The Allahabad High Court has upheld the life imprisonment sentence of five convicts in connection with a 2003 murder case and observed that the benefit provided under Section 57 IPC cannot be extended to appellants merely because they are languishing in jail for 18 years.
The Division Bench of Justice Sunita Agarwal and Justice Om Prakash-VII passed this order while hearing a Criminal Appeal filed by Ahsan And Others.
The Criminal Appeal has been preferred by appellants Ahsan, Naushey, Ahmad Hasan, Abdul Hasan and Sher Ali against the order dated April 13, 2006 passed by Sessions Judge, Rampur in Sessions Trial (State Versus Ahsan & others) whereby accused-appellants were convicted for the offence under sections 147, 148, 302/149 IPC and sentenced for offence under section 302/149 IPC to imprisonment for life and a fine of Rs 15,000. Appellants were also directed to undergo one year additional RI in default of payment of fine. They were also sentenced for the offence under section 147 IPC to undergo one year (rigorous imprisonment) RI and for the offence under Section 148 IPC to undergo two years RI.
Further, in Sessions Trial (State Versus Abdul Hasan), appellant Abdul Hasan was convicted and sentenced for the offence under section 25 Arms Act to undergo two years RI with a fine of Rs 5000 and in default of payment of fine, he has to further undergo three months RI. Further, in Sessions Trial (State Versus Sher Ali), appellant Sher Ali was convicted and sentenced for the offence under section 25 Arms Act to undergo two years RI with a fine of Rs 5000 and in default of payment of fine, he has to further undergo three months RI. All the sentences were directed to run concurrently.
According to the prosecution on December 29, 2003, informant Shareef Ahmad, son of Chotey, moved a written report scribed by Irshad mentioning therein that on December 29, 2003, informant’s cousin brother Abrar (deceased) along with Karamat was coming back to Rampur on a motorcycle and on another motorcycle, informant Afsar and Ibrahim were following them. Due to muddy terrain, they slowed down their motorcycles as and when they reached the fields of Navi Ahmad. At the same time, at about 8:30 AM, from the shrubs standing on the East side, Ahsan, Naushey, Ahmad Hasan, Abdul Hasan and Sher Ali, who belong to same village, armed with firearms, appeared in front of them, dragged Abrar from the motorcycle and with common intention, all the accused persons fired upon him with their respective firearms with intention to kill, which resulted in the death of Abrar on the spot.
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When the informant’s side raised the alarm, the accused persons ran away from the sugarcane field situated on the west side. Incident is of Jungle Kishanpur. Informant’s side and the accused persons were having an old enmity and there was litigation pending between them.
On the basis of a written report on the same day i.e 29.12.2003 at 9:30 A.M, Chik First Information Report at Crime under Sections 147, 148, 149, 302 IPC was registered against accused-persons.
After lodging the first information report, police rushed to the spot, prepared an inquest report and after sealing the dead body on the spot sent the same for postmortem along with necessary papers. Police had also recovered 3 empty cartridges of 12 bore and 1 empty cartridge of 315 bore from the place of incident.
During investigation, accused Abdul Hasan, Naushey and Sher Ali were arrested. On the evidence of accused Abdul Hasan, 1 live cartridge of 315 bore with country made pistol used in the crime was recovered on 6.1.20004. On the same day, 2 live cartridges of 12 bore along with a country made pistol used in the crime was also recovered by the police on pointing out the accused Sher Ali.
On the basis of this recovery memo, a first information report was lodged at police station Kotwali, Rampur against accused Abdul Hasan at crime under section 25 Arms Act and against accused Sher Ali at crime under section 25 Arms Act.
Counsel for appellants castigating prosecution evidence and finding recorded by Trial Court in impugned judgment and order has addressed the Court that prosecution was not able to prove its case beyond reasonable doubt. First information report said to have been lodged in the matter is antedated document. Presence of the scribe of the written report at the time of preparing the written report at the place of occurrence is improbable and unbelievable. He was a resident of another village. He has not clearly explained the reason for which he had gone to the place of occurrence. It was next argued that a special report was not sent immediately after the registration of the F.I.R.
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On the other hand, AGA appearing for the State submitted that the written report was prepared at the place of occurrence by the Scriber Irshad. Presence of the scriber at the place of occurrence is not improbable and unbelievable. Referring to the inquest report and other papers prepared along with it, it was further argued that all the aforesaid documents were prepared at the place of occurrence itself.
