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2015 DIGILAW 1222 (GUJ)

Niraj Devnarayan Shukla v. State of Gujarat

2015-12-01

K.S.JHAVERI, R.P.DHOLARIA

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JUDGMENT : K.S. Jhaveri, J. 1. This Criminal Appeal is preferred against judgment and order dated 4.8.2009 passed by learned Additional Sessions Judge, Court No. 13, Ahmedabad City, in Sessions Case No. 350 of 2007. By the said judgment, all the three accused were convicted for the offence punishable under Sections 304 (B) (2), 306, 323 and 498 (A) of the Indian Penal Code (For short "IPC") and also under Section 4 of the Dowry Prohibition Act. Accused No. 1 was held guilty for offence under Section 304 (B) (2) and sentenced to undergo rigorous imprisonment for a period of fourteen years and for offence under Section 306 of IPC, he was ordered to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 10,000/- and, in default of payment of fine, simple imprisonment of two years was awarded. For offence under Section 4 of the Dowry Prohibition Act, accused No. 1 was held guilty and sentenced to suffer one year's rigorous imprisonment and to pay fine of Rs. 5,000/- and in default of payment of fine, further imprisonment of six months was awarded. So far as accused Nos. 2 and 3 are concerned, they were held guilty for offence punishable under Section 304 (B) (2) of IPC and sentenced to suffer ten years' imprisonment, out of which they were to suffer the first three years' imprisonment as rigorous imprisonment and the rest of the period was ordered to be suffered as simple imprisonment. For offence under Section 306 of IPC, accused Nos. 2 and 3 were ordered to undergo simple imprisonment for a period of seven years and to pay fine of Rs. 5,000/- and, in default of payment of fine, simple imprisonment of one year was awarded. For offence under Section 4 of the Dowry Prohibition Act, accused Nos. 2 and 3 were held guilty and sentenced to suffer one year's simple imprisonment and to pay fine of Rs. 5,000/- and in default of payment of fine, further simple imprisonment of three months was awarded. All the sentences were to run concurrently. No separate sentence was awarded for offence punishable under Section 323 and 498 (A) of IPC. 2. 2 and 3 were held guilty and sentenced to suffer one year's simple imprisonment and to pay fine of Rs. 5,000/- and in default of payment of fine, further simple imprisonment of three months was awarded. All the sentences were to run concurrently. No separate sentence was awarded for offence punishable under Section 323 and 498 (A) of IPC. 2. As all these appeals are arising out of the same judgment and since they are arising out of the same incident and the evidence is common in all these appeals, the same are taken up for hearing together. Though accused No. 1 is absconding in view of decision of the Larger Bench, this appeal is taken up for hearing on merits. 3. The case of the prosecution is that Deepaben d/o the first informant Chandrashekhar Sukhram got married with accused No. 1 as per the customs and rites on 13.12.2006 and since then she was staying at her matrimonial home along with accused persons. It is the case of the prosecution that the accused persons were taunting her by saying that her parents are beggars and they have not given anything in marriage. Regarding the household matters, they used to criticize her and thereby were causing mental and physical harassment to her. It is also alleged that, by way of dowry, demand of Splendor motor cycle, an amount of Rs. 2 Lacs for purchasing a shop and house repair was made by the accused persons. The accused were pressurizing the deceased to bring the dowry. As a result of it, on 3.5.2007 at about 10 a.m., Deepaben committed suicide by setting herself ablaze. Accused No. 2 took her to the hospital, where the treatment was given and at about 12.30 p.m. she was declared dead by the doctor. On these facts, a complaint was filed with the police by the first informant Chandrashekhar Sukhram and FIR was registered for the offences punishable under Sections 306, 304 (B), 498-A, 323, 114 of IPC and Sections 3 and 7 of the Dowry Prohibition Act and for offence under Section 31 of the Domestic Violence Act, 2005. 3.1 On complaint being filed, investigation was carried out and charge sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused persons. 3.1 On complaint being filed, investigation was carried out and charge sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same committed to Sessions Court. Thereafter, charge was framed against the accused persons. The accused persons pleaded not guilty and claimed to be tried. 3.2 During the trial, the prosecution had examined following witnesses:-- Sr. No. Name Exh. 1. Dr. Bhairavi Balvaant Pandey 15 2. Jignesh Prahladbhai Patel-Panch 24 3. Dipesh Chandrashekhar Bajpai-brother of the victim 26 4. Sarlaben Naransing Tomar-neighbour of the accused 27 5. Chandrashekhar Sukhar Bajpai-father of the victim 28 6. Mukeshbhai Dhruvram Tivari-brother-in-law of the victim 30 7. Rannadevi Chandrashekhar Bajpai-mother of the victim 34 8. Jayesh Chandrashekhar Bajpai-Brother of the victim 35 9. Abbaskhan Ahemadkhan-IO 36 10. Jasvantsinh Bhikhubha Jadeja-IO 40 3.3 The prosecution has also produced and relied upon following documentary evidence:-- Sr. No. Description Exh. 1. PM report 16 2. Note regarding dispatching muddamal to FSL. 17 3. Receipt of muddamal being received by FSL. 18 4. Forwarding letter of FSL. 19 5. Report of FSL. 20 6. Forwarding letter of FSL. 21 7. Panchnama of the place of the offence. 