Allahabad High Court
Sarvan @ Shravan Kumar vs State Of U.P. on 30 May, 2019
Bench: Devendra Kumar Upadhyaya, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved Case :- CRIMINAL APPEAL No. - 848 of 2014 Appellant :- Sarvan @ Shravan Kumar Respondent :- State Of U.P. Counsel for Appellant :- O.P. Tiwari, Anuj Dayal Counsel for Respondent :- Govt. Advocate, R.B.S. Rathaur, Rajesh Kumar Hon'ble Devendra Kumar Upadhyaya,J.
Hon'ble Rajeev Singh,J.
(Delivered by Hon'ble Rajeev Singh, J.)
1. The present appeal has been filed against the judgment and order dated 26th May, 2014 passed by Additional Sessions Judge, Court No. 5, District Unnao in Session Trial No. 669 of 2009 arising out of Case Crime No. 1635 of 2009, P.S. Gangaghat, District Unnao, convicting the appellant under Sections 304-B I.P.C. and Section 4 of D.P. Act and sentencing him to undergo life imprisonment under Sections 304-B I.P.C. with fine of Rs.5000/-, in default whereof he was ordered to undergo further one year imprisonment. Appellant was also sentenced to undergo two years imprisonment under Section 4 of D.P. Act with fine of Rs.2000/-, in default of payment of which, further three months' imprisonment was ordered. The sentences, so awarded, were to run concurrently.
2. The appeal has been filed on several grounds, but learned counsel for the appellant submitted that he is only challenging the sentence of the offence under Section 304-B I.P.C. on the ground that; (i) the charge was framed under Section 302 I.P.C. and the appellant was acquitted, as the evidence on record does not disclose any extra-ordinary perverse or idolic act on the part of the appellant-accused to take an extreme view of the matter, (ii) at the time of commission of the offence, i.e., on 26.06.2009, appellant-accused was aged about 30 years and as on date, he is aged about 40 years; and (iii) he has no previous record of crime.
Learned counsel for the appellant, in support of his contention relied on various judgments of the Hon'ble Supreme Court passed in the cases of Sunil Datt Sharma Vs. State (Government of NCT of Delhi), (2014) 4 SCC 375 and Hemchand Vs. State of Haryana, (1994) 6 SCC 727.
3. On the other hand, learned A.G.A. vehemently opposed the grounds taken by the appellant on the point of sentence. Relying on the judgment of the Hon'ble Supreme Court passed in the case of Trimukh Maroti Kirkan Vs. State of Maharashtra, (2006) 10 SCC 681, he submitted that in the present case, the deceased was found dead in the house of the appellant and, therefore, no interference is required by this Court.
4. Learned counsel for the complainant, Shri R.B.S. Rathaur was also heard. He supported the version of the learned A.G.A. by relying on various judgments of the Hon'ble Supreme Court passed in the cases of Shailesh Jasvantbhai & Anr. Vs. State of Gujrat & Ors., 2006 (2) SCC 359, Narinder Singh & Anr. Vs. State of Punjab & Anr., 2014 (6) SCC 466, Ravada Sasikala Vs. State of Andhra Pradesh & Anr., 2017 (4) SCC 546, State of Himachal Pradesh Vs. Nirmala Devi, 2017 (7) SCC 262 and Raj Bala Vs. State of Haryana & Ors., (2016) 1 SCC 463.
5. Though the findings of fact have not been challenged on behalf of the appellant, but being the Court of appeal, we consider it appropriate to go through the entire evidence and the impugned order.
