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2016 DIGILAW 1709 (ALL)

Amrish Kumar Kashyap v. State of U. P.

2016-05-04

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Per Surendra Vikram Singh Rathore, J. 1. Mr. Atul Verma, learned counsel for the appellants and Sri M.Y. Ansari, learned Additional Government Advocate were heard at length. 2. These appeals were listed for hearing on bail application. Since the paper book has already been prepared and the learned counsel for the appellants expressed his willingness to argue the appeal finally, therefore, we proceeded to hear these appeals on merits. 3. Since both these appeals i.e. (Criminal Appeal No.303 of 2016-Amrish Kumar Kashyap V. The State of U.P.) and (Criminal Appeal No.316 of 2016-Kailash Chandra Kashyap and another V The State of U.P.) arise out of a common judgment, therefore, the same are being disposed of together. 4. Criminal Appeal No.303 of 2016 has been preferred by the appellant-Amrish Kumar Kashyap and Criminal Appeal No.316 of 2016 has been preferred by the appellants Kailash Chandra Kashyap and Smt. Ram Rati challenging the judgment and order dated 29.02.2016 passed by learned Additional Sessions Judge, Court No.1, Lucknow, in Sessions Trial No.955 of 2008, arising out of Case Crime No.603 of 2007, Police Station Thakurganj, District Lucknow, whereby the appellant Amrish Kumar Kashyap was convicted for the offence under Section 304-B IPC and sentenced with imprisonment for life and he was further convicted for the offence under Section 323 IPC and was sentenced with rigorous imprisonment for a period of six months and also with fine of Rs.1000/- with default stipulation of 15 days additional imprisonment. 5. Appellants Kailash Chandra Kashyap and Smt. Ram Rati were acquitted of the charges under Sections 304-B and 323 IPC. 6. All the appellants were convicted for the offence under Section 4 of Dowry Prohibition Act and were sentenced with rigorous imprisonment for a period of two years and also with fine of Rs.5000/- with default stipulation of one month additional imprisonment and also for the offence under Section 4 98-A IPC and were sentenced with rigorous imprisonment for a period of two years each and also with fine of Rs.5000/- each with default stipulation of one month's rigorous imprisonment. 7. All the accused persons were acquitted of the alternative charge under Section 302 IPC. 8. All the sentences were directed to run concurrently. 9. 7. All the accused persons were acquitted of the alternative charge under Section 302 IPC. 8. All the sentences were directed to run concurrently. 9. In brief, the case of the prosecution was that the complainant Brijesh Kumar Kashyap lodged an FIR at Police Station Thakurganj, District Lucknow on 31.12.2007 at 12: 30 hours alleging therein that his sister Shakun Kashyap was married with the appellant Amrish Kumar Kashyap on 07.07.2007. On 31.12.2007 at about 4.00 a.m. she has been set at fire by the appellant. Sufficient dowry was given in the marriage but after the marriage the appellant and other family members started the demand of motorcycle and Rs.50,000/- cash and to pressurize the said demand she was treated with cruelty. Twice she was turned out of her matrimonial home. About 15 days prior to the incident she was badly beaten in connection with the demand of dowry and was sent back but a compromise took place between the two families and after the said compromise she was sent to her matrimonial home about 10 days prior to the incident. At that time, she was having pregnancy of about four months. On 31.12.2007 at about 4.00 a.m. she was set ablaze after pouring kerosene oil on her. An information of this incident was given by a person living in the neighbourhood. Thereafter, immediately the complainant and his family members rushed to the house of the appellants where they reached at about 6.00 a.m. and admitted the victim in the medical college. 10. On the basis of this FIR, the case was registered under Sections 498-A and 307 IPC. During treatment the deceased died on 07.01.2008 and an information of her death was given by the complainant at the police station thereafter the case was converted under Section 304-B IPC. Prior to it on the information of S.A. Ashok Kumar of Medical College, Lucknow, the inquest proceedings on the body of the deceased were conducted and after completing the necessary formalities the dead body was sent for postmortem. The postmortem on the body of the deceased was conducted on 07.01.2008 at 4.30 p.m. She died on 07.01.2008 at about 5: 00 a.m. Superficial to deep septic burn wounds were present all over the body except back of neck front and back of perennial region both soals, granulation of tissues was present in burn wound. The postmortem on the body of the deceased was conducted on 07.01.2008 at 4.30 p.m. She died on 07.01.2008 at about 5: 00 a.m. Superficial to deep septic burn wounds were present all over the body except back of neck front and back of perennial region both soals, granulation of tissues was present in burn wound. On cutting in both lungs, liver, kidney spleen, multiple foci was present. In the opinion of the doctor, the cause of death was septicemia as a result of ante-mortem burn injuries. 