# Nadeem v. State of U.P. 868 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 8 ILRA 867
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-11
- **Case number:** Criminal Appeal No. 580 of 2019
- **Bench:** Saumitra Dayal Singh, Tej Pratap Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nadeem-v-state-of-u-p-868-indian-law-reports-allahabad-series-53825
- **Pages:** 18

## Headnote

G.A.

Issue for Consideration
Whether imposition of life imprisonment for
offences
under
Sections
395/120-B,
397/120-B, 412 IPC and Section 25 Arms
Act was justified, or whether the sentence
required modification in light of principles of
proportionality, absence of prior criminal
antecedents, young age of appellants, long
period of incarceration already undergone, and
mitigating circumstances, when conviction itself
was not pressed.

Headnotes
Indian Penal Code, 1860 - ss. 395, 397,
412, 120-B - Arms Act, 1959 - s.25 -
Criminal Procedure Code, 1973 - s.354(3)
-
Sentencing
-
Proportionality
-
Aggravating and mitigating circumstances
- Use of deadly weapon - Dacoity on
public highway - Life imprisonment -
Reduction of sentence.

Held:
For offences under Sections 395 and 397 IPC,
while the statute prescribes minimum sentence
of seven years where deadly weapon is used, it
does not mandate life imprisonment in every
case. Award of maximum punishment requires
judicial application of mind to aggravating and
mitigating circumstances and recording of
reasons as mandated by Section 354(3) Cr.P.C.
[Paras 16-20]

In the present case, aggravating circumstances
existed inasmuch as the offence was premeditated, committed on a public highway in
broad daylight, involving loot of public money
collected at a toll plaza, thereby impacting
societal sense of security. [Paras 40-41]

However,
equally
weighty
mitigating
circumstances were present: appellants were
very young (21 and 24 years) at the time of
offence;
had
no
prior
convictions;
were
acquitted in other connected cases; no grievous
injury or death was caused; only simple injuries
were proved; and appellants had already
undergone
about
14
years
of
actual
incarceration. [Paras 44-47]

Sentencing must adhere to the principle of
proportionality; maximum punishment of life
imprisonment ought to be reserved for gravest
cases.
Unduly
harsh
sentencing
without
balancing mitigating factors defeats reformative
goals of criminal justice and burdens appellate
courts. [Paras 28, 36-38]

Balancing three aggravating and two mitigating
factors,
sentence
of
14
years
rigorous
imprisonment was held
to be adequate,
proportionate and sufficient to meet ends of
justice. Conviction affirmed; sentence modified
from
life
imprisonment
to
14
years'
imprisonment with remission. [Paras 49-50]

Appeal partly allowed. (E-14)

Case Law Cited
Hem Chand v. State of Haryana, (1994) 6
SCC 727 - relied on; Narinder Singh v.
State of Punjab, (2014) 6 SCC 466 -
relied on; State of Punjab v. Prem Sagar,
(2008) 7 SCC 550 - applied; State of M.P.
v. Suresh, (2019) 14 SCC 151 - followed;
Balwant Singh v. State of Punjab, (1976) 1
SCC 425 - referred; Bachan Singh v. State
of Punjab, (1980) 2 SCC 684 - relied on;
Machi Singh v. State of Punjab, (1983) 3
SCC 470 - referred; Ruli Ram v. State of
Haryana, (2002) 7 SCC 691 - applied; Anil
alias Anthony Arikswamy Joseph vs State
of Maharashtra, (2014) 4 SCC 69; Anshad
vs State of Karnataka, (1994) 4 SCC 381;
Ramnaresh & Ors. vs Sate of Chhattisgarh,
(2012) 4 SCC 257; Suresh (2019) 14 SCC
151; P. Rathinam Vs. Union of India,
(1994) 3 SCC 394; Chandrakant Patil Vs.
State through CBI, (1998) 3 SCC 38;
Commissioner of Police & Ors. Vs. Sandeep
Kumar, (2011) 4 SCC 644.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Arms Act, 1959.

List of Keywords
Dacoity; Use of firearm; Section 397 IPC;
Sentencing
discretion;
Proportionality
of
8 All. Nadeem Vs. State of U.P.
869
punishment;
Life
imprisonment;
Mitigating
circumstances;
Young
offenders;
Long
incarceration; Reformative justice; Reduction of
sentence.

Case Arising From
Judgment and order dated 15.02.1984 passed
by
the
Vth
Additional
Sessions
Judge,
Shahjahanpur in Sessions Trial No. 140 of
1983 and Sessions Trial No. 141 of 1983
(State v. Sabir and others / State v. Khanne and
others), arising out of Case Crime No. 239 of
1982,
Police
Station
Kanth,
Di

## Text

_Characters 0–39,707 of 59,748. This is a partial read: ask again with offset=39707 for what follows._

