Court No. - 77
Case :- JAIL APPEAL No. - 51 of 2020 Appellant :- Smt. Teja Respondent :- State of U.P.
Counsel for Appellant :- From Jail,Amrita Singh (A.C.),Ashwini Kumar Ojha Counsel for Respondent :- A.G.A. With Case :- JAIL APPEAL No. - 52 of 2020 Appellant :- Sheetal Prasad Respondent :- State of U.P.
Counsel for Appellant :- From Jail,Ashwini Kumar Ojha Counsel for Respondent :- A.G.A.
Hon'ble Rajendra Kumar-IV,J.
1. By these criminal appeals, accused-appellants Smt. Teja and Sheetal Prasad have challenged the judgement and order dated 26.11.2019 passed by Additional Sessions Judge / Special Judge (Essential Commodities Act), Jalaun at Orai in Session Trial No.149 of 2016 (State vs. Sheetal Prashad and another), arising out of Case Crime No.55 of 2016, under Section 304 I.P.C., Police Station Kailiya, District Jalaun by which accused-appellants have been convicted and sentenced 10 years rigorous imprisonment under Section 304 I.P.C. with fine of Rs. 10,000/- each with default clause.
2. According to prosecution, daughter of informant Deepa was married to Baini Prasad, resident of village Sunaya, District Jalaun, accused Sheetal Prasad, Smt. Teja and one Smt. Triveni used to harass the victim. Smt. Triveni, mother-in-law of victim had illicit relationship with Sheetal Prasad prior to the incident. On 15/16.04.2015 in the night, victim Deepa had seen Smt. Triveni and Sheetal Prasad in the compromising position and threatened to disclose everyone by making noise. Husband of victim, Deepa, was not present in the house on that date. The day before incident, accused person caught her and locked her in the room and tied a cloth in the mouth. At 8:00 a.m. in the morning, accused-appellants, with intention of killing Deepa put kerosene oil on him and set her on fire due to which she got severely burn and succumbed to death on 21.04.2015 in the hospital. Before her death, dying declaration of deceased was recorded in which she narrated entire story.
3. Inquest was conducted over the dead body of Smt. Deepa and post-mortem was done by doctor, who found 100% ante-mortem burn injury. He prepared post-mortem report and according to post mortem report, victim died due to burn injuries.
4. The matter was investigated by Investigating Officer, who after completing entire formalities of prosecution, submitted charge sheet against the accused-appellants. Trial Court framed the charges against the accused-appellants who denied the same and claimed to be tried.
5. In support of its case, prosecution examined as many as 11 witnesses out of whom P.W.-1, P.W.-2 and P.W.-3 are the witnesses of fact and rest are the formal witnesses.
6. On closure of prosecution evidence, statement of accused-appellants under Section 313 Cr.P.C. were recorded by Court explaining all incriminating and other evidence and circumstances. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong and claimed false implication.
7. Trial court after considering the entire evidence found accused-appellants guilty and convicted and sentenced as stated above.
8. Heard learned counsel for the accused- appellants, learned A.G.A. for the State and perused the record.
9. Main submission of learned counsel for the appellants is that the main foundation of prosecution case is dying declaration made by deceased before her death. Dying declaration was not reliable and no conviction can be made believing dying declaration as true and reliable. He further submits that if the appeals fail on merit, both appellants should be sympathetically considered on the point of sentence. They are old person and happens to be the Mausiya mother-in- law and Mausiya father-in-law of the deceased respectively.
10. Learned AGA opposed the submissions made by learned counsel for the accused-appellants.
11. Evidently, dying declaration has been recorded by Tehsildar concerned in the presence of doctor, after taking necessary certificate regarding mental status of victim. Doctor found her to be fit in state of mind. In the statement victim, while alive, had stated that accused-appellants Smt. Teja and Sheetal Prasad put kerosene oil on her and set her on fire due to which she got burn injuries.
12. It is a case of no eye witness. P.W.-1 and P.W.-2 are not eye witness. They have proved only circumstances. Since, being no eye witness, there statement on oath need not close scrutiny.
13. Victim, while alive has given the statement before P.W.-11 Rajendra Babadur, Tehsildar in the presence of P.W-10 Doctor Ashish Mishra. Statement of victim was treated as dying declaration in which victim narrated entire story. This dying declaration is proved by P.W.-11. P.W.-10 proved her mental condition at the time of recording her statement.
14. Deposition of P.W.-1, P.W.-2, P.W.-10 and P.W.- 11, dying declaration of victim establish the prosecution case beyond reasonable reasonable doubt. There is nothing on record to hold that trial court recorded the conviction in any perverse manner. Finding of trial court is well discussed and sound. In my opinion, Trial court rightly convicted the accused-appellants under the offence alleged. There is no reason to take different view than that of trial court.
15. In view of the above, appeals fail on merit and deserve to be dismissed.
16. So far as sentence awarded to appellants by trial court is concerned, 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 offence and the manner in which, it was executed or committed. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and 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 individual but also against society to which criminal and victim belong. 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, enormity of 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].
17. Admittedly, the incident of this case is of year 2015 and more than 6 years has elapsed. The appellants are facing trial as well as appeal while in jail. They are in jail for a considerable period. It is obvious that during these years, they have suffered a great mental agony and harassment. He must have also incurred expenses defending themselves during the entire period.
18. Keeping in view the nature of allegation, applying the principles laid down in the judgments and having regard to the totality of facts and circumstances of case, dying declaration of deceased, nature of offence and the manner in which it is committed. I, decide the appeals in the following manner :-
(i) Conviction of accused-appellants, Smt. Teja and Sheetal Prasad under Section 304 I.P.C. is confirmed and appeals, on merit, are dismissed.
(ii) Sentence of accused-appellants under Section 304 I.P.C. is modified and they are sentenced to undergo for a period of eight years rigorous imprisonment with fine of Rs. 10,000/- each under Section 304 I.P.C. In default of payment of fine they shall further undergo for a period of one year simple imprisonment.
(iii) Accused-appellants shall be entitled to the benefit of Section 428 Cr.P.C.
19. Appeals are disposed of with above terms.
20. Certify the judgement along with the lower court record to the trial court concerned for compliance.
Order Date :- 22.9.2021 / Manoj