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2019 DIGILAW 337 (ALL)

Rakesh Kumar Gupta v. State Of U. P.

2019-02-08

VIRENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : VIRENDRA KUMAR SRIVASTAVA, J. 1. This criminal appeal has been filed by the appellants against the judgment and order dated 22.1.2004 passed by Additional Session Judge/Fast Track Court No.4, District Varanasi in S.T No.108 of 2003, State Vs. Rakesh Gupta and others, under section 498-A I.P.C, Police Station Shivpur, District Varanasi, whereby accused/appellants Rakesh Kumar Gupta, Ramesh Prasad and Leelawati alias Leela have been convicted under section 498-A I.P.C for two year rigorous imprisonment and a fine of Rs. 5,000/- each and in default of payment of fine they have been directed to undergo three months additional imprisonment. 2. The prosecution case, in brief, is that the deceased Soni Gupta was married to accused/appellant Rakesh Kumar Gupta on 28.4.1999. The accused/ appellant Lilawati Gupta is mother-in-law of the deceased and accused/ appellant Ramesh Gupta is father-in-law of the deceased. They used to harass the deceased for want of dowry just after her marriage. The accused/appellants got allotted a flat No. L-69, Chandmari, Varanasi from Development Authority and were residing therein. They were also doing chemical business from that flat. They had to pay Rs. two lacs to Development Authority, Varanasi as dues of the aforesaid flat and they used to ask the deceased Soni Gupta to bring Rs. two lacs from her parents. They also threatened to kill her for none-fulfillment of the said amount. The deceased used to inform to her father Shivjii Gupta (PW-1) the factum of cruelty and harassment caused to her by the accused/appellants. On 5.8.2002 at 7.30 p.m. Shivji Gupta (P.W-1) was informed by some person that the deceased was killed by accused/appellants by setting ablaze and they were also in the process of disposal of the dead body of the deceased. On the said information Shivji Gupta (P.W-1) along with other family members of his family rushed to the place of occurrence and found that the deceased had been taken away to Kabir Chaura Hospital. They reached at the aforesaid hospital and saw that deceased had died due to burn injury and the accused/appellants had escaped from there. On the said information Shivji Gupta (P.W-1) along with other family members of his family rushed to the place of occurrence and found that the deceased had been taken away to Kabir Chaura Hospital. They reached at the aforesaid hospital and saw that deceased had died due to burn injury and the accused/appellants had escaped from there. Shivji Gupta (P.W-1) went to police station Shivpur, District Varanasi and filed First Information Report (Ext-ka-1) whereupon a case crime No.219 of 2002, under sections 498-A,304-B I.P.C and 3/4 D.P. Act (Ext-ka-5) was registered against the accused/appellants and investigation was handed over to Dy S.P. Sri Awadhesh Kumar Rai (PW-4) Meanwhile on 6.8.2002 S.I. Gopal Singh (PW-6) inspected the dead body of deceased and prepared the inquest report (Ext.Ka-7) in the supervision of Sri M.P. Singh, A.C.M-II, Varanasi and sealed the dead body and handed over to constable Ganesh Rai with relevant papers Ext-ka-8 to Ext.ka-12 for postmortem examination. Meanwhile S.I. Govind Prasad Singh (PW-7) inspected the place of occurrence and took in his custody Gallon of kerosene oil, one match box, four bungles, golden chain, two ear tops, one bichhiya, two silver payals and diary of year 1994 and prepared seizure memo (Ext-ka-13) in presence of constable Kripashankar Mishra, Sakir Khan (D.W.2) and S.I. Anoop Kumar.. 3. Pw-3 Dr. Ajeet Kumar along with Dr. S.N. Dixit conducted the postmortem of the body of deceased and prepared postmortem report (Ext.ka-2) at 3.30 p.m on 6.8.2002. According to him the deceased had died on 5.8.2002 at 8.25 p.m. Burn injuries were found on the whole body of deceased except head and sole and the deceased had died due to the said anti-mortem injuries. S.I Awadhesh Kumar Rai (PW-4) inspected the place of occurrence, prepared site plan (Ext.ka-3), recorded the statement of the witnesses as well as accused persons, inspected the relevant papers and filed charge sheet (Ext-ka-4) in the Court of Magistrate, under sections 498-A,304-B I.P.C and D.P. Act. The learned Magistrate committed the case to Sessions Judge, Varanasi for trial after complying the mandatory provision as required under section 209 Cr.P.C. Learned Session Judge after hearing the parties, framed the charge u/s 498-A and 304-B I.P.C and section 4 Dowry of Prohibition Act against the appellants which they pleaded not guilty and claimed to be tried. 4. The learned Magistrate committed the case to Sessions Judge, Varanasi for trial after complying the mandatory provision as required under section 209 Cr.P.C. Learned Session Judge after hearing the parties, framed the charge u/s 498-A and 304-B I.P.C and section 4 Dowry of Prohibition Act against the appellants which they pleaded not guilty and claimed to be tried. 