Allahabad High Court
Zakir Hussain vs State Of U.P. on 23 January, 2023
Bench: Kaushal Jayendra Thaker, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 44 AFR Case :- CRIMINAL APPEAL No. - 4093 of 2018 Appellant :- Zakir Hussain Respondent :- State of U.P. Counsel for Appellant :- Virendra Kumar Gupta,Lal Mani Singh,Noor Mohammad Counsel for Respondent :- G.A.,Brajesh Nath Rai,Rahul Mishra Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajit Singh,J.
1. This appeal has been filed challenging the judgment and order dated 02.06.2018 passed by Session judge, Mahoba in Session Trial No.108 of 2015, arising out of Case Crime No.260 of 2015, under Section 302 I.P.C., Police Station Mahoba, district Mahoba, whereby convicting the appellant under Section 302 I.P.C. and awarded the sentence for life imprisonment and a fine of Rs.10,000/- and in default of payment of fine 4 months additional simple imprisonment.
2. The prosecution story in brief is that the informant Sattar Khan @ Bhure had solemnized marriage of his daughter Nazreen with the accused Zakir on 3.4.2021 according to Muslim rights as per his status and given adequate dowry but the husband of the daughter of the informant and his other family members were not satisfied with the given dowry and they were demanding Rs. 2,00,000/- cash and a car as an additional dowry and due to non-fulfillment whereof, the daughter of the informant was tortured and maltreated by them in her matrimonial home and ultimately in the night of 9/10.4.2015 she was set on fire and on 6.5.2015 during treatment she succumbed to the burn injuries.
3. The investigation of the case was entrusted to the Circle Officer, Sadar, who inspected the place of occurrence and prepared the site plan and recorded the statement of witnesses. After completion of investigation, the Investigating Officer has submitted charge-sheet only against the accused-appellant Zakir Hussain, under Sections 498-A, 304-B I.P.C. and Section ¾ Dowry Prohibition Act on 27.06.2015 and the cognizance was taken by the Magistrate and considering that the case was triable by the Session Judge and it was committed to the court of session and the Session Court charged the accused under Sections 498-A, 304-B I.P.C. and Section ¾ Dowry Prohibition Act.
4. In order to prove its case the prosecution has examined eight witnesses, who are as follows :
1Sattar Khan PW1 2 Zunaid Khan PW2 3 Prabudh Singh PW3 4 Afsari Khatun PW4 5 Rajendra Kumar PW5 6 Vimal Kumar PW6 7 Dr. K.K.Suller PW7 8 Sandeep Singh PW8
5. In support of ocular version following documents were filed:
1F.I.R.
Ex.Ka.9 2 Written Report Ex.Ka.1 3 Dying Declaration Ex.Ka.7 4 P.M. Report Ex. Ka. 10 5 Panchayatnama Ex. Ka.2 6 Charge Sheet Ex.Ka.12 7 Site Plan with Index Ex. Ka.11
6. The prosecution laid the evidence against the accused and the court after prosecution evidence examined the accused under Section 313 Cr.P.C. and the accused submitted that he has been falsely implicated in the present case with ulterior intention of harassing him. He pleaded not guilty and claimed to be tried. The learned Sessions Judge framed charges under Sections 498-A, 304-B of I.P.C. and Section ¾ of D.P. Act.
7. After considering the evidence available on record the trial court convicted the accused as aforesaid. Being aggrieved by the conviction judgment and order this appeal has been filed.
8. Heard Sri Irshad Mohammad, assisting Sri Noor Mohammad, learned counsel for the appellant on modification of sentence and learned A.G.A. for the State.
9. Learned counsel for the accused/appellant submits that the appellant has been falsely implicated by the informant as there was no demand of additional dowry on the part of the appellant. When the alleged incident is said to have taken place the accused was not present at the spot. He further submits that the incident occurred due to burst of stove on which she was cooking food. She burnt accidentally and in the process her clothes caught fire, causing serious injuries to her. After hearing the alarm raised by the deceased, the in-laws of the deceased reached at the spot and tried to save her and in this process they also received burn injuries. No one had set her ablaze but the prosecution has tried to give in a colour of dowry death. There is no dying declaration of the deceased. He also submits that as per postmortem report the deceased has died due to ante-mortem injuries as a result of shock and septicemia. He lastly submits that the accused/appellant in a poor person he is only the bread winner in his family.
10. Learned A.G.A. has submitted that the accused and his other family members have committed the murder of the deceased after pouring kerosene oil on her. The deceased has died within seven years of marriage.
11. 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 convicted the accused/appellant as mentioned above.
12. While taking us through the judgment, when the Court was of his view that the death was a homicidal death looking to the medical evidence, learned counsel requested for showing leniency in the matter and seeks for lesser punishment as the accused/appellant is in jail for more than seven years, Learned counsel for the appellant has relied on the decision of this Court in Criminal Appeal No.2895 of 2015 (Manoj Sharma Vs. State of U.P.) decided on 09.12.2022.
13. As against this, learned A.,G.A. states that the deceased was done to death within seven years of marriage in her matrimonial home, hence, no leniency can be shown to the accused/appellant by this Court.
14. While considering 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 quantum of sentence is too harsh and requires to be modified. In this regard, we have to analyse the theory of punishment prevailing in India.
15. 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."
16. '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.
17. 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.
18. 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.
19. 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.
20. In view of the above, the findings of facts by the Court below are not disturbed. However, as far as punishment is concerned, we substitute the same to 10 years' rigorous imprisonment with remission. Fine and default sentence is maintained. If the accused/appellant has undergone the period of incarceration, the accused/appellant be set forthwith, if not wanted in any other case. The default sentence to start after ten years' of incarceration with remission.
21. 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 :- 23.1.2023 R/.