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2023 DIGILAW 2054 (ALL)

Mahesh Chandra v. State Of U. P.

2023-08-25

SHAMIM AHMED

body2023
JUDGMENT : 1. Heard learned counsel for the parties and perused the record. 2. This revision has been preferred by the revisionist under Section 397 read with section 401 Cr.P.C. against the judgment and order dated 18.03.2004 passed by the Additional District Sessions Judge/F.T.C.-II, Sultanpur in Session Trial No. 192 of 2002: State Vs Raja Ram, whereby the respondent no. -2 was convicted under Section 304 Part II I.P.C. instead of Section 302 I.P.C. and was sentenced for five years imprisonment and fine of Rs.1000/-. 3. Learned counsel for the revisionist submits that the court below did not appreciate the evidence on record. He further submits that prosecution has successfully proved the offence against the accused/opposite party No.2 on the basis of evidence. The judgement was passed without considering the statement of witnesses and the case was set up by the prosecution upon surmises and conjectures. 4. Learned A.G.A. submits that there appears no illegality or infirmity in the impugned order passed by the court below, therefore, this revision may be dismissed. 5. I have heard the learned counsel for the parties and considered the ground as well as the learned A.G.A. and gone through the judgment passed by the court below. 6. In the present case from the statements given by the witnesses/evidence produced by the prosecution, the court below after going through the material placed on record, has given its finding that the opposite party No.2 has not committed offence under Section 302 I.P.C. rather the court below has framed charges under Section 304 (II) I.P.C. and sentenced him to undergo five years rigorous imprisonment and fine of Rs.1000/-. Thus, it appears that the prosecution has failed to establish that the crime/offence under Section 302 I.P.C. has been committed by the accused/opposite party No.2 and there was no direct evidence produced by the prosecution regarding involvement of the opposite party No.2 in the crime/offence under Section 302 I.P.C. 7. Further, learned counsel for the revisionist could not point out any illegality or infirmity in the impugned order passed in favor of opposite parties which is before this Court. 8. Further, Hon'ble Apex Court in case of Mohd. Giasuddin Vs. State of AP, [ AIR 1977 SC 1926 ], had observed the rehabilitary & reformative aspects in sentencing : "Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. 8. Further, Hon'ble Apex Court in case of Mohd. Giasuddin Vs. State of AP, [ AIR 1977 SC 1926 ], had observed the rehabilitary & reformative aspects in sentencing : "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." 9. It is also noteworthy that while determining the quantum of sentence, the court should bear in mind the 'principle 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. The sentence should not be either excessively harsh or ridiculously low as observed in case of Deo Narain Mandal Vs State of U.P. [ (2004) 7 SCC 257 ] 10. 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. The sentence should not be either excessively harsh or ridiculously low as observed in case of Deo Narain Mandal Vs State of U.P. [ (2004) 7 SCC 257 ] 10. Further 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 ],Raj Bala vs State of Haryana, [ (2016) 1 SCC 463 ], Jagriti Devi Vs State of H.P. (2009) 14 SCC 771 and in Bhagwan Singh Vs State of Uttarakhand (2020) 14 SCC 184 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. 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. 11. 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. 12. In the light of the aforesaid guidelines, the impugned judgment has to be considered from the point of view whether the view taken by the court below was a probable view based on the material on record or it is an absolutely erroneous judgment devoid of merits. 13. Keeping in view the aforesaid weakness of the prosecution case, as noted by the court below, I am of the view that the view taken by the court below was a probable and logical view, which is based on valid reasons. The judgment of the court below cannot be said to be illegal, illogical and improbable and not based on material on record or is based on erroneous views and is against the settled position of law. So, this Court is satisfied that there is absolutely no hope of success in this revision and accordingly, no interference is called for. 14. Accordingly, the present revision is dismissed. 15. No order as to costs. 16. Copy of this judgment be sent to the court below for its compliance.