# Shiv Singh v. State Of U.P

- **Citation:** (2022) 2 ILRA 609
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-06
- **Case number:** Criminal Appeal No. 865 of 1985
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shiv-singh-v-state-of-u-p-47547
- **Pages:** 6

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860
-
Section
307
-
modification-quantum
of
sentenceincident took place in the year 1983 about
38 years ago and now appellant is more
than 57 year of age, the only bread earner
in his family-both the parties are distant
relative-accused suffered the agony of
conviction for more than 36 years-no
criminal antecedents have been shown to
his credit after passing of so much of long
period out of jail- At this stage, it would
be appropriate the accused be sentenced
with the period already undergone and
amount of fine be imposed.(Para 1 to 20)
B. 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. 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 proportionality. the impact
on the society as a whole has to be seen.
It is therefore, necessary to avoid undue
leniency in imposition of sentence. the
criminal justice jurisprudence adopted in
the
country
is
not
retributive
but
reformative. at the same time, undue
harshness should also be avoided keeping
in
view
the
reformative
approach
underlying in our criminal justice system.
(Para 10 to 16)

The appeal is partly allowed. (E-6)

List of cases cited:

## Text

2 All. Shiv Singh Vs. State of U.P.
609

15. Accordingly, the impugned
cognizance
order
and
consequently
summoning order dated 15.12.2020 passed
by learned trial court is hereby quashed.
The trial court is directed to pass a fresh
order after applying the judicial mind.

16. Accordingly, this appeal under
Section 14(A)(1) is finally disposed of.

17. Let this order be communicated to
the court below for necessary compliance.
----------
(2022)02ILR A609
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.10.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 865 of 1985

Shiv Singh ...Appellant
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellant:
Sri V.P. Goel, Sri Atul Mehra, Sri Sudhir
Mehrotra

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

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,
1860
-
Section
307
-
modification-quantum
of
sentenceincident took place in the year 1983 about
38 years ago and now appellant is more
than 57 year of age, the only bread earner
in his family-both the parties are distant
relative-accused suffered the agony of
conviction for more than 36 years-no
criminal antecedents have been shown to
his credit after passing of so much of long
period out of jail- At this stage, it would
be appropriate the accused be sentenced
with the period already undergone and
amount of fine be imposed.(Para 1 to 20)
B. 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. 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 proportionality. the impact
on the society as a whole has to be seen.
It is therefore, necessary to avoid undue
leniency in imposition of sentence. the
criminal justice jurisprudence adopted in
the
country
is
not
retributive
but
reformative. at the same time, undue
harshness should also be avoided keeping
in
view
the
reformative
approach
underlying in our criminal justice system.
(Para 10 to 16)

The appeal is partly allowed. (E-6)

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
441

10. Raj Bala Vs St. of Har. (2016) 1 SCC 463
610 INDIAN LAW REPORTS ALLAHABAD SERIES
11. Kokaiyabai Yadav Vs St. of Chhattisgarh
(2017) 13 SCC 449

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

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

1. This criminal appeal has been filed
against the judgement and order dated
26.03.1985 passed by the Session Judge,
Mainpuri in S.T. No. 196 of 1984, under
Section 307 I.P.C., Police Station- Kotwali,
District- Mainpuri, whereby learned Judge
convicted and sentenced the appellant to 05
years rigorous imprisonment under Section
307 I.PC.

2. The prosecution story in brief is
that the present accused Shiv Singh entered
into the house of complainant and enquired
about the mother and father of the
complainant and after 2-4 minutes hit his
mother by country made pistol on account
of which her mother shrieked and became
unconscious. She was taken to District
Hospital, Mainpuri where she regained
consciousness and was medically examined
by Dr. M.L. Gupta, PW-3. Her statement
was also recorded by Tehsildar which is
Ext. Ka-1. A written report (Ext. Ka-2) was
filed at police station Kotwali Mainpuri by
the
complainant,
Brijendra
Singh.
Thereafter, a chick report was prepared
which is Ext. Ka-5 and entry was made in
the General Diary at serial no.23, an extract
of which is Ext. Ka-14. Thereafter, SubInspector,
Maharaj
Singh,
PW-4
investigated the matter and recorded
statement of complainant, his mother and
other certain witnesses. As the accused
applicant was not traceable, proceedings
under Section 82/83 Cr.P.C. was initiated.
On 22.12.1983, the Investigating Officer
submitted the charge-sheet (Ext. Ka-13)
against the accused in his abscondance. The
trial court after taking cognizance against
the accused framed charges against the
accused. The accused-appellant pleaded not
guilty.

3. The trial court after examining the
prosecution witnesses and hearing the
accused
under
Section
313
Cr.P.C.,
convicted and sentenced the accusedapellant to undergo five years rigorous
imprisonment under Section 307 I.P.C.

4. Feeling aggrieved from the
judgment and order dated 26.03.1985
passed by Session Judge, Mainpuri, this
criminal appeal has been filed.

5. 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.

6. In furtherance to his submission,
the learned counsel for the accusedappellant submits that the appellant was of
tender age at the time of incident. The
incident had taken place in the year 1983
and the accused was convicted in the year
1985 and since then the appellant has
suffered physical and mental agony of
conviction. At present the appellant is aged
about 57 years and he is having a family to
support. The appellant had been in jail for a
period of eight months during trial and after
conviction. 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 while the
appellant is absolutely innocent and has
2 All. Shiv Singh Vs. State of U.P.
611
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 lenient view
considering the age of the accused and his
age related ailments.

