Bega Ram and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—As per prosecution case, on 21st of August, 2003, Ganga, the sister of the complainant, namely Balbeer (PW-1) was married according to the Hindu Customs and Rites with Surjaram S/o. Begaram (appellant No. 3, herein), resident of Village Arjunpura, Police Station, Sadar Sikar, District Sikar.

A day before 9th of February, 2007, Ganga died and was cremated by her in-laws.

On 11th of February, 2007 at about 06:30 P.M. the complainant, namely Balbeer (PW-1) submitted a written-report (Exhibit-P/1) before the Station House Officer, Police Station, Sadar Sikar, District Sikar.

In the written-report (Exhibit-P/1), the complainant, Balbeer (PW-1) stated that his sister, namely Ganga was married on 21.08.2003 at Village Kashi-Ka-Bas with Surjaram S/o. Begaram, resident of Arjunpura, Police Station, Sadar Sikar, according to the Hindu Customs and Rites. In the marriage, they had given dowry beyond their capacity. The complainant further stated that in the dowry, Rs. 17,000/-, gold jewelry, gold ring and other household utensils were given. The complainant also stated that Surjaram, his father, Begaram, sons, Shivpal, Omprakash, Raju and Smt. Bidami, mother-in-law used to taunt and harass Ganga on account that her brother and father had given less dowry. They were complaining that in the marriage, motor-cycle was not given. Ganga used to come to her parental house and disclose that she is being harassed by her in-laws. The complainant, Balbeer, in the written-report, stated that he took the relatives along to matrimonial home of his sister and requested the in-laws of Ganga to see the reason and not to harass the girl, but there was no change in the treatment given by the in-laws to Ganga. It was stated in the written-report that once Balbeer, along with younger brother, Shrawan (PW-4) had gone to the Village of the accused, at that time Surjaram had made a complaint that motor-cycle was not given in the dowry. It was also stated in the written-report that on 08.02.2007 at about 06:30 P.M. an information was received on the mobile that Ganga is not well. Upon this, the complainant replied that he met his sister three days earlier and as to what has happened now, however, he assured that he will come in the morning. On 09.02.2007 when he reached the Village of the accused, along with his relatives, he was informed by Begaram, his sons Shivpal and Raju and mother-in-law that Ganga had died in the night and she has been cremated. Upon which the complainant had made a protest that the in-laws should have waited for their arrival. In the complaint, a belief was expressed that for not giving dowry, Ganga has been murdered and thereafter, cremated without informing her parents and relatives.

On the basis of above report, the investigation was carried.

The Investigating Agency, after a thorough investigation, submitted a charge-sheet against appellant No. 1, Begaram, father-in-law, appellant No. 2, Smt. Bidami, mother-in-law and appellant No. 3, Surjaram, husband.

During trial, Shivpal S/o. Begaram was declared as a proclaimed offender and the trial proceeded against Surjaram, husband, Begaram, father-in-law and Smt. Bidami, mother-in-law.

The Court of Additional Sessions Judge (Fast Track), Sikar, vide its impugned judgment dated 27.02.2009, convicted appellant, Surjaram for offence punishable under Section 304-B I.P.C. and sentenced him to undergo life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine to further undergo six months simple imprisonment and for offence under Section 201 I.P.C. to undergo two years rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo four months additional simple imprisonment.

However, appellants, Begaram and Smt. Bidami were acquitted of offence under Section 304-B I.P.C. but convicted for offences under Sections 498-A and 201 I.P.C.

Having convicted the appellants for the above said offences, the trial Court, vide a separate order of even date, sentenced them as under:--

"Appellants No. 1 & 2: Begaram and Smt. Bidami

"For offence under Section 498-A I.P.C. both the appellants were sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo four months additional simple imprisonment.

For offence under Section 201 I.P.C. both the appellants were sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo four months additional simple imprisonment.

Appellant No. 3: Surjaram

For offence under Section 304-B I.P.C. he was sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/-. In default of payment of fine to further undergo six months additional simple imprisonment.

For offence under Section 201 I.P.C. he was sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo four months additional simple imprisonment."

The sentences awarded on above counts were ordered to run concurrently.

