Himachal Pradesh High Court
Ramji Dass vs State Of Himachal Pradesh on 8 September, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF SEPTEMBER, 2021
.
BEFORE HON'BLE MR. JUSTICE ANOOP CHITKARA
CRIMINAL APPEAL No. 2 of 2009
BETWEEN:-
RAMJI DASS
S/O SHRI GIAN CHAND
R/O VILLAGE JAROG,
TEHSIL JUBBAL,
DISTRICT SHIMLA, H.P.
r .... APPELLANT
(BY SHRI N.S. CHANDEL,
SENIOR ADVOCATE WITH
SHRI VINOD KUMAR GUPTA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
.... RESPONDENT
(BY SHRI NAND LAL THAKUR,
ADDITIONAL ADVOCATE GENERAL,
SHRI KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL,
SHRI RAM LAL THAKUR&
SHRI SUNNY DHATWALIA,
ASSISTANT ADVOCATES GENERAL)
Reserved on : 10th August, 2021
Decided on : 8th September, 2021.
This petition coming on for hearing this day, the Court passed the
following:
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2
JUDGMENT
FIR NUMBER 11 of 2004, dated 17.3.2004, registered at Police .
Station, Pooh, District Kinnaur, H.P., under Section 302 IPC.
Sessions Trial No. Number 33 of 2004, Decided on 23.12.2008 by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehar, whereby the Sessions Judge convicted the accused persons and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5000/- for the offence punishable under Section 304- II, IPC and simple imprisonment for two months under Section 323 IPC.
Challenging the conviction and sentence captioned above, the convict came up before this Court by filing the instant appeal.
2. On 17.3.2004, at 8.15 a.m. (PW-4), Prem Singh, Pradhan, Gram Panchayat, Thangi, gave a phone call to Police post Moorang and informed that a dead body of a native person, was lying at Thangi bus stand. The Police post entered the said information in daily diary Ex.PW-12/A, after that, ASI Phool Singh (PW-24), along with police officials, proceeded towards the scene of the crime.
3. On reaching Thangi bus stand, PW-24, the Investigator noticed a dead body and conducted the primary inquiry. After that, he recorded the statement of Prem Singh, Pradhan (Ex.PW-4/A), the informant under Section 154 CrPC.
4. PW-4 Pradhan informed the investigator that at 7 a.m., one Damodar, a resident of Nepal, who ran a Dhaba at Thangi bus stand, visited his home. He informed him that at 6.00 a.m. Ramji Dass, the accused, who was a driver in the HRTC bus along with his conductor (DW-1), visited his shop to take tea. They informed him that a dead body of a person was lying at the bus stand. After that, both of them drove the bus towards Reckong Peo. Damodar further informed him that he visited the bus stand and noticed the dead body, and the person appeared to be a local resident. Subsequently, he visited the house of the Pradhan and informed him about the entire occurrence. The informant also ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 3 tried to give his opinion about the evidence and the cause of occurrence to the investigator, which is irrelevant for 154 CrPC. After scribing the information, the investigator forwarded the same to the Police Station for registration of .
FIR. On receipt of the information, Police Station, Pooh, District Kinnaur, registered FIR Ex.PW-21/B captioned above.
5. On commencement of the investigation, the investigator took photographs of the spot (Ex.PW-20/A to Ex.PW-20/L) and prepared the spot map Ex.PW-24/A. At the spot, the investigator noticed that the deceased was wearing a belt; however, its buckle was lying at a distance of 21 feet, although the belt was in the loops of the pants. The investigator seized the buckle and also recorded the distance and took it into possession vide memo Ex.PW-4/B. The investigator, in the investigation, prima facie, found the involvement of Ramji Dass, appellant, and took his appointment details and duty chart from HRTC.
6. The investigator contacted Damodar, who was running a Dhaba, and thought it appropriate to get his statement recorded under Section 164 CrPC.
He produced Damodar before Chief Judicial Magistrate Kinnaur on 24.03.2004, where his statement (Ex.PW-23/A) under Section 164 CrPC was recorded on oath.
7. The investigator filled in the inquest form Ex.PW-2/B and Ex.PW-2/C and sent the dead body for postmortem. Vide postmortem recorded Ex.PW2/A, Dr. Surender Thakur, PW-2, found the cause of death due to blunt trauma leading to splenic rupture and intraperitoneal hemorrhage leading to shock and death. The doctor also preserved the viscera for the Forensic Science examination and also handed over the clothes to the Police officials. The investigator sent the viscera to Forensic Science Laboratory, and the laboratory vide report Ex. PX did not find any evidence of poison or alcohol. However, the laboratory vide separate report Ex. PY, found the blood of the deceased on his clothes.
::: Downloaded on - 31/01/2022 23:02:15 :::CIS 48. The investigator also got recorded the statement of Vidhyan Singh Ex.PW-23/B under Section 164 CrPC. The investigator produced Vidhyan Singh along with the deceased to conduct his medico-legal examination and .
procured MLC Ex.PW-6/A. After arresting the accused, the investigator had also produced the accused for his medico-legal examination and procured his MLC Ex. PW-6/B.
