Karnataka High Court
Ganesh Babu @ Ganesh vs The State Of Karnataka By Mico Layout on 10 June, 2020
Bench: B.Veerappa, Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2020
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CRIMINAL APPEAL NO.528/2014 (C)
BETWEEN:
GANESH BABU @ GANESH,
S/O LATE RAJANNA,
AGED ABOUT 38 YEARS,
R/AT NO.16, 2ND FLOOR,
4TH MAIN, ROYAL SHELTER,
DEVARACHIKKANAHALLI,
BENGALURU-560085.
...APPELLANT
(BY SRI BALAKRISHNA M.R., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY MICO LAYOUT POLICE STATION,
BENGALURU CITY-560 089,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU-560 001.
...RESPONDENT
(BY SRI VIJAY KUMAR MAJAGE, ADDITIONAL
STATE PUBLIC PROSECUTOR)
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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE, 1973, SEEKING TO
SET-ASIDE THE JUDGMENT AND ORDER OF CONVICTON AND
SENTENCE DATED 01/04.04.2014 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT-VIII, BENGALURU, IN
S.C.NO.990/2009 CONVICTING THE APPELLANT FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 304B OF
THE INDIAN PENAL CODE, 1860, AND SECTIONS 3 AND 4 OF
THE DOWRY PROHIBITION ACT AND SENTENCING HIM TO
UNDERGO LIFE IMPRISONMENT WITH FINE AND DEFAULT
CLAUSE ETC.,
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The appellant - Accused No.1 filed the present appeal against the Judgment & Order of conviction and sentence dated 01/04.04.2014 made in S.C. No.990/2009 passed by the Presiding Officer, Fast Track Court-VIII, Bengaluru City, convicting him for the offences punishable under the provisions of Sections 498A and 304B of the Indian Penal Code ('IPC' for short) r/w Sections 3 and 4 of the Dowry Prohibition Act ('D.P. Act' for short) and sentencing him to undergo imprisonment for life for the offence punishable 3 under Section 304B of IPC and Rigorous Imprisonment for three years for the offence punishable under Section 498A of IPC and Simple Imprisonment for six months for the offence punishable under Section 3 of the D.P. Act and Simple Imprisonment for two months for the offence punishable under Section 4 of the D.P. Act with fine and default clauses.
2. The factual matrix of the case is as under:
According to the case of the prosecution, Sri E. Sathish (PW.1) had filed a complaint against the Accused No.1, his mother (Accused No.2) and his sister (Accused No.3) contending that the deceased - Niranjini is his elder sister and the daughter of his younger aunt. About four years prior to the incident, Niranjani had joined the Police Department as a Police Constable and was working in Mico Lay-out Police Station. After completion of the training in Dharwad, the deceased Niranjini was working in R.T. Nagar Police Station. At that time, she fell in love with Accused 4 No.1 - Ganesh Babu and intended to marry him. The family members of the deceased - Niranjini initially were against the marriage and upon insistence by her, the marriage was solemnized with Accused NO.1 - Ganesh Babu on 25.3.2007 at Nandekeshwara Kalyana Kshetra at Malleswaram, Bengaluru. Since from the date of marriage, Niranjini and her husband were residing at Royal Shelter, 4th Main, No.16, 2nd Floor, Bengaluru. Out of their wedlock, a male child was born and child was aged about one year five months as on the date of the incident.
3. It is further case of the prosecution that the deceased - Niranjini used to tell the complainant and other family members that her husband has no avocation and he was extracting her salary every month and has pawned her gold ornaments and subjected her to mental and physical harassment. On 21.6.2009, the deceased - Niranjini came to the house of the complainant and stayed for a day and at that time, she has stated that her husband has not 5 been working and neither used to bring provisions nor pay rent of the house. Since 5 to 6 months prior to the incident, the deceased - Niranjini was taking care of household expenses out of her salary. That on one day, the Accused No.1 - Ganesh Babu called the complainant to Byatarayanapura bus stand and questioned whether the deceased - Niranjini staying with him by neglecting him and the child and abused the deceased in filthy language.
4. It is further case of the prosecution that on the next day, the complainant along with his younger brother and the deceased - Niranjini went to the house of the mother-in-law of Niranjini to bring the child. But Niranjini's mother-in-law (Accused No.2) did not give the child. On the next day, the complainant left the deceased Niranjini in the house of her husband along with his grand- mother Smt. Parwatamma. Niranjini also complained that her husband/Accused No.1 was in the habit of drinking 6 alcohol every day and abusing her in filthy language and he used to harass her stating that she has not brought any dowry. Therefore, she could not live comfortably and in peace in her home.
5. It is further case of the prosecution that on 19.7.2009 at about 3.30 p.m., the grand-mother of the complainant -Smt. Parvathamma informed the complainant over telephone that the deceased - Niranjini committed suicide by hanging after 11.00 p.m. on the previous day i.e., 18.7.2009. Immediately, the complainant rushed to the house of the deceased - Niranjini and in his presence, the Police broke open the door and found that the deceased Niranjini has committed suicide by hanging to the ceiling fan and she has left behind a death note that due to harassment of her husband - Ganesh Babu (Accused No.1), mother-in-law (Accused No.2) and sister-in-law (Accused NO.3), she has committed suicide.
