Shakeel Ahmed vs State (Nct Of Delhi) And Others on 26 May, 2015

[Cites 53, Cited by 9]

Delhi High Court

Shakeel Ahmed vs State (Nct Of Delhi) And Others on 26 May, 2015

1. The moot question for consideration in the present appeal under Section 372 of Code of Criminal Procedure filed by the complainant seeking enhancement of sentence pursuant to the conviction order dated 15.02.2012 and order on sentence dated 18.02.2012 passed by learned Trial Court in Sessions Case No.38/09 arising out of FIR No.145/08 registered at Police Station Anand Parbat under Sections 308/342/34 of Indian Penal Code is:

"whether the sentence passed by Trial Court is not proper, inadequate, not commensurate having regard to the nature of offence, circumstances, the manner in which the guilt was committed and the punishment prescribed by law for the offence committed".

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"As to whether the sentence passed by the learned Trial Court on account of inadequacy is not 'unconscionable lenient', 'flee bite', miscarriage of justice which undermine the confidence of public in the efficacy of the criminal judicial system, and would not fail to make a deterring effect on the criminal?"

"As to whether the learned Trial Court is not unjustified for not convicting and sentencing the respondents accused u/s 308 of IPC whereas the petitioner was attacked by them intentionally at his head resulting into one contused lacerated wound to 1.5 c.m. on occipital region of his head?"

2. Before coming to legal proposition, it will be in fitness of things to have a brief narration of the background facts.

3. On 04.10.2008 DD No.26A Ex.PW14/A was recorded at Police Station Anand Parbat at 5.02pm from the operator to the effect that a quarrel has taken place close to Holi Chowk, near Baljeet Nagar Police Booth and it was assigned to ASI Suresh Chand. On the same date i.e. on 04.10.2008 itself at 7.05 pm DD No.30A Ex.PW14/B was made by above ASI that one Sahil along with 2-3 other persons had demolished a newly built wall of one Ramu but Sahil has regretted the same and the call was filed as per statement Ex.PW14/B.

4. On 05.10.2008 at 10.24 am DD No.13A Ex.PW2/A was entered at Police Station Anand Parbat on call from operator that a thief has been caught at F-126B, Holi Chowk, Baljeet Nagar. Thereafter another DD No.14A Ex.PW2/B was recorded at 10.26 am that at Holi Chowk near Ramu ration wala, a chain has been broken and the investigation was assigned to ASI Ramphool. ASI Ram Phool visited the spot with this DD where he met Crl.A.528/2012 Page 2 of 29 Shakeel Ahmad in injured condition. He was sent to Lady Harding Hospital. He made his statement Ex.PW3/A inter alia that he runs a Jeans Pant Shop at Tank Raod, Karol Bagh. On 04.10.2008, his sons Sahil and Suhail aged 11- 12 years were playing at his A-5, Punjabi Basti House when Ramu @ Ram Niwas slapped them. His sons dialled at 100 and informed police but no action was taken against Ram Niwas. In the morning of 05.10.2008 at about 10 am Shakeel went to the ration shop of Ramu and asked him as to why he gave beatings to his two minor sons. Upon this, Ram Niwas and his sons retorted that they would beat his sons at will and while saying so Ram Niwas and his sons gave severe beatings to Shakeel with danda. This statement culminated in registration of FIR under Section 308/34 of IPC. During the course of investigation, the Investigating Officer collected MLC of Shakeel, Ex. PW16/A, according to which Shakeel received grievous injuries with five fractures i.e. fracture of his ulna bone; dislocation of lunate; fracture of 9 & 10 ribs at left side of his chest; fracture of upper end of fevula bone and one contused lacerated wound to 1.5 c.m. on occipital region of his head.

5. Charge-sheet was submitted under Section 308/342/34 IPC. In order to substantiate its case, prosecution in all examined 19 witnesses. Vide impugned judgment dated 15.02.2012, learned Additional Sessions Judge observed that offence under Section 308 IPC is not made out. However, a lesser offence under Section 325 IPC is made out. Accordingly, the accused were convicted for offence under Sections 325/342/34 of IPC. Vide order dated 18.02.2012, the accused were ordered to be released on probation for a period of two years on furnishing personal bond and surety bond for maintaining peace and be of good behaviour. The convicts were also Crl.A.528/2012 Page 3 of 29 directed to compensate the complainant by paying Rs.50,000/- each.

6. The impugned judgment and order on sentence was not challenged by any of the convicts. However, the complainant who sustained grievous injuries was dissatisfied with the leniency shown to the convicts by releasing them on probation. As such, the present appeal under Section 372 Cr.P.C was preferred seeking enhancement of sentence.

