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2014 DIGILAW 1895 (RAJ)

Deen Mohammad v. State of Rajasthan

2014-11-25

KANWALJIT SINGH AHLUWALIA, R.S.CHAUHAN

body2014
ORDER By this common judgment we will decide Cr. Appeal No. 13 of 2005, preferred by Deen Mohammad - husband of Kurshida, deceased and Criminal Appeal No. 1024 of 2004, preferred by Bhure Khan, father-in-law, and Aas Mohammad, elder brother of Deen Mohammad (jeth of the deceased). Shri Kapil Gupta, counsel appearing for the appellants, has submitted that during pendency of the appeals, Bhure Khan had died and an application for taking death certificate of Bhure Khan on record, was filed. The Cr. Appeal No. 13 of 2005 preferred by Deen Mohammad, and the Cr. Appeal No. 1024 of 2004 preferred by Bhure Khan and Aas Mohammad, are directed against the judgment dated 14.9.2004 rendered by Addl. District Judge (Fast Track) No.1, Alwar, whereby the learned Trial Court held appellant Deen Mohammad alias Murli guilty of offence under Section 304-B and 498-A IPC. The learned Trial Court had convicted Bhure Khan and Aas Mohammad for offence under Section 498A IPC as these appellants were charged for only this offence. Another co-accused Chand Mal son of Rolya alias Ismail, was declared as proclaimed offender. Having convicted the appellants for the said offences, the learned Trial Court vide a separate order of even date, sentenced appellant Deen Mohammad alias Murli under Section 304-B to life imprisonment and pay a fine of Rs. 5000/- in default thereof, to undergo rigorous imprisonment for one year. All the three appellants Deen Mohammad alisa Murli, Bhure Khan, and Aas Mohammad for offence under Section 498A IPC, were sentenced to three years' rigorous imprisonment and pay a fine of Rs. 1000/- each and in default thereof, to undergo rigorous imprisonment for three months. Shri Kapil Gupta has not assailed the conviction of the appellants but has prayed that since there was no justification for the Trial Court to award maximum sentence prescribed under Section 304-B IPC, we should consider reduction of the sentence taking into account law propounded by Hon'ble Apex Court in Sunil Dutt Sharma vs. State (Government of NCT of Delhi), (2014) 4 SCC 375 and Hari Om vs. State of Haryana and Another, Cr. Appeal No. 1167 of 2011 decided on 31.10.2014. Counsel for the appellant has contended that it is not rarest of rare case where maximum sentence prescribed under Section 304-B IPC should have been awarded by the learned Trial Court upon Deen Mohammad, husband of deceased Kurshida. Appeal No. 1167 of 2011 decided on 31.10.2014. Counsel for the appellant has contended that it is not rarest of rare case where maximum sentence prescribed under Section 304-B IPC should have been awarded by the learned Trial Court upon Deen Mohammad, husband of deceased Kurshida. In consonance of the limited submissions advanced, we shall note facts of the case briefly. Ahmed Khan, PW.9, father of Kurshida, had lodged a written report Exhibit-P.6 on basis of which formal FIR Exhibit-P.7 was registered. Ahmed Khan appearing as PW.9 before the court stated that his daughter Kurshida was married with the appellant Deen Mohammad on 8.5.2002. At the time of marriage, they had given dowry beyond their capacity. They had given a bed (palang), utensils, Suzuki motorcycle, and ten thousand rupees as cash. It is stated that the accused being unsatisfied with the dowry given at the time of marriage, harassed, humiliated, maltreated deceased Kurshida. It is not denied by Shri Gupta that within seven years of marriage deceased Kurshida had died unnatural death in her matrimonial home. We need not burden our judgment by repeating deposition of the family members of the deceased, who had testified that the present appellants had subjected the deceased to cruelty. Dr. Phool Singh Choudhary, PW.2, on 2.9.2003 had conducted autopsy on the dead body of Kurshida. He had found a ligature mark on the neck of the deceased. As per opinion of the Medical Board, cause of death was asphyxia cum vagal shock due to ante-mortem ligature, which was sufficient in the ordinary course of nature to cause death. It is to be noted that in case of hanging also there can be presence of ligature mark. No categorical opinion has been given by the Medical Board, whether in the present case the deceased had died from hanging or strangulation. Hanging presupposes suicide and strangulation, culpable homicide amounting to murder. It would have been better had the Medical Board given a categorical opinion whether in this case death of the deceased was due to hanging or strangulation. Since no such opinion has been given, we cannot assume that death of Kurshida was due to strangulation. However, as a matter of caution, the Medical Board had also sent the viscera for chemical examination. Since no such opinion has been given, we cannot assume that death of Kurshida was due to strangulation. However, as a matter of caution, the Medical Board had also sent the viscera for chemical examination. Be that as it may, since the death in the present case was due to unnatural circumstances within seven years of her marriage in the matrimonial home because soon before the death the husband and his relations had subjected the deceased to cruelty by raising demand of dowry, we are convinced that finding given by the learned Trial Court for convicting appellant Deen Mohammad for offence under Section 304-B IPC calls for no interference. We affirm the conviction of the appellant Deen Mohammad for offence under Section 304-B IPC. Having affirmed the conviction of the appellants, we have been called upon to answer whether sentence of life imprisonment awarded by the learned Trial Court, in the facts and circumstances, is adequate and justified? Counsel for the appellants had relied upon case of Sunil Dutt Sharma (supra) wherein Their Lordships referring to case law, had culled out the principles which till now had been applied for awarding death as sentence and thereafter had observed that application