Rakesh And Another vs State Of U.P.
2023 Latest Caselaw 23757 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:175040-DB
 
Court No. - 44
 
Case :- CRIMINAL APPEAL No. - 897 of 2008
 
Appellant :- Rakesh And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- A.S. Kashyap,K.M.Mishra,Raghuraj Singh,Rajendra Kumar Srivastava,Satyaveer Singh,V.S.Parmar, Yogesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Umesh Chandra Sharma,J.

1. Heard learned counsel for the parties and perused the record.

2. This appeal, at the behest of the accused-appellants, challenges the judgment and order dated 23.1.2008 passed in S.S.T. No. 32 of 2007 (State vs. Rakesh and others) passed by Special Judge (D.A.A.), Agra whereby the learned Special Judge has convicted the accused-appellants under Section 364A of IPC and sentenced to life imprisonment with fine of Rs. 25,000/- each.

3. Brief facts as culled out from the record are that the father of the victim lodged a complaint before the Police Station Atmadpur on 7.8.2006 stating that his son who left home on 18.6.2006 at about 8.00 p.m. for Firozobad went missing from Atmadpur Bus Stand. It was averred in the complaint that the complainant had lodged a missing report on 27.6.2006 and, thereafter, he was kept on searching his son amongst his relatives. During that period, the complainant received many telephone calls on which he was told that his son was kidnapped and there were demands of ransom of Rs.5,51,000/-. On being enquired about call details it was found that the mobile number was with one Tinku. Amit Kumar Gupta had told his son to bring his brief case at Firozabad. It was averred that his son was working with one Ashish Parolia and Amit Kumar Gupta pressurized him to bring his brief case at Firozabad. It was averred that the complainant had suspicion that Amit Kumar Gutpa along with other persons had kidnapped his son. On the basis of above complaint, FIR was lodged against Amit Kumar Gupta under Section 364A of IPC. During investigation, the police authority recovered the victim from accused-appellants. The victim has deposed against the accused-appellants.

4. Evidence of the witnesses will not permit us to concur with the submissions of Sri Yogesh Srivastava, learned counsel for the appellants that no offence under Section 364 A of IPC is made out. P.W.3 who is a police constable, recovered the kidnapped person from the accused-persons. The witnesses who have been examined have testified to the effect that the accused were the one who had kidnapped the son of the complainant. There were call details also which were traced by the investigating authority and, therefore, we are unable to accept the submission that there is faulty investigation.

5. After the aforesaid observation of this Court, learned counsel for the appellants has made alternative prayer that the accused-appellants may be given fixed term punishment and they will be given chance to reform themselves.

6. Learned A.G.A. for the State submits that the manner with which the victim was kidnapped and was kept in their custody and the judgment of the Apex Court will not permit this Court to show any leniency in this matter.

7. The accused-appellants are in jail for more than 20 years with remission. They are now 50 years of age. The conviction is basically based on the testimony of police authority as well as the kidnapped person namely, P.W.1, whose testimony has been threadbare discussed by us.

8. While going through the facts and circumstances of the case, we hold that the accused be kept in jail for 17 years. We rely upon the decision of the Apex Court in Vikas Yadav vs. State of U.P. and Others Etc., (2016) 9 SCC 541 wherein the Apex Court has held that the High Court has power to give fixed term punishment in cases where life imprisonment is imposed. This is not that gruesome case where the life imprisonment can be said to be life till last breath. The Apex Court in Vikas Yadav Case (Supra) have granted fixed term punishment.

9. We are also gone on to analyse the theory of punishment prevailing in India which is as under :

10. 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."

11. '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 proportionality'. 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.

12. 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.

13. 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.

14. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.

15. In view of the above, we grant 15 years' fixed term sentence to both the accused-appellants. The fine is reduced to Rs.10,000/- each. The fine, if yet not deposited, will be deposited within four weeks from the date of release from jail. The jail authority shall see that the accused-appellants are lodged in the jail to re-incarcerate for the default period, if fine is not paid. The accused-appellants be released on completion of their sentence.

16. In view of the above, this appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. The impugned judgment and order shall stand modified to the aforesaid extent.

Order Date :- 29.8.2023

DKS