Uggarsain vs State of Haryana & Ors (03/07/2023)

Having held all the accused criminally liable, under Section 304 Part II read with Section 149 IPC and also not having found any distinguishing feature in the form of separate roles played by each of them, the imposition of the “sentence undergone” criteria, amounted to an aberration, and the sentencing is for that reason, flawed.

Significance and importance of imposing appropriate, “adequate” or “proportionate” punishments. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinkingThinking Human beings began conscious thought as far back as sixty million years ago. By around three hundred thousand years ago, humans inhabiting the Indian subcontinent had developed forms of cognition comparable to those of the modern age, including awareness of competition, defense, and collective security. These early communities were capable of abstract observation, such as counting stars in the night sky, and engaged in reflective discussion about everyday experiences, including the flavors and qualities of food, indicating a sophisticated mental and social life. while determining the question of awarding appropriate sentences.

SUPREME COURT OF INDIAArticle 124 of the Constitution of India Constitution of India > 124. Supreme Court (1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges. (2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal and shall hold office until he attains the age of sixty-five years: Provided that-- (a) a Judge may, by writing under his hand addressed to the President, resign his office (b) a Judge may be removed from his office in the manner provided in clause (4). (2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide. (3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and-- (a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or (b) has been for at least ten years an advocate of a High Court or of two or more such courts in succession; or (c) is, in the opinion of the President, a distinguished jurist. (4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-third of the members of the House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. (5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4): (6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule. (7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.

Uggarsain Vs. State of Haryana & Ors.

[Criminal AppealCriminal Appeal Shankar Kerba Jadhav and others vs. The State of Maharashtra (AIR 1971 SC 840): "An appeal is a creature of a statute and the powers and jurisdiction of the appellate Court must be circumscribed by the words of the statute. At the same time a Court of appeal is a "Court of error" and its normal function is to correct the decision appealed from and its jurisdiction should be co-extensive with that of the trial Court. It cannot and ought not to do something which the trial Court was not competent to do. There does not seem to be any fetter to its power to do what the trial Court could do." No(s). 1378-1379 of 2019]

DATE: 03/07/20232023 Main events: Library Posts

ACT: Section 302 of IPC and Section 304-Part II IPC/Section 148 IPC

JUDGMENTJudgment The statement given by the Judge on the grounds of a decree or order - CPC 2(9). It contains a concise statement of the case, points for determination, the decision thereon, and the reasons for such decision - Order 20 Rule 4(2).  Section 354 of CrPC requires that every judgment shall contain points for determination, the decision thereon and the reasons for the decision. Indian Supreme Court Decisions > Law declared by Supreme Court to be binding on all courts (Art 141 Indian Constitution) Civil and judicial authorities to act in aid of the Supreme Court (Art 144) Supreme Court Network On Judiciary – Portal > Denning: “Judges do not speak, as do actors, to please. They do not speak, as do advocates, to persuade. They do not speak, as do historians, to recount the past. They speak to give Judgment. And in their judgments, you will find passages, which are worthy to rank with the greatest literature….” Law Points on Judgment Writing > The judge must write to provide an easy-to-understand analysis of the issues of law and fact which arise for decision. Judgments are primarily meant for those whose cases are decided by judges (State Bank of India and Another Vs Ajay Kumar Sood SC 2022)

