Allahabad High Court
Harpal And Another vs State Of U.P. on 26 February, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 64 Case :- CRIMINAL APPEAL No. - 448 of 1984 Appellant :- Harpal And Another Respondent :- State of U.P. Counsel for Appellant :- Vinai Singh,P.S.Pundir Counsel for Respondent :- A.G.A. Hon'ble Raj Beer Singh,J.
1. Heard Sri P.S.Pundir, learned for the appellants and Sri Ravi Singh Parihar, learned Additional Government Advocate for the State and perused the record.
2. This criminal appeal has been preferred against the judgment and order dated 25.01.1984 passed by 1st Additional District & Sessions Judge, Saharanpur in S.T. No. 319 of 1982 (State vs. Harpal and others), under Sections 393, 353, 332, 224 IPC and Section 60 Excise Act, P.S. Nakur, District Saharanpur, whereby the accused appellant Harpal and Rohtash (since died) have been convicted under Section 353, 224 and 332 IPC. They were sentenced to one year rigorous imprisonment under Section 353 IPC, one year rigorous imprisonment under Section 224 IPC and two years rigorous imprisonment under Section 332 IPC. Accused-appellant Harpal was further convicted under section 60 Excise Act and sentenced to six months rigorous imprisonment. All the sentences were to run concurrently. However, they were acquitted of charge under section 393 IPC. Co-accused Rattan Singh and Ramesh were acquitted of all the charges.
3. Appellant No. 2 Rohtash has expired during pendency of this appeal and his appeal has been abated and thus now this appeal is confined only in respect of accused-appellant Harpal.
4. Learned counsel for accused-appellant Harpal has not disputed findings of facts and conviction of accused-appellant and pressed this appeal only on point of sentence. However, I have gone through entire evidence carefully.
5. Prosecution version is that on 07.03.1982 PW-1 Constable Bhawar Singh and PW-3 Constable Satya Kumar of Police Station Nakur, Saharanpur were patrolling in the area of police station. At about 9.00 PM, they along with village chowkidar Shiv Nath (PW-2) reached near house of co-accused Rattan Singh at village Nasrullahgarh and saw that accused-appellant Harpal was coming from north side and after seeing police party he tried to run away, however, he was apprehended by police party and in his search, one bottle of illicit country made liquor was recovered from him. Accused-appellant raised an alarm and consequently co-accused Rattan, Naresh and Rohtash reached there and they all got the accused-appellant Hapal freed from custody of those police officials. It is alleged that accused-appellant Harpal has assaulted PW 3 Constable Satya Kumar and caused injuries to him, whereas co accused Ratan Singh made an attempt to snatch arms of said police constables.
6. PW-1 Constable Bhanwar Singh lodged FIR Exhibit Ka-1. Injured constable Satya Kumar was medically examined by PW-7 Dr T. S. Thakur vide MLC Exhibit Ka-10. Injured has sustained following injuries:
(i) Incised wound on the middle of head 12 cm. above the bridge of nose, 1.5 cm x 0.25 cm x scalp deep. Kept under observation. Advised x-ray. Bleeding was present.
(ii) Lacerated wound on the middle of head 9 cm above the bridge of nose, 1.5 cm x 0.25 cm x scalp deep. Kept under observation. Advised x-ray.
(iii) Incised wound on right side of forehead 4 cm above the right eyebrow, 1.25 cm x 0.25 cm x scalp deep, bleeding was present.
(iv) Incised wound on the tip of right thumb, 1 cm x 0.25 cm x skin deep, bleeding present.
(v) Linear abrasion 1.5 cm long on the back of right hand outer side.
7. Initial investigation was conducted by PW-6 S.I. M.L. Moyal and later on subsequent investigation was conducted by PW-5 S.I. Inderpal. After investigation, accused-appellant Harpal as well as co-accused were charge sheeted under Sections 393, 353, 323, 224 IPC and section 60 Excise Act.
8. Trial court farmed charges under Sections 393, 353, 323, 224 IPC and Section 60 Excise Act. Prosecution has examined total seven witnesses, whereas accused persons have examined one Heera (DW-1) in defence.
9. Perusal of record shows that conviction of accused-appellant is mainly based on testimony of injured witness PW-3 Satya Kumar and two eye-witness PW-1 Constable Bhanwar Singh and PW-2 Shivnath. So far accused-appellant Harpal is concerned, all these witnesses have made clear and cogent statements regrading incident. They have been subjected to cross-examination, but no such fact could be elicited so as to create any doubt in credibility of these witnesses. After appreciating evidence, prosecution version regarding charge under section 393 IPC was not found reliable by the trial court and thus accused-appellant was acquitted of that charge. Here it would be pertinent to mention that PW-3 Constable Satya Kumar is a injured witness. The evidence of an injured witness deserves greater weight. Firm, cogent and convincing reasons are required to discard the evidence of an injured witness. It is to be kept in mind that the evidentiary value of an injured witness carries great weight. In Mano Dutt and another v. State of Uttar Pradesh - (2012) 4 SCC 79, it was held as under:
"We may merely refer to Abdul Sayeed v. State of M.P. - (2010) 10 SCC 259 where this Court held as under:
"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. ''Convincing evidence is required to discredit an injured witness.' [Vide Ramlagan Singh v. State of Bihar -(1973) 3 SCC 881, Malkhan Singh v. State of U.P. - (1975) 3 SCC 311, Machhi Singh v. State of Punjab - (1983) 3 SCC 470, Appabhai v. State of Gujarat - 1988 Supp SCC 241, Bonkya v. State of Maharashtra -(1995) 6 SCC 447, Bhag Singh v. State of Punjab -(1997) 7 SCC 712, Mohar v. State of U.P.-(2002) 7 SCC 606, Dinesh Kumar v. State of Rajasthan-(2008) 8 SCC 270, Vishnu v. State of Rajasthan -(2009) 10 SCC 477, Annareddy Sambasiva Reddy v. State of A.P.-(2009) 12 SCC 546 and Balraje v. State of Maharashtra- (2010) 6 SCC 673.]
