IMPORTANT POINT
Quantum of sentence – While imposing sentence, aggravating and mitigating circumstances of a case are to be taken into consideration.

JUDGMENT :

Sanjay Karol, J.

1. Leave granted.

2. The present appeal arises from the final judgment and order dated 19.04.2019 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 679 of 1987, which confirmed the judgment and order dated 03.03.1987 passed by IInd Addl. District & Sessions Judge Varanasi (hereinafter “Trial Court”) vide which the present appellant, Pramod Kumar Mishra was convicted under Section 307 of the Indian Penal Code (hereinafter “IPC”) and sentenced him to undergo 5 years rigorous imprisonment. Co-accused Jawahar and Suresh were acquitted by the Trial Court.

3. This Court vide order dated 10.02.2023, had issued notice, limited to the question of sentence awarded to the appellant. Therefore, the question which arises before this Court is whether the sentence imposed by the Trial Court and as upheld by the High Court is just and proper?

4. The prosecution case emerging from the record, also as set out by the Courts below, is that on 12.08.1984, Kapil Deo Misir (hereafter “PW1”) was returning to his house at about 6:00 AM when he saw Pramod Kumar Mishra and other co-accused persons, destroying crops of arhar and junhari in his field. Seeing this, PW1 intervened, which led to all of these accused persons attacking him, armed with weapons i.e. lathis and ballam. This attack resulted in PW1 suffering injuries and becoming unconscious. Thereafter, FIR Case Crime No.67 of 1984 under Section 307 of IPC came to be registered on the same day at 7:30 AM by PW1 against Jawahar @ Munna Mishra (A1), Pramod Mishra (A2, present appellant) and Suresh Mishra (A3).

5. The investigation was conducted by S.I. Gauri Shankar Singh (hereafter “PW7”), who after completing the investigation submitted chargesheet against Jawahar @ Munna Mishra (A1), Pramod Mishra (A2, present appellant) and Suresh Mishra (A3). The Trial Court registered the case as S.T. No. 51 of 1985 and proceeded with the trial. Charges were framed against the accused persons under Section 307 read with Section 34 of the IPC.

6. The prosecution examined seven witnesses to substantiate its case. PW1 - Kapil Deo Misir is the injured complainant. PW2 - Doothnath and PW3 - Arjun Singh are eye-witnesses to the alleged incident. PW4 - Dr. Ramji Pandey conducted medical examination of the complainant and prepared injury report Ex. Ka-2. PW5 - Dr. Barar Singoor and PW6 - Dr. S.K. Singh were present during the medical examination and x-ray of the injured complainant. The investigating officer was examined as PW7.

7. The appellant in his statement under Section 313 Cr.P.C. denied having committed such offence and stated that the case stood registered on account of old enmity.

8. After hearing the parties, the Trial Court convicted A2 - Pramod Kumar Mishra under Section 307 IPC and sentenced him to undergo 5 years rigorous imprisonment. A1 - Jawahar and A3 - Suresh were acquitted as found not being guilty. The findings of the Trial Court were that :

a. The statement of PW1, complainant, that he was attacked by Pramod with ballam at 6:00 AM on 12.08.1994 is fully corroborated by documentary evidence (FIR Ex. Ka-1 and the medical examination Ex. Ka-2) and the medical opinion of PW4 - doctor that the injury could have been probably caused by the ballam which was shown to him in Court. Also, testimonies of PW2 - Doodhnath Singh and PW3 - Arjun Singh fully corroborate the testimony of PW1. The statements could not be disbelieved merely because they are close friends of Kapil Deo.

9. The findings of fact, judgment of conviction and order of sentence qua the present appellant stands affirmed by the High Court of Allahabad vide impugned order dated 19.04.2019.

10. In view of our order dated 10.02.2023, the present appeal is required to be considered only qua the quantum of sentence.

11. It is a well-established principle that while imposing sentence, aggravating and mitigating circumstances of a case are to be taken into consideration.

12. A Constitution Bench of this Court