Allahabad High Court
Gulsher @ Bhoot vs State on 22 November, 2017
Bench: Narayan Shukla, Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 47 Case :- JAIL APPEAL No. - 2333 of 2005 Appellant :- Gulsher @ Bhoot Respondent :- State Counsel for Appellant :- F.K.Zafar,Birendra Singh Khokher,From Jail,S.K.Anwar,Sharad Kumar Pandey Counsel for Respondent :- A.G.A. Hon'ble Shri Narayan Shukla,J.
Hon'ble Chandra Dhari Singh,J.
(Delivered by Hon. Chandra Dhari Singh,J.)
01. Heard Sri Vinay Saran, learned Amicus Curiae for the appellant and Ms. Usha Kiran, learned A. G. A. for the State.
02. The present jail appeal has been preferred against the judgment and order dated 12.4.2005 passed by the Additional Sessions Judge, Court no.5, Saharanpur in S.T. Nos. 248 of 2004 and 249 of 2004, by which the appellant Gulsher @ Bhoot was convicted for the offence punishable under Sections 302 read with Section 34 and 201 I.P.C. and Section 25 of the Arms Act. He was sentenced to undergo imprisonment for life and fine of Rs.5000/- for the offence punishable under Section 302/34 I.P.C. and in default of payment of fine, he shall undergo further R.I. for two years. He was further sentenced to undergo R.I. for two years and a fine of Rs.2000/- for offence punishable under Section 201 I.P.C. and in default of paymant of fine, he shall undergo R.I. for six months. He was further sentenced to undergo R.I. for one year and a fine of Rs.500/- for offence under Section 25 Arms Act. In default of payment of fine he shall undergo R.I. for three months. All the sentences shall run concurrently.
3. Brief facts of the case I. A first information report was lodged on the complaint made by Biram Singh son of Sri Mam Chandra on 13.2.2004. It is stated in the complaint that an incident took place on 12.2.2004 at about 11.30 P.M. in jangal of village Kolki Kala, Police Station Gagalheri, District Saharanpur. When the complainant Biram Singh along with his brother Ajab Singh (deceased) accompanied with Roop Chandra (P.W.2) were going in Jhota Buggi loaded with sugarcane and were going to Daya Sugar Mills. As soon as they reached just ahead of village Kolki near village Khajoori Akbarpur, four miscreants armed with knife, countrymade pistol and lathi came out from the field of sugarcane from the left side and they surrounded them. The miscreants started taking search of the deceased and accompanied person. The search was protested by the deceased Ajab Singh. On this protest, Iqbal accused uttered "sale roopri wale khoob bante hai, isi ko khinch lo". All the miscreants started attacking on Ajab Singh with knife and danda and dragged him in the field. P.W.1, complainant Biram Singh and P.W.2, Roop Chandra made a hue and cry and rushed towards the village. Bhanwar Singh, Suresh Chand, Jagdish, Naresh, Anoop Singh and several other villagers came on the spot and all started a search of Ajab Singh (deceased). He was found dead near the drain of the field of Bhagirath of Kolki. His hands and legs were tied and his mouth was full of clothes. The F.I.R. was lodged as Ext.Ka-1 in police station Gagalheri against all four miscreants including the appellant and crime no.16 of 2004, under Sections 302/201 I.P.C. was registered. The investigation was started. The formality of panchayatnama was made by the police. The police went to the spot at 12.00 noon. The deadbody was inspected and sealed from place of the incident and it was handed over to Constable Hoshyar Singh and Rajiv Kumar along with papers for post mortem. Investigating Officer went to the place of incident and prepared the site plan (Ext.Ka-17). The deadbody along with papers was brought to the police line and entry was made in G.D. No.39 on 13.2.2004. The Investigating Officer also took sample of blood stained earth and plane earth from the spot and prepared memo (Ext. Ka-21) II. After completion of the investigation, Investigating Agency found enough material to implicate the accused-appellant and on the implication, a chagesheet was submitted against him before the concerned magistrate court. The accused was charged for commission of offence which was triable by the court of sessions and he was committed to the court of sessions as per the provisions of Section 201 Cr.P.C. by competent court. The competent court took cognizance and the accused was charged under Section 302 read with 34 and 201 I.P.C. vide order dated 21.7.2004. He was also charged of offence punishable under Section 25 of the Arms Act vide order dated 27.3.2004. He pleaded not guilty and claimed to be tried.
