Delhi District Court
State vs Sunil @ Jony on 28 April, 2009
1
FIR no.1439/03
IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER), ROHINI : DELHI
FIR No: 1439/03
PS: Sultanpuri
Under Section: 324/392/394/304/302 IPC
Sessions Case No: 725/2006
Date of Institution: 05.07.2004
Date of Decision: 28.04.2009
State
Versus
Sunil @ Jony
S/o Ashok Kumar
R/o 5/49, Friends Enclave,
Sultanpuri, Delhi.
JUDGMENT
ASI Wazir Singh, after receipt of DD No.71 B on 31.12.2003 alongwith Ct. Rajender No.2207/NW went to Railway Line near Kirari Faatak within the jurisdiction of Police Station Sultanpuri where he found blood lying on the ground. ASI Wazir Singh after leaving the Ct. Rajender at spot went to Sanjay Gandhi Memorial Hospital and obtained MLC bearing No.3882 in respect of injured Chottu who was found not fit for statement. ASI Wazir Singh recorded the statement of Rahul S/o Murli Dhar wherein he stated that 2 FIR no.1439/03 on 31.12.2003 at about 8 pm, he alongwith injured Chottu was coming back to his house situated at Prem Nagar via Jalebi Chowk and when they reached near Railway Line then 2/3 boys from the bushes came out and caught hold of the Chottu but he himself managed to run away from spot. He heard noises regarding beatings given to Chottu. He went to house of injured Chottu and narrated the incident to his parents. Thereafter he alongwith parents and other family members of Chottu came back to the spot where they found Chottu in injured condition. Chottu was removed to Sanjay Gandhi Memorial Hospital. ASI Wazir Singh on basis of statement made by Rahul prepared a rukka for registration of case u/s 324/34 IPC and went to the police station for registration of FIR. ASI Wazir Singh came back to the spot and prepared the site plan; took the exhibits into possession from spot. ASI Wazir Singh also recorded the supplementary statement of Rahul u/s 161 Cr.P.C.
2. DD No.11A was registered in the police station on 1.1.2004 regarding the death of Chottu. ASI Wazir Singh prepared the inquest papers and got conducted the post mortem of dead body of Chottu. ASI Wazir Singh seized the various exhibits after post mortem and handed over the dead body to the legal representative of Chottu. The subsequent investigation was handed over to SI Anil Kumar. The case was converted u/s 304 IPC. SI Anil Kumar also added sections 394/397 IPC.
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3. DD No.20A was registered in the Police Station on 6.1.2004 regarding the apprehension of accused Sunil @ Jony and co-accused namely Ajit, Sonu and Vijay (since facing trial in Juvenile Justice Board) by HC Gajender No.1769/NW at the instance of Rahul near Shani Bazar Road. SI Anil Kumar reached at police booth Shani Bazar Road and arrested the accused Sunil @ Jony, Ajit, Sonu and Vijay. SI Anil Kumar conducted further investigation and recorded the respective disclosure statements of accused Sunil @ Jony, Ajit, Sonu and Vijay. Three knives were also recovered at the instance of accused Sunil @ Jony and co-accused Ajit Kumar and Vijay Bhaskar. SI Anil Kumar obtained the post mortem report of deceased Chottu. The exhibits seized during the course of investigation were sent to FSL. The accused Sunil @ Jony and co-accused Ajit, Sonu and Vijay after completion of investigation were charge sheeted for the offences punishable u/s 324/394/397/304/302/34 IPC.
4. Accused Sunil @ Jony alongwith co-accused Ajit, Sonu and Vijay was initially sent to Juvenile Justice Board to face trial in accordance with law. The Principal Magistrate, Juvenile Justice Board vide order dated 8.6.2004 opined that the accused Sunil @ Jony was of 18 years of age at the time of commission of offence as such, the Juvenile Justice Board did not have the jurisdiction to try the accused Sunil @ Jony. The concerned SHO was also 4 FIR no.1439/03 directed to file supplementary challan against accused Sunil @ Jony before the court of competent law. The supplementary/fresh charge sheet was filed by the Investigating Officer before the concerned Metropolitan Magistrate.
5. The accused Sunil @ Jony after compliance of Section 207 Cr.P.C.
was sent to this court to face trial vide committal order dated 27.8.2004. The charge for the offence punishable u/s 302/34 IPC and u/s 394/397/34 IPC was framed vide order dated 10.9.2004 against the accused Sunil @ Jony to which he pleaded not guilty and claimed trial.
6. The prosecution to prove the guilt of the accused Sunil @ Jony beyond reasonable doubt examined the following categories of witnesses:--
A) Eye Witnesses
i) PW1 Rahul who was accompanying Chottu (since deceased) on 31.12.2003 at 8 p.m. while returning form Jalebi Chowk.
ii) PW2 Babu Lal, father of the Chottu (since deceased) and PW3 Babloo, brother of Chottu (since deceased) also stated to reach at the spot alongwith PW1 Rahul and saw the accused Sunil @ Jony as one of the boy who was inflicting injuries on the person of Chottu (since deceased) .
B) Investigating Officer/ Police Officials
i) PW10 ASI Wazir Singh and PW8 Ct. Rajender No.2207/NW who after the receipt of DD No.71 B went to the spot i.e Railway Line near Kirari Fhatak, Mubarakpur Road. PW10 ASI Wazir Singh conducted initial investigation and lifted the blood samples
ii) PW5 HC Gajender Singh and PW 11 Ct. Davender on 6.1.2004 5 FIR no.1439/03 at the instance of PW1 Rahul apprehended the accused Sunil @ Jony and other co-accused (since facing trial in Juvenile Justice Board).
iii) Investigating Officer PW-13 Anil Kumar entrusted with the investigation on 2.1.2004. PW13 SI Anil Kumar arrested accused Sunil @ Jony alongwith other co-accused and recovered the weapon of offence i.e knife at the instance of accused Sunil @ Jony.
i) PW16 Inspector Preet Singh who was entrusted with investigation on 14.2.2004 and after collection of FSL report submitted the charge sheet in the court.
