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2013 DIGILAW 989 (RAJ)

Nanu v. The State of Rajasthan

2013-05-14

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant revision has been preferred by the petitioner complainant (victim) against the judgment dated 4.12.2009 passed by the learned Sessions Judge, Dungarpur in Appeal No. 40/2005, whereby the learned appellate court partly allowed the appeal filed by the respondent No. 2 against the judgment dated 5.10.2005 passed by the learned Chief Judicial Magistrate, Dungarpur in Cr.Case No. 23/1999. 2. The learned Chief Judicial Magistrate, Dungarpur convicted and sentenced the respondent No. 2 Ramesh as below: U/s.326 IPC 5 Years R.I. and to pay a fine of Rs. 500/- and in default to further undergo six months' additional imprisonment. U/s. 324 IPC 3 Years R.I. and to pay a fine of Rs. 200/- and in default of payment of fine to further undergo 3 months additional imprisonment. U/s. 323 IPC 6 Months R.I. and to pay a fine of Rs. 100/- and in default of payment of fine to further undergo one month's additional imprisonment. All the sentences were ordered to run concurrently. 3. The appellate court reduced the sentences awarded to the respondent No. 2 as below: U/s.326 IPC 3 ¼ Months' R.I. and to pay a fine of Rs. 7000/- and in default to further undergo three months' additional imprisonment. U/s. 324 IPC To pay a fine of Rs. 2000/- and in default of payment of fine to further undergo one months additional imprisonment. U/s. 323 IPC To pay a fine of Rs. 1000/- and in default of payment of fine to further undergo Fifteen days' additional imprisonment. 4. Succinctly stated the facts of the case are that the petitioner having been assaulted by the respondent No. 2, was admitted at the govt. hospital Sagwara on 23.7.1998, where his Parcha Bayan was recorded on the basis whereof, the FIR was registered. As per the allegations levelled in the FIR, on 14.7.1998 the petitioner had collected some firewood in his courtyard. In the night, respondent No. 2 Ramesh stole the said firewood. When the petitioner woke up in the morning of 15.7.1998 he searched for the firewood which he found lying in courtyard of respondent No. 2 Ramesh. The petitioner brought back the firewood and placed it in his courtyard. Thereafter, he went for doing his labour job at Ranakpur. Ramesh met him on the way and accompanied him upto Pindwara. When the petitioner woke up in the morning of 15.7.1998 he searched for the firewood which he found lying in courtyard of respondent No. 2 Ramesh. The petitioner brought back the firewood and placed it in his courtyard. Thereafter, he went for doing his labour job at Ranakpur. Ramesh met him on the way and accompanied him upto Pindwara. The petitioner further alleged that he received the information about the death of his son on 22.7.1998 on which, he came back to his home in the morning of 22.7.1998. At about 9 O'Clock in the night, he went to market for purchasing Biris. Ramesh followed the petitioner and took him to his house. When the complainant was sitting outside the house of Ramesh, at that time, Ramesh brought a sword from his house with an intention to kill the petitioner. The petitioner on seeing the sword, stood up. Ramesh aimed a blow on the head of the petitioner, on which the petitioner raised his left hand. As a result of the sword blow, the petitioner's left hand was chopped off and totally severed from his wrist. Another blow was aimed on the petitioner, which he stopped with his right hand, on account of which, his right palm was cut. Thereafter also, Ramesh continued raining sword blows on the petitioner. The petitioner raised alarm, on which his mother Mana, Lala and Tulsi etc. came there and on seeing them, Ramesh ran away. The petitioner was taken to the hospital on a cot. He further alleged that amputated portion of his left hand was lying at the place of the occurrence. 5. On the basis of this report, FIR No. 201/98 was registered for the offence under Section 307 IPC. The dismembered portion of the petitioner's hand was recovered from the place of occurrence. Upon the medical examination being conducted, the petitioner was found having 8 injuries on his person out of which, 4 were incised wounds. The left forehand was found totally amputated from the arm. Number of injuries were found on the shoulder, neck, mandible region of the petitioner. The injury No. 5 being an incised wound was also found existing on the right palmar region of the petitioner. 6. The Police after investigation filed a charge-sheet against Ramesh for the offence under Section 307 IPC. Number of injuries were found on the shoulder, neck, mandible region of the petitioner. The injury No. 5 being an incised wound was also found existing on the right palmar region of the petitioner. 6. The Police after investigation filed a charge-sheet against Ramesh for the offence under Section 307 IPC. The case was committed to the court of the Sessions Judge, Dungarpur from where, the same was toned down and whilst discharging the respondent from the offence under Section 307 of the IPC, he was directed to be tried for the offences under Sections 324, 326 and 323 IPC. The learned Chief Judicial Magistrate, Dungarpur convicted and sentenced the respondent No. 2 as above. 7. The respondent No. 2 preferred an appeal against his conviction and the appellate court partly allowed the appeal and reduced the sentences awarded to him as mentioned above. Now the complainant has approached this Court by way of the instant revision assailing the judgment dated 4.12.2009 passed by the learned Sessions Judge, Dungarpur in appeal, whereby the sentences awarded to the respondent No. 2 were reduced. 