Faqir Ahmad And Others vs State
2021 Latest Caselaw 11160 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 78
 

 
Case :- CRIMINAL APPEAL No. - 2465 of 1988
 

 
Appellant :- Faqir Ahmad And Others
 
Respondent :- State
 
Counsel for Appellant :- Braham Singh,Abhai Saxena
 
Counsel for Respondent :- A.G..A.
 

 
Hon'ble Ajit Singh,J.

As per order of this Court dated 28.9.2021, the appeal in respect of appellant no. 1 Faqir Mohd son of Imam Bux and appellant no. 4 Banney son of Mola Bux is abated.

Sri Abhai Saxena, learned Advocate is pressing this appeal on behalf of surviving appellant no. 2 Abdul Majid and appellant no. 3 Mushtaq.

This criminal appeal has been filed against the judgement and order dated14.10.1988 passed by Spl. Judge & Addl. Session Judge, Moradabad in S.T. No. 42 of 1985 (State vs. Faqir Mohammad and others), under Sections 379, 411, 307 I.P.C. and Section 25 Arms Act, P.S. Bilari, district-Moradabad, whereby learned Judge convicted and sentenced the appellants to 3 years rigorous imprisonment each under Section 411 I.P.C. and appellant no. 1 was convicted to 5 years rigorous imprisonment under Section 307 I.P.C. and appellant no. 2 was convicted to 2 years rigorous imprisonment under Section 25 Arms Act.

It was also directed that all the sentences shall run concurrently.

The prosecution story in brief is that on the intervening night of 20/21.9.1983 at about 3:00 A.M. the police had arrested four accused persons from the jungle of Village-Raipur, P.S. Bilari, while they were committing theft of electric wire. When S.H.O. Bhim Sen along with his team raided at the jungle, after seeing the police party, accused Faqir Mohammad with the intention to kill the police personal, fired at the police party with his pistol. Thereafter, he was caught by the police team and one country made pistol, live cartridges were allegedly recovered from his possession. The police team has also recovered stolen electric wire from the possession of the other accused persons.

At the very outset, learned counsel for the appellant, 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 on 20/21.9.1983 and the accused-appellants were convicted for three years Rigorous Imprisonment under Section 411 I.P.C. Appellant no. 1 Faqir Mohammad was also convicted for five years R.I. under Section 307 I.P.C. and three years R.I. Under section 25 Arms Act. At present accused appellant no. 2 Abdul Majid is aged about 75 years and accused-appellant no. 3 Mushtaq is aged about 62 years. He next submits 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 accused-appellants on the basis of mere conjuncture while the appellants are absolutely innocent and have been falsely implicated in this case. Further submission is that accused-appellants are on bail since 27.10.1988 and prior to that they were in jail for sometime and therefore, he has requested that a lenient view may be adopted and the sentence may be converted either undergone or the sentence may be substantially reduced. 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 lenient view considering the age of the accused and his 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."

Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive. This Court considers 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 appellants, considering the facts and circumstance of the case, considering that the alleged incident which took place in the year 1983 about 38 years ago and now accused-appellants are more than 60 and 70 years of age respectively, at this stage, this Court feels that it would not be proper to sent the accused-appellants to jail at the fag end of their life and the accused were on bail since 27.10.1988 and the accused persons have suffered the agony of conviction for more than 38 years and no criminal antecedents have been shown to their credit after passing of so much long period out of jail. It has been pointed out by learned counsel for the accused-appellants that the accused-appellants had remained in jail for sometime during trial and after conviction. Considering section 411 I.P.C., which says that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 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 enhanced.

Considering all the facts and circumstances of the case, the accused-appellants are sentenced to the period already undergone by them in jail during trial and an amount of fine of Rs. 1,000/- each be imposed instead of sending them to jail.

Accused-appellant is directed to deposit the fine of Rs. 1,000/- each before learned lower court within two months from the date of passing of the judgement and in default of payment of fine accused-appellants shall further undergo 15 days simple imprisonment.

Appeal is partly allowed in the above terms.

Copy of this order be transmitted to the concerned lower court forthwith for compliance.

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 : 30.9.2021.

Faridul.