Anoop Shukla and Others vs State of U.P.

Pratyush Kumar, J.—1. Since both these appeals i.e. (Criminal Appeal No. 2387 of 2009-Anoop Shukla V. The State of U.P.) and (Criminal Appeal No. 2386 of 2009- Saroj Shukla V. The State of U.P.) arise out of a common judgment, therefore, the same are being disposed of by a common judgment.

Sri Prem Singh, learned counsel for the appellants and Sri Chandra Shekhar Pandey, learned Additional Government Advocate were heard.

It is a case of dowry death. Criminal Appeal No. 2387 of 2009 has been preferred by the appellant-Anoop Shukla (husband of the deceased) and Criminal Appeal No. 2386 of 2009 has been preferred by the appellant Saroj Shukla (Jeth of the deceased) challenging the judgment dated 31.08.2009 passed by learned Additional Sessions Judge, Court No. 3, Sitapur, in Sessions Trial No. 987 of 2004, arising out of Case Crime No. 399 of 2004, Police Station Laharpur, District Sitapur, whereby both the appellants were convicted for the offence under Section 304-B IPC and were sentenced to undergo imprisonment for life. Co-accused persons namely Ram Dularey and Smt. Kamla Devi who happen to be father-in-law and mother-in-law of the deceased were acquitted extending them the benefit of doubt.

In brief, the case of the prosecution was that the complainant Raghunandan Shukla lodged an FIR at the Police Station Lahapur, District Sitapur on 28.07.2004 at 8:30 AM alleging therein that his daughter Pratima alias Gudiya was married with the appellant Anoop Shukla about six years prior to her death. Sufficient dowry was given in the marriage and after the marriage the deceased went to her in-laws house (Sasural). After her Vida the behaviour of the family members of her matrimonial home was bad and they were treating her with cruelty in connection with the demand of dowry and she was being harassed. The deceased used to make complaint of such cruel behaviour to her family members. On 27.07.2004 in the night at about 11 P.M. the complainant got an information that his daughter has died due to burn injuries and on this information the complainant immediately went to the house of appellant Anoop Shukla where the dead body of his daughter was found lying in a room and all the family members were absconding. On the basis of this information, the case was registered and inquest proceedings were conducted and after completing the necessary formalities the dead body was sent for postmortem. According to the postmortem report the age of the deceased was about 22 years and duration was about one and half day old. The postmortem on the body of the deceased was conducted on 28.07.2004 at 4:00 P.M. and following ante-mortem injuries were noted by the doctor.

"(1) First to third degree burn all over the body, skull, hairs singed eye brow and eye lash were singed."

In the opinion of the doctor the cause of death was shock as a result of ante-mortem burn injuries.

This postmortem was conducted by a team of two doctors.

During course of investigation, from the place of occurrence a container of kerosene oil and a match box was recovered and its memo was prepared.

After completing the investigation the charge-sheet was filed against all the four accused persons, two of them have been acquitted by the trial court.

The defence of the appellants was of their false implication.

In order to prove its case the prosecution has examined PW-1 Raghunandan Shukla, the complainant of this case, PW-2 Smt. Jhabbo Devi, mother of the deceased, PW-3 Subhash, brother of the deceased, PW-4 Raja Ram Gautam, Nayab Tahsildar, who had conducted the inquest proceedings on the body of the deceased, PW-5 Dy. S.P. Harpal Singh, the Investigating Officer of this case, PW-6 Dr. Subhash Chandra Sundariyal, who had conducted the postmortem on the body of the deceased, PW-7 S.I. Lal Mani Tiwari, who has prepared the inquest report on the dictation of the Nayab Tahsildar, PW-8 is constable 539 Anil Kumar who has prepared the chik report and G.D. of this case, PW-9 C.O. Inayatullah, who has taken up the investigation from 09.08.2004.

In defence DW-1 Karuna Shanker Mishra was examined and he was the Pandit who had solemnized the marriage and he has stated that at the time of marriage there was no demand of dowry.

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

Submission of the learned counsel for the appellants was that the evidence available against the appellant Saroj Shukla (Jeth) was at par with the accused persons who have been given benefit of doubt and have been acquitted. It has also been argued that in such nature of cases the main accused is the husband of the deceased as the entire legal and moral responsibility for protection of his wife lies on him. He has also argued that there is general tendency, in such nature of cases to name all the family members. Appellant Saroj Shukla being Jeth of the deceased was not to be benefited by the demand of dowry. Trial court has not considered these points which has rendered conviction of Saroj Shukla unsustainable under law. Regarding appellant Anoop Shukla appeal has been pressed only on question of sentence.

