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2016 DIGILAW 3884 (ALL)

Jagan v. State of U. P.

2016-12-02

KRISHNA MURARI, PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT : P.K. Srivastava, J. 1. This appeal has been preferred against the judgment dated 10.3.1983 passed by 7th Additional Sessions Judge, Meerut in S.T. No. 422/1978 (State Vs. Jagan) Section 304 IPC, P.S. Lalkurti, Meerut. By this judgment, accused Jagan had been convicted for the charge under section 304 IPC and was sentenced to undergo imprisonment for life. 2. The prosecution case in brief is that on 29.3.1977, the deceased Kamla was at her house situated near Cooperative Bank, Kacheri Road, P.S. Lalkurti, Meerut. At that time, she was running a small hotel (Dhaba) in ground floor of her house and residing on first floor of the same building. Her husband Sohan Lal was running another Dhaba in Lalkurti. Accused Jagan had illicit relation with Kamla. On 29.3.1977 at about 1:30 P.M. Kamla was in her residential room at first floor of the building, accused Jagan came there with a bottle of liquor and attempted to outrage her modesty by tying to having sexual intercourse with her. She protested because her children were present in house at that time. Annoyed, Jagan used force for having sex, but when she resisted, then accused attacked her with knife and inflicted injuries. In this incident, Jagan also got injured by his own knife and fell down. The occurrence was witnessed by Mukash son of Kamla and also by her servant Suresh, who had taken Kamla to P.L. Sharma Hospital, Meerut and admitted her there. Thereafter husband of Kamla, namely Sohan Lal, was informed, who reached the hospital, and later on lodged FIR (Ex. Ka-1)in police station on same day at 6:10 P.M. Kamla was medically examined at hospital at 2:00 P.M. On same day accused Jagan was also medically examined in the hospital at 2:30 P.M., when he was brought there by police constable. During treatment, Kamla succumbed to injuries inflicted on her by accused Jagan and died on 21.4.1977. The case was originally registered under section 324 IPC by police, but after the death of Kamla, it was converted under section 304 IPC, for which charge-sheet was submitted in the court. 3. After framing of the charges, prosecution examined six witnesses, out of which PW-4 Dr. J.K. Kansal and PW-6 S.I. Jagbir Singh were formal witnesses. PW-4 Dr. The case was originally registered under section 324 IPC by police, but after the death of Kamla, it was converted under section 304 IPC, for which charge-sheet was submitted in the court. 3. After framing of the charges, prosecution examined six witnesses, out of which PW-4 Dr. J.K. Kansal and PW-6 S.I. Jagbir Singh were formal witnesses. PW-4 Dr. J.K. Kansal had medically examined victim Kamla on 29.3.1977 at 2:00 P.M. and found incised wound 5 cm x 3 cm on front of her side of chest extended up to the upper part of the abdomen, and bleeding was present at the time of examination. Depth of the wound was not probed by him. He also found another lacerated would on right elbow of victim with bleeding. According to him, incised wound was caused by sharp edged weapon and lacerated wound was caused by blunt object. According to him, injuries were fresh at the time of medical examination and first injury could have been caused at 1:30 P.M. on 29.3.1977 by knife. He proved injury report (Ex. Ka-4) prepared by him. Other witnesses PW-5 and PW-6 were also formal witnesses relating to investigation and lodging of FIR, who also proved documents prepared during lodging of case and during investigation. 4. Only three witnesses of fact were examined by prosecution side, out of which PW-1 Sohan Lal (informant) was not eye witness. He stated about incident on the basis of information received from his servant and his son Mukesh and had lodged FIR. He stated that Kamla died after 22 days of incident due to injuries. 5. PW-2 Mukesh is son of deceased Kamla, aged about 13 years at the time of evidence in the court. This child witness supported the prosecution version stating that in the noon of alleged day of incident, Jagan came in the room of Kamla with bottle of liquor, and asked her to take some liquor. When she declined to give him company, Jagan consumed the liquor, caught hold of Kamla, threw her on the bed, and when she tried to resist and pushed Jagan back, Jagan took out the knife and gave its blow to Kamla. The PW-2 also stated that when his mother had tried to release herself and pushed Jagan, then Jagan also received knife injuries. During this incident, survent Suresh also came there from ground floor and witnessed the occurrence. The PW-2 also stated that when his mother had tried to release herself and pushed Jagan, then Jagan also received knife injuries. During this incident, survent Suresh also came there from ground floor and witnessed the occurrence. After this Suresh took Kamla to hospital. 6. PW-3 Suresh is also eye witness of the incident, who supported the prosecution version and stated that on the day of incident, he was employed at the hotel/Dhaba of Kamla. On that day, at about 1:30 p.m. accused went to room of Kamla. At that time, he was taking bath on ground floor. When he heard alarm from first floor, he rushed to the room on the first floor and found that Kamla was lying unconscious soaked with blood; Kamla had received injuries on the chest and Jagan was also lying on the floor. Mukesh and Kailash sons of Kamla were standing by her side and were weeping. Then they took Kamla to hospital. 7. No evidence was adduced by defence side in spite of proper opportunity being afforded for the same. Then after appreciating arguments of both the sides, trial court passed the judgment dated 10.3.1983, by which accused Jagan was found guilty and was convicted for the charge under section 304 IPC. After affording opportunity of hearing on point of sentence, trial court had passed sentence of life imprisonment to accused Jagan. Aggrieved by this judgment, present appeal has been preferred by said accused. 