7. Initially, the appeal was dismissed vide order dated 09.05.2012 by this Court observing inter alia that the impugned order on sentence does not suffer from any infirmity and illegality and as such, there is no reason to modify the order on sentence. Dissatisfied, Criminal Appeal No.1882/2013 was preferred before Hon‟ble Supreme Court and the appeal was allowed by observing as under:

"Having heard learned counsel for the parties, we are of the opinion that it is not a fit case in which the High Court should have dismissed the appeal in limine.

As stated earlier, the appellant has suffered large number of injuries, including several fractures. The manner and circumstances under which the crime was committed have bearing on the question of sentence. These questions besides others have not been considered by the High Court while dismissing the appeal in limine.

In the result, we allow the appeal, set aside the judgment and order of the High Court and remit the matter back for its reconsideration in accordance with law. "

8. This is how the parties are again before this Court.

9. Heard Dr. Vijender Mahndiya, Advocate for the appellant, Ms. Fizani Hussain, learned APP for the State, Mr. Sumit Mukherjee, Sr. Advocate duly assisted by Sh. O.P. Aggarwal, Advocate for respondent Nos. 2 to 4 Crl.A.528/2012 Page 4 of 29 and also perused the written submissions filed by the appellant as well as counsel for respondent Nos.2 to 4.

10. Learned counsel for the appellant led this Court through the entire proceedings of the case by submitting that pursuant to the complaint made by the appellant, FIR u/s 308/34 of Indian Penal Code was registered. The charges were framed for offence u/s 308/342/34 IPC against the respondent. Respondent Nos.2 to 4 filed a criminal revision petition 192/2010 against the order dated 29th March, 2010 vide which the charges were framed. The matter was remanded back by this court with direction for framing charges after hearing the counsel for accused in this behalf. Thereafter, the charges were reframed vide order dated 10tth May, 2010 for offence punishable u/s 308/325/342/34 IPC against respondent Nos. 2 to 4. Another revision petition was filed by respondent Nos. 2 to 4 but the same was dismissed by this Court vide order dated 5th July, 2010. Respondent No.2 to 4 even filed a transfer petition (Criminal) 120/2010 in the Court of learned Sessions Judge, which was withdrawn on 3rd May, 2010. Respondent Nos. 2 to 4 have filed a criminal complaint along with an application u/s 156(3) of Cr.P.C. for registration of FIR against the appellant u/s 323/452/366/506/34 IPC and application u/s 156(3) was dismissed. However, respondent Nos. 2 to 4 filed revision petition against dismissal of application u/s 156(3) Cr.P.C. but the same was dismissed. The learned Magistrate, however, opted to take cognizance and the matter is still under trial. He further submitted that the conviction order dated 15th February, 2012 remained unchallenged by respondent Nos. 2 to 4 and hence attained finality in respect of them.

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11. It was further submitted that the appellant sustained five injuries at the hands of respondent Nos.2 to 4 which stands proved by PW16-Dr. Sumit Gupta. The nature of injuries and the testimony of the appellant substantiate offence u/s 308 IPC, however, learned Trial Court although observed that deposition of PW3 Shakeel is natural and creditworthy which is duly corroborated by medical evidence and he stood the test of cross-examination and no material which could discredit his version has come on record, yet committed an error in acquitting respondent Nos. 2 to 4 for offence u/s 308 IPC and convicting them only for offence u/s 325 IPC.

12. It was further submitted that grossly inadequate sentence has been imposed upon the respondent only on the basis that accused are running a shop in the neighbourhood of the complainant‟s house and they are family persons which ended up embroiled in a quarrel in heat of passion and they were released on probation without even calling the report of the probation officer and verifying the antecedents of the accused and ignoring the reply filed by Investigating Officer to the bail application wherein it was reported that the accused are threat to the society and people of locality are scared of them. It was further submitted that various cases were registered against respondent Nos. 2 to 4 and copy of FIRs of certain cases were also annexed.

13. Reference was also made to the antecedent report filed by Additional Public Prosecutor for the State for submitting that accused Ram Niwas Kaushik was convicted in at least two cases, as such, he could not have been granted benefit of probation. Grossly inadequate sentence has been awarded to respondent Nos.2 to 4. As such, the appeal filed by the appellant deserves to be allowed. Reliance was placed on:

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(i) Sumer Singhv. Surajbhan Singh, (2014) 7 SCC 323.

(ii) State of Punjab vs. Bawa Singh, (2015) 3 SCC 441.

(iii) State of M.P. vs. Surender Singh, (2015) 1 SCC 222.

