Om Prakash-VII, J.@mdashThese criminal appeals have been preferred by the accused/appellants against the judgement and order dated 18.6.2011 passed by the Additional District & Sessions Judge, Court No. 2, Pilibhit in Session Trial No. 498 of 2008 (State of U.P. vs. Rajiv and others) convicting and sentencing the appellant Rajiv for the offence punishable under Section 304-B IPC for ten years rigorous imprisonment and the appellants Kalicharan and Poonam for the offence punishable under Section 304-B IPC for seven years rigorous imprisonment to each of them and accused appellants Rajiv, Kalicharan, Poonam and Chala @ Chanchala for the offence punishable under Section 498-A IPC for two years rigorous imprisonment and a fine of Rs. 5,000/- each and accused appellants Rajiv, Kalicharan, Poonam Devi and Chala @ chanchala for the offence punishable under Section 4 of the Dowry Prohibition Act for one year rigorous imprisonment and Rs. 3,000/- fine to each. In default of payment of fine, they were also directed to undergo additional imprisonment of 6 months and 3 months respectively. All the sentences have been directed to run concurrently.
2. Since these criminal appeals have been filed against the common judgment and order and have been heard together, therefore, the same are being decided by this judgement.
3. The facts of the case, as unfolded by the informant Ram Bahadur son of Hira Lal in the First Information Report (in short ''F.I.R.''), are that in May, 2003, the informant had married his daughter Nanhi @ Sumitra with Rajiv son of Kalicharan resident of Village Kangawan, Police Station Bisalpur according to Hindu rites and rituals. At the time of marriage, he had given sufficient dowry as per his capacity but the in-laws of his daughter were not happy with the same and were demanding additional dowry in the form of Motorcycle and Rs. 80,000/- for opening shop. Informant and his daughter told that they were poor person and were unable to fulfill the additional demand but the accused did not agree and were adamant on their demand. The daughter of the informant told many times to him that the accused persons would kill her if the demand is not fulfilled. The informant alongwith Indradeo, the son of his brother in law (sarhu), tried to pacify the matter, but husband of the deceased Rajiv, father in law Kalicharan, mother in law, sister in law (Nanad) Chala and sister-in-law Rani and her husband Hariom repeatedly subjected her to harassment and cruelty due to non-fulfilment of the additional demand of dowry and gave threat to kill. The informant tried many times to pacify the matter but they told that without fulfilment of additional demand of dowry, the daughter of the informant will not be allowed to remain in their houses. On 16.7.2008, informant was informed on telephone that his daughter was killed by them. On information when informant and his son reached village Kangawan, he saw the dead body of the deceased lying in the room. Head was lacerated. There was mark of injury on the neck.
4. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-3) was registered at Police Station concerned on 16.7.2008 at 20.15 hours mentioning all the details as had been described in Ext. Ka-.1. G.D. entry (Ext. ka-4) was also made at the same time.
5. Investigation of the matter was entrusted to the Circle Officer, Bisalpur. The Investigating Officer started investigation. He inspected the place of occurrence and prepared site plan (Ext. ka-13). Inquest report (Ext. ka-5) was prepared. Other police papers i.e. letter to Chief Medical Officer, photo lash, challan lash (Ext. ka-6 to ka-9) were also prepared.
6. Autopsy report (Ext. ka-2) was prepared after conducting the post mortem on 17.7.2008 at 4.00 p.m.
7. As per the post mortem report, the deceased was average body built. Eye was closed, mouth was half opened and the rigor mortis was passed of in upper extremities and was present in lower extremities.
8. On examination of the dead body of the deceased, following ante-mortem injuries were found:
"1. Ligature mark around the Neck 34 c.m. x 0.8 c.m. Horizontally placed & transversely placed (L) end 10 c.m. below low end of (L) ear 10 & 8 c.m. below the chin. Subcutaneous tissue congested margins abraded ecchymised Jugular venous pooling present. Hyoid Bone fractured.
