Allahabad High Court
Arun Kumar Alias Karu vs State Of U.P. on 28 April, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 12.04.2023 Delivered on 28.04.2023 Court No. - 44 Case :- CRIMINAL APPEAL No. - 1204 of 2017 Appellant :- Arun Kumar Alias Karu Respondent :- State of U.P. Counsel for Appellant :- Anoop Kumar Mishra,Sangam Lal Kesharwani,Sukhvir Singh Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Umesh Chandra Sharma,J.
(Per Dr. Kaushal Jayendra Thaker, J.)
1. Heard Sri Sukhvir Singh, learned counsel for the appellant and Sri N.K. Srivastava, learned A.G.A. for the State.
2. This appeal challenges the judgment and order dated 31.1.2017 passed by Sessions Judge, Farrukhabad in Sessions Trial No.231 of 1999 (State vs. Arun Kumar alias Karu) whereby the learned Sessions Judge has convicted accused-appellant under Sections 304B, 498A & 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and under Section 4 of Dowry Prohibition Act, 1961 (hereinafter referred to as 'Act, 1961'). The learned Sessions Judge has sentenced the accused appellant under Section 302 for life imprisonment with fine of Rs.5000/- and in case of default in payment of fine, further to undergo six months' imprisonment. The learned Sessions Judge has sentenced the accused-appellant under Section 304B for 10 years' rigorous imprisonment. Under Section 498A, accused-appellant have been sentenced to undergo three years' imprisonment with fine of Rs.2,000/- and in case of default in payment of fine, a month's additional sentence has been imposed. The accused-appellant has also been sentenced under Section 4 of Act, 1961 for one year's imprisonment with fine of Rs.2,000/- and in case of default in payment of fine, he has to undergo three months' additional imprisonment. All the sentences were directed to run concurrently.
3. Brief facts as culled out from the record are that the father of the deceased lodged a complaint before the police authority at Police Station Balrai, District Etawah stating therein that marriage of her daughter was performed with accused-appellant. In the marriage, the complainant had spent more than his financial capacity. It was averred that even though he could not satisfy the greed of his son-in-law and his family members. It was alleged that time and again there were demands of dowry on the part of husband and in-laws of her daughter. The deceased had complained this fact to his father several times. The complainant tried to convince his son-in-law and his family members to give up the said demands but the same went inattentive. It was alleged in the said complaint that on 30.6.1998 at about 5.00 a.m., Arun Kumar alias Karu, his father Ram Sharan, his mother and sister Neet had set her daughter ablaze and caused her death. It was also alleged that without informing the complainant, the accused-persons consigned the body of the deceased to cremation near the Ganges. It was submitted that on the basis of information received from one Ramvir Singh, they came to know about her death. On the basis of his complaint, First Information Report was registered on 13.07.1998 as Case Crime No. 113 of 1998 against accused-persons, Arun Kumar, Ram Sharan, Hemlata & Neeta for the offences punishable under Section 304B, 498A & 201 of IPC and under Section 3 read with Section 4 of Act, 1961.
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 against accused-persons, Arun Kumar & Ram Sharan under Section 304B, 498A of IPC and Section 3/4 of Act, 1961. Separate charge-sheet was filed against mother-in-law of the deceased namely Hemlata for the said offences. Learned Additional Sessions Judge framed charges under Sections 304B read with Section 34, 302 r/w 34, 498A r/w 34 of IPC and Section 3/4 of Act, 1961 against accused-persons, Arun Kumar and Ram Sharan. Trial as far as it relates to accused-Ram Sharan & Hemlata is concerned, it stood abated as both of them died during trial. Hence, the trial proceeded against accused-appellant only who on being summoned pleaded not guilty and requested for trial. The Trial started and the prosecution examined 6 witnesses who are as follows:
1Chottey Singh PW1 2 Rambeti PW2 3 Dr. A.K. Gupta PW3 4 Vishwanath Singh PW4 5 Ram Gareeb Sonkar PW5 6 Sanjay Singh PW6
5. In support of ocular version following documents were filed and proved:
1F.I.R.
Ex.Ka.10 2 Written Report Ex.Ka.1 3 Postmortem Report Ex.Ka.2 4 Panchayatnama Ex.Ka.6 5 Charge-sheet Ex. Ka.4 & 5 6 Site Plan Ex.Ka.3
6. The Court has also recorded evidence of Amar Singh as C.W.1. The defence has also produced Arun Katiyar as D.W.1. 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.
7. It is submitted by Sri Sukhvir Singh, learned counsel for the appellant that the mother of the deceased in her testimony has retracted her statement under Section 161 Cr.P.C. and has not supported the prosecution version rather she has opined that out of rage her husband (father of deceased) lodged First Information Report.
