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1967 Supreme(Goa) 4
Goa High Court
V. S. JETLEY
Babu Raghunath Naik - Appellant
Versus
Terezinha Pacheco Faria - Respondent
Decided On : 02/09/1967
S.D. Pawooskar, for Applicant; Jeremais X. Carvalho, for Respondent No. 1 and S. Tamba, Govt. Pleader, for the State.
The court has the power to modify a sentence imposed by a lower court in a revision petition if it finds that the sentence is not appropriate and does not serve the ends of justice.
Headnote:
THEFT - SECTION 379, INDIAN PENAL CODE - PROBATION OF OFFENDERS ACT, 1958 - SECTION 3 - SENTENCE - MODIFICATION - REVISION PETITION - INTERFERENCE WITH CONCURRENT FINDINGS OF FACT - SCOPE - APPROPRIATE PUNISHMENT - FACTORS TO BE CONSIDERED - REFORMATION AND REHABILITATION OF OFFENDERS - COMPENSATION - SECTION 5(1)(A) - EXERCISE OF JURISDICTION BY APPELLATE OR REVISIONAL COURTS - SECTION 11(1).
Fact of the Case:
The petitioner was convicted of theft of a coconut tree under Section 379 of the Indian Penal Code and sentenced to 15 days of rigorous imprisonment and a fine of Rs. 50. The Sessions Judge reduced the sentence to 3 days of rigorous imprisonment and a fine of Rs. 50.
Finding of the Court:
The court found that the petitioner had committed theft and that the concurrent findings of fact by the lower courts were justified. However, the court held that the sentence imposed was not appropriate and that the ends of justice would be better served by releasing the petitioner on probation and ordering him to pay compensation to the complainant.
Issues: 1. Whether the concurrent findings of fact by the lower courts were justified. 2. Whether the sentence imposed was appropriate. 3. Whether the petitioner could be released on probation under the Probation of Offenders Act, 1958.
Ratio Decidendi: 1. The court held that the concurrent findings of fact by the lower courts were justified as there was evidence to support the finding that the petitioner had committed theft. 2. The court held that the sentence imposed was not appropriate as it was too lenient and did not serve the ends of justice. 3. The court held that the petitioner could be released on probation under the Probation of Offenders Act, 1958, as he was a first-time offender and there was no evidence to show that he was of a depraved character.
Final Decision: The court allowed the revision petition, maintained the conviction, and modified the sentence. The petitioner was released on probation and ordered to pay compensation of Rs. 50 to the complainant.
2. The prosecution case in a nutshell is that the petitioner removed the cocount tree belonging to the complainant (Mrs. Terezinha Pacheco Faria) and utilised it for the purposes of the construction of his cottage. This removal was with dishonest intention without the consent of the complainant. The defence of the petitioner that he purchased this tree for Rs. 15/- from the complainant was disbelieved by the learned Magistrate and also by the learned Sessions Judge. There are concurrent findings of fact that the petitioner committed theft. Shri Pawooskar, learned counsel for the petitioner, argues that the evidence of theft has not been properly appreciated. The concurrent findings are based on evidence and, therefore, no interference is called for.
In Caetano Colaco v. Joao Rodrigues, AIR 1966 Goa 32 (FB) and in Criminal Revn. Appln. No. 79 of 1966 : reported in AIR 1967 Goa 60, this Court had explained at length the scope of revision petition under Sections 435 and 439 of the Criminal Procedure Code. It is well settled law that the High Court will not in revision interfere with concurrent findings of fact except in special circumstances. In Dhirendra Nath Mitra v. Mukan Lal, AIR 1955 SC 584, Their Lordships of the Supreme Court emphasized the rule of prudence that it may well be that a different view of the evidence could have been taken but that is not enough to justify interference in revision. Sitting as a revisional Court the High Court is not expected to perform the functions of the Trial Court and appreciate and assess the value of the evidence for the first time. The evidence has been appreciated by the Courts below and concurrent findings of fact recorded that the petitioner committed theft. The guilt was brought home to the petitioner and there is no reason to interfere with his conviction.
3. As regards the sentence modified by the learned Sessions Judge, I think there is a good case for interference in revision in the exercise of powers vested in this Court under Sections 435 and 439 of the Criminal Procedure Code. Normally, such interference would not be justified but in view of the proved facts in this case I am tempted to set right the sentence on the ground of propriety. In all crimes a very wide discretion in the matter of sentence is allowed to the Trial and Appellate Courts. The exercise of this discretion is a matter of prudence and not of law. It may be asked what is the object of punishment? The object is prevention of crime and every punishment is intended to have a double effect, namely to Prevent the person who has committed a crime from repeating the act and also to prevent others from committing similar crimes.
Punishment, in order to be deterrent, should make the offence, in the words of Locke, "an ill bargain to the offender". In the words of Lord Goddard it "should hurt the offender". Lord Goddard's views on punishment are well-known. we may not entirely agree with His Lordship's views, but it cannot be denied that the chief end of the criminal law is to make the criminal an example and a warning to persons of similar disposition. The aim is also to secure the society against crime. Does an abnormally short sentence of three days achieve this object? Will it serve the ends of justice? If I may say so, with respect, it may not. Three days jail life may possibly be regarded as a compulsory ex