14. Learned Additional Public Prosecutor for the State supported the submissions of learned counsel for the complainant by submitting that although the State has not preferred any appeal for enhancement of sentence but while awarding the same, it was incumbent upon the Trial Court to consider the age, attending circumstances, nature of injuries suffered by the victim. Awarding of compensation is only corollary to the substantive sentence. Even if the compensation was awarded to the victim, the accused could not have been let off by being released on probation, inasmuch as respondent No. 2 was involved in several cases out of which in two of the cases, he was even convicted. Being a previous convict, he could not have been granted benefit of probation. Even respondent No.3 was involved in another case, and therefore, he was also not entitled to the benefit of probation. In order to substantiate this plea, the list of cases in which respondent No. 2 and 3 were involved and the fate of those cases have been annexed.

15. Learned counsel for the respondent Nos. 2 to 4 at the outset challenged the maintainability of the appeal on the ground that State has not preferred any appeal for enhancement of sentence and the appeal has been preferred by the complainant. However, proviso of Section 372 Cr.P.C. came into force w.e.f. 31st December, 2009 whereas cause of action in the instant case arose in the year 2008. The proviso has no retrospective effect and, therefore, the appeal, at the instance of the complainant is not Crl.A.528/2012 Page 7 of 29 maintainable. Reliance was placed on National Commission for Women vs. State of Delhi and Anr, (2010) 12 SCC 599.

16. By relying upon State of NCT of Delhi vs. Bishan Singh, 2013(3) JCC 1864; Prem Singh vs. State of Haryana in (2013) 14 SCC 88; Galore Packaging India P. Ltd. vs. Sanjay Sharma, 2012(4) JCC 281, it was submitted that the acquittal order cannot be lightly interfered with by the Appellate Court.

17. On merits, it was submitted that it was the appellant who was the aggressor. Moreover, there was no injury on any vital part of the body of the appellant. As such, no offence u/s 308 IPC is made out. Even otherwise, after considering the background, the family setup and all the attending circumstances, the learned Additional Sessions Judge granted benefit of probation to respondent Nos. 2 to 4 which period has already expired without any complaint. As regards conviction of respondent No. 2 is concerned, it was submitted that respondent No.2 cannot verify the report submitted by the Public Prosecutor for the State as the conviction allegedly took place long back. The police even wanted to open the history sheet of respondent No. 2. As such, proceedings were initiated and the order for opening history sheet of respondent No. 2 was quashed. Moreover, the disputes on the basis of which history sheet of respondent No. 2 was sought to be opened related to disputes between the landlord and tenant and, therefore, were not of such a nature which would disentitle the respondent to relief of probation. By relying upon State of Karnataka vs. Muddappa (1999) 5 SCC 732 it was submitted that even Hon‟ble Supreme Court granted benefit of probation for offence u/s 304 Part II. Moreover, Crl.A.528/2012 Page 8 of 29 respondent No.2 is 59 years old and is suffering from cancer. The list filed by the State pertains to very old cases and now respondent is not involved in any case which clearly shows that he has reformed himself. He also remained in jail for a period of 15 days. Under the circumstances, the appeal is bereft of merits. Respondents are still ready and willing to pay more compensation to the victim. Moreover, while remitting the case back for reconsideration by setting aside the judgment of High Court, Hon‟ble Supreme Court made it clear that no opinion on merits of the case was expressed. As such, the appeal be dismissed.

18. Rebutting the submissions of learned counsel for respondent Nos. 2 to 4 regarding maintainability of the appeal, it was submitted by learned counsel for appellant that the impugned order dated 15th February, 2012 and 18th February, 2012 were passed much after the insertion of proviso to Section 372 Cr.P.C., therefore, the appeal is maintainable. Reliance was placed on Parmeshwar Mandal vs. State of Bihar and Ors.,2014 Crl.L.J.1046. Reliance was also placed on Jagmohan Bhola vs. Dilbagh Rai Bhola and Ors., 2011(2) JCC 772 for submitting that the proviso to Section 372 is a special provision and is not limited to appeals against acquittal. Reliance was also placed on Balasaheb Rangnath Khade vs. State of Maharashtra & Ors., 2012 SCC Online Bom.635. It was further submitted that the right to appeal u/s 372 is available to the victim against the order of acquittal or conviction for a lesser offence or imposing inadequate compensation. The instant is a case of acquittal of the respondents No. 2 to 4 u/s 308 IPC as the charges against them stood framed u/s 308/325/342/34 IPC but respondent Nos. 2 to 4 were convicted for offence u/s 325/342/34 IPC.

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19. By placing reliance on Tara Chand Damu Sutar vs. State of Maharashtra, AIR 1962 SC 180 , it was submitted that the word „acquittal‟ does not mean that the trial must have ended in a complete acquittal of the charge but acquittal of the offence charged and conviction for a minor offence is included in the word „acquittal‟. As such, the appeal is maintainable.

20. Before coming to rival submissions of learned counsel for the parties, it will be in the fitness of things to reproduce Section 372 of Code of Criminal Procedure, 1903, under which the instant appeal has been preferred:

"372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

[provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction or such Court.]"