III. In order to prove the charges, the prosecution had examined Biram Singh as P.W.1 who deposed that he is an agriculturist. He stated in his testimony that in the night of 12/13.2.2004, he went to Daya Sugar Mills Gagalheri by loading sugarcane in his 'jhota buggi'. His brother Ajab Singh and Roop Chandra were also with him. When they reached ahead of the village Kolki at about 11.30 P.M. near village Khajoori four miscreants namely accused Gulsher alias Bhoot, Iqbal, Israr and Sajid met there. They were previously known to him as they were frequent visitor in his village. He further stated that the accused persons armed with knife and lathi were seen in the light of truck and torch. They threatened him and said that whatever he possessed hand over to them otherwise they will kill him. The deceased-Ajab Singh protested. On the protest of Ajab Singh, he was dragged from Jhota Buggi by all the accused persons. Thereafter, Ajab Singh was inflicted with knife and danda and he was dragged in the field.
IV. Roop Chandra (P.W.2) had been examined and he deposed that he knew Biram Singh and Ajab Singh. Both were real brothers. The incident took place on 12/13.2.2004. He stated in his testimony that he was going to Gagalheri Sugar Mill along with deceased. At about 11.30 P.M., when they were moving towards village Khajoori on the road, four miscreants Israr, Iqbal, Gulsher alias Bhoot and Sajid had came out and stood in front of them. He stated in his deposition that all the miscreants were previously known to him, as they were hackers and have movement/round in the village. The miscreants were identified in the light of truck and torch and all of them threatened him to kill and they had struggled with Ajab Singh. The accused-appellant was armed with danda. The accused Israr was armed with knife, Sajid was armed with lathi and Iqbal was armed with revolver/pistol. He further stated in his testimony that several persons came from the village accompanied with him and went to the place of occurrence, there he did not find Buggi or Ajab Singh. In the morning deadbody of Ajab Singh was found in the filed of Bhagirath of Kolki, whose hands and legs were tied and clothes were found in his mouth. 'Jhota Buggi' was found in the village Khajoori in the morning.
V. Constable Husmen Ali had been examined as P.W.3 who is the formal witness and proved the chick F.I.R. (Ext.Ka-2 ) prepared on the basis of written report and G.D. No.18. The original G.D. was produced and the copy was proved as Ext.Ka-3 in the handwriting and signatures of the witness.
VI. Dr. P. K. Tyagi had been examined as P.W.4 who had conducted post mortem of the deceased. In the post mortem following injuries were found on the person of the deceased:-
1.Incised wound on right eye outer end oblique 2 x 3 cm x muscle deep.
2.Incised wound on left side face 1 cm below left eye 2.5 x 3 cm x muscle deep.
3. Lower lip incise wound 1.5 x .3 cm x muscle deep in just right to mid line.
4. Abraded contusion on left side from of chest just below left nipple 13 x 8 cm.
5.Abraded contusion on right side front of chest 3 cm below nipple 6 x 4 cm.
6. Abrasion right shoulder front 2 x 2 cms.
7.Lacertated wound on left leg 1 x 04 cm x bone deep just below mabolus count.
8. Bruisi with swelling on right hand exterior aspect whole.
9.Interated ligature mark on front and both sides of neck 12 x 2 cm. Bone of mark is pale and margin echmosed. There is extravenation of blood in underlying tissues.
P.W.4 deposed in his testimony that on 13.2.2004, he was posted as Senior Pathologist in District Hospital, Saharanpur and he conducted post mortem examination on that date at 4.40 p.m.. The deadbody was brought by Constables Hoshiyar Singh and Rajiv Kumar in sealed state along with eight papers. As per Doctor's opinion, death occurred between 18 to 24 hours prior to conducting of the post mortem. Rigor mortis was present. There was bleeding from the hostrils. All the ante mortem injuries referred in the post mortem report were duly proved by P.W.4, Dr.P.K. Tyagi. As per Doctor's opinion, death occurred on account of strangulation. He further deposed that the death might be possible at about 11.30 or 12 in the night of 12.2.2004. Injury nos.1 to 3 and 4 to 9 were sufficient to cause death.
