# Mahendra Rai & Anr v. State of U.P

- **Citation:** (2021) 11 ILRA 65
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-05
- **Case number:** Criminal Appeal No. 1709 of 1981
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-rai-anr-v-state-of-u-p-46603
- **Pages:** 6

## Headnote

(A) Criminal Law - The Indian Penal Code,
1860 - Section 307/34 - Appeal against
conviction
-
Rehabilitary
&
Reformative
aspects
in
sentencing
-
doctrine
of
proportionality
- Discretion of Court in
awarding
sentence
cannot
be
exercised
arbitrarily or whimsically - in operating the
sentencing
system,
law
should
adopt
corrective machinery or deterrence based on
factual matrix - duty of every court to award
proper sentence having regard to nature of
offence and manner of its commission -
striking a balance between reform and
punishment - criminal justice jurisprudence
adopted in the country is not retributive but
reformative
and
corrective.(Para
-
11,14,15,17)
Accused along with his family members armed with
lathi-danda and country made pistol - assaulted uncle
of the informant - fell down - accused-appellant
assaulted on his knee by lathi - injuries caused by
hard and blunt object - simple in nature - chargesheet.submitted against appellant - does not propose
to challenge the impugned judgement and order on
its merits - modification of order of sentence for the
period already undergone.(Para -5,10)

HELD:- The injuries sustained by the victim were not
grievous in nature and fatal to life. Appellant suffered
physical and mental agony of trial and after conviction
for a long period of about 45 years, the sentence
awarded to him under Section 307/34 is converted
under Section 324 I.P.C with a fine of Rs. 1000/- each
and at this stage it does not appear appropriate to
send the accused-appellant to jail.(Para - 19,20)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

## Text

11 All. Mahendra Rai & Anr. Vs. State of U.P.
65
Rs.25,000/-. In case of default of fine, the
appellant shall undergo additional simple
imprisonment for one year. Sentence for the
offence under Section 363 IPC shall remain
intact. On reliazation of fine, the victim shall be
paid Rs.25,000/- as compensation. All sentences
shall run concurrently.

22. Accordingly, the appeal is partly
allowed with the modification of the sentence, as
above.
----------
(2021)11ILR A65
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.10.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 1709 of 1981

Mahendra Rai & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri N.N. Singh, Sri A.P. Sahi, Sri D.K. Singh

Counsel for the Opposite Party:
A.G.A., Sri K.K. Misra, Sri U.K. Misra

(A) Criminal Law - The Indian Penal Code,
1860 - Section 307/34 - Appeal against
conviction
-
Rehabilitary
&
Reformative
aspects
in
sentencing
-
doctrine
of
proportionality
- Discretion of Court in
awarding
sentence
cannot
be
exercised
arbitrarily or whimsically - in operating the
sentencing
system,
law
should
adopt
corrective machinery or deterrence based on
factual matrix - duty of every court to award
proper sentence having regard to nature of
offence and manner of its commission -
striking a balance between reform and
punishment - criminal justice jurisprudence
adopted in the country is not retributive but
reformative
and
corrective.(Para
-
11,14,15,17)
Accused along with his family members armed with
lathi-danda and country made pistol - assaulted uncle
of the informant - fell down - accused-appellant
assaulted on his knee by lathi - injuries caused by
hard and blunt object - simple in nature - chargesheet.submitted against appellant - does not propose
to challenge the impugned judgement and order on
its merits - modification of order of sentence for the
period already undergone.(Para -5,10)

HELD:- The injuries sustained by the victim were not
grievous in nature and fatal to life. Appellant suffered
physical and mental agony of trial and after conviction
for a long period of about 45 years, the sentence
awarded to him under Section 307/34 is converted
under Section 324 I.P.C with a fine of Rs. 1000/- each
and at this stage it does not appear appropriate to
send the accused-appellant to jail.(Para - 19,20)

Criminal Appeal partly allowed. (E-7)

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

5. Guru Basavraj Vs St. of Karnatak, (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 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
66 INDIAN LAW REPORTS ALLAHABAD SERIES
14. Guru Basavraj Vs St. of Karnatak, (2012) 8 SCC
734

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

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

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

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

1. Learned counsel for the accusedappellants submits that the appellant no. 2
Balram had died and in this regard, CJM,
Azamgarh has submitted its reported dated
14.9.2021.

2. Considering the report of the CJM,
Azamgarh, appeal against the appellant no.2
Balram stands abated.

3. Heard Sri Durgesh Kumar Singh,
learned counsel for the surviving appellants, Dr.
S.B. Maurya, learned A.G.A. and perused the
record.

4. This criminal appeal has been filed
against a judgement dated 01.08.1981 passed by
the IVth Addl. District & Sessions Judge,
Azamgarh in S.T. No. 72 of 1977, whereby
learned Judge had convicted the appellants
under sections 307/34 IPC and sentenced them
to undergo four years rigorous imprisonment.

5. The prosecution story in brief is that an
FIR of the incident was lodged on 1.12.1974 in
which it has been mentioned that on 1.12.1974,
Poojan Rai, the uncle of the informant was
threshing the crop of paddy at his door and at
that time the accused Nar Singh Rai came at the
house of his neighbourer Dhanesar and was
talking with him. Regarding engagement of
labour, Poojan Rai asked the accused Nar Singh
Rai to contest the litigation peacefully and it is
not proper to beat or prevent the labour and on
this, an altercation took place between them and
thereafter accused Nar Singh Rai abused the
informant's uncle and accused Triloki Rai has
threatened to kill him. The accused Nar Singh
Rai along with his family members armed with
lathi-danda and country made pistol came at the
door of the informant and on exhortation
accused Nar Singh Rai had assaulted upon the
head of Poojan Rai and thereafter Poojan Rai
fell down and then accused-appellant Mahendra
had assaulted on his knee by lathi. The PW-4 Dr.
Santosh Kumar Srivastava has examined the
injured and he found that the injuries, which
were caused by hard and blunt object, were
simple in nature. The Investigating Officer, after
completion of investigation, has submitted
charge-sheet.

