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

- **Citation:** (2020) 6 ILRA 510
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-24
- **Case number:** Criminal Appeal No. 2378 of 2018
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahipal-anr-in-jail-v-state-of-u-p-45848
- **Pages:** 4

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 307 and 504 - Sentence to the
appellant of five years rigorous imprisonment
with fine of Rs. 2000 - Modification of the order
of the sentence for the period
already
undergone by the appellant-. He was awarded
maximum sentence of five years - The
6 All. Mahipal & Anr. Vs. State of U.P.
511
substantive period already undergone by the
appellant in this case and the fact that the
appellant is a young person and he is the only
bread earner in the family and that he might
have realized the mistake committed by him and
might remorseful of his conduct to the society to
which he belongs, he should be given a chance
to reform himself and his better contribution to
the society to which he belongs to - He has
already served about four years and it would be
appropriate and proper that the accused be
sentenced with the period already undergone
and the amount of fine be enhanced- The
accused-appellant is sentenced to the period
already undergone by him in jail during trial and
after conviction an amount of fine of Rs. 4000/-
be enhanced to Rs. 10,000/-.

Quantum of Sentence- Reformative Theory- The
substantive period already undergone by the
appellant in this case and the fact that the
appellant is a young person and he is the only
bread earner in the family and that he might
have realized the mistake committed by him and
might remorseful of his conduct to the society to
which he belongs, I am of the considered
opinion that he should be given a chance to
reform himself and his better contribution to the
society to which he belongs to.

The reformative approach to punishment as a
measure to reclaim the offender, lays emphasis
on rehabilitation so that the offender is
transformed into a good citizen. Accordingly, in
view of the fact that the appellant has already
undergone more than half period of his
sentence he should be given a chance to reform
himself. Sentence modified to the period already
undergone by the appellant and fine enhanced.
(Para 9, 10)

Criminal Appeal partly allowed. (E-3)

Case Law relied upon:-

## Text

510 INDIAN LAW REPORTS ALLAHABAD SERIES
hanged, nothing further can undo the mischief
for the wrong resulting from the unmerited
conviction is irretrievable. To take another
instance, if an innocent person is sent to jail and
undergoes the sentence, the scars left by the
miscarriage of justice cannot be erased by any
subsequent act of expiation. Not many persons
undergoing the pangs of wrongful conviction
are fortunate like Dreyfus to have an Emile
Zola to champion their cause and succeed in
getting the verdict of guilt annulled. All this
highlights the importance of ensuring, as far as
possible, that there should be no wrongful
conviction of an innocent person. Some risk of
the conviction of the innocent, of course, is
always
there
in
any
system
of
the
administration of criminal justice. Such a risk
can be minimised but not ruled out altogether.
It may in this connection be apposite to refer to
the following observations of Sir Carleton Allen
quoted on page 157 of "The Proof of Guilt" by
Glanville Williams, Second Edition:

"I dare say some sentimentalists
would assent to the proposition that it is
better that a thousand, or even a million,
guilty persons should escape than that one
innocent person should suffer; but no
responsible and practical person would
accept such a view. For it is obvious that if
our ratio is extended indefinitely, there
comes a point when the whole system of
justice has broken down and society is in a
state of chaos."

The fact that there has to be clear
evidence of the guilt of the accused and that in
the absence of that it is not possible to record a
finding of his guilt was stressed by this Court in
the case of Shivaji Sahabrao Bobade & Anr.
(AIR 1973 SC 2622) as is clear from the
following observations:

"Certainly it is a primary principle
that the accused must be and not merely may be
guilty before a court can convict and the mental
distinction between 'may be' and 'must be' is
long and divides vague conjectures from sure
considerations."

25. Taking cumulative effect of the
evidence, we find it difficult to uphold the
conviction of the appellants. They are entitled to
get the benefit of doubt.

26. Accordingly, the appeals succeed and
are allowed. The impugned judgment is setaside.

27. Appellant Satyapal Singh, Smt.
Munisha Devi and Pankaj are on bail and,
therefore, no further order is required in their
respect.

