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Allahabad High Court · body

2015 DIGILAW 3448 (ALL)

HEAM RAJ v. STATE OF U. P.

2015-11-03

OM PRAKASH VII

body2015
Judgment : 1. Present Criminal Appeal is directed by the appellant Heam Raj against the judgment and order dated 16.12.2010 passed by the Additional Sessions Judge/Fast Track Court No. 1, Bareilly in Sessions Trial No. 93 of 2004 (State Vs. Heam Raj) pertaining to crime no. 682 of 2003, Police Station Baheri, district Bareilly whereby the court below has convicted and sentenced the accused appellant for the offence under Section 304-B IPC to undergo 10 years' rigorous imprisonment and for the offence under Section 3 Dowry Prohibition Act to undergo 5 years' rigorous imprisonment and fine of Rs. 15,000/- and for the offence under Section 4 Dowry Prohibition Act one year rigorous imprisonment and fine of Rs. 5,000/-. In default of payment of fine to undergo additional imprisonment was also ordered by the trial court. 2. Prosecution story in nutshell is unfolded in the chik F.I.R. as follows : 3. Written report dated 11.9.2003 (Ext. Ka-1) was moved at police station concerned by the informant Natthu Lal with the prayer that his daughter was married with the accused appellant before one and half year of the date of incident. After few days of the marriage accused started demanding colour T.V., motor cycle and cash as additional dowry from the deceased and also started causing cruelty and harassment in that connection. Deceased (daughter of the informant) had made complaint on several occasions in this respect to the applicant. Informant had also requested on many occasions to the accused appellant that he is unable to fulfil the demand but the accused appellant did not stop causing cruelty and harassment. On 10.9.2003 brother of the accused appellant came at the house of the informant and stated that deceased (daughter of the informant) is ill. On this, informant along with his wife, younger daughter and his brother-in-law (Sala) Nand Lal reached at the in-laws house of the deceased at about 9 P.M. and saw the dead body of the deceased in the court yard of the house. Mother-in-law of the deceased and the villagers were present there. It was also mentioned in the written report that deceased was done to death by the accused appellant by giving her poisonous substance due to non fulfilment of the demand of dowry. 4. On the basis of the written report (Ext.Ka-1) chik F.I.R. (Ext. Ka-3) was registered on 11.9.2003 at 6.40 A.M. G.D. entry was also made. It was also mentioned in the written report that deceased was done to death by the accused appellant by giving her poisonous substance due to non fulfilment of the demand of dowry. 4. On the basis of the written report (Ext.Ka-1) chik F.I.R. (Ext. Ka-3) was registered on 11.9.2003 at 6.40 A.M. G.D. entry was also made. Concerned police reached at the place of occurrence, dead body was taken into custody after preparing the inquest report (Ext.Ka-2) and keeping the dead body in sealed cloth. Police papers Form No. 13 etc. were prepared along with sample seal and dead body was sent for post mortem to district mortuary. 5. Post mortem on the dead body was conducted on 11.9.2003 at 5 P.M. Dead body was brought by Constable 171 Jogendra Singh and Constable 792 Om Pal Singh. 6. Deceased was aged about 19 years and time of death was 1-1/2 day. Deceased was average built. Rigor mortis was present in both upper and lower limb. Decomposition was not found, eyes and mouth was closed, nails and lips cyanided. On external examination no injury was found except one needle mark in right elbow. 7. Cause of death could not be ascertained hence visra was preserved by the Doctor. Post Mortem Report (Ext. Ka-9) was prepared. Visra report (Ext. Ka-12) was also tendered by the prosecution. Ammoniam phosphide was found in the visra as per visra report. 8. The investigating officer after taking over the investigation copies the chik and G.D. in the case diary and visited the place of occurrence and recorded the statement of the informant. After visiting the place of occurrence he has also prepared the site plan Ext. Ka-10 and also recorded the statement of the witnesses. Completing the investigation and fulfilling the formalities charge sheet (Ext. Ka-11) was filed against the accused appellant. 9. Concerned Magistrate took the cognizance in the matter and after fulfilling the formalities, as required, under the Code of Criminal Procedure case was committed to the court of sessions for trial. 10. Accused appellant appeared and charge under Section 304-B IPC and Section 3/4 Dowry Prohibition Act was framed against him. Accused appellant denied and pleaded themselves to be innocent and claimed his trial. 11. 10. Accused appellant appeared and charge under Section 304-B IPC and Section 3/4 Dowry Prohibition Act was framed against him. Accused appellant denied and pleaded themselves to be innocent and claimed his trial. 11. In order to prove the case prosecution examined P.W.-1 Nand Lal, informant (father of the deceased); P.W.-2 Smt. Kalawati (mother of the deceased); P.W.-3 K. P. Singh, (Naib Tehsildar); P.W.-4 D. P. Singh, Sub Inspector; P.W.-5 Dr. K. S. Gupta, who conducted the post mortem; P.W.-6 Nand Lal; P.W.-7 Bhupendra; P.W.-8 Om Prakash Singh, C.O.; P.W.-9 C.P. Uma Shankar Singh. 12. After closer of the prosecution evidence statement of the accused appellant under Section 313 Cr. P.C. was recorded in which accused appellant stated the whole prosecution evidence to be false and specifically pleaded that he was issue less. Therefore, the deceased remained perturbed. He used to do vegetable farming. Some insecticides was kept in the house. By mistake the deceased consumed the same. Appellant has also stated that he never made demand of dowry and did not cause any cruelty or harassment to the deceased nor committed the death of the deceased. 13. Trial court after hearing the parties and going through the record vide impugned judgment and order convicted and sentenced accused appellant as above, hence this appeal. 14. Heard Sri Rajendra Kumar Tripathi, learned counsel for the appellant and Sri Ashwani Kumar Yadav, learned A.G.A. 15. Learned counsel for the appellant waived all the grounds taken in the memo of appeal and assailed the impugned judgment and order only on the ground of quantum of punishment. It was submitted that accused appellant has served out near about 7 years sentence out of maximum sentence of 10 years imposed upon him. Deceased had consumed insecticides due to mistake, therefore, reducing the maximum punishment/imprisonment from 10 years to 7 years accused appellant be enlarged in this matter on the ground of imprisonment already undergone. 