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2013 DIGILAW 219 (CAL)

Rabial Khan v. State

2013-05-02

INDIRA BANERJEE, KANCHAN CHAKRABORTY

body2013
Judgment : Since one common order is required to be passed in discharge of the Rules issued by this Court in three appeals for enhancement of sentence imposed, we, with the consent of Mr. Chatterjee, learned Counsel appearing for the appellants and Mr. Sanyal, Additional Public Prosecutor appearing for the State of West Bengal, proposed to hear and dispose of the appeals together with the connected CRAN applications captioned above. The C.R.A. 460 of 2006 was filed by Rabial Khan & Barhan Mullick. Amongst them Rabial Khan filed an application being CRAN 375 of 2013 praying for bail mainly on the ground that he has already undergone the substantive sentence of R.I. for 10 years as imposed by the trial Court. The CRA 545 of 2004 was filed by Laltu Khan @ Mansu Khan. He also filed similar application being CRAN 376 of 2013 praying for bail on the similar ground. Uttam Malik, filed the Appeal being CRA 493 of 2007 but filed no application for his bail. He was arrested on 13.1.2003 and released on bail on 25.7.2003 but, taken on custody again on 29.6.2004. Rabial Khan and Laltu @ Mansur Khan, the petitioners herein together with others were arrayed to face a trial for committing offences under section 396 and 412 of IPC. That trial being Sessions Trail no. 276 of 2003 pertaining to Amta police station case no. 4 of 2003 dated 12.1.2003, was disposed of by judgment and order dated 25.6.2004 and 28.6.2004 passed by the Additional Sessions Judge, 1st Court, Howrah whereby they were found guilty of offence punishable under section 396 of IPC and sentenced to suffer R.I. for 10 years each and to pay a fine of Rs. 5000/-each, failing which, to suffer R.I. two more years. That judgment and order have been assailed by the petitioners and others in three (3) separate appeals. While admitting the appeals, this Court issued three separate Rules in three appeals directing the appellants as to why the sentence imposed by the trial Court by the judgment and order under challenge should not be enhanced. However, the appeals could not be heard within this long period and it appears from the reports of the Superintendent of the Correctional Home that the petitioners Rabial Khan and Laltu Khan have already served out the substantive sentence of R.I. for ten (10) Years. However, the appeals could not be heard within this long period and it appears from the reports of the Superintendent of the Correctional Home that the petitioners Rabial Khan and Laltu Khan have already served out the substantive sentence of R.I. for ten (10) Years. Since Rules have been issued by this Court, it has become necessary for this Court to dispose of the appeals without delay and pass necessary orders in the background of the facts and circumstances above in order to discharge the Rules. It is also found on scrutiny of the L.C.R. that other two convicts 1) Siraj Khan and 2) Rarhan Malik paid the fine amount after serving out substantial sentence and have been released. The prosecution case in the trial court against the appellants was that on 12.1.2003, a dacoity took place in the house of Gopal Chandra Deyashi. The dacoits used fire arms and as a result, one Ajoy Deyashi sustained injury and died subsequently. The dacoits were apprehended soon after the incident. One F.I.R. was lodged over the issue. Investigation was done and ended in a charge sheet against five(5) persons namely, Laltu Khan, Siraj Khan, Uttam Mullick, Rabilal Khan, Barhan Mullick. They pleaded not guilty to the charges framed against them by the trial Court. Accordingly, the trial commenced. Evidence of 17 witnesses from the side of prosecution was recorded by the learned trial court. The written F.I.R., seizure lists, injury reports, post mortem report, inquest report, statements of the accused, sketch map of the place of occurrence etc. were admitted into evidence and marked exhibit on behalf of the prosecution. Learned trial court, considering the evidence on record, oral and documentary, found that all the accused including the appellants/petitioners committed the offence under section 396 of IPC. Accordingly, the learned trial court passed the judgment and order which are impugned in this appeal. We have meticulously gone through the oral evidence of the prosecution witnesses recorded by the learned Trial Court, the documents which were admitted into evidence and marked exhibit on behalf of the prosecution and judgment impugned as well. The dacoits including the appellants were caught with booty of the dacoity soon after the incident. Naturally, they were all identified in the Court. The witnesses had given vivid picture of the incident which appear to be corroborative to each other, cogent, reliable and inspiring confidence. The dacoits including the appellants were caught with booty of the dacoity soon after the incident. Naturally, they were all identified in the Court. The witnesses had given vivid picture of the incident which appear to be corroborative to each other, cogent, reliable and inspiring confidence. We find that the learned trial court rightly came to a conclusion that the appellants and other two committed the offence punishable under section 396 of the IPC. We, therefore, find no reason to upset the order of conviction passed by the learned Court which has been challenged in these three appeals. Now, the question of adequacy the sentence imposed comes in. The learned Court sentenced the appellants/petitioners to suffer R.I. for ten (10) years. The learned Court also sentenced them to pay a fine of Rs. 5000/-each, in default, to suffer R.I. for two more years. Mr. Sanyal, learned