C) Expert Witness
i) PW4 Dr. V.K. Jha, Medical Officer, Sanjay Gandhi Memorial Hospital who conducted post mortem on the dead body of Chottu (since deceased) on 1.4.2004. PW4 also on the request of IO SI Anil Kumar gave his opinion regarding the weapon of offence stated to have been used in infliction of injuries on the person of Chottu (since deceased).
D) Formal Witnesses
ii) PW6 Dr. Sandeep Bhagat who conducted Bone X-Ray to determine the age of accused Sunil @ Jony.
iii) PW7 HC Narinder who being Duty Officer on 31.12.2003 recorded FIR after receipt of rukka from ASI Wazir Singh.
iv) PW9 SI Manohar Singh who prepared the scaled site plan.
v) PW 12 HC Bhagwan Singh who recorded DD No.20A regarding apprehension of accused Sunil @ Jony and co-accused Ajit, Sonu and Vijay
vi) PW14 HC Yashbir Singh being MHC(M) who was entrusted with the case property collected during investigation by PW10 ASI 6 FIR no.1439/03 Wazir Singh and PW13 SI Anil Kumar.
vii)PW15 Dr. R.K. Mishra, Radiologist who was the member of the Board constituted to determine the age of accused Sunil @ Jony.
viii)PW17 HC Gian Singh who recorded DD no.71B on 31.12.2003.
7. The prosecution proved the statement of PW-1 Rahul recorded by PW-10 ASI Wazir Singh as ExPW1/A; personal search memo of accused Sunil @ Jony as ExPW1/B (ExPW11/B) ; arrest memo of accused Sunil @ Jony as ExPW1/C (ExPW11/A) ; seizure memo of knife stated to have been recorded at the instance of accused Sunil @ Jony as ExPW1/D (ExPW11/E); memos pertaining to receipt of dead body of Chottu (since deceased) by PW-2 and PW-3 as ExPW2/A, ExPW2/B and ExPW3/A; post mortem report as ExPW4/A; opinion of PW-4 Dr. V.K. Jha regarding weapon of offence as ExPW4/C alongwith sketch as ExPW4/D; disclosure statement of accused Sunil @ Jony recorded by PW-13 SI Anil Kumar as ExPW5/A (ExPW11/C, ExPW13/A) ; sketch of knife stated to have been recovered at the instance of accused Sunil @ Jony as ExPW5/C (ExPW11/D); MLC in respect of accused Sunil @ Jony prepared for Bone age determination as ExPW6/A; copy of FIR ExPW7/A; seizure memo of exhibits lifted from the spot by ASI Wazir Singh as ExPW8/A; scaled site plan as ExPW9/A; endorsement on statement ExPW1/A as ExPW10/B; DD No.11 as ExPW10/C; inquest papers regarding 7 FIR no.1439/03 the dead body of Chottu (since deceased) as ExPW10/D to ExPW10F; DD No.71B as ExPW10/H; DD No.20A as ExPW12/A; relevant entries made by MHC(M) in respect of case property in register No.19 and 21 as ExPW14/A and ExPW14/B; report of ossification test and opinion as ExPW 15/A and ExPW15/B and FSL report as ExPW16/A. The PWs also identified knife stated to have been recovered at the instance of accused Sunil @ Jony as ExPW-1. The prosecution evidence was closed vide order dated 5.9.2006.
8. The statement of accused Sunil @ Jony was recorded u/s 313 Cr.P.C. vide order dated 3.5.2007 wherein all the incriminating evidence proved put to accused Sunil @ Jony. The accused Sunil @ Jony denied all the incriminating evidence and pleaded his innocence. The accused Sunil @ Jony stated that he has been falsely implicated in the case. The accused Sunil @ Jony preferred not to lead defence evidence.
9. Shri Sanjay Soni, APP for the State and Ms. Usha Rani, Advocate/Amicus Curie on behalf of the accused Sunil @ Jony heard. Record perused.
10. Article 21 of Constitution of India guarantees every citizen protection of life and liberty as a fundamental right. It cast a duty on State to maintain law and order in society for securing peace and security to citizens. To achieve said objectives State enacts substantive penal laws, instrumental and 8 FIR no.1439/03 symbolic prescribing punishment in case of breach of law and order in society. When any person found guilty of committing breach of right of life, liberty or property guaranteed to citizens then it becomes duty to State to apprehend such person, put him to fair trial and punish him if found guilty. The aim of Criminal Justice System is to punish the guilty and to protect the innocent.
11. India has adopted the adversarial system of common law for the dispensation of criminal justice. In the adversarial system every person accused of an offence is always presumed to be innocent so that burden lies upon the prosecution to establish beyond reasonable doubt that all the ingredients of the offence with which the accused is charged are made out. The accused enjoys the right to silence and cannot be compelled to reply. The judge acts like a neutral umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused.
12. House of Lords in case of Woolmington V Director of Public Prosecutions, (1935) AC 462 held that prosecution has not merely to prove that the accused had caused death and ask the court to presume that it was murder, they must prove every ingredients that makes the killing a murder. It 9 FIR no.1439/03 is not for the prisoner to establish his innocence but for the prosecution to establish his guilt. There is no burden laid on the accused to prove his innocence and it is sufficient for him to raise a doubt, as to his guilt.
13. In a criminal trial however, intriguing may be facts and circumstances of case, the charge against the accused must be proved beyond all reasonable doubts and the requirement of proof does not lie in the realms of surmises and conjectures. The doubt must be of reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter. Doubt must be actual and substantial doubts as to the guilt of accused arising from the evidence or lack of it, as opposed to mere apprehensions.
14. In adversarial system, the courts believe that it is better that hundred guilty person may escape rather than one innocent person suffers. It flows from concept of "presumption of innocence and proof beyond reasonable doubt". It is experienced that a large number of criminals escape conviction by taking advantage of said lacuna in the adversarial system. It erodes the confidence of the people in the efficacy of the system. Grave consequences follow from the large percentage of acquittals of guilty persons. More the numbers of acquittals of guilty, more are the criminals that are let loose on the society to commit more crimes. Such criminals may occupy important and 10 FIR no.1439/03 sensitive position in the public life. If crimes go unchecked anarchy will not be a matter of distant future. Peace, law and order situation depend to a large extent on efficacy of a criminal justice system. In Gurbachan Singh V Sat Pal Singh, AIR 1990 SC 209 it was observed :--
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions and thereby destroy social defence. Justice cannot be made sterile o the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice, according to law.