9. The investigation revealed that the accused Ramji Dass, a driver in the HRTC bus and the conductor of the bus DW-1 Sukh Ram, had reached at bus stop Thangi, as per their routine. After that, they called Damodar, who was running a Dhaba, giving them tea. After taking tea, they asked him to make Bhurji of six eggs (scrambled eggs) and bring two empty tumblers. Subsequently, Damodar carried Bhurji, two empty tumblers, and bhujia (Namkeen) to the bus. Subsequently, on the asking of driver, he carried their food to the bus. After the driver and the conductor had taken their food, Damodar went to the bus to collect the licked utensils. On his way to Dhaba, two persons, namely Chhering Dakpa (Deceased) and Vidhayan Singh PW-3 met him. Chhering Dakpa confronted Damodar why he carried food for the driver in the bus and would teach the bus driver a lesson. On this, he went towards the bus and asked the driver to open the door. At that time, Damodar was at some distance, and he could not hear the conversation. However, he could notice that the cabin light of the bus was on. Subsequently, Chhering Dakpa went towards the back door and again asked them to open the door. In the meanwhile, Ramji Dass alighted from the bus and slapped him. At that time, Ramji Dass was wearing only his underwear and tank top (vest). He hit him with slaps, and Cheering Dakpa fell. After this, Damodar went to that place carrying a torch, and noticed that Ramji Dass also gave 1-2 slaps to Vidhyan Singh PW-3. After that, Ramji Dass gave beatings to Chhering Dakpa with kicks and fist blows. Subsequently, he, along with the conductor, rescued Chhering Dakpa; however, by that time he had become unconscious. Vidhyan Singh was also lying on the backside of the bus. Ramji Dass pulled ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 5 Vidhyan Singh and asked him to take Chhering Dakpa. Subsequently, the driver and conductor went to the bus, and he returned to his home. He revealed the entire incident to his wife and went to sleep. When the driver and .
conductor visited his Dhaba in the morning, they asked for tea and told that the said person had died. They also warned him not to reveal this incident to anyone, and in case he would do so, he would face the consequences. On this, he was scared and went to Pradhan and informed him of the entire occurrence.
10. After completing the investigation, the officer-in-charge of the Police station launched prosecution against the accused of the offences punishable under Section 302 IPC by filing a report under Section 173(2) CrPC, in the Court of Chief Judicial Magistrate. Since the prosecution was launched for offences under Section 302 IPC, the Chief Judicial Magistrate committed the case to the Sessions Court.
11. Vide order dated 4.12.2004, learned Sessions Judge after perusing the police report and the accompanying documents, found a prima facie case under Sections 302 & 323 IPC, having been made out against the accused and framed charges accordingly. The accused did not plead guilty and claimed trial.
12. The prosecution examined all the material witnesses during the trial except Damodar, the Dhaba owner, whose statement Ex.PW-23/A had been earlier recorded under Section 164 CrPC. The prosecution examined the concerned Chief Judicial Magistrate as PW-23 to prove the said statement of Damodar, which he had recorded under section 164 CrPC. As revealed from the order dated 10.8.2007, Damodar and his wife, Veena Devi, could not be served because they had left their residence, and their whereabouts were unknown. Even summons repeatedly sent since 4.12.2004 could not be served upon them. After that, the Sessions Judge afforded the last opportunity to the prosecution to serve these two witnesses, failing which its evidence would be closed by order of the Court. Subsequently, the prosecution failed to serve ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 6 Damodar and his wife Veena Devi, and as such, on 12.09.2007, the Trial Court closed the prosecution's evidence.
13. In the statement of the accused recorded under Section 313 CrPC, the .
accused admitted that he was the driver of the HRTC bus and one Nepalese had brought a meal inside the bus. He, along with the conductor, had taken it. In answer to the last question, the accused averred as follows, "I was sleeping inside the bus with the conductor when two drunkard persons came inside the bus and one pressed my testicles and other caught hold of my legs and I called the conductor, who rescued me. Thereafter they left the bus and I slept inside the bus with the conductor. I want to lead defence evidence."
14. The accused examined conductor Shri Sukh Ram as DW-1.
15. Vide the above-captioned judgment, learned trial Court did not find the case for conviction under Section 302 IPC but found the evidence sufficient to convict the accused under Section 304-II IPC and sentenced him as mentioned above.
16. Challenging the said judgment of conviction and sentence, the accused filed the present appeal. However, the State has not challenged the acquittal of the accused under Section 302 IPC. When this matter was listed for hearing on 29.11.2019, i.e., before the first wave of Covid-19 pandemic, this Court had asked the State to verify whether they had challenged the acquittal under Section 302 IPC or not. During arguments, Mr. Nand Lal Thakur, learned Additional Advocate General, on instructions, submitted that the State has not challenged the acquittal. Resultantly, the acquittal under section 302 has attained finality.
17. Mr. Nareshwar Singh Chandel, Learned Sr. Advocate, appearing for the appellant argued that it was DW-1, conductor Sukh Ram, and PW-3 Vidhyan Singh who were admittedly last seen with the deceased, and the burden was on them to explain how Chhering Dakpa had died. Learned Counsel further argued that although the cause of death is rupture of the spleen, there was no corresponding and related injury. Ld. Counsel further contended that given the ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 7 explanation offered by the accused in his statement under Section 313 CrPC, rupture of the spleen would be possible in case he had fallen while alighting the bus.
.
18. On the contrary, Mr. Nand Lal Thakur learned Additional Advocate General argued that the prosecution had adduced sufficient evidence to connect the accused with the commission of the offence. Furthermore, the explanation offered by the accused in the statement under Section 313 CrPC is admissible in this trial, and DW-1 Sukh Ram also admits that it was Ramji Dass who was last seen with the accused and not as argued by the learned Senior Advocate.
19. Learned Additional Advocate General further argued that after examining Sukh Ram as DW-1, the appellant could not shift the entire burden on him at this belated stage. Moreover, at the time of his examination as a defence witness, the accused did not put the burden upon him to ask for his explanation. Learned Additional Advocate General submits that the accused wants only to have the better half, which is legally impermissible.
ANALYSIS AND REASONINGS
20. The present case is of direct evidence, which is coming through PW-3 Vidhyan Singh, the statement of Damodar Ex.PW-23/A, recorded under Section 164 CrPC, stand taken by the accused while answering questions No.8 and 35 in the statement under Section 313 CrPC, and statement of DW-1 Sukh Ram. It has come in the testimony of PW-3 Vidhyan Singh that on 16.3.2004, he was in the company of deceased Chhering Dakpa, who is related to him being the son of his Maasi (mother's sister).