Gist of the case is that on the written complaint of the informant-Ram Charan (P.W. 1), F.I.R. was lodged at P.S. Gangaghat, District Unnao with the allegation that his daughter Rama Devi was married with the appellant on 7th March, 2009 and after marriage, the prosecutrix was victimised by the appellant, brother-in-law (Arvan), mother-in-law (Vandana), sister-in-law (Geeta) and uncle of the appellant (Prakash Chandra). He received information on 26.06.2009 that all the said persons killed his daughter. When he reached on the spot, he found grievous injuries on the body of the deceased and the nose of the deceased was chopped. On the written complaint of P.W. 1, the F.I.R. was lodged as Case Crime No. 1635 of 2009 under Sections 498-A and 304-B I.P.C. and Section 3/4 of D.P. Act, P.S. Gangaghat, District Unnao on 26.06.2009 at 1.05 p.m. The inquest of the body of deceased was conducted by the Naib Tehsildar at 1.30 p.m. and it was concluded at 2.30 p.m. P.W. 1, Ram Charan was also the witness of inquest. At the time of preparation of the inquest report, two injuries were noted, one that was on the left lobe of the nose and the second is ligature mark over the neck. The investigation was conducted and site plan was prepared and the statement of P.W. 1 was recorded. After recording the Statements of informant and other witnesses, a charge sheet dated 24.07.2009 was submitted against the appellant and mother-in-law, Smt. Vandana. The court below had taken cognizance and the case was committed before the court of Sessions. Thereafter, it was registered as Sessions Trial No. 669 of 2009 and the charge was framed against the appellant and his mother, Smt. Vandana on 12.11.2009 under Sections 498-A and 304-B I.P.C. and Section 3/4 of D.P. Act. Additional charge was framed under Section 302 read with Section 34 I.P.C. on 22.12.2010. The appellant denied the charges and requested for trial. During the course of trial, nine witnesses were placed by the prosecution. Thereafter, statement of the appellant was recorded under Section 313 Cr.P.C. by the trial court. Appellant placed one Arun Kumar as D.W. 1 and also submitted medical prescriptions of the deceased and her photographs.
6. After taking the evidences, brought on record, into consideration, the trial court passed the impugned judgment acquitting the appellant under Section 302 read with Section 34 I.P.C. and convicting him under Section 304-B and 498-A I.P.C. and Section 3/4 D.P. Act. Hence, the present appeal.
The deceased died within less than seven years of her marriage with unnatural death, therefore, the trial court is correct in concluding that the prosecution has been successful in proving his case against the appellant.
7. Now, the only question of appropriate sentence remains before us and while dealing with the said question, we will have to consider the law on the point of sentence to be inflicted in cases under Section 304-B I.P.C.
Hon'ble the Apex Court in the case of Hem Chand (supra), 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."
8. Relying on the judgment passed by the Hon'ble Apex Court in the case of Sunil Dutt Sharma (supra), it is vehemently contended by the learned counsel for the appellant that it is well settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. In para 5 of the said judgment, Hon'ble Supreme 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."
9. We have also considered the arguments advanced by the learned A.G.A and Shri R.B.S. Rathaur appearing for the complainant.
10. In the case of Trimukh Maroti Kirkan (supra) relied upon by the learned A.G.A., conviction under Section 302 I.P.C. was upheld by giving the punishment of life imprisonment. The aforesaid law is not applicable in the present case, as conviction in the present case is under Section 304-B I.P.C. and minimum punishment provided is seven years, but the appellant is sentenced maximum punishment prescribed in Section 304-B I.P.C., i.e., life imprisonment.
11. The case of Shailesh Jasvantbhai & Anr. (supra) relied upon by learned counsel for the complainant is a case under Sections 307, 324, 504 read with Section 114 I.P.C. and the accused persons were convicted in all Sections and sentenced to undergo 10 years' rigorous imprisonment with fine under Sections 307 and 114 I.P.C. No separate sentence was given in Section 324 read with Section 114 I.P.C. In appeal, High Court upheld the conviction recorded by the trial court, but reduced the sentence to the period undergone and awarded compensation. Appeal filed against the said order was allowed by the Hon'ble Supreme Court and the matter was remitted for fresh consideration on the ground that the accused were involved in nine other cases and bail of one of the accused was also rejected for breach of conditions. Therefore, the facts of the said case are not applicable in the present case.