11. From the place of occurrence, the burnt piece of blouse 5 liters empty can of kerosene oil was recovered and taken into custody. The deceased told about this incident to his brother. Thereafter her statement was recorded by the doctor and her statement was also recorded by the Nayab Tehsildar which has been proved as her dying declaration. 12. After completing the investigation the charge-sheet was filed against the accused appellants. 13. The defence of the appellants was that the deceased has herself committed suicide and false case under influence of complainant side has been lodged against them. 14. In order to prove its case the prosecution has examined PW-1 Brijesh Kumar Kashyap, the complainant of this case, PW-2 Smt. Munakki Devi, mother of the deceased, PW-3 Mahesh friend of Brijesh Kumar Kashyap, the complainant, PW-4 C.O. Chiranjeev Nath Sinha, the subsequent Investigating Officer of this case who has taken up investigation from 08.01.2008, PW-5 Constable Lal Chandra Bharti, who has proved the chik report and G.D. of this case, PW-6 Dr. A. Bhargava, who has conducted the postmortem on the body of the deceased, PW-7 Devendra Nath Singh, Sub Inspector, the initial Investigating Officer of this case while the case was under Section 307 IPC and PW-8 Umesh Narain, Additional ADM who has proved the dying declaration of the deceased. 15. No evidence in defence was adduced on behalf of the appellants. 16. After appreciating the evidence on record, the trial court has convicted the appellants as above, hence these instant appeals. 17. Submission of the learned counsel for the appellants was that the husband of the deceased has been convicted under Section 304-B IPC on the basis of the evidence of the family members of the complainant. Three dying declarations of the deceased were so contradictory that none of them can be taken to be wholly reliable. 18. 17. Submission of the learned counsel for the appellants was that the husband of the deceased has been convicted under Section 304-B IPC on the basis of the evidence of the family members of the complainant. Three dying declarations of the deceased were so contradictory that none of them can be taken to be wholly reliable. 18. Learned Additional Government Advocate has submitted that the judgment of learned trial court was absolutely valid and no interference is required by this Court. 19. Learned trial court has rightly acquitted the appellants for the alternative charge under Section 302 IPC. In the oral dying declaration which has been proved by the complainant it was alleged that all the accused persons, because of non-fulfillment of dowry, have set her ablaze. In her dying declaration she has stated that in the preceding night some quarrel had taken place with her husband. He has said that T.V. was not good, dressing table was not good for which he used to torture her. In the night her husband slept with her and in the morning he poured kerosene oil on her and set her ablaze. So in the statement which was given to the Magistrate there was no allegation of any torture or ill treatment was made against any other family member neither any allegation of demand of dowry was made against the husband. The only allegation was that the husband appellant Amrish Kumar Kashyap was not satisfied with the quality of some items given in the dowry. Her statement was also recorded by the doctor which was taken down on her bed head ticket wherein she has stated that on 31.12.2007 at about 5.30 a.m. because of the imputation of being characterless she has set herself ablaze and after catching fire she was immediately taken to CMSU, Lucknow, and her clothes were changed. Witness Mahesh Prasad has also stated that the deceased told him that all the members of her in-laws family used to treat with cruelty in connection with the demand of dowry. Thus all the dying declarations of the deceased were so contradictory that it would not be safe to place implicit reliance on any of them. Such different dying declaration gives rise to the interfere that each time she was tutored and she gave her statement as she was tutored. Thus all the dying declarations of the deceased were so contradictory that it would not be safe to place implicit reliance on any of them. Such different dying declaration gives rise to the interfere that each time she was tutored and she gave her statement as she was tutored. Here it is pertinent to mention that if we rely on the dying declaration recorded by the Additional City Magistrate (Exhibit Ka-14) then there was no allegation of demand of dowry and consequential ill treatment. So on the basis of the said dying declaration the accused cannot be convicted for the offence under Section 304-B IPC so the learned trial court has rightly acquitted the accused persons for the offence under Section 302 IPC. Once this dying declaration goes out of consideration then there comes the second dying declaration recorded by doctor in her bed head ticket wherein the deceased has stated that she has committed suicide as she was treated with cruelty in connection with the demand of dowry and allegation of being characterless by her husband. 