Allahabad High Court
Puttan Yadav @ Vipin vs State Of U.P. on 3 February, 2023
Author: Pritinker Diwaker
Bench: Pritinker Diwaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 16.11.2022 Court No. - 45 Delivered on 03.02.2023 Case :- CRIMINAL APPEAL No. - 386 of 2014 Appellant :- Puttan Yadav @ Vipin Respondent :- State of U.P. Counsel for Appellant :- Nikhil Kumar,Jitendra Singh,Lalji Yadav,Sudhakar Yadav,Yashpal Yadav Counsel for Respondent :- Govt. Advocate Hon'ble Pritinker Diwaker,J.
Hon'ble Nalin Kumar Srivastava,J.
(Per : Nalin Kumar Srivastava, J.)
1. Present criminal appeal has been preferred by the appellant Puttan Yadav @ Vipin against the judgement and order dated 20.1.2014 passed by the Sessions Judge, Kanpur Dehat in Sessions Trial No.91 of 2013 (State vs. Puttan Yadav @ Vipin), arising out of case crime no. 638 of 2012, convicting and sentencing the appellant for the offence punishable under Section 304 (Part-I) IPC to undergo life imprisonment and a fine of Rs. 5,000/- with stipulation of default clause.
2. Brief facts of the case, as culled out from the record, are that a written report was submitted by the complainant Gore Lal son of Ram Nath, resident of village Chakeri, Police Station Chakeri, District Kanpur Nagar at Police Station- Akbarpur, District- Kanpur Dehat in which averments were made that Km. Laxmi, niece (bhanji) of the informant, aged about two years, had sustained injuries and she was hospitalized at Kabir Hospital, Kanpur Nagar by the appellant and his family members. She expired during treatment. Anita, sister of the informant, was also harassed by the accused persons.
3. On the basis of the written report (Ext. ka-1), Death Information Report (Ext. ka-2) was registered at Police Station concerned on 30.10.2012 at 9.15 a.m., mentioning all the details as described in Ext. Ka-1. After post mortem and enquiry, a G.D. entry for registration of the case was also made, which is Ext. Ka-3.
4. Investigation of the case proceeded. The Investigating Officer recorded the statements of the witnesses, inspected the spot and prepared site plan. He also prepared the inquest report of the deceased and papers relating to post mortem.
5. Post mortem of the dead body of the deceased was performed and Autopsy report (Ext. ka-4) was prepared by Dr. Sanjeev Kumar on 30.10.2012 at 2.30 p.m. On examination of the dead body of the deceased, following ante-mortem injuries were found:
"(1). Abrasion - 3 cm X 2 cm over Right side of fore head approx 3 cm above Right eye brow.
(2) Abrasion - 2 cm X 1 cm over left side of fore head, approx 4 cm above Left eye brow.
(3) Contusion - 2 cm X 2 cm, at vertex (Top of scalp).
(4) Contusion - Swelling - 4 cm X 4 cm, over occipital region.
(5) Contusion - 5 cm X 4 cm, over right cheek.
(6) Contusion - 3 cm X 3 cm, over left cheek."
6. In the opinion of the doctor, death was caused by reason of shock due to injuries on vital parts (Head Injury).
7. After completing the investigation, charge-sheet (Ext. ka-12) against the accused appellant was filed. Concerned Magistrate took the cognizance and the case, being exclusively triable by Sessions Court, was committed to the Court of Sessions.
8. Accused appeared before the trial court and charge under Section 304 IPC was framed against him. Appellant denied the charge and claimed his trial.
