Chandu vs State
2021 Latest Caselaw 11127 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 78							A.F.R.
 

 
Case :- CRIMINAL APPEAL No. - 1937 of 1992
 

 
Appellant :- Chandu
 
Respondent :- State
 
Counsel for Appellant :- R.K.S. Chauhan
 
Counsel for Respondent :- A.G.A.,Sharad Kumar Srivastava
 

 
Hon'ble Ajit Singh, J.

This criminal appeal has been filed against the judgement and order dated 28.10.1992 passed by Special Judge, Fatehpur in S.T. No. 70 of 1989, under Sections 307/34 and 323/34 I.P.C., P.S. Bindki, district-Fatehpur, whereby learned Judge convicted and sentenced the appellant to 4 years rigorous imprisonment under Section 307 and 307/34 I.P.C. with a fine of Rs. 500/- each, six months imprisonment under Section 323/34 and 323 I.P.C.

Both the sentences shall run concurrently.

The prosecution story in brief is that on 5.1.1988 the complainant and her husband Kali were returning back from Bindi Bazar to their village and when they reached near village-Darveshabad both the accused had assaulted them. Chandu was having a pharsa in his hand and other accused-appellant Jokhu was having lathi in his hand. Upon hearing the hue and cry Cheda Lal, Chunbad, Uma Shankar and Kallu, who were residents of the village, reached at the spot. On their exhortation, both the accused-appellants ran away from the place of occurrence. The husband of the complainant Kalideen had received injury, which was caused by 'pharsa'. The injured was taken to the hospital and during medical examination a fracture was found in his head.

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, Fatehpur framed the charge against the appellants under Sections 307/34 and 323/34 I.P.C. 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 Kalideen, PW2 Shivliya, PW3 Cheda Lal and PW4 Dr. Prem Singh. All the witnesses have specifically stated that both the accused persons had assaulted the injured and the trial court after anylising the evidence on record convicted the accused persons as aforesaid.

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 1988 and the accused-appellants were convicted in the year 1992. Accused-appellant no. 1, Chandu was 40 years of age and other accused Jokhu was 25 years of age respectively at the time of incident and at present the appellant no. 1 Chandu is more than 70 years of age and other accused Jokhu is more than 55 years of age at present. He also submits that both 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. In this incident the accused persons also suffered injuries. It is also argued that although the doctor had opined that frontal bone of the injured was fractured, yet before Court in his statement he did not depose that the injury sustained by the injured was fatal to life. 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, 323/34 IPC and they were subjected to serve out the sentence so awarded by the impugned judgment. It is also relevant to bring on record that ten days imprisonment has already been undergone by them during trial and after conviction. No case was to be made out under Section 307 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 conjuncture while the appellants are 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.

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 already undergone by the appellants in this case and the fact that the appellants are old and aged persons; there is no bread-earner in the family and by 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 behaviour 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 injury, 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 30 years, the sentence awarded to them under Section 307/34 is converted under Section 324 I.P.C with fine of Rs. 5000/- each.

Accused-appellants are directed to deposit the fine of Rs. 5,000/-each before learned lower court within three 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 undergo simple imprisonment for a period of fifteen days.

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 : 23.9.2021.

Faridul.