Partly allowed

Vinod Dhaikar and Another v. State of U.P.

Allahabad HC10 May 2019CRLA/5650/2016

Case brief

AI extract

What is this about?

In Criminal Appeal No. 5650 of 2016, this Court modified the conviction upheld from Sessions Trial regarding culpable homicide not amounting to murder and common intention. The primary sentence was reduced from 10 to 7 years, and the default sentence was reduced. The appeal was disposed of.

What did the court decide?

Main sentence reduced from 10 years to 7 years rigorous imprisonment; default sentence reduced from 6 months to 2 months.

Vinod Dhaikar and Another Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2019)

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Court No. - 80

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Case :- CRIMINAL APPEAL No. - 5650 of 2016

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Appellant : - Vinod Dhaikar And Another Respondent :- State Of U.P. Counsel for Appellant : - Alok Kumar Kushwaha,Amit Misra,Ashish Pratap Singh,Vishesh Kumar Counsel for Respondent : - G.A.

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Hon'ble Pradeep Kumar Srivastava,J.

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Shri Vishesh Kumar, Advocate who is appearing for appellant no. 2 has also filed Parcha alongwith supplementary affidavit on behalf of appellant no. 1, which is taken on record. Earlier counsel Shri Amit Misra, Advocate on behalf of the appellants is also present.

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At the very outset, the learned counsel for the accusedappellants has submitted that he would confine his argument to the quantum of sentence instead of arguing on bail application.

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Heard learned counsel for the appellants, Shri Ravi Prakash Pandey, and Smt. Alpana Singh, learned A.G.A. for the State and perused the record.

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Learned counsel for the accused-appellants has submitted that the appellants Vinod Dhaikar and Smt. Laxmi Devi have been convicted in Sessions Trial No. 62 of 2014, (State of U.P. Vs. Vinod Dhaikar and another), arising out of Crime No. 859 of 2013, P.S. Vindhyachal, District Mirzapur and sentenced for the offence under section 304(2)/34 I.P.C. for 10 years rigorous imprisonment and Rs. 10,000/- fine and in case of default in payment of fine 06 months additional simple imprisonment.

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Learned counsel for the accused-appellants has submitted that the accused-appellant Vinod Dhaikar is in jail since 23.12.2013 and accused-appellant Smt. Laxmi Devi is in jail

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since January, 2014. He has therefore, submitted that looking to the fact that conviction has been awarded under section 304(2)/34 I.P.C. the sentence may be reduced to undergone or it may be substantially reduced.

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Learned AGA has vehemently opposed the prayer and has submitted that both the accused persons with common intention lit the fire and burn the deceased. She has however agreed that if the sentence is slightly reduced, she has no objection. 7. 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 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,

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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 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

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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 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

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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 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

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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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Considering the fact that the accused-appellants are in jail from last 5 and ½ years continuously and also considering the fact that the death occurred after 25 days from the date of incident and the learned trial court found the accused persons guilty under section 304(2)/34 IPC, this Court is of the opinion that if the sentence is reduced by 03 years from the awarded sentence of 10 years the ends of justice will be adequately served.

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So far as quantum of fine is concerned, The trial court has only awarded Rs. 10,000/- fine which is adequate in the circumstances. However, the default sentence in lieu of fine

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may be reduced from 06 months to 02 months.

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Accordingly, the conviction is upheld. The sentence is modified and is reduced by 03 years from the awarded sentence of 10 years rigorous imprisonment under section 304(2)/34 I.P.C. and the default sentence in lieu of fine of 6 months is reduced to 02 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 :- 10.5.2019 Bhanu

Vinod Dhaikar and Another v. State of U.P.

Case brief

What is this about?

What did the court decide?

Vinod Dhaikar and Another v. State of U.P.

Case brief

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