Mohd. Azeem And Others vs State Of U.P.
2023 Latest Caselaw 13532 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 1566 of 2011
 

 
Appellant :- Mohd. Azeem And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Sushil Shukla
 
Counsel for Respondent :- Govt. Advocate, Mohd.Asif, N.I. Jafri
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Umesh Chandra Sharma,J.

(Per se Dr. K.J. Thaker, J)

1. Heard learned counsel for the appellants and learned A.G.A. for the state.

2. This appeal challenges the judgment and order dated 05.03.2011 passed by Addl. Sessions Judge/Special Judge (Anti-corruption), Bareilly in Session Trial No. 301 of 2001 (State v. Mohd. Azeem and others). All the appellants were charged for offences as defined under Section 304-B IPC and in addition and alternatively, the appellant Nos.3 & 4 were charged for commission of offence as defined in Section 302 IPC also. By the judgment & order dated 05.03.2011 passed by Additional Sessions Judge/Special Judge (Anti-corruption), Bareilly, the appellants have been convicted under Sections 304-B read with Section 34 IPC. The appellant nos.3 & 4 have also been convicted under Section 302 IPC but the punishment at the end except mentioning Section 302 IPC, the punishment of all appellants were convicted under Section 304B read with Section 34 of IPC. The appellant nos. 3 & 4 have been sentenced to life imprisonment whereas appellant nos. 2 & 3 have been sentenced to 10 years of rigorous imprisonment.

3. Brief facts as culled out from the record are that on 18.07.2000 at about 8:00 p.m. sister of the informant was burnt to death after pouring kerosene oil and by being set ablaze by the accused. The accused persons fled away with injured Shakira (deceased) from Bareilly and, lastly, when he came to the hospital, where his sister was lying in a burnt up condition, none of family members from the side of her in-laws were present. The informant finally raised the inference about the commission of the act perpetrated by accused persons in furtherance of their common object of doing away the deceased. The victim also told the informant that the appellants had burnt her by pouring kerosene oil.

4. The accused were summoned and charges were framed by learned Additional Sessions Judge on Mohmad Azeem and Mohmmad Idrris whereas all four accused were charged with commission of offence under Sections 302, 304-B IPC read with Section of I.P.C.. The accused-persons pleaded not guilty and wanted to be tried. The offences for which accused were charged were triable by the Court of Sessions, hence, the accused-appellants were committed to the Court of Sessions.

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

Jisan Khan

PW1

Dr. A.K. Agarwal

PW2

Mohd. Mobeen Khan

PW3

Dr. K.S. Gupta

PW4

Dr. S.K. Saxena

PW5

Raja Ram

PW6

Mohd. Siddique

PW7

Raghubanshi Lal

PW8

Bhupendra Singh

PW9

Dr. P.N. Pandey

PW10

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

First Information Report

Ex.Ka.13

Written Report

Ex.Ka.1

Recovery momo of Kerosene Oil Lamp and half burn Sofa

Ex.Ka.17

Note of Dr. A.K. Agarwal

Ex.Ka.2

Statement of Smt. Shakira (dying declaration)

Ex. Ka.4

Note of Dr. A.K. Agarwal

Ex.Ka.3

Post mortem report

Ex. Ka.5

Site plan with index

Ex. Ka.16

7. Should a husband and brother-in-law always be held to have been guilty of demanding dowry and the punished even though there may not be any allegation leveled against them by the deceased wife in her dying declaration where husband was not present when incident occurred and took her to hospital to save her. The brother in-law's name nowhere figured in the dying declaration. A completely concocted story was made out by family members of deceased. This is a glaring case where there is not only miscarriage of justice, but there is overzeal of judge to see that the accused are punished. The learned Judge has devoted more than 80 pages when the matter could have been disposed of, in brevity on the basis of dying declaration of the injured who died after a period of 10 days, wherein a dying declaration, there was no mention that the husband or brother in had set her ablaze. In dying declaration it is mentioned that it was the husband, who had after the incident occurred rushed home from his shop between the women of the house and had taken her to the hospital and got her treated. The brother-in-law was unfortunately not even named in the dying declaration. The learned Judge had relied on the dying declaration even reproducing the same in the judgment and we are convinced that the learned Judge in his overzeal to record conviction has mislead himself into non-observing the tenants and contours of criminal jurisprudence for appreciating evidence when it was grossly pointed out before the learned Judge that the oral evidence by the brother of the deceased, who is involved in the several criminal crimes which has been brought on record. During his cross examination, who has disturbed married life, his testimony which is dimetrically opposite to dying declaration could have been accepted by the learned Judge. The dying declaration nowhere mentions that any amount was demanded either by the ladies of the family or the husband. The omnibus allegations by person whose credence is not worthy of credence has been elaborately discussed by the court below while holding that Section 304-B I.P.C is made out against all the accused.

