Bhoora S/O Sohmat vs State Of U.P. on 21 September, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved AFR

Case :- CRIMINAL APPEAL No. – 281 of 1997

Appellant :- Bhoora S/O Sohmat

Respondent :- State Of U.P.

Counsel for Appellant :- Alok Kapoor

Counsel for Respondent :- Govt. Advocate

Hon’ble Sheo Kumar Singh-I,J.

1. Instant Criminal Appeal under Section 374(2) Cr.P.C. has been filed against judgment and order dated 14.5.1997 passed by IVth Additional Session Judge, Unnao in Session Trial No. 971 of 1994, P.S. Bangarmau, District Unnao whereby and whereunder accused appellants Ashfaq @ Lodhey, Bhoora and Smt. Anita were convicted under section 498A and 306 IPC and accused appellants Ashfaq and Bhoora were sentenced to undergo rigorous imprisonment for two years and to pay a fine of rs. 200/- each under Section 498-A IPC and in default of payment of fine to undergo rigorous imprisonment of one month. They have have further sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/- each under section 306 IPC and in case of default of payment of fine, they have to undergo rigorous imprisonment for six months. Anita was also found guilty but she was released on probation for a period of three years on her furnishing personal bond of Rs. 10,000/- and two sureties in the like amount before the District Probation Officer to keep peace and good behaviour.

2. The brief facts giving rise to the present appeal is that Sakila younger sister of the complainant was married with Ashfaq alias Lodhey according to the Muslim rituals. The complainant had given sufficient dowry in the marriage but the demand of television and cycle could not be fulfilled and after visit the deceased was harassed and treated with cruelty. It was communicated by the deceased to her family members that her jeth and jethani asked her to bring television and cycle. Thereafter, she was sent to her sasural with the assurance that at present, they can can not fulfil the demand and it can be given in due course of time. On 5.4.1994 they got some information that jeth and jethani i.e. Bhoora and Anita had abducted Sakila. The complainant started to search Sakila. A dead body was recovered towards west of Dariyapur lying in talab and was identified as dead body of Sakila.

3. Since it was established to be homicidal, thus a written report was lodged in the police station where it was registered under Section 498-A, 304-B/201 IPC and 3/4 Dowry Prohibition Act and after investigation, charge sheet was submitted against the accused appellants. In order to prove the prosecution case, the prosecution has examined six witnesses namely PW-1 Nyamatulla the complainant and brother of the deceased, PW-2 Jaibun, PW-3 Head constable Khanjan Lal Verma, PW-4 Dr. Ashok Bajpayi who conducted the autopsy of the dead body. PW-5 Dilip Kumar investigating officer and PW-6 Pankaj Kumar a formal witness. In the statement recorded under Section 313 Cr.P.C., it has been admitted by appellants that the deceased was married with Ashfaq 10 months before the date of occurrence. They have denied rest of the allegations and stated that accused Ashfaq was patient of leprosy and when Sakila got the knowledge about health of his husband, she became annoyed and committed suicide. It has further been submitted that accused appellant Bhoora and his wife were living separately. They have denied the charges of demand of dowry and examined Mansab Khan as DW-1 and Dr. N.L. Mahajan as DW-2. After hearing learned counsel for parties, the learned court below found the accused appellants guilty and sentenced as above.

4. Ashfaq being husband has filed criminal appeal No. 302 of 1997 and accused appellants Bhoora and Anita had filed criminal appeal No. 281 of 1997. Both the appeals arise out of the common order and judgment against same facts and crime number. Thus both the appeals are decided by this common judgment.

5. It is admitted case that the deceased Sakila was married with Ashfaq and she died within seven years of the marriage in an unnatural way. Now the question is as to whether death is homicidal, suicidal or within category of dowry death. To proceed the facts, I have heard learned counsel for appellant Sri Alok Kapoor and learned counsel for State Mohd. Sayeed and also perused the records.

6. PW-1 Nyamatulla is brother of deceased Sakila and stated on oath that demand of dowry in the form of television and cycle were raised before her sister. She has been examined. He had admitted that during the period of settlement of marriage or during the marriage, there was nothing about demand of dowry and nothing was stated by the appellant. It has further been submitted by learned counsel for appellants the appellant Ashfaq was suffering from leprosy and the deceased was not satisfied with the health condition of her husband and that was the reason that she generally used to visit the house of her sister. Just before 18 days of this incident, she was in the house of the complainant and was sent with the appellant to her Sasural.

