Dinesh Kumar vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Sri Alok Singh, learned counsel for the appellant and Sri Chandra Shekhar Pandey, learned Additional Government Advocate were heard.

Under challenge in the instant criminal appeal is the judgment and order dated 31.05.2010 passed by learned Additional Sessions Judge, Court No. 4, Pratapgarh, in Sessions Trial No. 234 of 1997, arising out of Case Crime No. 147 of 1994, Police Station Maheshganj, District Pratapgarh, whereby the appellant Dinesh Kumar was convicted and sentenced as under:

"(a) U/s 304-B IPC - Imprisonment for life.

(b) U/s 498-A IPC - Two years'' rigorous imprisonment with fine of Rs. 10,000/- each with default stipulation of three months additional imprisonment."

The other accused persons namely Shailendra Kumar and Smt. Munni Devi were acquitted of the charges leveled against them.

Both the sentences were directed to run concurrently.

In brief of the case of the prosecution was that the marriage of the appellant was solemnized about five years prior to this incident and as per financial condition of the complainant he had given sufficient dowry in the marriage but inspite of that the appellant and his family members were making demand of a gold chain and a Mohar (old gold coin). Because of the financial constraints this demand could not be fulfilled by the complainant due to which the deceased was being treated with cruelty. On 11.12.1994 at about 2:00 in the night the appellant alongwith co-accused persons who have been acquitted, poured kerosene oil on the deceased and set her ablaze. The complainant got this information of this incident in the following morning that her daughter is not well and she is being taken to Allahabad and on this information the complainant immediately came to the village of the appellant where he came to know that her daughter was lying dead there. On the basis of this information the case was registered and investigation proceeded. After inquest proceedings the dead body of the deceased was sent for postmortem which was conducted on 13.12.1994 at 3:15 p.m. The duration of the death was about three days old.

According to the postmortem report the following injury was noted by the doctor:--

(A) Superficial to deep burn involving whole body except right elbow and right upper arm singing of hairs present. Echomoized and pugilistic attitude, viscera protruding out of abdominal wall while muscles of left thigh and knee were burnt.

After completing the investigation the charge-sheet was filed against the appellant.

The defence of the appellant was of his false implication.

In order to prove its case the prosecution has examined PW-1 Ram Manohar Mishra, father of the deceased, PW-2 Smt. Chamela Devi, mother of the deceased, PW-3 Rajendra Prasad Mishra, brother of the deceased, PW-4 Dr. P.K. Srivastava, who has proved the postmortem report as secondary evidence because the postmortem was conducted by a team of doctors, PW-5 Dr. A.C. Tripathi, who has conducted the postmortem, PW-6 Shiv Nandan Singh, the Investigating Officer of this case, PW-7 M r. K.K. Srivastava, the second Investigating Officer of this case, PW-8 Hari Ram Chaudhary, S.I. who has prepared the chik report and G.D. of this case, PW-9 Awdhesh Singh who has prepared the inquest report of this case, PW-10 Hari Bhajan Singh, C.O. the initial Investigating Officer of this case.

On behalf of the defence DW-1 Badri Prasad was examined. He has stated that no demand was made by the appellant and his family members in the marriage and he has also given evidence on the point of separate living of all the other co-accused persons who were acquitted.

After appreciating the evidence on record, the trial court has convicted the appellant as above. Hence the instant appeal.

Submission of the learned counsel for the appellant was that he does not intend to challenge his conviction and has restricted his arguments only on the point of quantum of sentence only. It is submitted that in such nature of cases the extreme penalty of imprisonment for life ought to be inflicted only in cases of extreme brutality and the present case is not of such nature.

Learned Additional Government Advocate has submitted that the learned trial court has correctly appreciated the evidence of the prosecution and also the evidence of the defence and thereafter has reached the correct conclusion and has convicted the appellant. Therefore, the judgment of the trial court needs no interference.

Though the conviction of the appellant under Sections 498-A and 304-B IPC has not been challenged inspite of that we have gone through the evidence on record. All the family members of the deceased have supported the case of the prosecution. Admittedly, the deceased was wife of appellant and she has died an unnatural death that stands proved by her postmortem report. There is specific evidence of the eye witnesses that the deceased was subjected to cruelty soon before her death. Admittedly she died in less than 7 years after her marriage. Thus all the ingredients to constitute an offence of dowry death stands proved against the appellant. So learned trial court has not committed any illegality in convicting the appellant.

Now only point that remains to be considered is the question of sentence. Learned trial court has awarded the maximum penalty of imprisonment for life for the offence under Section 304-B IPC. The minimum sentence provided under the Act for the offence of dowry death is seven years and the same may extend upto life imprisonment. So a vast discretion has been given to the Court to award appropriate sentence. Hence, the appropriate sentence has to be decided on the basis of the facts and circumstances of each case.

On the point of sentence, in a case 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 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."

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.

The trial court has also awarded sentence for the offence under Section 498-A IPC but the offence under Section 498-A IPC is included in the offence under Section 304-B IPC. So there was no need to pass separate sentence under Section 498-A IPC. 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 line of paragraphs 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 IPC in view of the substantive sentence being awarded for the major offence under Section 304-B IPC."

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 IPC.

Accordingly this appeal deserves to be partly allowed and is hereby partly allowed. Conviction of the appellant under Section 304-B and 498-A IPC is hereby confirmed. However, sentence of imprisonment for life is for the offence under Section 304-B IPC is hereby reduced from imprisonment for life to a period of ten years. No separate sentence is being awarded for the offence under Section 498-A IPC. Appellant Dinesh Kumar is in custody. He shall serve out his sentence as modified by this Court.

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