HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. – 80
Case :- CRIMINAL APPEAL No. – 4463 of 2014
Appellant :- Ram Kumar
Respondent :- State Of U.P.
Counsel for Appellant :- Ajay Vikram Yadav,A.Kumar,Jitendra Kumar,Phool Singh Yadav,Ram Sumer Chaudhary,Shyam Sunder Mishra
Counsel for Respondent :- Govt.Advocate,Kalim Uddin
Hon’ble Pradeep Kumar Srivastava,J.
1. Heard Shri Phool Singh Yadav, learned counsel for the appellant, Shri L.D. Rajbhar and Shri Manuraj, learned A.G.A. for the State and perused the record.
2. Accused-appellant, Ram Kumar has been convicted by the judgement and order dated 15.11.2014 passed by the Special Judge, E.C. Act/ Additional Sessions Judge, Fatehpur in Sessions Trial No. 222 of 2010, arising out of Case Crime No. 03 of 2010, under Sectionsections 376 and Section506 I.P.C., P.S. Thariaon, District and sentenced for 10 years rigorous imprisonment and fine Rs. 20,000/- for the offence under Sectionsection 376 I.P.C. and in default to undergo further imprisonment of two years and also sentenced for 5 years rigorous imprisonment under Sectionsection 506(II) I.P.C. Aggrieved by the judgement of conviction and sentence passed by the learned trial court this appeal has been filed.
3. During the argument, learned counsel for the appellant has submitted that he is not arguing the appeal on merits of the judgement and conviction, he will confine his arguments on the quantum of sentence.
4. It has been submitted by the learned counsel that the accused remained in jail from 11.01.2010 to 16.11.2010 and he was bailed out by the order of this Court dated 16.10.2010 and he was finally released on bail on 16.11.2010, thereafter, he was convicted on 15.11.2014 and since then he is in jail. Therefore, the learned counsel has submitted that looking to the continuous period of accused -appellant in jail, a lenient view may be taken by the Court and he may be released either on period already undergone or his sentence may be reduced.
5. Learned AGA has agreed that he has no objection if the sentence is reduced a little.
6. 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 re-culturization. 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.”
7. SectionIn Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under Sectionsection 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.”
8. SectionIn 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 SectionJameel 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.”
9. 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.
10. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. SectionIn 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 SectionSumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , SectionState of Punjab vs Bawa Singh, (2015) 3 SCC 441, and SectionRaj Bala vs State of Haryana, (2016) 1 SCC 463.
11. SectionIn 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.
12. SectionIn Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in SectionJameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, SectionSumer Singh vs Surajbhan Singh, (2014) 7 SCC 323 , SectionState of Punjab vs Bawa Singh, (2015) 3 SCC 441, and SectionRaj 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.
13. 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.
14. The criminal jurisprudence in the country adopts corrective and reformative approach. Section 376 IPC provides 7 years minimum imprisonment for the offence of rape. At the time of commission of offence the accused-appellant was just above 18 years, as he has stated his age to be 20 years only in his statement under Sectionsection 313 of the Criminal Procedure Code. There is no criminal history shown against the convicted-accused. It is apparent from the record that from 11.01.2010 to 16.11.2010, the accused appellant was in jail (about 10 months 5 days) at the initial stage. The judgement of conviction was delivered on 15.11.2014 and since then till today he is in jail, and as such, he is continuously in jail from last 4 years and 5 months. If both the period is added, the total period during which the appellant has remained in jail is about 5 years 3 months.
15. In view of the minimum sentence prescribed under Sectionsection 376 IPC. and also considering the fact that no physical injury was caused to the victim, the sentence for the offence under Sectionsection 376 IPC if reduced from 10 years to 7 years and default sentence in lieu of sentence of fine to 3 months instead of 2 years, the end of justice would not suffer. Since the sentence under Sectionsection 506(2) I.P.C. was directed to run concurrently, therefore there is no need to disturb the sentence under that section. Accordingly, the sentence is required to be modified.
16. Accordingly, the conviction is upheld and the sentence is modified. The sentence of rigorous imprisonment under Sectionsection 376 IPC is reduced from 10 years to 7 years and the default sentence is reduced from 2 years to 3 months rigorous imprisonment.
17. With the above modification this appeal is finally disposed of.
18. Office is directed to transmit the lower court record along with copy of this judgement to the learned court below for information and necessary compliance.
Order Date :- 30.04.2019