Aggrieved against the conviction and sentence, the appellants have instituted the present appeal under Section 374 of Code of Criminal Procedure, 1973, praying inter alia that their conviction and sentence, be set aside, and they be acquitted of the charges leveled against them.

The prosecution agency, during trial, had examined twelve-witnesses and proved on record ekeveb documents, being Exhibit-P/1 to Exhibit-P/11 respectively.

The statement of accused were recorded under Section 313 of Code of Criminal Procedure, 1973. They denied all the incriminating evidence put to them and pleaded innocence.

In defence, accused had examined four-witnesses and relied upon the statements of various witnesses recorded under Section 161 Cr.P.C., as Exhibit-D/1 to Exhibit-D/11 respectively.

Balbeer, the brother of deceased, Ganga appeared as P.W.-1 and has reiterated the same as to what was stated by him in the written-report (Exhibit-P/1).

In cross-examination, this witness admitted it to be correct that on 09.02.2007, 10.02.2007 and till 11.02.2007 at 06:30 P.M. he had not submitted any report to the Police, even though his sister had expired on 08.02.2007. This witness also admitted that at the time of marriage, his sister was sent very happily with the accused.

Sadhuram (PW-2) stated that Noparam, the father of Ganga deceased, is his maternal uncle. He further stated that he was informed by Shravan (PW-4) and Balbeer (PW-1) that their sister was cremated in the night. This witness had attested site-plan (Exhibit-P/3) and the memo whereby from the spot Police had gathered ashes of deceased, Ganga vide Exhibit-P/4.

Bhagwana Ram (PW-3) stated that Noparam, father of Ganga, deceased, is his friend. This witness also corroborated the allegations, emerging in the testimony of Balbeer (PW-1) that Ganga was being harassed by her in-laws on account of demand of dowry.

Shravan (PW-4), brother, Noparam (PW-5), father Dhanni Devi (PW-6), mother and Triloka Ram (PW-7), brother-in-law (being husband of the sister of the deceased) have corroborated the testimony of Balbeer (PW-1) regarding demand of dowry, taunt given to the deceased and the fact that Ganga was maltreated and harassed by her in-laws.

Prakash (PW-8), being neighbour of Begaram stated that there used to be a quarrel between accused and their daughter-in-law. She was also given beating. Surjaram used to beat his wife, whereas his family members used to help and connive with him. This witness stated that he heard noise of beating given to somebody in the house of the accused and in the next date in the night at 09:00 P.M. he saw that something was set on fire. This witness stated that he had seen the flame of fire, but he could not identity the person who were present around the pyre.

In defence, accused have taken stand that Ganga had suffered pain and a stroke as a result thereof she died. The accused had set up the case that Ganga had died a natural death and thereafter, she was duly cremated according to the Hindu Customs & Rites and the cremation was attended by the neighbourers. Defence witnesses have also deposed in above terms.

Mr. Ravi Jangid, the learned counsel appearing for the accused-appellants, has questioned the conviction of the appellant, Surjaram, qua offence under Section 304-B I.P.C. Learned counsel has submitted that it was incumbent for the prosecution to prove that the deceased had not died a natural death. However, learned counsel could not dislodge that the marriage was within seven-years.

In the present case, all relatives of the deceased and neighbourer, Prakash (PW-8) have stated that the deceased was being harassed by her in-laws on account of demand of dowry. The neighbour stated that Ganga was often given beating by her in-laws.

In the present case, admittedly cremation was not attended by the relatives of deceased and no information was relayed to them regarding death of Ganga. Thus, an inference is to be drawn against the accused.

At this juncture, counsel appearing for the accused-appellants, has submitted that he shall limit his prayer and confine the same to urge that the trial Court has committed a grave error in awarding life imprisonment, qua offence under Section 304-B I.P.C. The learned counsel has restricted his arguments to pray for reduction of the sentence.

Counsel appearing for the accused-appellants has relied upon a judgment rendered by the Division Bench of this Court in the case of Puran v. State of Rajasthan, (D.B. Criminal Appeal No. 1445/2007), decided on January 29, 2015, to which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member.

