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2016 DIGILAW 1879 (ALL)

Rakesh Kumar v. State of U. P.

2016-05-13

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

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JUDGMENT Surendra Vikram Singh Rathore, J. – Instant criminal appeal was listed for hearing on bail application but after arguing at some length on the bail application, learned counsel for the appellant Sri R.P. Mishra, submitted that this appeal may be heard and disposed of finally. Learned A.G.A. has also expressed his willingness to argue the appeal. Therefore, we have proceeded to hear this appeal on merits. 2. Sri Rajendra Prasad Mishra, learned counsel for the appellant and Sri Sharad Dixit, learned Additional Government Advocate were heard. 3. Under challenge in the instant criminal appeal is the judgment and order dated 29.08.2014 passed by learned Sessions Judge, Pratapgarh, in Sessions Trial No.785 of 2011, arising out of Case Crime No.123 of 2010, Police Station Sangramgarh, District Pratapgarh, whereby the appellant Rakesh Kumar was convicted for the offence under Section 304-B IPC and was sentenced to undergo imprisonment for life and was further convicted for the offence under Section 4 of Dowry Prohibition Act and was sentenced to undergo rigorous imprisonment for a period of one year and also with fine of Rs. 5000/-, with default stipulation of six months simple imprisonment. 4. Both the sentences were directed to run concurrently. 5. However, the other accused persons namely Chhotey Lal and Smt. Anarkali @ Amrawati who took their trial along with the appellant, were acquitted of the charges levelled against them. 6. In brief of the case of the prosecution was that the complainant Vijay Kumar, father of the deceased lodged an FIR on 13.05.2010 at 18.45 hours at Police Station Sangramgrah, District Pratapgarh alleging therein that the marriage of his daughter namely Pushpa Devi was solemnized with the appellant Rakesh Kumar about one year seven days prior to this incident and as per financial condition of the complainant he had given sufficient dowry in the marriage but after about one month of the marriage the appellant and his family members were making demand of motorcycle in dowry. After coming to her parental house, the daughter of the complainant told that appellant and his family members were demanding motorcycle repeatedly and sometimes they abused her and she was beaten also. In this connection, complainant talked to the appellant and his family members but he persisted his demand of motorcycle. When the complainant showed his incapability to fulfil their demand then he was threatened with dire consequences. In this connection, complainant talked to the appellant and his family members but he persisted his demand of motorcycle. When the complainant showed his incapability to fulfil their demand then he was threatened with dire consequences. On 10.05.2010 on account of death of grand daughter of elder brother of the complainant, the complainant and his family members had gone to attend the funeral and on the same day appellant Rakesh came for 'Vida' of his daughter. Wife of the complainant asked appellant to come tomorrow as there was no male member in the house but appellant did not agree and he took deceased with him same day in the evening at 4.00 p.m. Deceased's father received the message of death of his daughter by hanging on his mobile phone from one Ram Sewak, a resident of village of appellant Rakesh Kumar next day morning at 10.00 a.m. and he immediately rushed to matrimonial home of deceased along with other family members. On reaching there he saw that dead body of his daughter was hanging from plank with the help of a saree. Her legs were rested on a bag of food grain. Marks of injuries were present on the chest, thigh and other parts of her body and looking to her it appeared that she has been killed. 7. On the basis of this information the case was registered and investigation proceeded. After inquest proceedings the dead body of the deceased was sent for postmortem which was conducted on 12.05.2010 at 3: 00 p.m. The duration of the death was about one day old. 8. According to the postmortem report the following injury was noted by the doctor: - (A) Abraded contusion 5 cm x 2 cm on right side of neck just below angle of mandible, extravasation of blood present under the skin surrounding front of neck and upper part of chest. (B) Larynx, trachea and both lungs, pericardiaum, buccal cavity, pharyax, gall bladder, pancreas, spleen, kidneys of deceased were congested. Hyoid bone was fractured. According the opinion of the doctor, the cause of death was asphyxia as a result of ante-mortem strangulation. 9. After completing the investigation the charge-sheet was filed against the appellants. 10. The defence of the appellants was that they are innocent and they have been falsely implicated in this case. There was no demand of dowry and deceased had committed suicide. 