Allahabad High Court
Kumari Radha vs State Of U.P. on 19 April, 2023
Author: Suresh Kumar Gupta
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on: 04.04.2023 Delivered on: 19.04.2023 Court No. - 13 Case :- CRIMINAL APPEAL No. - 1112 of 2001 Appellant :- Kumari Radha Respondent :- State of U.P. Counsel for Appellant :- Jagat Narain Dixit,Kartikeya Yadav,Sunil Kumar Singh Counsel for Respondent :- Govt.Advocate Hon'ble Suresh Kumar Gupta,J.
1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 4.10.2001 passed by the VIIth Additional Sessions Judge, Lucknow in Sessions Trial No. 252 of 2001 arising out of Case Crime No. 232 of 2000, U/s 304 IPC relating to Police Station- Bazar Khala, District- Lucknow, whereby convicted and sentenced the appellant under section- 326 I.P.C. for 5 years rigorous imprisonment with fine of Rs. 1,000/-.
2. The prosecution story, in brief, is that on 17.9.2000 at around 9.30 am, the accused Radha poured boiling water on her father Chandrika Prasad when he was dyeing a toy inside the house, which caused the skin on his body to peel off and the co-accused Maya caused injury to the body of her husband Chandrika Prasad by pouring chilly powder on it. On the basis of oral information given by the complainant Chandrika Prasad, the FIR of this incident was lodged against the appellant and co-accused Maya registered as Case Crime No. 232 of 2000, U/s 326 IPC at the police station- Bazar Khala, Lucknow.
3. The investigation of this case was entrusted to the Sub Inspector, Shri Ramdev. During course of investigation, after recording the statements of the accused and the witnesses, site plan was prepared. After getting the medical report of the injured from the hospital, he recorded it in his case diary. Thereafter, the case was converted from Section 326 IPC to Section 304 IPC.
4. After collecting the entire evidence, the chargesheet was submitted by the investigating officer against the appellant and co-accused Maya U/s 304 IPC before the magistrate court on 1.10.2000, where the case was committed to the court of sessions on 19.2.2001 and it was registered as S.T. No. 252/2001 and was transferred to the court of Additional Sessions Judge for trial.
5. Charges were framed against the appellant U/s 304 IPC and against co-accused Maya U/s 304/34 IPC. The charges were read over to the appellant in Hindi, but she denied the charges levelled against her and claimed to be tried.
6. In order to prove its case, following witnesses were examined by the prosecution:
(i) PW-1, Madhram Madhukar who is the eye-witness. He supported the prosecution version.
(ii) PW-2, Dr. S.K. Hasan who examined the injury of Chandrika Prasad (deceased) and following injury was found on his body:
"(1) Burn wound was present on the right face and head. (2) Burn wound was present on the chest, on the abdomen, on both the hands and up to the fingers of the right hand. (3) Burnt wound was on back and left hip.
(4) Burnt wound was on both thighs, both knees and right leg."
The doctor also stated that about 70% of Chandrika Prasad's wounds were found all over the body. There were cuts and at some places the skin was peeling off and there were blisters, especially on both the shoulders of Chandrika Prasad (deceased).
(iii) PW-3, Dr. V.K. Mishra who conducted the post-mortem of deceased Chandrika Prasad on 22-9-2000 at 4.45 pm and found the following injuries on his body:-
"(1) Septic burn wound present on all over the chest, abdomen front and back, on both shoulders, on both hands up to palm (2) Septic burn wound on both thighs and knees except genitals.
(3) Septic burn wound on the front side of the neck."
The doctor also stated that the deceased died due to septicemia caused due to septic in burn wounds.
(iv) PW-4, Mahesh who did not support the prosecution version and as such he was declared hostile.
(v) PW-5, Tinku who is the son of the deceased. He also did not support the prosecution version and was declared hostile.
(vi) PW-6, Ramdev Yadav who was the investigating officer of the case. He proved the site plan and chargesheet as Ex-ka-3 and Ex-ka-4, respectively.
(vii) PW-7, Ram Avtar Verma, Moharrir who lodged the FIR on the basis of oral information given by the deceased himself and proved it as Ex-ka-5. He also proved G.D Rapat No. 25 dated 17.9.2000 at 10.20 am as Ex-ka-6.
(viii) PW-8 Raj Kumar Yadav who is the formal witness. He prepared the death memo of the deceased Chandrika Prasad, G.D. Rapart No. 10, panchayatnama, Challan lash, photolash and proved them as Ex-ka-7 to Ex-ka-11, respectively.
(ix) PW-9 Dr. Pratipal Singh who medically examined the deceased on 17.9.2000. He stated that the deceased was well conscious and was breathing fast. 60% of the body of the deceased was found burnt. On same day at 2.30 pm, the doctor recorded the statement of the deceased, which is as follows:
"I Chandrika Prasad S/o Babu Lal states in full consciousness that today in the morning at around 9.30 am, my daughter Radha, my wife Maya and my elder son Tinku locked me in a room and poured boiling water mixed with chilly powder on me and beat me, due to which I got severe burn injury. The statement made by me has been read out to me and nothing has been changed in it. This witness has proved the statement taken by him by his writing and signature."
