To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
Allahabad High Court
Satyawan vs State Of U.P. on 1 July, 2022
Bench: Suresh Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 29.4.2022 Delivered on 1.7.2022 Court No.11 Case :- CRIMINAL APPEAL No. - 1871 of 2019 Appellant :- Satyawan Respondent :- State of U.P. Counsel for Appellant :- Arvind Kumar,D.K. Singh Chauhan Counsel for Respondent :- Govt. Advocate Hon'ble Suresh Kumar Gupta,J.
1. This criminal appeal has been filed under Section 374 (2) Cr.P.C. against the judgment and order dated 31.8.2019 in S.T. No. 502 of 2015 passed by Additional Sessions Judge, Court No. 4/Special Judge E.C. Act, Sitapur convicting and sentencing the appellant to undergo 10 years rigorous imprisonment under Sections 304-B I.P.C and 498-A I.P.C. and two years rigorous imprisonment for offence under Section 4 D.P. Act. The appellant was sentneced with fine of Rs. 10,000/- and in default of payment of fine three months additional rigorous imprisonment and all the sentences shall run concurrently.
2. Brief facts of the case are that the complainant @ Sonelal lodged the written report with allegation that her daughter- Sharmila aged about 25 years was married with appellant- Satyawan four years back of the incident as per Hindu rites and rituals. During marriage he has given sufficient dowry according to his financial capacity but the appellant's family was not satisfied with the dowry. After the marriage on account of additional demand of dowry, Rakesh Kumar (Pinku), Narendra Kumar, Satyawan, Ajai Kumar, Jitendra Kumar, Manu, Suresh Chandra and Reshmavati used to harassment and torture to her daughter. The complainant tried to pacify this matter but they continuously harassed her daughter. On 8.6.2015 at about 1:00 p.m. aforesaid persons inflicted injuries to her daughter for demand of dowry and she was done to death by pressing her mouth.
3. On the basis of written report the F.I.R. was lodged against the appellant-Satyawan and other co-accused persons- Rakesh Kumar (Pinku), Narendra Kumar, Ajai Kumar, Jitendra Kumar, Manu, Suresh Chandra and Reshmavati as case crime no. 128 of 2015 under Sections 498-A, 304- B I.P.C. and 3/4 of the D.P. Act. Before the investigation of this case, inquest of the dead body was done by Rajesh Chandra, Tehsildar, Mahmudabad, Sitapur on 8.6.2015 in presence of inquest witnesses. Inquest report was marked as Exbt. Ka-6. As per opinion of the punches witnesses cause of death could not be ascertained, therefore, the dead body was sent to District Hospital for autopsy.
4. P.W.5- Dr. Arun Kumar as well as Dr. Rakesh Kumar has conducted postmortem of the dead body of the deceased on 9.6.2015 in District Hospital, Sitapur and prepared postmortem report Exbt. Ka-4 in which the doctor found the age of the deceased about 25 years and height of the deceased about 161 cm. and body was average. On external examination eye was found congested. Both the nostrils were full with blood. The following ante mortem injuries were found on the body of the deceased:-
(i) Abraded contusion 5cm. x 3cm. present on left side of face. (ii) Linear abrasion just abut zygomatic. area (iii) Contusion 3cm. x 2 cm. on right side of face. (iv) Contusion 4 cm. x 3 cm. on back of head right side of right ear. (v) Abrasion 1.5 cm. x 1.5 cm. on right ankle joint. During internal examination all the organs was congested and in the stomach 100ml food was present, which was preserved. Deceased was not pregnant. Deceased was died about one day ago. Cause of death was asphyxia and possibility of smothering was shown. For actual cause of death viscera was preserved. The postmortem report was marked as Exbt. Ka-4.
