Punjab-Haryana High Court
Ajay Alias Opinder vs State Of Punjab on 6 August, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.
393
CRA-S-485-SB-2007.
Decided on: August 6, 2022.
Ajay alias Opinder
... Appellant - accused
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
PRESENT Mr. H.S.Thiara, Advocate,
for the appellant.
Mr. Karanbir Singh, AAG, Punjab.
VINOD S. BHARDWAJ. J. (ORAL)
The present appeal has been preferred against the judgment of conviction and order of sentence dated 05.12.2006, passed by the Sessions Judge, Kapurthala, in Sessions Case No. 17 dated 03.03.2006 arising out of FIR No. 208 dated 18.12.2005 registered under Sections 307 and 450 of the Indian Penal Code (hereinafter referred to as 'IPC') at Police Station Sultanpur Lodhi, District Kapurthala.
1 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -2- 2 The facts, in brief, are that the appellant - accused was the tenant in the house of Darbara Singh, Carpenter in Sultanpur Lodhi. Santosh Rani has been running a grocery shop in her house in Sultanpur Lodhi in Mohalla Sathrangra. Appellant - accused used to buy grocery items on credit from the shop of Santosh Rani and amount of Rs.2500 to Rs.3000/- was outstanding against the appellant- accused. On being asked to pay the said amount, he told Santosh Rani that he would clear the dues. At about 2.30 P.M. on 18.12.2005, appellant- accused came inside her house and told her that he is going to settle the dues. He then attacked her daughter Nisha with a datar and caused many injuries to her with the intent to kill her. On alarm being raised by her, her son Sukhwinder Pal, who was standing on the roof top, was attracted to the spot. Some other neighbourers also reached there and appellant- accused ran away from the spot along with the weapon. Nisha injured was got admitted in Civil Hospital, Sultanpur Lodhi, from where she was referred to Jalandhar.
3 On the basis of statement Ex. PB of Santosh Rani, which was recorded by Sakattar Singh ASI, formal FIR Ex. PB/1 was registered in police station Sultanpur Lodhi by Iqbal Singh, ASI, who also recorded the statement of Sukhwinder Pal, brother of Nisha, at Wassal Hospital, Jalandhar, under Section 161 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'). On 19.12.2005, Sakattar Singh, ASI along with other police officials inspected the spot of occurrence, lifted blood from the floor of the courtyard, put the same in a small plastic box, converted that into a parcel, which was sealed by Sakattar Singh. Sakattar Singh, ASI also prepared rough site plan Ex.PS 2 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -3- of the place of occurrence as also recorded the statements of Shiv Kumar, MC Joginder Singh, HC and Tarsem Lal. On 21.12.2005, appellant - accused was arrested sitting underneath banyan tree near water treatment plant, Sultanpur Lodhi, and was interrogated and during interrogation he suffered disclosure statement Ex.PK that he had kept concealed datar in dry grass underneath the peepal tree behind FCI godowns, Sultanpur Lodhi, and later led the police party to the place of concealment and got recovered datar from the place of concealment, whose rough sketch Ex.PL was prepared by Sakattar Singh, ASI. 4 Since datar was blood stained, it was sealed into a parcel with seal. Sakattar Singh, ASI also prepared rough site plan of place of recovery of datar Ex.PU. Personal search of appellant - accused yielded nothing. Sakattar Singh, ASI also recorded statements of Tarsem Lal and Joginder Singh, H.C. under Section 161 Cr PC. and on return to the Police Station, he deposited the case property on 19.12.2005 with Kirpal Singh, MHC in an intact condition.
5 On 24.12.2005, Sakattar Singh, ASI, learnt about discharge of Nisha, injured from the hospital and he went to her house and recorded her statement under Section 161 Cr.P.C. and he also recorded the statement of Sukhwinder Singh, Constable, Kirpal Singh, M.H.C. and Harjinder Singh, Constable. On 17.01.2006, an application was moved to the doctor at Civil Hospital, Sultanpur Lodhi by Sakattar Singh, ASI and the former gave report Ex.PE/1. On 21.01.2006, Sakattar Singh, ASI got prepared scaled site plan of place of occurrence Ex.PA from Ajit Singh, draftsman, and recorded his statement. He also received report Ex.PV from Forensic Science Laboratory.
3 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -4- 6 After completion of investigation, Station House Officer of Police Station Sultanpur Lodhi, instituted police report under Section 173 Cr.P.C. in the court of Learned Illaqa Magistrate, to the effect that it appears that the appellant - accused has committed offences punishable under Sections 452, 307, 324, and 450 IPC.
