Khamhan Lal vs State Of Chhattisgarh

This revision under Section 397 read with section 401 of Code of Criminal Procedure, 1973 has been preferred against the judgment impugned dated 23.01.2009 passed by learned Additional Sessions Judge, Balod, Distirct Durg, (C.G.) in Criminal Appeal No. 91/2008 whereby the judgment dated 05.8.2008 passed by Judicial Magistrate First class, Balod, District - Durg (C.G.) in Criminal Case No. 2021/2005 convicting the applicant under section 304 (A) of India Penal Code, 1860 and sentencing him to undergo rigorous imprisonment for one year and fine of Rs. 1500/-, in default of payment of fine to further undergo rigorous imprisonment for three month, has been affirmed.

Facts of the case in brief are that, on 25.06.2005 at about 11.00 hours electric wire was passing through hanging near the badi of co-accused Punarad at village Matiya-B and the deceased Suraj aged 9 years came in contact with the electric wire and died. Further case of the prosecution is that applicant and other accused Punarad Thakur and Pusau Ram Goud had illegally connected wire from the electric pole and with help of sickle earthing wire was also connected. Deceased was taken to the hospital and Doctor sent the death intimation to Police Station- Balod upon which merg was registered and dehati nalishi was written. Post mortem on the body of the deceased was conducted and First Information was lodged. The spot panchnama was prepared and electric wire was seized from the spot. Information of flow of electric current was obtained from electricity board. After due investigation, charge sheet was filed against the applicant, accused Punarad Thakur and Pusau Ram Goud before JMFC, Balod.

Learned JMFC framed charges under section 304 (A) of the Indian Penal Code, 1860. The applicant and other accused persons denied the charge and pleaded innocence. The prosecution examined 14 witnesses and exhibited documents in order to bring home the guilt of applicant.

The learned JMFC after due appreciation of the evidence available on record, convicted and the sentenced the present applicant as mentioned above. However, learned JMFC acquitted the accused namely Punarad Thakur and Pusau Ram Goud of the charge levelled against them. On appeal being preferred by the present applicant, his conviction and sentence came to be affirmed by the judgment impugned. Hence this revision.

Counsel for the applicant submits that even if the entire case of the prosecution is taken as it is, the ingredients of Section 304 (A) of IPC are not established. He submits that learned JMFC did not appreciate the evidence in its proper perspective and the prosecution witnesses are not trustworthy and their statements do not inspire confidence. Alternatively, he submits that looking to the totality of the facts and circumstances of the case, the sentence awarded to the applicant may kindly be reduced to sentence already served/undergone and in lieu of that fine amount may be enhanced. In order to buttress his submission he would place on record that the offence was committed in the year 2005 and since then the applicant is still facing the prosecution. According to the counsel for the applicant, the applicant has not misused the liberty of suspension of his sentence by this court and that looking to the fact that 17 years have passed by since the commission of offence, some leniency may be shown to the applicant.

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that looking to the findings recorded the trial Court and subsequently confirmed by the lower Appellate Court by the judgment impugned as to the guilt of the applicant under Section 304 (A) of IPC, no interference is warranted. He further submits that as the prosecution was able to bring home the guilt of the applicant beyond reasonable doubt, mere long pendency of case would not automatically entitle the applicant to have the leniency, and therefore, no interference is called for with the judgment impugned and the revision is liable to be dismissed.

Heard counsel for the parties and perused the material available on record including the judgment impugned with utmost circumspection.

I shall deal with the submission of the learned counsel for the applicant with regard to appreciation of the evidence brought on record by the prosecution. Looking to the statement of PW-1 Thakur Ram, PW-2 Jagannath, PW-6 Dr. Shashi Claudius, PW-7 K.L. Sahu and PW-11 Gopiram, I am satisfied that the conviction of the applicant is well founded and does not require any interference in this revision. Nothing credible came out in lengthy cross examination of these witnesses which would make their testimony unreliable. Hence, on the above discussion, I do not find any substance in the submission of the learned counsel for the applicant that the courts below failed to appreciate the evidence to its proper perspective and reject the same.

Now I shall consider the submission of the learned counsel for the applicant with regard to reducing the sentence to already served/undergone by the applicant. It appears from the record that the applicant has not misused his liberty and the fine amount has also been deposited by him. It is to be seen that the applicant was about 32 years at the time of commission of offence who by now must be around 50 years of age and that for these long 17 years, he must have gone through the mental trauma of the fact that he may be sent back to prison in the event of dismissal of his revision. In the same breath, I am persuaded to mention herein few lines from the judgment of the Apx Court in case of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in AIR 1977 SC 1926, which are as under:

“Western jurisdiction and 'sociologists, from their own angle have struck a like note. Sir Samual Romilly, critical of the brutal penalties in the then Britain, said in 1817 : "The laws of England are written in blood". Alfieri has suggested : 'society prepares the crime, the criminal commits it. George Micodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti- social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : 'If you are going to have anything to do with the criminal courts, you should see for yourself the conditions under which prisoners serve their sentences.'”

10) It is true that the offence was committed in the year 2005 and the applicant faced trial since 2005. The revision is pending since 2009 and about 17 years have elapsed since the prosecution of applicant. Nothing is brought to the notice of this court that the freedom of the applicant is detrimental to society at large. Therefore, taking into consideration the totality of circumstances, while maintaining the conviction of the applicant under section 304 (A), the sentence of 1 year is reduced to sentence already served/undergone by the applicant. The fine amount of Rs.1500/- is enhanced to Rs.10000/-. The applicant is granted 3 months time to deposit the fine on failure applicant will undergo additional three months rigorous imprisonment.

11) The applicant is on bail, his bail bond is discharged. A copy of this order alongwith the records shall be sent back to the courts below for necessary compliance and information. The criminal revision thus partly allowed.