Allahabad High Court
Hakimuddin vs State Of U.P. on 7 September, 2022
Author: Ashwani Kumar Mishra
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Case :- JAIL APPEAL No. - 33 of 2020 Appellant :- Hakimuddin Respondent :- State of U.P. Counsel for Appellant :- From Jail,Vishesh Kumar Ac Counsel for Respondent :- A.G.A. Hon'ble Ashwani Kumar Mishra,J.
Hon'ble Shiv Shanker Prasad,J.
(Per: Hon'ble Ashwani Kumar Mishra, J.)
1. This jail appeal arises out of judgment and order dated 26.2.2011, passed by Additional Sessions Judge/Special Judge, Chandauli, in Sessions Trial No.84 of 2007 (State Vs. Hakimuddin), arising out of Case Crime No.221 of 2006, Police Station Mughalsarai, District Chandauli, convicting and sentencing the appellant under Section 304 IPC with life imprisonment and fine of Rs.10,000/- and in the event of default of payment of fine to undergo further additional rigorous imprisonment of two years.
2. Shorn of unnecessary details, the brief facts of the present case are that a written report of first informant Jamaluddin (father-in-law of the deceased) was scribed by Anil Kumar Srivastava, as per which the marriage of son of first informant Hakimuddin (accused appellant) was solemnized about 08 years back with Yasmeen Bano, daughter of Mustaq Ahmed (deceased). Out of said wedlock two children were born. Son of the informant however was not in fit mental state and his treatment was being arranged by the first informant and the in-laws of the accused appellant. In the night of 22/23rd July, 2006 at 3.30 am there was a fight between son of the first informant and his daughter-in-law and abuses were heard whereafter the first informant rushed to intervene. All of a sudden, the son of the first informant hit his wife and from the injury so caused she fell. The accused appellant left. First informant called the neighbours and was in the process of arranging medical treatment by when his daughter-in-law died. On the basis of such information given, a first information report was registered at 8.30 am at Police Station Mughalsarai, District Chandauli on 23.7.2006. The place of incident is stated to be the marital house of the deceased.
3. On the basis of aforesaid information the Investigating Officer alongwith police party came to the place of occurrence and a panchayatnama was prepared at 9.40 am. Kamlesh Kanaujia PW-3, Mustaq Ahmed PW-4, Mohd. Naseem, Buddhu and Mahmood Alam were appointed the inquest witnesses. They found the deceased to be average built lady of 28 years and in their opinion her death was homicidal on account of injury caused to her by the accused appellant in a heated state on her head and that postmortem of the dead body be got conducted. The Investigating Officer agreed with the conclusion of the inquest witnesses and accordingly the dead body was sealed and was sent for postmortem.
4. The postmortem report is on record, as per which cause of death is Coma as a result of following head and brain injuries:-
"(1) An incised wound 9.00 cm x 0.5 cm x skin and muscle deep on left side of in front of neck, 8.00 cm above sternal notch and touching to midline.
(2) Abraded contusion 6.00 cm x 1.00 cm on right side in front of neck, 8.00 cm above sternal notch touching to midline.
(3) An incised chaped wound 9.00 cm x 0.5 cm x skull deep on left side of head, 6.00 cm above the left ear and 6.00 cm above left eye brow.
(4) On opening the skull:-
(a) A contusion 12.00 cm x 4.00 cm on head, 10.00 cm above the root of nose.
(b) Contusion 11.00 cm x 4.00 cm on left side head in parietal region, 8.00 cm above and behind the left ear."
5. The investigation revealed that head injury was caused to deceased by a Spade and the weapon of assault was also recovered on 12.8.2006 from the backyard of the accused's house, in respect of which a recovery memo (Ext. Ka-2) was prepared. The Spade was sent for chemical examination and the report of Chemical Examiner dated 23.7.2006 is also exhibited in which the blood found on the Spade was of the same group as that of the deceased. The investigation proceeded in the matter and after recording statement of witnesses under Section 161 Cr.P.C. the Investigating Officer filed a chargesheet against accused appellant on 8.11.2006. The concerned Magistrate took cognizance of the chargesheet and as offence was triable by the court of Sessions committed the matter to the competent Court.
6. The court of Sessions framed solitary charge against the accused appellant under Section 304 IPC after noticing that the accused is not in fit mental state and in a heated state had assaulted the deceased and thereby has committed culpable homicide not amounting to murder, which is punishable under Section 304 IPC. The charge was read out to the accused, who denied it and demanded trial.
