Prakash vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Prakash s/o Bhimsingh has instituted the present appeal in order to assail the judgment dated 23rd September, 2008, rendered by The Special Judge (Women Atrocities and Dowry Cases), Jaipur City, Jaipur whereby the appellant was convicted for offences under Sections 498A and 304B IPC. Having convicted the appellant for the above said offences, the trial Judge, by a separate order of even date, sentenced the appellant for offence under Section 498A IPC to three years of rigorous imprisonment and to pay a fine of Rs. 1000/-, and in default thereof, to undergo one month of rigorous imprisonment. For the offence under Section 304B IPC, the appellant was sentenced to life imprisonment. It is further ordered by the trial Judge that the appellant shall pay Rs. 1,00,000/- to Manglaram who lost his daughter, Sunita.

The trial Court ordered that both the sentences awarded on two counts shall run concurrently.

In the present case, written complaint (Ex.P/5) was submitted by Mohan Lal (P.W.10). In the written complaint, he stated that his sister, Sunita was aged 20 years. On 19th May, 2000 she was married with Prakash son of Bhim Singh, caste Harijan, resident of Valmiki Colony, Malviya Nagar. For last few months, Sunita was staying in the house of her in-laws. On 10th April, 2004, his younger brother Bhanwar Lal (P.W.9) came to bring his sister to the parental house. Sunita disclosed to Bhanwar Lal that the accused Prakash, after consuming liquor, used to beat her. She further requested her brother to take her along, and further stated that for not bringing adequate gold and silver, she has been ill-treated, and the husband used to beat her. On day of the occurrence, son of paternal aunt (bhua), Anup Kumar informed the complainant that his sister has died. Complainant Mohan Lal (P.W.10) came to Malviya Nagar and found that the bangle of right hand of his sister was broken, and only two bangles were intact whereas all other bangles on the other hand were there. Blood had dried near her nose. Her yellow colour petticoat was also having stains of blood from which, it was inferred by the complainant that his sister was killed. Earlier, the sister of the complainant was residing with her parents. Only two months before, Narbada, the mother of the accused, Prakash had brought his sister on her own responsibility from Village Kalak to Malviya Nagar, Jaipur. The complainant suspected that his sister had been killed. He further stated that Bhimsingh and Narbada were also involved in the conspiracy. He prayed for taking action against the accused.

On the basis of the written complaint (Ex.P/5), formal FIR (Ex.P/6) bearing FIR No. 304/2004, was registered at Police Station Malviya Nagar, Jaipur for offences under Sections 498A and 304B IPC.

The above said FIR was investigated; the report under Section 173 Cr.P.C. was submitted; the same alongwith the accused was committed to the Court of Sessions; the same was entrusted for trial to the Special Judge (Women Atrocities and Dowry Cases), Jaipur City, Jaipur.

The first charge stated that appellant in his residential house No. 53/5, Valmiki Colony, Harijan Kachi Basti, Malviya Nagar, Jaipur, being husband, within four years of marriage had harassed and maltreated his wife on account of demand of dowry. Thus, he committed an offence under Section 498A.

The second charge stated that on 12th May, 2004 at 11.30 A.M., within four years of marriage, Sunita died an unnatural death due to asphyxia and soon before her death, accused had harassed and subjected his wife to cruelty on account of dowry. Thus, he committed an offence under Section 304B IPC.

The appellant pleaded not guilty and claimed trial.

Manglaram (P.W.7), father of the deceased Sunita, Smt. Maina Devi (P.W.8), mother of the deceased, Bhanwar Lal (P.W.9) and Mohan Lal (P.W.10), brothers of the deceased Sunita, Fakir Chand (P.W.12), a relation of the deceased and Pemaram (P.W.6), co-villager of father of the deceased, appeared in witness box and reiterated that Sunita was subjected to harassment, and cruelty on account of demand of dowry, and accused under the influence of liquor used to beat her.

Anup Kumar (P.W.1) son of maternal aunt of Sunita, the deceased, has not supported the prosecution case, and was declared hostile.

Rajesh Singh (P.W.2) being Sub-Divisional Magistrate, Jaipur had prepared the Panchnama/inquest (Ex.P/2).

