# Mohd. Javed (In Jail) v. State of U.P

- **Citation:** (2021) 7 ILRA 142
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-18
- **Case number:** Criminal Appeal No. 304 of 2020
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-javed-in-jail-v-state-of-u-p-47067
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
374(2)
-
Narcotics
Drugs
and
Psychotropic
Substance Act, 1985-Sections 18,20, 21conviction-prayer for lenient view on the
quantum
of
sentence-accused
only
member of the family to look after his
parents-no criminal history-accused did
not press legality of sentence, but he
pressed only on the quantum of sentence
as he had already served out for two years
and four months.(Para 5)

B. The criminal can ordinarily be redeemed
and the state has to rehabilitate rather
than avenge. Apex court laid emphasis on
proportional sentencing by affirming the
doctrine
of
proportionality.
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 impact
on the society as a whole has to be
seen.(Para 8 to 17)

The appeal is partly allowed. (E-5)

List of Cases cited:

## Text

142 INDIAN LAW REPORTS ALLAHABAD SERIES
Consolidation could not have assumed her
to be the unmarried daughter entitled to
succeed along with the petitioners, prima
facie, appears to have force and requires
consideration.

20. Issue notice to the opposite party
No. 3.

21. The opposite parties may file
counter affidavit within a period of six weeks.

22. Rejoinder affidavit may be filed
within one week thereafter.

23. List in the month of August, 2021.

24. The petitioners have made out a
case of grant of interim order. The orders
under challenge shall remain stayed and the
parties shall not change the nature of property
in suit nor shall create any third party interest
till the next date of listing.
----------
(2021)07ILR A142
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 304 of 2020

Mohd. Javed ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Petitioner:
Sri Mukesh Kumar

Counsel for the Respondents:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure,
1973-Section
374(2)
-
Narcotics
Drugs
and
Psychotropic
Substance Act, 1985-Sections 18,20, 21conviction-prayer for lenient view on the
quantum
of
sentence-accused
only
member of the family to look after his
parents-no criminal history-accused did
not press legality of sentence, but he
pressed only on the quantum of sentence
as he had already served out for two years
and four months.(Para 5)

B. The criminal can ordinarily be redeemed
and the state has to rehabilitate rather
than avenge. Apex court laid emphasis on
proportional sentencing by affirming the
doctrine
of
proportionality.
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 impact
on the society as a whole has to be
seen.(Para 8 to 17)

The appeal is partly allowed. (E-5)

List of Cases cited:

1. Mohd. Giasuddin Vs St. of A.P. (1977) AIR
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 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 421

10. Raj Bala Vs St. of Har. (2016) 1 SCC 463
7 All. Mohd. Javed Vs. State of U.P.
143
11. Kokaiyabai Yadav Vs St. of Chhattisgarh
(2017) 13 SCC 449

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

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

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

1. Heard Sri Mukesh Kumar,
learned counsel for the appellant and
learned A.G.A. for the State and
perused the record.

2. This criminal appeal has been
filed against the judgement and dated
14.02.2019
passed
by
Additional
Sessions Judge 9th, Kanpur Nagar, in
S.T. No. 1035 of 1998 (State Vs. Mohd.
Javed), arising out of Case Crime no.
326 of 1996, under Section 18/20/21 of
N.D.P.S. Act, P.S. Naubasta, District
Kanpur Nagar, whereby learned Judge
convicted and sentenced the appellant
to five years rigorous imprisonment
under Section 18-C of N.D.P.S., Act
with a fine of Rs. 25,000/- and in
default of payment of fine, further
additional
imprisonment
for
three
months.

3. The prosecution story in brief is
that on 18.04.1996 Sri Uday Pratap Singh
SHO along with some other police
personnel were on patrolling dutyin
search of wanted criminals near Gopal
Nagar bypass, suddenly two persons were
seen coming together on scooter no.
UMY-371 from Gopal Nagar and when
they saw the police jeep they started
running towards back side. On suspicion,
the police party chased them and caught
hold the suspected persons before gopal
nagar tri crossing adjacent to ara
machine of Ram Dhani Sharma. After
catching the suspected persons the police
enquired about running away after seeing
the police personnel then the suspected
persons admitted that they were having
smack and poppy straw. When the police
asked them whether they are interested to
search by a Gazetted Officer then the
accused persons told that now we are in
your custody so you may search out.
When the police personnel asked the
people and shop keepers for witnessing
they denied to be witness of the incident.
After being enquired the suspected
person told their names as Ramesh
Chandra Gupta @ Babloo son of Laxmi
Shanker Gupta, resident of 133, Gopal
Nagar, Naubasta, Kanpur Nagar and
Mohd. Javed son of Mohd Sareef, R/o.
126/11, NLC Colony Thana Babupurwa,
Kanpur Nagar. From the possession of
Ramesh Chandra Gupta @ Babloo a
white coloured polythene in which 1 1/2
Kg. poppy straw was kept and from
another polythene bag 150 grams of
smack was also recovered. From the
possession of Mohd. Javed 1 1/2 Kg.
poppy straw was recovered in two
polythene bags and from his pocket about
125 grams smack was also recovered.
When the police personnel enquired
about the licence they fail to show the
licence.

