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2017 DIGILAW 1645 (ALL)

RAJESH PASI v. STATE OF U. P.

2017-07-14

SHEO KUMAR SINGH I

body2017
JUDGMENT Hon’ble Sheo Kumar Singh-I, J.—Heard Sri Hemant Kumar Mishra learned counsel for appellant and Mrs. Zeba Islam Siddiqui Additional Government Advocate for respondent. 2. Challenge in the present appeal is judgment and order dated 3.10.2000 passed by Additional Session Judge, Court No. 2, Unnao in Session Trial No. 461 of 1998 State v. Rajesh Pasi under Section 3/25 Arms Act whereby the appellant Rajesh Pasi son of Sri Kallu Prasad resident of village Banwari, police station Asiwan, District Unnao was sentenced to undergo one year rigorous imprisonment. 3. The brief facts giving rise to the present appeal are that on 30.7.1998 when S.S.I. Sri Nand Kishore Pandey was in search operation of the wanted criminals in case crime No. 881 of 1991 with other police personnels and reached near village Banauni, he was communicated about some persons having criminal antecedents and when the informant communicated towards the accused-appellant, the police personnel stopped him but the accused-appellant fled away and by use of necessary force, he was caught on the spot and after search, a country made pistol and five live cartridges were recovered from possession of the accused. It is also theory of prosecution that during the course of catching hold the accused-appellant, he fired on the police personnel but there was no injury to any of the police personnel. First information report was lodged in the police station and after investigation, a charge-sheet under Section 307 IPC and 3/25 Arms Act was filed before competent Court where the case was committed to the Court of session for trial. After recording the evidence led by prosecution and argument the accused was acquitted under Section 307 of IPC. While disposing the case under Section 307 IPC, the learned Court below found the accused guilty under Section 3/25 Arms Act and sentenced him to undergo an imprisonment of one year. 4. Aggrieved by the order, accused-appellant has filed this criminal appeal. Learned counsel for appellant has taken a plea that no case is made out against the appellant and prosecution witnesses failed to prove the case beyond all reasonable doubt against the appellant. Learned counsel for the prosecution had submitted that trial Court had placed reliance on prosecution witnesses P.W.1 SO Sudhakar Mishra and P.W.2 N.K. Pandey. Learned counsel for appellant has taken a plea that no case is made out against the appellant and prosecution witnesses failed to prove the case beyond all reasonable doubt against the appellant. Learned counsel for the prosecution had submitted that trial Court had placed reliance on prosecution witnesses P.W.1 SO Sudhakar Mishra and P.W.2 N.K. Pandey. After the brief argument, the learned counsel for the appellant had submitted that he did not want to press the appeal on merit, he only wants to argue on the point of sentence. He had further submitted that learned Court below had relied on the police witnesses and while acquitting the accused under Section 307 IPC, the accused was found guilty under Section 3/25 Arms Act on the evidence which was not corroborated by any independent witness. 5. Learned counsel for respondent/State has submitted that it is not always necessary to corroborate the evidence led by the police witnesses. There is no law that the evidence of police witnesses in all cases must be corroborated by the independent witnesses. Taking reliance on Section 134 of the Evidence Act, the learned State counsel has argued that it is not necessary to produce the minimum number of witnesses to prove the criminal case. Without going on the merit of the case, the learned counsel for appellant has sum up his arguments only to reduce the sentence on the basis of the offence as stated by the prosecution. The accused-appellant was arrested on 30.7.1998 and he was released on 30.10.1998. Learned counsel for appellant has submitted that the sentence as awarded by the trial Court below is in higher side and not in proportionate to the offence as stated by the prosecution. Learned counsel has cited certain observations of the Court for imposition of adequate sentence. 6. In State of Karnataka v. Krishnappa, AIR 2000 SC 1470 , a three-Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. 7. 7. In Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532 , the trial Court had convicted the appellant therein under Section 308 IPC alongwith another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant was affirmed. By the time the matter came to be considered by Court, the Court observed as under : “In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft, modulation, sentencing process be stern where it should be, and tampered with mercy where it warrants to be. 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. It is 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. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.” 8. In Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77 , it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed 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 his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim. 9. In Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 , the Court, discussing about the sentencing policy, had to say this : “There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the Court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored.” 10. In Rattiram v. State of M.P., (2012) 4 SC 516, though in a different context, it has stated that : “the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries.....it is the duty of the Court to see that the victim’s right is protected.” 11. It is seemly to state here that though the question of sentence is a matter of discretion, vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life. 12. In Ramji Dayawala & Sons (P.) Ltd. v. Invest Import, AIR 1981 SC 2085 : “when it is said that a matter is within the discretion of the Court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. ‘Discretion’, said Lord Mansfield in R. v. Wilkes, ((1770) 98 ER 327),’when applied to a Court of justice, means sound discretion guided by law. ‘Discretion’, said Lord Mansfield in R. v. Wilkes, ((1770) 98 ER 327),’when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular’(see Craies on Statute Law, 6th Edn., p.273).” 13. In Ramji Dayawala & Sons(P.) Ltd. v. Invest Import, AIR 1981 SC 2085 : “when it is said that a matter is within the discretion of the Court, it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice.’Discretion’, said Lord Mansfield in R. v. Wilkes, ((1770) 98 ER 327), ‘when applied to a Court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular’(see Craies on Statute Law, 6th Edn.,p.273).” 14. Considering the facts and circumstances of the case, I am of the view that period undergone by the accused in jail would be sufficient sentence under Section 3/25 Arms Act. 15. Accordingly the appeal is partly allowed. The judgment passed by the learned Court below is confirmed but the sentence is reduced to the period undergone under Section 3/25 of Arms Act in Session Trial No. 461 of 1998. The accused-appellant need not to surrender before the Court. The personal bond and surety bond of the present accused is cancelled. Lower Court record be sent to the Court concerned for records.