Allahabad High Court
Neelesh Pandey vs State Of U.P on 5 March, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No.54 Criminal Appeal No.4142 of 2007 Neelesh Pandey ..... Appellant vs. State of Uttar Pradesh ..... Respondent AND Criminal Appeal No.4111 of 2007 1. Km. Priyanka Pandey 2. Smt. Rama Pandey ...... Appellants vs. State of Uttar Pradesh ...... Respondent AND Criminal Appeal No.4110 of 2007 Ramesh Chand Pandey ...... Appellant vs. State of Uttar Pradesh ...... Respondent *** For Appellants : 1. Shri Rajarsh Gupta 2. Shri Vinod Kumar Sharma For Respondent/State: 1. Shri Ankit Prakash, AGA Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J.
(05.03.2019)
1. These appeals arise out of impugned judgment and order dated 8.6.2007 passed by the Additional Sessions Judge, Fast Track Court No.1, Kanpur Nagar in Sessions Trial No.18 of 2006 (State v. Neelesh Pandey & Others), convicting accused appellant Neelesh Pandey under Sections 304-B and 498-A of IPC and sentencing him to undergo imprisonment for life and to undergo three years rigorous imprisonment, with a fine of Rs.5000/-, in default thereof, one month's additional imprisonment. Further, accused appellants, Ramesh Chand Pandey, Smt. Rama Pandey and Km. Priyanka Pandey have been convicted under Sections 304-B and 498-A of IPC and sentenced to undergo seven years rigorous imprisonment and to undergo three years rigorous imprisonment, with a fine of Rs.5000/- each, in default thereof, one month's additional sentence.
2. In the present case, name of the deceased is Jyoti Pandey, wife of accused no.1-Neelesh Pandey. Their marriage was solemnized on 8.7.2003 and out of the wedlock, a female child was born who, as informed, is now aged about 15 years. The deceased died homicidal death on 31.3.2005. Accused Km. Priyanka Pandey is an unmarried sister-in-law (nanad) of the deceased, whereas accused Smt. Rama Pandey and Ramesh Chand Pandey are the mother-in-law and father-in-law of the deceased. On 1.4.2005, information was received by the informant, (PW-1) Raj Kumar Mishra, father of the deceased, that his daughter has closed the door of her room from inside, he rushed to the house of the accused persons and there he found the dead body of her daughter lying on a cot. He returned to his house and then had gone to the police station where he lodged FIR, Ex.Ka.10 at 08:25 am. Based on this report, FIR under Sections 498-A and 304-B of IPC read with Section 3/4 of Dowry Prohibition Act was registered against the present accused persons and a juvenile accused Ankit Pandey. In the FIR, it is alleged that sufficient dowry was given by him to the accused persons, but yet his daughter was subjected to cruelty for demand of dowry. He has given certain previous instances in respect of demand of dowry and the settlement between two families.
3. Inquest on the dead body of the deceased was conducted, vide Ex.Ka.5 on 1.4.2005 and the body was sent for postmortem which was conducted on the same day by (PW-3) Santosh Narayan, vide Ex.Ka.4.
4. As per Autopsy Surgeon, following four injuries have been noticed on the body of deceased:
"(1) Abraded contusion 3 cm x 1.5 cm on left cheek, 4 cm in front of tiagus of left ear, and 4 cm below the outer angle of left eye.
(2) Abraded contusion 1.5 cm x 1 cm. On front of neck Eclymoses is present in side the skin under the injury.
(3) Abraded contusion 5 cm x 2.5 cm on right of nape of neck. Eclymoses is present under the skin at the site of injury.
(4) Abraded contusion 4 cm x 2 cm on right knee."
The cause of death of the deceased was 'Asphyxia due to throttling'.
5. While framing charge, the trial Judge has framed charge against all the accused persons under Sections 498-A, 304-B read with Section 34 of IPC and in alternate, charge was also framed against them under Section 302/34 of IPC.