21. Ordinarily, no appeal lies from any judgment or order of the Criminal Court except in the manner provided by the Criminal Procedure Code, or any other law for the time being in force. However, in order to safeguard the interest of the victims, the proviso was added which came into force with effect from 31.12.2009 which conferred a right upon the victim to prefer an appeal against the acquittal of the accused or conviction for lesser offence or imposing inadequate compensation. The statement of objects and reasons for incorporating proviso to Section 372 Cr.P.C by way of Cr.P.C Amendment 2008 in para 2 amongst other contains the following:-

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"At present the victims are the worst sufferers in a crime and they did not have much role in the Court proceedings. They need to be given certain rights and compensation, so that there is no distortion in the criminal justice system."

22. The submission of learned counsel for the respondents no.2 to 4 that the appeal is not maintainable since the cause of action arose on 05.10.2008 when the incident in question took place, whereas the proviso came to be added in Section 372 with effect from 31.12.2009 deserves outright rejection as the right to file appeal accrued in favour of victim only after the pronouncement of judgment and order on sentence dated 15.02.2012 and 18.02.2012 whereby the respondent Nos.2 to 4 were acquitted of offence under Section 308 IPC and were released on probation. That being so, in view of the proviso appended to Section 372 Cr.P.C, the appeal preferred by the appellant is maintainable in law. In Parmeshwar Mandal(supra), High Court of Patna also examined the applicability of the proviso to Section 372 of Cr.P.C. and held in para 46 as under:-

"46. .........As already discussed above, this Court endorse the view that remedy of appeal under proviso to Section 372 has to be held available to a victim against all orders, which have been passed on or after 31st December, 2009 by a criminal court, irrespective of the date of occurrence or registration of FIR or filing of a complaint or date of cognizance of offence."

23. National Commission of Women (supra) relied upon by learned counsel for respondent nos. 2 to 4 is inapplicable under the facts of appeal in hand as the same relates to the filing of Special Leave to Appeal under Section 136 of the Constitution of India and not an appeal under Section 372 of Cr.P.C. Moreover, the sentence in that case was passed by Trial Court on 21.04.2008. The High Court disposed of the appeal on 09.02.2009. The proviso was inserted in Section 372 (Act 5 of 2009) w.e.f 31st December, 2009. Also, this Section confers a right only on a victim and Crl.A.528/2012 Page 11 of 29 does not envisage an appeal against an inadequate sentence. The special leave petition challenging the order of High Court was filed by National Commission of Woman and not by the victim which was held to be not maintainable.

24. In Jagmohan Bhola(supra) it was observed by the Division Bench of this High Court as under:-

"...........The proviso to Section 372 is a special provision and it deals with three different situations, namely, appeals against acquittal, conviction for a lesser offence and inadequacy of compensation. The proviso to Section 372 is not limited to appeals against acquittals. All the appeals, whether they are against acquittal or conviction for a lesser offence or inadequate compensation, have been placed on the same footing."

25. The right to appeal u/s 372 Cr.P.C is available to the victim against the order of acquittal or conviction for a lesser offence or imposing inadequate compensation. The instant is the case of acquittal of the respondent No.2 to 4 u/s 308 IPC as the charges against them stood framed u/s 308/325/342/34 IPC but conviction made u/s 325/342/34 IPC. The Hon‟ble Supreme Court in the case of Tarachand Damu Sutar (supra) has held in Para 5 that:

"5. The argument raised on behalf of the appellant was that as the appellant was acquitted of the offence of s. 302 and was convicted under s. 304 Part I it was a case of reversing an order of acquittal. The argument on behalf of the State was that the word acquittal meant complete acquittal. The decision of this must depend upon the construction of the word "acquittal". If a person is acquitted of the offence charged and is convicted of a lesser offence, as in the present case, can it be said that he was acquitted and the High Court had on appeal reversed the order of acquittal." In our opinion the word "acquittal does not mean that the trial must have ended in a complete acquittal of the charge but acquittal of the offence charged and conviction for a minor offence (than that for which the accused was tried) is included in the word "acquittal". This view has the support of a judgment of the Judicial Committee of the Privy Council in Kishan Singh v. Emperor.55 Ind App 390:(AIR 1928 PC 254)."

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26. Various judgments viz. Bishan Singh(supra), Prem Singh(supra) and Galore Packaging (supra) relied upon by learned counsel for the respondents no.2 to 4 do not come to their aid as all these judgments pertains to filing an appeal against acquittal of accused where the parameters are entirely different. In case of acquittal, there is double presumption in favour of accused, firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a Competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court. Moreover, if two reasonable conclusions are possible on the basis of evidence on record, the appellate court should not disturb the findings of acquittal recorded by the Trial Court. In the instant case, none of the respondents no.2 to 4 were acquitted by learned trial court. In fact, all of them were convicted under Section 325/342/34 of Indian Penal Code. Undisputedly, the order of conviction has not been challenged by any of the respondents no.2 to 4 as such the same attained finality.

