Nadeem vs State Of U.P. on 11 August, 2025

[Cites 37, Cited by 0]

Allahabad High Court

Nadeem vs State Of U.P. on 11 August, 2025

1. Heard Sri Rajiv Lochan Shukla alongwith Sri Shashank Pandey and Sri Abhishek Shukla learned counsel on behalf of appellant-Khursheed, Sri Umesh Singh learned counsel for the appellant-Nadeem and Sri Vikas Goswami learned AGA-I for the State.

2. Present appeal arises from judgment and order dated 26.06.2015 passed by Sri Akhilesh Dubey Additional Sessions Judge/Fast Track Court, J.P. Nagar, in Sessions Trial No. 403 of 2011 (State Vs. Khursheed and others), whereby the appellants as also the co-accused Amit have been convicted for offence under Section 395/120B, 397/120B IPC and sentenced for life together with fine Rs. 50,000/- each, with default sentence of two years simple imprisonment. They have also been convicted for offence under Section 412 IPC and sentenced to ten years rigorous imprisonment together with fine Rs. 25,000/- each with default sentence of one year simple imprisonment. Also, they have been convicted under Section 25 Arms Act and sentenced to two years rigorous imprisonment together with fine Rs. 2000/- and default sentence of two months - in Sessions Trial No. 401 of 2011 (State Vs. Nadeem) and 402 of 2011 (State Vs. Khursheed). The appellants have been acquitted in Sessions Trial No. 400 of 2011 for offence under Section 147, 148, 307/149 IPC and in Sessions Trial No. 404 of 2011 for the offence under Sections 395, 397 IPC.

3. Three appeals are listed before us today. One by the appellant-Nadeem (Criminal Appeal No. 580 of 2019), second by the co-accused Amit (Criminal Appeal No. 2936 of 2015) and third by the appellant-Khursheed (Criminal Appeal No. 3056 of 2015). At the outset, learned counsel for the appellant Nadeem and Khursheed have stated, they are not pressing their appeals against the order of conviction. They have confined their submissions on the point of sentence awarded, to those accused. Sri Anil Mehrotra learned counsel appearing for the third appellant-Amit stated, he would be pressing that appeal on merits, against conviction. Accordingly, we have heard Criminal Appeal No. 580 of 2019 (Nadeem Vs. State of U.P.) and Criminal Appeal No. 3056 of 2015 (Khursheed Vs. State) only. Criminal Appeal No. 2936 of 2015 (Amit Vs. State) is detagged from this batch. That appellant is on bail. That appeal may be listed on its own turn.

4. On the issue of sentence, it may only be noted that the present appellants were charged as below:

Common charges against the appellants Khursheed, Nadeem and co-accused Amit:

" प्रथमः यह कि दिनांक 14.03.2011 को समय 10:45 बजे बस्थान ग्रीन वैली होटल के पास, पुलिस थाना रजबपुर, जिला ज्योतिबा फुले नगर में आपने अपने अन्य साथियों के साथ मिलकर आपसी सहमति के द्वारा आपराधिक षड्यंत्र कर वादी मुक‌दमा राजीव भटनागर के दो बैग, जिनमें से एक में 20,92,845/- रूपये व दूसरे में लैपटॉप था, को लूट ले गये, जो कि एक अवैध कार्य था। इस प्रकार आपका उक्त कृत्य धारा 120बी भा०दं०सं० के अंतर्गत दण्डनीय अपराध है, जो इस न्यायालय के प्रसंज्ञान में है।

द्वितीयः यह कि उपरोक्त तिथि, समय एवं स्थान पर आप लोगों ने अपने एक अन्य साथी के साथ संयुक्त रूप से, जिनकी कुल संख्या पांच थी, मिलकर वादी मुकदमा राजीव भटनागर से उसकी गाड़ी में रखे दो बैग, जिनमें से एक में 20,92,845/- रूपये व दूसरे में लैपटॉप था, को लूट ले गये और एतद्द्वारा आपने डकैती कारित की, जो भारतीय दण्ड संहिता की धारा 395 के अधीन दण्डनीय अपराध है, जो इस न्यायालय के प्रसंज्ञान में है।