Dr. Nimita Bharti (P.W.3) was a member of the Board which had conducted the autopsy. She has proved the Post-Mortem-Report (Ex.P/3), and opined that cause of death was asphyxia. She had further found an abrasion on the right hand, and the right forearm near the wrist.

Viscera was sent to the Forensic Science Laboratory. But no poison was detected. This fact was proved by doctor Rakesh Babu Gupta (P.W.4).

Sriram (P.W.5) a Constable stated that he prepared written report (Ex/P/5) and on the basis of same, formal FIR No. 304/2004 (Ex.P/6) was registered.

Narendra Singh (P.W.13) SHO, Police Station, Malviya Nagar stated that after registration of the case, he had called the SDM to conduct the inquest proceedings.

Smt. Shashikanta Joshi (P.W.14) being Investigating Officer, has proved various facet of the investigation.

Dr. Atul Kumar (P.W.15) was a member of the Board which had conducted autopsy on the dead body of the deceased on 12th May, 2004. This witness stated that there was an abrasion on the left side of the nose. Neck and face of deceased were congested; nails and lips of the deceased were cyanosed; blood and froth was coming from the mouth, her eyes were congested, pupils were also dilated, membrane and brain were also congested.

Taking the above parameters, the Board opined that the cause of death was asphyxia.

Thereafter, statement of the accused under Section 313 Cr.P.C. recorded. All incriminating evidence was put to him. He denied the same, and pleaded innocence, and false implication. He stated that his wife was suffering from undiagnosed ailments.

Moolchand, a neighbour of the father of the accused, appeared as D.W.1. He stated that Sunita was suffering from asthma and bad cough. She was suffering from respiratory disorder.

To similar affect is the statement made by Ashok Kumar (D.W.2), another neighbour of the father of the appellant.

Bhim Singh (D.W.3), the father of the appellant also stated that Sunita was suffering from asthma and breathing problem.

Accused himself appeared as DW-4. He also deposed regarding Sunita''s respiratory disorder.

We have heard Mr. Shashi Bhusan Gupta, the counsel for the appellant, and Mr. Aladeen Khan, the learned Public Prosecutor.

Mr. Gupta has submitted that the prosecution has failed to prove whether the death was caused by hanging or strangulation. Counsel for the appellant has submitted that it was incumbent for the prosecution to prove whether it is a case of murder, or suicide.

We are not impressed with the argument advanced by the counsel for the appellant. So far as the offence of dowry death, punishable under Section 304B IPC, is concerned the prosecution has only to prove that death of the wife of the accused was in unnatural circumstances. It is also not denied in the present case that Sunita died in her matrimonial home within seven years of marriage. Furthermore, all relations of the deceased i.e. father, mother, uncle, and neighbour have deposed in the Court that the accused used to harass Sunita, his wife, and subject her to cruelty on account of demand of dowry. The presumption against the accused under Section 113-B is available to the prosecution.

Having failed to dislodge the case of the prosecution qua offences under Sections 304B and 498A IPC, Mr. Gupta has prayed for reduction of the sentence and has cited the judgment rendered by us in Prakash Chand Meena v. State of Rajasthan DB Criminal Appeal No. 456/2006 decided on 20th January, 2015. In case of Prakash Chand Meena (supra), we have already relied upon another judgment rendered by us in case of Deen Mohammad @ Murli v. The State of Rajasthan [D.B. Criminal Appeal No. 13/2005], decided by us on 25.11.2014, wherein we had observed 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."

In the case of Prakash Chand Meena (supra) we had further observed as under:--

"Furthermore, in Hari Om''s (supra), 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."

Borrowing the dictum of law laid in Sunil Dutt Sharma''s case (supra) and Hari Om''s case (supra), while upholding conviction of the appellant Prakash s/o Bhim Singh, under Section 498-A and 304-B IPC, we set aside sentence of life imprisonment awarded upon the appellant, and reduce the same to ten years'' R.I. However, we maintain the sentence of fine and the default clause.

In view of modification in the sentence, the present appeal stands disposed of.