Allahabad High Court
Ashok vs State Of U.P. on 4 January, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- CRIMINAL APPEAL No. - 7842 of 2017 Appellant :- Ashok Respondent :- State of U.P. Counsel for Appellant :- Arun Kumar Tripathi,Shashank Maurya Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Per Mohd. Azhar Husain Idrisi, J.)
1. Heard Sri K.K. Singh, learned Advocate appearing for Sri Shashank Maurya, learned counsel for the appellant and Sri Nagendra Kumar Srivastava, learned A.G.A. for the State.
2. Though learned counsel for the appellant has made submissions to press upon the bail application on the ground that the appellant has been incarcerating in jail since 2012 and there possibility of disposal of the appeal in near future is very bleak. As far as bail is concerned, we have gone through the record, the judgment impugned and the factual data, however, having regard to the submissions made by the learned counsel for appellant and his period of incarceration, in the interest of justice, it will be appropriate that appeal itself be heard and decided finally on merits. Accordingly, we proceed to decide this appeal finally.
3. This appeal challenges the judgment and order dated 5.8.2015 passed by Special Judge D.A.A./Additional Sessions Judge, Room No.3, Farrukhabad in Sessions Trial No.234 of 2012 (State vs. Ashok) whereby the learned Sessions Judge has convicted accused-appellant, Ashok, 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 one year's simple imprisonment.
4. Succinctly, the facts of prosecution story are that a first information report has been lodged on 19.8.2012 at about 13.10 A.M. against the accused/ appellant Ashok under sections 304 IPC by the informant Smt. Suneeta, for the murder of her husband, divulging the fact that the complainant in association with her husband Sikandar and her two kids Preeti and Vishal, was accumulating sand on the roof of her house. Her real Devar (husband's brother) Ashok, who was having his house just contiguous to her house, intercepted stating that not a single particle of sand should come on his side. On this issue, he started abusing in filthy language and casting threats and intimidation to life and property. The husband of the complainant proceeded to call his father from his field. The accused appellant could not digest his anger and ire and chased him from behind. The complainant, her daughter (Preeti) and her son (Vishal) went ahead on account of fear apprehending that the accused appellant getting to the victim all alone may attack upon his person. The accused/ appellant and the victim reached inside Karaundha garden of Dileep Maurya. There again they ensued querelling and scuffling. The complainant and her children raised shriek and noise and tried to shield the victim. The accused/ appellant (Ashok) was equipped with a Takora (Axe) in his hand, hit the husband of the complainant Sikander, from back side. As a result of which victim sustained fatal injuries on account of piercing the axe in his head. The victim fell down on the ground in a serious condition and the accused appellant fled away from the place of occurrence. The complainant with the help of Vinod, (another brother of victim and the assailant) brought the injured Sikandar at the Lohiya Hospital, Farrukhabad and admitted him there. The injured was examined in the hospital. Thereafter he was referred for treatment at Kanpur. While proceeding to Kanpur, in the way, a little ahead of Kannauj he succumbed to injuries. The corpse of Sikander was brought back to Lohiya Hospital and kept inside the mortuary. On the basis of a writen application (Ext. Ka- 1) by complainant. Case Crime No. 236 of 2013, under Section 304 I.P.C. was registered at P.S. Maudarwaja, Farrukhabad. The details of the incident was entered in the chick FIR (Ext. Ka- 9) and the same was entered in general diary (G.D.) the corbon copy of the same was prepared. The initial investigation was entrusted to S.I. Jag Mohan Singh.