4. During trial, for proving the prosecution case, the prosecution examined PW-1, Shivji Gupta, PW-2, Shankar Lal Gupta, PW-3 Dr. Ajit Kumar, PW-4 Dy S.P. Sri Awadhesh Kumar Rai, PW-5 constable Kripa Shankar Mishra, PW-6 S.I. Gopal Singh, PW-7 S.I. Govind Prasad Singh. After the prosecution evidence the statement of accused/appellant were recorded under section 313 Cr.P.C. They denied the prosecution case and claimed that they were falsely implicated in this case. The appellant Rakesh Kumar Gupta further stated that his old house is situated in Lohatiya where the other co-accused i.e. his father and mother used to reside and did the business of chemical. He along with deceased resided at the house situated at Chandmari where no chemical business was carried out. 5. In rebuttal of prosecution case DW-1,Haris Chandra Jaiswal, DW-2 Sakir Khan were examined by the appellants in their defence. 6. The learned trial court, upon conclusion of the trial acquitted the appellants from the charge under section 304-B I.P.C and section 4 D.P. Act but convicted them for the offence under section 498-A I.P.C. and sentenced as above by the impugned order and judgment which is under challenge before this Court. 7. Heard learned counsel Diwan Saifullah Khan for the appellants and learned A.G.A for the State and perused the record. 8. Learned counsel for the appellants has submitted that no independent witness has been produced by the prosecution and the witnesses produced by the prosecution are not eye witness. Their evidence and statements are also not reliable. Statement of Shankar Lal (P.W-2) is contradictory with his statement recorded under Section 161 Cr.P.C. Deceased had died due to accidental burn. Handwritings of diary produced by the prosecution before the trial court are also different. No incriminating fact is written in said diary. The appellants No. 2 and 3 are father-in-law and mother-in-law of the deceased who were more then 60 years old at the time of occurrence. They were living separately in other house. Handwritings of diary produced by the prosecution before the trial court are also different. No incriminating fact is written in said diary. The appellants No. 2 and 3 are father-in-law and mother-in-law of the deceased who were more then 60 years old at the time of occurrence. They were living separately in other house. He has further submitted that accused-appellants have no criminal history and they have been held guilty for offence only u/s 498-A I.P.C which is simple and trivial in nature. Trial court has not considered the provision of Probation of Offenders Act, 1958. The impugned judgment and order of the trial court is wholly illegal and liable to be set aside. 9. Learned counsel for the appellants has placed reliance on the decision of Supreme Court in the case of Ramchandra Singh Vs. State of Bihar, 2002 3 LAWS(SC) 87 and the State of Maharashtra Vs. Ashok Narayan Dandalwar, 2000 4 LAWS(SC) 140 and decision passed by this Court in Jai Devi Vs. State of U.P.,2015 4 LAWS(ALL) 134. 10. In Ramchandra Singh's case (supra), it was submitted on behalf of appellants that the appellant No.1 and 2 had already under gone imprisonment for a period of 8 months and 2 and a half months respectively as such they should be let out for a period of imprisonment already undergone while appellant No.3 should be allowed the benefit of probation so that he could continue in service, else he would be rendered jobless. The Supreme Court while allowing the appeal partly and maintaining the conviction against the appellants No.1 and 2, under section 498-A I.P.C reduced the sentence of appellants No.1 and 2 to the period already undergone and also granted benefit of section 4 of Probation of Offender Act, 1958 to appellant No.3. 11. In State of Maharashtra Vs. Ashok Narayan Dandalwar (Supra), wherein the trial court had convicted the appellant under section 498-A I.P.C and acquitted him of the charge under section 306 I.P.C. On appeal the High Court examined the entire material on record and found that no sufficient evidence was produced by the prosecution to substantiate the offence under section 498-A I.P.C and set aside the conviction of appellant under section 498-A I.P.C. also. In appeal filed by the State, the Supreme Court also found that the letters produced by the prosecution in order to proving the offence of cruelty were lacking the fact of demand of dowry. 12. In Jai Devi Vs. State of U.P. (Supra ) where the appellant (Jethani of deceased) was convicted for demand of dowry and cruelty under section 498-A I.P.C, it was found by this Court that the prosecution evidence regarding demand of Rajdoot motorcycle in dowry by 'Jethani' was not reliable and the appellant was acquitted. 13. Per contra learned A.G.A appearing for the State has submitted that the death of the deceased was caused within three years of her marriage in the house of appellant. From the oral as well as documentary evidence, it has been proved that she was harassed and tortured before her death for demand of dowry. The ocular evidence is corroborated by medical evidence and the evidence produced by the prosecution is wholly reliable and trustworthy. He has further submitted that the alleged offence is very serious, hence the accused/appellants are not entitled for benefit of Probation of Offenders Act, 1958. 