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6. On the basis of the complaint by PW.1, the jurisdictional Police registered Crime No.646/2009 for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the D.P. Act and has initiated investigation. The Investigating Officer, after completion of the investigation, filed the charge sheet against the accused persons. The Committal Magistrate after perusal of the charge sheet, had taken cognizance of the offence and registered case against the accused in CC No.22457/2009. Thereafter, the matter was committed to the Prl. City Civil & Sessions Judge, Bengaluru and thereafter, the matter was made over to the Fast Track Court for trial.
7. In order to prove its case, the prosecution has examined in all 18 witnesses - PWs.1 to 18 and got marked the documents - Ex.P1 to Ex.P26 and material objects - Mos.1 to 12.
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8. When the statements of accused Nos.1 to 3 were recorded under Section 313 of the Code of Criminal Procedure, they have denied all the incriminating circumstances appearing against them. The accused led the defence evidence and examined DWs.1 to 4 on their behalf and got marked the documents Ex.D1 to Ex.D8(a).
9. Based on the arguments advanced and the material documents produced, the trial Court framed four points for consideration. On considering both oral and documentary evidence, the trial Court by the impugned Judgment & Order of conviction and sentence dated 1/4-04- 2014 convicted the appellant - Accused No.1 for the offences punishable under Sections 498A and 304B of the Indian Penal Code r/w Sections 3 and 4 of the D.P. Act and sentenced him to undergo imprisonment for life for the offence punishable under Section 304B of IPC and Rigorous Imprisonment for 3 years for the offence punishable under 9 Section 498A of IPC and Simple Imprisonment for six months for the offence punishable under Section 3 of the D.P. Act and Simple Imprisonment for two months for the offence punishable under Section 4 of the D.P. Act with fine and default clauses and acquitted Accused Nos.2 and 3.
10. Being aggrieved by the impugned Judgment and Order of conviction & Sentence passed by the Presiding Officer, Fast Track Court, the present appeal is filed by the appellant/Accused No.1.
11. The respondent - State has not filed any appeal against the acquittal of Accused Nos.2 and 3 for the offences punishable under Sections 498A, 304B of the Indian Penal Code and Sections 3 and 4 of the D.P.. Act.
12. We have heard the learned counsel for the parties to the lis.
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13. Sri Balakrishna M.R., learned counsel for the appellant - Accused No.1 while taking us through the material on record and the impugned judgment of the trial Court, has contended with vehemence that the prosecution failed to prove the case and connection of the appellant - Accused No.1 with the dowry to attract Section 304B of the Indian Penal Code. He would contend that the complainant
- PW.1 is cousin brother of the deceased - Niranjini and he is an interested witness and the averments made in his statement does not depict any material with regard to dowry harassment. He would further contend that Ex.P3 - the alleged Death Note is created by the Police and prosecution has not obtained the opinion of the expert. He also contended that the death took place at 11.00 p.m. on 18.7.2009, but Ex.P3 was seized only on 19.7.2009 as per Ex.P2. He would further contend that admittedly the respondent - State has not filed any appeal against the acquittal of Accused Nos.2 and 3 and the trial Court has 11 recorded a finding that there are no incriminating material against Accused Nos.2 and 3 relating to harassment or dowry demand. Conviction of the appellant/Accused No.1 for the offence punishable under Section 304B of the Indian Penal Code and order of sentence to undergo imprisonment for life, is without any basis and erroneous.
14. Learned Counsel for the appellant further contended that the alleged death note - Ex.P3 does not disclose the demand of dowry or harassment and contended that no evidence is placed before the Court that the deceased was subjected to cruelty or dowry harassment by the Accused No.1 soon before her death and the material on record does not attract the offence punishable under Section 304B of the Indian Penal Code and thereby the trial Court committed an error in imposing imprisonment for life and the same cannot be sustained. 12
15. Learned counsel for the appellant would further contend that PWs.4 and 5, who are the father and mother of the deceased has not stated anything about demand of dowry and only stated with regard to harassment and they are interested witnesses and their evidence cannot be taken into consideration to punish the appellant - Accused No.1. He would further contend that PW-6 is brother of the deceased and PW.7 is villager and they are interested witnesses and nothing has been elicited in their evidence to attract the harassment, demand of dowry etc., He would further contend that PWs.10 and 13 are colleagues of the deceased - Niranjini and they were working with her in the same Police Station at the time of her death and therefore, naturally they are interested witnesses. Their evidence also cannot be taken into consideration to punish Accused No.1 for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.
