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Judgment
(Per : Jai Krishna Upadhyay, J.)
This criminal appeal has been preferred by accused appellants - Karu and Gendalal against judgment and order dated 21.6.2019 passed by the Additional District & Sessions Judge, FTC, Mainpuri in Session Trial No. 461 of 2013, case crime no. 346 of 2011 convicting and sentencing the appellants for the offence punishable under Sections 498-A, 304-B, 201 IPC and ¾ Dowry Prohibition Act, P.S. Varnahal, District Mainpuri whereby the appellants have been sentenced to undergo imprisonment for life for the offence under Section 304-B IPC, to undergo three years simple imprisonment for the offence under Section 498-A IPC with fine, to undergo three years imprisonment for the offence under Section 201 IPC with fine and to undergo 6 months imprisonment for the offence under Section 4 of the Dowry Prohibition Act alongwith fine with default clause. All the sentences were directed to run concurrently.
Heard Shri Araf Khan, learned counsel for the appellants and Shri Amit Sinha, learned AGA for the State.
Facts of case, in nutshell, as unfolded by the informant Mahesh Chandra in First Information Report (in short 'FIR'), are that the informant solemnized the marriage of his daughter, Anita with Karan, son of Gedalal, resident of Village Tulsipur two years prior to the incident. Sufficient dowry was given at the time of the wedding. However, a few days after the marriage, Karan (husband) and Gedalal (father-in-law) began demanding a motorcycle and subjected the victim to continuous physical assault. The informant expressed his inability to fulfill the demand for a motorcycle. On July 4, 2011 at about 2:30 PM, the informant received a phone call that Karan and Gedalal had killed his daughter by setting her ablaze. Upon receiving this information, the informant traveled from his village to Village Tulsipur, where he found his daughter Anita's funeral pyre already burning. As the complainant and others approached the pyre, the accused individuals fled from the spot.
On the basis of written report, chik FIR was registered at Police Station concerned on 14.7.2011 at 5.00 p.m. against accused appellants for the offence under Sections 304-B, 498-A, 201 IPC and ¾ Dowry Prohibition Act. G.D. entry was also made at the same time.
Investigation started in the matter. The Investigating Officer recorded statement of witnesses, inspected place of occurrence and prepared site plan. After completion of necessary formalities, the Investigating Officer submitted charge-sheet against the appellants. Cognizance was taken on the charge-sheet. The matter being exclusively triable by the Sessions Court, was committed to the Court of Sessions for trial. Accused appellants appeared and charges under Sections 498-A, 304-B, 201 IPC and ¾ Dowry Prohibition Act were framed against them to which they pleaded not guilty and claimed to be tried.
Trial proceeded and on behalf of prosecution eight witnesses, namely, PW-1 Mahesh Chandra (informant-father of deceased), PW-2 Uma, PW-3 Chhote Lal, PW-4 Dr. Narendra Pal, PW-5 C.O. Dinesh Kumar Puri, PW-6 C.O. Raj Kumar Mishra, PW-7 Constable Clerk Satish Kumar and PW-8 Mahendra Kumar Kulshreshtha, Nayab Tehsildar, were examined.
In documentary evidence, documents exhibited as Ext. ka-1 to Ext. ka-8 respectively have been proved.
The incriminating evidence and circumstances were put to the accused in their statements under Section 313 Cr.P.C. wherein they claimed the entire prosecution case and evidence as false and fabricated.
The learned trial court upon scrutiny of the evidence on record concluded that the case of prosecution was proved beyond reasonable doubt against the accused appellants and recorded conviction and sentence against them, as mentioned here-in-above. Hence this appeal.
The only submission on behalf of the appellants is that seven years minimum sentence for the offence under Section 304-B IPC is provided. The Trial Court has imposed sentence upon accused appellants for the offence under Section 304-B IPC for life imprisonment out of which the appellant no.1- Karu (husband) has served more than fifteen years and appellant no.2 – Gendalal (father-in-law) has served out more than 7 years. It is also submitted that neither accused appellants are habitual offender nor were convicted in any other case. Thus, it was submitted by learned counsel for the accused appellants that sentence awarded to the accused appellants by the trial court vide impugned judgment and order be modified and accused appellants be released in this matter on the basis of imprisonment already undergone. It is next submitted that if any fine is imposed by the Court, appellants are ready to deposit the same.
On the other hand, learned AGA supporting the findings recorded by trial court in the impugned judgment and order submitted that there in no infirmity or illegality in the impugned judgment and order. Prosecution has proved its case beyond reasonable doubt. The trial court has awarded sentence to the appellants according to the gravity of the offence committed by them.