7 On presentation of the police report, copies of documents, as required under Section 207 Cr.P.C. were supplied to the appellant - accused by the learned Illaqa Magistrate, and the case was committed to the Court of Sessions for trial. 8 The charge was framed against the appellant for commission of offence under Sections 307 and 450 IPC on 07.03.2006 to which the appellant pleaded not guilty and claimed trial. Consequently, the prosecution evidence was summoned. 9 At the trial, prosecution examined Ajit Singh Matharu as PW1, Iqbal Singh ASI as PW2, Kirpal Singh HC as PW3, Harjinder Singh HCS as PW4, Dr. Rajan Bhatti as PW5, Santosh Rani as PW6, Tarsem Lal as PW7, Dr. Pankaj Trivedi as PW8, Nisha as PW9, Sukhwinder Singh Constable as PW10, Shiv Kumar as PW11, Sakattar Singh ASI as PW12 and closed the evidence 10 After closure of the prosecution evidence, appellant
- accused was examined under Section 313 Cr.P.C. wherein, he denied the allegations of the prosecution and pleaded innocence. He gave his own version that a false case has been registered against him as Nisha was having illicit relations with him, who used to write letters to him which are Marks A, B and C and she was compelling her parents to arrange marriage with him, but her parents did not agree to her proposal, 4 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -5- and they caused injuries to her and implicated him falsely in this case in order to save their own skin. Appellant - accused was called upon to enter into defence, but he closed the same without examining any witness in defence.
11. Upon consideration of the submissions advanced by the prosecution as well as by the learned defence counsel, the learned trial Court convicted the appellant and sentenced him as under:-
Name of Under Sentence
convict Section
Ajay alias 307 IPC To undergo rigorous
Opinder imprisonment for a
period of four years and
to pay a fine of
Rs.1,000/- and in
default of payment of
fine to further undergo
rigorous imprisonment
for a period of one
month.
450 IPC To undergo rigorous
imprisonment for a
period of four years and
to pay a fine of
Rs.1,000/- and in
default of payment of
fine to further undergo
rigorous imprisonment
for a period of one
month.
It was ordered that both the sentences shall run concurrently.
12 Aggrieved of the aforesaid judgment of conviction and order of sentence dated 05.12.2006, appellant - accused has preferred the present appeal.
ARGUMENTS 5 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -6- 13 During the course of hearing on the appeal, learned counsel appearing on behalf of the appellant - accused has contended that he does not wish to press the present appeal on merits and does not wish to raise a challenge to the judgment of conviction and that he would confine his submissions only to the question of quantum of sentence.
14. The learned counsel appearing on behalf of the appellant - accused has thus referred to the following mitigating circumstances for seeking relaxation in the sentence so awarded to him by the learned trial Court:-
(i) That the offence in question is alleged to have been committed in the year 2005. The appellant - accused himself was a young boy of about 20 years of age at the time of the commission of the said offence.
(ii) That the appellant - accused has already faced the agony of protracted criminal trial for a period of nearly 17 years and has not indulged in the commission of any other offence.
(iii) That the appellant - accused has already undergone actual custody of nearly 1 year and 4 months out of the total sentence of 4 years awarded by the learned trial Court vide order dated 05.12.2016.
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(iv) That the incident in question was an outcome of a scuffle and at the spur of the moment and the same was not pre-mediated.
(v) That the appellant - accused is now nearly 40 years of age and in the midst of his life. He has his entire family to support and sustain.
(vi) That appellant - accused and his family are working as daily labourers and that compelling the appellant - accused to undergo the remainder of his substantive sentence of imprisonment would render his family to penury.
15. Learned counsel appearing on behalf of the State vehemently contends that the prosecution has duly established its case against the petitioner - accused and that it is imperative that harsh punishment be imposed upon the criminals so as to send a strict message to the Society. The punitive aspect of the punishment has deterrent effect in the society and effectively checks repetition of the offence by the accused and controls any allurement of other persons from foraying into the adventure.
PARAMETERS AND PRINCIPLES OF SENTENCING:
16. The Hon'ble Supreme Court has laid down certain principles to govern the Courts in the matter of sentencing. Reference in this regard is made to the judgment of the Hon'ble Supreme Court in the 7 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -8- matter of State of Punjab Vs. Prem Sagar & Ors (2008) 7 SCC 550, the relevant extract of the said judgment is reproduced hereinbelow:-
'Whether the court while awarding a 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 circumstance of each case.