8. The learned Additional Sessions Judge has convicted the accused-appellants as above.

9. Learned counsel for the appellants has relied on the decisions of the Division Bench of this Court passed in Criminal Appeal No. 1689 of 22017 (Pushpa Devi v. State of U.P.) decided on 05.07.2022 and in Criminal Appeal No.2218 of 2018 (Smt. Kiran and another v. State of U.P.) decided on 29.11.2022 and has contended that there is faulty charge and the charge could not have been re-framed after the examination of witnesses of prosecution side, who did not support the prosecution. This is the contention of the learned counsel for the appellant, and in the alternative, it is submitted that this is a case which does not go beyond Section 304 Part I or Part II of IPC. There was no intention of the accused to do away with the deceased. It is submitted that the death was due to septicemia after 10 days of incident as per the testimony of P.W.1 also that deceased died after 10 days of incident.

10. Learned counsel for the appellants has submitted that the deceased died due to burn injuries which she sustained accidentally while cooking food. While going through the dying declaration and the postmortem report, we cannot accept the submission of counsel for the accused-appellants that it was an accidental death.

11. As against this, learned A.G.A. for the State has contended that the dying declaration is believable and, therefore, the learned Judge has not committed any error or there is no error which calls for interference by this Court in this appeal. Moreover, 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 Postmortem report which states that the burn injuries on the body of the deceased developed into septecimia and that was the cause of death and that it was homicidal death, we concur with the finding of the Court below that it was homicidal death.

13. The dying declaration mentions, the presence of the two women which developed which caused the death occurred due to septicaemia death and, therefore, homicidal death is established.

14. This takes us to the fact whether we can convict the two brothers, namely, Mohd. Azeem and Mohd. Idris. The accused even on basis of dying declaration presence is not established will have to be acquitted as there is no demand of dowry immediately prior to the commission of the incident. The dying declaration categorically states that the incident occurred on the spur of the moment when the deceased was being abused by mother-in-law and sister-in-law (jethani). The allegations required conviction under Section 304-B I.P.C. have been reiterated Girish Singh v. State of Uttarakhand, (2020) 18 SCC 423. The essential ingredients have again being reiterated in Satbir Singh v. State of Haryana, (2021) 6 SCC 1.

15. The prosecution, defence and guidelines prescribed in Satbir Singh (supra) have to be seen in our case. Section 133-B evidence could not have been invoked by learned Judge and pand under Section 106 Evidence Act could not have been invoked.

16. The learned Judge accepted the dying declaration which is silent about any overt act on part of the any of the accused. The accused cannot be convicted for Section 304-B I.P.C. on the oral testimony of the witnesses whose presence is not established. The deceased had remained in treatment for about 10 days, the dying declaration has been relied by the learned Judge by relying on catena of decisions.

17. Hence we cannot concur with the learned Judge as far as the dowry death is concerned, qua any of the accused. There is no evidence to prove that deceased was subjected by anyone to cruelty pursuant to demand of dowry ingredients of Section 304-B are absent. The presumption raised by learned Judge falls to the ground on the basis of the dying declaration, we are fortified in our view by the judgment of Girish Singh (supra)

18. We are of the considered opinion that the learned Judge has not committed any error in relying on the dying declaration. In the light of the decision in Govindappa and others Vs. State of Karnataka, (2010) 6 SCC 533, there is no reason for us not to accept the dying declaration. The evidentiary value of dying declaration under Section 32 of Evidence Act, 1872 is proved. The contention of the counsel that it was an accidental death arising out of accidental burning during cooking in the house has not been accepted by trial court and we have concurred with the same. We are of the view that it was a homicidal death and not accidental death.