28. Rest of the appellants are in jail, they
be set free forthwith if not required in any other
case
----------
(2020)06ILR A510
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 2378 of 2018

Mahipal & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Brijesh Kumar Pandey

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

Criminal Law - Indian Penal Code, 1860 -
Sections 307 and 504 - Sentence to the
appellant of five years rigorous imprisonment
with fine of Rs. 2000 - Modification of the order
of the sentence for the period
already
undergone by the appellant-. He was awarded
maximum sentence of five years - The
6 All. Mahipal & Anr. Vs. State of U.P.
511
substantive period already undergone by the
appellant in this case and the fact that the
appellant is a young person and he is the only
bread earner in the family and that he might
have realized the mistake committed by him and
might remorseful of his conduct to the society to
which he belongs, he should be given a chance
to reform himself and his better contribution to
the society to which he belongs to - He has
already served about four years and it would be
appropriate and proper that the accused be
sentenced with the period already undergone
and the amount of fine be enhanced- The
accused-appellant is sentenced to the period
already undergone by him in jail during trial and
after conviction an amount of fine of Rs. 4000/-
be enhanced to Rs. 10,000/-.

Quantum of Sentence- Reformative Theory- The
substantive period already undergone by the
appellant in this case and the fact that the
appellant is a young person and he is the only
bread earner in the family and that he might
have realized the mistake committed by him and
might remorseful of his conduct to the society to
which he belongs, I am of the considered
opinion that he should be given a chance to
reform himself and his better contribution to the
society to which he belongs to.

The reformative approach to punishment as a
measure to reclaim the offender, lays emphasis
on rehabilitation so that the offender is
transformed into a good citizen. Accordingly, in
view of the fact that the appellant has already
undergone more than half period of his
sentence he should be given a chance to reform
himself. Sentence modified to the period already
undergone by the appellant and fine enhanced.
(Para 9, 10)

Criminal Appeal partly allowed. (E-3)

Case Law relied upon:-

1. B.G. Goswami Vs Delhi Administration, (1973)
AIR 1457 SC

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

1. Learned counsel for the appellants
has very fairly stated that appellant no. 2,
Amar Singh has already served the
sentence and in view of the above, the
appeal against the appellant no. 2, Amar
Singh has become infructuous.

2. Having regard to the submission
made by the learned counsel for the
appellant, the appeal against appellant no.
2, Amar Singh is dismissed as infructuous.

3. This criminal appeal has been filed
against the judgement and order dated
13.3.2018 passed by Addl. Sessions Judge,
Court no. 1, Budaun in S.T. No. 472 of
2014 (State vs. Munendra and others),
under Sections 307 and 504 I.P.C., P.S.
Bisauli, district-Budaun, whereby learned
Judge
convicted
and
sentenced
the
appellant
to
five
years
rigorous
imprisonment with fine of Rs. 2000/- and
in default of payment of fine further
additional imprisonment for three months,
one year rigorous imprisonment under
Section 504 I.P.C. with a fine of Rs. 1000/-
and in default of payment of fine, further
additional imprisonment for one month.

4. Both the sentences shall run
concurrently.

5. The prosecution story in brief is
that on 14.6.2014 the complainant along
with his other family members had
returned back from the 'Lagun ceremony'
of his daughter Vimlesh and his other
daughter Kanti had come from her inlaws house to attend the marriage. On
15.6.2014 all the family members were
present at home in preparation for the
procession. Resident of same village
Munendra son of Amar Singh who was
armed with firearm started abusing them.
Along with Munendra, the residents of
same village namely, Mahipal and Amar
Singh, son of Natthu, who were having
512 INDIAN LAW REPORTS ALLAHABAD SERIES
firearms in their hands also came before
us and started abusing. When they
objected for abusing then at about 6:00
p.m. Munendra started firing with the
intention to kill us, which was hit Kanti,
as a result of which she collapsed on the
'kharanja'. The incident was witnessed by
the residents of the village namely, Gaurav
Kumar, Arvind, son of Chatrapal, Dinesh,
son of Munshi and several others. All the
accused persons after firing ran away
towards fields.

6. At the very outset, Sri Umesh Chandra
Tiwari, 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.

7.