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16. Learned counsel for the appellant would further contend that the offence punishable under Section 304B of the Indian Penal Code relating to dowry death shall be investigated by the Police Officer not below the rank of Assistant Commissioner of Police. Admittedly in the present case, PW.18 - Police Inspector has conducted the entire investigation and not the Assistant Commissioner of Police (ACP) and PW.17 - ACP only filed the charge sheet. Therefore, investigation was defective and the entire investigation is invalid. It is further contended that the prosecution failed to prove the case beyond reasonable doubt so as to attract the offences punishable under the provisions of Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the D.P. Act. Therefore, he contended that the material on record clearly depicts that the prosecution has not made out any case to convict the Accused No.1 for the aforesaid offences. Therefore, he sought to allow the appeal by setting aside the impugned 14 Judgment & order of conviction and sentence passed by the Presiding Officer, Fast Track Court.
17. In support of his contentions, learned counsel for the appellant has relied upon the following judgments:
1. Girish Singh -vs- State of Uttarakhand [2019 SCC OnLine SC 897 .. paragraphs 33, 34 and 35]
2. Kamesh Panjiyar @ Kamlesh Panjiyar -vs- State of Bihar [AIR 2005 SC 785 ... paragraph 11)
18. Per contra, Sri Vijayakumar Majage, learned Additional State Public Prosecutor sought to justify the impugned Judgment and Order of conviction and sentence passed by the Fast Track Court. He contended that PWs.5 and 6, the mother and brother stated on oath that there was a constant harassment by the Accused No.1 to the deceased from the date of the marriage till her death. He would further contend that admittedly the accused have not taken any defence and the appellant/Accused No.1 has not 15 entered into the witness box and even while recording the statement of the accused No.1 under Section 313 of the Code of Criminal Procedure, he has not taken any defence except denial of all the charges. Accused No.1 was arrested by the jurisdictional Police 3 days after the incident and he has not discharged his initial burden under the provisions of Section 106 of the Indian Evidence Act though he was residing with the deceased as on the date of the incident. He would further contend that, if really, he has not harassed as alleged in the complaint - Ex.P1, he should have first approached the Police and the same has not been done. The Presiding Officer, Fast Track Court considering both oral and documentary evidence in a proper perspective, has proceeded to pass the impugned Judgment and Order of conviction & sentence.
19. Learned Addl. SPP further submitted that though it is contended by the learned counsel for the appellant that investigation has to be conducted by the Police Officer not 16 below the rank of ACP, the same cannot be a ground for acquittal. In the present case, investigation made by PW-17 - Assistant Commissioner of Police and filed the charge sheet and admittedly the final report is not challenged by the accused No.1. It is not open for counsel for the appellant to urge the same before this Court, when the same has already been considered by the Fast Track Court. Even otherwise, it cannot be said that the Accused No.1 is liable to acquitted on the ground of defective investigation. This Court exercising the powers under the provisions of Section 374(2) of the Code of Criminal Procedure, cannot interfere with the well crafted judgment and order of conviction and sentence passed by the Presiding Officer, Fast Track Court. Therefore, he sought to dismiss the appeal.
20. In support of his contentions, learned Addl. SPP relied upon the judgment of the Hon'ble Supreme Court in 17 the case of R.A.H. Siguran -vs- Shankare Gowda reported in AIR 2017 SC 5141.
21. In view of the rival contentions urged by the learned counsel for the parties, the points that arise for consideration in the present appeal are:
(i) Whether the Presiding Officer, Fast Track Court is justified in convicting the appellant
- Accused No.1 for the offences punishable under the provisions of Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the D.P. Act ?
(ii) Whether the quantum of sentence imposed by the Fast Track Court calls for any modification by this Court, in the facts and circumstances of the present case ?
22. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record including the original records carefully.
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23. The entire case of the prosecution is that PW.1 has lodged complaint before the jurisdictional Police stating that the deceased Niranjini fell in love with Accused No.1 and though at the initial stage, the parents of the deceased opposed the marriage, upon her insistence, the marriage took place on 25.3.2007 and thereafter out of the wedlock, a male child was born and due to the constant harassment by Accused Nos.1,2 and 3, the deceased took a drastic step of committing suicide by hanging herself on 18.7.2009 and she has left behind the death note stating that the death is due to the harassment, cruelty and demand of dowry.
24. It is the specific case of the accused persons that there was no complaint against any of the accused soon before death of the deceased or any other earlier complaint and in fact the deceased Niranjini has entered into agreement with C.G. Ramesh and Asha Ramesh in respect of the immovable property for Rs.1 crores 4 lakhs and she has issued two cheques for Rs.25.00 lacs and Rs.10.00 lacs 19 and the cheques issued came to be dishonoured and therefore, she hanged herself. Absolutely there is no harassment or cruelty or dowry demand by any of the accused persons including Accused No.1.
25. The accused persons did not take any specific defence either in the statement recorded under Section 313 of the Code of Criminal Procedure or in separate statement, but adduced the evidence of DWs.1 to 4 and marked the documents - Ex.D1 to Ex.D8(a).
26. In order to re-appreciate the material on record including the oral and documentary evidence, it is relevant to consider the evidence of the prosecution witnesses.
