Allahabad High Court
Mushtaq Ali Alias Guddu And Others vs State Of U.P.And Others on 5 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 177
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 18.09.2019 Delivered on 05.02.2020 Court No. - 34 Case :- CRIMINAL REVISION No. - 1107 of 1996 Revisionist :- Mushtaq Ali Alias Guddu And Others Opposite Party :- State Of U.P.And Others Counsel for Revisionist :- H.N.Sharma,P.K. Singh Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. This Criminal Revision under Sections 397/ 401 Cr.P.C has been preferred by Mushtaq Ali @ Guddu, Guljar, Abdul Majeed and Samim, accused-appellants, against judgment and order dated 14.08.1996, passed by Sri U.S. Tripathi, the then Sessions Judge, Kanpur Dehat, dismissing appeal of Appellant-Revisionists against judgment dated 08.12.1995 passed by 03rd Additional Civil Judge / Magistrate, Kanpur Dehat in Criminal Case No. 221 of 1995. By the judment and order dated 08.12.1995, learned Magistrate had found all the four Accused-Revisionists guilty under Section 323 read with Sections 34, 498-A, 506 IPC and Section 3 read with Section 4 of Dowry Prohibition Act, 1961 (hereinafter referred to as "D.P. Act, 1961"). Each of them were convicted and sentenced under Section 323 IPC read with Section 34 IPC to undergo six month's imprisonment; under Section 498A IPC, 1 ½ years imprisonment; under Section 506 IPC two years imprisonment and under Section 3 read with Section 4 of D.P. Act, 1961, three month's simple imprisonment". All the sentences were directed to run concurrently.
2. Prosecution case in brief is that Smt. Raisa Begum, sister of Complainant - Mohammad Nafis was married to Accused, Mushtaq Ali @ Guddu on 30.04.1991. Smt. Raisa Begum had gone to her-in-laws house with jewelry received in dowry and cash of Rs.17,000/-. After a few days of marriage, all the four Accused-Revisionists started exerting pressure on her to bring T.V and cash from her parental house. Smt. Raisa expressed her inability to bring cash and T.V, whereupon accused started beating and torturing, even kept her starving. Information of this situation was sent by complainant's sister through postal inland letter, but members of her parental home continued to advise her to spend life by conciliating and adjusting with her in-laws. On getting information about serious problems and torture subjected to her sister, Complainant, Mohammad Nafis alongwith his relatives Zafer-U-deen and Munna reached the residence of accused in village Makanpur on 24.04.1993 at about 11:00 a.m. Seeing her brother, Smt. Raisa Bano started lamenting loudly and complained that her in-laws used to beat her and pressurized for bringing T.V and cash; did not offer food or cloth and also tried to set her on fire after pouring kerosene oil but any how she escaped.
3. At the time of filing of complaint Raisa was pregnant. She requested her brother to take her with him lest the accused would kill her. When Complainant requested accused, Nafis to send his sister with him, all Accused-Revisionists started beating Complainant with kicks and fists and also threatened that only dead-body of Complainant's sister would be sent out of their house. Despite repeated requests by Raisa, Accused-Revisionists locked her in a room in front of Complainant and his relatives. Thereafter Complainant went to Police Station Bilhor, for lodging a report, but report was not lodged, therefore, Complainant filed complaint on 27.04.1993.
4. Statements of Nafis under Section 200 Cr.P.C and his sister Raisa Begum under Section 202 Cr.P.C. were recorded and all the four accused were summoned. Thereafter charge was framed against Accused-Revisionists under Sections 324/34, 498-A, 504, 506 I.P.C and 3/4 D.P. Act, 1961.
5. In support of case, Complainant has examined Smt. Raisa Begum as P.W 1, Jamruddin as P.W 2 and Complainant himself as P.W. 3 under Section 244 Cr.P.C. On the basis of evidence, charge was amended and Accused-Revisionists were charged under Sections 323/34, 498-A, 504, 506 I.P.C and Section 3/4 D.P. Act, 1961. Consequent upon framing of amended charge, prosecution examined P.W-1 Raeesa Begum, P.W-2 Jafaruddin and P.W 3 Nafis under Section 246 Cr.P.C.
