Skip to content


State of Gujarat Vs. Raghu @ Raghavbhai Vashrambhai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Case NumberCriminal Appeal No. 457 of 1991
Judge
Reported in(2003)1GLR205
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 154(2), 173, 235(2), 378 and 392; Indian Penal Code (IPC), 1860 - Sections 34, 299, 300, 302 and 304; Evidence Act, 1872 - Sections 3 and 155; Constitution of India - Articles 39A and 40
AppellantState of Gujarat
RespondentRaghu @ Raghavbhai Vashrambhai and ors.
Appellant Advocate A.D. Oza, G.P.
Respondent Advocate Yogesh S. Lakhani, Adv. for Respondent Nos. 1 and 2 (Ori. accused Nos. 1 and 2) and; B.B. Naik, Adv.
Cases ReferredKalinder Bharik v. State of H. P.
Excerpt:
- - : 99. pursuant to the direction and order recorded on the last occasion, like that on 25-1-2002, in terms of the provisions of section 235(2) of cr. it is also mentioned that the business is now-a-days not going on well. it is a statutory incumbency upon the court to provide an opportunity of hearing to the accused, on the question of sentence unless the court proposes to release the accused on good conduct or after admonition as provided under section 360 of the cr. 108. a proper sentence should be the outcome of various circumstances and many factors like nature of offence, circumstances extenuating or aggravating the evidence, prior criminal court record and any untoward event or even during the commencement till the conclusion of the trial, age, employment, earning, family.....order(a) trial sessionsagainst accused no. 1acquittal from all chargescourt judge, arareli-dist.against accused no. 2acquittal 'against accused no. 3acquittal '(b) division mr. r. k. bench abichandani, j.against accused no. 1conviction and sentence under sec. 302 read with 34of i.p.c.against accused no. 2conviction and sentence under sec. 302 of i.p.c.against accused no. 3conviction and sentence under sec. 302 read with 34of i.p.c.mr. k. r.against all vyas, j.acquittal from all charges25-1-2002(j. n. bhatt, j.)since the accused persons are not present today and they are required to be heard on the question of quantum of punishment as mandated in law under sec. 235(2) cr.p.c., request made by the learned advocates appearing for the accused persons for adjournment for the purpose of hearing.....
Judgment:
ORDER

(a) Trial Sessions

Against accused No. 1

Acquittal from all charges

Court Judge, Arareli-Dist.

Against accused No. 2

Acquittal '

Against accused No. 3

Acquittal '

(b) Division Mr. R. K. Bench Abichandani, J.

Against accused No. 1

Conviction and sentence under Sec. 302 read with 34of I.P.C.

Against accused No. 2

Conviction and sentence under Sec. 302 of I.P.C.

Against accused No. 3

Conviction and sentence under Sec. 302 read with 34of I.P.C.

Mr. K. R.

Against All Vyas, J.

Acquittal from all charges

25-1-2002

(J. N. Bhatt, J.)

Since the accused persons are not present today and they are required to be heard on the question of quantum of punishment as mandated in law under Sec. 235(2) Cr.P.C., request made by the learned Advocates appearing for the accused persons for adjournment for the purpose of hearing the accused persons on the quantum of punishment is accepted and the matter is now posted on 8th February 2002, as requested.

25-1-2002 (J. N. Bhatt, J.)

Design And Desideratum Of Hearing As Mandated Under Section 235(2) Of CR.P.C.:

99. Pursuant to the direction and order recorded on the last occasion, like that on 25-1-2002, in terms of the provisions of Section 235(2) of Cr.P.C., the accused persons are present today in the Court. Learned Advocates appearing for the accused persons are also present. Learned Public Prosecutor Mr. Oza is also present. The accused persons are heard as mandated by Section 235(2) of Cr.P.C., in person. Learned Advocates for the accused have also offered their submissions and learned Public Prosecutor, Mr. Oza has also made submissions, on the quantum of punishment.

99.1 The accused persons have, in substance, submitted that in view of the long intervening period of more than 13 years from the date of incident and the fact that any further period of imprisonment will operate as an insulation from the societal environments which will not only affect them but also will equally affect adversely to the interest of the entire family, and therefore, the period undergone be treated as sufficient. The learned Advocates appearing for the accused has stated that written submissions will also be submitted but on the next date.

99.2 A-1, Raghu @ Raghav Vasram, has stated before this Court that he is suffering from chronic diabetes and hyper-tension since long and he has already become victim of two cardiac arrests, one prior to the incident and last one during the course of the period as an under-trial prisoner. Of course, no medical evidence is tendered by him before this Court. However, learned Advocate appearing for the accused has desired to wait for a period of one week or so to enable the accused to trace and submit old medical record. A-1, has already undergone imprisonment as an under-trial for a spell of 22 months. It is also mentioned that the business is now-a-days not going on well. The tractor and transport work is also not happily done. A-2, has also, stated before this Court that he was young man of 26 years when the unfortunate incident occurred and he was an under-trial prisoner till the acquittal, for a total spell of 32 months. So is the submission of A-3 but his period as an under-trial prisoner was for 23 months, as stated by him.

99.3 A-2 and A-3 were young persons at the relevant time. A-3, Sanjay has further stated that he got married two years after the incident and he has two minor sons aged about 2 years and 4 years respectively. He has stated that he has also to look after the welfare and interest of his parents to an extent as one of the four sons of his parents. Therefore, the submission on behalf of the accused persons is also that the period undergone by each one of them may be taken and treated as sufficient in the light of the facts and circumstances and the nature and type of offence and the lapse of more than 13 years. However, learned Advocates for the accused, fairly, stated that the amount of fine, as may be deemed reasonable, may be imposed, and reasonable time may be given for payment of fine and they have no objection if the fine amount is directed to be paid to the dependents of the deceased.

99.4 Learned Public Prosecutor Mr. Oza has submitted that insofar as A-2 is concerned, he cannot be leniently dealt with and he deserves exemplary punishment and maximum punishment as provided in Section 304 Part II, may be awarded to him, in view of the fact that he, successively, gave three knife blows on the person of the deceased. Insofar as accused Nos. 1 and 3 are concerned, their complicity is abetment to the offence committed by A-2, Ghana, and therefore, reasonable view may be taken and exemplary and higher amount of fine may be imposed so as to award compensation to young widow and minor child.

100. The provision of Section 235(2) in Cr. P. C. has added a much-needed dimension in the Indian Criminal Jurisprudence. The object and design of such provision is to give a fresh opportunity to the convicted person, to bring to the notice of the concerned Court such circumstances as may help the Court in awarding appropriate sentence, having regard to the personal, financial, social and other circumstances of the case. Since acquittal was recorded by the trial Court, obviously, there was no any question of exercise of such process.

101. Again, presumbly since one of the differing Brother Judges of this Court of a Division Bench, upon hearing acquittal appeal quashing acquittal awarded minimum sentence under Section 302 of the I. P. Code, the statutory provision of Section 235(2) was not invoked and the accused persons were not afforded with an opportunity of hearing on the quantum of sentence.

102. However, since this Court has recorded conviction under Section 304 Part II read with Sections 109 and 114 of the I. P. Code, the discretion in awarding punishment upto the period of 10 years or fine or with both thereunder, is required to be exercised, and therefore, accused persons were required to be afforded with an opportunity of hearing as mandated under Section 235(2) of the Cr.P.C.

103. There is a purpose and policy and design and desideratum in introducing Section 235(2) in Cr.P.C., 1973. It is, therefore, imperative, for this Court to give an opportunity to the accused-persons before reaching the conclusion on the quantum of punishment. Hearing on the question of quantum of punishment is not an empty formality. It is a statutory incumbency upon the Court to provide an opportunity of hearing to the accused, on the question of sentence unless the Court proposes to release the accused on good conduct or after admonition as provided under Section 360 of the Cr.P.C. So, is not the case in the present appeal in view of the undoubtable evidence of aforesaid complicity against the accused persons.

104. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and reasons to be heard on the question and considerations of sentence bearing upon the sentencing process. The social compulsion, the pressure of poverty, the retributive needs, instinct of the extralegal remedy due to a sense of being wronged, the lack of means to be educated and the difficult art of honest living, the parentage, the heredity, personal and social environments; all these can and obviously similar other conditions, in a given case, can hopefully and legitimately tilt the skill and the propriety of the fixity of appropriate sentence. It is, therefore, rightly, said the mandate of Section 235(2) ought to be implemented and obeyed in its true letter and right spirit.

