Allahabad High Court
Ravi vs State Of U.P. on 11 January, 2021
Bench: Ramesh Sinha, Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 07.12.2020 Delivered on 11.01.2021 Court No. -47 Case :- CRIMINAL APPEAL No. - 2161 of 2007 Appellant :- Ravi Respondent :- State of U.P. Counsel for Appellant :- Shree Prakash Giri,Noor Mohammad Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Samit Gopal,J.
(Per Samit Gopal,J. for the Bench)
1. The present appeal has been preferred against the judgment and order dated 08.02.2007 passed by the Additional Sessions Judge, Court No. 18, Agra in Sessions Trial No. 666 of 2006 (State of U.P. vs. Ravi), whereby the accused-appellant Ravi has been convicted and sentenced under Section 304-B of the Indian Penal Code, 1860 (in short referred to as 'IPC') to life imprisonment, under Section 498-A IPC to two years rigorous imprisonment and a fine of Rs. 5,000/-, in default of payment of fine to one year rigorous imprisonment, under Section 4 of The Dowry Prohibition Act, 1961 to one year rigorous imprisonment, a fine of Rs. 500/- and in default of payment of fine to one month rigorous imprisonment. The sentences have been ordered to run concurrently. The Trial Court has further directed that the period, for which the accused has already been in jail shall be set off against the sentence recorded against him.
2 The prosecution case as per the first information report lodged by Maya Ram P.W.-1 is that his daughter Mamta was married around 3-1/2 years back with Ravi S/o Kailash Chandra R/o Behind Balkeshwar Mandir, Police Station-New Agra, District-Agra and in the marriage he had given dowry as per his capability. He further states that after one year of marriage Ravi started beating his daughter and started creating pressure on her for bringing a motorcycle in dowry, failing which she would be murdered. The said fact was told by his daughter Mamta many times to him and inspite of repeated attempts to sort out the issue Ravi used to beat his daughter. Mamta got disturbed and was living in her maternal house since the last six months. He further states that he pacified Ravi, on which he told him that he will come on Raksha Bandhan on 09.08.2006 and had stated that if he wants his daughter to be taken then a motorcycle be given to him, otherwise he will kill his daughter. On 22.08.2006 in the absence of the first informant Ravi came to his house at about 10.00 a.m., wherein the daughter-in-law of the first informant namely Smt. Kranti and Smt. Vimlesh were at the house and in front of them beat his daughter Mamta and when the wife of the first informant went to give him his food then Ravi assaulted Mamta with knife on her stomach and ran away. It is further stated that on the shrieks, the daughter-in-law of the first informant reached there and they and his wife informed him. They went and saw Mamta lying on the floor in a pool of blood. She was taken to the hospital and on the way she died. It was then prayed that a report be registered and appropriate legal action be taken.
3. Maya Ram gave a typed application at the police station, which is dated 22.08.2006 for getting a first information report lodged, the same is marked as Exhibit Ka-1 to the records.
4. On the basis of the said application a first information report was lodged on 22.08.2006 at 16.45 hrs. at Police Station-Jagdishpura, District-Agra as Case Crime No. 297 of 2006, under Sections 498-A, 304-B, 506 IPC and Section 3/4 of The Dowry Prohibition Act against Ravi S/o Kailash Chandra, the same is marked as Exhibit Ka-3 to the records.
5. An inquest was conducted on the dead body on 22.08.2006, which started at 17.30 hrs. and concluded at 18.45 hrs., the same is marked as Exhibit Ka-2 to the records.
6. Post-mortem examination of the deceased Smt. Mamta was conducted on 23.08.2006 at 3.15 p.m. at Dr. B.D. Bhaskar P.W.-6. The doctor found the following anti-mortem injury on the body of the deceased :-
"Stab wound size 02 cm. x 01 cm. x abdominal cavity deep on the lower abdomen, 2 cm. away from right side anterio mid line and 1-1/2 cm. below umbilicus."
The doctor opined the cause of death due to shock and hemorrhage as a result of anti-mortem injury.
The time since death has been opined to be about one day.
