Reserved on 06.12.2018 Delivered on 28.02.2019
Case :- CRIMINAL APPEAL No. - 6707 of 2010 Appellant :- Smt. Devmati Devi Respondent :- State Of U.P.
Counsel for Appellant :- S.K.Chaubey,Anil Kumar Ray Counsel for Respondent :- Govt. Advocate
Hon'ble Om Prakash-VII,J.
1. Present criminal appeal has been preferred by accused appellant Smt. Devmati Devi against judgment and order dated 23/24.9.2010 passed by Sessions Judge, Ballia in Session Trial No. 50 of 2009 convicting and sentencing appellant for the offence punishable under Section 304 (Part- II) IPC to undergo seven years rigorous imprisonment.
2. Prosecution case, as unfolded by informant Phuna Chaubey son of Shivji Chaubey, resident of Bakwa, P.S. Bansdeeh, District Ballia in First Information Report (in short 'F.I.R.') is that on 27.1.2008 sister-in-law (Bhabhi) of informant beat his daughter with danda on account of dispute regarding taking of water from hand-pump and she received injuries. Her treatment was going on in Sadar Hospital and she succumbed to her injuries in the hospital. Rajendra Singh, Vijay Singh and other villagers reached the spot at the time of incident.
3. On the basis of the written report (Ext. ka-1) chik First Information Report (Ext. Ka-3) was registered at Police Station concerned on 27.1.2008 at 2:30 p.m. mentioning all details as had been disclosed in Ext. Ka-1. G.D. entry Ext. Ka- 4 was also made at the same time.
4. Investigation of the matter was started by Sub-Inspector Tej Pratap Singh. He visited place of occurrence; recorded statement of witnesses; prepared site plan Ext. ka-5; took into possession one lathi (bans ka danda) and prepared memo Ext.
ka-6 in this regard. Inquest report (Ext. ka-8) was prepared by Sub-Inspector Shitla Prasad Dubey. Other papers i.e. report to R.I. (Ext. ka-12), report to Incharge Medical Officer, Sadar Hospital, Ballia (Ext. ka-13), sample seal (Ext. ka-10), photo lash (Ext. ka-9) and police paper (Ext. ka11) were also prepared. After sealing he body, sent the same for post- mortem to Sadar Hospital Ballia alongwith relevant papers.
5. Post-mortem on the dead body of deceased was conducted on 27.1.2008 at 04:00 p.m. Autopsy report is Ext. Ka-2. As per post mortem report deceased was thin built female, both eyes and mouth closed. Membranes and brain lacerated. On examination following ante-mortem injuries were found.
“(i) Abraded contusion 4 cm X 2.5 cm on right upper eye lid swelling aroung eye ball.
(ii) Lacerated wound 2 cm X 1 cm in the top of head towards left side 1 cms above from the inner end of left eye brow.”
6. In the opinion of doctor, death was caused due to coma as a result of ante-mortem head injury.
7. After completing investigation, charge-sheet (Ext. ka-7) against accused appellant was filed. Concerned Magistrate took cognizance and case being exclusively triable by sessions court was committed to Court of sessions.
8. Accused-appellant appeared and charge under Section 304 IPC was framed in the trial court against her. Accused denied the charge, pleaded not guilty and claimed her trial.
9. Trial proceeded and on behalf of prosecution, nine witnesses, namely, PW-1 Rajendra Singh, PW-2 Nirmala, PW-
3 Phunna Chaubey, PW-4 Vijay Bahadur Singh, PW-5 Anoop Kumar Singh, PW-6 Dr. Ajay Kumar Tiwari, PW-7 Constable Chhavi Nath Yadav, PW-8 Constable Shambhu Prasad and PW- 9 Constable Mohd. Shahnawaz Ansari, were examined.
10. After closure of prosecution evidence, statement of accused appellant under Section 313 CrPC was recorded in which denying the prosecution case she stated that since before the incident she was in her Maika (parental house), she had no knowledge about the incident. Witnesses have deposed falsely due to dispute regarding partition. Deceased died due to injuries received by her by falling from roof.