8 All. Nadeem Vs. State of U.P.
867
perpetrators should have engaged in any
discussion, agreement or valuation. For
Section 34 to apply, it is not necessary that
the plan should be pre-arranged or hatched for a
considerable time before the criminal act is
performed. Common intention can be formed just a
minute before the actual act happens. Common
intention is necessarily a psychological fact as it
requires prior meeting of minds. In such cases,
direct evidence normally will not be available and
in most cases, whether or not there exists a
common intention has to be determined by drawing
inference from the facts proved. This requires an
inquiry into the antecedents, conduct of the co-
participants or perpetrators at the time and after
the occurrence. The manner in which the accused
arrived, mounted the attack, nature and type of
injuries inflicted, the weapon used, conduct or acts
of the co-assailants/perpetrators, object and
purpose behind the occurrence or the attack etc.
are all relevant facts from which inference has to be
drawn to arrive at a conclusion whether or not the
ingredients of Section 34 IPC are satisfied. We
must remember that Section 34 IPC comes into
operation against the co-perpetrators because they
have not committed the principal or main act,
which is undertaken/performed or is attributed to
the main culprit or perpetrator. Where an accused
is the main or final perpetrator, resort to Section 34
IPC is not necessary as the said perpetrator is
himself individually liable for having caused the
injury/offence. A person is liable for his own acts.
Section 34 or the principle of common intention is
invoked to implicate and fasten joint liability on
other co-participants."

The role of the appellants and their
presence at the spot and the nature of the incident
that emerges from the consistent account of the
three eye witnesses proves the prosecution case
beyond reasonable doubt.

CONCLUSION

28. In the present appeal, as the guilt of the
Appellant No. 4, Sabir has been established by
the prosecution beyond reasonable doubt under
Section 302 read with Section 34 IPC and the
judgement of the Trial Court is a well discussed
decision. We do not find any cogent reason to
interfere in it.

29. Accordingly, the Judgement and Order
of conviction dated 15.02.1984 passed by
learned Vth Additional Sessions Judge,
Shahjahanpur is hereby affirmed.

30. The Criminal Appeal is, accordingly,
dismissed.

31. The surviving Appellant No. 4, Sabir
is on bail. His bail bonds are cancelled and the
sureties discharged. He shall surrender before
the Court concerned within 30 days from the
date of the order to serve the remaining
sentence, failing which the Trial Court shall
take appropriate steps for the compliance.

32. The Registry is directed to transmit the
certified copy of the Judgement and Order of
this Court along with the records to the Court
concerned for necessary information and
compliance. It is further directed that the record
of the case transmitted by this Court shall be
kept in safe custody by the Trial Court.
----------
(2025) 8 ILRA 867
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2025

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.
THE HON'BLE TEJ PRATAP TIWARI, J.

Criminal Appeal No. 580 of 2019
With
Criminal Appeal No. 3056 of 2015

Nadeem ...Appellant
Versus
State of U.P. ...Respondent
868 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Divya Yadav, Srijan Mehrotra, Umesh Singh

Counsel for the Respondent:
G.A.

Issue for Consideration
Whether imposition of life imprisonment for
offences
under
Sections
395/120-B,
397/120-B, 412 IPC and Section 25 Arms
Act was justified, or whether the sentence
required modification in light of principles of
proportionality, absence of prior criminal
antecedents, young age of appellants, long
period of incarceration already undergone, and
mitigating circumstances, when conviction itself
was not pressed.

Headnotes
Indian Penal Code, 1860 - ss. 395, 397,
412, 120-B - Arms Act, 1959 - s.25 -
Criminal Procedure Code, 1973 - s.354(3)
-
Sentencing
-
Proportionality
-
Aggravating and mitigating circumstances
- Use of deadly weapon - Dacoity on
public highway - Life imprisonment -
Reduction of sentence.

Held:
For offences under Sections 395 and 397 IPC,
while the statute prescribes minimum sentence
of seven years where deadly weapon is used, it
does not mandate life imprisonment in every
case. Award of maximum punishment requires
judicial application of mind to aggravating and
mitigating circumstances and recording of
reasons as mandated by Section 354(3) Cr.P.C.
[Paras 16-20]

In the present case, aggravating circumstances
existed inasmuch as the offence was premeditated, committed on a public highway in
broad daylight, involving loot of public money
collected at a toll plaza, thereby impacting
societal sense of security. [Paras 40-41]

However,
equally
weighty
mitigating
circumstances were present: appellants were
very young (21 and 24 years) at the time of
offence;
had
no
prior
convictions;
were
acquitted in other connected cases; no grievous
injury or death was caused; only simple injuries
were proved; and appellants had already
undergone
about
14
years
of
actual
incarceration. [Paras 44-47]

Sentencing must adhere to the principle of
proportionality; maximum punishment of life
imprisonment ought to be reserved for gravest
cases.
Unduly
harsh
sentencing
without
balancing mitigating factors defeats reformative
goals of criminal justice and burdens appellate
courts. [Paras 28, 36-38]

Balancing three aggravating and two mitigating
factors,
sentence
of
14
years
rigorous
imprisonment was held
to be adequate,
proportionate and sufficient to meet ends of
justice. Conviction affirmed; sentence modified
from
life
imprisonment
to
14
years'
imprisonment with remission. [Paras 49-50]

Appeal partly allowed. (E-14)

Case Law Cited
Hem Chand v. State of Haryana, (1994) 6
SCC 727 - relied on; Narinder Singh v.
State of Punjab, (2014) 6 SCC 466 -
relied on; State of Punjab v. Prem Sagar,
(2008) 7 SCC 550 - applied; State of M.P.
v. Suresh, (2019) 14 SCC 151 - followed;
Balwant Singh v. State of Punjab, (1976) 1
SCC 425 - referred; Bachan Singh v. State
of Punjab, (1980) 2 SCC 684 - relied on;
Machi Singh v. State of Punjab, (1983) 3
SCC 470 - referred; Ruli Ram v. State of
Haryana, (2002) 7 SCC 691 - applied; Anil
alias Anthony Arikswamy Joseph vs State
of Maharashtra, (2014) 4 SCC 69; Anshad
vs State of Karnataka, (1994) 4 SCC 381;
Ramnaresh & Ors. vs Sate of Chhattisgarh,
(2012) 4 SCC 257; Suresh (2019) 14 SCC
151; P. Rathinam Vs. Union of India,
(1994) 3 SCC 394; Chandrakant Patil Vs.
State through CBI, (1998) 3 SCC 38;
Commissioner of Police & Ors. Vs. Sandeep
Kumar, (2011) 4 SCC 644.

