# Faqirey & Ors v. State of U.P

- **Citation:** (2021) 11 ILRA 892
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Criminal Appeal No. 981 of 1983
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faqirey-ors-v-state-of-u-p-46678
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 324 & 307 - Quantum of sentence -
"Proper Sentence" - principle of proportionality
- 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 - principle of
proportionality between the crime committed
and the penalty imposed are to be kept in mind
- Discretion of Court in awarding sentence
cannot be exercised arbitrarily or whimsically
(Para 16)

Incident took place in year 1981, appellant
were convicted in the year 1983 - at present
appellant no. 1 aged about 62 years & appellant
no. 3 more than 75 years - appellant never
intended to assault but it happened at the spur
of moment without any premeditation due to an
altercation that took place between the injured
and the accused-appellants - doctors, who were
examined in the trial court, have not stated
anywhere in their statements that the injuries
sustained by the injured were fatal to life and
they were likely to cause death - two months'
imprisonment has already been undergone by
them during trial and after conviction - it was
the first offence of the accused and after
conviction the accused had not indulged in any
other criminal activity - Appellant pressed
appeal on quantum of sentence - Held - Court
altered the conviction from section 307/34
I.P.C. to section 324 I.P.C. - accused-appellants
are
convicted
with
the
period
already
undergone by them in prison during trial and
after conviction - Accused-appellants directed to
deposit fine of Rs. 10,000/- to be paid to the
injured (Para 20, 21, 22)
11 All. Faqirey & Ors. Vs. State of U.P.
893
Allowed.(E-5)

Cases Relied on :

## Text

892 INDIAN LAW REPORTS ALLAHABAD SERIES

(31) Keeping in mind the aforesaid legal
propositions of law and also considering the
facts and circumstances of the case, period of
imprisonment, the age of the accused/appellant
no.2-Sangram as on date, the efflux of time
since the date of occurrence, we are of the
considered view that no fruitful purpose would
be served by remanding the matter to Juvenile
Justice
Board
as
accused-appellant
no.2
(Sangram) has already served out more than
three years sentence. Moreover, he was aged
about 15 years 05 months and 22 days on the
day of incident and by now must have crossed
the age of 56 years. Therefore, he could not be
kept along with other Juveniles in Juvenile
Special Home in this age group.

(32) In view of the aforesaid, we confirm
the judgment and order dated 11.10.2018 passed
by the Co-ordinate Bench of this Court so far as
the conviction of the accused/appellant no.2Sangram. However, so far as sentence imposed
vide judgment and order dated 11.10.2018 to
appellant no.2-Sangram is concerned, the same
is modified to the period already undergone by
appellant
no.2-Sangram.
Appellant
no.2Sangram shall be set at liberty if not wanted in
any other case.

(33) The appeal is, accordingly, partly
allowed.

(34) Let a copy of this judgment be sent to
the
trial
court
concerned
forthwith
for
compliance and further necessary action.
----------
(2021)11ILR A892
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 981 of 1983
Faqirey & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri P.N. Lal, Sri P.K. Srivastava, Sri Javed Habib

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 324 & 307 - Quantum of sentence -
"Proper Sentence" - principle of proportionality
- 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 - principle of
proportionality between the crime committed
and the penalty imposed are to be kept in mind
- Discretion of Court in awarding sentence
cannot be exercised arbitrarily or whimsically
(Para 16)

Incident took place in year 1981, appellant
were convicted in the year 1983 - at present
appellant no. 1 aged about 62 years & appellant
no. 3 more than 75 years - appellant never
intended to assault but it happened at the spur
of moment without any premeditation due to an
altercation that took place between the injured
and the accused-appellants - doctors, who were
examined in the trial court, have not stated
anywhere in their statements that the injuries
sustained by the injured were fatal to life and
they were likely to cause death - two months'
imprisonment has already been undergone by
them during trial and after conviction - it was
the first offence of the accused and after
conviction the accused had not indulged in any
other criminal activity - Appellant pressed
appeal on quantum of sentence - Held - Court
altered the conviction from section 307/34
I.P.C. to section 324 I.P.C. - accused-appellants
are
convicted
with
the
period
already
undergone by them in prison during trial and
after conviction - Accused-appellants directed to
deposit fine of Rs. 10,000/- to be paid to the
injured (Para 20, 21, 22)
11 All. Faqirey & Ors. Vs. State of U.P.
893
Allowed.(E-5)

Cases Relied on :

1. Mohd. Giasuddin Vs. St. of AP, 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. Jameel Vs St. of U.P. (2010) 12 SCC 532

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

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

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

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

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

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

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

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

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

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

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

16. St. of Pun. Vs Bawa Singh, (2015) 3 SCC 441

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

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

1. As per order of this Court dated
1.11.2018, the appeal in respect of appellant no.
4 Bhoop Ram son Ganga Ram is abated.

