Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(All) 1263

IN THE HIGH COURT OF ALLAHABAD
KAUSHAL JAYENDRA THAKER, SAUMITRA DAYAL SINGH, JJ.
Ramroop - Appellant
Versus
State of U.P. - Respondent
JAIL APPEAL No. 4722 of 2015
Decided on : 22-11-2021

Advocates:
Advocate Appeared:
For the Appellant : From Jail, Alka Srivastava,Kailash Prakash Pathak,Kamta Prasad, Suresh Chandra Pandey

Point of Law : Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization.

Headnote:
Indian Penal Code, 1860 - Sections 304 (I) and 506 - Evidence Act, 1872 - Section 34 - Reformative theory of punishment – Murder - Doctrine of proportionality – Punishment for criminal intimidation - Whether 100 per cent burnt person can make a dying declaration or put a thumb impression - Whether offence would be punishable under Section 304 part I or part II of I.P.C.
Findings of the court :
Facts and circumstances of case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, 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 social stream - Reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view 'doctrine of proportionality' - It appears from perusal of impugned judgment that sentence awarded by court for life term is very harsh keeping in view the entirety of facts and circumstances of case and gravity of offence - Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account reformative approach underlying in criminal justice system.
Result: Appeal partly allowed

JUDGMENT :

1. Heard Shri Kamta Prasad, learned counsel for the appellant; Shri Arvind Kumar, learned AGA for State; and perused the record.

2. By way of this appeal, the appellant-Ramroop has challenged the Judgment and order dated 01.04.2015 passed by court of Additional Sessions Judge, Hamirpur in Session Trial No.05 of 2014 arising out of Case Crime No.1444 of 2013 wherein accused was tried for commission of offence under Sections 304 (I) and 506 Indian Penal Code (hereinafter referred to as, 'IPC'), Police Station-Sumerpur, District Hamirpur. The learned Sessions Judge convicted the accused for life imprisonment for commission of offence under Section 304 part I IPC and with fine of Rs.10,000/-. In default of payment of fine, the accused shall undergo rigorous imprisonment for 6 months. He was not convicted under Section 506 IPC.

3. The brief facts as per prosecution case are that written report which is Ex.Ka.1 and which corroborates the dying declaration made on 28.9.2013 reads as follows:-

“That on 28.9.2013 at about 9.00 a.m. when the accused Ramroop, elder son of the deceased and elder son of the person who got the First Information Report registered, was demanding money for buying liquor. The mother refused to give him money for buying liquor. The accused became angry and poured kerosene on her (deceased) and set her (deceased) ablaze. The mother who was engulfed was taken to the hospital immediately after putting a quilt on her body by the complainant and his brother as well as Muhal and when the accused was told he threatened to kill them. That is how the report was given on 5.10.2013 there is a delay of six days but during this period, the dying declaration was recorded on 28.9.2013 of deceased at 2.40 p.m. wherein also she narrated the same facts. The Police investigation had already started. Her post mortem report was done as she died on 29.9.2013 at 3.50 p.m.. The injuries according to the doctors was superficially to deep burn all over the body. The cause of death was due to the burn injures. The prosecution laid the charge sheet against the accused. The dying declaration of the deceased which is Ex.Ka-2 also requires to be looked into wherein she has mentioned that her husband and borther-in-law brought her to the Hospital. She has grievanced against her son and his wife. This dying declaration is dictated on 28.9.2013.

4. The charge sheet was laid before the court of Magistrate and the learned Judge committed the case to the court of session as it was triable by the court of session.

5. The prosecution examined nine witnesses so as to bring home the charge framed against the accused as enumerated:

1. Nanki PW1

2. Ashok Kumar PW2

3. Mahghu PW3

4. Ram Kesh PW4

5. Dr. Manish Kumar PW5

6. Musa Ram Pal PW6

7. Dr. R.K. Katiyar PW7

6. In support of ocular version following documents were produced to bring home the charge:-

7. Learned counsel for the appellant has urged that once the Court came to the conclusion that it was a case of 304 part I, the infliction of incarceration for life requires interference. It is submitted that only interested witnesses have been examined. It is submitted that PW-5 and PW-7 are Doctors. PW-8 and PW-9 are Police Officers and, therefore, the evidence against the appellant is not convincing that he has committed the offence or he had set his mother ablase and in the dying declaration she had named both he and his wife, whereas the discrepancy in the FIR while naming him alone and not his wife.

8. Shri Arvind Kumar, learned AGA has vehemently submitted that punishment for incarceration of life imprisonment under Section 304 part I is just and proper. It is contented that the accused set his own mother ablaze and threatened the complainant with dire consequences which shows his mental status and, therefore, it is requested that this Court may not interfere in the punishment as it is submitted that the burn injuries was caused by the accused as proved by ocular version and the dying