21. PW-3 Vidhyan Singh, who ran a small general merchandise shop, had to purchase goods for his shop from Reckong Peo. At that time, Chhering Dakpa was with him. In Reckong Peo, they loaded the goods in a Pickup and purchased two pouches of liquor. After that, they proceeded towards Thangi, and on the way to Thangi, they consumed liquor. They reached Thangi at 8.00 p.m., and at that time, one HRTC bus was parked at the bus stand. He further ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 8 testified that Damodar, a Nepali national ran a Dhaba (food stall) near the bus stand. They noticed him coming from the side of the bus towards his Dhaba. On this Chhering, Dakpa inquired from him the reasons for coming from the .
bus. Damodar told him that he had gone to give food to the driver. On hearing this, Chhering Dakpa went towards the bus and started hurling abuses at Ramji Dass (accused). He opened the door of the bus and asked for something from the driver. On this, the accused came out of the bus and started beatings Chhering Dakpa, due to which he fell. Vidhyan Singh ran to save him, but the accused gave him beatings with a fist, and one such fist landed on his jaw, breaking his tooth. The accused continued to beat Chhering Dakpa and inflicted multiple kicks on his stomach. Being perplexed, Vidhyan Singh ran towards his home. Prior to that , the accused had asked him to take Chhering Dakpa with him, and he had tried to lift him, but he could not do so.
At that time, he noticed blood oozing out from his mouth. On the next day, he came to know about the death of Chhering Dakpa.
22. The primary question, which needs consideration is that PW-3 Vidhyan Singh, who was the first cousin of Chhering Dakpa, neither took the help of any of his co-villagers and his family members to bring him back nor provided any first aid. Would it make his presence at the spot of crime doubtful?
23. PW-3 Vidhyan Singh candidly admitted that they had brought two pouches of liquor at Reckong Peo. He further stated that they had consumed the liquor. However, as per the FSL report, Ex.PX, the laboratory, did not find any evidence of liquor in the viscera of the deceased. It would not mean that PW-3 told a lie, but it implies that given the nature of the chemical used to preserve the viscera and the quality of the testing; the laboratory could not find out the presence of liquor. It impliedly means that the quantity of liquor must be less as PW-3 Vidhyan Singh nowhere stated that they had consumed one pouch each. Furthermore, they consumed liquor on 16.3.2004 around evening, whereas the postmortem examination had taken place on 18.3.2004 at 11.30 a.m., as revealed from the postmortem Ex.PW-2/A. The laboratory had tested ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 9 the viscera as per its report dated 2.5.2004. Thus, due to passage of time, faulty results cannot be ruled out.
24. To further ascertain whether PW-3 Vidhyan Singh was present at the spot .
with the deceased or not, he had stated that the accused had even given him beatings. The prosecution examined PW-6 Dr. Rajiv Chauhan, who had medically examined Vidhyan Singh on 18.3.2004 at 9.00 p.m., i.e., around two days after the incident. Based on the MLC Ex.PW-6/A, the doctor testified that he had noticed tenderness on the left side of the chest (4 th intercostal space). After X-ray examination, the injury was found to be simple, and the duration of the injuries was 12-36 hours. Although the incident had taken place almost 48 hours before the examination, medical science is not that perfect, and there is nothing to disbelieve the statement of Vidhyan Singh, which his MLC Ex. PW-6/A corroborates.
25. Simply because despite being the first cousin of the deceased, PW-3 Vidhyan Singh, went back home and slept would not imply that he did not tell the truth. He was under the influence of alcohol and had also been beaten by the accused. At that time, he did not realize that his cousin Chhering Dakpa was already dead. Given above, there is sufficient evidence, which establishes that PW-3 was present at the spot and had received injuries in the incident at the hands of the accused.
26. Based upon the statement of Vidhyan Singh, who was an eye witness, the following characteristics of crime emerges:
27. That before the deceased Chhering Dakpa and PW-3 Vidhyan had reached at bus stop Thangi, by that time the accused Ramji Dass and conductor Sukh Ram had already taken their meal and were almost going to sleep. This fact gets corroboration from the statement of Damodar recorded under Section 164 CrPC Ex. PW-23/A, wherein he had stated that when Ramji Dass came out of the bus, he was only wearing underwear and a vest (tank top/baniyan).
::: Downloaded on - 31/01/2022 23:02:15 :::CIS 1028. PW-3 Vidhyan Singh also specifically stated that when they reached at bus stand Thangi, they noticed Damodar going from the bus towards his Dhaba. On this, he inquired from Damodar that why he had gone to the bus.
.
On which, Damodar responded that he had gone to give food to the driver in the bus. It infuriated Chhering Dakpa, and he said that he would teach them a lesson. After that, he went towards the bus and started using foul language at Ramji Dass, accused. He opened the window of the bus and closed it with a bang. This statement of PW-3 gets corroboration from the statement of Damodar recorded under Section 164 CrPC Ex.PW-23/A. Damodar had also stated in his statement that when he was returning to his Dhaba after taking utensils, then Chhering Dakpa deceased and PW-3 Vidhyan Singh met him. Chhering Dakpa inquired why he serves them food on the bus, and then he said that he would teach them a lesson. This unclenching evidence establishes that it was Chhering Dakpa, who for no rhyme and reason had initiated a quarrel with Ramji Dass, who was prepared to sleep in the bus. Had he not gone to the bus, there was certainly no reason for Ramji Dass to come out and administered beatings to him. Instead, he would not have known that Chhering Dakpa would be returning to that place at that point in time.
