Vinod vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—D.B. Criminal Misc. 2nd Suspension of Sentence Application No. 760/2012 has been preferred on behalf of the applicant Vinod S/o. Nand Lal. The applicant-appellant Vinod, five years before 8.1.2010 in village Dhaneshwar was married with Mamta, daughter of Bhawani Lal (P.W.2). Mamta in her matrimonial home fed up with the demands of dowry, harassment and cruelty caused by the appellant Vinod on 8.1.2010 committed suicide by hanging herself. The trial court vide impugned judgment dated 23.7.2011 convicted the applicant-appellant Vinod for the offence under Section 304-B IPC and vide a separate order of even date sentenced him to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default of payment of fine to further undergo six months additional imprisonment.

Aggrieved against his conviction and sentence, the appellant has filed D.B. Criminal Appeal No. 834/2011 to assail his conviction and sentence. The first application for suspension of sentence on 4.1.2012 was dismissed as withdrawn by a co-ordinate bench.

In the present second application for suspension of sentence, the learned counsel for the applicant-appellant, contended that the applicant is in custody since 9.1.2010 and has undergone five years and eight months. The learned counsel for the applicant contended that since the deceased Mamta had died within seven years of her marriage in the matrimonial home and relationship of the deceased Mamta have been deposed regarding demand of dowry and cruelty inflicted upon Mamta, on this account, he will not assail his conviction but considering that minimum sentence prescribed for the offence under Section 304-B IPC is seven years, taking into account that the applicant has undergone five years and six months, the sentence of the applicant be suspended because if benefit of remission is granted, the applicant has completed his sentence, in case later sentence is reduced to minimum prescribed.

During the course of the arguments, since the learned counsel for the appellant has forcibly insisted that he will not assail his conviction, with the consent of the counsel for the parties, we have taken the appeal itself on board for final arguments and decision, as record has been received and is available for our perusal.

Bhawani Lal (P.W.2), father of the deceased Mamta, presented a written report (Exhibit-P/2) before SHO, Police Station Dabi, District Bundi. The written report (Exhibit-P/2) on the basis of which a formal FIR (Exhibit-P/13) was registered, when translated into English, reads as under:--

"To

SHO Saheb, Police Station Dabi, District Bundi.

Subject: For taking action.

Sir,

It is submitted that my daughter Mamta, five years ago was married with Vinod S/o. Nanda Ji, by caste Kalal, resident of Dhaneshwar Police Station Dabi, District Bundi. Mamta is blessed with two sons. Vinod, husband of my daughter used to daily harass her. Whenever Mamta used to come to native village, she used to tell me that her husband is not giving her day to day expenses and ask her to bring cash from the parents. She was under great distress. Yesterday night, at about 8:00 PM, I had conversation with Mamta on mobile phone. She told me that Vinod is harassing her. At about 11:30 PM, I received a telephonic call from Radhey Shyam, who informed me that Mamta has hanged herself and due to which she had died. Then I alongwith my family members reached at village Dhaneshwar. My daughter has been hanged by Vinod. I am presenting the report. Legal action be taken.

Sd/- Bhawani Lal S/o. Jadab Chand, b/c Kala, aged 45 years, r/o Lothania Thana, Bhainsroadgarh, District Chittorgarh. 9.1.2010."

The above FIR was investigated and the report of investigation under Section 173 Cr.P.C. was submitted against the appellant. The appellant along with the report of investigation was committed to the court of Sessions and the trial was entrusted to the court of Additional Sessions Judge No. 1, Bundi.

The prosecution in the present case had examined eleven witnesses and has proved on record documents from Exhibit-P/1 to Exhibit-P/13. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. He denied all the incriminating circumstances and stated that he has been falsely implicated by his in-laws. In defence the appellant had examined two witnesses, namely Laxmi Chand Yadav (D.W.1) and Sanju Bai Prajapat (D.W.2).

Radhey Shyam (P.W.1) deposed in the court that Vinod is his nephew. He was married five years before the occurrence with Mamta. He is blessed with two children. About seven months before his deposition, Nand Lal father of Vinod came to his house and informed that wife of Vinod had hanged herself and she has died. This witness went to the house of the accused, brought the dead body downward from the hook and on mobile phone informed the father of Mamta. Then parents of Mamta, his uncle, grandfather and brother arrived. The police prepared the site plan (Exhibit-P/1) the presence of this witness.