7. The prosecution in order to establish the charge has produced the first informant Jamaluddin (PW-1); Alauddin (PW-2) a witness to the recovery of weapon of assault; PW-3 Kamlesh Kanaujia, village pradhan and witness of inquest; PW-4 Mushtaq Ahmed, father of the deceased and witness of the inquest; PW-5 Ravi Kumar, witness to the recovery of weapon of assault; PW-6 Asgari Begum, mother of the deceased. The defence since had admitted the genuineness of police papers during the course of trial, as such none was adduced by the prosecution to establish such documents.
8. PW-1 Jamaluddin is aged 70 years, who had solemnized the marriage of deceased with his son (accused appellant) about 10 years back. He has stated that mental condition of his son was unstable for the last 3-4 years. PW-1 deposed that he was sleeping outside his house in Mandai and that the appellant had left the house 10-15 days prior to the incident. In his cross-examination he has stated that his eyesight is weak and that the villagers obtained his signatures on the blank paper for writing the written report and that he had not seen the appellant assaulting the deceased. He has reiterated that appellant was not present at the place of occurrence when the incident itself occurred. It is also stated that he had not gone to police station to lodge the report and cannot recognize his signatures on the written report. He further stated that the room in which dead body was found was locked from inside and it was opened with the help of others. He has further denied having given statement to the police of having seen any injury on the body of the deceased.
9. PW-2 is the witness of recovery of weapon of assault, who has turned hostile during the course of trial. Similarly PW-3, who is a witness of inquest has also turned hostile. PW-4 is the father of the deceased, who has deposed that his daughter got married to accused appellant and two children namely Azam aged 05 years and Ativa aged two years were born and that he received the information of the incident on Phone. He has further specifically stated that PW-1 informed him that it was the appellant who killed the deceased.
10. In the cross-examination PW-4 admitted that accused appellant was not in fit mental state and was undergoing medical treatment during the last six months. He has further stated that medical treatment was being provided to him by him and also by PW-1. He has specifically denied that the appellant was not in house from 8-10 days prior to the incident. He has also denied the suggestion that anyone else had committed the offence.
11. PW-5 is the witness of recovery of weapon of assault, who has denied the recovery of Spade and has stated that his signatures were obtained on blank papers.
12. PW-6 is the mother of the deceased, who has stated that PW-1 informed her about the incident. She further deposed that PW-1 informed her that accused appellant ran away after committing the crime and that two minor children of the deceased are with her. In her cross-examination she has clearly stated that PW-1 informed her that it was the accused appellant who assaulted the deceased with Farsa and that there had been a quarrel between the appellant and the deceased before the incident.
13. The accused in his statement under Section 313 Cr.P.C. has denied the accusations made against him and has stated that he was falsely implicated.
14. The trial court on the basis of above evidence lead by the prosecution came to the conclusion that the deceased died an unnatural death on account of injuries caused to her on her head by the accused appellant. The trial court has elaborately considered the statement of witnesses adduced during the course of trial and has returned a finding that PW-1 had made a false disclosure in order to save his son.
15. The trial court has relied upon the statements of PW-4 and PW-6 as also the materials placed on record during the trial to come to a conclusion that PW-1 was not a reliable witness and having made a correct disclosure earlier to police and to PW-4 and PW-6 but later retracted in order to save his son. Other witnesses also had turned hostile and did not support the prosecution case as they wanted to save the accused appellant.
16. Although an attempt on behalf of accused appellant is made to contend that the charge of culpable homicide not amounting to murder is not made out against the accused appellant, but having elaborately examined the statement of witnesses and the materials brought on record we find ourselves in absolute agreement with the conclusion drawn by the trial court that the fatal injury to the deceased was caused by the accused appellant and that the offence of culpable homicide not amounting to murder is established against him.
17. We may only add an additional reason for agreeing with the conclusion arrived at by the trial court. It is undisputed that the deceased was in her marital house and her dead body was found within the house. Apart from two minor children it is the accused appellant and PW-1, who were living in the house. Onus, therefore, was upon PW-1 and accused appellant to explain as to how the fatal injury was caused to the deceased. There is no satisfactory explanation put forth by PW-1 or the accused appellant about the manner in which the fatal blow was caused to the deceased. Presumption under Section 106 of the Indian Evidence Act would have to be drawn against the accused appellant and PW-1, since they have not been able to explain as to how the fatal blow was caused to the deceased. PW-4 and PW-6 have otherwise clearly deposed that they were informed by PW-1 that the appellant had assaulted the deceased after a fight between them, which caused the death of their daughter.
