HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 36 Case :- CRIMINAL APPEAL No. - 1472 of 2012 Appellant :- Gullu & Others Respondent :- State Of U.P. Counsel for Appellant :- Sudist, Janardan Singh Yadav Counsel for Respondent :- Mrs. Usha Kiran Govt. Advocate Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Pramod Kumar Srivastava,J.
(Delivered by Hon'ble Pramod KumarSrivastava, J.)
1.This appeal has been preferred against the conviction and punishment dated 28.2.2012 passed in State Vs. Gullu and others relating to Case Crime No. 689 of 2010, police station Mardah, district Ghazipur by which three accused Gullu, Bal Chand and Smt . Ramwati were convicted for charge under section 302/34 IPC and were punished with imprisonment for life and fine of Rs. 5000/- (in default of payment three months simple imprisonment).
2.Prosecution case in brief was that Tuliya Devi, daughter of informant Bhullu Rajbhar (PW-1) was married to Gullu 5 years ago. After marriage Tuliya Devi was treated with cruelty by her husband Gullu, father-in-law Bal Chand and mother-in-law Ramwati for demand of dowry. For this reason these three accused had committed murder of Tuliya Devi on 8.5.2010 by inflicting injuries on her body at their house situate in village Chaubepur, police station- Mardah, district Ghazipur and tried to dispose of her dead body. After receiving knowledge of this incident, victim's father Bhullu (informant) had given a written report (Ex-Ka-1) to the police on the basis of which case crime no. 689 of 2010 was registered.
3.In the aforesaid case inquest of the dead body was performed on 08.05.2010 and postmortem of the deceased was conducted the same evening at 9:50 pm. In the postmortem report several lacerated wounds and other marks of injuries were found on the dead body of the deceased. In postmortem (Ex-Ka-1) the doctor had opined that cause of death was haemorrhage and shock as a result of the said ante-mortem injuries. In this report approximate time of death was reported about 1 day from the time of postmortem. After completion of investigation police had submitted charge-sheet against three accused Gullu, Bal Chand and Ramwati for offences under section 498-A, 304-B IPC and under section 3/4 Dowry Prohibition Act.
4.During trial all the accused were charged for offences under section 498-A, 304 B IPC and under section 3/4 Dowry Prohibition Act, alongwith alternative charge framed later on for offence under section 302 IPC. Accused had pleaded not guilty and claimed to be tried.
5.In support of charges prosecution side examined PW-1, Bhullu (informant), PW-2 Barmati (mother of the deceased), PW-3 - Constable Sunil Kumar Singh (who prepared chik FIR and registerd case), PW-4 - Dr. Krishna Kumar Verma (who performed the postmortem), PW-5 Vinay Kumar Rai, Naib Tehsildar (for inquest report) and PW-6 Chrinjeev Nath Sinha (Investigation Officer). These witnesses had proved documents of the prosecution marked as EX-Ka-1 to Ex-Ka-14.
6.After closure of prosecution evidence statement of accused were recorded in which they denied the facts of charge as well as evidence adduced against them, without any specific averments. Defence side had examined DW-1 Madan, r/o village Chaubeypur.
7.After receiving evidence from both the sides and after affording opportunity of hearing as well as considering the argument of the parties, learned Addl. Sessions Judge passed judgment dated 28.2.2012 by which all the accused were acquitted from the charges under section 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, but were convicted for the charge under section 302-IPC. Thereafter the trial court had afforded an opportunity of hearing on the point of quantum of sentence to the accused and passed orders of punishment as above. Aggrieved by this judgment dated 28.2.2012 all the three accused have preferred the present appeal.
8.Sri Sudist and Sri Janardan Singh Yadav appeared for appellants; and State was represented by Mrs. Usha Kiran, AGA.
9.A perusal of evidence adduced during trial indicates that during post-mortem following ante-mortem injuries were found on the dead body of the deceased Tuliya Devi that were caused or occurred approximately at the time mentioned in the charge, i.e., anytime in the night of 8/9-5-2010:
1.Lacerated wound left side chin 6 cm x 1 cm mussel deep chin.
2.Lacerated wound from right shoulder to just below right elbow 35 cm x 2 cm x bone deep.
3.Abrasion 5cm x 2 cm just laterac of left eye.
4.Abrasion on top of right shoulder 8 cm x 4 cm.
5.Abrasion 20cm x 10 cm right side chest.
6.brasion 8 cm x 2 cm right iliac chest.
7.Lacerated wound 5 cm x 3 cm at middle of front of right of leg underlying bond was fractured.
