Vijay Kumar Singh and Others vs State of U.P. and Others

Surendra Vikram Singh Rathore, J.—1. Heard Mr. Janardan Singh, learned counsel for the appellants, Ms. Ruhi Siddiqui, learned A.G.A. for the State. None appeared on behalf of complainant in Criminal Appeal No. 1280 of 2012, which has been filed for enhancement of sentence of appellant Vijay Kumar Singh.

Criminal Appeal No. 1229 of 2012 has been preferred by appellant Vijay Kumar Singh, Criminal Appeal No. 1259 of 2012 has been preferred by appellant Smt. Nirmala Devi, Criminal Appeal Defective No. 187 of 2013 has been preferred by appellant Rana Shivendra Pratap Singh and Criminal Appeal No. 1280 of 2012 has been preferred by complainant Chandra Bhan Singh for enhancement of sentence against appellant Vijay Kumar Singh.

Since all the aforesaid criminal appeals arise out of same judgment, therefore, the same are being disposed of by a common judgment.

Under challenge in this appeal is the judgment and order dated 13.8.2012 passed by learned Additional District & Sessions Judge, Court No. 4, Gonda in Sessions Trial No. 40 of 2000, arising out of Case Crime No. 114 of 1999, Police Station Chhapiya, District Gonda whereby all the three appellants were convicted and sentenced as under:

Appellants Rana Shivendra Pratap Singh, Smt. Nirmala Devi and Vijay Kumar Singh were convicted for the offence under Section 304-B I.P.C. and 498-A I.P.C. However, they were acquitted of the alternative charge under Section 302/34 I.P.C.

Appellants Rana Shivendra Pratap Singh (husband of the deceased) and Smt. Nirmala Devi (mother in law of the deceased) were sentenced for the offence under Section 304-B I.P.C. with imprisonment for life. However, appellant Vijay Kumar Singh was sentenced with ten years rigorous imprisonment. For the offence under Section 498-A I.P.C., all the aforesaid appellants were sentenced with rigorous imprisonment for a period of two years and also with fine of Rs. 10,000/- with default stipulation of three months additional imprisonment. Both the sentences were directed to run concurrently.

In brief the case of the prosecution was that complainant Chandra Bhan Singh, who happens to be the father of deceased had lodged an F.I.R. On 2.6.1999 at 21:15 hours at Police Station Chhapiya, District Gonda with the allegation that marriage of his daughter was solemnized with appellant Rana Shivendra Pratap Singh in May, 1994. Sufficient dowry was given in the marriage. But after the marriage, mother in law Smt. Nirmala Devi, husband Rana Shivendra Pratap Singh, appellant Vijay Kumar Singh and her two sisters in law used to treat his daughter with cruelty in connection with demand of dowry and also used to extend threats of dire consequences. Information of the same was given to S.P. and because of the intervention of the police, the matter was compromised at that stage. Thereafter appellant Rana Shivendra Pratap Singh had taken the deceased with him but thereafter again there was demand of motorcycle and a buffalo. The complainant about four months prior to this incident had satisfied the said demand in Gauna and made Vida of his daughter. But the accused persons started pressurizing the deceased to ask her father to transfer 50 Bighas land in their favour in dowry. In the intervening night of 1/2-6-1999 she was set ablaze. Getting information of this incident, the complainant along with other persons immediately went to the place of occurrence where he was told that as the land was not transferred, so she has been set ablaze. On her cry, several persons of the village assembled there. These persons took her to the Hospital Maskanwa, wherefrom she was taken to District Hospital, where she succumbed to the injuries. On the basis of this information, the investigation proceeded and inquest proceedings were conducted. The postmortem on the body of the deceased was conducted on 3.6.1999 at 5:45 p.m. 2nd to 3rd degree burn injuries all over face, neck, chest, buttock were found. The age of the deceased was about 26 years. The deceased died at District Hospital Gonda on 2.6.1999 at 10:45 p.m. She died due to shock as a result of ante-mortem injuries.

After concluding the investigation, charge-sheet was filed against the present appellants. However, no charge sheet was filed against two sisters in law of the deceased. It transpires from the perusal of the record that two sisters in law of the deceased were summoned for trial in exercise of powers under Section 319 Cr.P.C. But as they were juvenile, therefore their case was separated and was sent for trial to concerned Juvenile Justice Board.