S. Ravindra Bhat, J.

1. These appeals, by special leave, arise from the judgment and orders (1) passed by the High CourtHigh Court High Court Judges in England and Wales handle complex and tough cases, sitting in London and traveling to court centers around the country. They preside over serious criminal and important civil cases, and support the Lord and Lady Justices in hearing appeals. High Court Judges are commonly referred to as ‘Mr/Mrs/Ms Justice surname’ and are given the prefix ‘The Honourable’. They are assigned to the King’s Bench Division, the Family Division, or the Chancery Division. The King’s Bench Division focuses on civil wrongs and judicial review, the Family Division deals with family law, and the Chancery Division handles various cases including company law and probate. Judges are appointed through a rigorous process overseen by the Judicial Appointments Commission. of Punjab and Haryana (2), converting the decision of conviction given by the trial courtTrial court Court of original Jurisdiction > the court which examines the evidences for the first time. from Section 302 of the IndianIndia Hind/ hend >hindia. Bharat Varsha (Jambudvipa used in Mahavamsha) is the name of this land mass. The people of this land are Sanatan Dharmin and they always defeated invaders. Indra (10000 yrs) was the oldest deified King of this land. Manu's jurisprudence enlitened this land. Vedas have been the civilizational literature of this land. Guiding principles of this land are : सत्यं वद । धर्मं चर । स्वाध्यायान्मा प्रमदः । The place also been called Hindusthan in Pesia. The word Hendu is mentioned in Avesta. Read more Penal CodePenal Code Indian Penal Code (Naya Samhita-2023), Pakistan Penal code-1960,, 1860 (hereafter “IPC”) to Section 304-Part II IPC. These appeals have been preferred by the informant/complainant.

2. The prosecution alleged that on the eve of Holika Dahan, i.e., 07.03.2012, Krishan (A-1) abused Subhash (the deceased). On the next day, Brahmjit, son of Krishan (A6), inflicted danda blows upon Subhash at about 10.00/11.00 AM. Due to this, at about 3.00 PM, when Pawan, Uggarsain and Subhash (deceased) were sitting in front of their house, Brahmjit came near their house and started abusing them, which aggravated the situation.

Thereafter, all the accused, namely Raju, son of Krishan (A2), Krishan, Parveen (A3), Sunder- son of Amit (A4), Sunder-son of Rajpal (A8), Nar Singh (A-7), Sandeep (A-5) and others reached the spot, with weapons. Raju inflicted blow on the right shoulder of Sita RamLord Rama A prince of the Solar Dynasty (Ikshaku Vamsa, capital Ayodhya). His victorious story was portrayed by Valmiki in Ramayana. He identified him as the Avatar of Lord Vishnu. When the Brahmins became unethical, cruel, and greedy, he appeared to restore the Sanatan Dharma. He was trained by Rishi Viswamitra.  His rule impacted for 10000 years. Ramrajya means good administration. (PW1). Krishan inflicted a blow at the back of Sita Ram with an iron pipe and Brahmjit inflicted a farsa blow on the right of Sita Ram’s head. Sunder was armed with a rod; Nar Singh and Sandeep were carrying farsas with them. They caused injuries on Pawan, Uggarsain and Subhash. The injured were taken to hospital.

3. On 09.03.2012, on the receipt of intimation, the police registered the case under Sections 147, 148, 149 and 323 IPC. Subash, who was gravely wounded, having received multiple injuries, was removed to the hospital; later, a surgery too was performed on him. However, he did not survive and passed away on 12.3.2012.

Thereupon, Section 302 IPC was added in the FIR, on 13.3.2012. Postmortem was conducted, and the doctor (PW5- Dr. Kunal Khanna) recorded in the post-mortem report that the death was caused by injuries sustained by the deceased on the head and its attendant complications.

The police arrested the accused. Later, weapons were recovered on the basis of disclosure statements made by them. On the statement of PW1-Sita Ram, the prosecution moved an application under section 319 of the Criminal Procedure Code (hereafter “Cr.P.C.”) for summoning an additional accused, namely Sunder.

4. All the eight accused persons were charged with and tried for offences punishable under Sections 148, 323 and 302 read with Section 149 IPC. The prosecution examined twenty-two witnesses and recorded their deposition. PW.3- Dr. Sant Lal Beniwal did medico-legal examination of Sita Ram (PW1), Uggarsain (PW2) and Pawan.

He recorded different injuries caused on the complainants’ bodies and stated that the probable duration of injuries was within six hours by blunt weapon. PW8- Dr. Pradeep Kumar stated that Subash (deceased) had received only one injury. PW4- Dharmender Singh prepared the site plan.

