High Court
Case Details
1 AFR Court No. - 44 Case :- CRIMINAL APPEAL No. - 6158 of 2008 Appellant :- Harish Kumar And Others Respondent :- State of U.P. Counsel for Appellant :- Raj Singh,Devendra Swaroop,R.D. Dauholia,Siddharth Singh,Vijendra Singh Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Ajai Tyagi,J. (Per Dr. Justice K.J. Thaker, J.) 1. This appeal challenges the judgment and order dated 28.08.2008 passed by Additional Sessions Judge, Court No.10, Aligarh in Sessions Trial No. 597 of 2006 convicting accused- appellants under Section 304-B of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced him to undergo imprisonment for life and under Section 498-A of I.P.C three-three years rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine, further to undergo imprisonment for six months to all the appellants. 2. Factual scenario as culled out from the record and the judgment of the Court below is that the accused-appellant Harish Kumar is the husband of the deceased who died after seven days suffering out of septicemia. He is in jail since 2006 namely since the date incident occurred. The other co-accused namely the father-in-law-Naurangi Lal of the deceased breathed his last therefore qua him the appeal is abated, the third accused is minor and a juvenile, hence she was tried by Juvenile Board and as per the submission of the counsel for the appellant she has been acquitted, the mother-in-law- Kashtoori Devi who was in jail for two and a half year and thereafter she has been 2 released on bail by this Court. The genesis of the incident occurred when the brother of the deceased was informed that his sister who had been sent to the matrimonial home on 05.12.2005, her body is seen to have been ablazed. Thereafter, she was shifted to the hospital with burn injuries, there was superficial to deep burn injuries and the injuries were 40% superficial to deep burn injuries, she was admitted in the hospital immediately on the date of the incident and after a period of about 7 days i.e on 13.12.2005 at about 6:50 p.m, she breathed her last. It is under these circumstances that the prosecution was moved into motion. The investigation culminated into charge- sheet being laid against all the four accused. 3. The offence being triable by the court of Sessions. The learned
Legal Reasoning
Magisterial Trial Court committed the accused to the Sessions Court. The learned Sessions Judge, summoned the accused from jail those who are not on bail and after completing all the formalities the accused-appellants were charged on 28.08.2006 and an alternative charge on 16.01.2007 for commission of offence under Sections 323, 498A, 504 and 304-B I.P.C. 4. On being read over the charges, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 9 witnesses who are as follows: 1 2 3 4 5 6 7 Deepu @ Deepak Kumar
Legal Reasoning
Smt. Kamla Devi Head Moharir-59 Ram Chandra Rathore Dr. N.K.Tandon Dr. Hansraj Singh S.I. Raghuraj Singh Harij Anand Kumar PW1 PW2 PW3 PW4 PW5 PW6 PW7 8 9 S.I. Chiraunji Lal Ratnesh Chaturvedi 3 PW8 PW9 And said witnesses tried to prove the documentary evidence produced by the prosecution. On prosecution the evidence been laid end after closing process Kashtoori, Naurangi Lal and Pinky are the accused whose statement were recorded under Section 313 Cr.P.C. The statement of Section 313 Cr.P.C is one of denial. 5. In support of ocular version following documents were filed: 1 F.I.R. 2 Written Report 3 4 5 5 6 Injury Report Postmortem Report Panchayatnama Site Plan with Index Charge-sheet Ex.Ka.2 Ex.Ka.1 Ex. Ka.4 Ex. Ka.5 Ex.Ka.6 Ex.Ka.12 Ex.Ka.11 6. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Trial Court convicted the three accused for commission for offence under Section 304-B of I.P.C for life imprisonment and under Section 498-A of I.P.C three- three years imprisonment with Rs. 5000/- as fine. The State nor the private respondent preferred any appeal. 7. Heard Sri Sunil Kumar Upadhaya, learned counsel for the appellant, Sri Patanjali Mishra, learned A.G.A for the State and perused the record. 8. As far as father-in-law of the deceased is concerned as we have 4 narrated herein above, the case has abated that takes us to the evidence against the mother-in-law. Even if we go the by the oral dying declaration which is submitted by the learned counsel for the State that the deceased orally confined to her brother which is borne out from the F.I.R that her husband Harish Kumar has set her ablaze. This dying declaration has been heavily relied by the Counsel for the State and has further submitted the name of all the accused which have been given by the deceased in dying declaration to the brother. 9. While going through the evidence of the witnesses, it cannot be said that Section 498A read with Section 304B of I.P.C is not made out qua the accused no. 1- Harish Kumar. This takes us to the evidence against the mother-in-law- Kashtoori Devi, while going through the oral testimony of P.W.-1, P.W.-2 and P.W.-3 we do not find any reason to believe that she was a party to the incident, her presence has not been proved. There is no overt act of mother-in-law even in the oral dying declaration. There are 40% burns. The investigation of the investigating authority qua the mother-in-law appears to be faulty. We, therefore, cannot uphold the conviction of the mother-in-law-Kashtoori Devi. We give benefit of doubt to the mother in law namely Kashtoori Devi. 10. This takes us to the question of applicability of Section 304B of I.P.C to the facts of this case. The learned counsel for the appellant has relied on the following decisions so as to contend that punishment of life imprisonment pronounced by learned trial Judge is bad:- i. Ganesh Babu @ Ganesh Vs. State of Karnataka (2020 Lawsuit (Kar) 658; ii. Kashmira Devi Vs. State of Uttraakhand and Ors. (AIR 2020 SC 652); 5 iii. Mirza Iqbal @ Golu and Another Vs. State of Uttar Pradesh and Another [2021 0 Supreme(SC) 795] 11. It would be relevant for us to refer a recent judgment of this High Court in Criminal Appeal No. 2878 of 2013 :- 14. While coming to the conclusion that the accused is the perpetrator of the offence, whether sentence of life imprisonment and fine is adequate or the sentence requires to be modified in the facts and circumstances of this case and in the light of certain judicial pronouncements and precedents applicable in such matters. This Court would refer to the following precedents, namely, 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." 15. '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. 16. 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