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2004 DIGILAW 829 (PNJ)

Varinder Kumar v. State of Punjab

2004-08-04

VIRENDER SINGH

body2004
JUDGMENT Virender Singh, J. - By this judgment, I propose to dispose of two cases viz. Criminal Appeal No. 125-SB of 1990 (Varinder Kumar and 3 others v. State of Punjab) and Criminal Revision No. 711 of 1990 (Rakesh Kumar v. Varinder Kumar and 3 others) as both arise out of the same judgment of learned Additional Sessions Judge, Hoshiarpur dated 11.4.1990. 2. Varinder Kumar son of Channa Ram, his two brothers Surinder Kumar and Dalip Kumar and Vir Pal son of Bhag Ram the appellants-herein were charged undeer Sections 307/308/325/326 read with Section 34 Indian Penal Code, but now they stand convicted under Sections 326 and 323 Indian Penal Code by the aforesaid judgment. Dalip Kumar, Surinder Kumar appellants have been convicted substantively under Section 326 Indian Penal Code and with the aid of Section 34 Indian Penal Code for the offence under Section 323 Indian Penal Code, whereas Varinder Kumar and Vir Pal appellants stand convicted substantively under Section 323 Indian Penal Code and with the aid of Section 34 Indian Penal Code for the offence under Section 326 Indian Penal Code. Each of them has been sentenced to undergo RI for 3 years and to pay a fine of Rs. 500/- or in default of payment of fine to suffer further RI for four months under Section 326 Indian Penal Code. Under Section 323 Indian Penal Code, each of them has been sentenced to undergo RI for one year. However, no sentence of fine has been imposed on this count. However, all the substantive sentences were ordered to run concurrently. 3. Arrived by the judgment of conviction and sentence, they have preferred the present appeal. 4. State of Punjab has not filed any appeal against acquittal of the present appellants for the offences under Sections 307/308/325 Indian Penal Code. The complainant has come up in revision with the prayer for enhancement of sentence and payment of compensation. 5. The occurrence is of 10.11.1988 around 6.30 P.M. Rakesh Kumar, the complainant (PW-1) was going towards the house of Surjit Kumar. When he reached in front of the house of Varinder Kumar appellant, all the four appellants were found present there. Varinder Kumar was armed with a hand-pump handle, Surinder Kumar was having a Datar (sharp edged weapon), Dalip Kumar with a Kirpan and Vir Pal with a hockey. Surjit Kumar PW-2 was also following Rakesh Kumar. When he reached in front of the house of Varinder Kumar appellant, all the four appellants were found present there. Varinder Kumar was armed with a hand-pump handle, Surinder Kumar was having a Datar (sharp edged weapon), Dalip Kumar with a Kirpan and Vir Pal with a hockey. Surjit Kumar PW-2 was also following Rakesh Kumar. The later was having his niece of the age of 8 months in his lap. On seeing Rakesh Kumar, Varinder Kumar appellant raised a lalkara that he should be taught a lesson for helping Surjit Kumar, on which all the aforesaid appellants assaulted Rakesh Kumar with their respective weapons and caused injuries on different parts of his body and the child which he was carrying also fell down. He was removed to Civil Hospital, Hoshiarpur. An intimation was sent to the concerned police on the same night. ASI Shangara Singh PW-5 reached the hospital, but at that time he was declared unfit to make a statement. On the next day, vide opinion Ex. PG, Rakesh Kumar was declared fit at 9.00 A.M. and as such his statement Ex. PA was recorded, wherein he narrated the entire occurrence, describing the individual role of each of the appellants. On the basis of the said statement, formal FIR Ex. PA/2 was recorded. The appellants were subsequently arrested. In pursuance of their disclosure statements, Surinder Kumar and Dalip Kumar appellants got recovered a Datar Ex. P-3 and a Kirpan Ex. P-4 respectively. However, no recovery was effected from the remaining two appellants. 6. Rakesh Kumar complainant was examined by Dr. Shiv Shakti Dhawan PW-4. Kumari Kanika was also examined by him, on the person of whom three injuries were noticed. Rakesh Kumar was having as many as 18 injuries, out of which 13 were incised wounds, whereas the remaining injuries were in the shape of abrasions and lacerated wounds. Injuries No. 4, 5 and 18 were declared as grievous. 7. After completion of investigation, the appellants were sent up to face trial. 8. Upon conclusion of the trial, they stood convicted and sentenced, as already indicated above. 9. I have heard Mr. J.B.S. Gill, learned counsel for the appellants, Mr. S.S. Bhandari, D.A.G., Punjab assisted by Mr. Kumar Vishav Advocate appearing for the complainant/revisionist. With their assistance I have gone through the entire record. 10. Mr. 8. Upon conclusion of the trial, they stood convicted and sentenced, as already indicated above. 9. I have heard Mr. J.B.S. Gill, learned counsel for the appellants, Mr. S.S. Bhandari, D.A.G., Punjab assisted by Mr. Kumar Vishav Advocate appearing for the complainant/revisionist. With their assistance I have gone through the entire record. 