Allahabad High Court
Pawan vs State Of U.P. on 29 November, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- CRIMINAL APPEAL No. - 2964 of 2014 Appellant :- Pawan Respondent :- State of U.P. Counsel for Appellant :- Sanjay Singh,Amrendra Nath Rai,Manoj Kumar Srivastava,Pradeep Saxena,Sandeep Kumar Rai,Shams Uz Zaman Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 2965 of 2014 Appellant :- Smt. Meera Devi And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Sanjay Singh,Amrendra Nath Rai,Sandeep Kumar Rai Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per: Hon'ble Ajai Tyagi, J.)
1. The appeal has been preferred by the appellant-Pawan against the judgment and order dated 15.07.2014, passed by Additional District Judge, Court No.12, Bareilly in Session Trial No. 756 of 2012, arising out of Case Crime No. 537 of 2012, under Sections 498-A, 304-B, 302 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Baradari, District Bareilly whereby the appellant-Pawan is convicted and sentenced for the offence under Sections 304-B I.P.C. for life imprisonment.
2. The second appeal has been preferred by the appellants namely, Smt. Meera Devi, Kapil and Km. Mona Mala against the judgement and order dated 15.07.2014 passed by Additional District Judge, Court No.12, Bareilly in Session Trial No.932 of 2013, arising out of Case Crime No.537 of 2012, under Sections 498-A, 304-B, 302 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Baradari, District Bareilly, whereby the accused-appellants, Smt. Meera Devi, Kapil and Km. Mona Mala are convicted and sentenced for the offence of under Section 498-A I.P.C. for two years imprisonment and fine of Rs.1,000/- each.
3. Brief facts of the case giving rise to this appeal are that a written report was sent by informant-Rajkumari (mother of the deceased) to D.I.G., Bareilly stating the fact that her daughter aged about 22 years was married to accused-appellant, Pawan before six months of the occurrence and her daughter was subjected to cruelty for demand of additional dowry just after the marriage. At last, on 06.04.2012, deceased was set ablezed by pouring the kerosene oil on her in her matrimonial home. The husband, mother-in-law, brother-in-law (Devar) and sister-in-law (Nanad) of the deceased were involved in the aforesaid crime. It is also stated in the written report that her complaint in this regard is not being entertained by the concerned police station.
4. On the basis of aforesaid written report, a case was registered at police station Baradari, District Bareilly as Case Crime No.537 of 2012, under Section 307, 498-A, 323 I.P.C. and Section 3/4 of D.P. Act. During the treatment, victim died after nine days of the occurrence. The investigation was taken up by the Investigating Officer. After the death of the deceased, the case was converted into Section 304-B I.P.C. along with other offences.
5. During the course of investigation, Investigating Officer has recorded the statement of witnesses under Section 161 Cr.P.C. After completion of investigation, I.O. submitted the charge sheet against the accused-appellants Pawn, Smt. Meera Devi, Kapil and Km. Mona Mala under Sections 498-A, 304-B, 307, 323 I.P.C. and Section 3/4 of D.P. Act.
6. Learned trial court took the cognizance on charge sheet. The matter being exclusively triable by the court of sessions, which was committed to the court of sessions where learned Trial Judge framed the charges against the accused persons. Accused-appellant denied the charges and claimed to be tried.
7. To bring home the charges, the prosecution examined following witnesses:
1.
Smt. Rajkumari P.W.-1
2. Guddu Prasad P.W.-2
3. Shiv Charan P.W.-3
4. Ramesh Chandra P.W.-4
5. Gopal P.W.-5
6. Dr. Subhas Chandra Sundar Pal P.W.-6
7. Girdhari Lal P.W.-7
8. Vijay Yadav P.W.-8
9. Sushil Kumar Verma P.W.-9
10. Om Prakash Yadav P.W.-10
11. Raju Rav P.W.-11
8. In support of oral evidence, prosecution submitted following documentary evidence, which was proved by leading oral evidence:-
1.
FIR Ex.ka-4
2. Written report Ex.ka-1
3. Post-mortem report Ex.ka-3
4. Panchayatnama Ex.ka-2
5. Charge sheet Ex.ka-14 & 15
6. Site plan with index Ex.ka-16
9. After completion of prosecution evidence, the statement of accused was recorded under Section 313 of Criminal Procedure Code (Cr.P.C.) and after completion of prosecution evidence, in which they told that false evidence has been let against them. Accused-appellants have examined two witnesses in defence. After hearing the arguments of both the sides, learned trial court convicted all the accused persons.
10. Heard Mr. Sandeep Kumar Rai, learned counsel for the appellants and learned counsel for the State. Record has been perused.