List of Acts / Statutes
Code of Criminal Procedure, 1973; Indian Penal
Code, 1860; Arms Act, 1959.

List of Keywords
Dacoity; Use of firearm; Section 397 IPC;
Sentencing
discretion;
Proportionality
of
8 All. Nadeem Vs. State of U.P.
869
punishment;
Life
imprisonment;
Mitigating
circumstances;
Young
offenders;
Long
incarceration; Reformative justice; Reduction of
sentence.

Case Arising From
Judgment and order dated 15.02.1984 passed
by
the
Vth
Additional
Sessions
Judge,
Shahjahanpur in Sessions Trial No. 140 of
1983 and Sessions Trial No. 141 of 1983
(State v. Sabir and others / State v. Khanne and
others), arising out of Case Crime No. 239 of
1982,
Police
Station
Kanth,
District
Shahjahanpur.

Appearance for Parties
For the Appellants: Sri Rajiv Lochan Shukla
along with Sri Shashank Pandey and Sri
Abhishek Shukla; Umesh Singh
For the State: Vikas Goswami learned AGA-I

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Tej Pratap Tiwari, J.)

1. Heard Sri Rajiv Lochan Shukla
alongwith Sri Shashank Pandey and Sri
Abhishek Shukla learned counsel on behalf
of appellant-Khursheed, Sri Umesh Singh
learned counsel for the appellant-Nadeem
and Sri Vikas Goswami learned AGA-I for
the State.

2.
Present
appeal
arises
from
judgment and order dated 26.06.2015
passed by Sri Akhilesh Dubey Additional
Sessions Judge/Fast Track Court, J.P.
Nagar, in Sessions Trial No. 403 of 2011
(State
Vs.
Khursheed
and
others),
whereby the appellants as also the coaccused Amit have been convicted for
offence
under
Section
395/120B,
397/120B IPC and sentenced for life
together with fine Rs. 50,000/- each, with
default sentence of two years simple
imprisonment. They have also been
convicted for offence under Section 412
IPC and sentenced to ten years rigorous
imprisonment together with fine Rs.
25,000/- each with default sentence of
one year simple imprisonment. Also, they
have been convicted under Section 25
Arms Act and sentenced to two years
rigorous imprisonment together with fine
Rs. 2000/- and default sentence of two
months - in Sessions Trial No. 401 of
2011 (State Vs. Nadeem) and 402 of 2011
(State Vs. Khursheed). The appellants
have been acquitted in Sessions Trial No.
400 of 2011 for offence under Section
147, 148, 307/149 IPC and in Sessions
Trial No. 404 of 2011 for the offence
under Sections 395, 397 IPC.

3. Three appeals are listed before us
today. One by the appellant-Nadeem
(Criminal Appeal No. 580 of 2019),
second by the co-accused Amit (Criminal
Appeal No. 2936 of 2015) and third by
the
appellant-Khursheed
(Criminal
Appeal No. 3056 of 2015). At the outset,
learned counsel for the appellant Nadeem
and Khursheed have stated, they are not
pressing their appeals against the order of
conviction. They have confined their
submissions on the point of sentence
awarded, to those accused. Sri Anil
Mehrotra learned counsel appearing for
the third appellant-Amit stated, he would
be pressing that appeal on merits, against
conviction. Accordingly, we have heard
Criminal Appeal No. 580 of 2019
(Nadeem Vs. State of U.P.) and Criminal
Appeal No. 3056 of 2015 (Khursheed Vs.
State) only. Criminal Appeal No. 2936 of
2015 (Amit Vs. State) is detagged from
this batch. That appellant is on bail. That
appeal may be listed on its own turn.

4. On the issue of sentence, it may
only be noted that the present appellants
were charged as below:
870 INDIAN LAW REPORTS ALLAHABAD SERIES

Common charges against the
appellants Khursheed, Nadeem and coaccused Amit:

" प्रथमः यह क्रक हदनांक 14.03.2011
को समय 10:45 बजे बस्थान ग्रीन िैली होटल
के पास, पुभलस थाना रजबपुर, ण्जला ज्योततबा
फुले निर में आपने अपने अन्य सागथयों के
साथ भमलकर आपसी सहमतत के द्िारा
आपरागिक षड्यंत्र कर िादी मुक दमा राजीि
िटनािर के दो बैि, ण्जनमें से एक में
20,92,845/- रूपये ि दूसरे में लैपटॉप था, को
लूट ले िये, जो क्रक एक अिैि कायग था। इस
प्रकार आपका उक्त कृत्य िारा 120बी
िा०दं०सं० के अंतिगत दडिनीय अपराि है, जो
इस न्यायालय के प्रसंज्ञान में है।

