Court No. - 80
Case :- CRIMINAL APPEAL No. - 4735 of 2014 Appellant :- Pratap Solanki Respondent :- State Of U.P.
Counsel for Appellant :- Vijay Mani Tiwari,Pawan Singh Pundir Counsel for Respondent :- Govt.Advocate
Hon'ble Pradeep Kumar Srivastava,J.
1. At the very outset, the learned counsel for the accused- appellant has submitted that instead of arguing on bail application, he will argue on the merits of appeal and he would confine his argument to the quantum of sentence.
2. Heard Shri Pawan Singh Pundir, learned counsel for the appellant, Mrs. Alpana Singh, learned AGA for the State and perused the record.
3. Learned counsel for the accused-appellant has submitted that the accused-appellant Pratap Solanki has been convicted in S.T. No. 461 of 2012, arising out of Case Crime No. 398 of 2012, under Sections 147, 148, 149, 307 IPC and S.T. No. 462 of 2012, arising out of Case Crime No. 399 of 2012 under section 3/25 Arms Act, Police Station – Vrindavan, District -Mathura and sentenced for the offence under section 147 IPC for 01 year rigorous imprisonment, for the offence under section 148 for 02 years rigorous imprisonment, for the offence under section 307/149 for 07 years imprisonment and Rs. 5000/- fine and in default in payment of fine 03 months additional rigorous imprisonment and for the offence under section 3/25 Arms Act for 02 years rigorous imprisonment and Rs. 1000/- fine and in default in payment of fine 01 month additional rigorous imprisonment. It has been directed by the court below that all the sentences shall run concurrently.
4. Learned counsel for the appellant has submitted that the maximum sentence which has been awarded to accused appellant is for the offence under section 307/149 IPC for 07 years rigorous imprisonment and the accused appellant is in jail since 12.04.2012 and as such he has passed more than 7 years in jail. It has been further submitted that the accused-appellant is undergoing life imprisonment in relation with some other offence, therefore, he has submitted that if the sentence awarded is reduced, the accused-appellant may get released sooner. It has been pointed out on behalf of the accused- appellant that it was a no injury case and no injury was sustained by anybody in the incident as such the sentence under section 307 IPC may be reduced substantially.
5. Learned AGA has vehemently opposed the prayer and has also submitted that the convicted-accused was very rightly convicted by the learned court below on the basis of evidence on record. He however, submitted that if the sentence is slightly reduced, he has no objection.
6. 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 subculture that leads to antesocial 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.”
7. 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.”
8. 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.”
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. Our criminal jurisprudence in the country is based on corrective and reformative approach and it believes that no accused person is incapable of being reformed. It is clear that from last more than 07 years the convicted-accused is in jail.
15. In the facts and circumstances of the case and considering that for a long period, the accused-appellant has been regularly in jail and in this case if the sentence under section 307/149 IPC is reduced by two years the ends of justice will be served as it is a no injury case and all the sentences in different offences have been directed to be run concurrently.
16. So far as quantum of fine is concerned, it is adequate and need not be disturbed and further the default sentence in lieu of fine for the offence under section 307/149 IPC is reduced by 02 months and for the offence under section 3/25 Arms Act the same is reduced by 15 days.
17. Accordingly, the conviction is upheld. The sentence under section 307/149 IPC is reduced by 02 years and the default sentence in lieu of fine is reduced by 02 months and for the offence under section 3/25 Arms Act the default sentence in lieu of fine is reduced by 15 days.
18. With this modification, the appeal is finally disposed of.
19. Office is directed to transmit a copy of this judgment to the learned court below for information and necessary compliance. The original records need not be sent back as two other connected appeals are pending in the same matter.
Order Date :- 29.5.2019 Bhanu