Rahul And Anr. vs State Of U.P.
2018 Latest Caselaw 1043 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 4
 
Case :- CRIMINAL APPEAL No. - 1787 of 2011
 
Appellant :- Rahul And Anr.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Atul Kumar Tiwari,Neeraj Pandey,Raj Kumar Sharma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Rajiv Gupta,J.

Per Hon'ble B. K. Narayana, J.

Heard Sri Neeraj Pandey and Sri Raj Kumar Sharma, learned counsel for the appellants and Sri J. K. Upadhyay, learned A.G.A. for the State.

This criminal appeal has been preferred by the appellants, Rahul and Komal Singh against the judgement and order dated 31.01.2011 passed by Additional Sessions Judge/Fast Track Court No. 4, Firozabad in S.T. No. 108/2008, State Vs. Rahul and another, arising out of Case Crime No. 421/2007, convicting the appellants and sentencing them to two years rigorous imprisonment and fine of Rs. 1,000/- and in case of default in payment of fine, six months additional rigorous imprisonment u/s 498-A I.P.C., imprisonment for life u/s 304-B I.P.C., five years rigorous imprisonment and a fine of Rs. 15,000/- u/s 3 of Dowry Prohibition Act, one year rigorous imprisonment and a fine of Rs. 1,000/- u/s 4 of Dowry Prohibition Act and in case of default in payment of fine, six months additional imprisonment. All the sentences were directed to run concurrently.

Briefly stated the facts of this case are that P.W.1 informant Bhola Singh gave a written complaint at P.S.- Sirsaganj, Sub-district- Shikohabad, District- Firozabad on 01.09.2007 at about 18.15 hours stating therein that marriage of his grand-daughter Smt. Sarita was solemnized according to Hindu rites and rituals with Rahul Kumar (A1), son of Komal Singh (A2) about three years before. After the marriage, his grand-daughter's husband Rahul (A1), father-in-law Komal singh (A2) and sister-in-law Kumari Julie started demanding a motorcycle as additional dowry and torturing and maltreating her in connection with non-fulfillment of aforesaid demand of additional dowry on account of which she had returned to her paternal home and had been living there for about one year. About two months before the occurrence, deceased's husband Rahul (A1) and father-in-law Komal Singh (A2) on their assurance that they would not torture or harass Smt. Sarita, took her to her matrimonial home with them but they continued to torture her on receiving information whereof, P.W.1 informant Bhola Singh came to village- Singmai on 16.08.2007 along with his son-in-law P.W.2 Veerbhan Singh, resident of Singmai and met his grand-daughter Smt. Sarita who told him that the appellants were demanding a motorcycle and for the reason of non-fulfillment of the aforesaid demand, the appellants and her sister-in-law Kumari Julie were torturing her. They tried to remonstrate with the appellants and on the promise that he would come again on 17.08.2007 and take away his grand-daughter Smt. Sarita with him, he left the matrimonial home of the deceased with his son-in-law P.W.2 Veerbhan Singh. On 17.08.2007 at about 4.30 a.m., he heard that the appellants and deceased's sister-in-law Kumari Julie had attempted to burn Smt. Sarita to death on which he along with his son-in-law Virbhan Singh, daughter Smt. Munni Devi and other villagers rushed to the house of Smt. Sarita where they saw Smt. Sarita lying in her house severely burnt and wriggling with pain. No one was present in the house. Smt. Sarita told that her husband Rahul (A1), father-in-law Komal Singh (A2) and sister-in-law Kumari Julie had sprinkled kerosene oil on her and set her ablaze due to non-fulfillment of their demand of motorcycle. He got his grand-daughter Smt. Sarita admitted to S.N. Hospital, Firozabad and then went to the police station to lodge the report.

