HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R Judgement Reserved on 4.9.2015 Judgement Delivered on 9.10.2015 Case :- CRIMINAL APPEAL No. - 2283 of 2011 Appellant :- Rajendra Kumar @ Raju Nirmal Respondent :- State Of U.P.
Counsel for Appellant :- Madan Lal Srivastava,Jitendra Singh,R.S.Chaudhary,Ratnesh Kumar Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Om Prakash-VII,J.
1. The present criminal appeal has been preferred by the accused/ appellant Rajendra Kumar @ Raju Nirmal against the judgement and order dated 25.2.2011 passed by the Additional District & Sessions Judge, Court No.1, Fatehpur in Session Trial No. 237 of 2010 (State of U.P. vs. Rajendra Kumar @ Raju Nirmal) convicting and sentencing the appellant for the offence punishable under Section 304-B IPC to undergo ten years rigorous imprisonment, for the offence punishable under Section 498-A IPC to undergo one year rigorous imprisonment and a fine of Rs. 1,000/-, and for the offence punishable under Sections ¾ Dowry Prohibition Act to undergo one year rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine, the appellant was also directed to undergo additional imprisonment of 6 months. All the sentences have been directed to run concurrently.
2. The facts of the case as unfolded by the informant Chandra Bali son of Ram Manohar are that on 23.5.2005, the informant had married his daughter Anita with Rajendra Kumar @ Raju Nirmal, resident of Village Akbarpur Chaurai, Police Station Hathgam, District-Fatehpur according to Hindu rites and rituals. At the time of marriage, he had given sufficient dowry as per his capacity but the husband of Anita Devi, mother-in-law Laxmi Devi, father-in-law Ram Narayan and sister-in-law Smt. Asha Devi were not happy with the same and due to which they subjected Anita Devi at cruelty and harassment and were pressurising Anita Devi to demand from her parents Rs. 1,00,000/- cash and a Motorcycle. They gave threat to kill her on non-fulfilment of the aforesaid demand and were ready to re-marry. When she went to her father's house, she told about all these facts and said that the accused were adamant on their demand. On 4.10.2005, after five months of the marriage, the aforesaid accused beat Anita Devi and causing burn injuries done her to death. The informant was not informed about the incident. On 5.10.2005, the information was received on Phone from Mumbai that Anita Devi was done to death by causing burn injuries by her in-laws. On this information, when he reached at her in-laws house, he saw that Anita Devi was lying dead in burn condition. His signature was taken on Panchayatnama forcibly. On next date i.e. 6.10.2005, he gave written report against the accused persons but no action was taken by the local police. He again gave a letter dated 28.8.2006 to the Superintendent of Police Fatehpur by Registered Post, but no action was taken on that application also. He repeatedly knocked the door of police, but with no result, therefore, he moved an application under Section 156 (3) Cr.P.C. before the Magistrate concerned, on which direction, on 9.5.2007 at 8.00 a.m. chick FIR (Ext. ka-7) at police station Hathgam at case crime no. CC 3/2007 under Section 498-A, 304-B IPC and 3/4 D.P. Act was registered mentioning all the details as had been described in the application. G.D. entry (Ext. ka-8) was also made at the same time.
3. Investigation of the matter was entrusted to the Circle Officer, Thariyaon. The Investigating Officer started investigation. He inspected the place of occurrence and prepared site plan (Ext. ka-9).
4. After completing the investigation, the Investigating Officer submitted final report (Ext. ka-10) against all the accused. Against the said final report, Protest Petition (Ext. ka-2) with informant's affidavit (Ext. ka-3), affidavit of his wife Smt. Shanti Devi (Ext. ka-4), affidavit of Suraj Bali (Ext. ka-5) and affidavit of Masihuddin was filed. The concerned Magistrate by the order dated 16.6.2008 rejecting the final report summoned all the accused, namely, Rajendra Kumar @ Raju Nirmal, Smt. Laxmi Devi, Ram Narayan Nirmal and Smt. Asha Devi. Due to stay granted by this Court in respect of accused Smt. Laxmi Devi and Smt. Asha Devi against the order dated 16.6.2008 passed by the court concerned, case against said accused was not committed to the Sessions Court for trial.
5. Accused Rajendra Kumar @ Raju Nirmal and Ram Narayan Nirmal appeared and charge under Sections 498-A, 304-B, IPC and ¾ Dowry Prohibition Act was framed. All the accused have denied the charges framed against them and claimed their trial.
6. Trial proceeded, and on behalf of prosecution, five witnesses, namely, PW-1, Chandra Bali, informant, PW-2 Smt. Shanti Devi, PW-3 Suraj Bali, PW-4 Masihuddin and PW-5 Constable Haridwar Prasad were examined.
7. After closure of the prosecution evidence, statement of the accused appellant under Section 313 Cr.P.C. was recorded.
8. Accused persons in their statements under Section 313 Cr.P.C. admitted the marriage of deceased Anita Devi with accused appellant Rajendra @ Raju Nirmal but denied the entire allegations levelled by the prosecution and stated that they have been falsely implicated.
9. The defence has examined DW-1 Islam Uddin, DW-2 Goverdhan Prasad, DW-3 Ram Vishal @ Vishal, DW-4 Ram Babu and DW-5 Raghuraj. No documentary evidence was adduced by the defence in its support.
10. 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 appellant beyond reasonable doubt and convicted and sentenced the accused appellant, hence this appeal.
11. I have heard Shri Jitendra Singh, learned counsel for the appellant, Shri Raj Nath Gaur, learned counsel for the complainant and Shri Brij Raj Verma, learned AGA for the State at length, and perused the entire record carefully.
12. Castigating the impugned judgement and order, learned counsel for the appellant has submitted that the appellant is in jail in this matter since 1.7.2008. He has served-out the minimum sentence prescribed for the offence under Section 304-B IPC. FIR was lodged belatedly. Explanation offered by the prosecution for the said delay is not satisfactory. Deceased herself committed suicide. Accused appellant was not present in the house at the time of the incident. The trial court acquitted the other accused appellant on the basis of same set of evidence but wrongly appreciating the prosecution evidence, illegally convicted and sentenced the accused appellant. There is no evidence regarding demand of additional dowry, causing cruelty or harassment soon before the death of the deceased. Parents of the deceased were present at the time of cremation. They were informed by the appellant himself, they did not make any complaint at that time rather they entered into a compromise that deceased received burn injuries when she was cooking food and the death was accidental. The trial court ignoring all these facts and evidence held guilty to the appellant on the basis of insufficient evidence. Witnesses themselves have filed affidavit to the effect that no such incident took place but due to ulterior motive they supported the prosecution case before the Court. It was lastly submitted that in absence of essential ingredients to constitute the offences under Sections 498-A, 304-B IPC and ¾ Dowry Prohibition Act, conviction and sentence imposed upon the appellant by the trial court cannot be sustained.
13. In reply, learned AGA appearing for the State has submitted that prosecution witnesses have proved the essential ingredients to constitute the offence under Section 304-B IPC, 498-A IPC and ¾ Dowry Prohibition Act. Death of the deceased was otherwise than under normal circumstances. The findings of the trial court are based on the evidence available on record. Deceased died within seven years of her marriage due to burn injuries. Death is not accidental one. Affidavits and compromise said to have been filed by the prosecution witnesses are immaterial as the father and mother of the deceased and other prosecution witnesses have clearly supported the prosecution case. There is sufficient evidence to presume the offence under Section 304-B IPC taking recourse of the provisions of Section 113-B Evidence Act. 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.
14. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.
15. In the present matter, marriage between the deceased and the appellant was solemnized on 23.5.2005. Deceased died due to burn injuries in the house of the accused appellant, i.e. in her in-laws house within seven years of her marriage. It is also evident from the record that dead-body of the deceased was cremated in the presence of both the parties. FIR in the matter was lodged on 9.5.2007 on the basis of the order passed on the application under Section 156(3) Cr.P.C.. The Investigating Officer after investigating the matter, submitted final report. A protest petition was filed on behalf of the complainant PW-1. Concerned Magistrate rejecting the final report took cognizance straight-way on the basis of the evidence available on record and summoned the appellant to face trial. One Ram Narain, father-in-law of the deceased was also summoned to face trial, but he was acquitted and no appeal has been filed on behalf of the State or the complainant against his acquittal. On the day of cremation of the dead-body of the deceased, an agreement between the parties regarding manner of the incident was entered into and thereafter the dead-body of the deceased was cremated in the presence of both the parties without post-mortem. Accused appellant's plea is that deceased received burn injuries due to accident while she was cooking food and fire caught her cloth. Appellant was not present in the house at the time of the incident. Prosecution case is that an information was given on the next date of the agreement to the Police concerned but the police did not take any step in the matter. He was continuously making efforts by approaching the police authorities for legal action but the police did not take any heed in the matter. Lastly, an application under Section 156(3) Cr.P.C. was moved on 9.1.2007.
16. In the factual matrix narrated above, now the court proceeds to deal with the submissions made by the learned counsel for the parties.
17. First and foremost question in the matter is as to whether the FIR was lodged belatedly and plausible explanation for the delay was not offered by the complainant. 18. Although on this point no specific finding has been given by the trial court yet after analysing the entire evidence available on record, I am of the view that the delay in lodging the FIR has been properly explained by the prosecution. Presence of the persons of informant side at the place of occurrence before cremation of the dead-body of the deceased and entering into a compromise for cremation of the dead-body itself will not be sufficient to hold that complainant never tried to lodge FIR before moving the application under Section 156(3) Cr.P.C.. It is pertinent to mention here that it is a bride burning case. Offence took place within few months of the marriage. There is clear evidence that deceased died due to burn injuries in her in-laws house. In the circumstances, delay in lodging the FIR in the present matter could not be taken as fatal to the prosecution case. The complainant was making efforts to lodge the FIR but the police concerned was not taking appropriate steps despite information about the matter. Efforts made by the complainant also finds support with the fact that when the Investigating Officer submitted final report, he filed protest petition. PW-2, who is the mother of the deceased has specifically denied the contents of the compromise. Thus, in the facts and circumstances of the case, as mentioned above, this Court is of the view that delay in lodging the FIR has been properly explained by the prosecution and the prosecution case could not be doubted on this score.
19. As is clear from the evidence and the statement of the accused appellant recorded section 313 Cr.P.C., deceased died within seven years of her marriage in her in-laws house due to burn injuries. Thus, the court has to see only the other ingredients to constitute the offence under Section 304-B IPC against the accused appellant.
20. In the present case, death of the deceased was due to burn injuries. PW-1, father of the deceased, PW-2, mother of the deceased and PW-3, uncle of the deceased have clearly and consistently stated before the court that accused appellant was demanding Rs. 1,00,000/- cash and a motorcycle after the marriage. This fact was stated by the deceased to her parents when she had gone second time at her parental house. Finding of the trial court is that merely on the basis of contrary statement in the cross-examination of these witnesses, it cannot be held that their statements in the examination-in-chief on this point are false. A close scrutiny of statement of these three witnesses clearly indicates that accused appellant was indulged in demanding of additional dowry in the form of Rs. 1,00,000/- cash and a motorcycle. Demand made after the marriage comes under the purview of 'dowry'. Papers referred by the appellant said to have been prepared just before the cremation of the dead-body of the deceased might be procured by the appellant taking undue advantage of the mental status of the parents of the deceased. It might be possible that parents of the deceased would have signed the said papers believing the facts stated by the appellant. Hence, the Trial court finding regarding demand of additional dowry after the marriage is in accordance with law and evidence. No interference is required by this Court with the said findings.
21. As far as causing of cruelty or harassment for or in connection with the demand of dowry soon before the death is concerned, deceased was married with the appellant on 23.5.2005. She died within five months of her marriage due to burn injuries in her in-laws house. Although in the cross-examination, PW-1 and PW-2 both have made contradictory statements on this point yet in the examination-in-chief, they have clearly stated that deceased was being subjected to cruelty and harassment for or in connection with demand of dowry after the marriage. The trial court has concluded its finding after analysing the whole evidence, therefore, this Court is also of the view that the finding recorded by the trial court on this point need no interference as the same is based on correct appreciation of evidence. Parents of the appellant were working as washer-man in Mumbai. Looking to the economic condition of the appellant, it cannot be said that he was not in a position to afford motorcycle.
22. Now the question is as to whether the burn injuries received by the deceased is accidental one or she was set ablaze by the accused appellant or she herself committed suicide.
23. In all these three situations, one fact is common that deceased received burn injuries and died on the spot due to the said injuries. Looking to the facts and circumstances of the case, the death of the deceased cannot be termed as accidental because it is improbable and unbelievable that a person would not try to save herself while fire was caught her cloth. Certainly if the deceased would have committed suicide or she was not burnt by other person, she would have tried to save herself and in that situation there might be a chance that she would have received less burn injuries and survived for sometime. In the present matter, on close analysis of the entire evidence including statement recorded under Section 313 Cr.P.C. and the statement of the defence witnesses, this court is of the view that death of the deceased was not accidental one. Either she herself committed suicide or she was burnt by other person. In both situations, death of the deceased cannot be termed as 'natural' or 'accidental' one but it could be termed as unnatural otherwise than under normal circumstance due to burn injuries. Since prosecution witnesses have clearly linked the death of the deceased with the cruelty and harassment caused by the appellant for or in connection with the demand of dowry soon before her death, therefore, in the opinion of the Court, finding of the trial court on this point is based on correct appreciation of evidence available on record and does not require interference by this Court.
24. Prosecution was also able to establish guilt of the accused appellant for the offence under Section 498-A IPC and Section 4 of the Dowry Prohibition Act. The finding recorded by the trial court regarding offence under Section 3 of the Dowry Prohibition Act is not materialized from the evidence available on record. Section 3 of the Dowry Prohibition Act relates only taking or giving of dowry while Section 4 of the said Act provides for demanding of additional dowry. In the present matter demand of additional dowry was made by the accused appellant, hence finding recorded by the trial court in regard to offence under Section 3 of the Dowry Prohibition Act, being illegal, is liable to be modified only to the offence under Section 4 of the Dowry Prohibition Act.
25. 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 for committing offence under Section 498A IPC, 304-B IPC and Section 4 of the Dowry Prohibition Act are correct and do not require interference by this Court.
26. 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.
27. 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 marginalised. 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 : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
28. 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.
29. The Apex Court in the case of G. V. Siddaramesh Versus of State of Karnataka; 2010 (87) AIC 43 (SC), while allowing the appeal of the appellant, altered the sentence. Paragraph 31 of the said judgment is reproduced below:
"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."
30. 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.
31. Applying the principle laid down by the Apex Court in the aforesaid judgements and having regard to the totality of the facts and circumstances of the case particularly the fact that the accused appellant has served-out substantial portion 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 awarded to him under Section 304-B IPC is reduced / modified to the imprisonment of seven years.
32. In the light of foregoing discussions, the present Criminal Appeal is liable to be allowed in part and the conviction of the appellant, namely, Rajendra Kumar @ Raju Nirmal under Sections 304-B IPC, 498-A IPC and Section 4 Dowry Prohibition Act is liable to be upheld. Appellant is liable to be acquitted for the offence under Section 3 of the Dowry Prohibition Act. The impugned judgment and order dated 25.2.2011 is liable to be modified to the extent as discussed above.
33. Accordingly, the present criminal appeal is allowed in part and the conviction of the appellant, namely, Rajendra Kumar @ Raju Nirmal 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 for his conviction under Sections 304-B IPC is altered and reduced to the imprisonment of seven years. Appellant is acquitted for the offence under Section 3 of the Dowry Prohibition Act. Sentence / fine imposed by the trial court against the accused appellant Rajendra Kumar @ Raju Nirmal for the offence under Sections 498-A IPC and Section 4 of the Dowry Prohibition Act is not interfered with. All the sentences shall run concurrently.
34. Let a copy of this judgement along with lower court record be sent to the Sessions Judge, Fatehpur for compliance. A compliance report be sent to this Court.
Order date : 09th October, 2015 safi