Partly allowed

Sripati Pandey and Others v. State of U.P.

Allahabad HC11 Jan 2021CRLA/9/1987

Case brief

AI extract

What is this about?

This court decided two connected criminal appeals challenging a 1986 conviction for murder. The appellants, now senior citizens, waived challenges to conviction but sought sentence modification based on age and time served. The court affirmed convictions but substituted the prison term with the period already undergone, imposing a fine instead.

What did the court decide?

Sentence modified to the period already undergone with a fine of Rs.5,000/- and discharge of bail bonds.

Sripati Pandey and Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2021)

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Court No. - 90

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Case :- CRIMINAL APPEAL No. - 9 of 1987

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Appellant :- Sripati Pandey And Others Respondent :- State of U.P. Counsel for Appellant :- R.R. Singh,Anjani Kumar Rai,Mangla Prasad Rai,Rajiv Ratna Singh Counsel for Respondent :- A.G.A.

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Connect with

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Case :- CRIMINAL APPEAL No. - 61 of 1987

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Appellant :- Gulab Chand Respondent :- State Of U P Counsel for Appellant :- Rajive Ratn Singh,Anjani Kumar Rai

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Hon'ble Ajit Singh,J.

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The aforesaid two connected criminal appeals have arisen out of one and the same offence and therefore, both the appeals are being decided together.

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Both the criminal appeal have been filed against the judgement and dated 24.12.1986/2512.1986 and judgment and order dated 24.12.1986/01.01.1987 passed by Ist Additional Sessions Judge, Jaunpur in S.T. No. 185 of 1982 (State vs. Sripati and others), whereby learned Judge has convicted and sentenced the appellants namely Radhey Shayam, Ram Suresh, Ramjeet and Chhote Lal in criminal appeal no.9 of 1987 to one year’s rigorous imprisonment under Section 148 I.PC. and further four years’ rigorous imprisonment under Sections 307/149 I.P.C. The appellants Sripati, Babanath, Shiv Prasad, Har Prasad and Srinath were convicted and sentenced to six months’ R.I. under Section 147 I.P.C. and four years’ R.I. under Section 307/109 I.P.C. It was also directed that both the sentences shall run concurrently. Under Section 379 I.P.C. Chhote Lal and Shabhajit were acquitted.

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So far as Gulab Chand in Criminal Appeal No.61 of 1987 is concerned he was convicted and sentenced to one year’s R.I. under Section 148 I.P.C. and further four years’ R.I. under Section 307/149 I.P.C. with direction that both the sentences shall run concurrently.

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From the perusal of record it transpires that accused Sabhajeet has filed separate criminal appeal no.250 of 1987 and filing the said appeal, accused Sabhajeet had died and his appeal has been dismissed as abated, vide order dated 02.09.2020.

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So far as the accused appellant no.2 Baba Nath, accused appellant no.3 Shiv Prasad and accused appellant no.9 Shrinath in criminal appeal no.9 of 1987 are concerned, the appeal on their behalf has already been dismissed as abated, vide order dated 13.09.2017.

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In brief the prosecution story is that the accused-appellants with other co-accused made a murderous assault on one Vidhya Shankar Pandey. The said assault was made upon the injured with country made pistols with intention to kill him. It was further alleged by the prosecution that the accused appellants having been members of an unlawful assembly with a common object to commit the murder of injured Vidhya Shankar Pandey assaulted him at about 7 AM on 07.04.1980.

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It is evident from the prosecution story that FIR of this incident was lodged against as many as 11 accused persons for assaulting upon injured Vidhya Shankar Pandey. It has also been alleged that there was grave enmity between the parties and all the accused persons belonged to one group of the village. Earlier to this incident, a report was lodged on suspicion against injured Vidhya Shankar Pandey under Section 302 I.P.C. for committing murder of one Yaduvansh Dubey who was father of accused Sabhajeet, Chhote Lal and Shyam Jeet. The said criminal case of murder was still pending in court against the injured Vidhya Shankar Pandey, the first informant of the present case. The accused appellants Hari Prasad and Shiv Prasad were sons of one Ram Dawar who was a witness in that murder case. The other accused persons were the party

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man of these accused appellants. It has also been brought on record that accused Ram Suresh was successor (Nawasa) of one Chauhary Pandey of the family of first informant and litigations were pending between the first informant and Suresh aforesaid.

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It has also come on record that accused Radhey Shayam, Gulab Chand, Baba Nath, Sripati belong to one family and against them a partition case was pending and accused Gulab Chand was the scribe of the FIR of the above mentioned murder case and accused Radhey Shayam was a witness to that case. In this unfortunate case three family members are involved apart from accused Shrinath against the first informant of this case and all of them belong to one faction of the village. The accused appellant Shrinath belong to a different village but he had settled his daughter’s marriage with accused appellant Chhote Lal and as such used to visit them and was a party to their nefarious activities.

