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2016 DIGILAW 1221 (ALL)

DAYARAM @ RAHUL KANVAR v. STATE OF U. P.

2016-04-05

RANJANA PANDYA

body2016
JUDGMENT : Hon'ble Mrs. Ranjana Pandya,J. 1. Challenge in this appeal is to the judgement and order dated 1.7.2015 passed by Additional Sessions Judge, Fast Track Court, Agra in S.T. No. 661 of 2012 (State Vs. Daya Ram @ Rahul Kanvar) arising out of Crime No. 939 of 2011, under Sections 307, 323, 376/511 I.P.C., Police Station-Sadar Bazar, District-Agra, whereby the accused Dayaram found guilty and was sentenced to 5 years rigorous imprisonment, under Section 307 I.P.C. coupled with fine of Rs. 10,000/- and 4 years rigorous imprisonment under Section 376/511 I.P.C. coupled with fine of Rs. 8,000/-with default stipulation. 2. Filtering out unnecessary details, the case of the prosecution is that a written report was lodged by Pooran Lal Shah stating that on 5.9.2011 his daughter had gone to take tuition of some children at K.B. Line at 2:30 hrs in the day time. She was taking tuition from one and half year prior to the incident. 3. On 5.9.2011, somebody assaulted the victim. Thereafter she was admitted in the S.N. Hospital and when information was given, the uncle of the victim reached S.N. Hospital. The victim named Rahul, who lives near the cycle stand, and thereafter she fainted. Hence, the F.I.R. was lodged. 4. P.W. 6 Constable Veer Pal Singh, scribed the F.I.R., on the basis of written report, which was proved as Exhibit Ka-9. He copied the details of the case in the G.D., which was proved as Exhibit Ka-9. 5. The prosecution examined as many as seven witnesses. P.W. 1 is Pooran Lal, the informant and the uncle of the victim. He proved the written report as Exhibt Ka1. P.W. 2 is the victim and the injured. P.W. 3 is Dr. Neelam Rani, who conducted the medical examination of the victim and proved the medical report as Exhibit Ka-2. Dr. R.B. Lal is P.W. 4, who examined the injuries on the part of the victim and proved the medical report as Exhibit Ka-4. S.S.I. Chandra Shekhar is P.W. 5, who conducted the part of the investigation. He sent the victim for medical examination. He inspected the spot and prepared the sit plan, which was proved as Exhibit Ka-6. The investigation ended into a charge-sheet, which was proved by this witness as Exhibit Ka-7. The evidence of P.W. 6 has been discussed by me. P.W. 7 is Dr. Vineet Dhyani. He sent the victim for medical examination. He inspected the spot and prepared the sit plan, which was proved as Exhibit Ka-6. The investigation ended into a charge-sheet, which was proved by this witness as Exhibit Ka-7. The evidence of P.W. 6 has been discussed by me. P.W. 7 is Dr. Vineet Dhyani. He also medically examined the injured and proved the injury report as Exhibit Ka-11. 6. After prosecution evidence was closed, the accused was examined under Section 313 Cr.P.C. in which he denied the occurrence. He further stated that the father of the victim had borrowed money from him, when he demanded back his money, he was beaten and a false case was registered against him. However, he did not adduce any defence evidence. 7. After hearing counsel for the parties, learned lower court found the accused guilty and sentenced him as specified in Para 1 of the judgement. 8. Feeling aggrieved, the accused has come in appeal. 9. I have heard the learned counsel for the parties, learned A.G.A. for the State and perused the trial court record. 10. Learned A.G.A. has submitted that the findings of the fact recorded by the trial court is based on evidence available on record. 11. Not pressing the criminal appeal after the conviction of the accused by the court below is like confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence. 12. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463 , the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under: "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 the case of Dhananjoy Chatterjee Vs. 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 the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. 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 criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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 the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance. 14. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. 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. vs. 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. 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. 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 but the society at large also 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." 15. In Gopal Singh vs. 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.....". 16. It is not disputed that the accused appellant is in jail continuously since 7.9.2011. As per his statement recorded under Section 313 Cr.P.C. presently he is aged about 29 years. The accused has already undergone 4 years and more than 6 months in continuance incarceration. 17. 16. It is not disputed that the accused appellant is in jail continuously since 7.9.2011. As per his statement recorded under Section 313 Cr.P.C. presently he is aged about 29 years. The accused has already undergone 4 years and more than 6 months in continuance incarceration. 17. Thus, considering the law laid down by the Hon'ble Apex Court in the above mentioned cases, in the facts and circumstances of the case, in my opinion, the ends of justice would be met if the custodial sentence 5 years imprisonment of the accused under Section 307 I.P.C. is reduced to the period already undergone i.e. 4 years and 6 months, without reducing the amount of fine imposed by the trial court against the accused appellant under all the Sections. 18. In view of the aforestated reason, the appeal is partly allowed. The conviction of the appellant under Sections 307 and 376/511 I.P.C. is confirmed and rigorous imprisonment under Section 307 I.P.C. is reduced to the period already undergone i.e. 4 years and 6 months but the sentence of fine of Rs. 10,000/- under Section 307 I.P.C. and Rs. 8,000/- under Section 376 I.P.C. is maintained. The remaining sentences with default stipulation is also maintained. The fine should be paid before release of the appellant. If, the fine is not paid, he shall further undergo rigorous imprisonment of 1 year and six months. 19. The appellant is in jail and would serve out the remainder of his sentence, if not already completed. 20. Let certified copy of this judgment be sent to the concerned court immediately for sending modified conviction warrant of the accused appellant to the concerned jail.