In order to prove its case, the prosecution has examined PW-1 complainant Chandra Bhan Singh, father of the deceased, PW-2 Smt. Kiran Singh sister of the deceased, PW-3 Dr. A.K. Saxena, who has conducted the postmortem on the body of the deceased, PW-4 Indra Prakash Singh, Naib Tehsildar, Sadar, Faizabad, who has conducted the inquest proceedings, PW-5 Circle Officer Ashok Kumar Tiwari, Investigating Officer of the case, PW-6 Head Constable Bhawani Shankar Singh, who has prepared chik report and G.D. of this case, PW-7 Virendra Bahadur Singh, mediator of the marriage of the deceased.

No evidence in defence was adduced on behalf of the appellants.

After appreciating the evidence on record, the trial court has convicted the appellants as above, hence the instant criminal appeal.

Submission of learned counsel for the appellant was that he does not intend to challenge the conviction of the appellants Rana Shivendra Pratap Singh and Smt. Nirmala, who happened to be the husband and mother in law of the deceased but conviction of appellant Vijay Kumar Singh has been challenged on the ground that he cannot be said to be the member of the same family living in the same house. Appellant Vijay Kumar Singh was only cousin of the father in law of the deceased, so he cannot be said to be the member of the same family living in the same house. It has also been argued that Criminal Appeal No. 1280 of 2012 preferred by the complainant for enhancement of sentence against appellant Vijay Kumar Singh has no force and the same has been filed only to harass the appellant. It is submitted that the trial court has inflicted maximum punishment of imprisonment for life while the minimum sentence provided for the offence under Section 304-B I.PC. is seven years. So in cases of extreme brutality, maximum punishment of imprisonment for life ought to have been inflicted, while the present case does not fall within the said category.

Learned A.G.A. has submitted that the judgment of the trial court is well reasoned and it needs no interference. The trial court has rightly appreciated the prosecution evidence and has convicted the appellants. He has further submitted that the appropriate sentence is within the domain of this Court.

Keeping in view the rival submissions made by learned counsels for the parties, two points deserve to be considered, first whether conviction of appellants Rana Shivendra Pratap Singh and Smt. Nirmala Devi was in accordance with law and whether the sentence inflicted by the trial court was excessive, if yes, what would be the appropriate sentence. With regard to appellant Vijay Kumar Singh, the point to be considered is whether his conviction is in accordance with law. Whether criminal appeal preferred by complainant for enhancement of his sentence has any force.

Perusal of the F.I.R. and the evidence available on record shows that the complainant has made an allegation that the deceased herself made an oral dying declaration to him in Hospital Maskanwa. Perusal of the impugned judgment shows that the trial court has nowhere considered this oral dying declaration and has not expressed any opinion whether it is reliable or not.

PW-1 complainant Chandra Bhan Singh in his evidence has stated that hospital persons had asked the victim that his daughter had told them that her husband, mother in law and both the sisters in laws have set her ablaze. He has also stated in his cross-examination that none of the villagers of the matrimonial home of the deceased had told him that he saw the deceased in burning condition. According to the evidence of PW-1 complainant Chandra Bhan Singh and PW-7 Virendra Bahadur Singh, information of this incident was given by PW-7 to the complainant at about 5:00 a.m. Thereafter he came back to hospital and from the said hospital, she was referred to District Hospital, Gonda at 8:20 a.m. The complainant has also stated that the victim was crying and was telling as to how she has been set ablaze. But it is really surprising that not even a single employee of Maskanwa Hospital, nor even the treating doctor of Maskanwa hospital was examined in support of this fact. Apart from it, the prosecution has withheld the bed head ticket of the victim of Maskanwa Hospital where she was first admitted. Who admitted her in the hospital, what was the information given by her at the time of her admission, whether any query was made to the victim at the time of her admission in the hospital, must have been mentioned in the hospital record. But the said record has been withheld by the prosecution, which gives rise to an adverse inference against the prosecution case. Therefore, we are of the considered view that the oral dying declaration of the deceased as alleged by the complainant in his F.I.R. and also in his statement and also in the statement of the witnesses, does not inspire confidence and is not worth relying.

It is an admitted fact that the deceased was the wife of appellant Rana Shivendra Pratap Singh. There is reliable evidence of the witnesses of fact that she was treated with cruelty in connection with the demand of dowry. The presence of some contusions on her body, in the postmortem report, also establishes the fact that soon before her death, she was subjected to cruelty in connection with demand of dowry. The deceased died an unnatural death, which stands proved by the medical evidence. So all the necessary ingredients to constitute the offence under Section 304-B I.P.C. stand proved so far as it relates to appellants Rana Shivendra Pratap Singh and Smt. Nirmala Devi. Therefore, the trial court has not committed any illegality whether in fact or in law in convicting these two appellants.

