Hakim And Others vs State Of U.P.
2023 Latest Caselaw 7726 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 235 of 1991
 
Appellant :- Hakim And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Mohd. Arshad Khan,Amar Jeet Upadhyay,Mohammad Arshad Khan
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Arun Kumar Singh Deshwal,J.

Oral Judgement

1. Heard learned amicus curiae, Sri Sukhbir Singh, for the sole surviving accused-Aziz.

2. This appeal challenges the judgment and order dated 14.02.1991 passed by Ist Additional Sessions Judge Meerut, in Sessions Trial No. 488 of 1988 whereby the learned Additional Sessions Judge has convicted accused-appellant under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life and for offence under Section-323 IPC, rigorous imprisonment for one year. Both the sentences were directed to run concurrently.

3. The brief facts of the prosecution story are that on 30.09.1987 at about 8 pm, children of complainant Meharban and accused Munna had a quarrel. After some time Munna and his two sons Hakeem and Aziz reached to the house of the complainant and they were told by complainant and his father Alla Mehar to keep their children under control. Upon this, Munna and his sons threatened consequences of children's quarrel. All the accused with intention to commit murder started beating complainant and his father Alla Mehar with Lathi and Ballam. Hakeem was armed with spear while other accused were armed with Lathi. Alla Mehar got a blow of spear. He was taken to Police Station. It was also alleged that occurrence was seen by Iqbal and Mohd. Haneef. A written report was lodged at Police Station-Sardhana. Case was registered against all the accused persons. The investigation culminated into lodging of charge-sheet was submitted against the 3 accused. The case was committed to the court of Sessions.

4. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried. The trial started and the prosecution examined 9 witnesses who are as follows:

Iqbal

PW1

Meharban

PW2

Sirajuddin

PW3

Dr. Sharad Chand Nigam

PW4

Dr. Fariduddin

PW5

Dr. M.L. Agarwal

PW6

Yadram

PW7

Vijay Singh

PW8

Surendra Pal Singh

PW9

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

F.I.R.

Ex.Ka.6

Written Report

Ex.Ka.1

Application

Ex.Ka.2

Injury Report

Ex.Ka.3 and Ex.Ka.5

P.M. Report

Ex. Ka.4

Panchayatnama

Ex.Ka.11

Charge Sheet Mool

Ex.Ka.18

Site Plan With Index

Ex.Ka.17

6. At the end of the trial, 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, Aziz & others as mentioned above.

7. This is an appeal of the year 1991. Out of the three accused, two have passed away i.e. Hakim and Munna. The main assailant who was armed with spear has also passed away. The appeal is taken up for hearing after we granted bail to accused Aziz. This Court directed to release the accused-Aziz on the said date. It is reported that he is still not released despite the orders of this Court.

8. It is submitted by learned counsel for the appellant that the learned Judge has held that Section 34 IPC is made out. It is submitted that, even from the FIR, it cannot be said that the accused, three in number, had any intention or rather common intention to do away with the deceased. The accused did not have what is known as any deadly weapon. It cannot be said that Section 34 IPC is made out.

9. It is further submitted that the participation of the accused with a common intention is not proved. It cannot be said that there was a pre-medidated plan and were acting in pursuance of the said plan. All that happened was due to quarrel between children of two family members of the incident which occurred at the spur of the moment. There was no existing prior intentions.

10. Per contra, Sri Patanjali Mishra, learned AGA for the State, submits that this was a pre-planned attack by going to the house of the deceased, and therefore, the finding of fact may not be interfered by this Court.

11. While going through the evidence, it is clear that the act occurred on the spur of the moment. The FIR is dated 30.09.1987 which also goes to show that the incident occurred on the spur of the moment. While going through the record, it is very clear that there was only one single injury which was caused by one of the accused. It cannot be said that accused had any premeditated intention or object of murdering the deceased as they had gone to the residence of the deceased only to complain about the quarrel which had taken place between children. The incident occurred on the spur of the moment, hence, Section 34 IPC cant be said to be proved. The conviction with aid of Section 34 IPC cannot be concurred by this Court.

12. It would be relevant to refer to Section 299 IPC, 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."

13. 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 Sections 299 and 300 of IPC. 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.

14. The evidence also goes to show that firstly the accused were charged with commission of offence under Sections-307 & 323 IPC. The offence, if any, committed by the accused-Aziz, would fall within Sections-304(II) & 326 IPC. The death of the deceased as held above was not a premeditated death and that the act of the accused would fall within Section-304(II) IPC for the following reasons:

The injuries as seen in the post mortem report goes to show that the deceased had injuries on abdomen. He died after few days of the injuries being caused. The factum data, the evidence led and fact that the deceased died after being operated, therefore, it is held that it was not a premeditated act. There were quarrel between each other and they were trying to save each other. They were physically fighting. All the weapons used were also not deadly weapons. In the circumstances, the act of the accused will be falling within the purview of Section-304(II) IPC, the conviction under Section-323 IPC and the default sentence has already been undergone, we do not dealt into the same. The court itself has not awarded any default sentence.

15. This takes this Court to the quantum of sentence. 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 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."

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 to 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.

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 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.

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. In view of the above, sentence undergone by accused-appellant, Aziz, would be sufficient as the incident is of the year 1988 and appeal is of the year 1991. The accused-appellant, Aziz, in fact be set free forthwith if he is not wanted in any other case.

22. In view of the above, the appeal is partly allowed. Judgment and order dated 14.02.1991 passed by the learned Additional Sessions Judge, Meerut shall stand modified to the aforesaid extent. Record be sent back to the Court below forthwith.

23. A sum of Rs.15,000/- be paid to Sri Sukhbir Singh, learned amicus curiae appearing in this matter for Aziz by the High Court Legal Services Committee.

Order Date :- 17.3.2023

S.Chaurasia