14. In the light of above submission of both counsels it has only to be seen whether the offence of cruelty as provided in section 498-A I.P.C was committed by the accused-appellants or not. Section 498-A I.P.C which declares the cruelty as offence is quoted as under:- "Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine." Explain:-For the purpose of this section, "cruelty" means:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.] 15. Thus, the explanation of Section 498-A I.P.C clearly provides that cruelty includes mental and physical cruelty and also any wilful conduct which drives the women to commit suicide or to cause grave injury or danger to life. It also includes harassment of the women caused to her with a view to coercing her for any unlawful demand for any property or valuable security. 16. Pw-1 Shivji Gupta has stated that appellant Rakesh Kumar Gupta alias Bhola (husband of the deceased) Lilawati Devi (mother-in-law of deceased) and Ramesh Gupta (father-in-law of deceased) had burnt his daughter Soni Gupta (deceased).He has further stated that his daughter used to inform him that the appellants used to beat and torture her for dowry. In cross-examination, he has further deposed that in laws of his daughter were not satisfied with the dowry at the time of her Bidai and within one year of her marriage a child was also born at her parental house (Mayaka) in Mool Nakshatra whose Santi Path was solemnized by him at the expenses of appellant Rakesh Kumar Gupta. 17. Shankar Lal Gupta (P.W-2) has deposed that deceased Soni was his real niece (Bhanji). According to him the deceased, after her marriage, used to come on his house and tell the facts regarding torture and cruelty committed by her husband, mother-in-law and father-in-law for want of dowry. He has further deposed that deceased Soni, before 15 days of her death, had come on his house and said that a loan of Rs. two lacs was due on the flat wherein she resided and accused/appellants were pressurizing her for bringing Rs. two lacs from her parents. 18. So far as the submission of learned counsel for appellants that statement of Shankar Lal (P.W.2) is contradictory with his statement under Section 161 Cr.P.C, is concerned, from perusal of material on record it transpires that in cross examination this witness has stated that he had not given any statement regarding manner of torture and death of deceased to Investigating Officer. Although this witness had claimed that the deceased Soni was his real nice (Bhanji) but he has stated that maternal grand father of deceased Soni was Mata Prasad who had three sons but he did not know their names. Although this witness had claimed that the deceased Soni was his real nice (Bhanji) but he has stated that maternal grand father of deceased Soni was Mata Prasad who had three sons but he did not know their names. He has further stated that his father's name was Mohan Lal and one Shanti Devi was his sister whose daughter was Savitri Devi and deceased Soni was the daughter of Savitri Devi. This witness, in his cross examination, has further admitted that he had not told Investigating Officer that deceased Soni used to come at his house or she had told the facts that torture was caused to her. He had further admitted that he had not told to Investigating Officer that deceased Soni had come to his house 15 days before her death. Thus, it appears that there is contradiction or improvement between his statement, recorded by the Investigating Officer during investigation and his statement made before the trial court. It is settled law that merely on the account of some improvement or contradiction in the statement of witness made before the trial court and his statement given to Investigating Officer under Section 161 Cr.P.C, evidence of a witness can not be held unreliable. It depends upon the facts and circumstances of each case. Awadhesh Kumar Rai (P.W-4) I.O has stated that he had recorded the statement of Shankar Lal (P.W-2). He in his cross examination has stated as under :- "The statement of Shankar Lal has been recorded immediately after the preparation of the inquest report. In the said statement Shankar Lal has not stated any fact regarding dowry and torture. During investigation Shankar Lal did not tell me that he has received information of Soni's death from Raju. He did not state to me that 'While weeping, Soni had narrated all the facts to me'. Had she told me, I would have certainly mentioned the same. In his earlier statement Shankar Lal did not tell me that Soni was his niece. However, in his second statement he told that soni was his niece" 19. From perusal of above statement of P.W.4 it transpires that during investigation he has recorded the statement of Shankar Lal (P.W.2) on two occasions. It may be possible that in second statement he had stated in detail. However, in his second statement he told that soni was his niece" 19. From perusal of above statement of P.W.4 it transpires that during investigation he has recorded the statement of Shankar Lal (P.W.2) on two occasions. It may be possible that in second statement he had stated