2. Abraded contusion size 4 c.m. x 1 c.m. over � upper part of Neck starting from front of neck going to � side 3 c.m. below chin.
3. Abraded contusion 12 c.m. x 6 c.m. over post medial and lateral aspect of � lower part of upper arm including elbow and upper part of Forearm.
4. Abraded contusion 8 c.m. x 4 c.m. over (L) lower back 8 c.m. above post superior iliac spine.
5. Contusion 10 c.m. x 8 c.m. over lat. aspect of upper part of (D) thigh.
6. Contusion 6 c.m. x 5 c.m. over lat. aspect of � shoulder."
9. In the opinion of the doctor, death was caused by asphyxia due to ante-mortem strangulation.
10. After completing the investigation, charge-sheet (Ext. ka-12) against all the accused appellants was filed. Concerned Magistrate took the cognizance. Supplied copy of the police papers under Section 207 Cr.P.C. to the accused appellants. The case being exclusively triable by the sessions court, was committed to the Court of sessions.
11. Accused/appellants appeared and charge under Sections 498-A , 304-B , IPC and 3 /4 Dowry Prohibition Act was framed. All the accused have denied the charges framed against them and claimed their trial.
12. Trial proceeded, and on behalf of prosecution, eight witnesses were examined., PW-1, Ram Bahadur, PW-2 Ram Sewak, PW-3 Dr. C.B. Chaurasia, PW-4 Constable Roshan Lal, PW-5 Janki Prasad, PW-6 Sub-Inspector Phool Singh, PW-7 Munnu Lal Verma, Circle Officer and PW-8 Bal Govind, Circle Officer.
13. After closure of the prosecution evidence, statement of the accused appellants under Section 313 Cr.P.C. was recorded.
14. Accused persons in their statements under Section 313 Cr.P.C. admitted the marriage of deceased Nanhi @ Sumitra with accused appellant Rajiv but denied the entire allegations levelled by the prosecution and stated that they have been falsely implicated.
15. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants, hence this appeal.
16. I have heard Shri B.D. Sharma, learned counsel for the appellants in this appeal as well as in the connected criminal appeals and Shri Rajiv Patel, learned AGA for the State at length, and perused the entire record carefully.
17. Castigating the impugned judgment and order, learned counsel for the appellant has submitted that appellants Kalicharan, Poonam and Chala @ Chanchala were living separately. There was sufficient evidence to establish this fact but the trial court wrongly appreciated the fact and rejected the plea of the appellants. There are general allegations. Prosecution could not prove the nexus between cause of death and the demand of additional dowry. If the case of the prosecution as a whole is taken into consideration, then also the role regarding demand of additional dowry, causing cruelty and harassment is attracted only against the accused appellant Rajiv, who is the husband of the deceased. The findings of the trial court are based on surmises and conjectures. Reference at this stage was made by the learned counsel for the appellants to the statement of PW-1. It was further submitted that accused appellant Rajiv is in jail in this matter for more than seven years out of the maximum sentence of ten years imposed upon him by the trial court. A girl born from the wedlock of the deceased and the accused appellant Rajiv is alive and none is to look-after her. Hence, a lenient view in the matter be taken.
18. Per contra, the learned AGA appearing for the State has submitted that ante-mortem injuries have been found on the body of the deceased. Prosecution witnesses have proved the essential ingredients to constitute the offence under Section 304-B IPC. Death of the deceased was otherwise than under normal circumstance. There is no evidence on record to establish the separate living of the appellants Kalicharan, Poonam and Chala @ Chanchala. The findings of the trial court are based on the evidence available on record. There is no illegality, infirmity or perversity in the said findings warranting interference by this Court. Since the trial court has taken a lenient view on the point of imposing sentence upon the accused appellants, the findings of the trial court on this point need no interference.
19. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.
