Allahabad High Court
Rajeev And 2 Others vs State Of U.P. on 4 May, 2020
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on : 14.2.2020 Delivered on :04.05.2020 Court No. - 84 Case :- CRIMINAL APPEAL No. - 2138 of 2018 Appellant :- Rajeev And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Sudarshan Singh,Manish Tiwary Counsel for Respondent :- G.A. Hon'ble Ajit Singh,J.
This criminal appeal has been filed against the judgement and dated 10.4.2018/11.4.2018 passed by Addl. Sessions Judge Court no. 4, Budaun in S.T. No. 744 of 2012 (State vs. Rajeev and others), arising out of Case Crime no. 761 of 2008, under Sections 147, 148, 307/149 and 504 I.P.C., P.S. Dataganj,district-Budaun, whereby learned Judge convicted and sentenced the appellants to one year rigorous imprisonment under Section 147 I.PC., one year rigorous imprisonment under Section 148 I.P.C. and five years rigorous imprisonment under Section 307 read with section 149 I.P.C. with a fine of Rs. 5000/- each and in default of payment of fine, further additional imprisonment for two months.
The prosecution story in brief is that on 18.10.2008 at about 8:00 a.m. when the brother of the complainant stopped Lakhan Singh to encroach his field during cutting of 'medh' of his field, then Lakhan Singh started abusing him and when brother of the complainant asked for not doing so, then Lakhan Singh called his sons and nephew and exhorted them to beat. Rajiv, son of Lakhan Singh was having a riffle of 315 bore of his brother, Chhotey Singh, son of Shiv Singh was having pistol of 12 bore of his brother Lakhan Singh, Punjab Singh, son of Jagatpal was having licensee riffle of 315 bore of his brother and Lakhan Singh was armed with country made pistol reached at the place of occurrence. All the accused persons with the intention to kill opened fire at the complainant and his brother. The fire which was shot by Ranjit hit his brother Ram Naval Singh. The incident was witnessed by Chandrapal. The first information report was lodged on the basis of information given by Ram Nivas, brother of the injured Ram Naval Singh. After the registration of the case, the investigation thereof was entrusted to S.I. Srinivas who after completing investigation and doing necessary formalities, submitted charge sheet against the appellants under Sections 147, 148, 149, 307 and 504 IPC.
As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Budaun framed the charge against the appellants under Section 147, 148, 307 read with 149 and 504 IPC to which the appellants pleaded not guilty and claimed to be tried.
To bring home guilt of the appellants, the prosecution examined as many as eight witnesses. PW-1 Ram Nivas, complainant, PW-2 Ram Naval Singh, injured, PW-3 Constable, Sone Lal Verma, PW-4 Dr. G.C. Naugai, PW-5 Girish Chand Naugai, PW-6 Dr. Gopal Dutt, PW-7 S.I., Chamkar Singh and PW-8 Sub-Inspector, Ram Niwas Sharma. No independent witness has been examined by the prosecution.
PW-6 Dr. Gopal Dutt has examined the injured Ram Naval who was at the time of incident about 45 years old. Doctor found two injuries (i) Entry wound 2 cm x 1 cm in size tattooing in right shoulder region. (ii) Exit wound 2cm x 1 committee of management in size 8 cm. lateral to the entry wound right shoulder region (iii) contusion injury right sciatic nerve. Blood was oozing. Doctor opined that both the injuries were caused by a firearm. Doctor has also opined that both the injuries were found on thigh.
After the closure of prosecution evidence, the statements of the accused-appellants were recorded under Section 313 Cr.P.C., in which they denied the charges and stated that they have been falsely implicated in this case due to enmity with the police.
Learned counsel for the appellants submitted that as per prosecution case three persons (the appellants) had assaulted the injured with firearm. However, the injury report shows only one injury on his person. Even during the trial the eye witnesses could not specify in their evidence as to who was the author of the fatal wound. He next submitted that as per the statement of PW1, complainant, who deposed that he was also present at the place of occurrence where and when the incident took place, but he had not stated in the First Information Report that he was present at the time of incident, but the injured Ram Naval Singh in his cross-examination had also stated that his brother Ram Niwas was also present at the spot when the incident occurred. A question arises that when brother of the injured was present at the place of occurrence how he remained unhurt and how he could be able to escape the injuries alleged to have been caused by fire-arm, remains unexplained. No empty cartridge was recovered from the place of occurrence.
Learned counsel for the appellants also submits that the complainant, who is said to be eye witness of the incident, was not present at the place of occurrence at the time of incident. As per injured, the fire was shot by front, while as per doctor's opinion the bullet had gone upward from downward and hit on shoulder. The injuries sustained by the injured were serious in nature but not dangerous to life.
However, learned Additional Sessions Judge, Allahabad after assessing and evaluating the evidence adduced by the parties, convicted and sentenced the appellants as indicated herein above.
Hence this appeal.
Heard Sri Sudarshan Singh, learned counsel for the appellant and Sri Ravi Prakash Pandey and Sri Shamsher Bahadur Maurya, learned A.G.A. for the State and perused the record.
At the very outset, Sri Sudarshan Singh, learned counsel for the appellants, on instructions, stated that he does not propose to challenge the impugned judgement and order on its merits. They, however, prayed for modification of the order of the sentence for the period already undergone by the appellants.
Shri Ravi Prakash Pandey and Sri Shamsher Bahadur Maurya, learned Additional Government Advocates representing the State has stated that he has no objection if the Court considers the mitigating circumstances.
Since the learned counsel for the appellant has given up challenge to the findings of conviction and there is ample evidence including eyewitness account and medical report to base conviction, accordingly, the conviction of the appellant for the aforesaid offence stands affirmed.
However, on the quantum of sentence, learned counsel for the appellants has argued that the appellants are not previous convict. Except appellant Rajeev all other accused are on bail. He next submitted that the appellant is aged about 37 years married person and he is having children and he is only earning member in the family. He next submitted that it was the first offence of the accused-appellants and after conviction the accused had not indulged in any other criminal activity. He further submitted that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and his age related ailments.
Learned counsel for the appellant further submits that the appellant was awarded five years rigorous imprisonment under Section 307 read with section 149 I.P.C. with a fine of Rs. 5000/- each and in default of payment of fine, further additional imprisonment for two months and that he has already undergone three months and five days before conviction and two months after conviction, meaning thereby that he has undergone about five months and five days of the awarded sentence.
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 nartured 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.
Looking into the evidence oral as well as documentary, which is available on record, this Court is of the opinion that learned trial court has rightly convicted the accused as there is clear and cogent evidence against the accused, which is corroborated and supported by medical evidence.
Considering the facts and circumstances of the case and the substantive period already undergone by the appellants 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 is remorseful of his 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.
Appellant no. 1, Rajeev is in jail and appellant nos. 2 and 3, Chhotey Singh and Punjab Singh are on bail.
So far appellant no. 1 is concern, he shall be released forthwith from jail, if he is not wanted in any other case and so far as appellant nos. 2 and 3 are concerned, their bail bonds and sureties shall stands discharged and they are directed to deposit the fine of Rs. 5000/- each within six months and in default of payment of fine they shall further undergo three months simple imprisonment.
Office is directed to transmit a copy of this order to the learned Sessions Judge, Budaun for compliance.
Office is also directed to send back the record of the trial court immediately.
Order Date : 04.05.2020.
Faridul.