On the basis of the written report of P.W.1 informant Bhola Singh (Ext.Ka.1), Case Crime No. 421/2007 u/s 498-A, 323, 324, 506 I.P.C. was registered against the appellants, Rahul (A1) and Komal Singh (A2) and Kumari Julie, sister-in-law of the deceased. Check F.I.R. (Ext.Ka.8) and relevant G.D. Entry (Ext.Ka.9) were prepared by P.W.8 Harish Chandra. After the registration of the case, the investigation was entrusted to P.W.6 S.I. Ram Prakash who gave an application on 03.09.2007 before Chief Judicial Magistrate, Firozabad with a prayer to permit him to record the statement of Smt. Sarita. Upon the death of Smt. Sarita on 29.08.2007 who died during the treatment in the hospital, the case was converted to one u/s 306 I.P.C. The inquest on the body of the deceased was conducted by P.W.7 S.I. Jaipal Singh on 30.08.2007. He prepared the inquest report of the deceased (Ext.Ka.2) and other related documents namely letter addressed to C.M.O., challan nash, photo nash and letter addressed to R.I. (Ext.Ka.4 to Ka.7). The dying declaration of the deceased was recorded by P.W.11 Chabiram Verma, Naib Tehsildar, Tehsil- Dundla, District- Firozabad on 24.08.2007 at about 7.20 a.m. in District Hospital- Firozabad (Ext.Ka.10). After the death of the deceased Smt. Sarita, the investigation of the case was transferred to P.W.10 Karamveer Singh from P.W.6 S.I. Ram Prakash. The investigation was thereafter transferred to P.W.13 C.O. Suresh Chandra Rawat, District- Pilibhit who inspected the place of occurrence and prepared its site plan (Ext.Ka.11) and after completing the investigation, he filed charge-sheet (Ext.Ka.12) on 01.12.2007 against the accused-appellants and co-accused Kumari Julie u/s 498-A, 304-B, 323, 324, 506 I.P.C. & ¾ of Dowry Prohibition Act before Chief Judicial Magistrate, Firozabad.

Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Firozabad committed the appellants Rahul (A1) and Komal Singh (A2) and co-accused Kumari Julie for trial to the Court of Sessions Judge, Firozabad where their case was registered as S.T. No. 108/2008, State Vs. Rahul and another, and made over for trial from there to the Court of Additional Sessions Judge/Fast Track Court No. 4, Firozabad who on the basis of material collected during the investigation and after hearing the prosecution as well as the accused on the point of charge, framed charge u/s 498-A, 304-B I.P.C. & ¾ of Dowry Prohibition Act against the appellants and co-accused Kumari Julie who abjured the charges framed against them and claimed trial.

The prosecution in order to prove its case examined as many as 13 witnesses of whom P.W.1 informant Bhola Singh, grand-father of the deceased, P.W.2 Veerbhan, uncle (phufa) of the deceased, P.W.3 Surajbhan, P.W.4 Smt. Munni Devi, wife of P.W.2 and aunt of the deceased were examined as witnesses of fact while P.W.5 Jaivir Singh, Consultant, S.N.M. Hospital, Firozabad who had conducted the postmortem on the body of the deceased and prepared the postmortem report (Ext.Ka.3), P.W.6 S.I. Ram Prakash, the first Investigating Officer of the case, P.W.7 Jaipal Singh, who had conducted the inquest on the body of the deceased and prepared the inquest report (Ext.Ka.2) and other related documents (Ext.Ka.4 to Ka.7), P.W.8 Constable Harishchandra who had prepared the check F.I.R. (Ext.Ka.8) and the relevant G.D. Entry vide rapat no. 35 time 18.15 hours dated 01.09.2007 (Ext.Ka.9), P.W.9 Datadeen Verma who had proved the dying declaration of the deceased which was recorded in the G.D. (Ext.Ka.10), P.W.10 Karamveer Singh, the second Investigating Officer of the case, P.W.11 Chabiram Verma, Naib Tehsildar, Tehsil- Dundla, District- Firozabad who had recorded the dying declaration of the deceased Smt. Sarita, P.W.12 Dr. Vinay Kumar who had certified that the deceased was in a fit mental condition to give her dying declaration and P.W.13 C.O. Suresh Chandra Rawat, District- Shikohabad who had completed the investigation and filed charge-sheet (Ext.Ka.12) against the accused, were produced as formal witnesses.

