Allahabad High Court
Iliyas vs State Of U.P. on 16 March, 2023
Bench: Kaushal Jayendra Thaker, Arun Kumar Deshwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 44
Case :- CRIMINAL APPEAL No. - 2942 of 2012
Appellant :- Iliyas
Respondent :- State of U.P.
Counsel for Appellant :- Ravindra Prakash Srivasta,Gaurav Kumar Shukla,Shesh Narain Mishra,Surendra Kumar Tiwari
Counsel for Respondent :- Govt. Advocate
With
Case :- CRIMINAL APPEAL No. - 7154 of 2011
Appellant :- Akram Ali And Another
Respondent :- State of U.P.
Counsel for Appellant :- Ravindra Prakash Srivasta,Surendra Kumar Tiwari
Counsel for Respondent :- Govt. Advocate
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Arun Kumar Singh Deshwal,J.
(Oral Judgment)
1. Heard Sri Prashant Kumar, learned counsel for the appellant in Criminal Appeal No. 2942 of 2012 and Sri Surendra Kumar Tiwari, learned counsel for the appellants in Criminal Appeal No. 7154 of 2011 and Sri Patanjali Mishra, learned A.G.A. for the State.
2. Present criminal appeals challenges judgment and order dated 19.11.2011 passed by the Additional District and Sessions Judge, Court No.8, Basti in Sessions Trial No. 24 of 2010 (State vs. Akram Ali and another) whereby the learned Additional Sessions Judge has convicted the accused-appellants for commission of offence under Section 304B of Indian Penal Code, 1860 (for short 'IPC') and sentenced them to undergo imprisonment for life. For commission of offence under Section 498A I.P.C they are sentenced to undergo rigorous imprisonment of two years six months with fine of Rs. 5000/- each and in case of default in payment of fine further to undergo nine months additional imprisonment. For commission of offence under Section ¾ D.P. Act the court has sentenced accused to undergo rigorous imprisonment of six months each with fine of Rs.1000/- each and in case of default in payment of fine, further to undergo six months' additional imprisonment.
3. Brief facts as culled out from the record are that the accused-appellant Iliyas was married to the deceased two years prior to the incident, deceased was tortured and harassed by the in-laws for non fulfillment of demand of dowry one splendor motorcycle or Rs. 50,000/- cash. On 28.02.2009 at about 1:00 p.m father of deceased got information that accused-appellants Illiyas-husband of the deceased, Akram Ali-father-in-law of the deceased, mother-in-law of the deceased, Jabbar Ali, Mohd. Tayyab had done to death his daughter and set her ablaze.
4. On the basis of F.I.R., the investigation started and charge-sheet was laid. The learned Magistrate summoned the accused-appellants 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 alternate under Section 302 of I.P.C.
5. On being summoned, the accused pleaded not guilty and wanted to be tried.
6. The Trial started and the prosecution examined 12 witnesses who are as follows:
Deposition of Sayee Mohd.
PW1
" " Habibur-Rahman
PW2
" " Sahira Khatoon
PW3
" " Saiyed Ali
PW4
" " Mustaq Ali
PW5
" " Tahira Khatoon
PW6
" " Dr. Dileep Kumar Gupta
PW7
" " Dr. Ram Kewal
PW8
" " Hauman Singh
PW9
" " Naresh Chandra
PW10
" " Hawaldar Yadav
PW11
" " Nutan Kumar Bharti
PW12
7. In support of ocular version following documents were filed and proved:
F.I.R
Ex.Ka.20
Written Report
Ex.Ka.1
Postmortem Report
Ex.Ka.3
Panchayatnama
Ex.Ka.2
Recovery memo of burnt cloth
Ex.Ka 4
Recovery memo of cloth
Ex.Ka.5
Recovery memo of earth
Ex.Ka.6
Site Plan with Index
Ex.Ka.11
Site Plan with Index
Ex.Ka.12
Site Plan with Index
Ex.Ka.13
Charge-Sheet (Mool)
Ex.Ka.17
Charge-Sheet (Mool)
Ex.Ka.18
Charge-Sheet (Mool)
Ex.Ka.19
8. At the end of the trial, after recording the statements of the accused-appellants under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused-appellants as mentioned above.