27. In this background, the questions which require consideration is:-

(i) Whether the learned Additional Sessions Judge was justified in convicting respondents 2 to 4 for offence u/s 325 IPC instead of 308 IPC;

(ii) whether while releasing the appellant on probation for a period of two years, adequate sentence was imposed upon them or not and

(iii) whether the facts and circumstances of the case justified release Crl.A.528/2012 Page 13 of 29 of respondents no.2 to 4 on probation.

28. 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 respect of a criminal offence. A punishment should not be disproportionately excessive. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors. A Court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard being had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of Court in such situations becomes a complex one. The same has to be performed with due reverence for Rule of Law and the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a- priori notion.

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29. In Sumer Singh (supra), substantially similar question of law was involved as the Trial court convicted the accused persons for various offences u/s 307,326,323,447,147,307,149 IPC. On appeal, the High Court converted the conviction from Section 307 IPC to Section 308 IPC while maintaining the conviction u/s 147/148/326 & 323 IPC read with Section 149 IPC and restricted the period of sentence to 7 days which the respondent had already undergone and imposed a fine of Rs.50,000/-, in default of payment of fine, to suffer additional rigorous imprisonment of 2 years. The injured preferred SLP for enhancement of sentence. The Hon‟ble Supreme Court referred to various other decisions where substantially similar question was involved and it was observed:-

"22.. In Sham Sunder v. Puran and Another. AIR 1991 SC 8 the High Court had convicted the accused-appellant therein under Section 304 Part-I IPC and reduced the sentence to the term of imprisonment already undergone, i.e. six months, while enhancing the fine. In that context, the Court opined that the sentence awarded was rather inadequate. Proceeding further it has been opined as follows:-

"No particular reason has been given by the High Court for awarding such sentence. The court in fixing the punishment for any particular crime should take into consideration the nature of the 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 the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. We are of opinion that to meet the ends of justice, the sentence has to be enhanced."

After so stating the Court enhanced the sentenced to one of rigorous imprisonment for a period of five years.

23. In Sevaka Perumal and Anr. v. State of Tamil Nadu (1991) 3 SCC 471, after referring to the decision in Mahesh v. State of M.P. (1987) 3 SCC 80, the Court observed 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 serious threats. The Court further observed that if the courts do not protect the injured, the injured would Crl.A.528/2012 Page 15 of 29 then resort to private vengeance and, 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.

24. In State of M.P. v. Saleem alias Chamaru and Anr. (2005) 5 SCC 554, the Court opined that the object of sentencing should be to protect society and to deter the criminal that being the avowed object of law. It further ruled that it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

25. In Ravji alias Ram Chandra v. State of Rajasthan (1996) 2 SCC 175 the Court while giving emphasis on relevance of imposition of adequate sentencing in the social context observed thus:

"10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". In our view, if for such heinous crimes the most deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance."

26. In State of Karnataka v. Krishnappa, AIR 2000 SC 1470, a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and 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.

27.. In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532, the trial court had convicted the Appellant therein Under Section 308Indian Penal Code along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the Appellant were affirmed. By the time the matter came to be considered by this Court, the Appellant had already Crl.A.528/2012 Page 16 of 29 undergone eight months in custody. While reducing the sentence, the Court observed as under:

"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."

28. In Shyam Narain v. State (NCT of Delhi) (2013) 7 SCC 77, it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed 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 his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

29. In Guru Basavaraj v. State of Karnataka (2012) 8 SCC 734, the Court, discussing about the sentencing policy, had to say this:

"33. There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the Crl.A.528/2012 Page 17 of 29 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."

30. In Rattiram v. State of M.P. (2012) 4 SC 516 though in a different context, it has stated that:

"64....the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries....it is the duty of the court to see that the victim's right is protected."

31. In State of Madhya Pradesh v. Najab Khan and Ors. (2013) 9 SCC 509, the State had preferred an appeal as the High Court, while maintaining the conviction Under Section 326 Indian Penal Code read with Section 34 Indian Penal Code, had reduced the sentence to the period already undergone, i.e., 14 days. In that context, the Court, after referring to number of authorities and reiterating the principles, stated 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. It was further observed that undue sympathy in imposing inadequate sentence would do more harm to the justice dispensation system and 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 courts 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. After so stating the sentence imposed by the High Court was set aside and that of the trial Judge, whereby he had convicted the accused to suffer rigorous imprisonment for three years, was restored. Similar principle has been assertively reiterated in Hazara Singh v. Raj Kumar and Others. (2013) 9 SCC 516."