in detail. P.W.4 has not stated that he had asked those questions which were put by the defence counsel to Shankar Lal (P.W-2) during his cross examination or P.W.2 had failed to give answer to any question put by this witness. During investigation when the Investigating Officer records statement of any witness under section 161 Cr.P.C, witness used to answer only those questions which was specifically asked to him. The Investigating Officer is not so skilled and expert in criminal law or in asking legal question regarding the occurrence as cross examiner or lawyers. Thus, if Investigating Officer fails to ask some question to witness as the cross examiner expect, the statement of a witness given during trial cannot be thrown out on the ground that some facts were not disclosed by such witness in his statement under section 161 Cr.P.C. Thus, in my view the evidence of Shankar Lal (P.W-2) can not be held unreliable or untrustworthy only on the account of some contradiction or improvement made by him from his statement under Section 161 Cr.P.C and submission of learned counsel for the appellants has no force. 20. It is admitted case by the both parties that the deceased Soni Gupta was married with appellant Rakesh Kumar Gupta alias Bhola on 28.4.1999. She died in her matrimonial house at Chandmari Colony, Police Station Shivpur, District Varanasi on 5.8.2002. DW-2 Sakir Khan who was produced by the appellants in their defence has also deposed that deceased Soni Gupta had died due to burn injury at Chandmari Colony, Shivpur, Varanasi. According to him further the appellant Rakesh Kumar Gupta also resided with her at the time of her death. Thus the place of occurrence, where the deceased Soni Gupta had died, is inside the house of appellant. 21. Hon'ble the Supreme Court in Trimukh Maruti Kirkan Vs. According to him further the appellant Rakesh Kumar Gupta also resided with her at the time of her death. Thus the place of occurrence, where the deceased Soni Gupta had died, is inside the house of appellant. 21. Hon'ble the Supreme Court in Trimukh Maruti Kirkan Vs. State of Maharastra, (2006) AIRSCW 5300 held as under:- "If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties." 22. Since the offence of dowry death, cruelty and harassment was committed inside the house of accused-appellant, there would be a rare possibility of direct evidence. Therefore, the details of occurrence just happened before the death of deceased may be within the knowledge of accused-appellants who were with her at that time or whose presence were natural and probable with her at that time. The appellant Rakesh Kumar Gupta, the husband of deceased, in his statement under section 313 Cr.P.C has admitted that the death of deceased was caused on 5.8.2002 at 4-5 p.m. and further admitted that he got the deceased admitted in hospital. He has also admitted that he used to reside with deceased at the house situated at Chandmari i.e. place of occurrence. It means that the appellant Rakesh Kumar Gupta had best information/ evidence regarding the manner and time of death of deceased and also as to what happened just before her death. He, in his statement under section 313 Cr.P.C, did not give any details regarding the fact that whether he was inside his house at the time of death of deceased or not. He has also not stated that if he was out side the house, on whose information he reached there. He, in his statement under section 313 Cr.P.C, did not give any details regarding the fact that whether he was inside his house at the time of death of deceased or not. He has also not stated that if he was out side the house, on whose information he reached there. DW-2 Sakir Khan was produced by the defence to prove the fact that at the house where the occurrence was happened, only the appellant Rakesh Kumar Gupta used to live with deceased Soni Gupta and other appellant Ramesh Gupta and Lilawati alias Leela did not reside there. He has further stated that at the time of occurrence, the appellant Rakesh Kumar Gupta had gone somewhere. But in his cross examination he has admitted that he was businessman and used to go out in the morning for business and returned at 2.30 p.m and some time used to again go out in case of necessity and returned at 6-7 p.m. This witness has also not stated whether he had informed to appellant Rakesh Kumar Gupta or not and how the appellant Rakesh Kumar Gupta reached at the place of occurrence whereas he has clearly stated that the deceased was carried to Pandit Deen Dayal Hospital at Varanasi by her husband with the help of one and two persons of his colony. Thus failure to produce the reliable evidence regarding non presence of the appellant Rakesh Kumar Gupta from his house at the time of occurrence the statement of D.W-2 Shakir Khan is not reliable and in the fact and circumstance of this case it may be presumed that appellants are not disclosing the true facts and evidence of the case which were in their knowledge. 