Bittan Bai Paul vs State of Madhya Pradesh

This appeal has been filed on 23.9.2013 by appellant Bittan Bai Paul, W/o Vijay Paul, against the Judgment dated 13.9.2013 passed by the Sessions

Judge, Bhopal in S.T. No.32/2013.

The appellant has been convicted for offence punishable under section 304 Part-II of IPC and sentenced to undergo 10 years RI with the fine of

Rs.2,000/- with default stipulation.

Initially the appeal was filed against the conviction and sentence both. But at the time of final arguments on 6.8.2018 the counsel for appellant did

not press the appeal in reference to the conviction of appellant. Therefore, the appeal has been dismissed to the extent of conviction and heard only

upon the quantum of sentence.

It is submitted by the counsel for appellant that the appellant is a lady, who was about 42 years at the time of commission of offence. As per the

information received from the Central Jail, Bhopal, up to 13.12.2017, she has served the sentence of 5 years 2 months and 10 days. In addition to

aforesaid period, she has also got the remission of 1 year 5 months. After 13.12.2017 the period of near about eight months have been passed.

Sufficient period of sentence has been served by the appellant and, therefore, her sentence may be reduced to the period already undergone by her in

custody.

On the other side, the counsel for State strongly opposed the appeal. It is argued by the state that the appellant committed the murder of her own

son, aged about 3 years. Therefore, looking to her act, proper sentence has been passed by the lower Court, in which no interference is required and

the appeal is liable to be rejected.

In so many cases, the Supreme court says that undue sympathy to impose inadequate sentence would do more harm to the justice system to

undetermined the public confidence in the efficiency 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, etc.[See ;-

Surjit Singh V. Nahara Ram and Another, AIR 2004 S.C. 4122, State of M.P. Vs. Santosh Kumar, [2006] SCC 1, Siriya alias Shri Lal v. State of M.

P., AIR 2008 S.C.2314, State of M.P. V. Ghanshyam Singh,AIR 2003 S.C. 3191, Sevak Perumal vs. state of T.N., (1991) 3 SCC 471.]

In the case of Ramashraya Chakiravarti v. State of M.P.,AIR 1976 S.C. 392 = 1976 CRI. L. J. 334 , the Supreme Court said ;-

“Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in

the context of the times and events in the light of social imperatives. It is always a matter of judicial discretion subject to any mandatory minimum

prescribed by law.

In judging the adequacy of a sentence the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to

individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other

factors which would be ordinarily taken into consideration by courts.â€​

Again in the case of Mahesh and etc., V. State of M.P.[1987] 3 SCC 80 = AIR 1987 S. C. 1346 The Court observed that :-

“It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts. To

give the lesser punishment for the accused would be to render the justicing system of the country suspect. The common man will lose faith in Courts.

In such cases, he understands and appreciates the language of deterrence more than the reformative jargon. The Court further observed that when it

says so it does not ignore the need for a reformative approach in the sentencing process but in the instant case, the Court has no alternative but to

confirm the death sentenceâ€​.

Also in the case of ""State of M.P. V. Ghanshyam Singh""AIR 2003 S.C.3191 = 2003AIR SCW 4547 = 2003 Cr.L.J. 4339, the supreme court said :-

“After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an

offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of

really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task. In the absence of any foolproof

formula, which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of

crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.

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.â€​

In the case of State of M.P. v. Kashiram & Ors. [Criminal Appeal No. 191 of 2009 decided on 02.02.2009] the Supreme court said :-

“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.â€​

“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 criminalâ€​.

A Three Judges Bench of Our High Court also consider the question of sentence in judgment dated 15.04.2009 passed in Criminal Appeal No. 660

of 2004 [State of Madhya Pradesh v. Sheikh Shahid] and said :-

“In order to exercise the discretion of reducing the sentence the statutory requirement is that the Court has to record “adequate and special

reasons†in the judgment and not fanciful reasons which would permit the Court to impose a sentence less than the prescribed minimum. The reason

has not only to be adequate but also special. What is adequate and special would depend upon several factors and no strait- jacket formula can be

indicated.â€​

In the case of State of M.P. Vs. Najab Khan & Ors. , 2014[1] JLJ 61 (SC) the M.P. High Court was partly allowed the appeal and reduced the

sentence to the period already undergone (i.e.14 days) under Section 326 read with Section 34 of the Indian Penal Code, 1860. It was stated before

the High Court that during the trial they were in custody for a period of 14 days and the offence has already been compounded by the complainant and

the appeal is pending since 2006. The Supreme court in appeal, consider the point whether the High Court is justified in reducing the sentence to the

period already undergone, viz., 14 days, without providing any cogent reason for the conviction under Section 326 read with Section 34 IPC. The court

after referring cases Shailesh Jasvantbhai and Another vs. State of Gujarat and others, (2006) 2 SCC 359, Ahmed Hussein Vali Mohammed Saiyed

and Anr. vs. State of Gujarat, (2009) 7 SCC 254, Jameel vs. State of Uttar Pradesh, (2010) 12 SCC 532, Guru Basavaraj @ Benne Settapa vs.

