Virendra Kumar Gupta vs State Of U.P.
2017 Latest Caselaw 4172 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 14
 
                                                                                     AFR
 
Case :- CRIMINAL APPEAL No. - 1327 of 2012
 

 
Appellant :- Virendra Kumar Gupta
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Alok Ranjan Mishra,G.S. Chaturvedi,Harvansh Singh,Prabhakar Awasthi,Rohan Gupta
 
Counsel for Respondent :- Govt. Advocate,H.B. Singh
 

 
Hon'ble Arvind Kumar Mishra-I,J.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 22.03.2012 passed by Additional Sessions Judge, Court No.10, Kanpur Nagar, in Sessions Trial No.1109 of 2009, State of U.P. Vs. Virendra Kumar Gupta and others, arising out of Case Crime No.368 of 2009, under Sections 498A, 304B IPC and Section 4 of Dowry Prohibition Act, Police Station- Rail Bazar, District- Kanpur Nagar, whereby the appellant has been sentenced to undergo three years rigorous imprisonment coupled with fine Rs.5,000/- under Section 498A IPC, in default of payment of fine, he will have to suffer addition three months rigorous imprisonment, ten years rigorous imprisonment under Section 304B IPC and one year rigorous imprisonment coupled with fine Rs.5,000/- under Section 4 of Dowry Prohibition Act, in default of payment of fine, he will have to suffer additional three months rigorous imprisonment.

Heard Sri Prabhakar Awasthi, learned counsel for the appellant, Sri Pradeep Kumar, learned AGA assisted by Sri Rajeev Kumar Rai, brief holder for the State and perused the record of this appeal.

Crux of event leading to the conviction of the appellant Virendra Kumar Gupta as unfolded by the first information report reflects that the informant Pyare Lal Gupta lodged the written report against the appellant and three others of his family members alleging therein fact that the informant got wedded his daughter Vijay Laxmi with the appellant Virendra Kumar Gupta, resident of 318, Rail Bazar, Cantt. Kanpur Nagar, in February, 2003 according to the Hindu rites and gave sufficient dowry at the time of marriage. But as soon as the informant's daughter Vijay Laxmi came to the house of her in-laws, Rs.2,00,000/- was demanded towards dowry. She was maltreated and cruelty was perpetrated on her. The informant side pacified and reconciled the in-laws of his daughter but nothing fruitful came out. The informant was under impression that things will be settled soon. However, it never happened. On 04.08.2009, the father of the appellant (Kanhaiya Lal) telephonically informed the informant that her daughter has set herself ablazed by pouring kerosene oil on her. After receiving this information, the informant came to Hallet Hospital, at Kanpur Nagar where he found his daughter dead in emergency room and there was deep burn all over her body. In the concluding part of the first information report, it was described that the death was caused on account of non-fulfillment of demand of dowry. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-1.

Record further reveals that contents of the written information were taken down in the concerned Check FIR at Case Crime No.368 of 2009 under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act, Police Station Rail Bazar, District Kanpur Nagar, on 04.08.2009 at 06:30 p.m. Check FIR is Ext. Ka-9.

On the basis of entries so made in the check F.I.R., a case was registered against the appellant in the relevant G.D. at serial no.39 on 04.08.2009 at 06:30 p.m. at the aforesaid Case Crime Number at Police Station Rail Bazar, under aforesaid Sections of I.P.C. and Dowry Prohibition Act against the appellant. General diary copy is Ext. Ka-10.

After registration of the case, the investigation ensued and was taken over by the Investigating Officer Dharmendra Singh, PW-7. The inquest of the deceased Vijay Laxmi was held by Indrasan Singh, PW-8, Additional City Magistrate-II, Kanpur Nagar. It commenced at 10:00 a.m. and completed at 12:15 p.m. on 05.08.2009. Inquest report is Ext. Ka-2.

In the opinion of the inquest witnesses and the Investigating Officer, it was suggested that post mortem of the dead body of Vijay Laxmi be ensured in order to ascertain real cause of death. Therefore, relevant papers were prepared such as letter to CMO Ext. Ka-5, photonash Ext. Ka-6, Police Form 13 challan dead body Ext. Ka-7 and specimen seal Ext. Ka-8.

Thereafter, the dead body was sent for post mortem examination in the mortuary at Kanpur Nagar where post mortem examination on the cadaver of the deceased Vijay Laxmi was done by Dr. R.P. Gupta, PW-3 on 05.08.2009 at 01:00 p.m. wherein he noted the following ante mortem burn injury:

Superficial to deep burn all over body sparing part of right side. Line of redness seen. Carbon particles in trachea seen.

