Allahabad High Court
Vijai Prakash vs State Of U.P. on 29 September, 2021
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 78 Case :- CRIMINAL APPEAL No. - 22 of 1989 Appellant :- Vijai Prakash Respondent :- State of U.P. Counsel for Appellant :- A.K. Bhatt,Kumar Ashutosh Srivastava,Nagendra Bahadur Singh Counsel for Respondent :- GA Hon'ble Ajit Singh,J.
1. Heard Sri Nagendra Bahadur Singh learned counsel appearing on behalf of the appellant, Rameshwar Prasad Shukla, learned A.G.A. appearing on behalf of the State and perused the record.
2. This criminal appeal has been preferred against the judgment and order dated 21.12.1988 passed by Special Judge, Allahabad in Criminal Case No. 5 of 1985 whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment under section 3/7 E.C. Act for a period of one year and to pay a fine of Rs.500/-. In case of default of the payment of fine, he shall further undergo six months rigorous imprisonment. Both the sentences shall run concurrently.
3. The prosecution case in brief is that Sri R.S. Saxena was posted as S.D.M. Sirathu. It was mentioned that the accused Vijay Prakash was a licence holder of fertilizer and was doing his business at Saini. On 5.10.1983, Sri Saxena alongwith Tehsildar Sri T.R. Ram inspected the shop of the accused and he found that there was no sale register maintained by the accused nor was shown to the S.D.M; there was no cashmemo prepared by the accused-appellant nor was shown to the S.D.M.; there was entry of 48 bags of Urea upto 21st September, 1983. Thereafter there was no entry at all; on physical verification a shortage of 8 bags of fertilizer was detected and there was no entry of 12 bags of fertilizer in the stock register which were found on the shop. The accused-appellant was charged under 3/7 E.C. Act and after taking prosecution evidence, the trial court convicted the appellant with sentence of one year rigorous imprisonment and fine of Rs.500/-.
4. The trial court recorded statement of the witnesses and after hearing the argument of both the sides, convicted the appellant as aforesaid.
5. At the very outset, learned counsel for the appellant, on instructions, stated that he does not propose to challenge the impugned judgement and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant.
7. Learned counsel for the appellant has specifically stated that incident had happened in the year 1983 and at present the accused-appellant is aged about 68 years old and has submitted that he does not want to press this appeal on merit but requests the Court that considering the age of the accused and considering that he is suffering from age related ailments, conviction of the accused be modified suitably and he has further submitted that the accused person had suffered mental and physical agony of incarnation and he has suffered mental agony of criminal trial and after conviction since year 1988.
8. Learned A.G.A. has vehemently opposed the argument advanced by the learned counsel for the appellant. He has however, submits that if slight reduction in sentence is made, he has no objection.
9. 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.
10. 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."
11. 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."
12. 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."
13. 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.
14. 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.
15. 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."
16. 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 is old and aged persons; and by so far he has realized the mistake committed by him and is remorseful to his conduct and feels it necessary to serve with his polite and cooperative behaviour to the society which he belongs to and now he wants to transform himself into a law abiding citizen, I am of the considered opinion that he should be given a chance to reform himself and extend his better contribution to the society to which he belongs to.
17. After considering the rival submissions made by learned counsel for the appellant, considering the facts and circumstance of the case, considering that the alleged incident which took place in the year 1983 about 38 years ago and now appellant is more than 68 years of age, at this stage, this Court feels that it would not be proper to send the accused-appellant to jail at the fag end of his life and the accused was on bail since 3.1.1989 and the accused person has suffered the agony of conviction for more than three decade and no criminal antecedents have been shown to his credit after passing of so much long period out of jail, at this stage it does not appear appropriate to send the accused-appellant to jail. It has been pointed out by learned counsel for the accused-appellant that the accused-appellant had remained in jail for sometime during trial. Considering all these facts, it would be appropriate and proper that the accused be sentenced with the period already undergone and the amount of fine be enhanced.
18. Consequently, taking into consideration the period already undergone in prison by the appellant in this case as well as considering that he has suffered physical and mental agony of trial and after conviction for a long period of about 35 years, the conviction is upheld. Appeal is dismissed and accused is convicted which the period already undergone by him in prison during trial and after conviction and with a fine of Rs.2000/-.
19. Accused-appellant is directed to deposit the fine of Rs.2,000/- before learned trial court within a period of three months from the date of production of a copy of the judgement, in default of payment of fine as directed above, he shall undergo simple imprisonment for a period of fifteen days.
20. Appeal is partly allowed in the above terms and surety bonds of the sureties are discharged.
21. 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.
Order Date :- 29.9.2021 AU