9. Trial proceeded and to bring home the charge against the accused / appellant, prosecution has examined in all five witnesses, who are as follows:
1Gore Lal PW-1 (informant) 2 Smt. Anita PW-2 (mother of the deceased) 3 Head Constable Ram Autar PW-3 (scribe of G.D.) 4 Dr. Sanjiv Kumar PW-4 (who performed the autopsy of the deceased) 5 Adhya Prasad Verma PW-5 (Investigating Officer)
10. In support of oral version, following documents were filed and proved on behalf of the prosecution:
1Written report Ext. A-1 2 Death information G.D. Ext. A-2 3 Registration G.D. Ext. A-3 4 Post mortem report Ext. A-4 5 Inquest Report Ext. A-5 6 Letter to C.M.O. Ext. A-6 7 Challan Nash Ext. A-7 8 Letter to C.M.O. Ext. A-8 9 Letter to R.I. Ext. A-9 10 Photo Nash Ext. A-10 11 Site plan Ext. A-11 12 Charge sheet Ext. A-12
11. After conclusion of evidence, statement of accused appellant was recorded under Section 313 CrPC, wherein he pleaded inter alia his false implication, as his relations with his wife and in-laws were not cordial. He further stated that while he was climbing stairs with her daughter, she tripped and sustained injuries.
12. In support of its case, defence has examined DW-1 Ravindra and DW-2 Shivnath Pal. However, no documentary evidence was produced.
13. PW-1 and PW-2 are the witnesses of fact.
14. P.W-1, namely, Gore Lal in his oral testimony has stated that her sister was married with the appellant (Vipin @ Puttan Yadav), resident of village Chiraura, Police Station Akbarpur, District Kanpur Dehat. Deceased was his niece (Bhanji). On 29.10.2012, telephonic information was received from the in-laws of her sister that his brother-in-law Vipin @ Puttan after beating his niece, hospitalized her at Kabir Hospital, Yashoda Nagar, Kanpur Nagar. When the informant reached the hospital, he found her niece dead. Thereafter, he came to police chauki Raniya alongwith the dead body of his niece to lodge F.I.R.. He has further stated that the relations between his sister and brother-in-law were not cordial and he used to beat her.
15. P.W.-2 Anita, is the wife of the appellant. She has stated that she was married with the appellant eight years ago. Three children were born-out from their wedlock, but two had expired. Laxmi was aged about 2 years. On the road situated in front of her house, she (deceased) started pooping. Angered with this, appellant rushed towards the house of his brother, scolding and dragging her. She also followed him. In the house of his brother, he slammed her to the ground due to which her head banged against the wall. Thereafter, she along with her father-in-law and cousin of appellant, proceeded to Kabir Hospital for treatment, where her daughter succumbed to her injuries.
16. PW-3 to PW-5 are the formal witnesses.
17. PW-3 - Constable Ram Autar, is scribe of F.I.R., who has proved Death Information Report Ext. ka-2 and registration of G.D. Ext. ka-3.
18. PW-4 Dr. Sanjiv Kumar, has performed the autopsy of the deceased and prepared the Autopsy Report Ext. ka-4.
19. PW-5 Sub-Inspector Adhya Prasad Verma, is the Investigating Officer of the case, who has proved the proceeding of investigation in his testimony and also the inquest and various papers relating to post mortem as Ext. ka-5 to Ext. ka-10. Site plan Ext. ka-11 and charge sheet Ext. ka-12 were also proved by PW-5.
20. On the basis of aforesaid oral and documentary evidence, learned trial court recorded the conviction of the accused and sentenced him, as mentioned herein-above.
21. Heard Shri Sudhakar Yadav, learned counsel for the appellant and Shri Nitin Kesarwani, learned AGA and Ms. Mayuri Mehrotra for the State.
22. The impugned judgment and order has been assailed on various grounds by the learned counsel for the appellant. It has been argued that the appellant being the real father of the deceased, had no motive, at all, to do away with the deceased. There is no independent eye witness of the occurrence and the appellant has been falsely implicated in this matter, as he had strained relations with his wife Anita and her brother, the informant. It was just an accidental death and the appellant had no role in commission of crime. It has also been submitted that the wife of the appellant was insisting to live with her parents and also asked the appellant to live with her in her parents' house after selling the fields, but the appellant had denied. It is further submitted that the medical evidence does not support the prosecution version and the investigation is faulty.
23. On the aforesaid grounds, prayer for setting aside the impugned judgment and order has been made by allowing the present appeal.
24. Per contra, the learned AGA has vehemently opposed the appeal and submitted that the impugned judgment is based on cogent and reliable evidence and there is no infirmity in the same. It is a case of eye witness account and the deposition of eye-witness / PW-2 is reliable and finds corroboration from the medical evidence. There was no possibility of false implication of accused appellant and no material omission or irregularity is found in the investigation of the case. On the basis of aforesaid grounds, it has been prayed that the appeal is devoid of merits and is liable to be dismissed.
