# Furkan Ahamad (In Jail) v. State of U.P

- **Citation:** (2021) 1 ILRA 347
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-08
- **Case number:** Criminal Appeal No. 800 of 2018
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/furkan-ahamad-in-jail-v-state-of-u-p-46011
- **Pages:** 6

## Headnote

Criminal Law - Indian Penal Code, 1860-
Section 326-A - Conviction- Sentence of
ten years rigorous imprisonment with
fine- Appeal pressed only on the quantum
of sentence.

Quantum of Sentence- "Proper Sentence"-
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.
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.Criminal
jurisprudence
in
our
country
is
reformative
and
corrective
and
not
retributive.

The question of awarding proper sentence is
based upon the doctrine of proportionality
whereby sentence should be commensurate to
the gravity of the offence, the impact upon the
victim and the society at large and should be
reformative and corrective instead of retributive.

Criminal Law - Indian Penal Code, 1860-
Sections 326-A,326-B- Keeping in view
the opinion of the Doctor that the injuries
were not grievous or dangerous to life and
body of the injured was not deformed or
maimed. This Court, therefore, considers it
a fit case to alter the conviction and
sentence of appellant awarded under
Section 326-A I.P.C. to Section 326-B
I.P.C. This Court, therefore, considers to
impose six years imprisonment to the
accused and a fine of Rs. 5000 and in
default of payment of fine the accused will
have
to
serve
out
three
months
imprisonment.

As the act of the accused had not resulted in
any permanent or partial damage or deformity
to the victim, who is his wife, instead of Section
326-A of the IPC, the offence u/s 326-B of the
IPC is made out. Accordingly, conviction altered
to Section 326-A, IPC and sentence modified to
6 years with fine. (Para 10, 11, 13, 14, 16)

Criminal Appeal partly allowed.(E-2)

Case Law/ Judgements relied upon :-
348 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

1 All. Furkan Ahamad Vs. State of U.P.
347

40. Keeping in view the provision of
Section 437-A of the Code, appellant is
hereby directed forthwith to furnish a
personal bond of a sum of Rs.20,000/- each
and two reliable sureties each of the like
amount before the trial Court, which shall
be effective for a period of six months,
along with an undertaking that in the event
of filing of Special Leave Petition against
this judgment or for grant of leave,
appellant on receipt of notice thereof, shall
appear before Hon'ble Supreme Court.

41. A copy of this judgment along
with lower court record be sent to Trial
Court by FAX for immediate compliance.
----------
(2021)01ILR A347
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.12.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 800 of 2018

Furkan Ahamad ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashwini Kumar, Sri Ashwini Kumar, Sri
Ganesh Shanker Srivastava, Sri Girish
Kumar Singh

Counsel for the Opposite Party:
A.G.A., Sri Ram Dular, Sri Ram Surat Patel

Criminal Law - Indian Penal Code, 1860-
Section 326-A - Conviction- Sentence of
ten years rigorous imprisonment with
fine- Appeal pressed only on the quantum
of sentence.

Quantum of Sentence- "Proper Sentence"-
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.
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.Criminal
jurisprudence
in
our
country
is
reformative
and
corrective
and
not
retributive.

The question of awarding proper sentence is
based upon the doctrine of proportionality
whereby sentence should be commensurate to
the gravity of the offence, the impact upon the
victim and the society at large and should be
reformative and corrective instead of retributive.

Criminal Law - Indian Penal Code, 1860-
Sections 326-A,326-B- Keeping in view
the opinion of the Doctor that the injuries
were not grievous or dangerous to life and
body of the injured was not deformed or
maimed. This Court, therefore, considers it
a fit case to alter the conviction and
sentence of appellant awarded under
Section 326-A I.P.C. to Section 326-B
I.P.C. This Court, therefore, considers to
impose six years imprisonment to the
accused and a fine of Rs. 5000 and in
default of payment of fine the accused will
have
to
serve
out
three
months
imprisonment.

