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Court No. - 44 A.F.R.

Case :- CRIMINAL APPEAL No. - 6842 of 2009

Appellant :- Sageer And Naseer @ Jaheer

Respondent :- State of U.P.

Counsel for Appellant :- R.P. Tiwari,R.N.Maurya

Counsel for Respondent :- Govt. Advocate

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Justice Nalin Kumar Srivastava)

1.This criminal appeal is directed against the judgement and

order dated 4.11.2009 in Sessions Trial No. 949 of 2003 (Crime

No. 323 of 2002) State Vs. Sageer and Ors, under Sections 304B

I.P.C. and 3/4 Dowry Prohibition Act, P.S.- Ijjat Nagar, District-

Bareilly convicting and sentencing the appellants under Section

304-B I.P.C. to undergo life imprisonment and under Section 3/4

Dowry Prohibition Act to undergo imprisonment for two years,

further imposing fine of Rs. 10,000/- each and in default of

payment of fine to undergo 2 months additional imprisonment.

2.The prosecution story as culled out from the FIR is that the

deceased, the sister of the informant, was married with accused

Sageer. The in-laws of the deceased were demanding colour T.V.

and motorcycle as additional dowry and she was subjected to

cruelty on account of that demand. She used to tell the incidents of

cruelty to her family members, who expressed their inability to the

accused persons but they did not pay any attention to it and the

harassment continued. On 27.4.2002 on information by a villager,

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the informant along with his family members reached the house of

the accused persons where he found his sister bitterly burnt and she

told that her husband Sageer, mother-in-law Jaitoon, brother-in-law

Naseer and Ameer and sister-in-law Munija Begum caught hold her

in the night about 9.00 pm. and her husband poured acid upon her

in order to do away with her.

3.The FIR was lodged and investigation started. During

investigation the injured died and Section 304-B I.P.C. was added

to the matter.

4.The I.O. proceeded to record the statement of witnesses,

performed inquest, sent the body of the deceased for autopsy,

inspected the place of occurrence and submitted charge sheet

against the accused persons

5.The accused persons appeared before the Magisterial Court,

the case being exclusively triable by the Sessions Court was

committed to the Court of Sessions by the Magistrate.

6.Charge under Section 304-B I.P.C. and 3/4 Dowry

Prohibition Act was framed against the accused persons who denied

of the charges and claimed to be tried.

7.The trial started and the prosecution in order to prove its case

examined 12 witnesses in all as P.W.1 the informant/ brother of the

deceased, P.W.2 Smt. Shahjahan, mother of the deceased, P.W.3

Altaf, brother of the deceased, P.W.4 Constable Dharampal Singh,

Scribe of the FIR, P.W.5 S.D.M Karmveer Singh, witness of inquest

report, P.W.6 Dr. A.K. Jain, who performed the autopsy of the dead

body of the deceased, P.W.7 Dr. Kripal Singh, who prepared injury

report of the deceased when she was alive, P.W.8 Tehsildar Shiv

Bhajan, who recorded the dying declaration of the deceased, P.W.9

Rajendra Kumar Additional S.P. and second I.O. of the case, P.W.10

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Constable Rakesh Dubey, who has been examined as secondary

witness for the first I.O. S.I. Bihari Lal Yadav.

8.In documentary evidence, the prosecution relied upon written

report Ex. Ka-1, application for post mortem Ex.-Ka-2, inquest

report Ex.Ka-3, FIR Ex.Ka-4, G.D. Ex.Ka-5, specimen seal Ka-6,

photo nash Ex.Ka-7, letter to R.I. Ex.Ka-8, letter to C.M.O. Ex.Ka-

9, chalan lash Ex.Ka-10, autopsy report Ex.Ka-11, injury report

Ex.Ka-12, dying declaration Ex.Ka13, charge sheets Ex.Ka-14,

Ex.Ka-16 and site plan Ex.Ka-15.

9.After completion of prosecution evidence, the incriminating

circumstances and evidences were put to the accused persons in

their statements recorded under Section 313 Cr.P.C. wherein they

told the whole prosecution story and evidence as false and

fabricated and claimed to be innocent. Accused Sageer stated that at

the time of incident he was at Bikaner in connection with his job

and came back on 27.04.2002 on being informed by his mother by

telephone regarding the incident of the burning of his wife. After

coming back when he went to the hospital, the treatment of his wife

was going on but the police arrested him in the same evening. He

has further stated that he had married with Parveen in the year 2002

and they had a son, who is no more. He and his younger brother

live separately in a rented house in the same village. His brother

Naseer had gone to the house of his in-laws in the very night of the

occurrence, who reached in the morning and got Parveen admitted

in the hospital since his mother was alone in the night. Parveen

could not be admitted in the hospital in the night. The police

reached after lodging of the FIR. He does not know as to when

Parveen died in the hospital. Co-accused Naseer has also narrated

the same version in his statement under Section 313 Cr.P.C.