5. 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 purpose, the courts must notice the object for enacting Article 47 of the Constitution of India.
6. There are certain offences which touch our social fabric. We must remind ourselves that even while introducing the doctrine of plea bargaining in the Code of Criminal Procedure, certain types of offences had been kept out of the purview thereof. While imposing sentences, the said principles should be borne in mind.
7. 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. The 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 as also Sections 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.
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8. Although a wide discretion has been conferred upon the court, the same must be exercised judiciously. It would depend upon the circumstances in which the crime has been committed and his mental state. Age of the accused is also relevant.
9. What would be the effect of the sentencing on the society is a question which has been left unanswered by the legislature. The Superior Courts have come across a large number of cases which go to show anomalies as regards the policy of sentencing. Whereas the quantum of punishment for commission of a similar type of offence varies from minimum to maximum, even where same sentence is imposed, the principles applied are found to be different. Similar discrepancies have been noticed in regard to imposition of fine.
10. In Dhananjoy Chatterjee Alias Dhana v. State of W.B. [(1994) 2 SCC 220], this Court held:
"15...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 befitting the crime so that the courts reflect public abhorrence of the crime..."
11. Gentela Vijayavardhan Rao and Another v. State of A.P. [(1996) 6 SCC 241], following Dhananjoy Chatterjee (supra), states the principles of deterrence and retribution but the same cannot be categorized as right or wrong. So much depends upon the belief of the judges.
12. In a recent decision in Shailesh Jasvantbhai and Another v. State of Gujarat and Others [(2006) 2 SCC 359], this Court opined:
"7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons 9 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -10- and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. 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, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be--as it should be--a decisive reflection of social consciousness of society." Therefore, 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.
Relying upon the decision of this Court in Sevaka Perumal v. State of T.N. [(1991) 3 SCC 471], this Court furthermore held that it was 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.
18. Don M. Gottfredson in his essay on "Sentencing Guidelines" in "Sentencing: Hyman Gross and Andrew von Hirsch" opines:
10 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -11- "It is a common claim in the literature of criminal justice- and indeed in the popular press- that there is considerable "disparity" in sentencing.. The word "disparity" has become a prerogative and the concept of "sentencing disparity" now carries with it the connotation of biased or insidious practices on the part of the judges. This is unfortunate in that much otherwise valid criticism has failed to separate justified variation from the unjustified variation referred to as disparity. The phrase "unwarranted disparity" may be preferred; not all sentencing variation should be considered unwarranted or disparate. Much of it properly reflects varying degrees of seriousness in the offense and/or varying characteristics of the offender.
Dispositional variation that is based upon permissible, rationally relevant and understandably distinctive characteristics of the offender and of the offense may be wholly justified, beneficial and proper, so long as the variable qualities are carefully monitored or consistency and desirability over time. Moreover, since no two offenses or offenders are identical, the labeling of variation as disparity necessarily involves a value judgment- that is, disparity to one person may be simply justified variation to another. It is only when such variation takes the form of differing sentences for similar offenders committing similar offenses that it can be considered disparate."
[Emphasis supplied] The learned author further opines:
"In many jurisdictions, judicial discretion is nearly unlimited as to whether or not to incarcerate an individual; and bound only by statutory maxima, leaving a broad range of discretion, as to the length of sentence."
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19. Kevin R. Reitz in Encyclopedia of Crime and Justice, Second edition "Sentencing guidelines" states:
"All guideline jurisdictions have found it necessary to create rules that identify the factual issues at sentencing that must be resolved under the guidelines, those that are potentially relevant to a sentencing decision, and those viewed as forbidden considerations that may not be taken into account by sentencing courts. One heated controversy, addressed differently across jurisdictions, is whether the guideline sentence should be based exclusively on crimes for which offenders have been convicted ("conviction offenses"), or whether a guideline sentence should also reflect additional alleged criminal conduct for which formal convictions have not been obtained ("nonconviction offenses").
Another difficult issue of fact-finding at sentence for guideline designers has been the degree to which trial judges should be permitted to consider the personal characteristics of offenders as mitigating factors when imposing sentence. For example: Is the defendant a single parent with young children at home? Is the defendant a drug addict but a good candidate for drug treatment? Has the defendant struggled to overcome conditions of economic, social or educational deprivation prior to the offense? Was the defendant's criminal behavior explicable in part by youth, inexperience, or an unformed ability to resist peer pressure? Most guideline states, once again including all jurisdictions with voluntary guidelines, allow trial courts latitude to sentence outside of the guideline ranges based on the judge's assessment of such offender characteristics. Some states, fearing that race or class disparities might be exacerbated by unguided consideration of such factors, have placed limits on the list of eligible concerns. (However, such factors may 12 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -13- indirectly affect the sentence, since judges are permitted to base departures on the offenders particular "amenability" to probation (Frase, 1997).)"
