# Amit Porwal (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 1122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-17
- **Case number:** Criminal Appeal No. 5849 of 2017
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-porwal-in-jail-v-state-of-u-p-45755
- **Pages:** 6

## Headnote

Criminal Law-Indian Penal Code, 1860Sections 323, 504, 506 and Section
3(1)X
SC/ST
Act-
Appeal
against
conviction.

Benefit of undergone-
Conviction upheld sentences reduced to the
period
of
imprisonment

has
already
undergone.

Criminal Appeal disposed of. (E-2)

List of cases cited: -

## Text

1122 INDIAN LAW REPORTS ALLAHABAD SERIES
untruthful. Both the sides are relatives
and the presence of accused there, if it is
believed that he was there, cannot be said
to be unnatural. It has come in the FIR
itself and also in the statement of
informant that she was informed by
Sohan Lal, the father of accused, by
phone that victim had fallen down from
roof. This has also come in the statement
of doctor that Sohan Lal so informed him
on phone. He so informed when there was
no FIR about the incident. The evidence
of
prosecution
witnesses
is
shaky,
unnatural and untrustworthy and the
learned trial court committed error in
placing reliance on them. Thus, there is
apparent perversity and illegality in the
impugned judgment and the same is liable
to be set aside and the accused is entitled
for acquittal.

37. The Criminal Appeal is allowed.
The
impugned
judgment
dated
23.11.2013 convicting and sentencing the
accused for the offence under section
376/308 IPC is set aside. Accused
Kuldeep is acquitted consequently.

38. Accused Kuldeep be released
from jail forthwith.

39. Office is directed to transmit
back the lower court record to the
concerned court along with a copy of this
judgment
for
information
and
compliance.
----------

(2020)06ILR A1122
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.02.2020

BEFORE
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 5849 of 2017

Amit Porwal ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Krishna Dutt Awasthi, Sri Ghan
Shyam, Sri Vivek Mishra

Counsel for the Opposite Party:
A.G.A.

Criminal Law-Indian Penal Code, 1860Sections 323, 504, 506 and Section
3(1)X
SC/ST
Act-
Appeal
against
conviction.

Benefit of undergone-
Conviction upheld sentences reduced to the
period
of
imprisonment

has
already
undergone.

Criminal Appeal disposed of. (E-2)

List of cases cited: -

1. B.G. Goswami Vs Delhi Administration, 1973
AIR 1457.

2. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926,

3. Sham Sunder Vs Puran, (1990) 4 SCC 731.

4. St. of MP Vs Najab Khan, (2013) 9 SCC
509.

5. Jameel Vs St. of UP (2010) 12 SCC 532,

6. Guru Basavraj Vs State of Karnatak, (2012)
8 SCC 734,

7. Deo Narain Mandal Vs St. of UP (2004) 7
SCC 257

8. Shyam Narain Vs State (NCT of delhi),
(2013) 7 SCC 77

9. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC
323,
6 All. Amit Porwal Vs. State of U.P. 1123
10. State of Punjab Vs Bawa Singh, (2015) 3
SCC 441,

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

12.
Kokaiyabai
Yadav
Vs
St.
of
Chhattisgarh(2017) 13 SCC 449,

13. Ravada Sasikala Vs St. of A.P. AIR 2017
SC 1166,

14. Jameel Vs St. of UP (2010) 12 SCC 532,

15. Guru Basavraj Vs St. of Karnatak, (2012) 8
SCC 734,

(Delivered by Hon'ble Ajit Singh, J.)

1. This criminal appeal has been filed
against judgement and order dated 14.9.2017
passed by Special Judge SC/ST (Prevention
of Attrocities) Act/Addl. Sessions Judge,
F.T.C-I, Auraiya in S.T. No. 124 of 2015,
under Sections 323, 504, 506 I.P.C. and
Section 3(1)X SC/ST Act, P.S. Kotwali
Auraiya, district-Auraiya, whereby learned
Judge convicted and sentenced the appellant
to one year rigorous imprisonment under
Section 323 I.PC. with fine of Rs. 1000/- and
in default of payment of fine further one
month R.I. Two years rigorous imprisonment
under Section 504 I.P.C. with fine of Rs.
5000/- and in default of payment of fine
further one month additional R.I. Three years
R.I. under Section 506 I.P.C. with fine of Rs.
3000/- and in default of payment of fine
further three months addl. R.I. Five years R.I.
under Section 3(1)X SC/ST Act with fine of
Rs. 10,000/- and in default of payment of fine
further six months additional rigorous
imprisonment.