27. PW.1 - E. Satish, who is the complainant reiterating the averments made in the complaint, has deposed that the deceased by her death note - Ex.P3 has specifically stated that Accused Nos.1 to 3 are responsible for her death. He further stated that when he went to the 20 house of the accused along with the deceased, Accused Nos.1 to 3 abused the deceased in filthy language. He also stated that there was a constant harassment to the deceased by Accused Nos.1 to 3. He further deposed in the cross-examination that he was not aware of the fact that the deceased Niranjini has entered into the agreement for Rs.1 crore 4 lakhs in respect of the house at Jayanagar with C.J. Ramesh and Asha Ramesh and has issued cheques for Rs.25.00 lacs and Rs.10.00 lacs to them and the said cheques were dishonoured and also stated that he is not aware of the legal notice issued to the deceased dated 24.6.2009. He further deposed that the handwriting in Ex.P3 and Ex.P6 is one and the same by the deceased Niranjini. He also denied that the accused has not harassed the deceased or never demanded dowry.
28. PW.2 - K.B. Prakash is the witnesses to Ex.P2 - mahazar and Ex.P4 - inquest mahazar. He only stated that when he went to the house of the accused No.1 on 21 19.7.2009 at about 4.30 am., the deceased was hanging to the fan. The spot inspection mahazar is as per Ex.P2 and Ex.P2(b) is his signature and in his cross-examination, nothing has been elicited to disbelieve the date of the incident and the death note.
29. PW.3 - Shivakumar is the witness to the inquest mahazar, who stated that as per Ex.P4, the mahazar was drawn in presence of the Tahasildar and Ex.P4(a) is his signature and the notice issued by the Tahasildar as per Ex.P5 and Ex.P5(a) is his signature. He has only deposed that he came to know that the deceased died because of the harassment made by her husband (Accused No.1), mother-in-law (Accused No.2) and sister-in-law (Accused No.3). In the cross-examination, he denied the contents of Ex.P4 and Ex.P5.
30. PW.4 - K.R. Murthappa, the father of the deceased has stated on par with PW.5 that the deceased 22 fell in love with Accused NO.1 and though at the inception, they objected for the marriage, but upon insistence by the deceased Niranjini, they accepted for the name and performed the marriage. He also deposed that at the time of the marriage, one gold ring and Rs.50,000/- was given to the 1st accused through the deceased and he has stated that it was customary. He further deposed that the deceased died due to the constant harassment by Accused Nos.1 to 3 and he has denied the suggestion that he has not paid any amount to the deceased Niranjini on 2-3 occasions as alleged.
31. PW.5 - Smt. Kamalamma is mother of the deceased and according to the learned counsel for the accused, she is a star witness. She has deposed that as per the customs, one gold ring and Rs.50,000/- was given to the accused No.1 at the time of the marriage and the deceased took the extreme step of suicide because of the constant harassment by Accused Nos.1 to 3. 23
32. PW.6 - Ashok is the younger brother of the deceased and PW.7 is the younger brother of PW.5 and they have deposed in similar fashion that the deceased was working as a Police constable and she told that she was in love with one Ganesh and intended to marry him, but they were not agreable at the inception, but the deceased insisted for the same and having no alternative, the marriage of the deceased was solemnized with Accused No.1. They further deposed that the accused started ill- treatment to the deceased after 1 ½ years, that too after the deceased gave birth to a male child. Because of ill- treatment, the harassment, snatching her salary every month by Accused No.1 and using filthy language against her, she committed suicide.
33. PW.8 - R.K. Pramod is the Medical Officer, who has conducted the post-mortem on the dead body of the deceased and the P.M. report is at Ex.P7. He deposed that he found ligature mark around the neck to the extent of 27 24 centimeters x 3 centimeters and the said ligature mark was anti-mortem in nature. He is of the opinion that the death was due to asphyxia as a result of hanging.
34. PW.9 - Smt. Indira is the Special Tahasildar of Bengaluru South, who has conducted inquest mahazar on the dead body of the deceased as per Ex.P4 in presence of panchas and relatives of the deceased and prior to conducting of the inquest mahazar, requisition was made by the Police as per Ex.P8.
35. PW.10 - Shwetha and PW.13 - Smt. Vijayalakshmi were the colleagues of the deceased Niranjini. They have deposed that they are the colleagues of the deceased and the deceased used to inform them that her husband was not working and was harassing that her salary was not sufficient to maintain the family and demanded to bring money from her parents. The deceased was taking care of the entire family expenditure. They 25 have further stated that the deceased has not filed any complaint keeping the interest of her child and further deposed that the deceased has left the death note stating that due to the harassment of the accused persons, she committed suicide.
36. PW.11 - Bheemaram is the pawn broker, who has stated on oath that Accused NO.1 has pledged the gold ornaments in his shop and he has issued Ex.P9 and Ex.P10
- receipts. After a year of pledging the ornaments, the Police came to their shop and took the ornaments.
37. PW.12 - Sajjan Raj is another pawn broker. He has also deposed that he is acquainted with Accused No.1 and Accused No.1 has pledged some gold ornaments in his shop.