द्ववतीयः यह क्रक उपरोक्त ततगथ,
समय एिं स्थान पर आप लोिों ने अपने एक
अन्य साथी के साथ संयुक्त रूप से, ण्जनकी
कुल संख्या पांि थी, भमलकर िादी मुकदमा
राजीि िटनािर से उसकी िाड़ी में रिे दो बैि,
ण्जनमें से एक में 20,92,845/- रूपये ि दूसरे में
लैपटॉप था, को लूट ले िये और एतद्द्िारा
आपने िकैती काररत की, जो िारतीय दडि
संहहता की िारा 395 के अिीन दडिनीय
अपराि है, जो इस न्यायालय के प्रसंज्ञान में है।

तृतीयः यह क्रक उपरोक्त ततगथ,
समय एिं स्थान पर आप लोिों ने अपने एक
अन्य साथी के साथ भमलकर घातक आयुिों से
सुसण्ज्जत
होकर
िादी
मुकदमा
राजीि
िटनािर से रूपया ि लैपटाप की लूट करते
समय िादी ि उसके सागथयों पर तमंिे से फायर
कर उनकी मृत्यु काररत करने या घोर उपहतत
काररत करने का प्रयत्न क्रकया, जो िारतीय
दडि संहहता की िारा 397 के अिीन दडिनीय
अपराि है, जो इस न्यायालय के प्रसंज्ञान में है।

चतुथाः यह क्रक उपरोक्त ततगथ, समय
एिं स्थान पर से लूटी ियी नकदी ि सामान,
ण्जसके कब्जे के विषय में आप यह जानते थे
क्रक िह िकैती द्िारा अन्तररत की ियी है, को
बेईमानी से प्राप्त क्रकया / पास रिा है, जो
सामूहहक रूप से आपके कब्जे से बरामद िी हुई
है और इसके द्िारा आपने ऐसा कायग क्रकया है,
जो िारतीय दडि संहहता की िारा 412 के
अिीन दडिनीय अपराि है, जो इस न्यायालय
के प्रसांज्ञान में है।"

Additional charge against the
appellant Khursheed (Sessions Trial No.
402 of 2011):

"यह क्रक हदनांक 14.03.2011 को
समय 13:00 बजे हदन स्थान सरकड़ी अजीज,
पुभलस थाना रजबपुर, ण्जला ज्योततबा फुले
निर में आपको पुभलस द्िारा मौके पर
गिरफ्तार करने पर आपके कब्जे से एक तमंिा
देशी 315 बोर नाजायज, तमंिे की नाल में फंसा
एक ताजा िला िोिा कारतूस ि पैंट की दाहहनी
जेब से दो अदद ण्जंदा कारतूस 315 बोर के
बरामद हुये हैं, ण्जसको रिने का कोई लाईसेंस
आपके पास नहीं था। इस प्रकार आपने ऐसा
कायग क्रकया है जो िारतीय आयुि अिीतनयम
की िारा 25 के अिीन दडिनीय अपराि है, जो
इस न्यायालय के प्रसंज्ञान में है।"

Additional charge against the
appellant Nadeem (Sessions Trial No. 401
of 2011):
8 All. Nadeem Vs. State of U.P.
871

"यह क्रक हदनांक 14.03.2011 को समय
13:00 बजे हदन स्थान सरकड़ी अजीज, पुभलस थाना
रजबपुर, ण्जला ज्योततबा फुले निर में आपको
पुभलस द्िारा मौके पर गिरफ्तार करने पर आपके
कब्जे से एक तमंिा देशी 12 बोर नाजायज, तमंिे
की नाल में फंसा एक ताजा िला िोिा कारतूस ि
पैंट की दाहहनी जेब से दो अदद ण्जंदा कारतूस 12
बोर के बरामद हुये हैं, ण्जसको रिने का कोई
लाईसेंस आपके पास नहीं था। इस प्रकार आपने ऐसा
कायग क्रकया है जो िारतीय आयुि अिीतनयम की
िारा 25 के अिीन दडिनीय अपराि है, जो इस
न्यायालय के प्रसंज्ञान में है।"

5. As noted above, the appellants have
been convicted for offences for which they
were charged in Sessions Trial No. 403 of
2011, 402 of 2011 and 401 of 2011. At the
same time, it may be noted, the appellants
have been acquitted of charges framed in
Sessions Trial Nos. 400 of 2011 and 404 of
2011.

6. Thus, the charge found proven against
the appellants is of committing dacoity with
use of deadly weapon, namely firearm. In that
they committed dacoity and looted Rs.
20,92,845/- alongwith a laptop computer
device, from Rajeev Bhatnagar (an employee
of a Toll Plaza), and Tejpal - on a highway, at
about 10.45 a.m., on 14.03.2011, when those
persons were carrying that cash (collected at
the Toll Plaza), to deposit at a bank. It is the
proven case of the prosecution that the
accused looted that cash and fled in their
Bolero vehicle. The said Rajeev Bhatnagar
shot at and hit the wheel of that moving
Bolero car. Then, the accused were chased
down by the police and the appellants
Khursheed and Nadeem alongwith two others
(declared juvenile), were arrested from the
spot. The accused Amit fled. He was
apprehended later. The entire cash together
with the laptop computer device, were
recovered from the appellants. Khursheed
and Nadeem remained in jail during trial.
After spending about 14 years in jail (actual),
the appellant Nadeem has been released on
bail, by this Court. At present, Khursheed has
remained confined for close to 14 years
(actual).

