HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. 46. A.F.R. Case :- CRIMINAL APPEAL No. - 3881 of 2007 Appellant :- Rashid Respondent :- State Of U.P. Counsel for Appellant :- M.P.S. Chauhan,Dr. Arun Srivastava,Poonam Nigam Counsel for Respondent :- Govt. Advocate Hon'ble Surendra Vikram Singh Rathore,J.
Hon'ble Raghvendra Kumar,J.
(Per Raghvendra Kumar, J. )
1. Under assail in the instant Criminal Appeal is the judgment and order dated 19.5.2007 passed by learned Additional Sessions Judge, Court No. 10 Aligarh in S.T.No. 943 of 2005 ( State Vs. Rashid and others ) arising out of Case Crime No. 158 of 2005 under sections 498A, 304-B I.P.C., Police Station Delhi Gate, District Aligarh whereby the accused-appellant has been convicted for the offence punishable under section 304-B I.P.C.and sentenced to imprisonment for life and a fine of Rs.10,000/- with default stipulation for further imprisonment of one year and further convicted for the offence under section 498A I.P.C.and sentenced to R.I.for two years and fine of Rs.1000/- with default stipulation for simple imprisonment for one month. He has also been convicted for the offence under section 315 I.P.C.and sentenced to R.I.for 7 years and fine of Rs. 2000/- with default stipulation of simple imprisonment for two months. He has further been convicted for the offence under section 4 Dowry Prohibition Act and sentenced to R.I.for one year and a fine of Rs. 1000/- with default stipulation with simple imprisonment for one month.
2. Heard Dr. Arun Kumar Srivastava and Ms. Poonam Nigam, learned counsel for the appellant and learned A.G.A.for the State of U.P.
3. The factual matrix of the case is as follows:
The FIR of the instant case was lodged with police on 16.6.2005 at 14.15 P.M.while the incident took place on 16.6.2005 at about 12.30 hours. According to the FIR version the marriage of daughter of the informant Zeenat Perveen was solemnized on 27.12.2002 with Mohd. Rashid s/o Mohd. Kadar Kuraishi. According to the FIR, sufficient dowry was given at the time of marriage but Mohd. Rashid husband of the deceased, Shakir Jeth, Mother-in-law Chhoti, Gulabo sister-in-law of the deceased, Shamshuddin brother-in-law of the deceased were not satisfied with the dowry given in the marriage. An additional demand of dowry was raised regarding Motor Cycle, Colour T.V.and a cash of Rs. 2 Lakhs. The informant and family members tried to convince them on the score of additional dowry but it had no effect. The deceased, daughter of the informant was ousted from the house on certain occasions. There was Community Reconciliation even it yielded no result. Approximately 15 to 20 days prior to the incident before the death of the deceased, filthy abuses were given to her and threat to her life was extended and she was ousted from the house. Thereafter on 14.6.2005 the accused persons visited the house of informant and assured that they would not make any demand of additional dowry in future nor would subject the deceased to cruelty or misbehaviour. Again they pressed their demand for additional dowry just second day when the daughter of the informant reached to her matrimonial home. On 16.6.2005 at about 12.30 hours, the informant received information that his daughter has been murdered by hanging. After receiving the information he along with his son and others visited the daughter's matrimonial home. The accused persons fled away from the spot after seeing the informant and others. The deceased was pregnant and was shortly expected to deliver a child. The corpus of the deceased daughter of the informant was lying there. The FIR was lodged.
4. After registration of the FIR the investigation proceeded. Inquest was prepared and certain documentation was done for the purposes of post-mortem examination of the corpus of the deceased. A recovery memo was prepared with respect to articles recovered from the deceased. The post mortem of the body was done. After recording the statements of the witnesses and collecting the evidence, the investigation culminated into filing of police report in the shape of charge sheet.
5. After complying with the procedure contemplated under the Code of Criminal Procedure by the learned court below the accused Rashid s/o Kadar , Rashid s/o Nanhey, Shakir, Shamsuddin were charged for the offence under sections 498-A, 304-B and 315 I.P.C.read with ¾ Dowry Prohibition Act.
6. The charges framed against accused on 30.4.2007 reiterating the heads on which the charge was earlier framed on 6.7.2006. The accused persons denied the prosecution case, claimed themselves innocent and taken plea of false implication.
7. To substantiate the charge the prosecution has examined P.W.1 Mohd. Hanif, P.W.2 Bhuri, P.W.3 Mohd. Chand, P.W.4 Abdul Salam, P.W.5 Abdul Wahid, P.W.6 Anwar, P.W.7 Constable Dhirendra Singh who has proved the execution of chick FIR and relevant entry in G.D.
8. P.W.8 Dr. V.K.Gupta has conducted autopsy of the corpus of the deceased Zeenal Perveen and has noted following ante mortem injuries:-
(i) Ligature mark 9 cm x 1 cm on Lt.side neck upper part .
(ii) Multiple abrasion on Rt.side neck 8 cm x 3 cm in size.
(iii) Contusion 4 cm x 3 cm on Lt. Side abdomen 17 cm below Left nipple.
On internal examination, the Doctor has noted presence of blood out side of both the lungs, lungs were found congested. Trachea was not found fractured. There was presence of blood in abdominal cavity. 100 ml of water was found in stomach. Spleen was found ruptured. There was triangular lacerated wound on the spleen. The deceased was having pregnancy of 8 ½ months.
Cause of death has been assigned Asphyxia, shock & haemorrhage as a result of ante mortem injury.
9. P.W.8 Dr. V.K.Gupta has proved the execution of autopsy report.
10. The husband Mohd. Rashid has admitted marriage with Zeenat Perveen. He has denied rest of the allegations and has disclaimed the knowledge with respect to the material put to him which appeared during course of trial. By way of additional statement he has stated that his wife was very short tempered. She wanted goad bharai rasam of her child at her parents' home which he declined. He further stated that he went to purchase some items from the market and when he came back he found the deceased lying on the bed in unconscious condition. A Dhoti was found wrapped in her neck. He took her to the hospital where she was declared dead and she was taken back to the house and kept there. The rest of the accused persons also denied about material put to them which appeared during the course of the trial and also disclaimed knowledge.
11. After conclusion of the trial, the accused-appellant Rashid s/o Kadar was convicted and rest of the accused namely, Shakir, Rashid s/o Nanhey and Shamshuddin were acquitted.
12. It has been submitted on behalf of the accused appellant that he does not want to press the appeal on merits and has submitted that the accused appellant is in jail and he prayed for mercy of the Court.
13. Being Court of first appeal, the Court is obliged to scrutinize the evidence which is available on record and to see that the learned Court below has rightly recorded the finding of conviction on the basis of the material available on record.
14. In the instant case, the P.W.1 Mohd. Hanif is father of the deceased whose daughter has been murdered by hanging by her neck. He has categorically stated that the marriage of his daughter Zeenat Perveen was solemnized with Mohd. Rashid son of Kadar about 3 years and 8 months back. He had given sufficient items in the dowry at the time of marriage of her daughter but the husband and his family members ,namely, Shakir, Chhoti, Gulabo, Shamshuddin and Rashid son of Nanhey were not satisfied with the dowry given in the marriage. The accused persons allegedly assaulted his daughter on occasions after marriage and even they ousted her from the house. Additional demand of dowry for Colour T.V., Motor Cycle and a cash of Rs. Two lakhs was made on which the informant complainant tried to convince to the husband and in- laws of the daughter. There was a Community Reconciliation effort even in the presence of those members the demand of Motor cycle, Colour T.V. and a cash of Rs. 2 Lakhs was reiterated. They did not agree to the suggestion of the Panchayat. 15 to 20 Days prior to the incident the daughter was physically assaulted, abused and was even ousted from the house due to non-fulfilment of demand of dowry.
15. The deceased Zeenat Perveen residing with her parents for 10 - 12 days. Thereafter accused persons again took away the daughter of the informant to their house.
16. On 16.6.2005, the informant received the message that his daughter was hanged and murdered by the accused persons. The witness P.W.1 has stated that the deceased had ligature mark in her neck. She was having pregnancy of 8 ½ months. He further stated that whenever the deceased came to her parents' house, she used to complain of conduct of the accused persons regarding demand of additional dowry and subjecting her to cruelty and misbehaviour on the score of dowry.
17. Before appreciating the evidence, it is essential to appreciate the ingredients of Section 304-B I.P.C. These ingredients are as under:
(1) 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 (ii) 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, 18. In the instant case, the death has been caused within 7 years of marriage in unnatural circumstance, the deceased was subjected to cruelty and harassment by the husband and relatives. The cruelty or harassment was done for the demand of additional dowry. P.W.1 has categorically stated that the marriage of Zeenat Perveen was solemnized with Rashid son of Kadar approximately 3 years and 8 months back. He made a definite allegation regarding demand of additional dowry of Colour T.V., Motor Cycle and a cash of Rs. Two Lakhs. He has further stated on oath that her daughter was subjected to cruelty, misbehaviour and harassment at occasions and was even ousted. She was even physically assaulted soon before her death. The witness has been put to lengthy cross examination. Nothing could be elicited by way of cross- examination which may be termed as material contradiction which may raise finger towards the veracity of the statement of the witness. 19. The witness has consistently supported the FIR version. He has corroborated the FIR version through his oral testimony. Nothing has been admitted by the witnesses in his oral testimony which may go to the root of the FIR version and may assail its credibility. 20. There has been consistency on the point of factum of solemnization of marriage giving of dowry at the time of marriage making additional demand of dowry subjecting to her daughter Zeenat Perveen ill treatment, misbehaviour or harassment on the score of additional dowry. Thus we are of the view that there is consistency and coherence in the examination- in- chief and cross- examination of P.W.1 Testimony of P.W.1 on being considered its entirety appears to be natural, genuine and credible. The testimony of P.W.1 finds full support from the testimony of medical evidence i.e. statement of P.W.8 Dr. V.K.Gupta. The P.W.1 has stated that the deceased Zeenat Perveen was subjected to cruelty, she was murdered by hanging. The ante mortem injuries no. 1 and 2 correspond to the averment of causing murder by hanging. 21. No where it has been disputed on behalf of the accused appellant that the deceased was not having pregnancy. The ante mortem injury no. 3 as stated by the Dr. P.W. 8 in examination- in- chief clearly mentions mark of contusion 4 cm x 3 cm on left side to the abdomen, 17 cm below left nipple. This injury itself is indicative of the fact that the deceased was subjected to cruelty. The Doctor has further corroborated the factum of pregnancy. The testimony of P.W. 1 finds full support from the testimony of P.W.8 Dr. V.K.Gupta. 22. It is true that P.W.2 Bhurey, P.W.3 Mohd.Chand, P.W.4 Adbul Salam, P.W.5 Abdul Wahid, P.W. 6 Anwar have not supported the prosecution version. They have been declared hostile and learned A.D.G.C.(Criminal) was accorded permission by learned trial Court for cross examining the witnesses. 23. It is settled proposition of law that even after some of the witnesses of fact being declared hostile, the evidence available on record can be considered and even then if in the estimation of Court the evidence is reliable and credible, there is no legal impediment before the Court for drawing the inference of guilt on the basis of the evidence available on record. It is a settled proposition of law that even on the testimony of single witness conviction can be recorded provided the testimony of single witness found to be credible, wholly reliable and inspire confidence. It is not the quantity of the evidence but quality of evidence that matter. Section 134 of Evidence Act, categorically contemplates that no particular number of witness shall in any case be required for the proof of any fact.
24. In case of Dowry death, the presumption as to dowry death under section 113- B of Indian Evidence Act starts operating when the death is caused within 7 years of her marriage in unnatural circumstances and the burden lies on the accused would be that neither there was a demand of dowry nor woman was subjected to cruelty or harassment for the demand of dowry. The death was not occasioned in unnatural circumstance within 7 years of marriage such burden lies on the accused persons.
25. In the instant case, the accused persons Shakir, Rashid son of Nanhey, Shamshuddin, Rashid son of Kadar were charged for the offence under sections 498-A, 304-B, 315 I.P.C.and ¾ Dowry Prohibition Act, out of which the trial Court on merits acquitted the co-accused Shakir, Rashid son of Nanhey, Shamshudding s/o Imam Uddin, only accused Rashid son of Kadar, the husband of the deceased, has been convicted for the above offence. The accused Rashid son of Kadar failed to discharge the burden as contemplated under section 113- B of Indian Evidence Act. The Trial court has not erred in recording the finding of conviction for the offence for which accused Rashid son of Kadar was charged. The learned Trial court has taken the correct view.
26. So far as the question of quantum of punishment is concerned, it has been argued before us that the accused is a young man and he owns the responsibility of maintaining his family members, he is incarcerating in the jail since 16.6.2005. It has been further submitted that he is poor man, he would earn his livelihood on daily basis for the benefit of his family members.
27. Learned A.G.A.has not opposed the argument and has conceded that the accused is in jail.
28. It has always been the philosophy of the law that punishment should be imposed after conviction which should neither be harsh one nor should be liberal. The punishment should be such which should satisfy the ends of justice. No straight jacket formula has been provided by the legislature or by the Court through its pronouncements which specifically provide for quantum of sentence. It is the settled proposition of law that quantum of sentence to be awarded against the conviction after considering the aggravating, extenuating or mitigating circumstances which vary from case to case.
29. Section 235 of the Code of Criminal Procedure which provides for giving an opportunity of hearing to the accused after conviction on the quantum or magnitude of sentence to be awarded to him for a particular offence and the provision is mandatory in nature. The philosophy behind the section 235 has already been discussed by Hon. Apex Court through a catena of decisions.
30. In Dagdu and Ors. v. State of Maharashtra, (1977) 3 SCC 68 Hon'ble Apex Court had held that :
"The imperative language of Sub-section (2) leaves no room for doubt that after recording the finding of guilt and the order of conviction, the Court is under an obligation to hear the accused on the question of sentence unless it releases him on probation of good conduct or after admonition under Section 360. The right to be heard on the question of sentence has a beneficial purpose, for a variety of facts and considerations bearing on the sentence can, in the exercise of that right, be placed before the Court which the accused, prior to the enactment of the Code of 1973, had no opportunity to do. The social compulsions, the pressure of poverty, the retributive instinct to seek an extra-legal remedy to a sense of being wronged, the lack of means to be educated in the difficult art of an honest living, the parentage, the heredity- all these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence. The mandate of Section 235(2) must, therefore, be obeyed in its letter and spirit."
31. In Munippaan v. State of Tamil Nadu, AIR 1981 SC 1220 Hon'ble Supreme Court had held :
"The obligation to hear the accused on the question of sentence which is imposed by Section 235(2) he Criminal Procedure Code is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the Judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the Court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of Section 235(2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the Judge can put to the accused under Section 235(2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The Court, while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction."
32. The Courts have time and again laid down guidelines and the philosophy behind the magnitude of the sentence to be awarded to a convict in Hazare Singh Vs. Raj Kumar ( 2013)9 SCC Page 516:
"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
33. In the case of Hem Chand vs. State of Haryana ( 1994) 6 SCC 727, Hon'ble Apex was pleased to make the following observation :
"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."
34. In the case of Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1, the Hon'ble Apex Court had held :
"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."
35. Keeping in view the philosophy of sentencing and observation made by Hon'ble Apex Court we are of considered opinion that where ever legislature provides minimum sentence it indicates that in the estimation of legislature the minimum sentence provide for the offence would meet the ends of justice in general bearing exceptional circumstances peculiar to facts of particular case.
36. In the instant case, Rashid son of Kadar has been convicted for the offence under section 304-B along with section 315 I.P.C. As such we are of the considered opinion that minimum sentence provided for the offence under section 304-B would not suffice the ends of justice.
37. In view of discussions made above, we are of the considered opinion the learned Court below has not erred in recording the finding of conviction against the accused appellant Rashid. The finding of conviction recorded by the trial court is hereby affirmed. The quantum of sentence awarded by the learned Court below is required to be interfered with. Thus the appeal deserves to be partly allowed on the quantum of sentence.
38. The appeal is partly allowed without interfering in the conviction recorded by learned Court below. The sentence awarded by learned Court below for the offence under section 304-B is hereby modified to R.I. for 10 years in place of imprisonment for life. The accused appellant Rashid son of Kadar is entitled to get commutation as provided under the Code of Criminal Procedure.
39. Let a copy of this judgment and order along with lower court record be transmitted forthwith to learned Court below concerned for compliance.
Dated: 22nd Sept 2015. ( Raghvendra Kumar, J.) (S.V.S.Rathore,J.) Su