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2004 DIGILAW 495 (PNJ)

Maha Singh v. State of Haryana

2004-04-28

JASBIR SINGH

body2004
JUDGMENT Jasbir Singh, J. (Oral) - Vide judgment dated August 13, 1991, appellants- accused were found guilty for commission of an offence under Section 307 read with Section 34 of the Indian Penal Code (for short Indian Penal Code) and vide order dated August 14, 1991, all of them were sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for a period of six moths. Hence this appeal. 2. FIR Ex.PA was recorded at the instance of Krishan Kumar, complainant, on the allegations that on June 25, 1989, at about 7 AM. when he was standing in front of his house and was going to start his tractor, Bharthari, appellant- accused, came there on his tractor and tried to injure him but he saved himself by jumping on one side. Thereafter, appellant Bharthari hit his tractor and caused damage. This led to exchange of hot words and complainant also gave slap blows to him and both of them grappled with each other. They were separated by Ajit Singh, father of the complainant. 3. Complainant and his father went to their fields. At about 7.30 AM on the same date, appellants-accused came to their fields and raised an exhortation that they would teach a lesson to them for giving slap blows to Bharthari. Both of them ran towards the village to save themselves from the appellants. When they were running, Maha Singh, appellant-accused, fired a shot from this gun towards the complainant and his father. They saved themselves by running away from the spot. Occurrence was witnessed by Lakhi Ram, who was standing at his tubewell in a nearby field. It was further alleged that accused Maha Singh had some dispute with Chand Ram, uncle of Krishan, complainant, and that was also a cause of fight between the parties. 4. After completion of investigation, Bharthari and Jagbir were found to be innocent and they were put in column No. 2 of the final report. However, appellants-accused were put to face trial for commission of an offence under Section 307 read with Section 34 Indian Penal Code. 4. After completion of investigation, Bharthari and Jagbir were found to be innocent and they were put in column No. 2 of the final report. However, appellants-accused were put to face trial for commission of an offence under Section 307 read with Section 34 Indian Penal Code. It has been brought to the notice of the Court and not controverted by the State counsel that initially, FIR was recorded under Sections 285, 148, 149 Indian Penal Code but subsequently offence under Section 307 Indian Penal Code was added to it. 5. It is not necessary to give further details of this case as Shri D.S. Bali, Senior Advocate, for the appellants, has confined his arguments to quantum of sentence only. He brought it to the notice of the Court that at present appellant Nos. 1 and 2 are aged 60 years and 70 years respectively, while appellant No. 3 is aged 48 years. Appellants are the only bread winners of their families and if at this stage, they are sent behind the bars, not only they but their families would also suffer. After their conviction in this case, appellants-accused have not indulged themselves into any other criminal activity and now they are residing in a very peaceful manner. He further stated that the appellants and the complainant party are co-villagers and if at this stage, they are asked to undergo remaining part of their sentence, it would vitiate the atmosphere in the village and would not be conducive towards peace and harmony. 6. Even as per allegations, no injury was caused to the complainant or his father. No empty cartridge was even recovered by the Investigating Officer from the spot. By stating these facts and referring to other evidence on record, counsel contended that it is doubtful as to whether offence allegedly committed by them would fall under Section 307 Indian Penal Code. He also brought it to the notice of the Court that appellants during trial and after their conviction in this case had remained behind the bars for more than three months. He prayed that leniency be shown to them and they be given a chance to rehabilitate in life and the sentence be reduced to the period already undergone by them. 7. Arguments raised by counsel for the appellants have vehemently been opposed by Shri Bijender Dhankhar, Assistant Advocate-General, Haryana. He prayed that leniency be shown to them and they be given a chance to rehabilitate in life and the sentence be reduced to the period already undergone by them. 7. Arguments raised by counsel for the appellants have vehemently been opposed by Shri Bijender Dhankhar, Assistant Advocate-General, Haryana. He, by referring to the evidence on record, has vehemently contended that the guilt of the appellants-accused was proved on record and conviction and sentence awarded to them were perfectly justified. Heard counsel for the parties. 8. During arguments, Shri Dhankhar has failed to rebut a fact that at the time of alleged occurrence, no injury was caused to the complainant and his father. He further has failed to rebut another fact that no empty cartridge allegedly used at the time of firing was recovered by the Investigating Officer. He has also failed to rebut that initially FIR was recorded only under Sections 285, 148/149 Indian Penal Code but subsequently offence under Section 307 Indian Penal Code was added to it. 9. This Court feels that purpose of criminal law justice is not only to bring discipline, peace and harmony in the society but is also to give an opportunity to an erring individual to reform himself. 