i^ W(^ HIGH COURT OF CHHATTISGARH, BILASPUR Single Bench: Hon'ble Shri Sunil Kuinar Sinha, J. Crjminal Appeal No. 339 of 1995 Kapil (dead) & Others Vs.: StateofM.P. (Now State of Chhattisgarh) JU&GMENT P.ost for Judgment : ^/09/2011 Sd/- SunilKumarSinha Judge < / •*^. HIGH COURT OF CHHATTISGARH. BILASPUR Single Bench: Hon'ble Shri Suiiil Kunaar Sinha, J. ^ APPELLANTS Criminal Apoeal No. 339 of 1995 1 ICapil S/o Gokaran Sataiami, aged 65 years (Dead- Naine deleted) 2 Gajendra S/o Kapil Satnami, aged 32 years 3 Shankar S/o Bhanuprasad Satnami, aged 50 years 4 Bande S/o Bhanu Prasad Satnami, aged about 55 years 5 Ishwar S/o Kapil Satnarai, aged abo.ut 27 years 6 Chande. S/o Bande Satnami, aged abouf 38 years 7 Mohit S/o Shankar Satnami, aged 28 years All R/o Gram Gatapa.ar, P.S. , Pandariya, District Bilaspur UKn Versiis RESPONDENT StateofM.P. (Now S.tate of Chhattisgarh) (Criminal Appeal under Section 374 (2) of The Code of Criminal Procedure, 1973) -. / •*ti- Appearance: '. Mr. Prafull Bharat, Advocate for the appellants. Mr. R.R. Sinha, Panel Lawyer for the State. / cl^ Criminal Aopeal No. 339 of 1995 tiNte:b JUDGMENT (06.09.2011) (1) This appeal is directed against the judgment dated 28th of February, 1995 passed ip Session Trial No. 224/88 by the Fifth Additional Sessions Judge, Bilaspur. By fhe impugned judgment, the appellants have been convicted u/s 436 IPC and sentenced to undergo R.I. for 3 years. Appellant- Gajendra has been further convicted u/s 326 IPC and sentenced to undergo R.I. for 3 years with a direction to run the sentences concurrently. (2) Appellant No.l - Kapil died during the pendency of the appeal on 17.8.97, fherefore, his name has been deleted from the cause-title vide order dated 27.6.2011, and the appeal filed on behalf of appellant No. 1 - Kapil stands abated. The facts, briefly stated, are as under:- On 13.3.88 at about 1.00 p.m. the appellants, on account of some previous animosity, chased com.plainant- Chaitram (PW-1) and his wife and when they went inside their house, the appellants tried to put their house on fire. When Chaitram (PW-1) came out from his house, appellant- Gajendra assaulted him by a tabbal which caused fracture on his nasal bone. ^~>, sTfce incident was witnessed by wife of fhe coinplainant 'namely Batasiya Bai.^PW-2). Complainant- Chaitram was sent for his medical examination and was examined by Dr. A.K. Jaiswal (PW-10) who found a cut injury on the nasal bone and advised for X-ray examination. The X-ray exam.ination was conducted by Dr. C.S. Sharma (PW-7) who , found fracture .on the nasal bone. The medical examination ^ W iiiEs'itgi »i:»'IS|ltl», Criminal Appeal No. 339 of 1995 report of coinplainant- Chaitram is Ex.-P/24. X-ray examination report is Ex.-P/12 and the X-ray plate is Ex.- P/13. The learned Session- Judge relied on the testimonies of Chaitram. (PW-1) and Batasiya Bai (PW-2) and convicted and sentenced the appellants as aforementioned. (5) Mr. Prafull Bharat, learhed counsel appearing on behalf of the appellants, has not argued on the merits of the matter. He has only argued on sentences awarded to the appellants. His submission was that the incident took place in the year 1988 and a long time has elapsed ;after the incident; the appellants have undergone agony of the prosecution for more than 23 years and one of the appellant has died, therefore, looking to the facts and circum.stance of the case, the appellants may not be sent to jail once again and their jail sentences may be reduced to the period already undergone by them. He relied on the 2 decisions of the Supreme Court i.e. Aher Ram.a Gova and others -Vs- State of Oufarat,^AIR^97^SC 1567 and Georae Pon Paul -Vs- Kanaaalet & Qrs, 2009AIR^CW_67Q1. ? (6) On the pther hand, Mr'. R.R. Sinha, learned Panel Lawyer >. / - appe.aring on.behalf of the State/'opposed these arguments and '*'&- supported the judgment passed by the Session Court. (7) I have heard learned counsel for the parties at length and have. also perused the records of the sessions case. 5M Criminal Appeal No. 339 of 1995 ^iEs^tSgS On appreciation of the evidence of Chaitram (PW-1) and Batasiya Bai (PW-2), it is established that on the fateful day i.e. 13.3.88, the appellants went to the house of complainant- Chaitram and they tried to put a portion of house on fire. Though there is no evidence (in.forra ot panchnama) to show as to what was the daniage caused to the house, but there is sufficient evidence to hold that the appellants committed mischief by fire which is punishable u/s 436 IPC. There is also ample evidence to show that when complainant- Chaitrain (PW-1) came out from his house, he was attacked by appellant- Gajendra by a pharsa and the complainant sustained fracture of nasal bone. Therefore, there is no infirmity in the fin^irigs recorded by the Session Court th&t the appellants were liable