Allahabad High Court
Smt. Tasleema vs State Of U.P. on 17 March, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- CRIMINAL APPEAL No. - 4926 of 2012 Appellant :- Smt. Tasleema Respondent :- State of U.P. Counsel for Appellant :- Mohit Singh,Mohd. Kalim Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Arun Kumar Singh Deshwal,J.
1. Heard Ms. Mary Puncha assisted by Sri Mohd. Kalim, learned counsel for the appellant- Smt. Tasleema who has been incarcerated for a period of 12 years and 9 moths without remission and learned A.G.A. for the State.
2. This appeal challenges the judgment and order dated 10.10.2012 passed by Additional Sessions Judge, Court No.11, Moradabad in Sessions Trial No. 1256 of 2010 (State vs. Ateek Ahamad and another) whereby the learned Sessions Judge has convicted accused-appellant under Section 452 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo five years rigorous imprisonment with fine of Rs.2000/-, for commission of offence u/s 326 I.P.C. for ten years rigorous imprisonment with fine of Rs.5000/- and for commission of offence u/s 304 I.P.C. for life imprisonment with fine of Rs.10,000/-. All the sentences were directed to run concurrently.
3. The main accused Ateek Ahmad was the main person who caused death along with the present appellant and two unknown persons and breathed his last long back and qua him the appeal, which he had preferred, has already been abated.
4. On investigation being put into motion, the investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate. The learned Magistrate summoned the accused and committed him to Court of Sessions as prima facie charge was under Sections 452, 304, 326, 323 IPC.
5. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 8 witnesses who are as follows:
1Kasim PW1 2 Nadeem Ahmed PW2 3 Hazi Hakim Naeem PW3 4 Salim PW4 5 Genda Lal PW5 6 Vidya Ram Diwakar PW6 7 Dr. Kulbhushan PW7 8 Dr. T.K. Panth PW8
6. In support of ocular version following documents were filed and proved:
1F.I.R.
Ex.Ka.2 2 Written Report Ex.Ka.1 3 Recovery Memo of Burnt Piece of Rug Ex.Ka.7 4 Injury Report Ex.Ka.11 5 Injury Report Ex. Ka.12 6 Injury Report Ex.Ka.13 7 Post Mortem Report Ex.Ka.10 8 Charge-sheet Ex.Ka.9 9 Site Plan with Index Ex.Ka.6
7. At the end of the trial, 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 convicted the accused-appellant as mentioned above.
8. Ms. Mary Puncha submits that the herein appellant had illicit relation with the accused Ateek Ahmad who breathed his last when he was in jail. When the incident had occurred she was in her late 40s and now she is in her early 60s and is in jail. It is further submitted that the evidence, led before the court below, was so scanty that the conviction could not have been recorded. The incident occurred on 22.5.2010 and the injuries, which were caused, were not such which can be said to have been caused by the appellant herein. The appellant also had sustained injuries. The death certificate of deceased Mushtak Ali has been considered to be homicidal death and not a murder. The witnesses PW-1 to PW-4 have not supported the prosecution case. The learned court below has convicted the accused without any oral or documentary evidence and has come to the conclusion that Mushtak Ali, Hasim and Najim were injured. All the three injured have turned hostile. The injured had testified as per the provisions of Section 32 Indian Evidence Act being treated as Dying Declaration and have named the accused Ateek Ahmad only and not the present appellant, therefore, her conviction is bad in the eye of law.
9. Ms. Mary Puncha has relied upon the judgements of the Supreme Court in the cases of State of Punjab vs. Bawa Singh, reported in 2015 0 Supreme (SC) 38 and Deo Narain Mandal vs. State of U.P., reported in 2004 0 Supreme (SC) 944 and judgements of this Court passed in Criminal Appeal No. 1007 of 1996 (Kali Prasad vs. State of U.P.) and Criminal Appeal No. 4083 of 2017 (Pintu Gupta vs. State of U.P.) so as to contend that the punishment awarded is too harsh as the appellant herein is not the sole author of the incident.
10. Per contra, learned A.G.A. for the State submits that there was no grave and sudden provocation from the side of the deceased. It is further submitted that the Dying Declarations categorically show that the appellant was also involved in the act. The act was committed at night. The learned trial court has rightly accepted the Dying Declaration and the reasoning given in paragraphs- 57 to 62 are such which require to be confirmed by this Court. It is further submitted that looking to the gruesomeness of the offence and the evidence of prosecution witnesses, this Court should not show any leniency in the matter.
11. We have considered the evidence of witnesses and the Postmortem report which states that the injuries on the body of the deceased would be the cause of death and that it was homicidal death, we concur with the finding of the Court below. However, it is to be seen whether the sentence awarded is too harsh. In this regard, we have to analyse the theory of punishment prevailing in India.
12. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
13. '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.
14. 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.
15. 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.
16. The Apex Court in the judgement of Raj Bala (supra) has held that the proportionate punishment would be just and proper. The conscious of society will have to be kept in mind. The accused has already been in jail for a period of 13 years. She has a young son who is litigating for her and, therefore, all the contours of sentencing policy would go to show that would be to hold that the accused is to undergo 13 years of incarceration u/s 304 I.P.C. This Bench is further fortified in its view by the judgement in the case of Pintu Gupta (supra) where the Court, after considering all facts and circumstances on proper sentence as on the basis of reformative theory, gave incarceration of 9 years to be just and proper. In this case the lust act was committed by accused Ateek Ahmad, the main conspirator, and, therefore, there is no question of showing leniency but a fixed term incarceration would be just and proper.
17. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
18. As far as Section 452 I.P.C. is concerned, the accused has already undergone incarceration of 5 years; as far as Section 326 I.P.C. is concerned she has already been in jail for 10 years, therefore all that remains to be decided is the sentence u/s 304 I.P.C., namely, life sentence. We substitute the life sentence to fixed period of 13 years. Fine and default sentence maintained. The accused be set free on completing 13 years of incarceration with remission.
19. In view of the above, the appeal is partly allowed. Judgment and order dated 10.10.2012, passed by the learned Sessions Judge, shall stand modified to the aforesaid extent. Record be sent back to the Court below forthwith.
20. This Court is thankful to Sri Mohd. Kalim and Ms. Mary Puncha, learned counsel.
Order Date :- 17.3.2023 Vandana