8. It is further submitted by learned counsel for the appellant that there is no evidence for demand of dowry and, therefore, the conviction is bad. It is further submitted that the learned Sessions judge has erred in invoking Section 106 of the Evidence Act. It is further submitted that it was the husband who brought the deceased to the hospital and the deceased when brought hospital stated to the doctor that she got burn injuries incidentally while cooking. In support of his arguments, learned counsel for the appellants have heavily relied on the decision in Jasvinder Saini vs. State (Govt. of NCT of Delhi), 2013 4 Crimes (SC) 346.
9. As against this Sri N.K. Srivastava, learned A.G.A. for the State submits that the deceased died within one year of marriage. It is submitted that there was demand of dowry, hence, the conviction of the accused is just and proper and does not call for any interference of this Court.
10. It is again submitted by learned counsel for the appellant that the impugned judgment categorically shows that when the deceased was brought to the hospital where she had stated to the doctor that while cooking, she accidentally come into contact with fire and sustained burn injuries and, therefore, there is no premeditation on the part of the husband to set her ablaze. It is further submitted by learned counsel for the appellant it is nobody's case that it was the husband who has set ablaze the deceased. Rather the accused had brought her to the hospital and, therefore, this is a clear case of acquittal. In the alternative, it is submitted that if this Court invokes Section 106 of Evidence Act, it is for Section 304B and not for Section 302 of IPC. It is submitted that punishment under Section 302 & 304B of IPC cannot sustain.
11. Learned A.G.A. has 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. 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.
12. Having heard the learned counsel for the partied, the main moot question is before this Court whether the offence would fall within the ambit of Section 302 or would it fall within any of the exceptions to Section 300 of IPC? While dealing with the above question 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."
13. 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.
14. The above academic difference would be read with the facts of this case. 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. The deceased when brought before the doctor had conveyed to the doctor that she got fire accidentally while cooking which is at exhibit Kha 2. However, this endorsement has not been accepted by the learned Sessions Judge. The fact that the appellant himself took her to the hospital will give credence to the statement made before the doctor. P.W.1, in his cross-examination by Sri O.P. Singh, stated that accused did not demand any article in form of dowry. This fact has been brushed aside by the learned Sessions Judge without any further discussion. Should his version in examination-in-chief itself be bedrock to punishment when in cross examination, the time, date and place of harassment are not proved. P.W.2, Rambeti, has not told the correct facts and there are material omissions in her version. The accused had come to her home about 8 to 10 days prior to the date of incident for taking her wife to her matrimonial home. Thus the punishment under Section 304B of IPC does not meet the contours fixed by the Apex Court in Jasvinder Saini & Others (Supra). There was no physical torture shown in the medical evidence also. Just because the deceased died within seven years of marriage, it does not make a case that she died out of dowry death.
15. Section 113B which has been invoked by the learned Sessions Judge, could not have been pressed into service. On the contrary, the learned Sessions Judge has not accepted the evidence of D.W.1 who was the Chief Pharmacist at Dr. Ram Manohar Lohia Hospital and who was not related to accused-appellant in any manner. The fact that her husband himself brought to the hospital is the fact which has been brushed aside by the learned Sessions Judge. The admission slip dated 30.6.1998 is there.
16. From the upshot of the aforesaid discussion, it cannot be said that the accused had any premeditation to do away with the deceased. The Dying Declaration before the Doctor who has not been purposefully examined by the prosecution has to be accepted that it was the husband who had taken wife to the hospital.
17. Hence, even if we go by the finding of the learned Sessions Judge, the instant case would fall under Exceptions 1 and 4 to Section 300 of IPC and would be punishable 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.
18. 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, 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. We are fortified in our view by the latest decision in Khokan@ Khokhan Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80, where the Apex Court has allowed the appeal of the accused-appellant and altered the sentence. As far as offence under Section 304B of IPC is concerned, we already hold that no case is made out for commission of said offence.
19. This takes this Court to the quantum of sentence. In this regard, we have to analyse the theory of punishment prevailing in India.
20. 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."
21. '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.
22. 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.
23. 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.
24. 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.
25. In view of the above, the accused-appellant is sentenced to the period which he has undergone. The accused-appellant be set free forthwith, if he is not wanted in any other case. However, fines and default sentences are maintained.
26. In view of the above, the appeal is partly allowed. Judgment and order passed by the learned Sessions Judge shall stand modified to the aforesaid extent. Record be sent back to the Court below forthwith.
Order Date :- 28.4.2023 DKS