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10.Co-accused Smt. Jaitoon, the mother-in-law of the deceased

died during pendency of the trial and the case was abated against

her vide order dated 21.11.2005.

11.We are of the considered opinion that a perusal and analysis

of the oral evidence along with documentary evidence is desirable

to reach the correct conclusion.

12.P.W.1, the informant has proved the written report Ex.Ka-1

and has narrated the story like this that about 4-1/4 years ago his

sister Parveen was living in her matrimonial house. In the morning

a villager informed him that his sister is lying ablaze in her house.

When he reached there along with his family members he found

Parveen unconscious and burnt. He came to the police station along

with Parveen, dictated the report to Sharakat Khan and on the basis

of that written report case was registered in the police station. He

has proved the written report as Ex.Ka-1, however, he has stated

that the written report was not read over him by the scribe. He has

also stated that the factum of pouring acid upon Parveen was not

dictated by him and also he did not dictate this fact that his sister

had told him that the accused persons caught hold of her in the

night and in order to kill her, his husband threw acid upon her. He

has also proved his application given to S.P. City for performing the

post mortem of the body of her sister as Ex.Ka-2. He has been

declared hostile by the prosecution. He has denied all the

allegations of demand of dowry and cruelty caused by the accused

persons to her sister. In his cross-examination he has stated that his

sister never told him about the demand of dowry or harrasment

caused to her by the accused persons. He has also narrated that

there was no electricity connection in the house of the accused

persons and they used a dibbi of kerosene oil for light.

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13.P.W.2 Smt. Shahjahan, the mother of the deceased has also

not supported the prosecution version in her examination-in-chief

and has been declared hostile. All the allegations against the

accused persons in respect of demand of dowry and cruelty to her

daughter and even her statement under Section 161 Cr.P.C. have

been denied by her in her deposition.

14.P.W.3 Altaf is the brother of the deceased and following the

statements of P.W.1 and P.W.2, he has also submitted that accused

persons are innocent, they have never demanded dowry from her

sister and never subjected any kind of cruelty to her. On the inquest

report he has proved his thumb impression as Ex.Ka-3 and has

denied that the I.O. had ever taken his statement under Section 161

Cr.P.C.

15.P.W.4 Constable Dharampal Singh is the scribe of the FIR,

who has proved the Chik FIR and G.D. of the case as Ex. Ka-4, Ka-

5 respectively.

16.P.W.5 S.D.M. Karmendra Singh has conducted the inquest

proceedings and in his statement he has affirmed his signature over

inquest report Ex.Ka-3 and has also proved the papers sent for the

post mortem of the deceased as Ex.Ka-6, Ex.Ka-7, Ex.Ka-8, Ex.Ka-

9 and Ex.Ka-10.

17.P.W.6 Dr. A.K. Jain has performed the autopsy of the

deceased. He has proved the autopsy report Ex.Ka-11. Following

anti mortem injuries were found by him over the body of the

deceased

1Court N.-t4AFR -

1- aseta:tpelndtsftH'bDftK ta:thlt4rfntJynte

rआं

Tn.tpk-,tf: tan1,:t.t im:tfStslvtai,:t.t :Ftf: t(ePa:

6

ltan1,:tfStslvt :Ftf: tb,4y:t(ePa:t1:tan1,:tkn(e,i

तराफ, baltf: t im:t,i4:tfStslv, kA,ct )ltH'bDftK ta:

ai,:tf: t im:tfStslv2

2- )3aAytai,:t.t :Ftf: t im:tfStslv2

18.He had performed the autopsy on 4.7.2002 at 4.15 p.m. and

has opined that the death was caused due to septicemia/ toxacemia.

19.P.W.7 Dr. Kripal Singh has medically examined the deceased,

when she was alive. He was found that several burn injuries on

various parts of the body of the injured as head, face, neck, below

the elbow, chest, abdomen, thigh, hips etc. and she was burnt about

75%. He has proved the injury report as Ex.Ka-12.

