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2014 DIGILAW 768 (HP)

State of Himachal Pradesh v. Sanju Kumar

2014-06-19

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. 1. This appeal is directed against the judgment dated 03.01.2014 passed by the learned Sessions Judge, Sirmaur District at Nahan, in Criminal Appeal No.32-Cr.A/10 of 2012 whereby the conviction and sentence dated 25/30.08.2012 awarded by learned Judicial Magistrate 1st Class, Nahan, District Sirmaur, in a Criminal Case No. 6/2 of 2011, has been modified. 2. The prosecution case, in brief, is that on 26.09.2010 Bhagnal Coach No.HP-64-9097 was coming on its route from Manwa to Solan. At about 9.20 a.m., when the said bus reached on the curve between Phagu and Bhant, accused Sanju came driving scooter No.HR-02G-7357 from Rajgarh side with his father Prem Chand as pillion rider. It was further alleged that on seeing the scooter coming from the opposite direction the driver of the bus stopped the bus but the accused, who was driving the scooter in a very high speed on the wrong side hit his scooter against the stationary bus. In this accident, accused Sanju and his father suffered injuries and both of them were removed to C.H., Rajgarh for treatment. The police was also informed about this accident and on the basis of statement made by one Shri Durga Singh, a passenger of the bus, formal case vide FIR No.91/10 was registered against the accused in Police Station, Rajgarh. The police investigated the case. The father of the accused succumbed to his injuries and died in C.H., Rajgarh. It was also alleged that this accident had taken place on account of rash and negligent driving on the part of the accused. 3. After completion of investigation, the police forwarded the accused to the Court to stand trial under Sections 279, 337, 304-A IPC and section 181 of the Motor Vehicles Act. The accused was summoned by the trial court and notice of accusation was put to him to which he pleaded not guilty and claimed trial. The prosecution led its evidence and at the close of the prosecution evidence the accused was examined under Section 313 Cr.P.C. in which he denied the prosecution evidence and pleaded his innocence. However, no evidence was led by the accused in his defence. 4. The prosecution led its evidence and at the close of the prosecution evidence the accused was examined under Section 313 Cr.P.C. in which he denied the prosecution evidence and pleaded his innocence. However, no evidence was led by the accused in his defence. 4. The learned trial Court after hearing the parties acquitted the accused of the offences punishable under Section 337 IPC and 181 of the Motor Vehicles Act, but found him guilty under Sections 279, 304-A IPC and convicted and sentenced him. Under Section 279 IPC, the accused was sentenced to undergo simple imprisonment of three months and under Section 304-A IPC, he was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default of payment of fine, the accused was directed to undergo simple imprisonment for 15 days. All the sentences were directed to run concurrently. 5. Feeling aggrieved by the impugned judgment, accused-respondent preferred an appeal before the learned Sessions Judge, Sirmaur, who, though upheld the conviction of the respondent under Sections 279 and 304-A IPC and while sentencing the accused, the sentence of fine was maintained, however, the substantive sentence awarded to the respondent under Section 304-A IPC was reduced till rising of the Court. The substantive sentence which had been awarded by the learned trial Court was also modified by imposing a fine of Rs.1,000/- for the offence under Section 279 IPC and in default to undergo simple imprisonment of one month. It is against this judgment that the State has come up in appeal. 6. The learned Additional Advocate General has strenuously argued that the learned trial Court has failed to take into consideration the fact that the respondent had driven the scooter in a rash and negligent manner and struck the scooter against the bus which was on its extreme left and resultantly the pillion rider of the scooter received/suffered injuries on his person and lateron had succumbed to the same. Therefore, in such circumstances, the learned Sessions Judge should not have shown any leniency by modifying the sentence. 7. On the other hand, Shri Dinesh Thakur, Advocate, has vehemently contended that looking into the peculiar facts and circumstances of the case, the learned Sessions Judge did not commit any error while reducing and modifying the sentence imposed by the learned trial Court. 7. On the other hand, Shri Dinesh Thakur, Advocate, has vehemently contended that looking into the peculiar facts and circumstances of the case, the learned Sessions Judge did not commit any error while reducing and modifying the sentence imposed by the learned trial Court. I have heard learned counsel for the parties and gone through the records of the case. 8. Since the respondent has already been convicted by the learned Courts below and has not preferred any appeal against his conviction, the only question which requires to be determined is whether the learned Sessions Judge was right in modifying the conviction and sentence as imposed by the learned trial Magistrate. 