Kuldeep vs State Of U.P.
2019 Latest Caselaw 1597 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 10
 

 
Case :- CRIMINAL APPEAL No. - 1027 of 2014
 
Appellant :- Kuldeep
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Vinod Kumar Shahi,Salil Mohan
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Anil Kumar,J.

Hon'ble Vikas Kunvar Srivastav,J.

(Per : Hon'ble Anil Kumar,J.)

Heard Shri Salil Mohan, learned counsel for the accused-appellant and Ms. Smiti Sahay, learned A.G.A. for the State.

Under challenge in this appeal is the judgment and order dated 30.06.2014 passed by learned Additional District & Sessions Judge, Court No.10, Sitapur in Sessions Trial No.686/2010 arising out of Case Crime No.127/2010, under Sections-498-A, 304-B, 302/34 I.P.C. and Section 4 D.P. Act, relating to Police Station-Ataria, District-Sitapur, whereby the accused-appellant was convicted for the offence under Section 302 I.P.C. and sentenced with imprisonment for life and also with fine of Rs.8,000/- each and in default of payment of fine, he will have to undergo two months rigorous imprisonment. He was acquitted for the offence under Section 498-A, 304-B I.P.C. and Section 4 of Dowry Prohibition Act.

The case of the prosecution is that on 18.04.2010, Pyarelal/complainant lodged an F.I.R. at Police Station-Ataria, District-Sitapur stating therein that his daughter/Suman, aged about 22 years, was married to the accused-appellant/Kuldeep about one year ago from her death. Since the time of marriage, she was subjected to cruelty and harassment by her husband and in-laws in connection with demand of dowry.

On 17.04.2010 the accused-appellant along with two persons came to the house of the complainant and had demanded a motorcycle as a dowry. Complainant shown his inability for the same, so they threatened him that they will kill his daughter.

On 18.04.2010 his brother-in-law/Laxmishankar informed on cellphone that the accused-appellant/Kuldeep, Rameshwar, Shivlal and mother-in-law of the deceased has killed his daughter. After receiving the information, he reached matrimonial house of his daughter, saw that the her body was lying and family members were not present. The villagers told him that they fled away from the place of incident.

Accordingly, Case Crime No.127 of 2010, under Sections-498-A, 304-B I.P.C. and Section 4 D.P. Act against the accused-Kuldeep, Rameshwaram, Shivlal and mother-in-law of the deceased has been registered and the Investigating Officer prepared the inquest report and sent body of the deceased for post-mortem, conducted on 19.04.2010 at about 2.45 P.M.

As per postmortem report, following antemortem injuries were found on the body of the deceased :-

(1) Abraided contusion 13 cm x 2 cm present on front and Rt side of neck situated 6 cm below chin.

(2) Abraided contusion 3 cm x 1.5 cm present on Lt. Side neck 1 cm below Lt angle of mandible.

The cause of death of deceased was Asphyxia as a result of strangulation.

After investigation, charge sheet under Section 498-A, 304-B IPC and 4 Dowry Prohibition Act was submitted by the Investigating Officer against the accused. Learned Magistrate took the cognizance and committed the case to the court of Session for trial and on 11.11.2010 charge under aforesaid sections were framed against them, denied and claimed for trial. On 24.12.2010, additional charges under Section 302 read with 34 I.P.C. have been framed.

In order to prove its case, the prosecution has examined P.W.1 Pyarelal/complainant, PW.2 Santosh/brother of the deceased, P.W.3 Laxmishankar, brother-in-law of the complainant, P.W.4 Dr. B. B. Bhatt, who conducted the postmortem, P.W.5 Irfanullah Khan, Nayab Tehsildar, P.W.-6 Constable 198 C.P. Sushil Kumar Singh and P.W.-8 S.I., Jaibeer Singh.

Thereafter, the statement of accused-appellant under Section 313 Cr.P.C. was recorded, he denied his guilt and produced D.W.1/Amar Singh as defence witness.

Trial Court on the basis of the material/evidence on record came to the conclusion that the prosecution has failed to establish the charge under Section 498-A, 304-B and Section 4 Dowry Prohibition Act against the accused-appellant and other co-accused, acquitted them under the said section.

