High Court
Case Details
Court No. - 69 Case :- CRIMINAL APPEAL No. - 3595 of 2002 Appellant :- Radha Kishan Respondent :- State of U.P. Counsel for Appellant :- Rajesh Kr. Srivastava, Kamlesh Kumar Dwivedi Counsel for Respondent :- Govt. Advocate Hon'ble Saurabh Shyam Shamshery,J. 1. Heard Sri Kamlesh Kumar Dwivedi, learned counsel for appellant and learned A.G.A. for State. 2. This Criminal Appeal under Section 374 of Criminal Procedure Code (hereinafter referred to as "Cr.P.C.") has been filed by sole appellant, Radha Kishan, against judgment and order dated 26.08.2002 passed by Additional Sessions Judge, Fast Track Court No. 4, Agra in Session Trial No. 312 of 1995, convicting appellant under Section 308 IPC and sentencing him for five years rigorous imprisonment. 3. Learned counsel appearing for accused-appellant, at the outset, did not
Facts
challenge the findings recorded by Trial Court on conviction but submitted that punishment be reduced to the period already undergone since the occurrence was of 1990 and more than 32 years have already passed and the appeal is pending since 2002. It is further submitted that accused-appellant has already undergone about five months of sentence and presently he is in jail, in pursuance of non-bailable warrant issued due to non appearance of his Advocate before the Court.
Legal Reasoning
keeping in view the position of law as mentioned above and considering that the incident was happened about more than 30 years back; the occurrence took place due to dispute of making 'Naad'; the incident was occurred in spur of the moment; injured suffered injury on head (hematoma,) for which he remained in hospital for 20 days; no bony injury was detected; doctor has not stated that the injury was life threatening; and that the appellant has already undergone about five months of sentence and considering the judgment passed by Supreme Court in Roop Chand vs. State (NCT) of Delhi, 2020 (3) ALT (Crl.) 331 (A.P.) and Omanakkuttan and others vs. State of Kerala, 2021 (115) ACC 747, this Court is of the view that if the sentence awarded is reduced to the period already undergone and a reasonable compensation is awarded to the victim, the ends of justice would be served. 12. In view of above, the appeal is partly allowed. Judgment and order dated 26.08.2002 passed by Additional Sessions Judge, Fast Track Court No. 4, Agra in Session Trial No. 312 of 1995, is hereby modified to the extent that period of imprisonment is confined to the period already undergone, provided that Appellant-Radha Kishan shall pay Rs. 25,000/- to victim (injured witness, Prem Shanker, PW-2) within a period of four weeks after release from jail. In case compensation is not paid, as directed above, Appellant-Radha Kishan has to serve remaining sentence. 13. Appellant-Radha Kishan, who is in jail, shall be released forthwith, if not wanted/ required in any other matter. His bail bonds are cancelled and sureties discharged. 14. Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action. Order Date :- 9.3.2022 AK Digitally signed by AWADESH KUMAR Date: 2022.03.11 17:52:38 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
4. Learned A.G.A. appearing for State has vehemently opposed the prayer. He further submits that in case sentence is reduced to the period already undergone, the victim be paid compensation as provided under Section 357 Cr.P.C. 5. Heard learned counsel for parties and perused the record. Re: Principle of Sentencing 6. Indian legislature has not given any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in India. 7. Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt by High Courts and Trial Courts. "….. It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature peroxided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." (para 49 of Accused 'X' vs. State of Maharastra (2019) 7 SCC 1) "12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list). 13. Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach." (State of Madhya Pradesh vs. Udham and others (2019) 10 SCC 300) 8. It is also notable that "…. where minimum sentence if provided for, the Court cannot impose less than minimum sentence." (Para 8 of State of Madhya Pradhesh vs. Vikram Das (2019) 4 SCC 125) Re : Compensation 9. Section 357 Cr.P.C. provides power to the Court to award compensation to victim, which is in addition and not ancillary to other sentences. While granting just and proper compensation Court ought to have consider capacity of the accused for such payment as well as relevant factors such as medical expenses, loss of earning, pain and sufferings etc. 10. Supreme Court has reiterated need for proper exercise of power of granting compensation under Section 357 Cr.P.C. in Manohar Singh Vs. State of Rajasthan and others : (2015) 3 SCC 449 and in paras 11, 31 and 54 it is stated that: "11. …..Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357- A. While under section 357, financial capacity of the accused has to be kept in mind, Section 357-A under which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation." "31. The amount of compensation, observed this Court, was to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay." "54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision." 11. Considering the facts and circumstances of the present case as well as