Himachal Pradesh High Court
Siya Ram vs State Of Himachal Pradesh on 27 February, 2015
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Appeal No.341 of 2014
Date of Decision : February 27, 2015
.
Siya Ram ...Appellant.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting?
1
For the Appellant : Ms Anu Tuli, Advocate.
For the Respondent : Mr. R.S.Verma & Mr. HKS
Thakur, Additional Advocates
r General.
Sanjay Karol, Judge (Oral)
As prayed for, de-linked from Cr.A No.298 of 2014, titled as Rakesh Kumar v. State of Himachal Pradesh.
2. Appellant-convict Siya Ram, hereinafter referred to as the accused, has assailed the judgment dated 12.8.2014/13.8.2014, passed by Special Judge-1, Sirmaur District at Nahan, Himachal Pradesh, in Sessions Trial No.26- ST/7 of 2013, titled as State of Himachal Pradesh v. Rakesh Kumar and another, whereby he alongwith his co-accused Rakesh Kumar, stands convicted for having committed an Whether reporters of the local papers may be allowed to see the judgment?
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offence punishable under the provisions of Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 .
(hereinafter referred to as the Act).
3. After the matter was heard for some time, under instructions, learned counsel for the appellant-accused Siya Ram, chose not to press the appeal on merits. However, he prayed for reduction in the sentence, so imposed by the trial Court.
4. Mr. R.S. Verma, learned Additional Advocate General, invites attention of the Court to various documents and testimonies of the witnesses, establishing, beyond reasonable doubt, guilt of the accused. Court is satisfied with the findings returned and the reasons assigned by the trial Court for convicting the accused of the charged offences. Charas recovered from the bag (pithu) carried by the accused, who was a pillion rider, is of 885 grams.
5. With profit, I may extract the following passages on the question of sentencing from the Book: Sentencing Law and Practice, authored by C.K. Boyle and M.J. Allen:
"A problem which frequently confronts a sentencer is that of establishing the factual basis of the offence on which to assess the appropriate sentence. As the sentence imposed should not be more severe than the offence merits, it is important that the facts of the offence are accurately established before ::: Downloaded on - 15/04/2017 17:40:16 :::HCHP ...3...
sentence is passed. Where there has been a guilty plea, the factual basis of the offence may not be apparent, or the defendant may have pleaded guilty on the basis of his own view of .
the offence which may not coincide with that of the prosecution. Even in cases where there has been a full trial and a conviction, the factual basis of the offence may not be clear from the evidence and the jury verdict. For example, a verdict of guilty of manslaughter on an indictment for murder, could be arrived at in one of several ways. If the judge is to pass the appropriate sentence, he must be able to arrive at some conclusion as to the facts of the offence (see, e.g. Wheeler [1967] 1 W.L.R. 1531; Hudson (1979) 1 Cr.App.R.(S.) 130; Campbell [1980] Crim.L.R. 248). Similarly, where an offender is convicted of a strict liability offence, it is important to know whether he acted intentionally, recklessly, negligently or without fault (see Lester (1976) 63 Cr.App.R. 144). A body of case law is gradually building up in relation to how this factual basis may be established and what evidence may be taken into consideration in establishing it."
"Each criminal offence is characterised by typically recurring factual situations of varying degrees of gravity and, accordingly, the severity of the sentence to be imposed must reflect these degrees of wickedness (See Thomas, op.cit.,p33). Ranges of sentence appropriate to each level of gravity have been developed over the years and can be identified from the decisions of the Court of Appeal. The maximum sentence available for a particular offence is reserved for the worst from that offence (Byrne (1975) 62 Cr.App.R. 159; Smith [1976] Crim.L.R.