7. PW-4 Dr. Ashok Bajpayi was examined who had stated that at the time of post mortem death was calculated just before about four or five days before the date of examination and reason of death was drowning. Similarly PW-5 Dr. Dilip Kumar was examined before the court who had stated that death of deceased was due to drowning in the water and suffocation. PW-6 Sri Pankaj Kumar C.O. City was examined. He had investigated the case and stated that the complainant Nyamatulla had never stated anything that due to non delivery of certain items in the form of dowry, the Nikah was delayed for some time. PW-2 Jaibun is the younger sister of the deceased who have stated that when Sakila returned back from Sasural, then she had communicated that the accused-appellants raised demand of delivery of cycle and television and for that reason she had been tortured and harassed. It has further been stated by PW-2 Jaibun that the injuries were on the body of Sakila while she was in her parental house and which were shown to this witness. In light of above facts, learned court below found the accused appellants guilty under Section 498-A of IPC.

8. So far as the death of deceased is concerned, there is no direct evidence nor there is circumstantial evidence as to whether she committed suicide due to the reason that her husband was suffering from leprosy or her death took place due to certain homicidal act. In the post mortem report, there is no external injury and the reason of death is shown as drowning in the water.

9. Learned counsel for appellants had submitted that the case is not covered even under Section 306 of IPC because there was no abetment to suicide.

10. The next aspect which is required to be addressed is whether Section 306 Indian Penal Code gets attracted. Submission of the learned Counsel for the Appellant is that even assuming the allegation is accepted to have been proved, it would not come within the ambit and scope of Section 306 Indian Penal Code as there is no abetment.

11. Section 306 Indian Penal Code reads as under:

Section 306. Abetment of suicide.–If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

12. The word ‘abetment’ has not been explained in Section 306 Indian Penal Code. In this context, the definition of abetment as provided Under Section 107 Indian Penal Code is pertinent. Secton 306 Indian Penal Code seeks to punish those who abet the commission of suicide of other. Whether the person has abetted the commission of suicide of another or not is to be gathered from facts and circumstances of each case and to be found out by continuous conduct of the accused, involving his mental element. Such a requirement can be perceived from the reading of Section 107 Indian Penal Code. Section 107 Indian Penal Code reads as under:

Section 107. Abetment of a thing.–A person abets the doing of a thing, who–

First. — Instigates any person to do that thing; or

Secondly. –Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or

Thirdly. — Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.–A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Illustration– A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C.

Explanation 2.–Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

“Abetment”, thus, means certain amount of active suggestion or support to do the act.

13. Analysing the concept of “abetment” as found in Section 107 Indian Penal Code, a two-Judge Bench in Chitresh Kumar Chopra v. State (Government of NCT of Delhi) MANU/SC/1453/2009 : (2009) 16 SCC 605 has held:

13. As per the section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any wilful misrepresentation or wilful concealment of material fact which he is bound to disclose, may also come within the contours of “abetment”. It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence Under Section 306 Indian Penal Code.

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15. As per Clause Firstly in the said section, a person can be said to have abetted in doing of a thing, who “instigates” any person to do that thing. The word “instigate” is not defined in Indian Penal Code. The meaning of the said word was considered by this Court in Ramesh Kumar v. State of Chhattisgarh MANU/SC/0654/2001 : (2001) 9 SCC 618.

In the said authority, the learned Judges have referred to the pronouncement in Ramesh Kumar v. State of Chhattisgarh.

14. The word “instigate” literally means to goad, urge forward, provoke, incite or encourage to do an act. A person is said to instigate another person when he actively suggests or stimulates him to an act by any means or language, direct or indirect, whether it takes the form of express solicitation or of hints, insinuation or encouragement. Instigation may be in (express) words or may be by (implied) conduct.

15. The word “urge forwards” means to advise or try hard to persuade somebody to do something, to make a person to move more quickly in the particular direction, specially by pushing or forcing such person. Therefore, a person instigating another has to “goad” or “urge forward” the latter with the intention to provoke, incite or encourage the doing of an act with a latter. In order to prove abetment, it must be shown that the Accused kept on urging or annoying the deceased by words, taunts until the deceased reacted. A casual remark or something said in routine or usual conversation should not be construed or misunderstood as “abetment”.