20. Prosecution case is that deceased was married with the appellant Rajiv according to Hindu rites and rituals in the year 2003. In the FIR, allegation regarding demand of additional dowry is that in-laws of the deceased were demanding a motorcycle and Rs. 80,000/- cash for opening a shop. Therefore, due to non-fulfilment of said demands, the appellants have committed the present offence. It is also the case of the prosecution that informant and other family members tried to sort-out the matter but accused appellants were adamant to the additional dowry. Medical evidence discloses that there was one ligature mark on the neck of the deceased. One abraded contusion on the right side of the neck, one abraded contusion on the back of right shoulder, abraded contusion on the left side under the waist and contusion on the left thigh and right shoulder.
21. Cause of death is shown asphyxia due to ante-mortem strangulation. Deceased died in the house of appellants.
22. The finding of the trial court is that all the essential ingredients for drawing presumption under Section 113-B Evidence Act were proved by the prosecution. The trial court has acquitted appellant Chala @ Chanchala for the offence under Section 304-B IPC but has convicted and sentenced her for the offence under Section 498-A and Section 4 of the Dowry Prohibition Act. Other accused appellants have been convicted and sentenced for the offence under Sections 304-B IPC, 498-A IPC and Section 4 of the Dowry Prohibition Act.
23. Now the question is as to whether from the evidence available on record against the accused appellants regarding demand of additional dowry, case under Section 4 of the Dowry Prohibition Act, Sections 498-A IPC and 304-B IPC is made out.
24. From a perusal of the FIR, it is evident that only allegation is that in the marriage of the deceased, the informant had given dowry as per his capacity but the in-laws of the deceased were not satisfied with the same and were demanding additional dowry in the form of a motorcycle and Rs. 80,000/- to open shop. PW-1 Ram Bahadur, who is the informant as well as the father of the deceased has stated that accused appellants were not happy with the dowry given at the time of marriage and were demanding a motorcycle and Rs. 80,000/- as has been mentioned in the FIR. PW-2 Ram Sewak, who is the son of the informant and brother of the deceased has stated similar facts. PW-1 and PW-2 are the witnesses of demand of additional dowry made by the accused appellants and cruelty, harassment, etc. given to the deceased. Section 3 of the Dowry Prohibition Act provides for penalty for giving or taking dowry and Section 4 of the Dowry Prohibition Act provides for penalty for demanding dowry.
25. If the provisions enumerated in Sections 3 and 4 of the Dowry Prohibition Act, are taken into consideration in context with the present matter, it is evident that the prosecution could not make it clear what sort of demand was made before the date of marriage. Prosecution could also not prove that there was any agreement between the parties to pay certain amounts in the form of dowry. Certainly, the demand said to have been made by the accused appellants was made after the marriage. Prosecution was also not able to connect the additional demand of dowry with the accused appellants Kalicharan, Poonam and Chala @ Chanchala. If any shop was to be opened on the strength of Rs. 80,000/-, it could be attributed to the appellant Rajiv, who is the husband of the deceased, who could take direct benefit with the demand of the said dowry. Similarly, from the demand of motorcycle also, accused appellant Rajiv was beneficiary. It is out of imagination that how Chala @ Chanchala, the nanad of the deceased, who had to go her in-laws house, would be benefited with the said demand of dowry. Similarly, Kalicharan and Poonam, father-in-law and mother-in-law of the deceased, could not be benefited with the demand of motorcycle and Rs. 80,000/-. If for the sake of argument, any demand of additional dowry was made after the marriage, the same could be attributed only to the accused appellant Rajiv. It is well settled legal proposition that proximate live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the cause of death should not be too remote which, under the circumstances, be treated as having not linked with the appellants. Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the cause of the death.
26. In the present matter from the close analysis of the entire prosecution evidence, nexus or proximity of the demand and cruelty is not connected with the death of the deceased against the appellants Kalicharan, Poonam and Chala @ Chanchala. There is only general allegation. Further, presumption taking recourse of the provisions of Section 113-B of the Evidence Act could only be drawn if all the essential ingredients, as required under Section 304-B IPC are established by the prosecution.
27. Section 113-B of the Evidence Act, 1872 states that when the question is whether a person has committed the dowry death of a woman, and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death. Section 304-B of the IPC states that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ''dowry death'', and such husband or relative shall be deemed to have caused her death.