Meaning Of Effective Hearing What It Shall Include :

105. The expression, 'hear' incorporated in Section 235(2) would, merely, give an opportunity to the accused to place before the Court various facts and circumstances bearing on the issue of sentence to be passed against him. Obviously, therefore, it is not an idle formality which can be achieved only by oral submissions. The party, specially, the accused-persons must be given an opportunity to produce material in regard to various factors on the question, and sentence and, if necessary, to lead evidence. On placing such material before the Court, no doubt, the Court has to be conscious to oversee that such a process may not lead to unduly practice to prolong the process or proceedings for reaching the conclusion of quantum of punishment. It has been explicitly propounded and settled proposition that the Judge must make all attempts to elicit from the accused available all information, which, eventually, can influence and bear on the question of sentence. It may also be mentioned that the question which the Court can put to the accused under Section 235(2) Cr. P.C. and answers which the accused gives to these questions are beyond the narrow constraints of the Evidence Act. The Court, while, determining the quantum of sentence has altogether different scale in which facts and factors which part are on an entirely different order than those, which come into affect the question of conviction.

106. It must be remembered that it is not sufficient for the trial Judge to comply mechanically with the form and letter of the provisions of Section 235(2) of Cr. P.C. But, the Court should, mindfully, also comply with the provisions with the true spirit and substance of such provision. If trial Judge or a given case, the Sessions Judge has not followed the provisions of Section 235(2), the Appeal Court can afford this opportunity and reach to a right conclusion in determining the quantum of sentence. The Sessions Judge or the trial Court, while delivering the judgment of conviction, is to address at that stage, on the question of sentence and afford him an opportunity to lead evidence, if required, which may also be rebutted by the prosecution. This proposition is extensively dealt with and settled. The Judge is not absolved from his duty by merely undergoing casually a formality. The main anxiety of the Court or a Judge concerned, in such a situation, is to put the Court and ought to put a genuine effort to elicit all material information and special facts bearing on the question of sentence.

107. No doubt, the seriousness or heinousness of crime, is not only one relevant aspect in the choice of sentence. The circumstances of the crime, specially, social-pressures, which induce the crime, which may be epitomized as 'a just sentence in an unjust society', are other considerations. The criminal, not the crime, must figure, prominently in establishing the sentence when a wreath of individual, rehabilitation in the society and other measures to prevent emerging from record are also weighty factors. However, this concept has, also, been questioned by some experts particularly in case of the acts of the terrorists. Even if judgment is one of the conviction, the accused will be entitled to an opportunity to make his representation, if any, or he may also lead the evidence on question of sentence and of course, the prosecution has a right to rebut such an evidence, if required. The Court is, thus, obliged to elicit relevant and acceptable material which will have a bearing on the question of sentence and it is the requirement of law.

108. A proper sentence should be the outcome of various circumstances and many factors like nature of offence, circumstances extenuating or aggravating the evidence, prior Criminal Court record and any untoward event or even during the commencement till the conclusion of the trial, age, employment, earning, family responsibility, social and economic background, education, home-life, sobriety and social judgment, emotional and mental condition, prospect for rehabilitation, possibility of return to normal life in the community and these and other like factors have to be taken into consideration in deciding the proper sentence. Obviously, pre and pending the conviction developments, if established, can also be taken into account in fixing the quantum of sentence. It is, equally true with that the hearing is not confined to merely oral submission, but intended to give an opportunity to the defence as well as prosecution to place the facts and material relevant to various factors hearing on the question and if they are contested by other side, then to produce evidence for the purpose of proving the same. Of course, it is painful to note that, at times, such a process or exercise referable to reaching proper quantum of sentence is taken casually. Many a time, Courts are not, seriously, observing or adhering to the underlined design and purport. It is, therefore, really a high time to caution the trial Courts in such a situation to follow and observe true and correct approach in letter and spirit of statute mandated and enshrined in Section 235(2) of the Cr.P.C. There is no doubt that the object of Section 235(2) in the new Code, 1973, is to split up the trial into two fundamental parts. Once the Court delivers the judgment of conviction, one part comes to an end. The second part of trial is restricted to the question of sentence for which a hearing is to be given, wherein fresh evidence, if required and desired can also be tendered. It is, therefore, clear that Section 235(2) provides for a trial and specially, gives an accused the right of pre-sentence hearing, at such a stage, he can bring on record material permissible and relevant to or connected with crime. Nevertheless, it will have consistency with the policy underlined and has a bearing on the choice of the sentence.

Object Of Punishment Process :

109. Reaction to crimes has been different at different stages of human civilization and even at a given time, they have been different in various societies. It has been said that the attitude towards crime and criminals at a given time in a society manifest the basic features of that society. The attitude towards the criminals has always been exalted by types of emotions displayed by the society. As a result of the changing attitudes, three types of reactions can be discerned in various societies. The first is the traditional reaction of a universal nature, which can be termed as a 'punitive approach'. It regards the criminal as a basically bad and dangerous sort of person and the object under this approach is to inflict punishment on the offender in order to protect the society concerned his onslaught. The second of relatively recent origin, considers the criminal as a victim of circumstances and the product of various factors within the criminal and the society. This approach, since it regards the criminal as a sick person requiring treatment, is terms as a 'therapeutic approach'. Finally, there is a preventive approach for which, instead of focussing the attention on particular offenders, seeks to eliminate those conditions which are responsible for crime causation. It should, however, be understood that the three approaches are not merely exclusive. Not only do they overlap with each other, but sometimes, they may co-exist as parts of the overall system in the society. It should, however, be understood that the theories reflecting these approaches are not theories in normal sense, they are not assertions, but are in nature of moral claims, also.

110. The fundamental aims of all punishments is the protection of those social objectives which the dominant social group of a State regards as good for the society. The techniques employed by the States are those believed to be the best to secure the obedience. Selection of best correctional technique is a function of a society. Tradition is lever of knowledge and its economic and social conditions. This anxiety also binds between the social relations and penal systems which as such is very often lacking in standard of history of punishment; these traditions, and conditions traditionally, spent good deal of time discussing the abstract theories of or providing historical discrepancies without an attempt to give personal troubles to public issues.

111. The history of punishment is presented as an 'unfolding of an idea'. The penological conditions are bound to be the ideological conditions to progress and reform a more sophisticated understanding of the history of punishment required that one considers penal changes in relation to the changes in a social set up and structure. It is said punishment is neither a simple consequence of crime nor reflecting the state of crime nor the mere means to be determined by the ends to be achieved. It is, thus, necessary to investigate the pattern and history and fate of the use of the specific punishments and the continuance of penal practice as they are determined by social forces, above all, by the economic, and then by physical and like forces.

112. In a celebrated book, 'Introduction to Criminal Law', the author Stephen Schafer has observed, 'Criminality in general terms', is the study of crimes, criminals and victims. It connects a long and eventful way; from the factors that precipitate the crime through the actual law-breaking; to the rehabilitation of the offender and compensation to the victim. Criminology, thus, is a scientific study of crime, criminality and justice. It studies the nature, the extent of etimology, cause, consequences, control and prevention of criminal behaviour. It is therefore, said criminology is the study of law-making, law-breaking, and responds to law-breaking.

113. The sphere of criminology is the study of crime and socio-legal analysis of phenomenon of crime. The sphere of criminology includes and involves the following significant aspects and facets and it would be proper to put it in a graphical form or tabular shape, which would clearly spell out the sphere of criminology :

THE SPHERE OFCRIMINOLOGYCriminalistic

Sociologyof

Remediesto Crime

Penology

Victimology

Forensic

Science

Ballastics

Formulationof laws Policing

CorrectionalTechniques

Victimization

Processing

Physical

Evidence

Laws and Ethics

Law(Deference)

Theories of Crime

Remedies

Social

PolicingDeterrence

Social

Reconstrution

and Education

The Conceptual Contours Of Penology :

114. 'The best punishment is to be despised by your neighbours, the world, and members of your family' as observed by Edgar Watson Home. Rohington, in Crime and Criminology, who has described the ten most important characteristics of punishment. The elements of punishment constitute the chief characteristics of punishment. They are the fundamental or irreducible aspects of punishment. It would be, therefore, proper and expedient to refer to ten most important components and ingredients of punishment :

1. Punishment is applied by employing coercion and can be enforced even against the will of the punished.

2. Punishment is a measure adopted and enforced by the State. Private punishment meted out by parents, teachers, employers, the community etc. is outside the scope of penological consequences of a crime.