तृतीयः यह कि उपरोक्त तिथि, समय एवं स्थान पर आप लोगों ने अपने एक अन्य साथी के साथ मिलकर घातक आयुधों से सुसज्जित होकर वादी मुकदमा राजीव भटनागर से रूपया व लैपटाप की लूट करते समय वादी व उसके साथियों पर तमंचे से फायर कर उनकी मृत्यु कारित करने या घोर उपहति कारित करने का प्रयत्न किया, जो भारतीय दण्ड संहिता की धारा 397 के अधीन दण्डनीय अपराध है, जो इस न्यायालय के प्रसंज्ञान में है।

चतुर्थः यह कि उपरोक्त तिथि, समय एवं स्थान पर से लूटी गयी नकदी व सामान, जिसके कब्जे के विषय में आप यह जानते थे कि वह डकैती द्वारा अन्तरित की गयी है, को बेईमानी से प्राप्त किया / पास रखा है, जो सामूहिक रूप से आपके कब्जे से बरामद भी हुई है और इसके द्वारा आपने ऐसा कार्य किया है, जो भारतीय दण्ड संहिता की धारा 412 के अधीन दण्डनीय अपराध है, जो इस न्यायालय के प्रसांज्ञान में है।"

Additional charge against the appellant Khursheed (Sessions Trial No. 402 of 2011):

"यह कि दिनांक 14.03.2011 को समय 13:00 बजे दिन स्थान सरकड़ी अजीज, पुलिस थाना रजबपुर, जिला ज्योतिबा फुले नगर में आपको पुलिस द्वारा मौके पर गिरफ्तार करने पर आपके कब्जे से एक तमंचा देशी 315 बोर नाजायज, तमंचे की नाल में फंसा एक ताजा चला खोखा कारतूस व पैंट की दाहिनी जेब से दो अदद जिंदा कारतूस 315 बोर के बरामद हुये हैं, जिसको रखने का कोई लाईसेंस आपके पास नहीं था। इस प्रकार आपने ऐसा कार्य किया है जो भारतीय आयुध अधीनियम की धारा 25 के अधीन दण्डनीय अपराध है, जो इस न्यायालय के प्रसंज्ञान में है।"

Additional charge against the appellant Nadeem (Sessions Trial No. 401 of 2011):

"यह कि दिनांक 14.03.2011 को समय 13:00 बजे दिन स्थान सरकड़ी अजीज, पुलिस थाना रजबपुर, जिला ज्योतिबा फुले नगर में आपको पुलिस द्वारा मौके पर गिरफ्तार करने पर आपके कब्जे से एक तमंचा देशी 12 बोर नाजायज, तमंचे की नाल में फंसा एक ताजा चला खोखा कारतूस व पैंट की दाहिनी जेब से दो अदद जिंदा कारतूस 12 बोर के बरामद हुये हैं, जिसको रखने का कोई लाईसेंस आपके पास नहीं था। इस प्रकार आपने ऐसा कार्य किया है जो भारतीय आयुध अधीनियम की धारा 25 के अधीन दण्डनीय अपराध है, जो इस न्यायालय के प्रसंज्ञान में है।"

5. As noted above, the appellants have been convicted for offences for which they were charged in Sessions Trial No. 403 of 2011, 402 of 2011 and 401 of 2011. At the same time, it may be noted, the appellants have been acquitted of charges framed in Sessions Trial Nos. 400 of 2011 and 404 of 2011.

6. Thus, the charge found proven against the appellants is of committing dacoity with use of deadly weapon, namely firearm. In that they committed dacoity and looted Rs. 20,92,845/- alongwith a laptop computer device, from Rajeev Bhatnagar (an employee of a Toll Plaza), and Tejpal - on a highway, at about 10.45 a.m., on 14.03.2011, when those persons were carrying that cash (collected at the Toll Plaza), to deposit at a bank. It is the proven case of the prosecution that the accused looted that cash and fled in their Bolero vehicle. The said Rajeev Bhatnagar shot at and hit the wheel of that moving Bolero car. Then, the accused were chased down by the police and the appellants Khursheed and Nadeem alongwith two others (declared juvenile), were arrested from the spot. The accused Amit fled. He was apprehended later. The entire cash together with the laptop computer device, were recovered from the appellants. Khursheed and Nadeem remained in jail during trial. After spending bout 14 years in jail (actual), the appellant Nadeem has been released on bail, by this Court. At present, Khursheed has remained confined for close to 14 years (actual).