30. After referring to the aforesaid principles, on factual matrix of that case, it was observed as under:-

"32.........On a perusal of the judgment of the High Court, we find that no reason whatsoever has been ascribed. The manner in which the crime was committed speaks eloquently about its brutality. The gravity of the offence Crl.A.528/2012 Page 18 of 29 speaks for itself. A young man's hand has been cut off from the wrist. How the fear psychosis would have reigned in the society at the relevant time does not require Solomon's wisdom to visualize. It is difficult to fathom what possible reason the High Court could have envisioned or thought of while reducing the sentence to the period already undergone, i.e., seven days for such an offence. Possibly, the High Court felt that increase of fine amount would serve the cause of justice and ameliorate the grievance of the victim and pacify the collective cry. We are not inclined to think so.

33. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion. It is because the ringing of poignant and inimitable expression, in a way, the warning of Benjamin N. Cardozo in The Nature of the Judicial Process........

"The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life'."

34. In this regard, we may usefully quote a passage from Ramji Dayawala and Sons (P.) Ltd. v. Invest Import, AIR 1981 SC 2085:

"when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. 'Discretion', said Lord Mansfield in R. v. Wilkes ((1770) 98 ER 327), 'when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular' (see Craies on Statute Law, 6th Edn., p.273).

35. In M/s. Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri AIR 2005 SC 15 the Court observed:

"According to Black's Law Dictionary "Judicial discretion" means the exercise of judgment by a judge or Court based on what is fair under the circumstances and guided by the rules and principles of law; a Crl.A.528/2012 Page 19 of 29 Court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word "discretion" connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27 Corpus Juris Secundum page 289). When it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him."

Thus, the judges are to constantly remind themselves that the use of discretion has to be guided by law, and what is fair under the obtaining circumstances.

36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence Crl.A.528/2012 Page 20 of 29 is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the Respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial judge."

31. This view was reiterated in Bawa Singh(supra) and Surender Singh(supra).

32. Things are substantially the same in the instant case. Although at various places in the impugned judgment, reference has been made to the conduct of the accused and injuries sustained by the complainant; a lenient view was taken by releasing the accused on probation. The mitigating circumstances which prevailed upon the learned trial court while releasing the respondents no.2 to 4 on probation were the facts that the convicts had clean antecedents; accused Ram Niwas was aged about 55 years, he was a cancer patient and undergone surgery; his wife was also a heart patient and his sons were also married having children. According to learned Trial Court, the convicts were running a shop in the neighbourhood of complainant and the quarrel took place in heat of passion as such, they deserve an opportunity to reform. However, considering the fact that the complainant suffered five fractures at the hands of accused and had to remain immobile under the treatment for almost two months, he was required to be compensated, as such compensation of Rs.50,000/- each was awarded to him.

33. The submission of learned Senior counsel for respondents no.2 to 4 that the appellant was the aggressor is unsustainable. Record reveals that on Crl.A.528/2012 Page 21 of 29 04.10.2008, accused Ram Niwas gave beatings to minor sons of the complainant. The minor sons made a call to the police by dialling 100 number but the matter was shown to have settled as per Exhibit PW-14/B. The trouble, however, started next morning when complainant protested to Ram Niwas regarding beating of his minor sons. At that juncture, Ram Niwas and his two sons gave beatings to the complainant, black and blue with wooden sticks. Not only that, he was dragged inside their ration shop where accused Ram Niwas first gave a call at 100 number that a thief has been caught and thereafter again made a call that a chain has been snatched by wife of complainant. Besides noting the contradictions appearing in the stand taken by the accused persons, learned Trial Court also observed that it is absolutely unbelievable that PW3 Shakeel who is a business man having his own retail shop of jeans pant at Karol Bagh and owns his own car would indulge in snatching of chain of the accused despite being resident of the same locality. It was further observed that the contradictory versions which have come on record from the side of the defence are indicative that the plea of chain snatching was introduced when accused persons realised that they had ended up thrashing Shakeel very badly. Besides the complainant suffered grievous injuries as reflected in the MLC:-

5 bone fracture i.e. fracture of his ulna bone;

        (i)      Dislocation of lunate;
        (ii)     Fracture of 9 &10 ribs at left side of his chest;
        (iii)    Fracture of upper end of fevula bone;
        (iv)     One contused lacerated wound to 1.5 c.m. on occipital region of
                 his head.

