Allahabad High Court

Dharam Singh vs State Of U.P. on 6 August, 2022

Bench: Kaushal Jayendra Thaker, Ajai Tyagi




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 3271 of 2020
 

 
Appellant :- Dharam Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Upendra Kumar Pushkar
 
Counsel for Respondent :- G.A.
 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Oral Judgment)

1. Heard Abhishek Mayank, learned counsel for the appellant and learned A.G.A for the State and perused the record. Though the matter is listed for hearing application for enlargement on bail we with consent of counsels heard the matter as record is before this Court. It is not disputed that the accused is in jail since 5.12.2009, so heard finally.

2. This appeal challenges the judgment and order dated 27.10.2020 passed by Additional Sessions Judge, Court No.3, Aligarh in Sessions Trial No. 459 of 2010 convicting accused-appellant for commission of offence under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.20,000/- and in default of payment of fine, further to undergo imprisonment for one year.

3. Brief facts as culled out from the record are that on 01.06.2009 sister of complainant Tejpal Singh got married with accused Dharam Singh. He gave sufficeint dowry in the marriage. However, Dharam Singh (husband of the deceased) and her in-laws were not satisfied with the dowry given in the marriage. On 02.11.2009, the complainant received a phone call from his elder sister Urmesh that her sister was burnt alive by her in-laws. On that information, complainant and his father reached the village Sahara Kala where his sister was found in burnt condition but her in-laws were not present at their house. Victim disclosed in front of informant that at 5:00 A.M her husband Dharam Singh, elder brother-in-law (Jeth) Raju and brother-in-law Rambabu tried to burn her to death. Complainant went with his sister who was in being treated in burns ward for medical treatment at Government Hospital, Iglas. On 11.11.2019, during the treatment, Radha died. On the basis of the above complaint, the First Information Report was lodged which culminated into the charge-sheet being laid against the accused-appellant, Dharam Singh under Section 302, 498A and 201 of I.P.C.

4. On being summoned, the accused pleaded not guilty and wanted to be tried. The offence for which accused was charged was triable by the Court of Sessions, hence, the accused-appellant was committed to the Court of Sessions. The learned Sessions Judge framed charge under Section 302 of I.P.C.

5. The Trial started and the prosecution examined 9 witnesses who are as follows:

Tejpal Singh

PW1

Const. Clerk Indrapal Singh

PW2

I.O. Retd. Ghanshyam Singh

PW3

A.D.M Finance and Revenue Maharajganj, Rajendra Prasad

PW4

Retd. Naib Tehsildar, Iglas Shivendra Kumar Yadav

PW5

Pharmacist C.H.C., Iglas Ramesh Chandra

PW6

Dr. Govind Prasad

PW7

Dr. Rakesh Mohaniya, Agra

PW8

Dr. Sri Ram Sharma

PW9

6. In support of ocular version following documents were filed:

Tehrir

Ex.Ka.1

Copy of Chik F.I.R

Ex.Ka.2

G.D

Ex. Ka.3

Site Plan

Ex.Ka.4

Charge-sheet

Ex. Ka. 5

Statement of deceased Radha

Ex.Ka.6

Dying Declaration

Ex. Ka. 7

Ex. K.a. 8

Certified Copy of P.I. Register

Ex. K.a. 9

Information letter of S.O. Sadar, Agra

Ex. K.a. 10

Lavaniya Hospital and Research Center receipt

Ex. K.a. 11

7. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant as mentioned above.

8. The accused is in jail since 05.12.2009. On 23.11.2020, this Court had passed orders directing the State counsel to file counter affidavit, if any, to application for enlargement on bail. Unfortunately, for a period of two years this matter was not listed. It is submitted by learned counsel for the appellant that the judgment of Criminal Appeal No. 308/2022 (Saudan Singh Vs. State of U.P) arising out of SLP (Crl) No. 4633 of 2021, decided on 25.02.2022 would apply to the facts of this case. We have got the record before this Court. The case would according to the learned counsel would fall under Section 304 (1) I.P.C as the deceased after getting burn injuries died after about a period of 8 days. The dying declaration implicates the husband. The implication is on the husband. The learned Judge as according to the State counsel has rightly considered the judgments of Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 and Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470 and has sentenced the accused and there is no question of showing any leniency in this matter where the wife has implicated the husband and she had died out of burn injuries. The examination of P.W.-1 and P.W.-2, according to the State counsel who have lodged the F.I.R. The deceased had 60% burn injuries, the deceased was brought in a critical situation to the hospital, the death of the victim has been proved to be due to burn injuries as Dr. Sri Ram Sharma, P.W.-9 has testified an oath and confirmed the same. We are not convinced by the submission of the learned counsel for the appellant that the husband has been wrongly punished and there are inconsistent dying declaration. The learned Judge while considering the case has not differentiated between Section 300 I.P.C and Section 304 I.P.C. The provisions of Section 300 I.P.C read a follows:-

"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."