25. In light of the rival contentions of both the sides, we have gone through the entire oral and documentary evidence on record.
26. The medical evidence is a crucial and significant piece of evidence which, if corroborates the prosecution version, and eye-witness account, the prosecution would certainly succeed in proving its case.
27. This theory leads us to sift the medical evidence on record in light of the oral ocular evidence.
28. PW-4 - Dr. Sanjeev Kumar, has performed the autopsy of the deceased, who was a small girl aged about two years only. The ante mortem injuries found at the time of post mortem were abrasion and contusion, as deposed by PW-4. It is important to note that the doctor - PW-4, who has proved the autopsy report Ext. ka-4, has found clotted blood in scalp beneath the injuries described externally and fracture of both parietal bones with suture loosening under vertex was also found and clotted blood was also found present under meninges and meningeal space. The immediate cause of death was shock due to the injuries on vital parts i.e. the head injury which was sufficient to cause death. The injuries of abrasion and contusion were also found in the area of forehead scalp and cheek. Now if we pay attention to the prosecution version, as also explained by PW-2 in her deposition, deceased was firstly dragged by the accused and slammed to the ground as a result of which, her head banged against wall and fatal injury was caused to her, we have no hesitation to hold that the injuries found on the body of the deceased by the doctor would have been caused in the same manner as deposed by PW-2.
29. The analysis of medical evidence takes us through the inquest report, which has been proved by the PW-5 as Ext. ka-5 wherein the panchas have also opined that the death of the deceased Laxmi seems to be a result of assault. It is also to be noted that in the inquest report itself, the injuries found on the body of the deceased have been mentioned. The occurrence is said to be committed on 29.10.2012, as stated by the PW-1, the inquest report has been prepared on 30.10.2012 and the autopsy was also performed on 30.10.2012 itself. We are of the considered view that the injuries caused to the poor child were sufficient in the ordinary course of business to cause her death and the prosecution story as such is fully corroborated by the medical evidence.
30. It has been further submitted by the learned counsel for the appellant that the ocular testimony of PW-2 only, the wife of the appellant, is available on record, who had strained relations with her husband, the appellant. It is argued that it is a case of false implication and whole testimony of PW-2 is concocted and fabricated. To give force to his contention, learned counsel for the appellant has also impressed upon the defence evidence which, according to him, bears the true story of the incident.
31. The aforesaid argument of learned counsel for the appellant takes us through the evidence rendered by the accused and other evidence available on record.
32. DW-1 Ravindra, is said to be the neighbour and brother of the appellant. He has deposed that the deceased was his niece and at the time of occurrence, Anita, the wife of the accused appellant, was present in his house. When they heard the shrieks of Laxmi, they ran towards the house of accused and found that when the appellant was climbing the stairs alongwith his daughter, suddenly she slipped and sustained injuries. She was taken to Kabir Hospital but during treatment she died. He has also explained that the wife of the appellant was willing to live with her parents and to sell out the land of the accused but when he was not ready to do so, he was falsely implicated in this case. In his cross-examination, DW-1 has stated that when he reached the spot, Laxmi was already injured and she had got injuries over her head, cheek and scalp. The aforesaid statement of DW-1 is sufficient to show that he was not present on the spot at the time of occurrence and when he reached the spot, occurrence had already happened. Hence, he is not the eye-witness to the incident.
33. DW-2 Shivnath Pal is the neighbour of accused appellant. He has stated that on 20.10.2012 at about 3.30 p.m. he had seen that Puttan Yadav was climbing over his roof through wooden ladder alongwith his daughter Laxmi and suddenly she tripped and sustained injuries. He ran to the spot and meanwhile Puttan's brother Ravindra, his wife, wife of Puttan and other villagers also reached there and Laxmi was taken to the hospital. In his cross-examination, DW-2 has stated that his house is situated only at the distance of 10 steps from the house of the accused appellant.