We have considered rival submissions made by learned counsel for parties and have gone through the entire record carefully.
Since learned counsel for accused appellants did not challenge the findings recorded by trial court in the impugned judgment and order regarding guilt of accused appellants for the offence under Sections 498-A, 304-B, 201 IPC and 4 Dowry Prohibition Act and confined his argument only to the sentence awarded by trial court to accused appellants, we do not propose to scrutinize the entire evidence minutely in this regard. However, a perusal of entire record including the impugned judgment and order shows that trial Court has considered in detail the entire evidence available on record regarding guilt of accused appellants for the said offences and keeping in view the offence committed by accused appellants, we are also of the opinion that prosecution was able to establish the guilt of accused appellants for the aforesaid offences beyond reasonable doubt. The findings recorded by the trial court to constitute offence under Sections 498-A, 304-B, 201 IPC and 4 Dowry Prohibition Act against accused appellants are correct and the same do not warrant interference by this Court.
Learned counsel for the appellants submitted that the sentence recorded by the learned trial court is too severe and harsh and the appellant no.1 was a young man at the time of incident and has already spent more than fifteen years of incarceration and appellant no.2 is an old man and ailing various diseases of old age and they must be a repenting men.
Now it takes us to the quantum of sentence, specifically under Section 304-B IPC, where life imprisonment has been awarded by learned trial court. For awarding the sentence, we have to keep in mind the theories of punishment in our country.
Discouraging the retributive theory, the reformative theory of the sentence has been impressed upon by the Hon'ble Apex Court in Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926. It has been observed by the Hon'ble 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."
On the other hand, in Deo Narain Mandal Vs. State of UP, (2004) 7 SCC 257, it was observed that while determining the quantum of sentence, the Court should bear in mind the 'principle of proportionality'.
If we translate the legal theories rendered by the Hon'ble Apex Court in various judgments, such as, Ravada Sasikala vs. State of A.P., AIR 2017 SC 1166, Jameel vs State of UP, (2010) 12 SCC 532, Guru Basavraj vs. State of Karnatak, (2012) 8 SCC 734, Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, State of Punjab vs. Bawa Singh, (2015) 3 SCC 441, Raj Bala vs. State of Haryana, (2016) 1 SCC 463, Sham Sunder vs. Puran (1990) 4 SCC 731, M.P. vs. Saleem, (2005) 5 SCC 554 and Ravji vs. State of Rajasthan, (1996) 2 SCC 175, the settled legal position, which emerges out before us, is that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the Court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the Courts would operate the sentencing system, so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. 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 in 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'.
In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.
The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka, 2010 (87) AIC 43 (SC), where appeal was filed by convict husband in a dowry death case, while deciding the appeal of the appellant, modified the sentence. Paragraph 31 of the said judgment is reproduced below:
"31.In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I. P. C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B, I. P. C., reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."
Applying the principles laid down by the Hon'ble Apex Court in the aforesaid judgements and having regard to the totality of the facts and circumstances of the case, particularly, the fact that seven years minimum sentence has been provided for the offence under Section 304-B IPC, it appears to us from a perusal of the 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. Adopting the same reformative approach, we consider that no accused person is incapable of being reformed and, therefore, all measures should be applied in order to bring them in the social stream.
Keeping in view the reformative theory of punishment, "doctrine of proportionality" including aggravating and mitigating factors it appears to us that the sentence of life imprisonment awarded under Section 304-B IPC by learned trial Court to the appellants is too harsh and severe. The appellant no.1 is in jail for the last more than fifteen years and the appellant no.2, who is an old man and ailing from various diseases of old age, is in jail for the last seven years. This fact is also admitted by the learned AGA.
Hence, we are of the considered view that since the appellant no.1 has already served-out more than fifteen years jail sentence and the appellant no.2 has served out more than seven years jail sentence, the sentence of life imprisonment under Section 304-B IPC is converted into the sentence already undergone, which would meet the ends of justice but the fine amount imposed by the trial court in the impugned judgment order shall be deposited by the appellants within two months from the date of their release and in case they fail to deposit the same, they will serve out two months sentence in default thereof.
The criminal appeal is, accordingly, partly allowed, subject to the above observations and modification of sentence.
The accused-appellants be freed from jail forthwith, if not wanted in any other case.
Registry is directed to transmit the record to the Trial Court alongwith copy of this judgment for necessary compliance.