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2019 DIGILAW 1021 (ALL)

Sonu Gupta v. State of U. P.

2019-04-19

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : PRADEEP KUMAR SRIVASTAVA, J. 1. Heard the leaned Counsel for the appellant, learned A.G.A. for the State and perused the record. 2. This appeal has been preferred against the judgment and order of conviction dated 21.3.2018, passed by Additional Sessions Judge, Court No. 1, Shahjahanpur, in Sessions Trial No. 413 of 2017 (State of U.P. v. Sonu Gupta @ Surendra), arising out of Case Crime No. 44 of 2017, under sections 411 and 413 I.P.C., Police Station G.R.P., District Shahjahanpur, whereby the accused-appellant was convicted and sentenced for a period of six months imprisonment along with fine of Rs. 500/- under section 411 I.P.C. and three years and six months imprisonment along with file of Rs. 5000/- under section 413 I.P.C. 3. Learned A.G.A. has mentioned that the lower Court record has not been yet been received. 4. Learned Counsel for the accused-appellant has submitted that there is no need of lower Court record as he is not inclined to express on conviction. 5. During the course of argument, learned Counsel for the accused-appellant has confined his argument to the quantum of sentence and has submitted that the accused-appellant has been in jail since 18.3.2017. Learned Counsel for the accused-appellant has further submitted that the accused-appellant has been convicted maximum for the period of three years and six months and from the last more than two velars, he has been in jail, which is sufficient in the facts and circumstances of the case, therefore, he has requested that the lenient view may be adopted and the sentence may be modified. 6. Learned A.G.A. has submitted that the offence against the accused-appellant was fully established on the basis of evidence produced before the Court below but if the sentence awarded to him is reduced, he would have no objection. 7. In Mohd. Giasuddin v. State of A.P. MANU/SC/0108/1977 : 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 subculture that leads to ante-social behavior has to be countered not by undue cruelty but by reculturalization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The criminal can ordinarily be redeemed and the State has to rehabilitate rather than avenge. The subculture that leads to ante-social behavior has to be countered not by undue cruelty but by reculturalization. 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 views 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." 8. In Sham Sunder v. Puran MANU/SC/0003/1991 : 1990 (27) ACC 680 (SC), 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." 9. In State of M.P. v. Najab Khan MANU/SC/0603/2013 : (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 v. State of LLP 2011 (75) ACC 342 (SC)., Guru Basavraj v. State of Karnatak 2012 (79) ACC 314 (SC), the Court observed as follows:-- "In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The Supreme Court restored the sentence awarded by the Trial Court. Referring the judgments in Jameel v. State of LLP 2011 (75) ACC 342 (SC)., Guru Basavraj v. State of Karnatak 2012 (79) ACC 314 (SC), 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." 10. Earlier, "Proper Sentence" was explained in Deo Narain Mandal v. State of U.P. MANU/SC/0690/2004 : 2004 (50) ACC 609 (SC) 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. 11. In subsequent decisions, the supreme Court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain v. State, (NCT of Delhi) MANU/SC/0543/2013 : 2013 (82) ACC 478 (SC), 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. In Shyam Narain v. State, (NCT of Delhi) MANU/SC/0543/2013 : 2013 (82) ACC 478 (SC), 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 v. Surajbhan Singh MANU/SC/0465/2014 : 2014 (86) ACC 325 (SC), State of Punjab v. Bawa Singh MANU/SC/0039/2015 : 2015 (88) ACC 946 (SC), and Raj Bala v. State of Haryana MANU/SC/0877/2015 : 2015 (91) ACC 993 (SC). 12. In Kokaiyabai Yadav v. State of Chhattisgarh MANU/SC/0208/2017 : (2017) 13 SCC 449 , it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts, have grown and matured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. 13. In Ravada Sasikala v. State of A.P. MANU/SC/0207/2017 : 2017 (99) ACC 947 (SC) the Supreme Court referred the judgments in Jameel v. State of U.P. 2011 (75) ACC 342 (SC), Guru Basavraj v. State of Karnatak 2012 (79) ACC 314 (SC), Sumer Singh v. Surajbhan Singh MANU/SC/0465/2014 : 2014 (86) ACC 325 (SC), State of Punjab v. Bawa Singh MANU/SC/0039/2015 : 2015 (88) ACC 946 (SC), and Raj Bala v. State of Haryana MANU/SC/0877/2015 : 2015 (91) ACC 993 (SC), 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. 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. 14. 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. 15. In view of the above, it is clear that in our country the reformative and corrective approach has been adopted in criminal justice administration. Counter affidavit filed by learned A.G.A. has expressly mentioned that there is no criminal history of the accused-appellant. There is nothing on record to show that the accused-appellant is incapable of being reformatted. The accused-appellant is in jail for substantial period w.e.f. 18.3.2017 and as such he has been in jail since more than two years. It has further been submitted that the accused-appellant is of young age. There is nothing on record to show that the accused-appellant is incapable of being reformatted. The accused-appellant is in jail for substantial period w.e.f. 18.3.2017 and as such he has been in jail since more than two years. It has further been submitted that the accused-appellant is of young age. Every convict is entitled for the advantage of reformative and corrective jurisprudence and in view of this Court, if the sentence is reduced by one year looking to the long incarceration of the accused-appellant in jail, no harm will be caused and the purpose of justice will be served. 16. In view of the above, the sentence under section 413 I.P.C. which is for three years and six months is reduced by one year and the default sentence of imprisonment in lieu of fine is reduced from one month to fifteen days. Since the sentence under section 411 I.P.C. has been directed to run concurrently, therefore, there is no need to disturb the sentence under that section. 17. The sentence under section 413 I.P.C. is reduced by one year from the awarded sentence of three years and six months and the default sentence in lieu of fine is modified to the extent of 15 days in place of one month. 18. Accordingly, the judgment of conviction is upheld with the above modification in the quantum of sentence. 19. The appeal is accordingly disposed of finally. 20. Office is directed to send the copy of this judgment to the Court concerned for information and necessary action.