The accused-appellants in their statements recorded u/s 313 Cr.P.C. denied the prosecution case as false and alleged false implication. Komal Singh (A2) further stated that he was living separately from his son Rahul (A1) and the deceased. The defence also examined Smt. Rajni, wife of Hamvir Singh as D.W.1 and Ompal Singh, son of Nawab Singh as D.W.2 who proved that the deceased was an ill-tempered woman and in a spell of anger, she had attempted to commit suicide in the night of 16/17.08.2007 by pouring kerosene oil on her and setting herself ablaze.

Learned Additional Sessions Judge/Fast Track Court No. 4, Firozabad after considering the submissions made by learned counsel for the parties before him and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellants u/s 498-A, 304-B I.P.C. & ¾ of Dowry Prohibition Act and awarded aforesaid sentences to them while the trial of co-accused Kumari Julie was referred to Juvenile Justice Board, Agra on 17.02.2010.

Hence, this appeal.

Sri Neeraj Pandey, learned counsel for the appellants at the very outset gave up his challenge to the conviction of the appellants recorded u/s 498-A, 304-B I.P.C. & ¾ of Dowry Prohibition Act and has confined his challenge to the quantum of punishment (life imprisonment awarded to them) only. He has however submitted that the reliance placed by the trial court on the so-called dying declaration of the deceased (Ext.Ka.10) while convicting the appellants u/s 304-B I.P.C. was not warranted.

According to Sri Neeraj Pandey, learned counsel for the appellants having regard to all the circumstances which resulted in conviction of the appellants and further keeping in view the fact that the appellants have already undergone more than 10 years of imprisonment and still continue to remain in jail, this Court should alter the award of life sentence to that of one already undergone by the appellants. Sri Neeraj Pandey further submitted that though Section 304-B I.P.C. prescribes awarding of imprisonment for a term which shall not be less than seven years which may extend for life, yet according to him the instant case is not a case where the trial judge should have awarded life sentence to the appellants. Learned counsel for the appellants submitted that any term of more than seven years could meet the ends of justice and since in this case more than 10 years of imprisonment has already been undergone by the appellants, this Court should allow the appeal to this extent by modifying the impugned judgment insofar as the quantum of sentence is concerned and reduce the same from life imprisonment to that of 10 years.

Sri J. K. Upadhyay, learned A.G.A. appearing for the State, while countering the submission made by the counsel for the appellants, submitted that having regard to the totality of circumstances emerging out of the evidence and the fact that a young girl was murdered in her matrimonial home within seven years of her marriage, the award of sentence of life imprisonment to the appellants is fully justified and hence, this Court should not interfere with the quantum of sentence.

Having heard learned counsel for the parties and on perusal of entire record of the case, we find force in the submissions of the learned counsel for the appellants that considering the discrepancy with regard to the specific items demanded as dowry by the appellants from the deceased and her grand-father as spelt out in the F.I.R. and in the statements of the witnesses of fact and those stated by the deceased in her dying declaration, the credibility and the authenticity of the dying declaration stands shaken. The consistent case of the prosecution as stated in the F.I.R. and as deposed by the witnesses of fact is that soon after the marriage, the appellants had started demanding a motorcycle from the deceased and her family members as additional dowry but the deceased in her dying declaration has stated that she was set ablaze by the appellants and her sister-in-law on account of non-fulfillment of demand of Rs. 30,000/- cash made by the appellants from her. The allegations made by the deceased in her dying declaration that the appellants were asking her to bring a sum of Rs. 30,000/- from her brother and on account of her failure to arrange the aforesaid amount, she was set ablaze by her husband and his other relatives, does not find corroboration from any other evidence on record and the same does not appear trustworthy and reliable.