7. In such circumstances, Sri Rajiv
Lochan Shukla learned counsel appearing for
the appellants would submit, against the
minimum sentence awardable - seven years,
learned court below has awarded the maximum
punishment of life. In that, neither aggravating
circumstances are shown to exist nor all
mitigating circumstances have been considered,
before awarding the maximum sentence. The
appellants have been acquitted in two other cases
lodged against them - one of a previous
transaction - for a similar offence under Section
395 IPC wherein they are described to have
looted Rs. 2,03,000/- and another case that
pertained to the subsequent part of this
transaction wherein they are described to have
shot at the police party that was trying to
apprehend them. In both cases, the appellants
have been acquitted. It is undisputed, those
orders have attained finality.

8. Second, no gunshot injury was
caused or intended to be caused by the
appellant in the course of the transaction
for which they have been held guilty.

9. Third, only injuries proven by the
prosecution were simple in nature as was
established by Dr. Karunendra Dev Rahul
(P.W.-7).

10. Fourth, both appellants were
young in age - Khursheed being 24 years of
age and Nadeem being 21 years of age, on
the date of the occurrence. No prior
872 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction had been suffered by them for
like or other offence and no fact was
proven by the prosecution as may establish
propensity (of either of the appellants), to
commit criminal offence. Therefore, there
is every hope with the society in general
that those appellants have reformed upon
adequate sentence undergone.

11. Referring to the order passed by
the learned court below, it has been
stressed, the only aggravating circumstance
considered is of the occurrence caused in
broad day light, on a highway. In absence
of due consideration offered to the
mitigating circumstances, learned court
below has erred in law, in awarding the
maximum sentence.

12. At present, the appellants have
suffered fourteen years of incarceration (in
all). They would be about more than 30
years of age. Also, the appellant Khursheed
has four children born to him while the
appellant Nadeem has three children born
to him. In the absence of any doubt as to
presence of those mitigating circumstances,
the appellants may be released against
sentence undergone. In support of his
submissions, Sri Shukla has relied on four
decisions of the Supreme Court in Hem
Chand Vs. State of Haryana, (1994) 6 SCC
727, Narinder Singh and Others Vs. State
of Punjab and Another (2014) 6 SCC 466,
State of Punjab Vs. Prem Sagar and Others
(2008) 7 SCC 550 and State of Madhya
Pradesh Vs. Suresh (2019) 14 SCC 151.

13. On the other hand Sri Vikas
Goswami, learned AGA-I would submit,
there is no codified law with respect to
sentencing and the quantum of sentence
remains a matter of judicial discretion. At the
same time, well recognized principle exists -
to account for all aggravating and mitigating
circumstances, while awarding appropriate
sentence to the offenders, commensurate to
the proven offence. By way of aggravating
circumstances, (i) nature and gravity of the
offence, (ii) degree of deliberation and premeditation in committing the office, (iii)
impact of the offence on the victim and the
society, (iv) deterrent effect of the sentence
awarded and (v) previous proven criminal
history of the accused, may be considered.

14. At the same time, he would fairly
state - mitigating circumstances namely, (i)
age of the accused at the time of the
occurrence, (ii) any ailment afflicting the
accused and (iii) family responsibilities of the
accused, may also be considered to determine
the adequacy of the sentence to be awarded to
avoid undue harsh sentence being awarded.

15. In the context of the present facts he
would submit, there is absolutely no doubt
that the nature and gravity of the offence is
established alongwith the element of degree
of deliberation and pre-meditation, impact on
the society inasmuch the occurrence was
caused on a public highway, involving loot of
public money in broad day light. Therefore, a
deterrent punishment must be awarded
keeping the societal objectives in mind. As to
existence of mitigating circumstances, it
could not be denied that the appellants have
family responsibilities and they were young
in age, when they committed the offence, and
they have no criminal history of prior
conviction. He would submit, keeping in
mind the nature of the occurrence, the learned
court below has awarded adequate sentence.
It may not be interfered with.

16. Having heard learned counsel for
the parties and having perused the record,
we find Section 395 IPC reads as below:

"395. Punishment for dacoity.
8 All. Nadeem Vs. State of U.P.
873

Whoever commits dacoity shall
be punished with [imprisonment for life],
or with rigorous imprisonment for a term
which may extend to ten years, and shall
also be liable to fine."

(emphasis supplied)

Also, Section 397 IPC reads as
below:

"397. Robbery or dacoity, with
attempt to cause death or grievous hurt-

If, at the time of committing
robbery or dacoity, the offender uses any
deadly weapon, or causes grievous hurt to
any person, or attempts to cause death or
grievous
hurt
to
any
person,
the
imprisonment with which such offender
shall be punished shall not be less than
seven years.
(emphasis supplied)

17. Thus, for offence under Section
395 IPC not involving use of deadly
weapon or without causing grievous hurt
etc., the minimum awardable sentence may
be - any sentence, involving imprisonment
below ten years. However, if that offence is
committed involving either a deadly
weapon or upon causing grievous hurt etc.
(in that occurrence), it would enhance the
minimum sentence awardable to that
convict - to seven years, in accordance with
the provisions of Section 397 IPC. Also, it
may lead to the maximum sentence of
(remaining) life imprisonment.