16. Analysing further, in Randhir Singh and Anr. v. State of Punjab MANU/SC/0881/2004 : (2004) 13 SCC 129, the Court has observed thus:

12. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence Under Section 306 Indian Penal Code.

[emphasis supplied]

17. In Praveen Pradhan v. State of Uttaranchal and Anr. MANU/SC/0812/2012 : (2012) 9 SCC 734, it has been ruled:

18. In fact, from the above discussion it is apparent that instigation has to be gathered from the circumstances of a particular case. No straitjacket formula can be laid down to find out as to whether in a particular case there has been instigation which forced the person to commit suicide. In a particular case, there may not be direct evidence in regard to instigation which may have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn from the circumstances and it is to be determined whether circumstances had been such which in fact had created the situation that a person felt totally frustrated and committed suicide. …

[emphasis is ours]

18. In Amalendu Pal alias Jhantu v. State of West Bengal MANU/SC/1808/2009 : (2010) 1 SCC 707, the Court, after referring to the authorities in Randhir Singh (supra), Kishori Lal v. State of M.P. MANU/SC/7815/2007 : (2007) 10 SCC 797 and Kishangiri Mangalgiri Goswami v. State of Gujarat MANU/SC/0096/2009 : (2009) 4 SCC 52, has held:

12. Thus, this Court has consistently taken the view that before holding an Accused guilty of an offence Under Section 306 Indian Penal Code, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the Accused which led or compelled the person to commit suicide, conviction in terms of Section 306 Indian Penal Code is not sustainable.

19. A two-Judge Bench in Netai Dutta v. State of W.B. MANU/SC/0165/2005 : (2005) 2 SCC 659, while dwelling the concept of abetment Under Section 107 Indian Penal Code especially in the context of suicide note, observed:

6. In the suicide note, except referring to the name of the Appellant at two places, there is no reference of any act or incidence whereby the Appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Nag in committing the act of suicide. There is no case that the Appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag.

7. Apart from the suicide note, there is no allegation made by the complainant that the Appellant herein in any way was harassing his brother, Pranab Kumar Nag. The case registered against the Appellant is without any factual foundation. The contents of the alleged suicide note do not in any way make out the offence against the Appellant. The prosecution initiated against the Appellant would only result in sheer harassment to the Appellant without any fruitful result. In our opinion, the learned Single Judge seriously erred in holding that the first information report against the Appellant disclosed the elements of a cognizable offence. There was absolutely no ground to proceed against the Appellant herein. We find that this is a fit case where the extraordinary power Under Section 482 of the Code of Criminal Procedure is to be invoked. We quash the criminal proceedings initiated against the Appellant and accordingly allow the appeal.

20. At this juncture, I think it appropriate to reproduce two paragraphs from Chitresh Kumar Chopra (supra). They are:

16. Speaking for the three-Judge Bench in Ramesh Kumar case (supra), R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do “an act”. To satisfy the requirement of “instigation”, though it is not necessary that actual words must be used to that effect or what constitutes “instigation” must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the Accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an “instigation” may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.

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19. As observed in Ramesh Kumar (supra), where the Accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an “instigation” may be inferred. In other words, in order to prove that the Accused abetted commission of suicide by a person, it has to be established that:

(i) the Accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and

(ii) that the Accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.

This Court again observed:

20. … The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual’s suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual’s vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self.

21. The offence of “dowry death” was incorporated in the Indian Penal Code and corresponding amendment made in the Evidence Act by way of insertion of Section 113B vide Act No. 43 of 1986. In fact the Dowry Prohibition Act, 1961 being Act No. 28 of 1961 was enacted on 20th May, 1961 with an object to prohibit to giving or taking the dowry. The insertion of Section 304B of the Indian Penal Code and Section 113B in the Evidence Act besides other circumstances was also referable to the 91st Report dated 10th August, 1983 of the Law Commission. In the Statement of Objects and Reasons to Act No. 28 of 1961 it was stated:

The object of this Bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the Government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time enures that any dowry, if given does enure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside Parliament, Hence, the present Bill.

