# Amar Pal (In Jail) v. State of U.P

- **Citation:** (2023) 5 ILRA 535
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-02
- **Case number:** Criminal Appeal (U/S 374 Cr.P.C.) No. 3129 of 2010
- **Bench:** Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-pal-in-jail-v-state-of-u-p-49238
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,
1860-
Sections
323/34,
325/34, 307/34 & 393-Challenge toConviction-the evidence on record shows
that
accused-appellant
demanded
in
extortion (Dhauns) two bottles of liquor
and Rs. 10,000/- which was refused by
injured who was working as Sales Man at
the Wine shop of one person and as such
the accused-appellant became furious and
caused bodily injuries, which has been
reported to be grievous in nature and
were on vital part (upper chest region) of
injured, who remained under medical
treatment for several days-The learned
Trial Court after discussing the evidence
and statement of the witnesses in detail
have rightly come to the conclusion that
there is uniformity in the oral and
documentary evidence produced by the
prosecution and as such the prosecution
story
cannot
be
doubted-Held,
the
appellant has already faced the agony of
the protracted prosecution-he has served
out more than four years of his sentence
and that accused-appellant alone cannot
be held responsible for long delay in
disposal of this appeal-Considering all
aspects of the matter, , it will be in the
interest of justice that his sentence be
reduced to the period of sentence already
undergone.(Para 1 to 36)

B. The term 'Proper Sentence' was
explained in Deo Narain Mandal's Case
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
proportionality'. 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.
(Para 29, 30)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

5 All. Amar Pal Vs. State of U.P.
535
Order

The appeal is allowed and the impugned
order of conviction and sentencing dated
13.12.2019 is hereby quashed. Let the
appellant be set free from jail. This order be
sent immediately to the Jail Superintendent
concerned. Lower Court record be sent back
along with a copy of this judgment.

Further Order

After we pronounced the judgment,
we are told that there is marriage of the
daughter of the appellant. We, therefore,
direct the Registry to send operative
portion of this judgment to the Jail
Authority by E-mail so that the appellant be
set free on or before 3rd of May, 2023, with
compliance to this Court.
----------
(2023) 5 ILRA 535
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2022

BEFORE

THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal (U/S 374 Cr.P.C.) No. 3129 of
2010
And
Criminal Appeal No. 3379 of 2010

Amar Pal ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Ramanuj Tripathi, Sri Abhishek Mayank

Counsel for the Respondent:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,
1860-
Sections
323/34,
325/34, 307/34 & 393-Challenge toConviction-the evidence on record shows
that
accused-appellant
demanded
in
extortion (Dhauns) two bottles of liquor
and Rs. 10,000/- which was refused by
injured who was working as Sales Man at
the Wine shop of one person and as such
the accused-appellant became furious and
caused bodily injuries, which has been
reported to be grievous in nature and
were on vital part (upper chest region) of
injured, who remained under medical
treatment for several days-The learned
Trial Court after discussing the evidence
and statement of the witnesses in detail
have rightly come to the conclusion that
there is uniformity in the oral and
documentary evidence produced by the
prosecution and as such the prosecution
story
cannot
be
doubted-Held,
the
appellant has already faced the agony of
the protracted prosecution-he has served
out more than four years of his sentence
and that accused-appellant alone cannot
be held responsible for long delay in
disposal of this appeal-Considering all
aspects of the matter, , it will be in the
interest of justice that his sentence be
reduced to the period of sentence already
undergone.(Para 1 to 36)

B. The term 'Proper Sentence' was
explained in Deo Narain Mandal's Case
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
proportionality'. 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.
(Para 29, 30)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Accused ''X' Vs St. of Mah. (2019) 7 SCC 1
536 INDIAN LAW REPORTS ALLAHABAD SERIES
2. St. of M.P. Vs Udham & ors. (2019) 10 SCC
300

3. Mohd. Giasuddin Vs St. of A.P. (1977) AIR
SC 1926

4. Deo Narain Mandal Vs St. of U.P. (2004) 7
SCC 257

5. Ravada Sasikala Vs St. of A.P. (2017) AIR SC
1166

6. Jameel Vs St. of U.P. [(2010) 12 SCC 532

7. Guru Basavraj Vs St. of Karn. (2012) 8 SCC
734

8. Sumer Singh Vs Surajbhan Singh (2014) 7
SCC 323

9. St. of Punj. Vs Bawa Singh (2015) 3 SCC 441

10. Raj Bala Vs St. of Har. (2016) 1 SCC 463

11. Gopal Singh Vs St. of U.K. (2013) 7 SCC 545

(Delivered by Hon'ble Mohd. Azhar
Husain Idrisi, J.)