State of Karnataka, (2012) 8 SCC 734, Gopal Singh vs. State of Uttarakhand, JT 2013 (3) SC 444 Hazara Singh vs. Raj Kumar & Ors.,

2013 (6) Scale 142, set aside the order of the High Court and restore the sentence imposed on the respondents and said in paras 15 and 16 :-

“15. In view of the above, we reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on

factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the

motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts

which would enter into the area of consideration. We also reiterate 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. It is 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 Courts 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.

16) Though it is stated that both the parties have amicably settled, in view of the fact that the offence charged under Section 326 is non compoundable

and also in the light of serious nature of the injuries and no challenge as to conviction, we are of the view that the High Court is not justified in

reducing the sentence to the period already undergone.â€​

Now the facts of the present case be seen. It appears from the record that Vijay Paul is the husband of appellant, who is working in Public Works

Department. Previously Vijay Paul was married with Aruna Paul, who gave the birth of 3 girls named Raksha, Chitra and Radhika. At the time of

delivery of third girl Radhika, the wife of Vijay Paul expired. Thereafter, he married with the present appellant in the year 2006. The appellant gave

the birth to 2 sons named Devansh and Durgesh. On the date of incident i.e. 3.10.2012 the age of Devansh was 5 years and Durgesh was 3 years.

At the time of incident, the appellant along with her two sons, was residing with her husband Vijay Paul and his 3 daughters at 17/22, North T.T.

Nagar, Bhopal. It appears from the evidence that due to some unknown reason, appellant was not happy with the 3 daughters of the first wife of her

husband. On account of this reason she was not happy with her husband and children. She always used to quarrel with the husband as well as the first

daughter Raksha Paul (PW1), who is the eyewitness in this case. On 03.10.2012 her husband was went on his duty at PWD office. At the time of

dinner some altercation took place between the daughter Raksha and the appellant. Because of this incident, Appellant herself administered the

poisonous substance aluminum phosphide in the mouth of her own child, aged about 3 years.

Durgesh was admitted in the hospital by Raksha Paul (P.W.1) and Ajay Paul at about 9:40 p.m. on 3.10.2012. During the intervening night of

3.10.2012 and 4.10.2012 at about 3:05 a.m. Durgesh expired. Thereafter, police reached upon the spot and Marg No.32/2013 was registered. After

inquiry of the Marg, the police came to the conclusion that the appellant himself murdered her son by giving the poisonous substance aluminum

phosphide. Therefore, the challan was filed under section 302 of IPC. In Sessions Trial No.32/2013 charge under section 302 of IPC was framed on

22.01.2013. After recording of the evidence, the Sessions Judge passed the judgment on 13.9.2013 and convicted the appellant for the offence

punishable under section 304 Part-II of the IPC. The lower Court in Para 66 of Judgment mentioned that the appellant was not having any intention of

the murder of her son but at the time of giving the poisonous substance aluminum phosphide, she was having the knowledge that the death or grievous

hurt may be caused. Thereafter, the Court passed the sentence of 10 years RI and fine of Rs.2000/- with default stipulation.

As per provision of section 304 Part-II, the Court is empowered to pass the sentence upto 10 years with fine. In this case appellant herself caused

the death of his own son, aged about 3 years. It is also transpired from the evidence that about 1 ½ years back from the date of incident, the

appellant also attempted to murder her both sons by pouring the kerosene upon them. But the boys were saved by some other persons, who were

present at the time of aforesaid incident. The appellant was the second (step) mother of the 3 girls of Vijay Paul. They also expected the behavior of

love from the appellant but the appellant was having the bad intention with them and she did not like any one of them. The child, aged about 3 years,

may feel safe himself in the hands of her own mother, but the act done by the accused was just opposite to the aforesaid expectation. Nobody has

seen the God. In the present world, we treated the Mother as equivalent to God. But in this case the accused/mother herself administered poisonous

substance in the mouth of her own helpless child aged about 3 years and destroyed the pious image of Mother. Therefore, in these types of cases, no

leniency is required. Appropriate punishment should be given in these types of cases because the appellant destroyed the pious images of mothers.

Therefore, in view of this Court, the punishment given by the lower Court is sufficient. No any ground is available to reduce the aforesaid

sentence. Hence, this appeal having no substance, is hereby dismissed.