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Judgment
Subhash Kakade, J.—Heard finally.
Appellants Rajkumar and Anil Kumar have assailed the judgment dated 08/1/1997 passed by learned Additional Sessions Judge, Shahdol in Sessions Trial No. 201/95 convicting the appellant No. 1 Rajkumar for the offence punishable under Sections 489(B) and 489(C) of IPC and sentenced to undergo five years'' rigorous imprisonment on each count and convicting appellant No. 2 Anil Kumar for the offence punishable under Section 489(C) of IPC and sentenced to undergo rigorous imprisonment of five years.
At the outset learned counsel submitted that the appellant No. 1 Rajkumar has already been suffered his entire period of jail sentence and has been released from jail, therefore, he does not want to press this appeal in respect of appellant No. 1 Rajkumar. This fact frankly conceded by the learned counsel for the respondent State.
Co-accused Sanju Shrivastava is absconding.
The prosecution story in short is that on 17.08.1995 a telephonic message received from one Manmohan at Police Station Amlai, District Shahdol that one Nepali boy purchased shampoo from his shop and given one hundred rupee note which is suspected counterfeit. On this message Shri B.K.S. Parihar reached to the shop of Manmohan and enquired into the matter and found that Nepali boy Rajkumar using as genuine counterfeit currency note. This information were given by the applicant No. 1 Rajkumar to Investigation Officer that these notes were supplied to him by absconding co-accused Sanju Shrivastava and appellant No. 2 Anil Kumar. On basis of this information counterfeit currency notes were seized from the applicant No. 2 Anil and co-accused Sanju with various items which were purchased by these accused persons after selling the counterfeit currency notes, hence applicants were charge-sheeted.
In order to bring home the charges against appellants the prosecution examined witnesses Naib Tahsildar R.N. Pandey (PW/1), Bank Manager, State Bank of India, Danpuri Branch Shri Bhagwandas Beharwani (PW/2), Shop owner Manmohan (PW/3), Hoteller Virendra (PW/4) and other shop keepers Manoj (PW/5), Arun (PW/6), Ashish (PW/7), Suresh (PW/8) and Investigation officer Shri B.K.S. Parihar (PW/9) and placed 30 documents on record. The defence did not examine any witness.
The learned Sessions Court vide impugned judgment convicted the appellants and sentenced to undergo imprisonment as mentioned hereinabove.
Shri N.K. Mishra, learned counsel for the applicant submits that the learned trial Court has committed an error in holding the applicant No. 2 Anil guilty. It is also submitted that learned trial Court committed grave error in overlooking that there are material contradictions, omissions in depositions of prosecution witnesses. Finally, it is prayed that revision be allowed and the substantive sentence should be confined to the period already undergone by appellant No. 2 Anil Pal.
Per contra, Shri Abhay Raj Singh, learned Panel Lawyer for the State has submitted that after due appreciation of prosecution evidence, the learned trial Court has found the offence proved against the appellant No. 2, which requires no interference.
Having heard learned counsel for the parties, gone through the impugned judgment passed by learned trial court and statements of prosecution witnesses particularly Investigation Officer Shri Parihar (PW/9) I am of the view that the prosecution proved its case beyond doubt. The applicant No. 2 Anil gave the information to Shri Parihar (PW/9) about the counterfeit currency notes for which memorandum (Ex.P-2) were prepared with arrest memo (Ex.P-26) and counterfeit currency notes and other articles were also seized as per seizure memos (Ex.P-5, 6, 15 & 15A) prepared by Shri Parihar (PW/9) during investigation. This court is of the view that no error said to have been committed by the learned trial court in recording guilt of the applicant No. 2 Anil herein and convicting him for the offence punishable under Section 489(C) of IPC on the basis of evidence of the aforesaid witness and documentary evidence.
Other discrepancies which have been highlighted do not really earn the status of contraction to make the evidence of these witnesses impeachable, incredible or not beyond reproach. Therefore, the present appeal is likely to be dismissed on its merits.
Now, the question arises that as to how a balance should be struck and maintained in regard to the sentence.