In the opinion of the doctor, cause of death was due to shock as a result of extensive ante mortem burn injury. This post mortem examination report is Ext. Ka-4.

In the meanwhile, the investigation continued. The Investigating Officer PW-7 in the process recorded statement of various persons including the informant and Constable who made relevant entry in the Check FIR and general diary. He prepared site plan of the place of occurrence Ext. Ka-11. He also prepared recovery memo one plastic container five litre, one match box, ashes, half-burnt clothes besides piece of broken bangles from the spot as Ext. Ka-12.

During course of the investigation, the Investigating Officer PW-7 collected the invitation card of the marriage of the deceased Vijay Laxmi with the appellant Virendra Kumar Gupta which is Ext. Ka-10. The appellant was arrested on 05.08.2009. This witness was transferred and the investigation was then taken over by subsequent Investigating Officer, Ravi Shanker Chhavi PW-8. He continued the investigation and after doing the needful filed charge sheet against the appellant Ext. Ka-13.

Pursuant thereto committal proceeding took place and after compliance with Section 207 Cr.P.C., the case was committed to the court of Sessions from where it was transferred to the Additional Sessions Judge, Court No.10, Kanpur Nagar, for conduction of trial and disposal of the case, after numbering it as Sessions Trial No.1109 of 2009 State Vs. Virendra Kumar Gupta and others. Learned trial Judge heard the prosecution and the appellant on point of charge and was prima-facie satisfied with the case against the appellant, accordingly, framed charges under Sections 498A/34, 304B/34 IPC and 4 of Dowry Prohibition Act. Charges were read over and explained to the appellant who abjured charges and claimed to be tried.

In turn, the prosecution was required to adduce its testimony in support of the charge brought against the appellant to prove his guilt, whereupon the prosecution produced the following witnesses whose reference is being sketched hereinbelow.

Pyare Lal PW-1 is the informant and the father of the deceased Vijay Laxmi and he has lodged the written report. Gulabi Devi PW-2 is mother of the deceased. Dr. R.P. Gupta PW-3 has conducted post mortem examination on the cadaver of the deceased. Indrasan Singh PW-4 is Additional City Magistrate-II, Kanpur Nagar who got prepared inquest report and other relevant papers for sending the dead body for post mortem examination. Head Constable Rajesh Kumar Dixit PW-5 was Head Moharrir who proved relevant entry Ext. Ka-9 and Ext. Ka-10, recorded in the Check FIR and general diary of date 04.08.2009. Manoj Kumar Gupta PW-6 is brother of the deceased. Dharmendra Singh PW-7 is the first Investigating Officer of this case. Ravi Shanker Chhavi PW-8 is subsequent Investigating Officer who filed charge sheet against the appellant.

After that much, evidence for the prosecution was closed and statement of the appellant was recorded under Section 313 Cr.P.C. wherein he has claimed to have been absent from his house and was participating in some bid taking place at Ursula Hospital at Kanpur Nagar. Thereafter the appellant himself appeared as witness before the trial court and got examined as DW-1 wherein also he has claimed to have been absent on the spot when his wife sustained burn injury. Kanhaiya Lal Gupta DW-2 has detailed with aspect of separate living of the appellant at the time of occurrence. Except as above, no other testimony, whatsoever, has been adduced by the defence, therefore, evidence for the defence was also closed and the case was posted for arguments.

The case was heard on merits whereby the learned trial Judge acquitted all other accused except the appellant and convicted him under Sections 498A, 304B IPC and Section 4 of Dowry Prohibition Act and sentenced him to three years rigorous imprisonment coupled with fine Rs.5,000/- under Section 498A IPC, in default of payment of fine, he will have to suffer addition three months rigorous imprisonment, ten years rigorous imprisonment under Section 304B IPC and one year rigorous imprisonment coupled with fine Rs.5,000/- under Section 4 of Dowry Prohibition Act, in default of payment of fine, he will have to suffer additional three months rigorous imprisonment which eventually gave rise to this appeal.

Hence, this appeal.

At the outset, learned counsel for the appellant has submitted that in this case, peculiarity of family background and existing position of the appellant is in precarious condition that two minor children; one daughter and one son are residing with the elder brother of the appellant whose maintenance problem has been arising from the time when the appellant was sent to jail. The case of appellant should be considered on the point of quantum of sentence awarded by the trial court.

