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2023 DIGILAW 955 (ALL)

Aslam Noor Khan v. State of U. P.

2023-04-07

KAUSHAL JAYENDRA THAKER, UMESH CHANDRA SHARMA

body2023
JUDGMENT : Heard Sri Jugal Kishor Khanna assisted by Sri Amit Khanna, learned counsel for the appellants in both these appeals and the learned AGA for the State in both these appeals. 2. These appeals challenge the judgment and order dated 19.2.2018 passed by Special Judge (SC/ST Act)/Additional Sessions Judge, Court No. 2, Farrukhabad in Sessions Trial No. 91 of 2014 (State v. Aslam Noor Khan and another) convicting accused-appellants under Sections 452, 304/34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced them to undergo imprisonment for life with fine of Rs. 10,000/- under Section 304/34 of IPC and in default of fine further to undergo six months additional imprisonment each and they have been also convicted for three years rigorous imprisonment each under Section 452 IPC and fine of Rs. 5,000/- and in case of default of payment of fine, further to undergo three months additional imprisonment each. 3. Factual scenario as culled out from the record and the judgment of the Court below are that both the accused tried to do away with the wife of informant by setting her ablaze. The incident took place on 4.11.2013 at 06:00 p.m. in the evening when the deceased requested the accused to return/leave the land belonging to the deceased as they were hand to mouth. This request caused anger in mind of both accused. Aslam Noor Khan started using filthy language. The deceased went in her house, the two followed her and poured kerosene on her and set her ablaze. 4. The post-mortem report shows that there were ante-mortem burn injuries on face, neck, chest, arms and both the legs. The death was due to septicemic shock as a result of ante-mortem burn injuries. The death occurred on 14.11.2023 namely after 10 days of the incident. 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 them to Court of Sessions as prima facie they were to be tried for offences committed under Sections 304, 452, 504 IPC read with Section 34 IPC. 6. On being summoned, the accused persons pleaded not guilty and wanted to be tried. The charges were framed for conviction of offences under Sections 452, 504, 304 read with Section 34 of IPC. 6. On being summoned, the accused persons pleaded not guilty and wanted to be tried. The charges were framed for conviction of offences under Sections 452, 504, 304 read with Section 34 of IPC. The trial started and the prosecution examined 10 witnesses who are as follows : 1 Shahnawaj Khan PW-1 2 Yusuf Khan PW-2 3 Ajit Pratap Singh PW-3 4 Manish Kumar PW-4 5 Dr. Kalka Prasad PW-5 6 Khush Nawaj PW-6 7 Rukhsar PW-7 8 Virendra Kumar Yadav PW-8 9 Mahendra Pal Singh Chauhan PW-9 10 Rajendra Prasad Chaudhari PW-10 7. In support of ocular version following documents were filed : 1 FIR Ex.Ka-2 2 Written Report Ex.Ka-1 3 Dying Declaration Ex.Ka-12 4 Post-mortem Report Ex.Ka-8 5 Panchayatnama Ex.Ka-4 6 Charge-sheet Ex.Ka-9 7 Site Plan Ex.Ka-10 8. At the end of the trial and after recording the statement of the accused under Section 313 CrPC and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned above. 9. It is submitted by learned counsel for the appellants that the witnesses of facts have not supported the prosecution and therefore, the accused are entitled to be acquitted. In support of his submission learned counsel has relied on the decisions in G.V. Siddhramesh v. State of Karnataka, (2010) 3 SCC 152 ; Hari Om v. State of Haryana and another, (2014) 0 Supreme (SC) 783; Ravi Pratap Singh v. State of U.P., 2020(9) ADJ 208 (DB); Chhaganbhai Limjibhai Palas v. State of Gujarat, Criminal Appeal No. 806 of 2011; Raju @ Rajeev v. State of U.P., Criminal Appeal No. 4701 of 2013; Shyam Mishra v. State of U.P., 2022(9) ADJ 322 (DB) and State of U.P. v. Madan Mohan and others, AIR 1989 SC 1519 and has contended that there is faulty charge. The learned counsel for the appellants has submitted that this is a case which does not go beyond Section 304 Part-I or Part-II of IPC. It is submitted that there was quarrel between accused and deceased, there was no intention on part of the accused to do away with the deceased. It is further submitted that the dying declaration should not have been relied by the learned Trial Judge, reason being, the officer who had noted the dying declaration was not examined on oath. 10. It is submitted that there was quarrel between accused and deceased, there was no intention on part of the accused to do away with the deceased. It is further submitted that the dying declaration should not have been relied by the learned Trial Judge, reason being, the officer who had noted the dying declaration was not examined on oath. 10. As against this, learned AGA for the State has contended that the dying declaration is believable. The learned Judge has not committed any error or there is no error which calls for interference by this Court in these appeals. 11. We have heard learned counsels for the parties. The fact that the dying declaration of the deceased was recorded on 5.11.2013 where the deceased categorically mentioned the name of accused appellants to have first beaten her and then set her ablaze. 