In the said judgment, considering the submissions of the learned counsel in that case and relying upon various judgments of Hon''ble Apex Court, qua quantum of the sentence, this Court had observed as under:--

"Considering the forceful and truthful testimonies given by the prosecution witnesses, Mr. Suresh Sahni, the learned counsel for the appellant, has frankly conceded that he is not in a position to argue this case on merits. Therefore, he has confined his arguments only to the quantum of punishment which should be meted out to the appellant. Relying on the case of Deen Mohammad @ Murli v. State of Rajasthan [D.B. Criminal Appeal No. 13/2005, decided on 25.11.2014], a case decided by us, the learned counsel has pleaded that sentencing cannot be left to the whims and capries of the trial court. Although in catena of cases the Hon''ble Supreme Court has dealt with the principles governing sentencing, although these principles generally relate to the cases of death penalty, but in the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), (2013) 10 AD 541 : (2013) 3 DMC 497 : (2013) 4 JCC 2718 : (2013) 13 JT 320 : (2013) 4 RCR(Criminal) 694 : (2013) 12 SCALE 473 : (2014) 4 SCC 375 : (2014) 2 SCJ 578 , the Hon''ble Supreme Court has expressed its opinion that the principles governing sentencing in death penalty cases would equally apply to the offences of lesser punishment. Therefore, the maximum sentence prescribed by law for a given offence can be inflicted only in rarest of rare case. Thus while imposing punishment for an offence under Section 304B IPC, the court would have to consider the mitigating and aggravating circumstances before inflicting the maximum sentence of life imprisonment. Moreover, the court would have to give reasons for inflicting the maximum sentence of life imprisonment upon an accused while convicting him for offence under Section 304B IPC. In the present case, the learned Judge has not given any cogent reason for sentencing the appellant to life imprisonment. Moreover, there are hardly any aggravating circumstances for imposing life imprisonment upon the appellant. Instead, Kaila Devi had died of strangulation. She had committed suicide as she was unhappy with her married life. Further, the appellant has suffered the pains and agony of a trial and incarceration for about ten years. Thus, the sentence should be reduced from life imprisonment to ten years.

Mr. Aladeen Khan, the learned Public Prosecutor, has emphasized only upon the fact that the case falls under Section 304B IPC, but has not been able to raise any arguments against reduction of sentence.

Heard the learned counsel for the parties, perused the record and examined the impugned judgment.

In the case of Deen Mohammad @ Murli (supra), while relying on the case of Sunil Dutt Sharma (supra), we have held as under:--

"Having affirmed the conviction of the appellants, we have been called upon to answer whether sentence of life imprisonment awarded by the learned Trial Court, in the facts and circumstances, is adequate and justified?

Counsel for the appellant had relied upon case of Sunil Dutt Sharma (supra) wherein Their Lordships referring to case law, had culled out the principles which till now had been applied for awarding death as sentence and thereafter had observed that application of same principles while determining sentence in the case of dowry death also make better sense. In a very erudite judgment by culling out the principles laid in Jagmohan Singh Vs. The State of U.P., AIR 1973 SC 947 : (1973) CriLJ 370 : (1973) 1 SCC 20 : (1973) 2 SCR 541 , and Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 : (1980) CriLJ 636 : (1982) 1 SCALE 713 : (1980) 2 SCC 684 : (1980) SCC(Cri) 174 : (1983) 1 SCR 145 , it was held that since sentencing is an onerous exercise to be undertaken by the court, court should take note of aggravating and in mitigating circumstances. Their lordships in case of Sunil Dutt Sharma (supra) had also taken note of principles laid in a recent pronouncement by Hon''ble Apex Court in Sangeet and Another Vs. State of Haryana, AIR 2013 SC 447 : (2013) CriLJ 425 : (2013) 1 Crimes 25 : (2013) 1 RCR(Criminal) 114 : (2012) 11 SCALE 140 : (2013) 2 SCC 452 . It was held that evolution of principles of sentencing policy are to be distinguished from judge centric to fair amount of certainty. It will be appropriate for us to extensively quote from the judgment rendered by Apex Court in Sunil Dutt Sharma''s case (supra):--

"10. Are we to understand that the quest and search for a sound jurisprudential basis for imposing a particular sentence on an offender is destined to remain elusive and the sentencing parameters in this country are bound to remain judge centric? The issue though predominantly dealt with in the context of cases involving the death penalty has tremendous significance to the Criminal Jurisprudence of the country inasmuch as in addition to the numerous offences under various special laws in force, hundreds of offences are enumerated in the Penal Code, punishment for which could extend from a single day to 10 years or even for life, a situation made possible by the use of the seemingly same expressions in different provisions of the Penal Code as noticed in the opening part of this order.

