seen a black colour Appe Tempo coming in high speed from the side of Baudh Nagar. On suspicion when they tried to check the vehicle, the driver and persons sitting in that Tempo stop the Tempo and began to run. Police party chased them. On exhortation by the accused appellant, other accused persons opened fire on Police party with intention to kill them but none of the Police party received any injury. Three of them namely, Appu @ Nafees, Bablu @ Rahmat Ali and Shaheed were apprehended by the Police at 4.30 A.M. at a distance of 50 paces from crusher of Banni Babu but the accused/appellant was successful in running away from the spot. On personal search of three arrested accused persons illegal, objectionable articles were recovered from Appu @ Nafees and Shaheed. From the Appe Tempo siezed from the spot, stolen utensils used in worship were recovered which were kept in three 'gunny bags'. The utensils recovered were identified by the informant of the Case Crime No.342 of 2008 (Session Trial No.95 of 2009) to be stolen property of aforesaid case crime number which were stolen by unknown person from 'puja store' of the Temple. The siezed Appe Tempo was also found to be stolen property. Recovery memo was prepared on the spot in light of torch and electric by Ram Autar Singh S.I. on direction of informant R.K. Sharma, it was signed by informant, other Police personnel and arrested accused person.
On the basis of recovery memo F.I.R. as Case Crime No.368 of 2008, u/s 307 I.P.C. and Case Crime No. Nil of 2008 u/s 411 I.P.C. and in other sections were registered in Police Station Sipari, District Jhansi on 13.03.2008 at 7.30 A.M. After investigation charge sheet were submitted in Case Crime No. 368 of 2008, u/s 307 I.P.C., Case Crime No. Nil of 2008, u/s 411 I.P.C. and Case Crime No.342 of 2008, u/s 380, 411 I.P.C. by the concerned I.O. of the aforesaid cases.
Case Crime No. 368 of 2008, u/s 307 I.P.C. being triable by Sessions Court, was committed to sessions by concerned Magistrate which was numbered as Session Trial No.70 of 2009. Case Crime No. Nil of 2008, u/s 411 I.P.C. and Case Crime No. 342 of 2008, u/s 380 and 411 I.P.C. being connected with aforesaid session trial were also committed to sessions Court and numbered as Session Trial No. 71 of 2009 and Session Trial No. 95 of 2009 respectively. Later on aforesaid all the three session Trials were tranferred to the Court of Additional Sessions Judge/Special Judge (E.C. Act) for trial. The concerned Court of Additional Sessions Judge has mentioned in the impugned judgement that aforesaid all the three session trials were based on same recovery memo, therefore, he has tried and disposed all the three sessions trial jointly.
The Trial Court has framed charges against the appellant u/s 307 I.P.C. in Session Trial No. 70 of 2009, u/s 411 I.P.C. in Session Trial No. 71 of 2009 and u/s 380 I.P.C. and 411 I.P.C. in Session Trial No.95 of 2009. The charges were read over and explained to the accused/appellant who denied from the charges and claim to be tried.
Apart from documentary evidence prosecution has examined PW-1 H.C.P. Samthar Singh and Head Constable Raj Kumar Gautam (PW-2). PW-1 H.C.P. Samthar Singh has deposed that on 07.02.2008 he was posted as Constable Mohrir in P.S. Sipari, District Jhansi. He has registered the F.I.R. and has proved the F.I.R. and copy of the G.D. of Case Crime No. 342 of 2008, Section 380, 411 I.P.C.
PW-2 Raj Kumar Gautam has deposed that at the time of incident, he was posted as Constable in P.S. Sipari, Jhansi. The Investigating Officer of this case had also been posted with him in that Police Station. PW-2 has deposed that he was well acquinted with the hand writings of the I.O. He has also stated that he had signed on recovery memo and at the time of incident he was a memeber of the Police party of the informant. He has proved the charge sheet submitted by the I.O. in all the three cases.
After completion of evidence of the parties, the statement of the accused appellant has been recorded under Section 313 Cr.P.C. In his statement under Section 313 Cr.P.C. appellant has admitted the prosecution version and has stated that the witnesses of prosecution had given correct statements. He has confessed his guilt and has stated that the cases had rightly been registered against him. He has also stated that he was very poor person. He has prayed for taking a lenient view in passing sentence against him.
