Court No. - 78
Case :- CRIMINAL APPEAL No. - 67 of 1986 Appellant :- Radhey Respondent :- State of U.P.
Counsel for Appellant :- Syed Naquvi Raza,Chandan Singh,Lakshmi Kant Singh,S.N.R. Abidi,Santosh Singh Counsel for Respondent :- A.G.A.
Hon'ble Ajit Singh,J.
1. Compliance affidavit filed on behalf of S.P. Mirzapur is taken on record.
2. Personal appearance of the S.P. Mirzapur is dispensed with.
3. Heard learned counsel for the appellant and learned A.G.A. for the State and perused the record.
4. This criminal appeal has been filed against the judgement and order dated 24.12.1985 passed by IVth Additional Sessions Judge, Mirzapur in Sessions Trial No. 272 of 1983 convicting and sentencing the appellant under section 323 IPC for a period of four months.
5. Learned counsel for the appellant submits that the incident had taken place in the year 1983 and the trial of the accused was completed in the year 1985 and the trial court has acquitted the accused-appellant under section 307 IPC but convicted the accused-appellant under section 323 IPC only. The accused- appellant was convicted for a period of four months imprisonment. Learned counsel for the appellant has further submitted that at present the accused is more than 60 years of age and he is suffering from age related ailments and also submits that the present accused is a poor person and he has at present no means of livelihood and he is at verge of starvation because he is not in a position to do any work as he has become crippled which is evident from the compliance affidavit submitted by the police and the police has stated that the present accused cannot be arrested. Learned counsel for the appellant has further submitted that it was the first conviction of the accused and further the accused has not indulged in any other activity. Learned counsel for the appellant has further submitted that on the question of legality of the sentence, he is not pressing the appeal but he is pressing this appeal only on the quantum of sentence and has submitted that considering the age and illness of the accused and considering that the incident had happened about 40 years ago, a lenient view should be taken by the Court.
6. Learned A.G.A. appearing for State has submitted that the trial court has rightly convicted the accused and only four months sentence was passed which is not so excessive and harsh. No interference is required in the conviction and sentence.
7. 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.
8. 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."
9. 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."
10. 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."
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. Since the learned counsel for appellants has not pressed the appeal on merits and has prayed that quantum of sentence be reduced. 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.
17. 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 him in prison by imposing a fine of Rs.2,000/.
18. 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 appellant in prison and fine as imposed. The bail bond of the appellant is cancelled.
19. 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.
20. 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.
21. 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