25 August 2004
Supreme Court
Download

DEO NARAIN MANDAL Vs STATE OF U.P.

Case number: Crl.A. No.-000937-000937 / 2004
Diary number: 8892 / 2003
Advocates: SUDHIR KULSHRESHTHA Vs JATINDER KUMAR BHATIA


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (crl.)  937 of 2004

PETITIONER: Deo Narain Mandal                                           

RESPONDENT: State of U.P.                                                              

DATE OF JUDGMENT: 25/08/2004

BENCH: N. Santosh Hegde, S.B. Sinha & A.K. Mathur  

JUDGMENT: J U D G M E N T ( Arising out of S.L.P.  (Crl.) No. 2346 of 2003 )  

SANTOSH HEGDE, J.

Heard learned counsel for the parties.

Leave granted.

       The appellant and one Kamlesh were found guilty  of  an  offence  punishable under Section 365/511 read with Section 149  IPC for which learned 6th Additional Sessions Judge, Lucknow  awarded  two years rigorous imprisonment  to the said accused.  They were also awarded a further sentence of three months  rigorous imprisonment for an offence punishable under Section  147 IPC. He directed both the sentences to run concurrently.  

       Being aggrieved by the said judgment and conviction, the  appellant preferred an appeal before the High Court of Judicature  at Allahabad, Lucknow Bench.  The High Court by the impugned  order noted that the case of the appellant herein was not pressed on  merits and only a plea to reduce the sentence was advanced  before  it, hence while confirming  the conviction awarded  by the Trial  Court by generally observing,  that considering  all facts and  circumstances of  the case as well as age, character and other  antecedents  of the appellant held that the ends of justice would  meet  if sentence awarded to the appellant  is modified and   reduced   to the period  already undergone.  It, however,  imposed   a fine of Rs. 4,000/-  for an offence punishable under Section 365/  511 read with Section 149 and for offence under Section 147 the  sentence of imprisonment  was reduced  to the period already  undergone and fine of Rs. 1,000/- was awarded.   

Not being satisfied with the  said reduced  conviction,  appellant  has preferred this appeal. When this appeal came for  preliminary hearing.  This Court  on 8th of August, 2003, while  issuing notice  on the S.L.P.  also issued notice to the appellant    why the sentence  awarded by the High Court  should not be  enhanced .  Since the High Court has recorded that the appellant  has not pressed his appeal on merits in the ordinary course we  would have accepted that statement recorded by the High Court  and would have dismissed the appeal without going into the  question on merit, however, since there is a notice in enhancement  of the sentence by this Court, it is but proper in law that we should  hear the appellant on merits of the case also.   Shri K.B.Sinha, learned senior counsel appearing for the  appellant contended that at the relevant point of time there was

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

ongoing love affair between the appellant and Kamla (PW-1) the  girl who was attempted to be kidnapped. He also pointed out that  the maternal uncle of the appellant had a fight with the appellant it  is because of this background a false complaint was lodged against  the appellant and others. The trial court did not properly appreciate  the evidence in this background, hence, the conviction recorded by  the courts below cannot be sustained.                 We have perused the evidence adduced by the prosecution in  this case and we notice that though it is true that there was a love  affair between Kamla and the appellant, on the date of incident the  appellant alongwith 5 other persons did come in tempo and tried to  kidnap Kamla at about 10 P.M. and it is because of the intervention  of the mother and maternal uncle of the victim alongwith  the  neighbors, the appellant and another accused  by name  Kamlesh  were apprehended  and were produced before the police promptly.   The fact that said Kamla had a affair with the appellant would not,   in any manner,  give any right to the appellant to forcibly  take her  away from her lawful guardianship. In this background  the Trial  Court correctly came to the conclusion  that the appellant  was  guilty  of the offences for which he is convicted and the said  conviction, in our opinion, deserves to be sustained.    This brings us to the next question  in regard to the reduction  of sentence made by the High Court. In criminal cases awarding of  sentence is not a mere formality. Where the statute has given the   court  a choice of sentence with maximum  and minimum  limit  presented then an element of discretion  is vested with the court.   This discretion  can not be exercised  arbitrarily or whimsically.  It  will have to be  exercised  taking into consideration  the gravity of  offence, the manner  in which it is committed, the age, the sex of  the accused, in other words the sentence  to be awarded  will have  to be considered in the background of the fact of each case and the  court while doing so  should bear in mind the principle  of  proportionality.  The sentence awarded should be neither   excessively harsh nor ridiculously   low.  