23. So far as the submission of learned counsel for the accused-appellants, that no independent witness was produced by the prosecution and Shivji Gupta(PW-1) and Shankar Lal Gupta (P.W-2) were not eye witness, they are relatives of the deceased, hence, their statements are not reliable, is concerned, in this case the occurrence was happened inside the house of the accused/appellants. Hence, the submission of learned counsel for the accused/appellants that the witnesses produced by the prosecution are not reliable as they are not eye witness, is not acceptable because it is not possible for the prosecution to produce the eye witness in this case. Hence, the submission of learned counsel for the accused/appellants that the witnesses produced by the prosecution are not reliable as they are not eye witness, is not acceptable because it is not possible for the prosecution to produce the eye witness in this case. Similarly, the evidence of Shivji Gupta (P.W-1) and Shankar Lal Gupta (P.W-2) also can not be rejected only on the account that they are relatives of the deceased because in such cases now a days an independent witnesses do not prefer to become as witness and get involve himself in dispute of others. 24. In the State of Andhra Pradesh Vs. S. Rayappa and other, (2006) 4 SCC 512 , Hon'ble Supreme Court while commenting upon reason for reluctance of the public or the impartial person to join as witnesses in the criminal case has observed in para-7 as under:- "On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of P.W.1 and P.W.2 on the sole ground that they are interested witnesses being relatives of the deceased." 25. In the present case the witnesses produced by the prosecution are father and maternal uncle of the deceased. They are natural witness because they are supposed to know the conduct and behavior of the accused/appellants towards deceased relating to occurrence before her death. Therefore, no adverse inference can be drawn against the prosecution for non joining or producing of any independence witnesses and thus, the submission of learned counsel for the accused/appellants has no force. 26. They are natural witness because they are supposed to know the conduct and behavior of the accused/appellants towards deceased relating to occurrence before her death. Therefore, no adverse inference can be drawn against the prosecution for non joining or producing of any independence witnesses and thus, the submission of learned counsel for the accused/appellants has no force. 26. Now a question arises whether the death of the deceased was accidental. Accused-appellant Rakesh Kumar Gupta in his statement has said that deceased had died due to accidental burn injury. 27. From perusal of Ext.ka-3 site plan, it is clear that in the Flat bearing L-69 where the occurrence was caused, there are only two rooms having two veranda, one bathroom and latrine room and the occurrence was happened in place-A i.e bath room. No evidence has been produced by the appellants as to whether the bath room where the deceased was burnt was blocked from inside the room or not. PW-4 Dy. S.P. Sri Awadhesh Kumar Rai, Investigating Officer, who had prepared site plan and PW-7 S.I. Govind Prasad Singh who had reached at the place of occurrence and took in his possession one gallon of kerosene oil, match box, diary and ornament of deceased had not found that bath room where the deceased got burn injury was blocked from inside the room. They had also not found any symptom regarding effort made by the deceased to save her life at the time of getting burn injury whereas according to PW-3 Dr. Ajit Kumar, the whole body of deceased was burnt except head and sole of the deceased. In cross examination he has stated that no smell of kerosene oil was found from body of deceased. No goods, valuable articles situated in the house (place of occurrence) were found as damaged. It is natural conduct of victim to make every attempt to save her life in case of accidental burn. Accused-appellants had known the real cause of burn injuries and death of deceased but they have not disclosed the true fact before the court. It cannot be inferred that no cruelty was caused to her just before her death. Similarly the gallon of kerosene oil was also found from the place of occurrence. Thus plea of accidental burn, raised by the appellant's counsel is not acceptable. 28. It cannot be inferred that no cruelty was caused to her just before her death. Similarly the gallon of kerosene oil was also found from the place of occurrence. Thus plea of accidental burn, raised by the appellant's counsel is not acceptable. 28. So far as the submission of learned counsel for the accused/appellants, that hand writing of diary produced by the prosecution before the trial court are different, is concerned, from perusal of material on records it transpires that a diary and other incriminating articles were recovered from place of occurrence by S.I. Govind Prasad Singh (P.W.7) and from the perusal of the alleged diary and its relevant page, it transpires that some portion of diary was written by one hand writing and the relevant portion was written by another hand writing. Shivji Gupta (P.W-1) in his cross examination has accepted that some portion of the diary was in his own writing whereas some was in hand writing of his daughter Soni (deceased). He has further deposed that the relevant page of diary dated 7-8.4.1994 i.e. Thursday and Friday were written in his own hand writing. He has also deposed that the said portion of the diary was written by him at the house of accused/appellants situated at Chandmari. Thus, the prosecution had explained the factum of two hand writings in the alleged diary and the prosecution case can not be doubted on this very account. Thus the submission of learned counsel for the accused/appellants in this regard has no force. 