7. The knife said to be used in the assault was recovered by the Investigating Officer on 22.08.2006 on the pointing out of Smt. Vimlesh W/o Kali Charan alias Khillu from the room, where the incident took place, which was said to have been thrown by the accused after the assault. The recovery memo of the said knife is Exhibit Ka-5 to the records.
8. The investigation of the present matter concluded and a charge-sheet no. 232/2006, dated 29.08.2006, under Sections 498A, 304-B, 302, 506 IPC and Section 3/4 of The Dowry Prohibition Act was filed against the accused-appellant Ravi, the same is marked as Exhibit Ka-12 to the records.
9. The Trial Court framed charges against the accused-appellant Ravi vide its order dated 08.11.2006, under Section 304-B IPC with an alternate charge under Section 302 IPC, under Section 498-A IPC and Section 4 of The Dowry Prohibition Act, 1861.
The accused-appellant denied the charges and claimed to be tried.
10. The prosecution in order to prove its case produced Maya Ram P.W.-1, who is the first informant and the father of the deceased. Khillu P.W.-2 is the son of the first informant Maya Ram and the brother of the deceased. Umesh Yadav P.W.-3 is the Head Constable, who transcribed the chik first information report. Smt. Vimlesh P.W.-4 is the wife of Khillu P.W.-2, daughter-in-law of Maya Ram P.W.-1 and is an eyewitness of the incident. Kundan Lal, Sub-Inspector P.W.-5 prepared the inquest and the other relevant and required papers of the dead body. Dr. B.D. Bhaskar P.W.-5 conducted the post-mortem examination of Smt. Mamta. S.K. Singh P.W.-7 is the Circle Officer, who conducted the investigation and concluded it by filing the charge-sheet against the appellant.
11. The accused-appellant denied the occurrence and claimed false implication. No defence evidence was led.
12. The Trial Court after considering the entire evidence on record came to the conclusion that looking to the evidence on record and the medical evidence also offences under Sections 304-B, 498-A IPC and Section 4 of The Dowry Prohibition Act are made out. It came to a conclusion that no such circumstance has been placed by the defence, by which the prosecution story be suspected and thus, convicted the accused and sentenced him as stated above.
13. We have heard Shri Noor Mohammad, learned counsel for the appellant and Shri Irshad Hussain, learned Additional Government Advocate for the State of U.P. and perused the record.
14. Learned counsel for the appellant at the very outset states that he is not challenging the conviction as recorded by the Trial Court vide the impugned judgment and order dated 08.02.2007. He argues that only the quantum of sentence as awarded to the accused-appellant Ravi being life imprisonment under Section 304-B IPC is being challenged by him as the same is excessive. He argues that the accused-appellant is in jail since 23.08.2006 and has served out about 14 years and 4 months (without remission) in jail and as such the sentence as imposed of life imprisonment be reduced. Learned counsel for the appellant has in support of his argument relating to the quantum of punishment has relied upon the following judgments :-
(i) 2009(2) All JIC 318 : Rajesh Pandey vs. State of U.P.
(ii) (2013) 9 SCC 190 : Manoj and others vs. State of Haryana.
(iii) (2018) 8 SCC 228 : Deepak vs. State of U.P. (now Uttarakhand).
(iv) Criminal Appeal No. 1284 of 2019 : Suresh alias Kala vs. State of NCT of Delhi : Order dated 27.08.2019.
15. Per contra learned Additional Government Advocate for the State of U.P. opposed the sole submission of the learned counsel for the appellant on the grounds that the present case is a case, in which there is consistent evidence of two witnesses being Maya Ram (P.W.-1) and Khillu (P.W.-2) regarding the demand of a motorcycle as dowry by the appellant from the deceased and due to non-fulfillment of the same she was murdered by him. It was further argued that the incident was witnessed by Smt. Vimlesh (P.W.-4), who is the wife of Khillu (P.W.-2) and is a natural witness of the incident as she resides in the same house. It is argued that even the medical evidence corroborates with the prosecution story. It is argued that the appellant does not deserve any sympathy whatsoever and the sentence awarded is appropriate as it is dowry death and the ingredients of a dowry death are fully satisfied in the present case. In the last it is argued that the appeal be dismissed and no sympathy be extended to the accused-appellant.
