Allahabad High Court
Pooja Sharma vs State Of U.P. Thru. Prin. Secy. Home, ... on 21 April, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on : 06.04.2023 Delivered on : 21.04.2023 Court No. - 13 Case :- CRIMINAL APPEAL No. - 315 of 2023 Appellant :- Pooja Sharma Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. Counsel for Appellant :- Mahendra Pratap Verma,Manoj Kumar Srivastava Counsel for Respondent :- G.A. Hon'ble Suresh Kumar Gupta,J.
1. Heard Mr. M. Waris Farooqui Advocate holding brief of Mr. Manoj Kumar Srivatsava, learned counsel for appellant, Mr. Vijay Prakash Dwivedi, learned A.G.A. for the State and perused the trial court record.
2. The present criminal appeal has been preferred by the appellant against the judgment and order dated 18.10.2022 passed by learned Additional Sessions Judge-5/Special Judge (Gangster Act), Lucknow in Sessions Trial No. 1252 of 2017 arising out of Case Crime No. 174 of 2016, under Section 306 IPC, Police Station Jankipuram, District Lucknow. By the said judgment, the appellant has been convicted and sentenced for offence under Section 306 IPC for a period of ten years rigorous imprisonment and fine of Rs.10,000/-. In default of payment of fine, she was to undergo one year's additional imprisonment.
3. The prosecution case in brief is that complainant Prem Sharma lodged a report at Police Station Jankipuram, Lucknow alleging therein that marriage of his son Harikesh Sharma was solemnized on 27.02.2016 with accused appellant Puja Sharma daughter of Santosh Sharma R/o of Mangal Bazar, Police Station Rudauli District Faizabadd as per hindu rites and rituals. After the marriage when daughter in law came to her matrimonial home, her behaviour was very rude but the family members avoided. However, after the Chauthi ceremony, his son brought the accused appellant Puja Sharma to her matrimonial home but her behaviour became very rude towards her in-laws family members. She was made to understand but she said that she had illicit relations with one Sumit Kumar son of Paras Nath R/o Puremiyan, Police Station Kotwali Rudauli, Faizabad and she wants to live with him. She further told that if any forceful relationship is made with her, she will commit any incident and will implicate her matrimonial family members. Due to fear family members of complainant remained silent. Thereafter his daughter-in-law forcefully went her parental house and from there she went away with her lover Sumit. Regarding this incident, an FIR was lodged by his son at Police Station Rudauli, District Faizabad. Thereafter his daughter-in-law Puja Sharma and Sumit Kumar appeared at the police station and amicably settlement took place between the parties. It is said that after the settlement, when his son came to Lucknow and started routine life, he received threats from various mobile phone. Due to this reason, his son became very scared and remained depressed. On 14.6.2016 his son on account of continuous threats, committed suicide. On search of his pocket a suicide note was found in which it has been mentioned that accused appellant Puja Sharma is responsible for suicide of son of complainant.
4. On the basis of aforesaid written report of Prem Sharma, a case crime number 174 of 2016 under Section 306 IPC was registered at Police Station Jankipuram District Lucknow on 21.06.2016 at 2:45 p.m.
5. After completing all the formalities of the investigation, the Investigating Officer filed charge sheet against the appellant under Sections 306 IPC. Thereafter the committal order was passed by the learned Additional Chief Judicial Magistrate-5, Lucknow on 26.10.2017 and case was committed to the court of Sessions for trial.
6. After hearing both the parties, the charges were framed against the appellant by the trial court on 9.12.2018 under Section 306 IPC in which charges were read-over to the appellant in hindi to which she denied the allegation levelled against her and claimed to be tried.
7. In order to prove its case, the prosecution has examined PW-1 complainant Prem Sharma, father of the deceased, PW-2 Vimlesh Sharma, who is the brother of the deceased, PW-3 Nirmala Sharma, sister of deceased, PW-4 Smt. Sushma Sharma, mother of deceased, PW-5 Jai Prakash Sharma, PW-6 Gautam Sharma, cousin brother of deceased, PW-7 Constable Saurabh Singh Tomar, PW-8 Dr. VAvin Chandra Senior Consultant Radio-logist, Dr. Shymam Prasad Mukharjee, Civil Hospital, Lucknow PW-9 Investigating Officer Yashkant Singh, PW-10 Inspector Rajesh Kumar Rai, PW-11 Investigating Officer Pawan Kumar Gangwar, PW-12 S.I. Daya Shankar Singh and PW-13 Investigating Officer Inspector Suresh Kumar Patel.
8. PW-1 to PW-6 are the witnesses of fact and others are the formal witnesses.
9. In addition to above oral evidence of witnesses, the prosecution had relied on documentary evidence such as; FIR Ex. Ka-1, suicide note Ex. Ka-2, Check FIR Ex. Ka-3, G.D. Entry No. 46, dated 21.6.2016 as Ex. Ka-4, Postmortem Report as Ex. Ka-5, Panchayatnama Ex. Ka-6, Police Form No. 13 as Ex. Ka-7, Photolash Ex. Ka-8, death memo G.D. Entry as Ex. Ka-9, Charge sheet Ex. Ka-10, site plan Ex. Ka-11 and handwritten diary Ex. Ka-12.
10. In her defence, Shashibhan was examined as DW-1 and Sukhmata wife of Rajesh as DW-2.
11. Subsequent to closure of prosecution evidence, statement of appellants under Section 313 Cr.P.C. was recorded by trial court explaining entire evidence and other incriminating circumstance. In statement recorded under Section 313 Cr.P.C., the accused appellant denied prosecution version and submitted that all the allegations levelled and attributed to her is totally false.
12. After hearing both the parties and appreciating entire oral and documentary evidence available on record, the trial court convicted and sentenced the appellant as aforesaid. Being aggrieved with the judgment of the trial court, this criminal appeal has been preferred by the appellant.
