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2016 DIGILAW 2176 (ALL)

Dilip Gupta v. State of U. P.

2016-06-09

SHASHI KANT, SURENDRA VIKRAM SINGH RATHORE

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JUDGMENT Surendra Vikram Singh Rathore, J. – Mr. Manish Kumar Singh, learned counsel for the appellant, and Mr. Umesh Chandra, learned AGA for the State, were heard at length. 2. Under challenge in the instant criminal appeal is the judgment dated 05.06.2012 and order dated 06.06.2012 passed by Additional Sessions Judge, Court No.4, Pratapgarh, in Sessions Trial No.515 of 2009 arising out of Case Crime No.342 of 2009, Police Station Jethwara, District Pratapgarh, whereby the present appellant Dilip Gupta (husband) was convicted for the offence under Section 304-B IPC and was sentenced with life imprisonment. However, co-accused Lakshman alias Ram Lakhan Gupta (father-in-law) was sentenced with ten years' imprisonment for the said offence. Appellant Dilip Gupta and accused Lakshman alias Ram Lakhan Gupta were further convicted under Section 498-A IPC and were sentenced with one year's imprisonment and also with fine of Rs.3,000/- each with default stipulation of three months' additional imprisonment. They were further convicted under Section 4 of the Dowry Prohibition Act and were sentenced with one year's imprisonment and also with fine of Rs.1,000/- each. In default of payment of fine amount, they were further directed to undergo three months' additional imprisonment. All the sentences were directed to run concurrently. 3. Because of death of accused Lakshman alias Ram Lakhan Gupta, Criminal Appeal No.1060 of 2012 has been abated by us. 4. It is a case of dowry death. Appellant Dilip Gupta happens to be the husband of the deceased Sheela. 5. In brief, the case of the prosecution was that the complainant Sheetla Prasad lodged a first information report at police station Jethwari on 29.09.2009 at 1215 hours alleging therein that marriage of his daughter Sheela was solemnized with appellant Dilip Gupta on 06.07.2008. After few months of the marriage the members of the family of the appellant started treating her with cruelty but his daughter never said anything to any of the family member. In the last May when the complainant went for 'Vida' of his daughter then she was also beaten by her father-in-law in the presence of the complainant. From July 2009 till the incident, the complainant visited the house of the appellant four times but 'Vida' was declined. These persons were making demand of vehicle and money continuously. On 28.09.2009, two persons came to his house and informed him that his daughter has suffered snake bite. From July 2009 till the incident, the complainant visited the house of the appellant four times but 'Vida' was declined. These persons were making demand of vehicle and money continuously. On 28.09.2009, two persons came to his house and informed him that his daughter has suffered snake bite. The complainant reached the house of the appellant on 29.09.2009 and found that his daughter was hanging inside the room. 6. On the basis of this first information report, the case was registered. The Investigating Officer came to the place of occurrence and inspected the place of incident. Prior to registration of the case Ram Lakhan Gupta, father of the appellant, had given information of this incident on 28.09.2009 at 22.30 hours at the police station on the basis of which the inquest proceedings were conducted on 29.09.2009 at 08.00 a.m. which stood concluded at 09.15 a.m. The postmortem on the body of the deceased was conducted on 29.09.2009 at 04.30 p.m. The duration of death was about one day and following injury was found on the person of the deceased: - Ligature mark 25 cm x 2 cm obliquely placed high in the neck above thyroid cartilage around the neck except (missing) on mastoid region of head. Base of the groove was hard, yellow and parchment like. Subcutaneous tissues under the ligature mark were dry and white. Saliva was coming down from right angle of mouth. Face was pale and neck was stretched. In the opinion of the doctor the cause of death was asphyxia as a result of ante-mortem hanging. The postmortem was conducted by a team of two doctors. The other doctor also agreed with the findings. 7. From the place of incident, the rope with which the deceased was hanging and a handkerchief which was tied on the eyes of the deceased were taken into custody and its memos were prepared. After completing the investigation, charge sheet was filed against the appellant Dilip Gupta and his father Laksham alias Ram Lakhan Gupta (since dead). 8. The defence of the appellant Dilip Gupta was that he is innocent. He was working as electrician in Bombay. He has no place to live in Bombay. His wife Sheela used to live with his parents in village Sukhkaran Ka Purwa and used to insist him to take her to Bombay. 8. The defence of the appellant Dilip Gupta was that he is innocent. He was working as electrician in Bombay. He has no place to live in Bombay. His wife Sheela used to live with his parents in village Sukhkaran Ka Purwa and used to insist him to take her to Bombay. About one month prior to the incident, he had come back to Bombay after promising Sheela that he shall try to make arrangement of a proper place for living and shall call her. Since the place of living could not be managed so the appellant could not call Sheela to Bombay. When this fact was informed by the appellant to Sheela then she committed suicide. 9. In order to prove its case, the prosecution has examined PW-1 Sheetla Prasad, PW-2 Dharamraj-as witnesses of facts, PW-3 Siddha Narain Misra, Naib Tehsildar, who has conducted the inquest proceedings, PW-4 Head Constable Krishna Mohan Pandey, who has prepared the chik report and GD of this case, PW-5 Circle Officer Khaleequzzama, who has investigated this case, PW-6 Dr. Virendra Pratap Singh, who has conducted the postmortem on the body of the deceased, PW-7 SI Jang Bahadur Singh, who had taken into possession the rope and handkerchief. 