VII. Head Constable Afsar Ali had been examined as P.W.5. He had deposed that on the basis of search and recovery, he scribed the chick F.I.R. on 1.3.2004 and proved it as Ext. Ka 6.
VIII. Ajit Kumar Singh, S.I. had been examined as P.W.6 who was Investigating Officer of the case under Section 25 of the Arms Act against the appellant-accused Gulsher alias Bhoot. He deposed that on 1.3.2004, first paper of C.D. was scribed. Statement of the accused was recorded as well as the statement of the description of the F.I.R. was recorded on 6.3.2004. He recorded the statement of Abdul Rashid and other witnesses, prepared site plan and proved as Ex. Ka-9 and sought permission to prosecute the accused under Section 39 of the Arms Act from D.M. Saharanpur. After completion of investigation for the offence punishable under Section 25 Arms Act, he submitted a chargesheet and proved the same as Ex.Ka-11.
IX. S.I. Adil Hasan had been examined as P.W.7, who was the Investigating Officer of the main case under Section 302 I.P.C.. He had deposed that on 13.2.2004, he took charge of the investigation and recorded statement of the scriber of the chik F.I.R., proved the Panchayatnama of the body of deceased. He also made search of the accused and in the intervening night of 29.2.2004 and 1.3.2004, the present appellant Gulsher was arrested on the basis of information of the informant. The police party was present at the time of arrest of accused which was made from the house situated in the jungle of village Behri Gujjar. Countrymade pistol was recovered from the possession of the accused along with two live cartridges. Recovery memo was prepared and accused persons were arrested at 12.30 night intervening 29.2.2004/1.3.2004.
X. The accused was examined under Section 313 Cr.P.C. He had denied to have committed any offence on the date, time and place and he had stated that he was labourer. He was taking rest after taking meals in his house and at that time, the police arrested him and confined. He was falsely implicated in the case.
No defence evidence was adduced by the appellant-accused.
04. The testimony of witnesses, medical evidence and other relevant factors were considered by the Sessions Court and after consideration of the material on record the accused-appellant was convicted for the offence punishable under Sections 302 read with Section 34 and 201 I.P.C. and Section 25 of the Arms Act.
05. Sri Vinay Saran, learned Amicus Curiae for the appellant submitted that presence of eye witnesses on the spot is highly doubtful. He further submitted that eye witnesses P.W.1 and P.W.2 were not present on the spot at the time of the incident and the deceased probably was returning all alone after selling sugarcane, when he was stopped in the darkness of night by some unknown miscreants who dragged him inside fields, robed him of his money and strangulated him to death. Miscreants ensured that the deceased may not raise alarm or ran away, hence they stuffed his mouth with a cloth and tied his hands and legs. He further submitted that the F.I.R. was lodged on 13.2.2004 at 11.40 A.M. after 12 hours from the time of the incident. The prosecution has not explained the delay in lodging the F.I.R. and therefore, it creates doubt that no one was in fact aware of the alleged incident till next day, when finally the bullock cart (Buggi) and the deadbody of Ajab Singh (deceased) was found lying inside the field. Sri Vinay Saran, learned Amicus Curiae further submitted that the identity of the accused persons appears to be highly doubtful and their false implication by police could not be ruled out. P.W.1 in his deposition has categorically denied knowing of the parentage and address of the accused persons, however, strangely enough, in the F.I.R. detail address of the accused and parentage of two co-accused namely Iqbal and Sajid were clearly mentioned. It is admitted fact that no test identification parade was conducted to fix the identity of the actual assailants and identity of the appellant is highly doubtful in the absence of his father's name in the F.I.R. and in view of the admission of P.W.1 that he did not know father's name and address of the accused. It is further submitted that there were serious unexplained contradictions in the ocular evidence and medical evidence on the record. The deceased admittedly died by asphyxia as a result of strangulation which was big ligature mark on the neck as proved by Dr. P.K. P.K. Tyagi (P.W.4). However, none of the eye witnesses mentioned that such injury was caused by any accused person. It is submitted that the role of each accused was not assigned by any witness. Therefore essential ingredient of the common object was absent. The weapon assigned to the accused Gulsher was a lathi and the injury nos.4 to 8 which had been opined by Dr. P. K. Tyagi (P.W.4) to have been caused by lathi were on the non vital part of the body and appeared to be simple in nature and as such the case in hand so far as it relates to the appellant Gulsher is concerned, does not travel beyond the limit of Section 325 I.P.C., specifically when none of the eye witnesses have stated that there was a common object to commit the murder. He further argued that the appellant was arrested on 1.3.2004 and he has been in jail for more than 13 years and has almost served out the entire sentence and is eligible from his release on remission also.
