Jai Prakash Misra and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Since all the aforementioned three criminal appeals arise out of the same judgment, hence all these appeals are being disposed of together.

It is a case of dowry death. Criminal Appeal No. 2574 of 2008 has been preferred by Jai Prakash Mishra, who happens to be husband of the deceased, Criminal Appeal No. 2442 of 2008 has been preferred by Om Prakash Mishra and Smt. Urmila Devi, who happen to be Jeth and Jethani of the deceased respectively and Criminal Appeal No. 2576 of 2008 has been preferred by Ram Naresh Mishra and Smt. Sushma Devi alias Kathiyaien, who happen to be father in law and mother in law of the deceased respectively.

Heard Mr. Abdul Rafey Siddiqui, learned counsel for the appellants, Mr. Umesh Verma, learned A.G.A. for the State and perused the lower court record.

All the aforesaid three criminal appeals arise out of a common judgment and order dated 25.9.2008 passed by learned Additional Sessions Judge, Court No. 2 Faizabad in Sessions Trial No. 60 of 2007 arising out of Case Crime No. 360 of 2006, Police Station Kumarganj, District Faizabad whereby all the appellants were convicted and sentenced as under:--

"(i) Under Section 304-B I.P.C. -Imprisonment for life and fine of Rs. 1,000/- each, with default stipulation of two years rigorous imprisonment.

(ii) Under Section 498-A I.P.C. - one year rigorous imprisonment and fine of Rs. 500/- each, with default stipulation of six months additional rigorous imprisonment.

(iii) 4 of the Dowry Prohibition Act one year rigorous imprisonment and also with fine of Rs. 5,00/- each with default stipulation of six months additional rigorous imprisonment."

In brief the facts of the instant case are that there was demand of dowry due to which Seema (deceased) was being treated with cruelty. On 13.9.2006 Om Prakash Mishra gave an information on phone to Jagdev Prasad Mishra, who happens to be father of the deceased, who was working in Surat (Gujarat) that his daughter Seema''s condition is critical as she has suffered snake bite. On this information, family members of the deceased came to his village. Since the complainant side had some suspicion, therefore, Virendra Prasad Mishra gave an application at the police station on 14.9.2006, which was entered into G.D. at 15:05 hours, stating therein that Seema had died under suspicious circumstances and made a request for postmortem.

On this information, inquest proceedings were conducted and no apparent injury was found on the body of the deceased. After completing the necessary formalities, the dead body was sent for postmortem, which was conducted on 15.9.2006 at 3:30 p.m. As per postmortem report, the duration of death was found about two days and following ante mortem injuries were noted by the doctor on her person:--

"(i) Contusion over scalp 8 cm x 6 cm over right tempo parietal area just above right ear, right temporal bone fractured. Haematoma on scalp was present.

(ii) Contusion over front of neck 6 cm x 3 cm in size transversely situated across mid-line over thyroid cartilage."

In the opinion of the doctor, the cause of death was asphyxia as a result of ante mortem strangulation.

Thereafter F.I.R. of this case was lodged by complainant Kamla Prasad Mishra, which was registered on 17.9.2006, alleging therein that daughter of his younger brother Jagdev Prasad Mishra, who works in Surat was married with Jai Prakash Mishra. Dowry demands settled in marriage were fulfilled by them but inspite of that at the occasion of Khichadi ceremony, husband Jai Prakash Mishra, his elder brother Om Prakash Mishra, his father Ram Naresh Mishra made a demand of TVS Suzuki Motorcycle, which was not settled earlier. Inspite of that, the complainant side said that after managing finance, they shall also give motorcycle. Gauna ceremony took place on 15.12.2005. As the finances could not be managed, so motorcycle could not be given. When the complainant and others went for the Vida of Seema (deceased) to the house of appellants then mother in law and Jethani of the deceased asked them why gold chain and ring has not been given to them. However, the complainant side pacified them by providing gold chain and ring from the Jewelry of the deceased but motorcycle could not be managed due to which cruelty with her continued. Seema gave information of such cruel behaviour on phone and the information was also given to the father of the deceased. They all decided that soon they will arrange money for motorcycle and shall fulfill their demand. When the complainant side requested for the Vida of Seema on the occasion of Rakshabandhan then the father in law of Seema said that unless and until they get the motorcycle, deceased shall not be sent to her Mayka and the complainant was not even permitted to meet the deceased. Seema also informed him that her husband Jai Prakash Mishra was annoyed and has gone to Delhi wherefrom he was threatening her on phone to press the demand of motorcycle. On 13.9.2006 at about 7:15 p.m. Om Prakash Mishra gave information to Jagdev Mishra in Surat that Seema''s condition became serious due to snake bite and she died. Jagdev Mishra gave this information to the complainant. Thereafter the complainant side came to in-laws house of her daughter where the dead body was lying on the door but there was no sign of any snake bite on the body of the deceased. The accused persons made an effort to dispose of the dead body immediately but before the dead body could be disposed of, the police of Police Station Kumarganj reached there on the information of younger brother of deceased namely, Virendra Prasad Mishra as he was suspecting the cause of death of her sister. Inquest was conducted and dead body was sent for postmortem. After postmortem, brother of deceased''s father lodged the F.I.R. On the basis of this F.I.R., the case was registered at Case Crime No. 360 of 2006 against all the five accused persons. The place where the dead body of the deceased was found and where the appellants wanted to dispose of the dead body were also inspected and its site plan was prepared.

