Vijay Kumar vs State Of U.P.
2023 Latest Caselaw 6288 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgement reserved on 22.02.2023
 
Judgment delivered on 28.02.2023
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 8113 of 2009
 
Appellant :- Vijay Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- B.N. Pathak,Apul Misra,Manish Singh,Noor Mohammad,Sushma Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajit Singh,J.

(Per Hon'ble Ajit Singh, J )

1. Heard Sri Manish Singh, learned counsel for the appellant and learned A.G.A. for the State.

2. This appeal challenges the judgment and order dated 08.12.2009 passed by Additional District and  Sessions Judge, Court No.04, Bulandshahr  in Sessions Trial No. 179 of 2009 arising out of case crime no.982 of 2008 whereby the learned Additional Sessions Judge has convicted the accused-appellant under Sections 302  IPC and sentenced him to undergo life imprisonment with fine of Rs. 5000/-.

3. Brief facts as culled out from the record are that the complainant Mohar Singh (PW-1) submitted a written report Ex. Ka-1 at P.S. Kotwali Nagar, District Bulandshahr on 26.11.2008 at 11.30 p.m., stating therein that his daughter Smt. Santosh Devi was married to accused Vijai Kumar four years before the incident. The complainant gave dowry at the time of marriage according to his financial capacity but the accused persons were not happy with the dowry given at the time of marriage; that the accused persons namely, Vijai Kumar, Rakesh, Smt. Kailaso (mother-in-law), Rita (Nand), and Pappi used to beat the deceased for dowry; that the younger daughter Smt. Suman is also married to accused Rakesh (younger brother of accused Vijai Kumar); that the accused persons also used to beat Smt. Suman for dowry and expelled her from their house for not meeting the demand of the accused persons; that Smt. Suman has been living at her parental home for the last six months; that at 10.00 p.m. in the night a telephone was received from the accused that the condition of the deceased was very serious; the complainant along with Bhola, Dharam Pal, Juggal and Karn Pal came to the house of the accused and found that the deceased was lying burnt dead.

4. On this written complaint, a first information report Ex.Ka-3 was registered on 26.11.2008 at 11.30 p.m. under sections 304-B, 498-A IPC and ¾ D.P. Act against the accused persons Vijai Kumar, Rakesh, Pappi alias Lalit, Smt. Kailaso and Km. Rita.

5. The matter was handed over to the then C.O. Mr. Raj Pal Singh for investigation, who collected the necessary papers and made necessary entries in the case diary. The Investigating Officer reached the place of occurrence along with other police officials and recorded statement of the complainant, inspected the place of occurrence a the instance of the complainant and prepared a site map Ex.Ka-9. The Investigating Officer recovered the burnt ashes, plain earth from the place of occurrence and made a recovery memo Ex.Ka-10, pieces of broken glass and made recovery memo Ex.Ka-11, bedding etc. from the place of occurrence and made recovery memo Ex. Ka-12. The inquest proceedings of the deceased was conduced by City Magistrate, Mr. Gridh Chand Srivasava, who prepared a report Ex.Ka-5. The Investigating Officer recorded the statements of remaining witnesses and after finding a prima-facie case against the accused persons Vijai Kumar, Rakesh, Pappi alias Lalit Smt. Kailaso and Km. Rita, filed charge-sheets Ex. Ka-13 and 14 under sections 304-B, 498-A I PC and ¾ D.P. Act, on receipt whereof Chief Judicial Magistrate took cognizance and committed the accused persons to the Court of Sessions to face trial and from there it has been transferred to Additional District and Sessions Judge, Court No.4 for trial.

6. On being summoned, the accused-appellants pleaded not guilty and wanted to be tried.

7. Post-mortem of the dead body was performed by a team of doctors on 26.11.2008 at 3.50 p.m. who prepared a post-mortem report Ex.Ka-2. Dr. Pitam Singh (PW-10) is one of the member of the team of doctors. Dr. Pitam Singh (PW-10) has opined that the deceased was aged about 25 years, the rigor mortis was present in the whole body of the deceased and the death was 3 /4 day old and burns were found all over the body except on front of both knees, both legs, feet and back of chest. Body chord, no line of redness and vesication were found..

