Allahabad High Court
Amar Pal vs State Of U.P. on 2 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. 81 Case - CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3129 of 2010 Petitioner - Amar Pal Respondent - State Of U.P. Petitioner Counsel :- Ramanuj Tripathi,Abhishek Mayank Respondent Counsel :- Govt. Advocate AND Case - CRIMINAL APPEAL No. - 3379 of 2010 Appellant - Babby Respondent - State of U.P. Counsel for Appellant :- Rakesh Pratap Singh,A.N.Pandey, Abhishek Mayank,R.P.S. Parihar Counsel for Respondent :- Govt. Advocate,S.K.Upadhyay Honble Mohd. Azhar Husain Idrisi, J 1- Heard learned counsel for the appellant and learned A.G.A. for the State. Perused the record.
2- Both the aforementioned criminal appeals arise out of the common judgement and order dated 01.05.2010 passed by the learned Additional Sessions Judge, Court No. 7, Aligarh and are connected to each other, they were heard together and are being decided by a common judgment.
3- The instant criminal appeals arise out of the common judgment and order dated 01.05.2010 passed by the Additional Sessions Judge, Court No.7, Aligarh in Sessions Trial No.334 of 2008, arising out of Case Crime No. 123 of 2007, under Sections 323/34, 325/34, 307/34 and 393 I.P.C., Police Station Gaunda, District Aligarh whereby the accused persons have been convicted and sentenced under Section 323/34 I.P.C. to undergo six months' simple imprisonment, under Section 325/34 I.P.C. to undergo two years' simple imprisonment, under Section 307/34 I.P.C. to undergo seven years' simple imprisonment and under Section 393 I.P.C. to undergo two years' simple imprisonment with default clauses.
4- Succinctly, the prosecution story is Suneet Arora gave a written tehrir at Police Station Gaunda, District Aligarh stating therein that on 20.09.2007 when his salesmen, namely, Kamal Singh and Umesh Kumar were selling liqour in his English Wine shop, two persons came riding on a black colour motor cycle at about 09:15 P.M. and asked for one bottle of liquor, to which the Kamal Singh denied to give. Due to which they assaualted Kamal Singh with kick and fist and one of the accused had fired shot from his country made pistol with an intention to kill him. The other person was also equipped with a country made pistol. On an alarm raised by the Umesh, the accused persons fled away. At the time of incident, electric bulbs were illuminating. Umesh immediately informed about this incident to the complainant over the phone. At the time of incident, the complainant's partner, namely, Jabir Ali was in Iglas town and on hearing about the incident, they both came to the Police Station Gaunda where Umesh had also brought the injured Kamal Singh. The injured Kamal Singh told the name of accused person, who fired the gun shot as Amar Pal and he also narrated the entire incident. It is also stated in the written report that both the salesmen can recognize the accused persons on seeing them. On the basis of above written report, a first information report was registered as Case Crime No.123 of 2007, under Sections 323, 307 IPC at Police Station Gaunda, District Aligarh against the accused persons. The injured was examined at J.N. Medical College, Aligarh and was also admitted in that hospital that on 20.09.2007, the informant for further treatment.
5- Initially, the investigation of this case was entrusted to Sub-Ispector Phool Singh and later on was handed over to S.I. Farooq Ahmad. The I.O. prepared site plan, recorded the statement of witnesses under Section 161 CrPC. After completing necessary formalities and due investigation I.O. submitted charge sheet against the accused Amar Pal and Bobby under Sections 323, 325, 307, 393 IPC, in the court of CJM, Aligarh who took the cognizance in the matter.
6- The case being exclusively triable by the court of sessions, learned CJM committed it to the court of sessions, for trial. Where it was registered as S.T. No. 334 of 2008.
7- The learned Trial Court framed the charges against both the accused persons under Sections 323/34, 307/34, 325/34 and 393 I.P.C., the accused abjured the charges. They denied the charge and claimed to be tried.
8- In order to prove its case, the prosecution before the trial court examined the following ocular witnesses:-
S.L. Nos.
