Allahabad High Court
Jagannath vs State Of U.P. on 3 February, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 27.01.2023 Delivered on: 03.02.2023 Court No. - 14 Case :- CRIMINAL APPEAL No. - 126 of 2005 Appellant :- Jagannath Respondent :- State of U.P. Counsel for Appellant :- L.K.Gupta,Atul Kumar Yadav,Syed Wajahat Ali @ Vijahat Ali Counsel for Respondent :- Govt.Advocate Hon'ble Suresh Kumar Gupta,J.
1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 17.1.2005 passed by Special Judge (E.C. Act)/A.S.J., Lucknow in Sessions Trial No. 695 of 1998 arising out of Case Crime No. 128 of 1995, U/s 323,325,308,336 IPC relating to Police Station- Thakurganj, District- Lucknow, whereby convicted and sentenced the appellant under Section-325 I.P.C. for six months rigorous imprisonment with fine of Rs. 500/-, in default of payment of fine fifteen days additional simple imprisonment; under Section 323 I.P.C. for one month rigorous imprisonment; and under Section- 336 IPC for one month rigorous imprisonment.
2. The prosecution story, in brief, is that the FIR of the alleged incident was lodged by the complainant Ram Kali Verma on 12.5.1995 in PS Thakurganj, Lucknow with the allegations that she is the resident of Mohalla- Ahmadganj Pajawa, PS- Thakurganj. It was further stated that my father has five sons and all the five sons are living separately from my father. The property of my father was also allotted to my brothers and some portion of the land was retained by my father for maintenance himself. But my real brothers Sri Ram, Sitaram and Jagannath (appellant) also claimed their share of the land retained by my father. On 11.5.1995, due to partition of land all the three brothers namely, Sri Ram, Sitaram and Jagannath (appellant) inflicted injury by means of lathi, danda and bricks to my father Kadhile, mother Gangadei, sister Rampa and brother Nanhakey. When we raised alarm, then immediately members of the locality Ramdas, Rajaram and other persons rushed to the spot and refused them to do so and the accused fled from the spot. Due to this incident, my father Kadhile got fracture on left hand, mother got head injury and sister and brother also got injury. On this allegation, this FIR has been lodged against the appellant as Case Crime No. 128/1995, U/s 323,325,308,336 IPC on 12.5.1995 at 5.30 am.
3. After lodging of the FIR, investigation of this case was entrusted to the investigating officer. During course of investigation, the statement of the complainant and other witnesses was recorded and collected injury report of the injured persons namely, Kadhile, Ganga Devi, Rampa and Nanhakey which was proved as Ex-ka-2, Ex-ka-3, Ex-ka-4 and Ex-ka-5 respectively. Thereafter, the investigating officer filed the charge-sheet against the accused Sriram, Sitaram and Jagannath (appellant) U/s 323,325,308,336 IPC and proved it as Ex-ka-6. He also proved the site plan as Ex-ka-7, chik FIR as Ex-ka-8 and G.D. as Ex-ka-9.
4. After completion of formalities of the investigation, the charge sheet against the appellant and other co-accused was submitted before the court. Thereafter, the case was committed to the court of sessions where it was transferred to the Special Sessions Judge, Lucknow for trial.
5. After hearing both the parties, charges were framed against Sriram, Sitaram and Jagannath (appellant) U/s 308/34, 323,325,336 IPC. The charges were read over to the appellant and other co-accused. They denied the charges levelled against them and claimed to be tried.
6. In order to prove its case, following prosecution witnesses were examined:
(i) P.W.-1, Ramkali Verma who is the first informant and she fully supported the prosecution version;
(ii) P.W.-2, Kadhiley who is the father of the first informant and he got injury in the incident. He also supported the prosecution version;
(iii) P.W. 3, Dr. S.M. Kalra who examined all the injured persons namely, Kadhiley, Gangadei, Nanhakey @ Lekhraj and Kumari Rampa on 12.5.1995. He further stated that all the injuries caused by blunt object. The same was kept under observation and was advised X-ray;
(iv) P.W. 4, Nanhkey @ Lekhraj who also got injury in the alleged incident and fully supported the prosecution version;
(v) P.W. 5, Mahabir Prasad Mishra who is the investigating officer of this case and he submitted the charge-sheet against the accused-appellant.
