Faqirey vs State Of U.P.
2021 Latest Caselaw 11193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 78							     A.F.R.
 

 
Case :- CRIMINAL APPEAL No. - 981 of 1983
 

 
Appellant :- Faqirey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- P.N.Lal,P.K.Srivastava
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Ajit Singh, J.

As per order of this Court dated 1.11.2018, the appeal in respect of appellant no. 4 Bhoop Ram son Ganga Ram is abated.

Sri Javed Habib, learned Advocate is pressing this appeal on behalf of surviving appellant no. 1 Faqirey, appellant no. 2 Hori and appellant no. 3 Makhan.

This criminal appeal has been filed against the judgement and order dated 22.4.1983 passed by Addl. Sessions Judge, Pilibhit in S.T. No. 19 of 1983 (State vs. Faqirey and others), under Section 307 I.P.C., P.S. Sarkhera, district-Pilibhit, whereby learned Judge convicted and sentenced the appellants to 4 years rigorous imprisonment under Section 307 read with 34 I.P.C.

The prosecution story in brief is that there was dispute between the accused-appellants Bhoop Singh, Fakrey, Hori and Ram Gulam, cousin brother of complainant Parmeshwari Dayal regarding 'Mendh'. About 20 to 25 days before the incident dated 11.1.1981 Parmeshwar Dayal had slapped accused Faqirey, following which the accused Faqirey and his other family members become enmical with the complainant. On 11.1.1981 at about 1:00 O'clock in the noon when the complainant was taking bath near the well of his house, the accused Faqirey, Hori, Bhoop Ram and Makhan reached there. Accused Makhan was armed with S.B.B.L. Gun, accused Faqirey and Hori armed with country made pistol and accused Bhoop Singh armed with lathi surrounded him. Accused Faqirey exhorted other accused persons to kill Parmeshwari Dayal as a revenge of his having slapped him. On his exhortation accused Makhan, Hori Lal and Faqirey himself fired with intention to kill, fired upon him with their respective firearms, as a result of which the complainant sustained firearm injuries on his back and buttocks. The incident was witnessed by Fatehy Chand (PW-2) and Gokul Prasad.

As the case was exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions and learned Additional Sessions Judge, Pilibhit framed the charge against the appellants under Sections 307/34 to which the appellants pleaded not guilty and claimed to be tried.

To bring home guilt of the appellants, the prosecution examined four witnesses. PW1 Parmeshwar Dayal (injured), PW2 Gokul Prasad, PW3 Constable Ram Kirpal, who prepared the chik FIR, PW4 S.H.O., Ram Niwas Sharma, PW5 Dr. K.P. Dubey, PW6 Dr. A.K. Srivastava.

PW5 Dr. K.P. Dubey has examined the injured/complainant (PW1) and found following injuries on the person of the injured ;

"1. Multiple gun-shot injureis in an area of 25cm x 24cm each of the size of 0.2cm x 0.2cm x depth kept under observation over both the buttocks extending upto the level of 4th lumber vertibrae back side. No blackening or tattooing was present around the wound.

2. Abrasion 2cm x 1cm over the left side leg in anterior aspect middle 1/3rd."

The doctor in his opinion has stated that injury no. 1 was caused by firearm and injury no. 2 by friction of some hard object. Injury no. 2 was simple in nature, while injury no. 1 was kept in observation.

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 appellant.

In furtherance to his submission, the learned counsel for the accused-appellants submits that the incident had taken place in the year 1981 and the accused-appellants were convicted in the year 1983. Accused-appellant no. 1 Faqirey was 21 years of age, accused-appellant no. 2 Hori was 28 years of age and accused-appellant no. 3 Makhan was aged about 34 years respectively at the time of incident and at present the appellant no. 1 Faqirey is more than 62 years of age, appellant no. 2 Hori is around 20 years of age and accused Makhan is more than 75 years of age at present. He also submits that all the accused-appellants are absolutely innocent and they had not intended to assault but it happened at the spur of moment without any premeditation due to an altercation that took place between the injured and the accused-appellants. It is also argued that although the doctor had opined that multiple radio opaque foreign body shadows seen on both the buttocks and lumber region, yet before Court in his statement he did not depose that the injury sustained by the injured was fatal to life. No blackening or tattooing was present around the wound. He also submits that the medical evidence was not such which could make it out an offence against the accused appellants to be punishable under Section 307 I.P.C., still the accused appellants were convicted under Section 307/34 and they were subjected to serve out the sentence so awarded by the impugned judgment. It is also relevant to bring on record that about two months' imprisonment has already been undergone by them during trial and after conviction. No case was to be made out under Section 307/34 IPC, but at the most it was squarely covered under Section 324 I.P.C. as the ingredients of an offence punishable under Sections 307/34 IPC were not present in this matter nor it was proved by the prosection to be a case made out under Section 307/34 IPC beyond reasonable doubt and the offence under Section 307 or 307/34 IPC is made out only if the injuries sustained by the injured were likely to cause death. Since this was not the case made out here from the medical evidence, therefore, the offence, if any, will be covered under Section 324 I.P.C. Further submission is that it was the first offence of the accused and after conviction the accused had not indulged in any other criminal activity. He next submits that although the trial court has convicted the present accused on the basis of mere conjunctures while the appellants are absolutely innocent and has been falsely implicated in this case with the ulterior intention of harassing him. 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.

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.

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-appellants does not want to press the appeal on its merit and requests to take a lenient view of the matter.

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."

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."

Considering the facts and circumstances of the case and the substantive period of about two months already undergone by the appellants in this case in prison and the fact that the appellants are old and aged persons; so far they have realized the mistake committed by them and are remorseful to their conduct and feel it necessary to serve with their polite and cooperative behavior to the society which they belong to and now they want to transform themselves into a law abiding citizen, I am of the considered opinion that they should be given a chance to reform themselves and extend their better contribution to the society to which they belong to.

Considering the facts and circumstances of the case, considering the evidence available on record and considering the nature of injuries and statement of the doctors, who were examined in the trial court, have not stated anywhere in their statements that the injuries sustained by the injured were fatal to life and they were likely to cause death, this Court deems it fit to alter the conviction from section 307/34 I.P.C. to section 324 I.P.C.

Consequently, taking into consideration the period already undergone in prison by the appellants in this case as well as considering that they have suffered physical and mental agony of trial and after conviction for a long period of about 40 years, the sentence awarded to them under Section 307/34 is converted under Section 324/34 I.P.C. The accused-appellants are convicted with the period already undergone by them in prison during trial and after conviction and with a fine of Rs. 10,000/-.

Accused-appellants are directed to deposit the fine of Rs. 10,000/-each before learned lower court within four months from the date of passing of the judgement, the entire amount deposited by the appellants 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, they shall further undergo 30 days rigorous imprisonment.

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

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.

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

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.

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.

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 : 6.10.2021.

Faridul.