Though the appellants did not make any attempt to assail the finding of their conviction on merits except that the trial court erred in placing reliance upon the dying declaration of the deceased while convicting them yet with a view to satisfy ourselves as to whether the finding of the court below on conviction is legally sustainable or not, we perused the record and specially the evidence. Having so perused, we are satisfied that no case is made out to interfere in the findings of the court below on merits for the following reasons even after excluding the dying declaration of the deceased from consideration.

Firstly, Smt. Sarita died within seven years of her marriage and her death was unnatural. This event attracted rigor of Section 304-B read with Section 498-A I.P.C.; secondly, her death was due to persistent illegal demands of dowry made by the appellants one after the other from Smt. Sarita; thirdly, the death of Smt. Sarita had a direct nexus with demand of dowry duly proved by evidence and mentioning therein the reasons; lastly in the light of these established facts, a clear case under Section 304-B I.P.C. read with Section 498-A I.P.C. for drawing presumption as to dowry death under Section 304-B I.P.C. is made out against the appellants.

We, therefore, uphold the finding of conviction and hold that the courts below were justified in holding the appellants guilty of committing offences punishable under Section 304-B read with Section 498-A I.P.C., which caused death of Smt. Sarita.

Now, the question arises as to whether the sentence of the appellants should be reduced and if so, to what extent, as urged by the learned counsel for the appellants.

This issue has been the subject matter of debate before the Apex Court in several cases, which arose out of Section 304-B I.P.C. read with Section 498-A I.P.C. and wherein the Apex Court while interpreting the expression "may" occurring in Section 304-B I.P.C. held that it is not mandatory for the Court in every case to award life imprisonment to the accused once he is found guilty of offence under Section 304-B I.P.C. It was held that the Court could award sentence in exercise of its discretion between seven years to life imprisonment depending upon the facts of each case. It was held that in no case it could be less than seven years and that extreme punishment of life term should be awarded in "rare cases" but not in every case.

In the case of Hem Chand Vs. State of Haryana, (1994) 6 SCC 727, the courts below had awarded life term to the accused under Section 304-B read with Section 498-A I.P.C. but the Apex Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. The Apex Court held as under:

"7........ the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. 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.

8. Hence, we are of the view that a sentence of 12 years' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' RI....."

Similarly the Apex Court in State of Karnataka Vs. M.V. Manjunathegowda and Anr., (2003) 2 SCC 188, while convicting the accused under Section 304-B I.P.C. awarded 10 years imprisonment in somewhat similar facts.

In G.V. Siddaramesh Vs. State of Karnataka, (2010) 3 SCC 152, the Apex Court while allowing the appeal filed by the accused only on the question of sentence altered the sentence from life term to 10 years on more or less similar facts. Hon'ble H. L. Dattu, J. (as His Lordship then was) speaking for the Bench held as under:

"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B IPC. 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 IPC, reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."

Applying the principle of law laid down in the aforementioned cases and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that the ends of justice would be met, if the sentence of the appellants is reduced from life imprisonment to that of period already undergone by the appellants. In our view, this case does not fall in the category of a "rare case" as envisaged by this Court so as to award the appellants the life imprisonment. That apart, we have also noticed that while awarding life imprisonment, the court below did not assign any reasons.

Learned A.G.A. for the State has not been able to cite any authority in support of his submission except to oppose the prayer made by the learned counsel for the appellants.

For the aforesaid reasons, the sentence of life imprisonment awarded to the appellants is liable to be altered.

In view of the foregoing discussions, this appeal succeeds and is allowed in part. The recorded conviction of the appellants, Rahul (A1) and Komal Singh (A2) u/s 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act is upheld but the sentence of life imprisonment awarded to them is reduced from life imprisonment to the period already undergone by the appellants which in the present case is more than 10 years. In case the appellants are not wanted in any case, they shall be released forthwith.

There shall, however, be no order as to costs.

Order Date :- 29.5.2018

KS