Further reliance has been placed by the learned counsel for the complainant on the judgment passed by the Hon'ble Supreme Court in the case of Narinder Singh (supra). Initially, the case was registered against the accused persons under Sections 307, 324, 323 and 34 I.P.C. and later on, on the basis of compromise, a petition was filed before the High Court for quashing of the entire proceedings, but the High Court had refused to exercise its extraordinary discretion invoking the provisions of Section 482 of the Code on the ground that four injuries were suffered by the complainant and as per the report of the doctor, injury no. 3 was serious in nature. Against the judgment and order of the High Court, a criminal appeal was preferred which was allowed by the Hon'ble Supreme Court by quashing the F.I.R. No. 121 dated 14th July, 2010 on the basis of compromise. Therefore, aforesaid facts also do not have any relevancy with the present case.
In the case of Ravada Sasikala (supra), F.I.R. was registered on the statement of injured under Sections 448 and 30 I.P.C. and Assistant Sessions Judge did not find the accused guilty under Section 307 I.P.C., but held him guilty under Sections 326 and 448 I.P.C. At the time of hearing of the sentence under Section 235(2) Cr.P.C., the convict pleaded for mercy on the ground of his old aged parents and economic status. Trial Judge sentenced him to suffer rigorous imprisonment for one year and directed to pay a find of Rs.5000/- with the default clause under Section 326 I.P.C. and sentenced him to pay a sum of Rs.1000/- for the offence under Section 448 I.P.C. with a default clause. State Government preferred appeal under Section 377(1) Cr.P.C. before the High Court for enhancement of the sentence. Being aggrieved by the judgment of conviction and order of sentence, the accused had also preferred criminal appeal before the Sessions Judge, which was later on transferred to the High Court. Both the appeals were heard by the learned Single Judge, who concurred with the view taken by the Trial Judge as regards the conviction. However, while dealing with the quantum of sentence, learned Single Judge opined to modify the sentence of imprisonment imposed by the trial court for the offence under Section 326 I.P.C. to the period which the accused had already undergone while maintaining the sentence of fine for both the offences. Appeal filed against the said judgment was allowed by the Hon'ble Apex Court on the ground that despite the medical evidence of acid attack on the young girl and the circumstances having brought home by cogent evidence and the conviction is given the stamp of approval, there was no justification to reduce the sentence to the period already undergone.
The facts and the law decided in the aforesaid case, thus, do not have any applicability to the facts of the present case.
Facts of the case of State of Himachal Pradesh Vs. Nirmala Devi (supra) are again not applicable to the facts of the present case, as in the said case, the trial court convicted the accused person under Sections 328, 307 and 392 I.P.C. read with Section 34 I.P.C. and she was inflicted with the imprisonment of simple imprisonment for the period of two years and fine of Rs.2000/-, in default of payment of which, she had to undergo for a further period of three months, for the offence each punishable under Sections 328, 307 and 392 I.P.C. with the direction that all the substantive sentences were to run concurrently. Fine of Rs. 6000/- was also directed to be paid to the complainants as compensation and a sum of Rs.12,000/-, which was recovered from the accused was also ordered to be released to the complainant. In the appeal filed against the said judgment, the High Court, however, affirmed the conviction, but insofar as award of sentence was concerned, it was modified by removing imprisonment part of the sentence and substituting the same with fine simpliciter of Rs.30,000/-. Hon'ble Supreme Court allowed the appeal with the observation that maximum sentence under Section 328 I.P.C. is ten years, under Section 392 I.P.C. is fourteen years and under Section 307, maximum punishment is ten years and in case of hurt, it is life imprisonment and as the trial court was cautious at the time of sentencing the accused, therefore, the order of the High Court modifying the sentence is unsustainable.
