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2021 DIGILAW 1384 (ALL)

Ramroop v. State of U. P.

2021-11-22

K.J.THAKER, SAUMITRA DAYAL SINGH

body2021
JUDGMENT : 1. Heard Shri Kamta Prasad, learned counsel for the appellant; Shri Arvind Kumar, learned AGA for State; and perused the record. 2. By way of this appeal, the appellant-Ramroop has challenged the Judgment and order dated 01.04.2015 passed by court of Additional Sessions Judge, Hamirpur in Session Trial No.05 of 2014 arising out of Case Crime No.1444 of 2013 wherein accused was tried for commission of offence under Sections 304 (I) and 506 Indian Penal Code (hereinafter referred to as, 'IPC'), Police Station-Sumerpur, District Hamirpur. The learned Sessions Judge convicted the accused for life imprisonment for commission of offence under Section 304 part I IPC and with fine of Rs.10,000/-. In default of payment of fine, the accused shall undergo rigorous imprisonment for 6 months. He was not convicted under Section 506 IPC. 3. The brief facts as per prosecution case are that written report which is Ex.Ka.1 and which corroborates the dying declaration made on 28.9.2013 reads as follows:- “That on 28.9.2013 at about 9.00 a.m. when the accused Ramroop, elder son of the deceased and elder son of the person who got the First Information Report registered, was demanding money for buying liquor. The mother refused to give him money for buying liquor. The accused became angry and poured kerosene on her (deceased) and set her (deceased) ablaze. The mother who was engulfed was taken to the hospital immediately after putting a quilt on her body by the complainant and his brother as well as Muhal and when the accused was told he threatened to kill them. That is how the report was given on 5.10.2013 there is a delay of six days but during this period, the dying declaration was recorded on 28.9.2013 of deceased at 2.40 p.m. wherein also she narrated the same facts. The Police investigation had already started. Her post mortem report was done as she died on 29.9.2013 at 3.50 p.m.. The injuries according to the doctors was superficially to deep burn all over the body. The cause of death was due to the burn injures. The prosecution laid the charge sheet against the accused. The dying declaration of the deceased which is Ex.Ka-2 also requires to be looked into wherein she has mentioned that her husband and borther-in-law brought her to the Hospital. She has grievanced against her son and his wife. This dying declaration is dictated on 28.9.2013. 4. The prosecution laid the charge sheet against the accused. The dying declaration of the deceased which is Ex.Ka-2 also requires to be looked into wherein she has mentioned that her husband and borther-in-law brought her to the Hospital. She has grievanced against her son and his wife. This dying declaration is dictated on 28.9.2013. 4. The charge sheet was laid before the court of Magistrate and the learned Judge committed the case to the court of session as it was triable by the court of session. 5. The prosecution examined nine witnesses so as to bring home the charge framed against the accused as enumerated: 1. Nanki PW1 2. Ashok Kumar PW2 3. Mahghu PW3 4. Ram Kesh PW4 5. Dr. Manish Kumar PW5 6. Musa Ram Pal PW6 7. Dr. R.K. Katiyar PW7 6. In support of ocular version following documents were produced to bring home the charge:- 7. Learned counsel for the appellant has urged that once the Court came to the conclusion that it was a case of 304 part I, the infliction of incarceration for life requires interference. It is submitted that only interested witnesses have been examined. It is submitted that PW-5 and PW-7 are Doctors. PW-8 and PW-9 are Police Officers and, therefore, the evidence against the appellant is not convincing that he has committed the offence or he had set his mother ablase and in the dying declaration she had named both he and his wife, whereas the discrepancy in the FIR while naming him alone and not his wife. 8. Shri Arvind Kumar, learned AGA has vehemently submitted that punishment for incarceration of life imprisonment under Section 304 part I is just and proper. It is contented that the accused set his own mother ablaze and threatened the complainant with dire consequences which shows his mental status and, therefore, it is requested that this Court may not interfere in the punishment as it is submitted that the burn injuries was caused by the accused as proved by ocular version and the dying declaration. 9. While hearing the learned counsels for the parties, we have minutely perused the judgment and the evidence. We have threadbare read the same. The deceased died on the next date out of burn injuries. This is corroborated with her dying declaration which is admissible under Section 34 of the Evidence Act. 9. While hearing the learned counsels for the parties, we have minutely perused the judgment and the evidence. We have threadbare read the same. The deceased died on the next date out of burn injuries. This is corroborated with her dying declaration which is admissible under Section 34 of the Evidence Act. PW-3 has also accepted that the accused used to consume liquor but he was not a bad person. The witnesses of fact have turned hostile rather they have not supported the case of the prosecution. PW-1 has come up with the theory that accused had left the home as there was a dispute regarding the property and it was the deceased who had ablaze herself by committing self emollition. PW-2 Ashok Kumar has also stated that Ramroop was in a habit of drinking but he had not seen the appellant set his mother ablaze. He had not seen the appellant demand money from the deceased. The medical evidence has been believed by the learned Judge. 