State of Orissa vs Dukhalu Nag @ Tika Nag and Others

Heard.

This appeal is u/s 377, Cr.P.C. as against the inadequacy of sentence imposed by the Learned Sessions Judge, Kalahandi at Bhawanipatna on the accused persons in Sessions Case No. 23 of 1988.

It appears from the impugned Judgment that accused persons were aggressors on the boundary dispute, which was protested by the members of the prosecution party. For the occurrence that occurred, charge was framed for the offence under Sections 147/ 148/307, I.P.C. The Trial Court on ultimate analysis of the facts and evidence, found that the accused persons are guilty of the offence under Sections 147, 148, I.P.C. Accused Dukhalu Nag is guilty of the offence u/s 324, I.P.C. for causing injuries on Krushna Chandra Sahu (P.W. 4), accused Ghutu Nag is guilty of the offence u/s 326, I.P.C. for causing grievous injury on Krushna Chandra Sahu (P.W. 4), accused persons Picharu Nag, Kulu Nag and Laxman Nag were guilty of the offence u/s 323, I.P.C. for causing injuries on Krushna Chandra Sahu (P.W. 4). As against such conviction, the Trial Court awarded the sentence of rigorous imprisonment for two weeks against each of the accused persons for the offence u/s 147, I.P.C. and for three weeks u/s 148, I.P.C. Accused Ghutu @ Laibana Nag was sentenced to undergo rigorous imprisonment for three months and one week and to pay fine of Rs. 500/- for the offence u/s 326, I.P.C. Accused Dukhalu Nag was sentenced to undergo rigorous imprisonment for six weeks and to pay fine of Rs.500/- for the offence u/s 324, I.P.C. and accused Picharu, Kalu and Laxman were sentenced to pay fine of Rs.500/- each for the offence u/s 323, I.P.C.

Learned Addl. Government-Advocate referring to the provision in Section 354(4), Cr.P.C. and Section 377, Cr.P.C. argues that the sentence is absolutely inadequate and appropriate sentence be imposed for the aforesaid offence.

Learned Counsel for the accused-Respondents, without challenging the finding and order of conviction, argues that because of lapse of time the sentence imposed need not be disturbed because occurrence took place in the year 1988 i.e. about 20 years back. In the alternative, he argues that lenient view may be taken and minimum sentence, which would be deemed reasonable, be imposed.

It may be noted that Section 377, Cr.P.C. does not authorize for alteration of the conviction for a severe offence. In this case, State does not argue for change of the order of conviction for the offence u/s 307, I.P.C. Even the State has not preferred any appeal against order of acquittal from the charge u/s 307, I.P.C. It may also be noted that, under Sub-section (3) of Section 377, Cr.P.C, it has been provided that while replying to the motion for enhancement of sentence, accused may plead for his acquittal or for reduction of the sentence. As noted earlier, accused-Respondents do not plead for acquittal nor they plead for reduction of sentence, inasmuch as, they argue to maintain the sentence awarded by the Trial Court or else to take a lenient view under the circumstance as stated them.

Thus, we confine ourselves to the question of enhancement of sentence.

Sub-section (4) of Section 354, Cr.P.C. provides that "354. Language and contents of Judgment-

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(4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code.-+

Accused persons were convicted for the following offences as against the maximum sentence noted against each of the offences.

147 I.P.C. - Imprisonment for two years, or fine, or both, 148 I.P.C. - Imprisonment for three years, or fine, or both, 323 I.P.C. - Imprisonment for one year, or fine of Rs. 1,0007 or both, 324 I.P.C. - Imprisonment for three years, or fine, or both, 326 I.P.C - Imprisonment for life, or imprisonment for ten years and fine. 8. The above quoted provisions on punishment and the tabular chart noting down the offences and the punishment prescribed therefor, clearly indicate that in this case for imposing a lesser sentence than three months was to be followed with reasons recorded in the Judgment. Learned Sessions Judge heard the parties on sentence and did not accept the plea to extend benefit of Probation of Offenders Act in favour of the accused persons. At the same time, he did not explain any reason for inflicting such lesser sentence as already noted. Therefore, save and except for the offence u/s 326, I.P.C, where the punishment was a week above three months, the sentence imposed for the other offences was in violation of the mandate of law in Section 354(4), Cr.P.C. State argues that punishment inflicted for the offence u/s 326, I.P.C. is absolutely inadequate keeping in view the punishment provided for that Section (Section 326, I.P.C).

Besides the theories on punishment, the fundamental concept is that object of punishment of an accused in a progressive civilized society is to make aware the guilty parity that crime does not pay. At the same time, while imposing a sentence, a Court is to be conscious of its statutory duty to exercise the discretion of imposing a sentence by adhering to the penal provision, the background of the accused, the crime for which he has been convicted, attendant circumstances thereof, lapse of time in between and so on and so forth and to pass a speaking and reasoned order on sentence when it is either high or inadequate. Not only Section 377, Cr.P.C. on appeal by the State authorizes the High Court to consider the inadequacy of sentence but also provision in Section 397 read with Section 401, Cr.P.C. authorizes the High Court even to suo motu consider that aspect, of course, on prior notice to the accused.

As noted earlier, indeed the Trial Court did not discharge the duty cast on it under law while imposing lesser sentence. Be that as it may, we consider the fact involved in this case that the occurrence took place as an outburst of the boundary dispute between two parties, in which accused persons were the aggressors. That occurrence took place as back as on 21.04.1988 i.e. about two decades before. Therefore, regard being had to that circumstance and the gravity of the offence under Sections 147, 148, 323 and 324, I.P.C., we allow the sentence imposed by the Courts below to be maintained though there are good reasons to enhance the same and we do not do that because of long lapse of time. At the same time, the punishment, which was imposed for the offence u/s 326, I.P.C., is grossly inadequate. Therefore, taking aforesaid facts and circumstance into consideration, we take a liberal view and enhance the sentence to rigorous imprisonment for one year and to pay fine of Rs. 1,000/- (one thousand) and in default of payment of fine, he is to serve sentence of rigorous imprisonment for a further period of six months. The fine amount received in the case be paid to the injured. That enhanced sentence is to be served by accused-Respondent Ghutu Nag.

The Government Appeal is allowed accordingly.