The defence examined two witnesses. DW1-Bikram Singh deposed that he was authorized to produce, and accordingly brought a computerized attendance register stating that on 8.3.2012 (the day of the incident), one accused, i.e., Parveen Parmar had performed his duties as a security guard from 7.00 AM to 7.00 PM. DW2- Dr. Naresh Kumar, who had medico legally examined the accused Krishan and Brahmjit and recorded a fracture of the right clavicle bone of Krishan and a nasal bone fracture of Brahmjit, also deposed in favour of the defence.

5. The trial court held that all the accused persons reaching the spot together armed with weapons and their attack on the victims, including the deceased exhibited the intentionIntention This means to “have in mind.” A plant to do a thing (Planning: premeditation is evident through evidence of active preparation, e.g., hoarding pills, purchase of weapon). It refers to the aim, purpose, or goal of the behavior, e.g., to seek an end to/solution. A conscious mental process to move precedes the brain’s preparation for movement. of an unlawful assembly, to inflict deadly injuries. The nature of injuries found on the deceased indicated common intention of the assembly extended to causing death, which in factFact Something तथ्य (In-formation) that truly exists or happens or some-thing that has actual existence. Circumstances: a fact or event that makes a situation the way it is. Indian Evidence Act: It means and includes— (i) anything, state of things, or relation of things, capable of being perceived by the senses; (ii) any mental condition of which any person is conscious. “facts in issue” means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows., occurred.

The trial court held that the prosecution’s inability to explain the injuries on the accused did not absolve them of their role in the attack and causing the death of Subhash, because the evidenceEvidence All the means by which a matter of fact, the truth of which is submitted for investigation, is established or disproved. Bharatiya Sakshya (Second) Adhiniyam 2023 relied onRelied on Relied to make the decision (ratio decidendi) and not only referred to push an issue. was credible. The evidence of two witnesses consistently supported the prosecution case in their statements before the police as well as in court.

Their testimonies were corroborated by medical evidence. The trial court3 convicted all the accused as charged and sentenced them to rigorous imprisonment for life under Section 302 r/w Section 149 IPC and one year’s rigorous imprisonment under Section 148 IPC; six months rigorous imprisonment for the offence under Section 323 read with Section 149 IPC.

6. The accused appealed to the High Court, which by the impugned judgment, partly allowed their pleas and converted their convictions under Section 302 read with 149 IPC to Section 304 Part II read with Section 149 IPC. It, however, affirmed the convictions under Section 148 and Section 323 read with Section 149 IPC. The High Court observed that the lack of explanation of injuries received by Krishan and Bharmjit undermined the prosecution story and that Subash, the deceased, had received only one injury, according to PW.8- Dr. Pardeep Kumar.

Finally, the High Court held that the case fell under Exception 4 to Section 300 IPC, as tempers were running high between the parties, and a sudden fight occurred when the complainant party reached in front of Krishan’s house, which meant that the accused did not act in a pre-meditated manner. Aggrieved, the informant Uggarsain appealed to this court, against the conversion of conviction and corresponding reduction of sentence.

7. During the hearing, this court indicated that these appeals would be confined to the extent of appropriateness of sentences undergone by different accused persons for causing the same offence.

The different periods undergone by convicts are: Krishan had undergone 09 years, 05 months and 04 days of imprisonment with remissions; Raju underwent 03 years, 01 month and 01 day of imprisonment; Parveen had suffered 01 year, 11 months and 27 days of imprisonment; Sunder s/o Amit Lal had undergone 02 years and 05 days of imprisonment; Sandeep had undergone 01 year, 11 months and 12 days of imprisonment; Brahamjit had undergone 08 years, 11 months and 19 days of imprisonment (including remissions); Nar Singh had undergone 01 year and 04 months of imprisonment and Sunder s/o Rajpal had undergone 11 months and 16 days of imprisonment.

8. The appellants argued that the High Court was wrong in inferring that the injuries were caused due to a sudden fight. Counsel highlighted that the accused who were convicted concurrently, had deliberately gone near the informant/victims’ house to cause deadly injuries- in fact, one of the informant parties died as a consequence.

Having regard to the established facts, the object of the assembly was for use of such force, which resulted in death. Therefore, the sentencing in the present case had to be fit and appropriate, and the impugned judgment gravely erred in adopting the standard of sentence undergone, which resulted in widely different and disparate results.

