PRAMOD KUMAR MISHRAversusTHE STATE OF U.P.

                  [2023] 14 S.C.R. 386 : 2023 INSC 791



                          CASE DETAILS
                      PRAMOD KUMAR MISHRA
                                      v.
                           THE STATE OF U.P.
                   (Criminal Appeal No. 2710 of 2023)
                          SEPTEMBER 04, 2023
           [ABHAY S. OKA AND SANJAY KAROL, JJ.]
                              HEADNOTES


     Issue for consideration: Appellant convicted u/s. 307 IPC and
sentenced to undergo 5 years rigorous imprisonment, whether the sentence
imposed by the Trial Court and as upheld by the High Court is just and proper.
     Sentence/sentencing – Trial Court convicted A-2 (appellant) u/s.
307 IPC and sentenced him to undergo 5 years rigorous imprisonment
– Conviction and order of sentence of appellant confirmed by the High
Court – Limited question before the Supreme Court regarding the
quantum of sentence:
      Held: It is a well-established principle that while imposing sentence,
aggravating and mitigating circumstances of a case are to be taken into
consideration – 39 years have passed since the date of offence and both the
other accused persons have come to be acquitted – It is a matter of record
that there was old enmity between the complainant and A1 relating to the
piece of land where the offence came to be committed, while pertinently,
the appellant (A2) is the nephew of A1 – There are no criminal antecedents
of the appellant that have been brought on record – Further, from the
record, it cannot be said that the appellant acted in a premeditated manner
– Therefore, in the interest of justice and in consideration of the above
mentioned mitigating factors, this Court reduces the sentence imposed on
the appellant-accused from 5 years rigorous imprisonment to 3 years of
rigorous imprisonment. [Paras 21, 22, 23]


                                     386
     PRAMOD KUMAR MISHRA v. THE STATE OF U.P.                           387



       LIST OF CITATIONS AND OTHER REFERENCES
     Jagmohan Singh v. State of U.P. (1973) 1 SCC 20 : [1973] 2 SCR
541 – followed.
     Mohammad Giassudin v. State of Andhra Pradesh (1977) 3 SCC 287 :
[1978] 1 SCR 153; Narinder Singh & Ors. V. State of Punjab & Anr. (2014)
6 SCC 466 : [2014 (4 ) SCR 1012 – relied on.
     State of Uttar Pradesh v. Sanjay Kumar (2012) 8 SCC 537 : [2012]
7 SCR 359; Purushottam Dashrath Borate & Anr. v. State of Maharashtra
(2015) 6 SCC 652 : [2015] 5 SCR 1112; Jasbir Singh v. Tara Singh & Ors.
(2016) 16 SCC 441 : [2015] 10 SCR 61; Vetrivel v. State represented by its
Deputy Superintendent of Police & Anr. 2022 SCC Online SC 73; Paneer
Selvam v. State of Tamil Nadu Criminal Appeal No. 871 of 2023 – referred to.
       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2710
of 2023.
     From the Judgment and Order dated 19.04.2019 of the High Court of
Judicature at Allahabad in CRLA No.679 of 1987.
     Appearances:
     Vinod Prasad, Sr. Adv., Ajay Kumar Srivastava, Dhirendra Kumar,
Bijender Singh, Ms. Jyoti Tiwary, Mrs. Sanno Kumar, Advs. for the
Appellant.
     Garvesh Kabra, Shantanu Singh, Advs. for the Respondent.
       JUDGMENT / ORDER OF THE SUPREME COURT

                              JUDGMENT

     SANJAY KAROL J.
     1. Leave granted.
     2. The present appeal arises from the final judgment and order
dated 19.04.2019 passed by the High Court of Judicature at Allahabad
388          SUPREME COURT REPORTS                        [2023] 14 S.C.R.