4. At the very outset, 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.
144 INDIAN LAW REPORTS ALLAHABAD SERIES

5. In furtherance to his submission,
the learned counsel for the accusedappellant submits that the accused appellant
had been in jail during trial and after
conviction he is in jail. As such, the
accused has already served out for about
two years and four months of the sentence.
The accused-appellant is a young man and
he is the only male member in the family to
look after his parents. 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 and surmises
while the appellant is absolutely innocent
and has been falsely implicated in this case
with the ulterior intention of harassing him.
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
lenient view considering the age of the
accused and his age related ailments.

6. 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.

7. 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.

8. 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."

9. 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."

10. In State of MP vs Najab Khan,
(2013) 9 SCC 509, the high court, while
upholding conviction, reduced the sentence
7 All. Mohd. Javed Vs. State of U.P.
145
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
considering the imposition of appropriate
punishment.

11. 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.

12. 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.

13. 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.

14. In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
146 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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.

15. 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.

16. 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.

17. Accordingly, the conviction is
upheld. The appeal is partly allowed with
the modification of the sentence by the
period already undergone and served out by
the appellant and with fine of Rs. 10,000/-.
Appellant shall deposit a fine of Rs.
10,000/- before the learned court below
within four months from the date of passing
of the judgment and in default of payment
of fine the accused-appellant shall further
under go one month imprisonment.

18. 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.
7 All. Badri & Ors. Vs. State
147

19. 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.

20. 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)07ILR A147
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.07.2021

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE RAJENDRA KUMAR-IV, J.

Criminal Appeal No. 2752 of 1983

Badri & Ors. ...Appellants (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri Mohan Chandra, Sri Arunkumar Mishra,
Sri C.S. Saran, Sri Kundan Singh, Sri N.P.
Midha, Sri Ram Pal Singh, Sri Ratan Singh,
Sri S.K. Kulsrestha, Sri Sanjiv Ratan, Sri
Shailendra Prakash

Counsel for the Respondent:
D.G.A., Sri N.P. Middha, Sri Sanjiv Ratan

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal
Code,1860-Sections
147,
302/149,
307/149-challenge
toconviction-accused
came
with
hand
grenade with common object to murder
informant and other family members over
the land dispute-informant's uncle was
issuless, he wanted to give his 6 beegha
land to informant- the accused/appellants
being cousins of informant was angry over
the matter-they succeeded in executing
their
plan
successfully-ocular
version
stands
corroborated
by
the
medical
evidence-presence of PW-5 and PW-6 was
natural, their testimony is consistent in
respect of time and place of occurrencemerely
because
witnesses
are
close
relatives of victim, their testimonies can
not be discarded-relationship with one of
the parties is not a factor that affects
credibility of witness-more so, a relative
would not conceal the actual culprit and
make
allegation
against
an
innocent
person-they were subjected to lengthy
cross examination, but the defence could
not
succeed
in
impeaching
their
creditworthiness by extracting anything
suspicious.(Para 2 to 41)

B. It is a settled legal proposition that the
evidence of closely related witness or
interested witness is required to be carefully
scrutinized and appreciated. there is no hard
and fast rule that family members can never
be true witnesses to the occurrence and
that they will always depose falsely before
the court. it will always depend upon the
facts and circumstances of a given case. In
case the evidence has a ring of truth to it, is
cogent, credible and trustworthy, it can, and
certainly should, be relied upon.(Para 35 to
38)

The appeal is dismissed. (E-4)

List of Cases cited:

1. Sampath Kumar Vs. Inspr. of Police,
Krishnagiri (2012) 4 SCC 124

2. Sachin Kumar Singhraha Vs St. of M. P.
(2019) CRLA 473-474