At one end of the spectrum, one of the accused (Sundar s/o Rajpal) suffered incarceration for a little over 11 months, whereas Krishan had undergone 09 years, 05 months and 04 days. The appellant informants urged that this court should adopt a somewhat uniform sentencing standard when the role of each accused was practically indistinguishable.

9. On behalf of the accused, it was pointed out that the High Court had, in fact, gone by the salutary principles indicated by this court, in that the relative ages of the accused, their family circumstances, the length of timeTime χρόνος. Judicial: Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”) यमः , पुं, (यमयति नियमयति जीवानां फलाफलमिति । यम् + अच् । विश्वे च कलयत्येव यः सर्व्वायुश्च सन्ततम् । अतीव दुर्निवार्य्यञ्च तं कालं प्रणमाम्यहम् ॥यमैश्च नियमैश्चैव यः करोत्यात्मसंयमम् । स चादृष्ट्वा तु मां याति परं ब्रह्म सनातनम् ॥ they spent in custody, as well as the length of time that had elapsed since the commission of the crimeCrime A positive or negative act in violation of penal law; an offense against the state classified either as a felony or misdemeanor., all were considered.

10. This court has, time and again, stated that the principle of proportionality should guide the sentencing process. In Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat (4) it was held that the sentence should “deter the criminal from achieving the avowed object to (sic break the) lawLaw νόμος:  Positive command of sovereign or divine. One can be ruled either by a Statute, a Statue, or a Statement. Legislation is the rule-making process by a political or religious organisation. Physics governs natural law. Logical thinking is a sign of a healthy brain function. Dharma is eternal for Sanatanis. Judiciary > Show me the face, and I will show you the law. Some people know how to bend the law rather than break it. Law Practice. Read a scholarly article,” and the endeavour should be to impose an “appropriate sentence.” The court also held that imposing “meagre sentences” “merely on account of lapse of time” would be counterproductive.

Likewise, in Jameel v. State of U. P.,5 while advocating that sentencing should be fact-dependent exercises, the court also emphasised that “the law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.

The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motiveMotive Intending to collect money he started to motivate the people to donate to him. Intention comes first then motive to take the course. Motive is action > Reason, Root, Rationale, Purpose, Excuse. Section 4 BSA (Admission/Confession of Motive-S 22 BSA)  for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.”

11. Again, in Guru Basavaraj v. State of Karnataka,6 the court stressed that it “is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order” and that sentencing includes “adequate punishment”.

In B.G. Goswami v. Delhi Administration(7), the court considered the issue of punishment and observed that punishment is designed to protect society by deterring potential offenders as well as prevent the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question of awarding appropriate sentences.

12. In Shyam Sunder v Puran & Anr8, the accused-appellant was convicted under Section 304 Part I IPC. The appellate court reduced the sentence to the term of imprisonment already undergone, i.e., six months. However, it enhanced the fine. This court ruled that sentence awarded was inadequate. Proceeding further, it opined that: –

“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 justiceJustice δικαιοσύνη > judicature ( δικαιοσύνη) > judge (δικαστής / κριτής). The whole purpose of Plato`s Republic is to search for Justice. The purpose of Justice is to establish a perfect State. The State of happiness (ευτυχία). We are of opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. that to meet the ends of justice, the sentence has to be enhanced.”. This court enhanced the sentence to one of rigorous imprisonment for a period of five years.

This court has emphasized, in that sentencing depends on the facts, and the adequacy is determined by factors such as “the nature of crime, the manner in which it is committed, the propensity shown and the brutality reflected” [Ravda Sashikala v State of Andhra Pradesh9]. Other decisions, like: State of M.P. v. Bablu10; Raj Kumar 11 and State of Punjab v. Saurabh Bakshi (2015 (3) SCRSupreme Court Reports It is the official Reporter of the reportable decisions delivered by the Supreme Court of India. It is published under the authority of the Supreme Court of India by the Controller of Publications, Government of India. 590) too, have stressed the significance and importance of imposing appropriate, “adequate” or “proportionate” punishments.

