Court No. - 78
Case :- CRIMINAL APPEAL No. - 1879 of 1991 Appellant :- Mohd. Ishaq And Another Respondent :- State Counsel for Appellant :- Amita Tripathi, Tripathi B.G. Bhai Counsel for Respondent :- A.G.A.
Hon'ble Ajit Singh,J.
1. Heard Shri Tripathi B.G. Bhai, learned counsel appearing on behalf of the appellants, Shri Hari Pratap Gupta, learned AGA for the State and perused the record of this appeal.
2. This criminal appeal was filed in year 1991 against judgment 27.09.1991 passed by Ist Additional Sessions Judge, Basti in S.T. No. 209 of 1990 (State vs. Mohd. Ishaq and Mohd. Ismayil), whereby learned Judge has convicted and sentenced the appellant No. 1 - Mohd. Ishaq to undergo three years’ rigorous imprisonment under Section 308 I.PC. and appellant No. 2 – Mohd. Ismayil to undergo five years’ rigorous imprisonment under Section 304 I.P.C.
3. In brief the prosecution story is that one Mohd. Saleh of village Pipra Khan, PS Itwa, District – Basti was bearing grudge against Smt. Rabiya who had implicated him as an accused in a case of earlier incident in which the grass hut belonging to Fairullha, brother of the husband of Smt. Rabiya was set on fire and for this very reason, at about 13:00 hours on 7th May, 1987 Mohd. Saleh along with Mohd. Ishaq and Mohd. Ismile (accused persons) attacked her withy bamboo sticks. On her behalf Bhulan (brother of her husband) came forward and he was also beaten by the accused persons. Initially, the First Information Report of this case was lodged under Sections 308 and 323 I PC and thereafter, upon the death of Smt. Rabiya on account of the injuries sustained in the alleged incident, the case was converted into Section 302 I PC.
4. After submission of the charge sheet, the charge was framed by the learned Judicial Magistrate on 15.05.1987 under Section 302 read with Section 34 I PC as well as Section 307 I PC.
5. The learned Trial Court after taking into consideration the evidence led by the prosecution and after going through the statements of the accused persons recorded under Section 313 Cr.P.C. completed and concluded the trial proceeding in conviction of the accused appellants under Section 304 I PC instead of Section 302 I PC.
6. From the perusal of the record it is apparent that the present appeal has already been abated on behalf of the appellant No. 1 Mohd. Ishaq, vide this Court’s order dated 19.03.2018.
6. The learned counsel for appellant submits that the accused appellant Mohd. Ismile had not intended to cause death of the deceased. The deceased had died after the incident during her treatment and the alleged incident had happened at the spur of the moment and the accused Mohd. Ismile was not having any knowledge that the injured (deceased) would die by the sudden blow of assault.
7. The further submission of the learned counsel for the accused appellant is that the surviving appellant Mohd. Ismile at present is aged about 80 years and he is bedridden. It is also submitted that the learned counsel does not want to press the appeal on merits and prays that the Court should take a lenient view of the matter considering the age as well as age related ailments of the present accused Mohd. Ismile.
8. At this belated stage of the matter, this Court does not want to enter into the analysis of the facts of this incident and the evidence brought on record by the prosecution as well as the evidence of the defence in view of the submission made by the learned counsel for the appellant, on instructions, that he does not propose to challenge the impugned judgement and order on its merits. The learned counsel, however, prays for modification of the order of the sentence to the period already undergone by the appellant Mohd. Ismile.
9. Learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances in this case.
10. Since the learned counsel for the appellant has given up challenge to the findings of conviction and there is ample evidence including eyewitness account and medical report to base conviction, accordingly, the conviction of the appellants for the aforesaid offence stands affirmed.
11. However, on the quantum of sentence, learned counsel for the appellant has argued that the appellant is not previous convict. The appellant is on bail in this case. He has next submitted that the incident of this case had occurred in year 1987 and by now, more than 33 years have passed away. Moreover, accused-appellant was convicted and sentenced in the year 1991 and after conviction about 30 years have gone away. Accused-appellant has suffered the mental agony of punishment since the date of incident and thereafter, since the date of the conviction. Accused-appellant is senior citizen and aged about more than 80 years. He next submitted that it was the first offence of the accused-appellant and after conviction the accused had not indulged in any other criminal activity. He further submitted that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking a lenient view considering the age of the accused and his age related ailments. At this fag end of his life it would not be just and proper to put him away in this old age by sending to jail. He also submits that it would not be improper or unjust if the impugned judgment and order is modified and sentenced is substituted with the period of imprisonment already undergone by the accused-appellant imposing a fine which this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.
12. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under:
"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole.
Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their officiousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."
13. 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 re-culturization. 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."
14. 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."
15. 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."
16. 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.
17. 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.
18. 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 nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.
19. 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.
20. 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.
21. It is also relevant to mention here that the learned counsel for the appellants has also submitted that the injured Smt. Rabiya had died after the incident during her treatment and initially it was a case registered under Section 308 and 323 I PC on the basis of the medical reports, which could not be said to be fatal or dangerous to her life. She had died during the course of the treatment and thereafter the case was converted under Section 302 I PC and punishment was done under Section 304 I PC. However, since the learned counsel for the appellant has submitted that he does not press this appeal on the legality of conviction, therefore, this Court does not interfere with the conviction part of the impugned judgment.
22. Considering the facts and circumstances of the case and the substantive period already undergone by the surviving appellant in this case and the fact that the appellant is senior citizen aged about 80 years and that he had realized the mistake committed by him and is remorseful of his conduct to the society to which he belongs and now he is sick and bedridden, I am of the considered opinion that the accused should not be sent to jail to serve out the remaining sentences at this highly belated stage of the matter and imposition of a fine of Rs. 50,000/- by this Court upon the appellant would squarely be just and proper.
23. Consequently, the sentence is modified to the period already undergone by the appellant in this case with a direction that he shall deposit a fine of Rs.50,000/- in court below within a period of four months from today which shall be paid to the legal heirs of the deceased as compensation and in case of default, he will serve out a simple imprisonment of one month.
24. The appeal stands partly allowed.
25. Appellant is on bail. His personal bonds and bail bonds given by sureties shall stand discharged forthwith.
26. Office is directed to transmit a copy of this order to the learned Sessions Judge, Basti for compliance.
27. Office is also directed to send back the record of the trial court immediately.
Order Date :- 21.9.2021 LBY