10. The Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Dal Singh and others (2013) 14 SCC 159 in paras 14 to 22 has observed as under:- 1 First Information Report Ex.Ka.11 2 Written Report Ex.Ka.1 3 Dying Declaration Ex. Ka.2 4 Post Mortem Report Ex. Ka.3 5 Panchayatnama Ex.Ka.5 6 Charge Sheet Mool Ex.Ka.10 7 Site Plan with Index Ex.Ka.4 “Whether 100 per cent burnt person can make a dying declaration or put a thumb impression: 14. In Mafabhai Nagarbhai Raval v. State of Gujarat AIR 1992 SC 2186 , this Court dealt with a case wherein a question arose with respect to whether a person suffering from 99 per cent burn injuries could be deemed capable enough for the purpose of making a dying declaration. The learned trial Judge thought that the same was not at all possible, as the victim had gone into shock after receiving such high degree burns. He had consequently opined, that the moment the deceased had seen the flame, she was likely to have sustained mental shock. Development of such shock from the very beginning, was the ground on which the Trial Court had disbelieved the medical evidence available. This Court then held, that the doctor who had conducted her post-mortem was a competent person, and had deposed in this respect. Development of such shock from the very beginning, was the ground on which the Trial Court had disbelieved the medical evidence available. This Court then held, that the doctor who had conducted her post-mortem was a competent person, and had deposed in this respect. Therefore, unless there existed some inherent and apparent defect, the court could not have substitute its opinion for that of the doctor's. Hence, in light of the facts of the case, the dying declarations made, were found by this Court to be worthy of reliance, as the same had been made truthfully and voluntarily. There was no evidence on record to suggest that the victim had provided a tutored version, and the argument of the defence stating that the condition of the deceased was so serious that she could not have made such a statement was not accepted, and the dying declarations were relied upon. A similar view has been re-iterated by this Court in Rambai v. State of Chhatisgarh (2002) 8 SCC 83 . 15. In Laxman v. State of Maharashtra : AIR 2002 SC 2973 , this Court held, that a dying declaration can either be oral or in writing, and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a Magistrate, and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, the evidentiary value or weight that has to be attached to such a statement, necessarily depends on the facts and circumstances of each individual case. What is essentially required, is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind, and where the same is proved by the testimony of the Magistrate, to the extent that the declarant was in fact fit to make the statements, then even without examination by the doctor, the said declaration can be relied and acted upon, provided that the court ultimately holds the same to be voluntary and definite. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise. 16. Certification by a doctor is essentially a rule of caution, and therefore, the voluntary and truthful nature of the declaration can also be established otherwise. 16. In Koli Chunilal Savji v. State of Gujarat AIR 1999 SC 3695 , this Court held, that the ultimate test is whether a dying declaration can be held to be truthfully and voluntarily given, and if before recording such dying declaration, the officer concerned has ensured that the declarant was in fact, in a fit condition to make the statement in question, then if both these aforementioned conditions are satisfactorily met, the declaration should be relied upon. (See also: Babu Ram and Ors. v. State of Punjab AIR 1998 SC 2808 ). 17. In Laxmi v. Om Prakash and Ors. AIR 2001 SC 2383 , this Court held, that if the court finds that the capacity of the maker of the statement to narrate the facts was impaired, or if the court entertains grave doubts regarding whether the deceased was in a fit physical and mental state to make such a statement, then the court may, in the absence of corroborating evidence lending assurance to the contents of the declaration, refuse to act upon it. 18. In Govindappa and Ors. v. State of Karnataka (2010) 6 SCC 533, it was argued that the Executive Magistrate, while recording the dying declaration did not get any certificate from the medical officer regarding the condition of the deceased. This Court then held, that such a circumstance itself is not sufficient to discard the dying declaration. Certification by a doctor regarding the fit state of mind of the deceased, for the purpose of giving a dying declaration, is essentially a rule of caution and therefore, the voluntary and truthful nature of such a declaration, may also be established otherwise. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence. 19. In State of Punjab v. Gian Kaur and Anr. Such a dying declaration must be recorded on the basis that normally, a person on the verge of death would not implicate somebody falsely. Thus, a dying declaration must be given due weight in evidence. 19. In State of Punjab v. Gian Kaur and Anr. AIR 1998 SC 2809 , an issue arose regarding the acceptability in evidence, of the thumb impression of Rita, the deceased, that appeared on the dying declaration, as the trial court had found that there were clear ridges and curves, and the doctor was unable to explain how such ridges and curves could in fact be present, when the skin of the thumb had been completely burnt. The court gave the situation the benefit of doubt. 20. The law on the issue can be summarised to the effect that law does not provde who can record a dying declaration, nor is there any prescribed form, format, or procedure for the same. The person who records a dying declaration must be satisfied that the maker is in a fit state of mind and is capable of making such a statement. Moreover, the requirement of a certificate provided by a Doctor in respect of such state of the deceased, is not essential in every case. 21. Undoubtedly, the subject of the evidentiary value and acceptability of a dying declaration, must be approached with caution for the reason that the maker of such a statement cannot be subjected to cross-examination. However, the court may not look for corroboration of a dying declaration, unless the declaration suffers from any infirmity. 