Learned counsel for the appellant has submitted that after conviction, he has nothing to state on merits of charges proved against the appellant, but insofar as the point of quantum of sentence is concerned, one thing is obvious and admitted to the prosecution that the mitigating circumstances would have served as measure of lesser punishment before the trial court but the trial court overlooked the very important aspect of the trial and it recorded harsh punishment under circumstances which was not justified, for example the appellant's minor children one daughter aged about 11 years for the time being and similarly one son aged below 10 years, were left without protection of their father. Both daughter and son are presently residing with the mother and father of the appellant right from the day of the alleged incident and the maternal grandfather and mother and maternal uncle of his children have not even asked for the custody of both the children from the day of the incident. These minor children have been deprived of love and affection of their father. No worthy purpose would be served by keeping the appellant behind the bar.

It is admitted fact that in this case, the deceased was taken to the hospital and given treatment not by the informant side but by the appellant side - his father and elder brother. The appellant was not present at that point of time in the house but he later on swarmed on the spot and provided the required need. The appellant is around 36-37 years of age for the time being and in case he is kept in confinement then the future and interest of his two children will be jeopardized. It is true that psychological as well as physical personality of the two minor children, in absence of the father will be detrimental to their natural development as human beings. All these particular aspects were not considered by the court below while awarding sentence to the appellant otherwise it was a case where sentence lesser than minimum would have been awarded to the appellant by the trial court.

Learned counsel for the appellant has further submitted that the appellant has suffered/detention during trial of this case in jail for ten months period and he is confined in jail since 22.03.2012 (date of judgment) and at present he has undergone sentence of six years, four months imprisonment. This much of sentence should be treated to be the total sentence for the offence proved against him and the appellant under the aforesaid particular circumstances may be allowed to go to home for taking proper care of his two minor children.

In support of his plea for early release from jail, the learned counsel for the appellant has submitted that the case of the appellant has been referred to the Government for remission of his sentence and his early release considering the good behaviour of the appellant in this case while under detention.

Per contra, learned AGA retorted to aforesaid arguments by submitting that in this case, the appellant has been found guilty of committing murder of his own wife who sustained burn injury which cannot be denied although he has submitted that no other injury was found on the body of the deceased. It is no denying fact that the appellant is left behind at home with two minor children and both are living with their grand parent - father and mother of the appellant. The sentence so awarded cannot be said to be harsh and tougher in comparison to the offence proved against the appellant.

I have also considered the rival submissions and taken into consideration rival claims. In view of above, core consideration which engages my attention for determination of this appeal basically relates to quantum of sentence awarded to the appellant by the trial court.

Since the prayer for consideration of the particular and special circumstances appearing against the appellant in this case has been sought to be considered by this Court which in turn is based on fact that the appellant is having two children; one daughter and one son, both of tender age and they are school going children and obviously their future will be adversely affected in today's society, if they are deprived of love and affection of their father, therefore, it is duty of the Court to ensure their future and not to jeopardize their future interest in the name of awarding sentence to a culprit.

No doubt, a culprit is required to be punished for the offence which he has committed but sentencing part of the trial also assumes much importance, for the reason that now the trial is over, now the Court has to cautiously consider the mitigating and the aggravating circumstances. Here, the mitigating circumstances are family scenario and the background and conduct of the appellant and particularly the fact that the appellant was never involved in any other criminal activity nor any criminal history has been attributed to his name and the case of the appellant has been referred to the Government for his release looking to his good behaviour in this case, the same concession has been sought to be given to the appellant.

In view of above particular facts, it would be just and proper in the interest of justice and in the fitness of things and to the betterment of the children, if sentence so awarded by the trial court to the extent of ten years rigorous imprisonment under Section 304B IPC is restricted to the period already undergone by the appellant (though lesser than seven years) which confines the period of detention to six years and four months and rest of the sentences awarded under Sections 498A IPC and 4 Dowry Prohibition Act are maintained. Therefore, the appellant is sentenced to the period already undergone by him under Section 304B IPC and sentence awarded by the trial court (under Section 304B IPC) is modified to that extent as aforesaid. Rest of the sentences awarded under Sections 498A IPC and 4 Dowry Prohibition Act are hereby maintained.

Accordingly, the instant appeal is allowed, partly in aforesaid terms.

In this case, the appellant is in jail. He shall be set at liberty forthwith unless and until he is wanted in connection with any other case. However, he shall ensure compliance of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Dt. 11.09.2017

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