Allahabad High Court
State Of U.P. vs Balram on 2 March, 2021
Equivalent citations: AIRONLINE 2021 ALL 242
Bench: Alok Singh, Virendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 10 Case :- U/S 378 CR.P.C. No. - 176 of 2015 Applicant :- State of U.P. Opposite Party :- Balram Counsel for Applicant :- Govt. Advocate Counsel for Opposite Party :- Anjali Dubey,Rajiv Mishra,Soniya Mishra Connected with Case :- CRIMINAL APPEAL No. - 863 of 2015 Appellant :- Jagjiwan Respondent :- State of U.P. Counsel for Appellant :- Jamal Ahamad Khan,Anjali Dubey,Ashok Kumar "Mishra Baled,Rajiv Mishra,Soniya Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Alok Singh,J.
Hon'ble Virendra Kumar Srivastava,J.
Criminal Appeal No. 176 of 2015 has been filed under Section 378 Code of Criminal Procedure,1973 (hereinafter referred as 'Code') by the State of Uttar Pradesh whereas Criminal Appeal no.863 of 2015 has been filed under Section 374 (2) of the Code by the appellant- Jagjiwan.
Both the aforesaid appeals have been preferred against the judgment and order dated 10.07.2015, passed by Additional District and Sessions Judge, Court no.5, Lakhimpur Kheri, in Sessions Trial no.1170 of 2003, arising out of Case Crime No.157 of 2001 under Sections 498A,304B,302 I.P.C. and Section 3/4 of the Dowry Prohibition Act whereby appellant-Jagjiwan (hereinafter referred as 'appellant-accused') of Criminal Appeal No.863 of 2015, has been convicted for the offence under Section 304-B I.P.C. for 10 years rigorous imprisonment and respondent/Balram (hereinafter referred as 'respondent-accused') of Criminal Appeal under Section 378 Cr. P. C. No. 176 of 2015 has been acquitted.
Since both the aforesaid criminal appeals have been preferred against the aforesaid judgment and order, with the consent of learned counsel for both the parties, both appeals have been heard jointly and are being decided by the common judgment.
Prosecution case, in brief, is that deceased /Smt.Bindey Devi, sister of Bhagwat Saran (P.W.-1), was married with appellant-accused/ Jagjiwan. Respondent-accused/ Balram is father of the appellant-accused/Jagjiwan.Deceased/Smt. Bindey Devi died in her matrimonial house alongwith her son Master Harendra aged about 3 years on 25.06.2001 at about 11.00 a.m. due to burn injury. Bhagwat Saran ( P.W.-1) lodged First Information Report ( Exbit Ka-1) on 26.06.2001 at about 17.05 hrs., alleging therein that the deceased- Smt. Bindey Devi was married with appellant- accused five years ago and sufficient dowry was given to appellant-accused but appellant-accused, respondent-accused and co-accused Pyare Lal (grandfather of appellant-accused) were not satisfied with the said dowry and they used to demand a motorcycle. It was further alleged that due to non-fulfillment of said demand, they used to torturer, harass and beat the deceased-Smt. Bindey Devi. He ( P.W.-1) had brought his sister to his house but on the advise of same respected people he had sent his sister (deceased) to her matrimonial house. It was also alleged that on 25.06.2001 at about 11.00 a.m., appellant-accused, respondent-accused and co-accused Pyare Lal poured kerosene oil at the deceased and set her on fire. Son of the deceased/ Master Harendra,who was 3 years old looking his mother was being burnt, clung her and also died due to burn injury with his mother.
