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2014 DIGILAW 727 (HP)

Baldev @ Baloo v. State of H. P.

2014-06-05

SANJAY KAROL

body2014
JUDGMENT : Sanjay Karol, J. 1. Since both these appeals arise out of the same judgment of the trial Court, hence they are being decided by a common judgment. 2. Appellants-convicts Fagnu, Hoshiara & Kabli (in Cr. A No. 436/2008) and Baldev alias Baloo (in Cr. A No. 369/2008), hereinafter referred to as the accused, have assailed the judgment dated 2.6.2008/3.6.2008, passed by Additional Sessions Judge, Fast Track Court, Chamba, Himachal Pradesh, in Sessions Trial No. 18/2008/07, titled as State of Himachal Pradesh vs. Kabli and others, whereby they stand convicted for having committed an offence punishable under the provisions of Section 304-I read with Section 34 of the Indian Penal Code and sentenced each one of them to undergo rigorous imprisonment for a period of ten years and pay fine of Rs. 10,000/- each, and in default thereof to further undergo rigorous imprisonment for a period of two months. 3. It is the case of prosecution that on 7.10.2006, at about 5 p.m. Ako (PW-7) alongwith Lal Hussain (deceased) were grazing buffalos in Jhaiyan Nullah. Allegedly their buffalos entered the fields of accused persons. This led to a quarrel between the two parties. Accused pelted stones on Lal Hussain and Ako (PW-7). Also, scuffle took place in which these persons sustained injuries. Incident was witnessed by Noor Mohammed (PW-1) and Ms Seena (PW-8). Matter was reported to the police by PW-7 and FIR No. 73/06, dated 8.10.2006 (Ex. PW-4/A), under the provisions of Sections 302, 323, 34 of the Indian Penal Code, was registered at Police Station, Tissa, District Chamba, Himachal Pradesh. Investigating Officer, after visiting the spot, collected incriminating material, including Danda (Ex.P-7) and stones (Ex. P-1 & P-2), which were used as weapons. Investigation revealed that Lal Hussain died on account of the injuries sustained by him. Postmortem of the dead body was conducted by Dr. Ashok Singh Parmar (PW-3), who issued postmortem report (Ex. PW-3/B), after taking into account report of Forensic Science Laboratory. With the completion of investigation, which revealed complicity of the accused in the crime, challan was presented in the Court for trial. 4. Accused were charged for having committed an offence punishable under the provisions of Sections 304 (Clause I), 323 & 341 read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 5. 4. Accused were charged for having committed an offence punishable under the provisions of Sections 304 (Clause I), 323 & 341 read with Section 34 of the Indian Penal Code to which they did not plead guilty and claimed trial. 5. In order to establish its case, prosecution examined as many as eight witnesses and statements of accused persons, under the provisions of Section 313 of the Code of Criminal Procedure, were also recorded, in which they took up plea of innocence and false implication. No evidence in defence was led. 6. Based on the testimonies of witnesses and the material on record, trial Court convicted the accused of an offence punishable under the provisions of Section 304-I read with Section 34 of the Indian Penal Code and sentenced them as aforesaid. Hence, the present appeal by the accused persons. 7. Challenge to the judgment is on a limited ground. Based on the findings returned by the trial Court, Mr. Naresh Thakur, learned Senior Advocate appearing on behalf of accused Baldev alias Baloo (in Cr. A No. 369/2008) and Ms Ishita Bhandari, learned Amicus Curiae appearing on behalf of accused Fagnu and others (in Cr. A No. 436/2008), submit that accused ought to have been convicted under the provisions of Section 304 (second part). They further state that accused are behind bars w.e.f. 7.10.2006 and as such, taking a lenient view, considering the fact that they hail from rural background; are poor persons; it is their first offence, the sentence be reduced and this period of imprisonment be treated as sentence of punishment and no amount of fine be imposed. 8. We find favour with the submission of the learned counsel appearing for the accused. In Para-22 of the impugned judgment, trial Court has returned the following findings: "In the present case, the evidence recorded shows that the accused persons picked up quarrel with Lal Hussain and his brother Akko over grazing of cattle of the later in the peas crop and thereafter the accused persons started assaulting them by pelting stones. Thus, the incident took place in the course of sudden quarrel and there was no premeditation and hence it can safely be said that the accused persons did not intend to cause the death. However, the accused had knowledge that their act of pelting stone was likely to cause the death. Thus, the incident took place in the course of sudden quarrel and there was no premeditation and hence it can safely be said that the accused persons did not intend to cause the death. However, the accused had knowledge that their act of pelting stone was likely to cause the death. They made a combined assault on the deceased by pelting stones, hence, they must be deemed to have a common intention to assault the deceased by causing such bodily injuries which were likely to result in his death. The common intention can be said to be developed at the spot when the accused started pelting stones upon the deceased. The oral and medical evidence produced by the prosecution in this case clearly suggests that the accused persons in furtherance of common intention caused injuries to Lal Hussain by pelting stones upon him which resulted into his death, hence the guilt of the accused for the commission of the offence punishable under section 304-I read with Section 34 IPC is held to be proved on record. This point is answered accordingly." 