3. Punishment or the limits of punishment are stipulated in advance by the State. Punishment very clearly embodies the principle of nulla poena sine lega there is no punishment without the law.

4. Punishment is applied by competent organs of the State in a properly constituted legal procedure. Due process is the name of the game. Thus, if a murderer is lynched by the people, then such a punishment is not punishment in the criminological sense.

5. Punishment is generally believed to be directly enforced on each individual personally. Any sort of 'collective punishment' is outside the scope of penological punishment.

6. Punishment is a disadvantage designed to act as a negative and to hurt the receiver of the punishment mentally, emotionally, physically or financially.

7. Punishment is the consequence of crime. The prohibited act must be listed and defined as a crime in the law books,

8. Punishment is applied in the name and defence of the society.

9. Punishment is disapproval; and expresses condemnation by the State.

10. Prevention of crime is main reason for the existence of penal provisions in law books.

Evaluation Of Different Theories Of Punishment :

115. Sir Waller Moberley has said in the Ethos of Punishment. 'Pain is, always, regarded as itself an evil, and as indeed the only thing that is unconditionally evil. To inflict avoidable pain on any sentient creature utilitarian equivalent to the sin against the HOLY GHOST.' There are various theories of punishment, but the following theories and modes may be highlighted which are important and material :

1. Utilitarian theory.

2. Retributive theory.

3. Reformative theory.

4. The theory of compensation.

5. The Deterrence theory.

6. The Preventive theory.

The Court is obliged to take into consideration the modern trends and prevalent ways in the realm of criminology and penology. Law and life must derive strength from each other and then the Rule of Law will gain relevance and meaning to those who suffer from abuses and power. Without abuse of power and escalating crime afflicted, considerable numbers of weaker class of humanity, the State has a sovereign obligation to develop a dynamic system of victim restitution. An age-old controversy has been the question : Can punishment reform? Any power of punishment to reform is widely and strongly denied on the double ground of principle and of experience. The prison world is very different from the world outside. There is almost complete misunderstanding between them and it proves an intractable task to train any one for life in the other. That may be the reason why George Bernard Shaw might have said, 'Don't expect a prison officer to have a heart. His pay will not allow it.' Thomas Reed has said, 'It is an indefinable something to be done, in a way nobody knows, how at a time nobody knows when, that will accomplish nobody knows what', in a reply when he was asked what reformation means. Even then, the concept of reformation is as old as civilization itself. Every religion and the greatest of the philosophers have advocated this concept.

116. Plato made a distinction between incorrigibies and criminals, who could be cured. Aristotle viewed punishment as a moral medicine unpalatable, but wholesome. The penal law of ancient China involved the idea of repentance. Muslim Law provided measures of re-education for delinquent children. The idea of reformation is traced to HOSEA, who conceived of God's wrath against unfaithful Israel, as the use of punishment to purify and redeem he or her, and got to destroy. The Zoroastrian religion has (perhaps the oldest existing religion) has as its 'raison d'etre' of punishment both deterent and reformation. It can be therefore gainsaid that the concept of reformation was and is true. The history of reformation has been a tale of the search of mankind for the absolute correctional techniques and of its failure. Again and again, the idea of reformation through punishment has appeared in some form or other as an expression of the search for an ideal higher than mere retribution or deterrence, after having been rejected and derided in the interval, the history of reformation is like that of the phoenix. Many a times, the anti-reformationists have immolated it, leaving no more than ashes behind. Many times, it has sprung up again from those same ashes to resume its reign. The shrewd and skeptical blows of Lipton, Martinson and Wilks could not extinguish its life. The belief goes on struggling and struggling. It is, therefore, to be seriously understood that it is imperative to balance punishment and reformation.

Sociology Of Criminal Punishment :

117. In the realm of criminology and penology, the victimology cannot be overlooked. Victimology has an important role in the realm of criminal jurisprudence. Victimology means the science of study of relationship between the victims and violators and offenders. The plight of the victims cannot be overlooked. Rehabilitation of the prisoners should not be by closing towards the sufferings of the victims of the offences. It will be, also, interesting to mention that the powers of Criminal Courts are strengthened by providing Section 357 in Cr.P.C. Special powers are required to be exercised to rehabilitate such victims of crime properly.

118. Social justice the signature tune of the institution has its overtures in the criminal system too. Therefore, administration of criminal justice has to be geared towards the same goal of social justice. Society changes and the perception, which is social justice, has to undertake corresponding changes.

119. The study of victims is said to be a new field. Before victims can be properly helped and particularly before they can be carefully studied, more information is noted about them and their needs. Similarly, before work on the precipitation of crime by victims can be seriously considered, more needs to be known about the victims, by them, those who report the victims to the police and those who do not. In recent years, more information has been obtained by them on victims on sphere of victimisation. Victims have to be considered with all other disadvantaged and unfortunate groups for the aid that they may require. Therefore, workers must both study their case and ascertain why their particular demands should be met. The plight of the victims receive recognition from Councils of Rapporter, in 1983 Convention and in 1985 Guidelines.

120. The United Nations, in its, Declaration in 1985 included similar lists of victims needs - the need to be treated with respect and dignity to be allowed, access to the justice and legal process which will provide them with redress for the harm done. Offenders should made restitution to the harm done to victims, to their families or their dependents and such restitution should be made possible as a sentencing upon them in criminal cases. The views of the victims are to be considered Whether their personal interests are to be affected. In 1990 in the U.K., the victimisation, therefore was public, which shortly set out in general terms exercising arrangement for victims.

Restitution To The Crime Victims :

121. Apart from feeling ignorant by the criminal justice system, victims have been misunderstood many times by the Courts. They are expected to report to the police but are always not made to feel comfortable to do this. Police Stations must be reformed and have an inviting environment. This reduces the effectiveness of crime control as it increases the offenders chances of getting away undetected.

121.1 Recently, the interests of the victims gained prominence in media and political rhetoric. The shift has usually been associated with a call for greater law and order. In fact, there is high time that the requirement for providing Universal Guarantee Rights for victims are gradually recognised. Victims are, no doubt, integral part of the criminal-legal system. The importance in the criminal justice system is increasing about other basic powers and rights or interests, which will help prevent them within the system and it has an important formation. Even the needs of the victims must be kept in perception. They must also be taken, those in authority, not alone the system. The provision incorporated in Section 357 of the new Cr.P.C. has a relevance and significance and material bearing with the recent trend to consider and appropriately compensate the victims of crime by the Criminal Courts. The victims of crimes can be adequately compensated out of the imposition of fine or also otherwise by passing an order in judgment. When the Court imposes a sentence of fine, the Court, may, without passing the judgment, whole or part of the fine recovered to be applied in the payment to in passing of compensation for any loss or injury caused by the offence when compensation is in the case recorded by the Civil Court.

The Role Of Victimology :

122. It is really right and high time that a serious attention is paid to the interests of victims of crimes in terms of providing compensation in view of the provisions of Section 357 of Cr.P.C. and the rising trend in the realm of criminology and penology to the existence and recognition of the rights of victims and the successful expenses made by the western countries. The Court can also balance the policy of reformation and rehabilitation with the theory of compensation to the victims of crimes. That is the need of the hour. That is not, as such, a call but a creed of the time. It is in this context it was thought expedient by this Court to hear and ascertain updated socio-economic and persona! circumstances which have generally been after the conclusion of the evidence before the trial Court as, since then, more than 13 years period has elapsed. The Public Prosecutor was requested to keep the responsible officer of the concerned Police Station to remain present in the Court with the latest updated information about statements made by the accused-persons before the Court on the question of quantum of sentence and also on the point of status - personal and socio-economic, circumstances of the young widow of the deceased and a child, who was hardly about one year when the life of deceased Chaku @ Shekar, was cut short at the unfortunate incident on 20th August, 1988.

123. Victimization Of Victims Of Crime And Remedial Measures :

Place of victims in the Criminal Justice System, has not always, been the immortal one as it is today. The victims who is particularly, charged, is really a loser in the present scenario. Not only, the victim has suffered loss, morally or physically or otherwise and not only does the State take interest in giving the compensation. Above all, the victim has lost participation is his own case. The victim of crime is a forgotten personality in the present criminal system. Until in the last few years, a general awakening has accord with the respect to the unfortunate plight of the crime victimization in the present-day criminal system.