Now the case of appellant Vijay Kumar Singh is to be considered. Before proceeding further in the matter, we would like to mention the family pedigree of appellant Vijay Kumar Singh and the other appellants. Lashkari and Giridhar were two real brothers. Appellant Vijay Kumar Singh happens to be the son of Giridhar. Surendra Bahadur Singh and Rakesh are the son of Lashkari and Smt. Nirmala Devi is the widow of Surendra Bahadur Singh. Thus the present appellant Vijay Kumar Singh is only the first cousin of father in law of the deceased.

Admittedly it has also come in the evidence that two families were living separately. But it was alleged by the prosecution that after the death of wife of Vijay Kumar Singh and after the death of husband of Smt. Nirmala Devi, both developed intimacy and started living together. But this incriminating circumstance was not even put to appellant Vijay Kumar Singh or to any of the appellant in his statement under Section 313 Cr.P.C. that appellant was living in the same house as a member of the same family. So in absence of any question on this point that Vijay Kumar Singh was the member of the same family and was living in the same house, such evidence cannot be treated to be an incriminating circumstance against him. The family pedigree, mentioned above, shows that they belong to two different branches of the family, which were connected through their grand father. So the possibility that appellant Vijay Kumar Singh has been implicated simply to disable him to do any pairvi of the case, in our considered opinion cannot be ruled out. This conclusion stands substantiated by the statements of the complainant himself wherein, in his cross-examination, he has stated that hospital authorities had asked his daughter about the incident then she had told that her husband, mother in law and both sisters in law have set her ablaze. At that point of time, PW-1 complainant Chandra Bhan Singh has not stated that deceased told the name of appellant Vijay Kumar Singh as the person, who had set the deceased ablaze. At this juncture, we would like to quote paragraph Nos. 18 and 19 of the pronouncement of Hon''ble the Apex Court in the case of Bhola Ram Vs. State of Punjab reported in , (2013) 16 SCC 421, which reads as under:-

As observed by the Law Commission of India (LCI) in its 91st Report of 10th August, 1983 (in paragraph 1.8) the truth may not come in a dowry death case due to the sequestered nature of the offence. This is what the LCI said:

"1.8. Difficulty of detection. - Those who have studied crime and its incidence know that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family; other members of the family (if residing in the same house) are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eye witnesses, except for members of the family.

This passage also clearly brings out that in a case of a dowry death, every member of the family may not be fully and equally guilty. The degree of involvement may differ - as an associate, as a silent witness, as a conniving witness and so on.

So the case of appellant Vijay Kumar Singh becomes distinguishable and in these circumstances, he becomes entitled for benefit of doubt. Since we are of the view that appellant Vijay Kumar Singh becomes entitled for benefit of doubt, therefore, it will lead to the conclusion that Criminal Appeal No. 1280 of 2012 filed by complainant Chandra Bhan Singh has no substance and deserves to be dismissed.

Since we have held that appellants Rana Shivendra Pratap Singh and Smt. Nirmala Devi were rightly convicted for the offence under Section 304-B I.P.C., so the question of sentence comes for our consideration. The trial court has sentenced both the appellants namely, Rana Shivendra Pratap Singh and Smt. Nirmala Devi with imprisonment for life. Section 304-B I.P.C. provides minimum sentence of seven years, which may extend up to imprisonment for life. So a very vast discretion has been given to the court to impose any sentence extending from seven years rigorous imprisonment to imprisonment for life. So appropriate sentence in each case has to be considered by the court keeping in view the facts and circumstance of the case. This discretion has been given to the court in cases of dowry death because the accused are convicted on the basis of presumption under Section 113-B Indian Evidence Act.

Now we will have to consider the law on the point of sentence to be inflicted under Section 304-B I.P.C. Hon''ble the Apex Court in the case of Hem Chand v. State of Haryana reported in , (1994) 6 SCC 727, in paragraph 7 of the judgment, has held as under:-

"Now coming to the question of sentence, it can be seen that Section 304B I.P.C. lays down that:

"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."

The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304B I.P.C. would show that when a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied."