Particulars of witnesses Witness Nos.
1 Kamal Singh Pw- 1 2 Suneet Arora Pw- 2 3 Umesh Pal Pw- 3 4 Dr. Ahshan Ahmad Pw- 4 5 Vijendra Singh Pw- 5 6 Dr. Professor M.H. Veg Pw- 6 7 S.I. Phool Singh Pw- 7 8 S.I. Farooq Ahmad Pw- 8 9 Dr. Basant Kumar Pw- 9 9- Apart from it, the prosecution has also relied upon following documentary evidence:-
S.L. Nos.
Particulars Ext. Nos.
Proved By 1 Tehrir Ext. Ka-1 Pw- 2 2 Chik FIR Ext. Ka- 3 Pw- 5 3 Carbon copy of kaimi G.D. Ext. Ka- 4 Pw- 5 4 Injury Report Ext. Ka-2 pw- 4 5 Site Plan Ext. Ka- 28 Pw- 7 6 Charge-sheet Ext. Ka- 29 Pw- 8 7 Radiology report Ext. ka- 30 Pw- 9 8 Injury status report of injured Ext. Ka- 5 to 27 Pw- 6 10- After completion of the prosecution evidence, accused were examined under Section 313 Cr.P.C. Accused-appellant wherein accused denied the statement of prosecution witnesses and stated they are falsely implicated due to party bandi.
11- Accused/ appellant in their defence did not adduce any ocular or documentary evidence.
12- The learned Sessions Judge after appreciating the evidence on record and other material came to the conclusion that the prosecution has been able to prove its case beyond reasonable doubt against the accused persons. He accordingly convicted and sentenced them as stated above. Aggrieved the impugned judgment and order accused/ appellants preferred these separate appeals.
13- It has been argued by the learned Counsel for the appellant that the impugned judgment of conviction is wholly unjustified as the findings recorded by the learned trial court are not based on correct appreciation of evidence on record. Learned Sessions Judge has given too much weight to the prosecution version. The learned Sessions Judge has also committed error in believing the testimony of the prosecution witnesses, overlooking the fact that there are major contradictions in their statement.
14- Learned counsel for the appellant has vehemently argued that the actual incident has not been witnessed by anyone and there was no motive for the appellant to commit the said offence but on account of past enmity of village parti-bandi, they were falsely implicated in the present case.
15- Lastly, it has been argued by the learned counsel for the appellant that even assuming though not conceding that the appellants have committed the offence, then too the punishment awarded to the appellants is excessive as from the medical report it is clearly established that the injuries were not on vital part and the case will fall only under Section 324 IPC and not under Section 307 IPC as held by the learned Sessions Judge.
16- Refuting the assertions of the appellant's Counsel, learned State Counsel has submitted that it is incorrect to say that the findings of conviction recorded by the learned court below are erroneous or not based on correct appreciation of record. As a matter of fact, the learned court below has scrutinized the evidence in its correct prospective and thereafter has recorded the findings of guilt. The eye-witnesses have supported the prosecution version and even if, it is assumed that there were certain contradictions in their statement that were minor in nature and were not fatal for the prosecution case. He further submitted that the medical evidence has fully supported the prosecution version and as such it would be wrong to say that the findings are perverse. Lastly, it has been submitted that the accused persons are criminal minded and were earlier involved in various criminal cases. They have spread terror in the locality.
17- A perusal of the material on record reflects that the incident had occurred on 20.09.2007 at about 9.15 PM and the FIR was lodged on the same day at about 10.15 PM at PS Gaunda, District Aligarh under Section 323/307 IPC. Before the court below, the accused persons have brought by Constable Jagdish Singh, whose name is entered in the medical record. Had the FIR would not have come to existence, there was no occasion for the injured being brought to the Medical College with 'chitti majroobi' by the Head Constable. It has come in the statement of the injured Kamal-Singh that he had told the name of persons who had fired shot to complainant Sunit Arora. The said finding of the Trial Court is based on documentary evidence, which is fully justified in the circumstances of the case.