13. Learned counsel for appellant has submitted that the trial court has committed an error in not considering the point that FIR has been lodged with a considerable delay and no plausible explanation has been given for delay in lodging the FIR by the prosecution. It is also submitted that it is a case of prosecution that the suicide note was found. As a matter of fact, no such recovery has been mentioned in the police record and further submitted that Ex. Kah-2 suicide note is without date and signature, so the authenticity of suicide note is also doubtful.
14. Learned counsel for appellant submitted that FIR of this case was lodged with a considerable delay. The incident took place on 14.6.2016 and FIR of this case was lodged on 21.06.2016 after inquest and postmortem of the deceased Harikesh. The complainant has not given any satisfactory reason for not lodging the FIR immediately after the incident. Therefore the FIR of this case was lodged with due deliberation and consultation.
15. It is further submitted that witnesses of facts are family members of the deceased, who are interested and related witnesses and no independent witness was examined by the prosecution. Further on behalf of the defence side, DW-1 and DW-2 were examined but the learned trial court without appreciating the evidence of defence witnesses wrongly convicted the appellant.
16. It is further submitted that even if it is presumed that the prosecution has been able to prove its case beyond reasonable doubt, the trial court ought to have consider that the accused appellant is a lady and before conviction he has already served out more than five years sentence in jail. The sentence of ten years rigorous imprisonment awarded by the trial court is too excessive and lenient view may be taken in convicting the accused appellant and prays that minimum sentence may be imposed upon the appellant.
17. Learned A.G.A. for the State has opposed the prayer of the appellant and has submitted that there is no material irregularity or illegality committed by the trial court. Further submission is that keeping in view the evidence available on record the accused- appellant has rightly been convicted by the trial court.
18. Learned counsel for appellant has submitted that the in the basic definition of Section 306 I.P.C. the primary requirement of the Section 306 I.P.C. is that there must be abatement of suicide on behalf of the appellant and only the person whoever abates for the commission of such suicide before the death of the deceased can be held responsible for the commission of an offence under Section 306 I.P.C.
306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
19. The Section 107 I.P.C. deals with the basic definition of abatement which says that:-Abatement of a thing:-
A person abets the doing of a thing when:
(Firstly) He instigates any person to do that thing; or (Secondly)- He engages with one or more other persons in any conspiracy for the doing of that thing; or (Thirdly) - He intentionally aids, by an act or illegal omission, the doing of that thing.
20. He further submitted that similarly abettor has been defined in Section 108 I.P.C. which lays down that :-A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.
21. In support of his submission, learned counsel for the appellant relies upon the judgment of Hon'ble Supreme Court in the case of Amalendu Pal @ Jhantu Vs. State of West Bengal (2010) 1 Supreme Court Cases 707 and State of West Bengal Vs. OriLal Jaiswal and Another (1994) 1 Supreme Court Cases 73.
22. Lastly, learned counsel for the appellant submitted that the appellant was arrested on 25.8.2017 and since then she is in jail. Thus, he was detained in judicial custody near about six years. Therefore, learned counsel for the appellant prayed for leniency.
23. Not pressing the criminal appeal after the conviction of the accused/appellant by the trial court is like the confession of the offence by the accused. The Courts generally take lenient view in the matter of awarding sentence to an accused in criminal trial, where he voluntarily confesses his guilt, unless the facts of the case warrants severe sentence.
24. 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 re-culturization. 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."
25. In Sham Sunder vs Puran, (1990) 4 SCC 731, where the High Court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:
"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."
26. In State of MP vs Najab Khan, (2013) 9 SCC 509, the High Court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12 SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:-
"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."
27. Earlier, "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 proportionately. 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.
28. In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77, it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in 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.
29. In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449, it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.
30. 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.
31. 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.
32. Perusal of record shows that so far as the behaviour of accused appellant Puja Sharma is concerned, PW-1 complainant Prem Sharma, PW-2 Vimlesh Sharma, brother of the deceased, PW-3 Nirmala Sharma, sister of deceased, PW-4 Smt. Sushma Sharma, mother of deceased, have fully established and supported the case of the prosecution regarding illicit relations of accused with Sumit Kumar. An FIR had also been lodged by the deceased against the appellant at Police Station Rudauli. In these circumstances, it is wrong to say that accused appellant has wrongly been implicated in this case. The prosecution has also been able to prove about the phone calls being made from various mobile numbers to the deceased. The medical evidence also supported the case of the prosecution. But keeping in view the fact that the appellant is a lady and the trial court has awarded maximum sentence of ten years rigorous imprisonment and no minimum sentence is provided in the said section and the appellant has served out more than five years of her sentence under Section 306 IPC.
33. Considering the entire facts and circumstances of the case and the fact that the appellant has already served the sentence about six years, I am of the view that in the interest of justice the sentence of ten years awarded to the appellant under Section 306 I.P.C. is reduced from ten years to six years with all remission. Fine clause under Section 306 I.P.C. shall be unaltered.
34. Jail authority shall calculate the sentence period along with remission. The period already spent in jail shall be set off from the sentence awarded by this Court. The appellant shall be released immediately after serve out the period of six years imprisonment with all remission.
35. Thus, the appeal is dismissed on point of conviction and partly allowed on the point of sentence i.e. ten years maximum sentence under Section 306 I.P.C. awarded by the trial court is reduced to six years imprisonment and fine clause awarded by the learned trial court shall be unaltered.
36. Office is hereby directed to communicate the judgment and order of this Court to the trial court as well as jail authority concerned to calculate the period of sentence along with remission and release immediately after completing of period of six years. The trial court record be also transmitted to the learned trial court.
Order Date :- 21.04.2023 Virendra