Hon''ble the Apex Court in the case of G.V. Siddaramesh v. State of Karnataka reported in , (2010) 3 SCC 152 has observed in paragraph 30 of the judgment as under:-

"On the point of sentence, learned Counsel for the appellant pointed out that the appellant is in jail for more than six years. The appellant was young at the time of incident and therefore, the sentence awarded by the trial court and confirmed by the High Court may be modified. In so far as sentencing under the section is concerned, a three Judge Bench of this Court in the case of Hemchand v. State of Haryana [, (1994) 6 SCC 727] has observed that:

"Section 304B merely raises a presumption of dowry death and lays down that the minimum sentence should be 7 years, but it may extend to imprisonment for life. Therefore, awarding the extreme punishment of imprisonment for life should be used in rare cases and not in every case."

Keeping in view the facts and circumstances of the case, this Court reduced the sentence from life imprisonment awarded by the High Court to 10 years R.I. on the above principle."

It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases

A reference on this point may also be made to the pronouncement of Hon''ble Apex Court in the case of Sunil Dutt Sharma V State reported in , (2014) 4 SCC 375 wherein Hon''ble the Apex Court has considered the point of sentence in detail and has observed in para 5 as under:-

"The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for a term of years. In the above situation, naturally, the sentencing power has been a matter of serious academic and judicial debate to discern an objective and rational basis for the exercise of the power and to evolve sound jurisprudential principles governing the exercise thereof."

The case of Sunil Dutt Sharma (Supra) was also a case of dowry death. In that case the cause of death was strangulation and Hon''ble Apex Court was of the view that a sentence of 10 years rigorous imprisonment would be appropriate.

In a very recent judgment in the case of V.K. Mishra and another v. State of Uttarakhand reported in , (2015) 9 SCC 588, Hon''ble the Apex Court has again considered the question of sentence in cases of dowry death and has observed in paragraph No. 42 as under:-

For the offence Under Section 304-B Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304-B Indian Penal Code thus prescribes statutory minimum of seven years. In Kulwant Singh and Ors. v. State of Punjab , (2013) 4 SCC 177, while dealing with dowry death Sections 304-B and 498-A Indian Penal Code in which death was caused by poisoning within seven years of marriage conviction was affirmed. In the said case, the father-in-law was about eighty years and his legs had been amputated because of severe diabetes and mother-in-law was seventy eight years of age and the Supreme Court held impermissibility of reduction of sentence on the ground of sympathy below the statutory minimum."

In the said case, Hon''ble the Apex Court has reduced the sentence of husband V.K. Mishra from imprisonment for life to imprisonment for a period of ten years.

The trial court has also awarded sentence for the offence under Section 498-A I.P.C. but the offence under Section 498-A I.P.C. is included in the offence under Section 304-B I.P.C. So there was no need to pass separate sentence under Section 498-A I.P.C. It has been so held by Hon''ble the Apex Court in the case of Smt. Shanti and another v. State of Haryana reported in , (1991) 1 SCC 371. Last lines of paragraph 5 reads as under:-

"5.........But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B."

Keeping in view the aforementioned legal position, we are of the considered view that sentence inflicted on appellants Rana Shivendra Pratap Singh and Smt. Nirmala Devi was excessive and a sentence of ten years rigorous imprisonment would meet the ends of justice. No separate sentence deserves to be inflicted for the offence under Section 498-A I.P.C.

In view of the discussion made above, Criminal Appeal Nos. 1259 of 2012 preferred by Smt. Nirmala Devi and 187 of 2013 preferred by Rana Shivendra Pratap Singh deserve to be partly allowed and are hereby partly allowed. The conviction of the appellants Rana Shivendra Pratap Singh and Smt. Nirmala Devi under Section 304-B I.P.C. are hereby confirmed. However, the sentence inflicted by the trial court is hereby reduced from imprisonment for life to a period of ten years.

The conviction of both the appellants for the offence under Section 498-A I.P.C. is also hereby confirmed. But no separate sentence is being passed for the said offence.

Both the sentences shall run concurrently.

Appellants Rana Shivendra Pratap Singh and Smt. Nirmala Devi are in jail. They shall be released from jail only after serving out of their sentence as modified by this Court, if they are not wanted in any other case.

The period of detention already undergone by the appellants in the instant case shall be set off in their substantive sentence in accordance with the provisions of Section 428 Cr.P.C.

Criminal Appeal No. 1229 of 2012 preferred by appellant Vijay Kumar Singh deserves to be allowed and is hereby allowed. He is acquitted of the charges levelled against him. He is on bail. His bail is cancelled and sureties discharged. He need not surrender. Criminal appeal No. 1280 of 2012 preferred by complainant Chandra Bhan Singh for enhancement of sentence against appellant Vijay Kumar Singh is hereby dismissed.

Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.