State Of Gujarat (S) v. Bharatkumar Rameshchandra Barot Opponent(S)/(S)

K.S Jhaveri, J.:— The present appeal is filed by the State under Section 377 of Code of Criminal Procedure, seeking for enhancement of sentence imposed on the respondent-accused as per the judgment dated 04.09.2014 passed in Sessions Case No. 71 of 2012 by the 3rd Additional Sessions Judge, Mehsana sentencing the respondent-accused to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 5000/-, in (default to undergo further rigorous imprisonment for a period of five months for the offence punishable under Section 302 of Indian Penal Code and simple imprisonment for a period of three months and to pay fine of Rs. 500/-, in default simple imprisonment for fifteen days under section 135 of B.P Act.

2. The prosecution case was that the accused was making illicit demands from the mother of the complainant and therefore the father of the complainant had reprimanded the accused. It is the case of the prosecution that on 24.02.2012, at around 08.30 pm a gupti blow was inflicted by the accused on the abdomen of deceased Dilipbhai and also inflicted another blow on his left knee as a result of which he died. A complaint was therefore lodged by the son of the deceased. Investigation was therefore initiated and the accused was arrested.

3. After completing the investigation, the prosecution filed the charge sheet. Learned Magistrate committed the case to Sessions Court and the accused was charged for the offences as per the charges framed. Trial was initiated against the accused and during the course of trial the prosecution examined as many as 17 witnesses and also relied upon as many as 34 documents as documentary evidences which have been perused by us.

4. At the end of the trial and after recording the further statement of the accused under section 313 of Cr.P.C, and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge passed the aforesaid judgement. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court the State has preferred the present appeal for enhancement of sentence.

5. Ms. CM. Shah, learned advocate appearing for the State has submitted that the trial court erred in not properly appreciating the gravity of the offence committed by the accused while imposing the sentence and thereby committed grave error. She has drawn the attention of this Court to the provisions of Section 302 of Indian Penal Code and submitted that this is a fit case wherein this Court may enhance the sentence imposed. She submitted that in fact the respondent-accused has accepted the conviction as no appeal has been filed by him against the conviction.

6. Mr. Umang Oza, learned advocate appearing for the respondent - accused on legal aid has admitted that no appeal has been filed on behalf of the respondent - accused against the conviction. He submitted that, however, a lenient view may be taken in the matter.

7. It is an admitted position that no appeal has been filed by the respondent - accused against the conviction recorded by the trial judge. Therefore, there is no need to discuss the evidence in detail so far as the conviction is concerned. The learned trial Judge appreciating the evidence on record came to the conclusion that the accused had murdered the deceased in cold blood and without any instigation. It is not the case of the accused that he had done the” alleged offence as an act of self defence. The accused had come armed with the weapon and the alleged offence can be said to be an act of premeditation. We are of the view that the trial court has rightly convicted the accused under Section 302 of Indian Penal Code.

8. Having satisfied ourselves as to the correctness of the conviction of the respondent - accused by the trial court, we will now consider the question of sentence. The trial court imposed the punishment of sentence as noticed above. It is against this quantum of punishment, the appeal for enhancement is filed by the State. We find that the learned Judge of the trial Court in fact has committed a serious error in imposing the sentence upon the accused inasmuch as the accused was found guilty of offence under Section 302 of Indian Penal Code and Section 302 of IPC imposes an obligation on the court convicting the accused of that offence to impose a minimum sentence of life imprisonment.

9. Section 302 of Indian Penal Code reads as under:

“302. Punishment for murder.- Whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.”

10. Under Section 302, the minimum sentence that should have been imposed on the accused person was imprisonment for life. In other words, for the offence under Section 302 of IPC, the punishment prescribed is imprisonment life or death. Therefore, the minimum punishment is imprisonment for life and maximum punishment is death.

11. We think the sentence of ten years' imprisonment for an offence punishable under Section 302 is low and does not commensurate the gravity of the crime. We find that, minimum sentence that should have been imposed by the learned Sessions Judge was imprisonment for life and not ten years. Therefore, we find this appeal has to be inevitably allowed and the punishment of ten years' R.I as imposed by the trial Court has to be increased and brought to the level of minimum punishment to be imposed under Section 302 of IPC i.e, rigorous imprisonment for life. So far as imposition of fine is concerned, the same is not disturbed.

12. However, in a recent decision of the Apex Court in the case of Bhaikon Alias Bakul Borah v. State Of Assam. reported in JT 2013 (10) SC 373 has held as under:

“15. This Court, in a series of decisions has held that life imprisonment means imprisonment for whole of life subject to the remission power granted under Articles 72 and 161 of the Constitution of India. [Vide Life Convict @ Khoka Prasanta Sen v. B.K Srivastava, (2013) 3 SCC 425, Mohinder Singh v. State Of Punjab, (2013) 3 SCC 294, Sangeet v. State of Haryana, (2013) 2 SCC 452, Rameshbhai Chandubhai Rathod (2) v. State of Gujarat, (2011) 2 SCC 764, Chhote Lal v. State Of Madhya Pradesh, (2013) 9 SCC 795 : (2011) 8 SCR 239, Mulla v. State of Uttar Pradesh, (2010) 3 SCC 508, Maru Ram v. Union of India, (1981) 1 SCC 107, State of Madhya Pradesh v. Ratan Singh, (1976) 3 SCC 470 and Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600].

16. In view of the clear decisions over decades, the argument of learned senior counsel for the appellant-accused is unsustainable, at the same time, we are not restricting the power of executive as provided in the Constitution of India. For adequate reasons, it is for the said authorities to exercise their power in an appropriate case.”

13. Accordingly, the conviction of the respondent - original accused under Section 302 of the Indian Penal Code and section 135 of B.P Act vide judgment and order dated 04.09.2014 passed by the learned 3 Additional Sessions Judge, Mehsana in Sessions Case No. 71 of 2012 is upheld. The respondent - original accused is ordered to undergo life imprisonment for offence punishable under section 302 of IPC. The fine and sentence imposed in default of fine is upheld. The sentence imposed under section 135 of B.P Act is also upheld. However, life imprisonment as awarded by the trial court would not be till last breath and the case of the accused may be reviewed by the appropriate authority considering the decision of Apex Court in the case of Bhaikon @ Bakul Borah (supra).

14. The period of sentence already undergone shall be considered for remission and set off in accordance with law. The judgement and order dated 04.09.2014 is modified accordingly. Appeal is allowed to the aforesaid extent. R & P to be returned to the trial court forthwith.