Gauhati High Court
Iromchitra Devi vs Nongthombam Ajay Meeteiaged And Anr on 19 January, 2022
Author: Ajit Borthakur
Bench: Ajit Borthakur
Page No.# 1/14
GAHC010062772018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./144/2018
IROMCHITRA DEVI
W/O LOKENDRO SINGH
RESIDENT OF WANGKHEI AN OM LEIKAI IMPHAL EAST .
VERSUS
NONGTHOMBAM AJAY MEETEIAGED AND ANR
S/O N BIREN SINGH RESIDENT OF LUWANGSANGBAM, IMPHAL EAST,
MANIPUR PIN CODE. 795002.
2:CENTRAL BUREAU OF INVESTIGATION
NEW DELH
Advocate for the Petitioner : MR. Y. KHAN
Advocate for the Respondents : MR. N.G. SINGH
MR. S.C. KEYAL, SC, C B I Date of hearing : 02.11.2021 Date of Judgment : 19.01.2022 BEFORE HONOURABLE MR. JUSTICE AJIT BORTHAKUR JUDGMENT & ORDER [THROUGH VIRTUAL MODE] Date : 19-01-2022 Heard Mr. Y. Khan, learned counsel for the appellant. Also heard Mr. N.G. Page No.# 2/14 Singh, learned counsel appearing for the respondent No. 1 and Mr. S.C. Keyal, learned Standing Counsel, CBI/respondent No. 2.
2. This appeal under Section 372 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') is filed by the deceased's mother praying for enhancement of inadequate fine imposed on the convicted accused/respondent No. 1 herein to her family by the impugned judgment and order, dated 06.01.2017 in Sessions Trial Case No. 3/2012/50/2013/55 of 2013 passed by the learned Sessions Judge, Imphal West, Manipur.
JURISDICTION:
3. It is pertinent to be mentioned that the instant Criminal Appeal has been preferred before this High Court at Guwahati, Assam as per direction of the Hon'ble Supreme Court of India contained in the order, dated 18.07.2017, passed in W.P. (Criminal) No. (s) 86/2017.
PROSECUTION CASE & INVESTIGATION:
4. The prosecution case, in brief, is that the appellant's son, namely I. Rojer Singh was proceeding at about 2 p.m. on 20.03.2011 towards the Imphal Airport along the Tiddim Road along with his 4 (four) associates in his i-20 Car bearing Registration No. MN-01W-7482. While they were so proceeding, unknown 4/5 miscreants who were also coming in a black colour Bolero Jeep bearing Registration No. MN-03P-2417 from the same direction opened fire upon his son, who was driving his said car at Ghari Village situated opposite to the K.T. Girls' Hostel, without any reason and resultantly, her son sustained fatal bullet injury on his neck. He died on the way to the hospital. Accordingly, a case being F.I.R. No. 131(3) 2011 SJM PSU/S 302/34 of the Indian Penal Code (For short 'IPC') and 27 of the Arms Act, 1959 was registered. However, Page No.# 3/14 in pursuance of the Govt. of Manipur, Home Department Notification dated 01.04.2011 concurred by the notification dated 06.05.2011, the Govt. of India, the case was transferred to the Central Bureau of Investigation (For short 'C.B.I.') for further investigation and accordingly, CBI, ACB, Imphal registered a case being R.C. 2(S)/2011 IMP U/S 302 of the IPC and 27 of the Arms Act against 4/5 unknown miscreants.
TRIAL, CONVICTION & PAYMENT OF COMPENSATION:
5. Thereafter, on completion of investigation, a charge-sheet was laid against the accused respondent No. 1 herein under Section 302 of the IPC and Section 27 of the Arms Act, 1959. Accordingly, the learned Sessions Judge, Manipur East, framed charges against him vide order, dated 25.06.2012 and after trial sentenced him to undergo rigorous imprisonment for a period of 5(five) years and to pay fine of Rs.10,00,000/- (Ten Lakhs) only and in default of payment of fine, to undergo simple imprisonment for a period of 2(two) years under Section 304, Part- II of the IPC. Further, he was sentenced to undergo rigorous imprisonment for a period of 4(four) years and to pay fine of Rs.50,000/- (Fifty Thousand) only, in default to suffer simple imprisonment for 6 (six) months under Section 27 of the Arms Act. The sentences were directed to run concurrently. It was further directed that the aforesaid fine of Rs.10 Lakhs, if deposited, shall be paid to the informant that is, the father of the victim as compensation and the remaining amount of Rs.50,000/- to be deposited with the State Exchequer. Accordingly, on being deposited the aforesaid fine amount, payment was made to the informant father of the deceased vide order, dated 23.05.2018 passed in Crl. Misc. Case No. 31/2018 arising out of Sessions Trial Case No. 55/2013.
