Ram Pherey vs State Of U.P.
2016 Latest Caselaw 6453 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED/A.F.R.
 
Court No. - 13 
 

 
Case :- CRIMINAL APPEAL No. - 613 of 1998 
 
Appellant :- Ram Pherey 
 
Respondent :- State Of U.P. 
 
Counsel for Appellant :- M.L.Syal 
 
Counsel for Respondent :- Govt. Advocate 
 

 
Hon'ble Mrs. Ranjana Pandya,J. 

1. Challenge in this appeal is to the judgment and order dated 03.11.1998, passed by Special Judge, E.C. Act / Additional district and Sessions Judge, Hardoi, in Criminal Case No. 15 of 1991 (State vs. Ram Pherey), under Section 3/7 E.C. Act, Police Station Lonar, District Hardoi, whereby the accused was found guilty and sentenced to undergo 1 year rigorous imprisonment along with fine of Rs. 1000/- with default stipulation.

2. Filtering out unnecessary details, the prosecution case in brief is that a compl;aint was lodged by the Supply Inspector stating that the accused Ram Pherey supplies sugar and kerosene oil to the card holders. Complaints were received from card holders Hari, Udai Raj, Rajendra Prasad, Raj Kishore, Madan Mohan, Ram Charan, Prabhu Dayal and others on which the Supply Inspector went to the spot on 11.08.1991. The shop keeper closed the shop and fled away. There was no information about the shop being closed. The stock board and the rate board were not displaying anythng. The brother of the accused was found at the spot. He was directed to ensure that the record relating to the shop coupled with the sale register and the stock register are submitted within three days to the office. The accused have not supplied the articles to the card holders, although, he levied the prescribed quota of articles but he did not distribute it amongst the card holders, hence the report was lodged.

3. On the basis of the report, investigation was conducted which ended into a charge sheet. Charges were framed against the accused under Section 3/7 E.C. Act on 31.03.1992. But the accused pleaded not guilty and claimed trial.

4. The prosecution examined PW-1 Ashok Kumar Katiyar, supply Inspector, PW-2 Udai Raj Pandey, PW-3 Rajendra, and PW-4 S.I. Raja Ram Mishra who conducted the investigation.

5. After close of the prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C., who denied the allegations. He further submitted that the notice board was displayed about the closure of the shop. The rate board and stock board were in the shop. Further, he did not adduced any witness in his defence.

6. After hearing the learned counsel for the parties, the learned lower court convicted and sentenced the accused as stated in para 1 of the judgment.

7. Feeling aggrieved, the accused has come up in appeal.

8. Heard Sri M. L. Syal and Sri Rajat Pratap Singh learned counsel for the appellant, learned Additional Government Advocate for the opposite party and perused the lower court record.

9. Learned counsel for the appellant Sri Rajat Pratap Singh has stated that he does not want to argue this appeal on merits, but he only wants to submit on the quantum of sentence. Further he has vehemently argued that custodial sentence of one year rigorous imprisonment is harsh and excessive. The appellant has already undergone more than two months of imprisonment. Presently his age is above 50 years. The occurrence relates to the year 1993, about 23 years have passed. For the last 23 years, the appellant has been suffering the trauma of being convicted and sentenced. Lastly, it has been submitted that the accused appellant be sentenced to imprisonment for the period already undergone by him.

10. Learned A.G.A. has, however, opposed the prayer made by counsel for the appellant.

11. In the case of Dhananjoy Chatterjee Vs. State of W. B. [1994] 2 SCC 220, this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

12. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:

"Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."

13. In Jameel vs. State of Uttar Pradesh (2010) 12 SCC 532, this Court reiterated the principle by stating that the punishment must be appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus: -

"15. In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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.

16. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."

14. Appropriate sentence is the cry of the society. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.

15. This position was reiterated by a three-Judge Bench of the Apex Court in Ahmed Hussein Vali Mohammed Saiyed and Anr. vs. State of Gujarat, (2009) 7 SCC 254, wherein it was observed as follows:-

"99.....The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

The court must not only keep in view the rights of the victim of the crime but the society at large also while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."

16. In Gopal Singh vs. State of Uttarakhand JT 2013 (3) SC 444 held as under:-

"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....."

17. In Guru Basavaraj @ Benne Settapa vs. State of Karnataka, (2012) 8 SCC 734, while discussing the concept of appropriate sentence, this Court expressed that:

"It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."

18. Thus, considering the law laid down by the Hon'ble Apex Court in the above mentioned cases, for the facts and circumstances of the case, in my opinion, ends of justice would be met if the custodial sentence of 1 year rigorous imprisonment of the accused under Section 3/7 E.C. Act is reduced to the minimum sentence prescribed i.e. 3 months without reducing the amount of fine imposed by the trial court on the accused appellant.

19. In view of the aforesaid reasons, the appeal is partly allowed. The conviction of the appellant under Section 3/7 E.C. Act is confirmed. The sentence of 1 year rigorous imprisonment under Section 3/7 E.C. Act is reduced to 3 months imprisonment but the sentence of fine of Rs. 1000/- under Section 3/7 E.C. Act is maintained.

20. The appellant is on bail, he would serve out the remainder of his sentence if not already completed.

21. Let certified copy of this judgment be sent to the concerned court immediately for compliance and the compliance report be submitted within six weeks.

Order Date :- 06.10.2016

sailesh