19. On 18.07.2000, the brother of the deceased who is shown as PW1. In this case, on whose testimony the learned Judge has heavily relied on the ocular version is the contrary to the evidence on record. He has categorically mentioned that he went to the hospital at Bareilly and his sister was admitted in Hospital and the nurse was looking after her. The oral dying as declaration narred by the brother is absolutely doubtful and is contrary to the written proved dying declaration of the deceased. Could the learned Judge have relied on this oral dying declaration which is admittedly absent in written dying declaration of the deceased. Even if the said evidence is accepted, it cannot be said that brother-in-law or the husband who were instrumental in causing the incident is accepted by this witness his cross examination. He has accepted that he has strained matrimonial life he was an accused fin case involving smack which a contraband. We are not concerned with these facts but this shows the character of the witness who even does not know place where his sister was being treated.

20. This takes us to the next question whether it was a perpetrated murder with common object of doing away with deceased or would it fall within any of the exceptions to Section 300 of IPC?

21. Section 34 of Indian Penal Code reads as follows:

"Section 34 in The Indian Penal Code. [34. Acts done by several persons in furtherance of common intention. --When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]"

22. Can it be said that there was common objecting doing away with the deceased. The husband and the brother-in-law were not present at the place of the said incident which leaves us with act of two ladies.

23. It cannot be said that there was any common object of doing away with the deceased. Therefore, the conviction with the aid of Section 34 is set aside. The principles to invoke Section 34 and Section 304-B of IPC have not been made out as per Judgment of Supreme Court in Veerla Satyanarayana v. State of Andhra Pradesh, (2009) 16 Supreme Court Cases 316.

24. It would be relevant to refer to 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."

25. 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.

26. It is an admitted position of fact that the death was due to septicemia and had occurred after 10 days of incident. The accused-appellants are husband, brother-in-law (jeth) and sister-in-law (jethani) of the deceased. The accused-appellants are in jail for more than 10 years and requesting for lesser sentence. Hence, on overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principles 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 & Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300, we come to the definite conclusion that the death was not premeditated. The precedents discussed by us would permit us to uphold our finding which we conclusively hold that the offence is not punishable under Section 302 of I.P.C. but is culpable homicide not amounting to murder, punishable U/s 304 (Part II) of I.P.C. We are also fortified in our view by the decisions relied upon by learned Counsel for the appellants in Bengai Mandal alias Begai Mandal vs. State of Biha, Chirra Shivraj vs. State of Andhra Pradesh, Smt. Rama Devi alias Ramakanti vs. State of U.P. &b Smt. Kanti and Another vs. State of U.P. (Supra).

27. It is now to be seen as to what would be the quantum of sentence for the two ladies. In this regard, we have to analyse the theory of punishment prevailing in India.

28. 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."

29. '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.

30. 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.

31. 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.

32. 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.

33. Therefore, accused-persons are punished under Section 304 (Part II) of IPC. As far as the main culprits namely Smt. Azzo Bano & Ajaib Bano @ Jabbo and Smt. Razia Begum, are concerned, they have undergone 12 years of incarceration, hence, we hold that on completing 10 years, they would be freed. Fine not paid be adjusted towards default sentence which is 3 months starting after 10th year of incarceration. As far as the other two accused namely Mohd Azeem and Mohd Idris are concerned, their role in the above incident is not proved. The husband took deceased to Hospital. The brother in-law is not even named in dying declaration, they are acquitted. They need not surrender if released on bail pursuant to order not warranted in any other offence.

34. 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.

35. The accused are ordered to be released on bail on 11.4.2023, they need not surrender, but if yet not released, they be released forthwith.

(Umesh Chandra Sharma, J.)       (Dr. Kaushal Jayendra Thaker, J.)
 

 
Order Date :- 01.05.2023
 
A.N. Mishra