Ram Nath Chaubey and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—Since both the aforesaid criminal appeals arise out of a common judgment, hence the same are being disposed of together by a single judgment.

Mr. Abdul Rafee Siddiqui, learned counsel for the appellants, Mr. Sharad Dixit, learned A.G.A. for the State were heard.

Criminal Appeal No. 1139 of 2008 has been preferred by appellant No. 1 Ram Nath Chaubey and appellant No. 2 Smt. Subran Devi while Criminal Appeal No. 1140 of 2008 has been preferred by appellant Durgesh Chaubey.

It is a case of dowry death. The deceased was pregnant at the time of her death. Appellant Durgesh Chaubey happens to be husband of the deceased, appellant Ram Nath Chaubey is the grand father in law of the deceased and appellant Smt. Subran is the mother in law of the deceased. Father in law Satwant Chaubey died during pendency of the trial, hence the case against him was abated.

Under challenge in both the criminal appeals is the judgment and order dated 20.2.2008 passed by learned Additional Sessions Judge/Fast Track Court No. 5, Faizabad in Sessions Trial No. 510 of 2001 arising out of Case Crime No. 394 of 2001, Police Station Pura Kalandar, District Faizabad whereby appellant Durgesh Chaubey was convicted for the offence under Section 304-B I.P.C. and was sentenced with imprisonment for life. However, appellants Ram Nath Chaubey and Smt. Subran was sentenced with rigorous imprisonment for seven years each. All the appellants were convicted for the offence under Section 315 I.P.C. and sentenced with rigorous imprisonment for five years and also with fine of Rs. 1,000/- each. They were further convicted for the offence under Section 498-A I.P.C. and were sentenced to undergo rigorous imprisonment for period of two years each and also with fine of Rs. 1,000/- and for the offence under Section 4 of the Dowry Prohibition Act, they were further convicted and sentenced with one year rigorous imprisonment and also fine of Rs. 1,000/- each. In default of payment of fine amount, all the appellants were directed to undergo additional imprisonment for a period of six months each.

In the instant case, wife of appellant Durgesh Chaubey, namely Smt. Sarita died an unnatural death. Her uncle Vijay Chandra Pandey lodged F.I.R. of this case at 16:15 hours on 14.8.2001 alleging therein that his niece Sarita Pandey was married with Durgesh Chaubey on 29.4.1998. The Gauna ceremony took place on 25.4.1999. Sufficient dowry, as per their financial status, was given in the marriage. It was alleged that in the intervening night of 13/14.8.2001, Smt. Sarita Pandey (deceased) was done to death by setting her ablaze after pouring kerosene oil on her by her husband Durgesh Chaubey, Satwant Chaubey (father in law of deceased) and appellant Smt. Subran Devi. Grand father in law Ram Nath Chaubey was not named in the F.I.R. It was also alleged that there was a demand of Rs. 20,000/- in dowry and in that connection, the deceased was being treated with cruelty. Since the demand was not fulfilled, therefore she was done to death. The complainant got the information of this incident on 14.8.2001 at about 8:00 a.m. Thereafter, he came to in-laws house of the deceased where he came to know that she has been taken to Faizabad Hospital. When he went to Faizabad Hospital, then he came to know that dead body was lying in the mortuary. On the basis of this F.I.R., the case was registered. It is pertinent to mention here that in the F.I.R., father in law of the deceased was an accused but during trial because of his death, the case was abated.

In the F.I.R. appellant Ram Nath Chaubey was not named. During investigation, the complainant moved an application supported by an affidavit, addressed to S.S.P. Faizabad to include the name of Ram Nath Chaubey as an accused, as under the pressure of police, he was asked to delete his name from the F.I.R. Information of the death of deceased Smt. Sarita was given to the police by Ajit, Ward boy of District Hospital, Faizabad at 2:05 hours. On the basis of the said information inquest proceedings were conducted and after completing the necessary formalities, dead body was sent for postmortem. Postmortem on the body of deceased was conducted at District Hospital, Faizabad on 15.8.2001 at 1:15 p.m. The age of the deceased was 18 years.

"There were superficial to deep ante mortem burn injuries all over the body except sole almost 95% - 98%. Blisters were present. A line of redness was present. Axillary and pubic hair were singed."

In the opinion of the doctor, the deceased died due to shock and haemorrhage as a result of ante mortem burn injuries.

After completing the investigation, charge sheet was filed.

