Dinesh Kumar vs State Of U.P.
2022 Latest Caselaw 5216 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Judgment Reserved on 13.05.2022
 
Judgment delivered on 16.06.2022
 

 
Court No. - 27
 
Case :- CRIMINAL APPEAL No. - 1519 of 2011
 
Appellant :- Dinesh Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- K.K. Yadav,Amol Kumar, N.K.Chaudhary, Pradeep Kumar Tripathi, Puneet Chandra,Rajendra Prasad, Rishad Murtaza,Vivek Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Rajeev Singh,J.

1. This appeal has been filed against the judgment of conviction dated 16.07.2011 passed by the learned Additional District & Sessions Judge, Court No.5, Sitapur, in Sessions Trial No.686 of 2008, arising out of Case Crime No.591 of 2007, Police Station Imaliya Sultanpur, District Sitapur, whereby the appellant Dinesh Kumar has been convicted under Sections 498-A, 304-B, 201 of I.P.C. and also under Section 4 of Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for 10 years for the offence under Section 304-B of I.P.C. The appellant was also sentenced to undergo 7 years' rigorous imprisonment for the offence under Section 201 I.P.C. along with a fine of Rs.2,000/-. However, it appears that no separate sentence has been awarded for the offences under Section 498A I.P.C. and under Section 4 of Dowry Prohibition Act.

2. The appeal was dismissed vide judgment and order dated 30.11.2018. Thereafter, the appellant had preferred Criminal Appeal No.1034 of 2019 arising out of SLP (Crl.) No.3694 of 2019 (Dinesh Kumar vs. State of U.P.) before the Hon'ble Supreme Court and the said appeal was disposed of vide judgment and order dated 12.07.2019, whereby the Hon'ble Supreme Court remanded the matter to this Court.

3. Heard Mr. Rishad Murtaza, learned counsel for the appellant and Mr. Ajay Kumar Singh Tomar, learned A.G.A. for the State and perused the record.

4. The prosecution case is that the informant filed application under Section 156 (3) of Cr.P.C. with the averments that his daughter Geeta Chaudhary (deceased) was married to Dinesh Kumar (appellant) on 13.02.2006 and he gave cash of Rs.1,40,000/- and also gave household articles of the same amount. After the marriage the deceased went to her in-laws' house, the in-laws of the deceased namely Tulsi Ram (father-in-law), Mukesh, Shyam Lal and Guddu (brothers-in-law) and Badka (mother-in-law) were not satisfied with the dowry, therefore, they started taunting the deceased. Thereafter, the deceased called her father (the informant), whereupon the informant along with other family members who went to the house of appellant and tried to pacify the matter, but the in-laws of the deceased had demanded a Maruti car in dowry. It is further alleged that when the informant had shown his inability in giving a Maruti car, the above persons demanded cash of Rs.1,00,000/- and threatened that if the said amount would not be paid, then his daughter (deceased) will be killed. Thereafter, the informant arranged Rs.50,000/- and helped the appellant to purchase a second hand Maruti car and for sometime the matter remained pacify. It is also alleged that on 25.06.2007 the appellant along with the deceased came to the newly constructed house of informant on the occasion of Grih Pravesh ceremony and she told that all the accused persons including the appellant were demanding a Maruti car on which the informant said that he will talk to her in-laws after Griha Pravesh ceremony. It is further stated that on 26.06.2007 at about 3:00 P.M. the appellant pressurized the informant for sending back the deceased to her matrimonial house. It is also alleged that after bringing the deceased to his house the appellant assaulted and killed her and hanged her dead body with the roof of the room giving a colour of suicide. It is further stated that at 6:00 PM in the evening the appellant informed the informant that the suicide was committed by the deceased. Thereafter, the informant along with his family members and relatives reached to the house of appellant and found that the room of the deceased was closed from inside and when the room was opened the informant and her family members found that the deceased was hanging from the roof of the room. It is also alleged that the appellant and his family members threatened the informant that if he will inform the police then his sons would also be killed like her daughter and the appellant and his family members took signature of the informant on the blank paper and thereafter cremated the dead body of the deceased. It is also stated that thereafter the informant had tried to lodge the F.I.R. in the Police Station Imaliya Sultanpur at Distirict Sitapur but his report was not lodged. Thereafter, the informant sent an application to the Superintendent of Police and other higher authorities for legal action against the appellant but no action was taken. Thereafter, on the direction of learned Judicial Magistrate, Sitapur, under Section 156(3) of Cr.P.C., the F.I.R. was lodged as Case Crime No.591 of 2007, under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act and police took up investigation.