16. P.W.-1 Maya Ram is the first informant and the father of the deceased Smt. Mamta. He has stated in his examination-in-chief that the marriage of his daughter Mamta was solemnized with Ravi as per Hindu rites and rituals around 3-1/2 years back. He states to have given gift and dowry as per his capability, which were quite sufficient. Ravi used to demand a motorcycle as dowry from his daughter and for the same used to beat and trouble her. After one year of marriage he used to trouble his daughter a lot and used to say that if he does not bring a motorcycle she will be murdered. On 09.08.2006 Ravi came to the house of Maya Ram and at that time his daughter was in the house, who had come around six months back as she was being troubled a lot by him and was brought by him to the house. On that day, Ravi came and told him to give a motorcycle in dowry and stated that he will not take his daughter back until the motorcycle is given or else she will be murdered. On 22.08.2006 Maya Ram went to his shop at about 9.00 a.m. After sometime his wife came to give him food. Ravi came to his house at about 10--10.25 a.m. and started beating his daughter. At that time apart from his daughter, his daughter-in-law Smt. Kranti and Smt. Vimlesh were in the house and therein Ravi assaulted his daughter with knife on her abdomen. Information about the incident was given to him by his daughter-in-law, on which he came to the house and saw his daughter lying in a pool of blood and then took his daughter and proceeded towards hospital, wherein on the way at the gate of the hospital she died and was brought back to the house. An information about the incident was given by him to Bodala Police Chauki, on which he was told to give a written report. He then got a report typed. He states that whatever he dictated was typed. He proves the said application, which was marked as Exhibit Ka-1 to the records. He further states that the police personals at the Police Chowki sent him to the Police Station-Jagdishpura, where his report was registered. He states that then police came to his house and conducted the inquest, on which he had signed. He identifies his handwriting on the inquest, which is marked as Exhibit Ka-2 to the records.
In his cross-examination, he states that his marriage was performed about 25-26 years ago with Saiya. About 7-8 children were born out of the said wedlock amongst whom 3 are alive. He has 2 sons, in which Khillu is the elder one and Raju is the younger son and Mamta is the elder daughter and the younger daughter is named Lalo. As of now 3 children are alive. He states that the marriage of his daughter Mamta was solemnized with Ravi of Balkeshwar. About 250 baraties came in the wedding. He had given the entire items of household. He had spent about Rs. 1 lakh in the marriage. He states that he has nurtured children in the same house, in which he is living. His son earns separately. The house, in which he lives, has 3 rooms. Both his children are married. They have separate households. They live in different rooms. Khillu was married about 11 years back. Khillu has 3 children and one is about to be born. Raju also got married at the same time when Khillu was married. Raju has one daughter. Both of his sons have separate kitchens and also work separately. The plot of the house has a length 43.50 yards and breadth of 22.50 yards. Two rooms are in a straight line on the third is in the side. All the 3 rooms are constructed in "L" type. The house has a small courtyard, it has one toilet. It has no kitchen. His daughter Mamta lived with him. His other daughter also lived with him. He is a barber. He does Pooja at the place demarcated for God. He does Pooja for about 1-1/2 hours. His shop is on the foot - path in a Khokha , which is situated at a distance of about 150-200 yards from the house. He earns about Rs. 70-80 daily. The business used to be good on Sundays. His son-in-law was having a business of flower at the time of marriage. He states that he does know as to what his son-in-law was doing when he had brought his daughter back to the house. His daughter, who is the deceased, had one son aged about one and half years. He has spent money for her delivery. In-laws of Mamta had left her at her parental house at the time of delivery and had run away and then he had taken her to the hospital, where delivery was done. Mamta was brought back to his house after delivery and then she was sent with Ravi to her maternal house. Ravi and his elder brother had left Mamta at the house at the time of delivery. At that time his daughter had told her that Ravi used abuse her, torture her and beat her and used to say that he has not got anything and if motorcycle is not given then he will murder her. He states that when Ravi had left his daughter and had run away, he did not inform the police and other high officials about the incident. He states that the child was born in the hospital in Bodala. She was in the hospital for 3 days. She was brought back to the house after 3 days. Ravi himself had taken Mamta after the delivery and had abused him on that day. He did not inform the police and other high officials about the incident and abuse. He had stopped going to the house of Ravi after delivery. He had gone to his shop at 9.00 a.m. on