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It has also come on record that on the date of incident victim (first informant Vidhya Shankar Pandey) was going on his cycle to village Tardaha, Tehsil Patti, District Pratapgarh along with Rs.3,000/-. The said amount was to be given to the in-laws of his daughter of the said village where the marriage of his daughter was going to be solemnized shortly. The accused persons tried to commit the murder of the injured Vidhya Shankar Pandey while he was going to village Tardaha. Alarm was raised by the injured, many persons arrived and saw the incident. They snatched the country made pistol and cartridges from the accused persons. Accused Sabhajeet and Chhote Lal had taken away with them the bi-cycle and Rs.3,000/- of the first informant, injured Vidhya Shankar Pandey.

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On the complaint of injured Vidhya Shankar Pandey, FIR was registered against the accused-appellants and investigation was conducted by the police. Charge sheet was submitted against the accused-appellants and vide order dated 05.08.1983 charges were framed and trial proceedings started against the accused-appellants, which concluded into

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conviction and sentence to the accused-appellants by the impugned judgment and order narrated above.

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This Court does not want to enter into the analysis of the facts of this incident and the evidence brought on record by the prosecution as well as the evidence of the defence in view of the submission made by the learned counsel for the appellants, on instructions, that he does not propose to challenge the impugned judgement and order on its merits. The learned counsel, however, prayed for modification of the order of the sentence for the period already undergone by the appellants.

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L earned Additional Government Advocate representing the State has stated that he has no objection if the Court considers the mitigating circumstances.

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Since the learned counsel for the appellants has given up challenge to the findings of conviction and there is ample evidence including eyewitness account and medical report to base conviction, accordingly, the conviction of the appellants for the aforesaid offence stands affirmed.

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However, on the quantum of sentence, learned counsel for the appellants has argued that the appellants are not previous convict. All the surviving accused appellants are on bail. He has next submitted that the incident of this case had occurred in year 1980 and by now, more than 40 years have passed. Moreover, accused-appellants were convicted and sentenced in the year 1986 and after conviction about 33 years have passed. Accused-appellants have suffered the mental agony of punishment since the date of incident and thereafter, since the date of their conviction. Accused-appellants are senior citizens and aged about more than 65 years. He next submitted that it was the first offence of the accused-appellants and after conviction the accused had not indulged in any other criminal activity. He further submitted that on the question of legality of sentence he is not pressing this appeal and only pressing on the quantum of sentence and he has prayed for taking a lenient view considering the age of the accused and his age related ailments. At this fag end of their life it

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would not be just and proper to send the accused-appellants to jail. Rather, the impugned judgment and order be modified and sentenced passed be substituted with the period of imprisonment already undergone by the accused-appellants with a fine which this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.

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While dealing with the quantum of sentence, Hon'ble Supreme Court in B.G. Goswami Vs. Delhi Administration, 1973 AIR 1457, held as under:

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"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations, which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act, which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole.

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Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their officiousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after 7 years of the annoy and harassment of these proceedings when he is also going to lose his job and to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs- 200/- to Rs. 400/-. Period of imprisonment in case of default will remain the same."

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In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining

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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

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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."

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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 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

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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 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 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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It is also relevant to mention here that the learned counsel for the appellants has also submitted that the injured Vidya Shanker Pandey had received only pellet injuries on his face and back and doctor had never opined that the said injuries were grievous in nature or they were fatal to life of the injured. It is also submitted that the offence under Section 307 IPC is not made out in the light of the medical opinion given by the doctor. Thus, no offence under Section 307 IPC was made out but it was utmost an offence under Section 324 IPC. However, since the learned counsel for the appellants has submitted that he does not press this appeal on the legality of conviction, therefore, this Court does not interfere with the conviction part of the impugned judgments.

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Considering the facts and circumstances of the case and the substantive period already undergone by the appellants in this case and the fact that the appellants are married persons and they are having children; there is no bread winner in the family of the appellants and that they have realized the mistake committed by them and is remorseful of their conduct to the society to which they belong and now they want to transform themselves, I am of the considered opinion that the accused should be given a chance to reform themselves and be allowed to give their better contribution to the society to which they belong to.

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Consequently, the sentence is modified to the period already undergone by the appellants in this case with a direction that each of the surviving accused-appellants shall deposit a fine of Rs.5,000/- in court below within a period of four months from today and in case of default, they will serve out a simple imprisonment of one month.

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