18. Here, involvement of deadly
weapon in the occurrence is proven
inasmuch as the appellants are described to
have caused the occurrence brandishing
firearms. Therefore, to begin with the
minimum sentence awardable to the
appellants Nadeem and Khursheed may not
be below seven years. That is the base
punishment awardable for reason of all
ingredients of offence under Section 397
IPC being proven. That minimum sentence
has to be awarded by the court for reasons
of fulfilment of all ingredients of the
offence under Section 397 IPC.

19. Second, Section 354(3) Cr.P.C.
reads as below:

354. Language and contents of
judgment.

(1) ...

(2) ...

(3) When the conviction is for an
offence punishable with death or, in the
alternative, with imprisonment for life or
imprisonment for a term of years, the
judgment shall state the reasons for the
sentence awarded, and, in the case of
sentence of death, the special reasons for
such sentence.

(emphasis supplied)

20.
Also,
though
not
directly
applicable, Section 360(1) Cr.P.C. reads as
below:

360.
Order
to
release
on
probation of good conduct or after
admonition.

(1) When any person not under
twenty-one years of age is convicted of an
offence punishable with fine only or with
imprisonment for a term of seven years or
less, or when any person under twenty-one
years of age or any woman is convicted of
an offence not punishable with death or
imprisonment for life, and no previous
conviction is proved against the offender, if
it appears to the Court before which he is
convicted, regard being had to the age,
character or antecedents of the offender,
and to the circumstances in which the
offence was committed, that it is expedient
874 INDIAN LAW REPORTS ALLAHABAD SERIES
that the offender should be released on
probation of good conduct, the Court may,
instead of sentencing him at once to any
punishment, direct that he be released on
his entering into a bond, with or without
sureties, to appear and receive sentence
when called upon during such period (not
exceeding three years) as the Court may
direct and in the meantime to keep the
peace and be of good behaviour: Provided
that where any first offender is convicted by
a Magistrate of the second class not
specially empowered by the High Court,
and the Magistrate is of opinion that the
powers conferred by this section should be
exercised, he shall record his opinion to
that effect, and submit the proceedings to a
Magistrate of the first class, forwarding the
accused to, or taking bail for his
appearance before such Magistrate, who
shall dispose of the case in the manner
provided by sub-section (2).

(emphasis supplied)

21. In Balwant Singh vs State of
Punjab, (1976) 1 SCC 425, considering
the provisions of Section 354(3) Cr.P.C.,
the
Supreme
Court
underscored
the
requirement to give reasons for sentence
that may be awarded by a criminal court.
Besides the requirement to record special
reasons in the case of sentence of death. In
that regard, it was observed as below:

Under this provision the Court is
required to state the reasons for the
sentence awarded and in the case of
sentence of death, special reasons are
required to be stated.
(emphasis supplied)

22. Third, as to objective of punishment,
in Machi Singh & Ors. vs State of Punjab,
(1983) 3 SCC 470, observed as below:

The reasons why the community as
a whole does not endorse the humanistic
approach reflected in death sentence-in-nocase doctrine are not far to seek. In the first
place, the very humanistic edifice is
constructed on the foundation of reverence
for life principle. When a member of the
community violates this very principle by
killing another member, the society may not
feel itself bound by the shackles of this
doctrine. Secondly, it has to be realized that
every member of the community is able to live
with safety without his or her own life being
endangered because of the protective arm of
the community and on account of the rule of
law enforced by it. The very existence of the
rule of law and the fear of being brought to
book operates as a deterrent for those who
have no scruples in killing others if it suits
their ends. Every member of the community
owes a debt to the community for this
protection. When ingratitude is shown
instead of gratitude by killing a member of
the community which protects the murderer
himself from being killed, or when the
community feels that for the sake of selfpreservation the killer has to be killed, the
community may well withdraw the protection
by sanctioning the death penalty. But the
community will not do so in every case. It
may do so in rarest of rare cases when its
collective conscience is so shocked that it will
expect the holders of the judicial power
centre to inflict death penalty irrespective of
their personal opinion as regards desirability
or otherwise of retaining death penalty. The
community may entertain such a sentiment
when the crime is viewed from the platform of
the motive for, or the manner of commission
of the crime, or the anti-social or abhorrent
nature of the crime.

23. In that, it was further observed that
(i) Manner of commission of murder, (ii)
Motive for commission of murder, (iii)
8 All. Nadeem Vs. State of U.P.
875
Anti-social or socially abhorrent nature of
the crime,(iv) Magnitude of crime and, (v)
Personality of victim of murder, were
relevant factors to be considered by the
courts.

24.
In
Anil
alias
Anthony
Arikswamy
Joseph
vs
State
of
Maharashtra, (2014) 4 SCC 69, the
Supreme
Court
maintained
that
the
probability that the accused would not
commit criminal act of violence as may
constitute the threat to the society, is a
relevant circumstance. It may help the court
to determine if there is no possibility of
reformation and rehabilitation. In that, it
was observed as below:

In Bachan Singh [Bachan Singh
v. State of Punjab, (1980) 2 SCC 684 :
1980 SCC (Cri) 580] this Court has
categorically stated, the probability that
the accused would not commit criminal
acts of violence as would constitute a
continuing threat to the society, is a
relevant circumstance, that must be given
great weight in the determination of
sentence. This was further expressed in
Santosh
Kumar
Satishbhushan
Bariyar[Santosh
Kumar
Satishbhushan
Bariyarv.State of Maharashtra, (2009) 6
SCC 498 : (2009) 2 SCC (Cri) 1150]. Many
a times, while determining the sentence, the
courts take it for granted, looking into the
facts of a particular case, that the accused
would be a menace to the society and there
is no possibility of reformation and
rehabilitation, while it is the duty of the
court to ascertain those factors, and the
State is obliged to furnish materials for and
against the possibility of reformation and
rehabilitation of the accused. The facts,
which the courts deal with, in a given case,
cannot be the foundation for reaching such
a conclusion, which, as already stated,
calls
for
additional
materials.
We,
therefore, direct that the criminal courts,
while dealing with the offences like Section
302
IPC,
after
conviction,
may,
in
appropriate cases, call for a report to
determine, whether the accused could be
reformed or rehabilitated, which depends
upon the facts and circumstances of each
case.

