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2023 DIGILAW 511 (ALL)

Vijai Shankar v. State of U. P.

2023-02-21

AJIT SINGH, KAUSHAL JAYENDRA THAKER

body2023
ORDER : 1. Heard Sri Arvind Kumar Kushwaha, learned Advocate assisted by Ms. Pooj and Sri Upendra Kumar Rai, learned Advocates for the appellant and learned A.G.A. for the State. 2. A short prelude about the period of incarceration of accused-appellants and the death of the deceased is necessary. Accused, Vijai Shankar and Smt. Meena Devi, are in jail for more than 12 years and Accused-Chandrawati was also incarcerated before she was released on bail by this Court. The deceased died after a period of 01 month and 07 days. In her Dying Declaration the deceased stated that her mother-in-law and father-in-law have brought her to the hospital and therefore, mother-in-law was granted bail by this Court. The incident occurred because of harassment to her. The court below acquitted the accused under Section 498A but convicted them under Section 304B for life imprisonment. 3. All the three appeals arise out of same incident and challenge the judgment and order dated 14.04.2011 passed by Additional Sessions Judge, New Court No.2, Jaunpur in Sessions Trial No.188 of 2010 (State vs. Vijai Shanker & Others) whereby the learned Additional Sessions Judge has convicted accused-appellants under Section 304B of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced them to undergo imprisonment for life. 4. Brief facts as culled out from the record are that on the basis of complaint of the father of the deceased a First Information Report was lodged under Section 498A, 307 of IPC and Section 3/4 of Dowry Prohibition Act, at P.S. Sarai Khwaja, Jaunpur against the accused with an allegation that accused-persons have set ablaze the daughter of informant by pouring kerosene oil on her. She sustained burn injuries and died during the course of treatment. After her death Section 304 B of was added by the investigating agency. The investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate. The learned Magistrate summoned the accused and committed them to Court of Sessions as prima facie the case was triable by Sessions Court. 5. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried. The investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate. The learned Magistrate summoned the accused and committed them to Court of Sessions as prima facie the case was triable by Sessions Court. 5. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 15 witnesses who are as follows: 1 Savitri Devi PW1 2 Rajesh PW2 3 Neetu Devi PW3 4 Sunil Yadav PW4 5 Meera PW5 6 Rajesh Chandra Srivastava PW6 7 Prakash Kumar PW7 8 Ramesh Kumar PW8 9 Shiv Pratap Singh PW9 10 Dr. Satish Singh PW10 11 Dr. Prabha Shankar Chaturvedi PW11 12 Dr. R.K. Jaiswal PW12 13 Vinod Kumar Singh PW13 14 Santosh Kumar Singh PW14 15 Jyoti Prasad Sonkar P.W.15 6. In support of ocular version following documents were filed and proved: 1 F.I.R. Ex.Ka.17 2 Written Report Ex.Ka.1 3 Dying Declaration Ex. Ka. 10/16/11 4 Injury Report Ex.Ka. 12 5 Postmortem Report Ex.Ka.9 6 Charge-sheet Ex. Ka.8 7 Site Plan Ex.Ka.14 7. 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-appellants as mentioned above. 8. It is submitted by learned counsel for the appellants that the incident occurred at the spur of moment which arose due to sudden quarrel and the accused had not premeditated to do away with the deceased. 9. In alternative, it is submitted that at the most, the death can be said to be homicidal death not amounting to murder and punishable under Section 304 II or Section 304 I of I.P.C. If the Court decides that the accused is guilty, then the accused may be granted fixed term punishment of incarceration. In support of his arguments learned counsel for the appellant has relied on the decision passed in Maniben vs. State of Gujarat, 2009 (5) Supreme 700 & decision of this Court in Criminal Appeal No.1030 of 2013 (Sikander and another vs. State of U.P.) decided on 13.7.2022 10. In support of his arguments learned counsel for the appellant has relied on the decision passed in Maniben vs. State of Gujarat, 2009 (5) Supreme 700 & decision of this Court in Criminal Appeal No.1030 of 2013 (Sikander and another vs. State of U.P.) decided on 13.7.2022 10. Per contra, learned A.G.A. for the State submits that there was no grave and sudden provocation from the side of the deceased and that looking to the gruesomeness of the offence and the evidence of prosecution witnesses, this Court should not show any leniency in the matter. It is further submitted by learned A.G.A. that ingredients of Section 304B of IPC are rightly held to be made out by the learned Sessions Judge who has applied the law to the facts in case. 11. We have considered the evidence of witnesses and the Postmortem report which states that the injuries on the body of the deceased would be the cause of death and that it was homicidal death, we concur with the finding of the Court below. 12. The Dying Declaration has to accepted as it is proved and we concur with the Court below in accepting it which shows that the accused have committed the crime alleged against them. 13. Even if we go by the dying declaration, it is clear that the accident occurred without premeditation. The fact that the deceased was taken to hospital and the husband has repented. The deceased died after few days of incident as a result of septicemia and hence the gravity of offence will have to be looked into. Trial Court itself has held that there was no demand of dowry and have exonerated the accused for the charge under Section 498A of IPC. 14. Even if we consider the offence under Section 304B of IPC and concur with the learned Sessions Judge, it is to be seen whether 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. 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 this regard, we have to analyse the theory of punishment prevailing in India. 15. 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. 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. 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. 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. 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 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 judgement 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. 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 judgement 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." 16. In latest decision in Khokan@ Khokhan Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80, where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant and altered the sentence. 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. Decisions 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 as the. 17. 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 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. 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." 18. '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. 19. 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. 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. 20. 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. 21. 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. 22. The accused-appellants, Vijay Shanker & Meena Devi are reported to have undergone 12 years of sentence and therefore, we hold that the period undergone will be sufficient punishment for them. As far as accused-appellant, Chandrawati (mother-in-law of deceased) is concerned, it has come in the Dying Declaration itself that she along with others has taken the deceased to the hospital and looking to her age, the period undergone by her would be sufficient punishment for her. The accused-appellants be set free forthwith, if not wanted in any other case. 23. As far as accused-appellant, Chandrawati (mother-in-law of deceased) is concerned, it has come in the Dying Declaration itself that she along with others has taken the deceased to the hospital and looking to her age, the period undergone by her would be sufficient punishment for her. The accused-appellants be set free forthwith, if not wanted in any other case. 23. In view of the above, the appeal is partly allowed. Judgment and order passed by the learned Sessions Judge shall stand modified to the aforesaid extent. Record be sent back to the Trial Court forthwith.