The question of sentence is always a difficult and complex question. The accused persons may be hardened or professional criminals, or they may have taken to crime only recently, or may have committed the crime under the influence of bad company or due to provocative wrongful action seriously injuring the feelings and sentiments of the accused. In considering the adequacy of the sentence, which should neither be too severe nor too lenient, the Court has to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including antecedents) and station in life of the offender.
Sentencing is always a matter of judicial discretion subject to any mandatory minimum prescribed by law. In judging the adequacy of a sentence the nature of the offence, the circumstances of the commission, the age and character of the offender, injury harm to individuals, to society, effect of the punishment on the offender, possibility of correction and reformation are some of the factors which would ordinarily be taken into consideration by Courts.
On the commission of crime, three types of reactions may generate:-
(i) The traditional reaction of universal nature which is termed as punitive approach. It regards the criminal as a notoriously dangerous person who must be inflicted severe punishment to protect the society from his criminal assaults.
(ii) The other approach is the therapeutic approach. It regards the criminal as a sick person requiring treatment.
(iii) The preventive approach which seeks to eliminate those conditions from the society which were responsible for crime causation.
The therapeutic approach aims at curing the criminal tendencies which were the product of a diseased psychology. There may be many factors, including family problems. We are not concerned with those factors as therapeutic approach has since been treated as an effective method of punishment which not only satisfies the requirements of law that a criminal should be punished and the punishment prescribed must be meted out to him, but also reforms the criminal through various processes, the most fundamental of which is that in spite of having committed a crime, may be a heinous crime, he should be treated as a human being entitled to all the basic human rights, human dignity and human sympathy. It was under this theory that the apex court in a stream of decisions, projected the need for prison reforms, the need to acknowledge the vital fact that the prisoner, after being lodged in jail, does not lose his fundamental rights or basic human rights and that he must be treated with compassion and sympathy.
What can be the rationale for sending a convict behind bars? When he returns back to the fold of the previous society after serving sentence, seldom any change is noticed in his mental attitude. There is of course one change-he has already become older. Finding himself unwanted in the society, and even in his own family, he may either withdraw himself and slide into seclusion or become more prone to commit crimes. Thus in the ultimate analysis it appears that sentence of imprisonment cannot bring about any real good for the society. That apart, there is another aspect. The prisoners cannot and should not perhaps be kept in prisons underfed. In addition to the convicts, a large number of undertrial persons are sent to jails. As such, one can easily imagine the colossal expenditure the State has to bear in maintaining a family of millions. The money spent on such account is an unproductive expenditure. This economic aspect cannot perhaps be overlooked altogether.
That is why there is a demand that sentence should be corrective-oriented. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the 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.
Following facts are important to mention here:-
(i) That the applicant No. 2 Anil was not directly instrumental for selling of counterfeit currency notes in the market, he was the applicant No. 1 Rajkumar, Nepali boy was caught hold red-handed while he was selling the counterfeit currency notes who also suffered full term of his punishment period.
(ii) That the applicant No. 2 Anil is convicted for the offence punishable under Section 489(C) of IPC for which no minimum sentence is prescribed.
(iii) More than 18 years have been elapsed from the date of incident i.e. 17.08.1995.
(iv) That 35 years old appellant Anil was taken in custody by the learned trial Court on 17.08.1995 and was bailed out by the learned trial Court on 17.10.1995 i.e. 2 months. After conviction vide impugned judgment dated 08.01.1997 he was again brought under custody and was released on bail by this Court vide order dated 09.04.1997 i.e. more than three months. In compliance of order dated 07.02.2014 he was arrested and brought before this court on 25.03.2014 i.e. more than two and half months since then he is suffering remaining part of his sentence. This way the appellant no.2 has already served more than seven and half month''s actual imprisonment against his sentence for five years.
Considering all above facts and circumstances of the case, also taking into consideration the inordinate delay of more than 18 years in final disposal of the case, I am of the considered opinion that in the instant case the most appropriate sentence should be that the appellant no.2 Anil should be sentenced for the period already undergone by him i.e. seven and half months actual imprisonment against his punishment for R.I. of five years.
In the result, upholding the order of conviction recorded by the learned trial Court. I reduce the sentence awarded to the appellant No. 2 Anil to the sentence already undergone by him. The appeal to that extent is allowed and the impugned judgment is modified. The appellant no.2 Anil is in jail, hence release order be issued forthwith, if not required in any other case.