Deen Dayal vs State Of U.P.
2019 Latest Caselaw 3476 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 80
 
Case :- CRIMINAL APPEAL No. - 4545 of 2017
 
Appellant :- Deen Dayal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Arun Kumar Gupta
 
Counsel for Respondent :- G.A.,Alok Sharma
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. Heard Shri Arun Kumar Gupta, learned counsel for the appellant, Mrs. Alpana Singha and Shri S.B. Maurya, learned A.G.A. for the State and perused the record.

2. Learned counsel for the accused-appellant Deen Dayal has submitted that instead of arguing on bail application he will argue on the appeal on merits.

3. At the very outset, learned counsel for the accused-appellant has submitted that the accused-appellant Deen Dayal has been convicted in Sessions Trial No. 325 of 2015, arising out of Case Crime No. 243 of 2014, P.S. Puwayan, District Shahjahanpur and sentenced for the offence under section 306 I.P.C. for 07 years rigorous imprisonment and Rs. 10,000/- fine and in default in payment of fine 06 months additional imprisonment and for the offence under section 201 IPC for two and half years rigorous imprisonment. It has been directed by the court below that in both the sections sentence shall run concurrently.

4. Learned counsel for the appellant has submitted that he will not argue the appeal on the conviction but he will argue the appeal only on the quantum of sentence. He has further submitted that the convicted-accused is in jail from 24.03.2015 and as such he has already passed more than 4 years in jail, therefore, he has submitted that considering the long period the accused-appellant has passed in jail a lenient view may be adopted and the sentence may be converted either period already undergone or may be substantially reduced.

5. Learned AGA has vehemently opposed the prayer and has also submitted that the convicted-accused was very rightly convicted by the learned trial court on the basis of evidence on record. She however, submitted that if the sentence is slightly reduced, she has no objection.

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. In this instant case, the F.I.R. was lodged with the allegation that the accused-appellant is real uncle of the victim and he used to harass the victim by committing marpeet and cruelty with her. On the date of incident victim was beaten by him and the victim committed suicide by taking poison. The accused-appellant to conceal his offence hanged her in night outside the house in a tree. It has also been pointed out that post-mortem report could not reveal the reason of death and therefore, the viscera was preserved and which was sent for chemical examination and therefore, it was revealed that she was administered poison. After investigation the charge-sheet under sections 306, 201 I.P.C. was filed against the accused person.

15. On the contrary, it has been submitted by the learned counsel for the accused-appellant that the mother of the victim used to harass her and out of that harassment she committed suicide.

16. Our criminal jurisprudence in the country is based on corrective and reformative approach and it believes that no accused person is incapable of being reformed. It is clear that from last more than 4 years the convicted-accused is in jail. In cases like this, the heavy responsibility in the constitution of the alleged offence is always on the person who committed suicide, the role of other may be of only abettor against which a lenient view has been adopted under law and it is also desired that a similar lenient view may be awarded while awarding sentence.

17. In the facts and circumstances of the case and considering that for a long period the accused-appellant has been regularly in jail and in this case if the sentence under section 306 I.P.C. is reduced by two years the ends of justice will be served. Since the sentence under both the sections have been directed to run concurrently, therefore, there is no need to disturb the sentence under section 201 I.P.C.

18. So far as quantum of fine is concerned, The trial court has only awarded Rs. 10,000/- fine which is adequate in the circumstances and in lieu of fine six months additional imprisonment has been awarded, the 6 months additional imprisonment may be converted to 4 months. Accordingly the sentence may be modified.

19. Accordingly, the conviction is upheld. The sentence is modified and is reduced by 02 years from the awarded sentence of 7 years rigorous imprisonment under section 306 I.P.C. and the default sentence in lieu of fine of 6 months is reduced to 04 months.

20. With this modification, the appeal is finally disposed of.

21. 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 as warranted.

Order Date :- 25.4.2019

Bhanu