5. The Investigating Officer- Vijai Bahadur Singh (P.W.-3) after collecting necessary papers conducted the investigation and prepared the site plan as Exbt. Ka-2 on behest of the complainant/informant. He also recorded the statement of the complainant and other witnesses. After completing all the formalities the Investigating Officer submitted the charge sheet on 2.7.2015 against Satyawan, Rakesh Kumar (Pinku), Narendra Kumar, Suresh Chandra and Reshmavati under Sections 498-A, 304-B I.P.C. and 3/4 of the Dowry Prohibition Act and exonerated Ajai, Jitendra and Manu (son of Suresh Chandra) and case was committed to the court of Sessions Judge, where it was registered as S.T. No. 502 of 2015. The case was transferred for before the Additional Sessions Judge, Court No. 4/ Special Judge (E.C.) Act, Sitapur. Charge against the appellant and other co-accused was framed on 7.11.2015 under Sections 498-A, 304-B I.P.C. and 4 of the Dowry Prohibition Act. The charges have been read over and explain to the appellant and all the accused persons claimed to be tried.
6. To substantiate the charges levelled against the appellant, the prosecution has examined seven witnesses P.W.-1- complainant, Ram Chandra @ Sone Lal, who proved the written report Exbt- Ka-1. P.W.-2- Smt. Pushpa Devi (mother of the deceased), P.W.-3- C.O., Vijai Bahadur Singh, who proved the site plant as Exbt- Ka-2 and charge sheet as Exbt-Ka-3. P.W.-4, Vipin who is another witnesses of fact, P.W.-5 Dr. Arun Kumar, who conducted the postmortem report and proved the postmortem report as Exbt-Ka-4, P.W.-5- Rajesh Chandra, Tehsildar, Mahmudabad, who conducted the inquest of the dead body and proved the inquest report as Exbt-Ka-5, specimen seal as as Exbt-Ka-6, Photo of dead body as Exbt-Ka-7, Chalan of dead body as Exbt-Ka-8, letter of Inspector as Exbt-Ka-9, letter to C.M.O. as Exbt-Ka-10, P.W.-7- Constable, Surjeet Sonkar, who proved the general diary dated 8.6.2015, Chik F.I.R. as Exbt-Ka-11 and General Diary as Exbt-Ka-12.
7. After conclusion of the evidence and recording of the statements, the statement of the appellant was recorded under Section 313 Cr.P.C. in which the accused/appellant denied all the charges and stated that he has been falsely been implicated by the witnesses. He also stated that he is innocent, as the deceased- Sharmila consumed poisonous substance and she committed suicide on account of depression due to her continuous illness.
8. In defence on behalf of the appellant following witnesses were examined: D.W-1, Suresh Kumar, who is Senior Treatment Supervisor, PHC, Mahmudabad and he proved the treatment paper of deceased- Sharmila regarding treatment of tuberculosis as Exbt Kha-1, D.W.-2-Smt. Shila Devi, who is wife of Rakesh Kumar, D.W.-3-Dr. Mohd Anwar, who stated before the court that deceased was patient of tuberculosis and he treated her and he proved the paper of treatment of tuberculosis of Sharmila as Exbt Kha-2.
9. After appreciation of evidence learned trial court vide order dated 30.8.2019 acquitted the co-accused persons, namely, Narendra Kumar, Suresh Chandra, Rakesh Kumar and Reshma Devi under Section 498-A, 304-B I.P.C. and under Section 4 of the Dowry Prohibition Act on the benefit of doubt and convicted the appellant as aforesaid.
10. Being aggrieved and dissatisfied with the order dated 30.8.2019 and 31.8.2019 this criminal appeal has been preferred under Section 374 (2) Cr.P.C.
11. I have heard Sri Arvind Kumar and Sri D.K. Singh Chauhan, learned counsel for the appellant and Sri Vijay Prakash Dwivedi, learned A.G.A. and perused the material available on record.
12. Learned counsel for the appellant submitted that the trial court has convicted the appellant on the basis of conjectures and surmises. The trial court failed to appreciate the evidence available on record. He further submitted that there are material contradiction in the evidence of the prosecution witnesses. Learned counsel for the appellant also submitted that no independent witnesses was produced by the prosecution and he further submitted that death of the deceased was suicidal, as she consumed some poisonous substance and due to this she died. It is also submitted by the learned counsel for the appellant that before this incident she was diagnosed as patient of tuberculosis and regarding her illness treatment was going on.