in Criminal Appeal No. 679 of 1987, which confirmed the judgment and
order dated 03.03.1987 passed by IInd Addl. District & Sessions Judge
Varanasi (hereinafter “Trial Court”) vide which the present appellant,
Pramod Kumar Mishra was convicted under Section 307 of the Indian Penal
Code (hereinafter “IPC”) and sentenced him to undergo 5 years rigorous
imprisonment. Co-accused Jawahar and Suresh were acquitted by the Trial
Court.
      3. This Court vide order dated 10.02.2023, had issued notice, limited
to the question of sentence awarded to the appellant. Therefore, the question
which arises before this Court is whether the sentence imposed by the Trial
Court and as upheld by the High Court is just and proper?
      4. The prosecution case emerging from the record, also as set out
by the Courts below, is that on 12.08.1984, Kapil Deo Misir (hereafter
“PW1”) was returning to his house at about 6:00 AM when he saw Pramod
Kumar Mishra and other co-accused persons, destroying crops of arhar and
junhari in his field. Seeing this, PW1 intervened, which led to all of these
accused persons attacking him, armed with weapons i.e. lathis and ballam.
This attack resulted in PW1 suffering injuries and becoming unconscious.
Thereafter, FIR Case Crime No.67 of 1984 under Section 307 of IPC came
to be registered on the same day at 7:30 AM by PW1 against Jawahar @
Munna Mishra (A1), Pramod Mishra (A2, present appellant) and Suresh
Mishra (A3).
     5. The investigation was conducted by S.I. Gauri Shankar Singh
(hereafter “PW7”), who after completing the investigation submitted
chargesheet against Jawahar @ Munna Mishra (A1), Pramod Mishra (A2,
present appellant) and Suresh Mishra (A3). The Trial Court registered the
case as S.T. No. 51 of 1985 and proceeded with the trial. Charges were
framed against the accused persons under Section 307 read with Section
34 of the IPC.
    6. The prosecution examined seven witnesses to substantiate its case.
PW1 - Kapil Deo Misir is the injured complainant. PW2 - Doothnath and
PW3 - Arjun Singh are eye-witnesses to the alleged incident. PW4 - Dr.
Ramji Pandey conducted medical examination of the complainant and
     PRAMOD KUMAR MISHRA v. THE STATE OF U.P.                              389
               [SANJAY KAROL J.]

prepared injury report Ex. Ka-2. PW5 - Dr. Barar Singoor and PW6 - Dr.
S.K. Singh were present during the medical examination and x-ray of the
injured complainant. The investigating officer was examined as PW7.
     7. The appellant in his statement under Section 313 Cr.P.C. denied
having committed such offence and stated that the case stood registered on
account of old enmity.
     8. After hearing the parties, the Trial Court convicted A2 - Pramod
Kumar Mishra under Section 307 IPC and sentenced him to undergo 5 years
rigorous imprisonment. A1 - Jawahar and A3 - Suresh were acquitted as
found not being guilty. The findings of the Trial Court were that:
        a.    The statement of PW1, complainant, that he was attacked
              by Pramod with ballam at 6:00 AM on 12.08.1994 is fully
              corroborated by documentary evidence (FIR Ex. Ka-1 and
              the medical examination Ex. Ka-2) and the medical opinion
              of PW4 - doctor that the injury could have been probably
              caused by the ballam which was shown to him in Court. Also,
              testimonies of PW2 - Doodhnath Singh and PW3 - Arjun Singh
              fully corroborate the testimony of PW1. The statements could
              not be disbelieved merely because they are close friends of
              Kapil Deo.
      9. The findings of fact, judgment of conviction and order of sentence
qua the present appellant stands affirmed by the High Court of Allahabad
vide impugned order dated 19.04.2019.
      10. In view of our order dated 10.02.2023, the present appeal is required
to be considered only qua the quantum of sentence.
     11. It is a well-established principle that while imposing sentence,
aggravating and mitigating circumstances of a case are to be taken into
consideration.
     12. A Constitution Bench of this Court in Jagmohan Singh v. State
of U.P.1 (5-Judge Bench), while considering the issue of constitutionality
of imposition of death penalty emphasised that aggravating and mitigating


 .      (1973) 1 SCC 20
390           SUPREME COURT REPORTS                         [2023] 14 S.C.R.


circumstances need to be considered in awarding sentence to a convict. The
result is dependent upon facts of each case.
     13. India, till date, does not have a statutory sentencing policy in
place. This Court, however, has proceeded to examine the objective
behind sentencing and the factors to be kept in mind while imposing such
punishments. In Mohammad Giassudin v. State of Andhra Pradesh2
(2-Judge Bench), it stood observed that:
      “9. …. Crime is a pathological aberration, that the criminal can
      ordinarily be redeemed, that the State has to rehabilitate rather than
      avenge. The sub-culture that leads to anti-social behaviour has to be
      countered not by undue cruelty but by re-culturisation. Therefore, the
      focus of interest in penology is the individual and the goal is salvaging
      him for society. The infliction of harsh and savage punishment is thus a
      relic of past and regressive times. The human today views 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 social defense. We, therefore, consider
      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.
      ….
      16. …. A proper sentence is the amalgam of many factors such as the
      nature of the offence, the circumstances – extenuating or aggravating
      – of the offence, the prior criminal record, if any, of the offender, the
      age of the offender, the record of the offender as to employment, the
      background of the offender with reference to education, home life,
      sobriety and social adjustment, the emotional and mental conditions
      of the offender, the prospects for the rehabilitation of the offender, the
      possibility of return of the offender to normal life in the community, the
      possibility of treatment or training of the offender, the possibility that
      the sentence may serve as a deterrent to crime by the offender or by
      others and the current community need, if any, for such a deterrent in


        (1977) 3 SCC 287
     PRAMOD KUMAR MISHRA v. THE STATE OF U.P.                             391
               [SANJAY KAROL J.]

