Jagir Basha v. State Rep By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 04.04.2016

CORAM

THE HON'BLE DR.JUSTICE P.DEVADASS Crl.A.No.9 of 2014 and Crl.M.P.No.266 of 2016 Jagir Basha ... Appellant/Accused 3

Versus

State: Rep. by Inspector of Police, Thuraipakkam Police Station, Chennai ... Respondent/Complainant Criminal Appeal filed under Section 374 of Cr.P.C to set aside the Judgment and Conviction passed in S.C.No.115 of 2009 on the file of the learned Assistant Sessions Judge, Tambaram dated 08.06.2011.

For Appellant : Mr.K.Gajendran For Respondent : Mr.P.Govindarajan Additional Public Prosecutor

JUDGMENT

A3 in the Sessions Case in S.C.No.115 of 2009 on the file of the learned Assistant Sessions Judge, Tambaram is the appellant.

2. A3 and certain others were alleged to have committed robbery in P.W.1's house.

3. The trial Court tried him for charges under Section 451 and 395 r/w 397. A3 has been convicted and sentenced as detailed below:

Conviction Sentence (i) Section 451 IPC (i) 5 years R.I (ii) 10 years R.I (ii) Section 395 r/w 397 IPC

4. The learned Judge also directed the sentences to run consecutively, i.e., on the expiry of one sentence, the other sentence will begin to run.

5. The learned counsel for the appellant would mainly contend on the aspect of severity of sentence. Even as per the final report, A3 was 18 years old. Now, he has spent 10 years in jail. No previous conviction has been proved against him. The accused has to be in jail, still 5 years.

6. The learned Additional Public Prosecutor contended that in view of the grave nature of the crime committed, the trial Court has rightly punished him.

7. The accused is not challenging the conviction, his main grievance is severity of the sentence.

8. P.W.s 1 and 3 are spouses. P.Ws.4 and 5 are their son and daughter. They are residing in Chemmencheri, old Mahabalipuram Road. On the night of 05.10.2016 robbery has been committed in P.W.1's house.

Before P.W.13, Magistrate in the Test Identification Parade. P.Ws. 1, 3, 4 and 5 have identified A3. On his arrest, he gave confessional statement, at his instance, case property was recovered. Considering the incriminating evidence on record, I concur with the finding of the Trial Court.

9. A criminal court's Judgment has got two parts, first part is recording of conviction. It is based on the appreciation of evidence and ascertainment of fact based on recording of evidence and conviction based on the section of penal law. This part is called conviction part.

10. The next part is awarding of punishment.

Both parts are called crime and punishment/sentence.

They are crime and punishment.

'Punishment' cannot be inter-changed for 'crime'. Crime and punishment may be one after the other, but they are not one and the same.

11. Question of considering 'mens rea', 'overt act' as defined under the penal law are up to recording of conviction. But, 'sentencing' is a different aspect. Up to recording of conviction, the court should not see the face of the accused, but see the evidence adduced.

But after recording of conviction, the court has to see the accused. The awarding of sentence will be an individualized exercise. This is also evident from Section 235 IPC (Sessions case) and Section 248 IPC (warrant case). While awarding sentence, the Court has to see not only the nature of the offence established, it must also see the nature of the offender. It must see the possibility of his redemption, it's effect on the society and also on his family.

One cannot be doomed for ever. 'Just as a past behind a saint, a Sinner too has a future'. This is the basis for reformatory theory of punishment. Retributive justice is vengeful in nature.

12. There is no charge under Section 75 IPC against A3 for proving previous conviction against him. This is a fit case to dilute the rigour of the sentence. We are on the point of quantum of sentence. The appellant/A3 is young. Already spent about 10 years in jail. 10 years in one's part of life is too long a period. 10 years far away from the family and society in jail would be unbearable.

13. In the result, the Criminal Appeal is partly allowed. The conviction and sentence imposed on the appellant under Sections 451 and 395 r/w 397 IPC by the learned Assistant Sessions Judge, Tambaram are confirmed. Both the sentences shall run concurrently. The accused shall be given set off under Section 428 of Cr.P.C. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar kua To

1. The Assistant Sessions Judge, Tambaram.

2. The Principal District and Sessions Judge, Chengalpattu.

3. The Judicial Magistrate, Chengalpattu.

4. Do Through The Chief Judicial Magistrate, Chengalpattu.

5. The District Collector/District Magistrate, Kanchipuram.

6. The Inspector of Police, Thuraipakkam Police Station, Chennai

7. The Superintendent, Central Prison, Puzhal, Chennai.

8. The District General of Police, Mylapore, Chennai 04.

9. The Public Prosecutor, High Court, Madras.

+1cc to Mr.K.Gajendran, Advocate, S.R.No.21165 Crl.A.No.9 of 2014 AD(CO) CA(26/04/2016)