day of incident. His wife had later on brought food at the shop for him. When his wife had brought food for him he was alone at the shop and there was no customer present. The information about the murder was given at the shop by his son Raju. On receiving the said information he immediately left the shop. He received the information at about 10.30 a.m. On receiving the information Om Prakash, Chaturi and Chand, who were sitting with him immediately ran towards the house. When all the 4 persons reached the house about 400-500 people were present there. His daughter, who was murdered, was wearing a Salwar Kurta with a black Dupatta. She had a small child in her lap. His daughter was breathing and was in a pool of blood when she was taken to the hospital. She was taken to the hospital on a Thela. His daughter was lying in the room of his son Khillu and a knife was also lying there. Blood was present on the floor. He was not in his senses and could not see the blood on the knife and the knife. Thela, which was used, was of the neighbour. His daughter was taken to a Nursing Home in Bodala and she died on the way. 4-5 persons had accompanied him. He does not know the name of the persons, who had gone to the hospital with him. The hospital is situated at a distance of about 400-500 yards from his house. It took him about 45 minutes in reaching the hospital. The doctor attended his daughter and declared her to be dead and sent him back. He then brought his daughter to the house. The injury of knife was on the abdomen of his daughter. He kept the body at the door of the house. The police had come thereafter. On the saying of the police, he went to the Police Chowki and gave his report. A police constable took him from the Police Chowki to police station, where his report was registered. They went on a Tempo from the Police Chowki. Police reached his house at about 5.00 p.m. He is illiterate, he can write his name. He had signed the papers given to the police. He had dictated the report, which was typed on an electronic typewriter in Bodala. The report was given at 11.00 a.m. at police station. The police had reached at about 5.00 p.m. and till that time he was detained at the police station. He along with his son and police constable had taken his daughter for post-mortem. When he reached his house on receiving the information of murder, his both daughter-in-laws and their brother who had come to them were present in the house. His daughter-in-law told him that Ravi has murdered Mamta. He does not remember as to whether the blood stained clothes were given to the Investigating Officer or were burnt during cremation. To a suggestion that after the delivery he had broken his relationship with his son-in-law and his daughter, was living with him, he denies. To a further suggestion that his daughter and son-in-law had strained relations and as such she left her matrimonial house and came to her maternal house, he denies. To a further suggestion that his daughter has been murdered by someone else and to save themselves a false case has been instituted against Ravi, he denies the same.
17. Khillu P.W.-2 is the son of the first informant, brother of the deceased Smt. Mamta and husband of Smt. Vimlesh, who is the eyewitness of the incident. In his examination in - chief, he states that the marriage of his sister Mamta was solemnized about 3-1/2 years back. His father had given dowry at the time of marriage as per his capability, but Ravi was not happy with the gifts and dowry and was demanding a motorcycle, for which he used to torture and beat his sister. His father had gone one or two times to the house of Ravi for mediating, but he did not stop and continued to demand motorcycle and also continued to trouble his sister and used to say that if motorcycle is not given then he will murder her. He states that due to the said reason his father had brought Mamta back to her house about 9 months back and his sister was living in the house since then. He states that on Raksha Bandhan, Ravi had come to the house and had said that if they want to send the girl then motorcycle be given or else she will be murdered. On 22.08.2006 at about 10.00 a.m. he went to his shop and his after had also gone. His wife and the wife of his younger brother, who are named Vimlesh and Kranti were at the house. Ravi came to the house and started beating his sister and assaulted her on her abdomen with a knife. Information about the incident was given to him by his wife. His shop is near the house. His father has a different shop. He came to the house and saw that his sister is lying in a pool of blood and a blood stained knife is also lying there. His father also came from the shop. His father took Mamta to the hospital and as soon as he reached at the gate of the hospital she died. Her dead body was then brought to the house. He along with his father went to the Police Chowki to give information, but they did not register his report and told them to bring a written report. Then his father got a report typed on a electronic typewriter and went to the Police Chowki, from where he was told to go to the police station and give it there and then he went Police Station-Jagdishpura. Police came immediately thereafter and did paper work and sealed the dead body.