As noticed, the "net value" of the huge number of in depth exercises performed since Jagmohan Singh (supra) has been effectively and systematically culled out in Sangeet and Sankar Kisanrao Khade (supra). The identified principles could provide a sound objective basis for sentencing thereby minimizing individualized and judge centric perspectives. Such principles bear a fair amount of affinity to the principles applied in foreign jurisdictions, a resume of which is available in the decision of this Court in State of Punjab Vs. Prem Sagar and Others, (2008) CriLJ 3533 : (2008) 7 JT 66 : (2008) 7 SCC 550 . The difference is not in the identity of the principles; it lies in the realm of application thereof to individual situations. While in India application of the principles is left to the judge hearing the case, in certain foreign jurisdictions such principles are formulated under the authority of the statute and are applied on principles of categorization of offences which approach, however, has been found by the Constitution Bench in Bachan Singh (supra) to be inappropriate to our system. The principles being clearly evolved and securely entrenched, perhaps, the answer lies in consistency in approach.

To revert to the main stream of the case, we see no reason as to why the principles of sentencing evolved by this Court over the years through largely in the context of the death penalty will not be applicable to all lesser sentences so long as the sentencing judge is vested with the discretion to award a lesser or a higher sentence resembling the swing of the pendulum from the minimum to the maximum. In fact, we are reminded of the age old infallible logic that what is good to one situation would hold to be equally good to another like situation. Beside paragraph 163 (underlined portion) of Bachan Singh (supra), reproduced earlier, bears testimony to the above fact.

Would the above principles apply to sentencing of an accused found guilty of the offence under Section 304-B inasmuch as the said offence is held to be proved against the accused on basis of a legal presumption? This is the next question that has to be dealt with. So long there is credible evidence of cruelty occasioned by demand(s) for dowry, any unnatural death of a woman within seven years of her marriage makes the husband or a relative of the husband of such woman liable for the offence of "dowry death" under Section 304-B though there may not be any direct involvement of the husband or such relative with the death in question. In a situation where commission of an offence is held to be proved by means of a legal presumption the circumstances surrounding the crime to determine the presence of aggravating circumstances (crime test) may not be readily forthcoming unlike a case where there is evidence of overt criminal acts establishing the direct involvement of the accused with the crime to enable the Court to come to specific conclusions with regard to the barbarous or depraved nature of the crime committed. The necessity to combat the menace of demand for dowry or to prevent atrocities on women and like social evils as well as the necessity to maintain the purity of social conscience cannot be determinative of the quantum of sentence inasmuch as the said parameters would be common to all offences under Section 304-B of the Penal Code. The above, therefore, cannot be elevated to the status of acceptable jurisprudential principles to act as a rational basis for awarding varying degrees of punishment on a case to case basis. The search for principles to satisfy the crime test in an offence under Section 304-B of the Penal Code must, therefore, lie elsewhere. Perhaps, the time spent between marriage and the death of the woman; the attitude and conduct of the accused towards the victim before her death; the extent to which the demand for dowry was persisted with and the manner and circumstances of commission of the cruelty would be a surer basis for determination of the crime test. Coupled with the above, the fact whether the accused was also charged with the offence under Section 302 of the Penal Code and the basis of his acquittal of the said charge would be another very relevant circumstance. As against this the extenuating/mitigating circumstances which would determine the "criminal test" must be allowed to have a full play. The aforesaid two sets of circumstances being mutually irreconcilable cannot be arranged in the form of a balance sheet as observed in Sangeet (supra) but it is the cumulative effect of the two sets of different circumstances that has to be kept in mind while rendering the sentencing decision. This, according to us, would be the correct approach while dealing with the question of sentence so far as the offence under Section 304-B of the Penal Code is concerned."