11. Learned counsel for the accused-appellant has submitted that appellants have been falsely implicated by the informant because there was no demand of additional dowry on the part of the appellant or any of his family members. This is a case of suicide. In fact, deceased was not having any child and remained under continuous depression. On the date of said occurrence, she was committed suicide by pouring kerosene oil on her and herself set ablezed.
12. It is also submitted by learned counsel for the appellants that in First Information Report, the role of setting ablazed is also assigned to Smt. Meera Devi, Kapil and Km. Mona Mala but learned trial court did not find guilty for the offence under Section 304-B I.P.C. and they were convicted only for the offence of Under Section 498-A I.P.C. and Section 4 of Dowry Prohibition Act. It means that F.I.R. was lodged with false exaggerated version. Moreover, accused-appellants Smt. Meera Devi, Kapil, Km. Mona Mala were living separately from the husband of the deceased and they never demanded any additional dowry.
13. It is next submitted that appellant-Pawan solemnized love marriage with the deceased, therefore, there was no question of demanding any additional dowry. F.I.R. is lodged after a delay of five days to pressurise the appellants. All the witnesses have turned hostile and they have not supported the prosecution version. Only on the basis of dying declaration of the deceased, learned trial court had convicted the accused-appellants. This dying declaration is not corroborated by any of the prosecution witness, therefore, no reliance could have been placed on such dying declaration, which is not corroborated and conviction cannot be based solely on the basis of dying declaration. There is no sufficient evidence on record to convict the accused-appellants.
14. Learned counsel for the accused-appellants has relied on the judgment of Hon'ble Apex Court in the case of Kashmira Devi Vs. State of Uttarakhand and Others, 2020 0 Supreme (SC) 81 and the judgment of this Court in the case of Anil Kumar Vs. State of U.P., 2022 0 Supreme(All) 976.
15. Learned A.G.A. has submitted that F.I.R. is not lodged with the delay because report of mother of the deceased was not being entertained by the police concerned, therefore, she made an application to the D.I.G. Bareilly then the case was registered. There is no delay on the part of the informant. It is next submitted that witnesses of fact connived with the appellants, therefore, they did not told the truth and they turned hostile but there is a dying declaration of the deceased on record, in which, she has clearly stated that her husband/accused set her ablazed in the room by pouring kerosene oil and ran away. It is also stated in the dying declaration that other appellants used to demand additional dowry from her, therefore, all the accused-appellants were responsible for death of the deceased.
16. Learned A.G.A. has further submitted that reliance can be placed on dying declaration and it is not necessary that dying declaration must be supported by some other evidence. If dying declaration inspires confidence then it can be acted upon solely. Moreover, accused-appellant Pawan has not given any explanation in his statement recorded under Section 313 Cr.P.C. as to how the death of the deceased had taken place and, therefore, there is no illegality or impropriety in the impugned judgment and order, which calls for any interference by this Court.
17. In alternative, learned counsel for the appellants has submitted that deceased died after nine days of the occurrence because of septicemia, which is evident from the post-mortem report, hence, death of the deceased is septicemial death, which was due to carelessness in the treatment, otherwise, her life could be saved. Therefore, in view of septicemial death, learned trial court has imposed a very harsh and severe punishment to the appellant-Pawan by sentencing him for life imprisonment under Section 304-B I.P.C., which can be reduced.
18. This is admitted fact that death of the deceased occurred in her matrimonial home due to burning. Post-mortem report shows that she died in hospital due to septicemia. Dr. Subhas Chanda Sundar Pal, P.W.-6 conducting the post-mortem has also corroborated this fact in his testimony that death of the deceased occurred due to septicemia. As far as the hostility is concerned, in our view, the hostility of hostile witnesses should be looked into with great care and caution. The testimony of hostile witnesses cannot be brushed aside. It can be relied to the extent it supports the prosecution case.
19. Hon'ble Apex Court in Koli Lakhmanbhai Chandabhai vs. State of Gujarat [1999 (8) SCC 624], as held that evidence of hostile witness can be relied upon to the extent it supports the version of prosecution and it is not necessary that it should be relied upon or rejected as a whole. It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
20. In Ramesh Harijan vs. State of U.P. [2012 (5) SCC 777], the Hon'ble Apex Court has also held that it is settled legal position that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether.
21. In State of U.P. vs. Ramesh Prasad Misra and another [1996 AIR (Supreme Court) 2766], the Hon'ble Apex Court held that evidence of a hostile witnesses would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. Thus, the law can be summarized to the effect that evidence of a hostile witness cannot be discarded as a whole, and relevant part thereof, which are admissible in law, can be used by prosecution or the defence.