12. Learned counsel for the appellants has submitted that the deceased died due to burn injuries which she sustained accidentally while cooking food. While going through the dying declaration and the post-mortem report, we cannot accept the submission of counsel for the accused-appellants that it was an accidental death, the accused authored the offence. 13. Therefore, we are of the considered opinion that the learned Judge has not committed any mistake in relying on the dying declaration. In the light of the decision in Govindappa and others v. State of Karnataka, (2010) 6 SCC 533, there is no reason for us not to rely on the dying declaration. The evidentiary value under Section 32 of Evidence Act, 1872 fulfils the contours of acceptance of dying declaration. We are convinced that PW-1 has though declared hostile he has narrated the incident and, therefore, the contention of the counsel that it was an accidental death arising out of accidental burning during cooking in the house belies this fact. The totality of the evidence before us will have to be examined. The finding of fact by learned Additional Sessions Judge that it was a homicidal death and not accidental death is concurred by us and we hold that conviction under Section 304 Part-I IPC has been properly recorded and the terms laid down by Courts are satisfied as discussed herein after. 14. The finding of fact by learned Additional Sessions Judge that it was a homicidal death and not accidental death is concurred by us and we hold that conviction under Section 304 Part-I IPC has been properly recorded and the terms laid down by Courts are satisfied as discussed herein after. 14. The question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellants under Section 302 of IPC 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.'' 15. 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 Sections 299 and 300 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 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. In latest decision in Khokan@ Khokhan (Supra) where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant. 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 and Pardeshiram v. State of M.P., (2021) 3 SCC 238 , will also enure for the benefit of the accused. 17. From the dying declaration of the deceased and the depositions of the prosecution witnesses, it cannot be said that it was premeditated act of the accused. The injuries which were caused were burn injuries which show intention coupled with knowledge that man of prudence would know that if somebody is set ablaze, he/she would suffer severe injuries or death may also occur. The investigation were also carried under Section 304 of IPC and charge-sheet was also led under Section 304 of IPC. Unfortunately, the charges framed were for higher offence. Burn injuries were on vital parts of the body of the deceased and it was sufficient in the ordinary course of nature to cause death but would fall in exceptions of Section 300 of IPC. 18. Unfortunately, the charges framed were for higher offence. Burn injuries were on vital parts of the body of the deceased and it was sufficient in the ordinary course of nature to cause death but would fall in exceptions of Section 300 of IPC. 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 others v. State of Maharashtra, (2011) 4 SCC 250 and in the case of B.N. Kavatakar and another v. State of Karnataka, 1994 SUPP (1) SCC 304, we are of the considered opinion that it was a case of homicidal death not amounting to murder and the offence is punishable under Section 304 Part I of I.P.C. 19. 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 to 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 v. State of M.P., (2011) 5 SCR 300 , which have to be also kept in mind. 20. However 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. 21. In Mohd. Giasuddin v. 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 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 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. 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.'' 22. 'Proper Sentence' was explained in Deo Narain Mandal v. 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. 23. In Ravada Sasikala v. State of A.P., AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel v. State of U.P., (2010) 12 SCC 532 , Guru Basavraj v. State of Karnatak, (2012) 8 SCC 734 , Sumer Singh v. Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab v. Bawa Singh, (2015) 3 SCC 441 and Raj Bala v. 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. 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. 24. 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. 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. 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. Therefore, we convert the sentence of 'life imprisonment' to period undergone for both accused appellants. Fine is reduced to Rs. 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. Therefore, we convert the sentence of 'life imprisonment' to period undergone for both accused appellants. Fine is reduced to Rs. 5,000/- under Section 304 IPC and default sentences are maintained. The accused-appellants be set free if not wanted in any other case. However, if fine is not paid, the default sentence will run after the completion of 9th year. 27. In view of the above, both the appeals are partly allowed. Judgment and order passed by the learned Sessions Judge shall stand modified to the aforesaid extent. The records be transmitted to Court below forthwith.