Kunwar Pal vs State Of U.P.
2021 Latest Caselaw 11300 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 50
 

 
Case :- JAIL APPEAL No. - 7744 of 2009
 

 
Appellant :- Kunwar Pal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,Kanchan Chaudhary
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral judgment by Hon'ble Dr. Kaushal Jayendra Thaker,J.)

1. This appeal has been preferred by the appellant-Kunwar Pal against the judgment and order dated 04.11.2009, passed by Additional Sessions Judge, Court No. 13 Bareilly, in Session Trial No. 946 of 2007 (State vs. Kunwar Pal) arising out of Case Crime No. 26 of 2007, under Sections 302, 376, read with section 511 Indian Penal Code (I.P.C.), Police Station Awala, District Bareilly, whereby the accused was convicted and awarded sentence under Section 302 IPC for life imprisonment and fine of Rs.15,000/- in default accused was directed to undergo further imprisonment for one year. Accused was acquitted of charges under sections 376 read with section 511 of IPC.

2. The facts giving rise to this appeal are that complainant Omkar Jatav submitted written-report at Police Station Awala, District Bareilly, stating therein that on 18.01.2008 at 11:30 in the morning when six years old child-girl who had accompanied with appellant was found dead in his house. The prosecution was moved into motion by father of the deceased alleging that she had been raped and then murdered. The Investigating Officer conducted the investigation and being satisfied that case was made out, submitted charge-sheet against the accused-appellant, under Sections 302, 376, read with section 511 IPC.

3. As accused was facing charges under Sections 302, 376, read with section 511 IPC, the case was committed to the court of Sessions. Learned trial court has framed charges on 29.03.2008 against appellant under Sections 302, 376, read with section 511 IPC. Charges were read over to the accused, who denied the charges and claimed to be tried.

4. To bring home the charges, following witnesses were examined by the prosecution:

Omkar

PW1

2.

Lilawati

PW2

3.

Babu Singh

PW3

4.

Badami

PW4

5.

Dr. A. K. Gautam

PW5

6.

V.K. Kasana

PW6

7.

Gajendra Pal Singh

PW7

8.

Ram Sharan Verma

PW8

All of them have given statements under section 161 Cr.P.C. and have opined against the accused.

5. The ocular version was sought to be corroborated by production of documentary evidences:

1.

F.I.R.

Ex. Ka2

2.

Written Report

Ex. Ka1

3.

P.M. Report

Ex. Ka4

4.

Panchayatnama

Ex. Ka7

5.

Charge Sheet Mool

Ex. Ka6

6.

Site Plan with Index

Ex. Ka5

6. Accused-appellant was examined under Section 313 Cr.P.C. and evidence against him led by prosecution against him were put to him. Accused stated that false evidence has been led against him. Accused did not examine any witness in his defence.

7. We have heard Ms. Kanchan Chaudhary, who has been appointed by High Court Legal Services Committee, as Amicus Curiae and learned AGA for the State and perused the record.

8. Learned counsel for the appellant has vehemently submitted that there is contradiction in the ocular version of Omkar and Lilawati i.e. father and mother of the deceased and also about the timing as mentioned in the postmortem report as Ex. 4. She has further submitted that accused is totally innocent and could not have been convicted on fragile evidence of eye-witnesses which is full of contradiction. It has been further submitted that dead body might have been planted by somebody else and the accused is roped in.

9. Per contra, learned AGA has taken us through the evidence on record and has contended that this is not a case where the accused can be given any benefit of doubt as it was his own house where the dead body was found. The father of the victim categorically in ocular version supported the F.I.R. stating that his daughter had accompanied the accused and she did not return back at home, they went to the house of the accused who did not open the door and when the door was opened he ran away from the scene of offence.

10. At the outset only the offence for which the accused has been convicted under section 302 IPC we would now sift the evidence on record.

(a) The dead body was found in the house of accused, the testimony of father corroborates the F.I.R. that deceased had accompanied with accused, there is no rebuttal evidence produced and, therefore, we have to call section 106 of the Indian Evidence Act for which learned trial Judge has given cogent reasons that accused Kunwar Pal took the victim/deceased from her house and she was found dead in the room of accused's house. At that time there was no one in the house of accused. Hence, burden lies on the shoulder of accused to prove as to how the death of deceased took place because this fact was within the special knowledge of the accused but accused had not discharged this burden.