The interest in the increased victim involved in the criminal justice system and enhancement of victims right has been rightly a matter for the criminologists, social-scientists rather than the legislative and popular political interests. So also, the judicial response has, far been not very happy. It is, therefore, not opposing to observe that the rationale for enhancement of victims rights in the criminal justice system must frequently proceed from a non-legal base. Following aspects are some of the important and relevant rationale most frequently articulated :

1. There is serious injustice in the present system because it ignores victims' interest and have been towards victims, unfortunately.

2. The present system harbours inequality about the procedural rights of the accused, but denies a proper standing in the criminal justice process.

3. Enhancements of the rights and privileges of the rights victims will encourage co-operation within the criminal justice system in the successful institution and prosecution. The result has improved the effectiveness of the criminal justice system in apprehending and affecting criminals will, deterrence, crime and lowered the overall crime rate.

Insofar as the role, goal and status of the concept and philosophy of victimology is concerned, more so, when the Criminal Justice System reforms are being examined, it would be really and obviously, relevant and expedient to, shortly, highlight certain aspects pertaining to the realm of criminology and victimology. Some of them may be mentioned.

It is heartening to note that lately, also, the Government of India has taken up the issue of reforms in the Criminal Justice System and pursuant to that a Committee of Reforms of Criminal Justice System in India headed by Hon'ble Mr. Dr. Justice V. S. Malimath (Malimath Committee) has been appointed, mainly, to examine the fundamental principles of criminal jurisprudence including the Constitutional provisions relating to Criminal Jurisprudence and see if any modifications and amendments are required thereto so as to regain the lost confidence by revamping the entire Criminal Justice System, in such a way, that no guilty persons escapes punishment nor does any innocent person suffer and the role and status of victims of crime is attended and done justice. It is really one more encouraging and inspiring reason to make following suggestions :

(1) Attention is required to be paid to the concept and philosophy of sociology of crime and role and status of victimology in the realm of criminology.

(2) One of the fundamental objects of criminal justice is to vindicate the right of justice of the unfortunate victims of crimes. Notwithstanding that in the current system, in our country, the victim has no effective role to play in the process of criminal justice. He has also no right to lead evidence or cross-examine the witnesses or to make his own pleas good or advance arguments. The crime victim services has become virtually foreign to the existing system which has adversely affected not only the interest of victims of crime, but has added adverse dimension in increasing the backlog of criminal cases and decreasing the rate of conviction. It is, therefore, imperative to provide adequate provisions for effective role and participation of the crime victims and resultant crime victims compensation programmes.

(3) One of the important interests of the crime victims would be restitution which could be adequately provided. No doubt, it could also be appropriately, ordered by the Court. The restitution can be defined as a sanction imposed by the Court on a person convicted of crime which requires the convicted person to make monetary payment to the victims for the loss or injury sustained. This remedy of restitution to be exercised by the Court makes the victim's role significant and the crime victim services as correctional function.

The growth in the expectation of restitution as an alternative, and also, U.N. Declaration on 'Basic Principles of Justice for victims of Crime and abuse of Power' manifested in its resolution dated December 11, 1985, evidently, emphasises that the Member State should take required steps to provide fair restitution to the victims of crime for the loss or injury. The declaration includes :-

(1) The importance of role and status of victims of crime in the process.

(2) Access to justice and fair treatment to the victims by providing adequate mechanism.

(3) Fair and reasonable restitutions to victims, their families or dependents by Governmental and non-Governmental agencies.

(4) Providing adequate and reasonable compensation when compensation is not fully available from the offender by the State.

(5) Legal, medical, health assistance to the victims by community-based or State provided funds,

(6) Sufficient and adequate provision by the State and other benevolent agencies to the victims of abuse of power.

In our country, for the purpose of restitution, basically, the main provision has been made in Section 357 of the Cr.P.C. which has not been adequately employed into service by the Courts. In Harikrishna v. Sukhbir Singh, AIR 1988 SC 2127, it has been observed by the Hon'ble Apex Court that provisions of Section 357 leave it entirely to the discretion of the Court, and unfortunately, have seldom invoked these powers due to ignorance of the object of it. The Law Commission of India in its 42nd Report, therefore, has observed that the Courts in India do not exercise their powers as freely and liberally as could be desired.

The present law, therefore, in absence of legal mandate of action to pass restitution to the victim of crime has been rendered lips service to them. Therefore, there is urgent need for the suitable amendment to this Section providing guidelines, under which the offender or the accused should be ordered to pay restitution to pay the victims of crime.

No doubt, it may be mentioned, at this stage that making a mandatory provision in respect of providing compensation to the victims of crime by the violator or offender may not be able to solve all the problems of the victims insofar as compensation by the offender is concerned. Needless to mention that conviction rate is very low in case of offences against the persons, property and reputation. At times, offenders are let off on technicalities. Therefore, it is absolutely, necessary to make provision for crime victims services mechanism including the Crime victims Compensation Programme.

It will be worthwhile to mention at this stage the observations of McNamara and Sullivan in making the crime victims whole, compensation restitution and compensation have rightly highlighted primary impediments in the establishment of and functioning of victim compensation by the offender. Firstly, they also call attention to the fact that only a smaller number of offenders are actually apprehended and convicted. Secondly, they are not financially capable of compensating to the crime victims due to financial inability and the fact that most of the offenders come from the lower socio-economic strata. Thirdly, because of the fact that the earning of offender as prisons even is not equal to the cost of maintaining them in the prisons.

The appropriate Authority may also consider extending the activities and services under the Legal Services Authorities Act, 1987 to the victims of crime and also their dependents.

124. The Status Of Victims In The Present Criminal Justice System : Victimized And Tormented?

It cannot be gainsaid that the status of victim in the current criminal justice system, has been at the minimal, the victim unfortunately is particularly a heavy loser in the present system. Not only he/she has suffered, lost materially or become hurt, physically, psychologically or otherwise. Not only that but victim has above all lost participation in the process of criminal justice system.

It is quite evident that the victim of crime is a 'forgotten man' in the present system. It is unfortunate to note that there is disturbing trend in crime rates and law enforcement effectiveness. It has been reported that there is at least one congnizable crime every 7 seconds, one penal offence every 20 seconds, a property crime every one minute, theft crime every 1 1/2 minutes, violent crime every two minutes, burglary every 4 minutes and a rape every 52 minutes. It is also unfortunate phenomena that nowadays more women and youths are taking to crime than ever before in our country, While population increased by 127.6% between 1951-1990, the total incidents of Indian Penal Code crime is gone up by 146.9%, worse still there is no effect of deterrent.

It has also been reported that long time trends clearly showed that massive increased in incidents of crime, a less than proportionate increased in registration, growing backlog of investigation, prosecuting trials, declining the rate of conviction. In this context, it will lead to reasonable and obvious conclusion that increasingly more and more criminals are going unpunished, deterrent effect of law is one of vain and its supremacy is being stymied by individuals. Naturally, therefore, if this trend is allowed to go undeterred and unchecked, it will further lead to erosion of credibility of the Criminal Justice System. Reduce faith of a common man and confidence in its effectiveness and efficacy and further will encourage a trend or tendency on their part to take law on their hands.

It cannot be disputed that crime victims and witnesses are responsible for the successful solution when victims start not to co-operate with the Criminal Justice System, where failing to report crime, assist in investigation or in prosecution as a witness, the success rate of the government in apprehending, convicting, and punishing criminals over violators of law would become negligible. It is in this context, the conclusion has become virtually inescapable that the Criminal Justice System ignoring the interest of poor, illiterates, the victims runs the risk of alienating a person upon whom the success the entire eateries of the Criminal Justice System depends. It may also be noted that a massive lack of participation of the people in the Criminal Justice System runs the risk of seriously damaging the present constitutional objects and goals of criminal justice, as well as permanently affecting and undermining the crime monitoring or control function of the agencies concerned in general and in Government in particular.

Obviously, imagining a situation where victims do not willingly report crime or become witnesses, the evident result would be the entire Criminal Justice System itself will be relegated to a status of bystardie restricted to prosecuting petty or public offences which would be not only unhealthy syndrome but will materially affect the law and order leading to composed situation.

