Allahabad High Court

Raj Kumar @ Raju vs State Of U.P. on 23 November, 2022

Bench: Kaushal Jayendra Thaker, Nalin Kumar Srivastava




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 5702 of 2016
 

 
Appellant :- Raj Kumar @ Raju
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Krishna Murari Tripathi,Anil Kumar,Arvind Srivastava,Dinesh Mishra,Rajrshi Gupta,Rateesh Singh,Subhash Chandra Yadav,Vimlesh Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per: Hon'ble Nalin Kumar Srivastava, J)

1. Heard Sri Rajrshi Gupta, learned counsel for the appellant and Sri Nagendra Kumar Srivastava, learned A.G.A. for the state.

2. This appeal challenges the judgment and order dated 4.10.2016 passed by learned Additional Sessions Judge, Court No.1, Hathras in Sessions Trial No.357 of 2014 (State vs. Raj Kumar @ Raju) arising out of Case Crime No.280 of 2014 convicting accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced the accused-appellant to undergo imprisonment for life with fine of Rs.30,000/- and in case of default of payment of fine, further to undergo imprisonment for a period of six months.

3. The genesis of the case is that the deceased was married with the accused appellant Raj Kumar three years before the occurrence. It is alleged in the FIR that the appellant/ accused and his family members were demanding Rs.2 lacs as additional dowry and when the deceased showed her inability to get the same from her parents, they harassed and subjected her to cruelty. On 20.04.2014, Rs.50,000/- as additional dowry were given to the accused persons but on 21.04.2014 the sad news of her death came. The FIR was lodged on the very same day by Satyaveer, the father of the deceased. The police moved to the scene of occurrence and prepared panchayatnama, autopsy of the dead body was performed and the post mortem revealed that the death was due to strangulation.

4. The police after recording the statements of several witnesses filed charge-sheet against the three accused persons. Being summoned the accused were committed to the court of Sessions as the offences for which the accused were charged were exclusively triable by the court of Sessions.

5. The charges were framed for commission of the offence under Section 304 B, 498 I.P.C. Read with Section 4 of D.P. Act and an alternative charge 302/34 I.P.C. was also framed against all the three accused persons, which was denied by them. They pleaded not guilty and claimed to be tried.

6. The trial started and the prosecution examined a total of 10 witnesses, who are as follows:

Satyavir Singh, informant/ father of the deceased

P.W.1

Premwati, mother of the deceased

P.W.2

Anil Kumar, cousin of the deceased

P.W.3

Rajwati, aunt of the deceased

P.W.4

Sukhveer, uncle of the deceased

P.W.5

Dharmendra, cousin of the deceased

P.W.6

Dr. R.K. Dayal, who performed the autopsy

P.W.7

Satyaveer Vyaas,witness of the inquest

P.W.8

Ram Veer, witness of the inquest

P.W.9

C.O. Narendra Dev, second I.O.

P.W.10

7. In support of the oral evidence following documents were filed:

Written Report

Ex.Ka.1

Inquest Report

Ex.Ka.2

Autopsy Report

Ex.Ka.3

Charge Sheet

Ex.Ka.4

FIR

Ex.Ka.5

Site Plan

Ex.Ka.6

FIR

Ex.Ka.7

Recovery Memo of Bangles

Ex.Ka.8

Photo Nash

Ex.Ka.9

10.

Letter to R.I.

Ex.Ka.10

11.

Letter to C.M.O.

Ex.Ka.11

8. After the evidence was over, statement of the accused persons under Section 313 Cr.P.C. was recorded and the incriminating circumstances and the evidence against them were put to them. They have taken a defence of false implication and present accused/ appellant Raj Kumar stated that the deceased committed suicide, at the time of occurrence he was not present at home and had gone for his job. When he got informed that the door has been closed by the deceased from inside, he came back, the door lock was broken by the neighbours and they saw the deceased hanging.

9. D.W.1 Prem Singh has been produced for the defence side

10. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellant as mentioned above.

11. Learned counsel for the appellant has relied on the decision in Sanjay Maurya Vs. State of U.P., (2021) 02 ILR A473 and has contended that it is not proved that the offence under Section 302 is committed or any offence under Section 304B is proved against the accused. The case cannot be said to be proved under Section 302 of Indian Penal Code as the conviction by Trial Court with the aid of Section 106 of the Indian Evidence Act, 1872 is bad. It is further submitted that the decisions on which the trial court has placed reliance have been misread by the learned trial Judge so as to hold that accused is guilty of commission of offence under Section 302 IPC. It is further submitted that the incident even if it is believed to have occurred and culpability of accused is proved, occurred on the spur of the moment, therefore, the accused if has to be held guilty, be convicted under Section 304(1) of the I.P.C.

12. As against this Sri N.K. Srivastava, learned counsel for the State has contended that

(i) the death occurred in the matrimonial home of the deceased;

(ii) the incident occurred within 7 years of married life. The proof of death being homicidal is proved. Despite the fact that in the statement under Section 313 Cr.P.C the accused has pleaded that he is not guilty, he has not discharged the burden cast on him to rebut the proved facts against him.