29. So far as the submission of learned counsel for the accused/appellants that the accused/appellants Ramesh Prasad and Leelawati alias Leela are parents in-laws of the deceased, they were living separately at the time of occurrence and they have no concern either with the accused/appellant Rakesh Kumar Gupta or deceased and no incriminating fact was written in diary, hence they cannot be held liable for the offence of cruelty caused to deceased Soni is concerned, from perusal of record it transpires that all the accused/appellants were residing in the city of Varanasi. Though, according to them they are living in separate house, they have not produced any reliable evidence so that it can be presumed that they have no concern with each other in their family matter. They have also not produced any evidence that there was any separation between them. 30. Though, according to them they are living in separate house, they have not produced any reliable evidence so that it can be presumed that they have no concern with each other in their family matter. They have also not produced any evidence that there was any separation between them. 30. Admittedly there were two house of the accused-appellants at the time of occurrence one was situated at Chandmari Colony and other was at Lohatiya. This fact is also reflected from relevant portion of the impugned diary which has been written by P.W.1 as in his hand writing which is as under: 1. The groom will not marry without flat. 2. Came to know after year that flat had been taken and now marriage will be solemnized. 3. .......................... 4. ........................ 5. Had soni been at Lohatiya, she would have eaten Kachori, Jalebi made in desi ghee. 6. ............................. 7. ...................... 8. ..................... 9. Mother-in-law first said on telephone and then after coming home that keep taking desi ghee, fruits, milk. 10 Always taunts regarding Lohatiya, but never verifies after going to Chadmari. 11. .................. 12. .................. 13. ................... 14. ..................... 15. ................... 16. .................. 17. .................... 18. .................. 19. So much insistence is made for staying at Lohatiya, but whenever, came to Lohatiyaa, sometimes flour was not there, some times pulse some times rice and above all it was said that when ever soni comes she should be served with good items. 20. When one has to fetch the food and eat it own then what about the favour." 31. Shivji Gupta (P.W.1) has also deposed in paras 22-23 of his statement as under:- ".As all the girls are fond of eating, similarly was soni. The shortcoming of rice, pulse etc., has been mentioned by me in my handwriting. I have also mentioned that come here and serve us with a good food. I have mentioned the above facts on being told by my daughter. It has also mentioned that come over to Lohatiya and serve food. In this diary my daughter has no where mentioned that her parents in law and her husband harass her for dowry and food and hate her". 32. Thus, from the above facts mentioned in the diary, as written by P.W-1, Shivji Gupta it is established that there were two houses of the appellants one was in Lohatiya another was in Chandmari colony. 32. Thus, from the above facts mentioned in the diary, as written by P.W-1, Shivji Gupta it is established that there were two houses of the appellants one was in Lohatiya another was in Chandmari colony. It further appears that in the house situated at Lohatiya, the appellant Ramesh Kumar Gupta and Lilawati Devi used to reside whereas the appellant Rakesh Kumar Gupta used to reside with deceased at the time of her death at the house situated at Chandmari Colony i.e place of occurrence. Appellants had good relations. They had care each other. They used to talk each other and also go to each other's house. There were no separation between them. 33. It is also pertinent to note at this juncture that Shivji Gupta (P.W.1) in his cross examination has stated that the house situated at Lohatiya was appellants' ancestral house and the house situated at Chandmari colony was purchased by them. From perusal of material on record it further transpires that house situated at Chandmari colony i.e place of occurrence was owned and registered in the name of appellant Leelawati alias Leela. From perusal of above material on record it further transpires that deceased Soni Gupta used to go and stay at Lohatiya where appellant Ramesh Prasad and Leelawati alias Leela were residing but she was not happy with conduct and behaviour of appellants because they were not treating her well. They were taunting and misbehaving her. Cruelty includes mental cruelty as well as physical. Simply on the account of the fact that deceased had not written any thing against accused-appellants in alleged diary, the fact written by Shivji Gupta (P.W.1) can not be doubted. Thus only on the account that appellants Ramesh Prasad and Leelawati alias Leela were living in other house situated in same city, it can not be said that they were innocent and not causing any type of cruelty or harassment to deceased. 