Criminal Appeal No. 2294 of 2020 · High Court
Case Details
Neutral Citation No. - 2023:AHC:140671-DB Reserved on 12.7.2023 Delivered on 27.7.2023 Court No. - 44 Case :- CRIMINAL APPEAL No. 2294 of 2020 Appellant :- Vikash Kumar Pasi Respondent :- State of U.P. Counsel for Appellant :- Ajay Pandey Counsel for Respondent :- G.A. Hon'ble Dr. Kaushal Jayendra Thaker,J. Hon'ble Umesh Chandra Sharma,J. 1. By way of this appeal, the appellant, who is in jail since 5.2.2013 and has been convicted with the aid of Section 302 IPC and also for conviction of offence under Section 498A/304B IPC and also under Section 3/4 of Dowry Prohibition Act by the learned Additional District & Sessions Judge, Kaushambi, in Session Trial No.76 of 2013. He is charged for imprisonment for life under Section 304 IPC, 3 years imprisonment under Section 498A with fine of Rs. 5,000/- and in default further 3 months of incarceration whereas for the charge under Section 302 IPC, he has been acquitted. The judgment is delivered on 22.2.2020 and he was in jail. 2.
Facts
The brief facts as they emerged from the judgment and the record are the deceased was married 8 months before the date of incidence which was 5.2.2013 and the parents had given dowry as per their capacity but despite giving enough, the accused with his parents demanded a further sum of Rs. 50,000/-. The parents of the deceased time and again explained to her. The F.I.R. suggests that on 5.2.2013 in the morning at about 8:00 p.m. she was done to death by father-in-law and the husband by setting her ablaze. The death occurred on the same day. The post- mortem was done on the same day. On 6.2.2013 the post- mortem report prepared by Dr. S.K. Gupta, which has been produced as Ex.10. The site plan was prepared which has been produced as Ex.11. Vikas Kumar Pasi and Shiv Mohan Pasi were charged after the matter was committed to the Court of Sessions. 3. The prosecution examined about 9 witnesses and the following documentary evidence were proved by them and, therefore, the same was accepted by the trial court. During the trial Shiv Mohan Pasi on 6.12.2018 died and, therefore, case qua him was abated. 1 2 3 4 5 6 7 8 9 Guddun Sukhraj Mahesh Sunita Ramchandra Shradha Chaudhary Shiv Badan Singh Dr. Santosh Kumar Gupta Dhananjay Singh Kushwaha PW1 PW2 PW3 PW4 PW5 PW6 PW7 PW8 PW9 4. In support of ocular version following documents were filed and proved: 1 F.I.R. 2 Written Report 3 4 5 6 Panchayatnama Postmortem Report Site Plan Charge-sheet Ex.Ka. 8 Ex.Ka. 1 Ex. Ka. 2 Ex.Ka. 10 Ex.Ka. 11 Ex.Ka. 13 2 5. The learned Counsel for the appellant has heavily relied on the following judgments:- (i) Girish Singh Vs. State of Uttarakhand, (2021) 3 SCC (Cri) 535; and (ii) Sunil Dutt Sharma Vs. State (Government of NCT of Delhi), (2014) 4 SCC (Cri) 788; and has contended that looking to the young age of the accused and the period of incarceration undergone, he may be dealt with leniently. 6.
Legal Reasoning
Having considered the facts and circumstances of the case and the judgment relied on by the trial court in the case of Jawaher Lal Das Vs. State of Orissa, AIR 1991 SC 1388 and Laxman Naik Vs. State of Orissa, (1994) 3 SCC 381, we are of the considered opinion that the death occurred in the matrimonial home just within 7 - 8 months and witnesses have testified that they were immediate demanded of dowry for Rs. 50,000/-. The witness of PW1 testifies to the said effect. The evidence of PW3 and PW4 corroborates and, therefore, submission of the Counsel for the appellant that the appellant has been falsely roped into this case. 7. The judgment on which reliance has been placed namely Thakkan Jha and others Vs. State of Bihar, (2004) 13 SCC 348, and the other judgment will not permit us to take a different view than that taken by the court below.
Decision
We hold that it was unnatural death. 8. This Court would refer to the following precedents, namely, Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], which explains rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court in the said decision as follows: "Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that 3 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." 9. '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. 10. 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 4 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. 11. 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. 5 12. 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. 13. Having considered the submission of Counsel for the appellant, we reduce the sentence from life imprisonment to 12 years of incarceration with remission under Section 304-B. As far as Section 498A and Section 4 of Dowry Prohibition Act are concerned, he has already undergone his punishment as well as default punishment of 3 years are over hence qua them, no fine shall be recoverable. As far as Section 304B is concerned, fine enhanced to Rs. 10,000/- as well as default punishment of 6 months. 14. The appeal is partly allowed. Order Date :- 27.7.2023 Irshad Digitally signed by :- IRSHAD AHMAD SIDDIQUI High Court of Judicature at Allahabad 6