Zahid @ Zabir vs State Of U.P.
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Allahabad High Court

Zahid @ Zabir vs State Of U.P. on 1 February, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:17831
 
Court No. - 84
 

 
Case :- JAIL APPEAL No. - 63 of 2023
 

 
Appellant :- Zahid @ Zabir
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Arvind Kumar Singh,Prateek Samadhiya
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Nalin Kumar Srivastava,J.
 

1. Present jail appeal has been filed on behalf of accused appellant - Zahid @ Zabir against the judgment and order dated 30.8.2022/1.9.2022 passed by the Additional Sessions Judge/FTC-1st, Bareilly in Session Trial No.109 of 2018, arising out of Crime No. 532 of 2017, P.S. Faridpur, District- Bareilly whereby the appellant has been convicted under Sections 392, 411 IPC and sentenced to undergo seven years rigorous imprisonment for the offence under Section 392 IPC with a fine of Rs. 5,000/-, in default thereof, to undergo three months additional imprisonment and to undergo three years rigorous imprisonment for the offence under Section 411 IPC, with a fine of Rs. 3,000/-, in default thereof, to undergo two months additional imprisonment. All the sentences were directed to run currently.

2. The prosecution story, in nutshell, is that on 24.9.2017 the informant Swamidayal was sleeping alongwith his wife Suman and son Mukesh under a tarpaulin. It was raining outside. In the night at around 12.30 he heard a knocking sound inside the house and when he asked who was there, four people appeared and one of them pointed a gun at him and said that if he made any noise, they would cause sabotage. His son and wife also woke up and the miscreants also got the gold earrings worn in the ears of informant's wife removed and fled away. The informant found that the box was open and Rs. 4000 in cash, one gold ring, 6-7 pairs un-stitched clothes, two umbrellas and a mobile phone were missing. F.I.R. was lodged and after investigation of the case charge-sheet was filed against the accused persons. The accused denied the charges by pleading not guilty and claimed to be tried.

3. In order to prove its case, the prosecution produced P.W.-1, the informant, P.W.-2, Smt. Suman, wife of the informant, P.W.-3, Smt. Asha Devi - witnesses of fact, P.W.-4, S.I. Shyamlal and P.W.-5, Inspector Rajesh Singh.

4. The accused in his statement under under Section 313 Cr.P.C. categorically denied the truthfulness of evidence produced against him. He also stated that the recovery is false. No defence evidence was adduced by the accused.

5. P.W.-1, P.W.-2 and P.W.-3 are the witnesses of fact who have corroborated the facts of the prosecution version in their deposition. P.W.4 has proved the recovery of articles and P.W.-5 has proved the proceedings of the investigation. Ext. k-1, fard baramdgi, Ext. ka-2, tehrir, Ext. ka-2A, map, Ext. ka-3, nakal rapat sankhya 10, Ext. ka-4, map of place of recovery, , Ext. ka-6, charge sheet, Ext. ka-7 chik F.I.R. and Ext. ka-8 copy of G.D., have been proved.

6. Having heard both the sides and after analyzing the evidence on record the learned trial court found that the prosecution has succeeded to prove its case beyond reasonable doubt and recorded conviction of the accused -appellant and sentenced him, as mentioned here-in-above.

7. Heard Shri Arvind Kumar Singh, learned Amicus Curiae for the appellant and Shri Nitesh Kumar Srivastava, learned AGA for the State and perused the record.

8. Learned Amicus Curiae appearing for the appellant, at the outset, submitted that he does not wish to press the appeal on merits and to confine his arguments to the sentence part only. It is submitted that the sentence recorded by the learned trial court is too severe and harsh. The appellant was a young man at the time of incident and has already spent more than six years of incarceration out of the maximum sentence of seven years and must be a repenting man.

9. Learned AGA opposed the prayer.

10. I have considered the rival submissions made by the learned counsel for the parties and gone through the entire record including the impugned judgment.

11. Though the learned Amicus Curiae appearing for the appellant has not pressed the appeal on merits but after perusing the record including the impugned judgment and the findings recorded by the trial court therein, I am of the view that the findings recorded by the trial court in the impugned judgment are in accordance of facts and evidence on record and no interference is warranted with the same.

12. The submissions made by the learned counsel for the appellant take me to the quantum of sentence, specifically under Section 392 IPC, where seven years imprisonment has been awarded by learned trial court. For awarding the sentence, the Court has to keep in mind the theories of punishment in our country.

13. Explaining rehabilitating and reformative aspects in sentencing while discouraging the retributive theory, the reformative theory of the sentence has been impressed upon by the Hon'ble Apex Court in Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926. It has been observed by the Hon'ble 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."

14. On the other hand, in Deo Narain Mandal Vs. State of UP, (2004) 7 SCC 257, it was observed that while determining the quantum of sentence, the Court should bear in mind the 'principle of proportionality'.

15. If I translate the legal theories rendered by the Hon'ble Apex Court in various judgments, such as, Ravada Sasikala vs. State of A.P., AIR 2017 SC 1166, Jameel vs State of UP, (2010) 12 SCC 532, Guru Basavraj vs. State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, State of Punjab vs. Bawa Singh, (2015) 3 SCC 441, Raj Bala vs. State of Haryana, (2016) 1 SCC 463, Sham Sunder vs. Puran (1990) 4 SCC 731, M.P. vs. Saleem, (2005) 5 SCC 554 and Ravji vs. State of Rajasthan, (1996) 2 SCC 175, the settled legal position, which emerges out before us, is that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the Court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the Courts would operate the sentencing system, so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The Court will be failing in its duty, if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant, but it should conform to and be consistent with the atrocity and brutality in which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'.

16. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.

17. The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka, 2010 (87) AIC 43 (SC), where appeal was filed by convict husband in a dowry death case, while deciding the appeal of the appellant, modified the sentence. Paragraph 31 of the said judgment is reproduced below:

"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I. P. C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I. P. C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."

18. Applying the principles laid down by the Apex Court in the aforesaid judgements, as discussed above that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system and having regard to the totality of the facts and circumstances of the case and the fact that the appellant has served out more than six years sentence out of the maximum sentence of seven years awarded by the trial court to him, nature and gravity of offence and adopting the same reformative approach, the Court considers that no accused person is incapable of being reformed and, therefore, all measures should be applied in order to bring them in the social stream.

19. Keeping in view the reformative theory of punishment and "doctrine of proportionality", and the fact that the appellant is in jail since 6.10.2017 i.e. for the last more than six years and this fact is also admitted by learned AGA, I am of the considered view that since the appellant has already served-out more than six years of sentence, out of the maximum sentence of seven years awarded to him vide the impugned judgement and order, the sentence of seven years rigorous imprisonment under Section 392 IPC may be and is converted into the sentence already undergone, which would meet the ends of justice.

20. The jail appeal, confirming the conviction of the appellant under Sections 392 and 411 IPC, is, accordingly, partly allowed, subject to the above modification of sentence without any interference in respect of sentence of fine or default clause.

21. Copy of this judgment alongwith lower court record be sent forthwith to the Court concerned for compliance. A copy of this order be also sent to appellant through concerned Jail Superintendent.

22. Shri Arvind Kumar Singh, learned amicus curiae has assisted the Court very diligently. The Court directs that he shall be paid counsel's fee as Rs. 7000/-. The High Court Legal Services Committee is directed to ensure payment of aforesaid fee without any delay and in any case within 15 days from the date of receipt of copy of this judgment.

Order Date :- 1.2.2024

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