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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 30
Case :- CRIMINAL APPEAL No. – 447 of 1998
Appellant :- Sundar Lal
Respondent :- State of U.P.
Counsel for Appellant :- S.N.Saxena,Alok Singh,G.C. Verma
Counsel for Respondent :- Govt. Advocate
Hon’ble Suresh Kumar Gupta,J.
1. This criminal appeal has been preferred by the appellant against the judgment and order dated 21.7.1998 passed by I-st Additional District and Sessions Judge, Lakhimpur Khiri in Session Trial No.415 of 1991, Crime No.121A/89, under Section 376, 511, 452 I.P.C. , Police Station- Mailani, District- Lakhimpur Khiri, convicting the appellant under Sections 452, 354 I.P.C. and sentencing him under Section 452 I.P.C. for two and a half years R.I. with fine of Rs.1000/- in default three months simple imprisonment and under Section 354 I.P.C. for six months rigorous imprisonment and all sentences to run concurrently.
2. Brief facts of the case are that the first information report lodged by P.W.-2 Itwari Lal against the appellant and other co-accused with allegation that on 26.10.1989 at about 2:00 p.m. Sundar son of Bodhe, Sukkha Singh son of Dayal Singh resident of Imaliya Kothhi, P.S. Mailani, District- Kheri and Shyamu Pandit resident of Gola, District- Lakhimpur Kheri came to the village by scooter, all of them, were under the influence of alcohol and stopped the scooter near Itwari’s house and all these persons entered his house and grabbed his daughter-in-law. Accused Sukkha Singh slammed her and outrage the modesty of Maharani and attempt to commit rape upon her, when daughter-in-law Maharani shouted, then elder daughter-in-law Brijrani rushed to the spot and then the appellant Sundar dragged the daughter-in-law Brijrani and molested her and attempted to commit rape upon her and the third accused Shyamu Pandit extended threat to the daughter in law to face dire consequences, during altercation, his sons Chheda Lal, Jagannath and several members of vicinity rushed to the spot and inflicted injuries to accused Sukkha Singh, Sundar and Shyamu Pandit, son of the first informant has also got injury. In exercise of right of private defence, injury was also inflicted to co-accused Sukkha Singh and due to fatal injury the accused Sukkha Singh died later on at the spot. The deceased Sukkha Singh left his sleepers on the spot and other accused persons fled away from the spot due to terror and fear by the Sikh community he could not immediately lodge the F.I.R. against the accused. With this allegation F.I.R. was lodged in Police Station- Mailani, District- Lakhimpur Kheri on 28.10.1989 at 18:30 p.m. against the appellant and other accused persons in Case Crime No.121A/89 under Sections 452, 376, 511, 323 and 506 I.P.C.
3. After lodging the F.I.R., the case was handed over to the Investigating Officer and during investigation, the Investigating Officer Basant Lal Saroj rushed to the spot and prepared site plan Ex.Ka.-5 and also recorded the statement of the victim and other eye witnesses and after collecting the evidence and completing the formalities of the investigation filed the charge sheet against the appellant Sundar and co-accused Shyamu Pandit. During trial Shyamu Pandit reported to be no more, so trial against Shyamu Pandit was abated by the trial court. After filing of the charge sheet cognizance was taken by the Magistrate and committed the case for trial before Sessions Court which was registered as Sessions Trial No.415 of 1991.
4. Learned Additional Sessions Judge-III, Lakhimpur Kheri framed the charges against the appellant under Sections 452, 376 and 511 I.P.C. on 05.02.1992. The charges read over to the accused, they denied the charges levelled against them and claimed to be tried.
5. In order to prove its case, prosecution examined four witnesses, P.W.-1, Head Constrable, Hari Prasad Pal, who proved the chik report as Ex.Ka.1 and copy of G.D. as Ex.Ka.-2. P.W.-2 Itwari was examined as prosecution, who proved the written report as Ex.Ka.-3 who support the version of prosecution and P.W.-3 is victim, who reported to himself as an eye witness (victim elder daughter-in-law of the first informant). She narrated the entire version of the prosecution and she prayed before the court that accused Sukkha Singh outraged the modesty of her sister-in-law (Devrani) and the appellant Sunder outraged her modesty and due to her shouting and protest several persons of village rushed to the spot and villagers inflicted several injuries to Sukkha and Sukkha died on the spot and then other appellants fled away from the spot. P.W.-4 another victim, younger daughter-in-law of the first informant examined as P.W.-4 who also supported the version of the prosecution. After examining these four witnesses, prosecution closed his evidence.