Further, the trial Court also acquitted the co-accused namely Rameshwar, Shivpal and Smt. Ramwati from the charges under Section 302 read with 34 I.P.C. on the ground that they were residing in a separate house for the last 12 years and 6 years respectively.

However, by the judgment dated 30.06.2014, the trial Court convicted the accused-appellant/Kuldeep under Section 302 I.P.C.

Shri Salil Mohan, learned counsel for the accused-appellant while challenging the impugned judgment submits that the trial Court has wrongly convicted the accused-appellant under Section 302 I.P.C. with the aid of Section 106 of Indian Evidence Act, 1872 in view of the following findings :-

"यधपि पी. डब्लू -२ सन्तोष ने अपनी प्रति परीक्षा में यह कहा है कि मृतका के ससुराल वालों के द्वारा मोटरसाइकिल के लिए मृतका प्रताड़ित किए जाने की बात उसने अपने गांव के प्रधान रामनरेश शुक्ला को बताया था, उसने प्रधानजी को उक्त बात एक बार ही बतायी थी | प्रधानजी ने कोई कार्यवाही नहीं की थी और न ही उन लोगों ने किसी उच्चाधिकारी को कोई प्रार्थना पत्र दिया था | साक्षी पी. डब्लू -१ प्यारेलाल ने भी अपने प्रति परीक्षा में यह कहा है कि धमकी वाली बात अपने गांव के प्रधान रामनरेश शुक्ला को बतायी थी और उसने अन्य कोई कार्यवाही नहीं की थी और जिस प्रधान को उसने धमकी वाली बात बतायी थी वह अभी जीवित है और उसके पड़ोस गांव में रहते है | उक्त साक्ष्य की समीक्षा करने से यह स्पष्ट होता है कि यदि अभियुक्तगण के द्वारा मृतका को मोटरसाइकिल के लिए प्रताड़ित किए जाने की बात मृतका के पिता और भाई के द्वारा प्रधान रामनरेश शुक्ला को बताया गया था तो प्रधान रामनरेश शुक्ला को अभियोजन पक्ष के द्वारा परीक्षित कराना चाहिए था तथा प्रधान रामनरेश शुक्ला पी. डब्लू -१ प्यारेलाल के बयान के अनुसार अभी जिन्दा है और उसके पड़ोस के गांव में रहते भी हैं, परन्तु उल्लेखनीय है कि प्रधान रामनरेश शुक्ला को अभियोजन पक्ष के द्वारा परीक्षित ही नहीं कराया गया है | उक्त से यह स्पष्ट होता है कि यदि मृतका को उसके ससुराल वालों के द्वारा प्रताड़ित किया जाता था तो अभियोजन पक्ष के द्वारा प्रधान रामनरेश शुक्ला को परीक्षित कराके इस तथ्य अवश्य साबित किया जाता कि उन्हें मृतका के पिता और उसके भाई के द्वारा यह बताया गया था कि मृतका को अभियुक्तगण के द्वारा दहेज़ के लिए प्रताड़ित किया जाता था, परन्तु साक्षी रामनरेश का परीक्षण अभियोजन पक्ष के द्वारा न कराए जाने से मृतका को अभियुक्तगण के द्वारा प्रताड़ित किये जाने की बात साबित नहीं होती हैं तथा सन्देहास्पद हो जाती है | यधपि यह साक्षय पी. डब्लू. १ और पी. डब्लू. २ दोनों साक्षियों के द्वारा प्रस्तुत किया गया है कि दिनांक १७. ०४. २०१० को अभियुक्त कुलदीप दो अज्ञात लोगों के साथ वादी मुकदमा के घर ग्राम डालखेड़ा गया था और वादी मुकदमा से दहेज़ में मोटरसाइकिल की मांग किया था और मोटरसाइकिल न दिए जाने, उनके द्वारा असमर्थता जाहिर किये जाने पर उसने उसकी पुत्री को जान से मार डालने की धमकी दी थी, परन्तु उक्त साक्ष्य मुकदमें में बल प्रदान करने हेतु वादी मुकदमा और उसके पुत्र के द्वारा दिया जाना प्रतीत होता है क्योंकि यदि वास्तव में अभियुतकगण दहेज़ के लोभी होते और उन्हें दहेज़ में मोटरसाइकिल की मांग करनी होती तो वे निश्चित तौर पर उसके सबसे उपयुक्त अवसर विवाह के समय ही उसकी मांग करते क्योंकि शादी के समय लड़की के परिवार वाले अवश्य ही दबाब में रहते है तथा उन्हें यह पता रहता है कि यदि लड़के और उसके माता पिता तथा परिवार वालों के द्वारा की गयी मांग को पूरी नहीं की जाती है तो वे लोग शादी से इंकार भी कर सकते हैं | अतः सबसे उपयुक्त अवसर दहेज़ में मोटर साइकिल मांगने की बात शादी के समय ही था और उस समय शादी बिना दहेज़ के, की गयी थी , जो कि पी. डब्लू. १ और पी. डब्लू. २ के साक्ष्य से साबित होता है | अतः दिनांक 17.. ०४.२०१० को अभियुक्त कुलदीप के द्वारा अपने दो अन्य साथियों के साथ वादी मुकदमा के घर जाकर मोटर साइकिल की मांग किया जाना उक्त तथ्यों के परिपेक्षय में विश्वनीय प्रतीत नहीं होता है|"

