State of Sikkim vs Buddhiman Subba

Sonam Phintso Wangdi, J.

1(i). This Appeal has been preferred under Section 377 of the Code of Criminal Procedure, 1973, to assail the order of sentence dated 31-03-2014 of the Special Judge (P.C. Act), South and West Sikkim at Namchi, in Sessions Trial (Vig.) Case No. 03 of 2004, by which the Respondent-Accused had been awarded the following sentence:--

"For the offence under Section 409 of the IPC, 1860 the convict is sentenced to undergo Simple Imprisonment for a period of One Year and Five Months(already undergone) and to pay a fine of Rs. 1,00,000/- (Rupees One lakh) only. In default to pay the said amount of fine he shall undergo further Simple Imprisonment for a period of six months;

For the offence under Section 418 of the IPC, 1860 he is sentenced to undergo Simple Imprisonment for a period of One Year and Five Months(already undergone) and to pay a fine of Rs. 1,00,000/- (Rupees One lakh) only. In default to pay the said amount of fine he shall undergo further Simple Imprisonment for a period of six months;

For the offence under Section 420 of the IPC, 1860 he is sentenced to undergo Simple Imprisonment for a period of One Year and Five Months(already undergone) and to pay a fine of Rs. 1,00,000/- (Rupees One lakh) only. In default to pay the said amount of fine he shall undergo further Simple Imprisonment for a period of six months;

For the offence under Section 468 of the IPC, 1860 he is sentenced to undergo Simple Imprisonment for a period of One Year and Five Months(already undergone) and to pay a fine of Rs. 1,00,000/- (Rupees One lakh) only. In default to pay the said amount of fine he shall undergo further Simple Imprisonment for a period of six months; and

For the offence under Section 13(2)/(1)(c) of the PC Act, 1988 he is sentenced to undergo Simple Imprisonment for a period of One Year and Five Months(already undergone) and to pay a fine of Rs. 1,00,000/- (Rupees One lakh) only. In default to pay the said amount of fine he shall undergo further Simple Imprisonment for a period of six months;

The above-mentioned period(s) of imprisonment shall run concurrently. Period of imprisonment already undergone by the convict in connection with the present case shall be set-off against the above-mentioned period. The amount(s) of fine shall be paid within two months from the date of this order which shall then be made over to the State Bank of Sikkim Head Office at Gangtok as compensation."

(ii) As would appear from the above, the sentence on imprisonment were directed to be undergone concurrently against which the period of imprisonment already undergone by the Respondent-Accused was set off but, maintaining the sentence on fine which were directed to be paid within two months from the date of the order of sentence.

This Appeal, as noted earlier, being against the order of sentence, it would not be necessary to deal with the facts of the case and is confined only to the question germane for the purpose of its disposal.

3(i). Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, appearing on behalf of the Appellant-State, submits that considering the gravity of the offence, the sentence of imprisonment were too lenient that was made worse when those were made to run concurrently as, by implication, it would mean that for all the five offences, the Respondent-Accused would have to undergo imprisonment of only one year and five months which also would not be required to be undergone by him but would go scot free without facing even a day''s imprisonment, the period of custody during the investigation and trial having been set off. He strongly argued that imposing such sentence considering the gravity of the offence would send a wrong signal to the society and cause immense harm to the justice delivery system.

(ii) He has relied upon State of Haryana v. Prabhu : 1987 (Supp) SCC 177 , State of Karnataka Vs. Krishna alias Raju, (1987) ACJ 443 : AIR 1987 SC 861 : (1987) CriLJ 776 : (1987) 1 Crimes 397 : (1987) 1 JT 217 : (1987) 92 PLR 296 : (1987) 1 SCALE 135 : (1987) 1 SCC 538 : (1987) 1 SCR 1103 : (1987) 1 UJ 354 and Sham Sunder Vs. Puran and another, AIR 1991 SC 8 : (1990) CriLJ 2600 : (1991) 1 Crimes 165 : (1990) 4 JT 165 : (1988) 1 SCALE 436 : (1990) 4 SCC 731 : (1990) 1 SCR 662 Supp , in support of his contention.