1. Heard learned counsel for the
appellant and learned A.G.A. for the State.
Perused the record.

2. Both the aforementioned criminal
appeals arise out of the common judgement
and order dated 01.05.2010 passed by the
learned Additional Sessions Judge, Court
No. 7, Aligarh and are connected to each
other, they were heard together and are
being decided by a common judgment.

3. The instant criminal appeals arise
out of the common judgment and order
dated 01.05.2010 passed by the Additional
Sessions Judge, Court No.7, Aligarh in
Sessions Trial No.334 of 2008, arising out
of Case Crime No. 123 of 2007, under
Sections 323/34, 325/34, 307/34 and 393
I.P.C., Police Station Gaunda, District
Aligarh whereby the accused persons have
been convicted and sentenced under
Section 323/34 I.P.C. to undergo six
months'
simple
imprisonment,
under
Section 325/34 I.P.C. to undergo two years'
simple imprisonment, under Section 307/34
I.P.C. to undergo seven years' simple
imprisonment and under Section 393 I.P.C.
to undergo two years' simple imprisonment
with default clauses.

4. Succinctly, the prosecution story is
Suneet Arora gave a written tehrir at Police
Station Gaunda, District Aligarh stating
therein that on 20.09.2007 when his
salesmen, namely, Kamal Singh and
Umesh Kumar were selling liqour in his
English Wine shop, two persons came
riding on a black colour motor cycle at
about 09:15 P.M. and asked for one bottle
of liquor, to which the Kamal Singh denied
to give. Due to which they assaualted
Kamal Singh with kick and fist and one of
the accused had fired shot from his country
made pistol with an intention to kill him.
The other person was also equipped with a
country made pistol. On an alarm raised by
the Umesh, the accused persons fled away.
At the time of incident, electric bulbs were
illuminating. Umesh immediately informed
about this incident to the complainant over
the phone. At the time of incident, the
complainant's partner, namely, Jabir Ali
was in Iglas town and on hearing about the
incident, they both came to the Police
Station Gaunda where Umesh had also
brought the injured Kamal Singh. The
injured Kamal Singh told the name of
accused person, who fired the gun shot as
Amar Pal and he also narrated the entire
incident. It is also stated in the written
report that both the salesmen can recognize
the accused persons on seeing them. On the
basis of above written report, a first
information report was registered as Case
5 All. Amar Pal Vs. State of U.P.
537
Crime No.123 of 2007, under Sections 323,
307 IPC at Police Station Gaunda, District
Aligarh against the accused persons. The
injured was examined at J.N. Medical
College, Aligarh and was also admitted in
that hospital that on 20.09.2007, the
informant for further treatment.

5. Initially, the investigation of this
case was entrusted to Sub-Ispector Phool
Singh and later on was handed over to S.I.
Farooq Ahmad. The I.O. prepared site plan,
recorded the statement of witnesses under
Section 161 CrPC. After completing
necessary formalities and due investigation
I.O. submitted charge sheet against the
accused Amar Pal and Bobby under
Sections 323, 325, 307, 393 IPC, in the
court of CJM, Aligarh who took the
cognizance in the matter.

6. The case being exclusively triable
by the court of sessions, learned CJM
committed it to the court of sessions, for
trial. Where it was registered as S.T. No.
334 of 2008.

7. The learned Trial Court framed the
charges against both the accused persons
under Sections 323/34, 307/34, 325/34 and
393 I.P.C., the accused abjured the charges.
They denied the charge and claimed to be
tried.