8. Learned counsel for the appellant contended that admittedly Kamla and accused Jagan had illicit relationship, and Jagan was not trespasser in the house; therefore there was no occasion for him to inflict fatal injuries on her. His submission is that it appears that any person had found them in compromising position and inflicted injuries on both, due to which Kamla died after about one month of the incident, but the appellant Jagan survived, which could have been fatal in ordinary course. His submission is that these facts were not considered by trial court; therefore the impugned judgment is erroneous and appeal should be allowed. 9. His submission is that these facts were not considered by trial court; therefore the impugned judgment is erroneous and appeal should be allowed. 9. Alternative argument of learned counsel for appellant is that if prosecution case on facts is taken to be true in its entirety, even then, it is proved that appellant had no intention to cause any grievous injury or hurt to Kamla before the incident and accidentally Kamla and appellant both got injured; therefore, in any case, the sentence of life imprisonment is excessive and inappropriate even if the injuries of victim and appellant were found inflicted by the appellant. 10. Learned AGA refuted these contentions and submitted that it has been proved by evidence that at the time of incident in question apart from victim and appellant, only two minor children of Kamla were present in the house and other witness Suresh reached there after the incident. In these circumstances, no one except the appellant was responsible for causing injuries on body of Kamla, due to which she died. Therefore, his conviction and punishment is not inappropriate. 11. From perusal of record and evidence, it is clear that injuries were found on chest of Kamla and on abdomen of appellant Jagan. Both the injuries were on vital parts, which could lead to death. Since it has been proved that no major person was present on spot at the time of incident and minor Mukesh, who was 13 years old at the time of his deposition in court and much younger at the time of incident, was not in a position to inflict to such injuries, then provisions of section 106 of Evidence Act comes into play and it is burden of proof stands shifted on accused-appellant to prove that he had not inflicted those injuries on the body of Kamla. Appellant had failed to discharge this burden of proof. On the other hand, evidence of eye witness PW-2 Mukesh and evidence of PW-3 Suresh, who had reached on spot immediately after the incident, was rightly relied by trial court to reach to conclusion that it was the appellant Jagan, who had inflicted injuries on the body of Kamla. The injuries on body of Kamla were on vital part, which was proved, by evidence, to be the cause of death of said victim. The injuries on body of Kamla were on vital part, which was proved, by evidence, to be the cause of death of said victim. Although the victim died after 22 days of the incident of 29.3.1977, but it has been proved that injuries inflicted on her body by appellant had resulted in her death. Therefore, there appears no illegality in finding reached by trial court when it had found the appellant Jagan guilty for the offence under section 304 IPC. 12. From perusal of impugned judgment, it is found that although judgment of conviction for the charge under section 304 IPC was rightly passed by trial court, but proper opportunity of hearing on point of sentence was not given and appropriate order on this point was not passed. Learned Sessions Judge, after passing judgment of conviction had simply mentioned in his judgment that “Accused Jagan is present. He was heard on point of sentence, which is to be awarded to him. The accused was given opportunity. He has represented that he has nothing to say on the point of punishment”. After it, trial court had passed sentence of life imprisonment on accused appellant Jagan without assigning reason as to why maximum punishment for the offence is being awarded. 13. In present case, after the verdict of conviction, the trial court had mentioned that it had given opportunity to accused on point of sentence, but from perusal of records it is found that in fact, it had not considered the relevant points and without assigning any specific reason, learned Sessions Judge had awarded maximum possible punishment. 14. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. The Section 235 of the Criminal Procedure Code, 1973 reads :- “(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law". 15. In Dagdu and Ors. (2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law". 15. In Dagdu and Ors. v. State of Maharashtra, (1977) 3 SCC 68 Hon'ble Apex Court had held that :- “The imperative language of Sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under Section 360. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court which the accused, prior to the enactment of the Code of 1973, had no opportunity to do. The social compulsions, the pressure of poverty, the retributive instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity-all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of Section 235(2) must, therefore, be obeyed in its letter and spirit.” 16. In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 Hon'ble Supreme Court had held :- “The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) he Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction.” 17. In “Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 ” Hon'b'e Apex Curt had held that:- “it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict.” “17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.” 