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2022 DIGILAW 1857 (ALL)

Balveer Kaur v. State of U. P.

2022-11-24

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : 1. This appeal challenges the judgment and order dated 21.6.2016 passed by Shri Mohammad Faiz Alam Khan, Sessions Judge, Shahjahanpur, in Sessions Trial No. 163 of 2015 convicting accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and sentenced him to undergo rigorous life imprisonment with fine of Rs. 25,000/- and in case of default of payment of fine, further to undergo one year imprisonment. 2. Investigation was moved into motion, after recording statements of various persons, the investigating officer submitted the charge-sheet against accused under Sections 147/307/302 of I.P.C. The learned Chief Judicial Magistrate before whom charge-sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused, framed charges under Section 302 of I.P.C. read with Section 34 of IPC. 3. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 4 witnesses who are as follows: 1. Jaspal Singh PW-1 2. Jasveer Singh PW-2 3. Raj Kumar Saroz PW-3 4. Vijay Kumar Trivedi PW-4 4. In support of ocular version following documents were filed: 1. F.I.R. Ex.Ka.8 2. Written Report Ex.Ka.1 3. Panchayatnama Ex. Ka.2A 4. Postmortem Report Ex.Ka.10 5. Site Plan Ex.Ka.2 6. Charge-sheet Ex.Ka.11 5. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C. and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid. 6. Heard Sri Deepak Srivatava for the appellant and Sri N.K. Srivastava for the State and perused the record. 7. It is submitted by learned counsel for accused-appellant that the accused is in jail since 1.12.2014. 8. The allegations against the appellant are writ large and, therefore, the dying declaration is fruitful piece of evidence under Section 32 of the Evidence Act is the submission of Counsel for the State. We are agreeable of the same that it is fruitful piece of evidence. 9. In alternative, it is submitted that at the most punishment can be under Section 304 II or Section 304 I of I.P.C. If the Court feels, as the accused have been in jail for more than 8 years without remission, they may be granted fixed term punishment of incarceration. 10. 9. In alternative, it is submitted that at the most punishment can be under Section 304 II or Section 304 I of I.P.C. If the Court feels, as the accused have been in jail for more than 8 years without remission, they may be granted fixed term punishment of incarceration. 10. Learned A.G.A. for the state has vehemently submitted that facts of this case will not permit the Court to convert the sentence to that under Section 304 Part I of I.P.C. as none of the judgments relied by the accused-appellant will apply to the facts of this case. 11. The learned Judge, while discussing all the issues, has relied on several authoritative pronouncement hence the submission of the Counsel that the dying declaration is doubtful cannot be accepted. The second issue is whether it is 302 or 304 Part-I or II have considered the fact that 2 other co-accused has been acquitted in the same set of circumstances what would be the fate of this appeal. The appellant is sister-in-law of the deceased and the fact that the deceased was alive for 6 days after injury and it was septicaemial death. 12. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant. 13. 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 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. 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.” 14. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, 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. 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 is the act by which the death is caused is done. INTENTION 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. (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. 15. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Others vs. State of Maharashtra, (2011) 4 SCC 250 and B.N. Kavatakar and Another vs. State of Karnataka, 1994 Supp. (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 16. (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 16. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and Others vs. State of M.P. (2011) 5 SCR 300 which have to be also kept in mind. 17. This takes us to the alternative submission of learned counsel for the appellant that the quantum of sentence is too harsh and requires to be modified. In this regard, we have to analyse the theory of punishment prevailing in India. 18. 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. 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.” 19. 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.” 19. ‘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. 20. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in 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. 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. 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. 21. 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. 22. 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. 23. The learned Judge himself has not considered him under Section 304 IPC. The State has not preferred any appeal against the acquittal of the other accused. Smt. Balveer Kaur has been convicted for life imprisonment under Section 302 IPC. We convert the same under Section 304 Part-I. She has been in jail since 1.12.2014. We reduce the sentence to 8 years with remission. We maintain the fine and default sentence. 24. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. Smt. Balveer Kaur has been convicted for life imprisonment under Section 302 IPC. We convert the same under Section 304 Part-I. She has been in jail since 1.12.2014. We reduce the sentence to 8 years with remission. We maintain the fine and default sentence. 24. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. The fine if she has yet not deposited, will deposit the same within four weeks from the date of release from jail. The jail authority shall see that the accused-appellant is lodged in the jail to re-incarcerate for the default period if fine is not paid after she is released. 25. This Court is thankful to Sri N.K. Srivastava for ably assisting this Court.