Allahabad High Court
Dinesh Pandey vs State Of U.P. on 2 August, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 44
Case :- CRIMINAL APPEAL No. - 5906 of 2017
Appellant :- Dinesh Pandey
Respondent :- State of U.P.
Counsel for Appellant :- Rajiv Dwivedi,Sunil Kumar Upadhyay
Counsel for Respondent :- G.A.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Oral Judgement by Hon'ble Ajai Tyagi, J.)
1. This appeal has been preferred by the appellant against judgment and order dated 28.03.2017 passed by Additional Sessions Judge/Fast Track Court, Chitrakoot in Session Trial No.38 of 2015 (State Vs. Dinesh Pandey) arising out of Case Crime No.45 of 2012, under Sections 498A & 304B of IPC and Section 3/4 of Dowry Prohibition Act, Police Station- Raipura, District- Chitrakoot, by which the accused-appellant was convicted under Section 498A of IPC and sentenced for two years R.I. with fine of Rs.5,000/- and six months additional imprisonment in default of fine, also convicted under Section 304B of IPC and convicted for life imprisonment and further convicted under Section 3/4 of Dowry Prohibition Act and sentenced for one year R.I. with fine of Rs.5,000/- and three months additional imprisonment in default of fine. It was directed that Rs.5,000/- shall be paid to the claimant, out of the total fine imposed as compensation.
2. The brief facts culled out from the record are that on the basis of a written report submitted by the complainant at Police Station- Raipura, District- Chitrakoot, a Case Crime No.45 of 2012 was registered in which averments were made that the daughter of the complainant Babali was married to Dinesh son of Rajkumar Pandey (accused-appellant). Dinesh used to beat his wife Babali for demanding Rs.50,000/-cash as additional dowry. It is also averred in the First Information Report that the marriage of the daughter of the complainant was solemnized with Dinesh before four years of the occurrence and one son was born out of the wedlock. On 06.04.2012, Dinesh came to the village of the complainant and took away Babali with him. On the next date his daughter told to her uncle that if Rs.50,000/- were not given to Dinesh, he will kill her. On 09.04.2012 it was informed to the complainant on phone by the younger daughter of the complainant that she had received information of the death of Babali. When the complainant and other family members went to the house of the deceased Babali, they saw several injuries on her body.
3. In pursuance of the aforesaid first information report, investigating officer took up the investigation and visited the spot. Site-plan was prepared and inquest report was also prepared. The body of the deceased was sent for post mortem. Concerned doctor conducted the post mortem and prepared the post mortem report. I.O. recorded the statements of witnesses. After completing the investigation, I.O. submitted charge sheet against accused-Dinesh Pandey under Sections 498A & 304B of IPC and Section 3/4 of Dowry Prohibition Act. The matter being triable by Court of Session was committed to the Court of Session for trial.
4. The learned trial court framed charges against the accused under Sections 498A & 304B of IPC and under Section 3/4 of Dowry Prohibition Act. Alternative charge under Section 302 IPC was also framed. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charges, examined the following witnesses:-
1.
Urmila
PW1
2.
Har Prasad
PW2
3.
Rita Pandey
PW3
4.
Ashutosh Kumar Singh
PW4
5.
Arun Chandra
PW5
6.
C.O. Devendra Singh
PW6
7.
Head Constable Shiv Kishore
PW7
8.
Dr. Arun Kumar Gupta
PW8
5. In support of the aforesaid ocular testimony, the prosecution also submitted following documents and got proved by leading the evidence:-
1.
Written report
Ext. Ka-1
2.
Recovery memo of Belt and Danda
Ext. Ka-2
3.
Recovery memo
Ext. Ka-3
4.
Inquest report
Ext. Ka-4
5.
Site-plan
Ext. Ka-5
6.
Site-plan of recovery
Ext. Ka-6
7.
Charge sheet
Ext. Ka-7
8.
First Information Report
Ext. Ka-8
9.
Copy of G.D.
Ext. Ka-9
10.
Post mortem report
Ext. Ka-10
6. After completion of prosecution evidence, the accused was examined under Section 313 Cr.P.C. No witness was examined by the accused-appellant in defense.
7. Heard Shri Sunil Kumar Upadhyay, learned counsel for the appellant and Shri N.K. Srivastava, learned AGA for the State as well as perused the record.
8. Learned counsel for the appellant submitted that appellant has been falsely implicated in this case. There was no demand for additional dowry. It is submitted by the learned counsel for the appellant that as per the prosecution story, the demand of Rs.50,000/- was made by the appellant from the deceased but there is no evidence on record that the deceased was tortured or harassed soon before her death in connection with the demand of dowry. Hence, the presumption under Section 113B of Indian Evidence Act does not arise and in the absence of this presumption, no offence is made out under Section 304B of IPC under which the appellant is convicted. It is further submitted by learned counsel for the appellant that false recovery of belt and Danda is shown by the investigating officer. Only the confessional statement of the appellant before police is made the basis of conviction, which is bad in the eye of law.
