Hasmuddin vs State Of U.P.
2023 Latest Caselaw 7425 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 

 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 1071 of 2010
 
Appellant :- Hasmuddin
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Arvind Agrawal, Dileep Kumar,M.A. Siddiqui
 
Counsel for Respondent :- Govt. Advocate,Rahul Chaudhary,S.P.S.Rathi
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Arun Kumar Singh Deshwal,J.

1. Heard Sri M.A. Siddiqui, learned counsel for the appellant and learned A.G.A. for the State.

2. Present criminal appeal challenges judgment and order dated 05.02.2010 passed by the Additional Sessions Judge, Fast Track Court No.4, District Firozabad in Sessions Trial No.424 of 2006 (State vs Hasmuddin) in connection with Case Crime No. 26 of 2006, Police Station- Ramgarh, District Firozabad, whereby the learned Additional Sessions Judge has convicted the accused-appellant, Hasmuddin for commission of offence under Section 304B of Indian Penal Code, 1860 (for short 'IPC') and sentenced him to undergo imprisonment for life, under Section 498-A to undergo two years rigorous imprisonment with a fine of Rs.500/- and under Section 3/ 4 Dowry Prohibition Act to undergo rigorous imprisonment for one year with fine of Rs.500/- in default of payment of fine further one year's additional imprisonment. All the sentences shall run concurrently.

3. Brief facts as culled out from the record are that the accused-appellant was married to the deceased three and half month prior to the incident with Muslim rites and rituals and also gave one motorcycle and some house hold articles to the appellant as dowry. The In-laws were demanding rupees one lakh for bangles business. The deceased was done to death by setting her ablazed by pouring kerosene oil by her-in-laws in connection with non-fulfillment of rupees one lakh of demand of dowry. She was admitted in the hospital and her dying declaration was recorded in which she has specifically made allegation against the In-laws. During the treatment informant's daughter succumbed to her injuries.

4. On the basis of F.I.R., the investigation started and charge-sheet was laid. The learned Magistrate summoned the accused and committed the case to the Sessions Court as the offences alleged to have been committed were triable by the Sessions Court. The learned Sessions Judge framed charges under Section 304B, 498A IPC and 3/4 Dowry Prohibition Act.

5. On being summoned, the accused pleaded not guilty and wanted to be tried.

6. The Trial started and the prosecution examined 14 witnesses who are as follows:

Mohammad Saddiq

PW1

Wasim

PW2

Nasruddin

PW3

Dr. Sanjay Kumar Gupta

PW4

Dr. R.K. Garg

PW5

Brijpal Singh

PW6

Sub- Inspector, Jaidev Singh

PW7

Constable Gajraj Singh

PW8

Dr. N.P. Pandey

PW9

Sishya Pal Singh

PW10

Kripa Shankar Dubey

PW11

R.V. Singh

PW12

Subhas Chand

PW13

Dr. Vinay Kumar

PW14

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

F.I.R.

Ex.Ka.10

Written Report

Ex.Ka.1

Dying Declaration

Ex. Ka.5

Recovery memo of clothes of Body

Ex.Ka.13

Injury Report

Ex. Ka. 4

Postmortem Report

Ex.Ka.3

Charge-sheet

Ex. Ka. 11

Site Plan

Ex.Ka.12

Second declaration

Ex. Ka 15

8. 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.

9. It is an admitted position of fact that death occurred due to setting ablaze of the deceased. There are two dying declarations however while going through the record, it is clear that the appellant is the author of the incident and therefore after arguing the matter at length, learned counsel for the appellant requested this Court to consider the sentence of the accused as he has been convicted under Section 304B IPC for life and septicaemial death is occurred after two and half month of medical treatment of the deceased.

10. The first dying declaration dated 22.02.2006 implicates the accused and there is no doubt in our mind that the said dying declaration fulfil all the requirements as enunciated by the Hon'ble Apex Court in the case of Govindappa and others vs. State of Karnataka, (2010) 6 SCC 533, and rightly acted upon by the learned Additional Sessions Judge. However, the second dying declaration even if it is brushed aside, the name of the husband is resurfaced also and post mortem report will permit us to concur with the learned Additional Sessions Judge that the death was homicidal death.

11. Per contra, learned A.G.A. for the State submits that looking to the gruesomeness of the offence and the evidence of prosecution witnesses, this Court should not show any leniency in the matter. It is further submitted by learned A.G.A. that ingredients of Section 304B of IPC are rightly held to be made out by the learned Sessions Judge who has applied the law to the facts in case.

12. We have considered the evidence of witnesses and the Post mortem 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 Court below. However, it is to be seen whether the sentence awarded is too harsh. 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. The punishment under Section 498A IPC and 3/4 D.P. Act are concerned the accused is in jail for more than 12 years and hence the said punishment and default punishment have also completed, therefore, we need not observe to them. As far as Section 304B IPC is concerned, the punishment would be substituted from life imprisonment to imprisonment already undergone.

19. Learned Additional Sessions Judge has not imposed any fine or any default sentence under Section 304 B IPC. We also do not propose the same. We concur with it and substitute the sentence that already undergone. The accused-appellant be set free forthwith, if not wanted in any other case.

20. In view of the above, the appeal is partly allowed. Judgment and order passed by the learned Sessions Judge shall stand modified to the aforesaid extent. Record be sent back to the Trial Court forthwith.

Order Date :- 15.3.2023

A.Kr.