13. While considering the facts we have to consider the provisions of Section 304B IPC read with Section 302 of the Indian Penal Code. Trial Court has based the conviction with the aid of Section 106 of Indian Evidence Act, 1872. The provisions of Section 106 of Indian Evidence Act, 1872 lay as follows :-

"106. Burden of proving fact especially within knowledge.--When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations

(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.

(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him."

14. We are of the considered opinion that Section 106 of the Indian Evidence Act, 1872 would come into play once the prosecution has discharged its duty of proving facts as per the charge to some extent on the basis of evidence. In this case, it is desirable to look into the ingredients of Section 300 of I.P.C which read as follows:-

"300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

(Secondly) --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--

(Thirdly) --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--

(Fourthly) --If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual. Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:--

(First) --That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

(Secondly) --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

(Thirdly) --That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills. Y, Z's child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide. Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder."

15. Section 304B of IPC reads 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 purposes 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.]"

16. The question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code or under Section 304B of IPC. It would be relevant to refer to Section 299 of the Indian Penal Code, which reads as under:

"299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."

17. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of I.P.Code. The following comparative table will be helpful in appreciating the points of distinction between the two offences.

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.

INTENTION

(a) with the intention of causing death; or

(1) with the intention of causing death; or

(b) with the intention of causing such bodily injury as is likely to cause death; or

(2) with the intention of causing such bodily injury as the offender knows to be likely to

cause the death of the person to whom the harm is caused;

KNOWLEDGE

(4) with the knowledge that the act is so immediately dangerous

that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

18. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would not be one punishable under Section 304 of the IPC.

19. It would be relevant for us to discuss the evidence of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6, who are family members of the deceased coupled with the fact that P.W.2, P.W.3,P.W.4, P.W.5 and P.W.6 did not support the prosecution and were declared hostile. However, in examination-in-chief, they have categorically mentioned that they got the deceased married to Raj Kumar three years before she died and in the marriage they gave dowry as per their financial condition, however denied the fact that the appellant and his family members were demanding any kind of dowry. P.W.1, the father of the deceased, has supported the prosecution version but his deposition is contradicted by the testimonies of P.W.2, P.W.3,P.W.4, P.W.5 and P.W.6, who are real mother and other family members of the deceased.

20. In cross-examination witnesses P.W.2, P.W.3, P.W.4, P.W.5 and P.W.6 have feigned ignorance as to how the I.O. had mentioned the fact of demand of Rs.2 lac in their statement under Section 161 Cr.P.C.

21. The trial Court has convicted the accused appellant under Section 302 I.P.C. with the aid of Section 106 of the Evidence Act. In such a case, which may be said to be rest on circumstantial evidence to prove the offence under Section 300 I.P.C. culpable homicide amounting to murder, there must be clinching evidence that it was the appellant alone, who was last seen with the deceased. The evidence on record shows that nobody has seen the accused committing the offence of strangulating the deceased. The circumstances and ingredients to be proved to bring home charge under Section 302 I.P.C. in a case based on circumstantial evidence have been reiterated in a case of State of U.P. v. Ravindra Prakash Mittal (Dr), (1992) 3 SCC 300, the Hon'ble Apex Court has held:

"20. .........There is a series of decisions of this Court so eloquently and ardently propounding the cardinal principle to be followed in cases in which the evidence is purely of circumstantial nature. We think, it is not necessary to recapitulate all those decisions except stating that the essential ingredients to prove guilt of an accused person by circumstantial evidence are:

(1) The circumstances from which the conclusion is drawn should be fully proved;

(2) the circumstances should be conclusive in nature;

(3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence;

(4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused."

22. It was also held in Raja v. State of Haryana, (2015) 11 SCC 43 that the Court is required to evaluate circumstantial evidence to see that chain of events has been established clearly and completely to rule out any reasonable likelihood of innocence of accused; whether chain is complete or not, would depend on facts of each case emanating from evidence and no universal yardstick should above be attempted.

23. In the light of the aforesaid legal proposition, it has to be examined whether the chain of circumstances in this case is complete and all the circumstances lead to a certain conclusion that it was the accused only who was the author of the crime and whether there was sufficient evidence on record or only on the basis of the last seen this conclusion was drawn. The death has occurred in the matrimonial home of the deceased and that is only the circumstance which was proved by the prosecution. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind that it is a homicidal death. If the decision over, which the trial Court has placed reliance to have coming to the conclusion that offence under Section 302 I.P.C. is made out, whether can be made applicable to the facts of this case as examined, the answer is in negative. However, a rebuttal evidence under Section 106 of the Evidence Act is clear the facts and offence under Section 304 B could be presumed to have been made out but not an offence under Section 302 I.P.C.

