Uttarakhand High Court
Amit Sharma And Others ... vs State Of Uttarakhand And Another on 9 May, 2024
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No.232 of 2024
Amit Sharma and others ...........Revisionists
Vs.
State of Uttarakhand and another ......... Respondents
Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Nipush Mola Joshi,
Advocate holding brief of Mr. Pankaj Kumar Sharma, Advocate for the
revisionists.
Mr. M.A. Khan, AGA for the State/respondent no.1.
Mr. Birendra Singh Adhikari, Advocate for respondent no.2.
With
Criminal Revision No.199 of 2024
Pankaj Ahluwalia ...........Revisionist
Vs.
State of Uttarakhand and others ......... Respondents
Mr. Birendra Singh Adhikari, Advocate for the revisionist.
Mr. M.A. Khan, AGA for the State/respondent no.1.
Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Nipush Mola Joshi,
Advocate for respondent nos.2 and 3.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) Since both these revisions are arise from one and the same judgment, they are heard together and are being decided by this common judgment.
2. For the sake of convenience, the parties are referred to as they are placed in Criminal Revision No.232 of 2024.
3. The challenge in Criminal Revision No.232 of 2024 is made to the following:-
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(i) Judgment and order dated 12.03.2020, passed in Criminal Case No.423 of 2020, State vs. Amit Sharma and others, by the court of Additional Chief Judicial Magistrate, Haridwar (for short, "the case"), by which, the revisionists have been convicted under Section 323, 325 IPC and sentenced as follows:-
(a) Under Section 323 IPC - to undergo simple imprisonment for a period of six months with a fine of `1000/-. In default of payment of fine, to further undergo additional simple imprisonment for a period of seven days.
(b) Under Section 325 IPC - to undergo imprisonment for a period of three years with a fine of `5000/-. In default of payment of fine, to undergo simple imprisonment for a further period of one month; and
(ii) Judgment and order dated 16.02.2024, passed in Criminal Appeal No.121 of 2021, Amit Sharma and others vs. State of Uttarakhand, by the court of Third Additional Sessions Judge, Haridwar ("the appeal"). By it, the conviction has been upheld, but the sentence has been reduced to three months simple imprisonment.3
4. The challenge in Criminal Revision No.199 of 2024 is made to the judgment and order dated 16.02.2024, passed in the appeal.
5. Heard learned counsel for the parties and perused the record.
6. Facts necessary for the disposal of the revision are as follows: the revisionist no.3, Satya Prakash Sharma runs a shop in the name and style of Namaskar Electronics. It appears that PW1 Pankaj Ahluwalia had purchased certain articles relating to Cooler. According to the FIR, on 02.06.2012, at 11:00 AM, PW1 Pankaj Ahluwalia visited the shop run by the revisionist no.3, Satya Prakash Sharma to change the blades of the Cooler and requested the revisionist no.3, Satya Prakash Sharma to change the blades. FIR records that instead of changing the blades, the revisionist no.3, Satya Prakash Sharma shoved the PW1 Pankaj Ahluwalia. Thereafter, abused and threatened him. In this sequel, the FIR records that all the revisionists having Saria and iron rod with them attacked the PW1 Pankaj Ahluwalia. Ishwar Chand Verma, Shobhit Verma, Anil and other persons, who gathered at the spot and tried to save the injured PW1 Pankaj Ahluwalia. PW1 Pankaj Ahluwalia got injuries on his hand. PW2 Shobhit 4 Verma also sustained the injuries on his head and some other persons also sustained injuries. This report was given by PW1 Pankaj Ahluwalia. Based on it, FIR No.177 of 2012, under Sections 323, 506, 356, 504 IPC was lodged at Police Station Jwalapur, District Haridwar. Investigation was carried out; all the injured were medically examined.
7. In fact, PW2 Shobhit Verma had hairline fracture on his skull. The other injured also sustained injuries. The Investigating Officer collected injury reports, supplementary reports, X-Ray plates, etc. He prepared the site plan and after investigation, submitted the charge-sheet against the revisionists, which is basis of the case. On 11.09.2013, charges under Sections 323, 356, 326, 504, 506 IPC was framed against the revisionists, to which, they denied and claimed trial.
8. In this case, in total 07 witnesses have been examined namely, PW1 Pankaj Ahluwalia, PW2 Shobhit Verma, PW3 Ishwar Chand Verma, PW4 Anil Kumar, PW5 Dr. Naresh Johri, PW6 S.I. Manohar Singh and PW7 R.K. Gupta, who proved the supplementary report and has stated that there was a hairline fracture in the parietal bone of PW2 Shobhit Verma. 5
9. The revisionists were examined under Section 313 of the Code of Criminal Procedure, 1973 ("the Code"). According to them, they have been falsely implicated due to some property dispute.
10. After hearing the parties, by the impugned judgment and order passed in the case, the revisionists were convicted and sentence, as stated hereinbefore, but in appeal while maintaining the conviction, the sentence has been reduced.
11. The revisionists have challenged the conviction and sentence. Their revision has been admitted merely on the question of examining the sentence.
12. In Criminal Revision No. 199 of 2024, PW1 Pankaj Ahluwalia has preferred the revision against the judgment and order passed in the appeal, by which the sentence has been reduced. He seeks enhancement of the sentence.
13. Learned Senior Counsel appearing for the revisionists would submit that the incident took place in the year 2012; thereafter, no untoward incident took place between the parties; there are no criminal antecedents of any of the revisionists; they are 6 businessmen; they did not go anywhere to attack or assault the injured or any of them instead the alleged incident took place at their shop; it was not any pre-plan of the revisionists. Therefore, the interest of justice would be served, if the revisionists are released on the probation of good conduct.