7. In such circumstances, Sri Rajiv Lochan Shukla learned counsel appearing for the appellants would submit, against the minimum sentence awardable - seven years, learned court below has awarded the maximum punishment of life. In that, neither aggravating circumstances are shown to exist nor all mitigating circumstances have been considered, before awarding the maximum sentence. The appellants have been acquitted in two other cases lodged against them - one of a previous transaction - for a similar offence under Section 395 IPC wherein they are described to have looted Rs. 2,03,000/- and another case that pertained to the subsequent part of this transaction wherein they are described to have shot at the police party that was trying to apprehend them. In both cases, the appellants have been acquitted. It is undisputed, those orders have attained finality.

8. Second, no gunshot injury was caused or intended to be caused by the appellant in the course of the transaction for which they have been held guilty.

9. Third, only injuries proven by the prosecution were simple in nature as was established by Dr. Karunendra Dev Rahul (P.W.-7).

10. Fourth, both appellants were young in age - Khursheed being 24 years of age and Nadeem being 21 years of age, on the date of the occurrence. No prior conviction had been suffered by them for like or other offence and no fact was proven by the prosecution as may establish propensity (of either of the appellants), to commit criminal offence. Therefore, there is every hope with the society in general that those appellants have reformed upon adequate sentence undergone.

11. Referring to the order passed by the learned court below, it has been stressed, the only aggravating circumstance considered is of the occurrence caused in broad day light, on a highway. In absence of due consideration offered to the mitigating circumstances, learned court below has erred in law, in awarding the maximum sentence.

12. At present, the appellants have suffered fourteen years of incarceration (in all). They would be about more than 30 years of age. Also, the appellant Khursheed has four children born to him while the appellant Nadeem has three children born to him. In the absence of any doubt as to presence of those mitigating circumstances, the appellants may be released against sentence undergone. In support of his submissions, Sri Shukla has relied on four decisions of the Supreme Court in Hem Chand Vs. State of Haryana, (1994) 6 SCC 727, Narinder Singh and Others Vs. State of Punjab and Another (2014) 6 SCC 466, State of Punjab Vs. Prem Sagar and Others (2008) 7 SCC 550 and State of Madhya Pradesh Vs. Suresh (2019) 14 SCC 151.

13. On the other hand Sri Vikas Goswami, learned AGA-I would submit, there is no codified law with respect to sentencing and the quantum of sentence remains a matter of judicial discretion. At the same time, well recognized principle exists - to account for all aggravating and mitigating circumstances, while awarding appropriate sentence to the offenders, commensurate to the proven offence. By way of aggravating circumstances, (i) nature and gravity of the offence, (ii) degree of deliberation and pre-meditation in committing the office, (iii) impact of the offence on the victim and the society, (iv) deterrent effect of the sentence awarded and (v) previous proven criminal history of the accused, may be considered.

14. At the same time, he would fairly state - mitigating circumstances namely, (i) age of the accused at the time of the occurrence, (ii) any ailment afflicting the accused and (iii) family responsibilities of the accused, may also be considered to determine the adequacy of the sentence to be awarded to avoid undue harsh sentence being awarded.

15. In the context of the present facts he would submit, there is absolutely no doubt that the nature and gravity of the offence is established alongwith the element of degree of deliberation and pre-meditation, impact on the society inasmuch the occurrence was caused on a public highway, involving loot of public money in broad day light. Therefore, a deterrent punishment must be awarded keeping the societal objectives in mind. As to existence of mitigating circumstances, it could not be denied that the appellants have family responsibilities and they were young in age, when they committed the offence, and they have no criminal history of prior conviction. He would submit, keeping in mind the nature of the occurrence, the learned court below has awarded adequate sentence. It may not be interfered with.

16. Having heard learned counsel for the parties and having perused the record, we find Section 395 IPC reads as below:

"395. Punishment for dacoity.

Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

(emphasis supplied) Also, Section 397 IPC reads as below:

"397. Robbery or dacoity, with attempt to cause death or grievous hurt-

If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.