15. Although, concept of "presumption of innocence" maintains key position in criminal justice system, there is a steady shifting of burden of proof to tackle the new problems such as growing social, economic problems, emergence of new and graver crimes, terrorism, organized crimes, poor rate of conviction, practical difficulties in securing the evidence etc. In India courts laid emphasis that the doctrine of benefit of doubt should not be exaggerated on the expense of social defence without considering justice to the victim and community. The courts should judge the prosecution case on the basis of totality of the evidence.
16. In case Shivani V State of Maharashtra, AIR 1973 SC 2622 it was stressed that judicial instrument has a public accountability. The cherished principle of golden thread of proof beyond reasonable doubts should not be 11 FIR no.1439/03 stretched morbidly. It further observed that only reasonable doubts belong to the accused otherwise the justice would lose its credibility. In Shivani's case, the Supreme Court emphasized that our jurisprudential enthusiasm for presumed innocent must be moderated by the pragmatic need to make criminal justice potent and realistic.
17. There must be various reasons for diluting doctrine of presumption of innocence. One of the reasons is that in India it is not possible to find a witness whose testimony is perfect in all respects and without element of untruth, although crux of testimony of that witness may be true. In such situation, the duty of the trial court to separate the grain from the chaff. The trial court is required to accept the truth and reject the rest. In State of U.P. V Shankar, AIR 1981 Sc 897 at 904 it was observed :--
It is function of the court to separate the grain from the chaff and accept what appears to be true and reject the rest. It is only where the testimony of a witness is fainted to the core, the falsehood and the truth being inextricably intertwined that the court should discard his evidence in toto.
18. It is the duty of the court to make efforts for finding the truth, this is very object for which courts are created. It is duty of courts to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very trust. It is onerous duty of the courts, within permissible limit to find the 12 FIR no.1439/03 truth. The criminals cannot be allowed to receive benefit of doubt under protective layers of cloud or dust over truth. No innocent should be punished but on the other hand no person committing an offence should go scot-free.
19. In Krishna Mochi V State of Bihar, 2002 Crl LJ 2645 it was observed that there is sharp decline in ethical values in public life. It was further observed that in present days when crime is looming large and humanity is suffering and society is so much affected thereby duties and responsibilities of the courts have become much more. It was observed as under :--
Now the maxim "let hundred guilty persons be acquitted, but not a single innocent be convicted"
is, in practice, changing world over and courts have been compelled to accept that "society suffers by wrong convictions and it equally suffers by wrong acquittals."
20. In criminal trial evidence is to be considered on the basis of its quantity. The evidence is to be weighed not counted. The evidence on the facts of each case has to be analyzed and conclusions drawn, and there cannot be pigeon - holding of evidence on any set formula. In criminal cases court should not adopt mechanical approach in appreciating evidence of prosecution. The broad features of prosecution case, the probabilities and normal course of human conduct of prudent person and some of the factors 13 FIR no.1439/03 which are always kept in mind while evaluating the merit of the case. (Hardeep V State of Haryana, 2002 Crl L J 3939; State of U.P. V Ram Sewak, 2003 AIR SCW 161). It is pious duty of court to separate grain from chaff, truth from falsehood. Although criminal jurisprudence requires a high standard of proof for imposing punishment on an accused, but it is equally important that on hypothetical grounds and surmises prosecution evidence should not be brushed aside and disbelieved to give undue benefit of doubt to the accused.
21. Section 390 IPC deals with robbery. It provides that in all robbery there is either theft or extortion. Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or instant hurt, or of instant wrongful restraint. Section 392 IPC provides punishment for robbery. Section 394 deals with voluntary cause hurt as contained in robbery. It provides that if any person in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be liable to be punished with imprisonment for life and for rigorous 14 FIR no.1439/03 punishment for a term which may extend to 10 years and shall also be liable to fine. Section 397 IPC deals with robbery or dacoity with attempts to cause death or grievous hurt. It provides that at the time of committing robbery, the offender uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person shall liable to be punished for imprisonment which shall not be less than seven years.
22. Section 397 IPC attracts if, at the time of committing robbery or dacoity, the offender uses a deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person. A deadly weapon must have been used at the time of committing robbery or dacoity, and not before its commission. The word 'uses' in should be given a wider meaning, and should not be confined merely to cutting, stabbing or shooting, as the case may be, but also to carrying the weapon for the purpose of overwhelming the victims of dacoity. If a dacoit is armed with a deadly weapon, then undoubtedly, he inspires the victim with the feeling of fear and his power of resistance is, to a great extent, paralysed. Section 397 IPC does not create any offence but merely regulate the punishment already provided for robbery and 15 FIR no.1439/03 dacoity. This section fixes a minimum term of imprisonment between the commission of robbery and dacoity has been attended with certain aggravating circumstances, viz., (1) the use of a deadly weapon, or (2) the causing of grievous hurt, or (3) attempting to cause death or grievous hurt. Section 34 of the Code has no application in the construction of section 397 IPC. The expression 'the offender' does not include persons who participated in the commission of robbery or dacoity but do not use deadly weapon. In Ashfaq V. State AIR 2004 SC1253, it was held that what is essential to satisfy the words ' uses' for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with deadly weapon which was within the vision of victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. It was also observed in Vinod Kumar and ors. V State, 2007 (2) JCC 1011, that it is not necessary in order to attract Section 397 IPC, the deadly weapon is to be used in the sense that by use of it the person has to be injured. The use of weapon is also there when the weapon is brandished and a person is robbed/ looted under the fear of his life caused by weapon.
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23. Section 299 IPC deals with culpable homicide. It reads as under :--
299. Culpable Homicide :---
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Section 299 has following essentials:--
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
i) with the intention of causing death; or
ii) with the intention of causing such bodily injury as is likely to cause death;
or
iii) with the knowledge that the doer is likely by such act to cause death.
24. Section 300 IPC deals with murder. It reads as under :--
300. Murder :---
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death;
or 2ndly--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly--If the person committing the act knows that it is so imminently dangerous that it must, in all 17 FIR no.1439/03 probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1....
Exception 2....
Exception 3....
