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Allahabad High Court · body

2020 DIGILAW 1512 (ALL)

Wasim v. State of U. P.

2020-12-16

AJIT SINGH

body2020
JUDGMENT : Hon'ble Ajit Singh,J. This criminal appeal has been filed by the appellants against the judgement and order dated 06.04.2018 passed by Additional District and Sessions Judge, Fast Track Court -2nd, Hapur in S.T. No. 21 of 2016 (State of U.P. Vs. Wasim and others), Case Crime No. 489 of 2015 under Sections 452, 323/34, 307, 120-B, 324/34, 325/34 IPC, PS – Garhmukteswar, District Hapur by which the appellants have been convicted and sentenced to undergo four years’ rigorous imprisonment for the offence punishable under Section 452 IPC with a fine of Rs. 2,000/-each and in default in payment of the fine an additional imprisonment of one month was directed to be served out by them; one year’s rigorous imprisonment for the offence punishable under Section 323/34 IPC with a fine of Rs. 500/-and in case of default in payment of the fine, ten days additional imprisonment was directed be served out by each of them; seven years’ rigorous imprisonment with a fine of Rs. 1,000/-for the offence punishable under Section 307/34 IPC and in default in payment of the fine an additional imprisonment of five months was directed be served out by each of them; three years’ rigorous imprisonment with a fine of Rs. 1,000/-for the offence punishable under Section 324/34 IPC and in default in payment of the fine an additional imprisonment of 15 days was directed be served out by each of them; and three years’ rigorous imprisonment with a fine of Rs. 1,000/-for the offence punishable under Section 325/34 IPC and in default in payment of the fine an additional imprisonment of 15 days was directed be served out by each of them. It was also directed that all the sentences will run concurrently. 2. The prosecution story in brief is that on 11.10.2015 an application was given by the complainant Khalid son of Yameen, resident of village – Dautayee, Police Station – Garhmukteshwar, District Hapur to register a First Information Report and it was alleged therein that his neighbour Waseem son of Rashid has made a phone call and has began to ask the complainant’s sister to marry with him. It was further alleged that today, on 11.10.2015 the complainant was present at home with his brother Salman and Irfan, the accused persons namely Waseem, Shakeel, Vakeel all sons of Rasheed and Shafique with his brothers having in their hands sariya, daranti,lathiand Vakeel having in his hand a tamanchaentered into the house of the complainant. They told the complainant and his brothers that for two days they had started asking the complainant’s sister to marry but she was not listening to them. The complainant denied to marry his sister, at which being annoyed the aforesaid four brothers started to beat the complainant’s brothers Salman and Irfan in the morning at about 9:00 o’ clock. Jaheer son of Shaheed, a resident of the complainant’s village, tried to save the brothers of the complainant, then, Vakeel at the instance of his brothers fired a shot with his tamanchaat Jaheer who fell down on the ground due to the serious injuries caused by firearm. The complainant’s Ammi Smt. Shamim and sister Gulista, who tried to save, were also beaten and caused injuries. It was also alleged therein that Aamir son of Shafique has caused happen this entire mar-pit in a preplanned manner. Jaheer who was seriously injured, was sent straightway to Meerut for treatement. It was also alleged that this incident was witnessed by the complainant, his brother, Ammi and sister as well as Arif son of Jamshaid resident of village Dautayee and others. Lastly, it was said that Arif had seen Aamir who was planning for causing the aforesaid incident along with his Abbu and Chacha. 3. On the basis of the aforesaid tahreer (Ext. Ka-1), the First Information Report (Ext. Ka-19) was registered at Police Station Garhmukteshwar and in respect to that necessary entry (Ext. Ka – 20) in G.D. was made. 4. Thereafter, the matter was investigated by the Investigating Officer who made a spot inspection and recorded the statements of the witnesses. A map (Ext. Ka 9 to 13) was prepared. Charge sheet (Ext. Ka-16) was submitted against accused persons namely Waseem, Shakeel, Vakeel and Shafique under Sections 452, 323, 307, 120-B, 324, 325 IPC. A charge sheet ( Ext. Ka-23) was also submitted against accused appellant Vakeel Ahamed for the offence punishable under Section 25 of the Arms Act. A map (Ext. Ka 9 to 13) was prepared. Charge sheet (Ext. Ka-16) was submitted against accused persons namely Waseem, Shakeel, Vakeel and Shafique under Sections 452, 323, 307, 120-B, 324, 325 IPC. A charge sheet ( Ext. Ka-23) was also submitted against accused appellant Vakeel Ahamed for the offence punishable under Section 25 of the Arms Act. So far as the charge sheet No. 381A of 2015 submitted against accused Aamir is concerned, the case in respect to this accused was sent to Juvenile Justice Board. 5. As the case was exclusively triable by the Court of Session, learned Chief Judicial Magistrate, Garhmukteswar under his order dated 14.01.2016 committed the aforesaid matter for trial to the Court of Session and learned Additional Sessions Judge, Hapur framed the charges against the accused appellants namely Waseem, Shakeel, Vakeel and Shafique under Sections 452, 323/34, 307, 120-B, 324/34, 325/34 IPC to which accused persons pleaded not guilty and claimed to be tried. 6. To bring home guilt of the appellants and other co-accused Vakeel, the prosecution examined as many as thirteen witnesses : PW-1 Khalid, PW-2 – Irfan, PW-3 Smt. Shameem, PW-4 Jaheer, PW5 Salman, PW-6 Dr. Ajit Singh, PW-7 Dr. Chitwan Singh, P.W. 8 retired SI Rajendra Singh, PW-9 Constable 584 Pravesh Kumar, PW10 Gulista, PW-11 SI Jagdev Singh, PW-12 Dr. Gaurav Gupta and PW – 13 SI Rajiv Kumar. Besides this, other documentary evidence namely, map of the incident, medical examination report of the injured persons, X-ray, Chik report, recovery memo, charge sheet etc. were also produced by the prosecution during the trial for proving the allegations against the accused persons. 