2. Sri Javed Habib, learned Advocate is
pressing this appeal on behalf of surviving
appellant no. 1 Faqirey, appellant no. 2 Hori and
appellant no. 3 Makhan.

3. This criminal appeal has been filed against
the judgement and order dated 22.4.1983 passed
by Addl. Sessions Judge, Pilibhit in S.T. No. 19 of
1983 (State vs. Faqirey and others), under Section
307 I.P.C., P.S. Sarkhera, district-Pilibhit, whereby
learned Judge convicted and sentenced the
appellants to 4 years rigorous imprisonment under
Section 307 read with 34 I.P.C.

4. The prosecution story in brief is that there
was dispute between the accused-appellants Bhoop
Singh, Fakrey, Hori and Ram Gulam, cousin
brother
of
complainant
Parmeshwari
Dayal
regarding 'Mendh'. About 20 to 25 days before the
incident dated 11.1.1981 Parmeshwar Dayal had
slapped accused Faqirey, following which the
accused Faqirey and his other family members
become enmical with the complainant. On
11.1.1981 at about 1:00 O'clock in the noon when
the complainant was taking bath near the well of his
house, the accused Faqirey, Hori, Bhoop Ram and
Makhan reached there. Accused Makhan was
armed with S.B.B.L. Gun, accused Faqirey and
Hori armed with country made pistol and accused
Bhoop Singh armed with lathi surrounded him.
Accused Faqirey exhorted other accused persons to
kill Parmeshwari Dayal as a revenge of his having
slapped him. On his exhortation accused Makhan,
Hori Lal and Faqirey himself fired with intention to
kill, fired upon him with their respective firearms, as
a result of which the complainant sustained firearm
injuries on his back and buttocks. The incident was
witnessed by Fatehy Chand (PW-2) and Gokul
Prasad.

5. As the case was exclusively triable by the
Court of Sessions, learned Magistrate committed the
case to the Court of Sessions and learned Additional
Sessions Judge, Pilibhit framed the charge against
the appellants under Sections 307/34 to which the
appellants pleaded not guilty and claimed to be
tried.

6. To bring home guilt of the appellants,
the prosecution examined four witnesses. PW1
894 INDIAN LAW REPORTS ALLAHABAD SERIES
Parmeshwar Dayal (injured), PW2 Gokul
Prasad, PW3 Constable Ram Kirpal, who
prepared the chik FIR, PW4 S.H.O., Ram Niwas
Sharma, PW5 Dr. K.P. Dubey, PW6 Dr. A.K.
Srivastava.

7. PW5 Dr. K.P. Dubey has examined the
injured/complainant (PW1) and found following
injuries on the person of the injured ;

"1. Multiple gun-shot injureis in an
area of 25cm x 24cm each of the size of 0.2cm x
0.2cm x depth kept under observation over both
the buttocks extending upto the level of 4th
lumber vertibrae back side. No blackening or
tattooing was present around the wound.

2. Abrasion 2cm x 1cm over the left
side leg in anterior aspect middle 1/3rd."

8. The doctor in his opinion has stated that
injury no. 1 was caused by firearm and injury
no. 2 by friction of some hard object. Injury no.
2 was simple in nature, while injury no. 1 was
kept in observation.