Exception 4....
Exception 5....
25. In section 300 IPC, the definition of culpable homicide appears in an expanded form. Each of the four clauses requires that the act which causes death should be done intentionally, or with the knowledge or means of knowing that death is a natural consequence of the act. An offence cannot amount to murder unless it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. But an offence may amount to culpable homicide without amounting to murder. It does not follow that a case of culpable homicide is murder, because it does not fall within any of the Exceptions to Section 300. To render culpable homicide murder the case must come within the provisions of clause 1, 2, 3, or 4 of Section 300. Putting it shortly, all acts of killing done:--
i) with the intention to kill, or
ii) to inflict bodily injury likely to cause death, or 18 FIR no.1439/03
iii) with the knowledge that death must be the most probable result, are prima facie murder, while those committed with the knowledge that death will be a likely result are culpable homicide not amounting to murder.
26. The distinction between Section 299 and 300 IPC is very ably set forth by Melvill, J., in Govinda's case (1876) 1 Bom. 342.
Section 299 Section 300 A person commits culpable Subject to certain exceptions, homicide, if the act by which culpable homicide is murder, the death is caused is done if the act by which the death is (a) with the intention of caused is done. causing death 1) With the intention of causing death; 2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; (b) with the intention
of causing such bodily 3) With the intention of causing bodily injury injury as is likely to to any person, and the bodily injury cause death; intended to be inflicted is sufficient in the ordinary course of nature to cause death;
(c) With the knowledge 4) With the knowledge that the act is that .... the act is likely so imminently dangerous that it must to cause death. in all probability cause death, or such bodily injury as is likely to cause death.
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27. Section 302 IPC deals with punishment for murder. It reads as under :
302. Punishment for Murder :--
Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
28. Section 304 deals with punishment for culpable homicide not amounting to murder. It reads as under :--
304. Punishment for Culpable Homicide not amounting to murder :--
Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years,or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
29. The entire prosecution can be divided into three parts :--
i) the Chottu (since deceased) was apprehended by accused Sunil @ Jony and other co-accused when he was returning back from Jalebi Chowk on 31.12.2003 at about 8 p.m. alongwith PW1 Rahul.
ii) The arrest of accused Sunil @ Jony by PW13 SI Anil Kumar 20 FIR no.1439/03 after being apprehended by PW5 HC Gajender Singh and PW11 Ct. Davender on 6.1.2004 at about 5.15 p.m. at the instance of PW1 Rahul.
iii) The recovery of knife ExP1 at the instance of accused Sunil @ Jony from his house bearing no.5/49, Friends Enclave, Sultanpuri which was seized vide seizure memo ExPW1/D.
30. The prosecution to prove the guilt of the accused Sunil @ Jony examined eye witness PW1 Rahul. PW1 deposed that on 31.12.2003 at about 8 p.m. he was returning from Jalebi Chowk alongwith Chottu (since deceased) and when they reached near Railway Track, Kirari Faatak, then four boys surrounded them and took Rs.10/- from his pocket; he was caught by two boys and Chottu (since deceased) was taken towards one side by two boys; Chottu (since deceased) did not hand over the money to said boys; two boys who were holding him also went towards the Chottu (since deceased) and in the mean time, he managed to escape from the spot; thereafter he went to the house of Chottu (since deceased) and informed the parent of Chottu (since deceased) about the incident; he alongwith the family members of Chottu (since deceased) returned back to the spot where Chottu (since deceased) was lying in injured condition on the ground; thereafter Chottu (since deceased) was removed to hospital; and the police met him in the hospital where his statement, the photocopy of which is ExPW1/A was recorded.
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The PW1 turned hostile and did not support the entire case of the prosecution. PW1 deposed that he cannot identify the boys who taken him to the bushes and also cannot see their faces properly and also did not see the four boys after the occurrence. PW1 deposed that none of the boys was ever arrested in his presence. PW1 improved his testimony and deposed that said boys were arrested in his presence. PW1 was cross examined by APP and during the cross examination PW1 admitted his signature on personal search memo ExPW1/A, arrest memo ExPW1/C in respect of accused Sunil @ Jony and seizure memo ExPW1/A. PW1 deposed that he had seen one knife at police station and was told that the knife was recorded from Sunil @ Jony.
31. The prosecution also examined PW2 Babu Lal and PW3 Babloo. PW2 Babu Lal is the father of Chottu (since deceased) and PW3 Babloo is the brother of Chottu (since deceased). PW2 and PW3 deposed that on 31.12.2003 Chottu (since deceased) had gone for a walk with PW1 Rahul; at about 8 p.m. PW1 Rahul came to their house and informed that Chottu (since deceased) is being beaten in the bushes near Railway Line, Kirari Faatak; PW-2 and PW-3 alongwith PW-1 Rahul went to the spot; 3-4 boys were beating Chottu (since deceased) with fist, leg and two persons were having knives in their hands; when they reached at the spot the said boys run away 22 FIR no.1439/03 from the spot and thereafter injured was removed to the hospital. PW2 and PW3 identified the accused Sunil @ Jony as one of the boys who ran away from the spot after seeing PW2 and PW3.
32. The Amicus Curie for the accused Sunil @ Jony argued that there is no evidence that accused Sunil @ Jony inflicted injuries by using knife ExP1 on the person of Chottu (since deceased); PW-1 to PW-3 not deposed that they actually saw accused Sunil @ Jony while inflicting injuries by using knife ExP1 on the person of Chottu (since deceased); the prosecution has failed to establish the identity of Sunil @ Jony as the person who was present at the spot and also inflicted injuries on the person of Chottu (since deceased). The Amicus Curie substantiated arguments on the basis of statement of PW1 who turned hostile and did not identify the accused Sunil @ Jony as the boy who was present at the spot at the time of incident and inflicted injuries on the person of Chottu (since deceased). The Amicus Curie argued that PW2 Babu Lal and PW3 Babloo were not the eye witnesses as as per their statement recorded u/s 161 Cr.P.C. said PWs only identified the dead body of Chottu (since deceased) and also received the dead body after post mortem vide documents ExPW2/A, ExPW2/B and ExPW3/A. The Amicus Curie argued that as the prosecution has failed to establish the identify of the accused Sunil @ Jony as such, accused Sunil @ Jony be acquitted. The Amicus Curie 23 FIR no.1439/03 relied upon Vijayan V State of Kerala, (1999) 3 SCC 54; Puttan alias Kamal Prasad V State of U.P., AIR 1992 SC 1032; Rapani Laxman V State of A.P., 2004 CRL LJ 136.