After completing the investigation, charge sheet was filed against all the accused persons.

The defence of the appellants as stated by them was that they have been falsely implicated and they asserted that the deceased died due to snake bite. In their statement recorded under Section 313 Cr.P.C., the date of marriage and Gauna were admitted. However, the demand of motorcycle was denied and it was stated that since Pattidar of the appellants are on inimical terms, therefore, on their instigation, they have been falsely implicated and the witnesses are giving false evidence. Om Prakash Mishra pleaded that he lives separately in a different house along with his wife. His wife was pregnant and gave birth to a male child on 10.9.2006 in Nursing Home and after getting information of this incident, he got his wife discharged from the Nursing Home on 13.9.2006, she was sent to her Mayka and he himself came to the house.

In order to prove its case, prosecution has examined PW-1 Kamla Prasad Mishra, complainant of this case. PW-2 Jagdev Prasad Mishra, father of the deceased. PW-3 Constable Pradeep Kumar, who has proved the chik report and G.D. of this case. PW-4 Dr. Ghanshyam Singh, who has conducted postmortem on the body of the deceased on 15.9.2006 at 3:30 p.m. PW-5 C.O. Rakesh Pratap Singh, Investigating Officer of this case. PW-6 Ram Shankar Verma, Naib Tehsildar, under whose supervision inquest proceedings were conducted by Muneer Ahmad. PW-7 Head Constable Uma Kant Dixit, who has proved G.D. Prepared by Sher Bahadur Singh, as secondary evidence.

In defence DW-1 Dr. Mahesh Kumar Rao, has been examined who has given evidence on the point that appellant Urmila was admitted in his hospital and she gave birth to a male child on 10.9.2006 and she was discharged at 9:00 a.m. on 13.9.2006. DW-2 Amarnath Yadav has been examined, who has stated that at the time of incident Jai Prakash Mishra was in service in Delhi. His wife died due to burn injuries. At the time of incident, he was not present in the village and came to the village after 3 - 4 days of the incident. He has also given evidence regarding separate living of Om Prakash Mishra along with his wife.

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

Submission of learned counsel for the appellants was that the trial court has not properly appreciated the evidence on record. There was specific defence that appellant Jai Prakash Mishra was in service in Delhi and appellants Om Prakash Mishra and Smt. Urmila Devi were living separately and the fact that appellant Urmila Devi gave birth to a male child was also disbelieved by the trial court without any reason. It has also been argued that allegation of demand of motorcycle was wrong but the trial court has not considered all these aspects in correct perspective, which has rendered its judgment unsustainable under law.

Learned A.G.A. has submitted that case of the prosecution stands proved by the evidence of the witnesses. The trial court has rightly convicted the appellants and their conviction needs no interference.

Before proceeding further in the matter, we would like to consider the medical evidence. The appellants have come with a definite case that the deceased died because of snake bite. Even in their statement recorded under Section 313 Cr.P.C., they have asserted that the cause of death of the deceased was snake bite. In the postmortem report, PW-4 Dr. Ghanshyam Singh has reported the cause of death to be asphyxia as a result of strangulation. Nowhere on the body of the deceased any mark or any sign of snake bite was found. Even no question was put to this witness that the death of the deceased could have been the result of snake bite or any mark or symptom of snake bite was found by this witness in the dead body. So the appellants had come with an absolutely false defence that the deceased died because of snake bite. A false defence also works as an additional circumstance against the accused.

Before proceeding further we would like to discuss the necessary ingredients to constitute an offence under Section 304-B IPC. Hon''ble Apex Court in the case of Rajinder Singh V. State of Punjab reported in , (2015) 6 SCC 477 has held in para 9 which is being reproduced as under:--

"9. The ingredients of the offence under Section 304-B IPC have been stated and restated in many judgments. There are four such ingredients and they are said to be:

(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;

(b) such death must have occurred within seven years of her marriage;

(c) Soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(d) such cruelty or harassment must be in connection with the demand for dowry."