18- Kamal Singh (P.W.1), who is injured witness in his testimony has stated in clear words that three persons came on the Motor Cycle out of whom Amar Pal and Bobby were armed with weapon. He had further deposed that first shot was fired by Amar Pal while the second shot was fired by Bobby as a result of which he fell down. Nanau, who was working as Salesman carried him to the Medical College where he remained admitted for quite some time and treatment went for a month. He further deposed that Bobby and Amar Pal were known to him from much earlier as he was working in the shop since three years. Firing of shot by the accused persons have been corroborated by the P.W.3 Umeshpal, who is an eye witness of the incident and was working on the Wine Shop as Salesman.
19- Vijendra Singh ( P.W.5) is Constable Clerk at PS Gaunda and he has registered the FIR on 20.9.2007 at 22.15 hrs as case crime no. 279/07 under Section 323/307 IPC on the basis of report of the complainant. The said witness has proved the document before the court. Dr Ahsan Ahmad (P.W.4) has deposed before the Court that he was posted at Medical College Aligarh and about 10.55 Constable Jagdish Singh had brought the injured to the hospital. He was examined by him and found grievous injuries including gun shot injury on the body of the injured. Thus, it is clear that the version as given in the FIR has been corroborated by oral and medical evidence.
20- It is pertinent to mention that it is fully established from the evidence on record that accused-appellant demanded in extortion (Dhauns) two bottles of liquor and Rs. 10,000/- which was refused by injured -Kamal Singh, who was working as Sales Man at the Wine shop of Sunit Arora and as such the accused-appellant became furious and caused bodily injuries, which has been reported to be grievous in nature and were on vital part (upper chest region) of Kamal Singh, who remained under medical treatment for several days.
21- The learned Trial Court after discussing the evidence and statement of the witnesses in detail have rightly come to the conclusion that there is uniformity in the oral and documentary evidence produced by the prosecution and as such the prosecution story cannot be doubted. It is relevant to point out that it is hard to believe that the injured will falsely implicate the appellant and would allow the real assailants to go scot free. Therefore, the assertions of the appellant are wholly baseless and unfounded. Moreover, the learned Counsel for the appellant have failed to establish any concrete evidence for upsetting the findings of guilt recorded by the Trial Court.
22- In view of the aforesaid discussions, I am of the considered opinion that the view taken by the lower court below is perfectly justified and based on correct appreciation of evidence on record and as such the conviction as awarded to the appellants is upheld.
23- So far the sentencing of the accused go the learned trial judge has awarded the following sentence to the accused appellants:-
"अभियुक्तगण अमर पाल पुत्र श्री तुलाराम एवं बौबी पुत्र सरदार सिहं को भारतीय दण्ड संहिता की धारा 323 सपठित धारा 34, 325 सपठित धारा 34, 307 सपठित धारा 34 एवं 393 के अधीन दण्डनीय अपराध का दोषी पाते हुऐ उनमें से प्रत्येक अभियुक्त को भारतीय दण्ड संहिता की धारा 323 सपठित धारा 34 के आरोप में छः माह के सश्रम कारावास, भा०दं०सं० की धारा 325 सपठित धारा 34 के अधीन दण्डनीय आरोप में दो वर्ष के सश्रम कारावास तथा रूपये 1000-00 के अर्थदण्ड से दण्डित किया जाता है। अर्थदण्ड की धनराशि अदा न करने पर उनमें से प्रत्येक को एक माह का अतिरिक्त साधारण कारावास भुगतना होगा, भा०दं०सं० की धारा 307 सपठित धारा 34 के अधीन दण्डनीय अपराध के लिए उनमें से प्रत्येक को सात वर्ष के सश्रम कारावास एवं रूपये 2000-00 के अर्थदण्ड से दण्डित किया जाता है। अर्थदण्ड की धनराशि अदा न करने पर उनमें से प्रत्येक को दो माह का अतिरिक्त साधारण कारावास भुगतना होगा तथा भा०दं०सं० की धारा 393 के अधीन दण्डनीय अपराध के अन्तर्गत उनमें से प्रत्येक को दो वर्ष का सश्रम कारावास तथा 2000-00 रूपये के अर्थदण्ड से दण्डित किया जाता है। अर्थदण्ड की धनराशि अदा न करने पर उनमें से प्रत्येक को दो माह का अतिरिक्त साधारण कारावास भुगतना होगा। अभियुक्तगण की सभी सजाऐं साथ-साथ चलेंगी।"
24- So far as sentence regarding the accused/ appellant Bobby is concerned he was lodged in jail on 06.02.2009 and after serving the period of sentence as awarded to him by the trial court and deposition of fine, was released from jail on 2.7.2014, which is evident from the report dated 18.8.2022 of Senior Jail Superintendent, Aligarh. As I have already held that the conviction of the appellant-Bobby was perfectly justified, the Criminal Appeal No. 3379 of 2010 filed by him is liable to be dismissed. Since, the appellant-Bobby has already served out the sentence, he need not to surrender and his bail bonds, if any, stood discharged.
