Ram Tirath vs State of U.P.

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

Under challenge in this appeal is the judgment and order dated 21.8.2008 passed by learned Additional Sessions Judge/Fast Track Court No. 4, Gonda in Sessions Trial No. 233 of 2006, arising out of Case Crime No. 85 of 2004, Police Station Nawabganj, District Gonda whereby the present appellant was convicted and sentenced as under:--

"(i) Under Section 498-A I.P.C. two years rigorous imprisonment and fine of Rs. 2,000/- with default stipulation of four months additional rigorous imprisonment.

(ii) Under Section 304-B I.P.C. imprisonment for life.

(iii) Under Section 201 I.P.C. two years rigorous imprisonment and fine of Rs. 2,000/- with default stipulation of four months additional imprisonment. All the sentences were directed to run concurrently."

In the aforesaid offence, one Ambar was also charge-sheeted but during the course of trial because of his death, the case was abated against him.

It is a case of dowry death. Appellant Ram Tirath is the husband of deceased. The other appellant Ambar was the father in law of the deceased.

In brief the case of the prosecution was that complainant Ram Kumar, who happens to be the brother of deceased Sunita had lodged an F.I.R. at Police Station Nawabganj, District Gonda with the allegation that marriage of his sister Sunita was solemnized with appellant Ram Tirath about six years prior to the incident. Appellant Ram Tirath used to treat the deceased with cruelty in connection with the demand of dowry. On 26.3.2004, appellant took the deceased to his house after Vida. It was alleged that on 30.3.2004, appellant Ram Tirath along with his father Ambar caused the death of Smt. Sunita by strangulation and after pouring kerosene oil on her body, it was set ablaze. On getting this information, complainant went to village Rahali where the dead body of his sister was lying.

On 30.3.2004 on telephone complainant Ram Kumar gave information of this incident to Police Station Nawabganj, which was entered into G.D. No. 9 at 13:00 hours. S.O. Nawabganj got the information of this incident when he was in Lakadmandi. On getting this information, he went to the place of occurrence and inquest proceedings were conducted under the supervision of a Magistrate and dead body was sent for postmortem. The appellant was also admitted in the District Hospital, Faizabad having burn injuries.

The postmortem on the body of the deceased was conducted on 31.3.2004 at 4:35 p.m. and following ante mortem injuries were reported in her postmortem report:--

"Haematoma seen underneath the skin in front of neck. Left Cornua of hyoid seen fractured. Trachea was congested. No carbon particles were seen suggesting strangulation.

Postmortem injuries:-- superficial to deep burn all over body except front of abdomen and left leg. Scalp hair burn. Kerosene oil smell was present. No line of redness seen."

In the opinion of doctor, the cause of death was ante mortem injuries as a result of asphyxia. The duration of death was within two days.

F.I.R. of this case was lodged by the complainant on 20.4.2004 at 11:30 and after conclusion of investigation, charge sheet was filed against appellant Ram Tirath and his father Ambar (dead).

It was pleaded in the defence that the deceased had developed illicit relations with some other person, therefore, she used to live in the house of her parents and avoided to live in the house of the appellant and the appellant has never made any demand of dowry.

In order to prove its case, the prosecution has examined PW-1 Complainant Ram Kumar, PW-2 Smt. Meena Devi, wife of the complainant, PW-3 Head Constable Sajjan Singh, who has prepared chik report and G.D. Of this case. PW-4 Dr. Ram Gopal, who had conducted postmortem on the body of the deceased. PW-5 Circle Officer Prem Chand, the Investigating Officer of this case. PW-6 Ashok Kumar, Tehsildar, who has conducted inquest proceedings of this case.

In defence on behalf of accused appellant DW-1 Dr. Anand Kumar Gupta was examined, who has proved the injury report of appellant Ram Tirath and has stated that there was burn injury on the left thigh above the left knee in an area of 6 c.m. x 12 c.m. Old ulcerated wounds. DW-2 Ram Naresh has stated that at the time of incident, he went inside the house of appellant at that time Sunita was burning. At that very time, father of appellant Ambar was inside the house and no one else was present. Ram Tirath made an attempt to save the life of his wife. DW-2 Ram Nath, DW-4 Ram Aasare, DW-5 Ram Bujhawan and DW-6 Gullan are the witnesses on the same point.

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

Submission of learned counsel for the appellant was that he does not intend to challenge the conviction of the appellant and he has restricted his argument only regarding the sentence inflicted by the trial court. It is submitted that the trial court has inflicted maximum punishment of imprisonment for life while the minimum sentence provided for the offence under Section 304-B I.P.C. is seven years. So in cases of extreme brutality, maximum punishment of imprisonment for life ought to have been inflicted.

Learned A.G.A. has submitted that the trial court has carefully appreciated the evidence and has rightly convicted the appellant. Deceased suffered postmortem burn injuries and this fact, by itself, falsifies the defence story.

Though the appellant has not challenged the finding of fact recorded by the trial court but being the court of first appeal, we have gone through the entire evidence and the impugned judgment. The evidence of the prosecution witnesses of fact clearly establish that the deceased was the wife of appellant Ram Tirath. She died within less than seven years of age of her marriage. She died an unnatural death and the evidence of all the three witnesses clearly established that there was demand of dowry and consequential ill treatment. So all the ingredients necessary to raise the presumption under Section 113-B of the Indian Evidence Act were in existence. In order to rebut this presumption, appellant has produced six witnesses in his defence. DW-1 Dr. Anand Kumar Gupta, has stated that there was old ulcerated wound, which might have been caused by burn injuries on the left thigh above the knee of the appellant. Remaining defence witnesses, have been examined on the point that the deceased was burning inside the house. Hearing cries, they also went there and at that time, father of appellant namely Ambar (since died) was there. The evidence of these defence witnesses has rightly been disbelieved by the trial court as the doctor has reported these burn injuries were postmortem injuries. The deceased was set ablaze to destroy the evidence of prosecution and to mislead the Investigating agency and other family members of the complainant side. Thus the finding of guilt as recorded by the trial court was absolutely in accordance with law and needs no interference.

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 Sunit 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 Others Vs. State of Uttarakhand and Others , 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 Others Vs. State of Punjab, , 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 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 ."

Keeping in view the aforementioned legal position, we are of the considered view that in this case also sentence of ten years rigorous imprisonment would be sufficient to meet the ends of justice. No separate sentence deserves to be inflicted for the offence under Section 498-A I.P.C. and conviction and sentence awarded by the trial court for the offence under Section 201 I.P.C. also deserves to be confirmed.

In view of the discussion made above, this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant under Section 304-B I.P.C. is hereby confirmed. However, the sentence inflicted by the trial court is hereby reduced to a period of ten years.

The conviction of the appellant for the offence under Section 498-A I.P.C. is also hereby confirmed. But no separate sentence is being passed for the said offence.

The conviction and sentence awarded by the trial court for the offence under Section 201 I.P.C. is also hereby confirmed.

Both the sentences shall run concurrently.

The appellant is in jail. He shall be released from jail only after serving out of his sentence as modified by this Court if he is not wanted in any other case.

The period of detention already undergone by the appellant in the instant case shall be set off in his 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.