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2022 DIGILAW 1948 (ALL)

Mohd. Amir v. State of U. P.

2022-12-09

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : 1. This appeal challenges the judgment and order dated 22.9.2018 passed by Ist Additional Sessions Judge, Jhansi, in Sessions Trial No.240 of 2016 (State Vs. Mohd. Amir) in connection with Case Crime No.586 of 2015, Police Station Sipri Bazar, District Jhansi convicting the appellant under Section 302 IPC for life imprisonment along with fine of Rs.5,00,000/-, under Section 354 IPC for 3 years rigorous imprisonment along fine of Rs. 50,000/-and under Section 452 IPC for 3 years rigorous imprisonment along with fine of Rs. 50,000/-and all the sentences shall run concurrently. 2. According to F.I.R., the applicant's daughter Km. Vinita Bajpai @ Doli, age -24 years, used to live in Old Charliganj, Police Station -Sipri Bazar, Jhansi, District-Jhansi for the care of the applicant's late brother and bhabhi (brother’s wife)’s son Abhilash Tiwari and daughter Km. Rinki, who is mentally challenged. The occurrence took place on 18.12.15 at around 11:30 a.m. Km. Vinita, daughter of the applicant, was alone at her Jhansi located residence. Taking advantage of the opportunity, Mohd. Amir s/o Mohd. Anees, resident of Sarai Mohalla, Police Station -Kotwali, Jhansi entered the room of the applicant's daughter and tried to commit rape on the applicant's daughter, against which act the applicant's daughter protested, and raised alarm; so fearing to be get apprehended, the said Mohammad Amir poured kerosene, kept in the house, on the applicant's daughter and set her on fire with the intention of killing her. While executing the said occurrence, Mohammad Amir also came into flames. Hearing the commotion, Vivek Tiwari, the grandson of the applicant, and many other people reached the spot, and took Km. Vinita to the Medical College, Jhansi. As her condition was critical, she, not being allowed to be admitted, was asked to be taken to Gwalior instead. The daughter of the informant was admitted to Ayushman Hospital, Gwalior and she was in moribund state. 3. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 10 witnesses who are as follows: 1 Gayari Bajpayee PW1 2 Janki Prasad Bajpayee PW2 3 Vivek Tiwari PW3 4 Pramod Kumar Shukla PW4 5 Shivnandan Singh Kushwaha PW5 6 Dr. Ajay Gupta PW6 7 Puttan Lal PW7 8 Pravin Kumar Yadav PW8 9 Kamta Prasad PW9 10 Shiv Mohan Prasad PW10 4. Ajay Gupta PW6 7 Puttan Lal PW7 8 Pravin Kumar Yadav PW8 9 Kamta Prasad PW9 10 Shiv Mohan Prasad PW10 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.10 4 Postmortem Report Ex.Ka.11 5 Charge-sheet Ex.Ka.15 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 learned counsel for accused-appellant, learned A.G.A. for the State and perused the record. 7. It is the submission of appellant’s Counsel that PW3Vivek Tiwari stated on oath that the incident had occurred on 18.02.2015 at 11½ pm. He was inside the home at that time. He heard some screams, he came out of his house and saw that Amir was screaming. His hand and leg were engulfed in fire. He told Vivek that Doli @ Vineeta was in flames inside, save her. Public from the muhalla extinguished Vineeta's fire. Thereafter they took Vineeta to Medical College where the doctors after examination advised her to be taken to Gwalior. After returning from the hospital, he first went to his home to take the elders. From there, he made a telephone call to Vineeta's father who lived in Mahoba. He told me that he had already received the information and that he was coming directly to Gwalior. Vineeta is his Chacheri Bua (father's cousin). She would live with her Mama (maternal uncle) to take care of his son because he was mentally retarded. Amir hails from city. It is not known where he lives in the city. Amir has been visiting there for the last two years. 8. It is submitted by learned counsel for accused-appellant that the accused is in jail since 22.9.2018. 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 4 years without remission, they may be granted fixed term punishment of incarceration. 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 4 years without remission, they may be granted fixed term punishment of incarceration. 9. 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. 10. While going through the record it is very clear that in view of the judgment of Ankush Shivaji Gaikwad Versus State of Maharashtra, (2013) 6 SCC 770 , the appeal requires to be considered on that aspect. While going through the facts, the deceased died out of septicaemial death on 5.1.2016. We, therefore, hold that the death was a homicidal death. It was the appellant who was instrumental in commission of the offence and was the author of the offence. 11. 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 appellants. 12. 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. 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." 13. 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 IPC. 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 th 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. 14. 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 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, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 15. 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, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 15. 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. Decided, (2011) 5 SCR 300 which have to be also kept in mind. 16. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under: "12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280 , the Apex Court has held 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. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same. 13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. 13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy. 14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns. 15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly. 15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under: “18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. 