13. It is further submitted by the learned counsel for the appellant that the learned trial court has totally ignored the statement of the doctor, who clearly stated that there was no symptoms of pressing mouth of deceased to cause smothering, since no pressing mark of teeth over underneath of lip neither pressing mark of nose-pin underneath of nose even he expressed uncertainly over cause of death and raised question mark over smothering which indicated in the postmortem report by himself. It is also submitted that during autopsy viscera was preserved but during investigation as well as at the time of trial report of viscera was not brought on record. Thus, the learned trial court has erred in believing the prosecution case, which is totally false. He further submitted that there is no demand of dowry and it is also proved by the prosecution. During autopsy of body no grievous injury was found on the person of the deceased and thus, the prosecution failed to establish that the death of the deceased- Sharmila was subjected to cruelty and harassment by the appellant. He further submitted that the prosecution failed to establish the charges against the appellant beyond shadow of doubt. The appellant is very poor persons and he is languishing in jail since commencement of trial and more than seven years have already passed for incarceration in jail.
14. Apart from arguing on the merits of the case, learned counsel for the appellant further contended that there is no evidence against the applicant regarding cruelty committed by the appellant. Even if the Court arrived at the conclusion that the appellant was guilty, his sentence kindly be reduced to seven years under Section 304-B I.P.C.
15. Learned A.G.A submitted that dead body of the deceased was found at her matrimonial home. It is clearly established by doctor that cause of death is asphyxia as a result of ante-mortem smothering. Since the death of the deceased was done under unnatural circumstances within four years of her marriage and soon before her death she was subjected to harassment due to demand of dowry, the appellant is an accused under Section 304-B, 498-A, I.P.C. and 3/4 of the Dowry Prohibition Act. On the material available on record, the prosecution has clearly established the charges levelled against the appellant. Thus, the prosecution is not failed to establish its beyond shadow of doubt and learned trial court rightly convicted and sentenced him. There is no ground for leniency.
16. To appreciate the argument of the party and also the evidence it is necessary to look into the statutory provision of Section 304 B, 498A IPC and 13B of the Evidence Act.
17. Their Lordship of Hon'ble Supreme Court in AIR 2013 (SC 1039) in case of Kashmir Kaur vs. State of Punjab has explained the ingredients of offence under section 304B of IPC which reads as under:-
From the above decisions the following principles can be culled out:
a) To attract the provisions of Section 304B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.
b) The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.
c) Such death occurs within seven years from the date of her marriage.
d) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.
e) Such cruelty or harassment should be for or in connection with demand of dowry.
f) It should be established that such cruelty and harassment was made soon before her death.
g) The expression (soon before) is a relative term and it would depend upon circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence.
h) It would be hazardous to indicate any fixed period and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act.
i) Therefore, the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate or life link between the effect of cruelty based on dowry demand and the concerned death. In other words, it should not be remote in point of time and thereby make it a stale one.
j) However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.
k) Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian Law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B.
l) Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied.
m) The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence.
18. In this matter, P.W.-1 was examined, who is complainant of this case in which he clearly stated that the marriage of the deceased was solemnized in the year, 2010. After marriage in-laws was not satisfied with the dowry and they demand additional demand of Rs. 50,000/- and colour T.V. In this regard they continuously harassed the deceased. The deceased was done to death by in-laws of the decease by pressing her mouth. It is also submitted that when the deceased came to his house, she told her father that the appellant and her family member are harassing her for demand of additional dowry. The complainant has stated that he has lodged the F.I.R. against the appellant and his family members. In cross examination he clearly stated that after due deliberation and consultation of his relative he lodged the F.I.R. Thus, the P.W.-1 supported entire version of the prosecution. P.W.-1 proved the written report as Exbt Ka-1.
19. P.W.-2, another witnesses of fact, mother of the deceased. She also supported the version of the prosecution and the statement of the P.W.-1. She also stated that marriage of the deceased and the appellant was solemnized in the year, 2010. Thus, this fact has been clearly established that within seven years of marriage the victim was done to death.
