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2016 DIGILAW 2203 (ALL)

Salauddin @ Buddhu v. State of U. P.

2016-06-15

ALOK KUMAR MUKHERJEE, SUDHIR KUMAR SAXENA

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JUDGMENT Both these appeals arise out of judgment and order dated 01.09.2010 in same case crime number, hence they are being decided together by a common order. 2. Criminal Appeal No. 6389 of 2010 has been filed by Salauddin @ Buddhu, Farjand Ali, Tula @ Tulia and Khushabu Nisha challenging the judgment and order dated 01.09.2010 passed by Additional Sessions Judge, Maharajganj, whereby he has convicted them under Section 4 98-A IPC read with 4 Dowry Prohibition Act and sentenced them with two years' rigorous imprisonment in addition to fine of Rs. 2,000/- & 1,000/- respectively. In default of payment of fine, six months' additional imprisonment has also been ordered. 3. Criminal Appeal No. 7156 of 2010 has been filed by Badarey Alam against the judgment and order dated 01.09.2010, whereby trial court has convicted him under Section 304-B, 498-A IPC read with Section 3/4 of Dowry Prohibition Act and sentenced with life imprisonment under Section 304-B, three years' rigorous imprisonment in addition to fine of Rs. 5,000/- under Section 4 98-A IPC, two years' rigorous imprisonmennt in addition to fine of Rs. 2,000/- under Section 4 of Dowry Prohibition Act. In default of payment of fine, one year additional imprisonment was also awarded. 4. We have heard Sri A.P. Tiwari, learned counsel for the appellants, learned AGA for the State-respondent and perused the record. 5. Briefly stated prosecution case is that Aslam lodged a report on Police Station Shyam Deurawa stating therein that his sister Ruksana was married with Badre Alam four years back. After six months of marriage, Badre Alam started torturing and harassing her for demand of motor-cycle, colour television including cash. His sister had expressed her apprehension before him that she might be killed. On 23.04.2006, he received an information that his sister has been killed by her husband, father-in-law, mother-in-law, brother-in-law and wife of brother-in-law. On his information, case crime no. 590/2006 was registered under Section 4 98-A, 304-B IPC & 3/4 Dowry Prohibition Act. After investigation, charge-sheet was submitted. Accused denied charge and claimed trial. 6. Prosecution examined nine witnesses. Aslam-P.W. 1(informant and brother of the deceased), Rabihun-P.W.2 (mother of the deceased), Nurulen khan-P.W.3 (Maternal uncle of the deceased), Jikrullah-P.W. 4 has stated that all the accused persons were living in the house of Jaffaruddin, where dead body was found. Gowardhan Yadav-P.W.5 (husband of village Pradhan), testified the demand of dowry. 6. Prosecution examined nine witnesses. Aslam-P.W. 1(informant and brother of the deceased), Rabihun-P.W.2 (mother of the deceased), Nurulen khan-P.W.3 (Maternal uncle of the deceased), Jikrullah-P.W. 4 has stated that all the accused persons were living in the house of Jaffaruddin, where dead body was found. Gowardhan Yadav-P.W.5 (husband of village Pradhan), testified the demand of dowry. He has also witnessed recovery of rope. Dr. Ranjit Singh-P.W. 6 has proved the post-mortem report, in which abrasion on left side of the neck was found. Entire head was contused. Head injury has been found to be fatal. Munish Singh-P.W. 7, proved the inquest. Sanjay Kumar, Additional Superintendent of Police-P.W.8 proved the investigation. Constable Narendra Kumar Singh-P.W. 9, proved the G.D. and chik of the FIR. 7. Under Section 313 Cr.P.C., Badarey Alam states that he was living separately from the family. He was selling tea. Sometimes he would sleep there. Nurulen Khan, maternal uncle of the deceased wanted to marry his son with Ruksana, after getting divorce. Ruksana has died because of the pressure created by them. Other accused persons have taken the plea of separate living. Trial Judge convicted appellants and sentenced, as above. 8. After arguing at length, Sri A.P. Tiwari, learned counsel for the appellants confines his submission to the question of sentence. He submits that the date of incident is 23.04.2006. Father-in-law of the deceased is about 80 years old and the mother-in-law is about 70 years old. Other two appellants are brother-in-law and sister-in-law, who had been living separately and have not been found involved in dowry death. 9. He further submits that Badarey Alam has been awarded harsh sentence of rigorous imprisonment for life under Section 304-B IPC, which sentence may be reduced to the minimum keeping in view the fact that he is in jail since 10.05.2006. 10. In support of his submission learned counsel for the appellants has placed reliance upon a decision of Hon'ble Apex Court in the case ofHari Om v. State of Haryana [SCC 2014 10 577]. Paras 21 to 25 of this judgment are being reproduced below : - "21. 