Upendra Kumar Tripathi @ Neeraj vs State Of U.P.
2021 Latest Caselaw 10256 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. - 76
 

 
Case :- CRIMINAL APPEAL No. - 831 of 2020
 

 
Appellant :- Upendra Kumar Tripathi @ Neeraj
 
Respondent :- State of U.P.
 
Counsel for Appellant :- P.K. Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ajai Tyagi,J.

1. This appeal has been preferred by the appellant against the judgment and order dated 23.12.2019, passed by learned Additional Sessions Judge, Court No.19, Kanpur Nagar, in S.T. No.722 of 2013 (State of UP vs. Upendra Kumar Tripathi) arose out of Case Crime No.102 of 2013, under Sections 498A, 304B IPC & Section 4 of Dowry Prohibition Act, 1961, Police Station-Panki, District-Kanpur Nagar.

2. The relevant facts for disposal of this appeal are that complainant-Santosh Kumar Dixit (father of the deceased) lodged FIR at Police Station-Panki, Kanpur Nagar, stating that the marriage of his daughter Ruchi @ Aradhna (deceased) with Upendra Kumar @ Neeraj (appellant) s/o late Rampal Tripathi was solemnized on 24.2.2012. He gave dowry in the marriage as decided, but Neeraj and his family members were not satisfied with the dowry so they started torturing his daughter and demanded four-wheeler and Rs.one lakh as additional dowry for which they used to give mental and physical torture to his daughter. They also stopped her daughter to contact with her father and mother. Upendra, her sister Poonam and Poonam's husband used to beat her. In December, 2012, Ruchi gave birth to a daughter and after that cruelty increased. Before 10 days of the occurrence, Ruchi's maternal uncle and complainant's sons went to the house of Ruchi at Panki, Kanpur Nagar and requested her husband (appellant) and his family members not to torture Ruchi, but they abused and beaten Ruchi before them also. On 8.3.2013 at about 9:00 a.m., somebody informed on telephone that his daughter Ruchi had died. Her daughter has been killed by her-in-laws, therefore, strict legal proceedings be initiated against them.

3. Heard Shri P.K. Singh, learned counsel for appellant, learned AGA for the State and perused the record.

4. Learned counsel for appellant argued that in this case after investigation, charge-sheet was filed against the appellant, while the complainant tried to implicate other family members of appellant also. Named Poonam and her husband were not charge-sheeted by Investigating Officer. On this score alone, the prosecution story seems to be false; it was a suicidal case; the death of the deceased is by hanging herself. Prosecution produced four witnesses of facts. PW1 is informant, PW2-Vineet Kumar is brother of the deceased, PW3-Durgesh Tiwari is cousin of the deceased and PW7-Shakti Saran is maternal uncle of the deceased. Their statements are contradictory to each other. As per prosecution evidence, there is no abatement on the part of the accused-appellant for commitment of suicide by the deceased.

5. Learned counsel for the appellant submitted that accused is in jail since 13.3.2013. He has been awarded maximum sentence of ten years under Section 304B IPC while he has already served more than eight years and four months of sentence. It is established by prosecution evidence itself that it is a case of suicide. He also submitted that prosecution brought forward a suicide note after 15 days of the occurrence and it is said that the suicide note was found in her maternal uncle's (mausa) house at the time of cleaning the house. Appellant got the hand-writing of the suicide note compared with the hand-writing of the deceased and the hand-writing expert gave the conclusion that both the hand-writings are not of the same person. Hence, prosecution has failed to prove the suicide note and it is clear that it was written by somebody else to falsely implicate the appellant.

6. He submits that since appellant has already served near about eight and a half years of sentence out of ten years awarded to him, he should be freed now with undergone imprisonment as the appellant has one daughter aged about nine years only and earlier his daughter was residing with her grand-mother and now her grand-mother has died. Therefore, the daughter is residing now with her aunt (bua). It is obvious that a female-child of nine years needs parental care and she needs the support of her father in her life.

7. Learned counsel for the appellant further argued that in defence, PW1 was produced, who is neighbor of the appellant and resides in the same building. He has categorically stated that there was no quarrel or differences between appellant and deceased. Appellant also produced as PW6 before learned trial court. Keeping in view the circumstances of appellant's daughter and the period of sentence already undergone, it is prayed that accused-appellant be released finally.

8. Per contra, learned AGA opposed the prayer of counsel for the appellant and submitted that learned trial court has considered all the pleas taken by the appellant. All the ingredients of offence under Section 304B IPC are there in this case and the learned trial court has rightly convicted and sentenced the accused-appellant.

9. Learned counsel for the appellant argued that maximum awarded sentence to the accused is of ten years and he has already undergone eight and a half years and as per jail manual, remission be also there. If remission as per jail manual is taken into account, only a little time of his sentence is left now.

10. In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926, explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:

"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization.Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies 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 a social defence. Hence 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. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."

11. In State of MP vs Najab Khan, (2013) 9 SCC 509, the High Court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the Court observed as follows:-

"In operating the sentencing system, law should adopt the corrective machinery or the 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 dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."

12. Earlier, "Proper Sentence" was explained in Deo Narain Mandal Vs. State of UP (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.

13. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323, State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463.

14. In Kokaiyabai Yadav vs State of Chhattisgarh (2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.

15. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs Surajbhan Singh, (2014) 7 SCC 323, State of Punjab vs Bawa Singh, (2015) 3 SCC 441, and Raj Bala vs State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.

16. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.

17. Since the learned counsel for appellant has not pressed the appeal on merits, however, this Court after perusal of the entire evidence on record and judgment of the learned Trial Court considers that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.

18. So far as the quantum of sentence is concerned, in this case, accused-appellant was awarded two years R.I. under Section 498A IPC with fine and imprisonment in default, six months R.I. under Section 4 D.P. Act, 1961 with fine and imprisonment in default and ten years R.I. under Section 304 B IPC. It was also directed by learned trial court that all the sentences will run concurrently. Hence, in this case, maximum awarded sentence to the appellant is ten years. He is in jail since 13.3.2013. Hence, he has already undergone eight years and five months of the awarded sentence. In my considered opinion, keeping in view the facts and circumstances of the case, sentence already undergone by accused-appellant is sufficient to meet the ends of justice. In regard to the fine imposed upon the appellant by learned trial court, this Court finds that the same is adequate and it is not required to be disturbed and the appellant is directed to deposit the same.

19. Accordingly, the conviction is upheld. The appeal is partly allowed with the modification of the sentence by the period already undergone and served out by the appellant. The appellant be released from the jail on depositing the fine imposed by the trial court, if he is not wanted in any other case.

20. Office is directed to transmit the lower court record along with a copy of this judgment to the learned court below for information and necessary compliance as warranted.

21. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the learned counsel for the applicant alongwith a self attested identity proof of the said persons (preferably AADHAR Card) mentioning the mobile number (s) to which the said AADHAR Card is linked before the concerned Court/Authority/Official.

22. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 13.8.2021

LN Tripathi

(Ajai Tyagi, J.)