Sanjeev vs State Of U.P.
2022 Latest Caselaw 14540 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
Court No. - 44
 

 
Case :- CRIMINAL APPEAL No. - 2609 of 2015
 
Appellant :- Sanjeev
 
Respondent :- State of U.P.
 
Counsel for Appellant :-V.P. Singh Kashyap
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

(Per Dr. Kaushal Jayendra Thaker, J.)

1. Heard Sri V.P. Singh Kashyap, learned counsel for the appellant and Sri N.K. Srivastava, learned A.G.A. for the State.

2. Present criminal appeal challenges judgment and order dated 27.5.2015 passed by the Additional Sessions Judge, Court No.1, Budaun in Sessions Trial No.543 of 2014 (State vs. Vasudev and others) whereby the learned Additional Sessions Judge has convicted the accused-appellant, Sanjeev for commission of offence under Section 302 of Indian Penal Code, 1860 (for short 'IPC') and sentenced him to undergo imprisonment for life with fine of Rs.10,000/- and in case of default in payment of fine, further to undergo six months' simple imprisonment.

3. Brief facts as culled out from the record are that the accused-appellant was married to the deceased, the family members of accused-appellant used to demand dowry and for that several times they used to torture the deceased. On the fateful day i.e. on 30.6.2014 at about 3.00 p.m., father-in-law of the deceased phoned the informant that his daughter had committed suicide by hanging herself. When the informant, the father of the deceased, came to the residence of in-laws of the deceased, he saw that his daughter had died. According to the informant, the in-laws of her daughter had strangulated her to death. On the basis of his complaint, an F.I.R. was lodged against accused-appellant and his family members.

4. On the basis of F.I.R., the investigation started and charge-sheet was laid. The learned Magistrate summoned the accused and committed the case to the Sessions Court as the offences alleged to have been committed were triable by the Sessions Court. The learned Sessions Judge has framed charges against three persons namely Sanjeev, Vashudev and Guddi under Sections 498A, 304 B and Section 302 of I.P.C.

5. On being summoned, the accused-persons pleaded not guilty and wanted to be tried.

6. The Trial started and the prosecution examined 9 witnesses who are as follows:

Omkar

PW1

Rajnesh

PW2

Dabbu

PW3

Fauzadar

PW

Rama Devi

PW5

Walistar

PW6

Rajmani Misra

PW7

Dr. Harpal Singh

PW8

Satish Chandra

PW9

7. In support of ocular version following documents were filed and proved:

F.I.R.

Ex.Ka.8

Written Report

Ex.Ka.1

Postmortem Report

Ex.Ka.7

Panchayatnama

Ex. Ka.2

Site Plan

Ex.Ka.10

8. At the end of the trial, after recording the statements 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 accused-appellant as mentioned above.

9. It is submitted by learned counsel for the appellant conviction is based on presumption and is bad as the appellant has no intention to do away with the deceased. Learned counsel for the appellant has further submitted that all the witness have turned hostile and, therefore, presumption under Section 106 of Evidence Act could not have been raised against the present appellant herein. There was nothing to show that the accused-appellant herein was at home and he was not in the farm.

10. It is submitted that with remission the accused-appellant is in jail for a period of 10 years. It is further submitted that conviction under Section 302 IPC is not made out as no overt act as per Section 300 IPC is made out on the part of the accused-appellant. In alternative, it is submitted that at the most, the death can be homicidal death not amounting to murder and punishable under Section 304 II or Section 304 I of I.P.C.

11. Learned A.G.A. has submitted that ingredients of Section 300 of IPC are rightly held to be made out by the learned Sessions Judge who has applied the law to the facts in case. It is submitted that the decision of the learned Sessions Judge is just and proper and does not call for any interference/modification as the accused-appellant has direct role assigned to kill the deceased by way of strangulation.

12. On hearing the arguments advanced by the learned counsel for the parties, two moot questions are to be addressed by us namely whether the death was homicidal death and whether the offence would be punishable under Section 302 or 304 Part I or Part II or Section 304 B of Indian Penal Code. Before sifting the evidence, it is relevant here to discuss the law pertaining to culpable homicide amounting to murder, culpable homicide not amounting to murder and the dowry death. 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."

13. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts loose sight of the true scope and meaning of the terms used by the legislature in these sections, and allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be is 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 if 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

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death.

(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.

14. It is also pertinent here to discuss Section 304 B of IPC which 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 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.]"

15. The witnesses namely P.W.1 to P.W.4 have been won over by the defence as per the finding of fact by the learned Trial Judge and, therefore, they did not support the prosecution story. P.W.5 & 6 have supported their version given to police under Section 161 of Cr.P.C. Similarly P.W.7 who was the Tehsildar has also deposed on oath in favour of the prosecution. P.W.8 is the doctor who has performed the postmortem of dead body. P.W.9 is also an officer who has deposed on oath.

16. It is matter of fact that witnesses of fact have not supported the prosecution but it is cardinal principle of evidence that to the extent the witness supports the prosecution that part can be considered in evidence. In our case, the hostile witnesses have also confirmed that the deceased was married to the appellant. The death occurred in the house of the accused and, therefore, the rebuttal presumption will arise against the appellant herein. The medical evidence will permit us to hold that it was unnatural death.

17. There is no iota of evidence under Section 302 of IPC for which punishment is handed over to the accused. On the same set of evidence, the learned Sessions Judge has held that prosecution has not proved its case against the co-accused but he holds accused-appellant, Sanjeev guilty for causing death of his wife as he was staying alone with deceased. Just because P.W.1 and P.W.4, before they were declared hostile, have stated that the appellant and his wife were staying together, it cannot be said that he was under a duty to know how his wife died.

18. In our case, the witnesses have not supported the prosecution case. No one has seen the deceased to have strangulated his wife. No one has testified that the death occurred due to act of the appellant herein. The marriage of the deceased was taken place in the year 2013 and she died within one year of her marriage. The evidence of all the witnesses will have to be seen in chain. The offence committed within the house of the husband. Soon before her death, the deceased was subjected to cruelty. How the learned Sessions Judge has come to the conclusion that it is an offence under Section 302 of IPC is not germane. The Doctor has opined that due to hanging the hyoid bone would not get fractured.

19. The accused, therefore, could not have been convicted under Section 302 of IPC in absence of any evidence to the said effect. The learned Sessions Judge has come to the conclusion that she died because of pressurizing her neck rather due to strangulation. But, there is no evidence to the said effect and therefore raising presumption under Section 106 of Evidence Act cannot be permitted.

20. The death having occurred during one year of marriage and the F.I.R. goes to show that there was immediate dowry demand and, therefore, we invoke Section 304B of IPC and sentence to accused-appellant to 10 years rigorous imprisonment. If 10 years of incarceration is over, let the accused appellant be set free if not warranted in any other offence.

21. In view of the above, this appeal is partly allowed. The judgment and order passed by the learned Sessions Judge shall stand modified to the aforesaid extent. Record and proceedings be sent back to the Court below forthwith.

Order Date :- 20.10.2022

DKS