In order to elaborate his arguments on the point in issue, he submits that the above said finding given by the trial Court thereby exonerating the accused-appellant from the charges under Sections 498-A, 304-B I.P.C. and 4 of Dowry Prohibition Act and convicting him under Section 302 I.P.C. with the aid of Section 106 of Indian Evidence Act is contrary to law as it is settled position of law that the quantity of evidence led by the prosecution is not material but quality of the evidence produced by the prosecution is material.

So even if the prosecution has not examined the village Pradhan/Ramnaresh Shukla to whom P.W.-1/Pyarelal had narrated the matter in respect of demand of dowry, the same cannot be ground for acquitting the accused-appellant under Section 302 I.P.C. with the aid of Section 106 of Indian Evidence Act.

As from the statement of P.Ws.-1 to 3, who are witnesses of fact, it is not clear that the accused-appellant had demanded the motorcycle as a dowry just one day before the incident.

In support of his argument, he has placed reliance on the judgment given by Hon'ble the Apex Court in the case of Tapas Kumar Ghosh vs. State of West Bengal, (2011) 15 SCC 354 and Donthula Ravindranath @ Ravinder Rao vs. State of Andhra Pradesh, (2014) 3 SCC 196.

Accordingly, he submits that any charge which can be established against the accused-appellant is under Section 498-A, 304-B and 4 of Dowry Prohibition Act. However, looking into the peculiar facts and circumstances of the case as well as law laid down by Hon'ble the Apex Court in the case of V. K. Mishra and another vs. State of Uttarakhand and another, (2015) 9 SC 588, the maximum sentence which can be awarded to the accused-appellant is of ten years if he is convicted and sentenced under the Section of I.P.C. and he has already undergone the imprisonment of nine years.

Learned A.G.A. while supporting the judgment passed by trial Court submits that the the trial Court has rightly convicted the accused-appellant under Section 302 I.P.C. with the aid of Section 106 of Indian Evidence Act as on the basis of the evidence available on record because in the instant case, on the basis of the evidence led by the prosecution, necessary ingredients of Section 498-A, 304-B I.P.C. and 4 of Dowry Prohibition Act are not fulfilled. In this regard, reliance has been placed on the following finding given by trial Court :