33. Section 9 of the Evidence Act, 1872 deals with the identification of a person. Where a court has to know the identify of any person, any fact which establishes such identity is relevant. The identity of a person can be established by the evidence of persons who know him. The evidence of test identification parades is received u/s 9. The purpose of the identification parades is to find out whether person is the perpetrator of the crime. It is necessary where the name of the offender is not mentioned by those who claim to be eye-witnesses of the incident, but they claim that although they did not know offender earlier, they could recall his features in sufficient details and would also be able to identify him if and when they happen to see him again. Such identification is in the interest of both , the accused and the investigating agency. It enables the Investigating Officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.
34. The purpose of a prior test identification is to test and strengthen the trustworthiness of a witness and is considered a safe rule of prudence to look 24 FIR no.1439/03 for corroboration of the sworn testimony of witnesses in court as to identity of the accused. This rule of prudence is subject to exceptions when the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. What weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. It was observed in Malkhan Singh V State of Madhya Pradesh, 2003 Crl LJ 3535 as under :--
The facts, which establish the identity of the accused persons, are relevant u/s. 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused persons at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to identity of the accused who are strangers to them in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold or confers a right upon the accused to 25 FIR no.1439/03 claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by S.162 of Cr.P.C. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.
The substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine.
35. It was also observed in case of Chandresh Paswan V State of U.P. And another, 2001 Crl LJ 4430 that if no test identification is held then the evidence of witness identifying accused for first time during trial cannot be said to be meaningless or having no evidentiary value. It depends upon facts and circumstances of each case.
36. None of the accused including the accused Sunil @ Jony was apprehended or arrested at the spot. Test Identification Parades of any of the accused was not conducted. As per the prosecution, on 6.1.2004, PW5 HC Gajender Singh and PW11 Ct. Davender were present at Police Booth, Shani Bazar, G-Block, Sultanpuri and at the instance of PW-1 Rahul apprehended accused Sunil @ Jony and other co-accused near school. The intimation 26 FIR no.1439/03 was conveyed to PW13 SI Anil Kumar vide DD no.20A ExPW12/A. The PW- 13 SI Anil Kumar apprehended the accused Sunil @ Jony vide personal search memo ExPW1/B (ExPW11/B) and arrest memo ExPW1/C (ExPW11/A). Both memos perused. The perusal of memos ExPW1/C (ExPW11/A) and ExPW1/B (ExPW 11/B) reflects that the accused Sunil @ Jony was arrested by PW-13 SI Anil Kumar in presence of PW-1 Rahul. The PW-1 did not support the prosecution regarding the apprehension/arrest of accused Sunil @ Jony on 6.1.2004 at his instance. PW-1 deposed that none of the boys i.e accused has been arrested in his presence and later on he came to know that the said boys i.e accused were arrested. However PW-1 improved his testimony subsequently and deposed that the boys i.e accused were arrested by police in his presence. PW-1 was cross examined by the APP and during the cross examination he admitted his signatures on personal search memo ExPW1/B (ExPW11/B) and arrest memo ExPW1/C (ExPW11/A) at points A. PW-11 Ct. Davender deposed that at the instance of PW-1 Rahul accused Sunil @ Jony was apprehended alongwith other co-accused on 6.1.2004 vide arrest memo ExPW1/C (ExPW11/A) and personal search memo ExPW1/B (ExPW11/B). The testimony of PW-11 is corroborated by testimony of Investigating Officer PW13 SI Anil Kumar. PW-5 HC Gajender Singh was also the member of the police party which apprehended/arrested the accused 27 FIR no.1439/03 Sunil @ Jony. PW-5 HC Gajender Singh deposed regarding the apprehension of accused Sunil @ Jony as one of the boy arrested on 6.1.2004 at about 5.15 p.m. The evidence led by the prosecution proved that accused Sunil @ Jony was arrested on 6.1.2004.
37. The prosecution to establish the identity of accused Sunil @ Jony examined PW-2 Babu Lal and PW-3 Babloo. Both PWs after being informed by PW-1 Rahul about the incident reached at the spot where they saw 3-4 boys were beating the Chottu (since deceased) with fist and leg and some of them were having knives in their hands. PW-2 and PW-3 identified the accused Sunil @ Jony as one of the boy who ran away from the spot after seeing them.
38. The Amicus Curie argued that PW-2 and PW-3 were not the eye witnesses of the incident as reflected from their respective statements recorded u/s 161 Cr.P.C.; both PWs only received the dead body of Chottu (since deceased) after the post mortem vide memos ExPW2/A, ExPW2/B and ExPW3/A.
39. The perusal of statement of PW-2 Babu Lal u/s161 Cr.P.C. reflects that he identified the dead body of Chottu and after post mortem PW2 and PW3 received the dead body of Chottu. The PW2 and PW3 during the cross examination were not confronted with their respective statements u/s 161 28 FIR no.1439/03 Cr.P.C. to the effect that they were not the eye witnesses. PW-10 ASI Wazir Singh being earlier investigating officer not recorded the entire statement of PW-2 and PW-3 and for this lapse, the prosecution cannot be blamed. It was held in the case Ambika Parsad V State, 2000 Crl LJ 810 that the prosecution case cannot be allowed to suffer at the hands of IO and IO cannot be permitted to hold the prosecution to ransom by his deliberate act. It was also observed in case Karnel Singh V State of M.P., (1995) 5 SCC 518 that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tentamount to be falling in the hands of erring Investigating Officer.
