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2023 DIGILAW 528 (ALL)

Samharu Gupta v. State of U. P.

2023-02-22

AJIT SINGH, KAUSHAL JAYENDRA THAKER

body2023
JUDGMENT : 1. Heard Sri Karunesh Pratap Singh, learned counsel for the appellant and learned A.G.A. for the State. 2. Though learned counsel for the appellant has made submissions as far as bail is concerned, we have gone through the record, the judgment impugned and the factual data and by consent of learned A.G.A. we proceed to decide this appeal finally where the accused-appellant is in jail for more than seven years and he has one daughter to look after. 3. This appeal challenges the judgment and order dated 3.12.2021 passed by Additional Sessions Judge/Special Judge, P.A. Act/U.P.S.I.B., Gorakhpur in Sessions Trial No.129 of 2016 (State vs. Samharu Gupta) whereby the learned Sessions Judge has convicted accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.50,000/-and, in case of default in payment of fine further to undergo two years' imprisonment. 4. Brief facts as culled out from the record are that the brother of the deceased made a complaint before the Police Station Pipraich, Gorakhpur stating therein that her sister who was married with accused-appellant 21 years ago was killed by her husband by Shovel (Fawda). It was also stated that there were quarrel between both of them due to suspicion of illicit relation of deceased. The deceased died while on the way to hospital. On the basis of his complaint, First Information Report was registered as Case Crime No. 328 of 2015. 5. On investigation being put into motion, 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 him to Court of Sessions as prima facie charge was under Section 302 of IPC. 6. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 11 witnesses who are as follows: 1 Chandrabhan PW1 2 Smt. Vimla Devi PW2 3 Ritu Gupta PW3 4 Arun Gupta PW4 5 Madhuri Devi PW5 6 Ganga Prasad PW6 7 Guddu Gaud PW7 8 Akhilesh Kumar Upadhyaya PW8 9 Prabhatesh Kumar PW9 10 Nirmal Kumar Yadav PW10 11 Dr. Dhananjay Kushwaha PW11 7. In support of ocular version following documents were filed and proved: 1. Dhananjay Kushwaha PW11 7. In support of ocular version following documents were filed and proved: 1. F.I.R. Ex.Ka.13 2 Written Report Ex.Ka.1 3 Postmortem Report Ex.Ka.3/1 & 3/2 4 Panchayatnama Ex.Ka.11 5 Charge-sheet Ex. Ka.7 6 Site Plan Ex.Ka.5 7 F.S.L. Report Ex.Ka.6 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-appellant as mentioned above. 9. It is submitted by learned counsel for the appellant that the incident occurred at the spur of moment which arose due to sudden quarrel between husband and wife. It is submitted that the accused had not premeditated to do away with the deceased. 10. In alternative, it is submitted that at the most, the death can 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 under Section 302 of IPC, then the accused may be granted fixed term punishment of incarceration as the death is not a gruesome act on part of accused. 11. 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 300 of IPC are rightly held to be made out by the learned Sessions Judge who has applied the law to the facts in case. 12. 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. 13. This takes us to the next question whether it was a perpetrated murder or would it fall within any of the exceptions to Section 300 of IPC? 14. It would be relevant to refer to Section 299 of the Indian Penal Code, which reads as under: “299. 13. This takes us to the next question whether it was a perpetrated murder or would it fall within any of the exceptions to Section 300 of IPC? 14. It would be relevant to refer to 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." 15. 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. 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. 16. Out of anger he had given a single blow to his wife. The evidence of P.W.3 also goes to show that incident occurred without premeditation. 16. Out of anger he had given a single blow to his wife. The evidence of P.W.3 also goes to show that incident occurred without premeditation. The deceased resented to the idea of selling field given by the father and there was hot discussion about the same and in anger the accused gave single blow to his wife. 17. From the upshot of the aforesaid discussion, it appears that the death caused by the accused was not premeditated. Accused though had knowledge that his act would cause bodily harm to the deceased he 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. 18. 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 come to the definite conclusion that the death was not premeditated. The precedents discussed by us would permit us to uphold our finding which we conclusively hold that the offence is not punishable under Section 302 of I.P.C. but is culpable homicide not amounting to murder, punishable U/s 304 (Part I) of I.P.C. 19. This takes this Court to the quantum of sentence. In this regard, we have to analyse the theory of punishment prevailing in India. 20. 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 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. 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. 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. 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. 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. 25. In view of the above, the accused-appellant is sentenced to the seven years of imprisonment as he has undergone more than seven years of incarceration and he has one daughter to look after. Fine is substituted by four months' imprisonment of incarceration which would start after seven years. The accused-appellant be set free forthwith, if he has served the sentence imposed by this Court and if he is not wanted in any other case. 26. 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 Court below forthwith.