20.P.W.8 Tehsildar Shiv Bhajan has recorded the dying

declaration of the deceased on 27.4.2002 and has narrated that the

doctor present over there had identified her and her family members

were turned out by him at the time of recording the statement. He

has also narrated that the statement was recorded after her medical

examination by the doctor. He has proved the dying declaration as

Ex.Ka-13 and read over it before the Court, wherein it was

mentioned like this.

5un,t l.i,t 6itDfSytHurt20 .7-tb,8t 9lt0eAMVn, इज्जत नगरा, 0l:yi

--------------------------------------

"0eADAe.nat5un,t(funt(ft(k,n'ft26.4.02 fAtkA eltf: ta1ut1:l:t bs

DfSyt rGt0n0NtanatJ)sr,t 6it0n0, k:.ltbyunfst rGt0n0N, र्द

Nalntk:.l

1syAt rGt0n0NtH(kt,:tb1yflt1rj:t iFntsYnt1rjt lts:Jn0t3nyflt1rj:

Jynt(kun2t5un,tar,fltsakUft(fu:2"

21.P.W.9 Additional Superintendent of Police Rajendra Kumar is

the second I.O. of the case. He has narrated the proceedings of

investigation conducted by him and has proved the charge sheet as

Ex.Ka-14.

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22.P.W.10.Constable Rakesh Dubey has been examined as

secondary witness for the first I.O. of the case S.I. Bihari Lal Yadav

and he has proved his hand writing and signature over the site plan

Ex.Ka-15 and charge sheet Ex.Ka-16.

23.The trial Court relying upon the aforesaid evidence found the

dying declaration as cogent and reliable evidence and opined that

the prosecution has proved its case beyond reasonable doubt and

passed conviction order against the accused Sageer and Naseer

under Section 304-B I.P.C. and Section 3/4 D.P. Act and sentenced

them accordingly.

24.Heard Shri Ravi Shankar Tripathi, for the appellants, Shri

N.K. Srivastava for the State and perused the record.

25.The learned counsel for the appellants has submitted that the

prosecution is guilty of suppressing the genesis of the incident,

therefore, an adverse inference ought to be drawn against the

prosecution. Assailing the impugned judgement on various grounds,

he has firstly taken us to the depositions of the witnesses P.W.1,

P.W.2 and P.W.3, who are hostile witnesses and on the basis of their

statements he has vehemently argued that the ingredients of Section

304-B I.P.C. which the prosecution is bound to prove to bring home

the charge against the accused, are totally absent in the present

matter and no case as such is made out against the appellants.

26.To appreciate the arguments advanced by the learned counsel

for the appellants we have to keep in our mind the ingredients

which the prosecution has to prove in order to convict the accused

for the offence under Section 304-B I.P.C. The ingredients have

been settled in a catena of judgements of Hon’ble Apex Court. In

Maya Devi Vs. State of Haryana (2015) 17 SCC 405 it has been

held as herein under-

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“In order to convict an accused for the offence

punishable under Section 304B IPC, the

following essentials must be satisfied:

(i) the death of a woman must have been caused

by burns or bodily injury or otherwise than

under normal circumstances;

(ii) such death must have occurred within seven

years of her marriage;

(iii) soon before her death, the woman must

have been subjected to cruelty or harassment by

her husband or any relatives of her husband;

(iv) such cruelty or harassment must be for, or

in connection with, demand for dowry”.

27.Recently in State of M.P. Vs. Joginder (2022) 5 SCC 401,

the Hon’ble Apex Court has reiterated the aforesaid principle.

28.In the light of the aforesaid preposition, the evidence on

record has to be scrutinized. The informant, who has denied the

contents of his written report Ex.Ka-1 is certainly trying to hide

facts from the Court. He has expressly stated that the written report

was dictated by him to Sharakat Khan and whatsoever he has stated

the same was written in it. He had identified his thumb impression

upon the tehrir and has also clarified that in the police station he

had given the same tehrir and the case was lodged thereupon.

Subsequently, he turned hostile and denied the contents of Ex.Ka-1.

29.The law in respect of the hostile witness is absolutely settled

in a catena of decisions. The Hon’ble Supreme Court and this High

Court have held that the evidence of a hostile witness would not be

rejected, if not spoken in favour of the prosecution but it can be

subjected to close scrutiny and that portion of the evidence

consistent with the case of prosecution may be accepted.

30.In State Of Gujarat vs Anirudh Singhh and Another

(1997) 6 SCC 514, it has been held that virtually it is a legal duty of

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the trial Judge or the appellate Judge to scan the evidence, test it on

the anvil of human conduct and reach a conclusion whether the

evidence brought on record even of the turning hostile witnesses

would be sufficient to bring home the commission of the crime.