9. Learned counsel for the appellant also submitted that a son was born to the deceased out of the wedlock, who is being taken care by his grand-father. In this regard, it is also submitted that there was no occasion for the appellant to make the demand of Rs.50,000/- as additional dowry after four years of marriage and having a son.
10. Learned counsel for the appellant made submission in alternative that if, in any condition, prosecution case is to be believed then also it transpires from the evidence on record that the appellant had no intention to do away with the deceased. Ante mortem injuries, shown in post mortem report, also suggest that such type of injuries could not be inflicted if there would have been any intention to cause death. It is further submitted by learned counsel for the appellant that the appellant is having a son and after the death of his mother and father/appellant is in incarceration, his grand-father is taken care of him who himself is an old man and not having enough resources to nurture the child.
11. Learned AGA for the State vehemently opposed the submission made on behalf of the appellant and submitted that PW1 is mother of the deceased, PW2 Har Prasad is uncle of the deceased and PW3 Reeta Pandey is sister of the deceased. They all have reiterated that Rs.50,000/- were being demanded by the accused as additional dowry. It is further submitted that the death of the deceased had taken place in her matrimonial home and several injuries were also found on her body, which are mentioned as ante mortem injuries in post mortem report. It means that the accused had beaten the deceased due to which she sustained grievous injuries and died.
12. Per contra, learned counsel for the appellant submitted that in fact, the deceased fell from the stairs and sustained injuries of contusion and abrasion.
13. While going through the evidence on record, it cannot be said that the offences under Sections 498A & 304B of IPC are not made out along with Section 3/4 of Dowry Prohibition Act. PW1, PW2 and PW3 are the witnesses of fact and parents and sister of the deceased. Hence, these witnesses are natural witnesses to whom the deceased could have narrated her sufferings and factum of demand of additional dowry could very well be in their knowledge. Hence, their testimony cannot be disbelieved because they have categorically deposed that Rs.50,000/- were being demanded by the appellant as additional dowry and the deceased used to narrate the story of torture and harassment for non-fulfillment of the demand. It is not disputed that the death of the deceased had taken place in her matrimonial home.
14. Evidence on record also goes to show that before 3 days of her death, the deceased told to her uncle that the demand of additional dowry is being made and she would be killed if the demand is not met. Hence, the learned trial court has rightly drew the presumption under Section 113B of Indian Evidence Act. The appellant has failed to discharge his burden to prove that the death of the deceased does not fall within the purview of the dowry death. It is also pertinent to mention that accused-appellant could not explain the injuries which are shown as ante mortem injuries on the body of the deceased in the post mortem report.
15. Hence, in our considered view, the learned trial court has not committed any error in convicting the accused-appellant under Sections 498A & 304B of IPC and Section 3/4 of Dowry Prohibition Act. Hence, we consider that the appeal is devoid of merit and is liable to be dismissed. Hence, the conviction of the appellant is upheld.
16. Now it takes us to the quantum of sentence, specifically under Section 304B of IPC, where the life imprisonment is awarded by learned trial court. For awarding the sentence, we have to keep in mind the theories of punishment in our country.
17. In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court:
"Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries."
18. The term 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
19. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the Supreme Court referred the judgments in Jameel vs State of UP [(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8 SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323], State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system.
20. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
21. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system.
22. Keeping in view the reformative theory of punishment and "doctrine of proportionality", it appears to us that the sentence of life imprisonment, awarded under Section 304B of IPC by learned trial court, is too harsh and severe . The appellant is in jail for the last more than 11 years. This fact is also admitted by learned AGA. Moreover, we have to bear in mind that the appellant is having a son, who is being nurtured by his grandfather, which is also a mitigating factor. The sentence of life imprisonment is very harsh keeping in view the circumstances of this case.
23. Hence, we are of the considered view that since the appellant has already served more than 11 years sentence, the sentence of life imprisonment under Section 304B of IPC is converted into the sentence already undergone. The sentence under Section 498A of IPC and Section 3/4 of Dowry Prohibition Act has already been undergone by the appellant but with regard to the above sentence, the amount of fine and sentence in default shall remain intact. We further direct to pay Rs.5,000/- as compensation to the claimant out of the total fine imposed as directed by learned trial court.
24. The appeal is accordingly partly allowed with the sentence as modified above.
25. The office is directed to transmit the record to the court below.
(Ajai Tyagi, J.) (Dr. Kaushal Jayendra Thaker, J.)
Order Date :- 2.8.2022
Ashutosh Pandey