34. With a view to properly scrutinize and analyze the evidence on record, we have gone through the site plan Ext. ka-11 proved by PW-5, which contains the clear topography of the place of occurrence. A perusal of site plan Ext. ka-11 shows that no-where any house of Shivnath Pal DW-2 near the place of occurrence has been shown therein, which is a proof of the fact that DW-2, the so-called eye witness, adduced by the defence, was not the neighbour of the convict and was not an eye-witness to the occurrence, as well.
35. The deposition of DW-1 also reflects that the place of occurrence was the house of the convict, whereas in the site plan Ext. ka-11 the place of occurrence has been shown at the house of DW-1 / Ravindra itself. PW-2 / Anita also does not make any statement in consonance with DW-1 as she states in very clear terms that the accused dragged the child from the road to the house of his brother Ravindra and there the incident happened. In her cross-examination, she has explained that the accused had slammed her daughter outside the house of Ravindra on the ground. She has admitted this fact that, at that time, she was present in the house of her brother-in-law (Jeth) Ravindra but her deposition is specific on this point that the occurrence happened at the house of Ravindra and not inside the house of accused-appellant himself. PW-2 has made some reliable statements also. Significantly she has clarified that there is no ladder to go to the roof in the house of Ravindra and even in the house of her in-laws. This statement is corroborated from the site plan Ext. ka-11 as well. From a careful perusal of the Ext. ka-11, we find that no ladder has been shown in the house of DW-2 Ravindra and that of the convict - appellant himself.
36. It is noteworthy that the Investigating Officer / PW-5 has not been confronted by the defence side in respect of non-mentioning the ladder in the house of the accused. PW-5 has made a specific statement that the place of occurrence is the house of Ravindra and the field of Subedar exists in between the house of the appellant and that of Ravindra. The site plan has been prepared on the pointing out of Anita Devi - PW-2, who is the mother of the deceased.
37. On the basis of aforesaid discussions, the story that the incident occurred in the house of appellant himself at the time when he was climbing the stairs alongwith his daughter, the deceased, as put forth by the defence, comes to an end and was rightly rejected by the learned trial Court.
38. It has been further argued by learned counsel for the appellant that there is no independent witness to the occurrence. PW-2 / Anita is the mother of the deceased and is an interested witness. It is further argued that death of the deceased has been caused in a residential area but no person of the said vicinity has come out to depose in favour of the prosecution and the sole evidence of PW-2 is available on record.
39. To meet out this contention made by the learned counsel for the appellant, we have to sift the deposition of PW-2. PW-2, in her examination-in-chief, states in clear terms that when the appellant slammed the deceased, she made shouts but no one came there upon her shrieks. It is important to mention that no cross-examination has been made by the defence side over this point from the PW-2. Now the question arises before us whether non-examination of other witnesses, except the sole eye witness, by the prosecution, vitiates the prosecution story. This issue needs to be examined in light of the legal position and evidence available on record. We find, on the basis of testimony of PW-2, that no person of the vicinity came to the place of occurrence, except her.
40. We have to keep in mind that it is an established principle of law that to prove a given fact, particular number of witnesses need not be examined. In Section 134 of the Indian Evidence Act it has been provided that "No particular number of witnesses shall in any case be required for the proof of any fact." Reference can be placed on the decision of the Hon'ble Apex Court in Raj Narain Singh Vs. State of U.P. 2010 AIR SCW 521, wherein it has been held that it is not necessary that all those persons, who were present at spot, must be examined. It is quality of evidence which is required to be taken note of by the Courts and not the quantity. It is transpired from the close scrutiny of entire testimony of PW-2 that her evidence is quite innocent and trustworthy and she is wholly reliable witness. Her deposition in its continuity is quite instinctive and bears no contradiction in material particulars such as to the manner of assault, place of occurrence, author of crime and all other related factors. Her presence over the place of occurrence at the time of incident is quite natural, as she was sitting in the house of Ravindra, the real brother of the appellant, nearby her own house, where the incident occurred. It is very significant to note that PW-2, in the concluding part of her cross-examination, has stated that appellant had also killed her first daughter by pouring hot water upon her, however, she did not make any complaint to anyone regarding the same. Besides it, we cannot ignore the fact that PW-2, despite being the mother of the poor deceased, is the wife of the appellant also. She had got no occasion to falsely implicate her own husband for the murder of her daughter. Though a plea has been taken by the defence that PW-2 was insisting upon her husband to sell the agricultural field and to live with her in her parental house, yet we do not find any reliable evidence to this effect on record. Even DW-1 Ravindra, real brother of the appellant, states that Anita / PW-2 returned back to her matrimonial home from her parents' house two months before the occurrence alongwith the deceased child and from that day till the fateful day, no quarrel took place between the appellant and PW-2 / Anita. This statement also rules out any possibility of false implication of the appellant by the informant side.