After hearing the argument advanced by the counsel for the parties and perusing the lower court record, by its impugned judgement and order dated 03.08.2018 the trial Court has convicted and sentenced the appellant as aforesaid in paragraph first of the judgement.
Being aggrieved by the impugned judgement and order of the trial Court the appellant has preferred this appeal.
Heard Sri Yogesh Kumar Srivastava, learned counsel for the appellant and Sri Vimal Kumar Pandey, learned A.G.A. for the State and perused the lower court record.
Learned counsel for the appellant contended that the accused was not arrested on the spot, nothing incriminating had been recovered from his possession and alleged firing on spot was admittedly, a no injury case, there was no public witness of the case, the name of the accused came into light from the confessional statement of the co-accused. Learned counsel for the appellant has further argued that the appellant is a very poor person. He was languishing in jail for a long period. He has confessed his offence in statement recorded under Section 313 Cr.P.C. with a view to get mercy of the Court in awarding sentence against him but learned Trial Court has taken a harsh and severe view in passing the sentence against him and it has also not been mentioned in the impugned judgement and order that the sentences shall run concurrently. Learned counsel for the appellant referred provision laid down in Section 31 Cr.P.C, Section 71 I.P.C. and observations of Hon'ble Apex Court in some cases.
Learned A.G.A. has opposed the argument of counsel for the appellant and has submitted that in this appeal only sentence awarded by the Court has been challenged, therefore, merit of the case is not to be considered. He further submitted that there is no illegality in sentence awarded to the appellant by the learned trial Court.
This appeal has been filed only on the point of punishment awarded by the Trial Court. Learned counsel for the appellant has contended that the Trial Court has not awarded the sentence after considering all relevant facts and circumstances necessary for passing the sentence and the sentence passed is not commensurate with the gravity of the offence and all facts and circumstances of the case.
Before assailing the sentence, it is necessary to produce the Section 31 Cr.P.C. and Section 71 I.P.C. which runs as follows.
Section 31 Cr.P.C.-
"1. When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code, 1860 (45 of 1860), sentence him for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
2. In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:
Provided that-
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice of punishment which the Court is to inflict for a single offence.
3. For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence"
Section 71 I.P.C. runs as follows-
"Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided. Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences."
In the Jameel Vs. State of U.P. (2010) 12 SCC 532, Hon'ble Apex Court has reiterated the number that the punishment must be appropriate and proportionate to the gravity of the offence committed. The observation of the Hon'ble Apex Court in as follows.
"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.
16. 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 sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
In Guru Basvaraj @ Banne Settapa Vs. State of Karnataka (2012) 8 SCC 734 it was observed by the Hon'ble Apex Court.
" It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."
In Gopal Singh Vs. State of Uttarakhand, JT 2013 (3) SC 444. It has been held as under:-
" Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respct of a criminal offence..."
In Gagan Kumar Vs. State of Punjab (Criminal Appeal No. 266 of 2019 decided on 14th February, 2019) where the appellant was comvicted by the Trial Court in two offences that were Section 279 and Section 304A I.P.C. and separate punishment was awarded by the Trial Court in each of the offence, the Hon'ble Apex Court observed as under:-
"16. In our considered opinion, it was necessary for the Magistrate to have ensured compliance of Section 31 of the Code when she convicted and sentenced the appellant for two offences in a trial and inflicted two punishments for each offence, namely, Section 279 and Section 304A I.P.C.
17. In such a situation, it was necessary for the Magistrate to have specified in the order by taking recourse to Section 31 of the Code as to whether the punishment of sentence of imprisonment so awarded by her for each offence would run concurrently or consecutively.
18. Indeed, it being a legal requirement contemplated under Section 31 of the Code, the Magistrate erred in not ensuring its compliance while inflicting the two punishments to the appellant."
In view of the aforesaid discussion, facts and given circumstances of the crime, the conduct of the accused, basis of conviction and other attending circumstances, this Court is of the view that there is no sufficient ground to reduce the sentence passed by the trial Court in each offence and the ends of justice would stand satisfied if the substantive sentences of imprisonments imposed on the accused/appellant are ordered to run concurrently.
Accordingly, the appel is partly allowed. Sentence awarded by the learned Trial Court is maintained and confirmed with the direction that all the sentences shall run concurrently.
Let a copy of the judgement be sent to the Court concerned for preparing and forwarding the modified conviction warrant of the appellant to the concerned jail for compliance.
Order date:-13.07.2020 Rahul.