Allahabad High Court
Balveer Singh vs State Of U.P. on 20 October, 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. - 7777 of 2017 Appellant :- Balveer Singh Respondent :- State of U.P. Counsel for Appellant :- Noor Muhammad,Tribhal Chandra Sharma,Yogesh Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Nalin Kumar Srivastava,J.
(Per Dr. Kaushal Jayendra Thaker, J.)
1. Heard Sri Yogesh Kumar Srivastava, learned counsel for the appellant and Sri Nagendra Srivastava, learned A.G.A. for the State.
2. Present criminal appeal challenges judgment and order dated 22.11.2017 passed by the Additional Sessions Judge (Fast Track Court No.2), Firozabad in Sessions Trial No. 728 of 2011 whereby the learned Additional Sessions Judge has convicted and sentenced the accused-appellant, Balveer Singh, under Section 498A of IPC for two year imprisonment along with fine of Rs.3,000/- (default sentence : two months), under Section 302 of IPC for life imprisonment with fine of Rs.10,000/- (default sentence : six months) and under Section 3/4 of Dowry Prohibition Act, 1961 for two years' imprisonment with fine of Rs.3000/-, in case of default in payment of fine further to undergo two months' simple imprisonment. All the sentences were directed to run concurrently.
3. Facts as culled out from the record are that the deceased was married with the accused-appellant before six years of the incident as per Hindu rites and rituals. There were three children born out of their wedlock. Immediately after the marriage, she was subjected to cruelty and there was demand of dowry. Several times there were settlements but the demand of dowry continued. On the day before the incident occurred i.e. 3.5.2011, the deceased was beaten and was threatened with dire consequences. In the morning, she was set ablaze. When she was set ablaze, she ran towards the locality. The neighbors doused the the fire and got the deceased admitted in S.N.M. Hospital, Firozabad from where, she was referred to Agra. On 9.5.2011, she was brought to AIIMS, Delhi. Her burn injuries ultimately turned into septicemia and she breathed her last.
4. On the basis of the complaint made by informant, father of the deceased, alleging the above incident, the First Information Report being Case Crime No. 196 of 2011 under Sections 498A, 304B, 307, 504, 506 of IPC and Section 3/4 of D.P. Act was lodged at P.S. South, District Firozabad was registered and the criminal machinery moved into motion. On 4.5.2011, the Dying Declaration was recorded. On inquiry being conducted and the investigation getting over, the charge-sheet was filed in the Court of Chief Judicial Magistrate against all the accused who were named in the F.I.R. except accused-Jhamman, who died during investigation. The matter was committed to the Court of Session as it was triable by Court of Session.
5. The learned Sessions Judge has framed the charges against the accused, Ramnath, Smt. Shanti Devi and accused-appellant, Balveer Singh under Sections 498A, 304B read with Section 34 of IPC and Section 3/4 of Dowry Prohibition Act and additional charge under Section 302 of IPC was framed against accused-appellant, Balveer Singh.
6. On being summoned, the accused-persons pleaded not guilty and wanted to be tried.
7. The Trial started and the prosecution examined 11 witnesses who are as follows:
1Kishori Lal PW1 2 Somwati PW2 3 Munni Devi PW3 4 Guddi PW 5 Bhuri Singh PW5 6 Praveen Kumar PW6 7 Anurag Darshan PW7 8 Dr. Ravi Prakash Sachan PW8 9 N. Ram PW9 10 Sanjay Dubey PW 10
8. In support of ocular version following documents were filed and proved:
1F.I.R.
Ex.Ka.12 2 Written Report Ex.Ka.1 3 Dying Declaration Ex. Ka.5 4 Postmortem Report Ex.Ka.4 5 Panchayatnama Ex.Ka.6 6 Charge-sheet Ex. Ka.3 8 Site Plan Ex.Ka.2
9. After the evidence of prosecution was over, Bhudev Singh was examined as C.W. 1 and the accused also led evidence and examined, Balvir Singh, D.W.1, Ram Nath, D.W.2, & Premraj, D.W.3.
10. At the end of the trial and after recording the statements of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge acquitted the accused Ramnath and Shanti Devi and convicted the accused-appellant as mentioned above.
11. It is submitted by learned counsel for the appellant that the incident occurred on the spur of moment and the accused had not premeditated to do away with the deceased and the death occurred after few days. The cause of death according to doctor who conducted the postmortem of deceased was septicemia.
12. It is further submitted by learned counsel for the appellant that conviction under Section 302 IPC is not made out as no overt act as per Section 300 IPC is made out. On the same set of evidence with which the other co-accused has been acquitted, same requires to be done in case of accused-appellant also. In alternative, it is submitted that at the most, the death can be homicidal death not amounting to murder and punishable under Section 304 II or Section 304 I of I.P.C. If the Court decides that the accused is guilty under Section 302 of IPC, then the accused may be granted fixed term punishment of incarceration as the death is not a gruesome act on part of accused.
13. Learned counsel for the State has submitted that though it is septicemic death, the dying declaration and evidence of prosecution witnesses will not permit this Court to 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.