10. Similar view was taken in Jarnail Singh v. State of Punjab-(2009) 9 SCC 719 where the Apex Court reiterated the special evidentiary status accorded to the testimony of an injured witness. The deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
In State of U.P. v. Kishan Chand-(2004) 7 SCC 629 a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Haryana-(2006) 12 SCC 459).
11. The law journals are replete with legal position to the effect that the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
12. Keeping In view the aforesaid position of law in mind, in the instant case it may be seen that testimony of injured witness PW 3 Satya Kumar is clear and cogent and nothing adverse could emerge in his cross-examination. His version is supported by medical evidence and it is corroborated by PW 1 Bhawar Singh and PW 2 Shivnath. There is no material contradiction and the defence had failed to demonstrate any such discrepancies, omissions and improvements that would have caused the Court to reject such testimony after testing it on the anvil of the law laid down by the Apex Court. Here I may fruitfully reproduce a passage from State of U.P. v. M.K. Anthony- (1985) 1 SCC 505:
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ..."
In Harijana Thirupala v. Public Prosecutor, High Court of A.P.-(2002) 6 SCC 470, it has been ruled that:
"11..... In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses."
In Ugar Ahir v. State of Bihar-AIR 1965 SC 277, Hon'ble Apex Court held:
"The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is, therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest."
13. In the instant case case, so far as culpability of appellant Harpal is concerned, as noticed above, the testimony of injured witness PW-3 Satya Kumar is clear and cogent and it has stood test of cross-examination. His version is supported by medical evidence and it is corroborated by PW-1 Bhanwar Singh and PW-2 Shivnath. No major contradiction or infirmity could be shown. In view of evidence on record, it is apparent that conviction of accused-appellant Harpal is based on evidence and trial court was justified in convicting him and thus, conviction of accused-appellant Harpal is upheld.
14. On point of sentence, it was submitted by the learned counsel for the appellant that alleged incident took place on 07.03.1982 and since then more than 37 years have passed. The appellant Harpal is 50% handicapped person and that now he is 69 years old and that he has already remained in custody for about 52 days in this case. In alleged incident, injured has sustained only simple injuries and he has not sustained any grievous injury. The appellant is not a previous convict. It was submitted that in view of these facts and circumstances, it would not be appropriate to send the appellant to further incarnation at this stage.
15. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. While imposing sentence, Court has to keep in view the various complex matters in mind.
In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:-
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
16. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment. In Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 it was observed that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. In Shyam Narain vs State (NCT of Delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463.
17. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the valuebased social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner.
18. Considering aforementioned position of law, facts and circumstances of case, submissions of learned counsel for appellant and also considering the facts that after alleged incident a period of about 38 years has passed and that accused-appellant is 69 years old and 50% handicapped person and that he alone cannot be held responsible for delay in disposal of this appeal as well as the fact that he has already remained in custody for 52 days, it appears that ends of justice would met if the sentence of imprisonment awarded by trial court, be reduced to the period already undergone by him and that he be sentenced to some amount of fine.
19. Accordingly, sentence of accused-appellant awarded by the trial is modified and accused-appellant Harpal is sentenced as under:
(i) Appellant is sentenced to the period already undergone by him and fine of Rs. 3000/ under Section 332 IPC. In default of payment of fine, he shall undergo three months imprisonment.
(ii) Appellant is sentenced to the period already undergone by him and fine of Rs. 4000/ under Section 353 IPC. In default of payment of fine he shall undergo four months imprisonment.
(iii) Appellant is sentenced to the period already undergone by him and fine of Rs. 3000/ under Section 224 IPC. In default of payment of fine, he shall undergo three months imprisonment.
(iv) Appellant is sentenced to the period already undergone by him and fine of Rs. 500/ under Section 60 Excise Act. In default of payment of fine, he shall undergo 15 days imprisonment.
The appellant is directed to deposit amount of fine within two months before the trial Court.
20. Accused-appellant Harpal is on bail, his personal bond is cancelled and sureties are discharged.
21. Appeal is partly allowed in above terms.
22. Copy of this judgment as well as Lower Court Record be sent to the Court concerned forthwith.
Order Date :- 26.2.2020 A. Tripathi