6. Accused-Revisionists were examined under Section 313 Cr.P.C. They denied the charge and claimed trial. In support of defence, accused produced D.W - 1, Saiyyad Ali Nabi, and D.W. - 2, Ali Akhtar.
7. After going through the evidence available on record and hearing arguments of learned counsel for the parties, learned Magistrate recorded judgement of conviction against all accused and sentenced them as detailed above by judgment and order dated 08.12.1995. The appeal filed by Accused-Revisionists before Sessions Judge, did not find favour and it was dismissed vide judgment and order dated 14.08.1996, which is impugned in this Revision.
8. Since Accused-Revisionist-3, Abdul Majeed @ Chhanga died on 07.12.2015, revision stood abated-qua Revisionist-3 vide order of this Court dated 18.09.2019.
9. I have heard Sri P.K. Singh, learned counsel for Revisionists-1, 2 and 4 and perused the material available on record.
10. Learned counsel appearing for Revisionists submitted that one of the Revisionist is 60 years of age and mother of Mushtaq Ali is also in advanced age and there is no specific allegation against her, therefore case of Revisionists can be segregated and period of sentence be reduced. It has also been submitted that Revisionists may be granted benefit of Probation of Offenders Act, 1958 (hereinafter referred to as "Act, 1958").
11. Learned A.G.A. supporting the judgment in question argued that prosecution witnesses have clearly supported and proved case of prosecution and learned counsel for Revisionists having failed to point out any manifest error or illegality therein, no interference is called for in this revision considering the nature of allegations and offences found proved against Revisionists.
12. As per record, PW-1, Smt. Raisa Begum, the victim and sister of Complainant, has very categorically stated that for demand of dowry and non satisfaction thereof, she was treated with cruelty so much so that at one occasion Accused-Revisionists attempted to set her on fire by pouring kerosene oil and when she escaped somehow, later she was allowed to appear in Court when she promised with mother-in-law, i.e., Accused-Revisionist 4, that she will depose in their favour. She has also said very categorically that father-in-law used to exhort and said that victim PW-1, Smt. Raisa Begum, be beaten.
13. PW-2, Jamruddin is a witness who had participated in marriage, known to family of Complainant and was aware of complaint of victim that she used to be tortured and treated with cruelty for non satisfaction of demand of dowry by Revisionists.
14. Complainant, PW-3, Mohd. Nafees is the brother of victim. He has also supported prosecution case.
15. Nothing otherwise could be extracted from cross-examination of above witnesses and, therefore, in my view, aforesaid witnesses have deposed clearly, their statement is creditworthy, which has relied by Court below to prove the charge levelled against Revisionists in trial.
16. It is in this backdrop this Court has to examine, "whether Revisionists-1, 2 and 4 deserves any leniency in the matter of sentence" as argued by learned counsel for Revisionists; and "do they deserves to be granted benefit of Act, 1958".
17. Revisionists have been found guilty of demand of dowry and for non satisfaction of demand of dowry committing cruelty upon victim Smt. Raisa Begum and also an attempt to burn her by pouring kerosene oil. The offence founded on demand of dowry and non satisfaction thereof is not only quite serious but a curse. It is an evil spread in society wherein victim is always a woman. A woman is subjected to cruelty and torture for non satisfaction of dowry, i.e., for materialistic reasons. Decades and centuries have passed witnessing approach of in-laws of bridegroom of demanding dowry as if it is their birth right and obligation on the part of bride side to satisfy such demand. Time and again it has been deprecated and condemned, being always against civilized society. Even legislature has come forward to make stringent laws in this respect. Unfortunately the tentacles of disease are so deep embedded that instead of being reduced, we find its excess in most part of society, irrespective of caste, creed and religion. Those who support dowry, claim it to be an ancient tradition and means to help newly wedded couple to settle in their life. They forget that responsibility for a descent life of couple, is on both sides and cannot be claimed to be an obligation only on the part of bride's parents. Dowry is a root and host of social atrocities against woman. The custom of presenting dowry is the crudest expression of male dominance in society. I do not propose to write an essay on the subject since now it cannot be doubted that demand of dowry and cruelty for non satisfaction thereof is a blot on society and cannot be allowed to perpetuate in a civilized society, hence legislation made to prevent it must not only be implemented with widest amplitude but those who are guilty should be dealt with stern action and appropriate punishment should be improved so that it may not only be punitive to the violators but also a preventive lesson to others.
