Allahabad High Court
Ramshankar Singh And 3 Others vs State Of U.P. on 19 January, 2021
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 90 Case :- CRIMINAL APPEAL No. - 427 of 2020 Appellant :- Ramshankar Singh And 3 Others Respondent :- State of U.P. Counsel for Appellant :- Vinod Singh Counsel for Respondent :- G.A. Hon'ble Ajit Singh,J.
Heard the learned counsel for appellants, learned AGA appearing for the State and perused the record of this case.
This criminal appeal has been filed against the judgement and dated 13.12.2019 passed by Addl. Sessions Judge/Special Judge, Gangsters Act, Court No. 3, Jalaun at Orai in G.S.T. No. 15 of 2010 (State vs. Ballu and others), arising out of Case Crime no. 69 of 2009, under Sections 2/3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station - Gohan, District - Jalaun whereby each of the accused appellants have been convicted and sentenced to seven years of rigorous imprisonment with a fine of Rs. 10,000/- each. In default of payment of fine, each of the appellants will have to serve out three months additional simple imprisonment. By the impugned judgment and order of the conviction and sentence the learned trial court has also directed that the period of imprisonment undergone by the accused appellants before conviction will be adjusted in the sentence.
The prosecution story in brief is that a Case Crime No. 69 of 2009 under Sections 2/3 of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986, Police Station - Gohan, District - Jalaun was registered against the present accused appellants, namely, Ballu @ Veerbal, Dhadu @ Drigpal Singh, Sant Singh @ Sube Singh and Ram Shanker Singh on the basis of the allegations that as many as 15 criminal cases were lodged against the gang leader - Ballu @ Veerbal, 6 criminal cases were lodged against the gang member - Dhadu @ Drigpal Singh, 3 criminal cases were lodged against the gang member - Sant Singh and as many as 4 criminal cases were lodged against gang member - Ram Shanker Singh. It was further mentioned in the First Information Report lodged against the present accused appellants that there is fear and danger in the society for the criminal and anti-social activities of this gang and common citizens of the society are under fear and terror of this gang. Nobody musters courage to give evidence against them. That being so, this gang was booked under the aforesaid sections of the U.P. Gangsters Act.
After lodging of the FIR against the present accused appellants, the matter was investigated and charge sheet was submitted before the Court. Thereafter, charge was framed and the trial proceeding was conducted and concluded into conviction and sentence to the accused appellants by the impugned judgment and order as narrated above.
Heard Sri Vinod Singh, learned counsel for the appellants, the learned A.G.A. for the State and perused the record.
At the very outset, Sri Vinod Singh, learned counsel for the appellants, on instructions, submits that he does not propose to challenge the impugned judgement and order on its merits. It is further submitted by the learned counsel for the appellants that the accused appellants were sent to jail before trial and they were sent to jail after completion of the trial. The appellant No. 1, Ram Shanker Singh, was in jail w.e.f. 28.05.2009 to 02.10.2014, appellant No. 2, Sant Singh, w.e.f. 28.5.2009 to 08.05.2014, appellant No. 3, Dhadu @ Drig Pal Singh, w.e.f. 28.5.2009 to 19.12.2014 and appellant No. 4, Ballu @ Veerbal, w.e.f. 28.5.2009 to 23.02.2015. It is also argued by the learned counsel for the accused appellants that each of the appellants was convicted and sentenced to serve out seven years of imprisonment under the Gangster Act and they have been in jail during trial and after conviction for more than six years. He, however, prays for modification of the order of the sentence for the period already undergone by the appellants.
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 counsel for the appellants has given up challenge to the findings of conviction and there is ample evidence to base conviction, accordingly, the conviction of the appellant for the aforesaid offence stands affirmed.
This Court is well aware that while dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held 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 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 nurtured 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.
Considering the facts and circumstances of the case and the substantive period already undergone by the appellants in jail in this case and the fact that the appellants are married persons and they are having children; there is no bread winner in the family of the appellants and that they have realized the mistake committed by them and are remorseful of their conduct to the society to which they belong and now they want to transform themselves, I am of the considered opinion that the accused should be given a chance to reform themselves and be allowed to give their better contribution to the society to which they belong to.
Consequently, the sentence is modified to the period already undergone by the appellants in this case and the amount of fine imposed by the trial court is confirmed.
The appeal stands party allowed.
All the appellants are on bail. Their bail bonds and sureties shall stands discharged and they are directed to deposit the fine of Rs. 5000/- each within two months and in default of payment of fine they shall further undergo two months simple imprisonment.
Office is directed to transmit a copy of this order to the learned Sessions Judge, Jalaun for compliance.
Office is also directed to send back the record of the trial court immediately.
Order Date :- 19.1.2021 LBY