Allahabad High Court
Karan Singh vs State Of U.P. on 6 July, 2020
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 42 Case :- CRIMINAL APPEAL No. - 2253 of 1980 Appellant :- Karan Singh Respondent :- State of U.P. Counsel for Appellant :- S.K. Kulshrestha,Sushil Kumar Pandey Counsel for Respondent :- A.G.A. Hon'ble Raj Beer Singh,J.
1. This appeal arises out of impugned judgement and order dated 24.09.1980 passed by learned III Additional Sessions Judge, Mathura in Session Trial Nos. 124, 125 and 126 of 1977 (State Vs. Karan Singh and others) under Sections 368, 354, 365 I.P.C. Police Station Kotwali Goverdhan, District Mathura, whereby accused-appellant Karan Singh has been convicted under Section 365 I.P.C. and sentenced to undergo rigorous imprisonment of five years.
2. Learned counsel for the appellant has not disputed the findings rendered by learned trial court regarding conviction of accused-appellant and confined his arguments only regarding sentence. However, I have gone through the entire evidence carefully.
3. Prosecution version is that about 5-6 days prior to the date of incident, one Attra brother of the accused Kunwar Singh, was arrested by the police and said Kunwar Singh was labouring under impression that P.W.4 Kashi Ram, resident of same village, was involved in arrest of his brother Attra. Due to this animosity on the night of 17/18.06.1976 at about 10:00 P.M., accused-appellant Karan Singh, along with his brother Kunwar Singh and their 4-5 other associates reached at the house of P.W.4 Kashi Ram and at the point of deadly weapons, they forcibly lifted P.W.5 Smt. Kalloo (wife of P.W.4 Kashi Ram) and P.W. 7 Pappu (son of P.W. 4 Kashi Ram) and took them away in a car. Both victims were taken to an underground room and they were kept in illegal confinement for several days. After some days, (P.W.5) Smt. Kalloo was taken by train to Koshi and there she was made to board a bus for Deeg (Bharatpur Rajasthan) by handing a letter to her, wherein demand of ransom of Rs. 15,000/- was made for release of her son P.W.7 Pappu. She was also threatened that if she disclosed anything regarding incident, her son would be killed. P.W. 5 Smt. Kalloo reached at house of her Nanand (husband's sister) in village Dudawal (Rajasthan), from where her husband Kashi Ram was informed. P.W.4 Kashi Ram brought her to Goverdhan and First Information Report Ex. Ka 1 was registered vide crime no. 86 of 1976 under Section 365 I.P.C. at Police Station Goverdhan, Mathura regarding the incident. Kashi Ram received three letters Ex. Ka 4 to Ex. Ka 6 wherein demand of ransom was made for release of his son. Perusal of the record further shows that on 26.06.1976 police conducted a raid at the house of one Sumit Chand at Mathura and accused-appellant Karan Singh and co-accused Ram Prakash and Sumit Chand were apprehended and some illicit weapons were recovered from them whereas their four associates ran away. In underground room of said house, P.W.7 Pappu, aged about 6-7 years was recovered from the custody of accused Shyamwati. Regarding this incident a separate case was registered on 26.06.1976 at about 11:10 P.M. at Police Station Kotwali Goverdhan, District Mathura under Section 368 I.P.C. as well as under Sections 399/402 I.P.C. and 25 Arms Act against accused-appellant Karan Singh, Ram Prakash, Sumit Chand, Shyamwati, Mauji Gadriya, Mormal Mew, Kumar Sen and Hori Thakur.
4. After investigation, accused-appellant Karan Singh and co-accused persons were charge sheeted and Session Trial Nos. 124, 125, 126 of 1977 (State Vs. Karan Singh and others) were consolidated together wherein Session Trial No. 124 of 1977 was made the leading case.
5. The trial Court framed charges under Sections 368, 354 I.P.C. against the accused-appellant. The appellant pleaded not guilty. In order to bring home the guilt of the accused persons, prosecution has examined 12 witnesses. After prosecution evidence, accused-person were examined under Section 313 Cr.P.C.
6. After hearing and analysing evidence on record, accused-appellant was convicted by the trial court under Section 365 I.P.C. and sentenced as stated in opening paragraph of this judgment. Being aggrieved of the same, accused-appellant has preferred the present appeal.
7. Heard Sri Sushil Kumar Pandey, learned counsel for the appellant and Sri D.P. Chauhan, learned A.G.A. for the State.
8. P.W.5 Smt. Kallo, is one of the victim of alleged incident. So far as the involvement of the accused-appellant-Karan Singh in commission of alleged incident is concerned, her statement is clear and cogent wherein she has clearly stated that accused-appellant Karan Singh has kidnapped her from her home. She and her minor son were kidnapped by accused-appellant Karan Singh and his associates and they were kept in illegal confinement for several days. She was subjected to cross-examination but so far as involvement of the accused-appellant is concerned, her version could not be shaken. Her version has also been amply corroborated by P.W.7 Pappu, who is also a victim of the alleged incident. Although P.W.7 Pappu was aged about 6-7 years at the time of incident but the Trial Court recorded its satisfaction regarding his competency to depose, before recording his statement. Both the witnesses have stood test of cross-examination. After considering the entire evidence, this Court is satisfied that conviction of accused-appellant under Section 365 I.P.C. is based on evidence and it calls for no interference by this Court
9. So far as question of conviction is concerned, it was submitted by learned counsel for the accused-appellant that alleged incident took place on 17.05.1976 and thus after incident, a period of 44 years has passed away and now appellant is aged about 70 years. Learned counsel further submits that accused-appellant Karan Singh was arrested on 26.06.1976 and he remained in custody throughout trial which was decided on 24.09.1980. It was stated that accused-appellant-Karan Singh has already undergone sentence of more than 4 years. It was further submitted that in view of above stated facts and circumstances, it would not be appropriate to send the accused-appellant into judicial custody at this stage.
10. Learned A.G.A. has argued that keeping in view of the fact that a period of 44 years has passed since the incident, appropriate sentence may be awarded.
11. It is well settled principle that sentence must be just and 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 emphasise, these are certain illustrative aspects put forth in a condensed manner.
12. It has been observed by the Hon'ble 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. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment. (Raj Bala vs. State of Haryana & Ors passed in Special Leave Petition (Crl.) Nos. 4099-4100 of 2015) & Gopal Singh Vs. State of Uttrakhand (2013) 7 SCC545.
13. Keeping in view the above stated position of law, in the instant case it may be observed that after incident, period of about 44 years has passed and that the accused-appellant has already undergone substantial part of sentence awarded to him. It was stated that the accused-appellant has undergone sentence of about four years during trial and now he is stated to be aged about 70 years. In view of these facts, it appears that end of justice would be met if sentence of five years imprisonment awarded by the trial court to accused-appellant be reduced to the period already undergone by him along with fine of Rs. 1,000/-.
14. Accordingly, conviction of accused-appellant Karan Singh is upheld, but sentence of five years rigorous imprisonment, awarded by the trial court, is reduced to the period already undergone by him along with fine of Rs. 1,000/- (one thousand only). Accused-appellant is directed to deposit fine of Rs. 1,000/- within forty five days from today. In default of payment of fine, accused-appellant shall undergo one month imprisonment.
15. The instant appeal is party allowed in above terms.
16. A copy of this order along with record of trial Court be transmitted to the court concerned.
Dated: 6.07.2020 S.Ali.
(Raj Beer Singh, J)