(emphasis supplied)

17. Thus, for offence under Section 395 IPC not involving use of deadly weapon or without causing grievous hurt etc., the minimum awardable sentence may be - any sentence, involving imprisonment below ten years. However, if that offence is committed involving either a deadly weapon or upon causing grievous hurt etc. (in that occurrence), it would enhance the minimum sentence awardable to that convict - to seven years, in accordance with the provisions of Section 397 IPC. Also, it may lead to the maximum sentence of (remaining) life imprisonment.

18. Here, involvement of deadly weapon in the occurrence is proven inasmuch as the appellants are described to have caused the occurrence brandishing firearms. Therefore, to begin with the minimum sentence awardable to the appellants Nadeem and Khursheed may not be below seven years. That is the base punishment awardable for reason of all ingredients of offence under Section 397 IPC being proven. That minimum sentence has to be awarded by the court for reasons of fulfilment of all ingredients of the offence under Section 397 IPC.

19. Second, Section 354(3) Cr.P.C. reads as below:

354. Language and contents of judgment.

(1) (2)

(3) When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence.

(emphasis supplied)

20. Also, though not directly applicable, Section 360(1) Cr.P.C. reads as below:

360. Order to release on probation of good conduct or after admonition.

(1) When any person not under twenty-one years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under twenty-one years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which he is convicted, regard being had to the age, character or antecedents of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, the Court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period (not exceeding three years) as the Court may direct and in the meantime to keep the peace and be of good behaviour: Provided that where any first offender is convicted by a Magistrate of the second class not specially empowered by the High Court, and the Magistrate is of opinion that the powers conferred by this section should be exercised, he shall record his opinion to that effect, and submit the proceedings to a Magistrate of the first class, forwarding the accused to, or taking bail for his appearance before such Magistrate, who shall dispose of the case in the manner provided by sub-section (2).

(emphasis supplied)

21. In Balwant Singh vs State of Punjab, (1976) 1 SCC 425, considering the provisions of Section 354(3) Cr.P.C., the Supreme Court underscored the requirement to give reasons for sentence that may be awarded by a criminal court. Besides the requirement to record special reasons in the case of sentence of death. In that regard, it was observed as below:

Under this provision the Court is required to state the reasons for the sentence awarded and in the case of sentence of death, special reasons are required to be stated.

(emphasis supplied)

22. Third, as to objective of punishment, in Machi Singh & Ors. vs State of Punjab, (1983) 3 SCC 470, observed as below:

The reasons why the community as a whole does not endorse the humanistic approach reflected in death sentence-in-no-case doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of reverence for life principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of this doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent for those who have no scruples in killing others if it suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by killing a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so in rarest of rare cases when its collective conscience is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime.

23. In that, it was further observed that (i) Manner of commission of murder, (ii) Motive for commission of murder, (iii) Anti-social or socially abhorrent nature of the crime,(iv) Magnitude of crime and, (v) Personality of victim of murder, were relevant factors to be considered by the courts.

24. In Anil alias Anthony Arikswamy Joseph vs State of Maharashtra, (2014) 4 SCC 69, the Supreme Court maintained that the probability that the accused would not commit criminal act of violence as may constitute the threat to the society, is a relevant circumstance. It may help the court to determine if there is no possibility of reformation and rehabilitation. In that, it was observed as below:

In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] this Court has categorically stated, the probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society, is a relevant circumstance, that must be given great weight in the determination of sentence. This was further expressed inSantosh Kumar Satishbhushan Bariyar[Santosh Kumar Satishbhushan Bariyarv.State of Maharashtra, (2009) 6 SCC 498 : (2009) 2 SCC (Cri) 1150]. Many a times, while determining the sentence, the courts take it for granted, looking into the facts of a particular case, that the accused would be a menace to the society and there is no possibility of reformation and rehabilitation, while it is the duty of the court to ascertain those factors, and the State is obliged to furnish materials for and against the possibility of reformation and rehabilitation of the accused. The facts, which the courts deal with, in a given case, cannot be the foundation for reaching such a conclusion, which, as already stated, calls for additional materials. We, therefore, direct that the criminal courts, while dealing with the offences like Section 302 IPC, after conviction, may, in appropriate cases, call for a report to determine, whether the accused could be reformed or rehabilitated, which depends upon the facts and circumstances of each case.

