Surendra Kumar vs The State of U.P.

Surendra Vikram Singh Rathore, J.—1. Shri Jay Narayan Pandey, learned counsel for the appellant, and Shri Dharmendra Singh, learned AGA for the State were heard at length.

Under challenge in the instant appeal is the judgment and order dated 14.06.2013 passed by Additional Sessions Judge, Court No. 16, Lucknow, in Sessions Trial No. 561 of 2010 arising out of Case Crime No. 9 of 2010, Police Station Nagram, Lucknow, whereby the present appellant Surendra Kumar was convicted and sentenced as under:--

"(a) Under Section 498-A IPC - Two years'' rigorous imprisonment and fine of Rs. 4,000/- with default stipulation of two months'' additional rigorous imprisonment.

(b) Under Section 304-B IPC - Imprisonment for life.

(c) Section 4 of Dowry Prohibition Act - One year''s rigorous imprisonment and fine of Rs. 2,000/- with default stipulation of one month''s additional rigorous imprisonment."

All the sentences were directed to run concurrently.

In brief, the case of the prosecution was that the complainant Raghuvar lodged a first information report at police station Nagram, District Lucknow on 21.01.2010 at 11.30 AM alleging therein that his daughter Sarojani Devi was married about 4 years prior to her death with appellant Surendra Kumar. After marriage, the appellant used to treat his daughter with cruelty in connection with demand of dowry. A demand of motorcycle was being pressed. On 21.01.2010 at about 08.00 AM, he got an information that because of demand of motorcycle in dowry his daughter has been killed by appellant Surendra Kumar. On the basis of this information, the case was registered. The investigation proceeded and after completing the necessary formalities, the dead body of the deceased was sent for postmortem, which was conducted on 22.01.2010 at 01.30 PM. According to the postmortem report, the duration of death was about one day and the following ante-mortem injuries were found on the body of the deceased:--

"(i) Abrasion 3 cm x 1 cm in front of left side of face 2 cm below left eye.

(ii) Multiple abrasions in an area of 12 cm x 8 cm on back chest above sacral region."

The cause of death could not ascertained. Hence, viscera was preserved. Viscera examination report of the deceased was also procured and in viscera, endosulphan insecticide poison was found.

After completing the investigation, charge sheet was filed.

The defence of the appellant, as stated by him in his statement under Section 313 Cr.P.C., was that a false first information report has been lodged against him. He is not aware of the circumstances under which she died. A separation deed was executed in the Panchayat two years before her death which was signed by several persons. He has stated that for the last about two years, the marriage tie was broken due to separation and she was not living at his house.

In order to prove its case, the prosecution has examined PW-1 Raghuvar Prasad - the complainant of this case, PW-2 Ramawati, PW-3 Raghurai, PW-4 Ayodhya Prasad as witnesses of fact. PW-5 is Shashi Kant Tiwari, CO, who has investigated this case. PW-6 is Head Moharrir Pramod Kumar Dwivedi, who has prepared Chik Report and GD of this case. PW-7 is J.P. Chauhan, who has prepared the inquest report on the body of the deceased. PW-8 is Dr. Narendra Agarwal, who has conducted the postmortem on the body of the deceased.

In defence, DW-1 Chheda Lal Sathi was examined to prove the fact of separation deed.

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

Learned counsel for the appellant submits that he does not intend to argue this appeal on merits and has restricted his argument only on the point of sentence. It is submitted that there is no evidence that the appellant had administered poison to the deceased. The possibility of consuming the poison herself cannot be ruled out but without keeping in view this aspect, learned trial court has awarded extreme penalty of imprisonment for life and thus he has restricted his argument only on the point of sentence.

Learned AGA has fairly conceded that no serious mark of injury was found on the body of the deceased and appropriate sentence is within the domain of the Court.

Though learned counsel for the appellant has not challenged the conviction but in spite of that, being the Court of first appeal, we have gone through the entire evidence and also the impugned judgment. After careful perusal of the same, we are of the considered opinion that the conviction recorded by the learned trial court was in accordance with law and by no stretch of imagination it can be said to be a wrong conviction. All the witnesses of fact have supported the case of the prosecution and have proved the demand of dowry and consequential ill treatment. All of them have stated that marriage had taken place about four years prior to death of the deceased. The presence of several abrasions on the body of the deceased also shows that soon before her death, she was subjected to cruelty in connection with demand of dowry. Thus, all the ingredients necessary to constitute the offence under Section 304-B IPC stands proved against the present appellant. After going through the evidence of DW-1, we are of the considered opinion that his evidence does not inspire confidence. So, the conviction of the appellant by the learned trial court was in accordance with law.

Now the point of appropriate sentence comes for our consideration. For the offence under Section 304-B IPC, the minimum sentence provided under law is seven years which may be extended to imprisonment for life. So a very vast discretion has been given to the Court to inflict appropriate sentence. Thus, appropriate sentence, in cases of dowry death, depends upon the facts and circumstances of each case. In the instant case, the marriage of deceased had taken place about four years prior to her death. She died an unnatural death because of insecticide. Possibility that it might have been consumed by the deceased cannot be ruled out.

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 v. State of Haryana reported in , (1994) 6 SCC 727, 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 v. State of Karnataka reported in , (2010) 3 SCC 152 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 Hemchand v. State of Haryana [, (1994) 6 SCC 727] 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 V State reported in , (2014) 4 SCC 375 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.

In a very recent judgment in the case of V.K. Mishra and another v. State of Uttarakhand reported in , (2015) 9 SCC 588, 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 Ors. v. State of Punjab , (2013) 4 SCC 177, 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."

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 v. State of Haryana reported in , (1991) 1 SCC 371. 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 sentence of seven years rigorous imprisonment would be adequate sentence to meet the ends of justice. No separate sentence deserves to be inflicted for the offence under Section 498-A I.P.C. Thus, 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 seven years in place of life imprisonment. 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 inflicted by the learned trial court for the offence under Section 4 of the Dowry Prohibition Act is also hereby confirmed. All the sentences shall run concurrently.

The appellant is in jail. He shall be released from jail only after serving out his sentence as modified by this Court.

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 communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.