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2015 DIGILAW 295 (ALL)

Ram Khilari v. State of U. P.

2015-02-13

SUDHIR AGARWAL

body2015
JUDGMENT Sudhir Agarwal, J. 1. Heard Sri Anil Kumar Singh, learned counsel for the revisionist and learned A.G.A. for the State. 2. This is a revision under Section 439/401 Cr.P.C. filed by the revisionist-convict, who was tried for an offence under Section 307 /34 I.P.C. in Sessions Trial No. 101 of 1988. Sri Tahir Ali, Assistant Sessions Judge, Etah, vide judgment dated 16.12.1989 convicted the revisionist under Section 307 I.P.C. and sentenced him to undergo rigorous imprisonment of 5 years with fine of Rs. 2,000/-. In case of non-payment of fine, revisionist was to undergo one year further rigorous imprisonment. 3. The revisionist alongwith another accused, who was also convicted under Section 307 /34 I.P.C., preferred Criminal Appeal No. 127 of 1989. Sri S.K.Srivastava, Sessions Judge, Etah partly allowed the appeal. While upholding conviction under Section 307 I.P.C., the sentence was reduced to three years instead of five years rigorous imprisonment, but the amount of fine was maintained vide judgment and order dated 02.02.1991. 4. Initially, learned counsel for the revisionist attempted to argue that the court below has not examined the evidence properly, but facing serious difficulty in assailing concurrent findings of fact in respect of guilt of accused for an offence under Section 307 I.P.C. and considering the limited revisional jurisdiction of this Court, argued that the offence is alleged to have been committed in 1987; the punishment was awarded in 1991 and this revision is pending before this Court for the last 23 years, and odd, therefore, looking to the factum of two decades pendency of revision before this Court and advanced age of revisionist after 23 years, the punishment awarded should be modified by confining it to the period already undergone and to that extent, the impugned judgment passed by lower appellate court be modified/set aside. He contended that in 1991, revisionist was about 32 years of age and had already undergone about 3 months imprisonment. Now, the revisionist is more than 55 years of age and no useful purpose would be served by sending him to jail for undergoing remaining period of imprisonment, therefore, punishment should be modified and reduced to the period already undergone. He did not raise serious objection on the part of punishment imposing fine upon the revisionist. 5. Learned counsel has placed reliance upon the Apex Court's decision in the case of Gopal Singh Vs. He did not raise serious objection on the part of punishment imposing fine upon the revisionist. 5. Learned counsel has placed reliance upon the Apex Court's decision in the case of Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444 =2013 (3) SCC (Cri) 608 and Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516 . 6. Learned A.G.A. on the contrary, argued that the revisionist has been convicted of serious offence under Section 307 I.P.C. and looking to the concurrent findings recorded by both courts below to proving guilt of revisionist, there is no justification for showing any leniency or sympathy to the revisionist in the matter of sentence. He further argued that the punishment has already been reduced by lower appellate court and no further reduction would be justified in the facts and circumstances of the case. 7. The prosecution case, which has been found proved by courts below, is that on 23.10.1987, in the evening at about 6.30 p.m., complainant, Shaitan Singh was going from his house to Gher accompanied by his nephew Brijesh son of Bhogi Lal. When they came out of the village, reached near Dagrah (village path), they were surprised by Ram Khilari and Prem Singh of the same village. Ram Khilari said that Shaitan Singh was the person attempting to encroach on the path by raising his house. Thereafter, Prem Singh caught hold of Shaitan Singh, while Ram Khilari fired from his country-made pistol, hitting him in his abdomen. On sustaining gun shot injury, Shaitan Singh fell down. After the incident, accused persons bolted and made good their escape. A report was lodged at Police Station Kotwali, Etah on 23.10.1987 at 7.45 p.m. and injured Shaitan Singh was also medically examined at District Hospital Etah. Medical report confirmed following injuries; (I) Fire-arm wound of entry on right side abdomen, 7 cms. above umbilicus at 10.30 O'clock position. Margins inverted and lacerated. No tattooing or blackening present, size .3 cm x .3 cm x through and through to injury no.2. (II) Fire-arm wound of exit .5 Cm x .6 cm x through and through to injury no.1 over upper part of abdomen 7.5 cms. above umbilicus at 1.30 O'clock position. Margins everted and lacerated. 8. Margins inverted and lacerated. No tattooing or blackening present, size .3 cm x .3 cm x through and through to injury no.2. (II) Fire-arm wound of exit .5 Cm x .6 cm x through and through to injury no.1 over upper part of abdomen 7.5 cms. above umbilicus at 1.30 O'clock position. Margins everted and lacerated. 8. Assailing the finding of guilt, counsel for the revisionist heavily relied upon the factum that in F.I.R. name of the person accompanying Shaitan Singh was mentioned as Brijesh, though, no such person named Brijesh was actually present at the time of incident. He also pointed out that complainant Shaitan Singh in his own statement took the name of Brij Mohan instead of Brijesh. 