31.In Rajesh Yadav and Another Vs. State of U.P. 2022 SCC

Online SC 150 it has been held like this:

“…..21.The expression “hostile witness” does

not find a place in the Indian Evidence Act. It is

coined to mean testimony of a witness turning to

depose in favour of the opposite party. We must

bear it in mind that a witness may depose in

favour of a party in whose favour it is meant to

be giving through his chief examination, while

later on change his view in favour of the

opposite side. Similarly, there would be cases

where a witness does not support the case of the

party starting from chief examination itself. This

classification has to be borne in mind by the

Court. With respect to the first category, the

Court is not denuded of its power to make an

appropriate assessment of the evidence rendered

by such a witness. Even a chief examination

could be termed as evidence. Such evidence

would become complete after the cross

examination. Once evidence is completed, the

said testimony as a whole is meant for the court

to assess and appreciate qua a fact. Therefore,

not only the specific part in which a witness has

turned hostile but the circumstances under which

it happened can also be considered, particularly

in a situation where the chief examination was

completed and there are circumstances

indicating the reasons behind the subsequent

statement, which could be deciphered by the

court. It is well within the powers of the court to

make an assessment, being a matter before it and

come to the correct conclusion”.

32.The evidence of P.W.2 and P.W.3 stand on the same footings

as is of P.W.1. The learned counsel for the appellants has failed to

explain as to why the informant went to the police station with the

deceased, who was ablaze at that time if she was not subjected to

acid attack by her husband and in-laws. The learned counsel for the

appellants has quoted the statements of P.W.1, who has tried to

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explain the reason behind taking away her sister to the police

station before got her admitted into the hospital. In his cross-

examination P.W.1 has stated that some persons had told him that

without the police intervention the persons who are got injured in

accident or by burning are not admitted into the hospital and that is

why he went to the police station for lodging of FIR before going to

the hospital.

33.We are of the considered view that this statement of P.W.1 is

false and fabricated. If the deceased was burnt accidentally and the

informant wanted police intervention before any medical treatment

he could have only inform the police regarding the incident of

burning of his sister. He had no need to lodge an FIR in respect of

that incident, merely an information was sufficient to take the

police into action, if any how informant was under impression that

the police ought to be informed prior to the injured taking to the

hospital.

34.In Bable vs State Of Chattisgarh AIR 2012 SC 2621 it has

been held that “FIR by itself is not a substantive piece of evidence

but it certainly is a relevant circumstance of the evidence produced

by the Investigating Agency. Merely because the informant had

turned hostile, it cannot be said that the FIR would lose of all its

relevancy and cannot be looked into for any purpose”. It is very

important to note that after lodging of the FIR the investigation was

started and culminated into a charge sheet.

35.The trial Court has appreciated the evidence of P.W.1, P.W.2

and P.W.3 and has opined that the witnesses are deliberately trying

to hide the facts. He has also impressed upon Ex.Ka-2, which is an

application given by the informant P.W.1 to S.P. City, Bareilly for

performing the post mortem of the deceased alleging therein that it

was a bride burning case and the accused persons killed the

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deceased by acid attack. Why Ex.Ka-2 was given by him to the

high police official, has no where been explained by P.W.1 in his

entire deposition.

36.We are of the considered opinion that the learned trial Court

has rightly impressed upon the evidentiary value of Ex.Ka-2 and

has reached the correct conclusion.

37.While the FIR has been found a credible piece of evidence,

we can successfully relied upon the contents found therein. It has

been clearly mentioned in the FIR that the marriage took place two

years before the occurrence and the in-laws of the deceased were in

continuous demand of colour t.v & motor cycle and she was

subjected to cruelty and harassment for demand of dowry, and the

deceased always used to tell all the story to her family members,

several times the accused persons kicked her out of the house and

the informant and his family members kept on requesting them not

to torture the deceased, but in vain.

38.The dying declaration of the deceased has been recorded by

the Tehsildar P.W.8. The learned counsel for the appellants has

vehemently argued that the dying declaration is not a fair and

reliable piece of evidence in this matter and the circumstances

surrounding it are suspicious.

39.The trial Court has examined the veracity of the dying

declaration Ex.Ka-13 in detail in the impugned judgement. From

the perusal of the whole deposition of P.W.8, we do not find any

adversity in his statement. So far as the dying declaration is

concerned, the doctor has given his certificate before recoding it

that Mrs. Parveen is conscious to give her statement and after the

statement is recorded he has again certified that Mrs. Parveen

remained in her senses throughout the recording of statement.