Realising the ever increasing and disturbing proportions of the evil of dowry system, the Act was again amended by Act No. 63 of 1984 taking note of the observations of the Committee on Status of Women in India and with a view to making of thorough and compulsory investigations into cases of dowry deaths and stepping up anti-dowry publicity, the Government referred the whole matter for consideration by a Joint Committee of both the Houses of Parliament. The Committee went into the whole matter in great depth in its proceedings and after noting the observations of Pt. Jawaharlal Nehru, recommended to examine the working of Act No. 28 of 1961 and after considering the comments received on the Report from the State Governments, Union Territories, Administrations and different administrative Ministries of the Union concerned with the matter, decided to modify the original definition of “dowry” with consequential amendment in the Act. Again finding that the Dowry Prohibition Act, 1961 has not been so deterrent, as it was expected to be, the Parliament made amendments in the Act vide Act No. 43 of 1986. In the Statement of Objects and Reasons of the said Act it was stated:

The Dowry Prohibition Act, 1961 was recently amended by the Dowry Prohibition (Amendment) Act 1984 to give effect to certain recommendations of the Joint Committee of the House of Parliament to examine the question of the working of the Dowry Prohibition Act, 1961 and to make the provisions of the Act more stringent and effective. Although the Dowry Prohibition (Amendment) Act, 1984 was an improvement on the existing legislation, opinions have been expressed by representatives from women’s voluntary organisations and others to the effect that the amendments made are still inadequate and the Act needs to be further amended.

2. It is, therefore, proposed to further amend the Dowry Prohibition Act, 1961 to make provisions therein further stringent and effective. The salient features of the Bill are:

(a) The minimum punishment for taking or abetting the taking of dowry under Section 3 of the Act has been raised to five years and a fine of rupees fifteen thousand.

(b) The burden of proving that there was no demand for dowry will be on the person who takes or abets the taking of dowry.

(c) The statement made by the person aggrieved by the offence shall not subject him to prosecution under the Act.

(d) Any advertisement in any newspaper, periodical journal or any other media by any person offering any share in his property or any money in consideration of the marriage of his son or daughter is proposed to be banned and the person giving such advertisement and the printer or publisher of such advertisement will be liable for punishment with imprisonment of six months to five years or with fine up to fifteen thousand rupees.

(e) Offences under the Act are proposed to be made non-bailable.

(f) Provisions has also been made for appointment of Dowry Prohibition Officers by the State Governments for the effective implementation of the Act. The Dowry Prohibition Officers will be assisted by the Advisory Boards consisting of not more than five social welfare workers (out of whom at least two shall be women).

(g) A new offence of “dowry death” is proposed to be included in the Indian Penal Code and the necessary consequential amendments in the CrPC, 1973 and in the Indian Evidence Act, 182 have also been proposed.

3. The Bill seeks to achieve the aforesaid objects.

22. The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within 7 years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with any demand of dowry such death shall be punishable under Section 304B. In order to seek a conviction against a person for the offence of dowry death, the prosecution is obliged to prove that:

(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected to soon before her death.

23. Learned counsel for appellants has submitted that on the basis of above averment, there is no evidence either direct, indirect or circumstantial that the appellants had ever abetted for commission of suicide. The appellant Ashfaq, husband of deceased, was suffering from leprosy and due to this reason, she was not happy with her married life and that was the reason, she regularly visiting the house of her sister and she might have committed suicide but there was no role of the appellants.

24. Considering all relevant facts, this court is of the view that the appellants ought not to be punished under Section 306 IPC and the appeal deserves to be allowed on this part. So far as Section 498-A is concerned, though the complainant had stated that demand was not raised before him but sister of the deceased had narrated that when the deceased returned back and talked to this witness, her sister had communicated the fact of demand and harassment. Thus the court below has rightly convicted the accused appellants under Section 498-A IPC.

25. Learned counsel for appellants has further submitted that one of the co-accused Anita has been given the benefit of probation but without any reason rest of the accused appellants have not been given the same benefit. In the circumstances, when except the statement of PW-2, the sister of the deceased, there is no evidence, the benefit of Probation Act should also be extended to rest of the appellants.