9. Undisputedly, State has not filed any appeal assailing such findings. Now, if the accused had no intention to commit the crime, which took place on account of sudden quarrel and without any premeditation, we are satisfied that accused out to have been convicted for having committed an offence under the provisions of Section 304 (second part) and not first part, read with Section 34 of the Indian Penal Code. 10. Nonetheless, being first Court of appeal, we are duty bound to examine the correctness and legality of the judgment and findings returned by the trial court. 11. We have minutely examined the testimonies of the prosecution witnesses. That deceased Lal Hussain died as a result of injuries sustained by him, in the incident in question, which took place on 7.10.2006, is not in dispute. Postmortem of dead body was conducted by Dr. Ashok Kumar Parmar (PW-3). As per postmortem report (Ex. PW- 3/B), death took place on account of head injury, leading to intracranial haemorrhage, caesation of functions of vital centres in the brain. 12. Ako (PW-7) in his inspiring testimony has narrated the events as the prosecution wants the Court to believe. Categorically, he states that all the accused persons abused and pelted stones on the deceased, as a result of which he sustained injuries. 12. Ako (PW-7) in his inspiring testimony has narrated the events as the prosecution wants the Court to believe. Categorically, he states that all the accused persons abused and pelted stones on the deceased, as a result of which he sustained injuries. When he raised hue and cry, Kaiya, Basheer, Noor Ahamad and Talab arrived on the spot. On account of such injuries, Lal Hussain died. We find the testimony to have been fully corroborated by independent witness Seena (PW-8) and Noor Mohammed (PW-1). Thus, in our considered view, prosecution, by leading clear, cogent, convincing and reliable piece of evidence, has been able to fully establish that Lal Hussain died on account of the injuries inflicted by the accused persons. 13. Significantly, from the testimony of these witnesses, it cannot be inferred that accused had any intention of murdering the deceased. It has come on record that scuffle took place between the two parties. PW-7 admits that accused persons had proclaimed that buffalos of the complainant party had entered their fields and were grazing the pea crop. This led to an altercation. As such, findings returned by the trial Court in Para-22 of the judgment, reproduced herein earlier, are borne out from the record. 14. Since accused had no intention of committing murder of the deceased, in our considered view, they are liable to be held guilty of having committed an offence punishable under the provisions of Section 304 (second part and not first part) read with Section 34 of the Indian Penal Code. 15. We also find force in the submission of learned counsel for the accused, on the question of quantum of sentence. 16. With profit, we may extract the following passages on the question of sentencing from the Book: Sentencing Law and Practice, authored by C.K. Boyle and M.J. Allen: "A problem which frequently confronts a sentencer is that of establishing the factual basis of the offence on which to assess the appropriate sentence. As the sentence imposed should not be more severe than the offence merits, it is important that the facts of the offence are accurately established before sentence is passed. Where there has been a guilty plea, the factual basis of the offence may not be apparent, or the defendant may have pleaded guilty on the basis of his own view of the offence which may not coincide with that of the prosecution. Where there has been a guilty plea, the factual basis of the offence may not be apparent, or the defendant may have pleaded guilty on the basis of his own view of the offence which may not coincide with that of the prosecution. Even in cases where there has been a full trial and a conviction, the factual basis of the offence may not be clear from the evidence and the jury verdict. For example, a verdict of guilty of manslaughter on an indictment for murder, could be arrived at in one of several ways. If the judge is to pass the appropriate sentence, he must be able to arrive at some conclusion as to the facts of the offence (See, e.g. Wheeler (1967) 1 W.L.R. 1531; Hudson (1979) 1 Cr.App.R.(S.) 130; Campbell (1980) Crim.L.R. 248). Similarly, where an offender is convicted of a strict liability offence, it is important to know whether he acted intentionally, recklessly, negligently or without fault (See Lester (1976) 63 Cr.App.R. 144). A body of case law is gradually building up in relation to how this factual basis may be established and what evidence may be taken into consideration in establishing it." "Each criminal offence is characterised by typically recurring factual situations of varying degrees of gravity and, accordingly, the severity of the sentence to be imposed must reflect these degrees of wickedness (See Thomas, op. cit. p33). Ranges of sentence appropriate to each level of gravity have been developed over the years and can be identified from the decisions of the Court of Appeal. The maximum sentence available for a particular offence is reserved for the worst from that offence (Byrne (1975) 62 Cr.App.R. 159; Smith (1976) Crim.L.R. 468). Using their experience and knowledge of the decisions of other judges and of the Court of Appeal, particularly cases where the court seeks to give guidelines (See, e.g. Mohammed (1974) 60 Cr.App.R. 141; Taylor, Simons and Roberts (1977) 1 W.L.R. 612 ; Aramah (1982) 4 Cr.App.R.