BIJENDER @ PAPU AND ANR Vs. STATE OF HARYANA. Dated - June 03, 2016

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 463 of 2016, Judgment Date: Jun 03, 2016

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.463 OF 2016
                 (Arising out of SLP(Crl.) No. 1754 of 2016)


Bijender @ Papu and Anr.                                 …..Appellants

                                  Versus

State of Haryana                                         …..Respondent


                               J U D G M E N T

SHIVA KIRTI SINGH, J.

This criminal appeal arises from a special leave petition  in  which  notice
was issued solely on the question of sentence.  From that point of view,  it
is necessary to keep in  mind  only  the  relevant  broad  features  of  the
prosecution  case  that  were  accepted  by  the  trial  court  leading   to
conviction of the two appellants as well as three others under  Section  325
read with Section 149 and under Sections 148A, 308/149 and  323/149  of  the
IPC. The Trial Court imposed punishment of rigorous imprisonment  for  three
years alongwith a fine of Rs.12,000/- each for  the  offence  under  Section
308/149 and lesser sentences including fines  for  the  remaining  offences.
Rs.70,000/- out of the fine amount was ordered to be  paid  to  the  injured
Budhram by way of compensation.  The High Court heard the appeal of all  the
five  convicts  against  their  conviction  and  sentence  together  with  a
criminal revision filed on behalf of the injured Budhram for converting  the
conviction of all for the offence under Section 307  IPC  and  for  enhanced
punishment.  The High Court considered the materials in detail and held  the
appellants as well as other three co-accused guilty  of  offence  punishable
only under Section 325 read with Section  149  of  the  Indian  Penal  Code.
While maintaining the conviction and sentence for the other minor  offences,
the High Court, for the aforesaid major offence enhanced the sentence to  RI
for five years and fine of Rs.20,000/- each and  in  default  the  concerned
convict has to undergo further imprisonment for a period of one year.
On behalf of the appellants it has been highlighted that the other three co-
accused who were convicted for similar offences were  ordered  by  the  High
Court to  be  released  on  probation  of  good  conduct  for  the  term  of
imprisonment.   Although such relief was granted to those  three  co-accused
mainly on consideration of their old age varying between  85  to  75  years,
the appellants claim parity on account of similar role assigned to  all  the
five convicts.
It was also highlighted that the occurrence is of 1997  and  the  ordeal  of
long trial has been faced by the appellants for about 19 years.
 The parity claimed by  the  appellants  is  misconceived.   The  concession
shown to other three convicts was mainly on the ground of their extreme  old
age and that in our view justified the special treatment extended  in  their
case.  The High Court enhanced the sentence from three years to  five  years
RI for the main offence because it was concerned and moved by the  suffering
of the injured Budhram on account of the sole head injury caused  by  lathi.
Budhram was brought to court but was unable  to  depose  because  of  mental
impairment suffered by him.  Had the  prosecution  witnesses  been  able  to
pinpoint the accused who caused the head injury on Budhram,  we  would  have
definitely treated him to  be  responsible  of  a  graver  offence  meriting
higher punishment but unfortunately no such specific role has been  assigned
to any of the five convicts.  In such a  situation,  considering  the  other
facts and circumstances, particularly the genesis of  the  occurrence  which
was on account of a dispute between the parties  over  a  right  to  have  a
drain in a passage, we are persuaded to reduce the period  of  sentence  for
the offences under Section 325 read with Section 149 of the IPC  in  respect
of both the appellants from five years  to  three  years  RI.  However,  the
amount of fine and conviction and  sentence  for  other  offences  are  left
intact.
With the aforesaid modification in  the  sentence  of  the  appellants,  the
Appeal is disposed of.
                                                           …………………………………….J.
                                                            [DIPAK MISRA]

                                                           …………………………………….J.
                                                      [SHIVA KIRTI SINGH]
New Delhi.
June 03, 2016.
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