18. Demand of dowry from bride and her parents and torture of bride for non satisfaction can also be said to be violation of human rights in a big way. It is also a gender bias and discrimination towards woman. Whenever a demand of dowry is made to a bride and she resist for whatever reason, may be including financial scarcity and poverty of her parents, the ultimate result is adverse on bride which also cause loss of her self esteem and downgrade of status.
19. In a case where a bridegroom or his family members have committed offence of demanding dowry and committing cruelty and torture upon bride for non satisfaction of said demand, Court should adopt and ensure a zero tolerance policy against offenders and ensure enforcement of law strictly, stringently and without showing any leniency to such offenders.
20. Looking to the facts of this case, in the backdrop of above discussion, it cannot be doubted that Revisionists are guilty of committing one of the most heinous crime against woman and they deserve to be dealt with iron hands.
21. The contention of learned counsel for revisionists that Respondent-4 has no role in the matter and there is no specific allegation is incorrect inasmuch as victim herself has said clearly that her mother-in-law alongwith others was constantly pressurizing her to satisfy demand of dowry and also treated her with cruelty for non satisfaction thereof.
22. So far as advance age of Revisionists-1 and 4 is concerned, it cannot be overlooked that cannon of law which determine punishment to Accused-Revisionists up to the level of Appellate Court declared verdict in 1996 but pendency of matter for the last 23 years in this Court has helped Revisionists in deferring punishment so as now to claim that taking their advance age, some leniency in the matter of punishment be shown. Pendency of revision in this Court cannot be allowed to help offender.
23. A criminal offence is considered as a wrong against the State, and, society in particular, even though it is committed against individual(s). This Court in State of U.P. Vs. Babu and others 2007(9) ADJ, 107 (DB) has said:
"The duty of the Court of law is heavy in the sense that it should ensure that no innocent should be punished but simultaneously it is also under an obligation to see that no guilty person should escape from the clutches of law by taking advantage of so-called technicalities as this will not only lead to further serious threats to the entire society but may also shake the confidence of public at large in the system of dispensation of justice. Our experience has shown that exonerating a guilty person due to any reason whatsoever has caused more damage to the society since it has multiplied the occurrence of crime as well as has also produced more criminals attracting them to commit crime since easy acquittal has resulted in encouraging them to break law with impunity. It will be useful to remind with the words of caution as observed by the Hon'ble Apex Court (Krishna Ayer J.) in Shiva Ji Sahabrao Bobade (supra) emphasizing to keep balance between the individual liberty and evil of acquitting guilty persons. The Court observed that we should remind ourselves of necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The Courts having duty of judicial review owe the public accountability of such system. The golden thread of proof beyond reasonable doubt should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumption against indicted persons and more severe punishment of those who are found guilty. Too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. Miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of innocent." (emphasis added)
24. The above observations were made on the question of conviction but, in my view, once the prosecution has succeeded to prove its case and conviction is upheld by all the Courts, if its consequence is allowed to be diluted by modifying punishment to the extent of having no consequence merely on the ground of time consumed in legal remedy, whatsoever, it would make a mockery of entire criminal system of justice since victim and his family i.e. the real suffers, as also the society, have no control over such proceedings and delay occurred therein.
25. Commenting upon sentencing policy, in State of U.P. Vs. Sanjay Kumar 2012 (8) SCC 537, Court said that punishments should reflect the gravity of offence and also criminal background of convict. The graver the offence and longer the criminal record, more severe is the punishment to be awarded. By laying emphasis on individualised justice, and shaping the result of crime to the circumstances of offender and needs of victim and community, restorative justice eschews uniformity of sentencing. In para 21 of the judgment, Court further said:
"Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats" (English translation by Court)
26. Court further said that it is the duty of Courts to award proper sentence, having regard to the nature of offence and the manner in which it was executed or committed, etc. Courts should impose a punishment befitting the crime so that Courts are able to accurately reflect upon public abhorrence of the crime. It is the nature and gravity of crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order, in many cases, may be in reality, a futile exercise.