As the act of the accused had not resulted in
any permanent or partial damage or deformity
to the victim, who is his wife, instead of Section
326-A of the IPC, the offence u/s 326-B of the
IPC is made out. Accordingly, conviction altered
to Section 326-A, IPC and sentence modified to
6 years with fine. (Para 10, 11, 13, 14, 16)

Criminal Appeal partly allowed.(E-2)

Case Law/ Judgements relied upon :-
348 INDIAN LAW REPORTS ALLAHABAD SERIES
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. Jameel Vs St. of U.P .(2010) 12 SCC 532

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

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

7. Shyam Narain Vs St. (NCT of Delhi), (2013) 7
SCC 77

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

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

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

1. This criminal appeal has been filed
against the judgment and order dated
20.2.2016 passed by the Additional Sessions
Judge, Nagina, district-Bijnor in S.T. No. 422
of 2015 (State vs. Furkan Ahmad), arising out
of Case Crime no. 356 of 2013, under
Sections 326A I.P.C., P.S. Kotwali Dehat,
district-Bijnor, convicting and sentencing the
appellant under Section 326-A I.P.C. for 10
years rigorous imprisonment with fine of
Rs.15,000/- and in case of default of payment
of fine, he shall further undergo six months
imprisonment.

2. The brief facts of this case are that
the father of the complainant is a Rickshaw
puller in Delhi. On 21.12.2013, the present
accused who is the father of the complainant
came back to his house at Islampur
Bishnoiwala
from
Delhi
and
started
quarreling with his wife Meena, aged about
50 years and thereafter went out from the
house. On 22.12.2013 at about 5:00 O'clock
in the morning when mother of the
complainant had gone to the toilet to attend
the call of nature, father of the complainant,
who was already hiding there, poured acid on
her mother, as a result of which she sustained
serious burn injuries on her head, face and
other parts of the body. Upon hearing the hue
and cry, the complainant reached at the spot,
then the accused-appellant fled away from
the spot. The complainant had rushed her
mother to the hospital in Ambulance 108.

3. Learned counsel for the appellant
submits that offence under Section 326-A
I.P.C. is not made out against the accusedappellant as the victim has not received any
fatal injuries on her person. Neither there was
any permanent/ partial damage nor there was
any deformity on the person of the victim.
The victim was having superficial burn
injuries on her face and back. The Doctor has
opined that the injuries were caused by some
chemical and the same were not grievous or
dangerous to life and the conviction and
sentence imposed under Section 326-A I.P.C.
is not in consonance with the medical
evidence, at the most offences can go upto
the limit of under Section 326-B I.P.C.

4. Learned counsel further submits
that the accused-appellant is the only bread
earning member in the family. He further
submits that the appellant is in jail since
17.11.2014 and the impugned order of
conviction and sentence was passed on
20.02.2016, thus, by now, the accused
appellant has been languishing in jail for
more than six years. He lastly submits that
1 All. Furkan Ahamad Vs. State of U.P.
349
on the question of legality of conviction he
is not pressing this appeal and only
pressing on the quantum of sentence and he
has prayed that lenient view be taken
considering the condition of family of the
present accused.

5. Learned counsel appearing on
behalf of injured Meena submits that the
accused is the husband of the injured, and
he is in jail since 17.11.2014 and the
accused is now regretting for the acid
injury caused by him to his wife and the
victim is staying alone at her home, if the
accused is released, then the victim will not
feel any problem to live with him.

6. 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-appellant
does not want to press the appeal on its
merit and requests to take a lenient view of
the matter.

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
the crime, the manner in which it was
350 INDIAN LAW REPORTS ALLAHABAD SERIES
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
attending circumstances are relevant facts
which
would
enter
into
area
of
1 All. Furkan Ahamad Vs. State of U.P.
351
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.

14. Keeping in view the facts and
circumstances of the case and also keeping
in view 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.

15. Since the learned counsel for
appellant has not pressed the appeal on
merits, however, this Court after perusal of
the entire evidence on record and judgment
of the learned Trial Court considers that the
appeal is devoid of merit and is liable to be
dismissed. Hence, the conviction of the
appellant is upheld.

