Surendra Vikram Singh Rathore, J.—Mr. Raj Bux Singh, learned counsel for the appellants and Mrs. Ruhi Siddiqui, learned Additional Government Advocate were heard at length.
2. Since both these appeals i.e. (Criminal Appeal No.1427 of 2014-Jitendra Prakash @ Raju v. State of U.P.) and (Criminal Appeal No.1429 of 2014-Virendra Prakash @ Chhotu v. State of U.P.) arise out of a common judgment, therefore, the same are being disposed of together.
3. Criminal Appeal No.1427 of 2014 has been preferred by the appellant-Jitendra Prakash @ Raju and Criminal Appeal No.1429 of 2014 has been preferred by the appellants Virendra Prakash @ Chhotu challenging the judgment and order dated 09.10.2014 passed by learned Additional Sessions Judge, Court No.3, Rae Bareli, in Sessions Trial No.292 of 2010, arising out of Case Crime No.1669 of 2009, Police Station Bachhrawan, District Rae Bareli, whereby both the appellants Jitendra Prakash @ Raju and Virendra Prakash @ Chhotu were convicted and sentenced as under:-
(i) Under Section 498-A IPC-Three years'' rigorous imprisonment and also with fine of Rs. 2000/- each, with default stipulation two months additional simple imprisonment.
(ii) Under Section 304-B IPC-Imprisonment for life.
(iii) Under Section 3/4 D.P. Act-Two years'' rigorous imprisonment.
4. All the sentences were directed to run concurrently.
5. It is a case of dowry death. Appellant Jitendra Prakash @ Raju is the husband of the deceased and appellant Virendra Prakash @ Chhotu is the devar (younger brother of the husband) of the deceased.
6. In brief, the case of the prosecution was that the complainant Bajrangi lodged an FIR at Police Station Bachhrawa, District Rae Bareli on 30.12.2009 at 15:05 hours alleging therein that his daughter Gomti was married with the appellant Jitendra Prakash @ Raju about 5 years prior to her death. On 26.12.2009 he had sent his wife for the vida of his daughter but the family members of his daughter matrimonial home declined to send the deceased with her mother. They stated that they have not received anything in dowry. They shall permit the deceased for her vida only after payment of Rs. 50,000/- cash and a gold chain in dowry. Even prior to this incident, the dowry was demanded several times. Chhotu @ Surya Prakash had threatened them that if the demand of dowry is not fulfilled then they can go to any extent. Shyam Lal, Smt. Prema Devi, Jitendra Prakash @ Raju and Virendra Prakash @ Chhotu also stated that even if they kill her then no action can be taken against them. On 27.12.2009 at about 12.30 p.m. he got an information by the police that his daughter Gomti has died, the complainant at that time was with his elder son in Ludhiana Punjab, wherefrom he gave information of this incident to his wife. When the members of the family went to the sasural of the deceased then they found that Gomti was lying dead there and apprehension was expressed that Shyam Lal Baba, Smt. Prema Devi Aaji, Jitendra Prakash @ Raju and devar Virendra Prakash @ Chhotu were involved in this incident.
7. The case was registered against four accused persons named above.
8. Prior to the registration of the case Shyam Lal Vishwakarma had given information of the death on 27.12.2009 at 13.10 hours on the basis of which the inquest proceedings were conducted. After completing the necessary formalities the dead body was sent for postmortem. The postmortem on the body of the deceased was conducted on 28.12.2009 at 4.05 p.m. and following ante-mortem injuries was found on the body of the deceased:-
(i) Ligature mark transversely placed 24.5 cm x 0.5 cm in front of neck below thighroid. Base of mark soft and reddish (neck circumference 36 cm ). Ligature mark was 6 cm below left ear and 5 cms. below chin and 9 cm below right ear pinna. Subcutaneous tissues under the mark were echomoised underlying muscles were congested.
9. The postmortem on the body of the deceased was conducted by a team of two doctors and cause of death was asphyxia due to strangulation.
10. After registration of the case, place of occurrence was inspected and after completing the investigation the charge-sheet was filed against only two accused appellants.
11. The defence of the appellants was of their total denial and their false implication.
12. In order to prove its case the prosecution has examined PW-1, Bajrangi, the complainant of this case, father of the deceased, PW-2 Smt. Ram Dulari, mother of the deceased, PW-3 Constable Sualal, who has prepared the chik report and G.D. of this case, PW-4 C.O. Ravi Shanker, Investigating Officer of this case , PW-5 Dr. Ajay Gautam, who has conducted the postmortem on the body of the deceased, PW-6 Naib Tehsildar, Mr. Ganesh Prasad who has conducted the inquest proceedings on the body of the deceased on the information given by Shyam Lal.
13. In defence copy of G.D. has been filed on behalf of the appellants that on 30.10.2009 an information regarding missing of Smt. Gomti was given by Shyam Lal.
14. After appreciating the evidence on record, the trial court has convicted the appellants as above, hence these instant appeals.
15. Submission of the learned counsel for the appellants was that he so far as the appellant Jitendra Prakash @ Raju is concerned, he does not intend to challenge the conviction of the appellant and has restricted his arguments only on the point of sentence that learned trial court has imposed the maximum penalty of life imprisonment.
16. Regarding co-accused Virendra Prakash @ Chhotu, he has argued that he was earning his livelihood in Ludhiana and he had come to his house 2-3 days prior to the incident and there was absolutely no occasion for him to be benefited in any manner by any demand of dowry as he himself was earning and was living in Ludhiana, thus his implication in this case was false and learned trial court has not considered this aspect in correct perspective.
17. Learned Additional Government Advocate has submitted that the judgment of learned trial court was absolutely valid and no interference is required by this Court and appropriate sentence is the discretion of the Court.
18. It is a case of dowry death. Before proceeding further we would like to discuss the necessary ingredients to constitute an offence under Section 304-B IPC. Hon''ble Apex Court in the case of Rajinder Singh v. State of Punjab reported in (2015) 6 SCC 477 has held in para 9 which is being reproduced as under:-
"9. The ingredients of the offence under Section 304-B IPC have been stated and restated in many judgments. There are four such ingredients and they are said to be:
(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;
(b) such death must have occurred within seven years of her marriage;
(c) Soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(d) such cruelty or harassment must be in connection with the demand for dowry."
In the facts of the instant case, when we go through the evidence of two witnesses of fact then it is clear that the deceased was married with the appellant Jitendra Prakash @ Raju about 5 years prior to her death. The cause of death reported by the doctor was strangulation, so it is also an established fact that she died an unnatural death. All the three witnesses of fact have given evidence that there was demand of dowry and Rs. 50,000/- cash and a gold chain was demanded. The deceased used to tell about such demand and about the cruel behaviour and harassment which the victim was facing at the hands of the appellants. The vida was also declined unless and until their demand of dowry is fulfilled. These witnesses have stated that the demand of dowry was made for the last about 2-3 years and during this period the deceased used to come to her parental house. He has admitted that his daughter came from Ludhiana about 1-2 days prior to the incident. According to the evidence of this witness at the time of the alleged incident he was in Ludhiana with his elder son. He has also admitted that he had gone to Ludhiana 2 to 4 days prior to the incident. The statement of this witness given in the cross-examination shows that the main allegation was against the husband. PW-2 Ram Dulari who happens to be mother of the deceased has also supported the case of the prosecution. Even in the statement of PW- 2 Smt. Ram Dulari there is nothing specific against appellant Virendra Prakash @ Chhotu (Devar). Here it is pertinent to mention that in the FIR the allegations were made against four accused persons. However during investigation nomination of the two accused persons was found to be false and accordingly no charge-sheet was filed against them. Even during trial no effort was made on behalf of the prosecution to summon those persons under Section 319 Cr.P.C. It is an admitted fact that the appellant Virendra Prakash @ Chhotu was working in Ludhiana and was earning his livelihood. So the submission of the learned counsel for the appellants has substance that he was not to be benefited by the demand of dowry and it was only the husband who could have been benefited by the demand of dowry. He has also argued that in such nature of cases it is a general tendency of the complainant side to implicate all the family members. While in such nature of cases it is the husband who is the main accused. But simply for the purpose of harassment, all the family members are arrayed as accused in such cases. We do not dwell upon this submission but after appreciation of evidence on record, we are of the view that the evidence against appellant Virendra Prakash @ Chhotu was not convincing and the circumstances present makes him entitled for benefit of doubt.
19. So far as the appellant Jitendra Prakash @ Raju is concerned, against him all the necessary ingredients to constitute an offence of dowry death stands established and his conviction has also not been challenged.
20. Now the point of appropriate sentence comes before our consideration.
21. On the point of sentence we would like to refer some of the pronouncement of Hon''ble Apex Court. In the case of Hem Chand v. State of Haryana reported in (1994) 6 SCC 727, in paragraph 7 of the judgment Hon''ble Apex Court 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. In this case, on the point of sentence, in paragraph 30 of the judgment has held 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."
Before parting with the judgment we would like to mention that no separate sentence need to be passed for the offence under Section 498-A IPC where the accused is convicted for the offence under Section 304-B IPC because the offence under Section 498-A IPC is included in the offence under Section 304-B IPC.
22. 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 practise 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."
23. Thus keeping in view the aforementioned legal position, we are of the considered view that the sentence of 10 years rigorous imprisonment would meet the ends of justice so far as appellant Jitendra Prakash @ Raju, husband of the deceased is concerned.
24. In view of the discussion made above, the Criminal Appeal No.1427 of 2014 preferred by appellant Jitendra Prakash @ Raju (husband) deserves to be partly allowed and is hereby partly allowed. Conviction of appellant Jitendra Prakash @ Raju under Section 304-B IPC is hereby confirmed. However, sentence of imprisonment for life is hereby reduced to rigorous imprisonment for a period of 10 years.
25. Conviction under Section 498-A is confirmed. However, no separate sentence is being passed for this offence. Conviction and sentence inflicted by trial court under Section 3/4 Dowry Prohibition Act is also hereby confirmed. Appellant Jitendra Prakash @ Raju is in custody. He shall serve out his sentence as modified by this Court.
26. Criminal Appeal No.1429 of 2014 preferred by the appellant Virendra Prakash @ Chhotu (Devar) deserves to be allowed and is hereby allowed. The appellant Virendra Prakash @ Chhotu is acquitted of all the charges levelled against him. He is on bail. His bail is cancelled and sureties are discharged. He need not to surrender. He be set at liberty.
27. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance.