In his cross-examination he states that amongst sisters and brothers he is the eldest. Mamta, who has been murdered, was younger than him. He states that he is a barber, his shop is at Bodala Chauraha. His shop is situated at a distance of about 2--2-1/2 kms. from his house. On the day of occurrence he left his house for the shop at 8.00 a.m. On the day of occurrence his brother-in-law had come to take his wife to her maika. His younger sister Lalo was not at the house on the day of occurrence. She was in her matrimonial house. He received the information about the occurrence at about 10.00 a.m. through a boy, who was sent by his wife. On the said information he went to the house and took around 2 hours reaching there. When he reached the house he saw Mamta lying in a pool of blood and a knife was lying beside her. She was then taken to the hospital on a Thela and on the way she died. He states that his sister had died while on the way to the hospital near Bigha Mandir, from where she was brought back to the house and the dead body was then kept at the house. Blood also spilled on the Thela. They went for lodging the report after bringing Mamta to the house. The report was got typed on a typewriter. His father had gone with him for getting the report typed. His father had dictated the report. His father had signed on the said report. They had gone to the police station directly after getting the report typed. They had gone to Police Station-Jagdishpura, but did not meet anyone and had then come back to the house. Police had come at around 5.00 p.m. to the house. 2-3 police personals had come. The police had then sealed the dead body. Police had after conducting the inquest sealed the dead body and had taken it with them. They had not brought the typed application with them. The dead body was taken for post-mortem after sealing it. He states that his sister was lying in the pool of blood when he reached home from his shop. The dead body was taken for post-mortem by the police on a Tempo. Blood was present at the place, where the dead body was kept at the door. The dead body was taken for cremation directly after post-mortem. They had returned home after cremation. Police had come after they had returned home after cremation. Police did not recover the blood stained mud. His brother-in-law Om Prakash had come on the day of occurrence. His sister had told him about Ravi troubling her after marriage. He did not make any complaint to the police or any high official about it. His sister had come on her own when she was pregnant and he had not gone to bring her. Her delivery was done, for which they had spent money. His sister and her child were living with him. He and his father were looking after the expenses of them. The knife was blood stained. The police had taken the knife. He did not see the knife. He had seen the knife at the time of the incident in the room. He does not know as to whether it was a knife or a chhuri. No wood of the Thela was cut and kept. The Thela was returned with the blood on it. He did not tell the same to the Investigating Officer. His statement was recorded immediately after the incident. To a suggestion that his brother and his wife were not happy with his sister living in the house, he denies. To a further suggestion that due to the same there used to be fight in the house, he denies. To a further suggestion that due to the fight, which had increased some maar-peet took place and his brother-in-law assaulted his sister with a knife due to which she died, he denies. He further denies the suggestion that due to the said reason, the said incident was not told to others and the report has been lodged with a delay.
18. Umesh Yadav P.W.-3 is the Head Constable, who had transcribed the first information report of the present case, the same is marked as Exhibit Ka-3 to the records. He had also transcribed the Qayami G.D. No. 51 at 16.45 hrs. on 22.08.2006 after lodging the first information report, the same is marked as Exhibit Ka-4 to the records.
In his cross-examination he states that Maya Ram, Khillu, Chaturi Ram had come for getting the first information report lodged. He states to have informed the officials about the same and the Incharge Sub-Inspector was sent to the place of occurrence.
