Brijesh Harijan vs State Of U.P.
2022 Latest Caselaw 12912 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

[A.F.R.]
 
Court No. - 44
 
Case :- CRIMINAL APPEAL No. - 2057 of 2018
 
Appellant :- Brijesh Harijan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Swati Agrawal
 
Counsel for Respondent :- G.A.
 
AND 
 
Case :- CRIMINAL APPEAL No. - 1802 of 2018
 
Appellant :- Vinod Harijan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Swati Agrawal
 
Counsel for Respondent :- G.A.
 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Hon'ble Nalin Kumar Srivastava, J)

1. Heard Mrs. Swati Agrawal assisted by Sri Shivam Tripathi, learned counsel for the appellants in both the appeals and Sri Vikas Goswami, learned AGA for State.

2. Both these appeals have been preferred by the appellants against the judgment and order dated 17.3.2018, passed by learned Additional Sessions Judge, Court No.1, Gazipur in Sessions Trial No.59 of 2016 (State of Uttar Pradesh v. Vinod Harijan and another ) arising out of Case Crime No.147 of 2016, under Sections 302, 376 and 326 of Indian Penal Code, 1860 (in brevity 'IPC'), Police Station Mohammadabad, District Gazipur.

3. The learned Additional Sessions Judge has sentenced the accused-appellants in the following manner and has directed that all the sentences shall run concurrently:

Conviction under Section

Sentence Awarded

Fine

Default Sentence

302 of I.P.C.

Life imprisonment

Rs.20,000/-

1 year

326 of I.P.C.

10 years

Rs.20,000/-

1 year

376 of I.P.C.

Life imprisonment

Rs.20,000/-

1 year

4. The facts of the present case are that complainant Parvati w/o Jaggu Harijan had given written report in police station Muhammadabad that when she had gone to Bihar with her husband to harvest paddy, her daughter namely Soni (hereinafter called as victim/deceased) aged about 18 years was alone at home. On 07.01.2016, Vinod Harijan S/o Patiram Harijan and Brijesh Harijan S/o Phool Chand Harijon, having found her daughter alone, started molesting her. When her daughter namely Soni opposed, they set her ablaze pouring kerosene oil on her person as a result of which entire person of her daughter got burnt thereafter the villagers admitted her daughter in District Hospital, Ghazipur. On receiving information, when she reached near her daughter she had conveyed the aforesaid facts and that was the basis of the said written-complaint of the case by complainant Parvati Devi registered as case crime no.-147/2016 being registered against the accused persons Vinod Harijan and Brijesh Harijan u/s 354, 326-A I.P.C. in police-station Muhammadabad.

5. On the basis of the written-complaint of the complainant Parvati Devi, entry of chik-report dated 17.01.2016 was made at police-station Muhammadabad at 9:30 o'clock(sic). Very strangely dying declaration recorded on 17.1.2016 i.e. 10 days after the occurrence. The investigation of the case was conducted by the then Investigating-Officer who inspected the scene of the occurrence, prepared the site-map of the scene of occurrence, recorded the statements of the witnesses and after completing all the necessary formalities, the charge-sheet was filed against accused persons Vinod Harijan and Brijesh Harijan under Section 302, 376-D and 326-A of Indian Penal Code for trial in the Sub-ordinate court. Investigation was moved into motion and after recording statements of various persons, the Investigating Officer submitted the charge-sheet against accused.

6. The case being exclusively triable by sessions court, copies of prosecution documents were supplied to the accused persons by the Hon'ble Sub-ordinate Court u/s 207 Cr.P.C., and the case was committed to the sessions court for trial on 10.03.2016.

7. On being summoned, the accused-appellants pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined about 12 witnesses who are as follows:

Deposition of Parvati Devi

12.5.2016

31.5.2016

PW1

Deposition of Jaggu Ram

4.6.2016

PW2

Deposition of Deyu Ram

2.7.2016

PW3

Deposition of Sudarshan Prasad

27.7.2016

PW4

Deposition of Dr. Surendra Kumar

2.9.2016

PW5

Deposition of Dr. Umesh Kumar

2.9.2016

PW6

Deposition of Dr.Sanjay Mohan Gupta

29.9.2016

PW7

Deposition of Dileep Kumar Singh

14.10.2016

13.9.2017

PW8

Deposition of R.K. Yadav

4.11.2017

PW9

Deposition of Kalawati Devi

8.11.2017

PW10

Deposition of Prashant Kumar Srivastava

2.1.2018

PW 11

Deposition of Ram Samujh Singh

1.2.2018

PW12

8. In support of ocular version following documents were filed and proved:-

F.I.R.

