Birbal vs State Of U.P.
2018 Latest Caselaw 1096 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 4
 
Case :- CRIMINAL APPEAL No. - 2351 of 2011
 
Appellant :- Birbal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anand Srivastava,O.P. Singh,S.K. Rao,Yogesh Srivastava
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Bala Krishna Narayana, J
 
Hon'ble Rajiv Gupta, J.

Heard Sri Yogesh Srivastava, learned counsel for the appellant and Mrs. Manju Thakur, learned A. G. A.-I appearing for the State.

This criminal appeal has been filed by the appellant Birbal against the judgement and order dated 26.2.2011 passed by the Additional Sessions Judge, Court No. 6, Deoria in S. T. No. 08 of 2009; State Versus Birbal and another, arising out of Case Crime No. 360 of 2008, under Sections-498-A and 304-B I. P. C. and Sections-3 / 4 of D. P. Act, P. S.-Khampar, district-Deoria by which the appellant has been convicted under Sections-498A, 304-B IPC and Section-4 of D. P. Act and sentenced to undergo three years' R. I. coupled with fine of Rs. 5000/- for offence under Section-498A I. P. C., rigorous imprisonment for life for offence under Section-304-B I. P. C. and two years' R. I. coupled with fine of Rs. 5000/- for offence under Section-4 of D. P. Act along with default clauses. All the sentences were directed to run concurrently.

Briefly stated, the facts of the case are that one Renu, daughter of Suresh Bhagat and niece of Bhojraj Bhagat was married to the appellant Birbal about one year before the occurrence, in which adequate dowry was given to him at the time of the marriage. However, within one year of her marriage, appellant Birbal, husband of Renu, his brothers Awadhesh and Saral, his sister Roola, started demanding a motorcycle and a gold chain as additional dowry and on account of non-fulfillment of the aforesaid demand for dowry, they started torturing and maltreating her. The appellant and his brother strangulated Renu to death in the night of 29/30.6.2008. Upon receiving information about the death of his niece, informant P. W. 1 Suresh Bhagat rushed to village-Vishambharpur along with other villagers and saw that the accused were going to burn the dead body of Renu. The incident was witnessed by a large number of villagers, who narrated the same to him. On the basis of the written report (Ext. Ka 1) of the incident given by P. W. 1 at P. S.-Khampar, district-Deoria on 30.6.2008 at about 9.50 A. M. Case Crime No. 360 of 2008, under Sections-498-A and 304-B I. P. C. and Sections-3/4 of D. P. Act was registered against the appellant, Birbal, his sister Roola and brothers Awadhesh and Saral. The chek F. I. R. and the relevant G. D. entry were prepared by P. W. 8 constable Prassidh Narain Singh, P. S.-Khampar, district-Deoria and brought on record as Exts. Ka 11 and Ka 12. The investigation of the case was entrusted to R. P. Kannaujia, Circle Officer, Bhatapar Rani, who reached the place of occurrence on 1. 7.2008 and after inspecting the same, prepared the site plan (Ext. Ka 9). The inquest on the body of the deceased was conducted by P. W. 6 Brij Kishore Lal, Naib Tehsildar, Bhatapar Rani on 30.6.2008 who after completing the inquest, prepared the inquest report (Ext. Ka 3) and other related documents police form 13, photonash, letters addressed to C. M. O. and Reserved Inspector and specimen seal which have been brought on record as Exts. Ka 4 to Ka. 8 respectively. After completing the inquest, he dispatched the dead body of Renu to District Hospital, Deoria for post mortem. The post mortem on the body of the deceased was conducted by P. W. 5 Dr. K. C. Rai on 1.7.2008 at about 3.00 P. M., who also prepared her post mortem report (Ext. Ka 2). The post mortem report of the deceased indicates following ante mortem injuries:

(1) Ligature mark size 42 cm x 3 cm present all around the neck just below thyroid horizontal, continuous round the neck. The base of groove is soft and reddish. Subcutaneous tissue under muscle ecchymoses.

(2) Fracture of thyroid bone present.