10. In support of his submission learned counsel for the appellants has placed reliance upon a decision of Hon'ble Apex Court in the case ofHari Om v. State of Haryana [SCC 2014 10 577]. Paras 21 to 25 of this judgment are being reproduced below : - "21. This issue has been the subject matter of debate before this Court in several cases, which arose out of Section 304-B read with Section 4 98-A and wherein this Court while interpreting the expression "may" occurring in Section 304-B IPC held that it is not mandatory for the Court in every case to award life imprisonment to the accused once he is found guilty of offence under Section 304- B. It was held that the Court could award sentence in exercise of its discretion between seven years to life imprisonment depending upon the facts of each case. It was held that in no case it could be less than seven years and that extreme punishment of life term should be awarded in "rare cases" but not in every case. 22. In the case of Hem Chand v. State of Haryana (1994) 66 SCC 727, the courts below had awarded life term to the accused under Section 304-B read with Section 4 98-A but this Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. This Court held as under : - '7. ...........the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only extend to imprisonment for life. Therefore, awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. 8. Hence, we are of the view that a sentence of 10 years' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B, reduce the sentence of imprisonmeent for life to 10 years' RI ....' 23. Similarly this Court in State of Karnataka v. M.V. Mannjunathegowda and Anr. (2003) 2 SCC 188 , while convicting the accused under Section 304-B awarded 10 years imprisonment in somewhat similar facts. 24. We, accordingly while confirming the conviction of the appellant under Section 304-B, reduce the sentence of imprisonmeent for life to 10 years' RI ....' 23. Similarly this Court in State of Karnataka v. M.V. Mannjunathegowda and Anr. (2003) 2 SCC 188 , while convicting the accused under Section 304-B awarded 10 years imprisonment in somewhat similar facts. 24. G.V. Siddaramesh v. State of Karnataka (2010) 3 SCC 152 , this Court while allowing the appeal filed by the accused only on the question of sentence altered the sentence from life term to 10 years on more or less similar facts. Hon'ble H.L. Dattu, J. (as his Lordship then was) speaking for the Bench held as under : '31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B IPC. However, his sentence of life imprisonment imposed by the courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed.' 25. Applying the principle of law laid down in the aforementioned cases and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that the ends of justice would meet, if we reduce the sentence of the appellant from life imprisonment to that of 10 years. In our view, this case does not fall in the category of a "rare case" as envisaged by this Court so as to award to the appellant the life imprisonment. That apart, we also notice that while awarding life imprisonment, the courts below did not assign any reasons." 11. It is apparent from the statement of Aslam P.W.1 that the marriage of deceased Ruksana was solemnized with appellant Badarey Alam before four years of the incident and after two years, a child was also born from their wedlock. Appellant is a young man selling tea. It is apparent from the statement of Aslam P.W.1 that the marriage of deceased Ruksana was solemnized with appellant Badarey Alam before four years of the incident and after two years, a child was also born from their wedlock. Appellant is a young man selling tea. Submission is that a poor young man living with the responsibility to take care of his minor son, is a factor which was not considered by the trial court. From the perusal of record, we think there are enough mitigating circumstances to reduce his sentence from rigorous imprisonment for life. 12. Considering the fact that appellant is a young poor man, lying in jail for the last ten years, a lenient view can be taken in the light of the ratio laid down in the case of Hari Om (supra). Both the appeals are partly allowed. 13. In Criminal Appeal No. 6389 of 2010, appellants-Salauddin @ Buddhu, Farjand Ali, Tula @ Tulia and Khushabu Nisha are convicted under Section 4 98-A IPC read with Section 4 Dowry Prohibition Act. They are sentenced to period already undergone. Rest of the sentence imposing fine is maintained. 14. In Criminal Appeal No. 7156 of 2010, conviction of appellant-Badarey Alam under section 498-A, 304-B IPC read with Section 4 Dowry Prohibition Act is maintained. Badarey Alam is sentenced to a period of ten years' rigorous imprisonment under Section 304-B IPC . Sentence awarded under Section 4 98-A IPC read with Section 4 Dowry Prohibition Act is maintained. All sentences will run concurrently. Under section 498-A, we impose a fine off Rs. 20,000/-. In default, appellant would further undergo simple imprisonment of two years. 15. Judgment and order dated 01.09.2010 passed by Additional Sessions Judge, Maharajganj, stands modified to the above extent. 16. Ordered accordingly. 17. Record be sent back. Appeal partly allowed.