On the said information a case was registered and an inquest proceedings of both deceased i.e. Smt. Bindey Devi and Master Harendra was conducted by Executive Magistrate/Naib Tehsildar, Chetram Pal. Dead body of both the deceased was sealed and sent with relevant records for postmortem to District Hospital Lakhimpur Kheri where Dr. Ramesh Singh (P.W.-2) and Dr. Shamsuddin conducted the postmortem examination of both the deceased on 27.06.2001 and prepared postmortem reports ( Ext. Ka-4 and Ext. Ka-5). According to Dr. Ramesh Singh (P.W.-2), there was 100% burn injury on the body of the deceased-Smt. Bindey Devi whereas superficial deep burn injury was found on the body of Master Harendra. According to him, both the deceased had died 2 days ago i.e. on 25.06.2001 at about 11.00 a.m. due to said anti-mortem burn injury .
Dy. S.P. Darbari Singh, Investigating Officer (P.W.-5), visited the place of occurrence, prepared site plan (Ext. Ka-8) and after conclusion of the investigation, filed a charge-sheet (Ext. Ka-9) against the appellant-accused/Jagjiwan and co-accused /Pyare Lal and charge-sheet (Ext. Ka-10) against respondent-accused/ Balram before the concerned Magistrate, who after taking cognizance, since the offence was exclusively cognizable by the court of Sessions, after providing copies of the relevant records to accused persons, committed the case for trail to the court of Sessions, Lakniimpur Kheri.
Appellant-accused, respondent-accused and co-accused Pyare Lal were charged for the offience under Sections 498A, 304B, 302 I.P.C and 3/4 of the Dowry Prohibition Act by the trial court to which they denied and claimed for trial.
Prosecution, in order to prove its case, examined Bhagwat Saran ( P.W.-1), Dr. Ramesh Singh (P.W.-2), Ram Saran Giri (P.W.-3), constable Head Moharir Man Singh (P.W.-4) and Dy S.P. Darbari Singh( P.W.-5). It has also placed reliance on the documentary evidence, written report (Ext. Ka-1) and inquest reports of Smt. Bindey Devi and Master Harendra alongwith relevant records prepared for postmortem examination ( Ext. Ka-2, Ext. Ka-3 and Ext. Ka-11 to Ext. Ka-22), postmortem report of both deceased (Ext. Ka-4 and Ext. Ka-5), F.I.R chik and G.D. Report ( Ext. Ka-6 and Ext. Ka-7), Site Plan ( Ext. Ka-8) and chargesheets (Ext. Ka-9 and Ext. Ka-10) .
During trial co-accused Pyare Lal had died and the trial against him was abated.
After conclusion of prosecution evidence, statement of the appellant-accused and respondent-accused were recorded by the trial court wherein they denied the entire prosecution story and stated that they had been falsely implicated .Accused-appellant further stated that at the time of occurrence the deceased-Smt.Bindey Devi was alone at his house and by bolting the door inside the house, committed suicide by pouring kerosene oil on her and his son Master Harendra, who was sleeping in the same room, had also received burn injury and died. He further stated that deceased-Smt.Bindey Devi was quick tempered and on her advice he was residing separately from his parents.
Accused-respondent stated that since deceased wanted to reside separately he, after marriage of appellant-accused/ jagjiwan with deceased-Smt.Binidey Devi, separated them and was residing separately from appellant- accused/jagjiwan. He further stated that deceased was quick tempered . He also stated that deceased-Smt. Bindey Devi and appellant-accused/ Jagjiwan were residing in House no.749 whereas he was residing with his wife and father in House no.748 and he had no concern with appellant-accused Jagjiwan. He also stated that death information of the deceased was given by the appellant-accused at the concerned police station; Bhagwat Saran ( P.W.-1) was present at the time of inquest proceeding as well as funeral ceremony but after due deliberation and consultation a false case was registered.
In rebuttal to the prosecution story, Kripal Giri (D.W.-1) was examined by the defence.
After conclusion of the trial, trial court, vide impugned judgment and order,convicted and sentenced the appellant-accused/ jagjiwan whereas acquitted the respondent-accused Balram as above.
Aggrieved by the said judgment, appellant-accused has preferred Criminal Appeal no.863 of 2015 whereas State of U.P. has preferred Criminal Appeal under Section 378 Cr.P.C. no. 176 of 2015 against the acquittal of the respondent-accused.