19. Smt. Vimlesh P.W.-4 is the wife of Khillu P.W.-2, the daughter-in-law of Maya Ram P.W.-1 and an eyewitness of the incident. She in her examination-in-chief states that the marriage of her nand Mamta was solemnized about 3-1/2 years back with Ravi as per Hindu customs. In the marriage, her father-in-law and mother-in-law had given gifts and dowry as per their capability. Ravi and his family members were not happy with the gifts and dowry and had demanded a motorcycle as dowry from Mamta and due to the non-fulfillment of the same Mamta used to be beaten. Mamta, whenever she came to the house, used to tell about the demand of motorcycle by Ravi and also about the beating done by Ravi. She states that due to the demand of motorcycle Ravi had left Mamta back to her house and she was living since the last six months in her maternal house. On Raksha Bandhan, Ravi had come and had asked for a motorcycle and had beaten Mamta. On 22.08.2006 Ravi came to the house and had again said that his demand of motorcycle has not been fulfilled and he will take her back home only when motorcycle is given. She states that even prior her father-in-law and other persons had tried to talk to Ravi about it, but he did not agree. On 22.08.2006 Ravi committed maar-peet and assaulted her nand with knife on her abdomen due to which she got injured and fell on the ground. She was present in the room at that time. She raised hue and cry, on which Ravi pushed her and threw knife in the room and ran away. Then she sent an information to her husband, who came to the house and after that her father-in-law also came. The incident is of around 10.00 a.m. A boy of the locality had gone to call her husband. Her nand was taken on a Thela by her father-in-law and her husband to the doctor for treatment. Police had come in the evening. She had shown them the place of occurrence and the place, where the knife was lying. Knife was taken into possession by the police after doing paper work. She had signed on the said document, the same is marked as Exhibit Ka-5 to the records.
In her cross-examination she states that she is illiterate but can sign. She has a younger sister named Kranti. The two sisters are married to two real brothers. Both marriages were solemnized together. Kranti was married with Raju. Both marriages were solemnized on the same day. She states that on the day of occurrence she was in her room. Mamta was also in the same room. Her children were playing in the courtyard. She has 3 children, the eldest child is about 7 years old. No one was present in the other room. In the adjacent room her sister was present. The other room is of her father-in-law and the adjacent room is of her sister. Her nand Mamta and her sister Kranti were present in the house on the day of occurrence. Her husband had gone to the shop at 8.00 a.m. Her father-in-law had gone to the shop at 9.00 a.m. She goes to her maika. She had gone about six months ago to her maika. She states that on the day of incident no one had come from her maika to take her, she goes and comes on her own. She denies the suggestion that her brother Om Prakash had come to the village to take her on the day of incident. She states that she has two nands. Her other nand was in her Sasural. Ravi had come to the house at about 10.00 a.m. She had greeted him when he came. He sat with her for some time. He did not talk much to her but started quarreling with his wife. To a question about what Ravi had talked to his wife, she answers that he said that will she go to which she replied that she will not and then fight started, on which he assaulted her with a knife. He did not beat her prior to assaulting her with the knife, but was saying as to whether she is going or not. To another question that what her nand was doing at the time of incident and what was she wearing, she states that she was standing and was talking to her and was wearing a salwar suit. She states that she has seen the knife, the blade was as long as the butt. After the incident she started crying and shouted but and no one from outside came. She sent an information through a boy of the neighbourhood. Her husband reached the house at about 11.00 a.m. and then her father-in-law came. He dever also came with her father-in-law. She states that she does not know, from where Ravi had brought the knife. On her raising shouts, her sister Kranti had come. Ravi had run away after the incident. Mamta fell down after receiving the knife injury. She did not do any first aid of the injury. Blood was coming out from the injury. The clothes were wet with blood. No treatment was given before her husband, father-in-law and dever had come. She along with her sister were with Mamta till the said persons arrived. Police had reached her house at about 5.00 p.m. She had told the police that on an attempt to catch Ravi he pushed her and ran away. She had told it to her father-in-law and her husband. Police had sealed the knife before her and had taken it. To a suggestion that Ravi did not come to the house and had not assaulted with a knife, she denies. To a further suggestion that her nand was a quarrelsome lady and her staying at the house was not liked by her, she denies. To a further suggestion that her brother Om Prakash was present in the house at the time of occurrence, she denies. She further denies the suggestion that on the day of occurrence a fight took place between her and Mamta and during the fight her brother intervened and assaulted Mamta with a knife, due to which she died on the spot. She further denies the suggestion that due to the said reason she did not raise a shout about the incident. She further denies the suggestion that she gave a wrong information to her husband and father-in-law. She further denies the suggestion that she has involved the name of Ravi in the present matter and informs her father-in-law and husband about it. She further denies that the evidence, which she is giving, is only to save her brother and denies the suggestion that she gave information late to her father-in-law and husband as a result of which the first information report was registered with delay just to save her brother. She further denies the suggestion that Mamta died on the spot and she was not taken to the hospital.
