Allahabad High Court
Gulab Sah And Another vs State Of U.P. on 10 August, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:162200-DB Court No. - 44 Case :- CRIMINAL APPEAL No. - 6382 of 2008 Appellant :- Gulab Sah And Another Respondent :- State of U.P. Counsel for Appellant :- Anoop Baranwal,D.R. Chaudhary,Pankaj Baranwal,R.B.Sahai,U.P.Singh Counsel for Respondent :- Govt. Advocate,Bhual Vishwakarma,Dharmala Yadav Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Umesh Chandra Sharma,J.
1. Heard Sri Pankaj Baranwal, learned counsel for the appellants and learned A.G.A. for the State.
2. This appeal challenges the judgment and order dated 27.8.2008 passed by Special Judge, (Essential Commodity Act), Varanasi in Sessions Trial No.1002 of 2004 (State vs. Santosh Kumar & Others) whereby the learned Sessions Judge has convicted accused-appellants under Section 304 B of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the appellants to undergo imprisonment for life. Accused-appellants were also convicted and sentenced under Section 498A for one year's rigorous imprisonment with fine of Rs.500/-, under Section 3 of Dowry Prohibition Act, to undergo two years rigorous imprisonment with fine of Rs.5,000/- and under Section 4 of Dowry Prohibition Act, to undergo two months' imprisonment with fine of Rs. 1000/-. In case of default in payment of fine, they were directed to under go six months additional imprisonment each under Sections.
3. Accused-appellant, Gulab Sah has passed away during the pendency of the appeal and appeal qua him has been abated. Accused-appellant, Kanti Devi, who is the mother-in-law of the deceased is the sole surviving accused who is in jail since 2008.
4. Brief facts as culled out from the record are that a First Information Report was lodged being Case Crime No. 105 of 2004 under Sections 498A, 304B of IPC and under Section 3/4 of Dowry Prohibition Act at P.S. Cholapur, Varanasi against the accused persons, namely husband, mother-in-law and father-in-law of the deceased on the basis of the complaint made by complainant who was the uncle of the deceased. In the complaint, it was alleged that deceased-Anjud Devi was married with Santosh Kumar Gupta who was the adopted son of the accused-appellants two and a half years ago as per Hindu rites and rituals in which the complainant had given sufficient dowry as per his capacity, but her in-laws were not satisfied with the same and had demanded additional dowry. It was alleged by complainant that due to non-fulfillment of demand, the accused persons had set her ablaze on 10.7.2004. On 17.7.2004, the deceased died due to septicemia being developed in the her body.
5. 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 them to Court of Sessions as prima facie charges were for offences under Sections 498A, 304 B of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act.
6. The learned Sessions Judge framed charges under Sections 498A, 304B of IPC and Section 3/4 of D.P.Act. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 11 witnesses who are as follows:
1Raj Kumar PW1 2 Sohan Lal Gupta PW2 3 Mohan Lal Gupta PW3 4 Ramayan Dubey PW4 5 Raghupati Tripathi PW5 6 Rajendra Yadav PW6 7 Sri Prakash PW7 8 Yogendra Singh PW8 9 D.P. Giri PW9 10 Dr. S.K.G. Singh PW10 11 Dr. S.K. Verma PW11
7. In support of ocular version following documents were filed and proved:
1F.I.R.
Ex.Ka.5 2 Written Report Ex.Ka.1 3 Dying Declaration Ex. Ka. 13 4 Injury Report Ex.Ka. 15 5 Postmortem Report Ex.Ka.14 6 Panchayatnama Ex.Ka.5 6 Charge-sheet Ex. Ka.12 7 Site Plan Ex.Ka.11
8. The defence has also produced two witnesses namely Gopal Das Verma, DW1 and Pradeep Kumar Barnwal, DW2, 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-appellants as mentioned above.
9. Learned counsel for the appellant has submitted that the appellants have been falsely implicated by the informant as there was no demand of additional dowry on the part of the appellants.
10. While taking us through the judgment, when the Court was of this 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 since 2008. 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 9.12.2022. It is submitted that the deceased died due to septicemia after six days of incident. It is further submitted that the accused is an old aged lady who have been incarcerated since 2008.
11. As against this, learned A.G.A. states that this is a gross case where the deceased was done to death by the accused-appellant. There repeated demands of dowry and harassment by the accused-appellants. It is further submitted that looking to the manner in which the deceased was done to death, no leniency can be shown to the sole surviving accused-appellant by this Court.
12. While considering the Dying Declaration, depositions of witnesses and the Postmortem report which states that the burn injuries which resulted into septicemia would be the cause of death and that it was homicidal death, we concur with the finding of the Court below. However, looking to the fact that the husband has been acquitted, the other co-accused has breathed his last, the deceased being old aged lady who is in jail since 2008, it is to be seen whether the quantum of sentence is too harsh and requires to be modified or not. In this regard, we have to analyse the theory of punishment prevailing in India.
13. 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."
14. '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.
15. 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.
16. 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.
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. 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 the period undergone which would be sufficient punishment under Section 304 B of IPC looking to her age, poverty & and the fact that there is no criminal antecedents except the present offence. Sentences under Section 498A of IPC and Sections 3 & 4 of Dowry Prohibition Act has already been completed by the accused-appellant. Default sentence has also been undergone by her, hence, she be released forthwith, if not wanted in any other offence.
19. 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.
20. This Court is thankful to Sri Pankaj Barnwal, learned counsel for the appellant and learned A.G.A. for the State for ably assisting this Court in getting this old matter disposed of.
Order Date :- 10.8.2023/DKS