26. In support of the appeal learned Counsel for the appellants submitted that though there are sufficient reasons to challenge the judgment on merits yet they are restricting the challenge to non-consideration of the applicability of provisions contained in Section 4 of the Probation of Offenders Act, 1958 (in short the ‘Probation Act’) and Section 360 of the Code of Criminal Procedure Code, 1973 (in short the ‘Code’).

27. Per contra learned Counsel for the respondent-State submitted that looking at the gravity of the offence, it was not necessary for the High Court to consider the benevolent provisions contained in the Probation Act and/or Section 360 of the Code.

28. Where the provisions of the Probation Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the Probation Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or the provisions of the Probation Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the Probation Act are further noticed in Sub-section (10) of Section 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the Probation Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable.

29. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the Probation Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while Probation Act does make such a provision. While Section 12 of the Probation Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the Probation Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the Probation Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.

30. Every accused person need not be detained, arrested and imprisoned-Liberty is precious and must not be curtailed unless there are good reasons to do so. Similarly, everybody convicted of a heinous offence need not be hanged however shrill the cry “off with his head”-and this cry is now being heard quite frequently. Life is more precious than liberty and must not be taken unless all other options are foreclosed. Just sentencing is as much an aspect of justice as a fair trial and every sentencing judge would do well to ask: Is the sentence being awarded fair and just?

31. In Ved Prakash v. State of Haryana MANU/SC/0256/1980: (1981)1 SCC 447 this Court observed that:

“……It is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitation slant.

A little later in the judgment, it was held that:

“……Even if the Bar does not help, the Bench must fulfil the humanizing mission of sentencing implicit in such enactments as the Probation of Offenders Act.”

32. In other words, this Court was of the view that punishment should be rehabilitative and humanizing and, therefore, need not necessarily be retributive in character.

33. Subsequently, in Hari Singh v. Sukhbir Singh MANU/SC/0183/1988 : (1988) 4 SCC 551 the Court held that extending the benefit of probation to first time offenders is generally not inappropriate. The humanizing principle was extended even to a conviction under Part II of Section 304 of the Indian Penal Code in State of Karnataka v. Muddappa MANU/SC/0973/1999 : (1999) 5 SCC 732 in which case the benefit of release on probation was granted to the convict.

34. The benefit of the provisions of Section 6 of the Probation of Offenders Act (relating to restrictions on the imprisonment of offenders below 21 years of age) was extended to persons convicted of attempted rape. This was in State of Haryana v. Prem Chand (1997) 7 SCC 756 which was followed in State of Himachal Pradesh v. Dharam Pal (2004) 9 SCC 681.

35. Similarly, in Om Prakash v. State of Haryana (2001) 10 SCC 477 the convicts, first time offenders, were given the benefit of Section 360 and Section 361 of the Code of Criminal Procedure and it was held that reasons ought to have been recorded for the denial of such a benefit. The offence in this case was punishable Under Section 323 and Section 325 read with Section 148 and Section 149 of the Indian Penal Code.

36. In Ajahar Ali v. State of West Bengal MANU/SC/1016/2013 : (2013) 10 SCC 31 the Appellant was convicted of an offence of outraging the modesty of a woman punishable Under Section 354 of the Indian Penal Code. This was held to be “a heinous crime and with the social condition prevailing in the society, the modesty of a woman has to be strongly guarded” and so the benefit of the Probation of Offenders Act was not given to him. This may be contrasted with Prem Chand and subsequently Dharam Pal where the convict was guilty of a far more serious offence of attempted rape and yet granted the benefit of the Probation of Offenders Act, notwithstanding the nature of the crime, and only because of his age.

37. These decisions indicate that the philosophical basis of our criminal jurisprudence is undergoing a shift-from punishment being a humanizing mission to punishment being deterrent and retributive. This shift may be necessary in today’s social context (though no opinion is expressed), but given the legislative mandate of Sections 360 and 361 of the Code of Criminal Procedure and the Probation of Offenders Act, what is imperative for the judge is to strike a fine balance between releasing a convict after admonition or on probation or putting such a convict in jail.’ This can be decided only on a case by case basis but the principle of rehabilitation and the humanizing mission must not be forgotten.