(emphasis supplied)

25. Fourth, as to aggravating and
mitigating circumstance to be considered,
to award appropriate punishment, in
Bachan Singh vs State of Punjab, (1980)
2 SCC 684, considering the provisions of
legislative policy that underlines the
structure of our criminal law as contained
in the Indian Penal Code and the Criminal
Procedure Code, the Supreme Court first
observed - it may not be possible to make
an exhaustive enumeration of aggravating
and
mitigating
circumstances
to
be
considered while sentencing an offender.
At the same time, it was maintained that a
discretion to be exercised by the judge,
judicial, after balancing of aggravating and
mitigating circumstances of the crime.
Considering the same in the context of
capital
sentence,
following
pertaining
observations pertaining came to be made:
In that regard, it was observed as below:

202. Drawing upon the penal
statutes of the States in U.S.A. framed after
Furman v. Georgia [33 L Ed 2d 346 : 408
US 238 (1972)] , in general, and clauses 2
(a), (b), (c) and (d) of the Penal Code, 1860
(Amendment) Bill passed in 1978 by the
Rajya Sabha, in particular, Dr Chitale has
suggested
these
aggravating
circumstances:

Aggravating circumstances: A
court may, however, in the following cases
876 INDIAN LAW REPORTS ALLAHABAD SERIES
impose the penalty of death in its
discretion:

(a) if the murder has been
committed after previous planning and
involves extreme brutality; or

(b)
if
the
murder
involves
exceptional depravity; or

(c) if the murder is of a member
of any of the armed forces of the Union or
of a member of any police force or of any
public servant and was committed

(i) while such member or public
servant was on duty; or

(ii) in consequence of anything done
or attempted to be done by such member or
public servant in the lawful discharge of his
duty as such member or public servant whether
at the time of murder he was such member or
public servant, as the case may be, or had
ceased to be such member or public servant; or

(d) if the murder is of a person who
had acted in the lawful discharge of his duty
under Section 43 of the Code of Criminal
Procedure, 1973, or who had rendered
assistance to a Magistrate or a police officer
demanding his aid or requiring his assistance
under Section 37 and Section 129 of the said
Code.

203. Stated broadly, there can be
no objection to the acceptance of these
indicators but as we have indicated already,
we would prefer not to fetter judicial
discretion by attempting to make an
exhaustive enumeration one way or the other.

26.
In
Anshad
vs
State
of
Karnataka, (1994) 4 SCC 381, the
Supreme Court re-emphasized the need to
account that aggravating and mitigating
circumstances
while
awarding
the
appropriate punishment to convicts. In that
regard, it was observed as below:

32. We have perused the reasons
given by the High Court for awarding the
sentence of death. Apart from referring to
some of the aggravating circumstances like
the betrayal of confidence of the deceased
by A-1 and murder for committing robbery
on a helpless widow, the High Court only
referred to some of the judgments of this
Court and then almost abruptly came to the
conclusion that the sentence of death was
called for in the instant case. We notice
with regret that the High Court did not take
into
account
any
of
the
mitigating
circumstances at all. Courts are expected
to exhibit sensitiveness in the matter of
award
of
sentence
particularly,
the
sentence of death because life once lost
cannot be brought back. This Court has in
cases more than one emphasised that for
determining the proper sentence in a case
like this while the court should take into
account the aggravating circumstances it
should
not
overlook
or
ignore
the
mitigating circumstances. The manner in
which the crime was committed, the
weapons used and the brutality or the lack
of it are some of the considerations which
must be present to the mind of the court. Of
course, the High Court has the power and
jurisdiction to enhance the sentence of life
imprisonment to death but that power has
to be sparingly exercised, in rarest of the
rare cases for special reasons to be
recorded. The courts must be alive to the
legislative changes introduced in 1973
through Section 354(3) CrPC. Death
sentence, being an exception to the general
rule, should be awarded in the rarest of the
rare cases for special reasons to be
recorded after balancing the aggravating
and the mitigating circumstances, in the
facts and circumstances of a given case.
The number of persons murdered is a
consideration but that is not the only
consideration for imposing death penalty
unless the case falls in the category of
rarest of the rare cases. The courts must
8 All. Nadeem Vs. State of U.P.
877
keep in view the nature of the crime, the
brutality with which it was executed, the
antecedents of the criminal, the weapons
used etc. It is neither possible nor desirable
to catalogue all such factors and they
depend upon case to case.