28. Thus, the words ''soon before'' appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B of the IPC. For the presumptions contemplated under these Sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words ''soon before'' is, therefore, important. This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mind-set of the people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, ''soon before'' is a relative term. In matters of emotions, it is not possible to detail a fixed formula. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.
29. In this connection I may refer to the judgment of the Apex Court in the case of
"14. We may also note that the presumption under Section 113-B of the Indian Evidence Act has been enacted to check the menace of the dowry deaths and in appreciating the evidence, the social background of the legislation cannot be ignored. In Pawan Kumar vs. State of Haryana, it was observed:
"11. It is true, as argued by learned counsel for the appellants, that in criminal jurisprudence benefit of doubt is extendable to the accused. But that benefit of doubt would arise in the context of the application of penal law, and in the facts and circumstances of a case. The concept of benefit of doubt has an important role to play but within the confines of the stringency of laws. Since the cause of death of a married woman was to occur not in normal circumstances but as a "dowry death", for which the evidence was not so easily available, as it is mostly confined within the four walls of a house, namely the husband''s house, where all likely accused reside. Hence the aforesaid amendments brought in the concept of deemed "dowry death" by the husband or the relatives, as the case may be. This deeming clause has a role to play and cannot be taken lightly and ignored to shield an accused, otherwise the very purpose of the amendment will be lost. Of course, the prosecution has to prove the ultimate essential ingredients beyond all reasonable doubt after raising the initial presumption of "deemed dowry death".
12. Explanation to Section 304-B refers to dowry "as having the same meaning as in Section 2 of the 1961 Act", the question is: what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage.
13. When words in a statute are referable to more than one meaning, the established rule of construction is found in Hey don''s case also approved by this Court in Bengal Immunity Co. Ltd. v. State of Bihar AIR at p. 674. The rule is to consider four aspects while construing an Act:
(a) what was the law prior to the law which is sought to be interpreted;
(b) what was the mischief or defect for which new law is made;
(c) what is the remedy the law now provides; and
(d) what is the reason of the remedy.
14. The Court must adopt that construction which, "suppresses the mischief and advances the remedy".
15. Applying this principle, it is clear that the earlier law was not sufficient to check dowry deaths hence aforesaid stringent provisions were brought in, so that persons committing such inhuman crimes on married women should not escape, as evidence of a direct nature is not readily available except of the circumstantial kind. Hence it is that interpretation which suppresses the mischief, sub-serves the objective and advances the remedy, which would be acceptable. The objective is that men committing such crimes should not escape punishment. Hence stringent provisions were brought in by shifting the burden onto the accused by bringing in the deemed clause. As aforesaid, the definition of "dowry" was amended with effect from 19-11-1986, to include the period even after the marriage.
16. The offence alleged against the appellants is under Section 304-B IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the 1961 Act. It was argued on behalf of the appellants that mere demand of scooter or fridge would not be a demand for dowry. We find from the evidence on record that within a few days after the marriage, the deceased was tortured, maltreated and harassed for not bringing the aforesaid articles in marriage. Hence the demand is in connection with marriage. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the 1961 Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the appellant seeks, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3 , which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of Section 304-B IPC. It is not always necessary that there be any agreement for dowry."
30. In the instant case, as is clear from the above discussions, prosecution was not able to connect the appellants Kalicharan, Poonam and Chala @ Chanchala with the said demand of additional dowry made from the deceased or from her parents. Thus, in view of the above, it would not be safe to hold guilty to the accused appellants Kalicharan, Poonam for the offence punishable under Section 304-B IPC and accused appellants Kalicharan, Poonam and Chala @ Chanchala for the offence punishable under Section 498-A IPC and for the offence punishable under Section 4 of the Dowry Prohibition Act. Conviction and sentence of these three appellants under the aforesaid Sections is liable to be set-aside.
