Mahendra Rai And Another vs State Of U.P.
2021 Latest Caselaw 11182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                  A.F.R.
 
Court No. - 78
 

 
Case :- CRIMINAL APPEAL No. - 1709 of 1981
 

 
Appellant :- Mahendra Rai And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- N.N. Singh,A.P. Sahi,D.K. Singh
 
Counsel for Respondent :- A.G.A.,K.K. Misra,U.K. Misra
 

 
Hon'ble Ajit Singh,J.

1. Learned counsel for the accused-appellants submits that the appellant no. 2 Balram had died and in this regard, CJM, Azamgarh has submitted its reported dated 14.9.2021. 

2. Considering the report of the CJM, Azamgarh, appeal against the appellant no.2 Balram stands abated.

3. Heard Sri Durgesh Kumar Singh, learned counsel for the surviving appellants, Dr. S.B. Maurya, learned A.G.A. and perused the record.

4. This criminal appeal has been filed against a judgement dated 01.08.1981 passed by the IVth Addl. District & Sessions Judge, Azamgarh in S.T. No. 72 of 1977, whereby learned Judge had convicted the appellants under sections 307/34 IPC and sentenced them to undergo four years rigorous imprisonment.

5. The prosecution story in brief is that an FIR of the incident was lodged on 1.12.1974 in which it has been mentioned that on 1.12.1974, Poojan Rai, the uncle of the informant was threshing the crop of paddy at his door and at that time the accused Nar Singh Rai came at the house of his neighbourer Dhanesar and was talking with him. Regarding engagement of labour, Poojan Rai asked the  accused Nar Singh Rai to contest the litigation peacefully and it is not proper to beat or prevent the labour and on this, an altercation took place between them and thereafter accused Nar Singh Rai abused the informant's uncle and accused Triloki Rai has threatened to kill him. The accused Nar Singh Rai along with his family members armed with lathi-danda and country made pistol came at the door of the informant and on exhortation accused Nar Singh Rai had assaulted upon the head of Poojan Rai and thereafter Poojan Rai fell down and then accused-appellant Mahendra had assaulted on his knee by lathi. The PW-4 Dr. Santosh Kumar Srivastava has examined the injured and he found that the injuries, which were caused by hard and blunt object, were simple in nature. The Investigating Officer, after completion of investigation, has submitted charge-sheet.

6. The trial court recorded statements of the witnesses and after hearing the argument of both the sides, convicted the appellants as aforesaid.

7. At the very outset, learned counsel for the appellants, on instructions, 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.

8. Learned counsel for the appellant submits that initially the FIR was lodged against ten persons and only two persons were convicted by the trial court  and the specific role assigned to the surviving appellant  that he had assaulted injured Poojan Rai on his knee and other accused Nar Singh Rai was assigned the role of assaulting him on his head. Learned counsel for the appellant has further submitted that the accused Nar Singh Rai  had died during the trial. Learned counsel for the appellant has further submitted that the present surviving accused should not be convicted under section 307 IPC and he should have been convicted under sections 323 or 325 IPC and he has further submitted that he does not want to press the appeal on merit as the present appellant is 85 years of age.  He next submits that although the trial court has convicted the present accused on the basis of mere conjuncture while the appellant is absolutely innocent and has been falsely implicated in this case with the ulterior intention of harassing him. Further submission is that there is no bread earner in the family of the appellant. He also 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 their age related ailments.

9. Learned A.G.A. has vehemently opposed the submission made by learned counsel for the appellant. He has however, submits that if slight reduction in sentence is made, he has no objection.

10. I have perused the entire material available on record and the evidence as well as judgment of the trial court. The learned counsel for the accused-appellant does not want to press the appeal on its merit and requests to take a lenient view of the matter.

11. 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 reculturization.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."

12. 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."

13. 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."

14. 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.

15. 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.

16. 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.

17. 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."

18. Considering the facts and circumstances of the case and the substantive period already undergone by the appellant in this case and the fact that the surviving appellant is old and aged person; and he has realized the mistake committed by him and are remorseful to his conduct and feel it necessary to serve with his polite and cooperative behaviour to the society to which he belongs to and now he wants to transform themselves into a law abiding citizen, I am of the considered opinion that he should be given a chance to reform himself and extend his better contribution to the society to which he belongs to.

19. Considering the facts and circumstances of the case, considering the evidence available on record and considering that the doctor in his statement has not stated anywhere that the injuries sustained by the victim were grievous in nature and it was fatal to life, this Court deems it fit to alter the conviction from section 307/34 I.P.C. to section 324 I.P.C.

20. Consequently, taking into consideration the period already undergone in prison by the appellant in this case as well as considering that he has suffered physical and mental agony of trial and after conviction for a long period of about 45 years, the sentence awarded to him under Section 307/34 is converted under Section 324 I.P.C with a fine of Rs. 1000/- each and at this stage it does not appear appropriate to send the accused-appellant to jail.

21. Accused-appellant is directed to deposit the fine of Rs. 1,000/- before learned lower court within three months from the date of passing of the judgement, the entire amount deposited by the appellant 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 as directed above, he shall undergo simple imprisonment for a period of fifteen days.

22. Appeal is partly allowed in the above terms and surety bonds of the sureties are discharged.

23. Office is directed to transmit a copy of this order to the learned Sessions Judge, Allahabad for compliance and compliance report be submitted to this Court also.

24. Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance as warranted.

25. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the learned counsel for the applicant alongwith a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.

26. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 5.10.2021

AU