Neeraj and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—As per prosecution case, on 5th of December, 2005, Seema, the daughter of complainant, namely Shiv Lal (PW-1) was married with Neeraj son of Ganpat Lal (appellant No. 1 herein), resident of Kotkasim, Police Station, Kotkasim, District Alwar, according to the Hindu Customs and Rites.

On 25th of February, 2007, the complainant, namely Shiv Lal (PW-1), being father of deceased, Seema submitted a written-report (Exhibit-P/1) before Superintendent of Police, Alwar.

In the written-report (Exhibit-P/1), the complainant, Shivlal (PW-1) stated that in the marriage, he had given dowry beyond his capacity. A further grievance was made that after marriage, Neeraj got employment in a private factory and thereafter, the family of the in-laws of Seema, which included husband - Neeraj, father-in-law - Ganpat Lal and mother-in-law -Prem Devi were harassing and maltreating Seema and out of greed were demanding dowry. They were pressing the deceased, Seema to bring Rs. 1,00,000/- and gas cylinder along with gas stove.

In the written-report, it was also stated that on 25.02.2007, Neeraj, husband, Prem Devi, mother-in-law and Ganpat, father-in-law with the common intention by causing beating committed murder of Seema. They also committed murder of a quick born child, as Seema was carrying seven-months pregnancy. In the written-report, a belief was expressed that for not giving dowry, Seema has been murdered and thereafter, cremated without informing her parents or relatives.

On the basis of above written-report (Exhibit-P/1), a formal First Information Report (Exhibit-P/2) bearing No. 35/2007 was registered at Police Station, Kotkasim, District Alwar for offences punishable under Sections 304-B and 316 of Indian Penal Code.

The Investigating Agency had sent Neeraj, husband and Smt. Prem Devi, mother-in-law of the deceased for trial.

The Court of Additional District & Sessions Judge (Fast Track), Kishangarhbas, District Alwar charged Neeraj and Smt. Prem Devi for offence punishable under Sections 304-B and 316 of Indian Penal Code.

The first charge stated that on 25.02.2007 within seven-years of marriage died an unnatural death in her matrimonial home due to demand of dowry raised by the accused, thus, the appellants had committed offence under Section 304-B I.P.C.

The second charge stated that in the above circumstances, Seema had died, along with the child and the accused are responsible for the death of a quick born child and, hence, committed offence punishable under Section 316 I.P.C.

The Court of Additional District & Sessions Judge (Fast Track) Kishangarhbas, Alwar, vide its impugned judgment dated 30.05.2008, held the appellants, Neeraj and his mother Smt. Prem Devi to be guilty for offence punishable under Sections 304-B and 316 I.P.C.

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

"For offence under Section 302 I.P.C. the appellants were sentenced to undergo life imprisonment.

For offence under Section 316 I.P.C. the appellants were sentenced to undergo ten-years rigorous imprisonment and to pay a fine of Rs. 10,000/- each. In default of payment of fine to further undergo one year simple imprisonment.

All the sentences were ordered to run concurrently."

Aggrieved against the conviction and sentence, the accused have instituted the present appeal, under Section 374 (2) of Code of Criminal Procedure, 1908, praying inter alia that their conviction and sentence, be set aside, and they be acquitted of the charges leveled against them.

In the present case, Smt. Premdevi, (appellant No. 2 herein), during the pendency of the trial had expired.

A Division Bench of this Court to which one of us (Kanwaljit Singh Ahluwalia, J.) was a Member, on 14.05.2015 had passed the following order:--

"The Court of Additional Sessions Judge (Fast Track), Kishangarhbas District Alwar vide impugned judgment dated 30.05.2008 convicted and sentenced Neeraj S/o. Ganpat and his mother Smt. Prem Devi wife of Ganpat for offence under Section 304-B and 316 IPC.

Shri Rajesh Choudhary appearing for the appellants has placed on record the death certificate of Prem Devi to contend that the present appeal has abated qua appellant No. 2 Prem Devi.

We direct C.J.M. Alwar to hold an enquiry regarding death of Prem Devi wife of Ganpat by caste Jangid - Brahamin R/o Kotkasim District Alwar and submit a report to this Court within a week.

The Deputy Registrar (Judl.) is directed to convey necessary particulars and order of this Court to C.J.M., Alwar.

To await report of C.J.M. Alwar, list on 25.05.2015."

In pursuance of above order, the Chief Judicial Magistrate, Alwar submitted a report.

In the said report, the Chief Judicial Magistrate, Alwar has vouchsafed the fact that Smt. Premdevi died on 17.05.2010.

In view of enquiry held by the Chief Judicial Magistrate, Alwar holding that Smt. Premdevi has expired, the present appeal, qua Smt. Premdevi is disposed of having abated.

In the present case, the prosecution agency, during trial, in all had examined fourteen-witnesses and proved on record thirteen-documents, being Exhibit-P/1 to Exhibit-P/13 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 three-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.

The complainant, Shiv Lal (PW-1), being father of deceased, Seema, has reiterated the same as to what was stated by him in written-report (Exhibit-P/1). He is duly corroborated by his wife Smt. Vidhya Devi, (PW-2), the mother of deceased, Seema.

Girraj Prasad (PW-3) and Niranjan (PW-4), who are stated to be cousin, being sons of uncle (chacha) stated that Seema was married with accused and she was harassed and maltreated by the accused on account of demand of dowry. To similar effect is statement made by Ramniwas (PW-5), (chacha).

Umraosingh (PW-6) and Sunder (PW-7) are neighbourers of the accused. They have turned hostile to the prosecution.

Having perused the statements of other witnesses, we are of the view that the details of their deposition is not required to be narrated in the judgment. However, we are of considered opinion that prosecution has succeeded to prove offence under Section 304-B I.P.C. Seema died within seven-years of marriage in matrimonial home. She was subjected to cruelty, because of demand of dowry. Furthermore, she was cremated without informing her parents and relatives and this fact is sufficient to infer unnatural death.

Mr. Biri Singh Sinsinwar, the learned senior counsel, duly assisted by Mr. J.K. Yogi and Mr. Rajesh Choudhary, the learned counsel appearing for the accused-appellants, has only addressed the argument regarding quantum of sentence.

Counsel appearing for the accused-appellant, Neeraj have submitted that they shall limit their 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-appellant 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...."

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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, Neeraj, under Section 304-B I.P.C. and reduce the same to ten-years'' rigorous imprisonment.

We also maintain the conviction and sentence of the appellant, Neeraj for offence under Section 316 I.P.C. The sentence awarded on this count shall run concurrently with the reduced sentence under Section 304-B I.P.C. However, we maintain sentence of fine and default clause.