Ajmal and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri Atul Verma, learned counsel for the appellants, and Shri Umesh Verma, learned AGA for the State were heard at length.

Criminal Appeal No. 1091 of 2009 has been preferred by appellant Ajmal, Criminal Appeal No. 406 of 2008 has been preferred by appellant Bismilla and Criminal Appeal No. 407 of 2008 has been preferred by appellant Chedana challenging the judgment and order dated 16.11.2007 passed by Additional Sessions Judge, Court No. 2, Gonda, in Sessions Trial No. 266 of 2000 arising out of Case Crime No. 7 of 2000, Police Station Itiyathok, District Gonda, whereby all the three appellants were convicted for the offence under Section 304-B IPC and were sentenced with imprisonment for life. They were further convicted for the offence under Section 498-A IPC and were sentenced to undergo rigorous imprisonment for a period of three years and also with fine of Rs. 5,000/- each with default stipulation of two years additional rigorous imprisonment. All the appellants were also convicted for the offence under Section 3 of the Dowry Prohibition Act and were sentenced with rigorous imprisonment for a period of five years and also with fine of Rs. 15,000/- each with default stipulation of three years'' additional rigorous imprisonment. They were further convicted for the offence under Section 4 of the Dowry Prohibition Act and were sentenced with rigorous imprisonment for a period of two years and also with fine of Rs. 5,000/- each with default stipulation of one year''s additional rigorous imprisonment. All the sentences were directed to run concurrently.

Since all these appeals arise out of a common judgment, hence the same are being disposed of together.

It is a case of dowry death. Appellant Ajmal happens to be the husband of the deceased and other two appellants namely Bismilla and Chedana are parents-in-law of the deceased.

In brief, the case of the prosecution was that the complainant Bhulai lodged a first information report at Police Station Itiyathok, District Gonda on 28.6.2000 alleging therein that his daughter Ameerunnisa was married in the year 1996 with appellant Ajmal. When his daughter used to visit her ''Maika'' then she used to make complaint that her parents-in-law and husband treat her with cruelty and say that in case motorcycle and the money are not brought by her from her parents then she shall be killed some day. On the preceding night at about 10:00 P.M., the complainant got an information that his daughter has suffered snake bite. When the complainant reached the village of the appellants then some persons of the village told him that his daughter has been murdered by the family members of her in-laws house.

After registration of the case, investigation proceeded. Inquest proceedings were conducted and the dead body was sent for postmortem which was conducted on 29.6.2000 at 04:35 P.M. by a team of two doctors and the following ante-mortem injuries were found on the body of the deceased:-

(i) Contusion present on left leg 7 x 3 c.m., 5 c.m. below left border of left knee joint;

(ii) Contusion 11 x 3 c.m. on lateral aspect of left thigh 13 c.m. above left part of left knee joint;

(iii) Contusion 9 x 3 c.m. on left chest 3 c.m. above left illiac crest;

(iv) Contusion 10 x 3 c.m. lies 12 c.m. below left axilla in mid axillary line;

(v) Multiple contusion in an area of 17 x 12 c.m. on left shoulder;

(vi) Contusion 8 x 4 c.m. on forehead just above right eyebrow;

(vii) Multiple contusion in an area of 15 x 7 c.m. around lower lip and chin, and

(viii) Hyoid bone was fractured, trachea was congested. Deceased was pregnant. Size of fetus was 3 c.m. and was of 8 weeks.

In the opinion of the doctor, the duration was about two days and cause of death was asphyxia as a result of throttling.

After completing the investigation, charge sheet was filed.

The defence of the appellants, as stated by them under Section 313 Cr.P.C., was that they have been falsely implicated due to enmity and the complainant, simply to extort money from them, has lodged this false first information report.