16. Learned A.G.A. argued that trial court while imposing the punishment has taken a lenient view, therefore, now at this stage no ground exists to take any further leniency. 17. I have considered the rival submissions and perused the entire record. 18. In the present matter, prosecution was able to establish that deceased died within 7 years of her marriage and death of the deceased is otherwise than under normal circumstances. 17. I have considered the rival submissions and perused the entire record. 18. In the present matter, prosecution was able to establish that deceased died within 7 years of her marriage and death of the deceased is otherwise than under normal circumstances. Analysis report of the visra preserved during the course of post mortem clearly indicates that death of the deceased was the result of some poisonous substance. It is immaterial in the matter whether poisonous substance found in the visra report was inserted through the needle mark found on the body of the deceased in the right hand or through the mouth. It is also established from the prosecution evidence that deceased died in the house of the accused appellant. Prosecution was also able to establish that accused appellant was demanding a motor cycle, colour T.V. and Rs. 5,000/- in cash after the marriage. It is also established that the appellant was not happy with the dowry given in the marriage by the informant thereby he was pressurising/causing cruelty and harassment to the deceased to fulfil/bring the dowry said to have been demanded by the accused appellant. It is also clear from the record that deceased was subjected to cruelty or harassment in connection with the said demand of dowry soon before her death. Thus all the essential ingredients to constitute the offence under Section 304-B IPC and Section 4 Dowry Prohibition Act were established by the prosecution beyond reasonable doubt. Finding recorded by the trial court for the offence under Section 3 Dowry Prohibition Act is not established as the demand is made after the marriage. Trial court has also not framed any charge under Section 498-A IPC but looking to the prayer made by the learned counsel for the appellant at this stage, this Court does not think any necessity to discuss the prosecution evidence on this issue and the court directly proceed to deal with the submission made by the learned counsel for the parties on the point of quantum of punishment. 19. Before discussing the aspect of the present matter about the quantum of punishment, I would refer the law laid down by the Hon'ble Supreme Court. 20. So far as the quantum of punishment is concerned, the Hon'ble Supreme Court in Gurmukh Singh Vs. State of Haryana reported in (2009) 15 SCC 635 and also has made some guidelines on this issue. 21. 20. So far as the quantum of punishment is concerned, the Hon'ble Supreme Court in Gurmukh Singh Vs. State of Haryana reported in (2009) 15 SCC 635 and also has made some guidelines on this issue. 21. Hon'ble the Apex Court in Gurmukh Singh (Supra) in para no. 23 and 24 held as under : "23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: a) Motive or previous enmity; b) Whether the incident had taken place on the spur of the moment; c) The intention/knowledge of the accused while inflicting the blow or injury; d) Whether the death ensued instantaneously or the victim died after several days; e) The gravity, dimension and nature of injury; f) The age and general health condition of the accused; g) Whether the injury was caused without pre-meditation in a sudden fight; h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; i) The criminal background and adverse history of the accused; j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; k) Number of other criminal cases pending against the accused; l) Incident occurred within the family members or close relations; m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused." 22. I have also gone through the law laid down in Sumer Singh Vs. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused." 22. I have also gone through the law laid down in Sumer Singh Vs. Surajbhan Singh and others reported in (2014) 7 SCC 323 . 23. So far as the submission regarding imposition of sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases. 24. Considering the entire facts and circumstances of the case and the guidelines of the Hon'ble Supreme Court when the prosecution has not shown any previous conviction of the accused appellant, he had informed the parents of the deceased then this Court is of the view that if the accused appellant is punished for the offence under Section 304-B IPC for 8 years rigorous imprisonment the purpose for imposing adequate and proportionate sentence to the crime would be sub served and it will conform to the conscience of the society. The punishment proposed to be imposed by this Court would also sub serve the purpose of imposition of adequate sentence to deter the criminals from committing the crime. It will not be taken to give undue sympathy to the appellant as far as the punishment imposed for the offence under Section 4 D. P. Act is concerned since all the sentences are to run concurrently, therefore, there is no need to reduce the punishment imposed upon the appellant for the offence under Section 3/4 Dowry Prohibition Act. 25. Thus on the basis of the discussions made herein above, the appeal having some merit is liable to be partly allowed. Conviction imposed upon the accused appellant Hem Raj for the offence under Section 304-B IPC and Section 4 Dowry Prohibition Act is affirmed but the sentence imposed for the offence under Section 304-B IPC by the trial court is modified and reduced to 8 years rigorous imprisonment in place of 10 years. Sentence imposed for the offence under Section 4 Dowry Prohibition Act is not changed/altered. The additional imprisonment to undergo in default of payment of fine for the offence under Section 4 Dowry Prohibition Act is also not changed. All the sentences of imprisonment imposed upon the appellant shall run concurrently. Sentence imposed for the offence under Section 4 Dowry Prohibition Act is not changed/altered. The additional imprisonment to undergo in default of payment of fine for the offence under Section 4 Dowry Prohibition Act is also not changed. All the sentences of imprisonment imposed upon the appellant shall run concurrently. Accused appellant is acquitted for the offence under Section 3 D. P. Act. 26. Record of the trial court along with copy of this judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.