41. We note that PW-1 is not the witness of fact prevailing in the present case. Admittedly, he was not present at the time of occurrence and he reached the hospital after receiving the information of death of her niece. He is the brother of PW-2 and proves the written report Ext. ka-1 in his deposition and also states that the written report is based upon the information given by Anita to him. He also states that the behaviour of the appellant was not good to his sister and he used to beat her. PW-2 has denied the fact that she ever insisted upon her husband to live separately with her at Kanpur City.
42. After carefully scrutinising and analysing the evidence of PW-2, we find no inconsistent statement or embellishment in her testimony. Her deposition is free from all infirmities and she is proved to be a reliable and natural witness and conviction can safely be recorded on the basis of statement of such witness, though she is the sole witness of the occurrence.
43. The Hon'ble Supreme Court in Kusti Mallaiah Vs. State of Andhra Pradesh (2013) 12 Supreme Court Cases 680 has laid down as follows:
"23. It has been held in catena of decisions of this Court that there is no legal hurdle in convicting a person on the sole testimony of a single witness if his version is clear and reliable, for the principle is that the evidence has to be weighed and not counted. In Vadivelu Thevar v. The State of Madras AIR 1957 SC 614, it has been held that if the testimony of a singular witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. In the said pronouncement it has been further ruled that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. Similar view has been expressed in Lallu Manjhi and another v. State of Jharkhand (2003) 2 SCC 401, Prithipal Singh and others v. State of Punjab and another (2012) 1 SCC 10 and Jhapsa Kabari and others v. State of Bihar (2001) 10 SCC 94.
44. The same view has been reiterated in Amar Singh Vs. State (NCT of Delhi) (2020) 19 Supreme Court Cases 165 wherein it has been held as follows:
....As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State ( NCT of Delhi) (2003) 11 SCC 367).
45. Upon the analysis of evidence of PW-2, we find that her evidence is cogent and trustworthy and further gets corroboration from the medical evidence. Her testimony leads us to the conclusion that PW-2 is a reliable and natural witness and minor discrepancies, if any, found in her evidence are ignorable.
46. In Ashok Kumar Chaudhary. Vs. State of Bihar 2008 (61), ACC 972 (SC) it has been categorically held that if the testimony of an eyewitness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected because certain insignificant, normal or natural contradictions have been appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material, in nature, then the testimony of an eyewitness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party's that the case, material discrepancies do so.
47. The evidence of PW-2 has also been assailed on the ground that she is the real mother of the deceased and as such, she is an interested witness and her evidence cannot be accepted as a gospel truth.
48. So far as the submission of PW-2 being an interested and relative witness is concerned, in this context the Hon'ble Apex Court in Bhagwan Jagannath Markad Vs. State of Maharastra (2016) 10 SCC has held that the testimony of a witness in a criminal trial cannot be discarded merely because the witness is a relative or family member of the victim of the offence. In such a case Court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of the testimony of such related witness.
49. The investigation of the case has also been assailed by learned counsel for the appellant, who vehemently submits that the investigation is faulty and there are several discrepancies in the investigation. However, from a perusal of the record, it is apparent that the present is a case based on eye-witness account and the eye-witness / PW-2 has given a cogent and reliable description of the incident. Her statement finds full corroboration from the medical evidence. The Investigating Officer has found the place of occurrence the same as has been narrated by PW-2. We find no material irregularity or omission / negligence in the investigation of the case. Moreover, since the prosecution case is well established and proved by ocular evidence supported with medical evidence, negligence or omission, if any, on the part of the Investigating Officer, does not adversely affect the prosecution version at all.