18. Upon a careful evaluation of the evidence placed on record we, therefore, endorse the view of the trial court that fatal injury was caused to the deceased by the accused appellant, who assaulted her with Spade. We may also notice that the Spade has been recovered and the report of Chemical Examiner shows that the blood found on Spade matches the blood group of the deceased which is a material evidence supporting the conclusion of guilt of the accused appellant.
19. In light of the above discussions we reject the contention advanced on behalf of the accused appellant that charge of culpable homicide not amounting to murder is not proved against the accused appellant. We, accordingly, hold that prosecution has succeeded in establishing the charge of culpable homicide not amounting to murder against the accused appellant, beyond reasonable doubt, on the basis of evidence adduced by the prosecution.
20. The other ground which is strongly pressed by Sri Vishesh Kumar, who was earlier appointed Amicus Curiae to argue on behalf of accused appellant and Sri Ashish Kumar Gupta, Advocate, who has later been engaged as private counsel for the accused appellant is with regard to quantum of sentence. It is urged by learned counsels for the accused appellant that the material on record clearly proves that accused appellant was not in a fit mental state and was undergoing treatment for his disturbed mental condition. Statements of PW-1, PW-4 and PW-6 have been relied upon in order to submit that it is admitted even to the prosecution witnesses that accused appellant was not in a fit mental state and was receiving medical attention. It is submitted that although no evidence in the form of medical reports etc. exists on record but that would not be material since the charge framed against the accused appellant itself acknowledges that he was not in fit medical condition.
21. In order to consider the above submission it would be appropriate to reproduce the charge read out to the accused appellant by the court of Sessions:-
"प्रथम- यह कि दिनांक 23.07.2006 को समय 3.30 बजे रात ग्राम बहादुर महद् थाना मुगलसराय जिला चन्दौली में वादी मुकदमा के लड़के आप अभियुक्त हकीमुद्दीन जिसकी मानसिक स्थिति ठीक नहीं है ने अपनी पत्नी को आवेश में आकर अपनी पत्नी यासमीन पर हमला कर चोट पहुंचाया, जिसके इलाज की तैयारी करते समय ही उसकी मृत्यु हो गयी। इस प्रकार आपने हत्या की कोटि में न आने वाला आपराधिक मानव वध किया और उसके द्वारा आपने ऐसा अपराध किया जो भारतीय दंण्ड संहिता की धारा 304 के अधीन दण्डनीय है और इस न्यायालय के प्रसंज्ञान में है।
एजद्द्वारा मैं निर्देशित करता हूँ कि आपका विचारण उपरोक्त आरोप पर इस न्यायालय द्वारा किया जायेगा।"
22. On behalf of the appellant it is submitted that trial court has not been just in imposing punishment of life sentence upon the accused appellant since the act of causing fatal injury was not on account of any premeditation or deliberate intent rather it was caused in a heated state at the spur of the moment. It is urged that it is common to find Spade in any agricultural household. Submission is that considering the admitted disturbed mental condition of accused appellant the punishment ought to have been lesser and the award of life sentence is excessive.
23. Learned AGA, on the other hand, submits that the charge of culpable homicide not amounting to murder since is established against the accused appellant, therefore, the punishment of life inflicted upon the accused appellant is fully justified.
24. We have considered the submission with regard to adequacy of punishment to be imposed upon the accused appellant in the facts of the present case. It would be worthwhile to notice the observation of the Supreme Court in the case of Madhavan and others Vs. State of Tamilnadu, reported in (2017) 15 SCC 582, where the principle to be applied for awarding sentence has been summarized in Para 11 to 13 of the judgment which are reproduced hereinafter:-
"11. Notably, the High Court has not considered the issue of quantum of sentence at all, but mechanically proceeded to affirm the sentence awarded by the Trial Court. From the factual position, which has emerged from the record, it is noticed that there was a pre-existing property dispute between the two families. The incident in question happened all of a sudden without any premeditation after PW1 questioned the appellants about their behavior. It was a free fight between the two family members. Both sides suffered injuries during the altercation.