The case of the defence as emerged from the statement recorded under Section 313 Cr.P.C. and suggestion given to the witnesses was that they have been falsely implicated and have stated that Pradhan of the village had given information as he was asked to send the information by appellant Durgesh Chaubey that she was taken to hospital where she died. A false report has been lodged against them. It was also pleaded that the deceased was finicky . Her elder sister was married in the neighbourhood. Since she was asked not to frequently visit her elder sister, feeling annoyed thereby she committed suicide by closing herself inside the room. She was taken out after breaking open the door and was admitted to hospital where she after a long treatment, died. It was pleaded by appellant Smt. Subran that she was residing separately in her Mayka and not in the house where the incident is alleged to have taken place.

In order to prove its case, the prosecution has examined, PW-1 complainant Vijay Chandra Pandey, uncle of the deceased and PW-2 Hemendra Kumar Pandey, younger brother of the deceased as witnesses of fact. PW-3 Dr. S.K. Verma, who had conducted postmortem on the body of the deceased. PW-4 R.P. Singh, Investigating Officer of this case, PW-5 S.I. Prem Shankar Shukla, the initial Investigating Officer of this case. PW-6 Ishwar Chandra, S.D.M., who had conducted inquest proceedings. PW-7 Constable Ram Briksh, who has prepared chik report and G.D. of this case.

In defence, Jai Prakash Singh, husband of Village Pradhan, namely, Urmila Singh was examined as DW-1.

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

Submission of learned counsel for the appellant is that so far as the appeal of Durgesh Chaubey is concerned, he does not indent to press his appeal on merits and he has restricted his prayer only on the quantum of sentence. It submitted that it is not a case of extreme brutality in which the maximum sentence of imprisonment for life ought to have been awarded. So far as appellant Ram Nath Chaubey is concerned, it has been argued that appellant Ram Nath Chaubey was not named in the F.I.R. But subsequently the complainant has added his name during investigation, therefore, his nomination as an accused was an after thought and at present appellant Ram Nath Chaubey is aged about 88 years. Even in his statement recorded under Section 313 Cr.P.C., which was recorded in the year 2007, he was aged about 80 years. So such an old man cannot be presumed to make any demand of dowry or to treat the deceased with cruelty in connection with demand of dowry. Regarding appellant Smt. Subran Devi, it has been argued that appellant Smt. Subran Devi got the property in her parental house and in order to look after the said property, she used to live in her parental house and was not residing with the deceased and appellant Durgesh Chaubey. The learned trial court has not considered this aspect in correct perspective, which has rendered its judgment unsustainable under law so far as these two appellant, namely, Ram Nath Chaubey and Smt. Subran are concerned. With regard to Durgesh Chaubey challenge is restricted on the point of sentence alone.

First of all, we will consider the case of appellant Ram Nath Chaubey. He is the grand father in law of the deceased. He was aged about 70 years at the time of incident. There is no dispute to the fact situation that he was not named in the F.I.R., which was a written Tehrir given by the complainant himself. Subsequently the complainant moved an application after about two days of the said F.I.R. alleging therein that under the instructions of S.O. concerned, name of appellant Ram Nath Chaubey was deleted. On this application, charge sheet was filed against appellant Ram Nath Chaubey also. During trial, PW-1 complainant Vijay Chandra Pandey, has stated in his examination in chief that he lodged a report of this incident in Police Station Pura Kalandar and after looking to the F.I.R., he has stated that this is the same F.I.R., which was given by him at Police Station Pura Kalandar and the same has been proved by him. During examination in chief, he has nowhere stated that this report was written under the instructions of S.H.O. concerned, and name of Ram Nath Chaubey was deleted from the said F.I.R. Even during investigation, no such statement was given by this witness to the Investigating Officer. PW-4 R.P. Singh, Investigating Officer of the case, has stated that no such statement was given by the complainant to him. Though in the cross examination, this witness has stated that F.I.R. was changed under the instructions of S.H.O. But keeping in view the statement given by this witness, in his examination in chief, and the fact that this fact was not disclosed by him to the Investigating Officer, we are of the considered view that submission of learned counsel for the appellants has force that the nomination of appellant Ram Nath Chaubey was after thought, therefore he deserves to be given benefit of doubt.

Now we take the case of appellant Smt. Subran. This appellant has come with a definite defence that she was living separately in her parental house. PW-1 complainant Vijay Chandra Pandey, was cross examined on this point and he has admitted that appellant Subran has got property in her parental house. This witness has expressed his ignorance to tell whether she used to live in her parental house or in her matrimonial house. PW-2 Hemendra Kumar Pandey has also expressed his ignorance whether appellant Smt. Subran has received property in her parental house. On behalf of the appellants DW-1 Jay Prakash Singh, husband of the Village Pradhan has been examined, who has stated that appellant Smt. Subran is the only daughter of her parents, therefore, she mostly resides with her parents. So a reasonable doubt is created regarding involvement of appellant Smt. Subran. So she also becomes entitled to benefit of doubt.