20. Kundal Lal P.W.-5 is the Sub-Inspector, who had conducted the inquest on the body of the deceased on the dictation of Rajesh Kumar Prajapati, the Additional City Magistrate-II, who had also signed on the same, the same is marked as Exhibit Ka-2 to the records. He has further proved the other documents relating to the papers prepared for the dead body, which were also signed by the Additional City Magistrate-II, the same were marked as Exhibit Ka-6 to Exhibit Ka-9 to the records.
In his cross-examination he stated that the first information report was registered at 16.40 hrs. at the police station and he reached the place of occurrence on the direction of the SHO concerned along with other police officials on their motorcycle. He states that when he had reached there, there was no official present, but later on ACM-II had arrived on the information from the police station. He had found the dead body outside the house, where the entire paper work was done. The dead body was then sealed and handed over to the police constable for post-mortem.
21. Dr. B.D. Bhaskar P.W.-6 conducted the post-mortem examination of the deceased. The injuries, opinion regarding cause of death and the time since death has already been noted above. He has proved the post-mortem report, which is marked as Exhibit Ka-10 to the records.
In his cross-examination he stated that the left lung was pale due to excessive bleeding. The post-mortem was conducted on 23.08.2006 at about 3.15 p.m. and the time since death was shown to be about one day prior and as such death might have occurred at about 3.00 p.m. on 23.08.2006. He stated that injury was caused by some pointed sharp edged weapon. He further stated that Mamta could have been saved if the blood collected in her abdomen, could have been taken care off. He states that the deceased could have taken food on 22.08.2006 about 4-5 hrs. prior.
22. S.K. Singh P.W.-7 is the Circle Officer and the Investigating Officer of the matter. He recorded the statement of the witnesses and prepared the recovery memo of the knife, which is marked as Exhibit Ka-6 to the records. He prepared the site plan, which is Exhibit Ka-11 to the records. He arrested the accused-appellant Ravi on 23.08.2006. He concluded the investigation and submitted a charge-sheet no. 232/2006, under Sections 498-A, 304-B, 302, 506 IPC and Section 3/4 of the Dowry Prohibition Act, the same is marked as Exhibit Ka-2 to the records.
In his cross-examination he stated that he reached the place of occurrence at 5.30 p.m. He found the dead body of the deceased at the door of the house. He found the ACM-II and other police personals along with the first informant, other family members of the deceased and public present there. He states that the knife was recovered from the room, where the incident took place on the pointing out of Smt. Vimlesh. He did not find blood at the place of occurrence as the incident had taken place in the morning. He did not collect blood stained mud. He states that Maya Ram had told him that Ravi assaulted Mamta with knife and information about it was given to him by his daughter-in-law and his wife. He further states that Maya Ram had told him that Mamta died on the way while being taken to the hospital, but did not tell him that she was taken back to the house from the way in between. He further states that Maya Ram did not tell him as to the mode, by which Mamta was taken to the hospital. To a suggestion that he has done the investigation while sitting at the police station and the investigation is not proper and a false charge-sheet has been submitted against accused Ravi, he denies. To a further suggestion that accused Ravi has been falsely implicated in the present, he denies.
23. The accused Ravi in his statement recorded under Section 313 Cr.P.C. has stated that he has been falsely implicated in the present matter. He further states that his wife used to fight with him and did not discharge her duty as a wife. She used to be under the guidance of her father and mother and used to stay in her maika often. She had left him and had gone alone and did not return back and he also did not go to her. On 23.08.2006 he was taken by the police from Balkeshwar. At the police station he came to know about the death of Mamta. He does the work of repairing punctures. He did not make any demand of dowry. He and his in-laws are poor persons.
He did not lead any defense evidence.
24. Since the learned counsel for the appellant has confined his argument on the question of sentence only, this court is not examining the truthfulness and the veracity of the statements of the witnesses and is neither examining the issue regarding the death of Smt. Mamta nor the case of the defense as suggested to the witnesses.