Hon''ble Apex Court in the case of Ashok Kumar V. State of Haryana reported in , (2010) 12 SCC 350 has held in para 24 which is being reproduced as under:--

"Of course, deemed fiction would introduce a rebuttable presumption and the husband and his relatives may, by leading their defence and proving that the ingredients of Section 304B were not satisfied, rebut the same. While referring to raising of presumption under Section 304B of the Code, this Court, in the case of Kaliyaperumal v. State of Tamil Nadu reported in , (2004) 9 SCC 157, stated the following ingredients which should be satisfied:

1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC).

2) The woman was subjected to cruelty or harassment by her husband or his relatives.

3) Such cruelty or harassment was for, or in connection with, any demand for dowry.

4) Such cruelty or harassment was soon before her death."

Law is settled on the point that in case the prosecution succeeds to prove that the deceased died an unnatural death within 7 years of her marriage and there was demand of dowry and consequential ill treatment and soon before her death she was subjected to cruelty in connection with demand of dowry then presumption shall be raised against the family members that they have committed her dowry death by virtue of Section 113-B of the Indian Evidence Act.

On this point reference may be made to the pronouncement of Hon''ble Apex Court in the case of Suresh Kumar V. State of Haryana reported in , (2013) 16 SCC 353 wherein Hon''ble the Apex Court has observed in paragraphs Nos. 30 and 46 which is being reproduced as under:--

"30. That the presumption under Section 113B of the Act is mandatory may be contrasted with Section 113A of the Act which was introduced contemporaneously. Section 113A of the Act, dealing with abetment to suicide, uses the expression "may presume". This being the position, a two-stage process is required to be followed in respect of an offence punishable under Section 304B of the Indian Penal Code: it is necessary to first ascertain whether the ingredients of the Section have been made out against the accused; if the ingredients are made out, then the accused is deemed to have caused the death of the woman but is entitled to rebut the statutory presumption of having caused a dowry death."

Section 113B of the Evidence Act introduces a reverse onus, which is to say that though it is ordinarily for the prosecution to prove its case beyond a reasonable doubt, but when a reverse onus is introduced, it is for the accused to refute the case of the prosecution and prove his innocence."

When we go through the evidence of prosecution witnesses then we found that PW-1 and PW-2, both have fully supported the allegation of demand of dowry. Perusal of the record shows that the prosecution made absolutely no effort to name any accused when they suspected the cause of death of Smt. Seema nor they lodged any F.I.R. at that time. They only informed the police that the cause of death appears to be suspicious, therefore postmortem may be conducted. So this approach of the complainant side shows that there was absolutely no intention to falsely implicate any person and before lodging the F.I.R., they wanted to assure whether the death of Smt. Seema was the result of snake bite or she died because of any other reason. It was only after postmortem, the F.I.R. was lodged. The point of delay in F.I.R. has been considered by the trial court and has rightly been discarded We agree with reasoning given by the trial court for holding that the delay in F.I.R. was not material in the peculiar facts of this case and also does not adversely affect the case of the prosecution. All the appellants have admitted the date of marriage and Gauna. The date of death of the deceased stands established by the postmortem. So she died an unnatural death within seven years of marriage. Both the witnesses have fully supported the allegation of demand of motorcycle in dowry and consequential ill treatment. Even in the F.I.R., it was mentioned that because of non-fulfillment of the demand of motorcycle in dowry, her husband became annoyed and went to Delhi where-from he was threatening the deceased on phone. At this juncture, we will have to consider the plea of alibi taken by appellant Jai Prakash Mishra, who happens to be the husband of the deceased. A plea of alibi is a general exception and the person, who takes such a plea, burden lies on him to prove it. In order to prove this plea of alibi, DW-2 Amarnath Yadav has been examined and his evidence is not of any held to appellant Jai Prakash Mishra. This defence witness has stated that he was not present in the village at the time of incident and he came back to his village after 3-4 days of the incident. So he was not in a position to tell whether the appellant was present in the village on the date of incident or not. No effort has been made to produce any witness of Delhi with whom appellant Jai Prakash was working in Delhi. The evidence adduced in support of his plea of alibi does not rule out his presence at the seen of occurrence.