6. The trial court recorded statements of
the witnesses and after hearing the argument of
both the sides, convicted the appellants as
aforesaid.

7. 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
appellants.

8. Learned counsel for the appellant
submits that initially the FIR was lodged against
ten persons and only two persons were convicted
by the trial court and the specific role assigned
to the surviving appellant that he had assaulted
injured Poojan Rai on his knee and other
accused Nar Singh Rai was assigned the role of
assaulting him on his head. Learned counsel for
the appellant has further submitted that the
accused Nar Singh Rai had died during the trial.
Learned counsel for the appellant has further
submitted that the present surviving accused
should not be convicted under section 307 IPC
and he should have been convicted under
11 All. Mahendra Rai & Anr. Vs. State of U.P.
67
sections 323 or 325 IPC and he has further
submitted that he does not want to press the
appeal on merit as the present appellant is 85
years of age. He next submits that although the
trial court has convicted the present accused on
the basis of mere conjuncture while the appellant
is absolutely innocent and has been falsely
implicated in this case with the ulterior intention
of harassing him. Further submission is that
there is no bread earner in the family of the
appellant. He also 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.

9. 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.

10. 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.

11. 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."

12. 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."

13. 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
68 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

14. 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.

15. 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.

16. 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.

17. 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
11 All. Mahendra Rai & Anr. Vs. State of U.P.
69
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."

18.

Considering
the
facts
and
circumstances of the case and the substantive
period already undergone by the appellant in this
case and the fact that the surviving appellant is
old and aged person; and he has realized the
mistake committed by him and are remorseful to
his conduct and feel it necessary to serve with
his polite and cooperative behaviour to the
society to which he belongs to and now he wants
to transform themselves into a law abiding
citizen, I am of the considered opinion that he
should be given a chance to reform himself and
extend his better contribution to the society to
which he belongs to.

19.

Considering
the
facts
and
circumstances of the case, considering the
evidence available on record and considering
that the doctor in his statement has not stated
anywhere that the injuries sustained by the
victim were grievous in nature and it was fatal to
life, this Court deems it fit to alter the conviction
from section 307/34 I.P.C. to section 324 I.P.C.

20.

Consequently,
taking
into
consideration the period already undergone in
prison by the appellant in this case as well as
considering that he has suffered physical and
mental agony of trial and after conviction for a
long period of about 45 years, the sentence
awarded to him under Section 307/34 is
converted under Section 324 I.P.C with a fine of
Rs. 1000/- each and at this stage it does not
appear appropriate to send the accused-appellant
to jail.

21. Accused-appellant is directed to
deposit the fine of Rs. 1,000/- before learned
lower court within three months from the date of
passing of the judgement, the entire amount
deposited by the appellant 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, he shall
undergo simple imprisonment for a period of
fifteen days.

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

23. 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.

24. 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.

25. 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
70 INDIAN LAW REPORTS ALLAHABAD SERIES
said Aadhar Card is linked before the concerned
Court/Authority/Official.

26. 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.
----------
(2021)11ILR A70
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 2436 of 2013

Rajiv @ Paji ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri S.K. Srivastava, Sri Anuj Srivastava, Sri
Ravendra Singh, Sri V.K. Srivastava

Counsel for the Respondent:
A.G.A., Sri Chetan Chatterjee

(A) Criminal Law - The Indian Penal Code,
1860 - Sections 376 & 511 - The Code of
criminal procedure, 1973 - Sections 164 & 313
-appeal against conviction - Rehabilitary &
Reformative aspects in sentencing - proper
sentence - quantum of sentence - doctrine of
proportionality
-
Discretion
of
Court
in
awarding
sentence
cannot
be
exercised
arbitrarily or whimsically - in operating the
sentencing system, law should adopt corrective
machinery or deterrence based on factual
matrix - duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission - striking a
balance between reform and punishment -
criminal justice jurisprudence adopted in the
country is not retributive but reformative and
corrective - undue harshness should be avoided
taking into account the reformative approach
underlying in criminal justice system .(Para -
18,19,20,22)

Accused committed rape with seven years old
daughter
of
complainant
-
accused-appellant
convicted under Section 376 IPC - sentenced to
imprisonment for life with fine of Rs.20,000/-.

HELD:- 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. Sentence
awarded by trial court for life term is very harsh .
Sentence awarded to appellant by trial-court modified
and reduced to ten years rigorous imprisonment.
Imposition of fine and additional imprisonment in case
of default of fine shall remain intact. Rs.15,000/- shall
be paid as compensation to the victim.(Para -
20,23,24)

Criminal Appeal partly allowed. (E-7)

List of Cases cited:-

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

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

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

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

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

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

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

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

(Delivered by Hon'ble Ajai Tyagi, J.)

1. By way of this appeal, the appellant-
Rajiv @ Paji has challenged the Judgment and
order dated 6.5.2013 passed by court of
Additional
Sessions
Judge,
Court
No.4,