Learned
counsel
for
the
appellant has submitted that only single
shot was fired by the accused Munendra
and no overt act of any kind has been
attributed to appellant no. 1, Mahipal.
He next submitted that at the time of
incident the accused was aged about 25
years and at present the accused is more
than 31 years of age. He has 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 family
status.
Learned
counsel
for
the
appellant
further
submits
that
the
appellant
was
awarded
rigorous
imprisonment of five years and that he
has already undergone two years before
conviction and about two years after
conviction, meaning thereby that he has
undergone about four years of the
awarded sentence.

8. While dealing with the quantum
of sentence, Hon'ble Supreme Court in
B.G.
Goswami
Vs.
Delhi
Administration, 1973 AIR 1457, held as
under:

"Now the question of sentence
is always a difficult question, requiring
as it does, proper adjustment and
balancing of various considerations,
which weigh with a judicial mind in
determining its appropriate quantum in
a given case. The main purpose of the
sentence broadly stated is that the
accused must realise that
he has
committed an act, which is not only
harmful to the society of which he
forms an integral part but is also
harmful to his own future, both as an
individual and as a member of the
society. Punishment is designed to
protect society by deterring potential
offenders as also by preventing the
guilty party from repeating the offence;
it is also designed to reform the
offender and reclaim him as a law
abiding citizen for the good of the
society as a whole.

Reformatory,
deterrent
and
punitive aspects of punishment thus play
their due part in judicial thinking while
determining this question. In modern
civilized societies, however, reformatory
aspect is being given somewhat greater
importance. Too lenient as well as too
harsh
sentences
both
lose
their
efficaciousness. One does not deter and the
other may frustrate thereby making the
offender a hardened criminal. In the present
case, after weighing the considerations
6 All. Hukam Singh & Anr. Vs. State of U.P.
513
already noticed by us and the fact that to
send the appellant back to jail now after 7
years of the annoy and harassment of these
proceedings when he is also going to lose
his job and to earn a living for himself and
for his family members and for those
dependent on him, we feel that it would
meet the ends of justice if we reduce the
sentence of imprisonment to that already
undergone but increase the sentence of fine
from Rs- 200/- to Rs. 400/-. Period of
imprisonment in case of default will remain
the same."

9.

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 appellant is a young person and he is
the only bread earner in the family and that
he might have realized the mistake
committed by him and might remorseful of
his conduct to the society to which he
belongs, I am of the considered opinion
that he should be given a chance to reform
himself and his better contribution to the
society to which he belongs to.

10. Considering the fact that the
accused is in jail since 13.3.2018. He was
awarded maximum sentence of five years;
that he has served two years before
conviction and about two years after
conviction; that he has already served about
four years and it would be appropriate and
proper that the accused be sentenced with
the period already undergone and the
amount of fine be enhanced.

11. Considering all the facts and
circumstances of the case, the accusedappellant is sentenced to the period already
undergone by him in jail during trial and
after conviction an amount of fine of Rs.
4000/- be enhanced to Rs. 10,000/-.

12. Accused-appellant is directed to
deposit the fine of Rs. 10,000/- before
learned lower court at the time of applying
for release order, out of which Rs. 9000/-
shall be paid to the injured, if he/she is
alive and in case he/she is dead, then it
would be paid to his/her legal heirs.

13. Appeal is partly allowed in the
above terms.

14. Copy of this order be transmitted
to the concerned lower court forthwith for
compliance.
----------
(2020)06ILR A513
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. - 4156 of 2017
&
Criminal Appeal No. - 1807 of 2019

Hukam Singh & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Anil Kumar Srivastava, Sri Ram Bahadur

Counsel for the Opposite Party:
A.G.A., Sri Bharat Singh

Criminal Law - Indian Penal Code, 1860Conviction of the appellants under Sections
394, 307 read with Section 34, 411 - and
sentenced to undergo 8 years rigorous
imprisonment with fine of Rs.10,000/- each under
Section 307 read with Section 34 I.P.C.. under
Section 394 I.P.C. for seven years rigorous
imprisonment with fine of Rs.5,000/- and under
Section 411 I.P.C. for three years rigorous
imprisonment with fine of Rs.5,000/- The
doctrine of proportionality sentencing for any