Manoj Sharma vs The State Of U.P.
2022 Latest Caselaw 20407 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                               A.F.R.
 
RESERVED
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 2895 of 2015
 
Appellant :- Manoj Sharma
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- S. Lal,Abhilasha Singh,Ashutosh Yadav,Sheshadri Trivedi
 
Counsel for Respondent :- Govt.Advocate,Dheeraj Singh Bohra
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

(Per: Hon'ble Ajai Tyagi, J.)

1. The appeal has been preferred by the appellant-Manoj Sharma against the judgment and order dated 30.06.2015, passed by Additional Sessions Judge, Hapur in Session Trail No. 1534 of 2012 (State of UP vs. Manoj Sharma and others), arising out of Case Crime No. 157 of 2012, under Sections 498-A, 302, 304-B I.P.C. and Section 3/4 of D.P. Act, Police Station Hapur Dehat, District Hapur whereby the appellant is convicted and sentenced for the offence under Sections 302 & 304-B I.P.C. for life imprisonment with a fine and in default of payment of fine.

2. Brief facts of the case giving rise to this appeal are that a written report was submitted by informant-Mohan Sharma at police station Hapur Dehat, District Hapur with the averments that marriage of his daughter Anshu Sharma was solemnized with the accused-Manoj Sharma on 01.03.2009 in Hapur. After the marriage, husband, father-in-law, mother-in-law, brother-in-law and sister-in-law of deceased Anshu Sharma have started the demand of additional dowry and they used to demand of one Alto car and Rs.2 lacs in cash as demand of additional dowry. The financial position of informant was not such as to meet out the aforesaid demand, therefore, all the aforesaid persons started cruelty and torturing to his daughter. On 20.03.2012 at about 02:46 PM, his daughter made a phone call to the informant and told that due to non fulfilment of demand of additional dowry, her husband and his family members beating her.

3. It is also averred in the written report that informant and his wife went to the matrimonial home of their daughter, where they saw that dead body of their daughter was lying in the courtyard of the house and there were injuries mark on her body. On the basis of the aforesaid written report, a case crime no.157 of 2012 was registered at police station Hapur Dehat under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act. Investigating Officer took up the investigation, he visited the spot and prepared the site plan. Inquest proceedings were started and inquest report was prepared. Dead body of the deceased was sent for post-mortem where the doctor conducted the post-mortem on her body and prepared the post-mortem report.

4. During the course of investigation, Investigating Officer has recorded the statement of witnesses under Section 161 Cr.P.C. After completion of investigation, a charge sheet was submitted against the accused persons namely, Rajkumar, Smt. Priyanka, Km. Pooja, Manoj Sharma, Ashok Kumar and Smt. Anita.

5. Learned trial court took the cognizance on charge sheet. The matter being exclusively triable by the court of sessions, which was committed to the court of sessions where learned Trial Judge framed the charges against the accused persons under Sections 498-A, 304-B, 302/34 of I.P.C. and Section 3/4 of Dowry Prohibition Act. During the couse of trial, accused-Ashok Kumar has passed away and rest of the accused perosns were put on trial. Accused-appellant denied the charges and claimed to be tried.

6. To bring home the charges, the prosecution examined following witnesses:

1.

Mohan Sharma

P.W.-1

2.

Manju Sharma

P.W.-2

3.

Pawan Kumar Yadav

P.W.-3

4.

Dr. Sanjay Kumar

P.W.-4

5.

Subhash Chandra

P.W.-5

6.

Mahendra Singh

P.W.-6

7.

Rajpal Singh

P.W.-7

8.

Ashok Kumar

P.W.-8

7. In support of oral evidence, prosecution submitted following documentary evidence, which was proved by leading oral evidence:-

1.

FIR

Ex.ka-4

2.

Written report

Ex.ka-1

3.

Post-mortem report

Ex.ka-3

4.

Panchayatnama

Ex.ka-7

5.

Charge sheet

Ex.ka-6 & 2

6.

