Allahabad High Court
Sita Ram vs State Of U.P. on 29 August, 2022
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD [A.F.R.] Court No. - 44 Case :- CRIMINAL APPEAL No. - 4810 of 2012 Appellant :- Sita Ram Respondent :- State of U.P. Counsel for Appellant :- Rakesh Chandra Tiwari,Ashok Kumar Mishra,Satya Prakash Srivastava,Shri Prakash Dwivedi,Suresh Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Nalin Kumar Srivastava,J.
( Per Dr. Kaushal Jayendra Thaker,J.)
1. Heard Sri Suresh Srivastava, learned counsel for the appellant and Sri Nagendra Kumar Srivastava, learned A.G.A. for the state.
2. This appeal challenges the judgment and order dated 16.10.2012 passed by Additional Sessions Judge, Court No.4, Mirzapur in Sessions Trial No.171 of 2010 (State vs. Sita Ram) arising out of Case Crime No.473 of 2010 convicting accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the accused-appellant to undergo imprisonment for life with fine of Rs.5,000/- and in case of default of payment of fine, further to undergo imprisonment for a period of one year.
3. The genesis of the litigation are that the deceased was married to the accused appellant Sita Ram in the month of May, 2006. It is alleged in the F.I.R that the accused demanded money and a motor-cycle, when the deceased showed her inability to get the same from her parents the sad news of her death came on 26.05.2010. The F.I.R was lodged on the very same day by the father of the deceased. The police moved to scene of offence and prepared panchnama. The dead body was sent for postmortem and the post-mortem report revealed that the death was due to strangulation.
4. The police after recording the statements of several witnesses filed charge-sheet against the accused. Being summoned the accused was committed to the court of Sessions as the offence for which the accused was charged was exclusively triable by the court of Sessions.
5. On the accused pleading not guilty on 14.10.202010 charges were framed for commission of offence under Section 498A, 304-B I.P.C read with 3/4 of D.P. Act.
6. The witnesses were examined and after two witnesses namely P.W.-1 and P.W.-2 were examined and when they did not support the prosecution, a new charge was framed by the transferred new incumbent Sessions Judge charging the accused for commission of offence under Section 302 of I.P.C.
7. The Trial started and the prosecution examined 4 witnesses who are as follows:
1Sobhnath PW1 2 Smt. Brijwanti PW2 3 Hira Prasad Maurya PW3 4 Dr. Srikant Pandey PW4
8. In support of ocular version following documents were filed:
1F.I.R.
Ex.Ka.2 2 Written Report Ex.Ka.1 3 Postmortem Report Ex.Ka.12 4 Charge-sheet Ex. Ka. 13 5 Site Plan Ex.Ka.4 6 Recovery memo of Broken Bangle Ex. Ka. 6 7 Recovery Memo of Dupatta Ex. K.a. 11
9. At the end of the trial and after recording the statement 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 appellant as mentioned above.
10. Learned counsel for the appellant has relied on the decision in Sanjay Maurya Vs. State of U.P., 2021 0 Supreme(All) 132 and has contended that it is not proved that the offence under Section 302 is committed nor any offence under Section 304B is proved against the accused, the case cannot be said to be proved under Section 302 of Indian Penal Code as the conviction by Trial Court with the aid of Section 106 of the Indian Evidence Act, 1872 is bad. It is further submitted that the decisions on which the trial court has placed reliance have been misread by the learned trial Judge so as to hold that accused is guilty of commission of offence under Section 302 IPC. It is further submitted that the incident even if it is believed to have occurred and culpability of accused is proved it occurred on the spur of the moment, therefore, the accused if has to be held guilty, the accused be convicted under Section 304(1) of the I.P.C.
11. As against this Sri N.K. Srivastava, learned counsel for the State has contended that
(i) the death occurred in the matrimonial home of the deceased;
(ii) the incident occurred within 7 years of married life. The proof of death being homicidal is proved. Despite the fact that in the statement under Section 313 Cr.P.C the accused has pleaded that he is not guilty but he has not discharged the burden cast on him to rebut the proved facts against accused on facts which are required to be proved are answered so as to cause a dent in prosecution evidence.
12. While considering the facts we have to consider the provisions of Section 304B IPC read with Section 302 of the Indian Penal Code. Trial Court has based the conviction with aid of Section 106 of Indian Evidence Act, 1872. The provisions of Section 106 of Indian Evidence Act, 1872 lay as follows :-
"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."