468). Using their experience and knowledge of the decisions of other judges and of the Court of Appeal, particularly cases where the court seeks to give guidelines (See, e.g. Mohammed (1974) 60 Cr.App.R.141; Taylor, Simons and Roberts [1977] 1 W.L.R. 612; Aramah (1982) 4 Cr.App.R.(S.) 407; Wood [1984] Crim.L.R.305;::: Downloaded on - 15/04/2017 17:40:16 :::HCHP
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Clarke (1982) 4 Cr.App.R.(S.) 197), judges must first allocate the offence to the appropriate sentence range. There is a normal bracket of terms of years within which the sentence for an .
offence is to be assessed. This bracket forms the starting point for determining the appropriate sentence. From this starting point the final sentence will be calculated by taking into account any aggravating factors which lead to a sentence towards the upper end of the bracket. If appropriate, the court will also consider any mitigating factors which may lead to the imposition of a lesser sentence. In some circumstances the court may consider it inappropriate to give a discount for mitigating circumstances in order to achieve some other penal objective such a deterrence, but the sentence must be proportionate to the facts of the case, and generally must not exceed that r range for that type of offence."
6. I find that accused is of 23 years of age. He is not a hardened criminal, it is his first offence and is sole bread earner in the family. Even trial Court has taken note of such fact. The apex Court in Modi Ram v. The State of Madhya Pradesh, (1972) 2 SCC 630, has laid down certain principles on the issue of sentencing, which read as follows:
"4. ................The accused persons found guilty may be hardened or professional criminals having taken to the life of crime since long, or they may have taken to crime only recently or may have committed the crime under the influence of bad company or again commission of a solitary offence may be due to provocative wrongful action seriously injuring the feelings and sentiments of the accused. Human nature being what it is men are at times moved by the impulse of the moment rather than by rational, cool, calculated estimate of the future ::: Downloaded on - 15/04/2017 17:40:16 :::HCHP ...5...
good and evil. At such moments they are ordinarily inclined to be ready to face any future evil falling short of the inevitable. Keeping in view the broad object of punishment of criminals .
by Courts in all progressive civilised societies true dictates of justice seem to us to demand that all the attending relevant circumstances should be taken into account for determining the proper and just sentence. The sentence should bring home to the guilty party the consciousness that the offence committed by him was against his own interest as also against the interests of the society of which he happens to be a member. In considering the adequacy of the sentence which should neither be too severe nor to lenient the Court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) rand station in life of the offender.....................".
7. Apex Court in Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635, also laid down following factors, though not exhaustive, to be kept in mind at the time of granting sentence to the accused: (i) Motive or previous enmity; (ii) Whether the incident had taken place on the spur of the moment; (iii) intention/knowledge of the accused while inflicting the blow or injury; (iv) whether the death ensued instantaneously or the victim died after several days; (v) gravity, dimension and nature of injury; (vi) age and general health condition of the accused; (vii) whether the injury was caused without pre-meditation in a sudden fight;
(viii) nature and size of weapon used for inflicting the injury ::: Downloaded on - 15/04/2017 17:40:16 :::HCHP ...6...
and the force with which the blow was inflicted; (ix) criminal background and adverse history of the accused; (x) whether .
the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(xi) number of other criminal cases pending against the accused; (xii) incident occurred within the family members or close relations; and (xiii) conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
8. In the instant case, I find that accused has no past history of violence or criminal record. It is his first offence. There is nothing adverse qua his conduct either during trial or pendency of the appeal. Also, he has maintained good conduct. There is no other male member in his home to look after his family and earn livelihood. He has a long way ahead in life and I find that he has shown remorse and repentance. As such, accused Siya Ram deserves leniency. Accordingly, the sentence of imprisonment qua accused Siya Ram is reduced from eight years rigorous imprisonment and fine of `80,000/-, and in default of payment of fine to further undergo simple imprisonment for a period of six months, to rigorous imprisonment for a period ::: Downloaded on - 15/04/2017 17:40:16 :::HCHP ...7...
of five years and fine of `50,000/- and in default of payment of fine to further undergo simple imprisonment for a period .
of six months. Ordered accordingly.
Hence, with modification in the sentence part of judgment of the trial Court, the appeal stands disposed of, so also pending application(s), if any.
( Sanjay Karol ),
February 27, 2015(sd) Judge.
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