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2015 DIGILAW 282 (ALL)

Ram Gopal v. State of U. P.

2015-02-11

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal, J. 1. Heard Sri Sri A.B.L. Gaur, learned Senior Advocate, assisted by Sri Saurabh Gour, Advocate, for revisionists and perused the record. 2. This revision has arisen from the judgment and order dated 28.8.1991 passed by Sri D.D. Sharma, 3rd Additional Sessions Judge, Etah dismissing appeal of the revisionist Ram Gopal against conviction under Section 326 I.P.C., sentencing him to undergo rigorous imprisonment of two years and a fine of Rs. 1000/-, in default whereof he shall go further rigorous imprisonment for two months. The remaining revisionists have been acquitted for the charge under Section 326 /34 I.P.C. but convicted under Section 323/34 I.P.C. and sentenced to undergo rigorous imprisonment for four month and fine of Rs. 500/- each. In default in payment of fine revisionists 2, 3 and 4 are to further undergo rigorous imprisonment for one month. 3. The Trial Court vide judgment dated 14.12.1998 passed in Criminal Case No. 69 of 1988 convicted Ram Gopal, revisionist no. 1 under Section 326 and 323/34 I.P.C. while rest of the revisionists were convicted under Section 323/34 and 326/34 I.P.C. and all of them were punished with rigorous imprisonment of two years and fine of Rs. 1000/- each and in default in payment of fine for a further imprisonment of two months. 4. The Appellate Court vide judgment dated 28.8.1991 has modified Trial Court's judgment inasmuch revisionist no. 1 has been acquitted under Section 223/34 I.P.C. but maintaining conviction under Section 326 I.P.C., his punishment of two years rigorous imprisonment and one thousand fine has been maintained. In respect to revisionists no. 2, 3 and 4, i.e., Kishan Lal, Chob Singh and Tirloki, their conviction under Section 326 /34 has been set aside but maintained under Section 323/34 I.P.C. and consequently the punishment has also been reduced to four months rigorous imprisonment and fine of Rs. 500/- each. 5. Before this Court, Sri Gaur, learned Senior Counsel only submitted that this revision is pending in this Court for the last 24 years. All the revisionists are quite old and no useful purpose would be served by maintaining punishment imposed by Lower Appellate Court and requiring the revisionists to undergo sentence. 500/- each. 5. Before this Court, Sri Gaur, learned Senior Counsel only submitted that this revision is pending in this Court for the last 24 years. All the revisionists are quite old and no useful purpose would be served by maintaining punishment imposed by Lower Appellate Court and requiring the revisionists to undergo sentence. He, therefore, prayed that looking to the long period which has elapsed during pendency of revision, the punishment of rigorous imprisonment imposed upon revisionists be reduced to the period already undergone and judgment of Court below be modified accordingly. 6. The conviction of revisionist no. 1 under Section 326 and revisionists no. 3 and 4 under Section 323/34 I.P.C. has been maintained by Lower Appellate Court and to this extent, there is a concurrent finding recorded by both the Courts below. Whether this Court as a rule of thumb should reduce sentence where offence committed by accused persons is fully proved by evidence is the only moot question need be considered in this revision. 7. A criminal offence is considered as a wrong against the state, and, society in particular, even though it is committed against an individual. This Court in State of U.P. Vs. Babu and others 2007(9) ADJ, 107 (DB) has said: "The duty of the Court of law is heavy in the sense that it should ensure that no innocent should be punished but simultaneously it is also under an obligation to see that no guilty person should escape from the clutches of law by taking advantage of so-called technicalities as this will not only lead to further serious threats to the entire society but may also shake the confidence of public at large in the system of dispensation of justice. Our experience has shown that exonerating a guilty person due to any reason whatsoever has caused more damage to the society since it has multiplied the occurrence of crime as well as has also produced more criminals attracting them to commit crime since easy acquittal has resulted in encouraging them to break law with impunity. It will be useful to remind with the words of caution as observed by the Hon'ble Apex Court (Krishna Ayer J.) in Shiva Ji Sahabrao Bobade (supra) emphasizing to keep balance between the individual liberty and evil of acquitting guilty persons. It will be useful to remind with the words of caution as observed by the Hon'ble Apex Court (Krishna Ayer J.) in Shiva Ji Sahabrao Bobade (supra) emphasizing to keep balance between the individual liberty and evil of acquitting guilty persons. The Court observed that we should remind ourselves of necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The Courts having duty of judicial review owe the public accountability of such system. The golden thread of proof beyond reasonable doubt should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumption against indicted persons and more severe punishment of those who are found guilty. Too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. Miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of innocent." (emphasis added) 8. The above observations were made on the question of conviction but in my view once the prosecution has succeeded to prove its case and conviction is upheld by all the Courts, if its consequence is allowed to be diluted by modifying punishment to the extent of having no consequence, whatsoever, it would make a mockery of entire criminal system of justice. 