5. On investigation being put into motion the investigating officer recorded the statement of witnesses, prepared site map, gathered from the place of occurrence, in the presence of witnesses, blood stained and plain soil and prepared memos for the same. The accused/ appellant was taken into police custody on 19.08.2012 and his statement was recorded on 19.8.2012 at about 5.00 p.m. The statement of the accused appellant was recorded in police custody. During the course of recording his statement, he unfolded that the axe used in executing the alleged crime was hidden by him beneath a tree in Karaundha garden. On his disclosure, he was taken to the said garden and in the presence of witnesses Balbir and Dhaniram, the said axe (Physical Ext. 1) was discovered at the pointing of the accused/ appellant, after excavating beneath a tree at Karaundha garden. The blood was saturated on the side of edge and the soil was also stuck in the axe at some places. The description of the said axe was scribed in the recovery memo (Ext. Ka- 5) on which the signature of the witnesses were obtained. Recovery memo was prepared by I.O. The investigation officer also prepared site map (Ext. Ka- 6) of the place of recovery.
6. The information about the death (Ext. Ka.15) of the deceased was received from Lohiya Hospital on 19.8.2012. The inquest (Ext. Ka.11), of the deceased Sikander was conducted on 19.8.2012 at 12.30. According to the opinion of the witnesses of the inquest, the death of victim Sikander happened on account of fatal injuries inflicted on his head. However, to know the real cause of death, it is necessary to conduct post-mortem of the deceased body. Therefore, after carrying out the necessary formalities including handing over of letter of C.M.O (Ext.Ka.12), Photo Lash (Ext.Ka.13), Lash Challan (Ext.Ka.14), etc., the body of the deceased Sikander was duly wrapped in the cloth and sealed and taken to the mortuary for autopsy. The documents concerned, were handed over to Constable 663 Ram Nazar and Constable 707 Pratap Bhan. The post mortem of the deceased Sikander was conducted on 19.8.2012 at about 3.00 p.m. by doctor V.V. Pushkar. The post mortem report (Ext. Ka. 2) of the deceased was prepared by the Dr. V.V. Pushkar.
7- Later investigation was transferred to 2nd Investigating Officer S.I. Anoop Kumar. After due investigation and collecting the credible and clinching material and evidence showing the complicity of the accused/ appellant, the charge sheet (Ext. Ka.8) under sections 304 IPC was submitted by Investigating Officer (I.O.) before the learned Chief Judicial Magistrate Farrukhabad, who took cognizance of the offence under section 304 IPC. on 09.10.2012. Since the offence was exclusively triable by the court of Sessions, hence committed to the Court of Sessions Farrukhabad. The learned Court of Sessions transferred it, to the court of Special Judge (D.A.A.) Farrukhabad, for trial.
8. On 05.02. 2013 the learned Additional Sessions Judge framed charge, against the accused/ appellant under section 304 IPC. Later on 13.12.2013 an alternative charge under Section 302 I.P.C. was also framed. Both the charges were read over and explained to accused/ appellant. He pleaded not guilty and claimed to be tried.
9. To bring the charges home, the prosecution examined as many as eight witnesses who are follows:-
1Smt. Sunita PW1 2 Preeti PW2 3 Dr. V.V. Pushkar PW3 4 Vishal PW4 5 S.I. Jagmohan PW5 6 S.I. Anoop Kumar PW6 7 HCP 174-Ishwar Dayal PW7 8 Constable Dhanpal Singh PW8
10. In support of ocular version, following documents were also filed and proved:-
Sl.No. Particulars Exhibit No. Proved by 1 Written Report (Tahrir) Ex.Ka.1 P.W. 1 2 Postmortem Report Ext. Ka. 2 P.W. 3 3 Site Plan - place of occurrence Ex.Ka.3 P.W. 5 4 Recovery memo blood stained and plain soil Ex.Ka. 4 P.W. 5 5 Recovery memo of the weapon of crime Ext. Ka. 5 P.W. 5 6 Site plan place of recovery Ext.Ka. 6 P.W. 5 7 Arresting memo of accused Ext. Ka. 7 P.W. 5 8 Charge-sheet Ext. Ka. 8 P.W. 6 9 Chik F.I.R.