31. So far as the role assigned to the accused appellant Rajiv is concerned, he is the husband of the deceased. He would be direct beneficiary of any demand. Learned counsel for the appellants could not show any error, illegality or infirmity in the finding of the trial court on the point of demand of additional dowry, cruelty and harassment etc. caused to the deceased by the accused appellant Rajiv.
32. Learned counsel for the appellants has also not disputed the date of marriage, cause of death, cruelty and harassment subjected to the deceased. Death of the deceased is not natural one. It occurred otherwise than under normal circumstance within seven years of the marriage. Therefore, the findings recorded by the trial Court in the impugned judgment and order holding guilty to the accused appellant Rajiv for committing offence under Section 498-A IPC, 304-B IPC and Section 4 of the Dowry Prohibition Act are correct and do not require interference by this Court.
33. So far as the submission regarding sentence is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
34. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalized. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, it is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ''respond to the society''s cry for justice against the criminal''. [Vide:
35. In view of the above propositions of law, the paramount principle that should be the guiding laser beam is that the punishment should be proportionate to the gravity of the offence.
36. The Apex Court in the case of
"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B I.P.C. However, his sentence of life imprisonment imposed by the Courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years'' rigorous imprisonment would meet the ends of justice. We accordingly, while confirming the conviction of the appellant under Section 304-B , I.P.C., reduce the sentence of imprisonment for life to 10 years'' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."
37. Minimum sentence provided under Section 304-B IPC is of seven years. The trial court vide impugned judgment and order has imposed ten years sentence upon the appellant Rajiv.
38. Applying the principle laid down by the Apex Court in the aforesaid judgments and having regard to the totality of the facts and circumstances of the case particularly the fact that the accused appellant Rajiv has served-out substantial portion (about seven years) of the sentence imposed upon him, I am of the considered view that the ends of justice would meet if the sentence of the appellant Rajiv awarded to him under Section 304-B IPC is reduced/modified to the imprisonment of eight years.
39. In the light of foregoing discussions, Criminal Appeal No. 3858 of 2011 and Criminal Appeal No. 4342 of 2011 are liable to be allowed. Conviction and sentence imposed upon the accused appellants Kalicharan, Poonam for the offence punishable under Section 304-B IPC and accused appellants Kalicharan, Poonam and Chala @ Chanchala for the offence punishable under Section 498-A IPC and for the offence punishable under Section 4 of the Dowry Prohibition Act are liable to be set-aside.
40. Further, Criminal Appeal No. 4479 of 2011 is liable to be allowed in part and the conviction of the appellant, namely, Rajiv under Sections 304-B IPC, 498-A IPC and Section 4 Dowry Prohibition Act is liable to be upheld. The impugned judgment and order dated 18.6.2011 is liable to be modified to the extent as discussed above.
41. Accordingly, criminal appeal No. 3858 of 2011 and Criminal Appeal No. 4342 of 2011 are allowed and the conviction and sentence imposed upon the accused appellants Kalicharan, Poonam for the offence punishable under Section 304-B IPC and accused appellants Kalicharan, Poonam and Chala @ Chanchala for the offence punishable under Section 498-A IPC and for the offence punishable under Section 4 of the Dowry Prohibition Act are set-aside as these accused appellants are found not guilty for the aforesaid offences. They are acquitted of all the charges framed against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.
42. Further, criminal appeal No. 4479 of 2011 is allowed in part and the conviction of the appellant, namely, Rajiv under Sections 304-B IPC, 498-A IPC and Section 4 Dowry Prohibition Act is upheld. The sentence of ten years rigorous imprisonment awarded to the appellant Rajiv for his conviction under Sections 304-B IPC is altered and reduced to the imprisonment of eight years. Punishment imposed against the accused appellant Rajiv for the offence under Sections 498-A IPC and Section 4 of the Dowry Prohibition Act is not interfered with.
43. A copy of this judgment and order shall also be placed on the records of criminal appeal No. 3858 of 2011 and Criminal Appeal No. 4342 of 2011.
44. Let a copy of this judgment along with lower court record be sent to the Sessions Judge, Pilibhit for compliance. A compliance report be sent to this Court.
