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2019 DIGILAW 919 (ALL)

Ramved v. State of U. P.

2019-04-11

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Shri Krishna Nand Yadav, learned Counsel for the appellant, learned A.G.A. and perused the record. 2. Learned Counsel for the appellant has opted to argue the appeal instead of bail application. Learned A.G.A. has agreed to it. Therefore, the arguments on the merit of the appeal was heard. 3. During the course of the arguments, learned Counsel for the appellant confined his arguments to quantum of sentence and requested for reducing the sentence substantially. 4. Learned A.G.A. has no objection if the sentence is modified as aforesaid and reduced a little. 5. The present appeal has been preferred against the judgment and order dated 27.8.2018 and the order dated 28.8.2018 passed by Additional Sessions Judge (Fast Track Court No. 1) Maharajganj in Sessions Trial No. 50 of 2012 (State v. Ramved @ Badakoo) registered as Case Crime No. 716 of 2011 under sections 498-A, 304-B, 201, I.P.C. and 3/4 Dowry Prohibition Act) P.S. Paniyara, District Maharajganj, whereby the appellant has been convicted and sentenced for a period of two years' R.I. with fine of Rs. 2000/- for the offence under section 498-A I.P.C., ten years' R.I. for the offence under section 304-B I.P.C., three years' R.I. with fine of Rs. 3,000/- for the offence under section 201 I.P.C. and two years, R.I. with fine of Rs. 10,000/- for the offence under section 4 of the Dowry Prohibition Act. It has also been directed by the learned Trial Court that all the sentences will run concurrently. 6. In Mohd. Giasuddin v. State of A.P. AIR 1977 SC 1926 , explaining rehabilitory & 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 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. 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." 7. In Sham Sunder v. Puran 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." 8. In State of M.P. v. 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 v. State of U.P. 2011 (75) ACC 342 (SC), Guru Basavraj v. State of Karnataka, 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. 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." 9. Earlier, "Proper Sentence" was explained in Deo Narain Mandal v. State of U.P., 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. 10. 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) 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, 2014 (86) ACC 325 (SC) State of Punjab v. Bawa Singh 2015 (88) ACC 946 (SC), and Raj Bala v. State of Hanyana 2015 (91) ACC 993 (SC). 11. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh v. Surajbhan Singh, 2014 (86) ACC 325 (SC) State of Punjab v. Bawa Singh 2015 (88) ACC 946 (SC), and Raj Bala v. State of Hanyana 2015 (91) ACC 993 (SC). 11. In Kokaiyabai Yadav v. 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 nurtured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. 12. In Ravada Sasikala v. State of A.P. 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 Karnataka 2012 (79) ACC 314 (SC), Burner Singh v. Surajbhan Singh 2014 (86) ACC 325 (SC), State of Punjab v. Bawa Singh 2015 (88) ACC 946 (SC), and Raj Bala v. State of Haryana 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. 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. 13. 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. 13. 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. 14. From the perusal of section 304-B I.P.C. it appears that minimum sentence of seven years has been prescribed for the offence. The accused appellant has already passed more than seven years and nine months. 15. Learned Counsel for the appellant has submitted that the accused appellant is in jail since 19.6.2011 and as such he has already passed more than seven years and nine months in jail. At the time of incident he was not present in the house where the incident occurred but he was in Surat, Gujarat from where he came on information. It has also been pointed out by Counsel for the appellant that the First Information Report has been lodged by brother of the deceased. Therefore, it has been requested by Counsel for the appellant that the appellant has already undergone imprisonment for about seven years. On being asked, learned Counsel for the appellant has further submitted that the period in which the appellant had already been in jail, should be considered sufficient. 16. In view of the facts and circumstances and considering that every convicted accused deserves advantage of corrective mechanism and reformative objective of criminal justice, the Court is of the view that the sentence can be modified and reduced for a period of two years from the awarded sentence. The quantum of fine may also be reduced by 50%. If the accused appellant commits default in payment of remaining fine, he should undergo imprisonment for a period of two months. 17. The accused has already been sentenced for the offence under sections 498-A and 201 I.P.C. and section 4 D.P. Act. The quantum of fine may also be reduced by 50%. If the accused appellant commits default in payment of remaining fine, he should undergo imprisonment for a period of two months. 17. The accused has already been sentenced for the offence under sections 498-A and 201 I.P.C. and section 4 D.P. Act. Since all the sentences have been directed to run concurrently, therefore, they are not required to be disturbed. 18. The sentence is modified reducing the period of two years from the period of awarded sentence and reducing the defect of sentence in view of fine to two months. 19. Accordingly this appeal is finally disposed of. 20. Office is directed to transmit the Lower Court record to the Court concerned alongwith copy of this order for necessary compliance and needful.