Ext. Ka.- 9 P.W. 7 10 Carbon copy kaimi G.D. Ext. Ka.-10 P.W. 7 11 Panchayatnama Ext. Ka.-11 P.W. 8 12 Letter of request to C.M.O. Ext. Ka. 12 P.W. 8 13 Photo dead body Ext. Ka. 13 P.W. 8 14 Details of the deceased Ext. Ka. 14 P.W. 8 15 Death information by the hospital Ext. Ka. 15 P.W. 8 16 Arresting G.D. Ext. Ka. 16 P.W. 7 17 Weapon used in committing offence (Axe) Physical Ext.1 P.W. 5
11. On completion of prosecution evidence, the statement of the accused under Section 313 of Cr.P.C. was recorded wherein he stated that statement of witnesses are false and untrue, he pleaded innocence and taken the defence of enmity for false implication in a manufactured false case. The defence has not adduced any evidence.
12. After hearing arguments on behalf of prosecution and the defence, the learned Additional Sessions Judge convicted the accused/ appellant as mentioned above vide judgement and order dated 05.08.2015. Aggrieved by the said judgement the accused appellant preferred the present appeal.
13. In order to deal with the present appeal, it is pertinent, first, to analyse the prosecution evidence. Prosecution has examined three witnesses of facts namely P.W.1 Smt. Suneeta, who is informant and eye-witness, Pw- 2 Preeti and Pw- 4 Vishal who are also the eye witnesses of facts.
14. In her examination Pw- 1 Smt. Suneeta has stated on oath that she, in association with her husband Sikander and her two children Pw- 2 Preeti and Pw- 4 Vishal, was accumulating sand on the roof of their house. Her Devar (brother of her husband) accused/ appellant Ashok, who was having his house adjacent to her house, intercepted stating that not a single particle of sand should come on his side. On this issue, he started abusing them in filthy language, casting threats and intimidation to their life and property. Her husband proceeded to call his father from the field, but the accused could not digest his anger and ire and followed him. The complainant, her daughter Preeti and son Vishal went ahead on account of fear apprehending that the accused appellant getting the victim all alone, may attack upon his person. The accused appellant and the victim reached inside Karaundha garden of Dileep Maurya, there again the accused appellant and her husband Sikander ensued querelling and scuffling. The complainant and her children raised shriek and noise and tried to shield to the victim. The accused appellant (Ashok) was equipped with Takora (Axe) in his hand, hit the Sikander from his back side on his head. He gave three blows of the axe on his head. Piercing axe in these injuries. As a result of which victim sustained fatal injuries in his head. He fell down on the ground in a serious condition and the accused/ appellant fled away from the place of occurrence, extending threats and intimidation to them. The complainant, with the help of Vinod, her another Devar P.W. 1, brought the injured at the Lohiya Hospital Farrukhabad. The injured was examined there and later referred to Kanpur for treatment. While proceeding to Kanpur, in the way a little ahead of Kannnauj, the victim succumbed to his injuries. The corpse of the deceased Sikander was brought back to Lohiya Hospital. The panchnama of deceased Sikander was conducted there. The complainant got scribed on a paper the information about incident, whereupon her thumb impression was obtained. She proved the Tahrir (written complaint) as Ext. Ka- 1. The I.O. had visited the place of occurrence on her discloser, she aided. And inquest of her husband was conducted at Lohiya Hospital, Farrukhabad.
15. Pw- 2 Preeti and Pw- 4 Vishal are the children of the deceased aged about 16 years and 12 years at the time of recording their evidence in the court respectively. They stated that they were present at the scene of occurrence at the time of incident at about 6.30 a.m on 19.08.2012. Some quarrel had taken place between their father and uncle Ashok on the issue of collection of sand on the roof, whose house is adjacent to their house. The uncle objected the accumulation and threatened that not a single particle of the sand should come towards his side. Thereafter their father went to call his father (their Baba) from the field. They and their mother chased their father on the apprehension that the uncle Ashok may getting to the victim all alone, may attack upon his person. Ashoka followed their father with and Takora, when they reached Karaundha garden of Dileep Mauriya there again Ashoka and their father Sikander ensued quarreally and scuffling. They raised shriek and noise to shield their father. He gave three blows of axe piercing in the head of their father from the back side. As a result of which their father sustained three fatal injuries in the head. He fell down and uncle Ashok fled away there from. Their mother with the help of uncle Vinod carry their father to the hospital to Ram Manohar Lohiya Hospital, Farrukhabad for treatment. Where from he was sent to Kanpur but in the way he died.
