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2019 DIGILAW 941 (ALL)

Kailash Rajak v. State of U. P.

2019-04-12

PRADEEP KUMAR SRIVASTAVA

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JUDGMENT : Pradeep Kumar Srivastava, J. 1. Heard Shri Pratap Kanchan, holding brief of Shri Shiv Kumar Singh Rajawat, 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 on merit instead of arguing the bail application. Learned A.G.A. has agreed to hear the appeal on merit. 3. The present appeal has been preferred against the judgment and order dated 6.8.2018 passed by the Additional Sessions Judge V, Jhansi in Sessions Trial No. 89 of 2014 (State v. Kailash Rajak), arising out of Case Crime No. 77/2013, under section 404 (II) PS. Punchh, District Jhansi, whereby the appellant has been convicted and sentenced for the offences under section 304(II) I.P.C. for ten years' R.I. with fine of Rs.10,000/-. 4. At the very outset learned Counsel for the appellant has said that he will confine his argument to the quantum of sentence and will not argue on the point of conviction. He has submitted that the accused appellant has been convicted under section 304 (II) I.P.C. for a period of ten years' R.I. which is maximum sentence provided under section 304(II) I.P.C. It has further been pointed out that the appellant is in jail for the last more than five years. Therefore, he has prayed that in view of the conviction being under section 304(II) I.P.C. this period is sufficient to meet the ends of justice. 5. Learned A.G.A. has no objection, if the sentence is modified and reduced a little. 6. In Mohd. Giasuddin v. State of A.P. AIR 1977 SC 1926 , explaining rehabilitory and 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 anti-social behaviour has to be countered not by undue cruelty but by re-culturization. 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 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. 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 Haryana 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 Haryana 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 442 (SC), Guru Basavraj v. State of Karnataka 2012 (79) ACC 314 (SC), 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 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. It has also been pointed out by the Counsel for the appellant that the deceased and the appellant both are cousin. On the perusal of the judgement and order of the learned Trial Court, it appears that there is specific finding that there was no enmity in between the deceased and the accused appellant and there was no intention to kill. The incident occurred when the deceased prevented the accused from quarrelling and doing marpit to his wife and children. The accused got annoyed and he hit the deceased by a bamboo. 15. In view of the aforesaid discussions, the Court is of the view that the criminal jurisprudence in the country incorporates the corrective and reformative principles and there is nothing to show on record that there is no possibility of accused appellant being reformed. Moreover the whole incident has taken place without any intention and upon heat of quarrel. In such situation, if the sentence is reduced by four years the ends of justice will not suffer and the object of punishment will certainly be fulfilled more particularly because the appellant is in jail for the last more than five years. The appellant has been fined by Rs.10,000/- and in default he has also been directed to undergo further three months' additional imprisonment in which no interference appears to be required. 16. Hence the conviction is upheld. The sentence of imprisonment under section 304(II) I.P.C. is reduced from ten years to six years imprisonment. 17. With the above modification this appeal is finally disposed of. 16. Hence the conviction is upheld. The sentence of imprisonment under section 304(II) I.P.C. is reduced from ten years to six years imprisonment. 17. With the above modification this appeal is finally disposed of. Office is directed to transit the lower Court record alongwith a copy of this judgment to the learned lower Court for information and necessary compliance.