40. PW-1 Rahul did not support the entire case of the prosecution particularly accused Sunil @ Jony as one of the assailant. PW-1 partly turned hostile. It does not mean that entire testimony of PW-1 has become uncredible and cannot be read into evidence. It was held in the case Khujji alias Surendra Tiwari V State of Madhya Pradesh, AIR 1991 SC 1853 that the evidence of a hostile witness cannot be treated as effaced or washed off the record altogether and part of his evidence which is otherwise acceptable can be acted upon. It was held as under :--
that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such 29 FIR no.1439/03 witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
41. The testimony of PW-1 proved that PW-1 after the incident went to the house of PW-2 and PW-3 and they alongwith PW-1 came back at the spot. The respective testimony of PW-2 and PW-3 is cogent, consistent, natural and narrative of all facts. There is no reason to disbelieve the testimonies of PW-2 and PW-3 regarding presence of accused Sunil @ Jony at the time of commission of offence as one of the boy who assaulted the Chottu (since deceased). Although PW-2 and PW-3 identified accused Sunil @ Jony for the first time in court but it does not hit the case of prosecution particularly in view of observations made in Malkhan Singh (Supra). There is no reason to disbelieve that PW-2 and PW-3 were reached at the spot alongwith PW-1 and saw accused Sunil @ Jony.
42. The presence of PW-2 and PW-3 at the spot is also admitted by the accused Sunil @ Jony during the cross examinations of PW-2 and PW-3. PW-2 Babu Lal was given a suggestion that he had seen only the dead body of Chottu (since deceased) when he reached at the spot. It clearly reflects that the accused Sunil @ Jony not disputed the presence of PW-2 at the spot. 30 FIR no.1439/03 PW-2 Babu Lal was also given the suggestion that when he reached the spot by that time the assailants have already escaped and nobody was present there. It again reflects the admission of accused Sunil @ Jony about the reaching of PW-2 at the spot.
43. The respective testimony of PW-1 to PW-3 proved the following facts:--
i) The Chottu (since deceased) was returning from the Jalebi Chowk alongwith PW-1 in the evening of 31.1.2.2003 at about 8 p.m. Both of them were reached near Railway Line, Kirari Faatak.
ii) PW-1 Rahul and Chottu (since deceased) were assaulted by four boys. PW-1 Rahul was taken towards the bushes.
iii)PW-1 Rahul after being escaped from spot came to the house of PW-2 and PW-3. Thereafter all of them went back to the spot where Chottu (since deceased) was lying in injured condition
iv) The light was available at the spot, as such, there was every occasion for PW-2 and PW-3 to see the accused Sunil @ Jony at the spot.
v) Chottu (since deceased) was removed to Sanjay Gandhi Memorial Hospital for treatment.
44. There are other evidences to establish the identity of the accused Sunil @ Jony as one of the assailants. On 6.1.2004, accused Sunil @ Jony was apprehended by PW-5 HC Gajender Singh and PW-11 Ct. Davender. PW-13 ASI SI Anil Kumar alongwith Ct. Tek Chand after receipt of DD no.20A ExPW12/A also went at the place where accused Sunil @ Jony was 31 FIR no.1439/03 apprehended alongwith other co-accused. PW-13 SI Anil Kumar recovered knife ExP1 at the instance of accused Sunil @ Jony from his house bearing no.5/49, Friends Enclave, Sultanpuri which was taken into possession vide seizure memo ExPW1/D. The sketch of the knife ExPW5/C was prepared. The two knives were also recovered at the instance of accused Ajit Kumar and Vijay Bhaskar. The perusal of seizure memo ExPW1/D reflects that accused Sunil @ Jony got recovered knife ExP1 in the presence of PW-1 Rahul, PW-5 HC Gajender Singh, PW-11 Ct. Davender and PW-13 SI Anil Kumar. PW-1 Rahul turned hostile as to the recovery of knife ExP1 in his presence at the instance of accused Sunil @ Jony but he admitted his signature at point A on seizure memo ExPW 1/D. Remaining PWs deposed about recovery of knife ExP1 at the instance of accused Sunil @ Jony from his house. There is no reason to disbelieve testimonies of police officials regarding recovery of knife ExP1. It is proved that knife ExP1 was recovered at the instance of accused Sunil @ Jony and seized vide memo ExPW5/C.
45. All the three knives were sealed by the IO PW-13 SI Anil Kumar with the seal of AKP and were deposited in the Malkhana as reflected from the testimony of PW-14 HC Yashbir Singh MHC (M). PW-14 HC Yashbir Singh deposed that on 6.1.2004 PW-13 SI Anil Kumar deposited three pulundas of knives duly sealed with the seal of AKP vide entry at serial no.7590 in register 32 FIR no.1439/03 no.19, the photocopy of which is ExPW14/A. As per seizure memo ExPW1/D, the total measurement of knife ExP1 stated to have been recovered at the instance of accused Sunil @ Jony was 33.5 cm. The length of the handle was 12.5 cm and length of the blade was 21 cm. PW-13 SI Anil Kumar delivered all the three knives to PW-4 V.K. Jha for obtaining opinion on the weapon of offence. PW-4 Dr. V.K. Jha gave his opinion ExPW4/C and as per opinion ExPW4/C the injury described in the post mortem report ExPW4/C could have been caused by the weapon no.2 i.e the knife ExP1 recovered from the possession of accused Sunil @ Jony. PW-4 Dr. V.K. Jha also prepared the sketch of weapon which is ExPW4/D. The measurement mentioned in sketch ExPW4/D are exactly same with the measurements of knife ExP1 recovered at the instance of accused Sunil @ Jony. The respective testimony of PWs establish that the Chottu (since deceased) received the injuries by knife which was recovered at the instance of accused Sunil @ Jony on 6.1.2009. It also establishes the presence of accused Sunil @ Jony at the spot at the time of commission of offence. Even as per the FSL Report ExPW16/A , the weapon of offence, stated to have been recovered at the instance of accused Sunil @ Jony, was found to have been rusty brownish stains which is indicative of human blood. The prosecution has also proved the FSL Report as ExPW16/A. 33 FIR no.1439/03
46. Arguments advanced by Amicus Curie that PW-1 Rahul turned hostile regarding identity of accused Sunil @ Jony and no test identification parade of accused Sunil @ Jony was conducted as such identity of accused Sunil @ Jony not proved in accordance with law, are without any force. After considering the totality of the evidence led by the prosecution, it is proved that the accused Sunil @ Jony was present at the spot and was one of the assailant who inflicted injuries on the person of Chottu (since deceased) by using knife ExP1.
