Reserved
In Chamber
Case :- CRIMINAL APPEAL No. - 7484 of 2019 Appellant :- Dinesh Yadav Respondent :- State of U.P.
Counsel for Appellant :- Sarvesh,S.K. Verma Counsel for Respondent :- G.A.
Hon'ble Naveen Srivastava,J.
1. Challenge in this appeal is to the judgment and order dated 30.10.2019, passed by learned Additional Special Judge Court No. 15 Aligarh in S.T. No. 202 of 2015 (State vs. Dinesh Yadav S/o Sardar Singh & Others), registered as Case Crime No. 215 of 2014, under Section 304 I.P.C. Police Station Dadon, District Aligarh, whereby the accused was found guilty under Section 304 I.P.C. and was convicted and sentenced to ten years imprisonment with fine of Rs. 10,000/- under Section 304 IPC, with default stipulation.
2. Prosecution story in brief is that the brother of the complainant/ informant was taken from his residential home by one Dinesh Yadav at around 12 PM. The deceased, Mukut Singh, at around 3 PM was found unconscious on the railway track near Ajvain Dher Alipur drain beside his motorcycle where he later died under suspicious circumstances. His skin was leaped up at various places. The brother of the deceased, Lekhraj Singh, lodged the FIR.
3. The investigation of the matter was entrusted to S.H.O./S.I., Raghuraj Singh, PW-6. The investigation was ended into a charge sheet.
4. The prosecution has examined as many as seven witnesses. PW-1 Lekhraj Singh (complainant), PW2 Smt Nanni Devi, (wife of the deceased), PW3 Sukhram (uncle of the deceased, PW4 Sub- Inspector Rajesh Kumar Pandey, PW5 SI Raghuraj Singh, PW6 Dr. Mohd Aslam (Doctor), PW7 Prahlad Singh (Investigating Officer).
5. After closure of the prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. in which he denied the occurrence and has stated that he had been falsely implicated due to enimity.
6. D.W.- 1 Amar Singh has examined in defence by the appellant.
7. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as above.
8. Feeling aggrieved, the accused has come up in appeal.
9. Heard learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record.
10. Learned counsel for the appellant has submitted that he does not want to argue the appeal on merits but he only want to advance his arguments on the quantum of sentence. However, he has vehemently argued that the custodial sentence of ten years imprisonment is too harsh and excessive sentence. It is also submitted that accused-appellant has already undergone in imprisonment almost about six years and nine months till date. It has lastly been submitted that the accused appellant be sentenced to imprisonment for the period already undergone by him i.e. six years and nine months.
11. Learned A.G.A. has opposed the prayer made by counsel for the appellant.
12. Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.
13. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
14. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, the Hon'ble Apex Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's credibility. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.
15. Appropriate sentence is the cry of the society. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
16. In Jameel vs. State of Uttar Pradesh, (2010) 12 SCC 532, the Hon'ble Apex Court has reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: -
"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
17. It is not disputed that the accused appellant has already undergone about six years and nine months of imprisonment which is quite a long period of incarceration.
18. Thus, considering the law laid down by the Hon'ble Apex Court in the above mentioned cases, in the facts and circumstances of the case, in my opinion, the ends of justice would be met if the custodial sentence of ten years imprisonment of the accused under Sections 304 I.P.C. is reduced to seven years without reducing the amount of fine imposed by the trial court against the accused-appellant.
19. In view of the aforesaid reasons, the appeal is partly allowed.
20. The conviction of the appellant under Sections 304 I.P.C. is confirmed but the imprisonment of 10 years under Section 304 I.P.C. is reduced to seven years imprisonment and the sentence of fine of Rs. 10,000/- under Section 304 I.P.C. is maintained.
21. The appellant is in jail and would serve out the remainder of his sentence if not already completed. He will be entitled to get remission, as regards, the period of sentence, as per rules.
22. Let certified copy of this judgment be sent to the concerned court immediately for sending modified conviction warrant of the accused-appellant to the concerned prison.
Order Date :- 30.9.2021 SK Srivastava