25. Section 304-B of the Indian Penal Code, 1860 reads as under:
"304-B: 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."
26. The necessary ingredients of Section 304-B IPC are as follows:
(1) The death of the woman was caused due to burns or bodily injury or due to unnatural circumstances.
(2) The death should be within seven years of marriage.
(3) It is shown that soon before her, the victim was subjected to cruelty or harassment by her husband or any relative of the husband.
(4) The cruelty or harassement was for or in connection with any demand for dowry.
(5) The cruelty or harassment is shown to have been meted out to the woman soon before her death.
27. Dealing with the cases laws relied upon by the learned counsel for the appellant this court after going through them is not at all impressed about the point canvassed before it as the said case laws do not at all apply in the present matter.
The first case relied upon is Rajesh Pandey (supra) was a case in which the Apex Court has reduced the sentence as awarded by the trial court and affirmed by the High Court to eight years under Section 304-B IPC. The sentence in the case as awarded has been reduced by the Apex Court. No guidelines have been prescribed in the same.
The second case relied upon is Manoj (supra) was a case in which the trial court had awarded life imprisonment to the accused under Section 304-B IPC which on an appeal was reduced to 10 years imprisonment by the High Court. The appeal against the same was filed before the Apex Court where one of the arguments was to consider reducing the sentence from 10 years to 7 years, which was not accepted and the appeal was dismissed.
In the third case of Deepak (supra) the conviction of the appellant was under Section 302 IPC for life imprisonment by the High Court by reversing the judgment and order of acquittal. The accused therein was acquitted of the charges levelled against him by the trial court which was reversed by the High Court and he was convicted for offence under Section 302 IPC. An appeal was preferred against the said judgment of conviction by the High Court before the Apex Court in which the case was of a single sword-blow given by the accused on the deceased which caused his death. It was argued that the case would fall under Section 304 Part II IPC and not under Section 302 IPC, which was accepted by the Apex Court and the conviction was altered from 302 IPC to 304 Part II IPC and the sentence was ordered to be undergone to the period of custody already undergone.
In the fourth case Suresh @ Kala (supra) the conviction and sentence was recorded under Section 302 IPC to life imprisonment by the Trial Court. The appeal to the High Court was dismissed which was challenged before the Apex Court. The said case was a case of a single injury. The Apex Court came to the conclusion that the case would come under Section 304 Part I IPC rather that under Section 302 IPC and granted the benefit to the accused by converting his conviction from Section 302 IPC to Section 304 Part I IPC and sentenced hm to 10 years rigorous imprisonment.
28. The last two case laws relied by the learned counsel for the appellant relate to offences under Section 302 IPC wherein it was a case of a single blow. Although in the present case also, the case is of a single knife blow, but the same would stand on a different footing as that of the said two cases as the present case is of dowry death for which consistent evidence of demand of dowry and torture is on record.
29. It is not to be lost sight off that the present case is a case of dowry death. The motive for the offence is that of non-fulfillment of the demand of dowry. The death is unnatural and within seven years of marriage, to be more precise after 3-1/2 years of marriage.
30. The Apex Court has in the case of Hem Chand Vs. State of Haryana : (1994) 6 SCC 727 held that in a case under Section 304-B IPC, awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.
31. In the present case the appellant has been in jail since 23.08.2006 and has served out about 14 years and 4 months (without remission) and there is no special and rare feature attracting maximum punishment.
32. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC sentence the appellant to 12 years' (twelve years') rigorous imprisonment and the sentence imposed by the trial court under Section 304B I.P.C. is hereby set aside. The other convictions and sentences passed by the trial court are, however, confirmed.
33. In the result, the appeal is partly allowed and the judgment of the trial court is modified to the above extent.
34. The lower court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action.
35. The party shall file computer generated copy of such judgment downloaded from the official website of High Court Allahabad before the concerned Court/Authority/Official.
36. The computer generated copy of such judgment shall be self-attested by the counsel of the party concerned.
37. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the judgment from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal,J.) (Ramesh Sinha,J.)
Order Date :- 11.1.2021
Naresh