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2016 DIGILAW 2133 (ALL)

Harvinder Singh v. State of U. P.

2016-06-02

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

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JUDGMENT Surendra Vikram Singh Rathore, J. – Mr. Dinesh Kumar Ojha, learned counsel for the appellant, and Mr. Mohd. Yusuf Ansari, learned AGA for the State, were heard at length. 2. Under challenge in the instant criminal appeal is the judgment and order dated 16.05.2012 passed by Additional Sessions Judge, Court No.1, Barabanki, in Sessions Trial No.105 of 2011 arising out of Case Crime No.1277 of 2010, Police Station Ram Sanehi Ghat, District Barabanki, whereby the present appellant Harvinder Singh was convicted and sentenced as under: - (i) U/s 304-B IPC – Imprisonment for life. (ii) U/s 498-A IPC -One year's simple imprisonment along with a fine of Rs. 5,000/- with default stipulation of three months' imprisonment. (iii) U/s 4 of the Dowry Prohibition Act – Six months' imprisonment and fine of Rs. 1,000/- with default stipulation of one month's imprisonment. All the sentences were directed to run concurrently. 3. It is a case of dowry death. Appellant Harvinder Singh happens to be the husband of the deceased namely Anita Singh. 4. According to the case of the prosecution, complainant Sri Prakash Singh informed the police on 13.11.2010 that his sister Anita Singh, who was aged about 22 years, was married with the appellant about three years' prior to her death. Sufficient dowry as per status of the complainant was given. However, the appellant and his family members were not satisfied with the dowry and they were insisting on their demands of motorcycle and a sum of Rs. 50,000/- cash. Whenever Anita Singh came to her parental house, she informed her mother PW-4 Smt. Sita Singh and other relatives including the complainant that she was being treated with cruelty by her husband on account of non-fulfilment of demand of dowry. When these facts came to the notice of the complainant then he gave Rs. 25,000/- to the appellant in the presence of Subhash Singh and Pawan Kumar Singh. In spite of that accused was not satisfied and he continued to treat the deceased with cruelty in connection with demand of dowry. The information of this incident was received by the complainant on 13.11.2010 at about 04.00 PM on phone that her sister has been done to death by setting her ablaze after pouring kerosene oil on her. He went to the village of the appellant with other persons of the village namely Subhash, Pankaj Singh, Munna Singh and others. The information of this incident was received by the complainant on 13.11.2010 at about 04.00 PM on phone that her sister has been done to death by setting her ablaze after pouring kerosene oil on her. He went to the village of the appellant with other persons of the village namely Subhash, Pankaj Singh, Munna Singh and others. When they reached the house of the appellant, they found that the dead body of Anita Singh was lying inside the house and appellant Harvinder Singh was absconding after setting the thatch on fire. On inquiry being made by these persons it revealed that for the last several days the appellant was quarreling with his wife. 5. On the basis of this first information report, the case was registered, investigation proceeded. Naib Tehsildar Sri Devendra Nath Pandey conducted the inquest proceedings and after completing the necessary formalities, the dead body was sent for postmortem. The postmortem on the body of the deceased was conducted on 14.11.2010 at 02.00 PM. The duration of death was about one day. The deceased was of an average built body. The body was in pugilistic appearance. Smell of kerosene oil was present on the body and following ante-mortem burn injuries were noted by a team of two doctors: - Superficial to deep burn present all over the body, except the soles and small area over right side flank where line of redness present. Singing of hair present. Blister containing thick fluid present at places. Both doctors concurred with the findings. As per the opinion of the doctors the cause of death was asphyxia as a result of ante-mortem burn injuries. Soot particles were found present in the larynx and trachea. 6. After completing the investigation, charge sheet was filed against the appellant. 7. The defence of the appellant was of total denial. He has admitted that his wife had died because of burn injuries. He was not present at the house. No dowry was demanded by him nor he used to treat her with cruelty. He has been falsely implicated. 8. In order to prove its case, the prosecution has examined PW-1 Sri Prakash Singh – the complainant and brother of the deceased, PW-2 Pankaj Singh – cousin of the deceased, PW- 3 Smt. Renu, who is wife of PW-2 Pankaj Singh, PW-4 Smt. Sita Singh – mother of the deceased. He has been falsely implicated. 8. In order to prove its case, the prosecution has examined PW-1 Sri Prakash Singh – the complainant and brother of the deceased, PW-2 Pankaj Singh – cousin of the deceased, PW- 3 Smt. Renu, who is wife of PW-2 Pankaj Singh, PW-4 Smt. Sita Singh – mother of the deceased. These witnesses have been examined on the point of facts regarding the marriage, demand of dowry and consequential ill treatment by the appellant. PW-5 is Dr. Mridul Kumar Pandey, who has conducted the postmortem on the body of the deceased. PW- 6 Devendra Nath Pandey is a formal witness who has conducted the Panchayatnama. PW-7 Dr. Anil Kumar Pandey, Deputy Superintendent of Police is the Investigating Officer of this case. PW-8 is Constable Veerpal Singh, who has proved the chik report and GD of this case. 9. In defence, DW-1 Babloo Singh has been examined, who has stated that he had seen the smoke coming out of the house of appellant Harvinder Singh. When he reached at the house of the appellant then he found that the door was closed and he, after jumping through the small wall, went inside the house and found that the wife of Harvinder Singh was lying in half burnt condition. DW-2 Ram Kailash has also given similar statement but he has stated that at that time deceased was dead. 10. After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant criminal appeal. 11. Submission of learned counsel for the appellant was that he does not intend to challenge the conviction of the appellant and the only submission raised on behalf of the appellant was that the learned trial court has inflicted maximum penalty of imprisonment for life which, in the facts and circumstances of the case, ought not to have been inflicted when there was defence evidence to the effect that the appellant was not present at the place of occurrence. 