9. After completing the investigation the charge-sheet was filed against the appellants. 10. The defence of the appellants was that they are innocent and they have been falsely implicated in this case. There was no demand of dowry and deceased had committed suicide. The acquitted accused persons had taken a plea of separate living. 11. In order to prove its case the prosecution has examined PW-1 Vijay Kumar, (first informant) father of the deceased, PW-2 Shitladeen, elder brother of the deceased, PW-3 Head Constable Chandra Prakash Tiwari, who has prepared the chik report and G.D. of this case, PW-4 C.O. Ram Kripal, the Investigating Officer of this case, PW-5 Dr. Vijendra Shekhar, who has conducted the postmortem on the body of the deceased, PW-6 Rajesh Kumar, a photographer who had taken photograph of the deceased while she was in hanging position, PW-7 Sidh Narain Mishra, Nayab Tehsildar under whose supervision the inquest proceedings were conducted. 12. On behalf of the defence DW-1 Mani Lal and DW-2 Brijendra Kumar were examined on the point that on the date of incident the appellant Rakesh Kumar was not present and it was a case of suicide. 13. After appreciating the evidence on record, the trial court has concluded that the deceased had committed suicide only within one year and seven days after her marriage. There was demand of dowry she was subjected to cruelty in connection with the demand of dowry and accordingly he has convicted the appellants as above, hence the instant appeal. 14. Submission of the learned counsel for the appellant was that he does not intend to challenge his conviction and has restricted his arguments on the point of quantum of sentence only. It is submitted that in such nature of cases the extreme penalty of imprisonment for life ought to be inflicted only in cases of extreme brutality and the present case is not of such nature. It is submitted that the learned trial court in correct in holding that it is a case of hanging but in spite of that he has awarded maximum punishment of imprisonment for life which was disproportionate to the offence committed by the appellant, keeping in view the surrounding circumstances. 15. It is submitted that the learned trial court in correct in holding that it is a case of hanging but in spite of that he has awarded maximum punishment of imprisonment for life which was disproportionate to the offence committed by the appellant, keeping in view the surrounding circumstances. 15. Learned Additional Government Advocate has submitted that the learned trial court has correctly appreciated the evidence of the prosecution and also the evidence of the defence and thereafter has reached the correct conclusion and has convicted the appellant. Therefore, the judgment of the trial court needs no interference but appropriate sentence is the discretion of the Court. 16. Though the conviction of the appellant under Section 304-B IPC and Section 4 of Dowry Prohibition Act has not been challenged, in spite of that we have gone through the evidence on record and we find that the deceased died an unnatural death within one year and seven days of her marriage. There was evidence of the witnesses regarding demand of dowry and consequential ill treatment. She was subjected to cruelty in connection with the demand of dowry. So all the ingredients to constitute the offence of dowry death stands established. The finding of learned trial court that it is a case of hanging also appears to be correct. Admittedly, the prosecution evidence established that her body was found hanging when door was opened in the presence of Naib Tehsildar. It is true that in the postmortem cause of death was asphyxia as a result of strangulation. If the deceased was hanged after causing her death by strangulation than postmortem ligature mark must have been found around the neck. But the only injury noted in the postmortem report was ante-mortem and there was no postmortem injury. So we concur with the view of learned trial court that it was a case of hanging. Law is settled on the point that suicide is also an unnatural death for the purpose of Section 304-B IPC. Reference may be made on this point to the pronouncement of Hon'ble Apex Court in the case of Shanti v. State of Haryana reported in (1991) (1) SCC 371 and also in the case ofM. Narain v. State of Karnataka reported in (2015) 6 SCC 465 . In the case of M. Narain, deceased died due to hanging and conviction by High Court was maintained 17. Narain v. State of Karnataka reported in (2015) 6 SCC 465 . In the case of M. Narain, deceased died due to hanging and conviction by High Court was maintained 17. Appellant has failed to rebut the presumption Under Section 113-B of the Evidence Act which stood attracted against him in view of the proven facts. In this case marriage is admitted, there is evidence regarding demand of dowry and consequential ill treatment. Deceased was subjected to cruelty soon before her death in connection with demand of dowry and she died an unnatural death within one year and seven days only after her marriage. We agree with the view taken by the learned trial court that the prosecution was successful in proving its case beyond reasonable doubt and learned trial court has not committed any illegality in convicting the appellant. Appellant has utterly failed to rebut the said presumption under Section 113 B of the Evidence Act. 18. Now, the only point that remains to be considered is the question of sentence. Learned trial court has observed that the cause of death was hanging and it has come in the evidence of Nayab Tehsildar that after getting the information when they reached the home then door was opened and dead body was found hanging. 