Reserved
Court No. - 76
Case :- JAIL APPEAL No. - 71 of 2019 Appellant :- Daulatram Respondent :- State of U.P.
Counsel for Appellant :- From Jail,Beena Mishra Counsel for Respondent :- A.G.A.
Hon'ble Ajai Tyagi,J.
1. This appeal has been preferred by the appellant- Daulatram against the impugned judgment and order dated 23.01.2019, passed by 8th Additional Session Judge/Special Judge (POCSO Act), Bulandshahr, in Special Criminal Case No.313 of 2015 (State Vs. Daulatram) under Section 376/511 IPC and Section 11/12 of Protection of Children from Sexual Offences (herein after referred as ‘POCSO Act’) at Police Station- Chatari, District- Bulandshahr..
2. The brief facts of the case are that complainant-Himanshu submitted a report at Police Station- Chatari on 16.04.2015 that his daughter, aged seven years, was going to her house and on the way, Daulatram son of Ram Swaroop, who was of the same village, caught his daughter and take her inside his house and tried to commit rape by stripping her, but on her crying Ram Gopal, Pappu and complainant himself reached the house of the accused and took out the daughter of complainant. Case was registered against the appellant under Section 354(A)(1), 354(B) IPC and under Section 11 of POCSO Act. Charge sheet was submitted against the appellant under Section 376/511 IPC and under Section 11 of POCSO Act. Charges were framed against the appellant and he was convicted and sentenced for the offences under Section 376/511 IPC for seven years imprisonment and Rs.20,000/- fine and under Section 11/12 POCSO Act for two years imprisonment and Rs.2,000/- fine. Hence this appeal.
3. At the very outset, learned counsel, representing the appellant, submitted that maximum awarded sentence to the appellant is seven years and he has already served six years and four months towards the awarded sentence. It is also submitted by learned counsel for the appellant that the age of the appellant is 75 years, therefore, the sentence of appellant may be converted into the period already undergone by him. Learned counsel also submitted that her arguments are confined to the period of sentence only and no argument is being advanced on merit of the appeal.
4. Shri B.A. Khan, learned AGA agreed to the fact that out of seven years maximum awarded sentence, the appellant has served more than six years and his age is about 75 years.
5. As far as theory of punishment is concerned, in Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
6. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
7. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323, State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
8. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
9. Since the learned counsel for appellant has not pressed the appeal on merits, however, this Court, after perusal of the entire evidence on record and judgment of the learned Trial Court, considers that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.
10. In this case, learned trial court has awarded maximum sentence to the appellant under Section 376 read with Section 511 IPC for seven years imprisonment and under Section 11 of POCSO Act for two years imprisonment along with fine. It is also directed by the learned trial court that all the sentences shall run concurrently, therefore, in this way the maximum awarded sentence to the appellant is seven years out of which, the appellant has already served six years and four months of sentence.
11. Hence, keeping in view the facts and underlying circumstances of the appeal and also keeping in view the theory of the punishment as discussed above, I am of the considered opinion that sentence awarded to the appellant is liable to be modified as the period already undergone.
12. Accordingly, the conviction is upheld. The appeal is partly allowed with the modification of the sentence as already undergone.
13. A copy of this judgement along with lower court record be transmitted forthwith to the concerned trial court for ensuring necessary compliance.
(Ajai Tyagi, J.) Order Date:24/09/2021 Ashutosh Pandey