9. I find that Brijesh had been examined by trial court. From paragraph 9 of the judgment it is evident that Brijesh himself was examined as PW-2 and has affirmed his presence at the time of incident. Except discrepancy in the name taken by complainant in his oral deposition, at every place name of Brijesh was mentioned, which included the report lodged by complainant Shaitan Singh himself. The trial court, therefore, found that discrepancy in the name at one place was of no consequence particularly when the concerned witness Brijesh was himself examined and he confirmed the entire episode, supporting prosecution case. Before this Court also learned counsel for the revisionist could not show any such discrepancy so as to challenge the entire conviction on this score alone. He did not place anything before this Court to show that Brijesh son of Bhogi Lal was not nephew of complainant Shaitan Singh or was not present at the time of incident. In the oral statement of Brijesh PW2 also no discrepancy as such could be pointed out by him. 10. It is then argued that there was some discrepancy with respect to the distance from which bullet injury alleged to have caused to the complainant Shaitan Singh but I find that on this aspect also assessment of evidence and discussion made by trial court in paragraph 7 of the judgment is quite logical and reasonable. Whether distance was one and half or 3-4 feet, in a case of sudden altercation, cannot be expected at all by the witness, with mathematical precision. 11. Whether distance was one and half or 3-4 feet, in a case of sudden altercation, cannot be expected at all by the witness, with mathematical precision. 11. While examining statement of witnesses it is not every I's, T's and dots which have to be seen and considered with mathematical accuracy or that any minor, ineffective or insignificant difference would make the statement of witnesses unbelievable. 12. This Court in State of U.P. Vs. Babu and others 2007(9)ADJ, 107 (DB) has observed that it is not every word and sentence of different prosecution witnesses which would render their statement to be brushed aside but the duty of Court is to find out truth and do justice after going through the evidence in its entirety. In paragraphs no. 31, 32 and 33 of the judgment, the Court said: "31. No doubt, in long run examination of witnesses that too after long interval from the date of incident, some discrepancies are likely to occur in such deposition. But in such matters, the duty of the Court is to find out the truth and do justice accordingly. The evidence of the prosecution witnesses can neither be brushed aside on mere existence of some discrepancies or on the ground of other factors, namely, relationship, lack of independent witnesses etc. but the entire evidence has to be considered, appreciated and adjudged in wholesome manner. 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. 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. 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. 32. What was observed and apprehended about 30 years back is to be reiterated having been proved by the time and fact that law and order in society is on continuous deterioration and law enforcing machinery is finding itself in great difficulty to control. 32. What was observed and apprehended about 30 years back is to be reiterated having been proved by the time and fact that law and order in society is on continuous deterioration and law enforcing machinery is finding itself in great difficulty to control. On the contrary, time and again the instances are being highlighted where despite broad daylight crimes the accused are being acquitted and wandering fearlessly in the society with greater boldness. The fear of legal proceedings has vanished. 33. Therefore, in a case of the kind which is in hand, the evidence has to be assessed and considered in the light of the facts which are not disputed by the parties and also to find out the evidence which is duly corroborated and once such evidence in respect to certain facts is there, the same should not be ignored merely due to existence of some discrepancies in the statements of the prosecution witnesses or other reasons unless the duly corroborated evidence is found to be wholly unreliable." (Emphasis added) 13. It was argued by the learned counsel for the revisionist that considering the fact that though revision was filed before this Court in 1991, the same is being decided in 2015 i.e. after a gap of 24 years, hence the revisionist be discharged from the commission of offence on the ground of delay. I am unable to accept the contention. 14. The Apex Court in a series of decisions, held that the Limitation Act, 1963 does not apply to criminal proceedings unless there is express and specific provision to that effect. It is also settled law that a criminal offence is considered as a wrong against the State and the Society even though it is committed against an individual. In Shyam Babu v. State of U.P.; 2012 (6) ALJ 10 (decided on 7.9.2012), after considering various decisions including the decision of Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225 , and Kartar Singh v. State of Punjab (1994) 3 SCC 569 and a decision rendered by seven learned Judges in P. Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578 and Ranjan Dwivedi V. C.B.I. through Director General; 2013 (81) ACC 402 (decided on 17.8.2012), the Apex Court rejected similar argument based on delay 'either at the stage of trial or thereafter. The Court in Shyam Babu (Supra) held : "In this case, merely because the High Court had taken nearly 25 years to dispose of the appeal, the present appellant cannot be exonerated on the ground of delay." 15. Role of Ram Khilari of opening fire upon Shaitan Singh causing serious injuries to him has been found proved by both the courts below. After assessing evidence on record, no serious discrepancy in the judgments of courts below recording finding of guilt against the revisionist could be shown by learned counsel for the revisionist. It is in these circumstances, the arguments otherwise are rejected. 16. Now, I proposes to consider the question of reduction of sentence as argued by the counsel. 17. In the matter of awarding punishment multiple factors have to be considered by this Court. The 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 the offence. Sentencing process should be sterned 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. 18. Further sentencing process should be sterned 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. Further sentencing process should be sterned 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 be lost 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 the court to give adequate, proper and suitable sentence having regard to various aspects, some of which, are noticed above. 19. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat, 2009 (7) SCC 254 , 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) 20. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532 , 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." 21. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734 , the Court said that: "The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored." 22. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444 , 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" 23. In Hazara Singh Vs. 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" 23. In Hazara Singh Vs. Raj Kumar and another, 2013 (9) SCC 516 , the Court observed that: "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". (Emphasis added) 24. The revisionist has not shown that punishment, awarded by court below, is unjust, arbitrary or otherwise illegal. However, what he is trying to take advantage, is that the act of the Court should come to his 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 the revisionist for making reduction in punishment drastically, though otherwise what has been done by the court below cannot be said, per-se, illegal, unjust or improper. 25. It is well settled that the act of the court prejudice none. The failure of this court in taking up these matters within a reasonable time should not become a tool in hand to the offender 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. Over and above, the victim, who had suffered, is waiting for its own rights in having the offender punished suitably, even if the system of justice takes a long time. The delay in Courts cannot become a factor for converting an accused as a victim, ignoring all the rights of actual victim, who has suffered including his family and the society in general. The delay in Courts cannot become a factor for converting an accused as a victim, ignoring all the rights of actual victim, who has suffered including his family and the society in general. Moreover, when the finding of guilt and punishment imposed by the court below is not found erroneous in any manner, I am of the view that such an order of the court below cannot be interfered in exercise of revisional jurisdiction by this Court. 26. 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 the manifest error in the orders of subordinate courts but should not be exercised in a manner so as to turn the Revisional court in a Court of Appeal. The legislature has differently made provisions for appeal and revision and the distinction of two jurisdictions has to be maintained. 27. 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. 28. 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. 29. 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. 29. 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 ; and, Johar and others Vs. Mandal Prasad and another, 2008 Cr.L.J. 1627 (S.C.). 30. 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. 31. In Pathumma and another Vs. Muhammad, 1986(2) SCC 585 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. 32. In Munna Devi Vs. State of Rajasthan and another, 2001(9) SCC 631 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." 33. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665 , in a matter again arising from the judgment of acquittal, the revisional power of High Court was examined and the Court said: "4. In Ram Briksh Singh and others Vs. Ambika Yadav and another, 2004(7) SCC 665 , 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." 34. In view of the above discussion, I am clearly of the view that no interference is called for in this revision in any manner. 35. The revision lacks merit. Dismissed. 36. The accused, Ram Khilari is on bail. His 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 him. The compliance shall be prepared within two months. 37. Certify this judgment to the lower court immediately.