34. It was also noted in the judgment that due to the grievous injuries sustained by the victim, he had to remain immobile and under treatment for almost two months. That being so, while awarding sentence to the accused Crl.A.528/2012 Page 22 of 29 persons, the Court should not have overlooked the conduct of the accused persons whereby they dragged and locked the complainant in a room of their house. Not only that, they made false complaints by dialling 100 number and levelled false allegations of fighting, demolition and chain snatching against the complainant/his children and the injuries suffered by him, coupled with the humiliation which he had to face for no rhyme or reasons at the hands of the accused. Neither can it be said that the appellant was the aggressor nor that the incident took place in the spur of moment. Besides causing grievous injuries on various parts of the body, even injury was caused on vital part of the body, i.e., head, as such the cumulative circumstances made out a case under Section 308 IPC. Even if it is taken that instead of Section 308 IPC, Section 325 IPC is made out, even then, since the conviction is for a lesser offence, therefore, appeal u/s 372 Cr.P.C. is maintainable. The punishment prescribed for both the offence u/s 308 IPC and 325 IPC are substantially the same as in both the cases, the sentence prescribed is seven (7) years and fine.

35. The question for consideration is whether the antecedents of the case warrant release of respondent Nos. 2 to 4 on probation.

36. Section 360 Cr.P.C. provides for the contingencies when an order to release on probation of good conduct or after admonition can be passed. Sub-section 1 of Section 360 which has bearing in the instant case reads as under:-

" S.360. Order to release on probation of good conduct or after admonition (1) When any person not under twenty- one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty- one years of age or any woman is-

Crl.A.528/2012 Page 23 of 29

convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before, such Magistrate, who shall dispose of the case in the manner provided by sub- section (2)."

37. This Section applied to all kinds of offenders whether under or above 21 years of age. This section is intended to attempt possible reformation of an offender instead of inflicting on him the normal punishment of his crime. While extending benefit of this Section, the discretion of the Court has to be exercised having regard to the circumstances in which the crime was committed, the age, character and antecedents of the offender. Such exercise of discretion needs a sense of responsibility. The offender can be released on probation of good conduct under this Section only when the Court forms an opinion, having considered the circumstances of the case, the nature of offence and the character of the offender, that in a particular case, the offender should be released on probation of good conduct. The Section itself is clear that before applying the Section, the Court should carefully take into consideration the attendant circumstances.

38. Admittedly before granting respondent Nos.2 to 4 benefit of probation, no report of the probation officer was called. The circumstances Crl.A.528/2012 Page 24 of 29 of the case did not warrant release of respondent Nos. 2 to 4 on probation as not only on a trivial issue when the complainant had gone to enquire as to why his sons were beaten a day before, all the three respondents gave him severe beatings resulting in grievous injuries and his immobilization for a period of two months but also they tried to implicate him in false cases by lodging different DDs regarding theft, snatching of chain, which were assigned to ASI Ramphool, who after visiting the place found that no case of snatching was committed and the appellant was found lying injured. Moreover, learned Additional Sessions Judge fell in error in observing that antecedents of respondents were clean. The appellant in the written submissions has given the list of following cases registered against respondent Nos.2 to 4:-

                 S.No.   FIR No.   U/S                       Police Station
                 1.      122/88    342/451/506/34 IPC        Anand Parbat
                 2.      168/88    452/308/34 IPC            -do-
                 3.      73/89     506/323 IPC               -do-
                 4.      212/92    147/148/149/336/295 IPC   -do-
                 5.      210/96    7-10/55 E.C. Act          -do-
                 6.      78/08     147/148/149/323 IPC       -do-
                 7.      145/08    325/308/342/34 IPC        -do-
                 8.      199/08    323/354/504 IPC           -do-
                 9.      05/09     452/324/506/34 IPC        -do-

39. Copy of the FIR No.78/2008 dated 6th June, 2008, copy of FIR No. 199/2008 dated 18th December, 2008 and copy of the FIR No. 05/2009 dated 30th January, 2009 registered against respondent Nos.2 to 4 were also attached. There was also a report dated 3rd November, 2008 submitted by the Investigating Officer of the case before the learned Metropolitan Magistrate wherein while opposing the bail application filed by respondent No.2, it was stated that accused are dangerous criminals and earlier also has Crl.A.528/2012 Page 25 of 29 been arrested in six cases. It was further reported that their terror is amongst the people. Besides that, the learned Additional Public Prosecutor for the State has also placed on record the involvement of respondent No.2 and the status of the cases to show that since respondent No.2 was involved in as many as seven(7) cases and was convicted in two(2) cases.