38. PW.14 - Hanumanthappa, who is the Police Constable at Mico layout Police Station deposed that on 20.7.2009 he went to Victoria hospital and received clothes 26 of the deceased and sari used by the deceased for hanging, after Post-mortem examination and produced them before the Police Inspector along with his report as per Ex.P14. He further deposed that on the same day, the Tahasildar gave diary to him and has produced the same before the Police Inspector as per Ex.P14.
39. PW.15 - S. Shivakumar is the Police Constable and he has deposed that on 19.7.2009 the Police Inspector asked him to take photos of the deceased Niranjini and accordingly, he went to Royal Shelter and took four photos as per Ex.P16 through the Digital camera.
40. PW.16 - K. Govindaraju is the Head Constable, who deposed that he has submitted the FIR, Ex.P17 to the Magistrate at his residence on 19.7.2009 at 10.45 p.m.
41. PW.17 - N. Nagaraj, ACP and Investigating Officer has deposed that on 21.7.2009 he took up the further investigation from the Police Inspector/CW.28 and 27 on 23.7.2009, he recorded the statements of Murthappa, Kamalamma, Mallikarjuna, Ashok, Palkshappa and Smt. Parvathamma and on the same day, he received the post mortem report as per Ex.P7 from the doctor. He also stated that on 31.7.2009, he received the marriage invitation card of deceased and Accused No.1 and on 1.8.2009, he recorded the statements of Vijayalakshmi (PW.14), Swetha (PW.10) and one Geetha and on 19.9.2009 after completion of investigation, he filed the charge sheet against the accused persons.
42. PW.18 - C.N. Janardhan, Police Inspector has deposed that on 19.7.2009 at 5.00 p.m., when he was in the Police Station, he received a phone call from the public informing the suicide of Woman Police Constable - Niranjini at the house of her husband. Immediately, he went to the house of the deceased - Niranjini along with his staff and found that the deceased - Niranjini had committed suicide by hanging to the ceiling fan by a sari in the bed room. He 28 broke open the door in the presence of panchas and entered into the bed room and saw the dead body in a hanging position. He lowered the dead body after taking the photos. He found a death note at Ex.P3 on the table in the bed room and seized the same under Ex.P2 mahazar in presence of panchas. He further deposed that PW.1 lodged the complaint as per Ex.P1 and thereafter he returned to the Police Station at 6.40 p.m. and registered a case in Crime No.646/2009 for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the D.P. Act and submitted the FIR to the Court as per Ex.P17. He prepared the rough sketch of spot of offence as per Ex.P19 and sent the dead body of the deceased - Niranjini to Bengaluru Victoria Hospital for post- mortem examination. He further deposed that he requested the Special Tahasildar as per Ex.P8 to conduct inquest mahazar. On the same day, his staff produced 29 accused Nos.2 and 3 before him along with their report at Ex.P13 and he arrested them.
43. PW.18 - Police Inspector further deposed that he recorded the voluntary statements of Accused Nos.2 and 3 and PW.14 has produced the clothes of the dead body (Mos.8 to11) and Ex.P6 - Diary before him after post- mortem examination. On 21.7.2009 his staff produced Accused No.1 before him and arrested him and recorded his voluntary statement and Accused No.1 lead him and panchas to Sajjanrao, Pawn broker shop and recovered the pledged articles - MOs.1, 3 to 5 and 7 under Ex.P22 mahazar. Thereafter, Accused No.1 lead him and panchas to Balaji Enterprises, situated at Mahalakshmi layout and recovered MOs.2 and 6 under mahazar - Ex.P23. He further deposed that he recorded the statements of PWs.11 and 12 and panchas and obtained Ex.P9 to Ex.P11 receipts from accused No.1. During the course of the investigation, PW.18 seized one mobile from PW.1 containing 30 conversations with accused NO.1, which was recorded in a CD marked as MO.12.
44. The trial Court considering Ex.P3 - Death Note and Ex.P6 - Diary maintained by the deceased, held that handwriting of the deceased is one and the same in Ex.P3 and Ex.P6 and the contents of Ex.P3 makes out a case that Accused No.1 harassed the deceased - Niranjini mentally and physically. The trial Court considering both oral and documentary evidence including Ex.D5 - Statement of Accounts; Ex.D6 - Extract copy of statement of accounts; Ex.D7 - Account copy; and Ex.D8 - Statement of accounts, has come to the conclusion that the prosecution proved beyond all reasonable doubt that the Accused No.1 ill- treated and harassed the deceased Niranjini mentally and physically after the marriage by demanding dowry and thereby, committed an offence punishable under Section 498A of the Indian Penal Code.
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45. The trial Court further held that the prosecution proved beyond all reasonable doubt that the mental and physical harassment by Accused No.1 drove the deceased - Niranjini to commit suicide within seven years of marriage and thereby, he committed an offence punishable under Section 304B of IPC. The prosecution further proved beyond all reasonable doubt that the Accused No.1 received gold ornaments and amount of Rs.50,000/- from the parents of the deceased and also demanded more dowry from her parents and thereby committed offences punishable under Sections 3 and 4 of the D.P. Act. Ultimately, the trial Court convicted Accused No.1, the husband of the deceased for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the D.P. Act and acquitted Accused Nos.2 and 3 for the said offences.