9. It is submitted by Sri. S.K. Tiwari, learned counsel for the appellant that the accused have not been proved to have demanded any dowry and death was not due to demand of dowry but as the deceased herself was not happy with the life in the village and wanted to stay with her husband in Bombay, she set herself ablaze. It is further submitted that father-in-law and mother-in-law were staying separately from the husband and wife. The Marriage took place and they were living happily but due to poverty the accused-Iliyas who was working in Bombay could not take his wife there and there was altercation according to D.W.-1 who never went before the police till he was deposed before the court as done in hindi movies, he sprang into action only on 13.09.2011 when he was posed as defence witness, he never came before the police authorities to narrate his version, that act is not done by the accused, may that as it may be. Further it is submitted that conviction is based on presumption and is bad as the appellant has no intention to do away with the deceased. Learned counsel for the appellant has relied on the following authoritative judgments of the Apex Court:-
(i) Criminal Appeal No. 2038 of 2022 arising out of SLP (Crl.) No. 6537/2019 decided on 23.11.2022;
(ii) Criminal Appeal No. 530 of 2020 arising out of SLP (Crl.) No. 3842 of 2020 decided on 20.08.2020;
(iii) Criminal Appeal No. 1285 of 2018 arising out of SLP (Crl.) No. 8948/2018 decided on 12.10.2018.
to contend that this is case of clear acquittal/in the alternative if at all offence is made out it is under Section 304 (1) of I.P.C.
10. Learned A.G.A. has submitted that the evidences of P.W-7 and P.W-8 clinches the issue, the death was due to setting ablaze or rather due to the burn injuries which are 100%. It is not the case of the accused that they were not present at the place of the offence and has conveyed to the Court that the trial court has not committed any error in convicting the accused. It is further submitted that in none of the defences it is shown that the accused were not present at the place of offence or they tried to save the deceased. Sri Patanjali Mishra, learned A.G.A further submitted that postmortem report goes to show that it was not a suicidal death but was first beaten and thereafter she was set ablaze. There was blood coming out of the nose. Postmortem report goes to reveal that there were:-
(i) superficial to deep burn all over the body except both sole (about 100%);
(ii) line of redness present at places;
(iii) blood coming out of both nostrils;
(iv) singeing of hair is there;
(v) The entire mass of the upper part of the right thigh is exposed, the femur bone is visible.
11. On hearing the arguments advanced by the learned counsel for the parties, two moot questions are to be addressed by us namely whether the death was homicidal death and whether the offence would be punishable under Section 302 or 304 Part I or Part II or Section 304 B of Indian Penal Code. Before sifting the evidence, it is relevant here to discuss the law pertaining to culpable homicide amounting to murder, culpable homicide not amounting to murder and the dowry death. Section 299 of the Indian Penal Code, which reads 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."
12. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts loose sight of the true scope and meaning of the terms used by the legislature in these sections, and allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be is 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
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.
13. It is submitted by the learned Advocates for the accused-appellants that the case of the accused-appellant-Iliyas who was very young at the time of incident and has two aged parents would fall within the purview of Section 304(1) I.P.C and the punishment of life imprisonment is not commensurate with the offence and therefore this Court to consider the facts as there was no premeditation, the deceased died due to her wish of staying in a metropolitan city like Bombay which has resulted in her committing suicide. From the upshot of the facts, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention that their act would cause bodily harm to the deceased but did not want to do away with the deceased. It is submitted by learned counsel that 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.
14. This takes us to the alternative submission of learned counsel for the appellants that the quantum of sentence is too harsh and requires to be modified even if offence is believed to be committed as per Section 304B of I.P.C. and this Court concurs with the finding of Additional Sessions Judge.
15. In this regard, we have to analyse the theory of punishment prevailing in India.
16. 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 antesocial 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 [11] rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'interrorem' 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."
17. '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.
18. 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 held 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.
19. 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 these accused person are not 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 looking to old age of two accused (father-in-law and mother-in-law).
20. 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.
21. Having given our anxious thought and going through medical evidence we are very clear that the deceased died due to what is known as homicidal death not suicide and punishable as per Section 304 B of I.P.C, it was the duty of the accused to show on preponderance of evidence that the act was not committed by them within the seven years of the marriage.
22. The facts goes to show that the culpable homicide was suicidal death, we concur with the learned Judge and invoke Section 106 of the Evidence Act for coming to the conclusion that the death was within 7 years of marriage.
23. The accused Illiyas has been incarcerated for 15 years of incarceration is enough punishment for a young person who was serving in Bombay, the parents were living separately from the children, however, the overt act has been proved by leading evidence and therefore also this Court concurs with the learned Judge, however, we will go by the theories of punishment. We are convinced that death occurred within the meaning of Section 304B of I.P.C. This takes us to the sentencing theories prevailing in India. The husband has been incarcerated for 15 years that period would be enough punishment, looking to the age of Akram Ali and the other accused would now be of 80 years and 70 years respectively, hence looking to their advanced age period undergone would be sufficient for them as punishment.
24. Both these appeals are partly allowed. The judgment and order by the learned Sessions Judge shall stand modified to the aforesaid extent. Record and proceedings be sent back to the Court below forthwith.
Order Date :- 16.03.2023
PS