It is true that largely interest in the victim involvement in the criminal justice system and enhancement of victims rights has been improved for social scientists, social reformists, criminologists and crime victim researchers, rather than legislative and popular political interest. It has also been observed that judicial responses have often been not very positive and therefore, it is not surprising to observe that the logically and rationale for enhancement and implementation of victims rights and the Criminal Justice System most frequently proceeds from and not legally on judicial sources. It is in this context, it would be obviously expedient and desirable to consider and examine the rationale most frequently required to be observed. The following are some of the important and useful reported rationale may be highlighted at this stage.

[1] In the present Criminal Justice System the interest of victim is virtually ignored, resulting into serious injustices to them and resultant emergence of a sense of frustration and in equal and unfairly treatment to the victims.

[2] The current system is causing or harbouring in equity or elaborate procedural rights of the accused whereas on the other hand, denial of even right of a victim of crime, a proper status and standing in the criminal justice process.

[3] Enhancement and improvement of the rights and privileges of the crime victims will indutably lead to encouragement for victim participation and co-operation within the system in the successful investigation and prosecutorial areas. The result of improved effectiveness of the criminal justice system in monitoring, apprehending and convicting criminals and that the recognition of the roll status and rights of such victims of crime will have an impact of deterrent and lowering the overall crime graph but increasingly the conviction rates.

[4] The recent concerned for the plight of the crime victim is largely attributable to the writing of Margery Fry, an English penal reformer, who has strongly proposed that victim should no longer be made to depend upon civil suits for loss inflicted upon them by crimes. Advocating that government compensation to the victims of violence was a logical extension of an enlightened social policy which already provided transfer payments for the majority of social dislocation occasioned by modern life.

[5] The point has been reached where we must give consideration to the victims of crimes to the one who suffers because of crime. Society has an obligation when the protection of the society is not sufficient to prevent their being victims society has an obligation to compensate the victim for that failure of protection.

[6] It would be worthwhile to refer the deterrent rationale for introducing of compensation scheme projects and programmes in the penal process suggested and Advocated by learned author Mr. Rajan ' [Victimology in India]

1. The best raison de'tre for victim compensation is the theory of the State. The State is a complex of rulers and ruled, politically conceived, territorially organized, seeking by the conferment of powers on the rules, the effective maximization of the individual interest and the social welfare of the ruled. The State achieve its purpose through enactment and promulgation of laws and it enforces obedience to the laws by the exercise of power. Power is the capacity to produce the intended effect. If the intended effect cannot be produced in respect of any law, the State has to assume responsibility for the loss, pain or damage caused to any law abiding citizen by someone's caused to any law abiding citizen by someone's disobedience of the law.

2. The assumption of power by the State necessarily implied deprivation of the citizen of his right to private vengeance or personal retributive action. Such a deprivation is a sine qua non of modern society's civilized existence. But for that, we would be reverting to the law of jungle. In return for that deprivation the citizen gets the protection of the State. In cases in which the State fails in its obligation to protect the individual it has broken its agreement, and should thus be liable for damage done to the victim of crime. Such a rationale will argue for the most liberal type of compensation programme, in principle a citizen has a right to advance claim against the State for its failure to protect him.

3. Another justification offered for the victim compensation is the 'shared risk' argument. In a sense, the Government may be viewed as a entrepreneur or an employee who included the cost of the risk of service it renders to the consumer in the price of the product. Thus, each consumer contributes towards the payment made to these individuals who will be compensated for damages. The taxes paid by the citizens are seen as payment of premium to cover the insurance against the risk of crime victimization which every citizen shares with every other citizen and compensation to crime victim or deceased [individual's next-of-kin or victims under the insurance scheme.]

4. Another functional justification for victim compensation is the 'welfare' theory arising from the assumption that the government exists and functions for the people. The approach holds that, just as the State has a humanitarian duty to the poor, the sick, the unemployed, the under-privileged, and so on, it has a duty towards the victim of crime also. However, this duty is based not only on contractual obligation on the part of the State, but on the social conscience of its rulers and its people.

5. Related to the welfare theory is the theory of 'mercy of the Government'. Under this rationale, it is argued that the State has the power to deal mercifully with certain individuals. Thus, it may, by legislative grace, grant compensation to individuals who have been unfortunate to become victims of crime. This is probably known as ex-gratia payment made by the Government to victims of crime, accidents and other natural calamities.

6. The Constitution of India guarantees equality to all under Article 14 and also Article 41. It has been provided under Article 41 that 'the State will shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in case of unemployment, old age, sickness and disablement and in cases of undeserved wants.' It has therefore, rightly been Advocated by learned Author Das in 'Victims in Criminal Justice System' that the victims of crime are under-served because of the State's failure to give them protection and also, in many cases of offences against person the victim suffers from physical and psychological wounds which leads some-times to disablement.

It is necessary to make adequate provisions so that any of the perception of victim of crime in the present system 'the forgotten man' can be remedied.

125. Dynamics Of Victimology And Cures :

It is high time to create a consolidating the Victim Welfare Fund on a statutory basis, such funds can well be administered by a Council or a Board named 'Victim Welfare Board or Crime Victim Service Council' the payment of compensation may be left to the discretion of such statutory authority.

It is high time to make adequate provisions by suitable amendments in Articles 40 and 39A of the Constitution of India, which guarantees justice and equal protection of the law and also the United Nations declared of 'Basic Principles of Justice for Victims of Crime and the Abuse of Powers' for proving easy and speedy access to victimized victims of crime.

The consideration for the creation of the Victims Compensation fund and scheme by appropriately enacting the legislation on 'the Victims Compensation to Provide Adequate Mechanism for Interim and Final Order of Restitution, creation of directorate victim services to provide adequate assistance and help to a person who is an victim of a act of crime who does not have a compensable injury could get counselling and physical therapy by qualified psychiatrist on the line of provisions of 'The Victim Compensation Act, 1966' and amended by the Victim Compensation Act, 1998 in the United States.

It is also necessary to create and establish the crime victims institution with a purpose to provide for relevant research and information program evaluation and policy recognitions for improving services to the crime victims in our country. It can also be examined and considered the suitable provisions for suitable training and victim assistance programmes. It is also necessary to consider and create a separate department for maintaining, monitoring and guiding the victims compensation and welfare measures in our country,

The creation of adequate provisions for providing guidelines for [a] to include the material information to be included in the victim impact statement; [b] to create wounds amongst crime victims and their family members and dependents; [c] to provide counselling to a victim of violent crime who has sustained serious psychological impairment; [d] creation of adequate mechanism for providing facility. The victims of crime by way of legal aid.

It may be mentioned that the victims service is a business unit in the Attorney General department in United States. The victims services provides [a] the victim compensation review and [b] the Victims of Crime Bureau to provide counselling information and referral services to assist victims of crime, to constitute a statutory victims advisory Board as has been provided in the United States under the provisions of 'The Victims Right Act, 1996'.

To provide Mental Health Advocacy Services to the Victims of Crime.

126. The expansion of victims compensation criminology must so respond realitically to the new challenge of human rights social justice as to solace and destitute victims of crime and abuse of public power by resorting to new methodology of rehabilitative, repetitive, participating and preventive other administrative and judicial redressal and remedies, the victim of crime must claim our attention since injustice to him/her to only be fully amended by restitutive justice, more punishment of offender that is the reason why the trends, new trends and recent development within the new words of human order must be kept in mind which broaden the humanitirian diamines or Criminal Justice System.

126.1 It may be mentioned that victimology has deep root in the human raison and culture. It has been a part of code of Samurai ['Babylon']. It is also spelt out in ancient text Greek, Roman and Indian even in Hague Convention of 1907 of Article 3 therein is the payment of compensation to the over crimes and a crime against humility. No doubt the modern trend in its present sake of victimology occurred prominently in 1960s.

126.2 The jurisprudence or criminal and victim compensation has been predominantly found its role and place in Europe, United States and Australian States in 1960s. In 1962, the British School of the International Commission of Jurists, advocated for victim compensation as an integral organ of Criminal Justice System. Even in French Court provisions are made for civil action to claim damages against the prisoner in addition to compensation to the victims at the criminal trials. The renowned and non-Italian criminologists Mr. Gara Falo also champion the participation lab criminal Board can be confiscated if available for restitution to the victims and if he is finally unable, he should be directed to work for the State and the State may also be held accountable for compensation to the victim.

126.3 There is high time for an Indian legislation for providing victim assistance and compensation and guidelines for a scheme and as restitution for working in an effective statutory frame-work for victimological, rehabilitative project in our country.