10. The appellant was given an opportunity to lead evidence in defence. DW-1 Akhilesh Pratap Singh has been examined. He has stated that appellant is a poor person. His father has only four biswas of agricultural land and appellant Dilip Gupta is land less. Ram Lakhan Gupta is a labour while Dilip Gupta carries on the work of washing the vehicles in Bombay. On the date of incident, he was in Bombay and Ram Lakhan Gupta was not present in the village. 11. After appreciating the evidence on record, learned trial court has convicted the appellant, as above, hence, the instant criminal appeal. 12. 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 and he was in Bombay. It is submitted that the deceased has not sustained any other injury except ligature mark. She was found hanging in a room which was bolted from inside. He has also argued that the father of the deceased was also a witness in the inquest and on that day he had not lodged any first information report and subsequently the first information report was lodged. Learned trial court has awarded extreme penalty of imprisonment for life without considering the fact that the deceased has committed suicide after closing the room from inside. Naib Tehsildar, who has conducted the inquest proceedings, has also stated that he got the doors of the room broke open and thereafter the inquest proceedings were conducted. Learned trial court without considering all these mitigating circumstances has awarded extreme penalty of imprisonment for life, which is excessive keeping in view the circumstances. 13. 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 a very short span after her marriage. Learned trial court has rightly convicted the appellant and the judgment needs no interference by this Court. 14. It is a case of dowry death. Before proceeding further, we would like to consider necessary ingredients to constitute the offence of dowry death. 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. With regard to the said claim, we shall advert to the same while considering the evidence led in by the prosecution. 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. In the facts of the instant case, the complainant and PW-2, both, have supported the case of the prosecution and have made specific allegation of demand of dowry and consequential ill treatment. The unnatural death has been proved by the medical evidence. The evidence of the complainant shows that soon before her death the deceased was subjected to cruelty in connection with demand of dowry. Therefore, all the ingredients to constitute the offence of dowry death were duly proved by the prosecution. 16. Law is settled on the point that 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. 17. In the case of M. Narain, deceased died due to hanging and conviction by High Court was maintained. 17. Thus, the offence under Section 304-B IPC against appellant Dilip Gupta was duly proved and the learned trial court has not committed any illegality in convicting the appellant. 18. 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 304-B, 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 304-B, 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 304-B, 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." 19. 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." 20. 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." 20. 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. 21. 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." 22. 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. In the facts of the instant case, it is clear that the deceased died due to hanging and her dead body was found hanging inside a room which was bolted from inside. PW-3 Siddha Narain Misra, Naib Tehsildar, has stated that the doors of the room were broke open and thereafter the dead body was taken down and inquest proceedings were conducted. So, it is an established fact that the deceased committed suicide by hanging. No other injury of any kind was found on the person of the deceased. PW-3 Siddha Narain Misra, Naib Tehsildar, has stated that the doors of the room were broke open and thereafter the dead body was taken down and inquest proceedings were conducted. So, it is an established fact that the deceased committed suicide by hanging. No other injury of any kind was found on the person of the deceased. Section 304-B IPC provides minimum sentence for a period of seven years which may extend to imprisonment for life. Thus, a vast discretion has been given to the courts to impose appropriate sentence. So question of appropriate sentence depends upon the facts and circumstances of each case. 23. 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......... 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." 24. Keeping in view the facts and circumstances of the instant case, in our considered opinion, rigorous imprisonment for a period of eight years would be adequate for the appellant to meet the ends of justice. The sentence inflicted by the learned trial court under Section 4 of the Dowry Prohibition Act also deserves to be confirmed. Sentence of imprisonment inflicted by the learned trial court in default of payment of fine also deserves to be confirmed. 25. Thus, 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 eight years. Conviction of the appellant under Section 498-A, IPC is also confirmed. 25. Thus, 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 eight 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. Both the sentences shall run concurrently. 26. Appellant is in custody. He shall serve out the remaining part of the sentence as modified by this Court. 27. The period of detention already undergone by appellant in the instant case shall be set off in his substantive sentence in accordance with the provisions of Section 428 Cr.P.C. 28. 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.