8. In order to prove its case, the
prosecution before the trial court examined
the following ocular witnesses:-

S.L.
Nos.
Particulars
of
witnesses
Witness
Nos.
1
Kamal Singh
Pw-1
2
Suneet Arora
Pw-2
3
Umesh Pal
Pw-3
4
Dr.
Ahshan
Ahmad
Pw-4
5
Vijendra Singh
Pw-5
6
Dr.
Professor
M.H. Veg
Pw-6
7
S.I. Phool Singh
Pw-7
8
S.I.
Farooq
Ahmad
Pw-8
9
Dr.
Basant
Kumar
Pw-9

9. Apart from it, the prosecution has
also relied upon following documentary
evidence:-

S.L.
Nos.
Particulars
Ext.
Nos.
Proved
By
1
Tehrir
Ext. Ka1
Pw- 2
2
Chik FIR
Ext. Ka-
3
Pw- 5
3
Carbon
copy
of
kaimi G.D.
Ext. Ka-
4
Pw- 5
4
Injury
Report
Ext. Ka2
pw- 4
5
Site Plan
Ext. Ka-
28
Pw- 7
6
Chargesheet
Ext. Ka-
29
Pw- 8
7
Radiology
report
Ext. ka-
30
Pw- 9
8
Injury
status
report
of
injured
Ext. Ka-
5 to 27
Pw- 6

10. After completion of the prosecution
evidence, accused were examined under Section
313 Cr.P.C. Accused-appellant wherein accused
denied the statement of prosecution witnesses and
stated they are falsely implicated due to party bandi.

11. Accused/ appellant in their
defence did not adduce any ocular or
documentary evidence.
538 INDIAN LAW REPORTS ALLAHABAD SERIES

12. The learned Sessions Judge after
appreciating the evidence on record and
other material came to the conclusion that
the prosecution has been able to prove its
case beyond reasonable doubt against the
accused persons. He accordingly convicted
and sentenced them as stated above.
Aggrieved the impugned judgment and
order accused/ appellants preferred these
separate appeals.

13. It has been argued by the learned
Counsel for the appellant that the impugned
judgment
of
conviction
is
wholly
unjustified as the findings recorded by the
learned trial court are not based on correct
appreciation
of
evidence
on
record.
Learned Sessions Judge has given too
much weight to the prosecution version.
The learned Sessions Judge has also
committed error in believing the testimony
of the prosecution witnesses, overlooking
the fact that there are major contradictions
in their statement.

14. Learned counsel for the appellant
has vehemently argued that the actual
incident has not been witnessed by anyone
and there was no motive for the appellant
to commit the said offence but on account
of past enmity of village parti-bandi, they
were falsely implicated in the present case.

15. Lastly, it has been argued by the
learned counsel for the appellant that even
assuming though not conceding that the
appellants have committed the offence,
then too the punishment awarded to the
appellants is excessive as from the medical
report it is clearly established that the
injuries were not on vital part and the case
will fall only under Section 324 IPC and
not under Section 307 IPC as held by the
learned Sessions Judge.

16. Refuting the assertions of the
appellant's Counsel, learned State Counsel
has submitted that it is incorrect to say that
the findings of conviction recorded by the
learned court below are erroneous or not
based on correct appreciation of record. As
a matter of fact, the learned court below has
scrutinized the evidence in its correct
prospective and thereafter has recorded the
findings of guilt. The eye-witnesses have
supported the prosecution version and even
if, it is assumed that there were certain
contradictions in their statement that were
minor in nature and were not fatal for the
prosecution case. He further submitted that
the medical evidence has fully supported
the prosecution version and as such it
would be wrong to say that the findings are
perverse. Lastly, it has been submitted that
the accused persons are criminal minded
and were earlier involved in various
criminal cases. They have spread terror in
the locality.