06. Per contra learned A.G.A. has strongly opposed the contention raised by the learned Amicus Curiae appeared for the present appellant and has submitted that the trial court has passed the impugned judgment after taking into consideration of the facts and circumstance of the case as well as materials on record. The learned counsel for the State further contended that the culpability of the appellant has been proved to the hilt by the eye witness to the occurrence and there is no ground warranting interference with the conviction of the appellant.
07. We have considered the rival contention and perused the impugned judgment and material on record.
08. The matter will have been scrutinized from following angles:-
(I) Whether the presence of the prosecution witnesses is established from the evidence laid before the trial court.
(ii) Whether the accused were also present at the scene of offence.
(iii) Whether it was culpable act of the accused in unison to murder the deceased and the weapon used by them was the same which was recovered.
(iv) Whether the appellant shared common intention with other co-accused to have inflicted the injuries on the deceased ?
09. In the present case incident occurred at about 11.30 p.m. on 12.2.2004. The accused-appellant along with other was well identified in the light of truck and torch. In the F.I.R. four accused persons have been named including the present appellant and all were armed with knife and danda. Marley because specific weapon of the appellant has been omitted to be mentioned in the F.I.R. will not detract the veracity of the prosecution evidence, specifically when P.W.2 has specifically deposed that the appellant was armed with danda. From the perusal of the post mortem report, it is amply proved that injuries no.4, 5, 6, 7 and 8 can be inflicted by using lathi/danda. P.W.1 and P.W.2 had been cross examined at length. From perusal of the cross examination of P.W.1 and P.W.2, it is noticed that there is consistency in the cross examination in the sense that they proceeded from village at about 10-10.30.P.M. and reached the place of incident within an hour. The evidence of P.W.1 and P.W2 are wholly reliable and trustworthy. The name of Roop Chandra has specifically been mentioned in the F.I.R. as a witness of the occurrence. The P.W.2 Roop Chandra is an independent witness, therefore, he could not give any evidence against the appellant to falsely implicate him in the said heinous crime.
10. The incident took place in the night at about 11.30 P.M., when the deceased was inflicted injuries with knife and danda and he was dragged in the field. The brother of the deceased, Biram Singh along with other villagers were busy in search of the deceased and when in the morning they found deadbody of the deceased at about 8.30 A.M., the F.I.R. was lodged at about 11.40 A.M. next day. The F.I.R., in such circumstances cannot be said to be delayed.
11. In State of Punjab vs. Mohinder Singh (2007) 13 SCC 560, the Hon'ble Supreme Court observed that "F.I.R. containing categorical statement that nobody came forward to accompany the complainant wife of deceased to police station in the dark night. Therefore, she had to wait till the morning for visiting the police station for lodging the report. In her long cross- examination no question regarding the reason for the alleged delay in lodging the F.I.R. asked. No suggestion made that she had wrongly stated about the reason why she was lodging the F.I.R. on the next morning. In the circumstances, the Honble Supreme Court held that there was neither unexplained delay nor was there requirement for offering any explanation."
12. In Gurunath Donkappa Keri vs. State of Karnataka (2009)13 SCC 34 the Hon'ble Supreme Court held that "The FIR, having regard to the distance between place of occurrence and the police station cannot be said to have been lodged after a long delay. The incident took place at about 2 O'clock in the afternoon. It must have continued for sometime. The mental condition of the prosecution witnesses can be well imagined. They had to arrange a transport to take three persons, who were severely injured, to the hospital, particularly when one of them had suffered grievous injuries.
Before coming to the police station, P.W.1 (nephew of two of the deceased) got the F.I.R. scribed by PW 2 (nephew of two of the deceased) who is a graduate in Science. He wrote the same in English. That must have also consumed some time. It was in the aforementioned circumstances that the F.I.R. was lodged at the police station within a period of 2 hours from the time when the incident had taken place; the police station being at a distance of 16 km. From the village. Therefore, no delay at all was caused in lodging the same."