16- The learned counsel for defence throughly cross-examined P.W. 1 Sunita, P.W. 2 Preeti and P.W. 4 Vishal. In their cross-examination all the witnesses reiterated that all of them were present at the place of occurrence at the time of incident. They are eye witnesses of the occurrence. P.W. 1 stated that when her husband left his house the accused followed him with a Takora. Anticipating the apprehension that on getting the deceased all alone may attack upon the deceased. So all of them also followed the deceased, when they reached in the Karaundha Garden there held scuffle between the accused and the deceased. During the scuffle accused gave three blows with the axe on the head of the deceased. She tried to shiled her husband. Her husband fell down and Ashok ran away with the axe. She with help of her dewar Vinod and others took her husband from the scene of incident to Lohiya Hospital. Her husband was bleeding from the head. He died in the way to Kanpur near Kannauj. She saw the accused running at a distance of four sticks. She and her children did not following the Ashok because he had axe in hand. She denied the suggestion that she was not present at the time of occurrenc at the spot. She reached at 11.00 o'clock with the application at the Police Station. Thereafter, she went to the Hospital where her husband's dead body was kept. She had both the children with her and they saw the accused hitting the head of the deceased with an axe. PW. 2 and PW. 4 also corroborated the statement P.W. 1. No major contradictions were found in their statement.
17. Thus, all the above three witnesses of fact proved their presence at the place of occurrence at the time of incident. Their statements establishe that incident occured on the issue of collecting sand on roof and that the accused inflicted three fatal blows of Takora (axe) from the back on the head of the deceased and he died due to these fatal injuries.
18. In corroboration of the prosecution case, prosecution has also examined Pw- 4 Dr. V.V. Pushkar. The doctor stated on oath that he conducted post mortem of Sikander (deceased) on 19.8.2012 at about 3.30 p.m. The dead body was brought in a sealed cover by constable 663 Ram Nazar and 7 07 Home Guard Pratap Bhan. The autopsy of the deceased Sikander was conducted after tallying the seal and receiving of the concerned letter and document.
19. (i)- Ante-mortem injuries;- On the post mortem, following ante mortem injuries were found on the person of deceased Sikander-
1- Incise wound 11 cm x 4 cm x cranial cavity deep over left side of head cm above and behind the left ear. Brain matter coming out. Left parietal & occipital bone cut fracture.
2- Incised wound 10 cm x 2 cm x cranial cavity deep over left side of head, 2cm above from injury no.1 underlying bone cut ,fracture, meningis and brain.
3-Incised wound 7 cm x 1 cm x bone deep over left side of head.,3 cm above from the injury no.2 underlying bone cut fracture.
(ii)- As per doctor's statement, after death, rigor mortis was present over the entire limbs. The body was of average built. Mouth and eyes were closed. Dressing material was present over head. Viggo was present in the right wrist.
(iii)- The doctor opined that the cause of death of Sikander is shock and haemorrhage, as a result of ante mortem injuries.
(iv)- P.W. 3 the Dr. V.V. Pushkar also stated that the Postmortem Examination Report was prepared by him in his own writing and signature. He proved P.M.R. as Ext. Ka. 2 and was sent to S.P. Farrukhabad and two others.
(v)- It was also endorsed that aforesaid injuries on the person of Sikander had come on 19.8.2012, by the incising of sharp edge weapon.
20. Thus, medical evidence has supported the ocular evidence and the prosecution case.
21. P.W. 5 Investigating Officer S.I. Jag Mohan Singh has stated that on the disclosure the accused in his statement under Section 161 Cr.P.C. the Takora (axe), weapon used in the incident was recovered beneath a tree in Karaundha Garden, on the pointing of the accused, in the presence of the witnesses Dhani Ram and Balveer, during examination in the court when the weapon was produced he stated that it is the weapon which he recovered on pointing of the accused in Karaundha Garden. This discovery of the fact is relevant and admissible in evidence under Section 27 of Indian Evidence Act. He proved the axe as physical Ext. No. 1.