We may also notice that in the case of Sunil Dutt Sharma (supra), while reducing the sentence, it was noted that wife of Sunil Dutt Sharma died due to asphyxia, resulting from strangulation.

Furthermore, in the case of Hari Om v. State of Haryana and Another [Cr. Appeal No. 1167/2011 decided on 31.10.2014], the Hon''ble Apex Court considering question of sentence for offence under Section 304-B IPC, took note of case law on this question, and after considering various judgments of Hon''ble Apex Court, held as under:--

"22. In the case of Hem Chand Vs. State of Haryana, AIR 1995 SC 120 : (1995) 1 DMC 86 : (1994) 6 JT 475(1) : (1994) 4 SCALE 401(1) : (1994) 6 SCC 727 : (1994) 4 SCR 295 Supp , the courts below had awarded life term to the accused under Section 304-B read with Section 498-A but this Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. This Court held as under:

"7........the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.

Hence, we are of the view that a sentence of 10 years'' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years'' RI...."

xxx xxx xxx xxx

xxx xxx xxx xxx

Applying the principle of law laid down in the aforementioned cases and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that the ends of justice would meet, if we reduce the sentence of the appellant from life imprisonment to that of 10 years. In our view, this case does not fall in the category of a "rare case" as envisaged by this Court so as to award to the appellant the life imprisonment. That apart, we also notice that while awarding life imprisonment, the courts below did not assign any reasons."

Having noted the principles of law governing sentencing, Their Lordships held that since in the case of Sunil Dutt Sharma (supra) death was due to strangulation, it was appropriate to award sentence of ten years to the appellant in that case under Section 304-B IPC as same shall serve ends of justice."

We find no reason to deviate from the reasonings propounded in the case of Puran (supra).

Consequently, borrowing the dictum of law laid down in the case of Puran (supra), wherein reliance was placed upon the judgments of the Hon''ble Apex Court rendered in Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), (2013) 10 AD 541 : (2013) 3 DMC 497 : (2013) 4 JCC 2718 : (2013) 13 JT 320 : (2013) 4 RCR(Criminal) 694 : (2013) 12 SCALE 473 : (2014) 4 SCC 375 : (2014) 2 SCJ 578 and Hariom v. State of Haryana and another, (Criminal Appeal No. 1167/2011), decided on 31.10.2014, we set aside the sentence of life imprisonment awarded upon appellant, Surjaram, under Section 304-B I.P.C. and reduce the same to ten-years'' rigorous imprisonment. However, we maintain the sentence of fine and the default clause.

We also maintain conviction and sentence of the appellant, Surjaram for offence under Section 201 I.P.C. The sentence awarded on this count shall run concurrently with the reduced sentence under Section 304-B I.P.C.

Counsel appearing for the accused-appellants has informed us that appellant, Begaram, father-in-law of deceased, who has been awarded maximum imprisonment of two-years for offences under Sections 498-A and 201 I.P.C., has undergone actual sentence of six months and the appellant, Smt. Bidami, mother-in-law has undergone actual sentence of five- months.

Considering the fact that occurrence, in the present case, had taken place in the month of February, 2007, the period of eight-years had already elapsed, the appellants, Begaram & Smt. Bidami had already suffered pain & agony of protracted trial; and furthermore, in statement recorded under Section 313 Cr.P.C. on 27.01.2009, the age of appellant, Begaram was recorded as sixty-five years and the age of appellant, Smt. Bidami on the said date while recording statement under Section 313 Cr.P.C. was recorded as sixty-two years, we are of the view that considering the age, the relationship, antecedents and the sufferance of protracted trial, the sentence awarded upon appellants, Begaram and Smt. Bidami for offences punishable under Sections 498-A and 201 I.P.C. can be reduced from two-years to the period already undergone by them.

Thus, we reduce sentence of Begaram and Smt. Bidami under Sections 498-A and 201 I.P.C. to the period already undergone by them, while maintaining sentence of fine and default clause.

With the above modification in the sentence, qua each appellants while maintaining the conviction of the appellants, we dispose of the present appeal.