126.4 Learned Advocates for the accused persons and learned Public Prosecutor have jointly submitted that one week's time may be granteed to enable them to tender available documentary evidence or the persons concerned for ascertaining the latest information which would help the Court in arriving at a fair and reasonable quantum of punishment, including the quantum of fine and the amount of compensation if so warranted and that may be directed to be paid to the dependents. It is in this light of the consensual request, the matter is adjourned to 15th February, 2002 for further hearing. Learned Public Prosecutor, also, desired that the concerned in-charge Police Inspector or higher officer will be called and the widow and minor son of the deceased will be kept present on the next date.

The matter is therefore, adjourned to 15th February, 2002. The learned Advocates appearing for the accused assured that the accused shall be kept present on the next date.

8-2-2002 [J. N. BHATT, J.]

127. In pursuance of the earlier order, today learned Advocates appearing for the accused persons have submitted written memorandum highlighting reasons and grounds, socio-economic status on the question of quantum of punishment. They are taken on record. They are also signed by the learned Advocates appearing for the accused persons. Written submissions on behalf of A-1 and A-2 is now placed at Exh. AA-HC-1, whereas, written submissions given on behalf of A-3 is now placed at Exh. AA-HC-2. A copy of the loan sanction advise-cum-receipt on the basis of ornament evidencing the loan transaction by A-3 from Bank is also tendered in course of submissions. It is placed at Exh. AA-HC-3. Learned Advocates for the defence have stated that unfortunately, on account of long lapse of time, medical evidence in respect of health condition mentioned by A-1 on last occasion has yet not been traced and procured and the some medical record will have to be obtained from the record of the Court as the same had been presented and produced for the purpose of bail during the pendency of trial. On this ground, it is requested that reasonable time may be granted so as to collect available documentary medical evidence. It was, also, requested that since some medical record was produced along with bail application, in this Court, the Registry may be directed to trace it, if available as early as possible. Obviously, upon undergoing the requisite procedure for return or copies thereof, the Registry shall help and expedite the process of search and supply as per the Rules. Learned defence Advocates may also bring to the notice of the Registry, in case of any difficulty.

128. The learned Public Prosecutor Mr. Oza has shown the material collected by the Police Officer of the concerned Police Station. However, he has requested for some time to prepare a statement on the basis of record brought including statements brought by the Police Officer today in the Court and to make one more attempt to keep the widow of the deceased and the minor child of the deceased person in the Court as only father of the deceased has been able to come today.

129. Of course, adjournment is necessitated on account of long duration or hearing of acquittal appeal at two stages. However, grant of adjournment may not be interpreted as contributory to protracting proceedings of second part which is, also, equally important. In the larger interest of justice, and in view of the peculiar facts and circumstances, S.O. to 1st March, 2002.

The learned defence Advocates have assured again that all the accused persons will remain present on the next day as they are present in the Court today as directed by the Court.

15-2-2002 [J. N. BHATT, J.]

130. Again reverting back to the sentencing process, it is not reality, significant component of the Criminal Justice System, it is an important organ of the process and bringing not only an end of the trial, but also sending signals to many including potential criminals qua of sentencing process is undoubtedly a very dynamic but difficult and delicate as well. It is a matter of understanding that whether the Court has been empowered to exercise discretion. It has to be observed and exercised obviously on relevant material, factual profile in finalizing the decision making process in reaching the quantum of punishment or sentence. Obviously, therefore, the Court in exercise of discretionary power in process of sentencing has to be safeguard so that unnecessarily harsh punishment is not imposed and at the same time, to see that the required punishment is not left out. In reality, it is a process of balancing and thereby to reach to a point of conclusion for the purpose of appropriate and expedient also reasonable exercise of discretionary power of Court in fixing the quantum of sentence and punishment.

131. Undoubtedly, one cannot expect the Court to make standardize or a shape the raceipy (sic receipt) of a strait-jacket formula in awarding any appropriate sentence regarding the question of laying down the standard and norms restricting area the imposition of certain kinds of punishment would be in many cases unjustified or unreasonable. The Court is obliged to take into consideration the aggravating as well as mitigating circumstances while going through the process of sentencing for fixing the quantum of punishment in the realm of penology. Obviously, the Court cannot oblivious the modern views and trend prevalent in victimology, therefore, standardization of sentencing formula or categorization in sentencing process in all probability will cease to be judicial, as it depends upon the factual matrix of the appropriate of a given case. No doubt broad principles, general guidelines consistent with the policy manifested by the legislature in Section 354(3) of the Cr.P.C, this proposition has been elaborately articulated very well expounded by the Hon'ble Apex Court in a recent decision of Mohmed Chaman v. State, 2000 (2) SCC 28 decided on 11-12-2000.

132. In the light of principles broad guidelines and the observations in host of the judicial pronouncement and the discussion elaborately made by this Court hereinbefore, the culpability established beyond doubt against the accused persons in this appeal and will have therefore, to be judged, evaluated for the purpose of awarding appropriate punishment and imposition of sentencing if relevant in the case of the accused persons. The type, the mode, the manner, the weapon, the role and the contribution made by A-1, A-2 and A-3 have been materially stated hereinbefore.

133. The culpability of the main accused A-2 is established beyond reasonable doubt for culpable homicide not amounting to murder, which is punishable under Section 304 Part II whereas A-1-Raghu and A-3-Sanjay have been found guilty for the offence punishable under Section 304 Part II read with Sections 109 and 114 of prescribes punishment which is relevant for our purpose.

134. Section 304 of the Cr.P.C. is in two parts, if analyzed, the Sec. provides two kinds of punishment for different situation. [1] if the act just like accused has done with the intention of the causing death or causing such injury is likely to cause death, the important ingredient is intention whereas in [2] if the act is done with the knowledge but without any intention to cause death or such injury is likely cause death when person hits any weapon on the vital part of the body of the person, knowledge of the likelihood of death of the person, in that event or in such a situation, obviously the case would fall in Part II of Section 304 of I.P. Code.

So far as the first part of Cr.P.C. is concerned, it is not act to play in the present case. Part II Section 304 provides punishment for imprisonment for term which are exceeding to 10 years or with fine or with both.

135. It is in this context, now at this stage, the significant and substantial questions therefore falls for consideration is about the appropriate choice of sentence keeping in mind the factual matrix and the role and overtake played by the accused persons in the unfortunate incident in culminated into untimely killing of a young man of 24 who left this world 'leaving minor son and young widow'.

136. The Court addressed on earlier occasions elaborated hereinbefore on the question of quantum of punishment including the amount of fine and also on the question of direction for payment of compensation to the victims of crime like that minor son and young widow in terms of provisions of Section 357 of the Cr.P.C.

137. This Court has also heard the accused persons in the open Court and also heard the members of the victim party so as to reach just and reasonable conclusion on the question of punishment and imposition of fine and or the payment of compensation, if any, to the minor son and the young widow of the deceased. Written statement are also tendered. Therefore, in view of the statutory mandate enshrined in the provisions of Section 235(2) of the Cr.P.C., sufficient opportunity has been given to the accused persons so as to submit and bring on record necessary, and relevant material referable to each accused persons before reaching determination of quantum of punishment.

138. Needless to reiterate that the role of status of victimology, unfortunately in our present Criminal Justice System in our country is a very minimal level when this aspect is paid priority in many other countries.

139. It is in this context, we have also observed that the sole provisions for compensation to be paid to the victims of crime incorporated in Section 357 of Cr.P.C. in the present statutory frame-work requires a lot of reform, adequate and proper manner. As it has been many time the criminals, offenders or the violators, one from poor state of society and the amount of compensation to be borne by the accused persons for being paid to the victims of crime may not be sufficient and even adequate. Not only that it is also a very celebrated and undisputable fact that if the victims, who are provided some work during incarcernation, they do not earn sufficient fund to get their two ends meet, how they could always be directed to pay reasonable if not handsome amount of compensation to the victims of crimes. It is in this context, it is high time for the authorities concerned or appropriate forums should take up this issue on a top priority so that the victims of crime are not victimized or tormented. In fact, in such a situation, these are State's responsibility for providing compensation by creating statutory mechanism and crime victims service and crime victims benevolent funds out of public exchequer. In this connection, some of the suggestions are made by this Court hereinbefore which may be some help in future and since a judicial Criminal Justice System is reformed by the Malimath Committee, the form of suggestions would not be a ground, and therefore, it would be proper to direct the Registry to send a copy of this judgment free of cost to the said committee, which may be of some use in forming their views and their suggestions and resultant report on vital issue of Criminal Justice System service.