47. The prosecution to prove the guilt of accused i.e committing of robbery by using a deadly weapon and causing death of Chottu examined various witnesses such as eye witnesses, police officials who have been taken part in the investigation and Investigating Officer. The testimony of PW-1 Rahul reflects that on 31.12.2003, at about 8 p.m. Chottu (since deceased) was returning from Jalebi Chowk alongwith PW-1 Rahul and when they reached near Railway Line, Kirari Faatak, Sultanpuri, four boys came out from the bushes and caught hold of them. They took search of PW-1 Rahul and Chottu (since deceased). They snatched Rs.10/- from the pocket of PW-1 and took the Chottu (since deceased) towards one side. It is reflected from the testimony of PW-1 Rahul that Chottu (since deceased) did not hand over the money to the said boys and started to grapple with those boys. The PW-1 34 FIR no.1439/03 Rahul after being escaped from the spot went to the house of PW-2 Babu Lal and PW-3 Babloo. The respective testimony of PW-2 and PW-3 reflect that they went to the spot alongwith PW-1 Rahul where they saw that 3-4 boys were kicking and punching Chottu (since deceased) and one boy was holding a knife in his hand. PW-2 and PW-3 found that Chottu (since deceased) was bleeding profusely. The Chottu (since deceased) taken to the hospital by PW- 1 to PW-3. The accused Sunil @ Jony in the cross examination of PW-2 Babu Lal admitted the reaching of PW-2 Babu Lal at the spot. PW-2 and PW-3 are the natural witnesses who witnessed the incident and also identified the accused Sunil @ Jony as one of the assailants. PW-1 to PW-3 did not depose about the infliction of injuries by knife ExP1 by Sunil @ Jony. It is discussed herein above that Chottu (since deceased) received injuries from knife which was recovered at the instance of Sunil @ Jony and was taken into possession vide seizure memo ExPW1/D. It is also corroborated by post mortem report ExPW4/A. It is proved that the accused Sunil @ Jony stabbed Chottu (since deceased) only with a view to rob him and when the Chottu (since deceased) did not hand over the money to accused Sunil @ Jony and other co-accused then all the four accused caught hold the Chottu (since deceased). The PW-1 proved the statement ExPW1/A which was recorded by the first Investigating Officer PW-11 ASI Wazir Singh. The perusal of ExPW1/A reflects that PW-1 35 FIR no.1439/03 heard the noise and beatings given by all the accused to Chottu (since deceased). The accused Sunil @ Jony while attempting to commit robbery also used the knife ExPW-1. There is no evidence that accused Sunil @ Jony actually taken out the money from the pocket of Chottu (since deceased) but is is proved that accused Sunil @ Jony attempted to commit robbery. The prosecution as such proved the case against the accused Sunil @ Jony u/s 394/397 IPC.
48. The next point which needs consideration is that whether under given facts and circumstances the case is covered u/s 302 or 304 IPC. The Chottu (since deceased) died due to the injuries inflicted by the knife ExP1 recovered at the instance of accused Sunil @ Jony. The facts proved are not sufficient to prove that accused Sunil @ Jony was having requisite intention to kill Chottu (since deceased). It is correct that the accused Sunil @ Jony was possessing knife ExP-1 when he alongwith other co-accused apprehended the PW-1 Rahul and Chottu (since deceased). The accused Sunil @ Jony inflicted injuries by knife ExP-1 when Chottu (since deceased) did not hand over the money and started to grapple with the accused Sunil @ Jony and other co- accused.
49. The accused Sunil @ Jony alongwith other co-accused were gathered at the spot only to commit robbery. There was no inte ntion on their 36 FIR no.1439/03 part to cause the death of Chottu (since deceased) while committing the robbery. Even there is no evidence that the intention was developed at the spot when Chottu (since deceased) refused to hand over the money to them. It appears that the injuries were inflicted by the accused Sunil @ Jony only to put the Chottu (since deceased) under the fear so that he can hand over the money and other belongings to them. However accused Sunil @ Jony was having sufficient knowledge that the injuries inflicted on the person of Chottu (since deceased) are likely to cause death as reflected from nature of injuries.
50. PW-4 Dr. V.K. Jha who conducted post mortem deposed that on examination, he found the following external injuries on the body :--
1) Incised punctured would on left thigh interior aspect size 3 cm X 1Cm X bone deep at the junction of upper one third and lower two third of thigh obliquely placed margin are clean cut and well defined. Both angles were acute. On further examination of the wound it is cutting skin muscles and femoral vessel with large hematoma in muscles.
2) Incised punctured wound on right forearm outer aspect 9 cm above the right wrist joint size 2 cm X 1cm X muscle deep. Margins are clean cut and both angles are acute.
PW-4 opined that the cause of death was hemorrhagic shock as a result of stab injuries inflicted by other party. As per PW-4 the injury no.1 was sufficient to cause death in the ordinary course of nature. Injury No.1 was proved to be fatal. The PW-4 deposed that the time since death is consistent 37 FIR no.1439/03 with hospital timing of death. PW-4 deposition about the incised punctured would on right forearm is corroborated by the testimony of PW-3 who deposed that he saw two stabbed wounds on the arms of Chottu (since deceased). After considering all facts, the prosecution has proved the case against the accused Sunil @ Jony beyond reasonable doubt u/s 304 II IPC.
51. In view of above discussion, the accused Sunil @ Jony is convicted u/s 394/397 IPC and u/s 304 II IPC.
Announced in open court (Dr.Sudhir Kumar Jain) on 28.4.2009. ASJ-01 (Outer) Rohini, Delhi.
38FIR no.1439/03
IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER), ROHINI : DELHI FIR No:1439/03 PS: Sultanpuri Under Section :324/394/392/304/302 IPC Sessions Case No:725/2006 Date of Institution: 05.07.2004 Date of Decision : 28.4.2009 State Versus Sunil @ Jony S/o Ashok Kumar R/o 5/49, Friends Enclave, Sultanpuri, Delhi.
ORDER ON SENTENCE
1) Ms. Usha Rani, Advocate/Amicus Curie for the accused Sunil @ Jony and Sanjay Soni, APP for the State heard on quantum of sentence.
