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2024 DIGILAW 973 (ALL)

Girish Chand Singh v. State Of U. P.

2024-04-04

GAJENDRA KUMAR, RAHUL CHATURVEDI

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JUDGMENT : 1. Heard Shri Virendra Singh, learned counsel for the appellant and Shri Vikas Kumar Tiwari holding brief of Shri Pulak Ganguly who has submitted his power in the registry by today itself for accused/ respondents and learned A.G.A. for the State and perused the grounds taken by the appellant. 2. This Criminal Appeal u/s 372 Cr.P.C. is being filed on behalf of Girish Chand Singh assailing the legality and validity of the judgment and order dated 13.10.2023 passed by the learned Additional Sessions Judge, Court No.5, Kushinagar, Padrauna while deciding Session Trial No.239 of 2010 (State of U.P. vs. Upendra Singh and 4 others) arising out of Case Crime No.430 of 2009, under Sections 498A, 304B, 302, 201 I.P.C. and Section ¾ Dowry Prohibition Act, Police Station-Kaptanganj, District- Kushinagar. 3. The order impugned shows that accused-respondents namely Upendra Singh S/o Gabbu Singh and Gabbu Singh S/o Mohan Singh both resident of village Somali, P.S. Kaptanganj, District Kushinagar were convicted for the offence under section 498A IPC and sentenced two years R.I. and Rs.3,000/-fine in default payment of fine additional two months simple imprisonment, under section 304B IPC and sentenced 10 years R.I., under section 304 Part-1 IPC and sentenced for 10 years R.I. and Rs.15,000/-and in default payment of fine additional six months simple imprisonment, under section 201 IPC and sentenced for three years R.I. and Rs.5,000/-fine and in default payment of fine additional three months simple imprisonment, under section 4 Dowry Prohibition Act and sentenced under section one years R.I. and Rs.2,000/-fine and in default payment of fine additional one month simple imprisonment. All the sentences would run concurrently. 4. While assailing the legality and validity of the judgement and order a number of grounds were taken by the appellant. The prayer sought by the appellant-informant is : “It is , therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to allow the appeal and enhance the sentence of opp.no.2 & 3 to life imprisonment u/s 304-B, 304 Part- 1.” 5. Thus additional prayer is sought for enhancing the sentence and convicting the appellant under section 304B and 304 Part-1 I.P.C. has been made. Thus from the aforesaid, it is clear that there is a solitary prayer to allow the appeal and enhance the sentence in the exercise of power under section 372 Cr.P.C. 6. Thus additional prayer is sought for enhancing the sentence and convicting the appellant under section 304B and 304 Part-1 I.P.C. has been made. Thus from the aforesaid, it is clear that there is a solitary prayer to allow the appeal and enhance the sentence in the exercise of power under section 372 Cr.P.C. 6. At this juncture, the court has lay its hand over a judgement of Hon’ble Supreme court in Parvinder Kansal Vs. The State of NCT of Delhi & Anr. in Criminal Appeal No. 555 of 2020 arising out of S.L.P. (Crl.) No.3928 of 2020 decided by Hon’ble Apex Court on 28.8.2020 :- “9. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with ‘Appeals’ and Section 372 makes it clear that no appeal to lie unless otherwise provided by the Code or any other law for the time being in force. It is not in dispute that in the instant case appellant has preferred appeal only under Section 372, Cr.PC. The proviso is inserted to Section 372, Cr.PC by Act 5 of 2009. Section 372 and the proviso which is subsequently inserted read as under: “372. No appeal to lie unless otherwise provided. – No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” A reading of the proviso makes it clear that so far as victim’s right of appeal is concerned, same is restricted to three eventualities, namely, acquittal of the accused; conviction of the accused for lesser offence; or for imposing inadequate Crl.A.@S.L.P.(Crl.)No.3928 of 2020 compensation. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While the victim is given opportunity to prefer appeal in the event of imposing inadequate compensation, but at the same time there is no provision for appeal by the victim for questioning the order of sentence as inadequate, whereas Section 377, Cr.PC gives the power to the State Government to prefer appeal for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under Section 377, Cr.PC but similarly no appeal can be maintained by victim under Section 372, Cr.PC on the ground of inadequate sentence. It is fairly well settled that the remedy of appeal is creature of the Statute. Unless same is provided either under Code of Criminal Procedure or by any other law for the time being in force no appeal, seeking enhancement of sentence at the instance of the victim, is maintainable.” 7. When the court has pointed out the judgement, on the other day a miscellaneous application was moved by the learned counsel for the appellant on 13.3.2024 changing the prayer. When this application was moved, the Division Bench of this Court had directed that the aforesaid application be listed with previous papers in week commencing 13.5.2024 and the said application has been disposed of. The prayer sought by means of this application is as follows : “It is therefore most respectfully prayed that this Hon’ble Court may be pleased to allow the amendment application and permit the appellant to add the word “and convict the opp. Party no. 2 & 3 under section 302 IPC” at the last of the prayer after the word “304-B IPC” in the Prayer of Memo of Appeal.” On 18.3.2024 this Court had directed that the aforesaid miscellaneous application be listed along with the present appeal. Needless to mention here that on 5.3.2024 we have directed that the present appeal be listed on 14.3.2024 as fresh to enable the counsel for the appellant to provide a law relating to the enhancement of the sentences as well as for admission. 