of same principles while determining sentence in the case of dowry death also make better sense. In a very erudite judgment by culling out the principles laid in Jagmohan Singh vs. State of U.P. (1973) 1 SCC 20 and Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 , it was held that since sentencing is an onerous exercise to be undertaken by the court, court should take note of aggravating and in mitigating circumstances. Their lordships in case of Sunil Dutt Sharma (supra) had also taken note of principles laid in a recent pronouncement by Hon'ble Apex Court in Sangeet and Another vs. State of Haryana, (2013) 2 SCC 452 . It was held that evolution of principles of sentencing policy are to be distinguished from judge centric to fair amount of certainty. It will be appropriate for us to extensively quote from the judgment rendered by Apex Court in Sunil Dutt Sharma's case (supra):- “10. Are we to understand that the quest and search for a sound jurisprudential basis for imposing a particular sentence on an offender is destined to remain elusive and the sentencing parameters in this country are bound to remain judge centric? Are we to understand that the quest and search for a sound jurisprudential basis for imposing a particular sentence on an offender is destined to remain elusive and the sentencing parameters in this country are bound to remain judge centric? The issue though predominantly dealt with in the context of cases involving the death penalty has tremendous significance to the Criminal Jurisprudence of the country inasmuch as in addition to the numerous offences under various special laws in force, hundreds of offences are enumerated in the Penal Code, punishment for which could extend from a single day to 10 years or even for life, a situation made possible by the use of the seemingly same expressions in different provisions of the Penal Code as noticed in the opening part of this order. 11. As noticed, the “net value” of the huge number of in depth exercises performed since Jagmohan Singh (supra) has been effectively and systematically culled out in Sangeet and Sankar Kisanrao Khade (supra). The identified principles could provide a sound objective basis for sentencing thereby minimizing individualized and judge centric perspectives. Such principles bear a fair amount of affinity to the principles applied in foreign jurisdictions, a resume of which is available in the decision of this Court in State of Punjab vs. Prem Sagar and Others, (2008) 7 SCC 550 . The difference is not in the identity of the principles; it lies in the realm of application thereof to individual situations. While in India application of the principles is left to the judge hearing the case, in certain foreign jurisdictions such principles are formulated under the authority of the statute and are applied on principles of categorization of offences which approach, however, has been found by the Constitution Bench in Bachan Singh (supra) to be inappropriate to our system. The principles being clearly evolved and securely entrenched, perhaps, the answer lies in consistency in approach. 12. To revert to the main stream of the case, we see no reason as to why the principles of sentencing evolved by this Court over the years through largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, we are reminded of the age old infallible logic that what is good to one situation would hold to be equally good to another like situation. Beside paragraph 163 (underlined portion) of Bachan Singh (supra), reproduced earlier, bears testimony to the above fact. 13. Would the above principles apply to sentencing of an accused found guilty of the offence under Section 304-B inasmuch as the said offence is held to be proved against the accused on basis of a legal presumption? This is the next question that has to be dealt with. So long there is credible evidence of cruelty occasioned by demand(s) for dowry, any unnatural death of a woman within seven years of her marriage makes the husband or a relative of the husband of such woman liable for the offence of “dowry death” under Section 304-B though there may not be any direct involvement of the husband or such relative with the death in question. In a situation where commission of an offence is held to be proved by means of a legal presumption the circumstances surrounding the crime to determine the presence of aggravating circumstances (crime test) may not be readily forthcoming unlike a case where there is evidence of overt criminal acts establishing the direct involvement of the accused with the crime to enable the Court to come to specific conclusions with regard to the barbarous or depraved nature of the crime committed. The necessity to combat the menace of demand for dowry or to prevent atrocities on women and like social evils as well as the necessity to maintain the purity of social conscience cannot be determinative of the quantum of sentence inasmuch as the said parameters would be common to all offences under Section 304-B of the Penal Code. The above, therefore, cannot be elevated to the status of acceptable jurisprudential principles to act as a rational basis for awarding varying degrees of punishment on a case to case basis. The search for principles to satisfy the crime test in an offence under Section 304-B of the Penal Code must, therefore, lie elsewhere. The above, therefore, cannot be elevated to the status of acceptable jurisprudential principles to act as a rational basis for awarding varying degrees of punishment on a case to case basis. The search for principles to satisfy the crime test in an offence under Section 304-B of the Penal Code must, therefore, lie elsewhere. Perhaps, the time spent between marriage and the death of the woman; the attitude and conduct of the accused towards the victim before her death; the extent to which the demand for dowry was persisted with and the manner and circumstances of commission of the cruelty would be a surer basis for determination of the crime test. Coupled with the above, the fact