S.S.R. Veluswami vs Sabestian and 5 Others

N. Animugham, J.—Heard. The fifth witness in C.C. No. 2 of 1988 on the file of the VI Additional Assistant Sessions Judges, Tiruchirapalli, is the revision Petitioner herein canvassing the judgment rendered by the learned Sessions Judge, Tiruchirapalli, in C.A. No. 159 of 1988 dated 16.11.1994 conforming the conviction imposed by the trial Judge, but however, modified the sentence of three years u/s 420 I.P.C. against Al and three years each u/s 420 read with Section 109 and Section 477(A) against A2 to A5, in to one of 2 1/2 years each by giving benefit under the five G.Os. passed by the Government of Tamil Nadu.

Aggrieved at this judgement modifying the sentence by the learned lower appellate Judge, the 5th witness examined by the prosecution has come forward with this revision challenging the property and legality of the impugned judgment.

Heard the Bar for and against the impugned judgment. It is noted that the Bar for the respective parties confined their arguments only with regard to the quantum of sentence modified by the lower appellate Judge and on that score the revision was sought to be admitted on the ground that the lower appellate Judge, instead of arriving at an independent conclusion over the quantum of sentence had pursued his mind already with the total period of remission provided by five G.Os in all to give remission of the sentence, and that by making so commensurate with the period of remission provided in five G. Os totally, the learned Judge has modified the sentence and thus giving effect to the G. Os is highly improper and erroneous and for the said reasoning alone the impugned judgement cannot be accepted for want of its legal sanctity and propriety.

The short question that arises in this revision is only with regard to the competency of the learned appellate Judge in modifying the quantum of sentence and giving the benefit of remission as above referred.

I have gone through the impugned judgment. From a careful perusal of the impugned judgment, particularly, the operative portions in the last two paragraphs, it is patently clear that the learned lower appellate Judge while giving the reasoning has covered the period so consumed as a ground for modification, but never provided any interaction or nexus for the modification of the period in all the counts of charges to a total period of modification into 2 1/2 years, which approach, in my considered view, is not only erroneous, but also alien to the functionary system of a Judge on the existing Code of Criminal Procedure system. Each count of charges with the gravity of the offences established by the prosecution has to be assessed necessarily and independently with regard to the awarding of punishment by way of sentence or fine. The law provided therefore under the Indian Penology has to be necessarily adverted to and by so doing, the Court has to arrive at or evolve the adequate sentence to each of the counts in which the prosecution offered to prove. This rule however, appears to have not been followed by the learned lower appellate Judge in the instant case. There is no iota of legal exercise to identify the above and it is manifest that the words employed by the learned Judge in modifying the sentence awarded by the trial Court was certainly in furtherance of the benefit of the remission provided in the five G. Os. passed by the Government of Tamil-Nadu. In fact I need not say that giving the benefit of remission is not the duty of the Court of law, but it is the administrative function of the Executive. But instead, unfortunately it has been done by the learned lower appellate Judges. With regard to this erroneous approach adopted by the learned lower appellate Judge. The Bar for the Respondents is not in controversy to this limited extent. With regard to the factual aspects referred by the learned Judge, I have had no say from the Bar for the respective parties. For all the reasoning aforesaid after having fully considered, I feel that this revision has to be allowed and accordingly, it is allowed. While doing so, I feel that there exists no need to remit back the matter to the lower appellate Judge for reconsidering the quantum of sentence for the very reasoning given by the learned trial Judge, who has given more reasoning, which is accepted in all. Accordingly, while setting aside the impugned judgment rendered by the lower appellate Judge, I hereby restore the judgment of conviction and sentence rendered by the trial Judge, in this, in full.