# Hari Singh (In Jail) v. State of U.P. & Anr

- **Citation:** (2020) 6 ILRA 946
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-11
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hari-singh-in-jail-v-state-of-u-p-anr-45833
- **Pages:** 7

## Headnote

Criminal Law-Indian Penal Code, 1860Section 120B [read with section 420,
467, 468, 471 IPC and section 13(2)
read with section 13(1)(d) Prohibition of
Corruption Act, 1988 ] - 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

946 INDIAN LAW REPORTS ALLAHABAD SERIES
stretch of imagination cover appointment
of teachers in a University. The transfer of
petitioners, who were teachers with an
inter college, to a Deemed University is in
violation of the provisions of Act of 1982
as the same does not provide transfer of
any teacher from an inter college to a
University. Thus, the impugned order
dated 11.10.2012 to the said extent is bad
and is set aside.

7. The Supreme Court in case of
U.P.
Secondary
Education
Service
Selection Board Vs. State of U.P. and
Others reported in (2018) 13 SCC 720,
provided that the Board would have
sufficient power to accommodate teachers
from one inter college to another inter
college in specific circumstances. In the
present case, since the inter college has
been de-recognized, the teachers of the
inter college, who were duly selected by
the U.P. Secondary Education Service
Selection
Board,
have
to
be
accommodated as lecturers in their
respective subjects in other similar
colleges. The Director of Education
(Secondary), U.P., Lucknow is therefore
directed to ensure that the petitioners are
accommodated in other recognized inter
college, on which provision of U.P.
Intermediate Education Act, 1921, U.P.
Secondary Education Service Selection
Board Act, 1982 and U.P. High Schools
and Intermediate Colleges (Payment of
Salaries
of
Teachers
and
Other
Employees) Act, 1971 are applicable,
within the District Agra. Since, the
petitioners have been continuously in
service, therefore, it goes without saying
that they shall be entitled to their earlier
seniority
also
in
such
appropriate
colleges. The Director shall ensure that
such an exercise is completed within a
period of four months from the date a
certified copy of this order is placed
before him and in case vacancies within
the District Agra are not available in the
aforesaid period of four months, they
shall be accommodated immediately
thereafter whenever such vacancies first
accrue.

8. With the aforesaid, both the writ
petitions stand disposed of.
----------
(2020)06ILR A946
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. - 730 of 2017

Hari Singh ...Appellant (In Jail)
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellant:
Sri Vikash Singh, Sri Bhagi Rathi Tiwari

Counsel for the Opposite Parties:
A.G.A., Sri Amit Mishra

Criminal Law-Indian Penal Code, 1860Section 120B [read with section 420,
467, 468, 471 IPC and section 13(2)
read with section 13(1)(d) Prohibition of
Corruption Act, 1988 ] - 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. Mohd. Giasuddin Vs St. of AP, AIR 1977 SC
1926.
6 All. Hari Singh Vs. State of U.P. & Anr. 947
2. Sham Sunder Vs Puran, (1990) 4 SCC 731.