5. It appears that after concluding the investigation, the Investigating Officer submitted charge-sheet only against the appellant under Sections 498-A, 304-B, 201 I.P.C. and Section 3/4 of Dowry Prohibition Act. After taking cognizance of the aforesaid offences the learned Judicial Magistrate, vide his order dated 29.07.2008, committed the case to the court of Sessions as the offence under Section 304-B I.P.C. is exclusively triable by the court of Sessions. Thereafter, the charges were framed against the appellant under Sections 498-A, 304-B, 201 I.P.C. and Section 3/4 of Dowry Prohibition Act and the appellant pleaded not guilty and requested for trial.

6. The prosecution had produced six witnesses in support of its case. After completion of the evidence, the statement of appellant was recorded under Section 313 Cr.P.C. in which he admitted that he married to the deceased on 13.02.2006 and also stated that the deceased had committed suicide willfully because he forcefully brought her from her parental house in front of her entire relatives.

7. The defence had also produced two witnesses in support of its case and also brought documentary evidence in support of the case.

8. Learned trial court after considering the evidences available on record and also after hearing the arguments of counsels for the parties convicted and sentenced the appellant as stated hereinabove by the impugned judgment. Hence, the present appeal is filed against the judgment and order of conviction.

9. Learned counsel for the appellant submitted that there is an inordinate delay in lodging the F.I.R. in question and no plausible explanation had been given by the prosecution for the said delay. He further submitted that in fact the informant was demanding Rs.5,00,000/- from the appellant and when the appellant refused to pay the said amount the F.I.R. in question has been lodged. He further submitted that the deceased had committed suicide, therefore no offence under Section 304-B I.P.C. is made out against the appellant, hence, the conviction of the appellant under Section 304-B I.P.C. cannot be sustained in this appeal. He further submitted that the learned court below has committed error in convicting the appellant and sentencing him for 10 years' R.I. and relied on the decision of Hon'ble Rajasthan High Court in the case of Mukat Bihari vs. State of Rajasthan reported in 2006 CriLJ 439 and also relied on the decision of this High Court in the cases of Deepak Kumar @ Babbu @ Ballu vs. State of U.P. passed in Criminal Appeal No.4887 of 2017 on 01.08.2019 and Ram Ajor vs. State of U.P. passed in Criminal Appeal No.5050 of 2006 on 29.09.2020.

10. On the other hand, learned A.G.A. submitted that the informant had given sufficient explanation for the delay in lodging the F.I.R. He also submitted that after cremation of dead body of the deceased the informant had tried to lodge the case in the police station but the same was not being lodged due to political interference. Thereafter the informant made a complaint before the higher authorities but all in vain. Then the informant filed an application under Section 156 (3) Cr.P.C., on the basis of which the F.I.R. in question was lodged. Thus, the informant has given sufficient explanation for the delay. He further submitted that the deceased died in an abnormal circumstances in the house of the appellant within seven years of her marriage and there are evidence available on record to show that on the date of occurrence itself the deceased was harassed by the appellant in front of all her relatives for demand of dowry. Thus, there is direct nexus of abnormal death of the deceased with that of harassment meted out on her for demand of dowry. Therefore, the offence under Section 304-B I.P.C. is made out against the appellant. Hence, there is no illegality and/or irregularity in the impugned judgment of conviction and order of sentence passed by the trial court.

11. Having heard the submissions, I have gone through the record of the case and carefully scrutinized the evidence available on it.

12. In the present case, the postmortem of the dead body of the deceased has not been done. However, the informant namely Manohar (P.W.1) had stated that he could not inform the police earlier because the appellant and inmates of his family had threatened to kill his sons like her daughter was killed if he will inform the police. The appellant and his family members obtained signature of the informant on a blank paper and thereafter cremated the dead body and this fact was also stated by P.W.2 and P.W.3 namely Saroj Kumari and Indra Pratap Chaudhary respectively. D.W.1 Dharmraj and D.W.2 Jagdish also stated that the dead body of the deceased was cremated with the written consent of the informant. P.W.1, P.W.2 and P.W.3 as well as D.W.1 and D.W.2 had categorically stated in their depositions that the deceased committed suicide and this fact was also admitted by the appellant in his statement recorded under Section 313 Cr.P.C. in which he had categorically stated that the deceased committed suicide because the appellant brought her from her parental house. The appellant in his statement under Section 313 Cr.P.C. also admitted that he married to the deceased on 13.02.2006. In these circumstance, from the evidence available on record, it is clear that the deceased committed suicide within seven years of her marriage in the house of the appellant.