Site plan with index

Ex.ka-8

8. After completion of prosecution evidence, the statement of accused was recorded under Section 313 of Criminal Procedure Code (Cr.P.C.) and after completion of prosecution evidence, in which they told that false evidence has been let against them and it was stated by accused-appellant that at the time of occurrence, he was not present in the house and had gone to attend his duty. After hearing the arguments of both the sides, learned trial court acquitted all the accused persons except accused-appellant Manoj Sharma. Accused-appellant, Manoj Sharma was convicted and sentenced under Section 304B, 302 I.P.C. and Section 4 of Dowry Prohibition Act.

9. Heard Mr. Sheshadri Trivedi, learned counsel for the appellant and learned counsel for the State. Record has been perused.

10. Learned counsel for the accused-appellant has submitted that appellant has been falsely implicated by the informant because there was no demand of additional dowry on the part of the appellant or any of his family members. Learned trial court has acquitted all other accused persons except the appellant, which itself proves that the entire prosecution story on which the prosecution case was based proved false.

11. It is also submitted by learned counsel for the appellant that as per the First Information Report, the deceased made a phone call to her father/informant by which she informed that she was being beaten by the accused persons and specific mobile number is mentioned in the F.I.R. but there is no call detail report is on record, which could prove the aforesaid fact. In fact, the deceased had committed suicide because she was under depression for not having any child. There is no eye witness of the occurrence.

12. It is next submitted that as per the prosecution story, the occurrence had taken place in the early hours of the morning but there is no evidence on record, which could fix the time of death. In fact, the appellant had gone to his duty at 09:00 AM and after that the suicide was committed by the deceased for the reason stated above, therefore, at the time of the said occurrence, the appellant was not present at the house. Learned trial court has convicted the appellant by shifting the burden of proof on him under Section 106 of Indian Evidence Act.

13. Since the accused-appellant was not present in the house at the time of occurrence, therefore, no burden of proof under Section 106 of Indian Evidence Act could be shifted on the shoulders to prove his innocence. Learned counsel for the accused-appellant has relied on the judgment of this Court in the case of Dharmendra Rajbhar Vs. State of U.P., 2021 LawSuit (All) 27 and the judgments of Hon'ble Apex Court in the case of R. Rachaiah Vs. Home Secretary, Bangalore, 2016 2 Crimes(SC), 264, Jasvinder Saini Vs. State (Govt. of NCT of Delhi), 2013 4 Crimes(SC) 346 and Sanjay Kumar Jain Vs. State of Delhi, 2010 0 Supreme(SC) 1226.

14. It is further submitted by learned counsel for the accused-appellant that in this case charges have wrongly been framed by the learned trial court. It has framed the charges for the offence under Section 304-B & 302 I.P.C. separately while the charge under Section 302 I.P.C. should have been framed as alternative charge and at the time of awarding the punishment, learned trial court has awarded the punishment in both the offences.

15. Submission of learned counsel is that no person can be awarded sentence twice for one offence. Counsel for the accused-appellant has attracted the attention of this Court to the provision of Section 71 of I.P.C., which speaks as under :-

71. Limit of punishment of offence made up of several offences.--Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his of­fences, unless it be so expressly provided. 1[Where anything is an offence falling within two or more sepa­rate definitions of any law in force for the time being by which offences are defined or punished, or where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.] Illustrations

(a) A gives Z fifty strokes with a stick. Here A may have commit­ted the offence of voluntarily causing hurt to Z by the whole beating, and also by each of the blows which make up the whole beating. If A were liable to punishment for every blow, he might be imprisoned for fifty years, one for each blow. But he is liable only to one punishment for the whole beating.

(b) But if, while A is beating Z, Y interferes, and A intention­ally strikes Y, here, as the blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is liable to one punishment for voluntarily causing hurt to Z, and to another for the blow given to Y.

16. It is next submitted that there is no evidence on record with regard to the offence under Section 302 I.P.C. This is not proved on record that accused-appellant has committed the murder of the deceased and the learned trial court has convicted the accused-appellant for the offence under Section 302 I.P.C. on the basis of circumstantial evidence while the motive is not proved nor any circumstance is brought on record by which it could be assessed that offence is committed by the accused-appellant. For facing conviction on circumstantial evidence, the circumstances should be fully proved.