"परन्तु अभियुक्त कुलदीप ने अपने उक्त बयान में यह स्पष्ट नहीं किया है कि उसकी पत्नी मृतका सुमन की मृत्यु किस प्रकार कारित हुई | अभियुक्त कुलदीप के द्वारा मृतका की मृत्यु का कारण स्पष्ट न किए जाने से धारा -१०६ भारतीय साक्ष्य अधिनियम के अंतर्गत अभियुक्त कुलदीप के द्वारा ही मृतका की मृत्यु कारित किये जाने की उपधारणा की जाएगी और उक्त समीक्षा के आधार पर उक्त तथ्य से यह साबित होता है कि मृतका की मृत्यु अभियुक्त कुलदीप के द्वारा उसका गला दबाकर कारित की गयी न कि किसी अन्य व्यक्ति के द्वारा | उक्त तथ्य को इस साक्ष्य से भी बल प्राप्त होता है कि विवेचना के दौरान विवेचक के द्वारा मृतका के कमरे से छींटदार पुराना इस्तेमाली मफलर जिसमें गांठे लगी हुई है, निकाला गया तथा निचे जमीन पर पड़ा हुआ रबड़ बेल्ट १/२ इंच चौड़ा लगभग पांच हाथ लम्बा गवाहान अमर सिंह व राकेश कुमार की उपस्थिति में विवेचक के द्वारा बरामद किया गया है | उक्त बरामदगी को पी. डब्लू. -८ उ. नि. जयबीर सिंह के द्वारा अपने साक्ष्य में साबित किया गया है तथा उन्होंने साक्ष्य प्रस्तुत करते हुए अपनी मुख्य परीक्षा में यह कहा है कि घटना स्थल से एक बेल्ट रबड़ व एक मफलर पुराना इस्तेमली मिला था | जिसको कब्ज़ा पुलिस में लेकर उसकी फर्द नायब तहसीलदार इरफान उल्ला के द्वारा समक्ष गवाहान माल को सील मुहर कर नमूना मुहर तैयार कर फर्द तैयार की थी और सभी को फर्द सुनाकर उस पर हस्ताक्षर बनवाये गए थे | फर्द शामिल पत्रावली है जो उनके समक्ष है | जिस पर उनके हस्ताक्षर है | न्यायालय के आदेश से उक्त बण्डल खोलने पर उसके अंदर इस्तेमाली मफलर और बेल्ट निकला | इस साक्षी से अभियुक्तगण के विद्वान अधिवक्ता के द्वारा की गयी प्रति परीक्षा में प्रस्तुत बिंदु के सम्बन्ध में इस साक्षी ने यह कहा है कि उसे यह ध्यान नहीं है कि वादी मुकदमा उन लोगों के साथ घटना स्थल पर गया था या नहीं गया था | उसके पहुंचने के बाद नायब तहसीलदार आए थे, कितनी देर बाद आए थे समय नहीं बता पाएगा | मफलर व रबर की बेल्ट कमरे से मिली थी | जहाँ घटना स्थल बताया गया था | मफलर कुंडे में फॅसा था, कुंडे से मफलर को किसने खोला था यह उसे ध्यान नहीं है | लेकिन पुलिस वालों ने ही उतारा होगा | यह कहना गलत है कि उसके सामने मफलर न खोला गया हो और वह जान बूझकर न बता रहा हो | यह भी कहना गलत है कि रबर कुंडे में फसी हो बल्कि सही यह है कि रबर बेल्ट जमीन पर पड़ी थी | फर्द उसके सामने लिखी गयी थी | इस प्रकार इस साक्षी से जो भी प्रति परीक्षा अभियुक्तगण के विद्वान अधिवक्ता के द्वारा किया गया है , उसमें इसके द्वारा मुख्य परीक्षा में किए गए इस तथ्य का खण्डन नहीं होता है कि इसके सामने नायब तहसीलदार इरफ़ानउल्ला खां के द्वारा घटना स्थल से पुराना इस्तेमाली मफलर तथा बेल्ट बरामद किया गया | घटना स्थल से बरामद उक्त बेल्ट और मफलर से न्यायालय के इस उपधारणा को बल प्राप्त होता है कि मृतका की हत्या उसके गले में मफलर का फन्दा डालकर और उसे खींचकर कारित किया गया है तथा उक्त हत्या अभियुक्त कुलदीप के द्वारा ही कारित किया गया है |

Accordingly, it is submitted by learned A.G.A. that the present appeal lacks merit, is liable to be dismissed.

We have heard learned counsel for the parties and gone through the records.

The first and foremost question which is to be considered in the present case is that whether the finding given by the trial Court convicting the accused-appellant under Section 302 I.P.C. with the aid of Section 106 of Indian Evidence Act, 1872 and acquitting him under Section 498-A, 304-B and 4 of Dowry Prohibition Act on the basis of the evidence led by the prosecution, is correct or not.

In the present case, the prosecution has examined the eight witnesses. Out of which, three witnesses i.e. P.W.-1, P.W.-2 and P.W.-3 are the witnesses of facts.

