Court No. - 78
Case :- CRIMINAL APPEAL No. - 1131 of 1983
Appellant :- Hansram And Others
Respondent :- State of U.P.
Counsel for Appellant :- S.C. Verma,Lavkush Kumar Bhatt,P.K. Chauhan
Counsel for Respondent :- A.G.A
Hon'ble Ajit Singh,J.
1. Heard learned Counsel for the appellants and learned AGA for the State and perused the record.
2. This criminal appeal has been filed against the judgment and order dated 26.4.1983 passed by Special Judge, Farrukhabad in Sessions Trial No. 5 of 1982 whereby the appellants have been convicted under section 25/27 of Arms Act and appellant no. 1 Hansram was sentenced to undergo three years R.I. for offence under section 27 Arms Act and for two years for offence under section 25 Arms Act and appellant nos.2 and 3 Bechey Lal and Gaya Prasad have been sentenced to undergo for two years R.I. for offence u/s 27 Arms Act and one and half years for offence under section 25 Arms Act. All the sentences are directed to run concurrently.
3. The persecution story in brief is that on 15.10.2081 at about 9.15 p.m. in the night the Station House Officer of PS. Nawabganj along with his companions left the police station for checking and preventing the offence along with P.A.C. personnel and about 11.15 p.m. in the night they received information from police informer that the famous dacoit Saudan Yadav along with his 8-10 persons will assemble in the grove of Jaddu Singh and from there they will commit dacoity in the house of Thakur Rajendra Singh in village Paharpur and later on, the police formed two teams and cordoned off the dacoit from grove and the accused Hans Raj, Beche Lal and Gaya Prasad were caught red handed and others ran away from the assembled place of dacoity and the police recovered from the accused Hans Raj a double barrel gun and some cartridges and from the accused Beche Lal one country made pistol and some cartridges and from accused Gaya Prasad, a country made pistol and some cartridges. Recovery items were sealed. The police submitted charge-sheet under sections 399, 402 IPC and under section 25/27 Arms Act was submitted against the accused persons. Accused Beche Lal is in jail since 19.8.2021 and accused Gaya Prasad is in jail since 21.8.2021.
4. The trial court by the impugned order acquitted the accused persons under section 399/402 IPC but convicted the accused persons under section 25/27 of Arms Act and the accused Beche Lal and accused Gaya Prasad were convicted for two years rigorous imprisonment.
5. Feeling aggrieved from the judgment and order dated 26.4.1983 passed by Special Judge, Farrukhabad, this criminal appeal has been filed.
6. Learned counsel for the appellant has submitted that the accused Gaya Prasad aged about 85 years is suffering from various diseases. The accused Beche Lal is aged about 68 years and is suffering from old age related ailments. He has further submitted that both the accused have served more than two months sentence in jail. The appellant no.1 Hansram had died and the appeal in respect of appellant no. 1 Hansram has been abated. Learned counsel for the appellant has further submitted that he does not want to argue the appeal on merit and he has further submitted that during trial and after conviction the appellants had served the prison term of about two months. He has further submitted that the appellants are suffering from age related ailments and prays to the Court that they may be leniently dealt with in terms of the sentence.
7. Learned A.G.A. has vehemently opposed the submission made by learned counsel for the appellant. He has however, submits that if slight reduction in sentence is made, he has no objection.
8. I have perused the entire material available on record and the evidence as well as judgment of the trial court. The learned counsel for the accused-appellant does not want to press the appeal on its merit and requests to take a lenient view of the matter.
9. 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."
10. In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:
"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."
11. In State of MP vs Najab Khan, (2013) 9 SCC 509, the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-
"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."
12. Earlier, "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.
13. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in 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.
14. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nurtured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.
15. 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.
16. 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.
17. Since the learned counsel for appellants 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 appellants is upheld.
18. So far as the quantum of sentence is concerned, this Court considers that the ends of justice would be met if the accused is sentenced with the period already undergone by them in prison and by imposing a fine of Rs.2000/- on each of the accused.
19. Accordingly, the conviction is upheld. The appeal is partly allowed with the modification of the sentence by the period already undergone and served out by the appellants in prison and fine of Rs.2,000/- each be paid in the trial court and then accused Beche Lal and accused Gaya Prasad will be released from jail.
20. Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance as warranted.
21. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the learned counsel for the applicant alongwith a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
22. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 20.9.2021 AU