Heera Lal Kharwar vs State Of U.P.
2019 Latest Caselaw 3011 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL APPEAL No. - 1008 of 2019
 

 
Appellant :- Heera Lal Kharwar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Krishna Murari Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. Counter affidavit filed today by learned A.G.A. is taken on record.

2. The learned counsel for the accused appellant has chosen to argue on appeal in stead of bail application to which learned A.G.A. has agreed.

3. At the very out set, learned counsel for the appellant has submitted that he will confine his argument on quantum of the sentence and has requested to reduce the sentence to undergone as the accused appellant is in jail from last about 7 years.

4. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

5. Accused-appellant, Heera Lal Kharwar, has been convicted and sentenced by learned trial court in S.T. No. 241 of 2012, arising out of Case Crime No. 555 of 2012, under Section 304, part I IPC, P.S. Chopan, District-Sonbhadra, for ten years rigorous imprisonment and fine of Rs.10,000/- and for one year simple imprisonment under Section 504 IPC with the direction to run both the sentences concurrently.

6. 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 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."

7. 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."

8. 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 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."

9. 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.

10. 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.

11. 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 nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.

12. 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.

13. 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.

14. Learned A.G.A. has opposed the prayer on the ground that lower court record is not available. On the contrary, learned counsel for the appellant has submitted that lower court record has been received.

15. For the offence, under Section 304, part I, I.P.C., the law prescribes punishment for life imprisonment or imprisonment which may be extended up to ten years.

16. Learned counsel for the appellant has submitted that accused-appellant and the deceased belong to the same village and the accused-appellant was aged about 21 years at the time of commission of the offence. He has also submitted that during trial appellant was not on bail and since then till today, he is in jail, therefore, considering maximum period of sentence being ten year and for maximum period of sentence i.e. six years and nine months, the appellant has been lodged in jail, a lenient view to reduce the remaining period of sentence may be taken. He has further submitted that since at the time of commission of offence, the accused-appellant was just above to 21 years, sudden anger has also been the motivating factor.

17. Considering the facts and circumstances of the case, the Court is of the view that if imprisonment of ten years under section 304, part I, IPC is reduced by two and half years, the ends of justice would be served and the object of punishment will certainly be fulfilled more particularly because the appellant is in jail for the last about seven years.

18. Accordingly, the conviction is upheld. The sentence of imprisonment under section 304, part I, IPC is reduced by two and half years from awarded sentence under section 304, Part I, IPC.

19. So far as quantum of fine is concerned, learned counsel for the accused appellant has submitted that the same may be deposited by the accused-appellant within a month in the court concerned.

20. With the above modification this appeal is finally disposed of. Office is directed to transmit the lower court record along with copy of this judgment to the learned court below for information and necessary compliance.

Order Date :- 16.4.2019

RCT/-