The Court observed that,
Findings arrived at by the trial court in the impugned judgment and order are that the first information report is not ante-timed document. Presence of the scribe at the time of preparing the written report has been proved by the prosecution beyond reasonable doubt. Non-sending of a special report immediately after the incident by the police concerned is not sufficient to disbelieve the prosecution evidence. Prosecution was able to prove the date, time and place of the incident, which is also supported by the statement of Karamat. Presence of eye account witnesses at the place of occurrence at the time of incident is not doubtful. Incident took place before them. Death was done to death on the date, time and place of occurrence by the appellants opening indiscriminate fire upon him. Medical evidence fully supports the oral version. Recovery of country made pistols has also been proved by the prosecution beyond reasonable doubt.
In this matter, prosecution for the offence under section 25 Arms Act has also been started after obtaining sanction / permission from the then District Magistrate. Thus, the Court is of the view that prosecution was able to prove its case against the appellants Abdul Hassan and Sher Ali for the offence under section 25 Arms Act beyond reasonable doubt. Finding arrived at by the trial court in this respect is not interfereable.
Trial court has convicted and sentenced the appellants for the offence under sections 147, 148, 302/149 IPC. Since appellants were five in numbers, they committed the offence in furtherance of common object forming an unlawful assembly armed with deadly weapons. Thus, conviction and sentence of the appellants for the offence under section 147 IPC cannot be termed to be illegal or perverse. Similarly, all the appellants were armed with deadly weapons, thus their conviction and sentence for the offence under section 148 IPC is also not interfereable. All the appellants have actively participated in commission of the crime in furtherance of common object of an unlawful assembly formed by them, thus conviction and sentence for the offence under section 302 / 149 IPC is also in accordance with law and it does not require any interference, the Court said.
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The Court stated that, as regards sentence imposed upon the appellants is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding a sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
The Court further said that, it is a settled legal position that appropriate sentences should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself of the right of victim, and be it said, on certain occasions a person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such a sentence which reflects the conscience of society and the sentencing process has to be stern where it should be. 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 society to which criminal and victim belong.
In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that punishment should be proportionate to gravity of offence.
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Appellants were convicted and sentenced for the offence under section 302 / 149 IPC for life imprisonment and a fine of Rs 15000/- and in default of payment of fine, one year rigorous imprisonment. Hence in view of the Court, sentence imposed upon the appellants is neither exorbitant nor excessive and same is adequate and also proportionate to gravity of offence. They have been awarded minimum sentences for the offence under Section 302 / 149 IPC.
The Court observed,
Considering entire aspects of the matter and looking to the circumstances, under which offence has been committed, we are of the view that impugned judgment and order passed by trial court is well thought and well discussed and trial court has rightly held that prosecution has succeeded to prove guilt of accused-appellants beyond reasonable doubt. As such, impugned judgment and order passed by trial court is liable to be upheld.
So far as submission raised on behalf of the appellants to release the appellants taking recourse to the Section 57 IPC is concerned, looking to the manner in which offence was committed by the appellants, the Court is the view that benefit provided under section 57 IPC cannot be extended to the appellants merely on this ground that they are languishing in jail in this matter for about 18 years. It is not a fit case to release the appellants on the aforesaid ground. Thus submission raised by counsel for the appellants on this ground is also not acceptable.
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Thus Appeal filed by the appellants, for the reason discussed here-in-above, finding no merit, is liable to be dismissed and impugned judgment and order convicting and sentencing accused-appellants is liable to be confirmed.
“Resultantly, Appeal is dismissed. The order dated 13.04.2006 passed by Sessions Judge, Rampur in Sessions Trial (State Versus Ahsan & others) convicting and sentencing all the appellants for the offence under sections 147, 148, 302/149 IPC, in Sessions Trial (State Versus Abdul Hasan) convicting and sentencing the appellant Abdul Hasan for the offence under section 25 Arms Act and in Sessions Trial (State Versus Sher Ali) convicting and sentencing the appellant Sher Ali for the offence under section 25 Arms Act is upheld. Appellants are in jail. They shall serve out the sentences awarded by the trial court until and unless remission is granted by the competent Authority,”
-the Court ordered.