20. P.W. -4, Vipin is another witnesses of fact and brother of the deceased clearly stated that the marriage of her sister- Sharmila was solemnized approximate within 7 years from the date of deposition in the Court. He also stated that on the wedlock of the deceased and appellant a daughter, namely, Nihanshi was born. P.W.-4 in his statement has stated that the appellant never demanded any dowry. He further submitted that information regarding death of the Sharmila was received by the family members of the appellant. He clearly stated that he was also present at the time of inquest and further submitted that his statement was not recorded by the Investigating Officer. Thus, the P.W.-4 did not support the version of prosecution and has been declared hostile.
21. Submission of the learned counsel for the appellant is that on perusal of the statement of the P.W.-4 it transpires that soon before her death there was no demand of additional dowry by the in-laws of the deceased. Thus, the whole prosecution story is doubtful. However, on perusal of the statement of the father/complainant and mother it appears that they have supported the prosecution version. Thus, the evidence of P.W.-1 and P.W.-2 cannot be thrown out in toto. On perusal of the postmortem report of the deceased-Sharmila it appears she died due to ante-mortem smothering. Injuries were also seen on the dead body of the deceased. Thus, the prosecution established that death of deceased occurred within seven years of the marriage, as the marriage was solemnized in the year, 2010 in the month of July. Thus, deceased died under unnatural circumstances within five years of the marriage.
22. Section 113 B of the Act reads as follows:
[113B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in 304 B of the Indian Penal Code, (45 of 1860).]
23. As per definition of dowry death under Section 304 B IPC and the wording in the presumptive Section 113 B of the Act, if it is proved that death of woman is caused by any burn 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 (i) She was subjected to cruelty or harassment by her husband or his relatives, or (ii) Such cruelty or harassment was for, or in connection with, demand of dowry, or (iii) Such cruelty or harassment was soon before her death; then it becomes obligatory on the court to raise a presumption that accused caused dowry death.
24. In [2016 (4) SCC Page 604], in the case of Gajanan Dashrath Kharate v. State of Maharashtra, their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no.13, their Lordships have held as under:-
"13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4- 2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime."
25. Now, it has to be seen that just before her death, deceased was subjected to cruelty or harassment by her husband and any relative of husband in connection with demand of dowry. This element and burden of prove in case of dowry deaths have been dealt with in detail by Hon'ble The Apex Court in Sher Singh @ Pratapa v. State of Haryana 2015 (89) ACC 288 (SC). The Apex Court held as under:
12. In our opinion, it is beyond cavil that where the same word is used in a section and/or in sundry segments of a statute, it should be attributed the same meaning, unless there are compelling reasons to do otherwise. The obverse is where different words are employed in close proximity, or in the same section, or in the same enactment, the assumption must be that the legislature intended them to depict disparate situations, and delineate dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not have proposed to ordain that the prosecution should "prove" the existence of a vital sequence of facts, despite having employed the word "shown" in Section 304 B. The question is whether these two words can be construed as synonymous. It seems to us that if the prosecution is required to prove, which always means beyond reasonable doubt, that a dowry death has been committed, there is a risk that the purpose postulated in the provision may be reduced to a cipher. This method of statutory interpretation has consistently been disapproved and deprecated except in exceptional instances where the syntax permits reading down or reading up of some words of the subject provisions.
13. In Section 113A of the Evidence Act Parliament has, in the case of a wife's suicide, "presumed" the guilt of the husband and the members of his family. Significantly, in section 113 B which pointedly refers to dowry deaths, Parliament has again employed the word "presume". However, in substantially similar circumstances, in the event of a wife's unnatural death, Parliament has in Section 304 B "deemed" the guilt of the husband and the members of his family. The Concise Oxford Dictionary defines the word "presume" as: supposed to be true, take for granted; whereas "deem" as: regard, consider; and whereas "show" as: point out and prove. The Black's Law Dictionary (5th Edition) defines the word "show" as- to make apparent or clear by the evidence, to prove; "deemed" as- to hold, consider, adjudge, believe, condemn, determine, construed as if true; "presume" as- to believe or accept on probable evidence; and "Presumption", in Black's, "is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted." The Concise Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct definition of burden of proof which is worthy of reproduction:
"Burden of Proof: The duty of a party to litigation to prove a fact or facts in issue. Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution or the plaintiff). A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or non-existence of a fact in issue.