11. In defence, accused appellant examined Indrmuni Ram as DW-1.
12. Trial court has found that prosecution has fully succeeded in bringing home the charge against accused appellant beyond reasonable doubt and convicted and sentenced accused appellant, as mentioned above. Hence this appeal.
13. I have heard Shri Ajeet Kumar Singh, learned counsel for appellant and Sri J.K. Sisodia, learned A.G.A. appearing for State at length.
14. Only submission on behalf of appellant is that no minimum sentence for the offence under Section 304 (Part-II) IPC is provided. Trial Court has imposed sentence upon accused appellant for the offence under Section 304 (Part-II) IPC for seven years. It is also submitted that neither accused appellant is habitual offender nor was convicted in any other case. Thus, it was submitted by learned counsel for the accused appellant that sentence awarded to the accused appellant by the trial court vide impugned judgment and order be modified and accused appellant be released in this matter on the basis of imprisonment already undergone. It was next submitted that in this case offence is said to have been committed on 27.1.2008 and at present accused appellant is in jail and has remained earlier in jail. It is further submitted that about one year and six months have been served out by the appellant in the present matter. It is next submitted that if any fine is imposed by the Court, appellant is ready to deposit the same.
15. 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. Since only seven years imprisonment has been awarded by the trial court vide impugned judgment and order, no further leniency is required in the matter.
16. I have considered rival submissions made by learned counsel for parties and have gone through the entire record carefully.
17. Since learned counsel for accused appellant did not challenge findings recorded by trial court in the impugned judgment and order regarding guilt of accused appellant for the offence under Sections 304 (Part-II) IPC and confined his argument only to the sentence awarded by trial court to accused appellant, I do not propose to scrutinize the entire evidence minutely in this regard. However, a perusal of entire record shows that trial Court has considered in detail the entire evidence available on record regarding guilt of accused appellant for the offence under Section 304 (Part-II) IPC and keeping in view the offence committed by accused appellant, I am also of the opinion that prosecution was able to establish the guilt of accused appellant for the aforesaid offence beyond reasonable doubt. The findings recorded by the trial court to constitute offence under Section 304 (Part-II) IPC against accused appellant are correct and the same do not warrant interference by this Court.
18. So far as submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
19. It is settled legal position 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 marginalized. 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 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'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
20. 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.
21. The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered 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."
22. Applying the principles laid down by Apex Court in the aforesaid judgments and having regard to totality of facts and circumstances of the case particularly the fact that at present accused appellant is in jail and has served-out about 1 year and six months sentence out of total sentence, the fact that this is first conviction of appellant and also keeping in view the entire facts and circumstances of the case, I am of the considered view that ends of justice would meet if sentence awarded to accused appellant under Section 304 (Part-II) IPC by the trial court vide impugned judgment and order is modified and reduced to the period already undergone and directing the appellant to deposit with the trial court a fine of Rs. 50,000/- within two months from date of release.
23. In the light of foregoing discussions, this criminal appeal is liable to be allowed in part and conviction of appellant under Section 304 (Part-II) IPC is liable to be upheld and the impugned judgment and order dated 23/24.9.2010 is liable to be modified to the extent, as discussed above.
24. Accordingly, criminal appeal is allowed in part. Conviction of accused appellant under Section 304 (Part-II) IPC is upheld but sentence of rigorous imprisonment of seven years under Section 304 (Part-II) IPC awarded to accused appellant vide impugned judgment and order shall stand modified and reduced to period already undergone and a fine of Rs. 50,000/-. Fine imposed upon accused-appellant shall be deposited with the trial court within two months from the date of release. On account of failure on the part of appellant in depositing the fine amount, as directed above, she will have to serve out entire sentence imposed by the trial court vide impugned judgment and order.
25. Let a copy of this judgment along with lower court record be sent to Sessions Judge, Ballia for compliance. A compliance report be sent to this Court. Copy of this order be also supplied to accused-appellant through concerned Jail Superintendent.
Order Date :- 28.02.2019
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