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40.Legal position of dying declaration to be the sole basis of

conviction is that it can be done so if it is not tutored, made

voluntarily and is wholly reliable. In this regard, Hon'ble Apex

Court has summarized the law regarding dying declaration in

Lakhan vs. State of Madhya Pradesh [(2010) 8 Supreme Court

Cases 514], in this case, Hon'ble Apex Court held that the doctrine

of dying declaration is enshrined in the legal maxim nemo

moriturus praesumitur mentire, which means, "a man will not meet

his Maker with a lie in his mouth". The doctrine of dying

declaration is enshrined in Section 32 of Evidence Act, 1872, as an

exception to the general rule contained in Section 60 of Evidence

Act, which provides that oral evidence in all cases must be directed,

i.e., it must be the evidence of a witness, who says he saw it. The

dying declaration is, in fact, the statement of a person, who cannot

be called as witness and, therefore, cannot be cross-examined. Such

statements themselves are relevant facts in certain cases.

41.The law on the issue of dying declaration can be summarized

to the effect that in case the court comes to the conclusion that the

dying declaration is true and reliable, has been recorded by a person

at a time when the deceased was fit physically and mentally to

make the declaration and it has not been made under any

tutoring/duress/prompting; it can be the sole basis for recording

conviction. In such an eventuality no corroboration is required. It is

also held by Hon'ble Apex Court in the aforesaid case, that a dying

declaration recorded by a competent Magistrate would stand on a

much higher footing than the declaration recorded by office of

lower rank, for the reason that the competent Magistrate has no axe

to grind against the person named in the dying declaration of the

victim.

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42.P.W.8 is absolutely independent witness. In the wake of

aforesaid judgment of Lakhan (supra), dying declaration cannot be

disbelieved, if it inspires confidence. On reliability of dying

declaration and acting on it without corroboration, Hon'ble Apex

Court held in Krishan vs. State of Haryana [(2013) 3 Supreme

Court Cases 280] that it is not an absolute principle of law that a

dying declaration cannot form the sole basis of conviction of an

accused. Where the dying declaration is true and correct, the

attendant circumstances show it to be reliable and it has been

recorded in accordance with law, the deceased made the dying

declaration of her own accord and upon due certification by the

doctor with regard to the state of mind and body, then it may not be

necessary for the court to look for corroboration. In such cases, the

dying declaration alone can form the basis for the conviction of the

accused. Hence, in order to pass the test reliability, a dying

declaration has to be subjected to a very close scrutiny, keeping in

view the fact that the statement has been made in the absence of the

accused, who had no opportunity of testing the veracity of the

statement by cross-examination. But once, the court has come to the

conclusion that the dying declaration was the truthful version as to

the circumstance of the death and the assailants of the victim, there

is no question of further corroboration.

43.In Ramilaben Hasmukhbhai Khristi vs. State of Gujarat,

[(2002) 7 SCC 56], the Hon'ble Apex Court held that under the law,

dying declaration can form the sole basis of conviction, if it is free

from any kind of doubt and it has been recorded in the manner as

provided under the law. It may not be necessary to look for

corroboration of the dying declaration. As envisaged, a dying

declaration is generally to be recorded by an Executive Magistrate

with the certificate of a medical doctor about the mental fitness of

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the declarant to make the statement. It may be in the from of

question and answer and the answers be written in the words of the

person making the declaration. But the court cannot be too technical

and in substance if it feels convinced about the trustworthiness of

the statement which may inspire confidence such a dying

declaration can be acted upon without any corroboration.

44.From the above precedents, it clearly emerges that it is not an

absolute principle of law that a dying declaration cannot form the

sole basis of conviction of an accused when such dying declaration

is true, reliable and has been recorded in accordance with

established practice and principles and if it is recorded so then there

cannot be any challenge regarding its correctness and authenticity.

45.In dying deceleration of the deceased, it is also relevant to

note that deceased died after more than two months of recording it.

It means that she remained alive for more than two months after

making dying declaration, therefore, truthfulness of dying

declaration can further be evaluated from the fact that she survived

for more than two months after making it from which it can

reasonably be inferred that she was in a fit mental condition to

make the statement at the relevant time.

46.From the above, it is also clear that the deceased was

subjected to cruelty and was made a victim of acid attack soon

before her death.