Additional P.P. contended that the offence committed by the appellants/petitioners was heinous and grave in nature. There was no reason for the learned Trial Court to take a lenient view and should have sentenced them to suffer imprisonment for life. He contended further that the sentence prescribed for committing offence under section 396 IPC is – death, imprisonment for life or R.I. for ten years with fine. He contended that this being a case not falling under “rarest of rare cases”, the learned Trail Court were justified in not imposing death penalty. But, there was no impediment for the learned trial court for sentencing the appellants/petitioners imprisonment for life. Mr. Chatterjee, learned Counsel appearing for the petitioners contended that the learned trial court elaborately discussed why it did not impose imprisonment for life. It appears from the order of sentence under challenge that the learned trial court found that the appellants/petitioners were young men within the age group of 20/22 years. He also found that most of them were having wife and minor children. Almost all of them were the only earning member in their families. The learned court also took note of the fact that jails are mainly used as correctional homes so that the convict can come to the main stream of the society after learning some crafts/other works in jail. Taking those factors into consideration, the learned court imposed the sentence which, according to Mr. Chatterjee, is not required to be interfered with in these appeals. Taking those factors into consideration, the learned court imposed the sentence which, according to Mr. Chatterjee, is not required to be interfered with in these appeals. It is settled principle of penology that in awarding sentence, the court is to take into consideration the nature of the offence, circumstances under which that was committed, decree of deliberation shown by the offender, provocation received by him, the antecedent of the offender up to the time of sentence and social background together with possibility of his correction in the correctional home etc. On careful perusal of the evidence on record, we find that Ajay (deceased) had a scuffling with the dacoits when one of them shot him by using a fire arm and taken away cash, ornaments etc. Thereafter, they escaped but were apprehended by police with booty. Although, there was no provocation from the side of Dyashi family, the deceased tried to resist the dacoits and, as such, the dacoits had to use the fire arm in order to put other members of the family in fear and shock. Had the deceased, it appears to us, not scuffled with the dacoits, they would not have killed him. There were no criminal antecedents of the appellants/petitioners. All of them were having families. The appellants/petitioners were very young at the time they committed the offence. The learned trial court had taken all these factors into consideration and came to a finding that there was possibility for their correction if they stay in correction home for a period of 10 years. The question of sentence is the matter of discretion and the appellate court should not interfere with the question to the detriment of the accused except for a strong reason. The interference is only justified when failure to impose proper sentence has resulted in miscarriage of justice. In this case, we are of the view, no such miscarriage of justice has resulted in. The offence of murder punishable under section 302 IPC cannot be equated with the offence punishable under section 396 of IPC, i.e., murder in dacoity. The legislature in its wisdom prescribed life imprisonment as minimum sentence in case of an offence punishable under section 302 of IPC while 10 years R.I. for committing offence under section 396 IPC as the minimum sentence. The difference between the minimum sentence prescribed for those offences is very clear. The legislature in its wisdom prescribed life imprisonment as minimum sentence in case of an offence punishable under section 302 of IPC while 10 years R.I. for committing offence under section 396 IPC as the minimum sentence. The difference between the minimum sentence prescribed for those offences is very clear. Where the court has the scope to exercise its discretion in the matter of imposing sentence, High Court, generally, refrains from interfering into such discretionary action specially when it is founded on sufficient and satisfactory reasons. In our estimate, the ld. Trial Court had not taken any generous but pragmatic approach in imposing the minimum sentence. The reasons assigned by it, of course, are quite befitting to the facts and circumstances of the case, the social background of the offenders, their age and possibility of their correction. Therefore, we find no reason to upset the order of sentence by enhancing the same. In view of the discussion above, while upholding the order of conviction, we also uphold the order of sentence under challenge. Since the appellants have already undergone for R.I. for 10 years, they should get an opportunity to pay a fine of Rs. 5000/- each, in order to avoid further sufferance of two years R.I. Accordingly, we dismiss the appeals. The criminal section is directed to send the original case record of the sessions trial to the learned Trial court at once enabling the appellants to pay the fine amount in the learned Court concerned and get themselves released in accordance with law. The Rules issued by this Court are discharged. The appeals together with CRAN applications stand disposed of accordingly. Photostat plain copy of this order, duly countersigned by the Assistant Registrar (Court), be supplied to the learned Advocates for the parties on usual undertaking. I agree.