22. Pw- 7 Ishwer Dyal has proved chick FIR as Ext. Ka- 9. He also proved the carban copy of the G.D. as Ext. Ka- 10 and request letter for postmortem and other papers sent along with seald cover dead body for postmortem. Ext. Ka- 11 to Ka- 14 were also proved by him.
23. Pw- 5, S.I. Jag Mohan Singh the first I.O. of the case. He prepared site plan as Ext. Ka- 3. He also collected blood stained and plain soil and prepared a memo Ext. Ka- 4. He also arrested the accused near Hathiyapur Railway crossing. The arresting memo was also prepared by him which he proved as Ext. Ka- 7. He further stated that he in the presence of witnesses Dhani Ram and Balbir recovered the axe from the garden of Karaundha at the pointing out of the accused. He proved the memo of recovery of axe as Ext. Ka- 5 and also the axe as physical Ext. Ka- 1 in his examination he further stated that he has prepared map of the place of occurrence and place of recovery as Ext. Ka- 3 and Ka- 6. He stated that afterwards the investigation was transferred to Pw- 6 S.I. Anoop Kumar Tiwari.
24. P.W. 6 Anoop Kumar Tiwari stated that he taken over the investigation from P.W. 5 Jag Mohan Singh. After completion of the investigation, he filed charge-sheet which he proved as Ext. Ka- 8.
25. The learned counsel for appellant argued that the witnesses of facts are related to deceased and thus interested witnesses. It is next argued that there were other witnesses also like Vinod etc. available but prosecution did not examined them. Therefore, the testimony of the prosecution witnesses is unworthy of credit, learened A.G.A. refuted the argument. In this behalf it may be mentioned, it is true that P.W. 1 Sunita, P.W. 2 Kumari Preeti and P.W. 4 Vishal are wife, daghter and son of the deceased Sikander, but, it may be mentioned that they are not only related to the deceased, but also related to the accused/ appellant. However, nothing could be shown by the accused/ appellant that they were nurturing animus and grudge agianst the accused, as such their testimony cannot be discorded merely because of their relationship with the deceased.
26. The learned trial court rightly believed the evidence of prosecution witnesses as the Apex Court in Appa Bhai Vs. State of Gujarat A.I.R. 1988 S.C. 696 and Ashok Kumar Chaudhary Vs. State of Bihar 2008 (61) ACC 972, has propounded that in the absence of any independent witness, evidence of related witness could not be discorded. If, the presence of the witness at the time of incident is established by evidence, there testimony cannot be discorded on the basis of their being member of the family of the deceased. The proseuciton has established that the witnesses examined were present at the scene of occurrence at the time of incident and there witnessed accused inflicting three blows of axe from back side on the head of the deceased Sikandar in the garden of Dileep Maurya.
27. Even the testimony of P.W.2 (Priti) and P.W.4 (Vishal). the minor daughter and son of the deceased Sikander was sufficient to prove the guilt against the accused appellant as they in their natural course were capable of understanding the incident, gravity as well as gravamen of the occurrence and were capable of understanding the situations and questions put to them. Hence, the corroboration of such evidence of minors (P.W.2 & 4) with other clinching and trustworthy evidence cannot be ignored. The evidence of minors (P.W.2 and P.W. 4) inspires confidence divulging the incident in a natural and simple manner there has been no inconsistency in the cross-examination of prosecution witnsses 1, 2 and 3 they had narrated the prosecution version in a natural and intrinsic manner without any embellishment.