4(i). Mr. N. Rai, Learned Senior Counsel, appearing on behalf of the Respondent-Accused, on the other hand, would submit that the sentence passed by the Trial Court was in due consideration of the various circumstances considered to be mitigating in favour of the Respondent-Accused. It was submitted that on account of the charge against him the Respondent-Accused had lost his service and also had undergone incarceration of ten years, apart from the custody of about eighteen months which he had to undergo during the investigation of the case. It was submitted that he is the sole person to take care of domestic requirements of his family which at the moment consisted of two children as his wife had left him due to the present case.

(ii) Several decisions of the Apex Court were cited at the bar to demonstrate that in similar circumstances lighter sentence were upheld. Amongst those decisions are S. Natarajan Vs. State of Mysore (Special Police Establishment), AIR 1980 SC 639 : (1979) 4 SCC 542 and Vishnu Datta Mishra Vs. State of Madhya Pradesh, AIR 1979 SC 825 : (1979) CriLJ 565 : (1979) 4 SCC 382 : (1979) SCC(Cri) 993 .

5(i). Heard the Learned Counsel for the parties and considered the various materials available on the record. There is no doubt of the fact that the offences charged against the Respondent-Accused are of serious nature being under Sections 409, 418, 420, 468 of the Indian Penal Code, 1860 and Sections 13(2) read with 13(1)(c) of the Prevention of Corruption Act, 1988.

(ii) From the records, it appears that there were at least two more persons who were co-accused with the Respondent, namely, Amber Bahadur Gurung and Saralmit Lepcha but, during the course of the trial they were made approvers leaving the Respondent as the sole accused to face the trial. Although no Appeal was preferred by the Respondent-Accused against the order by which they were permitted to act as approvers, in my view, this would still be a factor that would be relevant for consideration while dealing with this Appeal. The very fact that there were co-accused against whom prosecution was desisted, would unmistakably imply that the Respondent-Accused was not the lone person involved in the commission of the offence.

(iii) In Sham Sunder (supra) it has been laid down that the Court in fixing the punishment for any particular crime should take into account the nature of the offence but, at the same time it was also held that the circumstances in which it was committed and the degree of deliberation shown by the offender should also be taken note of. We may reproduce below the relevant portion of paragraph 8 of the judgment:--

"8. ................................ The court in fixing the punishment for any particular crime should take into consideration the nature of the offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of the offence. The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice. We are of opinion that to meet the ends of justice, the sentence has to be enhanced."

(iv) Again the case of Prabhu (supra) it has also been held that "in dealing with a sentence which has been made the subject of an appeal, the court will interfere with a sentence only where it is erroneous in principle".

6(i). The relevant portion of the order of the Trial Court preceding the sentence reads as under:--

"6. The offences involved cannot be viewed lightly. At the same time the fact that the convict has been facing the trial since the last ten years cannot be lost sight of. There is no dispute at the Bar that this is the first time he has come in conflict with law and he has no previous bad antecedents. It is also noted that he suffered incarceration for more than seventeen months in connection with the present case. As submitted, he is the only earning member of his family which also consists of his old aged mother who is totally dependant upon him after the demise of his father. ..................................."

(ii) As would appear from a bare reading of the above, the Special Judge has taken into consideration the principle underlying passing of the sentence which, in my view, do not appear to be in conflict but rather confined within the permissible limits prescribed by the respective provisions of the law. The records show that the Respondent-Accused had to suffer incarceration of over ten years during the course of the investigation and trial which, as on today is about thirteen years. He also had to undergo custody for about eighteen months which, of course, has been set off against the sentence but, nevertheless the trauma and the hardship suffered by the Respondent-Accused would not be obliterated. The Respondent-Accused is now 54 years old having lost his job and his spouse as a consequence of this case. Apart from the fact that he is the sole person to take care of the family members, particularly, his two children who are his dependents. These appear to be factors that guided the Trial Court to pass the impugned sentence which, in my view, cannot said to be erroneous in principle.

(iii) Under these circumstances and for the reasons stated before, I do not deem it appropriate to interfere with the sentence.

In the result, the Appeal is dismissed.

No order as to costs.

A copy of this judgment and the original case records be transmitted to the Court of the Special Judge (P.C. Act), South Sikkim at Namchi, for its record.