9. The submission of the learned counsel for the appellant that the dying declaration could not have been made as she had burn injuries, this is also unacceptable as there were only 60% injuries and she had survived for 9 days. The dying declaration contained the name of the husband, no doubt there is improvement in the second dying declaration but the same is ignored. The Naib Tehsildar has opined his oath and Dr. Govind Prasad also testified the said fact. All these cumulative facts permit us to accept the dying declaration.

10. The prosecution examined Dr. Sri Ram Sharma as P.W-9. The deceased was admitted to Lakhniya Hospital and Research Center, Tajganj, Agra on 10.11.2009 but she was discharged on 11.11.2009, she was referred and also according to the treatment report as Exhibit -11, she breathed her last on 11.11.2009 itself. The incident occurred on 02.11.2009 at 5:00 A.M in the morning. There was a commotion between the husband and wife. She did not name the persons who are in her neighbour and who brought her to the hospital, the husband and her in-laws did not came to the hospital. The husband is a young person of 20 years. One more glaring aspect which has been pointed out by the counsel that the postmortem report was never placed on record by the prosecution, it appears from the evidence itself it is clear that postmortem was not conducted and the accused according to the prosecution were even charged for Section 201, 498A I.P.C but for Section 498A and Section 201 I.P.C the accused has been acquitted.

11. This takes us to the alternative submission whether the offence would be punishable under Section 304 Part I or II or Section 302 of I.P.C.? The question to be answered would be whether there is any intention or knowledge or it was a murder simpliciter?

12. The question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

13. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to

cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

14. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principles laid down by the Apex Court in the Case titled Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the matter of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that it was a case of homicidal death not amounting to murder and the offence is punishable under Section 304 Part I of I.P.C as death occurred after few days the incident occurred. The incident occurred due a fight between husband and deceased which took a ugly turn and the deceased was set ablaze.

15. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention to cause bodily harm to the deceased but did not want to do away with the deceased. Hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

16. It would be relevant for us to refer a recent judgment of this High Court in Criminal Appeal No. 2878 of 2013 :-

14. While coming to the conclusion that the accused is the perpetrator of the offence, whether sentence of life imprisonment and fine is adequate or the sentence requires to be modified in the facts and circumstances of this case and in the light of certain judicial pronouncements and precedents applicable in such matters. This Court would refer to the following precedents, namely, 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."

15. '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 proportionality'. 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.

16. 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.

17. 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.

18. As discussed above, ''reformative theory of punishment' is to be adipted and for that reason, it is necessary to impose punishment keeping in view the ''doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the cases and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.

17. On the basis of the record which is before us we come to a definite conclusion that the death was occurred due to burn injuries caused by the appellant-accused. There was a commotion in the morning though there are two dying declarations, we rely on the first dying declaration as per the judgment of State of U.P. Vs. Ram Sagar Yadav, (1985) 1 SCC 552 come to final analysis. The question is what would be just punishment for twenty year old person who is in jail since 05.12.2009.

18. Therefore, we convert the sentence of 'life imprisonment' to 10 years' rigorous imprisonment. Unfortunately the fine has been Rs.20,000/- which is reduced to Rs. 10,000/-. If 10 years of incarceration is over, the accused-appellant be set free if not wanted in any other case. However, if fine is not paid, the default sentence will run after the completion of 10 years. We alter the conviction from Section 302 I.P.C. to Section 304(1) I.P.C.

19. Accordingly, the appeal is partly allowed with the modification of the sentence and fine as above.

20. Record and proceedings be sent back to the Court below forthwith.

21. A copy of this order be sent to the jail authorities for following this order and doing the needful.

22. This Court is thankful to Sri Abhishek Mayank, learned counsel for the appellant who has ably assisted this Court and even argued the main matter. We are also thankful to Sri N.K. Srivastava and Sri Mishra, learned A.G.As for ably assisting us.

Order Date :- 6.8.2022