Bhikhari Das And Others vs State
2021 Latest Caselaw 1583 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 90
 

 
Case :- CRIMINAL APPEAL No. - 2058 of 1981
 

 
Appellant :- Bhikhari Das And Others
 
Respondent :- State
 
Counsel for Appellant :- Pt. Mohan Chandra,H.P.Misra,S.K.Gupta
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ajit Singh,J.

As per order of this Court dated 13.1.2014, the appeal in respect of appellant no. 1, Bhikhari Das, appellant no. 3, Ram Autar son of Shyam Lal and appellant no. 4, Raghubir Dhobi son of Manik is abated.

Sri Devendra Prakash Singh, learned Amicus Curiae is pressing this appeal on behalf of surviving appellant no. 2, Raj Bahadur.

This criminal appeal has been filed against the judgment and order dated 9.9.1981 passed by Sessions Judge, Etah in S.T. No.290 of 1979, convicting appellant Raj Bahadur under Section 148 I.P.C. and under Section 326 I.P.C. and sentencing him to undergo one year R.I. and three years R.I. respectively on each count. It was also directed that both the sentences shall run concurrently.

The brief facts of this case are that the complainant Rajendra PW-4 and accused Bhikhari Das are the real brothers and both of them were married in village-Singhpur, within the circle of police station Sidhpura, district-Etah. Accused Raj Bahadur is the son of Bhikhari Das. Accued Bhikhari Das wanted to usurp the land of complainant Rajendra PW-4 and, therefore, some litigation was going on over that land. Accused Bhikhari Das and Raj Bahadur was in the habit of harbouring some miscreants and, therefore, complainant Rajendra used to reside at Delhi. On 28.9.1978 complainant Rajendra PW-4 came to village-Singhpur where his wife Rajjo was residing. At about 6:00 p.m. accused Bhikhari Das, Raj Bahadur, Ram Autar, Raghubir came to the house of complainant and asked him to come out of his house. Complainant Rajendra came out of the house and and ran towards village and started making hue an cry. All the accused persons after chasing him, attacked them. Hearing the commotion the witnesses were attracted. Accused Raj Bahadur fired a shot with an intention to murder Rajendra PW-4 and the pallets striked at the right leg of Raj Bahadur. The police personal on petrol duty and the villagers caught the accused Bhikhari Das and Ram Autar on the spot, while other co-accused fled away from the spot.

At the very outset, learned Amicus Curiae has stated that he does not propose to challenge the impugned judgement and order on its merits. He, however, prayed for modification of the order of the sentence for the period already undergone by the appellants as the incident happened in the year 1978 and the accused have suffered mental and physical incarceration for a long period.

Learned counsel for the accused-appellant has submitted that accused-appellant is on bail and was in jail for some period after conviction and he was also in jail during trial. Since the date of lodging of the case against him in the year 1978, the sword of punishment has been hanging over his head for about more than forty two years, and therefore, he has requested that considering the period when he was in jail, a lenient view may be adopted and the sentence may be converted either undergone or the sentence may be substantially reduced.

Learned A.G.A. have vehemently opposed the prayer, he has however, submitted that if slight reduction in sentence is made, he has no objection.

I have perused the entire material available on record and the evidence, as well as judgement of the trial court, this Court finds that the appeal of the present accused deserves to be rejected on merits.

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."

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."

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."

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.

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.

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.

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.

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.

Keeping in view the facts and circumstances of the case, keeping in view the fact that PW1, PW2 and PW3 have supported the prosecution case and later on, they have been declared hostile, keeping in view the statement of the doctor PW6, who has corroborated the prosecution version stating that he conducted the x-ray of the injured Rajendra Prasad and found fracture in his feet, keeping in view that PW-4, informant, has not supported the prosecution case for the fact that the accused is his real brother and for saving him the false statement has been given and also keeping in view the criminal jurisprudence in our country which is reformative and corrective and not retributive. It is presumed that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.

After considering the rival submissions made by learned counsel for the appellant, considering the facts and circumstance of the case, considering that the alleged incident which took place in the year 1978 about 42 years ago and now appellant is more than 68 years of age. Both the complainant and the present accused are family members, at this stage, this Court feels that it would not be proper to sent the accused-appellant to jail at the fag end of his life and the accused was granted bail on 14.9.1981and later on his non-bailable warrant was issued and he remained in jail and was again granted bail on 9.2.2007, the accused person has suffered the agony of conviction for more than forty years and no criminal antecedents has been shown to his credit after passing of so much long period out of jail, at this stage it does not appear appropriate to send the accused-appellant to jail. It has been pointed out by learned counsel for the accused-appellant that the accused-appellant had remained in jail for sometime during trial also. Considering all these facts, it would be appropriate and proper that the accused be sentenced with the period already undergone and the amount of fine be imposed.

Accordingly, the conviction is upheld. The appeal is finally disposed of with the modification that the sentence of 03 years rigorous imprisonment for the offence under section 326 I.P.C. is reduced from 03 years rigorous imprisonment to already undergone by the accused in prison during trial and after conviction and a fine of Rs. 5,000/- be imposed on the accused.

Accused-appellant is directed to deposit the fine of Rs. 5,000/- before learned lower court within three months from the date of passing of the judgement of which Rs. 3,000/- shall be paid to the injured, if he is alive and in case he is dead then it would be paid to his legal heirs and in default of payment of fine accused-appellant shall further undergo 15 days imprisonment.

Sri Devendra Prakash Singh learned Amicus Cuarie has argued this appeal on behalf of appellant Raj Bahadur and he shall be paid his remuneration as per rules.

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 :- 27.1.2021

Faridul