Vijay Kumar Shukla vs State of U.P.

Surendra Vikram Singh Rathore, J.—Heard Mr. U.P. Singh, learned counsel for the appellant, Mr. Mohd. Yusuf Ansari, learned A.G.A. for the State and perused the lower court record.

Under challenge in this appeal is the judgment and order dated 13.6.2010 passed by learned Sessions Judge, Lakhimpur Kheri in Sessions Trial No. 453 of 2007 and Sessions Trial No. 156 of 2008, Police Station Kotwali Lakhimpur, District Kheri whereby present appellant Vijay Kumar Shukla was found guilty for the offence under Section 498A & 304-B I.P.C. But he was sentenced with imprisonment for life for the offence under Section 304-B I.P.C. and no separate sentence for the offence under Section 498-A I.P.C. was passed and was also convicted under Section 4 of the Dowry Prohibition Act and was sentenced with imprisonment for one year rigorous imprisonment and also with fine of Rs. 500/- with default stipulation of ten days simple imprisonment. However, other accused persons Deepu Shukla and Indra Narain Shukla, who were tried with present appellant in Sessions Trial No. 453 of 2007 and accused persons namely, Vinod Kumar Shukla and Smt. Sarita Shukla, who were tried in connected Sessions Trial No. 156 of 2008 were acquitted.

It is a case of dowry death. The appellant happens to be the husband of the deceased. The case of the prosecution was that marriage of Pinki (deceased) was solemnized with the appellant on 20.6.2005. The complainant got an information on 6.5.2006 at 10:50 a.m., that his sister has been murdered by the accused persons, who were named in the F.I.R. in connection with the demand of dowry. On this information, he came to the place of occurrence and found the dead body of his sister lying in the house. The case was registered and investigation proceeded. During investigation, inquest proceedings were conducted and the dead body was sent for postmortem. The postmortem on the body of the deceased was conducted on 6.5.2006 at 4:20 p.m. and following ante mortem injuries were found on her body:--

"(i) Multiple abraded contusion in an area of 20 c.m. x 10 c.m. over front and both side of neck and chin. Largest 6 c.m. x 3 c.m. smallest 1 c.m. x 0.5 c.m. On dissection underlying subcutaneous tissue ecchymosed. Hoid bone and tracheal rings found broken. Trachea found deeply congested.

(ii) Contusion 4 c.m. x 3 c.m. on left heal back.

(iii) Contusion 3 c.m. x 1.5 c.m. on right heal back.

In the opinion of the doctor, cause of death was asphyxia as a result of ante mortem strangulation."

After completing the investigation, charge sheet was filed.

The case of the defence was of his false implication. It was pleaded in the defence that after the death of Pinki, the complainant demanded back the gift items and when the appellant refused to return the same then this false case has been concocted against him. The deceased was not satisfied with the marriage and has committed suicide.

In order to prove its case, the prosecution has examined, PW-1 Shiv Ram Yadav, PW-2 Virendra Kumar, PW-3 Ashok Kumar, as witnesses of fact. PW-4 Dr. R.R. Mishra, who had conducted postmortem on the body of the deceased. PW-5 Head Constable Ram Kripal Sonkar, who had prepared chik report and G.D. of this case. PW-6 Smt. Kusuma Devi, she is also witness of fact regarding the demand of dowry and consequential ill treatment. PW-7 Constable Vishwanath Singh Yadav, who has proved the documents prepared by the Investigating Officer as secondary evidence.

On behalf of the defence, D.W. -1 Ashok Kumar was examined. This witness was examined on the point that there was no demand of dowry. This witness lives in front of the house of the appellant and he has also stated about the separate living of other appellants.

After appreciating the evidence on record, the trial court has convicted the appellant 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 but has restricted his prayer only on the point of sentence. It is further submitted that for the offence under Section 304-B I.P.C., the trial court has awarded extreme punishment of imprisonment for life. It is further submitted that extreme penalty of punishment of imprisonment for life should be inflicted in cases of extreme brutality and the present case does not fall within the purview of such cases.

Per contra, learned A.G.A. has submitted that the cause of death of the appellant was strangulation and the trial court, after appreciating the evidence in correct perspective, has convicted the appellant.

Though learned counsel for the appellant has not challenged the conviction of the appellant for the offence under Section 304-B I.P.C. and Section 4 of the Dowry Prohibition Act, but being the court of first appeal, we have gone through the entire evidence on record and the impugned judgment. All the witnesses of facts, namely, PW-1 Shiv Ram Yadav, PW-2 Virendra Kumar, PW-3 Ashok Kumar and PW-6 Smt. Kusuma Devi have supported the case of the prosecution regarding the demand of dowry and consequential ill treatment. It is an admitted fact that the deceased was the wife of the present appellant. The appellant has come with a definite case that as he could not fulfill the demand of the deceased, hence she committed suicide. But this evidence is absolutely false because the medical evidence is absolutely contrary to this defence theory. The cause of death of the deceased was strangulation and the same cannot in any manner be said to be self inflicted. So it was not a case of suicide and the present appellant has come with a false defence. The acquittal of the other accused persons has also not been challenged on behalf of the State. Their acquittal cannot be of any help to the present appellant.

Admittedly the deceased died an unnatural death within a short span after her marriage. There was demand of dowry as established by the evidence of the witnesses of fact. The injuries found on the body of the deceased also prove that soon before her death, she was subjected to cruelty in connection with demand of dowry. So all the circumstances that are required to draw the presumption under Section 113-B of the Indian Evidence Act were present on record and the appellant has utterly failed to disprove the said presumption against him rather he has come with a false defence. The evidence of D.W. -1 Ashok Kumar, who is the neighbour of the appellant is of no help to the appellant because the demand of dowry and consequential ill treatment are such type of incidents that remains confined within the walls of the house of the accused persons and are not discussed in the village. On this point reference may be made to the latest pronouncement of Hon''ble the Apex Court in the case of V.K. Mishra and Others Vs. State of Uttarakhand and Others .

Keeping in view the aforementioned legal position, we are of the considered view that the trial court has rightly appreciated the prosecution evidence and has rightly convicted the appellant, hence the conviction does not need any interference. Now the only point that remains to be considered is the appropriate sentence to be inflicted for the offence. For the offence, under Section 304-B I.P.C., the minimum sentence under the Act is of seven years and that may extend up to life. So the legislature has given a vast discretion to the court to impose appropriate sentence starting from seven years rigorous imprisonment to life imprisonment. So what would be an appropriate sentence shall depend on the facts and circumstances of each case. The conviction is based on the basis of the presumption raised under Section 113-B of the Indian Evidence Act. Therefore keeping in view the aforementioned presumption, the Hon''ble Apex Court has considered the question of sentence that has to be awarded in cases under Section 304-B I.P.C.

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

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.

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 and sentence awarded by the trial court for the offence under Section 4 of the Dowry Prohibition Act 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.