29. PW-3 Vidhyan Singh, who is the first cousin of the deceased, explicitly stated that accused Ramji Dass gave beatings to Chhering Dakpa with fists and kicks. Given that the accused at that time was wearing only underwear and a vest, it shows that he had dressed himself to go to sleep, which would certainly imply that at that time, he must not have laced his shoes. This statement of PW-3 gets corroboration from the statement of Damodar recorded under Section 164 CrPC Ex.PW-23/A. An analysis of the statements of Vidhyan Singh PW-3 and the corroborative statement of Damodar Ex. PW-23/A indeed reveals that Ramji Dass had used the only fist and kicks to give beatings, and admittedly he did not use any means to administer beatings.
30. During the investigation, the investigator had arrested the accused and taken him to the Doctors for medico-legal examination. PW-6 Dr. Rajiv ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 11 Chauhan, who had medically examined, accused Ramji Dass and issued MLC Ex.PW-6/B. Based on the MLC, the doctor testified that he had noticed swelling on the right-hand lateral side of the dorsal aspect, and it had .
tenderness and swelling. The doctor also found tenderness in the right testis and did not find any injury on other body parts. It means that the allegations of the accused causing injuries by using kicks are somewhat doubtful because of the absence of injuries. Since the accused had almost prepared to sleep and was wearing only undergarments, he had no opportunity and time to lace up his shoes, which could have inflicted severe injuries on the deceased. And if he was not wearing shoes, then the Doctor must have noticed tenderness or swelling on his toes.
31. In his statement under Section 313 CrPC, in answer to question No. 35, the accused explained that he was sleeping in the bus along with the conductor. At that time, two drunkards came inside the bus. One of them caught hold of him from his testis, and the second caught hold of his legs. On this, he called the conductor, who rescued him. After that, both the persons left away and he along with the conductor slept in the bus. Thus, even the accused admits scuffle with the deceased and also with PW-3 Vidhyan Singh.
32. The accused had examined the conductor Sukh Ram as DW-1. He stated that at around 9/10 p.m., when they had slept in the bus, at that time two drunkards came and knocked at the door of the bus. After that with full force, they opened the door. One of them caught hold of the driver from his testis, and he rescued him. Subsequently, they went away. In the morning, he noticed that out of those two persons, one was lying dead nearby. These circumstances establish that Chhering Dakpa initiated the scuffle. The only reason for Chhering Dakpa to get infuriated was, why the driver had asked Damodar, the Dhaba owner, to deliver food in the bus. Undoubtedly, Chhering Dakpa is behaving like a local Ruffian and Don of his area. As per the address given in the postmortem report, he was a resident of village Thangi, where the bus stop was situated. Thus, to spread a message of his being an Alfa male, he ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 12 started scuffle with Ramji Dass, without any rhyme and reason. At that time, Ramji Dass had either slept or was in the process of going to sleep. This fact is proved not only from the statement of DW-1 but also from the statement of .
Damodar recorded under Section 164 CrPC Ex. PW-23/A.
33. The statement of a witness recorded under S. 164 CrPC is not substantive evidence; however, its use to corroborate the other evidence is legally permissible. It shall be appropriate to refer to the following judicial precedents on this point.
34. In State of Uttar Pradesh v. Singhara, AIR 1964 SC 358, Hon'ble Supreme Court holds, [5]. A confession duly recorded under Section 164 would no doubt be a public document under S. 74 of the Evidence Act which would prove itself under S. 80 of that Act. Mr. Dixit who recorded the confession in this case was a second class magistrate and the prosecution was unable to prove that he had been specially empowered by the State Government to record a statement or confession under S. 164 of the Code. The trial, therefore, proceeded on the basis that he had not been so empowered. That being so, it was rightly held that the confession had not been recorded under S. 164 and the record could not be put in evidence under Ss. 74 and 80 of the Evidence Act to prove them. The prosecution, thereupon called Mr. Dixit to prove these confessions, the record being used only to refresh his memory under S. 159 of the Evidence Act. It is the admissibility of this oral evidence that is in question.
[6]. The Judicial Committee in Nazir Ahmed v. King Emperor, 63 Ind App 372 : (AIR 1936 PC 253 (2)) held that when a magistrate of the first class records a confession under S. 164 but does not follow the procedure laid down in that section, oral evidence of the confession is inadmissible. Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) naturally figured largely in the arguments presented to this Court and the Courts below. The learned trial Judge following Asharfi v. The State, ILR (1960) 2 All 488 : (AIR 1961 All 153) to which we will have to refer later, held that Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) had no application where, as in the present case, a magistrate not authorised to do so purports ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 13 to record a confession under S. 164, and on that basis admitted the oral evidence. The learned Judges of the High Court observed that the present case was governed by Nazir Ahmed case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) and .
that Asharfi's case, ILR (1960) 2 All 488 : (AIR 1961 All
153) had no application because it dealt "with the question of identification parades held by Magistrates. There was no occasion to discuss the question of confession recorded before Magistrates." In this view of the matter the learned. Judges of the High Court held the oral evidence inadmissible and acquitted the respondents. It would help to clear the ground to state that it had not been argued in Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) that S. 533 of the Code had any operation in making any oral evidence admissible and the position is the same in the present case. It would not, therefore, be necessary for us to consider whether that section had any effect in this case in making any evidence admissible.
[7]. In Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) the Judicial Committee observed that the principle applied in Taylor v. Taylor, (1876) 1 Ch. D 426 to a Court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, applied to judicial officers making a record under S. 164 and, therefore, held that the magistrate could not give oral evidence of the confession made to him which he had purported to record under S. 164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Ss. 164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that "it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves."
[8]. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted. A ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 14 magistrate, therefore, cannot in the course of investigation record a confession except in the manner laid down in S.
164. The power to record the confession had obviously been given so that the confession might be proved by the .
record of it made in the manner laid down. If proof of the confession by other means was permissible, the whole provision of S. 164 including the safeguards contained in it for the protection of accused persons would be rendered nugatory. The section, therefore, by conferring on magistrate the power to record statements or confessions, by necessary implication, prohibited a magistrate from giving oral evidence of the statements or confessions made to him.