46. The material on record including the evidence of PWs.1 to 18, DWs. 1 to 4 and the documents - Ex.P1 to 32 Ex.P26 and the Material objects - Mos.1 to 12 clearly depict that the harassment to the deceased by the Accused No.1, thereby attracting the provisions of Section 498A and 304B of the Indian Penal Code and 3 and 4 of D.P. Act. It is also not in dispute that the marriage between the Accused No.1 and the deceased Niranjini is out of love. Though at the first instance, the parents of the deceased opposed the marriage proposed between the Accused No.1 and the deceased, ultimately at the instance of the deceased, the marriage was performed and out of the wedlock, a male child was born and now he is aged about 12 years. It is also not in dispute that a specific defence was taken by the accused that the deceased Niranjini had entered into agreement with one C.G. Ramesh and Asha Ramesh in respect of the house property at Jayanagar for an amount of Rs.1 crore 4 lakhs and she has issued cheques for Rs.25 lakhs and 10 lakhs, which came to be dishonoured. But the fact remains that the defence has not produced the 33 alleged agreement of sale executed in favour of the deceased and not examined the alleged vendors - C.G. Ramesh and Asha Ramesh. In so far as the dishonour of the cheques is concerned, DWs.2 to 4 , the Bank Managers have stated on oath that cheque issued by the deceased in favour of the alleged vendors came to be dishonoured as per Ex.D5 to D8 - statement of accounts. They have also spoken to about Ex.D1, the Xerox copy of the legal notice issued by the alleged purchasers.
47. In order to attract the provisions of Section 304B of the Indian Penal Code, a presumption can be raised only on the proof of the following five essentials:
a) Death of a woman took place within seven years of her marriage;
b) Such death took place not under normal circumstances;
c) The woman was subjected to cruelty and harassment by her husband or his relatives;34
d) Such cruelty or harassment was for, or in connection with, any demand for dowry; and
e) Such cruelty or harassment was soon before her death.
48. The expression 'soon before her death' used in the substantive Sections 304B IPC and 113B of the Evidence Act was considered by the Hon'ble Supreme Court in the case of Hira Lal -vs- State (Government of NCT of Delhi) reported in (2003)8 SCC 80, wherein at paragraph-8 it is held as under:
8. Section 304B IPC which deals with dowry death, reads as follows:
"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 35 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."
The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304B IPC, the essential ingredients are as follows:36
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:
"113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon 37 before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.--For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Penal Code, 1860."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death"
in Section 304B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must 38 have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.39
49. The provisions of Section 113B of the Evidence Act is also relevant for the case on hand. Both Section 304B of IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths.
50. The necessity for insertion of the two provisions stated supra has been amply analyzed by the Law Commission of India in its 21st Report dated 10.8.1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the Legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It in this background the presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304B IPC and the wording in the presumptive section 113-B of the Evidence Act, one of the essential ingredients, 40 amongst others, in both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment 'for or in connection with the demand of dowry'. Presumption under Section 113-B is a presumption of law.
51. It is relevant to state that principles for sentencing and proportionality/Balancing of Aggravating and Mitigating circumstances, have to be taken into consideration while imposing the capital punishment of life. The Hon'ble Supreme Court while considering the said principles in the case of State of M.P. -vs- Suresh reported in (2019)14 SCC 151, held at paragraphs 13 and 14 as under:
13. Therefore, awarding of just and adequate punishment to the wrongdoer in case of proven crime remains a part of duty of the court. The punishment to be awarded in a case has to be commensurate with the gravity of crime as also with the relevant facts and attending circumstances. Of 41 course, the task is of striking a delicate balance between the mitigating and aggravating circumstances. At the same time, the avowed objects of law, of protection of society and responding to the society's call for justice, need to be kept in mind while taking up the question of sentencing in any given case. In the ultimate analysis, the proportion between the crime and punishment has to be maintained while further balancing the rights of the wrongdoer as also of the victim of the crime and the society at large. No straitjacket formula for sentencing is available but the requirement of taking a holistic view of the matter cannot be forgotten.
14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of.42
52. Though the Learned counsel for the appellant has contended that in a case of dowry death, the investigation has to be conducted by the Police Officer not below the rank of ACP, in the present case, the same is conducted by the Police Inspector and therefore, it is faulty and defective investigation. The said contention cannot be accepted for the simple reason that when the charge sheet was filed, if the accused was aggrieved on account of faulty investigation, he was not prevented to take appropriate steps to challenge the same. Having accepted the charge sheet filed and having faced the trial, now he cannot take such defence that there was fault in investigation.