Page No.# 4/14 GROUNDS OF APPEAL:
6. Now, the instant appeal has been preferred by the wife of Irom Lokendra Singh, mother of the deceased, inter-alia, on the grounds as hereinbelow extracted-
"A) For that the learned Sessions Judge erred in law as well as in facts, while passing the impugned order dated 06.01.2017 thereby imposing a fine of Rs.10 Lakhs only. As such, the fine imposed is liable to be enhanced.
B) For that the learned Sessions Judge failed to appreciate the evidence on record in its true and proper perspective. As such, the fine imposed by the Trial Court as compensation to the victim is not proper, inadequate and not commensurate having regard to the nature of offence, circumstances, and in the manner in which the offence was committed. As such, the impugned judgment is to be interfered with by this Hon'ble Court by enhancing the fine.
C) For that the learned Trial Court while passing the impugned judgment and order failed to appreciate the evidence on record. And as such, the fine imposed by the Trial Court as compensation to the victim is inadequate and thereby has caused miscarriage of justice. As such, the impugned judgment is to be interfered with by this Hon'ble Court by enhancing the fine.
D) For that the learned Trial Court while awarding the fine as compensation to the victim, it was incumbent upon the Trial Court to consider the age, attending circumstances, nature of crime and pain suffered by the victim and his family.
Awarding of adequate compensation is only corollary to the substantive sentence. Even if the sentence awarded to the accused is adequate as per the judicial conscience the inadequate compensation awarded to the kin of the victim would completely shatter the dream of the appellant to carry out the projects in the name of his son. The cost of a young life though cannot be compensated in terms of money but if the compensation is increased the appellant can do some social work in memory of his son to keep him alive in their daily lives. As such, the impugned Page No.# 5/14 judgment is to be interfered with by this Hon'ble Court by enhancing the fine.
E) For that the learned Trial Court below failed to take into account that just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors. The trial Court, while imposing sentence, has to keep the various complex matters in mind. To structure a methodology relating to sentencing system is difficult to conceive. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard being had to the factual scenario of the case as well to the background of the accused as well as victim. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. Hence, the duty of Court in such situation becomes a complex one. The same has to be performed with due reverence for Rule of Law and the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a-priori notion. But in the instant case the compensation by way of fine is too inadequate and too lenient for the rash crime of murder committed by the accused who is a gun licence holder. As such, the impugned judgment and order is bad in law and liable to be interfered with by this Hon'ble court by enhancing the fine.
F) For that the learned Trial Court while passing the impugned judgment and order failed to take into consideration the nature of the offence, the circumstances in which it was committed. The fine imposed by the learned trial Court appears to be so Page No.# 6/14 grossly and entirely inadequate and the same amounts to failure of justice. As such, the impugned judgment and order is bad in law and liable to be interfered with by this Hon'ble Court by enhancing the fine.
G) For that undue sympathy to impose inadequate compensation would do more harm to the justice system and will surely undermine the public confidence in the efficacy of law and society. That if the courts do not protect the injured, the injured would then resort to private vengeance and, therefore, the duty of every court to award proper compensation having regard to the nature of the offence and the manner in which it was executed or committed. As such, the impugned judgment and order is bad in law and liable to be interfered with by this Hon'ble Court by enhancing the fine."
ARGUMENTS:
7. Appearing for the appellant, Mr. Y. Khan, learned counsel referring to the grounds cited in the memorandum of argument, submitted that as the prosecution has not deliberately preferred an appeal against the impugned judgment and order despite the erroneous appreciation of evidence apparent on record by the learned trial Court, and consequently, meagre sentence of fine being imposed on the accused/respondent No. 1 herein, which is apparently not commensurate with the nature and character of the crime committed. Therefore, the instant appeal is filed by the appellant praying to enhance the inadequate fine amount to the victim's family instead of filing an appeal against the sentence, which right is only available to the prosecution, under Section 372 Cr.P.C. Mr. Khan further submitted citing the ratio of the judgment rendered by the apex court in Govind Ramji Jadhav Vs. State of Maharashtra (1990) 4 SCC 718 wherein it has been held that the High Court under Section 377 Cr.P.C. has powers to act suo motu to enhance the sentence Page No.# 7/14 in appropriate cases while exercising its revisional jurisdiction even in the absence of an appeal against the inadequacy of the sentence as provided under the aforesaid Section of Cr.P.C. Therefore, Mr. Khan vehemently submitted that in the backdrop of facts and attending circumstances as emerged from the evidence on record, the punishment of fine as compensation to the victim's family be adequately enhanced and paid to them.