[9]. Mr. Agarwala does not question the validity of the principle but says the Nazir Ahmed's case, 63 Ind App 372 :
(AIR 1936 PC 253 (2) was wrongly decided as the principle was not applicable to its facts. He put his challenge to the correctness of the decision on two grounds, the first of which was that the principle applied in (1876) 1 Ch D 426 had no application where the statutory provision conferring the power was not mandatory and that the provisions of S. 164 were not mandatory as would appear from the terms of S. 533.
[10]. This contention seems to us to be without foundation. Quite clearly, the power conferred by S. 164 to record a statement or confession is not one which must be exercised. The Judicial Committee expressly said so in Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) and we did not understand Mr. Aggarwala to question this part of the judgment. What he meant was that S. 533 of the Code showed that in recording a statement or confession under S. 164, it was not obligatory for the magistrate to follow the procedure mentioned in it. Section 533 says that if the court before which a statement or confession of an accused person purporting to be recorded under Section 164 or Section 364 is tendered in evidence "finds that any of the provisions of either of such sections have not been complied with by the magistrate recording the statement, it shall take evidence that such person duly made the statement recorded." Now a statement would not have been "duly made" unless the procedure for making it laid down in S. 164 had been followed. What S. 533 therefore, does is to permit oral evidence to be given to prove that the ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 15 procedure laid down in S. 164 had in fact been followed when the Court finds that the record produced before it does not show that that was so. If the oral evidence establishes that the procedure had been followed, then only .
can the record be admitted. Therefore, far from showing that the procedure laid down in S. 164 is not intended to be obligatory, S. 533 really emphasises that that procedure has to be followed. The section only permits oral evidence to prove that the procedure had actually been followed in certain cases where the record which ought to show that does not in the face of it do so.
[11]. The second ground on which Mr. Aggarwala challenged the decision in Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) was that the object of S. 164 of the Code is to permit a record being kept so as to take advantage of Ss. 74 and 80 of the Evidence Act and avoid the inconvenience of having to call the magistrate to whom the statement or confession had been made, to prove it. The contention apparently is that the section was only intended to confer a benefit on the prosecution and, therefore, the sole effect of the disregard of its provisions would be to deprive the prosecution of that benefit, for it cannot then rely on Ss. 74 and 80 of the Evidence Act and has to prove the confession by other evidence including the oral evidence of the Magistrate recording it. It was, therefore, said that the principle adopted in Nazir Ahmed's case, 63 Ind App 372: (AIR 1936 PC 253 (2)) had no application in interpreting S. 164.
[12]. A similar argument was advanced in Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) and rejected by the Judicial Committee. We respectfully agree with that view. The section gives power to make a record of the confession made by an accused which may be used in evidence against him and at the same time it provides certain safeguards for his protection by laying down the procedure subject to which alone the record may be made and used in evidence. The record, if duly made may no doubt be admitted in evidence without further proof but if it had not been so made and other evidence was admissible to prove that the statements recorded had been made, then the creation of the safeguards would have been futile. The safeguards were obviously not created for nothing and it could not have been intended that the safeguards might at ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 16 the will of the prosecution be by-passed. That is what would happen if oral evidence was admissible to prove a confession purported to have been recorded under S. 164. Therefore it seems to us that the object of S. 164 was not to .
give the prosecution the advantage of Ss. 74 and 80 of the Evidence Act but to provide for evidence being made available to the prosecution subject to due protection of the interest of the accused. We have to point out that the correctness of the decision of Nazir Ahmed's case, 63 Ind App 372 : (AIR 1936 PC 253 (2)) has been accepted by this Court in at least two cases, namely, Shiv Bahadur Singh v. State of Vindhya Pradesh, 1954 SCR 1098 : (AIR 1954 SC
322) and Deep Chand v. State of Rajasthan, 1962-1 SCR 662 : (AIR 1961 SC 1527). We have found no reason to take a different view.
35. In State of Rajasthan v. Kartar Singh, (1970) 2 SCC 61, Para 11, a three-Judge Bench of Supreme Court held that the statements of witnesses recorded under Section 164 CrPC were corroborative of what had been stated earlier in the Committal Court.
36. In Ram Kishan Singh v Harmit Kaur, AIR 1972 SC 468, Hon'ble Supreme Court holds, [8]. A statement under section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness.
37. In Ramprasad v. State of Maharashtra, (1999) 5 SCC 30, Hon'ble Supreme Court holds, [15]. ...A Magistrate can record the statement of a person as provided in Section 164 of the Code and such statement would either be elevated to the status of Section 32 if the maker of the statement subsequently dies or it would remain within the realm of what it was originally. A statement recorded by a Magistrate under Section 164 becomes unable to corroborate the witness as provided in section 157 of the Evidence Act or to contradict him as provided in Section 155 thereof.
38. In Chinnammal v. State of Tamil Nadu, 1997 (1) SCC 145, Hon'ble Supreme Court holds, ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 17 [2]. On perusal of the impugned judgment we find that the principal reason which weighed with the High Court in setting aside the convictions of the accused-respondents is that the statement (Ext. D1) made by the appellant (who .
also claimed to have been assaulted by the accused persons during the incident) before a Magistrate which was initially recorded as her dying declaration but was subsequently treated as a statement recorded under Section 164 Cr. P.C. in view of her survival and the report (Ext. PI) that she lodged with the police (which was treated as the First Information Report) contradicted each other materially. In our considered view, this approach of the High Court in dealing with the evidence was patently wrong. It is trite that a case has to be decided on the basis of the evidence adduced by the witnesses during the trial and any previous statements made by any of such witnesses can be used by the defence for the purpose of only contradicting and discrediting that particular witness in the manner laid down in Section 145 of the Evidence Act. Under no circumstances can such previous statements he treated as substantive evidence as has been treated by the High Court in the instant case.
