Pramod Kumar Mishra vs The State Of U.P

REPORTABLE 2023INSC791

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2023 (Arising from SLP (CRL.) No. 2190/2023)

PRAMOD KUMAR MISHRA …APPELLANT(S)

VERSUS

THE STATE OF U.P. …RESPONDENT(S)

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 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

Signature Not VerifiedCourt”) vide which the present appellant, Pramod Kumar Digitally signed by NITIN TALREJA

Mishra was convicted under Section 307 of the Indian Penal Date: 2023.09.04 16:09:40 IST Reason:

Code (hereinafter “IPC”) and sentenced him to undergo 5 years 1 | SLP (Crl.) 2190/2023 2

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).

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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 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.

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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.

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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 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

1 (1973) 1 SCC 20 2 (1977) 3 SCC 287

5 | SLP (Crl.) 2190/2023 6

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 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 :

3 (2014) 6 SCC 466

6 | SLP (Crl.) 2190/2023 7

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.

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15. In State of Uttar Pradesh v. Sanjay Kumar 4 (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 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

4 (2012) 8 SCC 537 5 (2015) 6 SCC 652 6 (2016) 16 SCC 441

8 | SLP (Crl.) 2190/2023 9

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.

7 2022 SCCOnline SC 73 8 Criminal Appeal No. 871 of 2023

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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

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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.

…..………………..J. (Abhay S. Oka)

…………………….J. (Sanjay Karol) Dated: 04 September 2023 Place: New Delhi

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