Munshi Lal @ Munshi Ram vs State Of U.P.
2016 Latest Caselaw 5517 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 18
 

 
Case :- CRIMINAL APPEAL No. - 269 of 2013
 
Appellant :- Munshi Lal @ Munshi Ram
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Amar Singh,Rajendra Prasad Misra
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anil Kumar,J.

Hon'ble Anil Kumar Srivastava-II,J.

Heard Shri Rajendra Prasad Misra, learned counsel for the appellant, Shri Umesh Verma, learned A.G.A. and perused the record.

Instant appeal has arisen against the judgment and order dated 08.02.2013 passed by Additional District and Sessions Judge, Court No.4, Gonda in S.T. No.203/2011 arising out of Crime No.122/2011 under Section 304 I.P.C., P.S.-Itiyathok, District-Gonda, whereby accused-appellant was convicted under Section 304 Part I I.P.C. and was sentenced for life imprisonment and pay a fine of Rs.5000/- and in default of payment of fine, six months of rigorous imprisonment was also awarded.

Facts in brief of the present case are that complainant-Raj Kumar Pandey on 03.04.2011 submitted an information that there are no cordial relations between his parents, namely, Munshi Lal and Pushpa Devi and often they used to quarrel due to domestic problem.

On 02.04.2011 when complainant along with his younger brother-Akshay Kumar came back from school to home, they found that there was a lock on the main door of their home and searched for their parents.

On 03.04.2011 at 8:00 a.m. his father informed the complainant on his mobile phone that the key of lock is kept in the Ramayan and after getting the key, he opened the lock and went inside the house where he found their mother lying dead in the southern side of the room near court-yard and a nylon cord was wrapped around her neck.

Accordingly, an F.I.R. was lodged on 03.04.2011 at 9: 30 p.m., Case Crime No.122/11 under Section 302 I.P.C., P.S.-Itiyathok, District-Gonda was registered. Thereafter, a inquest report as well as site-plan was prepared by Ram Pyare, Investigating Officer, P.S.-Itiyathok, District-Gonda and post-mortem of dead body was conducted on 03.05.2011 at 3:50 p.m. by Dr. P. K. Srivastava and in the said report, the cause of death has been mentioned due to asphysixia as a result of strangulation. Following ante mortem injuries were found :-

1. Multiple abraded contusion 10cm x 5cm back of left arm.

2. Abraded contusion 2cm x 1 cm back of left elbow.

3. Ligature mark around upper part of neck obliquely placed size 30 cm x 3cm, 5cm below right ear, 5m below chin and 5cm below left ear, on dissection, Fracture Right corner of Hyoid Tissue.

4. Contusion 5sxm x 4cm on left maxillary region of face.

Thereafter, charge sheet was submitted by the Investigating Officer. A case at S. T. No.203/2011 arising out of Case Crime No.122/2011 under Section 304 I.P.C. has been instituted in the Court of Additional District and Sessions Judge, Court No.4, Gonda.

Accused-appellant denied the charges and claimed trial.

During the trial, eight witnesses were produced from the prosecution side in order to prove the prosecution case.

In addition to the said fact, statement of accused-appellant under Section 313 CPC has been recorded.

Beside the said facts, on behalf of the accused-appellant, two witnesses, namely, Ram Karan Mishra and Salig Ram were produced and they stated that on the day of incident the appellant was not present at his home and went to attend the cremation of mother of D.W.1 who died on 01.04.2011.

Further from the side of the accused-appellant, defence was taken that there was a sudden provocation on the part of the accused-appellant, who found his wife in compromising position with another man and due to the said fact, he became annoyed and wrapped a nylon cord around her neck.

Shri Rajendra Prasad Misra, learned counsel for the appellant initially argued the appeal on merit. Subsequently, he submits that he confined his argument only on the point of sentence.

Learned AGA does not dispute the said suggestion made by learned counsel for the appellant.

From the perusal of the statement given by P.W.3-Raj Kumar Pandey, who is son of the deceased and accused, the position which emerges out is that there are no cordial relations between his parents, namely, Munshi Lal and Pushpa Devi and they often used to quarrel due to domestic problem. On 02.04.2011 complainant and his younger brother-Akshay Kumar went to school for study. When in the noon complainant came back to the house, he found that there was a lock on the main door of his house. He searched for his parents in the neighborhood but could not find them. On 03.04.2011 at 8:00 a.m. his father phoned the complainant on his mobile phone informing him about the key being kept in the Ramayan and after getting the key, he opened the lock and went inside the house where he found his mother lying dead in the southern room of court-yard, with a nylon cord wrapped around her (complainant's mother) neck.

