No. - 44 Case :- CRIMINAL APPEAL No. - 4739 of 2017 v. Raghuveer)

6. The learned Magistrate summoned the accused and committed the case to the Sessions Court as the offences alleged to have been committed were triable by the Sessions Court.

7. On being summoned, the accused pleaded not guilty and wanted to be tried.

8. On 15.11.2014, the charges were framed under Section 302 IPC and section 25 Arms Act by learned Sessions Judge. The Trial started and the prosecution examined 13 witnesses

9. who are as follows:- 1 Smt. Soma Devi 2 Km. Bavita 3 Km. Savita 4 S.I. Sanjay Kumar Singh (Investigating Officer) 5 Dr. Bhagwan Das 6 Mahendra Pal Sagar 7 Rajpal 8 Uma Shankar 9 Zamirul Hasa 10 Brijesh Singh 11 Sunil Kumar 12 Jitendra Pal 13 S.I. Ram Rakesh Pal Singh (Investigating Officer) PW-1 PW-2 PW-3 PW-4 PW-5 PW-6 PW-7 PW-8 PW-9 PW-10 PW-11 PW-12 PW-13 In support of ocular version following documents were filed

10. and proved: 1 FIR & G.D. Ext. Ka-13 & Ext. Ka-14 2 Recoveries memos Ext. Ka-2 to Ka-8 3 Postmortem Report Ext. Ka-9 4 Blood stains earth & Ext. Ka-10 ordinary eart 5 Panchayatnama 6 Charge-sheet 7 Site Plan Ext. Ka-2 Ext. Ka-16 Ext. Ka-15 8 Report of FSL Ka-25/2 & Ka-43

11. At the end of the trial and 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, Raghuveer as mentioned above.

12. It is submitted by learned counsel for the appellant that the incident occurred at the spur of moment and the accused had not premeditated to do away with the deceased.

13. In support of his arguments, learned counsel for the appellant has relied on the decisions in Didar Singh versus State of Haryana, 1992 (2) Crimes 308 SC, Baldev Singh & another versus State of Punjal, 1995 SCC (6) 593, Mer Dhana Sida versus State of Gujarat, AIR 1985 SC 386, Dalip Singh versus State of Haryana, AIR 1993 SC 2302, Ashiq Lal versus State of U.P., 1998 of CrLJ 1972.

14. It is further submitted that conviction under Section 302 IPC is not made out as no overt act as per Section 300 IPC is made out. In alternative, it is submitted that at the most, the death can be homicidal death not amounting to murder and punishable under Section 304 II or Section 304 I of I.P.C. If the Court decides that the accused is guilty under Section 302 of IPC, then the accused may be granted fixed term punishment of incarceration as accused are in jail for more than 14 years with remission.

15. Learned A.G.A. has submitted that ingredients of Section 300 of IPC are rightly held to be made out by the learned Sessions Judge who has applied the law to the facts in case. It is submitted that the decision of the learned Sessions Judge is just and proper and does not call for any interference/modification as both the accused- appellants have direct role assigned to kill the deceased by beating him with iron rods.

16. While considering the evidence of PW-1, wife of the accused (informant), PW-2, daughter of the accused and PW-3, daughter of the deceased in cumulative nature, the death can be said to be homicidal death. The evidence categorically states that none of the witnesses have supported the prosecution case and turned hostile. Postmortem report goes to show that the injuries on the body of the deceased would be the cause of death and that it was homicidal death. However, learned Sessions Judge seems to have what is known has given the virdict as relied upon Section 27 of the Evidence Act as it may be we also held that the findings in paragraph 39 are accepted by us.

17. We are convinced that it was homicidal death but, it would be seen whether it is homicidal death punishable under Section 302 or Section 304 Part I or Part II of IPC?. However, the guilt of the accused is under Section 304 Part-II is not under section 302 I.P.C.

18. It would be relevant to refer to Section 299 of the Indian Penal Code, which read as under: "299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

19. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts loose sight of the true scope and meaning of the terms used by the legislature in these sections, and allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be is to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done- to certain Subject exceptions culpable homicide is murder if the act by which the death is caused is done. INTENTION (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as likely cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; KNOWLEDGE KNOWLE (c) with the knowledge that the act is likely to cause death. DGE (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

20. In latest decision in Khokan@ Khokhan Vishwas v. State of Chattisgarh, 2021 LawSuit (SC) 80, where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant and altered the sentence. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Decisions in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused.

21. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that it was a case of homicidal death not amounting to murder.

22. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused though had knowledge and intention that her act would cause bodily harm to the deceased but did not want to do away with the deceased. Hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind.

23. We come to the definite conclusion that the death was not premeditated. The precedents discussed by us would permit us to uphold our finding which we conclusively hold that the offence is not punishable under Section 302 of I.P.C. but is culpable homicide not amounting to murder, punishable U/s 304 (Part I) of I.P.C.

24. This takes us to the alternative submission of learned counsel for the appellant that 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.

25. 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."

26. '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.

27. 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.

28. 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.

29. 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.

30. After considering the submissions made by learned counsel for the appellant and learned A.G.A. for the State, considering the statements of PW1, PW2 and PW3, who have not fully supported the prosecution case and after considering the evidence on record, we direct that the accused-appellant be convicted under Section 304 Part II instead of Section 302 I.P.C. and we modify the sentence part to the period already undergone by the accused in prison. Fine is maintained under both the sentences. Under Section 25 of Arms Act he has been ordered to incarceration, which has already over, in view of the fine imposed u/s 25 Arms Act the accused has already served the sentence. The accused-appellant shall be released from jail immediately, if he is not warranted in any other case. The fine if he has yet not deposited, will deposit the same within four weeks from the date of his release from jail. The jail authority shall see that the accused-appellant is lodged in the jail to serve the default sentence, if fine is not paid after he is released. The accused be released on completion of his sentence.

31. In view of the above, the appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. Order Date :- 11.1.2023 Faridul FAREEDUL HASAN High Court of Judicature at Allahabad