Now the case of appellant Durgesh Kumar Chaubey has to be considered. Though counsel for the appellants has not pressed his appeal on merits, but being the court of first appeal, we have gone through the entire evidence and the impugned judgment. PW-1 complainant Vijay Chandra Pandey and PW-2 Hemendra Kumar Pandey have categorically supported the allegation of demand of dowry of Rs. 20,000/-, and have stated that the deceased used to tell them regarding the demand of dowry and consequential ill treatment. PW-2 Hemendra Kumar Pandey, who happens to be younger brother of the deceased, has stated that his sister Smt. Sarita Devi (deceased) had told him regarding the demand of dowry and cruel behaviour of the accused. This witness has stated that the deceased used to inform him on phone whenever she got an opportunity to make phone call when she was alone. There is no dispute to the fact situation that the deceased died an unnatural death within seven years of her marriage. The fact of marriage and date of death have been admitted by appellant Durgesh Kumar Chaubey in his statement recorded under Section 313 Cr.P.C.

The unnatural death stands proved from the postmortem report. The husband in such nature of cases is the main accused as he has moral and legal liability for the safety and security of his wife.

DW-1 Jay Prakash Singh has stated that he has not heard about the demand of dowry and consequential ill treatment, but such types of incidents and happenings take place within the walls of the house and such things are not disclosed to each and every person of the locality. Reference on this point has been made by Hon''ble the Apex Court in the case of V.K. Mishra and Others Vs. State of Uttarakhand and Others and has held in paragraph No. 28 as under:--

"28. Vijay Kumar Sharma (PW-6), tenant-neighbour of the accused, has stated that he has never heard any shouting, screaming from the house of the Appellants and the couple was living happily. Placing reliance upon the evidence of this witness, Appellants contended that had there been any dowry demand, there would have been disharmony among the couple which would have definitely been known to neighbours like PW-6. It is to be noted that in a case where demand of dowry is alleged such demands are confined within the four walls of the house and known only to the members of both sides of the family. In such cases, independent and direct evidence with regard to the occurrences is ordinarily not available. That is why the Legislature has introduced Sections 113-A and 113-B in the Evidence Act by permitting presumption to be raised in certain circumstances. Evidence of PW-6, in our view, does not in anyway advance the case of the Appellants."

(emphasis added by us)

Therefore, simply because DW-1 Jay Prakash Singh has stated that he has not heard about such type of cruel behaviour, would not lend any help to appellant Durgesh Chaubey. Thus in our considered opinion, the case of the prosecution was fully proved against appellant Durgesh Chaubey and the trial court has not committed any illegality in convicting him.

Now the question of quantum of sentence remains to be considered. It is a case of dowry death and minimum sentence provided by the penal code is seven years, which may extend up to imprisonment for life. Thus the law has given a very wide discretion to the court to award adequate sentence keeping in view the facts and circumstances of each case.

Now we will have to consider the law on the point of sentence to be inflicted 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.

A reference on this point may also be made to the pronouncement of Hon''ble Apex Court in the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), 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 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 ."

Thus in the facts of this, there cannot be two opinion that this case was not a case of extreme brutality demanding infliction of extreme penalty of imprisonment for life.

Thus in our considered opinion sentence of ten years rigorous imprisonment would be adequate to meet the ends of justice.

Thus in view of the discussion made above, Criminal Appeal No. 1139 of 2008 deserves to be allowed and is hereby allowed. Appellants Ram Nath Chaubey and Smt. Subran are hereby acquitted of the charges levelled against them. They are on bail. They be set at liberty. Their bail is cancelled and sureties discharged.

Criminal Appeal No. 1140 of 2008 deserves to be partly allowed and is hereby partly allowed. The conviction of appellant Durgesh Chaubey for the offences under Sections 498-A , 304-B & 315 I.P.C. and section 4 of the Dowry Prohibition Act is hereby confirmed. However, sentence inflicted for the offence under Section 304-B I.P.C. is hereby modified from imprisonment for life to ten years rigorous imprisonment. However, sentence awarded by the trial court under Sections 498-A & 315 I.P.C. and Section 4 of the Dowry Prohibition Act are also hereby confirmed. However, it is modified only to the extent that imprisonment in default of payment of entire fine amount shall be one month instead of what is imposed by the trial court. All the sentences were directed to 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.