13. In the present case, the High Court noted the respective ages of the accused-i.e., Krishan (61 years); Raju (40 years); Parveen (32 years); Sundar (39 years); Sandeep (25 years); Nar Singh (41 years) and Sunder s/o Rajpal (36 years). The court noted that Bramhajit had served in the armyArmy The Army of the Islamic Republic of Iran shall be an Islamic army, which is an ideological and peoples army and which shall recruit competent individuals faithful to the objectives of the Islamic Revolution and ready to make sacrifices for attaining the same. (Art-144). Apart from these, the court noted the relative family circumstances: the numberNumber Αριθμός of children each accused had. It then adopted a uniform rule, i.e., the period of sentence undergone by the accused, as the appropriate sentence.

14. As noted earlier, all the accused were found concurrently guilty under Section 148 IPC; they were armed with different kinds of implements and weapons, that were capable of inflicting deadly injuries. The postmortem report of Subhash revealed at least six serious head injuries, including fracture and haemorrhage in different places. Pawan, Uggarsain and Sita Ram, others from the complainant party also concededly suffered injuries.

Though the High Court was of the opinion that no explanation was given by the prosecution about the injuries on the accused, their nature does not seem to have been serious. At any rate, the court did not find that sufficient reason to upset the sentence under Section 149 read with Section 304 II IPC.

15. The sentencing in this case, to put it mildly, is inexplicable (if not downright bizarre). On the one hand, Krishan underwent sentence for 9 years 4 months- at the other end of the spectrum, Sunder s/o Rajpal underwent only 11 months. No rationale appears from the reasoning of the High Court for this wide disparity.

It is not as though the court took note of the role ascribed to the accused (such a course was not possible, given the nature of the evidence). If it were assumed that the age of the accused played a role, then Krishan, at 61 years- who served 9 years and Brahmajit, who had served in the army, and was detained for over 8 years got the stiffest sentence. On the other end of the scale, younger persons were left relatively unscathed, having served between 3 years and 11 months.

16. The impugned judgment, in this court’s opinion, fell into error in not considering the gravity of the offence. Having held all the accused criminally liable, under Section 304 Part II read with Section 149 IPC and also not having found any distinguishing feature in the form of separate roles played by each of them, the imposition of the “sentence undergone” criteria, amounted to an aberration, and the sentencing is for that reason, flawed.

This court is, therefore, of the view that given the totality of circumstances (which includes the fact that the accused have been at large for the past four years), the appropriate sentence would be five years rigorous imprisonment. However, at the same time, the court is cognizant of the fact Krishan and Bramhajit served more than that period.

Therefore, the impugned judgment, as far as they are concerned, is left undisturbed. Consequently, the sentence of Raju, Parveen, Sunder s/o Amit Lal, Sandeep, Nar Singh, and Sunder s/o Rajpal is hereby modified; they are hereby sentenced to undergo Rigorous Imprisonment for five years. They shall surrender and serve the rest of their sentences within six weeks from today.

17. The appeals are partly allowed, in the above terms. No costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..

J. [S. Ravindra Bhat]

J. [Dipankar Datta]

New DelhiNew Delhi Indraprastha, the capital of Emperor Yudhisthira and Pandavas constructed by Mayasura, where Rajasuya Yagna was performed under the guidance of Krishna Dvaipayana and the protection of  Vasudeva Krishna in the present-day Raja Ghat area. Prtvi Rajaj was the last Hindu king of Delhi.

July 03, 2023.

___________________

1 Dated 27.08.2019 and 03.09.2019.

2 In Criminal Appeal bearing No. 249 DB of 2016

3 Judgment dated 11.02.2016 and order dated 17.02.2016, in Sessions Trials No. 160 of 30.07.2012, 275 of 04.12.2012 and 114 of 15.04.2013.

4 2009 [8] SCR 719

5 2009 [15] SCR 712

6 2012 [8] SCR 189

7 1974 (1) SCR 222

8 1990 Suppl [1] SCR 662

9 2017 [2] SCR 379

10 2014 [9] S.C.R. 467

11 2013 (5) SCR 979