22. Perusal of impugned judgment shows that learned trail court has scrutinised the evidence on record very carefully.
23. As far as the dying declaration is concerned, it is not necessary in all the matters that dying declaration should be corroborated by other evidence. If it is reliable and inspires confidence it can be acted upon solely and conviction can be based only on the basis of dying declaration.
24. Learned counsel for the appellant has argued that dying declaration is doubtful and not corroborated by witnesses of fact, hence, it cannot be the sole basis of conviction. Legal position of dying declaration to be the sole basis of conviction is that it can be done so if it is not tutored, made voluntarily and is wholly reliable. In this regard, Hon'ble Apex Court has summarized the law regarding dying declaration in Lakhan vs. State of Madhya Pradesh [(2010) 8 Supreme Court Cases 514], in this case, Hon'ble Apex Court held that the doctrine of dying declaration is enshrined in the legal maxim nemo moriturus praesumitur mentire, which means, "a man will not meet his Maker with a lie in his mouth". The doctrine of dying declaration is enshrined in Section 32 of Evidence Act, 1872, as an exception to the general rule contained in Section 60 of Evidence Act, which provides that oral evidence in all cases must be directed, i.e., it must be the evidence of a witness, who says he saw it. The dying declaration is, in fact, the statement of a person, who cannot be called as witness and, therefore, cannot be cross-examined. Such statements themselves are relevant facts in certain cases.
25. The law on the issue of dying declaration can be summarized to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been recorded by a person at a time when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. It is also held by Hon'ble Apex Court in the aforesaid case, that a dying declaration recorded by a competent Magistrate would stand on a much higher footing than the declaration recorded by office of lower rank, for the reason that the competent Magistrate has no axe to grind against the person named in the dying declaration of the victim.
26. The deceased survived for nine days after the incident took place. It is not the case of prosecution even that victim was not in a fit condition to make the dying declaration, therefore, dying declaration cannot be believed. In the wake of aforesaid judgments of Lakhan (supra), dying declaraion cannot be disbelived, if it inspires confidence. On reliability of dying declaration and acting on it without corroboration, Hon'ble Apex Court held in Krishan vs. State of Haryana [(2013) 3 Supreme Court Cases 280] that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration.
27. From the above case laws, it clearly emerges that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused when such dying declaration is true, reliable and has been recorded in accordance with established practice and principles and if it is recorded so then there cannot be any challenge regarding its correctness and authenticity.
28. It is admitted fact that deceased survive for nine days after the date of occurrence, therefore, truthfulness of the dying declaration can further be evaluated from the fact that she was in fit condition to make the statement at the relevant time and in dying declaration she had not unnecessarily involved other family members of accused-appellant Pawan by attributing the role of burning to them. She had only attributed the role of burning to her husband Pawan, in such a situation, hostility of witnesses of fact cannot demolish the value and liability of the dying declaration of the deceased.
29. In view of above discussion, we are of the considered opinion, the prosecution has proved the offence under Section 304-B, 498-A I.P.C. and Section 4 of Dowry Prohibition Act against the accused-appellant Pawan and also has proved the offence under Section 498-A I.P.C. and Section 4 of Dowry Prohibition Act against other accused persons and the learned trial court has rightly convicted them for the aforesaid offences.
30. As far as the quantum of sentence is concerned, learned counsel for the appellants has submitted that appellant-Pawan has been awarded life imprisonment for the offence under Section 304-B I.P.C. which is too harsh and severe. As far as the principle of proper sentencing are concerned, we have gone through theory privileging in India as well as principle of proportionality.
31. 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."
32. '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.
33. 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.
34. 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.
35. 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.
36. Keeping the aforesaid position of law for sentencing, we consider that sentence of life imprisonment for the offence under Section 304-B I.P.C. is not in consonance with the principle of proportionality, therefore, we reduce the sentence of life imprisonment to the sentence for a period of 10 years for the offence under Section 304-B I.P.C. and sentence under Section 498-A I.P.C. & Section 4 of D.P. Act as awarded by learned trial court, has already been undergone by the accused-appellant Pawan. Further keeping in view the role assigned to other appellants Smt. Meera Devi, Kapil and Km. Mona Mala, they have been awarded sentence for two years under Section 498-A I.P.C. and one year for the offence of Section 4 of D.P. Act, which we reduce to the period already undergone by them.
37. Accordingly, the appeal is partly allowed with the modification of the sentence, as above. The accused-appellants shall be released forthwith, if not wanted in any other case.
38. Let a copy of this judgment along with the trial court record be sent to the court below and jail authorities concerned for compliance.
(Ajai Tyagi,J.) (Dr. Kaushal Jayendra Thaker,J.)
Order Date :- 29.11.2022
P.S. Parihar