6. So as to hold the accused persons guilty, prosecution has examined seven witnesses, whereas five defence witnesses have also been examined. Statements of the accused persons were also recorded under Section 313 of Cr PC in which, they pleaded their innocence and false implication.
7. By the impugned judgment, the trial Judge has convicted and sentenced the accused appellants, as mentioned in paragraph no.1 of this judgment.
8. Learned counsel for the appellants submits:
(i) that the deceased committed suicide as her husband accused Neelesh Pandey was working as Salesman, had a touring job, for which, he used to remain out of his house and frequent absence of her husband was not liked by the deceased and it appears that out of frustration, she committed suicide.
(ii) that no dowry whatsoever was demanded by the accused persons and likewise, they never ill treated the deceased as alleged. Accused Neelesh Pandey was residing separately along with the deceased, whereas the other accused persons were residing separately. It has been argued that accused Km. Priyanka Pandey, unmarried nanad of the deceased, was pursuing her studies in a college, which was far from the residence of accused Neelesh Pandey and, she was residing with her uncle (DW-2) Vinod Kumar Mishra in Kidwai Nagar, Kanpur Nagar.
(iii) that accused Ramesh Chand Pandey was working as a Conductor in UPSRTC and was residing in his village and on the date of the incident, he was on his duty. Reference has been made to the statements of (DW-4) Prabhat Choudhary and (DW-5) Sonelal. Accused Smt. Rama Pandey, mother-in- law of the deceased, was residing with her husband Ramesh Chand Pandey. It has been argued that the ration card of Ramesh Chandra Pandey has been duly filed and proved by the defence from which, it is clear that Ramesh Chand Pandey, Smt. Rama Pandey, Km. Priyanka Pandey and juvenile Ankit Pandey were living separately.
(iv) that merely on the basis of general allegations all the accused persons have been convicted. It has been argued that even if the entire case of the prosecution is taken as it is, at best, accused Neelesh Pandey can be convicted under Section 498- A of IPC and not under Section 304-B of IPC, as has been done by the trial Court.
(v) that accused Neelesh Pandey has already completed about 14 years' jail sentence and thereby, has served the minimum sentence to be imposed upon him under Section 304-B of IPC.
9. On the other hand, supporting the impugned judgment, it has been argued by learned State Counsel that the conviction of the accused appellants is in accordance with law and there is no infirmity in the same. He submits that the evidence against all the accused persons is common and the trial Court has already taken a lenient view while convicting accused-appellants Km. Priyanka Pandey, Smt. Rama Pandey and Ramesh Chand Pandey.
10. We have heard counsel for the parties and perused the record.
11. (PW-1) Raj Kumar Mishra, father of the deceased, has stated that the marriage of the deceased was solemnized with accused Neelesh Pandey on 8.7.2003 and in the marriage, he gave Rs.1.50 lakhs cash and other dowry articles. However, after returning from her in-laws house, the deceased informed him that the accused persons are demanding Rs.50,000/- cash and a two wheeler. He states that with the help of his relatives, the accused persons were made to understand. However, when the deceased returned from her in-laws house on the second occasion, she again informed that she was subjected to cruelty. In August 2004, the deceased closed herself inside the house and when he and other relatives reached to the place of occurrence, she opened the door and started weeping. He took the deceased along with him. However, after about four months, the deceased had again gone to her in-laws' house on the assurance that the accused persons would not ill treat her. While improving in the Court, he states that on one occasion, the accused persons had switched on the gas cylinder. He further states that his house is just three kms. away from the house of accused persons.
In the cross-examination, he admits that accused Ramesh Chand Pandey was residing at Village Harchand Kheda, where he has his agricultural land and the house. Nowhere in his statement, this witness has stated that accused Ramesh Chand Pandey, Smt. Rama Pandey and Km. Priyanka Pandey were residing along with the deceased and her husband Neelesh Pandey. He admits that accused Neelesh Pandey had a touring job, being a Salesman. He further states that after the incident, when he reached to the place of occurrence, he met only accused Smt. Rama Pandey and Km. Priyanka Pandey and no one else was there. He however, admits that, for the first time, this fact is being disclosed by him in the Court and while lodging the report, no such statement was made. He further admits that demand of Rs. 50,000/- cash and a motorcycle was not disclosed by him in his previous statement recorded under Section 161 of Cr P C.