20. Andrew von Hirsch and Nils Jareborg have divided the process of determining sentence into stages of determining proportionality while determining a sentence, namely:
1. What interest are violated or threatened by the standard case of the crime- physical integrity, material support and amenity, freedom from humiliation, privacy and autonomy.
2. Effect of violating those interests on the living standards of a typical victim- minimum well-being, adequate well-being, significant enhancement
3. Culpability of the offender
4. Remoteness of the actual harm as seen by a reasonable man.'
17. The said issue was also examined by the Hon'ble Supreme Court in the matter of Soman Vs. State of Kerala, (2013) 11 SCC 382, the relevant extract of the said judgment is reproduced hereinbelow:-
'15. Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our country, it is the weakest part of the administration of criminal justice. There are no legislative or judicially laid down guidelines to assist the trial court in meting out the just punishment to the accused facing trial before it after he is held guilty of the charges. In State of Punjab v. Prem Sagar (2008) 7 SCC 550, this Court acknowledged as much and observed as under -
"2. In our judicial system, we have not been able to develop legal principles as regards sentencing. The superior courts except making observations with regard 13 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -14- to the purport and object for which punishment is imposed upon an offender, have not issued any guidelines. Other developed countries have done so. At some quarters, serious concerns have been expressed in this behalf. Some committees as for example Madhava Menon Committee and Malimath Committee have advocated introduction of sentencing guidelines."
16. Nonetheless, if one goes through the decisions of this Court carefully, it would appear that this Court takes into account a combination of different factors while exercising discretion in sentencing, that is proportionality, deterrence, rehabilitation etc.
14. In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness. The question is whether the consequences of the offence can be taken as the measure for determining its harmfulness? In addition, quite apart from the seriousness of the offence, can the consequences of an offence be a legitimate aggravating (as opposed to mitigating) factor while awarding a sentence. Thus, to understand the relevance of consequences of criminal conduct from a Sentencing standpoint, one must examine: (1) whether such consequences enhanced the harmfulness of the offence; and (2) whether they are an aggravating factor that need to be taken into account by the courts while deciding on the sentence.
26. Punishment should acknowledge the sanctity of human life. We fully agree.
27. From the above, one may conclude that:
14 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -15- 27.1. Courts ought to base sentencing decisions on various different rationales - most prominent amongst which would be proportionality and deterrence.
27.2. The question of consequences of criminal action can be relevant from both a proportionality and deterrence standpoint.
27.3. Insofar as proportionality is concerned, the sentence must be commensurate with the seriousness or gravity of the offence.
27.4. One of the factors relevant for judging seriousness of the offence is the consequences resulting from it.
27.5. Unintended consequences/harm may still be properly attributed to the offender if they were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the chances of toxicity are so high that not only its manufacturer but the distributor and the retail vendor would know its likely risks to the consumer. Hence, even though any harm to the consumer might not be directly intended, some aggravated culpability must attach if the consumer suffers some grievous hurt or dies as result of consuming the spurious liquor.
CONCLUSION
18. Taking into consideration the protracted criminal trial and the consequent agony faced by the appellant - accused, the actual sentence out of total sentence already undergone by the appellant - accused, the reformative tendency shown by the appellant - accused by not indulging in any other similar offence, the age of the appellant - accused at the time of the incident as well as the legal principles reproduced above, the present appeal is partly allowed. The judgment of 15 of 16 ::: Downloaded on - 26-12-2022 19:55:06 ::: CRA-S-485-SB-2007 -16- conviction 05.12.2006, passed by the Sessions Judge, Kapurthala, in Sessions Case No. 17 dated 03.03.2006 arising out of FIR No. 208 dated 18.12.2005, registered under Sections 307 and 450 IPC at Police Station Sultanpur Lodhi, District Kapurthala, is hereby affirmed. However, the order of sentence is modified and the sentence awarded to the appellant - accused is reduced to the period already undergone.
The appeal stands partly allowed accordingly.
(VINOD S. BHARDWAJ) JUDGE August 06, 2022 raj arora Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 16 of 16 ::: Downloaded on - 26-12-2022 19:55:06 :::