18. Thus the Sessions Judge, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation. There is no justification for the trial court while convicting accused-appellant for offence under Section 304 IPC to sentence him to maximum possible life imprisonment only because Section 304 IPC provides the life imprisonment as the maximum sentence it does not mean that Court should mechanically proceed to impose the maximum sentences, more particularly when the incident had occurred suddenly, without planning and without use of any weapon, and apparently without real intention of causing death. There is no justification for awarding the maximum sentence of life imprisonment in the present case. 19. In Hem Chand v. State of Haryana, (1994) 6 SCC 727 Hon'ble Apex Court had held that :- “As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.” In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court had held :- “While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced.” 20. It lies in the discretion of the trial court to choose a particular sentence within the available range from minimum to maximum; and in the present case the discretion has not been judiciously exercised. Therefore impugned judgment warrants interference in exercise of appellate jurisdiction. 21. In considering the adequacy of the sentence which neither be too severe nor too lenient the court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and situation in life of the offender. In awarding the sentence the judge, when he is free, is still not wholly free. He is to draw his inspiration from consecrated principles. 22. The Indian Penal Code prescribed offences and punishments for the offences. For many offences only the maximum punishment is prescribed and for some offences the minumum punishment which could be inflicted is also prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits. There is no guidance to the Judge in regard to selecting the most appropriate sentence in the given circumstances of the case. Therefore Judge exercises discretion accordingly to his own judgment. There is, therefore, no uniformity. Some Judges are lenient and some Judges are harsh. No exhaustive, explicit and uniform legal principles have been evolved in India regarding sentencing. Neither the legislature nor the judiciary has issued structured sentencing guidelines. There is need to adopt such guidelines in order to minimize uncertainty in awarding sentences. The higher courts, recognizing the absence of such guidelines, have provided judicial guidance in the form of principles and factors that courts must take into account while exercising discretion in sentencing. 23. In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 Hon'ble Apex Court had discussed points to be taken into account before passing appropriate sentence as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:- (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 24. In present matter, appellant Jagan and victim Kamla had intimate illicit relationship, without any grudge or grievance against each other. They had no reason to cause injuries or harm against each other. At the time of incident, appellant entered bedroom of Kamla without any opposition and apparently with her consent, for consuming liquor and having physical relationship, which could not be materialized due to some reason. They had no reason to cause injuries or harm against each other. At the time of incident, appellant entered bedroom of Kamla without any opposition and apparently with her consent, for consuming liquor and having physical relationship, which could not be materialized due to some reason. He was permitted to consume liquor inside bedroom of victim without any opposition, and the incident of causing injury occurred only when there was some hindrance in establishing physical relationship. He had no intention or motive to cause any serious injury or harm to victim, but any how incident had occurred resulting injury on chest of the victim and also on appellant. It is not proved as to how deep the incised wound was there on the body of victim because doctor had not probed its depth during medical examination. It is also found that in spite of said injury victim survived for more than three weeks. Therefore, this contention cannot be said to be unacceptable that although remote cause of victim's death was injury inflicted at the time of incident, but instant cause would have been improper treatment or negligence in treatment. Had the chest injury of victim been very deep, it would have been mentioned by PW-4 doctor, who had examined her immediately. Thus, it is found that on one hand injury inflicted on body of victim was caused by the appellant, but on other hand it is found that apparently it was caused due to any unforeseen reason, or due to provocation. Apart from it, applicant has been in jail in sufficient time. Initially he was granted bail in appeal. But afterwards he was again sent to jail when he was found absent at the time of hearing of this appeal. He is involved in this prosecution for about 40 years since incident of 29.3.1977 and has been running from pillar to post, which in itself is a punishment. He is now a senior citizen and has no other criminal history, and he had not committed any other criminal act during this long period of about 40 years. However, this fact is already proved that it was the appellant, equipped with the knife, who had been responsible for injuries and the death of victim. 25. He is now a senior citizen and has no other criminal history, and he had not committed any other criminal act during this long period of about 40 years. However, this fact is already proved that it was the appellant, equipped with the knife, who had been responsible for injuries and the death of victim. 25. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the sentence of life imprisonment of the appellant under Section 304 IPC cannot be sustained. In present case the circumstances presented before the Sessions Judge, at the time of hearing under section 235(2) CrPC on point of quantum of sentence, as discussed above, were dismaying. So, it appears appropriate that the sentence should not exceed more than 10 years imprisonment. In our considered view, the appellant-accused ought to have been sentenced under Section 304 with ten years' R.I. 26. In view of the above facts and discussions, the appeal is partly allowed. The order of conviction u/s 304 IPC imposed on the appellant is hereby confirmed but the sentence of imprisonment for life is modified to rigorous imprisonment of ten years. 27. Let the copy of this judgment be sent to Sessions Judge, Shahjahanpur of ensuring compliance.