The normal rule is that a defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. If it cannot satisfy this burden, the defence may submit or the judge may direct that there is no case to answer, and the judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (see proof beyond reasonable doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the defendant is entitled to be acquitted.
There are some exceptions to the normal rule that the burden of proof is upon the prosecution. The main exceptions are as follows. (1) When the defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the evidential burden is upon him to prove his defence. This may occur, the example, in a prosecution for murder in which the defendant raises a defence of self-defence. (2) When the defendant pleads automatism, the evidential burden is upon him. (3) When the defendant pleads insanity, both the evidential and persuasive burden rest upon him. In this case, however, it is sufficient if he proves his case on a balance of probabilities (i.e. he must persuade the jury that it is more likely that he is telling the truth than not). (4) In some cases statute expressly places a persuasive burden on the defendant; for example, a person who carries an offensive weapon in public is guilty of an offence unless he proves that he had lawful authority or a reasonable excuse for carrying it".
14. As is already noted above, Section 113 B of the Evidence Act and Section 304B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word 'deemed' in Section 304B to distinguish this provision from the others. In actuality, however, it is well nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word 'shown' is used as synonymous to 'prove' and the word 'presume' as freely interchangeable with the word 'deemed'. In the realm of civil and fiscal law, it is not difficult to import the ordinary meaning of the word 'deem' to denote a set of circumstances which call to be construed contrary to what they actually are. In criminal legislation, however, it is unpalatable to adopt this approach by rote. We have the high authority of the Constitution Bench of this Court both in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC 333 and State of Tamil Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word 'deemed' so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word 'shown' in Section 304B of the IPC as to, in fact, connote 'prove'. In other words, it is for the prosecution to prove that a 'dowry death' has occurred, namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry. We are aware that the word 'soon' finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 304B of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. It seems to us that what Parliament intended by using the word 'deemed' was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt. This interpretation provides the accused a chance of proving their innocence. This is also the postulation of Section 101 of the Evidence Act. The purpose of Section 113B of the Evidence Act and Section 304B of the IPC, in our opinion, is to counter what is commonly encountered - the lack or the absence of evidence in the case of suicide or death of a woman within seven years of marriage. If the word "shown" has to be given its ordinary meaning then it would only require the prosecution to merely present its evidence in Court, not necessarily through oral deposition, and thereupon make the accused lead detailed evidence to be followed by that of the prosecution. This procedure is unknown to Common Law systems, and beyond the contemplation of the Cr.P.C.
26. It is well settled principle that once prosecution proved that death was occurred within 7 years of marriage and the deceased/victim was subjected to cruelty and harassment by her husband and relative of her husband soon before her death in connection with the demand of dowry, then heavy burden of proof lies upon accused to adduce evidence dislodging his guilt, beyond reasonable doubt. In the present case, the accused/appellant-Satywan failed to prove his case that why Sharmila herself committed suicide by consuming poison, as report of viscera was received by the prosecution during trial.
27. On perusal of the postmortem report and the report of the doctor it is found that deceases was beaten just before her death. This fact has been admitted that the deceased died inside the house of the appellant and she was died due ante-mortem smothering. Thus, the prosecution proved the charges against the appellant under Section 304-B I.P.C.
28. Last argument of learned counsel for the appellant is that the appellant is languishing jail since June, 2015. Appellant is very poor person and daily wager. It is also submitted that the deceased was died due to ailment of tuberculosis and therefore, he prayed for reduction of sentence.
29. It is evident that the appellant is presently languishing in jail for more than 7 years, then question arrived what will be the appropriate sentence in this appeal.