6. Statement of the accused-appellant was recorded under Section 313 Cr.P.C. and he clearly stated in his statement that the informant’s son Chhiddu and Nathhu intentionally murdered to the co-accused Sukkha and he was also beaten by Chhiddu and Nathhu and in order to save his skin false and frivolous F.I.R. was lodged by Itwari, father of Chhiddu and Nathhu. After the statement of the appellant, Investigating Officer Basant Lal Saroj was examined as court witness, who proved the site plan as Ex.Ka.-5 and charge sheet as Ex.Ka.-4.
7. After hearing the prosecution version, learned trial court convicted the accused appellant as aforesaid.
8. Feeling aggrieved and dissatisfied with the impugned judgment and order of the trial court, the appellant has preferred this appeal.
9. I have heard Sri G.C. Verma, learned counsel for the appellant, learned A.G.A. for the State and perused the record.
10. Learned counsel for the appellant submitted that F.I.R. is delayed by two days and there is no plausible explanation given by the prosecution and allegation of attempt to rape is simple peshbandi and to defence in murder case, which is not believable and has submitted that the statement of alleged victims regarding assault for molestation filled with contradiction and exaggeration, so the whole prosecution story concocted and fabricated and no reliance can be placed.
11. Lastly, learned counsel for the appellant submitted that he is not pressing the criminal appeal and only prayer of the appellant is that the case is very old and presently the appellant is languishing in jail in pursuance of non-bailable warrant issued by this Court.
12. Learned counsel for the appellant submitted at the bar that now he does not want to argue the appeal on merits. He only wants to advance his submission only on the quantum of sentence awarded to the accused.
13. Learned A.G.A. on behalf of the State supported the impugned judgment and order of learned trial court and submitted that the appeal has no force and is liable to be dismissed.
14. Not pressing the criminal appeal after the conviction of the appellants by the Court below is like the confession of the offence by the accused-appellants. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.
15. In the case of Sevaka Perumal etc. Vs. State of Tamil Nadu AIR 1991 SC 1463, the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:
“Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.”
16. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. No formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly asses various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
17. Appropriate sentence is the cry of the society. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed.
18. In Gopal Singh Vs. State of Uttrakhand JT 2013 (3) SC 444 held as under:-
“18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence …..”
19. It is not disputed that this case is the outcome of cross case which was instituted by appellant against the Nathu and Cheddu son of first informant Itwari Lal in Case Crime No.121A/89 under Section 302/307 I.P.C., Police Station- Mailani, Distt. Kheri and also it is not disputed that the accused-appellant presently is in jail in pursuance of non-bailable warrant issued by this Court on 03.02.2021. The appellant was sent to jail on 19.2.2021 and since then, presently the appellant is still languishing in jail.
20. Apart from this, after lodging of the F.I.R., the appellant was arrested on 18.01.1990 and the appellant was granted bail by the Sessions Court on 6.2.1990 and the appellant was released on bail on 7.2.1990. After conviction, the appellant was sent to jail on 21.7.1998 and bail was granted to the appellant by this Court on 5.8.1998 after furnishing of bail bond and the appellant was released on 10.8.1998. Thus, the total incarceration period of the appellant is more than six months. Alleged date of incident is 26.10.1989. In the year 1989, no minimum sentence provided under under Section 354 I.P.C. Section 354 I.P.C. reads as – “whoever assaults or use criminal force to any woman, intending to outrage or knowing to likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for term which may extend to two years or with fine or with both” even under Section 452 I.P.C. no minimum sentence prescribed, only punishment with imprisonment which may extend to seven years provided.
21. Presently the appellant is a senior citizen aged about 65 years, presently in pursuance of non-bailable warrant issued by this Court appellant is languishing in jail. So I am of the opinion, that end of justice would be served, if the appellant’s sentence is reduced to the period already undergone by him in jail. So, the total sentence of two and a half years is reduced to the period already undergone by the appellant in jail but fine clause shall be unaltered.
21. The appeal is partly allowed on the point of quantum of sentence awarded to the appellant and the appeal is dismissed on the point of conviction.
22. Presently, appellant is in jail so the Superintendent of Jail concerned is hereby directed to release the appellant forthwith.
23. The record of this case be transmitted to the trial court for necessary compliance and release the appellant forthwith.
Order Date :- 30.07.2021