8. Learned counsel for the petitioner submitted that the petitioner was mercilessly assaulted by the accused with a sword. The cruel nature of the act was to such an extreme extent that despite the first blow having resulted into the hand of the complainant being completely chopped off from the wrist, the accused did not stop at that and continued the merciless assault on the injured by a sword. Number of other injuries have been found on the person of the injured. Learned counsel thus submitted that there was no occasion for the appellate court to have reduced the sentences awarded to the accused. He contended that approach of the learned appellate court in reducing the sentence of the accused to an absurdly small proportion of the original sentence is thoroughly illegal and thus, the sentences awarded by the trial court to the respondent deserve to be restored. 9. Learned counsel submits that it was the duty of the State to have assailed the judgment passed by the appellate court by preferring an appeal but the State has failed in its duty to do so and thus, the complainant victim was led to file this revision seeking appropriate sentence to the offender i.e. the respondent No. 2. 10. 9. Learned counsel submits that it was the duty of the State to have assailed the judgment passed by the appellate court by preferring an appeal but the State has failed in its duty to do so and thus, the complainant victim was led to file this revision seeking appropriate sentence to the offender i.e. the respondent No. 2. 10. Learned counsel for the respondent No. 2 on the other hand, has vehemently opposed the arguments advanced by the learned counsel for the petitioner. He urged that the incident is of the year 1998. The accused has already remained in custody for more than three months. He further submitted that the respondent has already deposited the fine amount of Rs. 10,000/- and thus, this Court should refrain from interfering in the order passed by the appellate court on the question of sentence. 11. Learned Public Prosecutor could not satisfy this Court as to why the State did not assail the judgment passed by the appellate court reducing the sentences awarded to the respondent No. 2. 12. Heard and considered the arguments advanced at the bar and perused the judgment impugned. 13. The fact of a cowardly cruel assault launched by the accused on the petitioner is writ large on the face of record. The accused first took the complainant in confidence and thereafter, while the complainant was sitting at the house of the accused, he was assaulted mercilessly in a preplanned fashion. The first blow by the sword landed on hand of the petitioner and his left forearm was completely chopped off. The accused did not stop at that and continued his assault on the petitioner and gave him repeated blows by the sword even after the petitioner was virtually decapitated by the first injury. In this background of the matter, this Court is of the opinion that firstly as the complainant has specifically alleged that the accused aimed and caused repeated sword blows on his person with the intention of killing him, the very discharge of the complainant from the offence us 307 IPC was uncalled for. However, since the order of discharge was not challenged either by the State or by the complainant, this Court refrains from going into the validity of the said order. However, since the order of discharge was not challenged either by the State or by the complainant, this Court refrains from going into the validity of the said order. However, looking to the gruesome nature of the assault made by the accused on the complainant, this Court is of the opinion that the reduction of sentence of a period of 5 years awarded to the accused by the trial court for the offence under Section 326 IPC to a sentence for a period of 3 months so also reduction of sentence of a period of 3 years awarded to the accused by the trial court for the offence under Section 324 IPC to a sentence of fine only, by the appellant court's judgment under challenge, was grossly absurd and beyond comprehension and totally uncalled for. 14. The Hon'ble Apex Court in the case of Hazara Singh v. Raj Kumar & Ors. recently had the occasion to consider the concept of sentencing policy and observed as below: "Sentencing Policy: (7) The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. This Court has repeatedly stressed the central role of proportionality in sentencing of offenders in numerous cases. (8) The factual matrix of this case is similar to the facts and circumstances of the case in Shailesh Jasvantbhai and Another v. State of Gujarat, (2006) 2 SCC 359 , wherein the accused was convicted under Section 307/114 IPC and for the same the trial Court sentenced the accused for 10 years. However, the High Court, in its appellate jurisdiction, reduced the sentence to the period already undergone. In this case, this Court held that the sentence imposed is not proportionate to the offence committed, hence not sustainable in the eyes of law. This Court, observed thus: "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law, which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of criminal law continues to be - as it should be -a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc." (9) This position was reiterated by a three-Judge Bench of this Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. v. State of Gujarat, (2009) 7 SCC 254 , wherein it was observed as follows:- "99..The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to 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. 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. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. 100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. 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 both the criminal and the victim belong." In this case, the court further goes to state that meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of society. (10) In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus:- "15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. 16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence." (11) In Guru Basavaraj @ Benne Settapa v. State of Karnataka, (2012)8 SCC 734 , while discussing the concept of appropriate sentence, this Court expressed that: "It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored." (12) Recently, this Court in Gopal Singh v. State of Uttarakhand JT 2013 (3) SC 444 held as under:- "18. 