12. (PW-2) Madhuri Mishra, wife of (PW-1) Raj Kumar Mishra, has also made general allegations against the accused persons for demand of dowry. However, she has nowhere stated that other accused persons were also residing along with accused Neelesh Pandey and the deceased.
13. (PW-3) Santosh Narayan, is the Doctor, who conducted the postmortem on the body of the deceased.
14. (PW-4) R.B. Sonkar, conducted inquest vide Ex. Ka 5.
15. (PW-5) Udaiveer Singh, assisted during investigation.
16. (PW-6) Gyananjay Singh, Investigating Officer, did initial investigation.
17. (PW-7) Om Prakash Singh, is also Investigating Officer, who had submitted the charge-sheet.
18 (DW-1) Amit Bhattacharya and (DW-3) Ramesh Chandra Lodhi, have made an attempt to prove the handwriting of the deceased, as according to defence, certain letters were written by the deceased mentioning therein that she had some problem with the touring job of her husband and, according to defence, had there been any cruelty or demand of dowry, this fact would also have been disclosed by the deceased in these letters. It is relevant to note that no handwriting expert has been examined by the defence, nor handwriting of the deceased has been admitted by (PW-1) Raj Kumar Mishra and, therefore, statements of DW-1 and DW-3 are of no help to the defence.
19. (DW-2) Vinod Kumar Mishra, is the uncle of Km. Priyanka Pandey, has stated that Km. Priyanka Pandey was residing with him at Kidwai Nagar and was pursuing her studies there.
20. (DW-4) Prabhat Chaudhary, is an employee of UPSRTC, has proved the documents pertaining to the duty of accused Ramesh Chand Pandey, has stated that on the date of occurrence, accused Ramesh Chand Pandey was performing his duty and was not at Kanpur, where the incident had taken place.
21. (DW-5) Sonelal, is Driver of the Bus, where accused Ramesh Chand Pandey was performing his duty as a Conductor.
22. Close scrutiny of the evidence makes it clear that the marriage of accused Neelesh Pandey was solemnized with the deceased on 8.7.2003 and she died an unnatural death on 31.3.2005 and as per Autopsy Surgeon, the cause of death was 'Asphyxia due to throttling'. In the evidence, it has come that the deceased died in her matrimonial house, where she was residing with accused Neelesh Pandey. There is no conclusive and concrete evidence that other accused persons, namely, Ramesh Chand Pandey, Smt. Rama Pandey and Km. Priyanka Pandey were also residing along with accused Neelesh Pandey and on the contrary, it has been admitted by (PW-1) Raj Kumar Mishra that accused Ramesh Chand Pandey was residing separately in his village along with his wife, Smt. Rama Pandey. A ration card has also been filed by the defence, showing that accused Ramesh Chand Pandey was residing in his village along with his wife, Smt. Rama Pandey and children Km. Priyanka Pandey and juvenile Ankit Pandey.
23. In absence of any concrete, conclusive and clinching evidence, it will not be safe for us to hold that except accused Neelesh Pandey, other accused persons were also residing with the deceased and that, at any point of time, they subjected the deceased to cruelty for demand of dowry. Only bald allegations have been levelled against the other accused persons. Further, considering the fact that Km. Priyanka Pandey, unmarried sister-in-law (nanad) of the deceased, was pursuing her studies in a different locality and was residing with her uncle, prosecution has failed to establish that she was also residing along with accused Neelesh Pandey and the deceased. Considering the general allegations made against the other accused persons, particularly when they are not of very serious nature, we are of the view that the accused persons, namely, Ramesh Chand Pandey, Smt. Rama Pandey and Km. Priyanka Pandey are entitled for benefit of doubt and, accordingly, they are acquitted of the offence under Sections 498-A and 304-B of IPC.