13. PW-1, PW-2 and PW-3 in their deposition had stated that just after the marriage, the appellant and his family members were demanding Rs.1,00,000/- for purchasing the Maruti car. They also stated that the informant (P.W.1) had paid Rs.50,000/- to the appellant with the help of which the appellant purchased a second hand Maruti car. They further stated that on 25.06.2007 the appellant came in the newly constructed house of the informant for attending the Grih Pravesh ceremony. They also stated that on 25.06.2007, the deceased stated that the appellant and his family members were still demanding a new Maruti car and were harassing her due to non fulfillment of the said demand. It is also evident that on 26.06.2007 the appellant forcefully brought the deceased from her parental house to his house. In this regard, P.W.2 (sister of the deceased) had stated that the appellant dragged the deceased inside the Maruti car and had stated that she will not return thereafter. P.W.2 further stated that while starting the car, the appellant stated that the informant had money for construction of the house, but not for giving it to him. PW-3 (brother of the deceased) had also stated that on 26.06.2007 the appellant forcefully took away the deceased to his house.

14. From perusal of the cross-examination of the witnesses, I find that the aforesaid statements made by them, has not been challenged. On the other hand, from perusal of the statement of the appellant recorded under Section 313 Cr.P.C. I find that the appellant has also admitted that the deceased had committed suicide because he forcefully brought her from her parental house in front of all of her relatives. These acts of the appellant show that the deceased has committed suicide because she has been physically and mentally harassed by the appellant and it appears that such physical and mental harassment had direct nexus with the alleged demand of dowry. Therefore, learned trial court has rightly convicted the appellant for the offences under Sections 498-A, 304-B, 201 I.P.C. and Section 4 of D.P. Act.

15. As on the point of quantum of sentence is concerned, the Hon'ble Apex Court in the case of Kashmira Devi vs. State of Uttarakhand and Others passed in Criminal Appeal No.724 of 2019 on 28.01.2020 had reduced the sentence of life under Section 304-B I.P.C. to imprisonment for 7 years. In that case, marriage of the deceased was solemnized Four years prior to the date of incident and the deceased died due to burn injuries. The relevant paragraph of the aforesaid judgment is under:-

"24. Having arrived at the above conclusion the quantum of sentence requires consideration. The High Court has awarded life imprisonment to the appellant on being convicted under Section 304-B IPC. The minimum sentence provided is seven years but it may extend to imprisonment for life. In fact, this Court in Hem Chand v. State of Haryana [Hem Chand v. State of Haryana, (1994) 6 SCC 727 : 1995 SCC (Cri) 36] has held that while imposing the sentence, awarding extreme punishment of imprisonment for life under Section 304-B IPC should be in rare cases and not in every case. Though the mitigating factor noticed in the said case was different, in the instant case keeping in view the age of the appellant and also the contribution that would be required by her to the family, while husband is also aged and further taking into consideration all other circumstances, the sentence as awarded by the High Court to the appellant herein is liable to be modified."

16. Applying the provisions laid down by the Hon'ble Apex Court in the case of Kashmira Devi vs. State of Uttarakhand & Others (supra) and having perused the record and totality of the facts and circumstances of the case, the 10 years' R.I. sentence awarded by the learned trial court to the appellant for the offence under Section 304-B I.P.C. is hereby reduced to the sentence of 7 Years' R.I.

17. Accordingly, the appeal is partly allowed and the sentence awarded by the learned trial court under Section 304-B I.P.C. is modified accordingly, and the pending application(s), if any, is/are hereby disposed of.

18. Trial court is directed to ensure that the appellant serves out the sentence and after completion of the sentence, the appellant shall be released forthwith unless his involvement is not found in any other case.

19. Let the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.

Order Date :- 16.06.2022

S. Shivhare