Court No. - 77
Reserved on 01.10.2021 Delivered on 28.10.2021 Case :- CRIMINAL APPEAL No. - 1069 of 1992 Appellant :- Hari Shanker Respondent :- State Counsel for Appellant :- O.P. Pandey,Narendra Pal Singh,R.B.Singh,Rabindra Bahadur Singh Counsel for Respondent :- A.G.A.
Hon'ble Rajendra Kumar-IV,J.
1. In the present Criminal Appeal, challenge is made to the judgement dated 28.05.1992 passed by Vth Additional Sessions, Gorakhpur, in Sessions Trial No. 85 of 1990 arising out of Case Crime No. 100 of 1988, under Sections 307 and 325 IPC, Police Station Shahjanwa, District Gorakhpur, whereby Trial Court convicted the accused- appellant under Sections 325 and 307 IPC and sentenced him to undergo 5 years rigorous imprisonment under Section 307 IPC and fine Rs. 1500/-e and 3 years rigorous imprisonment under Section 325 IPC and fine Rs. 500/-.
2. Brief facts of the present case is that Informant’s wife had illicit relationship with accused-appellant-Harishanker. He used to meet Informant’s wife. In the night, before the incident, when he was going out meeting his wife, his sister Surati saw him and tried to catch him but he made a good escape. When he came to know about the incident and was scolding his wife in the next morning, accused-appellant came and started beating him. When his sister came to save him, accused-Hari Shankar with intention of killing her life, fired upon her from Tamancha which hit her left hand and thigh. On his shouting, Kapil, Ganga Charan and many persons came there, where upon accused ran away giving threat of life in future. Matter was investigated by Police Station concerned and after due formalities, Investigating Officer submitted charge sheet against the accused- appellant.
3. Learned trial court, on an appreciation of the evidence on record, found the prosecution case proved beyond reasonable doubt against the appellant and convicted and sentenced him, as stated hereinabove. Aggrieved by his conviction and sentence, the appellant preferred the present criminal appeal.
4. Heard learned counsel for the accused-appellant, learned AGA for State and perused the materials available on record.
5. At the very outset, learned counsel for the accused- appellant submits that he is not pressing the appeal on merit, rather he pressed the appeal on the point of sentence only. Although, appellant is innocent and he has been in jail for a considerable period during investigation and trial. He further states that the sentence of appellant may be reduced to period already undergone and fine. It is further submitted that rigorous imprisonment of 5 years has been awarded to the appellant and after a long time, sending him in jail would not meet the ends of justice. Due to paucity of money, he is not contesting the case on merit. He is facing trial as well as appeal for a long and under these circumstances, sentence of the appellant may be reduced to minimum side.
6. Learned AGA opposed the appeal and he has no objection, if appellant is considered on the point of sentence.
7. I am of the view that trial court's judgement is well discussed and evidence establishes the prosecution case beyond doubt, hence, appeal is liable to be dismissed on merit.
8. So far as sentence is concerned, admittedly, the incident of this case is of year 1988 and more than 32 years has elapsed. The appellant is facing trial as well as appeal. It is obvious that during these years, he has suffered a great mental agony and harassment. He must have also incurred expenses defending himself during the entire period.
9. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of the case, nature of offence and the manner in which, it was executed or committed. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual but also against society to which criminal and victim belong.
10. Looking all these circumstances, while considering the question of sentence, I feel it appropriate to reduce the sentence of accused-appellant.
11. Keeping in view the nature of allegations, applying the principles laid down in the different judgments and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which it is committed. I, dispose of the appeal but modify the impugned order of sentence in the following manner:-
(i) Conviction of accused-appellant under Sections 307 and 325 IPC is confirmed and maintained. Appeal is dismissed on merit.
(ii) Sentence of accused-appellant under Section 307 and 325 IPC is modified and he is sentenced to substantive imprisonment of already undergone by him with a fine of Rs. 1,00,000/- (Rupees one lac only). In default of payment of fine in the trial court concerned, he shall undergo for a period of three years simple imprisonment.
12. Appeal is disposed of with above terms.
13. Certify this judgement along with the lower court record to the court concerned for compliance.
Order Date :- 28.10.2021/Akram