13. In Surendra Pal vs. State of U.P. (2010) 9 SCC 399 the Hon'ble Supreme Court held that "Incident taking place at 12 midnight-Police station at a distance of 4 o4 5 km.- Three persons in family killed by group of persons armed with deadly weapons and P.Ws 2 to 4 (eyewitnesses) also seriously injured-Entire village terror-stricken-Under such circumstances, held, it is not expected that someone would rush to police station and lodge F.I.R.-FIR lodged within 5 to 5 and half hours immediately after incident, cannot be characterized as delayed one in such circumstances."
14. The post mortem report has also been proved by P.W.4 Dr.P.K. Tyagi. In the cross examination, the Doctor has specifically deposed that death is not possible to have occurred on 13.2.2004. The death of the deceased occurred between 2 to 4 A.M. has also been denied by Dr.P.K.Tyagi. Therefore, the prosecution story that the deceased was dragged by accused Gulsher along-with three others at about 11.30 P.M. on 12.2.2004 and was carried in the filed is worthy reliable and trustworthy. Looking to the fact that all the four accused were armed with danda and knife fully corroborates the prosecution story, in the sense that injury nos.1 to 3 were inflicted with knife as they were incised wounds and rest injuries no.4 to 8 were inflicted with lathi/danda.
15. The appellant was convicted for the offence under Section 302 read with Section 34 I.P.C.. The learned Amicus Curiae submitted that the weapon assigned to the appellant was a lathi and the injury nos.4 to 8 which had been caused by the lathi were on the non-vital part of the body and appeared to be simple in the nature, therefore, conviction of the appellant under Section 302 read with Section 34 I.P.C. is not sustainable.
16. In Sudip Kumar Sen and others vs. State of West Bengal and others AIR 2016 SC 310 the Hon'ble Supreme Court had held in paragraph 14 as under :-
"14. Section 34 Indian Penal Code embodies the principle of joint liability in the doing of a criminal act and essence of that liability is the existence of common intention. Common intention implies acting in concert and existence of a pre-arranged plan which is to be proved/inferred either from the conduct of the accused persons or from attendant circumstances. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention. Common intention implies pre-arranged plan. Under Section 34 IPC, a pre-concert in the sense of a distinct previous plan is not necessary to be proved. The essence of liability under Section 34 IPC is conscious mind of persons participating in the criminal action to bring about a particular result. The question whether there was any common intention or not depends upon inference to be drawn from the proved facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.
17. Considering the facts and circumstances of the case in hand, it is evident that there was prior concert and that the appellant has acted in furtherance of common intention. As seen from the evidence of P.W.1 and P.W.2, all the accused persons came together with deadly weapon and started abusing the deceased and inflicted the injuries with their respective weapon on the body of the deceased. Facts and circumstances clearly establish meeting of minds and common intention of the appellant in committing the murder of deceased and, therefore, the appellant was rightly convicted under Section 302 read with Section 34 of I.P.C.
18. With regard to charge under Section 25 of the Arms Act, the prosecution has examined Adil Rashid (P.W.7) S.O. who had conducted search of the accused/appellant and deposed that he arrested the accused-appellant on 1.3.2004. As it was odd hour of the mid night, therefore, in the ordinary course of circumstances, no public witness can be said to be available. Merely because the police made the arrest and no public witness was there is no ground to reject or disbelieve the testimony of police officer. There is nothing on record to prove enmity with the police officer. The recovery memo regarding countrymade pistol and live cartridges has duly been proved along with arrest with a counterband. The F.I.R. was lodged under Section 25 of the Arms Act against the accused person. The permission to prosecute has also been proved. There was no material on record to prove that the appellant was falsely implicated for the offence punishable under Section 25 of the Arms Act. Thus prosecution has also proved the charge under Section 25 of the Arms Act against the appellant.
In totality of the aforesaid discussion and the fact that the accused were identified and recoveries were proved and the post mortem report corroborating the fact that death occurred due to injuries inflicted by the accused has left no room for doubt that the accused appellant was not involved in the commission of offence.
19. Sri Vinay Saran, learned Amicus Curiae for the appellant argued that the appellant was arrested on 01.03.2004 and he has been in jail for more than 13 years and has almost served out the entire sentence and, therefore, is eligible for his release on remission also.