47.Hence, we find that all the ingredients to bring home charge

against the accused under Section 304-B I.P.C are fulfilled and the

prosecution has successfully established all the conditions in order

to enable it to ask for conviction of the accused persons in the

present case of dowry death.

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48.The provisions of Section 113 B of Indian Evidence Act

come into picture at this juncture. Section 113 B of Indian Evidence

Act reads like this.

“[113B. Presumption as to dowry death.—When the

question is whether a person has committed the

dowry death of a woman and it is shown that soon

before her death such woman has been subjected by

such person to cruelty or harassment for, or in

connection with, any demand for dowry, the Court

shall presume that such person had caused the

dowry death. Explanation.—For the purposes of

this section, “dowry death” shall have the same

meaning as in section 304B, of the Indian Penal

Code, (45 of 1860).]”

49.A bare perusal of the aforesaid provisions makes it clear that

if the prosecution succeeds in establishing the pre-conditions to

obtain a benefit of presumption under Section 113B of the Indian

Evidence Act in a case under Section 304-B I.P.C. it will be

presumed that the accused has committed the offence and the

burden of proof is shifted upon the accused that he was innocent.

50.It is pertinent to mention here that no defence evidence has

been adduced by the accused persons. In his statement under

Section 313 Cr.P.C., accused Sageer has taken a defence that he was

at Bikaner in the fateful night and after getting information from his

mother he came back in the morning but at the same time his

brother co-accused Naseer in his statement has stated that accused

Sageer had gone to Bareilly for labour work. It is a major

contradiction. Secondly, co-accused Naseer has stated that when he

saw the deceased (then injured) ablaze he immediately went away

to the house of the in-laws of accused Sageer and stayed there at

night and returned in the morning. The statement is totally

unnatural. When the mother of the accused persons was alone in the

house and the deceased was in bitterly burnt condition why co-

accused Naseer went away to the house of the in-laws of accused

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Sageer and why he did not make any effort to provide medical

treatment to the deceased immediately, are the questions un-

answered by the defence.

51.The trial Court has fairly discussed these aspects in his

judgement and has found that the accused persons are telling a lie

and moreover, no defence evidence to prove the aforesaid

narrations has been adduced by the appellants, which makes their

statement totally false. They have failed to discharge their burden of

proof under Section 113 B of Indian Evidence Act after a

presumption was raised against them.

52.At the same time we have also found that the medical

evidence is quite clear and corroborates the facts and circumstances

of the case, the minor contradictions will have to be ignored and

they cannot form the dent in the prosecution of the accused persons/

appellants. All the family members of the deceased have become

hostile as witnesses but this fact also has failed to provide any help

to the appellants. The dying declaration goes in toto in favour of the

prosecution and, therefore, there is no doubt left in our mind about

guilt of the present appellants and we concur with the finding of the

learned trial Court. However, the question which falls in our minds

is whether on re-appraisal of the peculiar facts and circumstances of

the cases, the sentence of life imprisonment imposed by the trial

Court is proper or not.

53.We have given our thoughtful consideration to the request

made by the learned counsel for the appellants that they have been

languishing in jail for many years in this case and keeping in view

the incarceration of the accused persons they should be released as

undergone.

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54.While considering the aforesaid aspects our attention is

drawn towards the fact that it is a case of septicemial death and the

death of the deceased is occurred after more than two months of the

occurrence.

55.'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.

56.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

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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.

57.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.

58.The dictum given in the recent judgment of State of M.P Vs.

Jogendra (supra) (para-20) can be followed in the facts and

circumstances of this case. Hence, we conclude that as the convicts

have been in jail for more than 12 years i.e sufficient for them,

hence they may be set free if not required in any other offence. As

19

far as Section 3/4 D.P. Act is concerned, they have already

undergone the punishment and if the fine is not paid, the default

sentence would also have been over by now which would begin

from the date after the period awarded by the trial court is over. As

far as Section 304-B of I.P.C. is concerned, we punish all accused to

12 years of imprisonment. The fine is maintained as imposed by the

trial Court and default sentence will be 6 months imprisonment. If

the convicts have served out their sentence they be released, if not

wanted in other offence.

59.The default sentence shall begin after 12

th

year of

incarceration.

60.Accordingly, the appeal is partly allowed with the

modification of the sentence as above.

61.Record and proceedings be sent back to the Court below

forthwith.

62.A copy of this order be sent to the jail authorities for

following this order and doing the needful.

Order Date :- 28.9.2022

Fhd

(Nalin Kumar Srivastava,J.) (Dr. Kaushal Jayendra Thaker, J.)