9. The most crucial stage in every criminal case is the stage of conviction which not only is most complex but difficult stage in the judicial process. But, it is where the discretion of the Judges in imposing the sentence is tested. Though ample amount of discretion is vested in the Judges to levy appropriate sentence, however, discretion cannot be unfettered and unguided and several factors like nature, gravity, the manner and the circumstances of the commission of offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute yardsticks for the Judges to decide on the question of sentences to be imposed. One of the essential principles required to be followed while sentencing is that the sentence imposed must be commensurate with the crime committed. 10. The law on the subject has been summed up by the Hon’ble Supreme Court in its recent judgment in Gopal Singh versus State of Uttarakhand (2013) 7 SCC 545 in the following manner:- “14. The alternative submission of the learned counsel for the appellant is that when the learned Sessions Judge as well as the High Court have found that only the conviction under Section 324 is sustainable, then the sentence of rigorous imprisonment of three years should not have been awarded. In this regard, it is fruitful to refer to the pronouncement in Santa Singh v. State of Punjab (1976) 4 SCC 190 wherein Bhagwati, J. (as his Lordship then was), speaking for the Court, while interpreting the words used in Section 235(2) of the Code of Criminal Procedure, adverted to the concept of proper sentence and opined thus: (SCC p. 195, para 3) “3. A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances-extenuating or aggravating- of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to the particular type of offence. These are factors which have to be taken into account by the court in deciding upon the appropriate sentence, and, therefore, the legislature felt that, for this purpose, a separate stage should be provided after conviction when the court can hear the accused in regard to these factors bearing on sentence and then pass proper sentence on the accused.” The aforesaid principle has been followed in many a dictum of this Court. 15. In Jameel v. State of U.P. (2010) 12 SCC 532 this Courtreiterated 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, the Court observed thus: (SCC p.535, paras 15-16) “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.” In the said case, there was a fracture of bone and the trial court had convicted the appellant therein under Section 308 IPC and sentenced him to undergo rigorous imprisonment for two years. 16. In Shailesh Jasvantbhai v. State of Gujarat (2006) 2 SCC 359 the Court has observed thus: (SCC pp. 361-62, para 7) “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. 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.” 17. Recently, this Court in Guru Basavaraj v. State of Karnataka (2012) 8 SCC 734 , while discussing the concept of appropriate sentence has expressed that : (SCC pp. 744-45, para 33) “33. Recently, this Court in Guru Basavaraj v. State of Karnataka (2012) 8 SCC 734 , while discussing the concept of appropriate sentence has expressed that : (SCC pp. 744-45, para 33) “33. 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.” 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. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasis, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. 19. A court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of the court in such situations becomes a complex one. The same has to be performed with due reverence for the rule of law and the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a priori notion.” 11. Admittedly, in the present case, the deceased pillion rider was none other than the father of the respondent. Looking into this background of the matter, it will be harsh and oppressive to impose severe punishment upon the respondent. It has come on record that accused-respondent is a first offender, who in this accident had not only lost his father, but had sustained injuries on his person. Not only this, he is the sole bread-earning member of the family. It has been found as a matter of fact that the respondent does not have any criminal history. There is nothing on the record to establish that the respondent had been previously convicted or indulged in any criminal activity. Not only this, he is the sole bread-earning member of the family. It has been found as a matter of fact that the respondent does not have any criminal history. There is nothing on the record to establish that the respondent had been previously convicted or indulged in any criminal activity. The respondent in this accident has suffered substantial loss which fact in itself is extenuating and mitigating circumstance to be borne in mind while awarding sentence. 12. Therefore, keeping in view the parameters and guidelines as laid down by the Hon’ble Supreme Court in its various pronouncements discussed in detail in Gopal Singh’s case (supra), I do not find any infirmity or illegality in the judgment passed by the learned Sessions Judge, who though upheld the conviction of the respondent, but modified the sentence. The learned Sessions Judge has kept in mind the nature, gravity, the manner and circumstances of the commission of offence. He has also taken note of the personality of accused, the character, antecedents etc. of the respondent and above all the sentences awarded by the learned Sessions Judge cannot be said to be lenient in the peculiar facts and circumstances of the case and absolutely commensurate with the commission of offences committed by the respondent. 13. Accordingly, I find no merit in the appeal and the same is dismissed.