(emphasis supplied)

25. Fourth, as to aggravating and mitigating circumstance to be considered, to award appropriate punishment, in Bachan Singh vs State of Punjab, (1980) 2 SCC 684, considering the provisions of legislative policy that underlines the structure of our criminal law as contained in the Indian Penal Code and the Criminal Procedure Code, the Supreme Court first observed - it may not be possible to make an exhaustive enumeration of aggravating and mitigating circumstances to be considered while sentencing an offender. At the same time, it was maintained that a discretion to be exercised by the judge, judicial, after balancing of aggravating and mitigating circumstances of the crime. Considering the same in the context of capital sentence, following pertaining observations pertaining came to be made: In that regard, it was observed as below:

202. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v. Georgia [33 L Ed 2d 346 : 408 US 238 (1972)] , in general, and clauses 2 (a), (b), (c) and (d) of the Penal Code, 1860 (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr Chitale has suggested these aggravating circumstances:

Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:

(a) if the murder has been committed after previous planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or

(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.

203. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other.

26. In Anshad vs State of Karnataka, (1994) 4 SCC 381, the Supreme Court re-emphasized the need to account that aggravating and mitigating circumstances while awarding the appropriate punishment to convicts. In that regard, it was observed as below:

32. We have perused the reasons given by the High Court for awarding the sentence of death. Apart from referring to some of the aggravating circumstances like the betrayal of confidence of the deceased by A-1 and murder for committing robbery on a helpless widow, the High Court only referred to some of the judgments of this Court and then almost abruptly came to the conclusion that the sentence of death was called for in the instant case. We notice with regret that the High Court did not take into account any of the mitigating circumstances at all. Courts are expected to exhibit sensitiveness in the matter of award of sentence particularly, the sentence of death because life once lost cannot be brought back. This Court has in cases more than one emphasised that for determining the proper sentence in a case like this while the court should take into account the aggravating circumstances it should not overlook or ignore the mitigating circumstances. The manner in which the crime was committed, the weapons used and the brutality or the lack of it are some of the considerations which must be present to the mind of the court. Of course, the High Court has the power and jurisdiction to enhance the sentence of life imprisonment to death but that power has to be sparingly exercised, in rarest of the rare cases for special reasons to be recorded. The courts must be alive to the legislative changes introduced in 1973 through Section 354(3) CrPC. Death sentence, being an exception to the general rule, should be awarded in the rarest of the rare cases for special reasons to be recorded after balancing the aggravating and the mitigating circumstances, in the facts and circumstances of a given case. The number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of rarest of the rare cases. The courts must keep in view the nature of the crime, the brutality with which it was executed, the antecedents of the criminal, the weapons used etc. It is neither possible nor desirable to catalogue all such factors and they depend upon case to case.

(emphasis supplied)

27. In Ramnaresh & Ors. vs Sate of Chhattisgarh, (2012) 4 SCC 257, referring to Bachan Singh vs State of Punjab, (1980) 2 SCC 684 and Machi Singh & Ors. vs State of Punjab, (1983) 3 SCC 470, the Supreme Court re-emphasized the need to consider the cumulative effect of both aggravating and mitigating circumstances. It was observed that the balance between the two must be entertained. Also, the Supreme Court may note of certain aggravating and mitigating circumstances. Relevant to our discussion, the Supreme Court noted as below:

76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated inBachan Singh[(1980) 2 SCC 684 : 1980 SCC (Cri) 580] and thereafter, inMachhi Singh[(1983) 3 SCC 470 : 1983 SCC (Cri) 681] . The aforesaid judgments, primarily dissect these principles into two different compartmentsone being the aggravating circumstances while the other being the mitigating circumstances. The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.

Aggravating Circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.

(2) The offence was committed while the offender was engaged in the commission of another serious offence.

(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.

(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.

(7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC.

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold-blooded murder without provocation.