Therefore, the contention of the appellant - Accused No.1 cannot be accepted. Our view is fortified by the Judgment of the Hon'ble Supreme Court in the case of Dhanaj Singh
-vs- State of Punjab reported in AIR 2004 SC 1920, wherein the Hon'ble Supreme Court while considering the 43 provisions of Section 300 of the Indian Penal Code held at paragraphs 4,5,8 and 9 as under:
4. In reply, learned counsel for the State submitted that faulty investigation cannot be a ground to affect the credibility of the eyewitnesses. It is a fairly settled position in law that when witnesses are branded as partisan or inimical, their evidence has to be analysed with care and scrutiny. That has been done in the present case and both the trial court and the High Court have found the evidence to be credible. Even if the investigation was faulty, both the trial court and the High Court have acted only in the permissible way i.e. to weigh the evidence carefully and come to an independent conclusion. As rightly noted by the High Court, the investigation seems to be slipshod. The highly improbable stand that the complainant and his relatives killed the deceased who was their close relative can hardly be accepted even with a pinch of salt. Though the deceased and the complainant had criminal track records, that per se will not affect the evidence of witnesses if it is otherwise credible and cogent. Both the trial court and the High Court after analysing the evidence found it to be credible, cogent and trustworthy. The plea that the primary duty to 44 investigate the evidence is that of the police and when the police has given a clean chit, that should prima facie be accepted, is clearly without substance.
5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence.
But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. (See Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] )
8. The stand of the appellants relates essentially to acceptability of evidence. Even if the investigation is defective, in view of the legal principles set out above, that pales into insignificance when ocular testimony is found credible and cogent. Further effect of non-examination of weapons of assault or the pellets, etc. in the background of defective investigation has been considered in Amar Singh case [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] . In the case at hand, no crack in the evidence of the vital witnesses can be noticed.
9. Both the trial court and the High Court have analysed the evidence of PWs 2 and 3 with due care and caution keeping in view the correct legal 45 principles and have found the accused persons guilty. We find no scope for interference with the conclusions so arrived at in an appeal under Article 136 of the Constitution of India. The appeal is dismissed.
53. Our view is also fortified by the Full Bench Judgment of the Hon'ble Supreme Court in the case of V.K. Mishra vs- State of Uttarakhand reported in (2015)9 SCC 588, wherein at paragraphs 33 to 38, it is held as under:
33. Assailing the credibility of the investigation, inter alia, the following contentions were raised:
(a) There was no investigation about the classmates or friends from whom the identity of the writer of the letter could have been established;
(b) The investigating officer had neither tried to ascertain the date, time and place of movement of the deceased Archana during her stay at the house of her parents nor did he ascertain the 46 people who visited her when she was at home nor whom the deceased visited while she was there;
(c) Though in the letter it was stated that Archana's brother Santosh knew about the affair there was no investigation by PW 14 in this regard;
(d) The investigating officer did not make any effort to establish the identity of purported friend one Singh Sahib referred to in the letter nor any effort made to recover the letters mentioned in the said inland letter Kha-7/1.
Contending that the investigating officer made no efforts to conduct an impartial investigation, the learned Senior Counsel submitted that the investigating officer made no efforts to conduct impartial investigation which coupled with the embellishments in the prosecution case regarding the demand of dowry raise serious doubts about the prosecution case. The learned Senior Counsel further submitted that there is a serious lapse on the part of the investigating officer in ascertaining the truth which entitles the accused to urge the court to draw an adverse inference against the prosecution and 47 investigation under Section 114 Illustration (g) of the Evidence Act and placed reliance upon the judgments of this Court in Tomaso Bruno v. State of U.P. (2015) 7 SCC 178 and Mussauddin Ahmed v. State of Assam (2009) 14 SCC 541.
34. Refuting the contention of the appellants on the lapses in the investigation and contending that any lapse in the investigation does not affect the core of the prosecution case, the respondents have placed reliance upon the judgment of this Court in State of Karnataka v. K. Yarappa Reddy reported in (1999) 8 SCC 715, wherein this Court held as under: (SCC p. 720, para 19) "19. ... It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well- nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it.
Otherwise the criminal trial will plummet to the level of the investigating officers 48 ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case."
35. Inland letter Kha-7/1 was not discovered during investigation but the same was produced by the accused in a bail application filed on 29-8-1997. Thereafter on the request made by the accused, investigating officer was directed to investigate upon the same. As noticed earlier, the inland letter was not discovered during the investigation; but brother- in-law of Archana is said to have discovered the inland letter and also the letter allegedly written by Archana to her brother-in-law from the suitcase of deceased Archana. Brother-in-law who is said to have discovered those letters was not examined in the court. No explanation is forthcoming from the accused as to why the same was not handed over to 49 the investigating officer. We have also perused the original of the inland letter and the postal seal in the said letter was not clear. In his evidence PW 14 investigating officer had specifically stated that he tried to ascertain from which post office the inland letter was dispatched but he could not identify the same. When the seal on the inland letter was not clear, the investigating officer cannot be faulted in not conducting further investigation in connection with the said inland letter. The fact that it was produced on 29-8-1997 along with the bail application raises doubts about the genuineness of the said inland letter. When bail application was filed, by that time possibly there would have been legal advice and deliberations. The possibility of such an inland letter being fabricated to create evidence to make a possible defence cannot be ruled out and rightly the courts below recorded concurrent findings rejecting the said letter.