whether the accused was also charged with the offence under Section 302 of the Penal Code and the basis of his acquittal of the said charge would be another very relevant circumstance. As against this the extenuating/mitigating circumstances which would determine the “criminal test” must be allowed to have a full play. The aforesaid two sets of circumstances being mutually irreconcilable cannot be arranged in the form of a balance sheet as observed in Sangeet (supra) but it is the cumulative effect of the two sets of different circumstances that has to be kept in mind while rendering the sentencing decision. This, according to us, would be the correct approach while dealing with the question of sentence so far as the offence under Section 304-B of the Penal Code is concerned.” In Hari Om's (supra), the Hon'ble Apex Court considering question of sentence for offence under Section 304-B IPC, took note of case law on this question, and after considering various judgments of Hon'ble Apex Court, held as under:- “22. In the case of Hem Chand vs. State of Haryana, (1994) 6 SCC 727 , the courts below had awarded life term to the accused under Section 304-B read with Section 498-A but this Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. This Court held as under: “7. The accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. This was also a case where the accused was a police officer who had suffered life imprisonment. This Court held as under: “7. The accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. 8. Hence, we are of the view that a sentence of 10 years' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' RI. ...” 23. xxxxxxxxxxxx 24. xxxxxxxxxxxx 25. Applying the principle of law laid down in the aforementioned cases and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that the ends of justice would meet, if we reduce the sentence of the appellant from life imprisonment to that of 10 years. In our view, this case does not fall in the category of a “rare case” as envisaged by this Court so as to award to the appellant the life imprisonment. That apart, we also notice that while awarding life imprisonment, the courts below did not assign any reasons.” Having noted the principles of law governing sentencing, Their Lordships held that since in the case of Sunil Dutt Sharma (supra) death was due to strangulation and two injuries were present being laceration on the forehead and scalp, it was appropriate to award sentence of ten years to the appellant in that case under Section 304-B of the IPC as same shall serve ends of justice. Borrowing the dictum of law laid in Sunil Dutt Sharma's case (supra) and Hari Om's case (supra), while upholding conviction of the appellant Deen Mohammad under Section 304-B IPC, we set aside sentence of life imprisonment awarded upon him, and reduce the same to ten years' R.I. However, we maintain the sentence of fine and the default clause. Borrowing the dictum of law laid in Sunil Dutt Sharma's case (supra) and Hari Om's case (supra), while upholding conviction of the appellant Deen Mohammad under Section 304-B IPC, we set aside sentence of life imprisonment awarded upon him, and reduce the same to ten years' R.I. However, we maintain the sentence of fine and the default clause. Having reduced the sentence of the appellant Deen Mohammad for offence under Section 304-B IPC from life imprisonment to ten years' rigorous imprisonment, now it is time for us to consider sentence awarded upon father-in-law Bhure Khan, and elder brother of the husband, Aas Mohammad (jeth). They have been awarded maximum sentence of three years for offence under Section 498-A IPC, the learned Trial Court had given no reason as to why maximum sentence of three years ought to have been awarded upon these two appellants. What were the aggravating circumstances to award maximum sentence, the learned Trial Court has not given any reasoning. In the present case occurrence had taken place in year 2003, and the appellants had already suffered pain and agony of protracted trial for eleven years. We are told that Bhure Khan has already died, and Aas Mohammad, at the time of his arrest as per the arrest memo, Exhibit-P.23, was aged 30 years. Now the appellant Aas Mohammad is aged about 42-43 years. In the mid of his life all responsibilities of his family are on his shoulders. We are told that he is the sole bread earner of the family, and in case he is sent behind the bars, it will cause extreme hardship to his family. Offences where maximum sentence prescribed is three years, the approach of the court should be to reform the offender and not to send the family of the offender to the vagaries. Consequently, we are of the view that an opportunity ought to be given to both the appellants Bhure Khan and Aas Mohammad to follow the path of rectitude. We, therefore, order that both the appellants should be released on probation under Section 4 of the Probation of Offenders Act for a period of one year. We assess the cost of litigation as Rs. Ten thousand. Both the appellants shall deposit the cost of litigation, which shall be disbursed as compensation to the family of the deceased. We, therefore, order that both the appellants should be released on probation under Section 4 of the Probation of Offenders Act for a period of one year. We assess the cost of litigation as Rs. Ten thousand. Both the appellants shall deposit the cost of litigation, which shall be disbursed as compensation to the family of the deceased. They shall also execute requisite bonds to the satisfaction of learned Trial Court. Since hearing of the appeal had matured after ten years, we had no intention to adjourn the same to verify the factum of death of appellant Bhure Khan. Consequently, we leave the question regarding the death of appellant Bhure Khan open for an enquiry by the learned Trial Court. In case the learned Trial Court after holding an enquiry comes to conclusion that Bhure Khan has expired during the trial, the appeal having abated, proceedings against him shall stand dropped.