Further, P.W.4-Akshay Kumar, who is younger son of the deceased and accused had also supported the prosecution version.

Taking into consideration the above said statement given by P.Ws.3 and 4 who are real son of the deceased and accused as well as fact that, learned counsel for the accused-appellant does not press the present appeal on merit, but confined his argument only to the extent that conviction is based on the point of sentence.

We are of the considered opinion that no illegality or infirmity has been done by trial Court by convicting the accused by means of the impugned judgment under challenge in the present appeal.

Next point which is to be considered in the present case is that "what sentence is to be awarded in the present case."

On appreciation of evidence on record of the present case, we agree with the contention of the learned counsel for the appellant that since it is a case of sudden provocation and there was no premeditation on the part of the appellant and he had not acted in unusual manner.

Sentence is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. With reference to sentencing by courts, this Court in the decision in State of U.P. vs. Shri Kishan (2005) 10 SCC 420 made these weighty observations :

"5. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, 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, etc.............

7. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

8. ................. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise  counterproductive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

9. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal".

In view of the above principle of law laid down by this Court, and considering the facts and circumstances of the case at hand, particularly, the fact that in the present case it is clear that there was a sudden provocation on the part of the accused-appellant, who found his wife in compromising position with another man and killed her by wrapping a nylon cord around her neck and further considering that there was no premeditation on the part of the appellant to commit the murder, we are of the view that it is a fit case to hold the offence punishable under Section 304 Part I IPC.

In this regard, Hon'ble the Apex Court in the case of State of U. P. vs. Lakhmi 1998 CRL. L. J. 1411 held as under :-

"There can be little doubt that if the accused had witnessed any such scene, his mind would have become suddenly deranged. It is not necessary that a husband should have been hot tampered or hypersensitive to lose his equanimity by witnessing such scenes. Any ordinary man with normal senses or even sangfroid would be outraged at such a scene.

We are, therefore, inclined to afford to the respondent accused benefit of Exception I to Section 300 IPC. As the corollary, we find the respondent guilty only under Section 301 (Pare I), IPC.

In the result, we allow this appeal and set aside the judgment of the High Court, but in alteration of the conviction passed by the Sessions Court, we convict him under Section 304 (Part I), IPC. We sentence him to undergo rigorous imprisonment for a period of six years. We direct the Sessions Judge, Meerut to take steps to put the accused in jail for undergoing the remaining portion of the imprisonment term in accordance with the sentence imposed on him now. (Bojh Adiwasi vs. State 1999 (39) ACC 72)."

In Pulicherla Nagaraju alias Nagaraja Reddy v. State of A.P. (2006) 11 SCC 444, in paragraph 29, this Court has discussed the issue as to when the conviction can be converted from an offence punishable under Section 302 IPC to Section 304 Part I or 304 Part II IPC and the same is reproduced hereunder: -

"29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters -- plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."

So far as the question of sentence is concerned, it has already come on record that offence committed by the accused-appellant was under sudden provocation and has already been found by the Investigating Officer in the charge sheet. Relying upon the case law as stated herein above, we are of the considered view that imposition of maximum sentence of life in this case is too excessive, since charge sheet was also filed under Section 304 I.P.C. And trial Court has convicted and sentenced the accused-appellant under Section 304 I.P.C.

We are of the considered view that end of justice would meet if the sentence of accused-appellant is reduced upto nine years rigorous imprisonment and fine of Rs.5000/-.

Accordingly, appeal is partly allowed.

Order of conviction as imposed by learned Trial Court is confirmed and the sentence is modified to the extent that the accused-appellant is sentenced for rigorous imprisonment for nine years under Section 304 Part I I.P.C. and pay a fine of Rs.5000/- and in default of payment of fine, he shall undergo for six months imprisonment.

Office is directed to send the certified copy of this order to learned trial Court forthwith and send the lower court record forthwith.

(Anil Kumar Srivastava-II,J.) (Anil Kumar,J.)

Order Date :- 29.8.2016/Mahesh