9. At the very outset, learned counsel for
the appellants, 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.

10. In furtherance to his submission, the
learned counsel for the accused-appellants
submits that the incident had taken place in the
year 1981 and the accused-appellants were
convicted in the year 1983. Accused-appellant
no. 1 Faqirey was 21 years of age, accusedappellant no. 2 Hori was 28 years of age and
accused-appellant no. 3 Makhan was aged about
34 years respectively at the time of incident and
at present the appellant no. 1 Faqirey is more
than 62 years of age, appellant no. 2 Hori is
around 20 years of age and accused Makhan is
more than 75 years of age at present. He also
submits that all the accused-appellants are
absolutely innocent and they had not intended to
assault but it happened at the spur of moment
without any premeditation due to an altercation
that took place between the injured and the
accused-appellants. It is also argued that
although the doctor had opined that multiple
radio opaque foreign body shadows seen on both
the buttocks and lumber region, yet before Court
in his statement he did not depose that the injury
sustained by the injured was fatal to life. No
blackening or tattooing was present around the
wound. He also submits that the medical
evidence was not such which could make it out
an offence against the accused appellants to be
punishable under Section 307 I.P.C., still the
accused appellants were convicted under Section
307/34 and they were subjected to serve out the
sentence so awarded by the impugned judgment.
It is also relevant to bring on record that about
two months' imprisonment has already been
undergone by them during trial and after
conviction. No case was to be made out under
Section 307/34 IPC, but at the most it was
squarely covered under Section 324 I.P.C. as the
ingredients of an offence punishable under
Sections 307/34 IPC were not present in this
matter nor it was proved by the prosection to be
a case made out under Section 307/34 IPC
beyond reasonable doubt and the offence under
Section 307 or 307/34 IPC is made out only if
the injuries sustained by the injured were likely
to cause death. Since this was not the case made
out here from the medical evidence, therefore,
the offence, if any, will be covered under
Section 324 I.P.C. Further submission is that it
was the first offence of the accused and after
conviction the accused had not indulged in any
other criminal activity. He next submits that
although the trial court has convicted the present
accused on the basis of mere conjunctures while
the appellants are absolutely innocent and has
been falsely implicated in this case with the
ulterior intention of harassing him. He also
11 All. Faqirey & Ors. Vs. State of U.P.
895
submits 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 their age related ailments.

11. Learned A.G.A. has vehemently opposed
the submission made by learned counsel for the
appellant. He has however, submits that if slight
reduction in sentence is made, he has no objection.

12. I have perused the entire material
available on record and the evidence as well as
judgment of the trial court. The learned counsel for
the accused-appellants does not want to press the
appeal on its merit and requests to take a lenient
view of the matter.

13. 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 subculture 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."

14. 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."

15. 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
896 INDIAN LAW REPORTS ALLAHABAD SERIES
considering the imposition of appropriate
punishment."

16. 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.

17. 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.

18. 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.

19. 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
11 All. Faqirey & Ors. Vs. State of U.P.
897
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."

20.

Considering
the
facts
and
circumstances of the case and the substantive
period of about two months already undergone
by the appellants in this case in prison and the
fact that the appellants are old and aged persons;
so far they have realized the mistake committed
by them and are remorseful to their conduct and
feel it necessary to serve with their polite and
cooperative behavior to the society which they
belong to and now they want to transform
themselves into a law abiding citizen, I am of
the considered opinion that they should be given
a chance to reform themselves and extend their
better contribution to the society to which they
belong to.

21.

Considering
the
facts
and
circumstances of the case, considering the
evidence available on record and considering the
nature of injuries and statement of the doctors,
who were examined in the trial court, have not
stated anywhere in their statements that the
injuries sustained by the injured were fatal to life
and they were likely to cause death, this Court
deems it fit to alter the conviction from section
307/34 I.P.C. to section 324 I.P.C.

22. Consequently, taking into consideration
the period already undergone in prison by the
appellants in this case as well as considering that
they have suffered physical and mental agony of
trial and after conviction for a long period of about
40 years, the sentence awarded to them under
Section 307/34 is converted under Section 324/34
I.P.C. The accused-appellants are convicted with
the period already undergone by them in prison
during trial and after conviction and with a fine of
Rs. 10,000/-.

23. Accused-appellants are directed to
deposit the fine of Rs. 10,000/-each before learned
lower court within four months from the date of
passing of the judgement, the entire amount
deposited by the appellants shall be paid to the
injured, if he is alive and in case he is dead then it
would be paid to his legal heirs and in default of
payment of fine as directed above, they shall
further undergo 30 days rigorous imprisonment.

24. Appeal is partly allowed in the above
terms and surety bonds of the sureties are
discharged.

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

26. Office is also directed to send back the
record of the trial court immediately.

27. Office is directed to transmit the lower
court record along with a copy of this judgment to
the learned court below for information and
necessary compliance as warranted.

28. The party shall file computer generated
copy of such order downloaded from the official
website of High Court Allahabad, self attested by
the learned counsel for the applicant alongwith a
self attested identity proof of the said persons
(preferably Aadhar Card) mentioning the mobile
number (s) to which the said Aadhar Card is linked
before the concerned Court/Authority/Official.

29. The concerned Court/ Authority/
Official shall verify the authenticity of such
computerized copy of the order from the official
website of High Court Allahabad and shall make
a declaration of such verification in writing.
----------