8. Mr. N.G. Singh, learned counsel appearing for the respondent No. 1, submitted that the appellant, mother of the deceased in her appeal admitted that she is satisfied with the conviction and the substantive part of the sentence awarded against the respondent No.1 except the fine amount imposed by way of compensation to the victim's family. Mr. Singh emphatically submitted that the instant appeal suffers from procedural infirmity being beyond the scope of Section 372 Cr.P.C. by claiming enhancement of the compensation terming the same to be inadequate in asmuch as the aforesaid statutory provision accommodates and gives right to the victim to prefer appeal under three specific grievances, that are, i) acquittal ii) lesser offence and iii) inadequate compensation. Mr. Singh further submitted that a bare reading of Section 401(4) Cr.P.C. which deals with the High Court's power of revision contemplates a bar on the High Court for entertaining an appeal in the form of a revision. In the present case, Mr. Singh submitted that right is granted to the appellant to prefer an appeal under 'lesser offence', but no appeal has been preferred on this ground and confined only to the compensation part of the sentence. Therefore, Mr. Singh submitted that it is not a fit case for this Court to invoke its revisional jurisdiction and to enhance the quantum of compensation awarded to the victim's family by the learned Page No.# 8/14 trial Court vide the impugned judgment and order.
9. Mr. S.C. Keyal, learned Standing Counsel for the respondent No. 2/C.B.I. submitted that although proviso to Section 372 Cr.P.C. says that an appeal is maintainable against conviction or lesser offence or imposition of inadequate fine, in the present appeal, the appellant has prayed for enhancement of fine amount only, which is not maintainable in the backdrop of the facts and attending circumstances in the case.
MAINTAINABILITY OF APPEAL:
10. On the point of maintainability of the instant appeal, a reference may be made to the provisions of Section 372 Cr.P.C., which reads as hereunder-
"372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or any other law for the time being in force.
[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court]
11. On the other hand, Section 377 Cr.P.C. which deals with appeal by the State Government against sentence reads as extracted hereinbelow-
"377. Appeal by the State Government against sentence. - (1) Save as otherwise provided in sub- section (2), the State Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the Public Prosecutor to present [an appeal against the sentence on the ground of its inadequacy-
(a) to the Court of session, if the sentence is passed by the Magistrate;
and
(b) to the High Court, if the sentence is passed by any other Court.] Page No.# 9/14 (2) If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, [the Central Government may also direct] the Public Prosecutor to present [an appeal against the sentence on the ground of its inadequacy-
(a) to the Court of session, if the sentence is passed by the Magistrate;
and
(b) to the High Court, if the sentence is passed by any other Court.] (3) When an appeal has been filed against the sentence on the ground of its inadequacy, [the Court of Session or, as the case may be, the High Court] shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence."
12. A perusal of the above Section 372 Cr.P.C. reveals the legislative intention that an appeal is a creature of statute and not a mere procedural one. A proviso has been inserted thereto vesting right of appeal on the 'victim' (1) when the accused has been acquitted; (2) when the accused has been convicted of the lesser offence and (3) when inadequate compensation has been awarded under Section 357 Cr.P.C. Section 377 Cr.P.C., on the other hand, vests right on the State to prefer an appeal against the sentence on the ground of inadequacy to the forums respectively specified therein. In the instant case, as the respondent No. 2/C.B.I. has not preferred an appeal against the sentence passed vide the impugned judgment and order on the ground of its inadequacy invoking Section 377 Cr.P.C., the victim has preferred the instant appeal under Section 372 Cr.P.C. praying for enhancement of the inadequate fine imposed as compensation to the victim's family while convicting the respondent No. 1/accused in the case from Rs.10 Lakhs to Rs.50 Lakhs under Section 357 Cr.P.C. Therefore, this Court finds that the instant appeal is sustainable in law.
Page No.# 10/14 IMPOSITION OF FINE/COMPENSATION:
13. With regard to the second point on inadequacy of fine or compensation of Rs.10 Lakhs imposed on the respondent No. 1/accused vide the impugned judgment and order, a reference may be made relevantly to Section 357 Cr.P.C. which reads as under-
"357. Order to pay compensation. -
(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;
(d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.
Page No.# 11/14 (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section."
14. The above provision of Section 357 Cr.P.C. empowers the Courts, in substance, to impose a fine or fine along with the sentence of imprisonment, as prescribed by law, but in appropriate cases, direct the accused to pay compensation to the person who has suffered any loss or injury by reasons of the act for which the accused has been sentenced. The basic difference between Sub-Sections (1) and (3) of Section 357 Cr.P.C is that in the former case the imposition of fine is the basic and essential requirement, while in the latter, even in the absence thereof empowers the Court to direct payment of compensation. To make it more clear, sub-section (3) is not attracted when fine is imposed as part of sentence or where the Court has imposed a sentence which does not include a fine. The fine may be ordered to be paid, in whole or any part thereof, if recovered from the convict, to the victim. It needs a mention that 'Fine' is punishment, whereas 'Compensation' means indemnification by way of payment of damages in terms of money. In the instant case, a perusal of the sentence part of the impugned judgment and order goes to show that the learned trial Court has imposed, in addition to sentences of imprisonment, fine of Rs.10 Lakhs, and Rs.50,000/- only under Section 304, Part- II of the IPC and Section 27 of the Arms Act, 1959 respectively and directed that the fine of Rs.10 Lakhs, if deposited, to be paid to the father of the victim while the remaining amount of Rs.50,000/- to be deposited with the State Exchequer. Thus, the aforesaid sentence to pay fine of Rs.10 Lakhs in addition to imprisonment under Section 304, Part- II of the IPC with direction to pay the aforesaid amount as compensation to the deceased's Page No.# 12/14 father invoking Section 357 (1) Cr.P.C.