17.1.2006

Ex.Ka.8

Written Report

Ex.Ka.1

Dying Declaration

17.1.2016

Ex.Ka.2

Recovery memo of pieces of 'Gudari' Kambal and Burnt Ban, Cloth and Ash

19.1.2016

Ex.Ka.7

Injury Report

7.1.2016

Ex.Ka.3

Medical Report

17.1.2016

Ex.Ka.4

Postmortem report

25.1.2016

Ex.Ka.5

Panchayatnama

25.1.2016

Ex.Ka.12

Charge sheet

27.2.2016

Ex.Ka.10

Site plan

19.1.2016

Ex.Ka.6

11.

G.D. Entry

Ex.Ka.9

12.

Rojnamacha

10.2.2016

Ex.Ka11

9. After concluding the prosecution evidence, the statements of the accused persons were recorded u/s 313 Cr.P.C., in which the accused persons have stated the prosecution story to be wrong and the case to have been initiated against them out of enmity. The accused persons have, in additional statement, stated that the police of PS Muhammadabad has filed charge-sheet by collecting fake evidence in collusion with the opposite parties of the village and out of their enmity.

10. 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 appellants as mentioned herein above. Being aggrieved by and dissatisfied with the aforesaid judgement and order passed by the Sessions Court, the appellants have preferred the present appeal.

11. Learned counsel for the appellants has submitted that no offence as alleged has been committed by the accused. It is further submitted that the accused had no motive to do away with the deceased and that the death of the deceased was due to medical negligence and was after a considerable period of time from the date of commission of offence.

12. Learned counsel for the appellant has relied on the decision of Supreme Court in (a) State of Assam Versus Ramen Dowarah, LAWS(SC) 2016 19 (b) Mahavir Singh Vs. State of Haryana, LAWS(SC) 2014 5 62 (c) Criminal Appeal No.436 of 2022 (The State of Uttar Pradesh Vs. Subhash @ @ Pappu) decided on 1.4.2022 by the Apex Court and in Criminal Appeal No.121 of 2021 ( Khokan @ Khokhan Vishwas Vs. State of Chhattisgarh) decided on 11.2.2021 by the Apex Court so as to contend that the decision of imprisonment for life is bad and life could not be till the last breath and the conviction under Section 302 read with Section 326 and 376 of I.P.C. is not made out. In alternative, it is submitted that the the offence would be under Section 304 Part II or Section 304 Part I of I.P.C as per the decisions narrated herein above on which heavy reliance is being placed by the counsel for the appellants. It is further submitted that if the Court comes to the conclusion that the accused has committed the offence, in that case as the accused have been in jail for more than 6 years without remission, he may be granted fixed term punishment of incarceration.

13. It has been vehemently submitted by learned A.G.A. for the State that the offences alleged are gruesome and the offences having been committed by the appellants is conclusively proved by dying declaration. Learned counsel has taken us through the evidence on record and the manner in which the deceased was raped and then out of fear was done to death. Sri Vikas Goswani, learned A.G.A. for the state has submitted that life imprisonment awarded to the accused in the facts and circumstances of the case was the only punishment which could be awarded to the accused-appellants and requested for dismissal of appeal.

14. Before we start considering the evidence which we are not elaborately discussing, the reason being it is proved conclusively that the accused have caused injuries to the deceased and set her ablaze which was primarily responsible for her death. The alternative prayer about lesser punishment is to be considered.

15. After some arguments, learned counsel for the appellant submitted that he is not pressing this appeal on its merit, but he prays only for reduction of the sentence as the sentence of life imprisonment awarded to the appellant by the trial court is very harsh. Learned counsel also submitted that appellant is languishing in jail for the past more than 6 years.

16. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellants as far as death of deceased is concerned.

17. However, 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, 376 and 326 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."

18. 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 is 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

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(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.

19. While considering the evidence as considered by the learned Trial Judge and looking to the medical evidence, the accused were earlier charged with commission of offence under section 354 of IPC read with 326 of IPC. The deceased was aged 28 years of age. The postmortem of the deceased was conducted. The dying declaration dated 17.1.2016 read with the ocular version of witnesses and the evidence narrates that the deceased was raped and after being scared, both the accused tried to set her ablaze. The dying declaration dated 17.1.2016 was recorded, namely ten days after the said incident occurred. The injuries report, the medical report and the finding of facts would go to show that the death occurred due to burn injuries. In evidence of PW-1, he has mentioned that both the accused tried to molest her daughter and when she resisted, they set her ablaze. In cross examination, she has accepted that she and her husband were not in their house. PW-2 came to know about the said accident on telepathically information given by the villagers. PW-1, PW-2 & PW-3 were not eye witnesses. PW-4 who was the Naib Tehsildar stated that his daughter was 70% burned and was admitted in the Hospital.

