Reserved
In Chamber
Case :- CRIMINAL APPEAL No. - 2264 of 2020 Appellant :- Smt. Roshanbai Respondent :- State of U.P.
Counsel for Appellant :- Vinay Kumar Singh,Rajesh Kumar Singh Counsel for Respondent :- G.A.
Hon'ble Naveen Srivastava,J.
1. Challenge in this appeal is to the judgment and orders dated 05.03.2020 and 07.03.2020, passed by learned Additional Sessions Judge (Fast Track Court-O.A.W.), Jhansi in S.T. No. 138 of 2017 (State vs. Smt. Laxmi Bai @ Munnibai Kushwaha and Others), registered as Case Crime No. 1642 of 2016, under Sections 363, 372, 373 I.P.C. Police Station G.R.P. Jhansi, District Jhansi, whereby the accused was found guilty under Section 363 IPC and was convicted and sentenced to three years rigorous imprisonment and fine of Rs. 7,000/-, under Section 372 IPC for 5 years rigorous imprisonment and fine of Rs. 10,000/- and under Section 373 I.P.C. for five years rigorous imprisonment and fine of Rs. 10,000/- with default stipulation.
2. Filtering out the unnecessary details the prosecution case is that on 10.11.2016, the informant/ complainant lodged a missing report in concerned police station alleging that her daughter along with her children Naina aged about four years and son Sandeep aged about five years while returning home by train deboarded at Jhansi railway station where she left her children in the supervision of a lady to bring some food for their children. When she returned, the unknown lady in whose supervision the children were left, the lady and grand daughter of the complainant- Naina was found missing. The search was made but the victim- Naina could not be traced.
On 04.01.2017 the accused- Ram Milan arrested by the police and on the basis of his confessional statement appellant- Smt. Roshanbai was also arrested by the police and the victim was recovered from the house of one Sarnam.
3. The investigation of the matter was entrusted to S.I., Puttan Lal Prajapati, PW-5. The investigation was ended into a charge sheet.
4. The prosecution has examined as many as eight witnesses. PW-1 Sitaram Adivasi (complainant), PW2 Smt Bharti Adivasi, (daughter of the complainant), PW3 Naina (Victim), PW4 Santosh Singh Yadav (S.H.O., Padav Police Station), PW5 SI Puttan Lal Prajapati (Investigating Officer), PW6 R.C. Mishra (S.H.O., G.R.P. Jhansi Police Station), PW7 S.I. Jagmohan Singh (Escriber of FIR) and P.W.-8 Suman Pal (lady constable).
5. After closure of the prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. in which she denied the occurrence and has stated that she had been falsely implicated due to enmity.
6. D.W.- 1 Ramroop, D.W.-2 Ajay Singh Chauhan and D.W.-3 Santosh were examined in defence by the appellant.
7. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as above.
8. Feeling aggrieved, the accused has come up in appeal.
9. Heard Sri Vinay Kumar Singh learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the lower court record.
10. Learned counsel for the appellant has submitted that he does not want to argue the appeal on merits but he only want to advance his arguments on the quantum of sentence. However, he has vehemently argued that the custodial sentence of five years rigorous imprisonment is too harsh and excessive sentence. It is also submitted that accused-appellant has already undergone in rigorous imprisonment almost about three years and six months till date. It has lastly been submitted that the accused appellant be sentenced to rigorous imprisonment for the period already undergone by her i.e. three years and six months.
11. Learned A.G.A. has opposed the prayer made by counsel for the appellant.
12. Not pressing the criminal appeal after the conviction of the accused by the court below is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.
13. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Hon'ble Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:
"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
14. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, the Hon'ble Apex Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's credibility. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.
15. Appropriate sentence is the cry of the society. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
16. In Jameel vs. State of Uttar Pradesh, (2010) 12 SCC 532, the Hon'ble Apex Court has reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: -
"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.
16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
17. The maximum sentence of five years rigorous imprisonment with fine has been awarded to the appellant. It is not disputed that the accused appellant has already undergone about three years and six months of rigorous imprisonment.
18. Thus, considering the law laid down by the Hon'ble Apex Court in the above mentioned cases, in the facts and circumstances of the case, in my opinion, the ends of justice would be met if the custodial sentence of five years rigorous imprisonment of the accused under Sections, 372 and 373 IPC is reduced to the period already undergone i.e. three years and six months without reducing the amount of fine imposed by the trial court against the accused-appellant.
19. In view of the aforesaid reasons, the appeal is partly allowed.
20. The conviction of the appellant under Sections 363, 372 and 373 I.P.C. is confirmed but the sentence of rigorous imprisonment of five years under Section 372 and 373 I.P.C. is reduced to the period already undergone. The default stipulation in the judgment of trial Court is maintained.
21. In case the fine has already been deposited or as soon as it is deposited, the appellant shall be set free.
22. Let certified copy of this judgment be sent to the concerned court immediately for sending modified conviction warrant of the accused-appellant to the concerned prison.
Order Date :- 7.10.2021 SK Srivastava