39. In George v. State of Kerala, (1998) 4 SCC 605, Hon'ble Supreme Court holds, [36]. We may now turn to the evidence of PW-50, detailed earlier. From the judgment of the trial Court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164 Criminal Procedure Code and not his evidence in Court. The said statement was treated as substantive evidence; as would be evident from the following, amongst other observations made by the learned trial Court :-
"If Ext. P.42 (the statement recorded under Section 164 Criminal Procedure Code) is found to be a genuine statement it can be used as an important piece of evidence to connect the accused with the crime."
In making the above and similar comments the trial Court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 Criminal Procedure Code cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him.
::: Downloaded on - 31/01/2022 23:02:15 :::CIS 1840. In Utpal Das v. State of West Bengal, (2010) 6 SCC 493, Hon'ble Supreme Court holds, .
[16]. Likewise statement recorded under Section 164 Criminal Procedure Code can never be used as substantive evidence of truth of the facts but may be used for contradictions and corroboration of a witness who made it.
The statement made under Section 164 Criminal Procedure Code can be used to cross examine the maker of it and the result may be to show that the evidence of the witness is false. It can be used to impeach the credibility of the prosecution witness. In the present case it was for the defence to invite the victim's attention as to what she stated in the first information report and statement made under Section 164 Criminal Procedure Code for the purposes of bringing out the contradictions, if any, in her evidence.
41. In Ram Lakhan Sheo Charan v. State of Uttar Pradesh, 1991 CrLJ 2790, Allahabad High Court observed, [11]. The trial was held when the new Code of Criminal Procedure had come into force. The wordings of S. 164 in the new and old Code of Criminal Procedure with little changes are the same. As early as in Manik Gazi v.
Emperor, AIR 1942 Cal 36 a Division Bench of the Calcutta High Court had held that the statements u/s. 164 of the Code can be used only to corroborate or contradict the statements made u/ss. 145 and 157 of the Indian Evidence Act. In Brij Bhushan Singh v. Emperor, AIR 1946 PC 38 and in Mamand v. Emperor, AIR 1946 PC 45 the Privy Council had observed that the statement u/s. 164 of the Code cannot be used as a substantive evidence and which can only be used to contradict and corroborate the statement of a witness given in the Court. Similar observations, as made in the two cases below, were made by the Privy Council, in Bhuboni Sahu v. King, AIR 1949 PC 257 and in Bhagi v. Crown, (AIR (37) 1950 HP 35 ). It was also held by a single Bench of the Himachal Pradesh Judicial Commissioners court that statement u/s. 164 of Code cannot be used as a substantive piece of evidence. In State v. Hotey Khan, 1960 ALJ 642. A division Bench of this Court had also observed that statements u/s. 164 of the Code cannot be used as a substantive evidence.
::: Downloaded on - 31/01/2022 23:02:15 :::CIS 19[12]. The above catena of cases go to show that where the witnesses do not support the prosecution story in the Court, then their statements u/s. 164 of the Code cannot be used as substantive piece of evidence.
.
42. The arguments of the learned counsel for the appellant that the accused was not last seen with the deceased because they had gone to sleep or in the alternative, at the most, he was last seen with DW-1 are meaningless. The doctor had noticed minimal injuries on the body of the deceased. There was a corresponding injury on the hand of the accused, which relates to the same time zone. According to the postmortem report, the time between the injuries and death was almost instantaneous. PW-3 Vidhyan Singh also stated in testimony that the deceased has become unconscious, and he wanted to take the deceased to his home but could not carry him. Being a layman, PW-3 Vidhyan Singh, who was under trauma, because he would have never expected that accused would prove more robust than them and got beaten from him, did not say that he checked the heartbeat at that time, rather he ran away to his home, where he slept.
43. In Shyamal Ghosh v. State of West Bengal, 2012 (7) SCC 646, Hon'ble Supreme Court holds, [63]. The gap between the time when the accused persons were last seen with the deceased and the discovery of his mutilated body is quite small and the possible inference would be that the accused are responsible for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive.
44. In the investigation, the Investigator PW-24 Phool Singh noticed one broken belt buckle lying at around 21 feet from the dead body. The investigator also noticed dragging marks. The accused was in the company of DW-1 Sukh Ram. If they intended to conceal the dead body, they could have quickly put it in the bus and driven the same towards the bank of Satluj river and threw it in the river, making it impossible for the corpus to recover. There appears to be no logic for dragging a person up to 21 feet. Even in the ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 20 postmortem, the doctor did not notice any dragging marks on the deceased's skin. Thus, the possibility that the buckle of the belt got broken in the scuffle and accused while running fell at a distance about 21 feet from the place .
where the buckle had fallen earlier cannot be ruled out. Given above, the theory of dragging is not proved.
45. An appreciation of the above evidence comes primarily from the statement of PW-3 Vidhyan Singh and gets corroboration of DW-1 Sukh Ram, and the statement of Damodar recorded under Section 164 CrPC Ex.PW-23/A, postmortem report Ex.PW-2/A, the injuries suffered by PW-3 Vidhyan Singh and accused Ramji Dass, coupled with the explanation of the accused under Section 313 CrPC, proves the scuffle beyond a reasonable doubt.
46. After appreciating the evidence, Learned Sessions Judge did not find the case falling in any of the clauses of Section 300 IPC. Learned trial Court did not even find any intention of the accused to cause beatings, and consequently held the accused guilty of the offences punishable under Sections 304-II, i.e., culpable homicide, not amounting to murder and death being caused due to knowledge and not the intention. For beating PW-3 Vidhyan, Ld. Trial Court held the accused guilty of offence punishable under Section 323 IPC.
47. Dissatisfied with the verdict, the convict challenged the conviction and sentence. However, the State was satisfied and accepted the verdict. However, the State is opposing the appeal filed by the convict by asserting that it is legally tenable. The issue before this Court is that given the sequence of events and the reasons for quarrel would it be a case of 'culpable homicide' or a case of 'hurt'.
