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2021 DIGILAW 41 (ALL)

Ajai alias Nehne v. State of U. P.

2021-01-08

GAUTAM CHOWDHARY, K.J.THAKER

body2021
JUDGMENT : 1. Heard learned counsel for appellants and learned A.G.A. for State. 2. This appeal has arisen from the judgment and order dated 19.1.2011 passed by Additional Sessions Judge, Court No. 3, Mathura in Session Trial No. 497 of 2007, under Sections 498-A, 304-B I.P.C. and 3/4 Dowry of Prohibition Act, Police Station-Raya, District-Mathura convicting and sentencing the appellants to under go life imprisonment and Rs. 20,000/- fine for committing offence under Section 304-B I.P.C. and further convicted the appellants to under go three years imprisonment and Rs. 5,000/- fine for commission of offence under Section 498-A, I.P.C. and also convicted the appellants to under go for the period of one year imprisonment in Section 3/4 Dowry Prohibition Act. 3. This appeal arises out of conviction recorded of both mother-in-law and son who are alleged to have done to death wife of appellant no. 1 and daughter-in-law of appellant Nos. 2 and 3 within the period of seven years of marriage. 4. The prosecution was moved by lodgement of First Information Report dated 17.4.2007, the accused were charged of the offences. The accused no. 1 was in jail when the case was committed to court of session. However, Savitri Devi and Shivcharan were enlarged on bail. The accused Ajay is in jail past conviction, pre convition he was enlarged on bail by the court below. 5. The matter was triable by the court of session and, therefore, the learned Magistrate committed the case to the court of session. 6. On 5.3.2008 charge was framed against all the three accused for commission of offences under Section 304-B of the Indian Penal Code read with Section 498-A of the Indian Penal Code and also Section 3/4 of Dowry Prohibition Act. 7. The prosecution examined about seven witnesses so as to bring home the charge framed against the accused as enumerated: 1. Deposition of Banwari Lal 24.7.2008 PW-1 2. Deposition of Munish Kumar 20.10.2008 PW-2 3. Deposition of Balvir Singh 10.3.2010 PW-3 4. Deposition of Dr. A.S. Vashisth 15.7.2010 PW-4 5. Deposition of Nisad Ahmad 22.7.2010 PW-5 6. Deposition of Manoj Kkumar 10.8.2010 PW-6 7. Deposition of Veer Singh 21.9.2010 PW-7 8. In support of ocular version following documents were filed: 1. First Information Report 17.4.2007 Ex.Ka.13 2. Written Report 17.4.2007 Ex.Ka.5 3. Recovery Memo of Marriage-Card and Photo 12.5.2007 Ex. Ka.1 4. Postmortem Report 9.4.2007 Ex. Ka.6 5. Deposition of Nisad Ahmad 22.7.2010 PW-5 6. Deposition of Manoj Kkumar 10.8.2010 PW-6 7. Deposition of Veer Singh 21.9.2010 PW-7 8. In support of ocular version following documents were filed: 1. First Information Report 17.4.2007 Ex.Ka.13 2. Written Report 17.4.2007 Ex.Ka.5 3. Recovery Memo of Marriage-Card and Photo 12.5.2007 Ex. Ka.1 4. Postmortem Report 9.4.2007 Ex. Ka.6 5. Site Plan with Index 17.4.2007 Ex.Ka.15 9. The accused also led evidence that of the Doctor so as to prove their case that the deceased was mentally not of sound mind as examined on which they examined DW-1, Dr. Ved Prakash Verma. 10. The accused were put to questions under Section 313 of the Cr.P.C. also. The arguments of both side were heard thereafter. 11. At the outset before we begin to pen down our reasons for modifying the judgment of the court below but concurring with it on the finding as to commission of offence by the husband, one aspect is required to be noted that the accused No. 1, Ajay is in jail since 19.1.2011 which would be 9 years and more than 11 months without remission till the date we hear this appeal. He has a child who by now has grown up. 12. Learned counsel for the appellants Sri. Rajiv Lochan Shukla has firstly relied on the following grounds raised in the memo of appeal to contend that the accused are not guilty namely: “(i) Because the judgment and order passed by the Court below is not only illegal but is also against the weight of evidence on records. (ii) Because the sentence awarded to the appellant is too severe. (iii) Because conviction awarded to the appellant is not sustainable in the eye of law. (iv) Because the medical evidence is not supported to the prosecution case and the court below has also not applied his judicial minds in convicting the appellants. (v) Because the deceased was died during her treatment in the nursing home of Dr. Ved Prakash and Dr. Ved Prakash produced as defense witness before the court and stated that the deceased was suffered from the since long from the Mirgi and tuber closes but the court below disbelieved the statement of the Dr. (v) Because the deceased was died during her treatment in the nursing home of Dr. Ved Prakash and Dr. Ved Prakash produced as defense witness before the court and stated that the deceased was suffered