Court No. - 90
Case :- CRIMINAL APPEAL No. - 30 of 1990
Appellant :- Praveen Kumar
Respondent :- State
Counsel for Appellant :- Braham Singh
Hon'ble Ajit Singh,J.
Heard Sri Sheshadri Trivedi, Amicus Curiae for the appellant, learned AGA appearing on behalf of the State and perused the record of this appeal.
The present appeal has been filed against the impugned judgement and order dated 22.12.1989 passed by 11th Additional Sessions Judge Muradabad in S.T No. 68 of 1987 whereby appellant Praveen Kumar @ Tillu and Navin Kumar @ Billu were convicted and sentenced to one year's R.I. under Section 323 IPC and they were not found guilty under Section 147 and 307 IPC.
At the very outset, the learned Amicus Curiae points out that the appellant No. 2, Navin Kumar @ Billu is alive. However, inadvertently, vide order dated 20.11.2020, the present appeal has been dismissed as abated on behalf of the appellant No. 2, Navin Kumar @ Billu.
This Court has gone through the report submitted by the concerned Chief Judicial Magistrate and finds that appellant No. 1 - Praveen Kumar @ Tillu has died after the filing of this appeal, hence the appeal on his behalf stands abated.
Accordingly, the present appeal on behalf of the appellant No. 2 - Navin Kumar @ Billu is being decided by the following judgement and order:-
Briefly stated, the facts of this case are that on 30.05.1986 a report was lodged by one Sri Ram Avtar Sharma and it was alleged in the said report that there was some dispute between the jewellery shop owner Sarvesh and his brothers regarding partition of their property. It was also mentioned by the complainant in his report that his brother Keshav Saran was employed by Sarvesh in his jewellery shop and was present in the shop on 27.08.1986 and the brothers of Sarvesh came to the jewellery shop for settling down their dispute going on between them. The discussion regarding compromise was on progress and in the meantime, the complainants brother Keshav Saran intervened in the matter which made annoyed to all of them and Keshav Saran seeing them annoyed ran out from the jewellery shop to save himself, but at about 6:00 p.m. he was caught hold by Subhash, Satish, Sarvesh, Babli, Papli, Tillu and Billu and they all started beating the complainants brother Keshav Saran who fell on the ground and became unconscious. This incident of beating the complainant's brother by the accused persons was witnessed by Pratap naraayan mehrotra and others. On the said report of the complainant a criminal case was lodged by the concerned police against the named accused persons and the matter was investigated by the Investigating Officer and charge sheet was submitted against the accused persons including the present appellant No. 2 - Navin Kumar under Sections 147, 302/149 IPC.
After submission of the charge sheet, charge was framed and trial proceeding started and concluded into the conviction and sentence of the accused persons including the present appellant as narrated above.
Learned Amicus Curiae submits that the incident in this case had occurred in the year 1986 and Session Trial against the accused persons concluded on 22.12.1989. Thereafter by means of the present appeal the impugned judgment and order was challenged by the accused appellants in this High Court. The accused appellants, however, were granted bail by this Hon'ble court, vide order dated 08.01.1990. It is also submitted by him that this appeal could not be decided finally so far and by now, more than 33 years have passed and since then, the sword of punishment has been hanging over the appellant No. 2, Navin Kumar who is aged about 60 years and is suffering from the age related ailments and it would not be just and proper to send him to jail, now. More over, his real brother Praveen Kumar, appellant No. 1, has already expired in the year 2003 and the appellant No. 2, Navin Kumar, has to look after the whole family dependent solely on him.
Learned Amicus Curiae has further argued that the appellant is not a previous convict. He next submits 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 submits that on the question of legality of the conviction, he is not pressing this appeal and only pressing it 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.
The learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances.
Since the learned Amicus Curiae has proposed not to challenge the finding of conviction and it being evident from the perusal of the record that there is ample evidence including eyewitness account and medical report to base the conviction, accordingly, the conviction of the appellant No. 2 - Navin Kumar, for the aforesaid offence stands affirmed.
This Court is well aware of the law laid down by the Apex Court regarding to the quantum of the sentence in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, which reads 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."
In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Hon'ble 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."
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."
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."
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.
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.
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.
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.
Looking into the evidence oral as well as documentary, which is available on record, this Court is of the opinion that learned trial court has rightly convicted the accused as there is clear and cogent evidence against the accused, which is corroborated and supported by medical evidence.
Considering the facts and circumstances of the case and the substantive period already undergone by the appellant in this case and the fact that the appellant has realized the mistake committed by him and is remorseful of his conduct to the society to which he belongs and now he wants to transform himself, I am of the considered opinion that the accused should be given a chance to reform himself and be allowed to give his better contribution to the society to which he belongs to.
Consequently, the sentence is modified to the period already undergone by the appellant in this case and a fine of Rs. 500/- is imposed, which shall be deposited by the appellant No. 2, Navin Kumar, within a period of three months from today.
The appeal stands partly allowed.
The sureties and personal bonds of the appellant No. 2, Navin Kumar, shall be discharged on deposit of the fine of only Rs. 500/- as imposed by this Court.
Office is directed to transmit a copy of this order to the learned Sessions Judge, Moradabad for compliance.
Office is also directed to send back the record of the trial court immediately.
Registry of this Court is also directed to pay Rs. 10,000/- to Amicus Curiae Sri Sheshadri Trivedi forthwith as per rules applicable in this regard.
Order Date :- 5.1.2021 Ujjawal