The cause of death, according to the post mortem report was asphyxia due to strangulation. The Investigating Officer after completing the investigation filed chargesheet against the appellant and his brother Saral under Sections-498-A and 304-B I. P. C. and Sections-3/4 of D. P. Act before the C. J. M., Deoria.

Since the offences mentioned in the charge-sheet were triable exclusively by the Court of Sessions, the C. J. M. committed the case for trial to the Court of Sessions, where the case was registered as S. T. No. 08 of 2009; State Versus Birbal and another and made over from there to Additional Sessions Judge, Court No. 6, Deoria, who on the basis of the material on record, framed charge against the appellant under Sections-498-A and 304-B I. P. C. and Sections3/4 of D. P. Act for trial after affording opportunity of hearing to the prosecution as well as the appellant. The accused-appellant abjured the charges and claimed trial.

The prosecution in order to prove the charges framed against the appellants examined as many as nine witnesses. P. W. 3 Sapna, real sister of the deceased, P. W. 4 Pankaj, P. W. 1 Suresh Bhagat, father of the deceased and P. W. 2 informant Bhoj Bhagat, uncle of the deceased as witnesses of fact while P. W. 5 Dr. K. C. Rai, who had conducted the post mortem on the body of the deceased, P. W. 6 Brij Kishore Lal, Naib Tehsildar, who had conducted the inquest and prepared the inquest report and other related documents. P. W. 7 R. P. Kannaujia, the I. O. of the case, P. W. 8 who had prepared the chek F. I. R. and the relevant G. D. entry were examined as formal witnesses. The accused-appellant in his statement recorded under Section 313 Cr. P. C. denied the prosecution case as false and stated that he had been falsely implicated in the present case by the informant because of greed of money. The appellant examined one Guru Prasad as D. W. 1, who proved the plea of alibi set up by him before the trial court. The Additional Sessions Judge, Court No. 6, Deoria considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record convicted the appellant under Sections-498A, 304-B IPC and Section-4 of D. P. Act and awarded aforesaid sentences awarded to him, while his brother Saral was acquitted.

Hence, this appeal.

Sri Yogesh Srivastava, learned counsel for the appellant at the very outset gave up his challenge to the conviction of the appellant recorded u/s 498-A, 304-B I.P.C. and 4 Dowry Prohibition Act and has confined his challenge to the quantum of punishment (life imprisonment awarded to him) only.

According to Sri Yogesh Srivastava, learned counsel for the appellant having regard to all the circumstances which resulted in appellant's conviction and further keeping in view the fact that the appellant has already undergone more than 10 years of imprisonment and still continues to remain in jail, this Court should alter the award of life sentence to that of one already undergone by the appellant. Sri Yogesh Srivastava 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 appellant. Learned counsel for the appellant 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 appellant, 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.

Smt. Manju Thakur, learned A.G.A.-I appearing for the State, while countering the submission made by the counsel for the appellant, 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 appellant 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 are inclined to allow the appeal in part finding some force in the submission urged by learned counsel for the appellant.

Though the appellant did not make any attempt to assail the finding of his conviction on merits, 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.

Firstly, Smt. Renu died within seven years of her marriage and her death was unnatural. This incident 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 appellant one after the other from Smt. Renu and to her parents; thirdly, the death of Smt. Renu 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 appellant.

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

Now, the question arises as to whether the appellant's sentence should be reduced and if so, to what extent, as urged by the appellant's counsel.

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, including the fact that the appellant at the time of the occurrence was a young man aged about twenty three years, we are of the considered opinion that the ends of justice would be met, if the sentence of the appellant is reduced from life imprisonment to that of 10 years. 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 appellant the life imprisonment. That apart, we also notice 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 her submission except to oppose the prayer made by the learned counsel for the appellant.

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

In view of the foregoing discussions, this appeal succeeds and is allowed in part. The recorded conviction of the appellant Birbal u/s 498-A, 304-B I.P.C. and 4 Dowry Prohibition Act is upheld, but the sentence of life imprisonment awarded to him is reduced to 10 years. In case, the appellant Birbal has served out the sentence of 10 years and is not wanted in any case, he shall be released forthwith.

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

Order Date: 30.5.2018

HR