8. It seems that during arguments on 5.3.2024/ 14.3.2024 when the learned counsel for the appellant got acquainted with the aforesaid judgement of Hon’ble Apex Court in the case of Parvinder Kansal (supra), he has tried to amend the original prayer in the appeal by means of supplementary affidavit. 8. It seems that during arguments on 5.3.2024/ 14.3.2024 when the learned counsel for the appellant got acquainted with the aforesaid judgement of Hon’ble Apex Court in the case of Parvinder Kansal (supra), he has tried to amend the original prayer in the appeal by means of supplementary affidavit. The fate and future of said amendment application is yet to be decided but the fact remains in the original appeal, there is a specific prayer to enhance the sentence of the opposite party nos.2 and 3 to life imprisonment under section 304B and 304 Part-1 in which the appellants were already convicted and condemned and awarded 10 years R.I. with fine. There is no order directing the counsel for appellant to amend the prayer in the appeal. 9. Therefore, in the light of the aforesaid judgement of Parvinder Kansal (supra) case, the State Government to prefer an appeal under section 377 Cr.P.C. for enhancement of sentence and therefore this appeal on behalf of first informant is not maintainable on this score. 10. Today, Shri Vikas Kumar Tiwari, learned counsel has put in appearance on behalf of opposite party nos.2 and 3 and informed the court by showing that the respondent no.2 Upendra Singh, the husband who was arrested in connection with Case Crime No.430 of 2009, under Sections 498A, 304B, 201 I.P.C. and Section ¾ Dowry Prohibition Act, Police Station-Kaptanganj, District-Kushinagar was arrested on 8.10.2009 and was released on 17.10.2023 whereas respondent no.3, Gabbu Singh too have served out the sentence and was in jail since 08.10.2009 and released from jail on 17.10.2023 after serving out the entire sentence. Thus, they were in jail for almost 14 years as against 10 years awarded to them by the learned trial judge. The order impugned is dated 13.10.2023 and both of them were released from jail on 17.10.2023 serving out the sentence of 14 years as against maximum sentence of 10 years awarded to them under section 304B and 304 part-1 of IPC. 11. This time barred appeal under section 372 Cr.P.C. was moved by the informant on 21.2.2024 praying the court to enhance the sentence, sentencing both of them for life imprisonment. 12. 11. This time barred appeal under section 372 Cr.P.C. was moved by the informant on 21.2.2024 praying the court to enhance the sentence, sentencing both of them for life imprisonment. 12. As mentioned above, the appellants who have already served out the sentence for 14 years as against 10 years awarded to them and thereafter asking them to enhance the sentence for the offence under section 304B and 304 part-1 and award them for life is strictly barred by the aforesaid judgement of Hon’ble Supreme Court in the Parvinder Kansal (supra) case. 13. The fate and future of the amendment application which was an afterthought after coming to know the aforesaid judgement of Hon’ble Apex Court, the same has not been allowed by the Court. Thus, this appeal lacks merits and liable to be rejected by this Court. 14. Coming to the merits of the case, it is alleged that the informant is resident of village Samstpur Mudilla, P.S. Piparaich, District Gorakhpur. He got her daughter Anju alias Pushpanjali married with Upendra Singh on 21.03.2005 as per Hindu rites and customs. In the said marriage he has handed over sufficient amount of dowry and the marriage was performed with lots of fanfare. Thereafter, in the year 2007, the second marriage (gauna) was performed and the daughter came to her marital home village Somali. Thereafter everything went normal but later on, her husband Upendra Singh started demanding a motorcycle, gold and a Fridge. The daughter of the informant used to communicate to her parents about the alleged demand and on this score she was subjected to ill treatment and harassment. On 30.09.2009, there was a Panchayat between the family members in which her in-laws have assured that they would not harass the daughter any more. On the same date around 6:00 in the evening somebody has informed the informant that her daughter Anju @ Pushpanjal and her one year old baby girl was done to death by burning them. After having the information the appellant-informant rushed to her marital place and the informant had levelled a general and omnibus allegation of dowry death upon her husband Upendra Singh, father-in-law Gabbu Singh, elder brother-in-law (jeth) Ambrish Singh, mother-in-law, Savitri Devi, elder sister-in-law (jethani), Sarita Singh, sister-in-law (nanad) Sandhya, bother-in-law (nandoi) Satish who have jointly murdered her daughter by setting her ablaze. The informant has come to know that they have taken the dead body near Amdiha Pul for performing her last rites and they reached on the spot, extinguished the fire and lodged the FIR and the whereabouts of one years old daugther was also not known. On this prosecution story and FIR No. 430 of 2009, under sections 498A, 304B IPC and ¾ Dowry Prohibition Act was lodged and after holding the indepth probe into the matter the police has submitted charge-sheet in the matter under sections 498A, 304B, 304, 201 IPC and ¾ Dowry Prohibition Act. 15. On 4.9.2012, the learned Sessions Judge have framed charge under sections 498A, 304B IPC and ¾ D.P. Act, thereafter