Now the next point to be considered is whether soon before her death, she was subjected to cruelty in connection with the demand of dowry. It has come in evidence that the deceased was being treated with cruelty due to non-fulfillment of demand of motorcycle in dowry. Injury No. (i) on the body of the deceased, which fractured her temporal bone establishes that soon before her death, she was subjected to cruelty in connection with demand of dowry. So all the ingredients to draw the presumption under Section 113-B of the Indian Evidence Act were present. Husband and parents in law of the deceased have absolutely failed to rebut the said presumption. The evidence to rebut the said presumption has been adduced on behalf of appellant Om Prakash Mishra and his wife Smt. Urmila. The evidence of DW-2 Amarnath shows that after the partition, appellant Om Prakash Mishra was living with his wife in a separate house in the same village. In cross examination, a question was put to this witness by the public prosecutor that apart from these two persons remaining appellants lived together. This question was replied in affirmative by this defence witness. So this reply of defence witness shows that Om Prakash Mishra and Smt. Urmila Devi were living separately while the remaining three appellants were living together. Apart from it, DW-1 Dr. Mahesh Kumar Rao has stated that appellant Smt. Urmila Devi gave birth to a male child on 10.9.2006 and she was discharged from the hospital on 13.9.2006. So a lady, who has given birth few days ago would not be in a position to join hands in such an offence particularly when she was living in a separate house with her husband. Apart from it, the demand of motorcycle would not have benefited them in any manner. So the case of appellants Om Prakash Mishra and Smt. Urmila Devi becomes distinguishable from the remaining appellants and they become entitled for benefit of doubt. Therefore, Criminal Appeal No. 2442 of 2008 deserves to be allowed.

So far as the remaining appellants are concerned, they have utterly failed to rebut the presumption raised against them under Section 113-B of the Indian Evidence Act. All the ingredients to constitute the offence under Section 304-B I.P.C. were proved by the prosecution. So their appeals have no force and deserve to be dismissed.

Now the question of sentence comes before us for the offence under Section 304-B I.P.C. The minimum sentence provided under law is seven years rigorous imprisonment, which may extend to imprisonment for life. So a very vast discretion has been given to the court in inflicting appropriate sentence which depends on facts and circumstances of each case. So in cases of extreme brutality, maximum punishment of imprisonment for life ought to have been inflicted.

Now we will have to consider the law on the point of sentence to be inflicted in cases under Section 304-BI.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."

In the said case, Hon''ble the Apex Court has reduced the sentence of husband V.K. Mishra from imprisonment for life to imprisonment for a period of ten years.

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 facts and circumstances of the case, and the aforementioned legal position, we are of the considered view that a sentence of 10 years would be adequate for the offence under Section 304-B I.P.C for appellant Jai Prakash Mishra (husband). Strangulation could have been caused by husband as he was a young man. His parents are old persons aged about sixty years.

Keeping in view the fact that appellant Smt. Sushma Devi alias Kathiyaien in Criminal Appeal No. 2576 of 2008 was a lady aged about 60 years at the time of incident, we consider that sentence of seven years would be adequate sentence for her. So far as appellant Ram Naresh Mishra, father in law of the deceased in Criminal Appeal No. 2576 of 2008 and appellant Jai Prakash Mishra in Criminal Appeal No. 2574 of 2008 are concerned, in our considered view, sentence of ten years rigorous imprisonment would be adequate and would meet the ends of justice. Therefore, Criminal Appeal No. 2576 of 2008 and 2574 of 2008 deserve to be partly allowed and are hereby partly allowed.

In view of the discussion made above, Criminal Appeal No. 2442 of 2008 filed by appellants Om Prakash Mishra and Smt. Urmila Devi deserves to be allowed and is hereby allowed. They are acquitted of the charges levelled against them. Appellant Smt. Urmila Devi is on bail. Her bail bond is cancelled and sureties discharged. Appellant Om Prakash Mishra is in jail. He shall be released forthwith, if not wanted in any other case. Criminal Appeal No. 2576 of 2008 filed by Ram Naresh Mishra and Smt. Sushma Devi alias Kathiyaien and Criminal Appeal No. 2574 of 2008 filed by Jai Prakash Mishra are hereby partly allowed.

The conviction of the appellants recorded by the trial court for the offence under Section 304-B & 498-A I.P.C. and Section 4 of the Dowry Prohibition Act is hereby confirmed but no separate sentence is being passed for the offence under Section 498-A I.P.C. However, the sentence awarded for the offence under Section 304-B I.P.C. is hereby modified from imprisonment for life to rigorous imprisonment for a period of 10 years for appellants Ram Naresh Mishra and Jai Prakash Mishra. Sentence awarded for the offence under Section 304-B I.P.C. to Sushma Devi is also hereby modified from imprisonment for life to rigorous imprisonment for a period of seven years. Appellant Smt. Sushma Devi alias Kathiyaien in Criminal Appeal No. 2576 of 2008 is on bail. She shall be taken into custody forthwith to serve out her sentence as modified by this Court. Sentence awarded by the trial court for the offence under Section 4 of the Dowry Prohibition Act is also hereby confirmed. Both the sentences shall run concurrently.

The appellants Ram Naresh Mishra and Jai Prakash Mishra are in jail. They shall serve out their sentence as modified by this Court.

The period of detention already undergone by them in the instant case shall be set off in their substantive sentence in accordance with the provisions of Section 428 Cr.P.C.

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