17. A perusal of the material on
record reflects that the incident had
occurred on 20.09.2007 at about 9.15 PM
and the FIR was lodged on the same day at
about 10.15 PM at PS Gaunda, District
Aligarh under Section 323/307 IPC. Before
the court below, the accused persons have
brought by Constable Jagdish Singh, whose
name is entered in the medical record. Had
the FIR would not have come to existence,
there was no occasion for the injured being
brought to the Medical College with 'chitti
majroobi' by the Head Constable. It has
come in the statement of the injured
Kamal-Singh that he had told the name of
persons who had fired shot to complainant
Sunit Arora. The said finding of the Trial
Court is based on documentary evidence,
which is fully justified in the circumstances
of the case.
5 All. Amar Pal Vs. State of U.P.
539

18. Kamal Singh (P.W.1), who is
injured witness in his testimony has stated
in clear words that three persons came on
the Motor Cycle out of whom Amar Pal
and Bobby were armed with weapon. He
had further deposed that first shot was fired
by Amar Pal while the second shot was
fired by Bobby as a result of which he fell
down. Nanau, who was working as
Salesman carried him to the Medical
College where he remained admitted for
quite some time and treatment went for a
month. He further deposed that Bobby and
Amar Pal were known to him from much
earlier as he was working in the shop since
three years. Firing of shot by the accused
persons have been corroborated by the
P.W.3 Umeshpal, who is an eye witness of
the incident and was working on the Wine
Shop as Salesman.

19. Vijendra Singh ( P.W.5) is
Constable Clerk at PS Gaunda and he has
registered the FIR on 20.9.2007 at 22.15
hrs as case crime no. 279/07 under Section
323/307 IPC on the basis of report of the
complainant. The said witness has proved
the document before the court. Dr Ahsan
Ahmad (P.W.4) has deposed before the
Court that he was posted at Medical
College Aligarh and about 10.55 Constable
Jagdish Singh had brought the injured to
the hospital. He was examined by him and
found grievous injuries including gun shot
injury on the body of the injured. Thus, it is
clear that the version as given in the FIR
has been corroborated by oral and medical
evidence.

20. It is pertinent to mention that it is
fully established from the evidence on
record that accused-appellant demanded in
extortion (Dhauns) two bottles of liquor
and Rs. 10,000/- which was refused by
injured -Kamal Singh, who was working as
Sales Man at the Wine shop of Sunit Arora
and as such the accused-appellant became
furious and caused bodily injuries, which
has been reported to be grievous in nature
and were on vital part (upper chest region)
of Kamal Singh, who remained under
medical treatment for several days.

21. The learned Trial Court after
discussing the evidence and statement of
the witnesses in detail have rightly come to
the conclusion that there is uniformity in
the
oral
and
documentary
evidence
produced by the prosecution and as such
the prosecution story cannot be doubted. It
is relevant to point out that it is hard to
believe that the injured will falsely
implicate the appellant and would allow the
real assailants to go scot free. Therefore,
the assertions of the appellant are wholly
baseless and unfounded. Moreover, the
learned Counsel for the appellant have
failed to establish any concrete evidence
for upsetting the findings of guilt recorded
by the Trial Court.

22. In view of the aforesaid
discussions, I am of the considered opinion
that the view taken by the lower court
below is perfectly justified and based on
correct appreciation of evidence on record
and as such the conviction as awarded to
the appellants is upheld.

23. So far the sentencing of the
accused go the learned trial judge has
awarded the following sentence to the
accused appellants:-

"अभियुक्तगण अमर पाल पुत्र श्री तुलाराम एवं बौबी पुत्र
सरदार भसहं को िारतीय दण्ड संभहता की धारा 323 सपभित धारा 34,
325 सपभित धारा 34, 307 सपभित धारा 34 एवं 393 के अधीन
दण्डनीय अपराध का दोषी पाते हुऐ उनमें से प्रत्येक अभियुक्त को िारतीय
दण्ड संभहता की धारा 323 सपभित धारा 34 के आरोप में छः माह के
सश्रम कारावास, िा०दं०सं० की धारा 325 सपभित धारा 34 के अधीन
540 INDIAN LAW REPORTS ALLAHABAD SERIES
दण्डनीय आरोप में दो वषष के सश्रम कारावास तथा रूपये 1000-00 के
अथषदण्ड से दभण्डत भकया जाता है। अथषदण्ड की धनराभि अदा न करने पर
उनमें से प्रत्येक को एक माह का अभतररक्त साधारण कारावास िुगतना
होगा, िा०दं०सं० की धारा 307 सपभित धारा 34 के अधीन दण्डनीय
अपराध के भलए उनमें से प्रत्येक को सात वषष के सश्रम कारावास एवं रूपये
2000-00 के अथषदण्ड से दभण्डत भकया जाता है। अथषदण्ड की धनराभि
अदा न करने पर उनमें से प्रत्येक को दो माह का अभतररक्त साधारण
कारावास िुगतना होगा तथा िा०दं०सं० की धारा 393 के अधीन
दण्डनीय अपराध के अन्तगषत उनमें से प्रत्येक को दो वषष का सश्रम
कारावास तथा 2000-00 रूपये के अथषदण्ड से दभण्डत भकया जाता है।
अथषदण्ड की धनराभि अदा न करने पर उनमें से प्रत्येक को दो माह का
अभतररक्त साधारण कारावास िुगतना होगा। अभियुक्तगण की सिी सजाऐं
साथ-साथ चलेंगी।"