8.Lacerated wound 6 cm x 3 cm just below right knee.
9.Lacerated wound 8 cm x 3 cm below front of left kneel under lying bone was fractured.
10.PW-4 the doctor reported that the cause of death of victim-deceased Tuliya Devi was shock and haemmerhage due to the above mentioned ante-mortem injuries. Although the defence had adduced one witness to indicate that the cause of death of the deceased may be accidental falling from the roof, and DW-1 Madan was examined in this regard but these facts could not be substantiated in the light of available evidence and circumstances.
11.A perusal of the impugned judgment reveals that this finding of learned Additional Sessions Judge is correct that deceased Tuliya Devi had died due to injuries found on her body in the house of the accused-appellants at about the time mentioned in the charge, and the accused-appellants were responsible for causing such injuries to Tuliya Devi. In these circumstances, the trial court had rightly reached to the conclusion that due to the above mentioned deliberate caused injuries Tuliya Devi died, and accused-appellants are responsible for inflicting those homicidal injuries.
12.Learned Additional Sessions Judge had considered facts and circumstances including evidence adduced and reached to the conclusion that though there is no conclusive evidence relating to dowry death and demand of dowry, but injuries found on body of the deceased were not accidental. Trial Court found that those injuries were homicidal, for inflicting of which accused persons were responsible, because it were only they who were present in their house when such injuries had occurred on the body of the deceased Tuliya Devi.
13.Learned counsel appearing for the appellants fairly admitted the contents of facts relating to charge, namely victim Tuliya Devi having succumbed to the injuries found on her body in the house of appellants. He argued that he is not challenging the findings of fact of the impugned judgment, but is questioning the nature of the offence and the sections on which the accused-appellants were charged and convicted and the quantum of sentences awarded. According to him, taking note of various factors including the age of the appellants-accused, their first guilt, the charged incident was committed without premeditation in a sudden quarrel in the heat of passion, the injury being on the non-vital part of the body and the death was because of such injuries which were not sufficient to cause death in ordinary course, the award of life imprisonment and fine of Rs. 5000/- in default, to further undergo RI for three months is excessive. He pointed out that these points were mentioned during the arguments and at the time of hearing on the point of quantum of sentence, but were not considered in the judgment of conviction and at the time of awarding punishment because punishment was being awarded for Section 302 IPC in which life sentence is minimum. Learned counsel for the appellants contended that in this case conviction should be for the offence under section 304 IPC, and for the aforesaid reasons punishment should not be the maximum possible, and the said sentence of punishment should be mitigated.
14.Learned A.G.A. appearing for the respondent State submitted that the Court had not erred in conviction or award of punishment. He also contended that the Court has always the liberty to impose an appropriate sentence as that is permissible in law.
15.We have given our anxious consideration to the rival submissions and perused the material available on record of the court below. The appeal is being disposed off with the consent of the learned counsel for both sides dispensing with the formality of availability of paper books.
16.After the perusal of original record and the evidence available we are of the opinion that this finding of fact is not erroneous that the three accused Gullu Rajbhar, Bal Chand and Smt. Ramwati had been involved in causing such injuries. These injuries, due to which Tuliya Devi was seriously injured and later died, were of course on non-vital part of the body of deceased, but she died due to haemorrhage and shock of these injuries. A minute scrutiny of the nature of injuries show that either there were superficial injuries of abrasions on the body of victim or there were grievous injuries on non-vital part of body (that is two fractures on legs). Therefore, in such circumstances, it has to be considered as to whether the act causing injuries to the deceased resulting in her death was murder or whether it was a culpable homicide not amounting to murder.
17.Culpable homicide is murder if the act which causes death is done with the intention of causing death or is done with intention of causing a bodily injury and injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. All murder is culpable homicide but not vice versa. It is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.
18.In "Kesar Singh v. State of Haryana, (2008) 15 SCC 753" Hon'ble Apex had held :
"To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "Thirdly":
First, it must establish, quite objectively, that a bodily injury is present;
Secondly, the nature of the injury must be proved; these are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution (and, indisputably, the burden is on the prosecution throughout) the offence is murder under Section 300 "Thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury is actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."