     respect to the particular type of offence. These factors have to be taken
     into account by the Court in deciding upon the appropriate sentence.
     17. It will thus be seen that there is a great discretion vested in the
     Judge, especially when pluralistic factors enter his calculations. …
     innovation, in all conscience, is in the field of judicial discretion.”
     14. Similarly, in Narinder Singh & Ors. V. State of Punjab & Anr.3
(2-Judge Bench), while considering the settlement between the parties
concerning an offence under Section 307 IPC, observed :
     i.       The goal of sentencing can be a combination of incapacitation,
              specific deterrence, general deterrence, rehabilitation, or
              restoration.
     ii.      In India we do not have any such sentencing policy till date.
              The prevalence of such guidelines may not only aim at
              achieving consistency in awarding sentences in different cases,
              such guidelines normally prescribe the sentencing policy as
              well, namely, whether the purpose of awarding punishment
              in a particular case is more of a deterrence or retribution or
              rehabilitation, etc. In the absence of such guidelines in India,
              the Courts go by their own perception about the philosophy
              behind the prescription of certain specified penal consequences
              for particular nature of crime.
     iii.     For some deterrence and/or vengeance becomes more important
              whereas another Judge may be more influenced by rehabilitation
              or restoration as the goal of sentencing. Sometimes, it would be
              a combination of both which would weigh in the mind of the
              Court in awarding a particular sentence. However, that may be
              a question of quantum.
      15. In State of Uttar Pradesh v. Sanjay Kumar4 (2-Judge Bench),
this Court held that Courts for the purpose of deciding just and appropriate
sentence, have to delicately balance the aggravating and mitigating factors



            (2014) 6 SCC 466
            (2012) 8 SCC 537
392             SUPREME COURT REPORTS                       [2023] 14 S.C.R.


and circumstances in which a crime has been committed. To balance the
two, is the primary duty of Courts.
       16. This Court has also noted the requirement for deterrence through
punishments in certain categories of cases. In Purushottam Dashrath
Borate & Anr. v. State of Maharashtra5 (3-Judge Bench), it was observed
that it would be necessary for this Court to notice the rising violent crimes
against women and the sentencing policy adopted by the Courts, in such
cases, ought to have a stricter yardstick so as to act as a deterrent.
      17. More recently, in Jasbir Singh v. Tara Singh & Ors.6 (2-Judge
Bench), this Court observed that it is not possible to have strict principles on
sentencing in absence of a sentencing policy for the State, however certain
mitigating factors like the gravity of the offence, motive for commission of
the crime, the manner in which it was committed need to be borne in mind
and thereafter sentence be imposed.
      18. In Vetrivel v. State represented by its Deputy Superintendent
of Police & Anr.7, a Bench of 2 Judges, of which one of us (Oka J.) was a
member, reduced the sentence of the appellant therein under Section 323
of the IPC from 3 years to 1 year of imprisonment, considering various
mitigating factors including the fact that there was a prior quarrel between
the accused and complainant over possession of their shop premises.
     19. Again recently, this Court in Paneer Selvam v. State of Tamil
Nadu8 (2-Judge Bench) reduced the substantive sentence under Section
304(ii) IPC from 7 years to 5 years of imprisonment in the interest of justice
and since there was no premeditation on the part of the appellant.
     20. Coming to the facts at hand, under Section 307 IPC, attempt to
commit murder is a punishable offence, punishment for which is up to
10 years of imprisonment and if the act committed has caused hurt to the
person, then punishment may extend to life imprisonment and fine or both.



5     (2015) 6 SCC 652
6     (2016) 16 SCC 441
7     2022 SCCOnline SC 73
8     Criminal Appeal No. 871 of 2023
      PRAMOD KUMAR MISHRA v. THE STATE OF U.P.                                393
                [SANJAY KAROL J.]

      21. Having regard to the submissions made by the counsel appearing
for the parties and findings of the Courts below, it can be seen that 39 years
have passed since the date of offence and both the other accused persons
have come to be acquitted. From a reading of the impugned order, it is a
matter of record that there was old enmity between the complainant and A1
relating to the piece of land where the offence came to be committed, while
pertinently, the appellant (A2) is the nephew of A1.
     22. There are no criminal antecedents of the appellant that have
been brought on record. Further, from the record, it cannot be said that the
appellant acted in a premeditated manner, whatsoever.
      23. Therefore, in the interest of justice and in consideration of the
abovementioned mitigating factors, this Court reduces the sentence imposed
on the appellant - accused from 5 years rigorous imprisonment to 3 years of
rigorous imprisonment. The appellant shall pay a fine amount of Rs.50,000/-
(Rupees Fifty Thousand) within a period of 6 weeks from today. In default
of payment of fine, the appellant shall undergo rigorous Imprisonment for
3 months. The fine to be paid to the Complainant by way of compensation.
     24. The appeal is partly allowed in the abovementioned terms. The
appellant is directed to undergo the remaining period of his sentence.
      25. Pending application(s), if any, are disposed of.




Headnotes prepared by:                                       Appeal partly allowed.
Ankit Gyan