P.W.-1/Pyarelal, in his statement, has stated that his daughter/Suman was married to the accused-appellant/Kuldeep and he had given dowry as per financial capacity. At the time of marriage, the accused-appellant/Kuldeep and his family were not happy with his daughter/Suman and they were continuously demanding motorcycle as a dowry as stated by the deceased. On 17.04.2010 the accused-appellant/husband of his daughter along with two persons came to in-laws house and pressurized to fulfill the said demand but the complainant was unable to give the same as a result of which they become annoyed and threatened him that they will kill his daughter/Suman.

On 18.04.2010, brother-in-law of the complainant/Laxmishankar called the complainant at about 12:00 p.m. that the accused-appellant/Kuldeep, Rameshwar, Shivlal and mother-in-law of the deceased had killed his daughter. After receiving the information in regard to the death of deceased, the complainant reached the in-laws of his daughter and saw that the body of his daughter was lying in her laws and family members of the deceased were not present. The villagers of his daughter told him that they ran away from the place of incident. Accordingly, F.I.R. was lodged at P.S.-Ataria, District-Sitapur.

P.W.-2/brother-in-law, in his statement, has stated that on 17.04.2010 the accused-appellant/husband of his sister along with two persons came to in-laws house and demanded a motorcycle as a dowry, and threatened that if the said demand is not fulfilled, he will kill Suman/deceased.

P.W.-3/Laxmilal, in his statement, has stated that marriage of daughter of complainant/Pyarelal with the the accused-appellant/Kuldeep and at the time of marriage, dowry was given to the accused-appellant and his family, but they were not satisfied with the dowry and were continuously demanded the motorcycle.

From the perusal of the judgment passed by trial Court, the trial Court did not accept the case of the prosecution in respect of the charges levelled against the accused-appellant under Sections 498-A, 304-B I.P.C. & 4 of Dowry Prohibition Act on the ground that P.W.-1/Pyarelal has narrated the facts in regard to demand of dowry to the Pradhan of village/Ram Naresh Shukla, who was not produced as a witness and convicted the accused-appellant for an offence under Section 302 I.P.C. with the aid of Section 106 of Indian Evidence Act. The said exercise on the part of the trial Court is not correct as per facts and material available on record.

Because from the bare reading of Section 106 of Indian Evidence Act, the position which emerges out is that this section states that when any fact is specially within the knowledge of any person the burden of proving that fact is upon him.

This is an exception to the general rule contained in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as Act), namely, that the burden is on the person who asserts a fact. The principle underlying Section 106 of the Act, which is an exception to the general rule governing burden of proof applies only to such matters of defence which are supposed to be especially within the knowledge of the defendant. It cannot apply when the fact is such as to be capable of being known also by a person other than the defendant.

In the case of Reena Hazarika vs. State of Assam, reported in 2018 (3) JIC 75 (SC), Hon'ble the Apex Court while interpreting the Section 106 of Indian Evidence Act, when the accused-person can be convicted under Section 302 I.P.C. read with Section 106 of Indian Evidence Act has held as under :-

"The essentials of circumstantial evidence stand well established by precedents and we do not consider it necessary to reiterate the same and burden the order unnecessarily. Suffice it to observe that in a case of circumstantial evidence the prosecution is required to establish the continuity in the links of the chain of circumstances, so as to lead to the only and inescapable conclusion of the accused being the assailant, inconsistent or incompatible with the possibility of any other hypothesis compatible with the innocence of the accused. Mere invocation of the last seen theory, sans the facts and evidence in a case, will not suffice to shift the onus upon the accused under Section 106 of the Evidence Act,1872 unless the prosecution first establishes a prima facie case. If the links in the chain of circumstances itself are not complete, and the prosecution is unable to establish a prima facie case, leaving open the possibility that the occurrence may have taken place in some other manner, the onus will not shift to the accused, and the benefit of doubt will have to be given."

In nutshell, Section 106 of the Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the prosecution case has been proved, the burden in regard to such facts which was within the special knowledge of the accused, may be shifted to the accused for explaining the same. Of course, there are certain exceptions to the said rule e.g. where burden of proof may be imposed upon the accused by reason of a statute.

In the present case, from the material on record, we find that the prosecution has failed to prove its case beyond all reasonable doubt in order to hold the guilty of the accused-appellant under Section 302 I.P.C. with the aid of Section 106 of Indian Evidence Act, rather in view of the statement given by P.W.-1 to P.W.-3, the accused-appellant is guilty for the offence under Section 498-A, 304-B and 4 of Dowry Prohibition Act.

