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2012 DIGILAW 360 (HP)

State Of Himachal Pradesh v. Kanti Grover

2012-06-26

DEV DARSHAN SUD

body2012
JUDGMENT : Dev Darshan Sud, J. The State has preferred this appeal against the judgment of the learned Addl. Chief Judicial Magistrate, Paonta Sahib convicting the respondents for offences u/s 392, 394 read with Section 34 of the Indian Penal Code (hereinafter referred to as 'I.P.C.') and Section 25 of Arms Act. The prosecution case in brief is that on 1.7.2001 at about 9.30 p.m. Anil Kumar Bansal complainant, who is a resident of village Dhaula Kuan, was proceeding to his house, in his Car No. HP-17-1590 with the sale proceeds of his business. The prosecution case is that when the Car reached near Malwa Cotton Mills, Surajpur, all the accused travelling in a red coloured Maruti Car No. DL-ICC-1821 over took his car and forced him to stop near the telephone exchange, Melion. They dragged the complainant out of the Car and looted Rs. 3.50 lacs which had been kept by the complainant in a Rexin bag. According to the prosecution, the accused were armed with country made revolver and knife. They dragged the complainant out of the car and tied him to a nearby tree. They gagged his mouth by taping it. After about five minutes, Rakesh Kumar (PW2) came to the spot and on noticing the complainant gagged and tied to the tree, raised an alarm. A number of villagers gathered at the spot and untied the complainant. S.D.M. Paonta Sahib PW7 Mr. M.P. Sood, reached the spot, who was also travelling in his official car, saw the crowd gathered there and stopped his car. 2. The accused were intercepted and arrested by the police at Kala Amb barrier. A sum of Rs. 2,27,815/- was recovered from one bag carried by the accused. The accused were tried for offences under Sections 392, 394 read with Section 34 I.P.C. and Section 25 of the Arms Act. The learned trial Court on assessment of the entire evidence on record, convicted all the accused for offences aforesaid. While on the quantum of sentence, the learned trial Court holds that interest of justice would be served in case they are sentenced to rigorous imprisonment for three years and fine of Rs. 5,000/- each for commission of offences punishable under Sections 394/ 34 I.P.C. In default of payment of fine, each of them to undergo rigorous imprisonment for six months. 5,000/- each for commission of offences punishable under Sections 394/ 34 I.P.C. In default of payment of fine, each of them to undergo rigorous imprisonment for six months. They were also sentenced for three years rigorous imprisonment and fine of Rs. 3,000/- for offences u/s 25 of the Arms Act and in default of payment of fine to undergo for further rigorous imprisonment for three months. The sentence was ordered to run consecutively; In other words, they were sentenced to six years imprisonment. 3. The State is now in appeal praying for enhancement of sentence on the ground that the offences are of a serious nature where the accused have committed a crime on the high way without any fear for the law. Learned Additional Advocate General submits that the sentence of imprisonment imposed is not commensurate with the crime considering the fact: (a) that the crime was committed on a busy high way and criminal intimidation/ force was used by the accused, (b) Not only did they loot/rob the complainant of his money but they dragged him out of the car and tied him to a tree after gagging his mouth oblivious of the fact that such act could endanger his life and that they have no respect for the law. 4. I have heard learned Additional Advocate General and have also gone through the record. 5. At the out set I observe that the sentences which have been imposed upon the respondents-accused have been directed to run consecutively. In other words the total sentence aggregates to six years rigorous imprisonment. What was prayed for by the learned Addl. Advocate General is that they should and ought to be sentenced to the maximum as permissible under law. He places reliance on the decision of the Supreme Court in State of Madhya Pradesh Vs. Saleem @ Chamaru and Another, (2005) 5 SCC 554 , the Court holds: 8. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be..... 10. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be..... 10. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal. 6. In T.K. Gopal @ Gopi Vs. State of Karnataka, (2000) 6 SCC 168 , the Supreme Court holds: 13. In the matter of punishment for offence committed by a person, there are many approaches to the problem. On the commission of crime, three types of reactions may generate; the traditional reaction of universal nature which is termed as punitive approach. It regards the criminal as a notoriously dangerous person who must be inflicted severe punishment to protect the society from his criminal assaults. The other approach is the therapeutic approach. It regards the criminal as a sick person requiring treatment, while the third is the preventive approach which seeks to eliminate those conditions from the society which were responsible for crime causation. 14. Under the punitive approach, the rationalization of punishment is based on retributive and utilitarian theories. Deterrent theory which is also part of the punitive approach proceeds on the basis that the punishment should act as a deterrent not only to the offender but also to others in the community. 15. The therapeutic approach aims at curing the criminal tendencies which were the product of a diseased psychology. There may be many factors, including the family problems. 15. The therapeutic approach aims at curing the criminal tendencies which were the product of a diseased psychology. There may be many factors, including the family problems. We are not concerned with those factors as therapeutic approach has since been treated as an effective method of punishment which not only satisfies the requirements of law that a criminal should be punished and the punishment prescribed must be meted out to him, but also reforms the criminal through various processes, the most fundamental of which is that in spite of having committed a crime, may be a heinous crime, he should be treated as a human being entitled to all the basic human rights, human dignity and human sympathy. It was under this theory that this Court in a stream of decisions, projected the need for prison reforms, the need to acknowledge the vital fact that the prisoner, after being lodged in jail, does not lose his fundamental rights or basic human rights and that he must be treated with compassion and sympathy (See : Sunil Batra Vs. Delhi Administration and Others etc. (1978) 4 SCC 494 , Sunil Batra Vs. Delhi Administration and Others etc., (1980) 3 SCC 488 ; Charles Sobraj Vs. Supdt. Central Jail, Tihar, New Delhi, (1978) 4 SCC 104 , and Francis Coralie Mullin Vs. Administrator, Union Territory of Delhi and Others, (1981) 1 SCC 608 , etc.). 7. In Gurdeep Singh @ Deep Vs. The State (Delhi Admn.), (2000) 1 SCC 498 , in a case under the Terrorist and Disruptive Activities (Prevention) Act, 1987, considering the question of punishment, the Supreme Court holds: 25. Before concluding we would like to record our conscientious feeling for the consideration by the legislature, if it deem fit and proper. Punishment to an accused in criminal jurisprudence is not merely to punish the wrong doer but also to strike warning to those who are in the same sphere of crime or to those intending to join in such crime. This punishment is also to reform such wrong doers not to commit such offence in future. The long procedure and the arduous journey of the prosecution to find the whole truth is achieved some time by turning on accused as approvers. This is by giving incentive to an accused to speak the truth without fear of conviction. This punishment is also to reform such wrong doers not to commit such offence in future. The long procedure and the arduous journey of the prosecution to find the whole truth is achieved some time by turning on accused as approvers. This is by giving incentive to an accused to speak the truth without fear of conviction. Now turning to the confessional statement, since it comes from the core of heart through repentance, where such accused is even ready to undertake the consequential punishment under the law, it is this area which needs some encouragement to such an accused through some respite may be by reducing the period of punishment, such incentive would transform more incoming such accused to confess and speak the truth. This may help to transform an accused, to reach the truth and bring to an end successfully the prosecution of the case. 8. The principles applicable for imposing/quantum of sentence are well determined. The penal system is not meant to wreak vengeance on criminals but to protect society also. 9. I have considered the rival contentions of the learned Counsel appearing for the parties. True, the accused/convicts have behaved like desperadoes. I find that the learned Court below balances the interest of the society while meting out adequate punishment when it holds that the sentences to run consecutively. In these circumstances I do not find any ground for interference in this appeal which is accordingly dismissed.