8. Following ante-mortem injuries were found on the body of the deceased:

On exploration it was found that ecchymosis was present on front of the neck. Both corners of hyoid bone were found fractured. No soot particles were present in trachea.

9. Doctor has stated that the absence of line of redness and vesication confirms that the deceased was burnt after she had died. Had the deceased been burnt alive line of redness and vesication must have been present. Doctor has also deposed that there were no soot particles in the trachea of the deceased. The doctor has opined that had the deceased been burnt alive, the soot particles must be present in the trachea. The doctors has also opined that the deceased had died due to asphyxia as a result of ante-mortem strangulation.

10. The prosecution has produced ten witnesses. PW-1, Mohar Singh, PW-2 Bhola, PW-3 Smt. Mohnia, PW-4 Dharam Pal, PW-5 Juggan, PW-6 Karn Pal, PW-7 Smt. Suman, PW-8 Karamvir Singh, PW-9 Smt. Savitri and PW-10 Dr. Pitam Singh.

11. The accused persons have denied the allegations in their statements under section 313 Cr.P.C. and have stated that the deceased had died of burn due to kersosene-lit open lamp being fallen on her.

6. The Trial started and the prosecution examined 10 witnesses who are as follows:

Mohar Singh

PW1

Bhola

PW2

Smt. Mohnia

PW3

Dharam Pal

PW4

Ram Juggan

PW5

Karnpal

PW6

Smt. Suman

PW7

Karamvir Singh

PW8

Smt. Savitri

PW9

Dr. Pitam Singh

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

Written complaint

Ex.Ka.-1

FIR

Ex.Ka.-3

Site map

Ex.Ka-.9

Recovery memo of burnt ashes

Ex.Ka.-10

Recovery of pieces of broken glass

Ex. Ka.-11

Recovery of bedding etc.

Ex.Ka.-12

Inquest report

Ex.Ka--5

Charge-sheets

Ex-Ka-13 and 14

Post-mortem report

Ex-Ka-2

8. At the end of the trial and after recording the statements 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 accused-appellant as mentioned above.

9. Learned counsel for the appellant has submitted that the appellant has been falsely implicated by the informant as there was no demand of additional dowry on the part of the appellant. Further submission of learned counsel for the appellant is that the appellant is in jail 08.12.2009 namely, from the date of judgment and his case has yet not considered for premature release. He further submits that the appellant was a young person when he was sent to jail for commission of the offence namely, death of his wife after four years of the marriage. He further submits that all the witnesses have turned hostile and the Investigating Officer has not been examined. It is submitted that the trial court has invoked the provision of section 106 of Evidence Act in convicting the accused.

10. While taking us through the judgment, when the Court was of this view that the death was a homicidal death looking to the medical evidence, learned counsel requested for showing leniency in the matter and seeks for lesser punishment as the accused-appellant is in jail for more than 13 years. Learned counsel for the appellant has relied on the decision of this Court in Criminal Appeal No. 2895 of 2015 (Manoj Sharma vs. State of U.P.) decided on 9.12.2022.

11. As against this, learned A.G.A. states that this is a gross case where the deceased was done to death by the accused-appellant. There were 12 injuries found on the body of the deceased. Hence, no leniency can be shown to the accused-appellant by this Court.

12. While considering the evidence of witnesses and the Postmortem report which states that the injuries on the body of the deceased would be the cause of death and that it was homicidal death, we concur with the finding of the Trial Court. However it is to be seen whether the quantum of sentence is too harsh and requires to be modified. In this regard, we have to analyse the theory of punishment prevailing in India.

13. 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."

14. '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.

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. 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.

18. 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.

19. After considering the entire facts and circumstances of the case and considering that the accused has served more than ten years of imprisonment, We alter the conviction of the accused from life imprisonment to 12 years fixed imprisonment under section 304 (Part-I) of IPC with reduced fine of Rs.2,000/-. The fine will be deposited within four weeks after his release from prison. In default of payment of fine, the accused would also serve one month imprisonment and that will be counted after 12 years of incarceration in jail. If default sentence is also over, same shall be considered by the jail authority and he need not deposit any fine as imposed above.

20. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith.

21. This Court is thankful to learned Advocates for ably assisting the Court.

Order Date : 28.2.2023

AU