19. In the matter in hand it is proved from the evidence that the charged act was committed by appellants without intention of murder, without use of any formal weapon and without any pre-planning. From the evidence, it appears probable that the appellants had willfully caused injures to the deceased and these injures were inflicted without properly knowing as to whether they may cause death or not. Though two of the injuries caused by them were grievous but there was every possibility of the deceased's survival, as they were fractures of leg. The grievous injuries were on non-vital part of the body. Other injuries were simple and superficial. Apparently knowing these facts fully well the appellants had inflicted blows at the deceased. This matter therefore comes within exception 1 of Section 300 IPC. Therefore the appellants are found guilty of act of culpable homicide not amounting to murder which is punishable under section 304 IPC.
20. The maximum punishment for the offence u/s 304 IPC is imprisonment for life. It has to be be considered as to whether sentence of life imprisonment awarded in the present case by the trial court is appropriate. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516" Hon'b'e Apex Curt had held that :
"it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or 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 system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
21. Only because Section 304 IPC provides for life imprisonment as the maximum sentence, does not mean that the Court should mechanically proceed to impose the maximum sentences, more particularly when the incident had occurred suddenly, during the heat and passion of any domestic quarrel, without pre-meditation or pre-planning.
22. In Hem Chand v. State of Haryana, (1994) 6 SCC 727 Hon'ble Apex Court had held that :
"As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."
23. In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court had held :
"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."
24. In 'Ramashraya Chakravarti v. State of M.P., (1976) 1 SCC 281' Hon'ble Apex Court had observed :
"To adjust the duration of imprisonment to the gravity of a particular offence is not always an easy task. Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in the context of the times and events in the light of social imperatives. It is always a matter of judicial discretion subject to any mandatory minimum prescribed by law."
"In judging the adequacy of a sentence the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts trial courts in this country already overburdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by the accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice pre-sentence investigation may be of great sociological value."
25. One of the prime objectives of criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. For sentencing an accused on proof of crime the courts have evolved certain principles; the twin objective of the sentencing policy is deterrence and correction. It lies within the discretion of the court to choose a particular sentence within the available range from minimum to maximum. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.
26. In considering the adequacy of the sentence which should neither be too severe nor too lenient the court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and situation in life of the offender.
27. In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 Hon'ble Apex Court had discussed points to be taken into account before passing appropriate sentence as under :
"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inflicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without premeditation in a sudden fight;
(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
(i) The criminal background and adverse history of the accused;
(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The effort of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."
28. Now the matter is limited to sentence for offence u/s 304 IPC, and we have to consider about the appropriate sentence for the appellants in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered.
29. So far as aggravating circumstances relating to the crime is concerned, from the evidence of the case it is clear that the appellants had deliberately been instrumental in causing injuries on the whole body of deceased who was a young lady, without any satisfactory explanation, and had tried to conceal their guilt by adducing evidence to prove it to be a case of accident by fall from roof.
30. From the facts and circumstances of the case it is clear that the appellants had initially no intention or premeditation for murder/ homicide and the deceased had been inflicted grievous injuries on her legs only. This possibility cannot be ruled out that in a domestic quarrel the appellants, who are rustic villagers, had beaten the bahu (daughter-in-law) of the house savagely due to which such injury or shock had been caused that resulted in the death of the victim. Appellants had no criminal history and they are in incarceration for about more than five years. Their age is also pertinent. Considering their age at the time of their statement u/s 313 CrPC, the Bal Chand and Smt. Ramwati Devi are senior citizens, and their age at present is more than 63 years and 60 years respectively. In ordinary course they are not expected to do such thrashing of the deceased. They may be dealt with some leniency. But the age of appellant Gullu is about 37-38 years at present, and being the husband of the deceased it was his legal and moral duty to protect his wife, but instead he was involved in beating his wife to the extent that she succumbed to her injuries. He deserves appropriate punishment without much leniency. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the sentence of life imprisonment of the appellants under Section 304 IPC appears inappropriate. In the present case after considering the circumstances presented before the Sessions Judge and before us during hearing of appeal, it appears appropriate that, in the present case the sentences of appellants Bal Chand and Smt. Ramwati should not exceed more than 7 years' imprisonment, but the sentence of Gullu should be 12 years.
31. In view of above facts and discussion, the order of conviction u/s 302 IPC imposed on the each appellants is hereby modified u/s 304 IPC, and the sentence of imprisonment for life is modified for appellants Bal Chand and Smt. Ramwati to rigorous imprisonment for seven years each. The sentence of appellant Gullu Rajbhar is modified to rigorous imprisonment for twelve years. With these modifications of conviction, punishment and sentence, the appeal stands disposed off.
32. Let the copy of this judgment be sent to Sessions Judge, Ghazipur of ensuring compliance.
Date :- 18.9.2015.
SKS