7. After the closure of prosecution evidence, the statements of the accused-appellants and other co-accused were recorded under Section 313 Cr.P.C., in which they denied the charges and stated that they were falsely implicated in this case. 8. The learned Additional Sessions Judge, Hapur after assessing and evaluating the evidence adduced by the parties, convicted and sentenced the appellant Vakeel as well as other co-accused persons as indicated herein above. 9. Hence, this appeal on behalf of Vakeel Ahmad. 10. Heard Shri S.M. Nazir Abbas Abedi, learned counsel appearing on behalf of the appellants, learned A.G.A. for the State and perused the record. 11. 9. Hence, this appeal on behalf of Vakeel Ahmad. 10. Heard Shri S.M. Nazir Abbas Abedi, learned counsel appearing on behalf of the appellants, learned A.G.A. for the State and perused the record. 11. At the very outset, the learned counsel for the appellants, on instructions, has submitted that he does not propose to challenge the impugned judgement and order on its merits. He, however, prays for modification of the order of the sentence for the period already undergone by the appellants. 12. Learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances. 13. Since the learned counsel for the appellants has given up challenge to the findings of conviction and there is ample evidence including eyewitness account and medical report to base conviction, accordingly, the conviction of the appellants for the aforesaid offence stands affirmed. 14. However, on the quantum of sentence, learned counsel for the appellants has argued that the appellants are not previous convict. It is further submitted by the learned counsel on behalf of the appellants that the accused appellants were assigned the role of causing simple injuries to the injured and they have been in jail for more than six months w.e.f. 06.04.2018 and vide judgment and order dated 03.10.2018 passed by this Court they have been bailed out. Then, it is also submitted that the alleged injuries have not damaged any vital part of the injured. He next submits that the accused appellants are young men and they are married and having small children to look after. It would be in the interest of justice that their sentence is modified by the sentence already undergone by them. 15. While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under: "Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. 16. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their officiousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs-200/-to Rs. 400/-. Period of imprisonment in case of default will remain the same." 17. 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 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 sub-culture that leads to ante-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. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely roduces 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." 18. 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." 19. 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 Karnatak, (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 a ending circumstances are relevant facts which would enter into the area of consideration. 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 a ending 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." 20. 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. 21. 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. 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 . 22. In KokaiyabaiYadav 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 nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. 23. In Ravada Sasikala vs. State of AP 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 Balavs 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. 24. The judicial trend in the country has been towards striking a balance between reform and punishment. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. 24. 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. 25. Looking into the evidence oral as well as documentary, which is available on record, this Court is of the opinion that learned trial court has rightly convicted the accused appellants as there is clear and cogent evidence against the accused, which is corroborated and supported by medical evidence. 26. Considering the facts and circumstances of the case and the substantive period already undergone by the appellants in this case and the fact that the appellants are married and having small children to look after; there is no bread winner in the family of the appellants and that they have realized the mistake committed by them and are remorseful of their conduct to the society to which they belong and now they want to transform themselves, I am of the considered opinion that the accused appellants should be given a chance to reform themselves and be allowed to give their better contribution to the society to which they belong to. 27. Consequently, the sentence is modified by the sentence already served out and undergone by the appellants and the amount of the total fine imposed by the learned Court below was Rs. 14,500/-to be deposited by each of the accused appellants, which is enhanced to Rs. 20,000/-shall be deposited by each of the appellants within a period of three months from today and in case they fail to deposit this fine of Rs. 20,000/-, they will have to serve out three months’ additional imprisonment. The appeal stands party allowed. 28. 14,500/-to be deposited by each of the accused appellants, which is enhanced to Rs. 20,000/-shall be deposited by each of the appellants within a period of three months from today and in case they fail to deposit this fine of Rs. 20,000/-, they will have to serve out three months’ additional imprisonment. The appeal stands party allowed. 28. The appellants are on bail. Their bail bonds and sureties are discharged. It is hereby directed that each of the appellants shall deposit the fine of Rs. 20,000/-before the learned Court below within a period of three months from today and in case of default in payment of the fine, they will have to serve out an additional imprisonment of two months. 29. Office is directed to transmit a copy of this order to the learned Sessions Judge, Hapur for compliance. 30. Office is also directed to send back the record of the trial court immediately.