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2017 DIGILAW 1225 (ALL)

JATA SHANKAR v. STATE OF U. P.

2017-05-09

RAJUL BHARGAVA, TARUN AGARWALA

body2017
JUDGMENT : Rajul Bhargava, J. 1. Heard Sri Tripathi B.G. Bhai, learned counsel for the appellants and Sri Ali Murtaza, learned AGA for the State- respondents. 2. The appellants Garib and Smt. Gujrati in Criminal Appeal No. 172 of 2006 died during the pendency of the appeal and their appeal stood abated vide orders dated 27.3.2015 and 14.2.2017 respectively, therefore, only the appeal no. 542 of 2009 of the appellant Jata Shankar is being considered by us. 3. The instant criminal appeal has been filed by applicant-appellant against the judgement and order dated 23.12.2005 passed by Additional District and Sessions Judge/Fast Track Court no. 1, Siddharth Nagar in S.T. No. 101 of 2005 (State vs. Jata Shankar and others) arising out of Case Crime No. 327 of 2004, under section 498A, 304B IPC and 3/4 Dowry Prohibition Act, P.S. Sohratgarh, District Siddharth Nagar and two others convicting and sentencing u/s 304B IPC for life imprisonment, for offence u/s 498A IPC one year imprisonment and u/s 3/4 D.P.Act one year imprisonment and fine of Rs. 1000/- upon each appellant and in default of payment of fine, to further undergo two months imprisonment. 4. The prosecution case in brief as unfolded in the first information report lodged by PW-3 Mantoo on 12.7.2004 at 3.30 pm. is that he had married his daughter to accused appellant Jata Shankar about one year back. Sufficient dowry as agreed upon was given by him to the appellant, thereafter the appellant made a demand of motorcycle from the deceased and informant when the informant could not arrange the same, his daughter was killed by setting her on fire on 10.7.2004 at some unknown time. The said first information report was registered vide Case Crime No. 327 of 2004, under section 498A, 304B IPC and 3/4 Dowry Prohibition Act, P.S. Sohratgarh, District Siddharth Nagar. After the registration of the case, investigation was taken up and after thorough investigation the appellant and co-accused Garib and Smt. Gujrati were chargesheeted u/s 498A, 304B IPC and 3/4 Dowry Prohibition Act. After committal the appellant along with other co-accused was put to trial and after conclusion of trial the said appellants were convicted for the charge as noted above. The judgement is under challenge in the present appeal. 5. After committal the appellant along with other co-accused was put to trial and after conclusion of trial the said appellants were convicted for the charge as noted above. The judgement is under challenge in the present appeal. 5. It is pertinent to mention here that an application was moved by the appellant u/s 7A of the Juvenile Justice (Care and Protection) Act, 2000 for declaring him juvenile in conflict with law. He has fairly submitted that he does not want to press plea of juvenility of the appellant, thus the application moved on his behalf is dismissed as withdrawn. 6. Learned counsel for the appellant advanced many arguments doubting credibility of prosecution witnesses examined during trial, however after some arguments he fairly conceded that he is not challenging the conviction as recorded by the court below but questioning the quantum of sentence only. 7. According to him, the appellant was a young boy aged about 18 years at the time of alleged incident, which took place in the year 2004. We find that the age of the appellant recorded in his statement u/s 313 Cr.P.C. is 19 years after about one year of the incident. He is in jail since the date of conviction i.e. 23.12.2005. He had also remained incarcerated for few months during trial. According to him, taking note of the various factors including the young age of the appellant at the time of incident he has already undergone about 12 years of incarceration, the sentence of life imprisonment is too excessive. He pointed out that the factum of young the age of the appellant, the facts and circumstances of the case were placed before the trial court at the time of hearing on the point of quantum of sentence but were not considered by the trial court while awarding punishment and without assigning any cogent reason for awarding maximum possible punishment for offence u/s 304B IPC which in the facts and circumstances of the case should be mitigated. 8. Learned AGA has fairly submitted that the Court is free to impose appropriate sentence in terms of section 304 B IPC. 9. 8. Learned AGA has fairly submitted that the Court is free to impose appropriate sentence in terms of section 304 B IPC. 9. In view of the limited submission on the quantum of punishment we do not propose to go into the finding regarding conviction u/s 498A, 304B IPC and 3/4 Dowry Prohibition Act, only question is to be considered whether the sentence of imprisonment for life is reasonable or excessive in the facts and circumstances of the case. 10. Now we have to consider the law on the point of sentence to be inflicted under Section 304-B I.P.C. It can be noted 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." 11. 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. 12. 