(13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

(emphasis supplied)

28. Fourth, it is equally important that Courts may keep in mind the fundamental principle of proportionality of the punishment to the offence. In Ruli Ram Vs. State of Haryana, (2002) 7 SCC 691, the Supreme Court has observed as under:

23...The punishment has to be always proportionate to the crime. Punishment serves a purpose inasmuch as it acts as a deterrent for those who have the propensity to take the law into their own hands. The principle of proportion between crime and punishment is a principle of just deserts that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just deserts, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

(emphasis supplied)

29. In Suresh (2019) 14 SCC 151, the Supreme Court again considered the sufficiency of sentence to be awarded and it did not approve over lenient view being taken. In that regard it made the following useful discussion:

11.InState of M.P.v.Ghanshyam Singh[State of M.P.v.Ghanshyam Singh, (2003) 8 SCC 13 : 2003 SCC (Cri) 1935] , relating to the offence punishable under Section 304 Part I IPC, this Court found sentencing for a period of 2 years to be too inadequate and even on a liberal approach, found the custodial sentence of 6 years serving the ends of justice. This Court underscored the principle of proportionality in prescribing liability according to the culpability; and while also indicating the societal angle of sentencing, cautioned that undue sympathy leading to inadequate sentencing would do more harm to the justice system and undermine public confidence in the efficacy of law. This Court observed, inter alia, as under:

12. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of lawand society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court inSevaka Perumalv.State of T.N.[Sevaka Perumalv.State of T.N., (1991) 3 SCC 471 : 1991 SCC (Cri) 724]

13. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence, sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.

14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilised societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.

15. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence,the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate mannerby the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated inMcGauthav.California[McGauthav.California, 1971 SCC OnLine US SC 89 : 28 L Ed 2d 711 : 402 US 183 (1971)] that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case is the only way in which such judgment may be equitably distinguished.

30. From the above, in the first place it is seen, there is no structured or well codified law of sentencing. Yet, first there exist different objectives of sentencing such as (i) Retributive, (ii) Deterrent, (iii) Punitive, (iv) Correctional or Reformative. Second, as to choice of objective of sentencing to be pursued in the proven facts of any case, is a matter of judicial discretion to be exercised by the Court concerned. Third, though no hard and fast rule exists, at the same time, rule exists in favour of proportionality of sentence (to be awarded qua the offence committed). It must be borne in mind by Courts, even while choosing the objective of punishment to be awarded. Non consideration of that factor may lead to undue harsh results in certain cases. Fourth, where lesser than maximum punishment is permissible and desirable to be awarded, the Courts may consider both- the aggravating and mitigating circumstances, while awarding befitting/proper/appropriate or enough sentence as may pass the test of proportionality.

31. Examined in that light, we first note, broadly there may exist five aggravating circumstances such as (i). nature and gravity of the offence; (ii). degree of deliberation and pre-meditation to commit the offence; (iii). impact of the offence committed on the victim and the society; (iv). deterrence objective to be created/pursued in the interest of the society; (v) previous proven criminal history of the accused. Also, there may exist other aggravating circumstances of like nature or as may be noticed by Courts in proven facts of individual cases. To that extent, the specific enumeration of the aggravating factors (noted by us), is only illustrative but in no way exhaustive.

32. Similarly, some of the well recognised mitigating factors are (i) very young or old age of the convict; (ii). any ailment suffered by the convict; (iii). family responsibilities of the convict; (iv) prior conviction of the convict; (v) probabilities of reform of the convict and (vi) probability of any possible risk to the society, etc.

33. In the present facts, first it appeared to us in the totality of all facts proven and established at the trial, we felt inclined to form a subjective opinion that 14 years sentence, would be enough. However, considering the further fact that this issue is arising in many criminal appeals, the making of such subjective decisions has lead us to explore if a scale of objectivity may be devised in our decision making, to test the adequacy of that sentence to be awarded.

34. For offences where discretion has been vested with Courts to award appropriate sentence, especially where maximum sentence may extend to life as against minimum sentence prescribed by law being seven years or ten years, such consideration is necessary.

35. Another practical difficulty arises where trial courts award maximum sentence almost by way of a policy enforcement. If reasons are given by the trial courts, both to indicate the objective of the punishment pursued by it and also to the aggravating and mitigating circumstance noted by it and such sentence is awarded proportionate to the offence alleged - in the context of the object of punishment being pursued, less than life imprisonment may be awarded by way of punishment. That itself may allow the appeal court to consider in more objective manner the point when such convicts may be considered to be enlarged on bail if their appeals remain pending beyond half that sentence undergone.