QUESTION OF INADEQUACY OF FINE AMOUNT:
15. The next pertinent point is whether the aforesaid amount of compensation was inadequate in the facts and circumstances of the case to the victim's family? In Rachhpal Singh Vs. State of Punjab, reported in (2002) 6 SCC 462, the Hon'ble Supreme Court held that compensation should be commensurate with the capacity of the accused to pay as also other facts and circumstances of the case like the gravity of the offence, needs of the victim's family etc. In Sube Singh Vs. State of Haryana, reported in (2006) 3 SCC 178, it has been held by the Hon'ble Apex Court that the quantum of compensation depends upon the facts and circumstances of each case. Likewise, in Hari Kishan Vs. Sukhbir Singh & Ors., reported in (1988) 4 SCC 551, it has been observed that the Court is to take into account the nature of the crime, the injury suffered, the justness of the claim of the victim and the ability of the accused to pay.
16. The learned trial Court in its impugned judgment held the accused/respondent No. 1 guilty of the offences observing as quoted hereinbelow (Relevant Portion)-
"In the case in hand, it is crystal clear from the statements of P.W. Nos. 20,21,22,23,24,30,42 and 43 that the unfortunate incident was happened when the i- 20 Car driven by the deceased I. Rojer and the involved black Bolero were trying to overtake to each other 2/3 times relating to teasing of two girls driving Honda Activa along the Tiddim Road and suddenly, the accused shot towards the i-20 Car with his license Pistol, M-20 and hit Irom Rojer Singh, the driver of the i-20 car on his neck Page No.# 13/14 and succumbed to his injuries. There is no evidence to show that the accused and the deceased were known to each other and having enmity between them prior to the incident. There is also no evidence to show that the accused shot his gun by aiming particularly to the deceased, I. Rojer only with intention of causing death of Irom Rojer and thus, it shows that the act of shooting by the accused towards the i- 20 car was due to deprivation/loosing of the power of self-control by grave and sudden provocation relating to overtaking of their vehicles. However, the accused who was aged about 27 years at the time of incident, carrying license gun and having vehicle in his name, shall be deemed to have knowledge that causing such bodily injury to human being from a firearm [pistol] is likely to cause death of human being.
Resultantly, I come to the conclusion that the act of the accused shooting from his licence Pistol towards i-20 Car thereby causes the death of Irom Rojer, falls in the exception No. 1 of Section 300 IPC and thus, it is culpable homicide not amounting to murder and further, there is no material to establish that the accused shot to the deceased with the intention of causing death of the deceased, I. Rojer Singh and therefore, it squarely comes under the purview of Section 304 part-II IPC."
17. It is noticed that the learned trial Court while awarding the sentence to the convicted accused/respondent No. 1 herein after hearing both sides at length and appreciation of evidence further observed as under-
"In the instant case, the accused was aged about 25 years at the time of incident, and so, the incident was happened at his prime/young age. I do agree that during the course of trial the accused has always been appeared before the Court on every date fixed by the Court very politely. The accused has no previous criminal record and it has already opined in the Judgment that the said crime was committed by the accused without any premeditation."
CONCLUSION:
[ADEQUATE COMPENSATION PAID] Page No.# 14/14
18. Thus, it is seen that the learned trial Court while determining the fine amounts carefully considered a variety of factors regard being had to the implicit pecuniary circumstances of the accused/respondent No. 1, who was a young entrepreneur aged about 25/27 years and to the character and magnitude of the offences and further, apportioning the same reasonably towards payment of compensation to the victim family of the deceased within the principle of law laid in Section 63 of the IPC read with Section 357 (2) Cr.P.C. Accordingly, on being satisfied, the appellant's husband, the informant Irom Lokendro Singh received the compensation amount of Rs.10 Lakhs on 23.05.2018 without protest vide order, dated 23.05.2018 passed in Crl. Misc. Case No. 31 of 2018 and as such, in the opinion of this Court no interference in the aforesaid fine amount is called for.
19. Accordingly, the instant appeal being devoid of merits, the same stands dismissed.
Return the LCR.
The appeal stands disposed of.
JUDGE Comparing Assistant