Sandeep Singh vs State of H.P.

Sanjay Karol, J.—These appeals, arising out of common judgment rendered by the trial Court, are being disposed of as such.

Appellants-convicts Sandeep Singh (in Cr.A No. 49/2009), Onkar Singh & Gurmeet Singh (in Cr.A No. 76/2009), Gurpal Singh (in Cr.A No. 82/2009) and Jagdish Kumar (in Cr.A No. 93/2009), hereinafter referred to as the accused, have assailed the judgment dated 25.2.2009/27.2.2009, passed by Additional Sessions Judge, Solan, Himachal Pradesh, in Sessions Trial No. 15-NL/7 of 2008, titled as State of Himachal Pradesh v. Jagdish Kumar and others, whereby they stand convicted for having committed an offence punishable under the provisions of Sections 395, 411, 450, 506 of the Indian Penal Code and Section 30 of the Arms Act, all read with Section 34 of the Indian Penal Code, and individually sentenced to serve similar sentence as under:

All the sentences have been ordered to run concurrently.

After the matter was heard for some time, under instructions, learned counsel for the appellants, chose not to press the appeals on merits. However, he prayed for reduction in the sentence, so imposed by the trial Court.

Mr. B.S. Parmar, learned Additional Advocate General, invites our attention to various documents and testimonies of the witnesses, establishing, beyond reasonable doubt, guilt of the accused. We are satisfied that the findings returned and the reasons assigned by the trial Court for convicting the accused of the charged offences.

With profit, we may extract the following passages on the question of sentencing from the Book: Sentencing Law and Practice, authored by C.K. Boyle and M.J. Allen:

"A problem which frequently confronts a sentence is that of establishing the factual basis of the offence on which to assess the appropriate sentence. As the sentence imposed should not be more severe than the offence merits, it is important that the facts of the offence are accurately established before sentence is passed. Where there has been a guilty plea, the factual basis of the offence may not be apparent, or the defendant may have pleaded guilty on the basis of his own view of the offence which may not coincide with that of the prosecution. Even in cases where there has been a full trial and a conviction, the factual basis of the offence may not be clear from the evidence and the jury verdict. For example, a verdict of guilty of manslaughter on an indictment for murder, could be arrived at in one of several ways. If the judge is to pass the appropriate sentence, he must be able to arrive at some conclusion as to the facts of the offence (see, e.g. Wheeler [1967] 1 W.L.R. 1531; Hudson (1979) 1 Cr.App.R.(S.) 130; Campbell [1980] Crim.L.R. 248). Similarly, where an offender is convicted of a strict liability offence, it is important to know whether he acted intentionally, recklessly, negligently or without fault (see Lester (1976) 63 Cr.App.R. 144). A body of case law is gradually building up in relation to how this factual basis may be established and what evidence may be taken into consideration in establishing it."

"Each criminal offence is characterised by typically recurring factual situations of varying degrees of gravity and, accordingly, the severity of the sentence to be imposed must reflect these degrees of wickedness (See Thomas, op.cit., p33). Ranges of sentence appropriate to each level of gravity have been developed over the years and can be identified from the decisions of the Court of Appeal. The maximum sentence available for a particular offence is reserved for the worst from that offence (Byrne (1975) 62 Cr.App.R. 159; Smith [1976] Crim.L.R. 468). Using their experience and knowledge of the decisions of other judges and of the Court of Appeal, particularly cases where the court seeks to give guidelines (See, e.g. Mohammed (1974) 60 Cr.App.R. 141; Taylor, Simons and Roberts [1977] 1 W.L.R. 612; Aramah (1982) 4 Cr.App.R.(S.) 407; Wood [1984] Crim.L.R. 305; Clarke (1982) 4 Cr.App.R.(S.) 197), judges must first allocate the offence to the appropriate sentence range. There is a normal bracket of terms of years within which the sentence for an offence is to be assessed. This bracket forms the starting point for determining the appropriate sentence. From this starting point the final sentence will be calculated by taking into account any aggravating factors which lead to a sentence towards the upper end of the bracket. If appropriate, the court will also consider any mitigating factors which may lead to the imposition of a lesser sentence. In some circumstances the court may consider it inappropriate to give a discount for mitigating circumstances in order to achieve some other penal objective such a deterrence, but the sentence must be proportionate to the facts of the case, and generally must not exceed that range for that type of offence."

We find that accused are young in age, not hardened criminal and it is their first offence. Even trial Court has taken note of such fact. The apex Court in Modi Ram and Lala Vs. The State of Madhya Pradesh, , has laid down certain principles on the issue of sentencing, which read as follows:

"4.................The accused persons found guilty may be hardened or professional criminals having taken to the life of crime since long, or they may have taken to crime only recently or may have committed the crime under the influence of bad company or again commission of a solitary offence may be due to provocative wrongful action seriously injuring the feelings and sentiments of the accused. Human nature being what it is men are at times moved by the impulse of the moment rather than by rational, cool, calculated estimate of the future good and evil. At such moments they are ordinarily inclined to be ready to face any future evil falling short of the inevitable. Keeping in view the broad object of punishment of criminals by Courts in all progressive civilised societies true dictates of justice seem to us to demand that all the attending relevant circumstances should be taken into account for determining the proper and just sentence. The sentence should bring home to the guilty party the consciousness that the offence committed by him was against his own interest as also against the interests of the society of which he happens to be a member. In considering the adequacy of the sentence which should neither be too severe nor to lenient the Court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and station in life of the offender......................"

Apex Court in Gurmukh Singh Vs. State of Haryana, , also laid down following factors, though not exhaustive, to be kept in mind at the time of granting sentence to the accused: (i) Motive or previous enmity; (ii) Whether the incident had taken place on the spur of the moment; (iii) intention/knowledge of the accused while inflicting the blow or injury; (iv) whether the death ensued instantaneously or the victim died after several days; (v) gravity, dimension and nature of injury; (vi) age and general health condition of the accused; (vii) whether the injury was caused without pre-meditation in a sudden fight; (viii) nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (ix) criminal background and adverse history of the accused; (x) whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (xi) number of other criminal cases pending against the accused; (xii) incident occurred within the family members or close relations; and (xiii) conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

In the instant case, we find that accused have no past history of violence or criminal record. It is their first offence. They have already spent more than 6 years 6 months in jail. There is nothing adverse qua their conduct either during trial or pendency of the appeal. Also, they have maintained good conduct. There is no other male member in their homes to look after their families and earn livelihood. They have a long way ahead in life and we find that they have shown remorse and repentance. As such, all the accused persons deserve leniency. Accordingly, we reduce their sentence of imprisonment from 10 years each and fine of Rs. 50,000/- each, and in default of payment of fine to further undergo imprisonment for a period of one year, to simple imprisonment for a period of 7 1/2 years and fine of Rs. 50,000/- each, and in default of payment of fine to further undergo imprisonment for a period of one year, only in relation to offence punishable under the provisions of Section 395 of the Indian Penal Code. There shall be no change in the sentences so awarded by the trial Court in relation to remaining offences. All the sentences shall run concurrently. Ordered accordingly.

Hence, with modification in the sentence part of judgment of the trial Court, all the appeals stand disposed of, so also pending application(s), if any.