24. So far as sentence regarding the
accused/ appellant Bobby is concerned he
was lodged in jail on 06.02.2009 and after
serving the period of sentence as awarded
to him by the trial court and deposition of
fine, was released from jail on 2.7.2014,
which is evident from the report dated
18.8.2022 of Senior Jail Superintendent,
Aligarh. As I have already held that the
conviction of the appellant-Bobby was
perfectly justified, the Criminal Appeal No.
3379 of 2010 filed by him is liable to be
dismissed. Since, the appellant-Bobby has
already served out the sentence, he need
not to surrender and his bail bonds, if any,
stood discharged.

25. So far as Amar Pal is concerned,
he was awarded maximum sentence of
seven years. and is incarceration since
01.05.2010 for a long period, therefore, He
prayed to reduce his sentence for the period
already undergone. In view of this
argument it will be useful to navigate the
law relating to sentencing in India.

26. In historical backdrop, Indian
parliament
has
not
laid
down
any
sentencing
policy,
though
Malimath
Committee (2003) and Madhava Menon
Committee (2008) has asserted the need of
sentencing
policy
in
changing
circumstances of the society. So, the Courts
are dependant on the precident laid down
by the Supreme Court.

27. Principle of sentencing has been
an issue of concern before the Supreme
Court in many cases and tried to provide
clarity on the issue. Apex Court has time
and again cautioned against the cavalier
manner considering the way sentencing is
dealt with High Courts and Trial Courts.

In Accused ''X' vs. State of
Maharastra (2019) 7 SCC 1) "the Apex
Court has held that" It is established that
sentencing
is
a
socio-legal
process,
wherein a Judge finds an appropriate
punishment for the accused considering
factual circumstances and equities. In light
of the fact that the legislature peroxided for
discretion to the Judges to give punishment,
it becomes important to exercise the same
in a principled manner."

"12. Sentencing for crimes has to
be analysed on the touchstone of three tests
viz.
crime
test,
criminal
test
and
comparative proportionality test. Crime
test involves factors like extent of planning,
choice of weapon, modus of crime, disposal
modus (if any), role of the accused, antisocial or abhorrent character of the crime,
state of victim. Criminal test involves
assessment of factors such as age of the
criminal, gender of the criminal, economic
conditions or social background of the
criminal, motivation for crime, availability
of defence, state of mind, instigation by the
deceased or any one from the deceased
group, adequately represented in the trial,
disagreement by a Judge in the appeal
process,
repentance,
possibility
of
reformation, prior criminal record (not to
take pending cases) and any other relevant
factor (not an exhaustive list).
5 All. Amar Pal Vs. State of U.P.
541

13. In State of Madhya Pradesh
vs. Udham and others (2019) 10 SCC 300
the Apex Court has held" we may note that
under the crime test, seriousness needs to
be ascertained. The seriousness of the
crime may be ascertained by (i) bodily
integrity of the victim; (ii) loss of material
support
of
amenity;
(iii)
extent
of
humiliation; and (iv) privacy breach."

28. 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
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, you must improve him
and, men are not improved by injuries."

29. The term '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 proportionality'. 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.

30. 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] the Apex Court 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
542 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. 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.