from the since long from the Mirgi and tuber closes but the court below disbelieved the statement of the Dr. Ved Prakash without any reasons as such the judgment and order passed by the court below is not justified with the appellant as such the judgment and order of the court below is liable to be set aside by this Hon'ble Court. (vi) Because the appellants have filed the document of treatment paper which is indicates that the deceased was under treatment of the difference hospitals for her treatment this facts cannot be denied but the court below wrongly been disbelieved the same by his own expressions which is not correct and on that basis conviction of appellants can not be passed but the court below exercised his jurisdiction which is not vested in him and passed the order without his jurisdiction. (vii) Because the statements of witnesses are found contradiction and the court below has failed to go the same and passed illegal and perverse conviction order and convicted the appellants.” 13. Learned counsel for the State has contended that the judgment of the trial court does not deserve any modification or any leniency or no case is made out for reversing the judgment of the trial court. Learned counsel for the State has also focused and taken us to evidence on record so as to convince us that this was the case where the incident of all the three accused, namely, the deceased accused also were such which brought to hilt the offence alleged and for which charges were framed. The death was within seven years of the marriage, learned counsel for the State has persuaded us to peruse the provisions of Section 304-B of I.P.C. and has contended that the death occurred not at parental home but the matrimonial home of the deceased, namely, immediately after she was taken from the parental home. He has taken us to the oral testimony of the Doctor, DW-1 and has also taken us through the reasoning given by the learned trial court Judge. 14. Shri Shukla in the alternative has submitted that no role is assigned to the appellant no. 3, mother-in-law. 15. He has taken us to the oral testimony of the Doctor, DW-1 and has also taken us through the reasoning given by the learned trial court Judge. 14. Shri Shukla in the alternative has submitted that no role is assigned to the appellant no. 3, mother-in-law. 15. It is submitted that from the evidence led it emerges that no role was played by her in causing the death of the deceased. Section 304- B has been extensively read by both the counsel and has contended that the mother could not have been convicted on the basis of the evidence, no overt act has been attributed to her even in the evidence. She has not been alleged to have caused tranquility. It is submitted that her conviction cannot be sustained as the deceased should have been subjected to cruelty by soon before her death by her, there is no evidence on record which shows that after the deceased had come to the matrimonial home, the mother-in-law had soon before her death, demanded any money or she had perpetrated cruelty on the deceased. It is further submitted that neither the husband perpetrated in cruelty on the deceased. It is also submitted that the deceased was suffering from disease and it was because of that the dispute had a reason. 16. The alternative prayer is made by Shri Shukla to show mercy on appellant no. 1 though vehemently objected by the counsel for the State who has contended that leniency should not be shown in this matter where a pregnant lady died within seven years of her marriage. 17. As far as the first aspect is concerned, the evidence of PW-1 and PW-2 go to show that there were disputes for which litigation was going on. The child and the mother were brought to the matrimonial home, but it appears that on the very next day there again some cause arose as it is not proved as to how the deceased died as the viscera report only shows that it is no bodies case that it was administered by the appellant No. 1 or 3. 18. We have to fall back on the antecedents as they were litigations, there were disputed about asking dowry which was demanded in the past and, therefore we concur with the learned Judge that between the husband and the wife, husband played the major role. 18. We have to fall back on the antecedents as they were litigations, there were disputed about asking dowry which was demanded in the past and, therefore we concur with the learned Judge that between the husband and the wife, husband played the major role. Hence we are unable to persuade ourselves to take the view propounded by Sri. Shukla that it was not a dowry death qua Ajay Kumar or no case under Section 304-B I.P.C. is made out. 19. As far as the mother is concerned, we do not find even in the evidence of PW-1 and PW-2 that even in the earlier days, she was the root cause of asking for dowry. The allegations even in evidence are against the father-in-law and the husband. 