20. Remission comes from the Latin remissionem, meaning "relaxation', a sending back." The object of punishment in any Penal System is three-fold. Firstly to act as punitive including Retributive, secondly to act as Deterrent and thirdly to provide scope for reform of the convict. In Rajendra Prasad vs. State of U.P. AIR 1979 SC 916, the Honb'le Supreme Court said that the retributive theory has had its day and is no longer valid. Deterrence and reformation and the primary social goals which makes deprivation of life and liberty reasonable as penal panacea .
21. Section 302 I.P.C. provides for punishment for murder. It reads as under:
"Section 302. Punishment for murder.-Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine."
In the case of murder the court can either impose sentence of imprisonment for life or sentence of death but any other fixed term sentence is totally inconceivable in terms of the statute. In respect of an offence under Section 302, life is the minimum and the maximum is the death sentence and, therefore, the court has a choice between the two and is not entitled to follow any other path, for that would be violative of the sanctity of Article 21 of the Constitution which clearly stipulates that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
22. Imprisonment could be (1) Rigorous that is, with hard labour or (2) Simple. So far as life imprisonment is concerned, there are no fuel sub classifications. It is also not prescribed, if, it is simple or rigorous. An attempt was made though Law Commission's 39th Report in 1968, to qualify it as Rigorous, but it did not translate into legislation. The tenure of life imprisonment is not prescribed anywhere in the code. Section 55 of the I.P.C. provides the commuted value of life imprisonment as not exceeding fourteen years. Similarly Section 57 of the I.P.C. provides a numerical value of twenty years to life imprisonment term for calculating fractions of the terms of punishment.
As per criminal procedure code, Section 433 of the Code, a sentence of imprisonment of life may be commuted for a term not exceeding fourteen years and Section 433-A of Cr.P.C. provides that in specific cases prisoners with life imprisonment shall not be released unless they have served at least fourteen years imprisonment. However, none these Sections fail to answer the basic question-what is the tenure of life imprisonment.
23. The answer of the question, that what is tenure of life imprisonment has been made in a number of judgments of the Hon'ble Supreme Court. In the case of Union of India vs. V. Sriharan, 2014 11 SCC 1 the Hon'ble Suprme Court framed following question:-Whether imprisonment for life means for the rest of one's life with any right to claim remission? The Hon'ble Supreme Court in the majority, after referring to the decisions in Maru Ram vs. Union of India (1981) 1 SCC 107, Gopal Vinayak Godse v. State of Maharashtra, AIR, 1961 SC 600 and State of M.P. Vs Ratan Singh, (1976) 3 SCC 470, opined that the legal position is quite settled that the life imprisonment only means the entirety of the life unless it is curtailed by remissions validly granted under the Criminal Procedure Code by the appropriate Government or under Articles 72 and 161 of the Constitution by the Executive Head i.e. the President or the Governor of the State respectively.
24. In Union of India vs. V. Sriharan (2016) 7 SCC 1 the Hon'ble Supreme Court held as under:-
"76. Keeping the above hard reality in mind, when we examine the issue, the question is "whether as held in Shraddananda (2), a special category of sentence; instead of death; for a term exceeding 14 years and putting that category beyond application of remission is good in law? When we analyse the issue in the light of the principles laid down in very many judgments starting from Godse, Maru Ram, Sambha Ji Krishan Ji, Ratan Singh, it has now come to stay that when in exceptional cases, death penalty is altered as life sentence, that would only mean rest of one's lifespan".
At that juncture, the issue arose with regard to the interpretation of Section 433-A CrPC. In that context, the majority opined:-
79. In this context, the submission of the learned Solicitor General on the interpretation of Section 433-A CrPC assumes significance. His contention was that under Section 433-A CrPC what is prescribed is only the minimum and, therefore, there is no restriction to fix it at any period beyond 14 years and up to the end of one's lifespan. We find substance in the said submission. When we refer to Section 433-A, we find that the expression used in the said section for the purpose of grant of remission relating to a person convicted and directed to undergo life imprisonment, it stipulates that "such person shall not be released from prison unless he had served at least fourteen years of imprisonment". Therefore, when the minimum imprisonment is prescribed under the statute, there will be every justification for the court which consider the nature of offence for which conviction is imposed on the offender for which offence the extent of punishment either death or life imprisonment is provided for, it should be held that there will be every justification and authority for the court to ensure in the interest of the public at large and the society, that such person should undergo imprisonment for a specified period even beyond 14 years without any scope for remission. In fact, going by the caption of the said Section 433-A, it imposes a restriction on powers of remission or commutation in certain cases. For a statutory authority competent to consider a case for remission after the imposition of punishment by court of law it can be held so, then a judicial forum which has got a wider scope for considering the nature of offence and the conduct of the offender including his mens rea to bestow its judicial sense and direct that such offender does not deserve to be released early and required to be kept in confinement for a longer period, it should be held that there will be no dearth in the authority for exercising such power in the matter of imposition of the appropriate sentence befitting the criminal act committed by the convict."
