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2020 DIGILAW 1449 (ALL)

Furkan v. State of U. P.

2020-12-08

AJIT SINGH

body2020
JUDGMENT : 1. This criminal appeal has been filed against the judgment and order dated 20.2.2016 passed by the Additional Sessions Judge, Nagina, district Bijnor in S.T. No. 422 of 2015 (State vs. Furkan Ahmad), arising out of Case Crime no. 356 of 2013, under Sections 326A I.P.C., P.S. Kotwali Dehat, district Bijnor, convicting and sentencing the appellant under Section 326A I.P.C. for 10 years rigorous imprisonment with fine of Rs.15,000/- and in case of default of payment of fine, he shall further undergo six months imprisonment. 2. The brief facts of this case are that the father of the complainant is a Rickshaw puller in Delhi. On 21.12.2013, the present accused who is the father of the complainant came back to his house at Islampur Bishnoiwala from Delhi and started quarreling with his wife Meena, aged about 50 years and thereafter went out from the house. On 22.12.2013 at about 5:00 O'clock in the morning when mother of the complainant had gone to the toilet to attend the call of nature, father of the complainant, who was already hiding there, poured acid on her mother, as a result of which she sustained serious burn injuries on her head, face and other parts of the body. Upon hearing the hue and cry, the complainant reached at the spot, then the accused-appellant fled away from the spot. The complainant had rushed her mother to the hospital in Ambulance 108. 3. Learned counsel for the appellant submits that offence under Section 326A I.P.C. is not made out against the accused-appellant as the victim has not received any fatal injuries on her person. Neither there was any permanent/ partial damage nor there was any deformity on the person of the victim. The victim was having superficial burn injuries on her face and back. The Doctor has opined that the injuries were caused by some chemical and the same were not grievous or dangerous to life and the conviction and sentence imposed under Section 326A I.P.C. is not in consonance with the medical evidence, at the most offences can go upto the limit of under Section 326B I.P.C. 4. Learned counsel further submits that the accused-appellant is the only bread earning member in the family. Learned counsel further submits that the accused-appellant is the only bread earning member in the family. He further submits that the appellant is in jail since 17.11.2014 and the impugned order of conviction and sentence was passed on 20.02.2016, thus, by now, the accused appellant has been languishing in jail for more than six years. He lastly submits that on the question of legality of conviction he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed that lenient view be taken considering the condition of family of the present accused. 5. Learned counsel appearing on behalf of injured Meena submits that the accused is the husband of the injured, and he is in jail since 17.11.2014 and the accused is now regretting for the acid injury caused by him to his wife and the victim is staying alone at her home, if the accused is released, then the victim will not feel any problem to live with him. 6. I have perused the entire material available on record and the evidence as well as judgment of the trial court. The learned counsel for the accused-appellant does not want to press the appeal on its merit and requests to take a lenient view of the matter. 7. In Mohd. Giasuddin Vs. State of AP, 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 sub-culture 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. 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. 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 vs. Puran, (1990) 4 SCC 731 , 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 MP vs 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 vs State of UP (2010) 12 SCC 532 , Guru Basavraj vs State of Karnataka, (2012) 8 SCC 734 , 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 Vs. 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 Vs. State of UP (2004) 7 SCC 257 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 vs State (NCT of Delhi), (2013) 7 SCC 77 , 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 vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441 , and Raj Bala vs State of Haryana, (2016) 1 SCC 463 . 12. In Kokaiyabai Yadav vs 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 natured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. 13. 12. In Kokaiyabai Yadav vs 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 natured 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 vs. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel vs. State of UP (2010) 12 SCC 532 , Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734 , Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs Bawa Singh, (2015) 3 SCC 441 , and Raj Bala vs State of Haryana, (2016) 1 SCC 463 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. 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. 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. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive. This Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream. 15. Since the learned counsel for appellant has not pressed the appeal on merits, however, this Court after perusal of the entire evidence on record and judgment of the learned Trial Court considers that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld. 16. After considering the rival submissions made by learned counsel for the appellant, considering the facts and circumstance of the case and specially keeping in view the opinion of the Doctor that the injuries were not grievous or dangerous to life and body of the injured was not deformed or maimed. This Court, therefore, considers it a fit case to alter the conviction and sentence of appellant awarded under Section 326A I.P.C. to Section 326B I.P.C. 17. On the question of sentence this Court after considering the rival submissions made by learned counsel for the parties, considering the facts and circumstance of the case and specially keeping in view the opinion of the Doctor that the injuries were not grievous or dangerous to life. This Court, therefore, considers to impose six years imprisonment to the accused and a fine of Rs. 5000 and in default of payment of fine the accused will have to serve out three months imprisonment. 18. Accordingly, the conviction is upheld. The appeal is partly allowed with the modification of the sentence as aforesaid. The appellant be released from the jail on deposit of the fine as the accused had served more than six years in prison. 5000 and in default of payment of fine the accused will have to serve out three months imprisonment. 18. Accordingly, the conviction is upheld. The appeal is partly allowed with the modification of the sentence as aforesaid. The appellant be released from the jail on deposit of the fine as the accused had served more than six years in prison. 19. Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance as warranted.