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2021 DIGILAW 1202 (ALL)

Shiv Singh v. State of U. P.

2021-10-06

AJIT SINGH

body2021
JUDGMENT : Ajit Singh, J. This criminal appeal has been filed against the judgment and order dated 26.3.1985 passed by the Session Judge, Mainpuri in S.T. No. 196 of 1984, under Section 307 I.P.C., Police Station-Kotwali, District-Mainpuri, whereby learned Judge convicted and sentenced the appellant to 05 years rigorous imprisonment under Section 307 I.PC. 2. The prosecution story in brief is that the present accused Shiv Singh entered into the house of complainant and enquired about the mother and father of the complainant and after 2-4 minutes hit his mother by country made pistol on account of which her mother shrieked and became unconscious. She was taken to District Hospital, Mainpuri where she regained consciousness and was medically examined by Dr. M.L. Gupta, PW-3. Her statement was also recorded by Tehsildar which is Ext. Ka-1. A written report (Ext. Ka-2) was filed at police station Kotwali Mainpuri by the complainant, Brijendra Singh. Thereafter, a chick report was prepared which is Ext. Ka-5 and entry was made in the General Diary at serial No. 23, an extract of which is Ext. Ka-14. Thereafter, Sub-Inspector, Maharaj Singh, PW-4 investigated the matter and recorded statement of complainant, his mother and other certain witnesses. As the accused applicant was not traceable, proceedings under Section 82/83 Cr.P.C. was initiated. On 22.12.1983, the Investigating Officer submitted the charge-sheet (Ext. Ka-13) against the accused in his abscondance. The trial court after taking cognizance against the accused framed charges against the accused. The accused-appellant pleaded not guilty. 3. The trial Court after examining the prosecution witnesses and hearing the accused under Section 313 Cr.P.C., convicted and sentenced the accused-appellant to undergo five years rigorous imprisonment under Section 307 I.P.C. 4. Feeling aggrieved from the judgment and order dated 26.3.1985 passed by Session Judge, Mainpuri, this criminal appeal has been filed. 5. At the very outset, learned counsel for the appellant, on instructions, stated that he does not propose to challenge the impugned judgment and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant. 6. In furtherance to his submission, the learned counsel for the accused-appellant submits that the appellant was of tender age at the time of incident. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellant. 6. In furtherance to his submission, the learned counsel for the accused-appellant submits that the appellant was of tender age at the time of incident. The incident had taken place in the year 1983 and the accused was convicted in the year 1985 and since then the appellant has suffered physical and mental agony of conviction. At present the appellant is aged about 57 years and he is having a family to support. The appellant had been in jail for a period of eight months during trial and after conviction. Further submission is that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He next submits that although the trial Court has convicted the present accused while the appellant is absolutely innocent and has been falsely implicated in this case with the ulterior intention of harassing him. Further submission is that there is no bread earner in the family of the appellant. He also submits that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking lenient view considering the age of the accused and his age related ailments. 7. Learned A.G.A. has vehemently opposed the submission made by learned counsel for the appellant and submitted that there is ample evidence against the appellant and there is no reason to disbelieve the prosecution story as the accused-appellant is distant relative of the complainant family and why the accused will be falsely implicated in this matter. He has further submitted that the injured has specifically nominated the accused in her statement and doctor has specifically corroborated the injuries of the injured and the oral evidence of the injured finds corroboration from the medical evidence, hence the appeal be dismissed and accused be directed to suffer the sentence. 8. After considering the rival submissions advanced by learned counsel for the applicant as well as learned A.G.A. for the State, evidence brought on record, this Court deems it fit to dismiss the appeal on merits. 9. I have perused the entire material available on record and the evidence as well as judgment of the trial Court. 8. After considering the rival submissions advanced by learned counsel for the applicant as well as learned A.G.A. for the State, evidence brought on record, this Court deems it fit to dismiss the appeal on merits. 9. I have perused the entire material available on record and the evidence as well as judgment of the trial Court. As 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, this Court considers the appropriate quantum sentence in this appeal. 10. In Mohd. Giasuddin v. State of A.P., AIR 1977 SC 1926 , explaining rehabilitary 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 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. If you are to reform him, you must improve him and, men are not improved by injuries.'' 11. In Sham Sunder v. 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.'' 12. 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.'' 12. 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., (2010) 12 SCC 532 , Guru Basavraj v. 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.'' 13. Earlier, ''Proper Sentence'' was explained in Deo Narain Mandal v. State of U.P., (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. 14. In subsequent decisions, the Supreme Court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. 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. 14. 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) 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 v. Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab v. Bawa Singh, (2015) 3 SCC 441 , and Raj Bala v. State of Haryana, (2016) 1 SCC 463 . 15. 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 nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world. 16. In Ravada Sasikala v. State of A.P., AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel v. State of U.P., (2010) 12 SCC 532 , Guru Basavraj v. State of Karnatak, (2012) 8 SCC 734 , Sumer Singh v. Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab v. Bawa Singh, (2015) 3 SCC 441 , and Raj Bala v. 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. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. 17. After considering the rival submissions made by learned counsel for the appellant, considering the facts and circumstance of the case, considering that the alleged incident which took place in the year 1983 about 38 years ago and now appellant is more than about 57-58 years of age, both the parties are distant relative, at this stage, this Court feels that it would not be proper to send the accused-appellant to jail and the accused was on bail since 1.4.1985 and the accused has suffered the agony of conviction for more than 36 years and no criminal antecedents have been shown to his credit after passing of so much long period out of jail, at this stage it does not appear appropriate to send the accused-appellant to jail now. It has been pointed out by learned counsel for the accused-appellant that the accused-appellant had remained in jail for sometime during trial. Considering all these facts, it would be appropriate and proper that the accused be sentenced with the period already undergone and the amount of fine be imposed. 18. Considering all the facts and circumstances of the case, the accused-appellant is sentenced to the period already undergone by him in jail during trial and an amount of fine of Rs. 50,000/- be imposed instead of sending him to jail. 19. Accused-appellant is directed to deposit the fine of Rs. 50,000/- before learned lower Court within four months from the date of passing of the judgment. In default of payment of fine accused-appellant shall undergo two months imprisonment. 20. Appeal is partly allowed in the above terms. 21. Copy of this order be transmitted to the concerned lower Court forthwith for compliance.