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

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

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

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

7. St. of Punjab Vs Bawa Singh, (2015) 3 SCC
441.

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

9.
Kokaiyabai
Yadav
Vs
St.
of
Chhattisgarh(2017) 13 SCC 449.

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

11. Jameel Vs St. of UP (2010) 12 SC 532.

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

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

14. State of Punjab Vs Bawa Singh, (2015) 3
SCC 441.

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

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

1. Learned counsel for the accusedappellant has submitted that the accusedappellant Hari Singh has been convicted
in Special Case No. 20 of 2011, arising
out of same Case Crime No. 23 of 2004
(CBI Vs. Badri Prasad and others), RC-
0072004A0006, P.S. CBI Dehradun,
District Dehradun and sentenced for the
offence under section 120B I.P.C. [ read
with section 420, 467, 468, 471 IPC and
section 13(2) read with section 13(1)(d)
Prohibition of Corruption Act, 1988 ] for
05 years rigorous imprisonment and Rs.
5000/- fine each and in case of default in
payment of fine 03 months additional
rigorous imprisonment, for the offence
under section 420 IPC for 04 year
rigorous imprisonment and Rs. 2000/-
fine each and in case of default in
payment of fine 02 months additional
rigorous imprisonment, for the offence
under section 467 I.P.C. for 07 years
rigorous imprisonment and Rs. 7000/-
fine each and in case of default in
payment of fine 06 months additional
rigorous imprisonment, for the offence
under section 468 I.P.C. for 04 years
rigorous imprisonment and Rs. 2000/-
fine each and in case of default in
payment of fine 02 months additional
rigorous
imprisonment
and
for
the
offence under section 471 IPC for 01 year
rigorous imprisonment and Rs. 1000/-
fine each and in case of default in
payment of fine 01 months additional
rigorous imprisonment. The learned trial
court has directed that the sentences in all
the sections shall run concurrently.

2. The brief facts leading to this
criminal appeal is that the accused
persons had got employment in the Postal
Department by submitting forged and
fabricated educational documents of their
High
School,
Intermediate
and
Graduation
and
those
fabricated
documents were prepared by the accused
persons. It was also mentioned in the
prosecution story that the present accused
Hari Singh had submitted the marks sheet
of intermediate examination, 1987 issued
by Madhyamik Shiksha Parishad, Uttar
Pradesh in the name of MGHM, Inter
Colege, Merehra, Etah. In the forged
marksheet, the marks were shown by the
accused 254 out of 500 and on the basis
948 INDIAN LAW REPORTS ALLAHABAD SERIES
of fake, forged and fabricated educational
documents the present accused has
secured job in the postal department,
Moradabad. The Central Bureau of
Investigation has investigated the matter
and submitted chargesheet against the
present accused and the other co-accused.

3. The present accused was tried for
the offence under Sections 120B, 420B
read with section 120B, 467 read with
section 120B, 468 read with section
120B, 471 read with section 171 and
Section 3(2) read with section 13(i)(d)
Prevention of Corruption Act, 1988. The
trial court convicted the accused by the
impugned order.

4. Learned counsel for the appellant
has submitted that two accused persons
who were also convicted by the trial court
along with present appellant and their
criminal appeals have been disposed of by
another Bench of this Court and their
sentence has been modified. He further
submitted that although the trial court has
convicted the present accused on the basis
of mere conjuncture while the appellant is
absolutely innocent.

5. Learned counsel for the appellant
has also submitted that offence was
committed in the year 1992 and the
accused had been removed from service
and when he was removed from service
he was a young man; that there is no
bread earner in the family of the
appellant. He next submitted that it was
the first offence of the accused and after
conviction the accused had not indulged
in any other criminal activity. He further
submitted 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
lenient view considering the age of the
accused and his age related ailments.

6. It has been pointed out that the
lower court record has not been received.
In this situation, where the learned
counsel for the appellant has opted to
argue on quantum of sentence, I do not
find any restriction or any need for
original record.

7. List has been revised. None is
present on behalf of C.B.I., though Sri
Vikash Singh, learned for the appellant
and Sri Ravi Prkash Pandey and Sri S.B.
Maurya, learned A.G.A. for the State are
present and perused the record.

8. At the very outset, Vikas Singh,
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.

9. Learned counsel for the accusedappellant has submitted that accusedappellant is in jail since 22.12.2016 from
the date of judgement and prior to that he
was in jail for three years and two months
and as such he was in jail about 04 years,
and therefore, he has requested that
considering the period he is in jail, a
lenient view may be adopted and the
sentence
may
be
converted
either
undergone or the sentence may be
substantially reduced.

10.