Bhawani Lal (P.W.2) father of the deceased Mamta testified that his daughter was married at village Dhaneshwar with the present appellant Vinod. He is father of three daughters and one son. Mamta had given birth to two sons. Elder son was staying with his grandparents, whereas younger son was staying with him. Whenever Mamta used to visit her native village, she used to inform this witness that she is harassed by her husband on account of demand of dowry. On 8.1.2010, Mamta on mobile phone had informed that her husband is maltreating her and was demanding cash. This witness complained to elder brother Devi Lal, who told him to bring Mamta back to parental house on the next day. In the night at 11:30 PM, a telephonic call was received from Radhey Shyam. Radhey Shyam is maternal uncle of Vinod. He informed that Mamta has died by hanging himself.

Manju Bai (P.W.3) mother of the deceased Mamta has also deposed on similar lines. Rakesh (P.W.4) is brother of the deceased. Kanwar Lal (P.W.5) is cousin of Bhawani Lal (P.W.2) and he has also deposed regarding harassment caused to deceased Mamta on account of demand of dowry.

Devi Lal (P.W.9) brother of Bhawani Lal (P.W.2) being uncle of Mamta has also deposed regarding maltreatment extended to Mamta on account of demand of dowry.

Dr. Prem Chand Malav (P.W.6) was member of the Medical Board. The said doctor on 9.1.2010 had conducted autopsy on the dead body of Mamta. He found ligature mark on the neck. There was no other injury on the body of the deceased. Doctor opined that the cause of death was asphyxia due to hanging.

Ghanshyam (P.W.7) stated that during investigation photographs of the spot and the dead body were also taken. Prem Chand (P.W.8) was posted as Circle Officer, Bundi. He received information from the SHO to the fact that a lady had died due to hanging. He reached at the spot, whereby Bhawani Lal (P.W.2) had presented the written report (Exhibit-P/2). He also prepared the inquest of the dead body (Exhibit-P/3). Vinod was arrested on 9.1.2010 vide memo Exhibit-P/8.

We need not notice the testimony of investigating officer, as he has proved various facets of investigation.

We have already noticed incriminating circumstances emerging in the prosecution case, which were put to the accused under Section 313 Cr.P.C. He has denied the same and pleaded that he has been falsely implicated.

Having noted the entire evidence, we have also seen photographs (Exhibit-P/10), which depict hook on the roof, which was used by the deceased Mamta to hang herself.

Laxmi Chand Yadav (D.W.1) stated that the accused Vinod was not at his house and when he arrived and found that the deceased Mamta had hanged herself. This witness stated that the accused had not demanded dowry.

Sanju Bai Prajapat (D.W.2) also stated that the appellant had never demanded dowry and the deceased used to visit her house and she never complained against Vinod.

From the evidence of the prosecution and defence witnesses, and from the accompanying circumstances, it is apparent that the deceased Mamta had died due to hanging and thus, it is a case of suicide. The mother, father, brother, uncle and other relatives of the deceased have stated in categoric terms that the deceased Mamta was harassed and subjected to cruelty on account of demand of dowry by her husband. It has also come in evidence that father of the appellant had informed Radhey Shyam (P.W.1) regarding death of the deceased and Radhey Shyam (P.W.1) being maternal uncle had relayed the information to the parents of the deceased Mamta.

In the present case, the witnesses are truthful. They have not widened the net, they have only named the present appellant Vinod as one who had harassed the deceased. Father-in-law has not been named as accused. Even otherwise, we find that in cross-examination, the learned counsel for the accused could not demolish the testimony of the witnesses and thus, the testimony of relatives of the deceased inspire confidence. The deceased had died within seven years of marriage, an unnatural death, in her matrimonial home on account of cruelty caused by the appellant by demanding dowry. Therefore, we are satisfied that the offence under Section 304-B IPC is made out.

We have already noticed that it has been very fairly submitted by the learned counsel for the appellant that he will not assail the conviction of the appellant.

Counsel for the appellant has relied upon the judgment rendered by us in Prakash Chand Meena v. State of Rajasthan [D.B. Criminal Appeal No. 456/2006], decided on 20.1.2015, wherein the wife had died due to asphyxia as a result of strangulation and we had reduced the sentence, relying upon the judgment rendered by the Hon''ble Supreme Court in the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), (2013) 10 AD 541 : (2013) 3 DMC 497 : (2013) 4 JCC 2718 : (2013) 13 JT 320 : (2013) 4 RCR(Criminal) 694 : (2013) 12 SCALE 473 : (2014) 4 SCC 375 : (2014) 2 SCJ 578 . We may notice that a Division Bench, in which one of us (Kanwaljit Singh Ahluwalia, J was a member, in the case of Deen Mohammad @ Murli v. The State of Rajasthan [D.B. Criminal Appeal No. 13/2005], decided on 25.11.2014, 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 Vinod under Section 304-B IPC, we set aside sentence of life imprisonment awarded upon him, 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, in above terms the present appeal stands disposed of. The application for suspension of sentence also stands disposed of.