24. As regards the conviction of accused Neelesh Pandey, husband of the deceased, it is apparent that the deceased died an unnatural death while she was living with him. Postmortem also supports the case of the prosecution against accused Neelesh Pandey and considering the statements of (PW-1) Raj Kumar Mishra and (PW-2) Madhuri Mishra, it can be said that the prosecution has succeeded in proving the case, at least, against accused Neelesh Pandey. Moreover, accused Neelesh Pandey was residing along with the deceased and has failed to submit any probable acceptable explanation in his statement under Section 313 of Cr PC about the death of the deceased.
25. In a case where house murder is an issue, heavy burden is on the shoulders of the accused to explain as to under what circumstances the deceased died but here no such explanation has come either in his statement recorded under Section 313 of the Code of Criminal Procedure, nor did he take any defence to this effect by adducing any evidence. While dealing with the matter involving the murder committed inside the house, it has been held by the Apex Court in Trimukh Maroti Kirkan v State of Maharashtra1 as under:
"14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecutions (1944 AC 315) - quoted with approval by Arijit Pasayat, J in State of Punjab v. Karnail Singh (2003) 11 SCC 271). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be held. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads:
"(b) A is charged with travelling on a railway without ticket. The burden of proving that he had a ticket is on him."
15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offeirng 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 an accused to offer any explanation."
Further in the matter of State of Rajasthan v Thakur Singh,2 it has been held by the Apex Court as under:
"17. In a specific instance in Trimukh Morati Kirkan v. State of Maharashtra (2006) 10 SCC 681), this Court held that when the wife is injured in the dwelling home where the husband ordinarily resides, and the husband offers no explanation for the injuries to his wife, then the circumstances would indicate that the husband is responsible for the injuries. It was said: (SCC p. 694, para 22) "22 Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime."
18. Reliance was placed by this Court on Ganeshlal v. State of Maharashtra {(1992) 3 SCC 106)} in which case the appellant was prosecuted for the murder of his wife inside his house. Since the death had occurred in his custody, it was held that the appellant was under an obligation to give an explanation for the cause of death in his statement under Section 313 of the Code of Criminal Procedure. A denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant was a prime accused in the commission of murder of his wife.
19. Similarly, in Dnyaneshwar v. State of Maharashtra {(2007) 10 SCC 445} this Court observed that since the deceased was murdered in her matrimonial home and the appellant had not set up a case that the offence was committed by somebody else or that there was a possibility of an outsider committing the offence, it was for the husband to explain the grounds for the unnatural death of his wife.
20. In Jagdish v. State of MP {(2009) 9 SCC 495} this Court observed as follows: (SCC 503, para 22) "22... It bears repetition that the appellant and the deceased family members were the only occupants of the room and it was therefore incumbent on the appellant to have tendered some explanation in order to avoid any suspicion as to his guilt."
26. Taking cumulative effect of the evidence, in our considered view, the conviction of accused Neelesh Pandey under Sections 304-B and 498-A of IPC is in accordance with law and, therefore, there is no infirmity in the same. We, accordingly, affirm the same.
27. The next question for consideration of this Court, is as to what would be appropriate sentence to be imposed upon accused Neelesh Pandey.
28. Counsel for the appellants, submits that accused Neelesh Pandey has a minor daughter, who till date is residing with accused Ramesh Chand Pandey and Smt. Rama Pandey, who have been enlarged on bail, now their age is not as such where they can take care of a growing girl and, therefore, some lenient view be taken while imposing sentence upon accused Neelesh Pandey. He further submits that minimum sentence, which has been provided under Section 304-B of IPC, is of seven years; the incident occurred about 14 years back; accused Neelesh Pandey has remained in Jail for about 14 years and, therefore, his sentence may be reduced to the period already undergone by him. He further submits that accused Neelesh Pandey is willing to compensate (PW-1) Raj Kumar Mishra by paying an adequate compensation.
