IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 469 of 1997 Reserved on: 25.5.2010 Date of decision: 02.06.2010 State of H.P. ... Appellant Versus Sushil Kumar and another … Respondents Coram : The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the appellant: Mr. Rajinder Dogra, Additional Advocate General and Mr. Vikas Rathore, Deputy Advocate General. For the respondents: Mr. Adarsh K. Vashist, Advocate, for respondent No. 1. Respondent No. 2 already dead. Per V.K. Ahuja , J. : This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Additional Sessions Judge, Solan, dated 25.7.1997, vide which the respondents were held guilty under Section 325 read with Section 34 I.P.C. and were convicted and sentenced accordingly for 3 years and pay fine of Rs.2000/- each. The respondents were also acquitted of the charge framed against the respondents under Section 302 read with Section 34 I.P.C. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. The State has come in appeal for enhancement of the sentence imposed by the learned trial Court. 3. Briefly stated, the facts of the case are that on 30.3.1996, at about 4-5 P.M., a telephonic information was received from the hospital that one lady in a serious and unconscious condition has been admitted in the hospital for treatment. On this, a Police Officer visited the hospital and submitted an application to the Medical Officer if the injured Dwarki Devi was fit to make a statement or not, who was not fit to make statement. One Pariksha Devi wife of Shyam Lal was present in the hospital with Dawrki Devi and accordingly, her statement was recorded under Section 154 Cr.P.C., in which she alleged that respondent No. 1 and respondent No. 2 (now deceased), who are the sons of the deceased and had inimical relations with her, gave slaps, kicks and fists blows, as a result of which Smt. Dwarki Devi fell on the ground. Both the respondents dragged Dwarki Devi and her sister Lajya Devi tried to save her from the clutches of the respondents and they gave a threat to take the life of old lady. It was also alleged that while dragging her, both of them inflicted leg blows on the stomach of Dwarki Devi, as a result of which blood came out of Dwarki Devi and on raising alarm by the injured and her sister Lajya Devi, three persons came to the spot and respondents ran away. A case under Section 307/34 I.P.C. was registered. The injured was referred for treatment to Indira Gandhi Medical College, Shimla, on the same day. The injured died on 31.3.1996 and accordingly, the case was converted under Section 302 read with Section 34 I.P.C. Her postmortem examination was conducted and after investigation, the challan was filed. According to the prosecution story, Dwarki Devi had 4 3 sons and 4 daughters and all the 4 daughters are married. Both the respondents had been given separate houses and 4 Bighas of land had been given to respondent Sushil Kumar. Both of them used to threaten their parents that the property should be transferred in their life time and accordingly, they used to pick up quarrel with them. After investigation, the challan was filed in the Court of learned Chief Judicial Magistrate, Solan, who committed the case to the Court of learned Sessions Judge, who assigned the case to the Court of learned Additional Sessions Judge, who tried the respondents, leading to their acquittal under Section 302 read with Section 325 I.P.C., but held them guilty and convicted and sentenced them as detailed above under Section 325 read with Section 34 I.P.C. 4. We have heard learned counsel for the parties and have gone through the record of the case. 5. The prosecution case rest upon the testimony of PW-1 Priksha Devi, an eye witness who has stated that Dwarki Devi came to her house and told that the respondents were threatening her and the respondents came there and slapped Dwarki Devi, who ran and fell down and they dragged her on the lintel and gave her kick and fist blows. Her sister Lajya Devi was present there and both of them, tried to rescue Dwarki Devi. They raised an alarm and on hearing the alarm, PW-4 Yash Pal, PW-5 Inder Singh and Bimal Kumar PW, came there, who rescued Dwarki Devi from the clutches of the respondents. All these witnesses have corroborated the statements of one another in regard to material particulars and their statements had also been believed by the learned trial Court. PW-3 Dr. 4 S.L. Verma had medically examined Dwarki Devi and found the following injuries on her person:- “1) Lacerated wound near left eye towards lateral side size 2 x 2 c.m. Skin deep stitches applied with A/S dressing. (Anti septic dressing) A/S. 2) Blackening of left eye upper and lower eye lids with oedema. 3) Haemotama occipital region towards right side size approximately 2 x 2 inches. (Bilateral) B/L 4) Bleeding through nostrils B/L. No bleeding through ears. Advised x-ray skull. AP and lateral views. 5) Bruising rights elbow over clavicle let arm and elbow.” 6. On conclusion of the trial, learned trial Court had found that the charge under Section 302 read with Section 34 I.P.C. was not made out and accordingly, the respondents were acquitted of the charge under the said Section, but were held guilty under Section 325 I.P.C. read with Section 34 I.P.C. The State has filed the appeal against the judgment of the Court of learned trial Court. But no particular infirmity was pointed out during the course of arguments, vide which it could be concluded that the respondents are liable to be held guilty for some serious offences and not under Section 325 I.P.C. The findings holding the respondents guilty under Section 325 read with Section 34 I.P.C. were challenged by the State, but no specific arguments were raised as to how the findings call for an interference and the respondents are liable for the offences under Section 302 or 304 I.P.C. The head injury which had led to the death of deceased was held by the learned trial Court that it cannot be ruled out by fall when the deceased ran towards her house and accordingly, the 5 findings of learned trial Court holding the respondents guilty under Section 325 read with Section 34 I.P.C. do not call for an interference by this Court, which have also not been challenged by the learned counsel for the respondents during the course of arguments. 