Allahabad High Court
Nahar Singh And 4 Others vs State Of U.P. on 16 December, 2020
Author: Ajit Singh
Bench: Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- CRIMINAL APPEAL No. - 7500 of 2019 Appellant :- Nahar Singh And 4 Others Respondent :- State of U.P. Counsel for Appellant :- Anita Singh,Ajay Dubey,Nirmla Kumari,Prem Babu Verma Counsel for Respondent :- G.A. Hon'ble Ajit Singh,J.
This criminal appeal has been filed against a judgement dated 16.11.2019 passed by the Addl. Sessions Judge, Court No. 8, Agra in S.T. No. 701 of 2017 (State vs. Nahar Singh and others), arising out of Case Crime no. 471 of 2016, under Sections 147, 148, 149, 452, 307, 323, 504 and 506 I.P.C., P.S. Achhanera, district-Agra, whereby learned Judge convicted and sentenced the appellant under Section 147 I.P.C. to 1 year simple imprisonment with fine of Rs. 1000/- and in default of payment of fine one month additional simple imprisonment, under Section 148 I.P.C. to 2 years simple imprisonment with fine of Rs. 2000/- and in default of payment of fine one month additional simple imprisonment, under Section 307/149 I.P.C. to 4 years R.I. With fine of Rs. 10,000/- and in default of payment of fine six months additional simple imprisonment and under Section 323 I.P.C. fine of Rs. 2000/- and in default of payment of fine 15 days additional simple imprisonment. It was also directed that all the sentences shall run concurrently. It has also been directed that the period in which the accused persons were in jail shall be accommodated in their sentence.
The prosecution story in brief is that on 11.8.2016 at about 6:20 p.m. the complainant had gone out from his house for some personal work and in his absence accused persons namely, Nahar Singh, Sunder Singh, Om Prakash, Bhola and Gajan Devi, who were having lathi-danda, saria, firearm and spade in their hands entered into the house of the complainant and started hurling abuses. When younger brother of the complainant Umesh Kumar resisted, the accused persons with the intention to kill had caught hold him. Accused Nahar Singh assaulted him badly with lathi-danda. After hearing the hue and cry mother of the complainant namely, Sona Devi came to save his son Umesh Kumar, then the accused Sunder Singh with the intention to kill had given Pharsa blow on his head. Accused Om Prakash has fired at the brother of the complainant Umesh with firearm, which was not hit then rest of the accused persons assaulted his brother and mother badly with lathi and saria, as a result of which they sustained serious injuries. After hearing the hue and cry, residents of the village Mohan, Pappu and others reached at the spot and seen the incident and saved mother and the brother of the complainant. accused persons after threatening them to kill, ran away from the spot.
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.
In furtherance to his submission, the learned counsel for the accused-appellant submits that the appellant nos. 1, 3 and 5 namely, Nahar Singh, Sundar Singh and Om Prakash are the real brothers and appellant no. 2 is the son of appellant no. 1 and appellant no. 4 is the son of appellant no. 3. He next submits that the injured had received only simple injuries and the offences are punishable upto the limit of 324 I.P.C. not under Section 307. Appellants are poor farmers and their family is at the verge of starvation. Further submission is that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He next submits that although the trial court has convicted the present accused on the basis of mere conjuncture while the appellant is absolutely innocent and has been falsely implicated in this case with the ulterior intention of harassing him. He also submits 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 accused-appellants has also submitted that accused-appellants are in jail since 16.11.2019 from the date of judgement and prior to that they were in jail and as such they were in jail since about one year and two months, and therefore, he has requested that considering the period in jail, a lenient view may be adopted and the sentence may be converted either undergone or the sentence may be substantially reduced.
Learned A.G.A. has vehemently opposed the submission made by learned counsel for the appellant. He has however, submits that if slight reduction in sentence is made, he has no objection.
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.
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."
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.
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 efficaciousness. 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- 2000/- to Rs. 20,000/- each. Period of imprisonment in case of default will remain the same."
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 appellants are poor farmers and their families are at the verge of starvation 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 they should be given a chance to reform themselves and their better contribution to the society to which they belongs to.
After carefully scrutinizing the evidence of the injured, Smt. Sona Devi, PW-2 and Umesh Kumar, PW-3 and the testimony of PW-5, Dr.Pragyat Singh, this Court consider the injuries inflicted by the appellants were not dangerous to life, this Court consider that the offence under Section 307 I.P.C. was not made out from the facts and circumstances of the case and the appellants/accused can be said to have committed the offence punishable under Section 324 I.P.C. The conviction and sentence of the accused/appellants under Section 307 I.P.C. is set aside and they are convicted under Section 324 I.P.C.
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.
Considering all the facts and circumstances of the case, the accused-appellants are sentenced to the period already undergone by them in jail during trial and after conviction an amount of fine of Rs.20,000/- each be imposed.
Accused-appellants are directed to deposit the fine of Rs. 20,000/- before learned lower, of which Rs.18,000/- each shall be paid to the injured, if he is alive and in case he is dead then it would be paid to his legal heirs and in default of payment of fine as directed above, they shall undergo simple imprisonment for a period of fifteen days. If the said amount is deposited by the appellants they shall be released forthwith, if not wanted in any other case.
Appeal is partly allowed in the above terms.
Copy of this order be transmitted to the concerned lower court forthwith for compliance.
Order Date :- 16.12.2020 R./