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2022 DIGILAW 1391 (ALL)

Sonu v. State of U. P.

2022-09-01

KAUSHAL JAYENDRA THAKER, NALIN KUMAR SRIVASTAVA

body2022
JUDGMENT : KAUSHAL JAYENDRA THAKER, J. 1. The appeal has been preferred by the appellant-Sonu against the judgment and order dated 11.02.2015, passed by learned Additional District and Sessions Judge, Fast Track Court, Gautam Budh Nagar in Session Trail No. 144 of 2012 (State of U.P. vs. Sonu and Another), arising out of Case Crime No. 581 of 2011, under Sections 498-A, 304B Indian Penal Code, 1860 (in short ‘I.P.C.’) and Section 3/4 of Dowry Prohibition Act, Police Station-Dadri, District Gautam Budh Nagar whereby the appellant is convicted and sentenced for the offence under Section 302 I.P.C. for life imprisonment with a fine of Rs. 25,000/- and in default of payment of fine, further imprisonment for one year. Accused Krishnapal Sharma was acquitted by the Court below, therefore this appeal has been preferred only for appellant-Sonu. 2. Brief facts of the case giving rise to this appeal are that a written report was submitted by complainant Brahm Deo (father of the deceased) at Police Station Dadri, District Gautam Budh Nagar with the averments that marriage of his daughter Priyanka was solemnized with accused-Sonu on 14.7.2010. He had given dowry as per his capacity. After marriage accused-Sonu and his family members demanded additional dowry. It is further averred that on 07.11.2011, appellant-Sonu and his family members poured kerosene on his daughter and set her ablaze. It is a fact that during treatment the deceased succumbed to the injuries. 3. On the basis of above written report, a case crime no. 581 of 2011 was registered at Police Station Dadri, under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act. Investigation was taken up by Circle Officer, who visited the spot, prepared the site plan and recorded the statement of witnesses. the dying declaration of the deceased was also recorded on 10.11.2011. F.I.R. was registered as written report on 24.11.201. Inquest report was prepared and post-mortem of the dead body was conduced and its report was also prepared by doctor. After completion of investigation, I.O. submitted the charge sheet against accused-Sonu and Krishnapal, who are the husband and father-in-law of the deceased. 4. Case being exclusively triable by the court of session was committed to the court of session for trial. The accused pleaded not guilty and wanted to be tried. 5. After completion of investigation, I.O. submitted the charge sheet against accused-Sonu and Krishnapal, who are the husband and father-in-law of the deceased. 4. Case being exclusively triable by the court of session was committed to the court of session for trial. The accused pleaded not guilty and wanted to be tried. 5. Learned Sessions Court framed the charges against accused-Sonu and Krishnapal, under Section 3 r/w 4 of Dowry Prohibition Act, under Section 498-A and 304-B I.P.C. Charges were read over to the accused, who denied the charges and claimed to be tried. 6. To bring home the charges, the prosecution examined following witnesses: 1. Brahm Deo Dubey PW-1 2. Arti Devi PW-2 3. Neha PW-3 4. Dr. Mohit Gupta PW-4 5. Krishna Mohan Uppu PW-5 6. Bheem Singh PW-6 7. Udayveer Singh Pokhar PW-7 8. Brajesh Singh PW-8 7. In support of oral evidence, prosecution submitted following documentary evidence, which were proved by leading oral evidence and proving the contents of the said documents: 1. FIR Ex.Ka-11 2. Written report Ex.Ka-1 3. Dying Declaration Ex.Ka-6/10 4. Medico-Legal Report Ex.Ka-7 5. Post-mortem report Ex.Ka-3 6. Letter of Executive Magistrate Ex.Ka-4 7. Brief Facts Ex.Ka-5 8. Death Summary Ex.Ka-8 9. Death Report Ex.Ka-2 10. Death Report Ex.Ka-9 11. Charge-Sheet (Mool) Ex.Ka-14 12. Site plan with index Ex.Ka-13 8. After completion of prosecution evidence, the statement of accused was recorded under Section 313 of Criminal Procedure Code (Cr.P.C.) in which the accused denied involvement in the crime and deposed that false evidence was led against accused. The accused examined DW-1 Smt. Vijay and DW-2 Radhey Shyam in defence. 9. Heard Shri Dharmendra Kumar Chaubey, learned counsel for the appellant and Shri N.K. Srivastava, learned counsel for the State. Record has been perused. 10. Leaned counsel for the appellant has submitted that as per the F.I.R. father of the appellant was also involved in the offence but no evidence was found against him, which goes to show that entire F.I.R. is fabricated and false averments were made by the complainant to rope in all the family members of the appellant. The FIR was also lodged much after the incidence. Such type of delayed F.I.R. raises refutable proof and is highly suspicious and cannot be relied upon so as to convict the accused. The FIR was also lodged much after the incidence. Such type of delayed F.I.R. raises refutable proof and is highly suspicious and cannot be relied upon so as to convict the accused. It is further submitted there are no specific allegations against the appellant so far as demand of dowry is concerned which is also evident from the version of F.I.R. 11. It is next submitted by learned counsel for the appellant that prosecution has examined PW-1, Brahm Deo Dubey, father of the deceased and PW-2 Arti Devi, mother of the deceased, as a witnesses of fact but their testimony has material contradictions, which go to the root of the case. Demand of additional dowry is not proved, even the F.I.R. does not mention any demand of any article as dowry on the part of the appellant. 