48. Humans are mortal and will eventually die; given this, every demise anywhere is presumed to be a natural death, shifting the burden on the accuser to prove that it was unnatural.
49. Chapter XVI of IPC relates to offences affecting the human body- affecting life. Section 299 IPC states that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 21 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.
50. After analyzing the evidence, Ld. trial Court found the case covered .
under exception 1 of S. 300 IPC. Also, it concluded that the beatings were inflicted although with the knowledge that it was likely to cause death, but without any intention to cause death or cause such specific bodily injury as was likely to cause death. Thus, the Ld. trial Court held the accused guilty of an offence punishable under S. 304 (II) of IPC. Culpable homicides are murders only if they fall in any of the four clauses of S. 300 IPC, provided the acts do not fall in any of the exceptions carved therein. The portion of Section 300 IPC, relevant to the present proposition, is extracted as follows:
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 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.
Illustrations xxx Exception 1.--When culpable homicide is not murder.-- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly.--That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.::: Downloaded on - 31/01/2022 23:02:15 :::CIS 22
Thirdly.--That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to .
murder is a question of fact.
Illustrations- xxx Exception 2. Xxx
51. S. 304 IPC reads as follows:
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.
52. PW-2, the Doctor who conducted post mortem examination of the corpus, noticed the following injuries on the deceased:
"....There was an incised cut on right hand palmer medial aspect 4cm in size, superficial in nature. No clotted blood. There was an abraded wound 1 cm in diameter on right knee joint. There was an abrasion superficial in nature in middle of nose with skin flap raised 3 cm in size. An oblique scar mark on left cubital fossa 5 cm in size. There was slight superficial abrasion on forehead. Clotted blood on the moustache. Clotted blood in the nostrils. No other injury on nose. The jaw was knocked and there was clotted blood in mouth. The upper right canine (1st) was dislocated and the upper right 2nd incisor had fractured line which was transverse. The tongue was between the teeth and there were teeth marks on the tongue (front). No other visible injury. The cornea was muddy. No injury on the scull. There was post mortem lividity in back and shoulders. Post mortem lividity in tip of fingers and palmer aspect of hands were present. Rigor mortis was also present. ...."::: Downloaded on - 31/01/2022 23:02:15 :::CIS 23
53. Based on the post-mortem report Ex. PW2/A, Doctor PW-2, found the cause of death due to blunt trauma leading to rupture of the spleen and intraperitoneal hemorrhage leading to shock and death.
.
54. The crime did not initiate because of any act or role of the convict. He neither used any tool or weapon. There is neither any allegation nor any evidence that he banged his head against the body of the bus or the ground. On the deceased, making him furious, he beat him with slaps, fists, and maybe with kicks. Beatings by kicks are highly improbable because, at the time of initiation of the incident, the convict was wearing only underwear and a vest.
As per the defence witness, he had gone to sleep. Thus, there was neither any occasion nor opportunity to wear shoes, and kicks without wearing shoes would certainly lack punch.
55. For any offence to fall within the scope of culpable homicide as defined in S. 299 IPC, the acts for causing death must be done with the intention of causing death, or intending to cause such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death. The acts of slaps, fists, and kicks resulted in the injuries as mentioned in the post mortem report. There was no corresponding injury over the spleen to show that the accused had hit the portion of the torso, underneath which the spleen anatomize. The accused's intention was not to cause death or to cause any bodily injury that was likely to cause death. None of the injuries noticed in post mortem examination reveals that it was caused with the knowledge that the act of causing such injury was likely to cause death. Given this, the offence does not fall under the definition of culpable homicide.
56. The next question is that if the offence does not fall under the category of culpable homicide, then where does it fall?
57. S 319. Hurt. --Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
58. S. 320 IPC defines grievous hurt as follows:
Grievous hurt.--The following kinds of hurt only are designated as "grievous":--::: Downloaded on - 31/01/2022 23:02:15 :::CIS 24
First.--Emasculation.
Secondly.--Permanent privation of the sight of either eye. Thirdly.--Permanent privation of the hearing of either ear. Fourthly.--Privation of any member or joint.
.
Fifthly.--Destruction or permanent impairing of the powers of any member or joint.
Sixthly.--Permanent disfiguration of the head or face. Seventhly.--Fracture or dislocation of a bone or tooth.
Eighthly.--Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
59. The acts of the appellant assaulting the deceased did endanger his life. As per the post-mortem report, the time gap between the injuries and death was instantaneous. It is not the prosecution's case that the accused had used any means or dangerous weapon to cause grievous hurt. The accused did not cause grievous hurt employing any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or through fire or any heated substance, or using any poison or any corrosive substance, or utilizing any explosive substance, or using any substance which it was harmful to the human body to inhale, to swallow, or to receive into the blood, or employing any animal. Section 326 IPC is applicable only when the hurt is caused by a dangerous weapon or means, which is not the present case. Thus, the offence would not fall under S. 326 IPC, which deals with the hurt caused by the means mentioned above.
60. Thus, the relevant provision which needs scrutiny is Section 325 IPC, which invokes when the grievous hurt is voluntarily caused by the accused. It reads as follows:
325. Punishment for voluntarily causing grievous hurt. --
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
61. However, Section 325 is applicable only when the case is not covered under Section 335 IPC, and it reads in the following terms:
::: Downloaded on - 31/01/2022 23:02:15 :::CIS 25335. Voluntarily causing grievous hurt on provocation. --
Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause grievous hurt to any person other than .
the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extend to four years, or with fine which may extend to two thousand rupees, or with both.
Explanation. --The last two sections are subject to the same provisos as Exception 1, section 300.
62. The circumstances that led to the assault lack voluntariness on the accused's side. The evidence suggests that the deceased had provoked him, and such provocation was grave and sudden. S. 335 IPC aptly deals with such a situation.