Learned counsel for the complainant also relied on the case of Raj Bala (supra), wherein the accused persons were convicted under Section 306 I.P.C. to undergo rigorous imprisonment for a period of three years each with the fine of Rs.3000/- each and in default of payment thereof, to undergo rigorous imprisonment for six months. Being aggrieved by the said judgment of conviction and order of sentence, the accused persons preferred a criminal appeal before the High Court. The informant also preferred a revision for conversion of the criminal offence, but the same did not find favour with the High Court and, accordingly, it was dismissed. Insofar as the criminal appeal was concerned, the High Court gave the stamp of approval to the conviction, but as regards the quantum of sentence of imprisonment was concerned, referring to the jail custody certificates, as per which each of the appellants had undergone imprisonment for a period of four months and 20 days, and that accused were not found to be involved in any other criminal case, the learned Single Judge held that no useful purpose would be served by sending the appellants back to jail for remaining sentences of imprisonment and ends of justice would be amply met if their substantive sentences of imprisonment are reduced to the one already undergone by them. The reduction of sentence was the primary grievance in the appeal filed against the order of the High Court and the Hon'ble Supreme Court held that the approach of the High Court, as the reasoning would show, reflects more of a casual and fanciful one, rather than just one, and set aside the order of the High Court and restored the conviction and order of sentence of the trial court. Hence, these facts are again not applicable to the facts of the present case.
12. Thus, we find no force in the arguments advanced by the learned counsel for the opposite parties.
13. Under the provisions of Section 304-B I.P.C., the minimum punishment provided is seven years and maximum punishment is life imprisonment. Trial court has awarded the life imprisonment without giving any logical finding. It is well settled by the Hon'ble Supreme Court that the just punishment is the collective cry of the society. While the collective cry has to be kept in the upper most in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is a bedrock of sentencing in respect of criminal offence. All punishment should not be disproportionately excessive. The concept of proportionality lays a significant discretion to the Judge, but the same has to be occupied by certain principles.
14. Hon'ble the Apex Court in the case of G.V. Siddaramesh v. State of Karnataka reported in (2010) 3 SCC 152 has observed that awarding the extreme punishment of imprisonment for life should be used in rare cases and not in every case. Relevant paragraph 30 of the judgment reads 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."
15. The trial court has also wrongly awarded sentence for the offence under Section 498-A I.P.C.. The offence under Section 498-A I.P.C. is included in the offence under Section 304-B I.P.C., therefore, 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 & Anr. Vs. 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."
16. 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 Supreme Court was of the view that a sentence of 10 years rigorous imprisonment would be appropriate.
17. Hon'ble Supreme Court in the case of State of Rajasthan Vs. Mohan Lal, AIR 2018 SC 3564 has clearly held that the Courts will have to take into account certain principles while exercising their discretion in sentencing, such as proportionality, deterrence and rehabilitation. Relevant portion is reproduced hereinbelow:
"In a proportionality analysis, it is necessary to assess the seriousness of an offence in order to determine the commensurate punishment for the offender. The seriousness of an offence depends, apart from other things, also upon its harmfulness. The principle governing the imposition of punishment will depend upon the facts and circumstances of each case. However, the sentence should be appropriate, adequate, just, proportionate and commensurate with the nature and gravity of the crime and the manner in which the crime is committed. The gravity of the crime, motive for the crime, nature of the crime and all other attending circumstances have to be borne in mind while imposing the sentence. The Court cannot afford to be casual while imposing the sentence, inasmuch as both the crime and the criminal are equally important in the sentencing process. The Courts must see that the public does not lose confidence in the judicial system. Imposing inadequate sentences will do more harm to the justice system and may lead to a state where the victim loses confidence in the judicial system and resort to private vengeance."
18. Keeping in view the aforementioned legal position, we are of the considered view that for appellant, sentence of ten years rigorous imprisonment would be an adequate sentence to meet the ends of justice. No separate sentence needs to be inflicted for the offence under Section 498-A I.P.C.
19. Thus, this appeal deserves to be partly allowed and is hereby partly allowed. The conviction of the appellant Sarvan @ Shravan Kumar under Section 304-B I.P.C. is hereby confirmed. However, the sentence of imprisonment for life inflicted by the trial court is hereby reduced to a period of ten years. The conviction and sentence inflicted on the appellant by the trial court for the offence under Section 4 of the Dowry Prohibition Act is also hereby confirmed. The sentence awarded to appellant in default of payment of fine also stands confirmed. All the sentences shall run concurrently.
20. Appellant, Sarvan @ Shravan Kumar is in jail. He shall serve out the sentence as modified by this Court.
21. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record alongwith copy of the judgment to ensure compliance.
Order Date :- 30/5/19 VKS