140. After having given gist of the intention, though to the actual prevalent of each accused persons and his role, overtake, financial position, social status, liability to maintain family as also the financial and social conditions of minor son who is reportedly below 15 years at present and is in fact studying in a hostel. The brother of the deceased, it is reported to have divorced his first wife and had entered into marriage with the widow of the deceased and it is also stated that deceased had a minor son Vishal, who is aged about 15 years and studying in hostel and the brother of the deceased after a second marriage with the widow of the deceased has also got to the said relationship whose name is Jay.

141. Accused A-1 Raghu, as it is found from the record though was armed with the muddamal Article No. 9 has not been shown to have used in view of the medical evidence on record. His age 62 years old, he has in past undergone cardiac trouble, he has also already undergone imprisonment for a period of almost 22 months as a under-trial prisoner as during the course of trial, he appears to be the main person, head of the family no doubt, the role attributed and is established by instigating A-2 in infliction of knife blows by shouting to kill the deceased. It is found from the record that he has been doing transport business since long. He is also the owner of vehicles including one TATA vehicle. He also owns a residential house of his own which, as reported in the police report to be valuable one. He has been thus doing transport business. It is also noticed on this point, during inquiry by the police that the economic condition of A-1 Raghu his family is good and sound with good social background. In short, accused persons belong to a fairly rich family and having good earnings.

142. Insofar as A-2 Ghana @ Ghanshyam, he was hardly 22 years, who is now 36 years old, he has his own vehicle and he is also doing business and is earning by renting and hiring tractor, he has joint ownership of renting and hiring the tractor in Amreli district. Unfortunately on instigation and the assistance of his father, A-2 Ghana inflicted three successful knife blows on the person of deceased, who was helpless. This Court has categorically appreciated the evidence hereinbefore and it is found culpable homicide not amounting to murder and resultant culpability under Section 304 Part II. Section 304 of I.P.C. provides for punishment of murder and Section 304 Part II provides for the punishment for culpable murder. Be as it may, he has already undergone the period of 32 months imprisonment as a undertrial prisoner. Therefore, an important question which will now arise for consideration and adjudication at this juncture, that what should be the sufficient quantum of sentences and an amount of fine, if any, whereas what should be the reasonable amount of compensation to be awarded. It may be stated that both the sides have contended that insofar as the amount of fine out of which amount of compensation to be awarded to the victims is concerned, that whatever the fine is imposed, the Court may award reasonable amount of compensation out of the amount of fine. However, on behalf of the accused persons, it has been strongly, empathetically urged that the period undergone as undertrial prisoner coupled with the lapse of almost 13 years, therefore, there will be no fruitful result by sending him for a longer period of imprisonment. Needless to mention that the maximum punishment which can be imposed for the offence punishable under Section 304 Part II is of 10 years. However, learned Advocate appearing for the accused persons have left it to the Court, the reasonable amount of fine to be awarded and out of which, a sum reasonable amount by way of compensation may be awarded to the victims of crime.

143. Insofar as the merits of the punishment process for A-1 is concerned, the learned Public Prosecutor has also not seriously desired or insisted for higher imprisonment. However, he has empathetically submitted that in view of his financial status, assistance and the poor position of the victims of crime, the Court should impose the amount of fine not exceeding one lakh and or otherwise the directions may be given for compensation to be paid to the minor child and the widow of the deceased.

144. In this connection, the learned Public Prosector has also relies on the decision in the case of Venkatesh v. State of Tamil Nadu, AIR 1993 SC 1230, it is found from the said decision upon thorough examination that accused persons came to be convicted under Section 304 Part II and was sentenced to undergo R. I. for 5 years and to pay a fine Rs. 3000/- for having hit by the wooden reaper, accused after releasing the grievous misdeed tried to commit suicide and also upon matter being taken to the Hon'ble Supreme Court, it has been held in that case, the Hon'ble Supreme Court has reduced the period of sentence to the period of already undergone and enhanced the fine to Rs. 1,00,000/- to be paid to the widow and the daughter of the deceased overruling the judgment of the Madras High Court rendered on 14-6-1991 in part. In Para 7 of the said judgment, the Hon'ble Apex Court had given directions as to how this amount should be payable to the minor daughter and the widow of the deceased.

145. As regards the accused No. 3 Sanjay @ Gaddhi, his role was only to catch hold the deceased Shekhar when A-2 inflicted knife blows, he has also undergone 23 month's imprisonment as an under trial prisoner. Therefore, learned Counsel appearing for the accused persons has reiterated same submission that the period of imprisonment undergone may be treated as sufficient and reasonable amount of fine may be imposed and out of that, the reasonable amount may be directed to be paid by way of compensation as per the provisions of Section 357 of the Act to the widow and the minor of the deceased. Learned Public Prosecutor insofar as A-3 has not again very seriously insisted the submission for sentencing in terms of imprisonment is concerned. However, he has fairly submitted that he should be awarded the amount of fine and out of that reasonable amount by way of compensation may be directed to be paid for the welfare and upkeepment of the minor and the widow of the deceased.

146. No doubt in a realm of victimology the decision is one of the aspect towards the fulfilling the design and desideratum and restorative justice to the victims of crime but that is not all. The loss of affinity, cordiality, family warmth and the caressing by close kith and kin which otherwise also would be invaluable, the minor child and the uneducated woman and so on forth as these are the illustrations and not the exhaustive items which are undoubtedly irreparable and invaluable. Nonetheless what the Court is required to perform its duty to consider how such persons insofar in terms of money, as far as possible can be compensated, in view of the lesser than aided hardship on account of unfortunate death. Of course unfortunately in the country like our, many other useful services other than the compensation for victims and services adequate for payment from the statutory mechanism, authorities have to evolved, though, it is high time to do so and it is hoped that Malimath Committee will go into such aspects. Any way, at this stage, we are concerned at what should be the quantum of punishment or sentence and reasonable amount of fine and out of that, payment of compensation to the minor son and widow of the deceased.

147. In this connection, on behalf of the accused persons following decisions have been cited and relied on in support of their contention that the period so far undergone as undertrial prisoner and additionally the lapse of spell of more than 13 years in between and to see that the accused persons are not insulated from and through and family life and social environment, the period undergone should be treated as sufficient for the purpose of substantive sentence and leave it to the discretion of Court about reasonable amount of fine and from such amount, direction for compensation to be paid to the minor and the widow of the deceased. To substantiate the submission, reliance is placed on the following decisions :

[1] AIR 2000 SC 1374 in the case of Camilo Vaz v. State of Goa

In this case, conviction under Section 302 came to be set aside and substituted by the offence punishable under Section 304 and Part II and sentence of 5 years had been imposed.

[2] 1997 (1) GLR 698 in the case of Narvat @ Bhatti Rayajibhai , State of Gujarat, has been relied on in which one accused gave stick blow on the back and waist of deceased whereas other gave blows with fist and kicks. The Sessions Court imposed sentence of 4 years looking to the age of accused, sentence reduced to period undergone.

The decision in Anjana Patel Abberaj Phulabhai v. State of Gujarat, reported in 1993 (2) GLH 242, in this case, the accused was 60 years old, 8 years period was passed after the incident, on facts substantive sentence of imprisonment came to be reduced to the period of imprisonment already undergone with a fine of Rs. 8,000/- and the amount of fine directed to be paid to the widow of the deceased.

In the decision in the case of Kapildeo v. State of Uttar Pradesh, reported in 1983 Cri.LR 553 (SC). In that case, for the offence punishable under Section 304 Part II sentence of 7 years imposed by the High Court came to be reduced to two years. The facts are not elaborately stated in the judgment of two paragraphs.

Reliance on the Supreme Court decision in the case of Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh, reported in 2000 Cri.LJ 3508 is out of contest and not attracted to the facts of the present case. In that case, the offence established against the accused under Section 304A of I.P.C. The main question was whether the passenger while boarding bus falling down, the presumption of negligence can be drawn or not.

Reliance is also placed on the decision of the Hon'ble Supreme Court reported in 2000 (10) SCC 225 in the case of Bhera v. State of Rajasthan, offence punishable under Section 304 Part II, the accused was convicted thereunder and sentenced to 5 years imprisonment. In this connection, it would be preferable to refer the decision of the Hon'ble Apex Court in the case of Kalinder Bharik v. State of H. P., 2000 SCC (Cri.) 96, conviction under Section 302 was altered to conviction under Section 304 Part II and sentence of R. I. for 7 years was imposed.