14. Before we begin our discussion sifting the testimony of witnesses, perusal of the Dying Declaration of the deceased, Ex. Ka.5, would be very relevant which is as under:
"बयान श्रीमती सुषमा देवी w/oश्री बलवीर सिंह निवासी हुमायूंपुर थाना दक्षिण जनपद फिरोजाबाद उम्र 25वर्ष पेशा चूड़ी मजदूरी जाति राठौर 1.35 P.M. बयान किया है कि घटना दिनांक 3.5.2011 की सुबह 6:00 बजे की है । मेरी दो बहनों की शादी थी दिनांक 30.4.2011 को शादी थी । मेरे पति ने कहा कि जा रही हो उसी तरह वापस आ जाना मैं अपने पिता के घर से आने में लेट हो गई तो दिनांक 2.5.2011को रात्रि में मेरे पति बलबीर ने मुझे मारा पीटा । गर्दन दबा दी । फिर ड्यूटी चले गए और कह गए कि तुम मर जाना मैं वापस आए तब तक । सुबह आए तो मैं सो रही थी । कहने लगे तू अभी मरी नहीं है । मैंने कहा कि मैंने कोई बुरा काम नहीं किया है सो मर जाऊं। बलबीर मेरे पति ने कहा कि आज मैं तेरी कहानी खत्म कर दूंगा। फिर इनके द्वारा कमरे से साइकिल निकाली साइकिल गली में खड़ी कर आए। अंदर मेरे ऊपर मिट्टी का तेल डालकर पीछे से पेटीकोट में आग लगाकर भाग गए। यह मेरे पति बलवीर ने किया था। आग लगी हुई मैं अपनी बहन कांति w/oराम रामविलास के घर भागी उन्हीं लोगों ने आग बुझाई। मौ0 के लोग आगरा ले गए । अब यहां लाकर इलाज करा रहे हैं । बयान सुनकर तस्दीक किया। "
15. This shows that there was altercation between husband and wife. The husband namely appellant-herein set her ablaze in the Dying Declaration, we do not find any semblance of demanding any kind of dowry for invoking Section 498A of IPC which reads as follows:
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.]"
16. On perusal of Section 498A of IPC, it is evident that for invoking Section 498A of IPC, demand of dowry, prior to occurrence is must and in our case that is missing. Therefore, conviction under Section 498A of IPC read with Section 4/5 of Dowry Prohibition Act, even without going by the evidence of the witnesses, cannot stand scrutiny as none of the witnesses were present when the incident occurred. The incident occurred in the four corners of the house of the appellant but it cannot be said that there was any demand of dowry, hence, we cannot subscribe to the view taken by the learned Trial Judge.
17. This takes us to the factum whether the Dying Declaration can be relied upon or not?
18. In light of the decision in Govindappa and others Versus State of Karnataka, (2010) 6 SCC 533 and the latest decision of the Apex Court in Uttam v. State of Maharashtra, (2022) 8 SCC 576, there is no reason for us not to accept the dying declaration and its evidentiary value under Section 32 of Evidence Act, 1872. In the present case the Dying Declaration is truthful and can be acted upon in view of the settled legal position.
19. This takes us to the factum of death of the deceased. The evidence of P.W.8 is very material for our purpose. P.W., Dr. Ravi Prakash Sachan, had performed postmortem on the dead body and had opined that death was due to septicemia. The deceased died on 19.5.2011. It was a homicidal death. The Dying Declaration has been proved by P.W.6 & P.W.7 and they have withstood the cross examination. We are not discussing their evidence in detail as we are convinced that the finding of facts as far as homicidal death is concerned is proved and we concur with the finding of trial court on that point. The decisions in Hansraj vs. State of Punjab, AIR 2000 SC 2324 and Sher Singh vs. State of Haryana, 2015 (88) ACC 288 (SC) which the learned Sessions Judge has relied upon, we also rely on the same.
20. The death was due to burn injuries which had turned into septicemic death.
21. 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?
22. 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."
23. 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.
24. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under:
"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3 SCC 280, the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same.
13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy.
14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns.
15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly. 15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under:
"18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries.
19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries.
20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC."
16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed.
17. The conviction of the appellants - original accused under Section 302 of Indian Penal Code vide judgment and order dated 19.12.2007 arising from Sessions Case No. 149 of 2007 passed by the Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad is converted to conviction under Section 304 (Part I) of Indian Penal Code. However, the conviction of the appellants - original accused under section 452 of Indian Penal Code is upheld. The appellants - original accused are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/- each in default rigorous imprisonment for six months under section 304 (Part I) of Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by the trial court under section 302 IPC. The sentence imposed in default of fine under section 452 IPC is also reduced to two months. Accordingly, the appellants are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/-, in default, rigorous imprisonment for six months for offence punishable under section 304(I) of Indian Penal Code and rigorous imprisonment for a period of five years and fine of Rs. 2,000/-, in default, rigorous imprisonment for two months for offence punishable under section 452 of Indian Penal Code. Both sentences shall run concurrently. The judgement and order dated 19.12.2007 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellants - original accused. R & P to be sent back to the trial court forthwith."
25. In latest decision in Khokan@ Khokhan Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80, where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant and altered the sentence. 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 a matter where the accused cannot be granted benefit in light of judgments relating to leniency in sentencing. Decisions in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused.
26. 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 it was a case of homicidal death not amounting to murder.
27. 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 their 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. Decided, (2011) 5 SCR 300 which have to be also kept in mind.
28. 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.
29. 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."
30. '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.
31. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Hon'ble 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 Hon'ble 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.
32. 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 of imprisonment for at least 10 years would be more than relevant in the facts and circumstances of this case.
33. Therefore, accused-appellant is convicted for the offence punishable under Section 304 (Part I) of IPC and sentenced to 10 years' rigorous imprisonment. The fine and default sentence are maintained.
34. In view of the above, this appeal is partly allowed. The judgment and order impugned shall stand modified to the aforesaid extent. Record and proceedings be sent back to the Court below forthwith.
Order Date :- 20.10.2022 DKS