Allahabad High CourtJangoo And Ors. vs State Of U.P. on 27 August, 2020Bench: Saurabh Shyam ShamsheryHIGH COURT OF JUDICATURE AT ALLAHABAD\n \n \n\nCourt No. - 42\n \n\n \nCase :- CRIMINAL APPEAL No. - 1551 of 1985\n \nAppellant :- Jangoo And Ors.\n \nRespondent :- State of U.P.\n \nCounsel for Appellant :- Anoop Ghosh,Brajesh Shukla\n \nCounsel for Respondent :- A.G.A.\n \n\n \nHon'ble Saurabh Shyam Shamshery,J.1.	This Criminal Appeal underSection 374of Criminal Procedure Code (hereinafter referred to as "Cr.P.C.") has been filed against judgment and order dated 31.5.1985 passed by Sri I.K Upadhyay, VIIth Additional Sessions Judge, Ghaziabad in Sessions Trial No.11 of 1983 (State vs. Jangu and others) convicting appellants underSection 324IPC r/wSection 34IPC and sentencing them to six months rigorous imprisonment, respectively.2.	The present criminal appeal was filed by three accused, namely, Jangoo, Maimpal and Mahipal whereas third accused - Mahipal has died and appeal has been abated qua to him, vide order dated 06.07.2020, passed by this Court.3.	Sri Brajesh Shukla, learned counsel appearing on behalf of the surviving appellants no.1 and 2, at the outset, did not challenge the findings recorded by trial court on conviction but prayed that punishment be reduced to the period already undergone since it is a matter of 1985; more than 35 years have already passed. It is further submitted that surviving appellants No.1 and 2, have already undergone about one month and twenty days of sentence and no useful purpose would achieve in case they are sent to jail, at this stage.4.	Learned A.G.A. appearing for State has vehemently opposed the prayer and submits that accused-appellants were rightly convicted by trial court. He further submits that in case sentence is reduced to the period already undergone, the victim be paid compensation as provided under Section 357 Cr.P.C.5.	Heard learned counsel for parties.Re: Principle of Sentencing6.	Indian legislature has not given any sentencing policy, though Malimath Committee (2003) and Madhava Menon Committee (2008) has asserted the need of sentencing policy in India.7.	Principle of sentencing has been an issue of concern before the Supreme Court in many cases and tried to provide clarity on the issue. Apex Court has time and again cautioned against the cavalier manner considering the way sentencing is dealt by High Courts and Trial Courts."..... It is established that sentencing is a socio-legal process, wherein a Judge finds an appropriate punishment for the accused considering factual circumstances and equities. In light of the fact that the legislature peroxided for discretion to the Judges to give punishment, it becomes important to exercise the same in a principled manner." (para 49 of Accused ''X' vs. State of Maharastra (2019) 7 SCC 1)\n \n"12.	Sentencing for crimes has to be analysed on the touchstone of three tests viz. crime test, criminal test and comparative proportionality test. Crime test involves factors like extent of planning, choice of weapon, modus of crime, disposal modus (if any), role of the accused, anti-social or abhorrent character of the crime, state of victim. Criminal test involves assessment of factors such as age of the criminal, gender of the criminal, economic conditions or social background of the criminal, motivation for crime, availability of defence, state of mind, instigation by the deceased or any one from the deceased group, adequately represented in the trial, disagreement by a Judge in the appeal process, repentance, possibility of reformation, prior criminal record (not to take pending cases) and any other relevant factor (not an exhaustive list).13.	Additionally, we may note that under the crime test, seriousness needs to be ascertained. The seriousness of the crime may be ascertained by (i) bodily integrity of the victim; (ii) loss of material support of amenity; (iii) extent of humiliation; and (iv) privacy breach." (State of Madhya Pradesh vs. Udham and others(2019) 10 SCC 300)8.	It is also notable that ".... where minimum sentence if provided for, the Court cannot impose less than minimum sentence." (Para 8 ofState of Madhya Pradhesh vs. Vikram Das(2019) 4 SCC 125)\n \nRe : Compensation9.Section 357Cr.P.C. provides power to the Court to award compensation to victim, which is in addition and not ancillary to other sentences. While granting just and proper compensation Court ought to have consider capacity of the accused for such payment as well as relevant factors such as medical expenses, loss of earning, pain and sufferings etc.10.	Supreme Court has reiterated need for proper exercise of power of granting compensation underSection 357Cr.P.C. in Manohar Singh Vs. State of Rajasthan and others : (2015) 3 SCC 449 and in paras 11, 31 and 54 it is stated that:"11.	.....Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. Compensation is payable under Section 357 and 357- A. While undersection 357, financial capacity of the accused has to be kept in mind,Section 357-Aunder which compensation comes out of State funds, has to be invoked to make up the requirement of just compensation.""31. The amount of compensation, observed this Court, was to be determined by the courts depending upon the facts and circumstances of each case, the nature of the crime, the justness of the claim and the capacity of the accused to pay.""54. Applying the tests which emerge from the above cases toSection 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unlessSection 357is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision."11.	Considering the facts and circumstances of the present case as well as keeping in view the position of law as mentioned above and considering that the incident was happened about more than 35 years back and surviving appellants no.1 and 2 have already undergone sentence of about one month and twenty days, this Court is of the view that if the sentence award is reduced to the period already undergone, the ends of justice would be served. However considering the nature of crime, reasonable compensation be awarded to the victim.12.	Appeal is partly allowed.  Judgment and order dated 31.5.1985 passed by Sri I.K Upadhyay, VIIth Additional Sessions Judge, Ghaziabad in Sessions Trial No.11 of 1983 (State vs. Jangu and others) convicting surviving appellants namely Jangoo and Maimpal, underSection 324IPC r/wSection 321IPC and sentencing them to six months rigorous imprisonment, respectively, is hereby modified to the extent that period of imprisonment is confined to the period already undergone, subject to compensation of Rs. 5,000/- each by surviving appellants no.1 and 2, which shall be paid by them, to victim or to be deposited to court concerned within a period of two months from today. In case compensation is not paid, as directed above, surviving appellant Nos.1 and 2 have to serve remaining sentence. In case of compensation being deposited before concerned court, the Court will ensure its release to victim.13.	Lower Court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.Order Date :- 27.8.2020\n \nRishabh\n \n\n \n[Saurabh Shyam Shamshery, J.]