Heard Sri Rajeev Mishra, learned counsel appearing for appellant-accused and for respondent-accused and Sri Pracheesh Pandey, learned Additional Government Advocate for the the State.
In Criminal Appeal no. 863 of 2015, Sri Rajiv Mishra, learned counsel for the appellant-accused has submitted that although the appellant-accused is innocent and has been falsely implicated as the deceased was quick tempered and had committed suicide with her son and the trial court, without considering the material and evidence available on record, convicted and sentenced the appellant -accused but he is not pressing the appeal on merits or demerit of factual aspect of the prosecution case.
Learned counsel further submitted that as the appellant-accused was young at the time of occurrence, having no criminal history and is languishing in jail since 10.07.2015, a lenient view may be adopted by reducing his sentence for the period undergone.
Per contra,learned Additional Government Advocate, vehemently opposing the submission made by learned counsel for the appellant-accused, submitted that in this matter death of the deceased and her son was caused due to burn injury by the appellant-accused, hence no leniency is required in this matter. He further submitted that punishment of 10 years as awarded to the appellant-accused by the trial court is sufficient which requires no interference and the appeal filed by the appellant-accused is liable to be dismissed.
In criminal Appeal under Section 378 Cr.P.C. No. 176 of 2015 , learned Additional Government Advocate for the State/ Appellant has submitted that respondent-accused/Balram is father-in-law of the deceased and specific allegation has been made by the prosecution witnesses that he, alongwith appellant-accused and co-accused/ Pyare Lal, used to demand motorcycle as dowry, due to its non-fulfillment he alongwith other co-accused used to harass and torture the deceased and caused death of deceased and her son. He further submitted that indulgement and active participation of the respondent-accused in the said occurrence has been proved by the prosecution evidence beyond reasonable doubt but learned trial court without any specific and cogent reason, has acquitted respondent-accused as such the impugned judgment and order, so far as it relates to acquittal of the respondent-accused/ Balram, is illegal, improper and liable to be set aside.
Per contra, Sri Rajiv Mishra, learned counsel appearing for respondent-accused, vehemently opposing the submission made by learned Additional Government Advocate, submitted that First Information Report was lodged by delay of more than 24 hours without any explanation. He further submitted that respondent-accused is innocent and has been falsely implicated only because he is father-in-law of the deceased whereas he was residing separately from the deceased as the deceased-Smt. Bindey Devi was quick tempered. Learend counsel also submitted that alleged demand of motorcycle as dowry was not made by the respondent-accused/ Balram.
Learned counsel further submitted that a general allegation was made against all the male members of his family i.e. against respondent-accused, his son (appellant-accused) and his old aged father co-accused Pyare Lal. He further submitted that impugned judgment so far as it relates to the acquittal of the respondent-accused/ Balram, it is justified and legal and requires no interference.
We have considered the rival submission made by learned counsel for the both the parties and perused the record.
Since learned counsel for the appellant-accused in Criminal Appeal No.863 of 2015 has not made any submission on the merit of his conviction and has submitted only for lenient view on the point of sentence, hence it is to be examined whether impugned judgment and order so far as it relates to acquittal of respondent-accused/ Balram is justified or not?
It is settled principle of law that suspicion howsoever is grave can not take place of proof beyond reasonable doubt. Further, it is also settled principle of law that if two views are possible from the evidence adduced by the prosecution, the view, favourable of the innocence of accused, should be adopted.
Three Judges Bench of Hon'ble Supreme Court in Chunthuram vs. State of Chhattisgarh, (2020) 10 SCC 733 where the conduct of witnesses was unnatural and two views were possible from the prosecution story, has held as under :
"18. We might also reiterate the well-established principle in criminal law which propagates that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and the other to their innocence, the view favourable to the accused should be adopted."