9. Commenting upon the sentencing policy, in State of U.P. Vs. 9. Commenting upon the sentencing policy, in State of U.P. Vs. Sanjay Kumar 2012 (8) SCC 537 : 2012 (79) ACC 321 (SC), the Court said that punishments should reflect the gravity of offence and also the criminal background of convict. The graver the offence and longer the criminal record, more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of crime to the circumstances of offender and needs of the victim and community, restorative justice eschews uniformity of sentencing. In para 21 of the judgment, the Court further said: "Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats" 10. The Court further said that it is the duty of Courts to award proper sentence, having regard to the nature of offence and the manner in which it was executed or committed, etc. The Courts should impose a punishment befitting the crime so that Courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a futile exercise. 11. In Rajendra Pralhadrao Wasnik Vs. State of Maharashtra AIR 2012 SC 1377 : 2012 (77) ACC 153 (SC), the Court said: "Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole." 12. In Hazara Singh Vs. Raj Kumar and others (2013) 9 SCC 516 , the Court referred to its earlier decision in Shailesh Jasvantbhai and another Vs. State of Gujarat and others (2006) 2 SCC 359 : 2006 (54) ACC 890 (SC) and quoted with approval the following passage: "... 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." 13. In Ahmed Hussein Vali Mohammed Saiyed and Anr. 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." 13. In Ahmed Hussein Vali Mohammed Saiyed and Anr. Vs. State of Gujarat 2009 (7) SCC 254 : 2009 (Suppl.) ACC 68 (SC), the Court said: "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. .... 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." 14. In Hazara Singh Vs. Raj Kumar and others (supra), the Court in para 17 also said: "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. In the matter of awarding punishment multiple factors have to be considered by this Court. Law regulates social interests, arbitrates conflicting claims and demands. Security of individuals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. In the matter of awarding punishment multiple factors have to be considered by this Court. Law regulates social interests, arbitrates conflicting claims and demands. Security of individuals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. The inherent cardinal principle of criminal administration of justice is that the punishment imposed on an offender should be adequate so as to serve the purpose of deterrence as well as reformation. It should reflect the crime, the offender has committed and should be proportionate to the gravity of offence. Sentencing process should be stern so as to give a message to the offender as well as the person like him, roaming free in the society, not to indulge in criminal activities but also to give a message to society that an offence if committed, would not go unpunished. The offender should be suitably punished so that society also get a message that if something wrong has been done, one will have to pay for it in proper manner, irrespective of time lag. 16. Further sentencing process should be stern but tampered with mercy where-ever it is so warranted. How and in what manner element of leniency shall prevail, will depend upon multifarious reasons including the facts and circumstances of individual case, nature of crime, the matter in which it was committed, whether preplanned or otherwise, the motive, conduct, nature of weapon used etc. But one cannot lose sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. It is duty of court to give adequate, proper and suitable sentence, having regard to various aspects, some of which, are noticed above. 17. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat (supra) the Court confirmed that: "any liberal attitude by imposing meager 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". (Emphasis added) 18. In Jameel Vs. (Emphasis added) 18. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532 : 2011 (75) ACC 342 (SC), the Court held that: "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." 19. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734 : 2012 (79) ACC 314 (SC), the Court said that: "The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored." 20. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444 : 2013 (81) ACC 289 (SC), the court said that: "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" 21. The revisionists have not shown that punishment, awarded by court below, is unjust, arbitrary or otherwise illegal. However, what they are trying to take advantage is that the act of Court should come to their rescue inasmuch as it is this Court which has taken two decades and more in taking up this revision and this should come to rescue of revisionists for making reduction in punishment drastically though otherwise what has been done by court below cannot be said per-se illegal, unjust or improper. 22. It is well settled that the act of court prejudices none. The failure of this court in taking up these matters within the reasonable time should not become a hand tool to the offenders, like present one to claim reduction in punishment as a matter of right, ignoring the fact that society requires that an offender should be punished adequately, and, over the above, the victim, who has suffered, is waiting in its own rights for having offender punished suitably, even if the system of justice takes a long time. The delay in Courts cannot become a factor to convert an accused, a victim, ignoring all the rights of actual victim, who has suffered, his family and the society in general. Moreover, when finding of guilt and punishment imposed by court below is not found erroneous in any manner. I am of the view that such an order of court(s) below cannot/shall not be interfered in exercise of revisional jurisdiction of this Court. 23. The judicial review in exercise of revisional jurisdiction is not like an appeal. It is a supervisory jurisdiction which is exercised by the Court to correct manifest error in the orders of subordinate courts. It should not be exercised in a manner so as to turn Revisional Court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and distinction of two jurisdictions has to be maintained. 24. Construing old Section 439 of Criminal Procedure Code, 1898, pertaining to revisional jurisdiction, the Court in D. Stephens Vs. Nosibolla, AIR 1951 SC 196 said that revisional jurisdiction under Section 439 of the Code ought not to be exercised lightly particularly when it is invoked by private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of law or misappreciated the evidence on record. 25. In K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, AIR 1962 SC 1788 it was held that revisional jurisdiction should be exercised by the High Court in exceptional cases only when there is some glaring defect in the procedure or a manifest error on a point of law resulting in flagrant miscarriage of justice. However, this was also a case in which revisional jurisdiction was invoked against an order of acquittal. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise. 26. The above view has been reiterated in Mahendra Pratap Singh Vs. If the Court lacks jurisdiction or has excluded evidence which was admissible or relied on inadmissible evidence or material evidence has been overlooked etc., then only this Court would be justified in exercising revisional power and not otherwise. 26. The above view has been reiterated in Mahendra Pratap Singh Vs. Sarju Singh, AIR 1968 SC 707 ; Khetrabasi Samal Vs. State of Orissa, AIR 1970 SC 272 ; Satyendra Nath Dutta and another Vs. Ram Narain, AIR 1975 SC 580 ; Jagannath Choudhary and others Vs. Ramayan Singh and another, 2002(5) SCC 659 : 2002 (Suppl.) ACC 136 (SC).; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.). : 2008 (61) ACC 363 (SC). 27. In Duli Chand Vs. Delhi Administration, 1975(4) SCC 649 the Court reminded that jurisdiction of High Court in criminal revision is severely restricted and it cannot embark upon a re-appreciation of evidence. While exercising supervisory jurisdiction in revision the Court would be justified in refusing to re-appreciate evidence for determining whether the concurrent findings of fact reached by learned Magistrate and Sessions Judge was correct. 28. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 : 1986 (23) ACC 286 (SC) reiterating the above view the Court said that in revisional jurisdiction the High Court would not be justified in substituting its own view for that of a Magistrate on a question of fact. 29. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 : 2002 (44) ACC 137 (SC) the Court said: "The revision power under the Code of Criminal procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged." 30. In Ram Briksh Singh and others Vs. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665 : 2004, (48) ACC 947 (SC) in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said: "4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice." 31. In view of the above discussion, I am clearly of the view that no interference is called for in this revision in any manner. 32. The revision lacks merit. Dismissed. 33. The accused, Ram Gopal, Kishal Lal, Chob Singh and Tirloki are on bail. Their bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate concerned shall cause them to be arrested and lodged in jail to serve out the sentence passed against them. The compliance shall be reported at the earliest. 34. Certify this judgment to the lower court immediately.