Shivnath Singh vs State Of U.P.
2021 Latest Caselaw 1506 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 33
 

 
Case :- CRIMINAL APPEAL No. - 1138 of 2016
 
Appellant :- Shivnath Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Anand Kumar Srivastava,Suyesh Pradhan
 
Counsel for Respondent :- Govt. Advocate,Indrajeet Shukla
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. The instant criminal appeal, under Section 374(2) of Code of Criminal Procedure, 1973 (in short 'Code') has been preferred against the judgment and order dated 02.08.2016, passed by Additional Sessions Judge, Court No.5, Barabanki, in Session Trial No.421 of 2013 (State vs. Shivnath Singh), arising out of Case Crime No.14 of 2012, Police Station-G.R.P., District-Barabanki, whereby appellant has been convicted and sentenced for offence under Section 364 IPC for ten years rigorous imprisonment with fine of Rs.10,000/-.

2. The prosecution case, in brief, is that the deceased-Harihar Singh, husband of Smt. Durga Singh (P.W.-1) and the appellant-Shivnath Singh were doing job in Bhatinda Chemicals Limited, Bhatinda, Punjab. On 23.11.2010 both the appellant and the deceased had gone to Firozpur Railway Station from Bhatinda and were returning to their home by train. The appellant-Shivnath Singh reached at his home on 26.11.2010, but the deceased did not reach at his home. Upon query, it was told by the appellant to P.W.-1 that the deceased was not travelling with him. The deceased was coming to home with Rs.60,000/- and some articles required for marriage of her daughter. Sensing doubt on the conduct of appellant, P.W.-1 tried to lodge the F.I.R. but it was not registered by the concerned police and thereafter she sent F.I.R. (Ext.-Ka-1) to Chairman, State Human Rights Commission, Lucknow, Uttar Pradesh, alleging that the appellant-Shivnath Singh, in order to loot the money, had murdered the deceased and hid his dead body. On the said information, the first information report was lodged under Section 364 I.P.C. against the appellant and after investigation, charge sheet, under Section 364 I.P.C., was submitted against him, before the concerned Magistrate, who took the cognizance and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers as required under Section 207 of the Code, committed the case to the Court of Sessions, Barabanki for trial.

3. The learned trial Court, after hearing learned counsel for both the parties, framed charge for the offence under Section 364 I.P.C. against the appellant, who denied the same and claimed for trial.

4. Prosecution, in order to prove its case, examined the informant (P.W.1), Shiv Bahadur Singh (P.W.-2), Amar Singh (P.W.-3), H. M. Dayanand Tiwari (P.W.-4) S.O, Sunil Kumar Yadav (P.W.-5) (Investigating Officer) and S.O., Vishwnath Yadav (P.W.-6) (Investigating Officer).

5. After conclusion of prosecution witness, the statement of appellant was recorded under Section 313 of the Code, who denied the prosecution story and stated that he has been falsely implicated due to property dispute.

6. Upon conclusion of trial, the trial Court vide impugned judgment and order dated 02.08.2016, convicted and sentenced the appellant as above. Aggrieved by the said judgment and order, the appellant has preferred this appeal.

7. Heard Shri Firoz Ahmad Khan, learned counsel for appellant, Sri Bir Raghav Chaudhary, learned A.G.A. for State, Sri Indrajeet Shukla, learned counsel for the informant and perused the record.

8. Learned counsel for appellant submits that appellant is innocent and has been falsely implicated in this case. Learned counsel further submits that although the appellant and the deceased were travelling and returning together to their home by train but during journey, they got preyed of poisoned hoof, due to which, they became unconscious and after regaining consciousness, the appellant found that the the deceased was missing and the appellant reached at his home but the deceased could not reach at his home. Learned counsel further submits that though the appellant is innocent and the prosecution has not proved its case beyond reasonable doubt but the appellant is not pressing this appeal on merit. Learned counsel further submits that the appellant is very poor person having five daughters and two of them are still unmarried, whose marriages are not being solemnized as the appellant is languishing in jail for more than five years. Learned counsel further submits that at present, the appellant is aged about more than 60 years and has no criminal history. Learned counsel further submits that a linent view is required to be adopted in this case as the dead body of the deceased has not been traced out. Learned counsel further submits that the appellant may be released forthwith by treating period of sentence already undergone by him, as sufficient for substantive sentence.

9. Per contra, learned A.G.A. vehemently opposed the submission advanced by learned counsel for the appellant but did not dispute the factual submission of learned counsel for the appellant. Learned A.G.A. further submits that in view of gravity of offence, the appellant is not entitled for any linency.

10. Learned counsel appearing for informant submits that if the period of sentence is reduced, fine be enhanced and some part of fine be given to informant as compensation because sole earning member of her family has died.

11. Since learned counsel for the appellant has not made any submission on the merit of the case, the conviction of the appellant is required to be confirmed. The record shows that the appellant is languishing in jail since 02.08.2016 and learned counsel for the appellant also submits that appellant is a very poor person having no criminal history.

12. It is settled principle of sentencing and penology that undue sympathy in awarding sentence with accused is not required. The object of sentencing in criminal law should be to protect society and also to deter criminals by awarding appropriate sentence. In this regard, Court in State of Madhya Pradesh Vs. Saleem @ Chamaru, AIR 2005 SC 3996, has said as under:-

"10. 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".

13. In Ramashraya Chakravarti vs. State of Madhya Pradesh AIR 1976 SC 392, reducing the sentence of young accused, aged about 30 years, convicted for offence under Section 409 I.P.C., from two years to one year, has observed as under:-

"In judging the adequacy of a sentence the nature of the offence, the. circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts. Trial courts in this country already over-burdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice presentence investigation may be of great sociological value. Through out the world humanitarianism is permeating into penology and the courts are expected to discharge their appropriate roles."

14. Looking into the facts and circumstances of the case, I am of the view that the conviction of appellant for the aforesaid offence requires no interference and is accordingly, confirmed. But in view of the age and responsibility of the appellant as well as in view of law laid down by Hon'ble Supreme Court in Saleem @ Chamaru (supra) and Ramashraya (supra), the sentence of ten years rigorous imprisonment awarded to the appellant for offence under Section 364 IPC is modified and reduced to rigorous imprisonment of seven years but fine of Rs.10,000/- imposed upon him is enhanced to Rs.30,000/-, out of which, Rs.25,000/- shall be paid to the informant/P.W.-1.

15. Hence, the appeal is partly allowed. The conviction of the appellant for offences punishable under Sections 364 I.P.C. is confirmed but the quantum of sentence is modified and is reduced to the aforesaid extent. Period of detention already undergone by the appellant in this matter, shall be set off as per provision of law.

16. Let a copy of this judgment along with lower court record be transmitted to the trial Court concerned forthwith for necessary compliance.

Order Date :- 25.1.2021

Mahesh