Because Hon'ble the Apex Court in the case of Tapas Kumar Ghosh (Supra) has held as under :-

"6. The question raised before us is that having framed an alternative charge under Section 302 of the Indian Penal Code, the Appellant could not have been held to be guilty of an offence under Section 304B IPC inasmuch as the essential ingredients of both the offences are distinct and different. The onus in the case of Section 304B IPC shifts to the accused, unlike under Section 302 IPC where the onus continues to be on the prosecution and it is expected to prove the case beyond any reasonable doubt.

7. Having examined the evidence on record, we do not propose to deal with this legal issue at any greater length. Suffice it to note that no prejudice had been caused to the present Appellant inasmuch as the trial court neither considered the alternative charge nor punished the accused for that offence. Thus, we leave this question open.

8. The charge against the accused under Section 304B IPC read with Section 498B has been proved and, in our opinion, there is no reason for us to interfere with the concurrent finding recorded upon proper appreciation of evidence by both the courts.

9. The learned Counsel appearing for the Appellant emphasised that it was an unfortunate case as the Appellant was a young person at the time of alleged commission of the offence, the incident is more than 18 years old; that the Appellant has suffered the protracted trial; and that the Appellant has already undergone about five years actual imprisonment. It is further contended that at the relevant time the Appellant was an employee of the railways but lost his job and, in all likelihood, he may not get any employment again now.

10. Considering the peculiar facts and circumstances of the case, we consider it appropriate to reduce the sentence awarded by the High Court further to a period of seven years, which is the minimum sentence provided for an offence punishable under Section 304B of the Indian Penal Code. The conviction of the Appellant under Section 498A IPC is maintained with the sentence awarded. The sentences awarded shall obviously run concurrently."

And Hon'ble the Apex Court in the case of Donthula Ravindranath @ Ravinder Rao (Supra) has held as under :-

"12. Even if we give the benefit of the above mentioned doubt to the Appellant, the Appellant cannot escape his liability for a charge under Section 304B Indian Penal Code which creates a legal fiction. All the ingredients of Section 304B are satisfied in the instant case, that the death of Jyotsna occurred within seven years of her marriage the death occurred otherwise than under normal circumstances and that Jyotsna was subjected to harassment which amounted to cruelty within the meaning of Section 498A Indian Penal Code of which charge the Appellant is also found guilty by both the courts below.

13. In the light of the abovementioned circumstances, the Appellant in our opinion must be found guilty for an offence under Section 304B Indian Penal Code. He was infact charged at trial for the said offence though both the courts below failed to record any finding in this regard. The offence under Section 304B Indian Penal Code is punishable with the sentence for a term which may not be less than seven years but which may extend to imprisonment for life.

14. We, therefore, alter the conviction of the Appellant for an offence under Section 302 Indian Penal Code to an offence under Section 304B Indian Penal Code and reduce the sentence to the period already undergone (we are informed that the Appellant is in jail for almost a decade). He may be released forthwith if not required in any other case. The judgment under appeal is modified accordingly."

In view of the above said facts, the judgment passed by trial Court thereby convicting the accused-appellant under Section 302 I.P.C. and awarding the sentence for life is liable to be set aside with a modification that the accused-appellant should be convicted under Sections 498-A, 304-B I.P.C. and 4 of Dowry Prohibition Act and awarded the sentence for ten years, five years and six months respectively.

Further, as submitted by learned counsel for the accused-appellant that he does not want to press his conviction which has been awarded under Section 302 I.P.C. and only he wants to press the appeal on the point of sentence looking into the facts and circumstances of the cases that punishment of life imprisonment which has been awarded to the accused-appellant should not be awarded to him.

In order to decided the said facts, it will be appropriate to go through the provisions of Section 304-B I.P.C., which reads as under :-

"304-B. Dowry Death- (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 and it is shown that 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, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation for the purpose of this sub-section 'dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) 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."

Now we will have to consider the law on the point of sentence to be inflicted in cases under Section 304-B I.P.C.

Hon'ble the Apex Court in the case of Hem Chand v. State of Haryana reported in [(1994) 6 SCC 727], in paragraph 7 of the judgment, 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 cruelty 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 cruelty 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."

