Aditya Tyagi vs State of U.P.

Raghvendra Kumar, J.—Heard learned counsel for the appellant, learned A.G.A. for the state of U.P. and perused the record.

This Criminal appeal is directed against the judgment and order dated 27.8.2008 passed by the Addl. Sessions Judge/F.T.C. No. 1, Gautam Budh Nagar in S.T. No. 229 of 1999, under Sections 498A , 304B IPC and 3 /4 Dowry Prohibition Act, P.S. Phase-II, District- Gautam Budh Nagar arising out of Case Crime No. 108 of 1998 whereby the accused-appellant Aditya Tyagi has been convicted for the offence punishable under Section 304-B IPC and sentenced to imprisonment for life and further convicted for the offence under Section 498-A IPC and sentenced to two years'' R.I. along with fine of Rs. 10,000/- with default stipulation of three months additional sentence and further convicted for the offence under Section 3 of Dowry Prohibition Act and sentenced to R.I. for five years imprisonment along with fine of Rs. 5000/- with default stipulation six months additional imprisonment and further convicted for the offence under Section 4 of Dowry Prohibition Act and sentenced for two'' years imprisonment along with fine of Rs. 2000/- with default stipulation and two months additional imprisonment. All the sentences were ordered to run concurrently.

The FIR of this case has been lodged by Krishna Tyagi, brother of the deceased- Rekha Tyagi daughter of Har Prakash Tyagi who was married with Aditya Tyagi @ Bobby s/o Ram Das Tyagi, r/o Phase-II, Noida, Gautam Budh Nagar. The marriage was solemnized in the month of February, 1998. According to the FIR, approximately rupees eight lacs were spent in the marriage of deceased- Rekha Tyagi. Even after spending such huge amount in the marriage, the accused-appellant Aditya Tyagi and his family members were not satisfied and were pressing for the additional demand of one Ceilo Car and Rs. 2 lacs cash. After marriage with respect to the above demand, the sister of the informant-complainant was subjected to physical harassment and cruelty. About a month prior to the incident when the deceased was harassed, then she informed her family members so she was brought back to her native home- Makanpur. On 5.10.1998, Devendra Tyagi, Brijendra Tyagi, Aditya Tyagi @ Bobby, Bala Tyagi and Nirmesh Tyagi visited the native place of informant and assured for good behaviour with the deceased Rekha Tyagi. On their assurance, Rekha Tyagi (deceased) was sent with them. In the morning of 8.10.1998 at about 9 a.m., a message was received from the matrimonial home of the deceased on phone whereby it was informed that Rekha has been killed and you come and take her with you. The family members reached to the house of the deceased- Rekha Tyagi where her dead body was found in the room. Complainant expressed that Aditya Tyagi @ Boby, Smt. Bala tyagi, Devendra Tyagi, Vijendra Tyagi, Nirmesh Tyagi, Anita and Kusum Tyagi had, in a most planned manner, committed murder of his sister. The FIR of the case was lodged at the police station on 8.10.1998 at 12 p.m. The distance of the police station from the place of occurrence, as per chik FIR, is 7 kms. After registration of the case, investigation proceeded and after complying with the procedure contemplated in law, the inquest of the deceased was prepared. The articles of the deceased were taken in police custody and recovery memo was prepared. The dead body of Smt. Rekha Tyagi was sent along with the connected documents for autopsy. The postmortem was conducted on 9.10.1998 at 2: 30 p.m.. and the following ante-mortem injuries were noted by the doctor in the autopsy report:--

"(i) Contusion 4 c.m. X 1.5 c.m. on back of left forearm.

(ii) Multiple contusions on left thigh in the front of 2 c.m. x 2 c.m. To 12 c.m. X 1 c.m.

(iii) Multiple contusions on left leg on outer-side.

(iv) Abrasion in the area of 5 c.m. X 1 c.m. on back of right thigh.

The cause of death could not be ascertained by Dr. A.K. Agarwal, hence viscera was preserved. The investigation culminated into filing of the charge-sheet. In the viscera report aluminium phosphide poison was found."

After complying with the necessary procedure, the learned court below framed charge against the accused who denied the charge and claimed trial on merits claiming himself to be innocent.

To substantiated the charge against the accused-appellant, the prosecution has examined Krishna Tyagi (P.W.-1), Munna Tyagi (P.W.-2), Jai Prakash Tyagi (P.W.-3), Vimal Kumar Sharma (P.W.-4), O.S.D. Greator Noida who has proved the execution of the inquest and the documentation made for the purpose of post-mortem examination. Dr. A.K. Agarwal (P.W.-5), Dr. J.R. Jiyani (P.W.-6) have proved the post-mortem examination report, S.I. Surendra Singh, who has proved by secondary evidence the execution of the chick FIR by head moharrir Rajendra Singh and also proved the execution of the documents. He is a formal witness. Shailendra Pratap Singh (P.W.-8) has conducted the investigation. He has proved the execution of charge-sheet. Constable Par Mal Singh (P.W.-9) has carried the dead body for autopsy along with other documents.

After the conclusion of prosecution evidence, the accused was extended opportunity for rendering explanation for the incriminating circumstances which appeared during the course of trial through his examination under Section 313 Cr.P.C. He has denied the allegations levelled against him and refused to make any additional statement.

Rajendra Singh (D.W.-1) has proved the booking of one Tata -sumo standard vehicle after deposit of Rs. 50,000/- and has proved the photo-copy of booking receipt of Ext. Kha-1. Omveer Singh (D.W-2) has filed the copy of the ledger on Account No. 12795.