63. In the present case, it was the deceased who caused provocation to the accused. Not only this, the Doctor had found tenderness in the testicles of the accused, which probablizes the extent of provocation. Given above, this case is fully covered under 335 IPC. Since the ingredients of Section 335 IPC are fully met, the case would automatically be excluded from the purview of Section 325 IPC, which provides an exception to Section 335 IPC.
64. In Dhondey v. The State of U.P., (1972) 4 SCC 729, the accused found his wife in the company of PW-3. On seeing them together, he completely lost his temper, caught hold of both of them and cut their noses. Hon'ble Supreme Court set aside the appellant's conviction under Section 326/34, Indian Penal Code but convicted them under Section 335/34.
65. In Formina Sebastio Azardeo v. State of Goa, Daman and Diu, (1992) Sup2 SCC 218, the facts of the case were that deceased developed illicit intimacy with the convict's wife, and was also making a wide publicity about the said intimacy. To stop him from spreading the information, the husband and his accomplices' administered beatings to him leading to his death. Hon'ble Supreme Court set aside the conviction of the appellants 1 and 2 under Section 302/34 IPC and instead convicted them under Section 326/34, ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 26 IPC and sentenced each of them to undergo rigorous imprisonment for a period of five years, holding as follows:
[9]. It is not the case of the prosecution that either of the .
appellants 1 and 2 expressed his intention by word or gesture to put an end to the life of the deceased or any of them was armed with deadly weapons. The circumstances of the case cleary indicate that these two appellants evidently in order to teach a lesson to the deceased Orlando for spreading a scandalous information in that locality concerning the alleged amorous intimacy between the first and the second appellants had resorted to this kind of illegal action. But unfortunately the deceased who was tied to the electric pole died due to the injuries sustained by him.
[10]. The circumstances would indicate that the appellants evidently wanted to teach a lesson to the deceased for having spread the scandalous information by tying him to the pole and assaulting him. Hence, the offence would be one punishable under Section 326, I.P.C. in that the appellants 1 and 2 intended to cause grievous injury to the deceased. The nature of the injuries found on the deceased, in our opinion, attract the definition falling under Clause
(viii) of Section 320, IPC establishing that the injuries were such to endanger the human life.
66. A survey of the above judicial precedents also proves that in the facts and circumstances peculiar to the present case, the offence would fall under Section 335 IPC.
67. Given above, the appeal is partly allowed. The sentence imposed under Section 323 IPC calls for no interference and is upheld. As far as the conviction under Section 304-II is concerned, the same is altered to Section 335 IPC.
68. In Sumer Singh v. Surajbhan Singh, 2014(7) SCC 323, Hon'ble Supreme Court holds, [36]. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 27 conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society .
which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalised judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it.
The old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial judge.
[37]. Before parting with the case we are obliged, nay, painfully constrained to state that it has come to the notice of this Court that in certain heinous crimes or crimes committed in a brutal manner the High Courts in exercise of the appellate jurisdiction have imposed extremely lenient sentences which shock the conscience. It should not be so. It should be borne in mind what Cicero had said centuries ago :-
"it can truly be said that the magistrate is a speaking law, and the law a silent magistrate. [CICERO, De Republica, De Legibus (Loeb Classical Library, Keyes, Clinton Walker, trans., Cambridge, ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 28 Massachusetts: Harvard University Press, 1928), p.
461.]"
[38]. A few decades ago thus spoke Felix Frankfurter :-
.
"For the highest exercise of judicial duty is to subordinate one's personal pulls and one's private views to the law of which we are all guardians - those impersonal convictions that make a society a civilised community, and not the victims of personal rule."[Frankfurter, Felix, in Clark, Tom C., "Mr. Justice Frankfurter: `A Heritage for all Who Love the Law'". 51 A.B.A.J. 330, 332 (1965)] [39]. We part with the aforesaid reminder.
69. Section 335 IPC provides for a maximum sentence of four years of imprisonment. The Court would impose the maximum sentence only when there are no mitigating circumstances. The incident had taken place in the year 2004 when the accused was 42 years of age. The appeal is finally decided in 2021, i.e., after a gap of 17 years, and as of date, the accused would be around 60 years of age. Neither the appellant placed on record nor submitted any other mitigating circumstances, for example, lousy health or family circumstances, to reduce the sentence to bear minimum. Thus, given the age of the accused and the time lag between the incident and the date of the decision of this appeal, this Court is of the considered opinion that a sentence of two years simple imprisonment would be appropriate in the facts and circumstances of the case.
70. Although the convict shall have to pay no fine under Section 335 IPC; however, the accused is directed under section 357 CrPC to pay compensation to the family of the deceased. The convict worked as a driver in HRTC. Thus, the Court assesses the compensation amount at Rs.2,00,000/-. The convict shall pay the compensation by Dec 31, 2021. In case the convict fails to do so, the State shall recover it from his assets. On realization, the living members shall pay the compensation, i.e., parents, wife, and children, in equal shares. If they are not available or traceable, the money shall be paid in equal shares to his living sisters and brothers. The compensation money would be paid ::: Downloaded on - 31/01/2022 23:02:15 :::CIS 29 directly in their bank accounts, and the State shall procure their bank details through their appropriate agencies. And if none is available or traceable, then the entire compensation amount shall be deposited with the District Legal .
Services Authority, Kinnaur.
71. The appeal is partly allowed in the terms mentioned above. Both the sentences shall run concurrently. The period of sentence already undergone shall be computed under Section 428 CrPC. The bonds furnished by the appellant shall stand canceled and discharged. However, the appellant is given time to surrender, and he shall surrender to serve out the sentence before the trial Court on or before 31st December 2021, by 11.00 a.m. Partly allowed.r (Anoop Chitkara) Judge.
September 08, 2021 (ps).
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