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. 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." 13. 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. 14. 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, interalia, 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." 15. 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. 16. In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 Hon'ble Supreme Court had held: "The obligation to hear the accused on the question of sentence which is imposed by section 235(2) of the Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction." 17. In the present case after the verdict of conviction the accused-appellant had, at the time of hearing on point of quantum of sentence, placed all relevant factors which should have been considered, understood and appreciated for determining the appropriate amount of sentence. But the trial Court after mentioning a few of them in order, had not considered the gravity of the nature of the offence. Accordingly without assigning any special reason the learned Additional Sessions Judge had awarded maximum possible punishment. Thus the trial Court, in the instant case, complied with the form and letter of the obligation which Section 235(2) imposes, forgetting the spirit and substance of that obligation. 18. We may record that there is no justification for the trial Court while convicting accusedappellant for offence under Section 304-B IPC to sentence him to life imprisonment without assigning adequate reasons. Only because Section 304-B IPC provides the life imprisonment as the maximum sentence, does not mean that Court should mechanically proceed to impose the maximum sentence. There should be some justification for awarding the maximum sentence which should be well thought out after consideration of all aspects of the case, circumstances, position of victim and accused. 19. The trial court has also awarded sentence for the offence under Section 498-A I.P.C. and ¾ Dowry Prohibition Act but the offence under Section 498-A I.P.C. is included in the offence under Section 304-B I.P.C. So there was no need to pass separate sentence under Section 498-A I.P.C. 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 . 20. Now the matter is limited to the sentence for the offence under Section 304-B IPC and we have to consider about appropriate sentences for the appellant in this case. 20. Now the matter is limited to the sentence for the offence under Section 304-B IPC and we have to consider about appropriate sentences for the appellant in this case. For it, aggravating circumstance relating to crime while mitigating circumstance relating to the criminal has to be examined. From the evidence on record, it is clear that the deceased, who was a young lady died after about one year of marriage at the matrimonial home on account of ill treatment and demand of dowry by all the accused. The applicant-appellant being the husband of the deceased had his moral obligation and responsibility to protect his wife from any ill treatment being meted out by him or other family members. So far as mitigating circumstances are concerned, taking note of various factors including young appellant being about 18 years at the time of incident which cannot be treated as a very matured person, it is his first guilt and is languishing in jail for the past about 12 years. Besides it, no ante-mortem injuries except superficial to deep burn injury was noted in the post-mortem report. No organic smell of any inflammable liquid was also found present on the person of deceased. 21. While we see no reason to differ with the findings recorded by the trial court regarding charged offence, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the above mentioned aggravating and mitigating attending circumstances, the age of the accused and the fact that he has already been in jail for a considerable period, the Court should take a lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attending circumstances, we are of the considered view that end of justice would be met, if the punishment awarded to the appellant is reduced. So, it appears appropriate that in the present case the sentence should not exceed more than 12 years rigorous imprisonment. 22. In view of the above facts and discussion, the order of conviction u/s 304B IPC imposed on the appellant is hereby confirmed. But the sentence of imprisonment for life is modified to rigorous imprisonment of 12 years. So, it appears appropriate that in the present case the sentence should not exceed more than 12 years rigorous imprisonment. 22. In view of the above facts and discussion, the order of conviction u/s 304B IPC imposed on the appellant is hereby confirmed. But the sentence of imprisonment for life is modified to rigorous imprisonment of 12 years. However, the sentence and fine imposed by the trial court u/s 3/4 D.P. Act will remain the same and in default of payment of fine he shall further undergo two months imprisonment as directed by the trial court. 23.With this modification of sentence, the appeal stands disposed of. 24. Let a copy of this judgement be sent to Session Judge, Siddharth Nagar for ensuring compliance.