28. Besides, there is no reason that the witnesses, who were closed relation of deceased Sikandar, would falsely implicate the accused/ appellant, leaving the real culprit. Nothing tangible could be elicited from the evidence of the witnesses in the cross-examination by which the prosecution version could be doubted. Their evidence is trustworthy, reliable and free from all taints and flaws. It is a established law that quality and not the plurality of witnesses are required to prove a fact. The dispensation of justice would be affected and hampered, if, number of witnesses are to be insisted upon. Moreover, Vinod was not an eye witness of the occurrence. He reached at the place of occurrence after the incident was over. So, his non examination as a witness do not affect proseuction case at all. Thus, the learend trial court has rightly accepted the proseuction evidence holding the accused/ appellant guilty of the offence killing the deceased.
29. It may be mentioned that ocular evidence of the prosecution is supported by the medical evidence on record. P.W. 3 Dr. V.V. Pushkar in his cross-examition stated that three encised wound over the head of deceased there was a pool of blood on the person of the victim and victim was succumbed to his injuries due to shock and hamerouge as a result of ante-mortem injuries caused by a sharp cutting weapon. Moreover, the weapon used in the incident was recovered on the basis of the disclosure of the accused in his statement in the police custody. This part of the statement of the accused was relavant under section 27 of the Indian Evidence Act. It was on his instance the weapon (axe) was recovered in front of the witnesses from Karaundha garden hidden beneath the tree. The weapon was exhibited before the court as physical Ext. 1. The formal witnesses chik and G.D writter and investigating officer also corroborated the prosecution case.
30. From the facts and circumstances of the cases it emnates that the crime had been committed in a very bruttal manner, multiple injuries were inflicted on the vital part of the victim the testimony of the witnesses are trustworthy and reliable. The defence has failed to explain as to how victim received the grave and grim injuries on his vital part of the body (head), except as mentioned in the prosecution version. Thus, the evidence of the prosecution witnesses is consistent with the hypotheis of the guilt of the accused appellant and no other hypothesis. The learned Special Sessions Judge passed the order of conviction and sentence after appreciting the entire evidence on record and has rightly arrived at the conclusion that it was the accused/ appellant who alone committed the serious offence of causing fatal and ghastly injuries to the victim. Thus, the impugned judgment may be sustained and uphold to this extents.
31. The learned counsel for appellant has submitted that the incident occurred at the spur of moment which arose due to sudden quarrel between two brothers. It is submitted that the accused had not premeditated to do away with the deceased.
32. In alternative, it is also 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.
33. 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.
34. We have considered the ocular evidence of witnesses and the Postmortem report which states that the injuries on the body of the deceased were cause of death and that it was homicidal death. The medical evidence has also supported the ocular evidence. The statement of the witnesses are consistent. There are no major contradictions in their statements and minor contradictions here and there are to be ignored as they did not injure prosecution case at all. Although, all the three witnesses of facts are related to each other and with the deceased but their testimony is trustworthy, as they were the eye-witnesses and there is no reason as to why they would falsely implicate the accused. Accused/ appellant has failed to prove any enmity with the deceased or witnesses. Thus, the evidence adduced by prosecution has established the prosecution case beyond reasonable doubts.Therefore, we concur with the findings of the trial court.
35. 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?
36. 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."
37. 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.
38. From the upshot of the aforesaid discussion, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention that his 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. (2011) 5 SCR 300 which have to be also kept in mind.
39. 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.
40. Now, 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.
41. 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 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."
42. The term '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.
43. 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. 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.
44. 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.
45. 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.
46. In view of the above, the accused-appellant is sentenced to 10 years rigorous imprisonment.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." Fine is reduced to Rs.5000/-. However, the default sentence is maintaned. If 10 year's sentence is already over, the accused-appellant be set free forthwith, if not wanted in any other case. He will deposit the fine within four weeks from the date of release and in case fine is not deposited he will be re-incarcerated to undergo the sentence of default.
47. Resultantly, the appeal is partly allowed. Judgment and order dated 05.08.2015 passed by the learned Special Judge D.A.A./ Additional Sessions Judge Court No. 3, shall stand modified to the aforesaid extent. Record be sent back to the trial court forthwith.
Order Date :- 4.1.2023 DKS/ Israr