7. Thus, the prosecution relied on the statement of PW-1 to PW-9 as oral evidence as well as documentary evidence of Ex-ka-1 to Ex-ka-11.
8. After conclusion of the prosecution evidence, statement of the accused-appellant was recorded U/s 313 CrPC in which she stated that she has been falsely implicated in the case. She further stated that the mental condition of his deceased father was not well. Once the deceased had consumed rat poison. However, the accused-appellant did not choose to lead any evidence in her defence.
9. After hearing both the parties, learned trial court convicted and sentenced the appellant vide order dated 4.10.2001, as aforesaid.
10. Being aggrieved and dissatisfied with this judgement and order, this appeal has been preferred by the appellant.
11. I have heard Shri Sunil Kumar Singh and Shri Kartikeya Yadav, learned counsels for the appellant, Shri Vinay Kumar Sahi, learned AGA for the State and perused the material available on record.
12. Learned A.G.A on behalf of the State supported the impugned judgment of learned trial court and submitted that the appeal has no force and is liable to be dismissed. However, learned counsel for appellant, stated at the bar that he does not want to argue the appeal on merits. He only wants to advance his submission on the quantum of sentence imposed upon the accused.
13. Not pressing the criminal appeal after the conviction of the accused/appellant by the court below 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.
14. The main goal of the criminal justice system is to prevent the occurrence of crime, to punish the transgressors, the criminals, to rehabilitate the transgressors and the criminals, to compensate the victim as far as possible, to maintain law and order in the society and to deter the offenders from committing any criminal act in the future. Thus, the main object of sentencing should be to achieve above mentioned goal of our justice system.
15. In Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648, Hon'ble Supreme Court observed as under:
"One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: the twin objective of the sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances."
16. The Apex court has held in various decisions that the theory of proportionality, deterrence, seriousness and rehabilitation should be taken into account while exercising discretion in sentencing.
17. In Dhananajay Chaterjee vs State of W.B 1994 (2) SCC 220; Apex Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system's creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment."
18. Similar view has also been expressed in Ravji v. State of Rajasthan, [1996] 2 SCC 175. It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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 with 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". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.
19. In State of M.P. v. Bablu Natt, (2009) 2 SCC 272, Hon'ble Apex Court held that in recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court's verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 year old girl shakes our judicial conscience. The offence was inhumane. There are no extenuating or mitigating circumstances available on the record which may justify imposition of sentence less than the minimum prescribed by the legislature under Section 376(1) of the Act."
20. Hon'ble Apex Court in State of Madhya Pradesh vs Mehtab, (Cri. appeal No. 290/2015, dated 13.02.2015) has observed that;
"We find force in the submission. It is the duty of the Court to award just sentence to a convict against whom charge is proved. While every mitigating or aggravating circumstance may be given due weight, mechanical reduction of sentence to the period already undergone cannot be appreciated. Sentence has to be fair not only to the accused but also to the victim and the society."
21. In Brajendra singh v. State of M.P., (2012) 4 SCC 289, the Hon'ble Apex Court held that the law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580] and thereafter, in Machhi Singh [Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : 1983 SCC (Cri) 681] . The aforesaid judgments, primarily dissect these principles into two different compartments one being the ''aggravating circumstances' while the other being the ''mitigating circumstances'. The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.
22. In State of M.P. v. Surendra Singh, (2015) 1 SCC 222, based on the Theory of Proportionality, it is laid down by Hon'ble Apex Court as under:
"That undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment.
Meager sentence imposed solely on account of lapse of time without considering the degree of the offence will be counter productive in the long run and against the interest of the society. One of the prime objectives of criminal law is the imposition of adequate, just proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime.
The punishment should not be so lenient that it shocks the conscience of the society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, the society suffers. Imposition of sentence must commensurate with gravity of offence."
23. Considering the law laid down by the apex court and the entire facts and circumstances of the case, I am of the view that in pursuance of N.B.W. order dated 13.12.2022, the appellant is languishing in jail 7.1.2023. During trial and during pendency of appeal, the appellant was detained in jail for about two and a half years. No minimum sentence is provided in Section 326 IPC. Moreover, the appellant is a lady and she has already served out substantial period of her sentence. After considering the entire facts and circumstances of this case that the end of justice shall be served if the sentence awarded by the trial court is reduced to the period already undergone. But the fine amount shall be unaltered. The fine awarded by the trial court shall be deposited by the appellant within one month from the date of her actual release, failing which she shall serve out the remaining sentence as awarded by the trial court.
24. Thus, the appeal is dismissed on point of conviction and partly allowed on the point of sentence only. The sentence of five years is hereby reduced to the period already undergone in jail.
25. Let the appellant- Kumari Radha be released forthwith.
26. Office is hereby directed to communicate the judgement and order of this Court to the trial court as well as district jail concerned for necessary compliance. The trial court record be also sent back.
Order Date :- 19.4.2023 Shravan