12. It is borne out from the record and dying declaration that deceased was hospitalised after the occurrence. The deceased died after 7 days of the occurrence during the course of treatment and therefore the conviction of accused under section 302 of I.P.C. was not warranted. 13. After the aforesaid arguments, learned counsel for the appellant submits that he would press the appeal only for quantum of sentence and it is also submitted that learned trial court has awarded very severe punishment of life imprisonment while it is proved that there was no torture either mental or physical on the part of the accused-appellant, which is finding returned by the court below. 14. It is further submitted that death of the deceased was due to septicaemia and therefore the punishment be converted from 302 to 304 Part-I in view of the recent decisions of Apex Court in Khokan @ Khokhan Vishwas vs. State of Chhattisgarh, 2021 (0) Supreme (SC) 73, State of Uttar Pradesh vs. Subhash alias Pappu, 2022 (0) Supreme (SC) 260 and Smt. Sudha and Another vs. State of U.P. 2021 (0) Supreme (All) 1220 cited by learned counsel for the appellant. 15. Learned A.G.A. for the State has vehemently objected to the submissions of learned counsel for the accused-appellant and submitted that death of deceased had taken place within 7 years of her marriage. It is also submitted that even the death was caused due to burn injuries which is covered within the category of dowry death. Learned trial court has rightly convicted and sentenced the accused-appellant. It is also submitted that even the death was caused due to burn injuries which is covered within the category of dowry death. Learned trial court has rightly convicted and sentenced the accused-appellant. Learned A.G.A. has submitted that the court below has given cogent and sufficient reasons for awarding punishment of life imprisonment which does not require any interference by this Court 16. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, the death was homicidal death. The evidence and dying declaration are correlating each other. The dying declaration is as follows: “(1) What is your name? Priyanka Sharma (2) Age? 25 Years (3) Where do you live? Dadri, U.P. (4) How long were you married? Since 14th July, 2010 (5) Do you have any children? 8 month old child (Shaurya) and pregnant for 2 months (6) Name of your husband? Sonu Sharma (7) who do you live with? I live with my husband and in-laws (8) What happened after yours marriage? First two months were good but latter we started having quarrels. My, husband started beating me as I opposed him from having liquor. These quarrels became big in course of time. (9) How did the burning happen? On 07.11.2011 at around 0800 p.m. I had a quarrel with my husband. He beat me up very badly and took out oil from his bike and poured over me. I tried to oppose but he pushed me to the stove on which milk was being boiled and I caught fire. My sister (neha) and brother-in-law (bhumesh) were in another room in the house. My sister and brother-in-law thought that we were only quarrelling but when I started shouting they came and stopped the fire with clothes and blankets.” 17. Learned counsel for the appellant has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. Learned counsel for the appellant has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. In this regard, Hon’ble Apex Court has summarized the law regarding dying declaration in Lakhan vs. State of Madhya Pradesh, (2010) 8 SCC 514 , in this case, Hon’ble Apex Court held that the doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means “a man will not meet his Maker with a lie in his mouth.” The doctrine of dying declaration is enshrined in Section 32 of Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be directed, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases. 18. The law on the issue of dying declaration can be summarized to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. It is also held by Hon’ble Apex Court in the aforesaid case, that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim. 19. Deceased survived for 7 days after the incident took place. Her dying declaration was recorded by Krishna Mohan Uppu, District Magistrate after obtaining the certificate of medical fitness from the concerned doctor. This dying declaration was proved by PW-5, Krishna Mohan Uppu, District Magistrate. These witnesses have absolutely independent witnesses. 19. Deceased survived for 7 days after the incident took place. Her dying declaration was recorded by Krishna Mohan Uppu, District Magistrate after obtaining the certificate of medical fitness from the concerned doctor. This dying declaration was proved by PW-5, Krishna Mohan Uppu, District Magistrate. These witnesses have absolutely independent witnesses. In the wake of aforesaid judgments of Lakhan (supra), dying declaration cannot be disbelieved, if it inspires confidence. On reliability of dying declaration and acting on it without corroboration, Hon’ble Apex Court held in Krishan vs. State of Haryana, (2013) 3 SCC 280 , that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. Hence, in order to pass the test reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused, who had no opportunity of testing the veracity of the statement by cross-examination. But once, the court has come to the conclusion that the dying declaration was the truthful version as to the circumstance of the death and the assailants of the victim, there is no question of further corroboration. 