Mehndi Hasan vs State of U.P.

Surendra Vikram Singh Rathore, J.—Heard learned counsel for the appellant, learned A.G.A. for the State and perused the lower court record.

Under challenge in this appeal is the judgment and order dated 20.10.2003 passed by the learned Additional Sessions Judge/Fast Track Court No. 3, Hardoi in Sessions Trial No. 701 of 2000 arising out of Case Crime No. 232 of 2000, Police Station Sandila, District Hardoi whereby appellant Mehndi Hasan was convicted for the offence under Section 498-A & 304-B I.P.C. and Section 4 of the Dowry Prohibition Act. For the offence under Section 304-B I.P.C. the appellant was sentenced with imprisonment for life, for the offence under Section 498-A I.P.C. he was sentenced with rigorous imprisonment for a period of one year and also with fine of Rs. 5,000/- with default stipulation of three months additional imprisonment. For the offence under Section 4 of the Dowry Prohibition Act, he was further sentenced with imprisonment for a period of one year and also with fine of Rs. 10,000/- with default stipulation of three months additional imprisonment. All the sentences were directed to run concurrently.

The other accused persons, who took their trial along with the present appellant, namely, Arji Hasan, Raees Ahmad and Raeesunnisha were acquitted of the charges levelled against them. Admittedly no appeal has been preferred challenging the acquittal of co-accused persons.

In brief the case of the prosecution was that complainant Yaseen Mohammad lodged an F.I.R. at Police Station Sandila alleging therein that his daughter Mausminisha was married with appellant Mahndi Hasan about two years ago. After the marriage, there was demand of motorcycle and TV by the appellant and for the aforesaid reason she was treated with cruelty and she was also beaten to pressurize the demand of dowry. The complainant several times made effort to pacify the appellant and told him that he is not in a position to give TV and motorcycle. But it made no effect on the appellant. On 5.8.2000 the complainant got an information that the appellant and other accused persons, who were acquitted by the same judgment, have caused the death of the appellant by giving blows of kicks, fists and danda. The dead body of his daughter is kept in the house. Accordingly F.I.R. was registered.

On this report, the police came into action and went to the place of occurrence and the dead body of the deceased was found at the house of the appellant under the Chhappar. Inquest proceedings were conducted and the dead body was sent for postmortem, which was conducted on 7.8.2000 at District Hospital, Hardoi. In the postmortem following ante mortem injuries were reported by the doctor:--

(i) Contusion 2 c.m. x 8 c.m. right side of back from angle of scapula.

(ii) Contusion 25 c.m. x 18 c.m. on left side of back near the part of auxiliary level.

(iii) Contusion 14 c.m. x 9 c.m. on left thigh outer side.

(iv) Contusion 12 c.m. x 6 c.m. 3 c.m. below to wound No. (iii).

(v) Contusion right arm 11 c.m. x 4 c.m., 6 c.m. below left elbow joint.

(vi) Contusion 22 c.m. x 16 c.m. right side on back scapular region to lower back.

(vii) Contusion in front of neck 9 c.m. x 2 c.m. and 2 c.m. from chin."

In the opinion of the doctor, the cause of death was asphyxia caused by ante mortem wounds over the body and neck. The place of occurrence was inspected and after completing the investigation, charge sheet was filed.

The case of the defence was that dacoity had taken place in the house and in the said dacoity, the deceased sustained injuries.

In order to prove its case, the prosecution has examined PW-1 Yaseen Mohammad, PW-2 Aashima, PW-3 Smt. Shakura, grand mother of the deceased. PW-4 Dr. Prabhat Kumar, who had conducted postmortem on the body of the deceased. PW-5 Khanzar Lal Verma, who has prepared the chik report and G.D. of this case. PW-6 Aashima. PW-7 S.I. Vijay Narayan Singh, Investigating Officer of this case.

In defence one Raheem Baksh was examined, who has stated that on the date of occurrence, appellant Mehndi Hasan was not present in the house, and some miscreants had entered into the house who committed dacoity and there was no demand of dowry from the side of appellant.

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

Learned counsel for the appellant has submitted that he does not intend to press this appeal on merits as the evidence to prove the case against the appellant was sufficient. He has restricted his argument only on the point of sentence. It is further submitted that the trial court has awarded a very harsh punishment of imprisonment for life. It is further submitted that under Section 304-B I.P.C. the minimum sentence provided for the offence is seven years, and in rare cases, extreme penalty of imprisonment for life ought to have been inflicted. He has further submitted that the appellant is continuously in jail from the date of his arrest and therefore, his sentence may be reduced to the period already undergone by him i.e. more than 14 years.

Learned A.G.A. has submitted that awarding of sentence is the discretion of the Court.

Though learned counsel for the appellant has not pressed the appeal on merits but being the court of first appeal, we have gone through the lower court record, perused the evidence and also impugned judgment. Admittedly the marriage of the deceased was solemnized two years prior to her death. she died an unnatural death which stands established by the postmortem report. There is sufficient evidence on record to hold that there was demand of dowry and consequential ill treatment and cruelty with the deceased. The postmortem injuries also established that soon before her death she was subjected to cruelty. The appellant is the husband of the deceased. Learned trial court has rightly rejected the defence theory of dacoity.

After going through the evidence on record, we are of the considered view that the trial court has correctly appreciated the prosecution evidence and has rightly convicted the appellant. We are of the considered view that the conviction of the appellant recorded by the trial court needs no interference.

Now the only point to be considered is whether sentence inflicted by the trial court was reasonable or it was on the higher side. Section 304-B I.P.C. provides minimum sentence of seven years, which may extend upto imprisonment for life.

On the point of sentence, in case under Section 304-B I.P.C., Hon''ble the Apex Court in the case of Hem Chand Vs. State of Haryana, , 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 Vs. State of Karnataka, 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 Hem Chand Vs. State of Haryana, 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.

In Hazara Singh Vs. Raj Kumar and Others, " Hon''ble Apex Curt had held that :

"It is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."

"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."

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 Vs. State of Haryana, . 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 ."

In the instant case, the appellant was aged about 26 years in the year 2003 when his statement under Section 313 Cr.P.C. was recorded. So at present appellant would be aged about 38 years and he has remained in custody for a long period. Apart from it, no deadly weapon appears to have been used to cause the death.

Keeping in view the facts of the instant case and particularly the injuries sustained by the deceased, pronouncement of Hon''ble Apex Court and the cause of her death, we are of the considered view that sentence of 14 years would be adequate for this offence.

In view of the discussion made above, this appeal deserves to be partly allowed only on the point of sentence.

The appeal is partly allowed. The conviction of the appellant 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 to the period of 14 years. 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 appellant is in custody. He shall be released after serving out his sentence modified by this Court. The period already undergone by him in this case shall be set off in his 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.