27. In Rajendra Pralhadrao Wasnik Vs. State of Maharashtra AIR 2012 SC 1377, Court said:
"Every punishment imposed is bound to have its effect not only on the accused alone, but also on the society as a whole."
28. In Hazara Singh Vs. Raj Kumar and others (2013) 9 SCC 516, Court referred to its earlier decision in Shailesh Jasvantbhai and another Vs. State of Gujarat and others (2006) 2 SCC 359 and quoted with approval, following passage:
"... undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc."
(emphasis added)
29. In Ahmed Hussein Vali Mohammed Saiyed and Anr. Vs. State of Gujarat 2009 (7) SCC 254, Court said:
"99. The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence, which reflects the conscience of the society and the sentencing process has to be stern where it should be. ....
100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong." (emphasis added)
30. In Hazara Singh Vs. Raj Kumar and others (supra), the Court in para 17 also said:
"We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment." (emphasis added)
31. In the matter of awarding punishment multiple factors have to be considered by this Court. Law regulates social interests, arbitrates conflicting claims and demands. Security of individuals as well as property of individuals is one of the essential functions of the State. The administration of criminal law justice is a mode to achieve this goal. The inherent cardinal principle of criminal administration of justice is that the punishment imposed on an offender should be adequate so as to serve the purpose of deterrence as well as reformation. It should reflect the crime, the offender has committed and should be proportionate to the gravity of offence. Sentencing process should be stern so as to give a message to the offender as well as the person like him, roaming free in the society, not to indulge in criminal activities but also to give a message to society that an offence if committed, would not go unpunished. The offender should be suitably punished so that society also get a message that if something wrong has been done, one will have to pay for it in proper manner, irrespective of time lag.
32. Further sentencing process should be stern but tampered with mercy where-ever it is so warranted. How and in what manner element of leniency shall prevail, will depend upon multifarious reasons including the facts and circumstances of individual case, nature of crime, the matter in which it was committed, whether preplanned or otherwise, the motive, conduct, nature of weapon used etc. But one cannot lose sight of the fact that undue sympathy to impose inadequate sentence would do more harm to justice system as it is bound to undermine public confidence in the efficacy of law. The society cannot long endure such serious threats. It is duty of court to give adequate, proper and suitable sentence, having regard to various aspects, some of which, are noticed above.
33. In Ahmed Hussein Vali Mohammed Saiyed and another Vs. State of Gujrat (supra), Court confirmed that:
"any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system". (emphasis added)
34. In Jameel Vs. State of Uttar Pradesh, 2010 (12) SCC 532, the Court held that:
"It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence."
(emphasis added)
35. In Guru Basavaraj @ Benne Settapa Vs. State of Karnataka, 2012 (8) SCC 734, Court said that:
"The cry of the collective for justice, which includes adequate punishment cannot be lightly ignored."
36. In Gopal Singh Vs. State of Uttarakhand, 2013 (3) JT 444, the Court said that:
"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" (emphasis added)
37. Thus, I do not find any reason to show leniency for any Revisionists considering nature of crime committed by them.
38. Now coming to second question, "whether Revisionists are entitled for benefit under Act, 1958"; learned counsel for Revisionists could not dispute that Section 3 thereof would have no application in the present case. Benefit, therefore, is claimed by requesting Court to exercise its power under Section 4 of Act, 1958.
39. I find that Section 4 of Act, 1958 imposes an obligation upon Court to have regard to the circumstances of case including nature of offence and character of offender. The word "may" in Section 4 has been held as not to be read as must in Ram Prakash vs. State of Himachal Pradesh, AIR 1973 SC 780.
40. Looking to the nature of offence, I do not find it appropriate to import Section 4 of Act, 1958 in the case in hand so as to grant any benefit to Revisionists-1, 2 and 4.
41. In view of above discussion, I answer both questions against Revisionists.
42. Revision lacks merit. Dismissed accordingly.
43. Interim order, if any, stands vacated.
Order Date :- 05.02.2020 AK