In order to prove its case, the prosecution has examined PW-1 complainant Bhulai, PW-2 Muzaffar Khan-the brother of the deceased, PW-3 Imran Khan-a person of the village of the complainant, PW-4 Shri Balendu Bhushan Singh, Additional Superintendent of Police-Investigating Officer of this case, PW-5 Dr. S.N. Ojha, who has conducted the postmortem on the body of the deceased.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, learned trial court has convicted the appellants, as above, hence, these criminal appeals.

Submission of learned counsel for the appellants was that in the instant case the parents-in-law of the deceased were not to be benefited in any manner by the demand of dowry and nowadays it is general tendency that in such nature of cases all the family members are named as accused. The parents-in-law of the deceased are aged about more than 50 years and general allegations were made against all the appellants. Regarding appellant Ajmal, it has been argued that learned trial court has awarded extreme penalty of imprisonment for life for the offence under Section 304-B IPC and keeping in view the facts of the instant case, the sentence awarded by learned trial court was excessive. Thus, as regards appellant Ajmal, the only argument raised on his behalf was regarding sentence and his conviction has not been challenged. The conviction of remaining two appellants has been challenged.

Learned A.G.A. has submitted that in the instant case appellants had given false information to the complainant that the deceased has suffered snake bite while the actual cause of death was throttling and several other injuries were also found on the body of the deceased. The case of the prosecution stands proved against appellants and learned trial court has not committed any illegality in convicting the appellants.

First of all we will consider the medical evidence. According to the medical evidence, several ante-mortem injuries were found on the body of the deceased and the cause of death was throttling. Hyoid bone was fractured and trachea was congested. PW-5 Dr. S.N. Ojha has supported the case of the prosecution in his evidence and has proved the postmortem report. According to the postmortem report, the deceased was also pregnant by eight weeks at the time of her death. He also concurred with the findings recorded by Dr. Nitin Gupta, who was the other member of the team. Thus, the medical evidence not only proves the unnatural death of the deceased but also proves that soon before her death she was subjected to cruelty.

Now we will consider the evidence of other witnesses of facts. Relationship of the appellants with the deceased, as mentioned above, is an admitted fact. All three witnesses of fact have stated that after the marriage the deceased was subjected to cruelty in connection with demand of dowry. The marriage of the deceased had taken place in the year 1996 and she died in the year 2000. So, she died within less than seven years'' of her marriage. Perusal of evidence of all three witnesses of fact clearly indicates that all of them have supported the allegation of demand of dowry and consequential ill treatment of the deceased. No defence evidence could be produced on behalf of the defence to rebut the legal presumption under Section 113-B of the Indian Evidence Act.

Now we come to the second limb of argument which relates to only parents-in-law of the deceased. In the year 2007, appellant Smt. Chedana was aged about 45 years and appellant Bismilla was aged about 50 years, which is the age stated by the appellants in their statements under Section 313 Cr.P.C. So at present, after about 9 years, they are more than 54 years of age. The demand of dowry as alleged by the prosecution, was for motorcycle and according to the first information report a vague demand of money was also made. Even in the examination in chief, PW-1 has not stated as to what amount, the deceased was asked to bring from her parents. PW-2 has also supported the allegation of demand of motorcycle and money but the exact amount has not been disclosed by this witness also. Likewise, PW-3 Imran Khan has also supported the allegation of demand of motorcycle and money. The demand of money without specifying the amount appears to be a very unnatural demand. But so far as the demand of motorcycle is concerned, all the witnesses have stated that whenever the deceased used to come to her ''Maika'' then she used to tell about the demand of motorcycle by the appellants and her consequential ill treatment. Submission of learned counsel for the appellants Smt. Chedana and Bismilla has substance that they were not to be benefited by the demand of motorcycle. Since we are of the view that the allegation of demand of money was a vague allegation and the demand of motorcycle would not have benefited the appellants Smt. Chedana and Bismilla, so their case becomes distinguishable from the case of appellant Ajmal, who happens to be the husband of the deceased. So far as the appellant Ajmal is concerned, the prosecution has been successful in proving that the deceased died within seven years of her marriage. She died an unnatural death and presence of several injuries on her body also proves that soon before her death she was subjected to cruelty in connection with the demand of dowry. Therefore, all the ingredients necessary to constitute the offence under Section 304-B IPC were present in the instant case. So far as appellant Ajmal is concerned, he was rightly convicted by the learned trial court and we confirm his conviction. So far as the conviction of appellants Smt. Chedana and Bismilla is concerned, we are of the view that they deserve to be extended the benefit of doubt as by the demand of motorcycle they were not to be benefited. So the possibility that they would have joined appellant Ajaml in commission of such offence does not appear to be wholly reliable. Thus, they deserve to be granted the benefit of doubt.