Further in addition to above, It is also settled principle of law that the accused will be presumed as innocent unless and until the prosecution has succeeded to prove its case beyond reasonable doubt and the presumption of innocence of accused is further strengthened if he is acquitted by the Trial Court after considering the material evidence available on record. In appeal against acquittal the prosecution has to show that gross mistake has been committed by the Trial Court in appreciating the evidence on record or in application of settled principle of law.
Hon'ble the Apex Court in Surajpal Singh and others Vs. State of Punjab, AIR 1952 SC 52 held as under :-
"It is well-established that in an appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons." (Emphasis supplied) Admittedly, respondent-accused/ Balram is father-in-law of the deceased- Smt.Bindey Devi. In this case not only appellant-accused/ jagjiwan (husband of the deceased) and respondent-accused/ Balram were implicated but Pyare Lal, grandfather of the appellant-accused/ jagjiwan was also implicated with general allegation of demand of dowry, harassment and dowry death of the deceased.
Hon'ble the Supreme Court, discussing the object and reasons of Dowry Prohibition Act, 1961 as well as Dowry Prohibition (Amendment Act), 1984 and taking cognizance of possibility of false implication of some other relatives of husband of the deceased in Kans Raj vs. State of Punjab, (2000) 5 SCC 207, has held as under :
"A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their overenthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
In Naresh Kumar vs. State of Haryana (2015) 1 SCC 797, in a case where appellant's mother and brother were acquitted but only appellant (husband) was convicted for dowry death of his wife, on plea raised by appellant that his case was at par with his mother and brother, three judges bench Hon'ble Supreme Court, dismissing the appeal, has held as under:-
"As regards the claim for parity of the case of the appellant with his mother and brother who have been acquitted, the High Court has rightly found his case to be distinguishable from the case of his mother and brother. The husband is not only primarily responsible for safety of his wife, he is expected to be conversant with her state of mind more than any other relative. If the wife commits suicide by setting herself on fire, proceeded by dissatisfaction of the husband and his family from the dowry, the interference of harassment against the husband may be patent. Responsibility of the husband towards his wife is qualitatively different and higher as against his other relatives." (Emphasis supplied) Now coming to the facts of the case again, admittedly F.I.R. was lodged after 24 hours and neither Bhagwat Saran (P.W.-1) nor Ram Saran Giri (P.W.-3) are the eye witnesses. Prosecution has not placed any evidence to prove any role of appellant-accused or respondent-accused in causing the death of his own son Master Harendra. In the F.I.R. it has been mentioned that Master Harendra (son of the deceased- Smt. Bindey Devi), seeing his mother was being burnt, clung with her and died due to severe burn injury. This version of the F.I.R. shows that Bhagwat Saran (P.W.-1) had seen the occurrence although he is not eye witness. Thus, although the cause of death of Master Harendra is not disputed but so far as the manner of his death, P.W.-1 has stated only on the basis of his own presumption or anticipation. In cross-examination Bhagwat Saran (P.W.-1) has specifically stated that appellant-accused/Jagjiwan used to demand motorcycle and due to non-fulfillment of the aforesaid demand he also used to beat the deceased-Smt. Bindey Devi. Respondent-accused/Balram belongs to rural area and was illiterate. It is not a case of prosecution that said motorcycle had been demanded by respondent-accused/ Balram whereas appellant-accused/jagjiwan had specifically stated in his statement under section 313 of the Code that respondent-accused/ Balram was residing separately from the deceased-Smt.Bindey Devi and appellant-accused/ jagjiwan.
Kripal Giri ( D.W.-1) has also stated that after one year of marriage of deceased-Smt. Bindey Devi with appellant-accused/ Jagjiwan,they were living separately in the house of one Mohan, uncle of appellant-accused/ Jagjiwan. He also stated that at the time of occurrence respondent-accused/Balram was not present there and he had gone to village Khamaria. He further stated that when he reached at the place of occurrence, he found that fire was caught to the house of Mohan, uncle of appellant-accused/ Jagjiwan and people, present there, were breaking the door of room where the deceased and her son were present. Nothing has came out in his cross-examination which favours the prosecution story.