17. In this case, no chain of circumstances is complete in such a manner that could lead to the conclusion that accused-appellant was the only one who had committed the crime and none else. No question is put to the accused-appellant at the time of recording his statement under Section 313 Cr.P.C., therefore, the accused-appellant is highly prejudiced. The impugned judgment and order is bad in the eye of law and is liable to be set aside.

18. Per contra, learned A.G.A. has submitted that it is clearly stated in the F.I.R. that appellant along with his family members continuously demanded the Alto Car and Rs.2 lacs in cash as additional dowry. The death of the deceased had taken place in her matrimonial home and witnesses of fact i.e. P.W.-1 & P.W.-2 have supported the prosecution case. Moreover, Dr. Sanjay Kumar, P.W.-4 has opined that cause of the death was asphyxia due to throttling, therefore, it is proved beyond doubt that the death of the deceased was not the result of suicide but she was murdered by the accused-appellant due to non fulfilment of demand of additional dowry.

19. It is further submitted by learned A.G.A. that all the witnesses of fact have supported the prosecution case and, therefore, there is no illegality or impropriety in the impugned judgment and order, which calls for any interference by this Court.

20. Prosecution has made foundation of this case as a case of dowry death. It is averred in F.I.R. that marriage of the deceased was solemnized with accused-appellant on 01.03.2009 and the death of the deceased was occurred on 20.03.2012, therefore, undisputedly, the death of the deceased had taken place within seven years of her marriage. Allegations of demand of additional dowry are made in F.I.R. and just before the death, the deceased made a phone call to her father stating the act of torturing by the accused-appellant and his family members. So, in this way, the prosecution has founded its case as a dowry death case.

21. Prosecution has produced two witnesses of fact i.e. P.W.-1 & P.W.-2, father and mother of the deceased respectively. Both the witnesses have supported the prosecution version and during their cross-examination, no such evidence has emerged which could help the appellant or which could shatter the prosecution case. The evidence of P.W.-4, Dr. Sanjay Kumar goes to show that there were ante mortem injuries in post-mortem report, which reads as under:-

(i) Abrasion 3 cm X 1 cm on the side of upper neck, 6 cm below and behind the chin.

(ii) Contusion 2 cm X 2 cm on the upper part of neck, 6 cm below and behind the chin on right side of neck.

(iii) Abrasion 1 cm X 1 cm on the back of the wrist.

22. The doctor has opined the cause of death was throttling and no contrary evidence to the aforesaid medical evidence is found on the record. Section 304-B I.P.C. defines dowry death, as under:-

[304B. 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 the 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.]

23. Learned trial court has also taken into consideration the ingredients of the offence under Section 304-B I.P.C. and reached to the conclusion that death of the deceased had taken place within seven years of her marriage, which was the death, otherwise, than under normal circumstances. It is also proved that soon before her death, she was subjected to cruelty by accused-appellant in connection with demand of additional dowry.

24. Learned trial court has also considered that aforesaid ingredients are available and proved in this case. These ingredients have not been rebutted by the accused-appellant, therefore, we concur with the findings of learned trial court in holding the appellant guilty for the offence under Section 304-B I.P.C. but when the offence under Section 304-B I.P.C. has been proved by prosecution beyond reasonable doubt then the learned trial court was not required to enter the arena of the offence under Section 302 I.P.C.

25. After holding the appellant's guilty under Section 304-B I.P.C., the learned trial court went a step further for taking the recourse of the provision of Section 106 of Indian Evidence Act and the burden was to be on the shoulders of the accused-appellant to prove his innocence in the light of the fact that death of the deceased had taken place in her matrimonial home where she used to reside with her husband/appellant. Learned trial court convicted the accused-appellant under Section 302 I.P.C. also on the basis of circumstantial evidence, which was not required when he had already been convicted for the offence of "dowry death".