19. Learned trial court has awarded the maximum penalty of imprisonment for life for the offence under Section 304-B IPC. The minimum sentence provided under Penal Code for the offence of dowry death is seven years and the same may extend upto life imprisonment. So a vast discretion has been given to the Court to award appropriate sentence. Hence, the appropriate sentence has to be decided on the basis of the facts and circumstances of each case. 20. On the point of sentence, in cases under Section 304-B I.P.C., Hon'ble the Apex Court in the case of Hem Chand v. State of Haryana reported in (1994) 6 SCC 727 , in paragraph 7 of the judgment, 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. 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 has observed in paragraph 30 of the judgment 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. 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 ofHemchand 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." It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. 20A. A reference on this point may also be made to the pronouncement of Hon'ble Apex Court in the case of Sunil Dutt Sharma v. State reported in (2014) 4 SCC 375 wherein Hon'ble the Apex Court has considered the point of sentence in detail and has observed in para 5 as under: - "The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354 (2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for a term of years. In the above situation, naturally, the sentencing power has been a matter of serious academic and judicial debate to discern an objective and rational basis for the exercise of the power and to evolve sound jurisprudential principles governing the exercise thereof." The case of Sunil Dutt Sharma (Supra) was also a case of dowry death. In the above situation, naturally, the sentencing power has been a matter of serious academic and judicial debate to discern an objective and rational basis for the exercise of the power and to evolve sound jurisprudential principles governing the exercise thereof." The case of Sunil Dutt Sharma (Supra) was also a case of dowry death. In that case the cause of death was strangulation and Hon'ble Apex Court was of the view that a sentence of 10 years rigorous imprisonment would be appropriate. In a very recent judgment in the case of V.K. Mishra and another v. State of Uttarakhand reported in (2015) 9 SCC 588 , Hon'ble the Apex Court has again considered the question of sentence in cases of dowry death and has observed in paragraph no. 42 as under: - 42. For the offence Under Section 304-B Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304-B Indian Penal Code thus prescribes statutory minimum of seven years. In Kulwant Singh and Ors. v. State of Punjab (2013) 4 SCC 177 , while dealing with dowry death Sections 304-B and 498-A Indian Penal Code in which death was caused by poisoning within seven years of marriage conviction was affirmed. In the said case, the father-in-law was about eighty years and his legs had been amputated because of severe diabetes and mother-in-law was seventy eight years of age and the Supreme Court held impermissibility of reduction of sentence on the ground of sympathy below the statutory minimum." It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. 21. In view of the above mentioned legal position and also considering the fact that it was a case of hanging and no other mark of injury was found on the body of the deceased, we are of the considered view that 7 years rigorous imprisonment would be sufficient to meet the ends of justice. 22. Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant under Section 304-B IPC and Section 4 of Dowry Prohibition Act is hereby confirmed. 22. Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant under Section 304-B IPC and Section 4 of Dowry Prohibition Act is hereby confirmed. However, sentence of imprisonment for life for the offence under Section 304-B IPC is hereby reduced from imprisonment for life to a period of seven years rigorous imprisonment. Sentence awarded for the offence under Section 4 of Dowry Prohibition Act is hereby confirmed. Appellant Rakesh Kumar is in custody. He shall serve out his sentence as modified by this Court. Both the sentences shall run concurrently. 23. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance. Appeal partly allowed.