Record shows that no septate allegation has been made by the prosecution against respondent-accused/Balram. In this case not only respondent-accused but his father and his son were also implicated for demand of dowry, harassment, torture and dowry death of deceased.
In view of the facts and circumstances of this case and also in the light of law laid down by Hon'ble Supreme Court Kans Raj (supra) Naresh Kumar (supra) Surajpal Singh (supra) and chunthuram (supra), we are of the view that prosecution evidence so far as it relates to respondent-accused/ Balram, is not reliable and trustworthy and consequently prosecution has failed to prove its case beyond reasonable doubt against him.
The impugned judgment and order so far as it relates to acquittal of the respondent-accused/ Balram is well reasoned and well discussed, it requires no interference and is liable to be affirmed.
Now coming to the question of sentence, awarded against appellant-accused/ jagjiwan, whether sentence passed by trial court is just and proper or not ?
Appellant-accused/ Jagjiwan has been convicted for the offence under section 304 B I.P.C. only for ten years.
Section 304B I.P.C provided that any person who is accused of 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.
Learned counsel for the appellant-accused has submitted that lenient view is required to be adopted in favour of appellant-accused/Jagjiwan because the deceased/ Bindey Devi was quick tempered and had committed suicide with her son by setting her a blaze. He further submitted that the occurrence had taken place in the year 2001 i.e. 20 years ago, appellant-accused/ jagjiwan was young at the time of occurrence, he has no criminal history, he is law abiding person and is languishing in jail more than 6 years.
In India no guidelines has been provided by the Legislature for determination of quantum of sentence. Judiciary, especially Hon'ble Supreme Court, has evolved the theory of proportionality in awarding the sentence, subject to minimum sentence provided by the Legislature. There are several factors, although not exhaustive, which may be taken into consideration for awarding quantum of sentence, for example; gravity and seriousness of offence, age and numbers of offenders, age and number of deceased including injured persons, nature of weapons used in offence, educational and social background of accused, nature of injuries caused to deceased or injured persons, criminal antecedents of accused, motive, cause or intention of offence, weapons carried by deceased or injured persons if any, injuries caused to accused person or any member of his side if any, and duration of pendency of trial or appeal.
In Ramashraya Chakravarti vs. State of Madhya Pradesh AIR 1976 SC 392, reducing the sentence of young accused, aged about 30 years, convicted for offence under Section 409 I.P.C., from two years to one year, has observed as under:-
"In judging the adequacy of a sentence the nature of the offence, the. circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts. Trial courts in this country already over-burdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice pre-sentence investigation may be of great sociological value. Through out the world humanitarianism is permeating into penology and the courts are expected to discharge their appropriate roles"
Since learned counsel for the appellant-accused/ jagjiwan, in Criminal Appeal no.863 of 2015, has not put any submission on merit, impugned judgment and order, so far as it relates to conviction of the appellant-accused/Jagjiwan, is liable to be affirmed.
Looking into the facts and circumstances of the case while maintaining the conviction of the appellant-accused/ jagjiwan for the offence under Section 304-B I.P.C., we are of the view that period of sentence awarded against the appellant-accused/ jagjiwan is required to be modified by reducing it to 7 years rigorous imprisonment.
In view of the above, the impugned judgment and order, so far as it relates to the acquittal of respondent-accused/ Balram, is affirmed and the Criminal Appeal U/S 378 Cr. P. C. No. 176 of 2015 (State of U.P. Vs. Balram) is hereby dismissed whereas the impugned judgment and order, so far it relates to the conviction of appellant- accused/ jagjiwan, is affirmed but the sentence awarded against him is reduced from 10 years to 7 years .
Accordingly, the impugned judgment and order is modified to the aforesaid extent and Criminal Appeal no. 863 of 2015( (Jagjiwan Vs. State of U.P.) is partly allowed.
Office is directed to send lower court record alongwith copy of this judgment to the trial court for information and compliance.
Order Date :- 02.03.2021 dk/