36. Award of maximum/life sentence to all convicts without assigning any reasons or without offering any consideration to either the objective of the punishment to be awarded or to the aggravating and mitigating circumstance of each case, may result in implementation of law, that may appear too harsh as may not serve any useful purpose to the society. It practically amounts to a punishment that may be described - be jailed till dead. It may never be the purpose of handing out punishments to all convicts found guilty of any offence, irrespective of the individual facts of each case. Enforcement or acceptance of such sentencing, by way of policy, by the learned trial courts may itself indicate violation of the rule of proportionality.

37. More importantly, it may indicate lack of judicial reasoning and lack of application of judicial mind to critical aspects of criminal jurisprudence. If the learned trial courts were to remain indifferent or if they were to be given wide margin in that regard to allow such errors to creep in their orders it may leave the appeal court with avoidable work. In a State as populous as Uttar Pradesh, involving large pendency of appeals at the High Court, many involving life sentence awarded to the convicts, it leads to additional pressure on the appeal court, in bail matters. That leads to further constraint of time with the appeal court, to consider more appeals for hearing. All in all, a cascading effect arises from such harsh sentencing as may travel upward.

38. Therefore, in our opinion the time is right that the learned trial courts may remain reminded of their duties and obligation to not only pass correct orders of conviction based on evidence but they may also remain fine - tuned on the aspect of sentencing. Primarily, in cases involving conviction under Sections 307, 304, 304-B and 376 IPC, we have come across instances that make us implore the learned trial courts to not fall in error, by awarding unduly harsh sentences, than may be awarded upon consideration to all relevant factors.

39. Here, as to aggravating circumstances, we are unable to accept the submissions advance by the State that in the proven facts, the nature and gravity of offence was an aggravating circumstance proven by the prosecution. Merely because the occurrence was caused involving use of firearm is not relevant here, to treat the same as an aggravating factor. Here, because of that fact occurrence, the gravity of offence stood (statutorily recognised), as aggravated. The fact that deadly weapon was involved in the commission of the offence of dacoity escalated the offence from Section 395 to Section 397 IPC. Against minimum punishment upto ten years, involvement of that deadly weapon/s, enhanced the minimum punishment to seven years. Inasmuch as no grievous hurt was caused and the firearm was not proven to have been used in its normal way i.e. to fire a shot at any person or for any purpose in that occurrence, and to the extent the prosecution only proved that the butt of the firearm was used to cause simple injuries to the injured person, the aggravating circumstance as claimed is found lacking.

40. As to degree of deliberation and pre-meditation in commission of the offence, clearly that was found proven by the prosecution. The occurrence was caused when the victims were transporting public money collected at the Toll Plaza in a car, to be deposited at a bank. Unless pre-planned and premeditated, such an occurrence may not have been caused at the spur of the moment. The appellants had exact knowledge about transportation of the cash, at designated time, from and to designated place. They acted at that time; chased down the vehicle of the victims; blocked it on the highway and thereafter committed the dacoity. To that extent, the aggravating factor of degree of deliberation and pre-meditation is found proven.

41. Third, as to impact of the offence on the victim and society, we note that the occurrence was caused on a public highway involving public money, in a daring manner, in full day light. Such occurrences spread terror/fear and the accompanying it sense of insecurity that may otherwise arise amongst the members of the society. Therefore, a second aggravating factor is also found present.

42. Fourth, as to the personal deterrent effect of the punishment, for the reasons noted above, we find, the third aggravating factor also present to the extent, minimum punishment may not deter the appellants from engaging/involving in such activities again. Yet, we may keep in mind that in P. Rathinam Vs. Union of India (1994) 3 SCC 394, the Supreme Court expressed its doubt if award of punishment has a direct relation with reduction of crime. In that, it observed as below:

62.The aforesaid is not enough for our purpose. We have also to know as to whether infliction of punishment can be said to have a direct relation with the reduction of criminal propensity. It would be enough in this context to state that it has been seriously doubted whether imposition of even death sentence has been able to reduce the number of murders. Bhagwati, J. as he then was, in his dissenting judgment in the case ofBachan Singhv.State of Punjab[(1982) 3 SCC 24 : 1982 SCC (Cri) 535 : AIR 1982 SC 1325] has brought home well this aspect of the matter.