34. Considering all the facts and circumstances as discussed hereinabove I am of the considered opinion that the death of deceased was not accidental as alleged by the accused-appellants. Deceased was harassed, tortured and misbehaved by the accused-appellants before her death. The prosecution has succeeded in proving the offence under section 498-A I.P.C beyond reasonable doubt against the accused-appellants and there is no illegality in the finding of trial court. 35. Deceased was harassed, tortured and misbehaved by the accused-appellants before her death. The prosecution has succeeded in proving the offence under section 498-A I.P.C beyond reasonable doubt against the accused-appellants and there is no illegality in the finding of trial court. 35. Now a question arises whether accused-appellants are entitled for benefit of Probation of Offenders or the sentence awarded by the trial Court is sufficient. In this case the accused-appellants have been convicted by the trial Court only for the offence under section 498-A I.P.C for which maximum sentence has been provided only for three years and fine. They have been sentenced for two years rigorous imprisonment and fine of Rs 5000/- and in default whereof they have been further sentenced for three months further imprisonment. The prosecution has not produced any evidence that they were previously convicted. So it has to be seen whether the accused/appellants are entitled for benefit of Probation of Offenders Act, 1958 or not.? Section 3 of the Act confers power on the court to release certain offenders after admonition. The said provision is as follows:- "3. Power of court to release certain offenders after admonition.--When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition. Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4." Section 4 of the Act deals with the powers of Court to release certain offenders on probation of good conduct which is as follows:- 4. Explanation.--For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4." Section 4 of the Act deals with the powers of Court to release certain offenders on probation of good conduct which is as follows:- 4. Power of court to release certain offenders on probation of good conduct.-- "(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond. (2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case. (3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender. (4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender. (5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned." 36. Thus the philosophy of the Probation of Offender Act 1958 is reformative. Hon'ble Supreme Court in Ratan Lal v. State of Punjab, (1965) AIR SC 444, while discussing the purpose and object of the Act, has observed in para no. 4, as follows:- 4. The Act is a milestone in the progress of the modern liberal trend of reform in the field of penology. It is the result of the recognition of the doctrine that the object of criminal law is more to reform the individual offender than to punish him. Broadly stated the Act distinguishes offenders below 21 years of age and those above that age, and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. While in the case of offenders who are above the age of 21 years, absolute discretion is given to the court to release them after admonition or on probation of good conduct, subject to the condition laid down in the appropriate provision of the Act, in the case of offenders below the age of 21 years an injunction is issued to the court not to sentence them to imprisonment unless it is satisfied that having regard to the circumstances of the case, including the nature of the offence and the character of the offenders, it is not desirable to deal with them under Ss. 3 and 4 of the Act. 37. Discussing the object, reason as well as applicability of Probation of Offender Act,1958, in Uttar Pradesh, this Court, Uma Shanker and others Vs. 3 and 4 of the Act. 37. Discussing the object, reason as well as applicability of Probation of Offender Act,1958, in Uttar Pradesh, this Court, Uma Shanker and others Vs. State of U.P., (2016) 94 AllCriC 208 has observed in para Nos.7 to 9 as follows:- 7. Before coming into force of the Central Act (Act No.20 of 1958), some States including U.P. had their own legislation regarding probation. The necessity of having a uniform law in this regard was felt. Hence, the Central Act, i.e. The Probation of Offenders Act, 1958 was passed, the Statement of Objects and Reasons wherein enacts as under.:- "In view of the widespread interest in the probation system in the country this question has been examined and it is proposed to have a Central Law, which should be uniformly applicable to all States." 