Allahabad High Court
Amit Kumar Dubey vs State Of U.P. on 2 January, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 44 Case :- CRIMINAL APPEAL No. - 3592 of 2010 Appellant :- Amit Kumar Dubey Respondent :- State of U.P. Counsel for Appellant :- Sudeep Dwivedi Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Mohd. Azhar Husain Idrisi,J.
(Per: Hon'ble Mohd. Azhar Husain Idrisi, J.)
1. Heard Sri Sudeep Dwivedi, learned counsel for the appellant and learned A.G.A. for the State.
2. The present appeal challenges the judgment and order dated 28.04.2010 passed by Additional Sessions Judge/Fast Track Court No. 1, Mirzapur in Sessions Trial No. 148 of 2009 (State Vs. Amit Kumar Dubey) convicting and sentencing the appellant alone under Section 498-A of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') for three years simple imprisonment with fine of Rs.5,000/-, further sentenced him under Section 304-B IPC for life imprisonment and also sentenced him under Section 4 of Dowry Prohibition Act with fine of Rs. 10,000/-. In case of default of payment of fine, further to undergo imprisonment for 6-6 months additional imprisonment.
3. Factual data as culled out from the record is that a First Information Report being Case Crime No. 45 of 2009 was lodged on 13.03.2009 at Police Station Padari, District Mirzapur on the complaint made by one Uma Shanker, resident of Village Mahdauri, Police Station Padari, District Mirzapur, who stated that his daughter namely Sunita Kumari was married to Amit Kumar s/o Hajara, resident of Ratnabo Chhitam Patti, Police Station Padari, Mirzapur six years ago according to Hindu Rites and Ritual. In the F.I.R. it was mentioned that after three years of the marriage, the husband of the deceased was demanding a sum of Rs.50,000/- and golden chain time and again and when his demands were not fulfilled, his daughter was being harassed and after beating her, she was sent to parental home. His daughter told regarding demand of Rs. 50,000/- by her husband. Thereafter on the assurance of informant, her daughter was taken away to his house by son-in-law. It is further mentioned that the deceased was harassed by his son-in-law. On being called by her daughter, informant went to her house and his daughter stated that in case she will not take away to her home, they will kill her. The informant taken away her daughter to his home. In the year 2008 on the occasion of Dhanteras, when the informant went to the shop of his son-in-law, he demanded the aforesaid money from the informant and when the informant asked some time, he was assaulted by knife and he was injured. This incident was registered at the police station. His daughter was residing at his house. It is further stated that on 13.12.2008, on the pressure and assurance made by the Station Officer, Police Station Padari that his daughter shall be secured, his daughter was sent with his son-in-law. On 10.03.2009, his son Kamlesh went to meet his sister on the occasion of Holi where Amit Kumar and his grandmother met him but he was refused to meet his sister and after saying that she went to take medicine at Ganga, his son Kamlesh was returned. On 12.03.2009 again his son Kamlesh went to the house of his sister to meet her where he was informed by Amit Kumar and his grandmother that his sister did not return to home. On 13.03.2009 at about 11.00 A.M., informant and his sons namely Kamlesh and Suresh went to the house of Amit Kumar and asked about his daughter, the same fact was told. Then the informant asked from neighbourer about his daughter and he came to know that they heard shrieks on being beaten by Amit and after some time, she became mum. Thereafter he alongwith his sons went to the room of deceased where door was locked and some smelling was coming out. On the request of telephonic message, two constables came on the spot and lock was broken then it was found that his daughter was kept dead in nagged condition. Thereafter F.I.R. was lodged against Amit Kumar and his grandmother.
4. On the aforesaid F.I.R., the investigation was moved into motion. The dead body was sent for postmortem and wherein it was opined that the cause of death was shock and hemorrhage due to Ante mortem injuries and throttling. The Investigation Officer recorded the statements of several witnesses under Section 161 of Cr.P.C. and submitted the charge-sheet against the accused-appellant under Sections 498A, 304 B of I.P.C. and 3/4 of Dowry Prohibition Act.
5. The accused were facing charges which were exclusively triable by the Court of Sessions, hence, the case was committed to the Court of Sessions, where it was registered as S.T. No. 148 of 2009.
6. The learned Sessions Judge charged the accused/appellant under Sections 498A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act. The accused/appellant pleaded not guilty and claimed to be tried. Hence, the trial started. The prosecution examined about 6 witnesses as follows:
1Umashankar PW1 2 Sunita Dubey PW2 3 Dr. H.R. Maurya PW3 4 Shiv Shankar Singh PW4 5 Mahesh Singh Rana PW5 6 Nanhe Lal Sangma PW6
7. In support of ocular version following documents were filed:
1F.I.R.
Ex.Ka.14 2 Written Report Ex.Ka.1 3 Kayami G.D. Ex. Ka. 6 4 Sample Seal Ex. Ka. 7 5 Letter to C.M.O. Ex. Ka. 8 6 Photo Lash Ext. Ka 9 7 Request letter of Police for postmortem Ext. Ka 10 8 Request letter of Tehsildar for postmortem Ext. Ka 11 9 Rapat No. 17 Time 14.00 Ext. Ka 15
10.
Ravangi of Constable HC 38 Nanhe Lal Ext. Ka 16
11. Postmortem Report Ext. Ka 3 12 Panchayatnama Ext. Ka 4 13 Site Plan Ext. Ka 12 14 Charge sheet Ext. Ka 13
8. At the end of the trial, 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-appellant as mentioned above.
9. 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.
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 for more than 13 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-appellant. There were 21 injuries found on the body of the deceased. Hence, no leniency can be shown to the accused-appellant by this Court.
12. While considering the evidence of witnesses and the Postmortem report which states that the injuries on the body of the deceased would be the cause of death and that it was homicidal death, we concur with the finding of the Court below. 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.
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 10 years' rigorous imprisonment. Sentence under Section 498A of IPC and Section 4 of Dowry Prohibition Act has already been completed by the accused-appellant. Fine and default is maintained. As 10 years' imprisonment is already over, the accused-appellant be set free forthwith, if not wanted in any other case. He will deposit the fine within four weeks from the date of release and in case fine is not deposited he will be re-incarcerated for the period of default sentence.
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.
Order Date :- 2.1.2023 Rmk.