11. The fact that the dead body was found at the residence/place of accused at 1:00 p.m. and just because there is some minor contradictions about the timing when he had come at 11:30 and dead body 10/11:00 and will not dislodge the prosecution case. Estimated time is given by the doctor and it is not the exact time. The ligature mark in postmortem report categorically goes to show that young girl died on account of asphexia caused due to strangulation. We have convinced that this is not a case where accused can be given any benefit of doubt.

12. The recent judgment of Apex Court has held in the case of Union of India Vs. Dharam Pal, AIJEL 2019 (0) SC 64322 where the accused was charged in murder of five persons there was imposition of death sentence mercy petition was filed and there was incarceration for a total period of over 25 years, out of which 18 years were in solitary confinement, the Apex Court commuted his death sentence into life imprisonment. We are supported in arguing by the decision of Vikas Yadav Vs. State of U.P. 2016 (9) 541 will also for benefit of accused. It is not a heinous crime and however when he has committed the offence he was a young person.

13. Looking to the over all fact and circumstances, we also rely the judgment of Maru Ram Vs. Union of India, AIR 1980 SC 2147. This case has not yet been considered, though it is not a right of the accused but it is obligation on the State to consider the case for commutation. The recent judgment in Criminal Appeal No. 345 of 1983 decided on 29.08.2017 paragraph 33 of this Court has held as fallows:

"33. Going through the testimony and the record, it cannot be said that the commission of offence was so gruesome and life sentence would mean till the last blood. Accused shall be entitled to all the remissions. This direction is given in view of principles enunciated in Maru Ram Vs. Union of India, AIR 1980 SC 2147, considered again in Vikas Yadav Vs. State of U.P. 2016 (9) 541 and the constitutional power vested in Article 72 and Article 161 of the Constitution of India read with Section 432 and 433-A of Cr.P.C. will also permit this Court to hold that it will be available to the State to exercise its jurisdiction vested under Section 432 Cr.P.C. and we do not, for a moment, hold that this is a case where life would mean till his last breath and, therefore, also the case of both the accused be considered for remission as expeditiously as possible not later than six months from today. It goes without saying that the State shall exercise the powers after 14 years incarceration is over."

14. Thus in the light of these facts, the High Court as per reformative theory will permit us to grant fix term jail sentence to the accused.

15. At the end, we agree with the submission of learned counsel for the appellant that at end of 14 years the State may consider his case for remission under section 433 and 434 and this is not a heinous crime and he is in jail since 2007 and more than 14 years are already completed.

45. We find that in the State of U.P. even after 14 years of incarceration does not even send the matter to the Magistrate for reevaluation the cases for remission as per mandate of Sections 432 and 433 of Cr.P.C. and as held by Apex Court in catena of decisions even if appeals are pending in the High Court. The accused in present case is in jail since 2000.

46. Sections 433 and 434 of the Cr.P.C. read as follows:-

"Section 433. Power to commute sentence. The appropriate Government may, without the consent of the person sentenced, commute-

(a) a sentence of death, for any other punishment provided by the Indian Penal Code;

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine."

"Section 434. Concurrent power of Central Government in case of death sentences. The powers conferred by sections 432 and 433 upon the State Government may, in the case of sentences of death, also be exercised by the Central Government."

47. Section 433 and 434 of the Cr.P.C. enjoins a duty upon the State Government as well as Central Government to commute the sentences as mentioned in the said section. We are pained to mention that even after 14 years of incarceration, the State did not think of exercising its power for commutation of sentence of life imprisonment of the present accused and it appears that power of Governor provided under Article 161 of the Constitution of India are also not exercised though there are restriction to such power to commute sentence. The object of Sections 432 read with Section 433 of the Cr.P.C. is to remit the sentence awarded to the accused if it appears that the offence committed by him is not so grave. In our case, we do not see that why the accused is not entitled to remission. His case should have been considered but has not been considered. Remission/ commutation of sentence under Sections 433 and 434 of the Cr.P.C. is in the realm of power vested in the Government. The factual scenario in the present case would show that had the Government thought of taking up the case of the accused as per jail manual, it would have been found that the case of the appellant was not so grave that it could not have been considered for remission / commutation.

16. The State may consider for his remission, hence as a theory of reformation would apply to this case as it may be that he was young boy and due to bad luck and fear he may have committed this offence. He has no criminal antecedents attributed to him.

17. The appeal sans merit and is dismissed. However, with the aforesaid observations to the State.

18. Record for proceedings be consigned to the trial court.

19. The High Court Legal Services Committee will pay the requisite fees to the learned counsel who is amenably assisted this Court.

(Ajai Tyagi, J.)         (Dr. Kaushal Jayendra Thaker, J.)
 
Order Date :- 10.11.2021
 
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