Madhya Pradesh High Court
Javed Khan vs Jagdish on 3 January, 2017
Cr.R. No.944/2014
03.01.2017
Shri Yashpal Rathore, learned counsel for the petitioner.
Shri L.S. Chandiramani, learned counsel counsel for the
respondent No.1.
Shri Himanshu Joshi, learned Public Prosecutor for the respondent No.2/State.
This revision has been filed under Section 397 and 401 of Cr.P.C. for enhancement of sentence awarded to respondent No.1 in the judgment dated 30.05.2014 passed by III ASJ, Dhar in criminal appeal No.24/2013 by which he maintained the judgment of conviction passed by JMFC Dhar in Criminal case No.324/2009 whereby he found respondent No.1 guilty for the offence u/S.199 & 193 of IPC but reduced the sentence from one year RI to "Till rising of Court" as awarded by the trial court.
Brief facts of the case are that on 11.02 09 respondent no.1 lodged the report at P.S .Pithampur averting that he saw accused Abid, Salim, Shahid and Shakil assaulting Gulazar . On that report police registered crime No. 109/08 for the offence U/S 307 IPC against the aforementioned accused and after Gulzar's death converted the offence to U/s 302 IPC and after completion of investigation police filed the charge-sheet on which S.T. No. 179/08 was registered which was tried by the II ASJ Dhar. He framed the charge against the Abid, Salim and Shahid U/S 302, 302/34 IPC and tried the case. During trial complainant of the case respondent No.1 turned hostile and did not support the prosecution case. The II ASJ Dhar passed the judgment on 10.02.2009 in the case. Although he convicted the accused Abid U/S 302 and Salim, Shahid U/S. 302/34 but he also ordered that a complaint be filed against respondent No.1 for giving false evidence in the S.T. No.179/08. On that the then criminal reader of the court filled the complaint against the respondent No.1 in the Court of Judicial Magistrate First Class Dhar under Section 199 and 193 of IPC. Learned JMFC registered the complaint as criminal case No.324/09 and framing the charges against respondent No.1 u/S.193 and 199 of IPC passed the judgment against him on 21.01.2013, found respondent No.1 guilty u/S.193 and 199 IPC and sentenced to undergo one year RI and fine of Rs.200/- in each sections. Against that judgment respondent No. 1 filed criminal appeal No.24/2013 before III ASJ Dhar. In the appeal, he maintained the conviction of respondent No.1 u/S.193 and 199 of IPC but reduced the sentence from one year RI to "Till rising of Court. Being aggrieved from that sentence the petitioner ( father of deceased Gulzar) filed this revision.
Learned counsel for the petitioner submits that in criminal appeal No.24/2013 learned III ASJ, Dhar also found that respondent No.1 gave false evidence in S.T. No.179/08 and maintained the judgment of conviction passed by JMFC Dhar in Criminal case No.324/2009, whereby he found respondent No.1 guilty for offence u/S.199 & 193 of IPC and under Section 193 and 199 IPC maximum punishment prescribed is of seven years. The appellate Court has wrongly given sympathy to respondent No.1 on the ground that of conclusion of criminal proceeding took five years and thereby reducing the sentence from one year to till rising of Court. So revision be allowed and sentence awarded to respondent No.1 Jagdish be enhanced from till rising of the Court to three years R.I. with fine of Rs 50,000.
The learned counsel of the respondent No.1 opposed the prayer.
In this regard, learned Counsel for the petitioner placed reliance on the apex Court judgment in the matter of Sadhupati Nageswara Rao vs. State of Andhra Pradesh (2012) 8 SCC 547 wherein the apex Court held that on the ground of much lapse of time after incident - Courts cannot take lenient view in awarding sentence on ground of sympathy or delay. He also place reliance in the case of Hazara Singh vs. Raj Kumar and others (2013) 9 SCC 516 wherein apex Court held that Principles for sentencing- proportionality-proportionality in sentencing-special reasons must be assigned-undue sympathy for accused not justified- rights of victim as well as society at large should be kept in view- corrective and deterrence principles should be adopted on basis of factual matrix-cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed-it should be proportionate to the gravity of offence. He further placed reliance in the matter of State of Uttar Pradesh vs. Sanjay Kumar (2012) 8 SCC 537 wherein apex Court held that Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and the criminal history of the accused, are used to prescribe punishment. Thus the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded.
It is clear from the above pronouncement of the Apex court that where offence is graver and accused has longer criminal record more severe punishment should be awarded to him. but in this case although both the trial Court as well as appellate court found it proved that respondent no.1 is gave false evidence in S.T. No.179/08 but learned III ASJ Dhar reduced the sentence from one year RI to "Till rising of Court. assigning the reason that respondent no 1 is a truck driver and 1st offender and also facing trial for 5 years.
It is not the case of applicant that respondent is a habitual offender. Besides, it is clear from judgment of II ASJ Dhar passed in S.T. No 179/08 that even after respondent No.1 turning hostile, he convicted the accused which shows that judgment was not affected by his turning hostile. In these circumstances, if learned appellate Court reduced the sentence of respondent No.1, then there is no need to interfere in the judgment of appellate Court in his revision. Hence this revision is dismissed.
(RAJEEV KUMAR DUBEY) JUDGE JYOTI