50. In Hema Vs. State, (2013) 81 ACC 1 (Supreme Court), it has been held by the Hon'ble Apex Court that any irregularity or deficiency in investigation by Investigating Officer need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation cannot be fatal to prosecution when ocular testimony is found credible and cogent.
51. It may be reiterated, at the cost of repetition, that the investigation in the present case does not suffer from any material irregularity. At the same time, F.I.R. and registration of G.D. has been proved by PW-3, whereas PW-1 proves the written report. Inquest report and relevant papers relating to autopsy have been properly proved by PW-5.
52. Considering the oral evidence of the witnesses, the documentary evidence and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant, as concluded by the trial court after meticulous analysis of the evidence on record. We concur with the same and, accordingly, confirm the conviction of the appellant under Section 304 (Part-I) IPC.
53. Learned counsel for the appellant, in the course of his argument, has further requested that the sentence recorded by the learned trial court is too severe and harsh and submits that the convict / appellant had no intention to do away with the deceased. He was the real father of the deceased and had no motive to kill her own daughter and in a spur of moment, the occurrence happened. He was a young man at the time of incident and has already spent more than ten years of incarceration and must be a repenting man.
54. Now it takes us to the quantum of sentence, specifically under Section 304 (Part-I) IPC, where life imprisonment has been awarded by learned trial court. For awarding the sentence, we have to keep in mind the theories of punishment in our country.
55. Discouraging the retributive theory, the reformative theory of the sentence has been impressed upon by the Hon'ble Apex Court in Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926. It has been observed by the Hon'ble 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."
56. On the other hand, in Deo Narain Mandal Vs. State of UP, (2004) 7 SCC 257, it was observed that while determining the quantum of sentence, the Court should bear in mind the 'principle of proportionality'.
57. If we translate the legal theories rendered by the Hon'ble Apex Court in various judgments, such as, Ravada Sasikala vs. State of A.P., AIR 2017 SC 1166, Jameel vs State of UP, (2010) 12 SCC 532, Guru Basavraj vs. State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, State of Punjab vs. Bawa Singh, (2015) 3 SCC 441, Raj Bala vs. State of Haryana, (2016) 1 SCC 463, Sham Sunder vs. Puran (1990) 4 SCC 731, M.P. vs. Saleem, (2005) 5 SCC 554 and Ravji vs. State of Rajasthan, (1996) 2 SCC 175, the settled legal position, which emerges out before us, is that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the Court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the Courts would operate the sentencing system, so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The Court will be failing in its duty, if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant, but it should conform to and be consistent with the atrocity and brutality in which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'.
58. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.
59. The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka, 2010 (87) AIC 43 (SC), where appeal was filed by convict husband in a dowry death case, while deciding the appeal of the appellant, modified the sentence. Paragraph 31 of the said judgment is reproduced below:
"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I. P. C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I. P. C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."
60. Applying the principles laid down by the Apex Court in the aforesaid judgements and having regard to the totality of the facts and circumstances of the case, particularly, the fact that no minimum sentence has been provided for the offence under Section 304 IPC, it appears to us from a perusal of the 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. Adopting the same reformative approach, we consider that no accused person is incapable of being reformed and, therefore, all measures should be applied in order to bring them in the social stream.
61. Keeping in view the reformative theory of punishment and "doctrine of proportionality", it appears to us that the sentence of life imprisonment awarded under Section 304 (Part-I) IPC by learned trial Court to the appellant is too harsh and severe. The appellant is in jail since 12.11.2012 i.e. for the last more than ten years. This fact is also admitted by learned AGA.
62. Hence, we are of the considered view that since the appellant has already served-out more than ten years jail sentence, the sentence of life imprisonment under Section 304 (Part-I) IPC is converted into the sentence already undergone, which would meet the ends of justice.
63. The appeal is, accordingly, partly allowed, subject to the above modification of sentence.
64. Registry is directed to transmit the record to the Court below for necessary compliance.
Order Date :- 03.02.2023
safi
(N.K. Srivastava, J.) (Pritinker Diwaker, J.)