12. Learned AGA for the State has argued that all the ingredients to constitute the offence under Section 304-B IPC were in existence. The deceased died an unnatural death within seven years' of her marriage and there is reliable evidence of four witnesses on the point of demand of dowry and consequential ill treatment. 13. 12. Learned AGA for the State has argued that all the ingredients to constitute the offence under Section 304-B IPC were in existence. The deceased died an unnatural death within seven years' of her marriage and there is reliable evidence of four witnesses on the point of demand of dowry and consequential ill treatment. 13. Though the finding of fact has not been challenged but in spite of that being the Court of first appeal we have gone through the entire evidence. It is an admitted fact that the deceased was the wife of the appellant. The period of marriage is also an admitted fact. It is also admitted that the deceased died due to burn injuries in the house of the appellant. The appellant's case is that his wife has committed suicide while the case of the prosecution was that she was done to death by the appellant. Law is settled on the point that even suicide is an unnatural death for the purpose of offence under Section 304-B IPC. On this point reference may be made 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 of M. 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. 14. In order to constitute an offence of dowry death what are the necessary ingredients this aspect has been discussed by Hon'ble the Apex Court in the case of Mustafa Shahadal Shaikh v. State of Maharashtra reported in (2012) 11 SCC 397 wherein Hon'ble the Apex Court has held in paragraph no. 11 as under: - "11. To attract the provisions of Section 304-B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. In fact, learned counsel appearing for the appellant submitted that there is no proximity for the alleged demand of dowry and harassment. The expression "soon before her death" used in Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. In fact, learned counsel appearing for the appellant submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to the same while considering the evidence led in by the prosecution. Though the language used "soon before her death", no definite period has been enacted and the expression "soon before her death" has not been defined in both the enactments. Accordingly, the determination of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. These principles have been reiterated in Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda v. State of Madhya Pradesh, (2004) 3 SCC 98 ." 15. Keeping in view the necessary ingredients to constitute the offence of dowry death and after examining the prosecution evidence, we are of the considered view that all the ingredients to constitute the offence of dowry death were in existence therefore learned trial court has not committed any illegality in convicting the appellant. 16. Now the only point that remains to be considered is the appropriate sentence. Before proceeding further we would like to consider the law on the point of sentence to be inflicted in cases under Section 304-B IPC. 16. Now the only point that remains to be considered is the appropriate sentence. Before proceeding further we would like to consider the law on the point of sentence to be inflicted in cases under Section 304-B IPC. 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. 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." 17. 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. 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. Nowhere, 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." 18. 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. 19. 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. 19. 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." 20. Keeping in view the aforementioned legal position, we are of the considered view that in the instant case, extreme penalty of imprisonment for life was not called for. Hon'ble the Apex Court in the case where the death was caused by strangulation has awarded sentence of ten years rigorous imprisonment. So appropriate sentence depends on the facts and circumstances of each case. Therefore, in our opinion, sentence of ten years rigorous imprisonment would be adequate for appellant Harvinder Singh who happens to be husband of the deceased. 21. Before parting with the judgment we would also like to observe that learned trial court has also awarded sentence for the offence under Section 498-A IPC but the offence under Section 498-A IPC is included in the offence under Section 304-B IPC. So there was no need to pass separate sentence under Section 498-A IPC. It has been so held by Hon'ble the Apex Court in the case of Smt. Shanti and another v. State of Haryana reported in (1991) 1 SCC 371 . Last lines of paragraph 5 reads as under: - "5......... So there was no need to pass separate sentence under Section 498-A IPC. It has been so held by Hon'ble the Apex Court in the case of Smt. Shanti and another v. State of Haryana reported in (1991) 1 SCC 371 . Last lines of paragraph 5 reads as under: - "5......... But from the point of view of practise and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B." 22. The sentence inflicted by the learned trial court under Section 4 of the Dowry Prohibition Act also deserves to be confirmed. 23. Accordingly, this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant under Section 304-B IPC is confirmed. However, the sentence of imprisonment for life is substituted with rigorous imprisonment for a period of ten years. Conviction of the appellant under Section 498-A IPC is also confirmed. However, no separate sentence is being passed for this offence. Conviction and sentence inflicted by trial court under Section 4 of the Dowry Prohibition Act is also hereby confirmed. 24. Appellant is in custody. He shall serve out the remaining part of his sentence as modified by this Court. 25. The period of detention already undergone by appellants in the instant case shall be set off in his substantive sentence in accordance with the provisions of Section 428 Cr.P.C. 26. Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record. Appeal partly allowed.