20. In Ramilaben Hasmukhbhai Khristi vs. State of Gujarat, (2002) 7 SCC 56 , the Hon’ble Apex Court held that under the law, dying declaration can form the sole basis of conviction, if it is free from any kind of doubt and it has been recorded in the manner as provided under the law. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may not be necessary to look for corroboration of the dying declaration. As envisaged, a dying declaration is generally to be recorded by an Executive Magistrate with the certificate of a medical doctor about the mental fitness of the declarant to make the statement. It may be in the from of question and answer and the answers be written in the words of the person making the declaration. But the court cannot be too technical and in substance if it feels convinced about the trustworthiness of the statement which may inspire confidence such a dying declaration can be acted upon without any corroboration. 21. From the above precedents, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with established practice and principles and if it is recorded so then there cannot be any challenge regarding its correctness and authenticity. 22. In dying deceleration of the deceased, it is also relevant to note that deceased died after four days of recording it. It means that she remains alive for four days after making dying declaration, therefore, truthfulness of dying declaration can further be evaluated from the fact that she survived for four days. After making it from which it can reasonably be that inferred she was in a fit mental condition to make the statement at the relevant time. 23. In this regard, we have to analyse the theory of punishment prevailing in India as to whether the case would be one causing murder or culpable homicide not amounting to murder. 24. However, the question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted as punishment under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under: “299. It would be relevant to refer Section 299 of the Indian Penal Code, which read 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 lose 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 to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.C. 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. (1) with the intention of causing death. (b) with the intention of causing such bodily injury as is likely to cause death. (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. (3) 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. In Mohd. Giasuddin vs. State of A.P. AIR 1977 SC 1926 , explaining rehabilitary and 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. 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 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.” 27. ‘Proper Sentence’ was explained in Deo Narain Mandal vs. State of U.P. (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. 28. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in cases titled Jameel vs. State of U.P. (2010) 12 SCC 532 , Guru Basavraj vs. State of Karnataka, (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. 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. 29. 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. 30. Since the learned counsel for the appellant has not pressed the appeal on its merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the conviction of the appellant requires to be upheld but whether under section 304 Part-I and 2 or section 302 I.P.C. will have to be decided. 31. 30. Since the learned counsel for the appellant has not pressed the appeal on its merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the conviction of the appellant requires to be upheld but whether under section 304 Part-I and 2 or section 302 I.P.C. will have to be decided. 31. 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 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. 32. Perusal of record goes to show that motive is absent for causing death of the deceased by the appellant as it is evident from the statement of PW-1 and PW-3. The allegation of demand of dowry was also not proved by the prosecution as PW-2 mother of the deceased in her statement herself admitted that the deceased never made any complaint about her husband or about his family members. Therefore, only on the basis of dying declaration, learned trial court has awarded very harsh and severe punishment, which is life imprisonment. 33. Keeping overall facts and circumstances of this case, in our opinion, ends of justice would be met if the sentence is reduced to the period of 10 years under Section 304 Part-I of I.P.C. Fine imposed is reduced to Rs. 5,000/- and sentence in default payment of fine is also maintained. 34. Accordingly, the appeal is partly allowed, as modified above. 35. Record be sent to trial court immediately.