148. It, therefore, become clear that insofar as the culpability of A-1 and A-3 is concerned, the learned Public Prosecutor has not seriously submitted for further sentence of imprisonment. However, he has urged strongly that in view of the fact that victim of crime deceased Shekhar was the only earning member of the family and died leaving behind young widow and minor son, who is now admitted in the hostel for education, and therefore, Public Prosecutor Mr. Oza has submitted that the period of 22 months imprisonment as undertrial prisoner should be considered as sufficient for the purposes of imprisonment but not for the purpose of imposition of fine. For that, he has strongly urged that A-1 is doing transport business and is also earning by renting and hiring the tractor and he has also agriculture properties, he is the man of means and he has good income, and therefore, in the peculiar facts and circumstances of the case and the opposite indigent situation of the minor and the widow of the deceased, imposition of fine not less than Rs. 1 lakh will be justified and the amount of fine, if paid Rs. 1 lakh may be directed to be paid to the widow who is illiterate and unsophisticated lady and who is totally helpless and workless. Of course, the marriage with the elder brother of the deceased husband is not shown to be legal and valid or that it was performed with required procedure and necessary ceremonies. Apart from that, she has also one child out of new wedlock with Dipak, elder brother of the deceased. In the opinion of this Court, it would be just and reasonable to direct that 90% of the amount of fine for being disbursed to the young widow of the deceased on the appropriate terms and conditions either partly in fixed deposit term in any institution or nationalized bank by account payee cheque, as decided by the concerned Sessions Judge.

149. As regards the accused No. 2 the same submissions are advanced on his behalf by him as well as by his learned Counsel. However, leaned Public Prosecutor has vehemently argued that in view of the three successive knife blows, out of one found as fatal on the person of deceased aged about 24 years. In this context, it is submitted by the learned Public Prosecutor Mr. Oza that he deserves at least imprisonment not less than 5 years and substantial amount of fine out of which reasonable amount can be awarded to the minor and the young widow of the deceased. It has also submitted that the imposition of fine of 1,25,000/- considering the agriculture business, renting and hiring work and the sound financial position of the family, compensation should be imposed by way of fine and at least an amount of one lakh should be directed to be deposited as F.D.R. after disbursing it for the welfare and upkeepment for the minor who has a long way to go even he has to complete his basic education.

150. Obviously, that lead to the conclusion that insofar as A-3 is concerned, almost same submissions are advanced before this Court on behalf of the accused and accused himself reiterated the same ground in the open Court. It has been contended that the A-3 has already undergone, as a undertrial prisoner, imprisonment for a period of 23 months and that period should be treated as sufficient so far as substitute imprisonment is concerned. The learned Public Prosecutor in his fairness in light of the facts of the case, he has contended that the period undergone may be treated as sufficient and amount of fine exceeding Rs. 25,000/- may be awarded by way of compensation as he has having good financial position and status.

151. Insofar as A-1 and A-2 are concerned, though offence established against them under Section 304 Part II is punishable up to the period of 10 years in view of the peculiar facts and special circumstances of the case and the submissions of the parties and the personal circumstances referable to the accused persons narrated before us during the course of the submissions, the period as undergone by the accused Nos. A-1 and A-3, may be treated as sufficient. However, ends of justice will be met, if the period of 22 months imprisonment already undergone as undertrial prisoner is to be treated as sufficient and to impose a fine of Rs. 80,000/- and in default to undergo further R.I. for a period of 13 months whereas A-3 is concerned he has undergone imprisonment of 23 months as a undertrial prisoner, the period of imprisonment already undergone as a undertrial prisoner, it would be considered and treated as sufficient in the facts and circumstances of the case. However, the amount of fine of Rs. 30,000/- is imposed and in default to undergo further R.I. for a period of 11 months. If the amount of fine is paid, the learned Sessions Court concerned, will get reasonable amount fixed deposit terms in any nationalized bank for a initial period of 5 years and the interest that accrue shall be paid to the minor and the widow for the welfare and upkeepment of the life.

152. The main question which now falls for consideration is as to what should be the quantum of punishment for the culpability established against the A-2 Ghana. No doubt, he has given three successful knife blows one fatal proved resultant in the homicide death of the deceased Shekhar. He has been convicted for the offence punishable under Section 304 Part II of I.P.C. He has also undergone the imprisonment for a period of 32 months as undertrial prisoner during the course of trial. In light of the facts and circumstances and in this relation, the A-2 who has inflicted three successive knife blows who was helpless, the manner and mode in which the offence came to be committed by him the period undergone as a undertrial prisoner so far of 32 months is quite less against the maximum punishment of sentence under Section 304 Part II. However, since more than 13 years of period of lapse in between, he is also a man of 35 in the facts and circumstances of the case, other relevant and attendant aspects, the ends of justice will meet if the he is imposed imprisonment for a period of 4 years and a fine to pay Rs. 1 lakh in default to go further R.I. for a period of 14 months, if the amount of fine is deposited or paid in the trial Court, it will be open for the learned Sessions Judge, to pass appropriate order and directions for the disbursement in appropriate utilization of the said amount for the upkeepment and welfare of the minor and the young widow. It will be open for the trial Court to consider to deposit in three to four parts in the name of minor through guardian for his effective and constructive education for expanses, evocation of life. Again, it will be clarified that it will be open for the learned Sessions Judge to see that if so desires to pay reasonable amount of by way of compensation by A-C payee cheque, the direction for payment of compensation out of amount of fine are necessitated in the light of the peculiar facts and special circumstances, the plight and financial status of widow and the minor son.

153. In the result, A-1 Raghu @ Raghavbhai has been found guilty for offence punishable under Section 304 Part II read with Sections 109 and 114 of the Indian Penal Code and who has already undergone imprisonment for a period of 22 months as undertrial prisoner is to be treated as sufficient in the light of and role played by him and contribution causing the killing of deceased Shekhar. He shall also pay a fine of Rs. 75,000/- by way compensation in default thereon, to undergo further R.I. for 13 months. If the amount of fine being paid, the same shall be disbursed by the trial Court in accordance with law for the better upkeepment and welfare of the widow.

154. Insofar as A-2 Ghana is concerned he has been sentenced to undergo R.I. of 45 months and shall also pay a fine of Rs. 1,10,000/- for the offence punishable under Section 304 Part II in default to undergo further R.I. for a period of 14 months. If the amount of fine is paid out of which Rs. 10,000/- shall be disbursed to the minor son of the deceased who is studying in hostel by way of compensation in view of the provision of Section 357 of the Cr.P.C.

155. Sofaras A-3 Sanjay @ Gaddhi is concerned as already stated hereinbefore us and since he has undergone 23 months imprisonment as undertrial prisoner, in the facts and circumstances of the case and role played by him, shall be considered and treated as sufficient imprisonment. However, he shall also pay a fine of Rs. 25,000/- in default of paying fine, he shall undergo further R.I. for 11 months and if the fine is paid, it will be open for the learned Sessions Court to pass appropriate order for disbursement either by depositing in F.D.R. in part or in full for his career study and better upkeepment of the minor. It will also be open for the learned Sessions Judge concerned to exercise his discretion as to how best the total amount of fine be utilized and to see that the amount of compensation is to be paid and the purpose for invoking the provisions of Section 357 of the Cr.P.C. are sub-served.

156. Before concluding, it will be noted that during the course of marathon submissions on different occasions for the purpose of close considerations and evaluation insurance of the facts and rival submissions before us, we had called for our examination and consideration the muddamal Article from the trial Court. We had seen, inspected and examined mainly the muddamal knife incriminating knife A-2 Ghana and the iron rod held by A-1 Raghu we had them seen in the open Court in presence of the learned Advocates, since the matter is completed the Registry is directed return with a messenger the said muddamal Articles at the earliest opportunity.

157. Learned Advocate appearing for the accused persons has submitted that sufficient time should be granted for being paid the amount of fine. In the light of facts of the present case, the amount of fine shall be paid within a period of 2 months from today. A-2 Ghana is directed to surrender his bail serving out imprisonment imposed hereinbefore. He is granted six weeks time to surrender. The bail bond shall stand cancelled forthwith.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //