HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 27 [A.F.R.] Case :- CRIMINAL APPEAL No. - 787 of 2015 Appellant :- Mukesh Respondent :- State Of U.P. Counsel for Appellant :- In Persion (Jail Appeal),Anshuman Sharma Hon'ble Rang Nath Pandey,J.
1. The instant appeal has been preferred against the Judgment and Order dated 18.07.2014 passed by Special Judge, CBI Court No.3, Lucknow in Session Trial No.808 of 2010 arising out of case crime No.116 of 2010 under Sections 498-A, 304-B, 302 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act, Police Station Banthara, District Lucknow, whereby the appellant has been convicted and sentenced to two years rigorous imprisonment under Section 498-A of the Indian Penal Code along with fine of Rs.1000/- and in default of payment of fine, to further undergo two months' additional imprisonment; awarded seven years rigorous imprisonment under Section 304-B of the Indian Penal Code; awarded one year rigorous imprisonment under Section 4 of the Dowry Prohibition Act along with the fine of Rs.2,000/- and in default of payment of fine, to further undergo three months' additional imprisonment.
2. At the very outset, I would like to mention that the learned Amicus Curiae appearing for the appellant has submitted that the apellant, after conviction by the trial court, remained in judicial custody and as per report dated 31.07.2017 furnished by Jail Superintendent, District Jail, Lucknow, the appellant after completing the entire period of sentence of seven years and after deposit of the entire amout of fine i.e. Rs.3000/-, has been released from jail on 14.10.2016.
3. In view of the above, learned A.G.A. has submitted that as the appellant has already undergone the entire period of sentence awarded to him by the trial court and has also deposited the fine, this appeal has become infructuous and the same may be dismissed as having become infructuous.
4. The aforesaid submission made by learned A.G.A. does not appeal to me.
5. Only due to the reason that the appellant has already undergone the entire period of sentence awarded to him by the trial court and has deposited the fine too, the appeal does not become infructuous. In my considered view, an appeal has to be decided on merits in order to ascertain the guilt or innocence of an accused person.
6. Heard learned Amicus Curiae Sri Anshuman Sharm, learned counsel for the appellant as well as learned Additional Government Advocate and perused the material available on record.
7. In brief, the prosecution case is that the complainant Ram Sewak, father of the deceased, lodged an FIR on 9.5.2010 at 6.30 hours at Police Station Asoha, District Unnao, alleging therein that the marriage of his daughter, namely, Maya was solemnized with the appellant Mukesh about two years prior to the incident and as per financial condition of the complainant, he had given sufficient dowry in the marriage, but appellant side were making demand. Her daughter used to say with regard to demand of dowry being made by the complainant, when she visited her paternal house. Even prior to eight days of the incident, when the appellant had come for Vidai, he stated that she would be done to death. Later on, deceased's father got an information about the death of his daughter by a village girl, who is married in the appellant's village, at 4.00 hours, but no information regarding her death was given by the appellant's side. Complainant, Ram Sewak, immediately rushed to matrimonial home of the deceased along with other family members. On reaching there, they saw that she was lying dead. Thereafter, he went to the police station and lodged an F.I.R. in respect of the aforesaid incident.
8. As per the post-mortem report, the following injuries were noted by the doctor on the body of the deceased:
Oblique ligature mark 26x3.00 cm xys ds pkjks vksj ekStwn FkkA Fkk;jkWM dkVhZysat ds mij] xys ds lkeus passing obeliqely upward and backwards, along the line of mandiable, which is interupted by 7.00cm on pastio lateral aspect of right side of neck 3.00cm behind right ear.
Ligature mark situated 3.00cm below right ear and 6.00cm below left ear.
Base of ligature mark is yello wish, hard and parchment like, on opening sub cutaneous tissues under neath the ligature mark is, white, hard and glisteng.
e`rdk ds vkarfjd ijh{k.k esa fuEufyf[kr rF; ik;s x;s%& Membranes-congested, Brain-congested, pleura-congested, Both lugns-congested, pericardiam-congested, heart-left entry and right side is full, peritoriam-congested, vek'k;&200 feyh nzO; rFkk 'ks"k vaxks NksVh vkar& ipk Hkkstu rFkk xSlst ekStwn] yhoj & congested 205 gm., gall bladder ½ full, pancreas- congested, Spleen-congested 225 gm., Kidney-congested 250 gm. Uterus-empty.
9. According to the opinion of the doctor, the cause of death was due to ante-mortem strangulation.
10. After registration of the case, place of occurrence was inspected and after completion of the investigation, the charge-sheet was filed against the appellant-accused and parents of the appellant.
11. The accused persons denied their involvement in the crime and alleged that they are innocent and they have been falsely implicated in this case. There was no demand of dowry and deceased has committed suicide.
12. The case being exclusively triable by the court of Sessions, it was committed to the Sessions Court where charges under Sections 498-A/304-B of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against all of them were found, to which all of them denied and claimed to be tried.
13. The prosecution, in order to prove its case, produced as many as nine witnesses i.e. P.W.1 -Ram Sewak (Informant), P.W.2 - Holi Lal (Mausa), P.W.3- Smt. Bhikhana (mother of the deceased), P.W.4 - Pyare Lal, P.W.5- Smt. Shanti, P.W.6 - Dr. J.P. Tewari, P.W.7- Suresh Ram ( Naib Tehsildar), who made panchnama, P.W.8 - Ram Awadh Yadav, who had preapred the chik report and had made necessary entires in G.D. and P.W.9- D.P. Shukla, who is the Investigating Officer.
14. On behalf of the defence, D.W.-1 Awadh Kishore was examined, who in his statement deposed that on the point that on the date of incident, the appellant Mukesh was not present and it was a case of suicide.
15. Submission of learned counsel for the appellant is that the prosecution has failed to produce any independent eye-witness to prove the prosecution version. Learned trial Court has wrongly and incorrectly convicted the appellant on the basis of the statements of the interested witnesses, which is unjustified and incorrect appreciation of evidence. Learned trial court has committed a manifest error by awarding the sentence by wrongly presuming that there is involvement of the appellant in the alleged crime. Therefore, the findings of conviction cannot be sustained.
16. In contrast, learned Additional Government Advocate has submitted that the learned trial court has correctly appreciated the entire evidence of the prosecution and also the evidence of the defence and thereafter, has reached to the correct conclusion that the guilt of the appellant is proved beyound reasonable doubt and has, rightly, convicted the appellant. Therefore, the judgment of the trial court needs no interference.
17. As stated above, though the sentence of the appellant under Sections 498-A and 304-B of the Indian Penal Code and Section 4 of the Dowry Prohibition Act has already been served by the appellant in spite of that we have gone through the evidence on record. All the family members and relatives of the deceased have supported prosecution version. There was evidence of the witnesses regarding demand of dowry and consequential ill treatment. She was subjected to cruetly in connection with the demand of dowry. So all ingredients to constitute the offence of dowry death stands established. Admittedly, the deceased was wife of appellant and she has died an unnatural death that stands proved by her postmortem report. Admittedly, she died in less than 7 years after her marriage. Thus all the ingredients to constitue an offence of dowry death stands proved against the appellant. So learned trial court has not commited any illegality in convicting the appellant.
18. It is true that in the postmortem, cause of death was due to stragulation. If the deceased was committed suicide as suggested by the defence, ligature mark must have been found around the neck. But the only injury noted in the postmortem report was ante-mortem and there was no postmortem injury. So this court concurs with the view of learned trial court that it was a case of hanging after causing death. Law is settled on the point that suicide is also an unnatural death for the purpose of Section 304-B of the Indian Penal Code. Reference may be made on this point to the pronouncement of Hon'ble the Apex Court in the case of Shanti V. State of Haryana reported in (1991) (1) SCC 371 and also in the case of M. Narain V. State of Karnataka reported in (2015) 6 SCC 465. In the case of M. Narain, the deceased died due to hanging and conviction by High Court was maintained.
19. It is a case of dowry death. Before proceeding further, this court would like to discuss the necessary ingredients to constitute an offence under Section 304-B of the Indian Penal Code. 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 been 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 curelty or harassment must be in connection with the demand for dowry."
20. In the facts of the instant case, when this court goes through the evidences of the prosecution witnesses of facts then it is clear that the deceased was married with the appellant Mukesh about two 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 witnesses of facts have given evidence that there was a demand of dowry. 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 appellant. The statements of the witnesses given in the cross-examination that the main allegation was against the husband. P.W.3- Smt. Bitana, who happens to be mother of the deceased, has also supported the case of the prosecution. After investigation, charge-sheet was filed against the present appellant and parents of the appellant. So far as the appellant Mukesh is concerned, against him all the necessary ingredients to constitute an offence of dowry death stands established.
21. Now, the point of appropriate sentence comes before my consideration.
22. On the point of sentence, this court 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 para 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 curelty 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 curelty 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."
23. 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 para 30 of the judgment has held as under:
"On the point of sentence, learned counsel for the appellant point 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. Insofar as sentencing under the section is concerned, a three Judge Bench of this Court in the case of Hemchand v. State of Haryana reported in (1994) 6 SCC 727 has observed that:
"Section 304B merely raises a presumption of dowry death and lays down that the manimum sentence should be 7 years, but it may extent to imprisonment for life. Therefore, awarding the extreme punishment of imprisonment for life should be used in rare cases and not in very case"
24. Before parting with the judgment, I 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 I.P.C.
25. The trial court has also awarded sentence for the offence under Section 498-A but the offence under Section 498-A IPC 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 paragraphs 5 reads as under:-
"5...... But from the point of view of practice 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".
26. Thus, keeping in view the aforementioned legal position, we are of the considered view that the sentence of seven years rigorous imprisonment was sufficient to meet the ends of justice so far as appellant Mukesh, husband of the deceased is concerned.
27. In view of the discussion made above, conviction of appellant Mukesh under Section 304-B IPC is hereby confirmed. Conviction under Section 498-A IPC is also confirmed. However, no separate sentence is being passed for this offence. Conviction and sentence inflicted by the trial court under Section 4 of the Dowry Prohibition Act is also hereby confirmed.
28. Accordingly, this appeal is dismissed.
29. As the appellant has already served the entire period of sentence awarded to him, there is no need to pass any further order. The lower court record be sent to the court below along with a copy of this order.
Order Date:5.10.2017 GK Sinha
[Rang Nath Pandey, J.]