Hon'ble the Apex Court in the case of G.V. Siddaramesh v. State of Karnataka reported in [(2010) 3 SCC 152] has observed in paragraph 30 of the judgment as under:-

"On the point of sentence, learned Counsel for the appellant pointed 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. In so far as sentencing under the section is concerned, a three Judge Bench of this Court in the case of Hemchand v. State of Haryana [(1994) 6 SCC 727] has observed that:

"Section 304B merely raises a presumption of dowry death and lays down that the minimum sentence should be 7 years, but it may extend to imprisonment for life. Therefore, awarding the extreme punishment of imprisonment for life should be used in rare cases and not in every case.

Keeping in view the facts and circumstances of the case, this Court reduced the sentence from life imprisonment awarded by the High Court to 10 years R.I. on the above principle."

It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases.

A reference on this point may also be made to the pronouncement of Hon'ble Apex Court in the case of Sunil Dutt Sharma V State reported in [(2014) 4 SCC 8 375] wherein Hon'ble the Apex Court has considered the point of sentence in detail and has observed in para 5 as under:-

"The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for a term of years. In the above situation, naturally, the sentencing power has been a matter of serious academic and judicial debate to discern an objective and rational basis for the exercise of the power and to evolve sound jurisprudential principles governing the exercise thereof."

In the case of Sunil Dutt Sharma (Supra) which is a case of dowry death and the cause of death was strangulation, Hon'ble Apex Court was of the view that a sentence of 10 years rigorous imprisonment would be appropriate.

In the case of V.K. Mishra and another v. State of Uttarakhand reported in [(2015) 9 SCC 588], Hon'ble the Apex Court has again considered the question of sentence in cases of dowry death and has observed in paragraph nos. 40 and 41 as under:-

"40. For the offence Under Section 304-B Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304-B Indian Penal Code thus prescribes statutory minimum of seven years. In Kulwant Singh and Ors. v. State of Punjab (2013) 4 SCC 177, while dealing with dowry death Sections 304-B and 498-A Indian Penal Code in which death was caused by poisoning within seven years of marriage conviction was affirmed. In the said case, the father-in-law was about eighty years and his legs had been amputated because of severe diabetes and mother-in-law was seventy eight years of age and the Supreme Court held impermissibility of reduction of sentence on the ground of sympathy below the statutory minimum.

41. As per prison records, the accused-Rahul Mishra is in custody for more than five years which includes remission. Bearing in mind the facts and circumstances of the case and the occurrence of the year 1997 and that the accused-Rahul Mishra is in custody for more than five years, interest of justice would be met if life imprisonment awarded to him is reduced to imprisonment for a period of ten years. Appellants V. K. Mishra and Neelima Mishra, each of them have undergone imprisonment of more than one year. Appellants No.1 and 2 are aged about seventy and sixty four years and are said to be suffering from various ailments. Considering their age and ailments and facts and circumstances of the case, life imprisonment imposed on Appellants V. K. Mishra and Neelima Mishra is also reduced to imprisonment of seven years each."

In view of the discussions made herein above, this appeal deserves to be partly allowed and is partly allowed. The conviction of the accused-appellant under Section 302 I.P.C. as awarded by the trial Court vide judgment and order dated 30.06.2014 is modified to the extent that the accused-appellant is being awarded sentence and conviction under Section 498-A, 304-B I.P.C. and Section 4 D.P.Act. He is convicted under Section 304-B I.P.C. and sentenced with imprisonment for ten years and also a fine of Rs.10,000/- and in default of payment of fine, he will have to undergo six months rigorous imprisonment. He is convicted under Section 498-A I.P.C. and sentenced with imprisonment for five years and also a fine of Rs.10,000/- and in default of payment of fine, he will have to undergo three months rigorous imprisonment. He is convicted under Section ¾ Dowry Prohibition Act and sentenced with imprisonment for six months and also a fine of Rs.10,000/- and in default of payment of fine, he will have to undergo three months rigorous imprisonment.

The accused-appellant is in jail and has already undergone the sentence of more than nine years as submitted by learned counsel for the accused-appellant. So, he shall be released from jail only after serving out of his sentence as modified by this Court, if he is not wanted in any other case.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.

(Vikas Kunvar Srivastav,J.) (Anil Kumar,J.)

Order Date :- 26.3.2019/Mahesh