25- So far as Amar Pal is concerned, he was awarded maximum sentence of seven years. and is incarceration since 01.05.2010 for a long period, therefore, He prayed to reduce his sentence for the period already undergone. In view of this argument it will be useful to navigate the law relating to sentencing in India.
26- In historical backdrop, Indian parliament has not laid down any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in changing circumstances of the society. So, the Courts are dependant on the precident laid down by the Supreme Court.
27- Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt with High Courts and Trial Courts.
In Accused ''X' vs. State of Maharastra (2019) 7 SCC 1) "the Apex Court has held that" It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature peroxided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner."
"12. Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).
13. In State of Madhya Pradesh vs. Udham and others (2019) 10 SCC 300 the Apex Court has held" we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach."
28- 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."
29. The term '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 proportionality'. 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.
30- 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] the Apex Court 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.
31- Keeping in view the facts and circumstances of the case and also 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.
32- As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
33- It is well settled principle that sentence must be just, but simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the court but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner.
34- It has also been observed by the Apex Court that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor self adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. In Gopal Singh v. State of Uttrakahand (2013) 7 SCC 545, the Apex Court elaborating the sentencing that, while imposing sentence, has to keep in view the various complex matters in mind. In respect of certain offences, sentence can be reduced by giving adequate special reasons but the special reasons have to rest on real special circumstances.
35- In the instant case, alleged incident took place on 20.09.2007, about 16 years ago. Appellant Amar Pal is not a previous convict. He has no criminal antecedents. Nothing has been brought to the notice of the court that the accused/ appellant after being released on bail had ever misused the liberty of bail so granted to him. Keeping in view the facts and circumstances of the case and the fact that the appellant has already faced the agony of the protracted prosecution A perusal of the record reveals that he has served out more than four years of his sentece and that accused-appellant alone cannot be held responsible for long delay in disposal of this appeal. Considering all aspects of the matter, no useful purpose would be served by sending accused-appellant in to judicial custody to suffer further imprisonment, rather it appears that ends of justice would meet, if his sentence is redued to the period already undergone, it will be in the interest of justice that his sentence be reduced to the period of sentence already undergone. Sentence of fine is, however, maintained along with its default clause. His appeal is liable to be dismissed with above modification in the impugned judgment and order dated 01.05.2010.
36- Resultantly, the instant appeal is party allowed against the appellant Amar Pal with following directions:-
(i) The judgment of conviction dated 01.05.2010 is confirmed though the sentence awarded, is modified to the period of already undergone. Accordingly, he be enlarged forthwith, if he is not in judicial custody he need not surrender and his bail bonds are cancelled and sureties stands discharged.
(ii) The amount of fine shall be paid by appellant Amar Pal within three months from the date of furnishing certified copy of the judgment. In default, thereof, appellant has to undergo an additional simple imprisonment as awarded by the trial court.
(iii) A copy of judgment be sent to Court concerned for necessary information and compliance.
(iv) Trial court's recod be remitted back forthwith.
Order Date :- 02.12.2022 Israr