(S.) 407; Wood (1984) Crim.L.R. 305; Clarke (1982) 4 Cr.App.R.(S.) 197), judges must first allocate the offence to the appropriate sentence range. There is a normal bracket of terms of years within which the sentence for an offence is to be assessed. This bracket forms the starting point for determining the appropriate sentence. There is a normal bracket of terms of years within which the sentence for an offence is to be assessed. This bracket forms the starting point for determining the appropriate sentence. From this starting point the final sentence will be calculated by taking into account any aggravating factors which lead to a sentence towards the upper end of the bracket. If appropriate, the court will also consider any mitigating factors which may lead to the imposition of a lesser sentence. In some circumstances the court may consider it inappropriate to give a discount for mitigating circumstances in order to achieve some other penal objective such a deterrence, but the sentence must be proportionate to the facts of the case, and generally must not exceed that range for that type of offence." 17. We find that accused are not hardened criminal. It is their first offence. The apex Court in Modi Ram vs. The State of Madhya Pradesh, (1972) 2 SCC 630 , has laid down certain principles on the issue of sentencing, which read as follows: "4........The accused persons found guilty may be hardened or professional criminals having taken to the life of crime since long, or they may have taken to crime only recently or may have committed the crime under the influence of bad company or again commission of a solitary offence may be due to provocative wrongful action seriously injuring the feelings and sentiments of the accused. Human nature being what it is men are at times moved by the impulse of the moment rather than by rational, cool, calculated estimate of the future good and evil. At such moments they are ordinarily inclined to be ready to face any future evil falling short of the inevitable. Keeping in view the broad object of punishment of criminals by Courts in all progressive civilised societies true dictates of justice seem to us to demand that all the attending relevant circumstances should be taken into account for determining the proper and just sentence. The sentence should bring home to the guilty party the consciousness that the offence committed by him was against his own interest as also against the interests of the society of which he happens to be a member. The sentence should bring home to the guilty party the consciousness that the offence committed by him was against his own interest as also against the interests of the society of which he happens to be a member. In considering the adequacy of the sentence which should neither be too severe nor to lenient the Court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and station in life of the offender". 18. Apex Court in Gurmukh Singh vs. State of Haryana, 2009 (82) AIC 83 (SC) : (2009) 15 SCC 635 , also laid down the following factors, though not exhaustive, to be kept in mind at the time of granting sentence to the accused: (i) Motive or previous enmity; (ii) Whether the incident had taken place on the spur of the moment; (iii) intention/knowledge of the accused while inflicting the blow or injury; (iv) whether the death ensued instantaneously or the victim died after several days; (v) gravity, dimension and nature of injury; (vi) age and general health condition of the accused; (vii) whether the injury was caused without pre-meditation in a sudden fight; (viii) nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (ix) criminal background and adverse history of the accused; (x) whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (xi) number of other criminal cases pending against the accused; (xii) incident occurred within the family members or close relations and (xiii) conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? 19. In the instant case, we find that accused have no past history of violence or criminal record. It is their first offence. They have already spent more than 7 years 6 months in jail. There is nothing adverse qua their conduct either during trial or pendency of the appeal. They are poor villagers. There is none in their houses to look after the fields. They have a long way ahead in life and we find that they have shown remorse and repentance. As such, all the accused persons deserve leniency. There is nothing adverse qua their conduct either during trial or pendency of the appeal. They are poor villagers. There is none in their houses to look after the fields. They have a long way ahead in life and we find that they have shown remorse and repentance. As such, all the accused persons deserve leniency. Accordingly, we reduce their sentence of imprisonment from 10 years each to the period already undergone. We are also of the considered view that the sentence of fine is not to be imposed. Ordered accordingly. Hence, with modification on the question of conviction and the sentence part of judgment of the trial Court, both the appeals stand disposed of, so also pending applications, if any. Registry is directed to issue release warrants accordingly. Ordered Accordingly.