25 8. Original complaint. 29 9. Inquest panchnama 31 10. Yadi written by PSI for registration of offence. 37 11. Yadi written by PI, Bapunagar Police Station to FSL. 38 12. Analysis report of FSL 39 13. Janvajog entry of the information given at Shardaben Hospital. 41 14. Written submissions made by the accused along with the further statement. 42 15. List of the documentary evidence submission by the accused in support of written submissions. 43 3.4 At the end of trial, the Court below recorded further statements of accused persons under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court. 4. Mr. K.B. Anandjiwala, learned advocate appearing for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that at the time of the incident, accused No.1 was not present and there was no proximate reason for the deceased to commit suicide. 4. Mr. K.B. Anandjiwala, learned advocate appearing for the appellants-original accused has taken us through the evidence and submitted that the prosecution has miserably failed to prove its case against the appellants. He submitted that at the time of the incident, accused No.1 was not present and there was no proximate reason for the deceased to commit suicide. He also submitted that so far as allegations as regards the demand of Splendor Motor Cycle is concerned, accused No.1 was already having Yamaha motorcycle. So far as demand of Rs.2 Lacs for purchasing shop and repairing of the house is concerned, he submitted that accused are having a shop in their name and there was no necessity for them to demand the amount, as aforesaid, for purchasing the shop. He also submitted that the prosecution has failed to prove any nexus or immediate reason for commission of the offence. He also submitted that one Sarlaben Naransinh Tomar, neighbour of the accused, who was examined by the prosecution, has stated that nothing untoward had happened on that day and she had never heard any quarrel taking place in the house of the accused. However, this witness was treated as hostile witness. He further submitted that most of the witnesses examined by the prosecution are the relatives of the deceased and they have deposed whatever is narrated to them by the deceased. He also submitted that these witnesses were not eye-witness to the incident. He submitted that so far as evidence of brother of the deceased, Dipesh Bajpai, Exh. 26, PW-3, is concerned, he has stated about the demand of money by the accused and the mental and physical torture to the deceased. However, on 30.4.2007, when another brother of the deceased, viz., Jayesh went to the residence of the deceased, she told that the accused No. 1 is having illicit relation with a sindhi girl and when she asked her to stop it, the accused started beating her. He, therefore, submitted that this seems to be a got up story and no investigation is made in this regard and first informant is silent about this aspect. In view of all these, he submitted that the prosecution has failed to prove its case beyond reasonable doubt against all the accused persons, therefore, he prays to allow to this Criminal Appeal by reversing the impugned judgment. Alternatively, Mr. In view of all these, he submitted that the prosecution has failed to prove its case beyond reasonable doubt against all the accused persons, therefore, he prays to allow to this Criminal Appeal by reversing the impugned judgment. Alternatively, Mr. Anandjiwala has submitted that if this Court do not find any substance in this case, at least looking to the advance age of parents of accused No. 1 i.e. accused Nos. 2 and 3, they may be acquitted of the charges levelled against them. He also submitted that accused Nos. 2 and 3 were residing on the ground floor while accused No. 1 was residing with the deceased on the first floor and considering this fact also, accused Nos. 2 and 3 may be acquitted of the charges levelled against them. He further submitted that accused No. 2 had tried to save the deceased and she was taken to the hospital by accused No. 2, therefore also, this appeal qua accused Nos. 2 and 3 may be allowed. 5. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the appellants-accused persons is just and proper and she has supported the conviction recorded by impugned judgment. Learned APP has contended that taking into consideration the medical evidence, evidence of the complainant and other family members, the view taken by the trial Court is just and proper and no interference is called for. She submitted that since the deceased has committed suicide within a short span of six months of marriage life, adverse inference is rightly drawn against the accused persons by the trial Court. She also submitted that the prosecution has proved that the accused were guilty of causing physical and mental harassment to the deceased. She also submitted that aspect of demand of dowry is also proved by the prosecution. Therefore, she submitted that the trial Court has rightly convicted the accused persons and this Court may not interfere with the impugned judgment and order. 6. We have heard Mr. K.B. Anandjiwala, learned advocate for the appellants and Ms. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. From the evidence of Dr. Bhairavi Balvant Pandey, it is clear that the deceased died unnatural death as she had received 100% burn injuries. We have heard Mr. K.B. Anandjiwala, learned advocate for the appellants and Ms. C.M. Shah, learned APP for the State. We have also gone through the evidence on record. We have also perused the medical evidence. From the evidence of Dr. Bhairavi Balvant Pandey, it is clear that the deceased died unnatural death as she had received 100% burn injuries. Through the evidence of Chandrashekhar Bajpai, Jayesh and Dipesh Chandrashekhar Bajpai, brothers of the deceased, Rannadevi, mother of the deceased and Mukesh, brother-in-law of the deceased, the prosecution has proved its case that the accused persons were guilty of causing physical and mental harassment to the deceased and they were demanding dowry. We do not agree with the submission of Mr. Anandjiwala that the demand of Splendor Motor Cycle and Rs.2 Lacs cash for purchasing shop and repairing of the house is false, as the prosecution has proved these allegations by the evidence of the witnesses. So far as demand is concerned, it can be seen that demand of Splendor motor cycle can be said to have been made for the use by accused No. 1. The evidence of Sarlaben Naransinh Tomar, neighbour of the accused, relied upon by Mr. Anandjiwala is rightly not believed by the trial Court as she turned hostile. All the prosecution witnesses have deposed that there was constant demand of dowry on the part of the accused persons and they were mentally and physically harassing the deceased. Not only that the incident in question took place within the six months of the marriage life, therefore, presumption under Section 113 of the Evidence Act is rightly drawn against the accused by the trial Court. It has also come in evidence that on 14.4.2007, the victim asked her father to fulfill the demand of the accused persons as she could not bear the torture being meted out to her by the accused persons. It has also come in evidence that on 28.4.2007 also the victim informed her brother that the accused persons are harassing her with regard to the demand of dowry. Therefore, it is clear that the prosecution has proved its case beyond reasonable doubt against the accused. However, the fact remains that accused Nos. 2 and 3 were residing on the ground floor while accused No. 1 was residing with the deceased on the first floor. Therefore, it is clear that the prosecution has proved its case beyond reasonable doubt against the accused. However, the fact remains that accused Nos. 2 and 3 were residing on the ground floor while accused No. 1 was residing with the deceased on the first floor. Not only that accused No. 2 had tried to save the deceased and she was taken to the hospital by accused No. 2. Therefore, considering these facts and looking to the advance age of accused Nos. 2 and 3, we deem it proper to acquit accused Nos. 2 and 3 of the charges levelled against them. Therefore, we are of the opinion that the trial Court has not committed any error in convicting the accused No.1 for the offence punishable under Section 304B (2), 306, 323 and 498 (A) of IPC as well as under Section 4 of the Dowry Prohibition Act. Though we find that accused No.1 is rightly convicted by the trial Court, in our view, the sentence imposed upon him is on higher side and it is required to be reduced. In Gopal Singh v. State of Uttarakhand reported in 2013 7 SCC 545 , while focusing on the gravity of the crime and the concept of proportionality as regards the punishment, the Court had observed as under:-- "Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self-adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." 7. In view of this decision, it is clear that the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect-propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream are the guiding factors for imposing punishment. Therefore, considering all these aspects, we find that the sentence imposed upon accused No.1 is on higher side and it is required to be reduced appropriately. Accordingly, this Criminal Appeal is required to be allowed to the aforesaid extent. 8. For the foregoing reasons, this appeal is partly allowed. The impugned judgment and order dated 4.8.2009 passed by learned Additional Sessions Judge, Court No. 13, Ahmedabad City, in Sessions Case No.350 of 2007 is modified and the sentence imposed on accused No. 1 for the offence punishable under Section 304 (B) (2) of IPC by the impugned judgment is reduced from 14 years' rigorous imprisonment to ten years' rigorous imprisonment. The sentence imposed on accused No. 1 for the offence punishable under Section 306 of IPC by the impugned judgment is reduced from 10 years' rigorous imprisonment to seven years' rigorous imprisonment. Remaining part of the impugned judgment shall remain unaltered so far as accused No. 1 is concerned. 9. Accused Nos. 2 and 3 are acquitted of all the charges levelled against them and the impugned judgment and order dated 4.8.2009 passed by learned Additional Sessions Judge, Court No. 13, Ahmedabad City, in Sessions Case No. 350 of 2007 is quashed and set aside so far as conviction of these accused is concerned. 10. Bail bond, if any, of the accused stands cancelled. Record and Proceedings, if lying here, be sent back to the concerned trial Court forthwith.