24. This takes us to the question of applicability of Section 304B of I.P.C to the facts of this case.

25. To bring home charge under Section 304 B I.P.C., the ingredients to be proved are very well settled in the catena of decisions by the Apex Court and also by this Court. Section 304B I.P.C. reads as follows:

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.]

26. From the above definition the following ingredients to establish the offence under Section 304B I.P.C. are as follows:

(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

(ii) such death must have occurred within seven years of her marriage;

(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband;

(iv) such cruelty or harassment must be for, or in connection with, demand for dowry".

27. The aforesaid ingredients have been reiterated in a catena of decisions of the Hon'ble Apex Court and of this High Court also and very recently in Devendra Singh Vs. State of Uttrakhand AIR 2022 SC 2965 also.

28. However we examine the evidence of P.W.1 in totality, we find that the ingredients of offence under Section 304B I.P.C. are clearly established from his deposition. He is the unfortunate father of the young deceased lady. He has categorically stated in his statement that after the marriage of her daughter several time additional dowry was demanded from her daughter by her in-laws, who were not happy with the dowry already given to them. When his daughter informed him, he went to the accused persons and Rs.50,000/- were paid to them on 20.04.2014 and 21.04.2014 was the fateful day where the incident happened. This witness has also proved the written tehrir given to the police by him as Ex.Ka-1. In his cross examination he has also affirmed this fact that whenever he visited the matrimonial home of his daughter, he found her not happy. No material contradictions, exaggerated or inconsistent statement are found in the whole testimony of P.W.1. The theory of 'soon before' is also proved by his deposition as only one day before the fateful day the additional dowry was paid to the accused persons by him, which was demanded on 15.4.2014 as deceased herself told him on phone. In Satvir Singh And Ors. Vs. State of Punjab (2001) 8 SCC 633, it has been clarified that the expression 'soon before', here it was indicates that there must be a perceptible nexus between the infliction of dowry-related harassment and cruelty on the women and death. In Satbir Singh Vs. State of Haryana (2021) 6 SCC 1, it was held that the phrase "soon before" as appearing in Section 304-B IPC cannot be construed to mean "immediately before". The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives. Needless to say that all the ingredients to establish the guilt under Section 304B I.P.C. have been clearly proved by the testimony of P.W.1.

29. D.W.1 produced to prove the plea of alibi taken by the accused/appellant has been disbelieved by the learned trial Court. He has stated that it was a case of suicide but he could not make it clear as to what was the reason of suicide committed by the deceased.

30. We come to the definite conclusion that the death was homicidal death. The judgments cited by the learned counsel for the appellant namely Sanjay Maurya ( supra) would permit us to uphold our finding which we conclusively hold that the offence is not under Section 302 of I.P.C. but it is culpable homicide and was dowry death. All the ingredients of dowry death viz. unnatural death of deceased by strangulation within seven years of her marriage, cruelty for demand of dowry by her husband, the theory of soon before, are proved beyond reasonable doubt on the basis of deposition of P.W.1 and also by the medical evidence. Moreover, no material lacuna in investigation appears to be committed by the I.O.

31. While coming to the conclusion that the accused is the perpetrator of the offence, whether sentence of life imprisonment and fine is adequate or the sentence requires to be modified in the facts and circumstances of this case and in the light of certain judicial pronouncements and precedents applicable in such matters. This Court would refer to the following precedents, namely, 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."

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 Hon'ble 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 Hon'ble 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. Recent judgment of State of M.P Vs. Jogendra, (2022) 5 SCC 401 and ratio laid in the said judgment can be followed, however, instead of seven years period undergone of imprisonment for at least 10 years would be more than relevant in the facts and circumstances of this case.

36. Having discussed the judgment threadbare and having been considered the factual data, we have come to the conclusion that the offence committed by the accused with an aid of Section 106 of Indian Evidence Act, can be said to have been under Section 304B I.P.C. for the finding mentioned herein above.

37. By going through the evidence on record it is very clear that the act of the accused-appellant was not such which cannot be substituted by giving a lessor sentence than life imprisonment. It is submitted that the accused appellant has spent about 8 and 1/2 years of incarceration, which is the enough punishment in the facts of this case. However, we are of the considered view that the punishment in this case should be 10 years of incarceration against which a period of 8 and 1/2 years is already undergone. Accordingly, the appellant is held guilty under Section 304B I.P.C. and is sentenced to rigorous imprisonment for a period of 10 years but the fine and default sentence are maintained.

38. Accordingly, the appeal is partly allowed with the modification of the sentence and punishing section as above. Record and proceedings be sent back to the Court below forthwith.

39. A copy of this order be sent to the jail authorities for following this order and doing the needful.

40. We are thankful to Rajrshi Gupta, learned counsel for the appellant, Sri Nagendra Kumar Srivastava, learned A.G.A. and Mr. Mohd. Furkan Khan, Law Clerk (Trainee), for ably assisting the Court.

Order Date :- 23.11.2022

Fhd

(Nalin Kumar Srivastava,J.) (Dr. Kaushal Jayendra Thaker, J.)