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.." (13) We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment." 15. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment." 15. Tested on the touch stone of the decision of the Hon'ble Apex Court in the case of Hazara Singh (supra), this Court is of the opinion that the judgment passed by the learned Sessions Judge, Dungarpur while reducing the sentences awarded to the respondent No. 2 to an absurdly short period of 3 months in the exercise of its appellate jurisdiction is a gross abuse of the process of the Court. The sentences awarded to the accused for heinous and gruesome offences were reduced to such absurd proportions that it is beyond the comprehension of this Court. However, looking to the long lapse of time, the learned counsel for the accused respondent No. 2 was given an option as to whether the accused was prepared to adequately compensate the injured, upon which the answer was in negative. Therefore, this Court is of the opinion that the judgment dated 4.12.2009 passed by the learned appellate court in this case is grossly illegal and amounts to a gross abuse of the process of the Court. The reduction of sentences awarded to the respondent No. 2 Ramesh is beyond all cannons of a reasonable sentencing policy. Thus, this Court has no option but to restore the sentence awarded to the respondent No. 2 by the trial Court. 16. Accordingly, the instant revision filed by the complainant succeeds and is accepted. The judgment dated 4.12.2009 passed by the learned Sessions Judge, Dungarpur in appeal, whereby the sentences awarded to the respondent No. 2 have been reduced from a period of 5 years to a period of 3 months for the offence under Section 326 IPC is quashed. Likewise, the reduction of the sentence of a period of 3 years awarded by the trial court for offence under Section 324 IPC to a sentence of fine only is also quashed. Likewise, the reduction of the sentence of a period of 3 years awarded by the trial court for offence under Section 324 IPC to a sentence of fine only is also quashed. Both the sentences shall run concurrently.The sentences awarded to the respondent No. 2 have already been restored to the period of 5 years and 3 years respectively as above but this Court feels that it will be failing in its duty if the victim i.e. the petitioner herein is not compensated for the injuries, which he has suffered and is not provided adequate means of rehabilitation. With the introduction of Section 357A in the Cr.P.C. by an amendment brought about in the year 2009, the State Government in cooperation with the Central Government was encumbered with the duty of preparing a scheme for providing funds for compensation to the victims or his dependents, who suffered loss or injury as a result of crime and who required rehabilitation. The Rajasthan State under this provision brought in the Rajasthan Victim Compensation Scheme, 2011, which was made effective from 5.1.2012. Under the said scheme, Section 2(d) defines the victims. Section 4 makes the victim or his dependents eligible for grant of compensation if he/she has not been compensated for the loss or injury under any other scheme of the State/Central Government or other institution. The case of the petitioner is covered by Section 357A(3) of the Cr.P.C. As has been observed above, the person responsible for causing loss and injury to the victim is not in a position to compensate him. Therefore, this Court is of the opinion that the victim has to be compensated under the provisions of the Victim Compensation Scheme, 2011. When loss of any limb or part of the body results into 80% or above handicap to the victim, he can be awarded a sum of Rs. 1 lac as compensation under Clause-2 of the Schedule. For the purpose of rehabilitation, as per Clause-6 of the Schedule, another sum of Rs. 1 lac can be awarded to the victim. Though the above Scheme lays down procedure under Clause-5 thereof, for the grant of compensation, but this Court feels that the technicality of the procedure prescribed under the Scheme would go to cause further pain and humiliation to the injured, who has already suffered enough. 1 lac can be awarded to the victim. Though the above Scheme lays down procedure under Clause-5 thereof, for the grant of compensation, but this Court feels that the technicality of the procedure prescribed under the Scheme would go to cause further pain and humiliation to the injured, who has already suffered enough. In this case as has already been observed above, the State has virtually failed in its duty by not challenging the reduction of sentences awarded to the respondent No. 2 accused and therefore, this Court feels that if the petitioner victim is made to further undergo the agony of facing an inquiry for receiving the compensation under the Victim Compensation Scheme, it would be adding insult to his injury. In this view of the matter, this Court directs that the District Legal Services Authority, Dungarpur shall award a sum of Rs. 1 lac to the petitioner towards loss of limb and handicap under Clause-2 of the Schedule to Rule 5 (8) of the Scheme of 2011 and another sum of Rs. 1 lac towards rehabilitation of the petitioner under the said Scheme. The mode of payment shall be as per the discretion of the District Legal Services Authority, Dungarpur. The District Legal Services Authority, Dungarpur shall be entitled to recover the compensation amount from the person(s) responsible for causing the loss or injury under Clause-8 of the Scheme of 2011.The revision is allowed in the terms set out above. The copy of the judgment be forwarded to the District Legal Services Authority, Dungarpur for compliance. The petitioner is given liberty to file a certified copy of the judgment before the District Legal Services Authority, Dungarpur, who shall disburse the amount of compensation as directed by this Court to the petitioner within a period of four weeks from the date when such copy is submitted before it.Petition disposed of. *******