Brij Bihari vs State Of U.P.
2021 Latest Caselaw 1584 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 90
 

 
Case :- CRIMINAL APPEAL No. - 14 of 1988
 

 
Appellant :- Brij Bihari
 
Respondent :- State of U.P.
 
Counsel for Appellant :- R. Bhargava, Bindeshwari Prasad Mishra
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ajit Singh,J.

This criminal appeal has been filed against the judgement and order dated 124.12.1987 passed by the Vth Addl. Sessions Judge, Mathura in S.T. No. 137 of 1987 (State vs. Brij Bihar), under Section 307 of I.P.C., P.S. Police Station - Kotwali, District Mathura, whereby learned Judge has convicted and sentenced the appellant Brij Bihar to six months' rigorous imprisonment under Section 324 I.PC.

The prosecution story in brief is that accused Brij Bihari visited the house of complainant Ram Swarup Chaudhari at Himmat Pura, Dhauli-Piau, Mathura on 13.11.1985 at about 6:30 a.m. in the morning and knocked the door. The door was opened by the father of the complainant. The accused said in challenging words, "Send Chaudhari Ram Swarup out, I will kill him." Thereafter, the accused fired at the father of the complainant and ran away from the spot. The father of the complainant, Sri Bhoop Ram, sustained the firearm injury on the thigh. The wife of accused Brij Bihari was missing since last three months from the date of this incident and accused was suspecting hands of the complainant in her missing.

The First Information Report was recorded at the Police Station Kotwali, Mathura against the present accused appellant on 13.11.1985 at 8:15 a.m. In the General Diary a case was registered and investigation was entrusted to SI Har Swarup Singh. After investigation charge sheet was submitted in Court against the present accused under Section 307 IPC. The Investigating Officer prepared the site-plan, took the bloodstained kurta and dhoti of the injured and recorded the statement of the witnesses under Section 161 Cr.P.C.

Injured Bhoop Ram was examined by Dr. M.L. Gupta, Medical Officer, District Hospital, Mathura on 3.11.1985 at 9:00 A.M.

Thereafter, the trial proceeding started and concluded into conviction and sentence of the accused appellant by the impugned judgment and order, as narrated above.

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

At the very outset, learned counsel for the appellant, on instructions, states that he does not propose to challenge the impugned judgement and order on its merits. He submits that the incident occurred 35 years ago in 1985. Now, the appellant is an old man of 63 years' of age and is suffering from age related ailments and has a family to support. He prays for modification of the order of the sentence for the period already undergone by the appellant.

The learned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances.

Since the learned counsel for the appellant has given up challenge to the findings of conviction and there is ample evidence including eyewitness account and medical report to base conviction, accordingly, the conviction of the appellant for the aforesaid offence stands affirmed.

However, on the quantum of sentence, learned counsel for the appellant has argued that the appellant is not previous convict and is on bail. He next submits that the appellant is aged about 63 years married person and he is having children and he is only earning member in the family. He next submits that it was the first offence of the accused-appellant and after conviction the accused had not indulged in any other criminal activity. He further submits that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking a lenient view considering the age of the accused and his age related ailments.

This Court is well aware that while dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, has held thus:

"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole.

Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their officiousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."

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 nurtured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanizing 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.

Looking into the evidence oral as well as documentary, which is available on record, this Court is of the opinion that learned trial court has rightly convicted the accused as there is clear and cogent evidence against the accused, which is corroborated and supported by medical evidence.

Considering the facts and circumstances of the case, the period already undergone by the appellant in this case and the fact that the appellant is an old man and that he has realized the mistake committed by him and is remorseful of his conduct to the society to which he belongs, now, he wants to transform himself, considering the offence is of the year 1985 and since then almost more than three decades have passed and also considering that the accused-appellant had already undergone physical incarceration for sometime and he has been suffering the mental incarceration for more than 35 years since the date this incident had taken place, this Court is of the considered opinion that the accused should be given a chance of reforming himself and be allowed to give his better contribution to the society to which he belongs to.

Consequently, the sentence is modified to the period already undergone by the appellant in this case and a sum of Rs. 5,000/- is imposed upon the appellant to be deposited within three months from today. In case of failure in depositing the fine, the appellant will have to serve 15 days' simple imprisonment.

The appeal stands party allowed.

Appellant is on bail. His bail bonds and sureties shall stand discharged.

Office is directed to transmit a copy of this order to the learned Sessions Judge, Mathura for compliance.

Office is also directed to send back the record of the trial court immediately.

Order Date :- 27.1.2021

LBY