7. Learned A.G.A. has vehemently
opposed the submission made by learned
counsel for the appellant and submitted that
there is ample evidence against the
appellant and there is no reason to
disbelieve the prosecution story as the
accused-appellant is distant relative of the
complainant family and why the accused
will be falsely implicated in this matter. He
has further submitted that the injured has
specifically nominated the accused in her
statement and doctor has specifically
corroborated the injuries of the injured and
the oral evidence of the injured finds
corroboration from the medical evidence,
hence the appeal be dismissed and accused
be directed to suffer the sentence.

8. After considering the rival
submissions advanced by learned counsel
for the applicant as well as learned A.G.A.
for the State, evidence brought on record,
this Court deems it fit to dismiss the appeal
on merits.

9. I have perused the entire material
available on record and the evidence as
well as judgment of the trial court. As 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, this court considers the
appropriate quantum sentence in this
appeal.

10. 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."

11. 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
612 INDIAN LAW REPORTS ALLAHABAD SERIES
shown by the offender. The measure of
punishment should be proportionate to the
gravity of offence."

12. In State of MP vs Najab Khan,
(2013) 9 SCC 509, the high court, while
upholding conviction, reduced the sentence
of 3 years by already undergone which was
only 15 days. The supreme court restored
the sentence awarded by the trial court.
Referring the judgments in Jameel vs State
of UP (2010) 12 SCC 532, Guru Basavraj
vs State of Karnatak, (2012) 8 SCC 734,
the court observed as follows:-

"In operating the sentencing
system, law should adopt the corrective
machinery or the deterrence based on
factual matrix. The facts and given
circumstances in each case, the nature of
the crime, the manner in which it was
planned and committed, the motive for
commission of the crime, the conduct of the
accused, the nature of weapons used and
all other attending circumstances are
relevant facts which would enter into the
area of consideration. We also reiterate
that undue sympathy to impose inadequate
sentence would do more harm to the justice
dispensation system to undermine the
public confidence in the efficacy of law. It
is the duty of court to award proper
sentence having regard to 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."

13. 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.

14. 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.

15. 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.
2 All. Shiv Singh Vs. State of U.P.
613

16. 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 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.

17. After considering the rival
submissions made by learned counsel for the
appellant,
considering
the
facts
and
circumstance of the case, considering that the
alleged incident which took place in the year
1983 about 38 years ago and now appellant is
more than about 57-58 years of age, both the
parties are distant relative, at this stage, this
Court feels that it would not be proper to send
the accused-appellant to jail and the accused
was on bail since 01.04.1985 and the accused
has suffered the agony of conviction for more
than 36 years and no criminal antecedents
have been shown to his credit after passing of
so much long period out of jail, at this stage it
does not appear appropriate to send the
accused-appellant to jail now. It has been
pointed out by learned counsel for the
accused-appellant that the accused-appellant
had remained in jail for sometime during
trial. Considering all these facts, it would be
appropriate and proper that the accused be
sentenced with the period already undergone
and the amount of fine be imposed.

18. 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 an
amount of fine of Rs. 50,000/- be imposed
instead of sending him to jail.

19. Accused-appellant is directed to
deposit the fine of Rs. 50,000/- before
learned lower court within four months
614 INDIAN LAW REPORTS ALLAHABAD SERIES
from the date of passing of the judgement.
In default of payment of fine accusedappellant
shall
undergo
two
months
imprisonment.

20. Appeal is partly allowed in the
above terms.

21. Copy of this order be transmitted
to the concerned lower court forthwith for
compliance.
----------
(2022)02ILR A614
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.02.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 947 of 1982

Radhey Shyam & Ors. ...Appellants
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri K.K. Dixit, Dharm Trivedi, Jai Pal Singh,
Amicus Cure, Om Prakash Dixit, Poonam
Singh, Reetesh Singh, Smriti

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860 - Sections 302, 201challenge to-conviction-Both PW-1 and
PW-2 stated that the wife and nephew of
the deceased were present at the time of
incident but these witnesses were not
produced
before
the
trial
courtprosecution failed to explain why wife
and nephew did not go to lodge the
report rather it was lodged by PW-1
(villager)-statement of PW-2 with regard
to the assault of the deceased with Banka
three and four times is contrary to the
report
of
the
post-mortem
of
the
headless body of the deceased-inquest
report of the head recovered has been
signed by PW-1 but the same denied in
his statement , PW-1 failed to explain
how his signature was mentioned on the
report, even he denied the recovery of
head-weapon
of
assault
was
not
recovered by the Investigating officer nor
unknown recovered head was sent for
D.N.A. test which shows the conduct of
the Investigating Officer, head could not
be connected due to negligence of the
Investigating
officer-no
satisfactory
evidence about motive in sofar as the
illicit relations of wife, if she was wife of
the deceased then she definitely inherited
the property but land of the deceased was
inherited by sister of the deceasedprosecution failed to bring home the guilt
of the appellant beyond reasonable doubtappellant deserves the benefit of doubt-he
is acquitted from the charges levelled
against him.(Para 1 to 52)

The appeal is allowed. (E-6)

List of Cases cited:

1. Shaikh Nabab Shaikh Babu Musalman & ors.
Vs St. of Mah. (1993) Supp. (2) SCC 217

2. Vijaysing Dharamdas Thakar Vs St. of Guj
(1996) Crl. L.J. 2932

3. Surendra Pratap Chauhan Vs Ram Nail & ors.
(2001) Crl. L.J. 98

4. Shivaji Dayanu Patil Vs St. of Mah. (1989)
AIR 1762

5. The St. of U.P. Vs Jaggo @ jadgish (1971)
AIR SC 1586

6. Habeeb Mohammed Vs The St. of Hyderabad
(1954) AIR 51

7. Ganesh Bhawan Patel Vs St. of Mah. (1979)
AIR 135

(Delivered by Hon'ble Ramesh Sinha, J.)