for punishment u/s 436 IPC and appellant- Gajendra was further liable for punishment u/s 326 IPC. riiK'lta (9) Now I shall consider the argument relating to adequacy of the sentences awarded to the appellants. (10) In Aher Rama Gova (supra), the offence was punishable u/s 32&-/149 IPC and rigorous imprisonment for 5 years w^s awarded to the appellanfs-by the High Court. After 10 years, the Supreme •• / ' Court observed vide Para - 3 as ufader:- •ts.. "3. Lastly,.it was urged by Mr. Mulla that the ends of justice do not require that the appellants should be sent back to jail for an occurrence which has"taken place ten years ago and after they had been on bail for a pretty "long tirae. Having regard to the peculiar circunistances of this case, we feel '^ l-ita^SSE.IStjtii Criminal Appeal No. 339 of 1995 that it will not be conductive in the interests of justice to send the appellants back to jail and the ends ofjustice would be fully met if P.W. 3 Mini Bai the widow of Kana Naran is sufficiently compensated. For these reasons therefore, we would, while upholding the conviction of -the appellants reduce the sentence to the period already served. In lieu of the sentenee remitted we shall impose a fine of Rs.3,000 on each of the appellants, in default one year's rigorous imprisonment." (11) In George Pon Paul (supra), the appellant was convicted u/ss 326 8s 452 IPC and sentenced to remain in confinement till rising of the Court and with fine sentence also. The said order was challenged before the High Court. The High Court in revision petition, sentenced the . appellant to undergo rigorous imprisonment for 2 years in addition to the fine imposed. While disposing the appeal, the Supreme Court observed in Paras- 4, 5 8s 6 as under:- "4. The only question that remains is whether the custodial, sentence as was imposed by the trial Court was adequate or not i.e. Gonfinement till rising of the Court. 5. It appears from record that the fine amount has been deposited and the amount which was directed to be paid to PW-2 has already been paid. 6. Considering this fact and the long pass^ge of time, it would appropriate to pestrict the period of sentence to the period •already undergone. ^ The appeals stand -disposed of." ^"-^*.. (12) So far as question of awardingjail sentences are concerned, it is important to keep in mind the "doctrine ofjust deserf which is foundation of a crimihal sentence which is to be awarded for a Criminal Appeal No. 339 of 1995 W:aigs'iag punishment. What one really deserves for punishment for having committed a crime is the underlying principle. The punishment must not be disproportionately great is a corollary of "just desert' which is governed by the. same principle which says that there cannot be a punishment without guilt and the basic eleraent behind the principle is the proportion between crime and punishment. However, the determination of the quantum of punishment would always depend upon the ancillary factors which further would be subject to the statutory obligations specifically provided by law in force. (13) If we apply the abqve principles in the facts and circumstances of the case in hand, it would appear that the present incident occurred on account of quarrel which took place between the persons of same village. It was an incident of 13.3.88. The appellants were taken into .custody and they remained in jail for 9 days and thereafter the matter was committed to the Court of Session on 14.9.88 and the judgment in the session trial was passed on 28.2.95. The appellants were throughout on bail during the trial and they are also on bail during the pendency of this app^al. The appellants, thus, have faced the prosecution for about more than 23'/years. In the above facts and circumstances of the >. / - cas,e;i do no-t feel it appropsiate to send the appellants once again to j,ail, and I am of the 'view that the ends of justice would be served if the jail-sentences awarded" to the appellants are reduced \ ... " ~ . • ~ /./ . •/ ' ^ is"i®!sS|ii, ^ Criminal Appeal No. 339 of 1995 to the period already undergone and in addition to that fine sentences are also imposed against them. (14) In the result, the appeal is partly allowed. The conviction of the appellants u/ss 326 SE 436 IPC are confirrued. However, the jail sentences awarded to them are reduced to the period already undergone. In addition to this, a fine of Rs.3,000/- is imposed upon appellant- Gajendra u/s 326 and line of Rs.1,000/- each is also imposed upon all the appellants u/s 436 IPC. The appellants are granted 3 months time to deposit the fine amount(s), failing which, they shall be liable to undergo S.I. for 3 months each. Out of the entire fine amount, a sum of Rs.5,000/- shall be paid to the victim/complainant- Chaitram (PW-1) as compensation. Sd/- Sunil Kumar Sinha Judge B^ Sl vatti (SSIi: '• / ^ti-