The fatal injury caused to Periyasamy was by the use of thadi (wooden log) which was easily available on the spot. The appellants, on their own, immediately reported the matter to the local police alleging that the complainant party was the aggressor. No antecedent or involvement in any other criminal case has been reported against the appellants. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive.
12. We may usefully refer to the decision of this Court (one of us, Justice Dipak Misra speaking for the Court) in the case of Gopal Singh Versus State of Uttarakhand1 enunciated the necessity to adhere to the principle of proportionality in sentencing policy. In paragraphs 18 and 19 of the said decision, the Court observed thus:
"18. Just punishment is the collective cry of the society.
While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive.
The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a strait-jacket 1 (2013) 7 SCC 545 formula nor a solvable theory in mathematical exactitude.
It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment.
19. A Court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of Court in such situations becomes a complex one. The same has to be performed with due reverence for Rule of the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a-priori notion."
13. Considering the above and keeping in mind the facts of the present case, the nature of the crime, subsequent conduct of the appellants, the nature of weapon used and all other attending circumstances and the relevant facts including that no subsequent untoward incident has been reported against the appellants and the mitigating circumstances, we are inclined to modify the sentence period in the following terms:-
a) The sentence period awarded to appellant nos. 2 and 4 for offences punishable under Sections 147 and 334 respectively of IPC will stand reduced to period already undergone without disturbing the fine amount specified by the Trial Court and affirmed by the High Court.
b) The sentence period awarded to appellant nos. 1, 3 and 5 for offences punishable under Sections 304 part (2) r/w 149 and 304 part (2) of IPC respectively will stand reduced to five years each without disturbing the fine amount awarded by the Trial Court and affirmed by the High Court."
25. Reliance is also placed upon judgment of the Supreme Court in the case of Gurmukh Singh Vs. State of Haryana, reported in (2019) 15 SCC 635, in which the Supreme Court has observed as under in para 24 to 26:-
"24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.
25. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the conviction of the appellant under section 302 I.P.C. cannot be sustained. In our considered view, the accused appellant ought to have been convicted under section 304 Part II I.P.C. instead of under section 302 I.P.C.
26. We accordingly convert the conviction and sentence of the appellant Gurmukh Singh from section 302 IPC to one under section 304 Part II IPC and sentence him to suffer rigorous imprisonment for seven years. The fine as imposed by the trial court and as upheld by the High Court is maintained. The appellant would be entitled to get benefit of section 428 of the Code of Criminal Procedure."
26. In light of the legal position settled on the issue we have examined the argument with regard to appropriateness of sentence to be imposed upon him on the basis of evidence brought on record. We find substance in the argument advanced on behalf of the appellant that life sentence is excessive, inasmuch as the prosecution's admitted case is that the offence on part of accused appellant is not of murder but is culpable homicide not amounting to murder. The evidence on record also shows that it was in a heated state that the accused appellant assaulted the deceased after a fight in the dead of night. It transpires that the accused appellant inflicted fatal blow by spade which turned fatal. It is to be borne in mind that the accused appellant admittedly was not in a fit mental state and even prosecution witnesses have deposed that he was undergoing treatment for the last six months or more. There is nothing on record to show that any prior complaint was ever made against accused appellant of cruelty or causing of physical injury to his wife.
27. Our attention has also been invited by Sri Vishesh Kumar, learned Amicus Curiae to the custody certificate, as per which the accused appellant has remained in jail for 17 years, 11 months and 01 day as on 13.7.2022 and his behaviour inside the jail has been good. It is otherwise a matter of common knowledge that Spade is used for agricultural activity and is ordinarily found in all agricultural households and no premeditation or intent can be inferred on part of the accused appellant for murdering his wife only on account of weapon of assault. When the facts in its entirety are examined in light of the settled legal position we find that the life sentence imposed upon the accused appellant, in the facts of the case, is excessive.
28. We, accordingly, allow this appeal and substitute the life sentence awarded to the accused appellant by the sentence already undergone by him. Unless the accused appellant is wanted in any other case he shall be released on compliance of Section 437-A Cr.P.C. This Jail Appeal is thus allowed in part.
29. Since learned Amicus Curiae has also assisted the Court alongwith private counsel, subsequently engaged by the appellant in the matter, we quantify his fee at Rs.10,000/- to be paid to him by the High Court Legal Services Authority.
Order Date :- 7.9.2022
Anil
(Shiv Shanker Prasad, J.) (Ashwani Kumar Mishra, J.)