Allahabad High Court
Dharmendar And Others vs State Of U.P. on 12 January, 2023
Bench: Kaushal Jayendra Thaker, Ajit Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- CRIMINAL APPEAL No. 7783 of 2010 Appellant :- Dharmendar And Others Respondent :- State of U.P. Counsel for Appellant :- S.C. Tiwari,Swetashwa Agarwal Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajit Singh,J.
1. This appeal challenges the judgment and order dated 03.11.2010 passed by Additional Sessions Judge, Court No.1, Ramabai Nagar, Kanpur Dehat, in Sessions Trial No.114 of 2009 (State Vs. Dharmendra and others) arising out from case Crime No.89 of 2008, under Sections 498A/304B IPC and Section ¾ D.P. Act, Police Station Sikandra, District Ramabai Nagar (Kanpur Dehat) convicting the appellants under Section 498A/304B IPC and Section 4 D.P. Act and sentencing appellant no.1 under Section 304B IPC for life imprisonment and Section 498A of IPC for rigorous imprisonment of 3 years and fine of Rs. 5,000/- and Section 4 of D.P. Act for rigorous imprisonment of 2 years and fine of Rs. 5,000/- and in default of payment of fine the appellant no.1 convicting under Section 498A IPC for additional rigorous imprisonment of 6 months and Section 4 of D.P. Act, additional rigorous imprisonment of 6 months, appellant no.2 - Ansho Devi convicting under Section 304B for rigorous imprisonment of 6 years, under Section 498A IPC for rigorous imprisonment of 2 years and fine of Rs. 3,000/- and Section 4 of D.P. Act for rigorous imprisonment of one year and fine of Rs. 2,000/- and in default of payment of fine the appellant no.2 under Section 498A IPC additional rigorous imprisonment of 3 months and Section 4 of D.P. Act additional rigorous imprisonment of 2 months and appellant no.3 - Ram Kishun under Section 304B for rigorous imprisonment of 7 years and under Section 304B IPC for rigorous imprisonment of one year and fine of Rs. 2,000/- and Section 4 of D.P. Act for rigorous imprisonment of 6 months and fine of Rs.1,000/- and in default of payment of fine, the appellant no.3 convicting under Section 498A additional rigorous imprisonment of 2 months and Section 4 of D.P. Act additional rigorous imprisonment of 1 month and all the sentences shall run concurrently.
2. The facts in brief is that Smt Sita Devi, the daughter of the complainant Gorelal, was got married to the accused Dharmendra s/o Ram Kishun on 10-05-07 as per Hindu rituals. Shortly after the marriage, Dharmendra and his father Ram Kishun as also Ram Kishun's wife Smt Ansho Devi started physically assaulting the daughter of the complainant and used to demand a motor cycle and gold chain otherwise they would kill her some day. On 30-4-08 at about 12.00 in the night the above accused poured kerosene oil on the daughter of the complainant and set her on fire and the information of which was received by the complainant through certain reliable sources on 1.5.08 at 4.00 in the morning. The complainant immediately rushed to her daughter's place with several persons where he came to know that her daughter was completely burnt and she was got admitted in hospital in Kanpur. The incident was witnessed by several villagers. The complainant is of firm belief that the accused have burnt his daughter to death as the dowry demand could not be fulfilled.
3. Investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet. The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused, framed charges.
4. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 9 witnesses who are as follows:
1Gorey Lal PW1 2 Rani Devi PW2 3 Gopi Shyam PW3 4 Dr. R.K. Chaudhary PW4 5 Karamveer Singh PW5 6 Chandra Shekhar Verma PW6 7 Hari Singh PW7 8 Ayodhya Prasad Sachan PW8 9 Dr. Anil Kumar Shukla PW9
5. In support of ocular version following documents were filed:
1F.I.R.
Ex.Ka.2 2 Written Report Ex.Ka.1 3 Panchayatnama Ex. Ka.15 4 Postmortem Report Ex.Ka.6 5 Site Plan Ex.Ka.11 6 Charge-sheet Ex.Ka.5
6. At the end of the trial and after recording the statement 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 appellants as mentioned aforesaid.
7. Heard Sri Swayamanand Sisodiya assisting Sri Kamlesh Kumar Tripathi for the appellants and learned A.G.A. for the State and perused the record.
8. Learned counsel for the appellant has submitted that the appellant has been falsely implicated by the informant as there was no demand of additional dowry on the part of the appellant.
9. It is further submitted that there is no overt act on the part of father-in-law and mother-in-law and they have been falsely implicated in the present case and only general allegations have been levelled against them.
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 No.1 (husband) is in jail for more than 17 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 9.12.2022.
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-appellants. Looking to the gruesomeness of the offence, no leniency can be shown to the accused-appellant by this Court.
12. The appellant No.1 is in jail since 17 years. The husband has taken her to the hospital and even her dying declaration dated 1.5.2008 before the Naib Tehsildar has been believed by the trial court. There is no allegation against the mother-in-law and father-in-law and even the husband. However, in the second dying declaration, allegation has been levelled against the husband, mother-in-law and father-in-law. The multiple dying declaration, according to the Counsel, cannot be accepted. The same casts doubt. Even if we accept the second dying declaration which is contrary to the first dying declaration, the husband having taken the deceased to the hospital will not permit us to concur with the learned Judge.
13. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of accused-appellant No.1. However, as there is no overt act to the father-in-law and mother-in-law and there are general allegations levelled against them and hence they are acquitted.
14. Now we move to the alternative submission of learned counsel for the appellant that the punishment of life imprisonment is too harsh which requires to be reduced looking to the facts and circumstances of the case more particularly the dying declarations which are contradictory to each other.
15. 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.
16. 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."
17. '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.
18. 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.
19. 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.
20. 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.
21. In view of the above, the conviction of accused-appellants under Section 304B is maintained. However, as far as punishment is concerned, we substitute the same to 10 years' rigorous imprisonment as far as accused-appellant No.1 is concerned. The accused-appellant No.1 be freed immediately without seeking any bail. We are dismayed that despite the fact that 17 years have elapsed, the case of the accused has not been considered for remission though it is not a heinous crime. Rather no case of 304 part B is even made out from the dying declaration of the deceased against the mother-in-law and father-in-law. They are acquitted and as they are already on bail, they need not surrender. Their bail bonds are cancelled.
22. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. The impugned judgment and order shall stand modified to the aforesaid extent.
23. This Court is thankful to learned Advocates for ably assisting the Court.
Order Date :- 12.1.2023 Irshad