# Dahchalu @ Pahalwan @ Deva (In Jail) v. State of U.P

- **Citation:** (2020) 9 ILRA 857
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-25
- **Case number:** Criminal Appeal No.3190 of 2019
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dahchalu-pahalwan-deva-in-jail-v-state-of-u-p-46084
- **Pages:** 5

## Headnote

Law-Quantum
of
Sentence-
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.

Accused-appellant who has been convicted and
sentenced for five years rigorous imprisonment,
considering the long period in jail, the term of
858 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment is reduced by one year and fine of
Rs. 20,000/- .

Appeal finally disposed off. (E-2)

List of Cases cited: -

## Text

9 All. Dahchalu @ Pahalwan @ Dewa Vs. State of U.P.
857
Act provides that after making the
assessment under section 15, JJ Board
comes to a conclusion that there is a need
for trial of the child as an adult, the Board
may pass an order for the transfer of the
trial of the case to the Children Court.

11. It is pertinent to mention here that
Section 12 of the Juvenile Justice (Care and
Protection of Children) Act has not been
amended so far as the parameters and
yardstick for granting bail to the juvenileaccused is concerned. Therefore, while
rejecting the bail application of such juvenile,
it cannot be the criteria that the alleged offence
is of serious and heinous nature. The order
must show that the grant of bail to the
juvenile-accused is against his interest as there
is possibility of his being associated with
known criminals, or there is some short of
moral, physical or psychological danger to
him or there is likelihood of end of justice
being defeated. All these conditions have been
incorporated in law in order to ensure justice
to the juvenile.

12. The impugned order does not
show any specific role of the present
accused-appellant (juvenile Shivam) and as
such, I find perversity and illegality in the
impugned order, therefore, the same is
liable to be set aside.

13. The appeal is allowed. The
impugned order dated 02.04.2019 is set aside.

14. The juvenile, accused-appellant
namely Shivam be released on bail and he
be given in the custody of the mother
guardian namely Smt. Kamlesh Devi on her
filing a personal bond and two sureties of
the like amount to the satisfaction of the
court concerned with undertaking that the
guardian mother Smt. Kamlesh Devi shall
keep the juvenile away from unsocial and
criminal association and will look after his
education and health, keeping his mental
and social status. She will also give an
undertaking that on being so released on
bail, the accused-appellant namely juvenile
Shivam will not however indulge in
commission of any crime and she will
ensure his presence during trial before the
court whenever so required by court.

15. Office is directed to transmit the
certified copy of this order to the court
concerned for information and its necessary
compliance.
----------
(2020)09ILR A857
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.04.2020

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No.3190 of 2019

Dahchalu @ Pahalwan @ Deva
 ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sonu Kumar Tiwari

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

Criminal
Law-Quantum
of
Sentence-
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.

Accused-appellant who has been convicted and
sentenced for five years rigorous imprisonment,
considering the long period in jail, the term of
858 INDIAN LAW REPORTS ALLAHABAD SERIES
imprisonment is reduced by one year and fine of
Rs. 20,000/- .

Appeal finally disposed off. (E-2)

List of Cases cited: -

1. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC 1926

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

3. St. of M.P. Vs Najab Khan, (2013) 9 SCC 509

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

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

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

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

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

9. Raj Bala Vs St. of Hary., (2016) 1 SCC 463.

10. Kokaiyabai Yadav Vs St. of Chhatt. (2017) 13
SCC 449

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

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

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

14. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323 ,

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

16. Raj Bala Vs St. of Hary., (2016) 1 SCC 463

(Delivered by Hon'ble Pradeep Kumar Srivastava, J.)

1. Heard learned counsel for the
parties.

2. The present appeal has been
preferred against the judgment and order
dated 15.03.2019, passed by Special Judge,
Gangster
Act/3rd
Additional
Sessions
Judge, Chitrakoot, in Sessions Trial No. 14
of 2012 (State of U.P. vs. Dahchalu @
Pahalwan @ Deva and others), in Case
Crime No. 6 of 2010, under Section 2/3
U.P. Gangster and Anti Social Activities
(Prevention), Act, 1986, Police Station
Mau, District Chitrakoot, whereby the
accused appellant has been convicted and
sentenced
to
undergo
rigorous
imprisonment for five years along with fine
of Rs. 20,000/- with default stipulation.

3. Admit.

Learned A.G.A. has accepted notice
on behalf of State of U.P. He does not
propose to file any counter affidavit in the
matter.

4. Learned counsel for the appellant
has submitted that he does not want to
argue on the bail applicant but he would
like to argue on the merits of this appeal. At
the very outset, learned counsel for the
accused-appellant has submitted that he
wants to confine his arguments on the
quantum of sentence only to which learned
A.G.A. has agreed. He has however
submitted that lower court record is not
available but in view of fact that the
learned counsel for the accused-appellant
has chosen to argue this appeal on the
quantum of sentence, there is no need to
summon the lower court record.

5. Learned counsel for the accusedappellant has further submitted that from
the last more than three years and eight
months, the accused-appellant is in jail,
therefore, taking a lenient view, either the
accused-appellant should be released on
9 All. Dahchalu @ Pahalwan @ Dewa Vs. State of U.P.
859
undergone or
the
sentence
may
be
substantially reduced.

6. Learned A.G.A. has submitted that
the accused-appellant is a gang leader and
on the basis of evidence on record, the
learned
trial
court
has
very
rightly
convicted and sentenced him, as aforesaid.
He has submitted that he has no objection,
if the term of sentence is slightly reduced.
Learned A.G.A. has further submitted that
in the gang chart, three cases has been
mentioned against the accused-appellant.
The first case is registered as Case Crime
No. 966 of 2009, under Sections 392, 411,
120B I.P.C., the second case is registered as
Case Crime No. 71 of 2000, under Sections
147, 148, 149, 302, 307 I.P.C. and Section
7 of the Criminal Law Amendment Act and
the third case is registered as Case Crime
No. 85 of 2000, under Section 25/27 Arms
Act, in which it has been submitted by the
learned counsel for the accused-appellant
that
the
accused-appellant
has
been
released on bail.

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:-

"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."

8. 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."

9. 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
860 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

10. 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.

11. 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.

12. 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.

13. 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
9 All. Gurpreet @ Sodi Vs. State of U.P.
861
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.

14. 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.

15. In view of the above, the accusedappellant who has been convicted and
sentenced
for
five
years
rigorous
imprisonment, considering the long period
of detention in jail, if the term of
imprisonment is reduced by one year, the
ends of justice would be adequately served.
The learned trial court has also sentenced
the present accused-appellant for Rs.
20,000/- as fine, which appears to be
adequate, therefore, there is no need to
disturb the sentence in lieu of fine.

16. Hence, the conviction and
sentence awarded by the learned trial court
to the present accused-appellant under
Section 2/3 U.P. Gangster and Anti Social
Activities (Prevention), Act, 1986 is
reduced from from five years rigorous
imprisonment to four years years rigorous
imprisonment and in lieu of fine which is
Rs. 20,000/-, there is no need to disturb the
same.

17. With the aforesaid observation,
the appeal is finally disposed of.

18. Office is directed to transmit the
certified copy of this order to the court
concerned for information and necessary
compliance.
----------
(2020)09ILR A861
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.09.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Criminal Appeal No.6966 of 2010
Connected with
Criminal Appeal No.7153 of 2010

Gurpeet @ Sodi ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri
Devendra
Saini,
Sri
Dharmendra
Singhal, Sri Gaurav Kakkar, Sri Govind
Saran Hajela, Sri Nafees Ahmad, Sri Noor