Partly allowed

Rishi Pal v. State of U.P.

Allahabad HC24 May 2019CRLA/2385/2014

Case brief

AI extract

What is this about?

In this criminal appeal challenging the quantum of sentence, the High Court upheld the conviction but modified the default sentence for the offence of rape (IPC 376) by reducing it by one month. The court balanced reformative principles with the need for proportionate punishment.

What did the court decide?

The default sentence in lieu of fine for the offence under section 376 IPC is reduced by one month.

Rishi Pal Vs State of U.P. — Pension and Retirement Benefits | Allahabad HC (2019)

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Court No. - 80

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Case : - CRIMINAL APPEAL No. - 2385 of 2014

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Appellant : - Rishi Pal Respondent :- State Of U.P. Counsel for Appellant : - Satyendra Narayan Singh,Ravi Prakash Singh,Shiv Prakash Tiwari Counsel for Respondent :- Govt. Advocate

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Hon'ble Pradeep Kumar Srivastava,J.

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Heard Shri Shiv Prakash Tiwari, learned counsel for the appellant, Mrs. Alpana Singh, learned A.G.A. for the State and perused the record.

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Learned counsel for the accused-appellant Rishi Pall has submitted that instead of arguing on bail application he will argue on the appeal on merits.

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At the very outset, learned counsel for the accusedappellant has submitted that the accused-appellant Rishi Pal has been convicted in Sessions Trial No. 1198 of 2007, arising out of Case Crime No. 1256 of 2007, P.S. Katghar, District Muradabad and sentenced for the offence under section 363 I.P.C. for 03 years rigorous imprisonment and Rs. 500/- fine and in default in payment of fine 15 days additional imprisonment, for the offence under section 366 IPC for 05 years rigorous imprisonment and Rs. 1000/- fine and in default in payment of fine 01 month additional imprisonment, for the offence under section 504 IPC for 01 years rigorous imprisonment and section 376 IPC for 07 years rigorous imprisonment and Rs. 2000/- fine and in default in payment of fine 02 months additional imprisonment. It has been directed by the court below that all the sentence shall run concurrently.

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Learned counsel for the appellant has submitted that he

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will not argue the appeal on the conviction but he will argue the appeal only on the quantum of sentence. He has further submitted that the convicted-accused is in jail for more than 06 years and he has been convicted for the offence under section 376 IPC for 07 years rigorous imprisonment, therefore, his first contention is that this period of imprisonment should be considered sufficient and the sentence may be considered undergone or some reduction may be made in the terms of sentence.

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Learned AGA has vehemently opposed the prayer and has also submitted that the convicted-accused was very rightly convicted by the learned trial court on the basis of evidence on record. She however, submitted that if the sentence is slightly reduced, she has no objection.

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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:

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“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

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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.”

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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:

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“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.”

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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:

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“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

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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.”

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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.

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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

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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.

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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.

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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

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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.

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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.

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Learned AGA has further submitted that 07 years imprisonment is the minimum term for which the accusedappellant has been awarded for the offence under section 376 IPC and there is no such situation in which the minimum term can be reduced further.

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Learned counsel for the appellant has further submitted

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that if some relaxation may be made so that accused-appellant may be released sooner from the jail and for the purpose he has argued that the default sentence may be reduced or the sentence of fine may also be reduced.

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From the perusal of the record and considering the argument of the learned counsel for the appellant, it is clear that the sentence of fine under section 363 IPC has been awarded Rs. 500/- and in default 15 days additional imprisonment, which appears to be adequate. For the offence under section 366 IPC the learned trial court has sentenced a fine of Rs. 1000/- and in default one month additional imprisonment has been imposed, It also appears to be adequate. For the offence under section 376 IPC sentence of fine is Rs. 2000/- which appears to be adequate, the default sentence is 02 months, therefore, in the offence under section 376 IPC, the default sentence of two months, if reduced by one month, the end of justice will be adequately served.

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Accordingly, the conviction is upheld. The default sentence in lieu of fine for the offence under section 376 IPC is reduced by one months.

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With this modification, the appeal is finally disposed of .

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Office is directed to transmit the lower court record along with copy of this judgment to the learned court below for information and necessary compliance as warranted.

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Order Date :- 24 .5.2019 Bhanu

Rishi Pal v. State of U.P.

Case brief

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Rishi Pal v. State of U.P.

Case brief

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