Babloo vs State Of U.P.
2019 Latest Caselaw 3477 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 80
 

 
Case :- CRIMINAL APPEAL No. - 3708 of 2018
 

 
Appellant :- Babloo
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Surendra Mohan Mishra
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pradeep Kumar Srivastava,J.

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

2. Learned counsel for the appellant at the very out set has submitted that he will not argue on bail, but he will argue on the merits of appeal and he will confine his argument to the quantum of sentence.

3. Learned A.G.A. has vehemently opposed the prayer and submitted that accused-appellant has been rightly convicted and awarded sentence on the basis of evidence available on record. He has however submitted that he has no objection if the sentence is slightly reduced.

4. By the judgment and order dated 11.5.2018 passed by learned Additional District & Sessions Judge/FTC-II, Siddharth Nagar, the accused-appellant has been convicted in S.T. No. 19 of 2015, arising out of Case Crime No. 945 of 2014, P.S. Dumariyaganj, District Siddharth Nagar for the offence under section 457 IPC, five years imprisonment and Rs.10,000/- fine and in default of fine further six months additional imprisonment, for the offence under section 380 IPC, five years imprisonment and fine of Rs.10,000/- and in default, six months additional imprisonment.

5. 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."

6. 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."

7. 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."

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. Learned counsel for the accused-appellant has submitted that for the last two years, the accused is in jail for this offence. It has also been submitted that considering the said period of about two years in jail, the sentence may be reduced.

14. Per contra, learned A.G.A. has submitted that accused-appellant has been convicted for the offence of theft and entering into the house of complainant side in the night for committing theft, hence leniency should not be adopted.

15. Learned counsel for the accused-appellant has submitted that accused-appellant was acquitted by the learned trial court for the offence under section 413 IPC which shows that he was not habitual offender. He has also submitted that at the time of incident accused-appellant was only about 21 years, hence leniency should be adopted. It has also been submitted by the learned counsel for the accused appellant that for the main offence under section 413 IPC, the accused-appellant has been acquitted by the learned trial court and his conviction is only for the offence of theft.

16. Considering the submissions of learned counsel for the accused-appellant and also considering the aspect of the offence for which accused-appellant was tried, I am of the view that under both sections if sentence is reduced by two years, the purpose of justice would be adequately served. It has been directed by the learned trial court that sentences for both offences shall run concurrently. The learned trial court also directed that in default of payment of fine, further six months additional imprisonment in both the sections. This six months imprisonment for both the offences can be reduced to two months for each offence, therefore, there is no need to disturb the sentence on the quantum of fine.

17. Taking into consideration the facts and circumstances of the case, the Court is of the view to reduce the sentence under sections 457 and 380 IPC by two years of each sentence of five years and default sentence for each offence is reduced to two months in place of six months so that the ends of justice may be served.

18. Accordingly, appeal is finally disposed of with the modification that sentence under sections 457 and 380 IPC of five years, is reduced by two years and default sentence of six months is reduced to two months.

19. 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 :- 25.4.2019

RCT/-