31. Keeping in view the facts and
circumstances of the case and also criminal
jurisprudence in our country which is
reformative
and
corrective
and
not
retributive, this Court considers that no
accused person is incapable of being
reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

32. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

33. It is well settled principle that
sentence must be just, but 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. A punishment
should not be disproportionately excessive.
The concept of proportionality allows a
significant discretion to the court but the
same has to be guided by certain principles.
In certain cases, the nature of culpability,
the antecedents of the accused, the factum
of age, the potentiality of the convict to
become a criminal in future, capability of
his reformation and to lead an acceptable
life in the prevalent milieu, the effect -
propensity to become a social threat or
nuisance, and sometimes lapse of time in
the commission of the crime and his
conduct in the interregnum bearing in mind
the nature of the offence, the relationship
between the parties and attractability of the
doctrine of bringing the convict to the value
based social mainstream may be the
guiding factors. Needless to emphasize,
these are certain illustrative aspects put
forth in a condensed manner.

34. It has also been observed by the
Apex Court that

there can neither be a straitjacket
formula
nor
a
solvable
theory
in
mathematical exactitude. It would be
dependent on the facts of the case and
rationalised judicial discretion. Neither the
personal perception of a Judge nor self
adhered moralistic vision nor hypothetical
apprehensions should be allowed to have
5 All. Jhabbu Dubey @ Pradeep Kumar Dubey Vs. State of U.P. & Ors.
543
any play. For every offence, a drastic
measure cannot be thought of. Similarly, an
offender cannot be allowed to be treated
with leniency solely on the ground of discretion
vested in a court. The real requisite is to weigh
the circumstances in which the crime has been
committed and other concomitant factors which
we have indicated hereinbefore and also have
been stated in a number of pronouncements by
this Court. On such touchstone, the sentences are
to be imposed. The discretion should not be in
the realm of fancy. It should be embedded in the
conceptual essence of just punishment. In Gopal
Singh v. State of Uttrakahand (2013) 7 SCC
545, the Apex Court elaborating the sentencing
that, while imposing sentence, has to keep in
view the various complex matters in mind. In
respect of certain offences, sentence can be
reduced by giving adequate special reasons but
the special reasons have to rest on real special
circumstances.

35. In the instant case, alleged incident
took place on 20.09.2007, about 16 years ago.
Appellant Amar Pal is not a previous convict. He
has no criminal antecedents. Nothing has been
brought to the notice of the court that the
accused/ appellant after being released on bail
had ever misused the liberty of bail so granted to
him.
Keeping
in
view
the
facts
and
circumstances of the case and the fact that the
appellant has already faced the agony of the
protracted prosecution A perusal of the record
reveals that he has served out more than four
years of his sentece and that accused-appellant
alone cannot be held responsible for long delay
in disposal of this appeal. Considering all aspects
of the matter, no useful purpose would be served
by sending accused-appellant in to judicial
custody to suffer further imprisonment, rather it
appears that ends of justice would meet, if his
sentence is redued to the period already
undergone, it will be in the interest of justice that
his sentence be reduced to the period of sentence
already undergone. Sentence of fine is, however,
maintained along with its default clause. His
appeal is liable to be dismissed with above
modification in the impugned judgment and
order dated 01.05.2010.

36. Resultantly, the instant appeal is party
allowed against the appellant Amar Pal with
following directions:-

(i) The judgment of conviction dated
01.05.2010 is confirmed though the sentence
awarded, is modified to the period of already
undergone. Accordingly, he be enlarged
forthwith, if he is not in judicial custody he need
not surrender and his bail bonds are cancelled
and sureties stands discharged.

(ii) The amount of fine shall be paid
by appellant Amar Pal within three months from
the date of furnishing certified copy of the
judgment. In default, thereof, appellant has to
undergo an additional simple imprisonment as
awarded by the trial court.

(iii) A copy of judgment be sent to
Court concerned for necessary information and
compliance.

(iv) Trial court's record be remitted
back forthwith.
----------
(2023) 5 ILRA 543
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.02.2023

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.

Criminal Appeal No. 5184 of 2022
And
Criminal Appeal No. 6104 of 2022
And
Application U/S 482 No. 22777 of 2022 & 2189
of 2023

Jhabbu Dubey @ Pradeep Kumar Dubey
 ...Appellant
Versus
State of U.P. & Ors. ...Respondents