10. Mr. Gill, learned counsel for the appellants has not assailed the impugned judgment of conviction on merits and instead confines his submissions with regard to reduction in quantum of sentence only. 11. Dwelling upon his arguments, Mr. Gill contends that the occurrence relates to the year 1988 and by now the appellants have faced the ordeal of protracted trial for 16 years; that at the time of occurrence, Varinder Kumar was 22 years of age, Surinder Kumar was 20 years, Vir Pal was 32 years and Dalip Kumar was a student of B.A. Part I was only 18 years old; that Varinder Kumar and Surinder Kumar have remained in custody for 5 months-3 days, Dalip Kumar has remained in for six months and Vir Pal for a few days only. 12. On the aforesaid submissions, the learned counsel prays for reduction in the quantum of sentence. 13. The learned State counsel has opposed the submissions made on behalf of the appellants and contends that Rakesh Kumar has received as many as 18 injuries at the hands of the appellants, a few of which are on vital parts of the body and as such they do not deserve any lenient view. 14. Picking up the thread, learned counsel for the complainant submits that Rakesh Kumar has been assaulted simply because he had intervened when Surjit Kumar and Varinder Kumar had an altercation one day prior to the occurrence; that the sentence as awarded by the trial Court is rather on the lower side and that the trial Court has not even awarded any compensation to Rakesh Kumar on account of the injuries suffered by him. 15. Although the impugned judgment of conviction has not been assailed on merits, yet being the first appellate Court, I have closely scrutinized the entire evidence on record. I find no infirmity, illegality or ambiguity in the impugned judgment, which is well reasoned and is based on proper appreciation of evidence adduced in the case. Hence the conviction as recorded by the trial Court is upheld. 16. I find no infirmity, illegality or ambiguity in the impugned judgment, which is well reasoned and is based on proper appreciation of evidence adduced in the case. Hence the conviction as recorded by the trial Court is upheld. 16. However, I find force in the submissions made by Mr. Gill with regard to quantum of sentence. The quarrel flared up all of a sudden, on a very trivial issue, for which the appellants have already suffered the agony of protracted trial since 1988. Varinder Kumar and Surinder Kumar appellants were hardly of the age of 20 years whereas Vir Pal was of the age of 32 years at the time of occurrence and have remained in custody for a considerable period, whereas Dalip Kumar appellant was merely a student of B.A. Part I and has remained in (custody) for a few days. 17. Their Lordships of the Apex Court in Karamjit Singh v. State (Delhi Admn.), 2001(9) SCC 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. 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. 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." 18. Keeping in view the facts and circumstances of the instant case and following the ratio of the decision aforesaid, the ends of justice would be adequately met if the substantive sentence as awarded by the trial Court is reduced to the period already undergone by each of the appellants. It is ordered accordingly. My view is fortified by the decisions of this Court rendered in Bohar Singh v. State of Punjab, 2000(2) RCR (Criminal) 387 (P&H) and Om Parkash v. State of Haryana, 2001(4) RCR (Criminal) 328 (P&H), Dharma v. State of Punjab, 2000(1) RCR (Crl.) 228 (P&H). 19. At the same time, in order to keep an equitable balance all the appellants should be directed to pay compensation to Rakesh Kumar injured. In Hari Kishan and State of Haryana v. Sukhbir Singh and others, 1988(2) RCR (Crl.) 394 (SC), Honble Apex Court has held that the provision relating to awarding of compensation to victims while imposing sentence has been seldom invoked. It has been held, "in addition to conviction, the Court may order the accused to pay some of the amount by way of compensation to the victim who has suffered by the act of the accused. This power is intended to do something to re-assure the victim that he or she is not forgotten in the criminal system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender". 20. This power is intended to do something to re-assure the victim that he or she is not forgotten in the criminal system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender". 20. Section 357(3) of the Code of Criminal Procedure reads as under : "When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced". 21. While maintaining conviction and reducing the substantive sentence to the period already undergone, the order imposing the sentence of fine of Rs. 500/- each as awarded by the trial Court is set-aside for the reason that it would be in the interest of justice to award compensation to the injured in accordance with the provisions of Section 357(3) Criminal Procedure Code Acordingly, all the four appellants are directed to pay a total sum of Rs. one lac (Rs. 25,000/- to be paid by each of the appellants) as compensation to the injured Rakesh Kumar. The aforesaid amount of Rs. one lac shall be deposited before the trial Court within one month from the date of receipt of a certified copy of this judgment. In the event of deposit of the said amount, the same shall be disbursed to Rakesh Kumar injured without any delay. In case of non-payment of the aforesaid amount, the defaulting appellant(s) shall undergo the entire substantive sentence, as imposed by the trial Court. 22. With the modification in the quantum of sentence as indicated above, the present appeal stands disposed of. 23. Criminal Revision No. 711 of 1990 also stands disposed of accordingly. Order accordingly.