1. The APP for the State stated that convict Sunil @ Jony alongwith other co-accused with a view to commit robbery was present at the Railway Line, Kirari Fatak, Sultanpuri and when the PW-1 Rahul and deceased Chottu 39 FIR no.1439/03 (since deceased) came towards that side, at that time, convict Sunil @ Jony surrounded both of them. When Chottu (since deceased) refused to deliver the money, the convict Sunil @ Jony inflicted injuries on the person of Chottu (since deceased) by knife ExPW-1 which proved to be fatal and resulted in the death of Chottu. The APP further stated that convict Sunil @ Jony has committed henious offence and untimely death of Chottu might have caused irreparable loss and injury to his family. APP stated that crimes are increasing in the society and it is the duty of the court to award sufficient imprisonment to the convict once the offence is proved beyond reasonable doubt so that the peace, law and order in the society be maintained.
2. Amicus Curie stated that convict is a young boy and his antecedents are clear; no any other criminal case is pending against convict Sunil @ Jony. Amicus Curie prayed for lenient view.
3. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on 40 FIR no.1439/03 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. 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.
4. It was observed in case of Dhananjoy Chatterjee @ Dhana V State of West Bengal, 1995 AIR SCW 510 as under :--
Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it in imposing sentences, in the absence of specific legislation. Judges must consider variety of factors and after considering all those factors and taking an over-all view of the situation impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.41 FIR no.1439/03
In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the courts reflects public abhorrence of the crime. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
4. It was also observed in case of Jashubha Bharatsing Gohil V State of Gujarat, (1994) 4 SCC 353 that the protection of the society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence.
5. It was observed in case of Shivaji @ Dadya Shankar Alhat V State of Maharashtra, 2008 (4) RCR (Criminal) 202 as under :--
Proportions between crime and punishment is a goal respected in principles, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But infact, quite apart from those considerations that make punishment disproportionate punishment has some very undesirable practical consequences.42 FIR no.1439/03
6. It was held in the case of Siddarama & Ors. V State of Karnataka, (2007) 1 SCC (Cri) 72 :--
the object should be to protect the society and to deter the criminal in 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.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences relating to narcotic drugs or psychotropic substances which have great impact not only on the health fabric but also on the social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time or personal inconveniences in respect of such offences will be result wise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
7. In case State of Punjab V Prem Sagar and Ors. (2008) 7 SCC 550 it was observed that the Indian Judicial System has not been able to develop legal principles as regards sentencing. It was further observed that whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would depend upon the facts and circumstances of each case and while doing so nature of 43 FIR no.1439/03 offence said to have been committed by the accused plays an important role.
A wide discretion is conferred on the court but said discretion must exercise judicially while sentencing an accused. It would depend upon the circumstances in which the crime has been committed and the mental state and the age of the accused is also relevant. It was observed as under :--
In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so.
Whether the court while awarding sentence would take recourse to the principle of deterrence or reform or invoke the doctrine of proportionality would no doubt depend upon the facts and circumstances of each case. While doing so, however, the nature of the offence said to have been committed by the accused plays an important role. The offences which affect public health must be dealt with severely. For the said pupose, the courts must notice the object for enacting Article-47 of the Constitution of India.
A sentence is a judgment on conviction of a crime. It is resorted to after a person is convicted of the offence. It is the ultimate goal of any justice-delivery system. Parliament, however, in providing for a hearing on sentence, as would appear from sub-section(2) of Section 235, sub-section (2) of Section 248, Section 325 ans also Section 360 and 361 of the Code of Criminal Procedure, has laid down certain principles.
The said provisions lay down the principle that the court in awarding the sentence must take into consideration a large number of relevant factors; sociological backdrop of the accused being one of them.
44FIR no.1439/03
Although a wide discretion has been conferred on the court but said discretion must exercise judicially. It would depend upon the circumstances in which the crime has been committed and the mental state. Age of the accused is also relevant.
8. In the instant case, the convict Sunil @ Jony in attempt to commit robbery, inflicted injuries on the person of Chottu with knife ExPW-1 which proved to be fatal. The Chottu (since deceased) at that time was aged about only 17 years. His family members have lost his love and affection. The parent of the Chottu are poor and they would enjoy the support of Chottu if he had been alive. The untimely death of the Chottu must have caused irreparable loss and injury to his family members. The convict Sunil @ Jony only to satisfy his lust for money eliminated one precious life from the earth.
9. After considering all facts and socio economic position of the convict Sunil @ Jony, the ends of justice will be achieved, if the convict Sunil @ Jony is sentenced to undergo rigorous imprisonment for a period of seven years and fine of Rs.1000/- in default three months SI for offence u/s 394/397 IPC and rigorous imprisonment for ten years alongwith fine of Rs.2000/- in default SI for four months for offence punishable u/s 304 II IPC. Both the sentences shall run concurrently. The case property is confiscated to the State. Benefit of Section 428 IPC be given to the convict. Committal warrants be issued 45 FIR no.1439/03 against the convict. A copy of the judgment and order on sentence be supplied to the convict free of cost forthwith. The file be consigned to the record room.
Announced in open court (Dr.Sudhir Kumar Jain) on 28.4.2009 ASJ-01 (Outer) Rohini, Delhi. 46 FIR no.1439/03 FIR No:1439/03 PS Sultanpuri Sessions Case No.725/06 28.4.2009 Present : Shri Sanjay Soni, APP for the State. Accused Sunil @ Jony in JC with Ms. Usha Rani, Advocate/Amicus Curie. Vide separate judgment accused Sunil @ Jony is convicted u/s
394/397 IPC and u/s 304 II IPC. Arguments heard on order on sentence.
Vide separate order on sentence the convict Sunil @ Jony is sentenced to undergo rigorous imprisonment for a period of seven years and fine of Rs.1000/- in default three months SI for offence u/s 394/397 IPC and rigorous imprisonment for ten years alongwith fine of Rs.2000/- in default SI for four months for offence punishable u/s 304 II IPC. Both the sentences shall run concurrently. The case property is confiscated to the State. Benefit of Section 428 IPC be given to the convict. Committal warrants be issued against the convict. A copy of the judgment and order on sentence be supplied to the convict free of cost forthwith. The file be consigned to the record room.
(Dr.Sudhir Kumar Jain) ASJ-01(Outer)/Rohini/Delhi