20. We are pained to mention that the dying declaration is recorded about after 10 days of the incident. The medical evidence for Section 376 D of IPC is absent and therefore it is very difficult to concur with the trial court as far as punishment under Section 376 D of IPC is concerned. Learned Judge nowhere discusses as to how and on what basis he accepts that offence under Section 376 D of IPC was committed when the other witnesses have mentioned that the accused tried to molest the deceased. The evidence of Doctors, PW-5, PW-6 and PW-7 are also silent to this effect. Very unfortunate that PW-4 and PW-5 do not throw any light whether the deceased was forced to forcible sex or not. PW-6 had also examined the deceased on the very same date. She was in her senses when dying declaration was recorded. Even PW-7 who had performed the postmortem nowhere mentioned that there was forcible sex with the deceased. Except the dying declaration recorded after 11 days, there is no medical evidence to corroborate that the rape was committed on the deceased.

21. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under:

[375. Rape.- A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven descriptions :-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under eighteen years of age.

Seventhly.- When she is unable to communicate consent.

Explanation 1.- For the purposes of this section, "vagina" shall also include labia majora.

Explnation 2.- Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act.

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1.- A medical procedure or intervention shall not constitute rape.

Excpetion 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.]

22. In that view of the matter the conviction u/s 376 IPC cannot be concurred with and requires to be set aside as there are no sign of forcible sex with deceased. The dying declaration for this aspect could not be acted upon.

23. From the upshot of the aforesaid discussions, it appears that the death was caused by the accused in unison and it was a homicidal death whether the same was not premeditated or premeditated will have to be seen. The accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with 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.

24. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC.

25. 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."

26. '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.

27. 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.

28. 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.

29. Since the learned counsel for the appellant has not pressed the appeal on merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the appeal is required to be partly allowed as guilt of accused is established from dying declaration and the ocular evidence of witnesses plus injuries caused on the deceased primary sufficient to fastening her death at a very young age.

30. As discussed above, 'reformative theory of punishment' is to be adopted 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 case 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.

31. We are unable to agree with the submission of learned learned A.G.A. as far as it relates to the finding of the court below that the death was a premeditated murder and falls within provisions of Section 300 of IPC and the sentence under Section 302 IPC is just and proper. The reason for the same is that the deceased did not die and insistence death had it been a premeditated murder, the injuries on the body would have caused her immediate death.

32. One more glaring fact is that from the record of the medical papers that the deceased survived for more than ten days. She was admitted in District Hospital, Ghazipur and thereafter she developed fissure and later on during treatment, she breathed her last due to septicemia. Though we concur with learned Trial Judge that the death was homicidal death we are unable to accept the submission of Sri Vikas Goswami, learned A.G.A.

Punishment:

33. In view of the judgment of the Apex Court in State of Uttar Pradesh Vs. Subhash @ Pappu ( supra) and Khokan @ Khokhan Vishwas Vs. State of Chhattisgarh ( supra) will enure for the benefit for the accused-appellants as the death occurred after ten days was not a premeditated.

34. We come to the definite conclusion that the death was due to septicemia. The judgments cited by the learned counsel for the appellant would permit us to uphold our finding which we conclusively hold that the offence is not under Section 302 of I.P.C. but is culpable homicide.

35. The accused are in jail since 17.1.2016. The Apex Court in such cases has converted the conviction under Section 302 of I.P.C. to Section 304 Part I of I.P.C. which will come to the aid of the accused.

36. In view of the aforementioned discussion, we are of the view that the appeals have to be partly allowed, hence, appeals are partly allowed.

37. The conviction of the appellants under Section 302 of Indian Penal Code read with Section 326 of Indian Penal Code is converted to conviction under Section 304 (Part-I) of Indian Penal Code read with Section 326 of Indian Penal Code and the appellants are sentenced to undergo 10 years of incarceration with fine reduced at Rs.10,000/- for offence u/s 304(Part-I) of IPC and 10 years for offence under Section 326 with fine of Rs.5,000/- for default sentence . The accused shall under go incarceration for six month both serves to run concurently.

38. Appellants-accused are in jail since 17.1.2016. On completion of 10 years of incarceration with remission is over for all the offences and if fine is not deposited, the default sentence would start after the period of ten years. The accused- appellants shall be released on completion of said period, if not required in any other case. The accused-appellants would be entitled to all remissions. The judgment and order impugned in this appeal shall stand modified accordingly.

39. Let a copy of this judgment along with the trial court record be sent to the Court and Jail Authorities concerned for compliance.

Order Date :- 14.9.2022

Mukesh