29. In order to examine the said issue, it would be useful to extract Section 304-B of IPC:
"304B. Dowry death. -- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]"
30. This issue has been the subject matter of debate before the Apex Court in several cases, which arose out of Section 304-B of IPC read with Section 498-A of IPC and wherein the Apex Court, while interpreting the expression "may" occurring in Section 304-B of IPC, held that it is not mandatory for the Court, in every case, to award life imprisonment to the accused once he is found guilty of offence under Section 304-B of IPC. It was held that the Court could award sentence in exercise of its discretion, between seven years to life imprisonment depending upon the facts of each case. It was held that in no case, it could be less than seven years and that extreme punishment of life term should be awarded in "rare cases" but not in every case.
31. In Hem Chand Vs. State of Haryana3, the courts below had awarded life term to the accused under Section 304-B read with Section 498-A of IPC, but the Apex Court reduced it to 10 years. This was a case where the accused was a police officer who had suffered life imprisonment. The Apex Court held as under:
"7... ... ... the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. 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.
8. Hence, we are of the view that a sentence of 10 years' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' RI... ... ..."
32. Similarly, in State of Karnataka Vs. M.V. Manjunathegowda and Anr.4, while convicting the accused under Section 304-B of IPC, awarded 10 years imprisonment in somewhat similar facts.
33. In the case of G.V. Siddaramesh Vs. State of Karnataka5, the Apex Court, while affirming the conviction of the accused under Section 304-B of IPC, altered the sentence from life term to 10 years on more or less similar facts. Hon'ble H. L. Dattu, J. (as His Lordship then was) speaking for the Bench held as under:
"31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B IPC. However, his sentence of life imprisonment imposed by the courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years' rigorous imprisonment would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed."
34. Considering the overall facts and circumstances of the case, in particular, the detention of accused Neelesh Pandey which comes to about 14 years, his present age, the fact that he has a growing daughter of about 15 years of age and further considering the fact that the minimum sentence has already been served by him, we are of the considered view that, maintaining his conviction, his sentence can be reduced to the period already undergone by him. However, further considering the law laid down by the Apex Court in Ankush Shivaji Gaikwad v State of Maharashtra6, we hold that accused Neelesh Pandey has to compensate the complainant, (PW-1) Raj Kumar Mishra by paying an adequate compensation under the provisions of Section 357 of Cr PC and, accordingly, he is directed to pay Rs.1.00 lakh (Rupee One Lakh Only) to PW-1. Let this amount be deposited by accused Neelesh Pandey, within a period of six months after being released from Jail. The amount so deposited before the concerned trial Court, shall be disbursed to PW-1-Raj Kumar Mishra. In case, accused Neelesh Pandey fails to deposit the said amount, within the time stipulated, he shall further undergo additional jail sentence for three years. We hope that out of the amount of Rs.1.00 lakh to be received by (PW-1) Raj Kumar Mishra, if his financial condition permits, he would spend some amount at the time of marriage of the daughter of the deceased.
35. Since accused appellant Neelesh Pandey is in Jail, he be set free forthwith, if not required in any other case. As remaining accused appellants, namely, Ramesh Chand Pandey, Smt. Rama Pandey and Km. Priyanka Pandey are reported to be on bail, no further order is required in their respect. Their bail bonds stand cancelled.
36. Appeal filed by accused Neelesh Pandey (Criminal Appeal No.4142 of 2007) is partly allowed, whereas the appeals filed by other accused, namely, Ramesh Chand Pandey; Km. Priyanka Pandey and Smt. Rama Pandey (Criminal Appeal No.4110 of 2007 & Criminal Appeal No.4111 of 2007 respectively) are allowed.
Dated:05.03.2019 RKK/-
(Pritinker Diwaker, J) (Raj Beer Singh, J)