20. Law is settled on the point that suicide is also an unnatural death. Reference on this point may be made to the pronouncement of Hon'ble Apex Court in the case of Smt. Shanti and Another V. State of Haryana reported in AIR (1991) SC 1226. 21. Allegation of demand of dowry stands substantiated by the oral evidence of the witnesses of fact. Thus the conviction of the appellant Amrish Kumar Kashyap for the offence under Section 304-B IPC was justified as the victim died within few months after her marriage and appellant has utterly failed to discharge the burden which cause on him by virtue of Section 113 B of the Evidence Act. So far as the other two appellants are concerned, there was no allegation against them regarding demand of dowry or consequential ill treatment in any of the two written dying declaration. In this background, they deserve to be extended benefit of doubt. Learned trial court has also not convicted them for the offence under Section 304-B IPC and their acquittal under Section 304-B IPC has also not been challenged by the State. 22. Now we come to the question of sentence. In this background, they deserve to be extended benefit of doubt. Learned trial court has also not convicted them for the offence under Section 304-B IPC and their acquittal under Section 304-B IPC has also not been challenged by the State. 22. Now we come to the question of sentence. Since the dying declarations in this case have been held to be not wholly reliable, therefore, the accused persons are being convicted on the basis of presumption under Section 113-B Evidence Act only. 23. On the point of sentence we would like to refer some of the pronouncement of Hon'ble Apex Court. In the case of Hem Chand v. State of Haryana reported in (1994) 6 SCC 727 , in paragraph 7 of the judgment Hon'ble Apex Court has held as under: - "Now coming to the question of sentence, it can be seen that Section 304B I.P.C. lays down that: "Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304B I.P.C. would show that when a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113B of the Evidence Act as to the dowry death. Likewise there is a presumption under Section 113B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied." Hon'ble the Apex Court in the case of G.V. Siddaramesh v. State of Karnataka reported in (2010) 3 SCC 152 . In this case, on the point of sentence, in paragraph 30 of the judgment has held as under: - "On the point of sentence, learned Counsel for the appellant pointed out that the appellant is in jail for more than six years. The appellant was young at the time of incident and therefore, the sentence awarded by the trial court and confirmed by the High Court may be modified. In so far as sentencing under the section is concerned, a three Judge Bench of this Court in the case of Hemchand v. State of Haryana [ (1994) 6 SCC 727 ] has observed that: " Section 304B merely raises a presumption of dowry death and lays down that the minimum sentence should be 7 years, but it may extend to imprisonment for life. Therefore, awarding the extreme punishment of imprisonment for life should be used in rare cases and not in every case." Keeping in view the facts and circumstances of the case, this Court reduced the sentence from life imprisonment awarded by the High Court to 10 years R.I on the above principle." Before parting with the judgment we would like to mention that no separate sentence need to be passed for the offence under Section 4 98-A IPC where the accused is convicted for the offence under Section 304-B IPC because the offence under Section 4 98-A IPC is included in the offence under Section 304-B IPC. 24. 24. Thus keeping in view the aforementioned legal position, we are of the considered view that the sentence of 10 years rigorous imprisonment would meet the ends of justice so far as appellant Amrish Kumar Kashyap, husband of the deceased is concerned. 25. In view of the discussion made above, the other two appellants namely Kailash Chandra Kashyap and Smt. Ram Rati are entitled for benefit of doubt. 26. Accordingly the Criminal Appeal No.303 of 2016 preferred by appellant Amrish Kumar Kashyap deserves to be partly allowed and is hereby partly allowed. Conviction of appellant under Section 304-B IPC is hereby confirmed. However, sentence of imprisonment for life is hereby reduced to rigorous imprisonment for a period of 10 years. Conviction under Section 4 98-A is confirmed. Conviction and sentence for offence under Section 323 IPC and Section 4 of Dowry Prohibition Act is also hereby confirmed. Appellant Amrish Kumar Kashyap is in custody. He shall serve out his sentence as modified by this Court. 27. Criminal Appeal No.316 of 2016 preferred by the appellants Kailash Chandra Kashyap and Smt. Ram Rati deserves to be allowed and is hereby allowed. Both these appellants namely Kailash Chandra Kashyap and Smt. Ram Rati are acquitted of the charges levelled against them. They are on bail. They need not to surrender. 28. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.