22. So far as the question of thumb impression is concerned, the same depends upon facts, as regards whether the skin of the thumb that was placed upon the dying declaration was also burnt. Even in case of such burns in the body, the skin of a small part of the body, i.e. of the thumb, may remain intact. Therefore, it is a question of fact regarding whether the skin of the thumb had in fact been completely burnt, and if not, whether the ridges and curves had remained intact. 11. In case of Vijay Pal (Supra) in paragraphs 23 and 24 the Hon'ble Apex Court has relied upon the judgment in the case of Mafabhai Nagarbhai Raval (Supra) and Dal Singh has observed as under:- “23. 11. In case of Vijay Pal (Supra) in paragraphs 23 and 24 the Hon'ble Apex Court has relied upon the judgment in the case of Mafabhai Nagarbhai Raval (Supra) and Dal Singh has observed as under:- “23. It is contended by the learned Counsel for the Appellant when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval v. State of Gujarat (1992) 4 SCC 69 wherein it has been held a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial Court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance. 24. In State of Madhya Pradesh v. Dal Singh and Ors. : (2013) 14 SCC 159 , a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible.” 12. It is a fact that the deceased died due to burn injuries and, therefore, we concur with the learned Judge that the death was a homicidal death. Death is because of the burn injuries and she had sustained 100% burn . The dying declaration in its form will not permit us to take a different view except sentencing. 13. The recent decision of the Apex Court in the case of State of Gujarat v. Bhalchandra Laxmishankar Dave, 2021 (0) AIJEL-SC 66983, decided on 2nd February, 2021 wherein the Apex Court has held that while dealing with the matter relating to conviction, the Court should discuss the decision of the trial court and also the judgment in Guru Dutt Pathak v. State of Uttar Pradesh, LAW(SC) 2021 5 5, decided on 5th May, 2021. All the principles laid down in these latest decisions, oblige us to consider the evidence afresh as discussed by learned Sessions Judge. 14. Factual scenario goes to show that the accused has been named in the FIR. It is not proved that there was any enmity between the mother (deceased) and the accused, though there is some doubt. All the principles laid down in these latest decisions, oblige us to consider the evidence afresh as discussed by learned Sessions Judge. 14. Factual scenario goes to show that the accused has been named in the FIR. It is not proved that there was any enmity between the mother (deceased) and the accused, though there is some doubt. Learned counsel for the appellant contended that he would press for commutation of sentence from life to a lesser sentence in view of latest decision of the Apex Court in catena of decisions foremost would be a very recent judgment of Hon'ble Supreme Court titled as Manoj Mishra @ Chhotkau Vs. The State of Uttar Pradesh (Criminal th Appeal No.1167 of 2021) decided on October, 2021 is also considered by us. 15. It would now be necessary for this Court to discuss the role of the accused and the manner in which, the incident occurred the injuries are found; (a) the accused is in jail since more than 7 years; (b) the incident appears to have occurred on spur of the moment, it is very clear that the death of victim occurred at the hands of the sole accused. 16. While considering the deposition of eye witnesses, entire evidence considered the injuries are not superficial, but as such which shows that the intention of the accused as culled out from the record does not show that the accused had intention to do away with his mother, therefore, altercation between the same. 17. The accused was major at the time of commission of offence, he is the son of the deceased. There was altercation and, the occurrence of incident had taken place at about 9.00 a.m. in house. 18. In that view of the matter, we concur with the learned sessions Judge held that the accused was author of the crime. We further concur with the learned Judge on the finding of fact that deceased who was was aged about 50 years and the injury caused was sufficient to cause the death. 19. This takes us to the issue of whether the offence would be punishable under Section 304 part I or part II of the I.P.C. 20. 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. 19. This takes us to the issue of whether the offence would be punishable under Section 304 part I or part II of the I.P.C. 20. 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." 21. The term '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. 22. 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. 22. 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. 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. 23. 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. 24. 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. 25. We are even supported in our decision by the judgment of the Apex Court reported in Pardeshiram v. State of M.P., (2021) 3 SCC 825, where in considering the period of custody undergone, relationship between the appellant and the deceased and the background in which the injuries were caused, sentence directed to be reduced to period already undergone. 26. While going through the record, we are convinced that the punishment of life imprisonment requires to be substituted. The punishment of seven years with remissions while maintaining fine and default sentence will be adequate to the son who must by now repented in life. 27. Appeal is partly allowed accordingly. 28. Record and proceedings be sent back to the trial court. 29. This court is thankful to learned counsel for the parties for ably assisting this Court in getting this matter disposed off. 30. Learned Amicus Curiae appointed by Legal Services Committee, who shall be paid all his dues as are admissible.