20. In that view of the matter, it cannot be said that the dowry death was caused due to the harassment given by the mother-in-law. There may be stray incidences where she might have caused some harassment but that was not immediately preceding incident which occurred, hence her conviction is set aside. 21. To bring home the alternative submission that life till the last breath is not necessary in this case, as it is not a gross case of such magnitude which requires life imprisonment to a person who has lost his wife. The appellant has a minor daughter. The learned counsel for appellants has relied on the following judgments of the Supreme Court:- (i) Criminal Appeal No. 690 of 1994, Hem Chand vs. State of Haryana, decided on 6.10.1994. (ii) Criminal Appeal No. 1333 of 2013, Sunil Dutt Sharma vs. State (Govt. of NCT of Delhi), decided on 8.10.2013. (iii) Criminal Appeal No. 160 of 2006, G.V. Siddaramesh vs. State of Karnataka, decided on 5.2.2010. (iv) Criminal Appeal No. 1167 of 2011, Hari Om vs. State of Haryana and Another, decided on 31.10.2014. (v) Criminal Appeal No. 1530-1531 of 1995, State of Karnataka vs. M.V. Manjunathegowda and Another, decided on 4.1.2003. 22. Learned counsel for the respondent-State has contended that these decisions would not be applicable to the facts of the case where there are past antecedents of litigation under personal laws. 23. While considering the punishment to be inflicted on the appellant no. 22. Learned counsel for the respondent-State has contended that these decisions would not be applicable to the facts of the case where there are past antecedents of litigation under personal laws. 23. While considering the punishment to be inflicted on the appellant no. 1, we have convinced ourselves that we cannot punish the accused for a period less than seven years, but ten years of jail period in this case, would be sufficient. Hence jail term of ten years with remissions would be sufficient under Section 304-B I.P.C. As there is no provision for fine under Section 304-B but learned counsel Shri Shukla states that while entertaining the appeal, this Court had directed payment of 50% of the fine. The initial order of bail qua Nos. 2 and 3, and the amount which was already deposited will not be refunded. 24. As far as the fine under Section 304-B is concerned, there is no provision for fine in the newly added Section inserted in 1986. The same is recalled, we hold that the fine deposited would be considered to be period under Section 357 Cr.P.C. for the benefit of the daughter and it will be kept in a fix deposit for three years for benefit of the daughter of the accused which amount shall be deposited within four weeks from today failing which the accused shall suffer three months simple imprisonment under Section 498-A of the I.P.C though there is no default clause. 25. As we are showing leniency in this matter, we have also invoked Section 357 Cr.P.C. as placing relieve on the judgment of Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770 for the betterment of the child. The sentence under Section 498-A is reduced to that undergone by appellant No. 3 and maintained for appellant No. 1. 26. As far as the appellant No. 3 is concerned the punishment is reduced to period already undergone for holding her duty under Section 498-A. She is acquitted of offence charges under Section 304- A, the fine of Rs. 5000/- on her is maintained. The 80% of the amount will be kept in fix deposit. The fine is enhanced to Rs. 3,000/- which shall be paid within four weeks, if the fine is not paid, she shall undergo two months of imprisonment instead of three years. 5000/- on her is maintained. The 80% of the amount will be kept in fix deposit. The fine is enhanced to Rs. 3,000/- which shall be paid within four weeks, if the fine is not paid, she shall undergo two months of imprisonment instead of three years. This leniency is shown so that the future of daughter can be protected. As far as punishment under Section 3/4 of D.P. Act, the punishment is reduced to already undergone by the lady. The learned Judge has also directed 80% of the amount to be invested in fix deposit we now make it 100%. 27. The accused Ajay Singh if he has completed his term of ten years along with remission he shall be released on completion of his sentence if not required in any other offence. 28. The appellant No. 3 being already on bail need not surrender as we have commuted her sentence to that already undergone, but if the fines are not deposited, the procedure as prescribed be carried out by the Chief Judicial Magistrate against her. 29. The appeal is partly allowed. 30. This Court is thankful to the arguing counsels for ably assisting this Court and getting the appeal disposed of expeditiously. 31. The record and proceedings be sent back to the court below.