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2023 DIGILAW 1191 (ALL)

Ahmad Sher v. State of U. P.

2023-04-28

K.J.THAKER, UMESH CHANDRA SHARMA

body2023
JUDGMENT : 1. Heard learned counsel for the appellant and learned A.G.A. for the State. 2. Present criminal appeal challenges judgment and order dated 24.9.2015 passed by the Additional Sessions Judge, Fast Track Court, Kannauj in Sessions Trial No. 121 of 2013 (State vs. Ahmad Sher) whereby the learned Additional Sessions Judge has convicted the accused-appellant, Ahmad Sher for commission of offence under Section 304 of Indian Penal Code, 1860 (for short 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.20,000/-and in case of default in payment of fine, further to undergo four months' additional imprisonment. 3. Brief facts as culled out from the record are that the accused-appellant was married to the deceased 15-16 years prior to the incident but soon after the marriage deceased was being harassed and tortured by her in-laws for which a civil suit was filed which continued for about seven years and ended in a compromise between the parties. As per compromise, deceased was given teen beegha land by her in-laws, in between the years of civil suit accused-appellant married Hoorbano of his village Sataura. When deceased reached her matrimonial home after the compromise had taken place between the parties again her in-laws started harassing her for taking back the given piece of land and on 08.10.2012 at about 12:00 p.m deceased was done to death by her husband-accused appellant herein with the help of his brothers and second wife Hoorbano. 4. On the basis of F.I.R., the investigation started and charge-sheet was laid. The learned Magistrate summoned the accused and committed the case to the Sessions Court as the offences alleged to have been committed were triable by the Sessions Court. The learned Sessions Judge framed charges under Section 304 of I.P.C. 5. On being summoned, the accused pleaded not guilty and wanted to be tried. 6. The Trial started and the prosecution examined 7 witnesses who are as follows: 1 Deposition of Dildar Beg PW1 2 ” ” Ansar PW2 3 ” ” Km. Sarjuman PW3 4 ” ” Mohd. Jahar Ali PW4 5 ” ” Geetam Singh PW5 6 ” ” Brij Kishor PW6 7 ” ” Vinod Kumar Yadav PW7 8 ” ” Vijay Kumar PW8 7. Sarjuman PW3 4 ” ” Mohd. Jahar Ali PW4 5 ” ” Geetam Singh PW5 6 ” ” Brij Kishor PW6 7 ” ” Vinod Kumar Yadav PW7 8 ” ” Vijay Kumar PW8 7. In support of ocular version following documents were filed and proved by prosecution: 1 F.I.R Ex.Ka.11 2 Written Report Ex.Ka.1 3 Postmortem Report Ex.Ka.3 4 Panchayatnama Ex.Ka.2 5 Charge-Sheet Ex.Ka 7 6 Site Plan with Index Ex.Ka.8 7 Recovery memo of Blood stained & plain earth Ex.Ka.9 8 Recovery memo of ‘Takora’ Ex.Ka.10 8. At the end of the trial, after recording the statements 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 accused as mentioned above. 9. Learned counsel for the appellant in the beginning contended that this is a case of acquittal, however, in alternative he has submitted that injuries were caused by using blunt side of the axe and not the sharp edge. The accused had pleaded that he was mentally ill and had to be kept in chains, the same part is not accepted by the court below. It is further submitted by learned counsel for the appellant that conviction is based on presumption and is bad as the appellant had no intention to do away with the deceased. Learned counsel for the appellant has relied on the following authoritative judgments of the Apex Court:- (i) Criminal Appeal No. 4345 of 2014 (Nafa Singh Vs. State of U.P.) decided on 10.02.2023; (ii) Criminal Appeal No. 5657 of 2011 (Santosh Vs. State of U.P.), decided on 22.02.2021; (iii) Criminal Appeal No. 1838 to 840 of 2019 2022 0 Supreme (SC) 564 decided on 12.07.2022. (iv) Criminal Appeal No. 923 of 2011 arising out of S.L.P. (Crl.) No. 8847 of 2009 decided on 13.04.2011 to contend that this is case of clear acquittal/if at all offence is made out it is under Section 304 (1) of I.P.C. 10. Learned A.G.A. has submitted that the statement under Section 313 Cr.P.C is totally unreliable. It is further submitted that it was a premeditated murder as she was hurt by the accused-appellant and his brothers and second wife to take away the given land. 11. Learned A.G.A. has submitted that the statement under Section 313 Cr.P.C is totally unreliable. It is further submitted that it was a premeditated murder as she was hurt by the accused-appellant and his brothers and second wife to take away the given land. 11. On hearing the arguments advanced by the learned counsel for the parties, two moot questions are to be addressed by us namely whether the death was homicidal death and whether the offence would be punishable under Section 302 or 304 Part I or Part II or Section 304 B of Indian Penal Code. Before sifting the evidence, it is relevant here to discuss the law pertaining to culpable homicide amounting to murder, culpable homicide not amounting to murder and the dowry death. Section 299 of the Indian Penal Code, which reads 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." 12. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts loose 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 is 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 if the act by which the death is caused is done. 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; 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. 13. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention that their act would cause bodily harm to the deceased but did not want to do away with the 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. 14. This takes us to the alternative submission of learned counsel for the appellants 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. 15. 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 subculture 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 subculture 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 [11] rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'interrorem' 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." 16. '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. 17. 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. 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. 18. 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. 19. 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. 20. The evidence on record will not permit us to accept the submission of learned counsel for the appellant that it is a case of acquittal rather it was a homicidal death proved by the evidence. 21. In view of the above, we hold that the accused has committed culpable homicide not amounting to murder. The accused is punished to undergo rigorous imprisonment for 10 years and fine of Rs.5000/-which should be paid within four week’s of his release, if not paid default sentence of three months. If 10 years' incarceration is over, the Jail authority would release the accused if not wanted in any other offence. 22. This appeal is partly allowed. The judgment and order by the learned Sessions Judge shall stand modified to the aforesaid extent. Record and proceedings be sent back to the Court below forthwith.