26. The parameters and contours of the offence of "dowry death" and "murder" are entirly different. The offence of dowry death is proved by first proving ingredients as mentioned in Section 304-B I.P.C. and raising the presumption under Section 113-B of Indian Evidence Act, while in case of murder, no presumption can be raised and prosecution is required to prove the offence under Section 302 I.P.C. beyond reasonable doubt but the learned trial court has mixed one offence with two separate punishments. If the offence with regard to murder is considered separately then also it is not proved because learned trial court has taken it as a case of circumstantial evidence. In a matter of circumstantial evidence, the chain of circumstances must be complet, in such a manner, that it could reach only to one conclusion that it is the accused who has committed the offence and no one else. Circumstances should be fully proved and must be conclusive in nature, which is not in our case.

27. We are in full agreement with the submission of learned counsel for the accused-appellant that no question with regard to offence of murder was put to the appellant in his statement recorded under Section 313 Cr.P.C. Section 313 Cr.P.C. reads as under:-

313. Power to examine the accused.

(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-

(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons- case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub- section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

28. The object behind Section 313 Cr.P.C. is to enable the accused to explain any circumstance appearing against him in the evidence and its object is based on the maxim audi alterm partem, which is one of the maxim principles of natural justice. It has always been recorded as interfered to rely upon any incriminating evidence without affording the opportunity to the accused for explaining the said incriminating circumstances. The provisions of Section 313 Cr.P.C., therefore, makes it obligatory on the Court to question the accused on the evidence and circumstance appearing against him so as to apprise him on the exact case, which he is required to meet. In a case of circumstantial evidence, the same is essential to decide whether or not, the chain of circumstances is complete. Therefore, the examination of accused under Section 313 Cr.P.C. is of utmost importance and fair opportunity should be awarded to the accused so that no prejudice is caused to him.

29. We are of the considered view that learned trial court has committed grave error in holding the accused-appellant guilty for both the offences under Section 304-B and 302 I.P.C. distinctly and simultaneously. Consequently, we deem it appropriate to set aside the conviction of the accused-appellant under Section 302 I.P.C. but in the facts and circumstances of this case, the offence under Section 304-B I.P.C. is proved against the accused-appellant beyond any reasonable doubt, therefore, we concur with the findings of learned trial court as far as the conviction of accused-appellant is concerned for the offence under Section 304-B I.P.C.

30. Now it comes to the part of sentencing. The impugned judgment and order goes to show that for the offence under Section 304-B I.P.C. also, the appellant has sentenced for life imprisonment and fine to the tune of Rs.1 lacs. Sub section 2 of Section 304-B I.P.C. provides the punishment for the offence of dowry death, which states as under:-

304-B (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.]

31. The punishment for the offence of dowry death does not provide the imposition of fine, it provides only imprisonment which shall not be less than seven years but which may extend to life imprisonment. Learned trial court has committed grave error by imposing the fine. Life imprisonment is awarded for the offence under Section 304-B I.P.C. Principles of proper sentencing should be kept in mind by the court while awarding the punishment.

32. '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.

33. 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.

34. 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.

35. As per the jail report of the accused-appellant, his incarceration period is more than 12 years as of now with remission and actual undergone period is more than 10 years, therefore, we feel that in the light of the facts and circumstances of this case, the punishment of life imprisonment for the offence under Section 304-B I.P.C. is too severe and harsh.

36. 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.

37. Learned AGA also admitted the fact that appellant is languishing in jail for the last more than 12 years. Since, the appellant has already served 12 years in jail, ends of justice will be met if sentence is reduced to the period already undergone.

38. Hence, the sentence awarded to the accused-appellant by the learned trial-court is modified as period already undergone and the fine awarded for Rs.1 lacs is set aside. Conviction and sentence for the offence under Section 302 I.P.C. is hereby set aside.

39. Accordingly, the appeal is partly allowed with the modification of the sentence, as above. The accused-appellant shall be released forthwith, if not wanted in any other case.

40. Let a copy of this judgment along with the trial court record be sent to the court below and jail authorities concerned for compliance.

(Ajai Tyagi,J.)       (Dr. Kaushal Jayendra Thaker,J.)
 
Order Date :- 09.12.2022
 
P.S. Parihar