8. However, under sub-clause (3) of Section 1 of the Act, the Central Act was to come into force in a State on such date as the State Government may by notification in the Official Gazette appoint. Different dates were appointed for different parts of the State. Vide notification No.683/XXVI-2-80-500(25)-78, dated May 29, 1980 published in U.P. Gazette, Part I, dated 21st June 1980, page 848, the Central Act was made applicable to 15 districts of this State and with effect from 1.5.81 the Central Act became applicable to 35 more districts including the district 'Jaunpur' related to the instant case. 9. In the case of Hari Singh Vs. State of U.P. this Court has held that Central Act will be applicable in State of U.P. and Act 6 of 1938 will not apply after the date of notification." 38. Hon'ble Supreme Court in Ved Prakash Vs. State of Haryana, (1981) AIR SC 643 while discussing on the duty of Bench and Bar regarding compliance of Section 360 Code of Criminal Procedure read with section 4 of Probation of Offenders Act,1958 has held as under:- "The offence, for which conviction has been rendered, is one which will be attracted by S. 360 or at any rate the Probation of offenders Act, 1958. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The materials before us are imperfect because the Trial Court has been perfunctory in discharging its sentencing functions. We must emphasise that sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch. The Trial Court should have collected materials necessary to help award a just punishment in the circumstances. The social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. Even if S. 360 Cr.P.C. is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant. The absence of such materials in the present case has left us with little assistance even from the counsel. Indeed members of the bar also do not pay sufficient attention to these legislative provisions which relate to dealing with an offender in such manner that he becomes a non-offender. We emphasise this because the legislation which relate to amelioration in punishment have been regarded as 'Minor Acts' and, therefore, of little consequence. This is a totally wrong approach and even if the Bar does not help, the Bench must fulfil the humanising mission of sentencing implicit in such enactments as the Probation of offenders Act." 39. In this case the accused/appellants Ramesh Prasad and Leelawati alias Leela are parents of accused/appellants Rakesh Kumar Gupta. From perusal of material available on record, it transpires that a baby was also born after the marriage of deceased. The alleged incident was happened in the year 2002 i.e. 16 years ago. The statements of accused-appellants were recorded by trial court in 2003 i.e. 15 years ago, wherein the age of accused/appellants Rakesh Kumar Gupta, Ramesh Prasad and Leelawati alias Leela were recorded by the learned trial Court as 31 years, 56 years and 50 years respectively. It means that they are 46 years, 71 years and 65 years old at present. Neither any fact nor any material has been placed regarding their previous conviction nor any submission in this regard has been made by the learned A.G.A before this Court. It means that they are 46 years, 71 years and 65 years old at present. Neither any fact nor any material has been placed regarding their previous conviction nor any submission in this regard has been made by the learned A.G.A before this Court. The provision of Probation of Offenders Act, 1958 is beneficial legislation which has been made by legislative for reformation of accused who is first offender as well as young person. It is also pertinent to mention at this juncture that from the perusal of record it further transpires that all the accused/appellants had surrendered before the Magistrate concerned during investigation. The accused-appellants Leelawati alias Leela and Ramesh Gupta were detained in jail for a period of more than one month whereas accused/appellant Rakesh Kumar Gupta was detained in jail for a period of more than three months. 40. Considering the fact and circumstance of the case, I am of the view that the benefit of provision of Probation of Offender Act, 1958 should be provided to the accused/appellants Rakesh Kumar Gupta, Ramesh Gupta and Leelawati alias Leela. 41. Thus, the appeal is partly allowed. The judgment and order dated 22.1.2004 passed by learned trial Court so far as it relates with the conviction of appellants under section 498-A I.P.C is hereby confirmed but the sentence is modified. Instead of sending the accused-appellants Rakesh Kumar Gupta, Ramesh Gupta and Leelawati alias Leela to jail, they are given benefit of Section 4 of the Probation of Offender Act, 1958. They are directed to file two sureties bonds of Rs. 20,000/- and personal bond of same amount to the effect that they shall maintain peace and good behavior and shall not commit any offence during the period of one year. The bonds aforesaid be filed by him within two months from the date of judgment before District Probation Officer, Varanasi. 42. Copy of this judgment along with lower court record be sent to the District Judge, Varanasi with immediate effect for compliance.