(vi) P.W. 6, Akshay Sharma who is the earlier investigating officer of this case. He transferred the investigation to P.W. 5- Mahabir Prasad Mishra.;
(vii) P.W. 7, Shri Ram Chaudhary, Head Constable, who lodged the F.I.R. on the basis of written report given by the first informant.
7. Thus, the prosecution relied on the oral evidence of PW-1 to PW-7 and also relied on the documentary evidence of Ex-Ka-1 to Ex-Ka-9.
8. During course of trial, Sriram is reported to be no more so the appeal is abated qua him.
9. Subsequent to conclusion of trial, statements of the accused-appellant and other co-accused were recorded under Section 313 Cr.P.C. by the trial court in which the accused appellants denied the prosecution story in toto and due to enmity they have been falsely implicated in the case. However, the they did not choose to lead any evidence in their defence.
10. Learned trial court after hearing learned counsel for the parties and appreciating the entire oral evidence as well as documentary evidence found the accused-appellants guilty and convicted and sentenced them as stated above.
11. Being aggrieved with this judgement, this criminal appeal has been filed.
12. I have heard Shri L.K. Gupta, learned counsel for the appellant, learned AGA for the State and perused the material available on record.
13. Learned counsel for the appellant has submitted that learned trial court without appreciating the evidence available on record wrongly convicted the appellant for maximum sentence of six months. It is further submitted that during course of investigation and trial, the appellant surrendered before the court on 20.6.1995. Thereafter, he was released on bail on 27.7.1995 and the bail bond was submitted on 4.8.1995. Thus during investigation he remained in jail for 45 days. He also submitted that during pendency of the appeal in pursuance of NBW, the appellant was arrested on 22.10.2022 and presently he is in jail since then. Thus the total incarceration period of the appellant is 147 days and he has remained in jail for about five months. Therefore, he prays for leniency of the Court.
14. Learned AGA vehemently opposed the prayer made by learned counsel for the appellant and supported the judgement of learned trial court and submitted that the trial court after appreciating the evidence available on record rightly convicted the appellant. Thus, the appeal has no force and is liable to be dismissed.
15. Not pressing the criminal appeal after the conviction of the appellant by the court concerned is like the confession of the offence by the accused-appellant. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.
16. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:
"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 such serious threats. It is, 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 etc."
17. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.
18. Appropriate sentence is the cry of the society. It is, 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.
19. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-
"99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. 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. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.
The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. 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 both the criminal and the victim belong."
20. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:
"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.
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."
21. In State of Madhya Pradesh Vs. Surendra Singh, (AIR) 2015 SC 3980, based on the theory of proportionality, it is laid down by Hon'ble Apex Court 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 such serious threats. It is, 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. 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. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run against the interest of the society. One of the objectives of criminal law is the imposition adequate,just, proportionate punishment end prime of which commensurate with gravity, nature of crime and the manner in which the offence is committed. one should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that its hocks the conscience of the society. It is,therefore,solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same,the society suffers. Imposition of sentence must commensurate with gravity of offence".
22. Considering the entire facts and circumstances of the case, the appellant is very poor. The matter pertains to year 1995 and thus, about 28 years have already elapsed. Thus, I am of the view that the end of justice shall be served to punish the appellant for the period already undergone i.e. about 4 months and 22 days. However, the fine awarded by the trial court is enhanced from Rs. 500/ to Rs. 2500/, out of which Rs. 2,000/ shall be payable to the injured persons namely, Kadhiley, Gangadei, Kumari Rampa and Nanhakey @ Lekhraj in equal ratio and remaining Rs. 500/ shall be deposited in the State Exchequer U/s 357 CrPC within seven days from the date of his actual release, failing which he shall undergo imprisonment of additional one month.
23. Since in pursuance of N.B.W. of this Court, the appellant is in jail, so let this order be communicated to the court concerned as well as District Jail Superintendent with the direction that he shall immediately release the appellant, if he is not wanted in any other case.
24. Thus, the appeal is dismissed on the point of conviction and partly allowed on the point of sentence.
25. On perusal of the impugned judgement, it transpires that apart from the appellant Jagannath, other co-accused namely, Sita Ram was also convicted in this matter but the appeal of the said co-accused is not tagged with this appeal.
26. Office is hereby directed to tag the appeal of the co-accused Sita Ram, if any, with this appeal. If the same is not found, the trial court record be sent back.
Order Date :- 3.2.2023 Shravan