(emphasis supplied)

27. In Ramnaresh & Ors. vs Sate of
Chhattisgarh, (2012) 4 SCC 257, referring
to Bachan Singh vs State of Punjab,
(1980) 2 SCC 684 and Machi Singh &
Ors. vs State of Punjab, (1983) 3 SCC
470, the Supreme Court re-emphasized the
need to consider the cumulative effect of
both
aggravating
and
mitigating
circumstances. It was observed that the
balance
between
the
two
must
be
entertained. Also, the Supreme Court may
note of certain aggravating and mitigating
circumstances. Relevant to our discussion,
the Supreme Court noted as below:

76. The law enunciated by this
Court in its recent judgments, as already
noticed, adds and elaborates the principles
that were stated in Bachan Singh [(1980) 2
SCC 684 : 1980 SCC (Cri) 580] and
thereafter, in Machhi Singh [(1983) 3 SCC
470 : 1983 SCC (Cri) 681] . The aforesaid
judgments,
primarily
dissect
these
principles into two different compartments
one being the aggravating circumstances
while the other being the mitigating
circumstances. The court would consider
the cumulative effect of both these aspects
and normally, it may not be very
appropriate for the court to decide the most
significant aspect of sentencing policy with
reference to one of the classes under any of
the following heads while completely
ignoring other classes under other heads.
To balance the two is the primary duty of
the court. It will be appropriate for the
court to come to a final conclusion upon
balancing the exercise that would help to
administer the criminal justice system
better and provide an effective and
meaningful reasoning by the court as
contemplated under Section 354(3) CrPC.

Aggravating Circumstances

(1) The offences relating to the
commission of heinous crimes like murder,
rape, armed dacoity, kidnapping, etc. by
the accused with a prior record of
conviction for capital felony or offences
committed
by
the
person
having
a
substantial history of serious assaults and
criminal convictions.

(2) The offence was committed
while the offender was engaged in the
commission of another serious offence.

(3) The offence was committed
with the intention to create a fear psychosis
in the public at large and was committed in
a public place by a weapon or device which
clearly could be hazardous to the life of
more than one person.

(4) The offence of murder was
committed for ransom or like offences to
receive money or monetary benefits.

(5) Hired killings.

(6) The offence was committed
outrageously for want only while involving
inhumane treatment and torture to the
victim.

(7) The offence was committed by
a person while in lawful custody.

(8) The murder or the offence was
committed to prevent a person lawfully
carrying out his duty like arrest or custody
in a place of lawful confinement of himself
or another. For instance, murder is of a
person who had acted in lawful discharge
of his duty under Section 43 CrPC.

(9) When the crime is enormous
in proportion like making an attempt of
murder of the entire family or members of a
particular community.
878 INDIAN LAW REPORTS ALLAHABAD SERIES

(10) When the victim is innocent,
helpless or a person relies upon the trust of
relationship and social norms, like a child,
helpless woman, a daughter or a niece
staying with a father/uncle and is inflicted
with the crime by such a trusted person.

(11) When murder is committed
for a motive which evidences total
depravity and meanness.

(12) When there is a coldblooded murder without provocation.

(13) The crime is committed so
brutally that it pricks or shocks not only the
judicial conscience but even the conscience
of the society.

Mitigating circumstances

(1)
The
manner
and
circumstances in and under which the
offence was committed, for example,
extreme mental or emotional disturbance
or extreme provocation in contradistinction
to all these situations in normal course.

(2) The age of the accused is a
relevant
consideration
but
not
a
determinative factor by itself.

(3) The chances of the accused of
not indulging in commission of the crime
again and the probability of the accused
being reformed and rehabilitated.

(4) The condition of the accused
shows that he was mentally defective and
the defect impaired his capacity to
appreciate
the
circumstances
of
his
criminal conduct.

(5) The circumstances which, in
normal course of life, would render such a
behaviour possible and could have the
effect of giving rise to mental imbalance in
that
given
situation
like
persistent
harassment or, in fact, leading to such a
peak of human behaviour that, in the facts
and circumstances of the case, the accused
believed that he was morally justified in
committing the offence.

(6) Where the court upon proper
appreciation of evidence is of the view that
the crime was not committed in a
preordained manner and that the death
resulted in the course of commission of
another crime and that there was a
possibility of it being construed as
consequences to the commission of the
primary crime.
(emphasis supplied)

28. Fourth, it is equally important that
Courts may keep in mind the fundamental
principle
of
proportionality
of
the
punishment to the offence. In Ruli Ram
Vs. State of Haryana, (2002) 7 SCC 691,
the Supreme Court has observed as under:

23...The punishment has to be
always
proportionate
to
the
crime.
Punishment serves a purpose inasmuch as
it acts as a deterrent for those who have the
propensity to take the law into their own
hands. The principle of proportion between
crime and punishment is a principle of just
deserts that serves as the foundation of
every criminal sentence that is justifiable.
As a principle of criminal justice it is
hardly less familiar or less important than
the principle that only the guilty ought to
be punished. Indeed, the requirement that
punishment
not
be
disproportionately
great, which is a corollary of just deserts,
is dictated by the same principle that does
not allow punishment of the innocent, for
any punishment in excess of what is
deserved for the criminal conduct is
punishment without guilt.
(emphasis supplied)

29. In Suresh (2019) 14 SCC 151, the
Supreme Court again considered the
sufficiency of sentence to be awarded and it
did not approve over lenient view being
8 All. Nadeem Vs. State of U.P.
879
taken. In that regard it made the following
useful discussion:

11 .In State of M.P. v.Ghanshyam
Singh [State of M.P.v.