63.While on the question of sentencing it would be rewarding to note that sentencing has been regarded as a subtle art of healing, and the legal and political people uninstructed in the humanist strategy of reformation, fail even on first principles. Justice Iyer in his aforesaid book has further stated at p. 47 that it puzzles a Judge or a Home Secretary to be told in Shavian paradox:

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.

64.What was said by Victor Hugo in hisLes Miserablesis instructive:

We shall look upon crime as a disease. Evil will be treated in charity instead of anger. The change will be simple and sublime. The cross shall replace the scaffold, reason is on our side, feeling is on our side and experiment is on our side.

(emphasis supplied)

43. Fifth, in absence of any previous conviction and in face of acquittal for other offence alleged under Section 395 IPC and the offence alleged under Section 307 IPC, the fifth aggravating factor alleged is found lacking. Also, no other aggravating factor has been alleged to exist, in the facts of this case. Thus, out of five possible aggravating factors cited, we find three present in this case.

44. At the same time, by way of mitigating factor, it is found that both the appellants were aged less than 25 years of age at the time of occurrence. Thus, that mitigating factor is found present.

45. As to ailment, none has been cited. Therefore, that mitigating circumstance is lacking.

46. As to the third mitigating circumstance, we find, existence of family responsibilities of these appellants is not denied. Being young in age with young families as they have, the accused have remained confined for 14 years and may have missed the childhood and adolescence of their children, already. That itself is a punishment to a normal human being.

47. Excessive punishment to an accused including the present appellants Khursheed and Nadeem, may allow for ill effects of the punishment to visit them and their families. Upon sufficient sentence undergone and in absence of any disabling fact shown to exist, in normal circumstances, the society/community should have positive hope of reformation and rehabilitation undergone by an accused. An offender whether an under trial or a convict, remains part of the civil society, they may have offended. They have a right to life as others. What distinguishes them from other citizens is the act i.e. the offence attributed to or committed by them. For that, they have to be convicted and sentenced adequately. At the same time, they are not to be condemned for life, irrespective of any other consideration.

48. Then, in Ruli Ram (supra) and Chandrakant Patil Vs. State through CBI, (1998) 3 SCC 38, another principle was stated by the Supreme Court that the maximum punishment permissible in law should be reserved for gravest instances. We are also cognizant, in Commissioner of Police & Ors. Vs. Sandeep Kumar, (2011) 4 SCC 644, it has been recognized with the Supreme Court that primarily, sentence awarded should be reformative as may not condemn the offender as a criminal, for all his life. Thus, keeping in mind the principles discussed in the decisions of the Supreme Court noted above, on a rough and ready estimate, we find three out of five aggravating circumstances are made out against the appellants and two mitigating circumstances made out in their favour.

49. In these facts, we find, our first opinion to award 14 years imprisonment to the appellant Nadeem and Khursheed measures well against the scale of punishment we have considered above. We find no reason to take any other view. Neither it appears to be excessive nor it appears to be too less/lenient. Rather, it commends to us as proportionate.

50. Accordingly, the impugned judgement and order of the learned court below is modified to the extent that the conviction of the appellants for the offence under Sections 395/120B, 397/120B, 412 IPC and Section 25 Arms Act is confirmed. However, the sentence awarded is reduced to 14 years (with remission) in place of life sentence awarded by the learned court below. That may have already been undergone by the appellants.

51. The fine imposed by the learned court below does not warrant interference. It is maintained. Fine shall be deposited by the appellants within three months from their release. In default of payment of fine, they shall further undergo additional imprisonment as provided under impugned judgment and order.

52. Accordingly, the appeals are partly allowed. Appellant-Nadeem is on bail. He need not surrender, in case he is not wanted in any other case. His bail bonds and sureties are discharged. The appellant-Khursheed is in jail. He be released forthwith. Both the appellants are directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today.

53. A copy of this judgment be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record. Pending applications, if any, stand disposed of.

Order Date :- 11.8.2025 Faraz/Prakhar/Abhilash (Tej Pratap Tiwari, J.) (S. D. Singh, J.)

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