Partly allowed

Javed v. State of U.P.

Allahabad HC9 May 2019CRLA/4991/2018

Case brief

AI extract

What is this about?

In this criminal appeal challenging conviction and sentence for dowry death and cruelty, the court upheld the conviction. Considering the appellant had already served nearly five years in jail, the court reduced the sentence under section 304-B IPC by two years and adjusted default sentences for fine non-payment.

What did the court decide?

Conviction upheld; sentence under Section 304-B IPC reduced by two years; default sentence for fine non-payment reduced to two months.

Javed Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2019)

¶1

Court No. - 80

¶2

Case : - CRIMINAL APPEAL No. - 4991 of 2018

¶3

Appellant : - Javed Respondent :- State Of U.P. Counsel for Appellant : - Rajeev Kumar Singh Parmar Counsel for Respondent : - G.A.

¶4

Hon'ble Pradeep Kumar Srivastava,J.

¶5

1.Let the Criminal Appeal No.4105 of 2018, (Smt. Anwari Begum W/0 Munna Khan and another Vs. State of U.P.) be delinked to the present case.

¶6

2.At the very outset, the learned counsel for the accusedappellants has submitted that instead of arguing on bail application he will argue on the appeal and he will like to confine his arguments on the quantum of sentence.

¶7

3.Heard Sri Rajeev Kumar Singh Parmar, learned counsel for the accused appellant and Sri Ram Adhar Ram, learned A.G.A.and perused the record.

¶8

Learned counsel for the accused-appellants- Javed has submitted that this criminal appeal has been preferred against the judgment and order dated 10.07.2018 passed by Additional Sessions Judge, Court No.4/Special Judge, E.C.Act, Farrukhabad in S.T. No. 215 of 2014 (State Vs. Javed and others), whereby the learned court below has convicted and sentenced the appellant for 2 years rigorous imprisonment for the offence under section 498A and fine of Rs.5,000/-each, for the offence under section 304-B IPC, for ten years rigorous imprisonment and for the offence under Section ¾ Dowry Prohibition Act, 1 year rigorous imprisonment with fine of Rs.2000 each. Learned counsel for the accused-appellants has submitted that accused-appellants are in jail since 03.07.2014 as such he is almost in jail from last 05 years and, therefore, he has requested that a lenient view may be adopted and sentence of the accused-appellant which he has already passed in jail either may be reduced to undergone or may be reduced.

¶9

Learned counsel for the accused-appellant submits that the accused-appellant has been convicted on the basis of presumption for the offence of dowry death. The deceased died, because of burning in the house of the accused-appellant. It is further submitted that the accused-appellant and his family member and complainant side are simple villagers and their financial status is not such that a demand of Rs.2.00 Lakhs may be raised from the side of the accused-appellant. It is further

¶10

submitted that whole case is based on general allegation of dowry demand. It is further submitted that since accusedappellant was unemployed and a very poor person due to financial constrained the deceased committed suicide.

¶11

Learned AGA has vehemently opposed the prayer and has submitted that the accused appellant has very rightly convicted by the learned trial court on the basis of evidence on record. He has however submitted that if the sentence is slightly reduced, he has no objection.

¶12

In Mohd. Giasuddin Vs. State of AP, AIR 1977 SC 1926 , explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:

¶13

"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 re-culturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."

¶14

In Sham Sunder vs Puran, (1990) 4 SCC 731, where the high court reduced the sentence for the offence under section 304 part I into undergone, the supreme court opined that the sentence needs to be enhanced being inadequate. It was held:

¶15

"The court in fixing the punishment for any particular crime should take into consideration the nature of offence, the circumstances in which it was committed, the degree of deliberation shown by the offender. The measure of punishment should be proportionate to the gravity of offence."

¶16

In State of MP vs Najab Khan, (2013) 9 SCC 509 , the high court, while upholding conviction, reduced the sentence of 3 years by already undergone which was only 15 days. The supreme court restored the sentence awarded by the trial court. Referring the judgments in Jameel vs State of UP (2010) 12

¶17

SCC 532, Guru Basavraj vs State of Karnatak, (2012) 8 SCC 734, the court observed as follows:

¶18

"In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice dispensation system to undermine the public confidence in the efficacy of law. It is the duty of court to award proper sentence having regard to the nature of offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of victim of the crime but also the society at large while considering the imposition of appropriate punishment."

¶19

Earlier, "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 proportionately. 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.

¶20

In subsequent decisions, the supreme court has laid emphasis on proportional sentencing by affirming the doctrine of proportionality. In Shyam Narain vs State (NCT of delhi), (2013) 7 SCC 77 , it was pointed out that sentencing for any offence has a social goal. Sentence is to be imposed with 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 the life of the victim but also a concavity in the social fabric. The purpose of just punishment is that the society may not suffer again by such crime. The principle of proportionality between the crime committed and the penalty imposed are to be kept in mind. The impact on the society as a whole has to be seen. Similar view has been expressed in 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.

¶21

In Kokaiyabai Yadav vs State of Chhattisgarh(2017) 13 SCC 449 , it has been observed that reforming criminals who understand their wrongdoing, are able to comprehend their acts,have grown and nartured into citizens with a desire to live a fruitful life in the outside world, have the capacity of humanising the world.

¶22

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 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.

¶23

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.

¶24

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. It believes that no accused person is incapable of being reformed

¶25

and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.

¶26

In the facts and circumstances of the case, considering the long period of incarceration of accused-appellant in jail, if the sentence under section 304 B IPC is reduced by 2 year against the sentence of 10 years imprisonment, the purpose of justice will adequately be served. Since the other sentences are much less than what has been awarded under section 304-B IPC, the same need not be disturbed as the learned trial court has directed that all the sentences shall run concurrently.

¶27

So far as quantum of fine is concerned, the fine imposed by the learned trial court appears to be adequate under section 498A and section 3/4 D.P.Act and the same is not required to be disturbed. However, the default sentence of 6 months may be reduced to 2 months.

¶28

Accordingly, the conviction is upheld. The sentence is modified to the effect that the awarded sentence under section 304 B IPC is reduced by 2 years against the awarded sentence of 10 years and the default sentence of 6 months under section 498A IPC and section 304 B D.P. Act is reduced to 2 months.

¶29

With the above modification, the appeal is finally disposed of.

¶30

Office is directed to transmit the lower court record along with copy of this judgement to the learned court below for information and necessary compliance as warranted.

¶31

Order Date :- 9.5.2019

¶32

PKC

Javed v. State of U.P.

Case brief

What is this about?

What did the court decide?

Javed v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Zaqir Vs State of U.P.

Ramesh Kumar Maurya Vs State of U.P. through C.B.I., a.C.B., Lucknow

Ajeet Alias Kharku Chauhan Vs State of U.P.

Sarik Vs State of U.P.

Neetu Vs State of U.P.

Suresh Kumar Gupta Vs State of U.P.