16. After considering the rival
submissions made by learned counsel for
the appellant, considering the facts and
circumstance of the case and specially
keeping in view the opinion of the Doctor
that the injuries were not grievous or
dangerous to life and body of the injured
was not deformed or maimed. This Court,
therefore, considers it a fit case to alter the
conviction and sentence of appellant
awarded under Section 326-A I.P.C. to
Section 326-B I.P.C.

17. On the question of sentence this
Court
after
considering
the
rival
submissions made by learned counsel for
the parties, considering the facts and
circumstance of the case and specially
keeping in view the opinion of the Doctor
that the injuries were not grievous or
dangerous to life. This Court, therefore,
considers to impose six years imprisonment
to the accused and a fine of Rs. 5000 and in
default of payment of fine the accused will
have
to
serve
out
three
months
imprisonment.

18. Accordingly, the conviction is
upheld. The appeal is partly allowed with
the modification of the sentence as
aforesaid. The appellant be released from
the jail on deposit of the fine as the accused
had served more than six years in prison.

19. Office is directed to transmit the
lower court record along with a copy of this
352 INDIAN LAW REPORTS ALLAHABAD SERIES
judgment to the learned court below for
information and necessary compliance as
warranted.
----------
(2021)01ILR A352
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2021

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SUBHASH CHAND, J.

Criminal Appeal No. 1615 of 2006

Pawan Kumar Mishra ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sarvesh, Sri Suneel Kumar Mishra

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

Evidence Law - Indian Evidence Act,
1872-
Section
6-
Res
Gestae-
Admissibility of Evidence- Accused was
also
identified
by
her
during
her
examination before the court and she
further
stated
that
accused
Pawan
Kumar Mishra present in the court had
committed rape to her.- PW-3 - She also
during her examination corroborated the
statement of victim.- PW-1 Virendra
Kumar Agnihotri, the father of the victim
is also the informant also corroborated
the statement of victim in regard to
occurrence as was told by victim to her
parents respectively- The statement of
PW-3 and PW-1 who are parents of the
victim though are not the eye-witness,
yet their evidence is admissible under
Section 6 of the Evidence Act. which
corroborates the substantive evidence of
the testimony of PW-2 .- The conviction
of the accused for the charge under
section 376 and 506 I.P.C., is proved
beyond the reasonable doubt and the
same
is
affirmed
in
view
of
the
appreciation of the evidence.

Where
the
testimony
of
the
witnesses
corroborates the substantive evidence and form
a part of the same transaction, then such
evidence would be admissible.

Criminal Law - Indian Penal Code, 1860-
Section 376- Section 506- Quantum of
sentence- The objective of criminal law in
imposing appropriate sentence must be
judged commensurate with nature of
gravity of the crime and the manner in
which the crime is committed. The twin
objective
of
sentencing
policy
is
deterrence or correction depends upon the
facts and circumstances of each case to
meet the ends of justice. The court should
take into consideration the nature of the
offence, gravity of the crime and other
attending circumstances. The offence of
rape is a social stigma and rape with a
tender age of child is very heinous crime
than that of other adult female.

Settled law that sentence is awarded on the
considerations of the gravity of the offence,
manner of its commission and its impact on the
society. In the facts of the case, as the offence
involves the rape of a minor, hence no
interference in the quantum of sentence
awarded by the trial court is warranted. ( Para
17, 20, 22, 27, 31, 32)

Criminal appeal accordingly rejected. (E-2)

Judgements/ Case law relied upon:-

1. St. of U.P. Vs Ramesh (2001) 2 SCC 493

2. Mukhtiyar Singh Vs St. of Punj. AIR 2009
SC 1854

3. S. Ram Krishna Vs St. Rep. by PP, A.P
Hyderabad (2008) 8 SCC 617

4. St. of M.P. Vs Bala @ Bala Ram AIR 2005
SC 3567

5. St. of Karnataka Vs Raju (2007) 11 SCC
490