Now the question of appropriate sentence comes for our consideration. For the offence under Section 304-B IPC, the minimum sentence provided under law is seven years which may be extended to imprisonment for life. So a very vast discretion has been given to the Court to inflict appropriate sentence. Thus, appropriate sentence, in cases of dowry death, depends upon the facts and circumstances of each case.

Now we will have to consider the law on the point of sentence to be inflicted for the offence under Section 304-B I.P.C. Hon''ble the Apex Court in the case of Hem Chand v. State of Haryana reported in , (1994) 6 SCC 727, in paragraph 7 of the judgment, has held as under:-

"Now coming to the question of sentence, it can be seen 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."

The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. 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. 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."

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."

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.

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, inter-alia, 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."

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.

In a very recent judgment in the case of V.K. Mishra and another v. State of Uttarakhand reported in , (2015) 9 SCC 588, Hon''ble the Apex Court has again considered the question of appropriate sentence in cases of dowry death and has observed in paragraph No. 42 as under:-

"42. For the offence Under Section 304-B Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304-B Indian Penal Code thus prescribes statutory minimum of seven years. In Kulwant Singh and Ors. v. State of Punjab , (2013) 4 SCC 177, while dealing with dowry death Sections 304-B and 498-A Indian Penal Code in which death was caused by poisoning within seven years of marriage conviction was affirmed. In the said case, the father-in-law was about eighty years and his legs had been amputated because of severe diabetes and mother-in-law was seventy eight years of age and the Supreme Court held impermissibility of reduction of sentence on the ground of sympathy below the statutory minimum."

The trial court has also awarded sentence for the offence under Section 498-A I.P.C. 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. Last lines of paragraph 5 reads as under:-

"5. ......... But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B."

Keeping in view the aforementioned legal position, we are of the considered view that in this case also sentence of ten years rigorous imprisonment would be sufficient to meet the ends of justice. No separate sentence deserves to be inflicted for the offence under Section 498-A I.P.C.

In view of the discussions made above, Criminal Appeal No. 1091 of 2009 preferred by appellant Ajmal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant Ajmal under Section 304-B I.P.C. is hereby confirmed. However, the sentence inflicted by the trial court for the said offence is hereby reduced from imprisonment of life to a period of ten years'' rigorous imprisonment. The conviction of the appellant Ajmal for the offence under Section 498-A I.P.C. is also hereby confirmed but no separate sentence is being passed for the said offence. The conviction of the appellant Ajmal for the other offences is also hereby confirmed. However, the sentence inflicted by the learned trial court in default of payment of entire fine amount is hereby reduced to a period of six months on all counts. All the sentences shall run concurrently. Appellant Ajmal is in custody. He shall serve out the sentence as modified by this Court. The period of detention already undergone by appellant Ajmal in the instant case shall be set off in his substantive sentence in accordance with the provisions of Section 428 Cr.P.C.

Criminal Appeal No. 406 of 2008 preferred by appellant Bismilla and Criminal Appeal No. 407 of 2008 preferred by appellant Chedana deserve to be allowed and are hereby allowed. Appellants Bismilla and Chedana are acquitted of all the charges levelled against them. They are on bail. Their bail is cancelled and sureties discharged.

Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.