After conclusion of the trial, the learned trial court convicted the accused-appellant Aditya Tyagi. Hence this appeal.

Learned counsel for the accused-appellant has submitted that he does not want to assail the finding of conviction recorded by the learned court below. He simply prayed that lenient view may be taken against the accused-appellant and he be released on the basis of period already undergone. The accused-appellant is in jail and he has already undergone for more than eight years of incarceration.

Learned AGA has submitted that the death has taken place within seven years of marriage in unnatural circumstances. There has been a demand of dowry and for the non fulfilment of additional demand of dowry the deceased Rekha Tyagi has been murdered.

Being the Court of first appeal, the finding of conviction recorded by the learned court below are being scrutinized. The marriage of the Aditya Tyagi was solemnized on 6.2.1998 with Rekha Tyagi daughter of Har Prakash Tyagi. Rekha Tyagi died on 8.10.1998. Both these facts have been admitted by the accused in his statement under Section 313 Cr.P.C. For the offence punishable under Section 304-B IPC, the evidence is to be appreciated in the light, whether the death has occurred within seven years of the marriage, whether the death took place otherwise than in normal condition, the deceased was subjected to cruelty or harassment by her husband or relative in connection with or any demand of dowry soon-before her death.

P.W.-1 and P.W.-2 are the brother of the deceased Smt. Rekha Tyagi. P.W.-3 is Jai Prakash Tyagi who is the witness of the inquest. P.W.-1 and P.W.-2 who are the witnesses of fact, have corroborated the factum of demand of dowry after solemnization of marriage and they have further stated that their sister was subjected to cruelty or harassment for the demand of additional dowry. P.W-1 and P.W.-2 have fully corroborated the FIR story. The witnesses have been put to lengthy cross examination but nothing could be elicited from them by way of cross examination which may be termed as material contradiction and which may dispute the authenticity and veracity of the testimony of P.W.-1 and P.W.-2.

From the perusal of the post-mortem report, it is evident that ante-mortem injuries have been mentioned by the doctor in the post-mortem examination report. There are four ante-mortem injuries which finds mention in the autopsy report. In this case, the cause of death could not be ascertained at the time of autopsy. The viscera was preserved which was sent to Forensic Science Laboratory for chemical examination. The report of Forensic Science Laboratory reveals that Aluminium Phosphide poison was detected during the course of chemical examination. Appellant had also taken a defence that since he was impotent so the deceased committed suicide. Learned trial Court has rightly rejected this plea taken by appellant.

Having gone through the finding of conviction recorded by the learned court below, we are of the considered opinion that the learned court below has not erred in appreciating the evidence available on record. The findings of conviction are well substantiated from the evidence available on record and the court below has rightly drawn the conclusion of guilt against the accused-appellant. The finding of conviction is correct and does not require any interference.

It has been submitted on behalf of the accused-appellant that it is not case of direct evidence. In the case of dowry death it is a legal or statutory presumption which comes into play and operates against the accused-appellant. The accused is a young man. He owns the responsibility of maintaining his parents who are poor persons. The financial condition of the accused is not good. Learned counsel for the appellant has submitted that the accused has not challenged his conviction on merit, but simply prays for the mercy of the Court and pressed for release of the accused on the basis of minimum sentence provided by the court below.

Learned AGA has opposed and submitted that it is a case in which the death has been caused because of Aluminium Phosphide (a kind of poison). As such the accused-appellant is not entitled to any leniency. The accused is presently incarcerating in jail.

It has always be the philosophy of sentencing that in the event conviction sentence imposed should neither be harsh nor it should be lenient one. The sentencing philosophy has a blend towards the element of deterrence and reformation. The sentencing philosophy has never ignored the aspect of reformation. The basic concept of imposing the sentence upon the accused is that punishment should be appropriate to the gravity of the offence which meets the ends of justice. The mitigating circumstances have already been placed by the learned counsel for the defence. The legislature has provided minimum sentence of seven years for the offence under Section 304-B IPC wherever the minimum sentence is provided it indicates the intentio legis that the ends of justice would be satisfied if the minimum penalty is inflicted. The purpose for providing higher quantum of punishment is to meet the ends of justice in cases of extreme brutality or keeping in view the other attending circumstance. While imposing the sentence the Court should consider the motive, nature of weapon used, manner in which it has been committed (whether it was planned one) the social back ground of the accused, the educational back ground of the accused, the financial position of the accused, the period accused has already spent in jail.

In the case of Hem Chand Vs. State of Haryana, , Hon''ble Apex was pleased to make the following observation :

"As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."

In view of the facts and circumstances of the case, we are of the considered opinion that the sentence awarded by the learned court below for the offence punishable under Section 304-B IPC requires reconsideration.

In our considered view sentence of 10 years imprisonment would meet the ends of justice. In view of the above discussion, the appeal deserves to be partly allowed on the point of sentence only.

The appeal is partly allowed. The conviction of the appellant Aditya Tyagi under Section 304-B , 498-A IPC and 3 /4 D.P. Act is hereby confirmed and the sentence of life imprisonment awarded for the offence under Section 304-B IPC is modified and reduced to R.I. for 10 years. Conviction for the other offence and sentence imposed by trial court for these offences is also hereby confirmed. The appellant shall be entitled to the benefit of Section 428 IPC.

Let a copy of the judgement and order along with lower court record be transmitted forthwith to the learned Court below for compliance.