14. Learned counsel for the PW1 Pankaj Ahluwalia, who has preferred criminal revision No.199 of 2024 would submit that the trial court has adequately imposed the sentence, which has been reduced by the court in appeal without any plausible reason. He would refer to paras 24 and 40 of the judgment in appeal to argue that merely on the ground that the injury was only on PW2 Shobhit Verma and it is a hairline fracture, the sentence has been reduced, which according to the learned counsel, may not be a ground to reduce the sentence.
15. In support of his contention, learned counsel has placed reliance upon the principle of law, as laid down in the case of Raj Bala vs. State of Haryana and others, (2016)1 SCC 463, Rohtas and another vs. State of Haryana and in connected matters, (2021)19 SCC 465.
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16. In the case of Raj Bala, the Hon'ble Supreme Court has discussed the factors for imposition of sentence. Reference has been made to paragraph 2 of the judgment, in which, the Hon'ble Supreme Court has referred to the principle of law, as laid down in the case of Shailesh Jaswanti Bhai vs. State of Gujarat, (2006)2 SCC 359; wherein the Court has held that, "undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. ........".
17. In the case of Rohtas (supra), the Hon'ble Supreme Court inter alia had, "The appellants have not undergone even half of their sentence period. Having enjoyed the more productive part of their lives outside jail cannot be, per se, taken as a mitigating factor. Any misplaced sympathy with the appellants is likely to cause injustice to the victim of the crime. We, therefore, do not find any justification to show leniency and reduce the sentence."
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18. In fact, once a conviction is recorded, sentencing is one of the important tasks in the Criminal Justice System. The principles have been laid down in a number of cases by the Hon'ble Supreme Court. In the case of State of Madhya Pradesh Vs. Udham and others, (2019)10 SCC 300, Hon'ble Supreme Court observed as follows:-
"12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti- social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).
13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support or amenity; (iii) extent of humiliation; and (iv) privacy breach."
19. In the case of State of Madhya Pradesh vs. Suresh, (2019)14 SCC 151, the Hon'ble Supreme Court discussed the factors that while imposition of a sentence 9 and in para 13 Hon'ble Supreme Court observed as under:-
"13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten."
20. Not only the injuries, but various factors like planning, choice of weapon, manner of planning, economic and social backgrounds of the offenders, litigations, availabilities of defence and so on, are to be taken into consideration while awarding punishment. There may hardly be similar punishment even for similar kind of offences that may be awarded in two different situations. The factors relating to the offenders is also relevant while awarding a sentence.
21. What is proved is that the PW1 Pankaj Ahluwalia had visited the shop run by the revisionist 10 no.3, Satya Prakash Sharma, but he was attacked. Saria and iron rods were used and in that process, when Ishwar Chand and Shobhit Verma came to rescue him, they were also attacked, due to which, there were fractures on the head of PW2 Shobhit Verma.
22. Definitely, the revisionists did not plan in advance that as and when PW1 Pankaj Ahluwalia would visit their shop they would attack him. But, planning can be done at the spot, at the place of incident itself. Intentions are so formulated instantly. Undoubtedly, the genesis of the offences is quite trivial.
23. The trial court has imposed punishment of three years under Section 325 IPC. It has been restricted to three months' period by the court in appeal. It is true that in para 40 in the judgment of court of appeal, one of the reasons for reducing the sentence that has been noted is the number of injuries and the kind of injuries. It is also one of the factors though, it is not the sole factor for awarding a sentence.
24. There are three revisionists. The revisionist no.3 Satya Prakash Sharma, it is stated, is 63 years of age and suffering with gangrene in his leg. This Court may deal with him in his short while. In so far as revisionists nos.1 and 2 namely, Amit Sharma and 11 Deepak Sharma are concerned, both have been assigned the role of assaulting with Saria and iron rod, etc. The appellate court has reduced the sentence while considering the nature of injuries and number of injuries also. The deduction qua the revisionist nos.1 and 2 namely, Amit Sharma and Deepak Sharma cannot be termed to be unlawful and this Court is of the view that the sentence that has been reduced in so far as it relates to Amit Sharma and Deepak Sharma does not need any interference.
25. Having considered the entirety of facts including the offence, its genesis, the kind of weapon used, the kind of injuries, the number of injured and other attending factors, this Court is of the view that it is not a case fit for probation so far as it relates to the revisionist nos.1 and 2 namely, Amit Sharma and Deepak Sharma. It is also not a case for enhancement of sentence in so far as revisionist nos.1 and 2 are concerned.
26. In so far as the revisionist no.3, Satya Prakash Sharma is concerned, it is stated that he is unwell; he is 63 years of age; he is suffering with gangrene; he has a lot of problems; he cannot sit or walk; in fact, while admitting the revisions and granting 12 the bail to the revisionist no.3, Satya Prakash Sharma, these factors were taken into consideration and recorded in the Court's order dated 30.04.2024.
27. Having considered the condition of revisionist no.3, Satya Prakash Sharma, this Court is of the view that instead of sentencing at once to any punishment, he may be released on the probation of good conduct.
28. The conviction and sentence of the revisionists no.1, Amit Sharma and revisionist no.2 Deepak Sharma recorded on 16.02.2024 in the appeal is upheld.
29. The conviction of revisionist no.3, Satya Prakash Sharma, under Sections 323, 325 IPC is upheld. But, instead of sentencing him at once to any punishment, let the revisionist no.3 be released on his entering into a bond with two sureties to appear and receive the sentence whenever called upon during the period of three months and in the meantime to keep a peace and be a good behaviour.
30. Impugned judgment and order in appeal is modified to the extent, as indicated above. 13
31. Both the revisions stand disposed of accordingly.
32. Let a copy of this judgment along with the lower court record be forwarded to the court concerned for necessary compliance.
(Ravindra Maithani, J.) 09.05.2024 Sanjay