7. The only point left for consideration is that in regard to the sentence imposed upon the respondents whether it calls for an interference by this Court or not. The submissions made by the learned counsel for the respondent No. 1 were that the respondent No. 1 was sentenced for three years, which period he has already undergone and as such, he has already suffered and, therefore, no case is made out for enhancement. On the other hand, learned Additional Advocate General for the State had argued that keeping in view the fact that the death had taken place of unfortunate woman in the hands of the respondents who are real sons due to dispute in regard to the property, he deserves to be punished severally and as such, sentence imposed deserves to be enhanced accordingly. 8. On the point of sentence, we may refer to the decision of Hon’ble Apex Court in State of M.P. Vs. Bala alias Bala Ram, (2005) 8 Supreme Court Cases 1. The observations made in Paras 12 to 15 are relevant, which may be reproduced as under:- “12. The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it. 13. The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilized 6 society does not revert to the days of “an eye for an eye and a tooth for a tooth”. Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted. 14. Even in the time of Kautilya, the need for awarding just punishment was recognized. According to Kautilya, “Whoever imposes severe punishment becomes repulsive to people, while he who awards mild punishment becomes contemptible. The ruler just with the rod is honoured. When deserved punishment is given, it endows the subjects with spiritual good, material well-being and pleasures of the senses.” (See Kautilyan Jurisprudence by V.K. Gupta under the head “Nature and Scope of Punishment”. This philosophy is woven into our statute and our jurisprudence and it is the duty of those who administer the law to bear this in mind. 15. This Court has on a number of occasions indicted that the punishment must fit the crime and that it is the duty of the court to impose a proper punishment depending on the degree of criminality and desirability for imposing such punishment. In Earabhadrappa v. State of Karnataka this Court observed: (SCC p. 341, para 14). “A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders.” In Rajendra Prasad v. State of U.P. Justice Sen stated: (SCC p. 708, para 195) “Judges are entitled to hold their own views, but it is the bounden duty of the court to impose a 7 proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders.” 9. We may refer to another decision of the Hon’ble Apex Court in Shailesh Javantbhai and another Vs. State of Gujarat and others, (2006) Supreme Court Cases 359. The observations made in Paras 9 to 11 are relevant, which may be reproduced as under:- “9. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread. 10. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent 8 times. Even now for a single grave infraction, drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. 11. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of the crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.” 10. It has been repeatedly laid down by the Apex Court that the sentence imposed upon the convicts have to be adequate keeping in view the offence in question and it should also serve as a notice to the society that such offences are not taken lightly and adequate punishment has to be provided to the convicts held guilty accordingly. It is true that the respondent had not been held guilty 9 under Section 302 or 304 I.P.C., but only under Section 325, but the offence is punishable upto 7 years. The death of the mother of the respondents had taken place due to the injuries given by them and due to fall also, but t the net result has been that the death of their own mother had taken place and they had also contributed to her death. They had no occasion to treat their mother in this manner and, therefore, they do not deserve any sympathy from the Court. We are of the opinion that respondent must get an opportunity to atone for the sin committed by him for causing injuries on the person of his own Janani (mother), while serving the sentence in the Jail and accordingly, we are of the opinion that the sentence imposed by the learned Court was in adequate and accordingly, respondent No. 1 is sentenced to rigorous imprisonment for a period of 5 years and to pay a fine of Rs.10,000/-. The amount of fine was payable to PW-6 Sehaj Ram as compensation under Section 357 Cr.P.C., as has been held by the learned trial Court and accordingly, the fine of Rs.10,000/- in case it is recovered shall be payable to PW-6 Sehaj Ram as compensation. The appeal is accordingly allowed and the sentence imposed is enhanced as detailed above. In default of payment of fine, respondent No. 1 shall suffer rigorous imprisonment for a period of six months. 11. In view of the above discussion, the appeal stands allowed accordingly. ( R.B. Misra ), Judge ( V.K. Ahuja ), June 02, 2010 Judge (BSS) 10