38. There are other legislative requirements that need to be kept in mind. The Probation of Offenders Act provides, in Section 5 thereof for payment of compensation to the victim of a crime (as does Section 357 of the Code of Criminal Procedure). Yet, additional changes were brought about in the Code of Criminal Procedure in 2006 providing for a victim compensation scheme and for additional rights to the victim of a crime, including the right to file an appeal against the grant of inadequate compensation. How often have the Courts used these provisions?

39. In Ankush Shivaji Gaikwad v. State of Maharashtra MANU/SC/0461/2013: (2013) 6 SCC 770 and Jitendra Singh v. State of U.P. MANU/SC/0679/2013 : (2013) 11 SCC 193 the Court held that consideration of grant of compensation to the victim of a crime is mandatory, in the following words taken from Ankush Shivaji Gaikwad:

“While the award or refusal of compensation in a particular case may be within the court’s discretion, there exists a mandatory duty on the court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation.”

40. This being the position in law, there is a necessity of giving justice to the victims of a crime and by arriving at a fair balance, awarding a just sentence to the convicts by treating them in a manner that tends to assist in their rehabilitation. The amendments brought about in the Code of Criminal Procedure in 2006 also include a chapter on plea bargaining, which again is intended to assist and enable the Trial Judge to arrive at a mutually satisfactory disposition of a criminal case by actively engaging the victim of a crime. It is the duty of a Trial Judge to utilize all these tools given by Parliament for ensuring a fair and just termination of a criminal case.

41. In State of Karnataka v/s Krishnappa AIR 2000 SC 1470 , a three- Judge Bench, while discussing about the purpose of imposition of adequate sentence, opined that protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence and the sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.

42. In Jameel v. State of Uttar Pradesh (2010) 12 SCC 532 , the trial court had convicted the appellant therein under Section 308 IPC along with another and punished them with two years rigorous imprisonment. In appeal, the conviction and sentence of the appellant were affirmed. By the time the matter came to be considered by Court, the Court observed as under: –

“In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. 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. 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 sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence.”

43. In Shyam Narain v/s State (NCT of Delhi) (2013) 7 SCC 77 , it has been ruled that primarily it is to be borne in mind that sentencing for any offence has a social goal. Sentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realize that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes, for it serves as a deterrent. The Court observed, true it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. It has been further opined that while carrying out this complex exercise, it is obligatory on the part of the court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.

44. In Guru Basavaraj v. State of Karnata a (2012) 8 SCC 734, the Court, discussing about the sentencing policy, had to say this: –

“There can hardly be any cavil that there has to be a proportion between the crime and the punishment. It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored.”

45. In Rattiram v. State of M.P. (2012) 4 SC 516 though in a different context, it has stated that: –

“the criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the viewpoint of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries…. it is the duty of the court to see that the victim’s right is protected.”

46. It is seemly to state here that though the question of sentence is a matter of discretion, vague and unregulated benevolence. It is to be exercised a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life.

47. In Ramji Dayawala Sons (P.) Ltd. v. Invest Import AIR 1981 SC 2085: –

“when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. `Discretion’, said Lord Mansfield in R.v. Wilkes, ((1770) 98 ER 327), `when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular’ (see Craies on Statute Law, 6 th Edn., p.273).”

48. In light of above facts, this court is of the view that once the lower court below has exercised the discretion in favour of one of the accused, rest of the accused appellants should also be treated similarly. Thus the appeal deserves to be allowed on this part. Rest of the accused appellants should also be given benefit of probation under Section 498-A IPC. Accordingly, the appeal is partly allowed. The conviction under Section 306 IPC against the accused-appellants is set aside and they are acquitted from the charges levelled under Section 306 IPC.

49. All the accused appellants are found guilty under Section 498A IPC and up to that extent conviction is confirmed. Sentence is modified and the benefit already given by the trial court to one of the appellant Smt. Anita is also extended to rest of the appellants Ashfaq and Bhoora and they are also directed to be released on probation for a period of two years on furnishing personal bond of Rs. 10,000/- with two sureties each in like amount to the satisfaction of Probation Officer to maintain peace and good conduct.

50. Thus the appeal is decided accordingly. Let a copy of this judgment with lower court record be sent to the court concerned for compliance.

Order Date :- 21.9.2017

prabhat

 

 

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