Learned
A.G.A.
have
vehemently opposed the prayer, he has
however,
submitted
that
if
slight
reduction in sentence is made, he has no
objection.
6 All. Hari Singh Vs. State of U.P. & Anr. 949

11. I have perused the entire
material available on record and the
evidence, as well as judgement of the trial
court, it is apparent from the record that
the accused has submitted the forged and
fabricated marks sheet just to get the
employment in the Postal Department and
on that basis the appeal of the present
accused deserves to be rejected on merits.

12. 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."

13. 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."

14. 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
950 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

15. 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.

16. 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.

17. 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.

18. 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
6 All. Hari Singh Vs. State of U.P. & Anr. 951
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.

19. 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.

20. 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. It believes
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.

21. In the facts and circumstances of
the case, the highest sentence which has
been awarded by the learned trial court is
of 07 years under section 467 I.P.C. the
remaining sentence are much less in
comparison to it, therefore, the sentence
awarded under section 467 I.P.C. if
reduced by 02 years against the awarded
sentence of 7 years, the ends of the justice
will be served. From perusal of the
judgement, it appears that the sentence in
all other sections have been directed to
run concurrently and it has also been
directed that the period in which the
accused persons were in jail shall be
accommodated
in
their
sentence,
therefore, there is no necessity for
disturbing the sentence which has been
awarded in other sections.

22. So far as quantum of fine is
concerned, it appears to be adequate and
it is not required to be disturbed.
However, the default sentence in lieu of
fine may be reduced to some extent to
serve the ends of justice.

23. Accordingly, the conviction is
upheld. The appeal is finally disposed of
with the modification that the sentence of
07 years rigorous imprisonment for the
offence under section 467 I.P.C. is
reduced by 02 years and the default
sentence in lieu of fine under section 120B IPC is reduced from 03 months
rigorous imprisonment to 01 months
rigorous imprisonment, under section 420
IPC is reduced from 02 months rigorous
imprisonment to 01 months rigorous
imprisonment, under section 467 IPC is
reduced
from
06
months
rigorous
imprisonment to 2 months rigorous
imprisonment, under section 468 IPC is
reduced
from
02
months
rigorous
imprisonment to 01 months rigorous
imprisonment and under section 471 IPC
is reduced from 01 months rigorous
imprisonment
to
15
days
rigorous
imprisonment.
952 INDIAN LAW REPORTS ALLAHABAD SERIES

24. Office is directed to transmit the
lower court record along with copy of this
judgment to the learned court below for
information and necessary compliance as
warranted.
----------
(2020)06ILR A952
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 02.06.2020

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Capital Sentence No. 1 of 2017
&
Criminal Appeal No. 358 of 2017

State of U.P. ...Appellant
Versus
Ram Gopal Saini ...Respondent

Counsel for the Appellant:
Govt. Advocate, Nagendra Mohan

Counsel for the Respondent:
-----

Section 302 IPC- Appeal against conviction.

Standard of Proof -
Deficiency
and
investigation-need
for
establishing chain of events to prove guilty of
accused.

Omission on part of investigation -
No FIR registered by police without any
satisfactory explanation which adversely affect
prosecution case and caused doubt.

Delay in recording-the statement of
witnesses -
Caused serious doubt as to genuineness of
prosecution
case
and
rendering
the
investigation defective.

Section 173 (2) Cr.P.C.-Submission of
charge sheet -
In absence of direct evidence or insufflated
circumstantial evidence submission of charge
sheet against the accused illegal. (Para 51 &
52 )

Credibility of evidence -
Inimical and interested witness - Testimony -
to be considered concisely by the trial.

Motive -
Death by pesticide poison - prosecution failed
to prove the motive any evidence or procuring
pesticide by accused.

Circumstantial evidence -
The accused were not last seen with the
deceased.

Hostile witnesses -
And failure to prove other circumstances -
failure to discharge initial burden of proof.

The failure of prosecution to prove it's
case beyond reasonable doubt-
The conviction by trial court based only on
speculation, inferences and suspicion.

Appeal allowed.

List of cases cited:-

1. Sharad Birdhchand Sarda Vs. St. of Maha.
[(1984) 4 SSC 116]