13. We are of the considered opinion that Section 106 of the Indian Evidence Act, 1872 would come into play once the prosecution has discharged its duty of proving facts as per the charge and evidence act. In this case ingredient of Section 300 of I.P.C which read as follows:-
"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
(Secondly) --If it is done 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, or--
(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:--
(First) --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
(Secondly) --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
(Thirdly) --That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills. Y, Z's child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide. Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder."
14. Section 304B of IPC reads as under :
[304B. Dowry death. -- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation. For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]"
15. The evidence on record shows that nobody has seen the accused committing the offence of strangulating the deceased. This is the first dent in the prosecution evidence. The submission of the learned counsel for the State that the accused was nabbed after 6 days would not make any difference. The facts and circumstances of the case would show that the deceased was subjected to harassment, the words used by the legislation are very clear that it may be the word use as not 'and' but 'or', therefore there is thin line of distinction.
16. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind that it is homicide death.
17. The question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code or under Section 304B of IPC. 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."
18. 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 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 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.
19. 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 are of the considered opinion that the offence would not be one punishable under Section 304 of the IPC.
20. It would be relevant for us to discuss the evidence of PW-1, PW-2, PW-3 and PW-4 coupled with the facts that PW-1 and PW-2 did not suport the prosecution and were declared hostile. However, in their examination-in-chief, they have categorically mentioned that they got her married to Sita Ram four years before she died and in the marriage they gave as per their financial condition. However denied the fact that the appellant and his family members were demanding any kind of dowry.
21. In cross examination, witnesses, PW-1 & PW-2 have feigned ignorance as to how the police authority had mentioned the fact of demand of motorcycle and chain in the FIR or their statement under Section 161 of Code of Criminal Procedure. They have even categorically opined that the appellant here in was not present at the time of death. Similar version of PW-3 also. It is only after the witnesses did not support the prosecution that the learned Judge framed new charge on 28.1.2011 to prove that the offence under Section 300 of IPC amounting to murder, there must of clinching evidence that it was the appellant alone who was last seen with the deceased. Just because he has not stated where he was the Court cannot return to a finding against him. There were no anti mortem injuries also as per the occuller version of PW-4 (Doctor). The decision of which the learned Judge has placed reliance for coming to the conclusion that offence under Section 302 IPC is made out, can be made applicable to the facts of this case. However, a rebuttal evidence under Section 106 of the Indian Evidence Act would clear the facts and Section 304B IPC could be presumed to have been made out but not for Section 302 IPC. The death has occurred in the matrimonial home. The accused was not found and was absconding. He was arrested after six days by the police authority. The judgment of Raj Kumar Prasad Tamarkar Vs. State of Bihar and another, (2007)10 SCC 433 will not apply to the facts of this case.
22. We come to the definite conclusion that the death was homicidal death. The judgments cited by the learned counsel for the appellant namely Sanjay Maurya ( supra) would permit us to uphold our finding which we conclusively hold that the offence is not under Section 302 of I.P.C. but it is culpable homicide and was dowry death.
23. This takes us to the question of applicability of Section 304B of I.P.C to the facts of this case.
24. While coming to the conclusion that the accused is the perpetrator of the offence, whether sentence of life imprisonment and fine is adequate or the sentence requires to be modified in the facts and circumstances of this case and in the light of certain judicial pronouncements and precedents applicable in such matters. This Court would refer to the following precedents, namely, 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."
25. '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.
26. 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.
27. 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.
28. Recent judgment of State of M.P Vs. Jogendra, (2022) 5 SCC 401 and ratio laid in the said judgment can be followed, however, instead of seven years period undergone would be more than relevant in the facts and circumstances of this case.
29. Having discussed the judgment threadbare and have been considered the factual data, we have come to the conclusion that the offence committed by the accused with an aid of Section 106 of Indian Evidence Act, can be said to have been under Section 304B for the finding mentioned herein above.
30. By going through the evidence on record it is very clear that the act of the accused-appellant was not such which cannot be substituted by giving a lessor sentence than life imprisonment. The period of 12 years which he spent is enough punishment in the facts of this case. The minor contradictions will have to be ignored and they cannot for the dent in the prosecution of the husband. Medical evidence is quite clear and corroborates the facts and circumstances. Punishment would be 10 years incarceration, the fine and default sentence are also maintained.
31. Accordingly, the appeal is partly allowed with the modification of the sentence and punishing section as above. Record and proceedings be sent back to the Court below forthwith.
32. A copy of this order be sent to the jail authorities for following this order and doing the needful.
33. This Court is thankful to learned Advocates for ably assisting the Court.
(Nalin Kumar Srivastava,J.) (Dr. Kaushal Jayendra Thaker, J.) Order Date :-29.8.2022/Mukesh