25. The purpose of referring to the aforesaid analysis is only to understand the gravity and magnitude of a case and the duty of the Court regard being had to the precedents and also the sanction of law.
26. Dealing with the procedure as a substantive part, the majority opined in the case of Union of India vs. V. Sriharan (2016) 7 SCC 1 that:-
"101.Such prescription contained in the Criminal Procedure Code, though procedural, the substantive part rests in the Penal Code for the ultimate confirmation or modification or alteration or amendment or amendment of the punishment. Therefore, what is apparent is that the imposition of death penalty or life imprisonment is substantively provided for in the Penal Code, procedural part of it is prescribed in the Criminal Procedure Code and significantly one does not conflict with the other. Having regard to such a dichotomy being set out in the Penal Code and the Criminal Procedure Code, which in many respects to be operated upon in the adjudication of a criminal case, the result of such thoroughly defined distinctive features have to be clearly understood while operating the definite provisions, in particular, the provisions in the Penal Code providing for capital punishment and in the alternate the life imprisonment".
27. In Maru Ram vs. Union of India AIR 1980 SC 2147 the Hon'ble Supreme Court held as under:-
"Section 433- A obligating the actual detention in prison for full fourteen years as a mandatory minimum in the two classes of cases where the court could have punished the offender with death but did not, or where the court did punish the culprit with death but he survived through commutation to life imprisonment granted under S. 433 (a), is not beyond legislative competence of Parliament. Art. 246 (2) gives power to Parliament to make laws with respect to any of the matters enumerated in List III. Entries 1 and 2 in List III (especially Entry 2) are abundantly comprehensive to cover legislation such as is contained in S. 433-A. Which merely enacts a rider as it were, to Ss.432 and 433 (a). Into Section 433-A cannot be read a legislation on the topic of 'prisons and prisoners'. On the other hand, it sets a lower limit to the execution of the punishment provided by the penal Code and is appropriately placed in the Chapter on Execution and Sentences in the Procedure Code. Once the irrefutable position that the execution, remission and commutation of sentences primarily fall, as in the earlier Code (Criminal Procedure Code, 1898), within the present Procedure Code (Chapter XXXII) is accepted, S. 433-A can rightly be assigned to entry 2 in List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by the preceding two sections. This limited prescription as a proviso to the earlier prescription relates to execution of sentence, not conditions in prison or regulation of prisoner's life. The distinction between prisons and prisoners on the one hand and sentences and their execution, remission and commutation on the other, is fine but real. To bastardize S.433-A as outside the legitimacy of Entry 2 in List III is to breach all canons of constitutional interpretation of legislative Lists. Parliament has competency.
If it is assumed that the laws of remission and short-sentencing by States are enacted under Entry 4 of List II, the States' competency to enact cannot be challenged. After all, even in prision-prisioner legislation, there may be beneficent provisions to promote the rehabilitative potential and reduce warder-prisoner friction by stick-cum-carrot strategies. Offer of remission paroles, supervised releases, opportunities for self-improvement by family contacts, time in community work centres and even meditational centres, can properly belong to prison legislation. Rewards by remissions, like punishments by privations are permissible under Entry -4 of List II. Even so , the power of the State is subject to Art. 246 (1) and (2) and so Parliamentary legislation prevails over State legislation. Moreover, Art. 254 resolves the conflict in favour of Parliamentary legislation. If a State intends to legislate under Entry 2 of List III such law can prevail in the State as against a Parliamentary legislation only if Presidential assent has been obtained in terms of Art. 254 (2). In the present case there is hardly any doubt that S.433-A must hold its sway over any State legislation even regarding 'prisons and prisoners' if its provisions are repugnant to the Central Law. The Remission Schemes cannot be read as upsetting sentence but as merely providing rewards and remissions for inprison good conduct and the like. If the sentence is life imprisonment remission, as such, cannot help. If the sentence is for a fixed term, remissions may help but Section 433-A does not come in the way. Thus, no incompatibility between Section 433-A and remission provisions exists."