           S.No. FIR      Date       U/s                   P.S         Status
                 No.
           1.    128/88   04/10/88   342/451/506/34 IPC    Anand       Acquitted
                                                           Parbat
           2.    168/88   12/04/88   452/308/34 IPC        Anand       Convicted
                                                           Parbat
           3.    73/89    14/04/89   504/506/323/34 IPC    Anand       Acquitted
                                                           Parbat
           4.    212/92   24/09/92   147/148/149/336/295   Anand       Acquitted
                                     IPC                   Parbat
           5.    210/96   24/07/96   7/10/55 EC Act        Anand       Acquitted
                                                           Parbat
           6.    78/08    06/06/08   147/148/149/323/435   Anand       Quashed
                                     IPC                   Parbat
           7.    145/08   05/10/08   308 IPC               Anand       Convicted
                                                           Parbat

40. As regards Sudhir Kaushik, his involvement in following cases and the status was reported as under:-

           S.No. FIR      Date       U/S                    P.S.        Status
                 No.
           1.    78/08    06/06/08   147/148/149/323/435    Anand       Quashed
                                     IPC                    Parbat
           2.    145/08   05/10/08   342/308/34 IPC         Anand       Convicted
                                                            Parbat

41. However, as regards Naveen Kaushik it was reported that except the following case, he was not involved in any other case:-

           S.No. FIR      Date       U/S                   P.S.        Status




Crl.A.528/2012                                                       Page 26 of 29
                  No.
           1.    145/08   05/10/08   308 IPC              Anand      Convicted
                                                          Parbat

42. In view of this status report which has not been challenged by respondent Nos. 2 to 4, which makes it clear that respondent No. 2 was convicted in case FIR No.168/88 u/s 452/308/34 IPC, as such, being a previous convict, in view of Section 360 of the Cr.P.C, he could not have been released on probation. . Mere fact that he was convicted long back is no ground to extend the benefit of probation. Even as regards respondent no.4, he was involved in case FIR No.78/08 u/s 147/148/149/323/435 IPC. What were the grounds for quashing of FIR is not known but at least this shows his antecedents.

43. Under the circumstances, in view of the antecedents of respondent nos. 2 to 4, coupled with the attending circumstances in which the crime was committed, it was not a fit case where the benefit of Section 360 Cr.P.C should have been granted to respondents. Muddappa(supra) relied upon by learned counsel for respondent does not help them as in that case it was observed by Supreme Court that whether the benefit of the probation of Offender‟s Act could be extended in any particular case depends on the circumstances of that case. There was no statutory bar for application of the Act to an offence u/s 304 Part II. After considering the relevant material, High Court released the accused as probation which was not interfered with by the Hon‟ble Supreme Court.

44. In the instant case, respondent no.2 was a previous convict, therefore he could not have been released on probation as provided u/s 360 Cr.P.C.

Crl.A.528/2012 Page 27 of 29

Even as regards respondent no.4, he was involved in other cases. Attending circumstances of the case, coupled with the nature of injuries suffered by appellant did not warrant release of any the accused on probation.

45. The award of compensation to appellant is not ancillary to other sentence but is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to the crime. Therefore, in Ankush Shivaji Gaekwad v. Staet of Maharashtra(2013) 5 SCC 252; Laxmi v. Union of India, (2014) 4 SCC 427; Abdul Rashid v. State of Odisha & Ors., (2014) 1 ILR, V.L.3 202 and Suresh v. State of Haryana, 2015(1) RCR(Criminal) 148, it was impressed upon that provisions incorporated under Section 357 and 357A of the Code should be resorted to while awarding sentence.

46. In view of the injuries sustained by the appellant, even otherwise, it was a fit case where the appellant was liable to be compensated as per the mandate of Section 357 Cr.P.C. During the course of argument, learned counsel for respondent Nos. 2 to 4 gave an offer to increase the amount of compensation, which was not accepted by the complainant by submitting that such an offer was also made before Hon‟ble Supreme Court but this proposal was not accepted by the appellant. Moreover, the compensation will not ameliorate the grievance of the victim. The appellant being a victim of crime cannot be a "forgotten man" in the criminal justice system. It is he who has suffered the most. This is apart from other factors like loss of reputation, humiliation etc. The honour which is lost cannot be Crl.A.528/2012 Page 28 of 29 recompensed. Under the circumstances, it is a fit case which calls for interference in the sentence awarded by the learned Additional Sessions Judge. As such the sentence imposed by the learned Additional Sessions Judge by granting probation to respondents 2 to 4 is set aside and respondents 2 to 4 are sentenced to suffer rigorous imprisonment for a period of two years.

47. The appeal is accordingly allowed. Pending applications, if any, also stand disposed of. Respondent Nos. 2 to 4 are directed to surrender before the learned Additional Sessions Judge on 30.05.2015, failing which learned Additional Sessions Judge is directed to take necessary steps to get them arrested for serving the sentence. Needless to say, respondents 2 to 4 will be entitled to benefit of Section 428 Cr.P.C.

Copy of the judgment along with Trial Court record be sent back.

(SUNITA GUPTA) JUDGE MAY 26, 2015 rs Crl.A.528/2012 Page 29 of 29

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