       In the instance case, it is seen the appellant alongwith co- accused were found guilty of offence punishable under Section 365/  511 read with Section 149 IPC as also under Section 147 IPC.   Section 365 provides for a sentence  which may extend  to  two  years  while Section 511 provides  for a sentence which may extend  to half of the imprisonment  i.e. awardable  for the principle   offence, attempt of which  is committed  by the accused.  Section  147 provides  for a sentence  which may extend to two years. It is in  the background of this statutory  provision  the Trial Court  after  hearing the accused on the question  of sentence  came to the  conclusion  that ends of justice would be met by awarding two  years rigorous imprisonment  to the accused under Section 365/511  read with Section 149 IPC and has sentenced  the appellant to three  months  rigorous imprisonment  under Section 147 with a direction  that the sentence should run concurrently.  

       The  High Court in this case without even noticing  the fact  what is the actual  sentence undergone by the appellant  pursuant  to  his conviction awarded by the Trial Court proceeded  to reduce the  same to the period already undergone with an added sentences of  fine as stated above.  Of course, the High Court by the impugned  order recorded that the facts and circumstances of the case as well  as age, character and other antecedents  of the appellant which  made the court  feel  that the ends of justice would be met  if the  sentence is  reduced and  modified.  This conclusion of the High  Court  for reducing the sentence  in our considered view  is wholly  disproportionate  to the offence of which the appellant is found  guilty.

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

To find out whether the period already undergone  by the  appellant  would be sufficient  for reducing the sentence we had  called upon the learned counsel appearing for the State to give us  the necessary information and from the list of dates provided by the   State, we notice  that the appellant was arrested  on 12th of January,  1983 and was granted bail  on 14th of January, 1983  by the Trial  Court which shows  he was in custody  for two days  that too as an  under trial prisoner. Trial Court sentenced the appellant on 31st of  May, 1988 and the High Court released the appellant on the 8th of  July, 1988.  It is not clear from the list of date when exactly  the  appellant  surrendered to his bail after the judgment of the Trial  Court.  Presuming the fact in favour of the appellant that he was   taken  into custody on the date of the judgment i.e.  31st of May,  1988 itself.  Since he was released on bail  by the High Court  of 8th  of July, 1988, he would have been custody as a convict for 38 days  which  together with the two days spent as an under trial, would  take  the period of custody to 40 days.  On facts and circumstances  of this case, we must hold that sentence  of 40 days for an offence   punishable under Section 365/511 read with Section 149 is wholly  inadequate and disproportionate.

       For the reasons stated above, we are of the opinion  that the  judgment of the High Court, so far as it pertains to the reduction of  sentence awarded by the Trial Court will have to be set aside.  

       The next question would be : what would be an appropriate  sentence on the facts of this case. Shri K.B. Sinha, learned senior  counsel appearing for the appellant submitted that apart from the  fact that the incident in question has taken place nearly twenty  years  ago ( which itself is not ground for reduction of sentence),  victim as well as  the appellant are now married and settled in life.   A prolonged sentence in such situation might have a deleterious   effect on the family of the appellant. He also has pointed out  that  since the date of the incident  in question, there has been no  allegation against the appellant of any criminal conduct.  Hence, he  pleaded  having noticed  all the facts  including the factum of  the  love affair between the appellant and the victim a reduced sentence  may kindly be considered.  Having  taken into consideration  the  said plea  advanced  on behalf of the appellant  while dismissing   the appeal of the appellant and affirming  the conviction  recorded  by the two courts below,  we substitute  the sentence  awarded by  the Trial Court and the High Court and direct the appellant to  undergo rigorous imprisonment for a period of six months for  offence punishable under Section 365/511 read with Section 149  IPC. The sentence  of three months awarded for offence punishable  under Section 147 IPC by the Trial Court is maintained.  We also  maintain the fine awarded by the High Court of Rs. 4,000/- for  offence under Section 365/511 read with Section 149 and fine of  Rs. 1,000/- for offence under Section 147 IPC, we further direct  that  if the fine amount is recovered, a sum of Rs. 3,000/-  out of  the same shall be  paid to PW-1 Kamla Devi who was the victim of  act of the appellant, if the appellant defaults  in the payment  of  above said fine, he shall  undergo a further period of two months  rigorous imprisonment  for the default  of the fine awarded for  offence punishable under Section 365/511 read with Section 149   and a further period of 1 month RI  if the fine imposed by the High  Court under Section 147 is not paid.                   With the above modification this appeal is dismissed.