10. Their Lordships of the Supreme Court in Karamjit Singh v. State (Delhi Admn.), 2001(9) Supreme Court Cases 161, observed as under :- "Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case, the court has to weigh the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is, what is needed in such case : a balance between the interest of the individual and the concern of the society : weighing the one against the other. An act of balancing is, what is needed in such case : a balance between the interest of the individual and the concern of the society : weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record, would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law." 11. In Tarak Nath Singh and another v. State of West Bengal, 1998(1) SCC(Crl.) 587, their Lordships of Supreme Court, keeping in view the fact that the occurrence took place 18 years earlier to the decision of appeal and the parties were relatives, reduced the sentence to the period already undergone. 12. Similar is the opinion expressed by two Division Benches of this Court in State of Punjab v. Gurmail Singh, 2002(2) RCR(Crl.) 600 (P&H). In that case in an appeal against acquittal, accused were convicted. However, they were sentenced to a term of imprisonment already undergone, keeping in view the fact that incident had occurred in the year 1981. 13. To the same effect is the opinion of this Court in Chhota Singh v. State of Punjab, 1998(1) RCR(Crl.) 467 (P&H). 14. Counsel for the appellants has also placed reliance upon a judgment of Supreme Court in Mohammad alias Biliya v. State of Rajasthan, 2000(10) SCC 486, wherein, in a case under Section 394 Part II Indian Penal Code, leniency was shown to the accused in that case and they were ordered to be released on probation. 15. 14. Counsel for the appellants has also placed reliance upon a judgment of Supreme Court in Mohammad alias Biliya v. State of Rajasthan, 2000(10) SCC 486, wherein, in a case under Section 394 Part II Indian Penal Code, leniency was shown to the accused in that case and they were ordered to be released on probation. 15. To support his contention, counsel for the appellants has also relied upon judgment of the Honble Supreme Court in Mohinder Pal Jolly v. State of Punjab, AIR 1979 Supreme Court 577, wherein, after convicting the appellant-accused therein for commission of an offence under Section 304 Part II Indian Penal Code, their Lordships of the Supreme Court observed in para No. 12 as under :- "12. Even so on the facts and in the circumstances of this case we do not feel persuaded to let off the appellant with an imposition of fine only. We, however, thought that sentence of three years rigorous imprisonment would meet the ends of justice in this case. We were informed at the Bar and an affidavit sworn by the appellants wife was also filed before us to the effect that the appellant was in jail for about nine months as under-trial prisoner and for about four months after conviction. Thus he has already undergone imprisonment for a period of about a year and a month. The occurrence took place more than a decade ago. The appellant had to pass this long ordeal all these years both mentally and financially. Considering, therefore, the totality of the circumstances while maintaining the imposition of fine of Rs. 10,000/- and in default two years further imprisonment, we reduce his substantive term of imprisonment to the period already undergone and maintain the conviction of the appellant not under Part I of Section 304 of the Penal Code but under Part II." 16. So far as the case in hand is concerned, it is apparent from the records that no injury was caused to the complainant party at the time of alleged occurrence. As per allegations, one of the appellants-accused was armed with a gun. He never tried to repeat the shot, as such, no attempt has been made to take undue benefit of the dominant situation, in which the appellants-accused were placed at that time. As per allegations, one of the appellants-accused was armed with a gun. He never tried to repeat the shot, as such, no attempt has been made to take undue benefit of the dominant situation, in which the appellants-accused were placed at that time. Fear of being sent behind the bars had been lurking in their minds for the last about thirteen years. It has its desired effect of reforming them and at present, as per information supplied, they are leading a disciplined life. Now one of them is 60 years, another is 71 years old and third one is 48 years old. If at this stage, appellants are sent behind the bars, not only they, but their families will also suffer. It will also vitiate the atmosphere in the village. The appellants has already remained in jail for more than three months during their trial and after their conviction. 17. Keeping in view provisions of Article 21 of the Constitution of India and interpretation thereof, judicial compassion can play a role and leniency can be shown to the appellants-accused for mental agony, which was suffered by them due to long-drawn litigation before the trial Court and also during the pendency of his appeal in this Court for the last about 13 years. 18. Accordingly, conviction of the appellants under Section 307 Indian Penal Code is upheld. However, their sentence of imprisonment is reduced to the period already undergone by them. Punishment of fine is increased to Rs. 10,000/- over and above the amount of fine already imposed. The same shall be shared equally by all the appellants, which shall be treated as costs of litigation. They are directed to deposit this amount in the trial Court within two months from today, failing which, their appeal shall be deemed to have been dismissed. With above mentioned modification, this appeal stands disposed of. Order accordingly.