28. In Swamy Shraddananda (2) vs. State of Karnataka (2008) 13 SCC 767 the Hon'ble Supreme Court held as under:-
"78. Section 432 of the Code of Criminal Procedure deals with the power to suspend or remit sentences and Section 433 with the power to commute sentences. Section 433A, that was inserted in the Code by an amendment made in 1978, imposes restriction on powers of remission or commutation in certain cases. It reads as follows:
" 433-A. Restriction on powers of remission or computation in certain cases - Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by laws or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had at least fourteen years of imprisonment."
79. Section 434 gives concurrent power to the Central Government in case of death sentence and Section 435 provides that in certain cases the State Government must act only after consultation with the Central Government.
80. From the Prison Act and the Rules it appears that for good conduct and for doing certain duties etc. inside the jail the prisoners are given some days' remission on a monthly, quarterly or annual basis. The days of remission so earned by a prisoner are added to the period of his actual imprisonment (including the period undergone as an under trial) to make up the term of sentence awarded by the Court. This being the position, the first question that arises in mind is how remission can be applied to imprisonment for life. The way in which remission is allowed, it can only apply to a fixed term and life imprisonment, being for the rest of life, is by nature indeterminate."
29. The convict undergoing the life imprisonment can always apply to the authority concerned for obtaining remission either under Article 72 or 161 of the Constitution or under Section 432 Cr.P.C. and the authority would be obliged to consider the same reasonably. This was settled in Gopal Vinayak Godse vs. State of Maharastra AIR 1961 SC 600 which view has since then been followed consistently in State of Haryana v. Mahender Singh, (2007) 13 SCC 606, State of Haryana vs. Jagdish, (2010) 4 SCC 216, Sangeet vs. State of Haryana, (2013) 2 SCC 452 and Laxman Laskar vs. Union of India, 93 (2000) 2 SCC 595. The right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation. All that he can claim is a right that his case be considered. The decision whether remissions be granted or not is entirely left to the discretion of the authority concerned, which discretion ought to be exercised in a manner known to law. The convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner.
30. In the case of Jagmohan Singh vs. State of U.P. (1973) 1 SCC 20, a Constitution Bench of the Hon'ble Supreme Court make the following observation:-
"14......In the context of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty."
Five years after, Jagmohan case Section 433-A was inserted in the Code of Criminal Procedure, 1973 imposing a restriction on the power of remission or commutation in certain cases. After the introduction of Section 433- A another Constitution Bench of Hon'ble Supreme Court in Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 made the following observation:
"156. It may be recalled that in Jagmohan this Court had observed that, in practice, life imprisonment amounts to 12 years in prison. Now, Section 433-A restricts the power of remission and commutation conferred on the appropriate Government under Section 432 and 433, so that a person who is sentenced to imprisonment for life or whose death sentence is commuted to imprisonment for life must serve actual imprisonment for a minimum of 14 years."
Thus all that is changed by Section 433-A is that before its insertion an imprisonment for life in most cases worked out to a dozen years of imprisonment and after its introduction it works out to fourteen years' imprisonment.
31. In view of the aforesaid analyses, we are of the opinion, that for applying remission to the sentence of imprisonment for life, it would be necessary to first commute the sentence to fix a term and then apply for remission. In the instant case, the appellant has only undergone 13 years in the jail as he was arrested on 29.02.2004. Therefore, it is not fit case for consideration of the remission under Section 432 and 433-A of Cr.P.C..
32. In the light of the discussion made above, we do not find any good ground for interference with the judgment and order dated 12.4.2005 passed by the Additional Sessions Judge, Court no.5, Saharanpur. Therefore, the conviction and sentence of the appellant awarded by the trial court is affirmed.
The jail appeal lacks merit and is accordingly dismissed.
33. The Registry is directed to send a certified copy of the judgment with all original documents to the concerned court below for compliance.
Dated:- 22nd November, 2017 Asha (Chandra Dhari Singh,J.) (Shri Narayan Shukla,J.)