30. The Indian Penal Code, like other major penal statues, prescribes punishment for various offences created under it. It provides for four kinds of punishments;
(i) death; (ii) imprisonment for life; (iii) imprisonment for various terms which may be either simple or rigorous, and(iv) fine. A further peep into the legislative paradigm of the code discloses that certain offences are made punishable with a minimum sentence with a cap qua the maximum, with or without fines, For some offences, it prescribes an upper limits of sentence, leaving the minimum, to the discretion of the court, which may even be of one day.
31. The Code, thus, gives much leeway to, and confers wide discretion on, the judiciary to pick up an opt punishment, if the offence concerned is made punishable by different forms of alternate punishment and a choice is given to it to opt either of them, in isolation or combination, and/or to quantify ''punishment' within the range of ''minimum' and ''maximum' punishment, if any, prescribed for the offence. In the absence of any sentencing policy or standardized guiding principles in India, a court is virtually left to determine sentence which, in its opinion, meets the ends of justice. However, it is the duty of a court to use its judicial discretion to award a sentence that is ''proper' in the backdrop of circumstances of the case at hand, and ''matches' with the guilt of offender.
32. In Gurukukh Singh v. State of Haryana, reported in 2009(11) Scale 688, the Supreme Court not only emphasized that it is the duty and obligation of every court to award proper sentence but also enumerated various factors that the court is required to consider while determining the sentence. They are (i) motive or previous enmity; (ii) whether the incident had taken place on the spur of the moment; (iii) the intention/knowledge of the accused while inflicting the blow or injury; (iv) the gravity, dimension and nature of injury; (v) the age and general health condition of the accused; (vi) whether the injury was caused without premeditation in a sudden fight; (vii)the nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (viii) the criminal background and adverse history of the accused; (ix) number of other criminal cases pending against the accused; (x) incident occurred within the family members or close relations, and (xi) the conduct and behavior of the accused after the incident, whether the accused had taken the injured/ the deceased to the hospital immediately to ensure that (s)he gets proper medical treatment ? In the same breath, the apex court has made it clear that these factors are only illustrative and not exhaustive. These are some of the relevant factors which are required to be kept in view by a sentencing court. Each case, obviously, has to be seen from its special perspective. The court must ensure that the accused receives appropriate sentence and that it must be proportionate to the gravity of the offence committed by the convict. Proportion between ''crime' and ''punishment' is one of the accepted goals of criminal justice system. The principle of proportion between crime and punishment essentially requires a court to prepare a balance-sheet of mitigating and aggravating circumstances and quantify the ''punishment' based thereon. The principle of proportionality is evolved to remove (or at least to minimize) arbitrariness in the sentencing process.
33. In Jameel v. State of Uttar Pradesh, reported in 2009(13) SCALE 578, the apex court further stressed that the imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice, the court stated, demands that the courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime and conscience of the society. It also reminded the courts of the need that they, while modulating sentence, need to be stern or to be tempered with mercy whenever factual matrix of a case at hand warrants. The nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and other attending circumstances may be necessary pointers for the court in tailoring ''proper' sentence.
34. So far as the question of sentence is concerned, the same is a matter of discretion of the learned trial Judge. It is well settled law that when the discretion has been granted to the learned trial Judge, if the same is not arbitrarily, capriciously or perversely but has been properly exercised by accepted judicial norms, the appellate court ought not to interfere to the detriment of the accused person unless there are very strong reasons which are not disclosed on the face of the judgment for the lesser punishment.
35. Considering the above prepositions of law and facts and circumstances of the present case, I am of the view that the appellant is in jail since commencement of the trial and seven years have already elapsed. So, in the interest of justice it would be appropriate to reduce the sentence from 10 years to 8 years with all remission under Section 304-B and 498-A I.P.C. and Section 4 of the D.P. Act.
36. Fine maintained.
37. The Jail Authority will calculate the period of his incarceration and decide the same in accordance with jail manual.
38. Thus the appeal is dismissed on the point of conviction but partly allowed on the point of sentence.
39. Lower court record be sent back. A copy of this order be also sent to the court below as well as District Superintendent of Jail, Sitapur for necessary compliance.
Order Date :- 1.7. 2022 Anuj Singh