Learned Additional Government Advocate has fairly conceded that the evidence available against the present appellant Saroj Shukla was at par with the acquitted co-accused persons. However, regarding the appellant Anoop Shukla he has argued that the case of the prosecution was proved beyond doubt as all the necessary ingredients to constitute the offence of dowry death were present and the trial court has not committed any illegality in convicting the appellant Anoop Shukla.

Though learned counsel for the appellants has also not challenged the conviction of appellant Anoop Shukla and his arguments is restricted only on the point of sentence. He has argued that the learned trial court has awarded the extreme penalty of imprisonment for life and keeping in view the fact that the marriage had taken place about six years prior to her death. The maximum penalty of imprisonment for life ought not to have been inflicted.

It is an admitted fact that the evidence available against the present appellant Saroj Shukla is at par with that of co-accused persons who have been acquitted but inspite of that being the court of first appeal, we have gone through the entire evidence on record. So far as the appellant Anoop Shukla is concerned, it is established by the evidence that the deceased died in less than 7 years of her marriage. After her marriage she was treated with cruelty in connection with the demand of dowry and she used to inform such cruel behaviour at the hands of husband and family members to her parents. The unnatural death of the deceased stands established by her postmortem report so all the necessary ingredients to constitute the offence under Section 304-B IPC were in existence so far as it relates to appellant Anoop Shukla.

Now we come to the case of appellant Saroj Shukla. All the witnesses of fact have given similar statements that all the named accused persons used to treat her with cruelty. No specific evidence of any such cruel behaviour was mentioned by any of the witnesses at the hands of appellant Saroj Shukla. PW-1 Raghunandan Shukla has undergone a very lengthy cross examination but nothing could be extracted in his cross-examination to hold his evidence to be unreliable with regard to appellant Anoop Shukla. Likewise PW-2 Smt. Jhhabbo Devi and PW-3 Subhash have given similar statements and have made general allegations against all the accused persons.

Law is settled on the point that in case of dowry death the case of husband stands at different footing from the case of other family members. Since two of the appellants namely father-in-law and mother-in-law have been granted the benefit of doubt, therefore, on the strength of same evidence the appellant Saroj Shukla (Jeth) could not have been convicted as their evidence is not of such nature which can be separated with regard to appellant Saroj Shukla. But so far as the appellant Anoop Shukla is concerned, we are of the considered view that his conviction under Section 304-B IPC was in accordance with law.

Submission of the learned counsel for the appellants was only on the point of sentence. Submission of the learned counsel for the appellants is that the extreme penalty of imprisonment for life has been inflicted for the offence under Section 304-B IPC while the minimum sentence provided under the Penal Code for the offence of dowry death is 7 years which may extend upto imprisonment for life. So a vast discretion has been given to the Court to inflict any sentence from seven years to imprisonment for life. So it is the discretion of the Court to award appropriate sentence, keeping in view the facts of each case. On the point of sentence, the learned trial court has observed that the deceased must have suffered a lot of pain and problem while she was put to fire and on this ground the maximum penalty of imprisonment for life has been inflicted on the appellants.

On the point of sentence we would like to refer some of the pronouncement of Hon''ble Apex Court. In the case of Hem Chand v. State of Haryana reported in , (1994) 6 SCC 727, in paragraph 7 of the judgment Hon''ble Apex Court 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."

In the facts of the aforesaid case, the cause of death was strangulation.

Hon''ble the Apex Court in the case of G.V. Siddaramesh v. State of Karnataka reported in , (2010) 3 SCC 152. In this case, on the point of sentence, in paragraph 30 of the judgment has held 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."

In view of the pronouncement of Hon''ble Apex Court referred above, we are of the view that in the facts of the instant case, the ends of justice would meet by awarding ten years'' rigorous imprisonment to the appellant Anoop Shukla.

Accordingly Criminal Appeal No. 2387 of 2009-Anoop Shukla V. The State of U.P. deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant Anoop Shukla under Section 304-B IPC is hereby confirmed however the sentence of imprisonment for life is hereby modified to a period of ten years. Appellant Anoop Shukla is in custody. He shall serve out his sentence as modified by this Court.

Criminal Appeal No. 2386 of 2009-Saroj Shukla V. State of U.P. deserves to be allowed and is hereby allowed. He is acquitted of the charges levelled against him. Appellant Saroj Shukla is on bail. His bail is cancelled and sureties are discharged. He is acquitted of the charge levelled against him.

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