alternative charge under sections 302 and 201 IPC were also framed in addition to above sections of the IPC. At this stage, it was argued by learned counsel for the State that this framing of the charge is not only erroneous but also bad in the eyes of law. It was urged by the counsel that the area of the operation of 302 and 304 B IPC are completely different and distinct. No doubt that the common thread is there is an unnatural death in both the cases but the essential ingredients of section 299/300 IPC vis-a-vis 304 B IPC are poles apart. Not only this there is a presumption under section 304B but there is no such presumption under section 302 IPC and on this score it was pleaded that this framing of the alternative charge per se is bad in the eyes of law. It was argued by the counsel that this practice of framing the alternative charge starts from way back by a judgement of Hon’ble Apex Court in the case of Rajbir alias Raju and Another vs. State of Haryana reported in (2010) 15 SCC 116 whereby the Division Bench of Hon’ble Apex Court in paragraph-7 of the judgement opined :- “7. We further direct all trial Courts in India to ordinarily add Section 302 to the charge of section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women.” 16. We further direct all trial Courts in India to ordinarily add Section 302 to the charge of section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women.” 16. With due regard and with utmost respect to their lordship, it seems that it was a more of an emotional cry by their lordship keeping in view the growing incidents of dowry death so that a deterrence will be created against the wrong doers and they should shun away not to commit such type of barbaric incident against their own daughter-in-laws but so far as legal requirement is concerned as mentioned above, the area and the fair operation of both the sections 302 and 304 IPC are completely different and distinct and to suggest that alternative charge under section 302 IPC may also be framed would create a havoc and unwarranted confusion and complication in the matter. 17. Keeping in view this anomalous situation after three years yet another Division Bench of Hon’ble Apex Court in the judgement of Jasvinder Saini and Others vs. State (Government of NCT of Delhi) (2013) 7 SCC 256 have explained/ formulated the aforementioned observation of Hon’ble Apex Court in the case of Rajbir alias Raju (supra). In paragraph 15 this situation was elaborated which reads thus : “15. It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbir’s case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbir’s case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court.” 18. On the aforesaid judgement it is clear that the Hon’ble Apex Court unequivocally opined that section 302 IPC and 304B IPC, in both the cases death is involved. Whether the case falls within category of 302 or 304 B IPC, the facts and evidence of every case occupies a front seat. If there are evidences direct or circumstantial which prima facie indicates that this is a case of cold blooded murder, the learned trial court shall well within the right to frame the charge under section 302 IPC and proceed accordingly in such a event, section 302 IPC shall be the main charge and not alternative charge. If the main charge of a murder is not established against the accused at the trial, the court can look into evidences to determine whether alternative charge of dowry death is punishable under section 304 B IPC is established or not. The ingredients of both the offences are different and distinct. Thereby demanding appreciation of evidence from the prospective of relevance to such ingredients, the trial court in that view of the matter acted mechanically for it framed additional charge under section 302 IPC without adverting to the evidences adduced in the case and simply on the basis of direction issued in the case of Rajbir’s case (supra). Thereby demanding appreciation of evidence from the prospective of relevance to such ingredients, the trial court in that view of the matter acted mechanically for it framed additional charge under section 302 IPC without adverting to the evidences adduced in the case and simply on the basis of direction issued in the case of Rajbir’s case (supra). Unless and until there is a sufficient material on the record to justify the framing of charge under section 302 IPC, it would be unjust and improper to add section 302 IPC as an alternative charge amongst the array of the charges. In the instant case there was no whisper either by the prosecution or by the defence. From this apparent anomaly and now after pronouncement of the judgement when the accused respondent have came out from the jail after serving 14 years of incarceration, this appeal under section 372 Cr.P.C. for enhancing the sentence is gross misused of the power under section 372 Cr.P.C. During the entire trial the prosecution has never raised any objection with regard to the alleged improper framing of the charge but soon after the pronouncement of the judgement at the belated stage of 35 days a time barred appeal is being filed seeking the indulgence from this court under section 372 Cr.P.C. is nothing but simply an arm twisting. The appellant-informant is conscious of the fact that the accused-respondents have served out 14 years of incarceration and now he wants that they should remain behind the bars for their whole life. This is not the objective of section 372 Cr.P.C. of providing the weapon in the hands of appellant-informant to use the same as his whims and to level the scores with the accused-respondents. 19. In view of the discussions made here-in-above, the present appeal being devoid of merit is dismissed.