2. All the sentences shall run
concurrently.

3. At the very outset, Sri Vivek Mishra,
learned counsel for the appellant, on
instructions, stated that he does not propose to
challenge the impugned judgement and order
on its merits. He, however, prayed for
modification of the order of the sentence for
the period already undergone by the appellant.

4. Shri Ravi Prakash Pandey and
Sri S.B. Maurya, learned Additional
Government Advocates representing the
State have stated that they have no
objection, if the Court considers the
mitigating circumstances.

5. Since the learned counsel for
the appellant 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 appellant for the aforesaid
offence stands affirmed.

6. However, on the quantum of
sentence,
learned
counsel
for
the
appellant has argued that the appellant
is not a previous convict; he is 30 years
old married person and he is having
children. He is the only bread earner
member in his family that is why a
lenient view be taken by this court in
sentencing the appellant.

7. Learned counsel for the
appellant submits that the injured/victim
has received only simple injury and his
trial was conducted under Section 323
I.P.C. due to sustained injury.

8. Learned counsel for the appellant
further submits that the appellant was
awarded simple imprisonment of three
years and that he has already undergone
for
more
than
one
month
before
conviction and two years and five months
after conviction, meaning thereby that
1124 INDIAN LAW REPORTS ALLAHABAD SERIES
now the appellant has served more than
two and half years in prison.

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

"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.

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 efficaciousness. 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."

10. 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 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
6 All. Amit Porwal Vs. State of U.P. 1125
him, you must improve him and, men
are not improved by injuries."

11. 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:

"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."

12. 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:-

"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
society
at
large
while
considering
the
imposition
of
appropriate punishment."

13. 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.

14. 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
1126 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

15. 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.

16. 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. 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.

17. Considering the facts and
circumstances of the case and the
substantive period of sentence more than
two and half years already undergone by
the appellant in this case and the fact that
the appellant is a young person; there is
no bread winner in the family of the
appellant and that he has realized the
6 All. Dr. Satendra Prakash Rastogi Vs. Prashant Dwivedi, Prin. Secy. Medical Health &
Family Planni 1127
mistake committed by him and is
remorseful of his conduct to the society to
which he belongs and now he wants to
transform himself, I am of the considered
opinion that he should be given a chance
to reform himself and he be allowed to
give his better contribution to the society
to which he belongs.

18. Consequently, the sentence is
modified to the period already undergone
by the appellant in this case, i.e. two years
and five months under Section 3(1)X
SC/ST Act and the fine imposed by the
trial court is modified/reduced to Rs.
2000/-.

19. The appeal stands disposed of in
the above terms.

20. Office is directed to transmit a
copy of this order to the learned Sessions
Judge, Auraiya for compliance and
compliance report be submitted to this
Court also.

21. Office is also directed to send
back the record of the trial court
immediately.
----------
(2020)06ILR A1127
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.08.2017

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Contempt No. 1690 of 2017

Dr. Satendra Prakash Rastogi...Applicant
Versus
Prashant Dwivedi, Prin. Secy. Medical
Health & Family Planni ...Opposite Party

Counsel for the Applicant:
Jai Krishna Sinha

Counsel for the Opposite Party:
-----

Civil contempt - Contempt of Courts Act
(70 of 1971) - Section 12 - deliberate
disobedience - Merely seeking legal
advice to challenge writ court order
before superior forum - cannot be said to
be deliberate disobediance - every
litigant, including the State, has a right
to take recourse to the legal remedy
available to them under law (Para 14)

Allegation that though Opposite party assured
Court that writ court order would be complied
with but subsequently he sought legal advice
to file Special Leave Petition against the said
order - which amounts to breach of the
undertaking given by opposite party in his
affidavit before and amounts to deliberate
disobedience of the order - Held - Merely
because respondent sought legal advice from
Chief Standing Counsel regarding feasibility of
filing S.L.P. against the writ court order it
cannot be said that there is a deliberate
disobediance of the said order (Para 14)

Dismissed. (E-5)

List of cases cited:

1. Kapildeo Prasad Sah Vs St. of Bihar (1999)
7 SCC 569

2.
Sudhir
Vasudeva
Vs
M.
George
Ravishekaran (2014) 3 SCC 373

3. J.S. Parihar Vs Ganpat Duggar, (1996) 6
SCC 291

4. Chhotu Ram Vs Urvashi Gulati (2001) 7 SCC
530

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. This contempt petition under
Section 12 of the Contempt of Courts Act,
1971 (for short 'the Act') has been filed
for
initiating
action
against
the