19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. 20. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. 20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC.” 16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed. 17. The conviction of the appellants-original accused under Section 302 of Indian Penal Code vide judgment and order dated 19.12.2007 arising from Sessions Case No. 149 of 2007 passed by the Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad is converted to conviction under Section 304 (Part I) of Indian Penal Code. However, the conviction of the appellants – original accused under section 452 of Indian Penal Code is upheld. The appellants – original accused are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/-each in default rigorous imprisonment for six months under section 304 (Part I) of Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by the trial court under section 302 IPC. The appellants – original accused are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/-each in default rigorous imprisonment for six months under section 304 (Part I) of Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by the trial court under section 302 IPC. The sentence imposed in default of fine under section 452 IPC is also reduced to two months. Accordingly, the appellants are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/-, in default, rigorous imprisonment for six months for offence punishable under section 304(I) of Indian Penal Code and rigorous imprisonment for a period of five years and fine of Rs. 2,000/-, in default, rigorous imprisonment for two months for offence punishable under section 452 of Indian Penal Code. Both sentences shall run concurrently. The judgment and order dated 19.12.2007 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellants – original accused. R & P to be sent back to the trial court forthwith." 17. In latest decision in Khokan@ Khokhan Vishwas Vs. State of Chattisgarh, 2021 LawSuit (SC) 80 on which this court relies wherein the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant and sentenced under Section 304 of IPC. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused. 18. The factual scenario as it emerges would go to show that the incident occurred when the accused came to the place of incident 100 rupees were demanded which he had taken from the deceased and there was a quarrel between the deceased and accused. 18. The factual scenario as it emerges would go to show that the incident occurred when the accused came to the place of incident 100 rupees were demanded which he had taken from the deceased and there was a quarrel between the deceased and accused. At about 9:00 p.m. Balbeer fired at the deceased and this occurred in spur of the moment. The evidence goes to show that it was not a premeditated cold blooded murder. However, PW-1 did not see the deceased shooting at the deceased. PW-2, has turned hostile. Similar is the case with PW-3. The gun was recovered at the instance of the accused from a place which was known only to him. 19. As narrated herein above the decision of commission of offence under Section 302 IPC cannot be concurred by us in view of the As narrated herein above as 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 Ors ( supra) and we are fortified in our view by the judgment of Apex Court in the case of B.N. Kavatakar and Another (supra) and therefore, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC and not under Section 302 of IPC or Section 304 Part -II of IPC. 20. In Mohd. Giasuddin Vs. State of A.P., [ 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. 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. '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. 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. 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. 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. Since the learned counsel for the appellant has later not pressed the appeal on merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the appeal is required to be partly allowed. 25. 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. 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. 26. On the overall scrutiny of the facts and circumstances of the case coupled with medical evidence and the opinion of the Medical Officer and considering the principles laid down by the Courts in above referred case laws, we are of the considered opinion that in the case at hand, the offence would be punishable under Section 304 (Part-I) of IPC. Punishment: 27. The accused is in jail since 22.9.2018. The Apex Court in such cases has converted the conviction under Section 302 of I.P.C. to under Section 304 Part I of I.P.C. which will come to the aid of the accused-appellant. 28. In view of the aforementioned discussion, we are of the view that the appeal has to be partly allowed, hence, appeal is partly allowed. 29. The punishment under Sections 354 IPC cannot be sustained. The punishment under Section 452 IPC cannot be sustained as no ingredients are proved and judgment qua the said is upturned. Offence under Section 302 IPC is converted into Section 304 Part-I IPC and 7 years rigorous imprisonment is awarded. The compensation from Rs. 5 Lacs as fine is reduced to Rs. 3 Lacs which would be compensation under Section 354 to be paid to the legal heirs of the deceased. Appellant shall undergo one and half year simple imprisonment in case of default of fine. 30. Record and proceedings be sent back to the Court below forthwith. The fine if he has yet not deposited, will deposit 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 he is released. 31. Let a copy of this judgment along with the trial court record be sent to the Court and Jail Authorities concerned for compliance. 32. This Court is thankful to learned Advocates for ably assisting the Court.