36. Deceased Archana was an educated girl. If really she was in love with a boy, she could have married him even against the wishes of her parents. As to the genuineness of the inland letter, as pointed out by the trial court, it is difficult to believe that deceased Archana had preserved the same so that it may reach the hands of her husband and her in- 50 laws. Considering the defence plea regarding the inland letter, the trial court rightly observed that it is natural that a sensible lady after marriage would not have kept it so safely.
37. Insofar as the letter allegedly written by the deceased to Rahul's brother-in-law, like two other documents, this letter was also not recovered during investigation but produced by the accused along with the bail application. Having written such a letter to her brother-in-law, it is strange that without posting the same, the deceased would have kept the letter in the suitcase. When confronted with the letter, PW 1 denied it to be in the handwriting of Archana. The accused had also not taken any steps to send the documents to handwriting expert for obtaining the opinion of the handwriting expert by summoning the admitted writings of deceased Archana. If the investigating officer had omitted to do the investigation regarding the documents produced by the accused in the court, the accused could have taken steps to prove the documents to substantiate their defence. Having not done so, the accused cannot turn round and contend that there were lapses on the part of the investigation which vitally affect the prosecution case.
51
38. The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on the part of the investigating officer cannot go against the prosecution. Interest of justice demands that such acts or omission of the investigating officer should not be taken in favour of the accused or otherwise it would amount to placing a premium upon such omissions.
54. On re-appreciation of the entire oral and documentary evidence on record, we are of the considered opinion that the reasoning assigned by the trial Court for convicting the Accused No.1 for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the D.P. Act, is just and proper, but not justified in imposing imprisonment for life under Section 304B of the Indian Penal Code. Accordingly, we answer 1st point raised in the present appeal in the affirmative holding that the Fast track Court is justified in convicting the appellant - Accused No.1 52 for the offences punishable under the provisions of Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the D.P. Act.
55. In the judgment relied upon by the learned counsel for the appellant in the case of Kamesh Panjiyar alias Kamlesh Panjiyar -vs- State of Bihar reported in AIR 2005 SC 785, the Hon'ble Supreme Court observed that "Death of the deceased - wife within seven years of marriage - No evidence showing that death of deceased was due to normal circumstances - Nor any material shown to explain injuries on neck of deceased in order to prove that death was normal - Plea of accused that possible cause of death was not ascertainable as per opinion of doctor - Not tenable - Evidence of witnesses established demand of dowry and ill-treatment of deceased shortly before date of occurrence - Offence of dowry death made out - conviction of accused made under Section 304B proper". The said 53 judgment is no way helpful to the appellant and it is against the case of the appellant.
56. In so far as the other judgment relied upon by the learned counsel for the appellant in the case of Girish Singh -vs- State of Uttarakhand reported in 2019 SCC OnLine SC 897 with regard to the principles laid down under Section 304B, we have no quarrel with the law laid down in the said judgment and the said judgment is made applicable to the facts of this case.
57. In so far as the judgment relied upon by the learned Addl. SPP in the case of R.A.H. Siguran -vs- Shankare Gowda reported in AIR 2017 SC 5141, wherein plea of invalidity of investigation though quashed by the High Court, the said order has been set aside by the Hon'ble Supreme Court and remanded the matter to the trial Court for trial and even investigation and final report filed was not interfered by the Hon'ble Supreme Court. The 54 said judgment is aptly applicable to the facts and circumstances of the case.
58. It is relevant to state at this stage, that on the same set of evidence of prosecution witnesses - PW.1 to 18, Ex.P.1 to 26 and Mos.1 to 12 stated supra, the trial Court by the impugned Judgment and order acquitted Accused Nos.2 and 3 holding that the prosecution has not made out any ground beyond all reasonable doubt that they harassed and demanded dowry from the deceased. The said order of acquittal in respect of Accused Nos.2 and 3 has reached finality.
59. Taking into consideration the mitigating circumstance that the marriage held between the deceased and the Accused No.1 is love marriage and out of the wedlock, a male child was born and further though in the present case, the prosecution has proved that the deceased died unnatural death hanging herself, but there is no direct evidence connecting the accused No.1 and there is no 55 charge under the provisions of Section 302 of IPC and as such the prosecution has not made out case for imposing harsher punishment of life imprisonment, we are of the considered opinion that imposing punishment of life imprisonment to the Accused No.1 is disproportionate to the gravity of crime and having arrived at the above conclusion, the quantum of sentence requires modification. The trial Court has awarded life imprisonment to Accused No.1 on being convicted for the offence punishable under Section 304B. For the offence under Section 304B of the Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life. Section 304B IPC thus prescribes statutory minimum sentence of seven years. While imposing the sentence, awarding extreme punishment of imprisonment for life under Section 304B of the IPC should be in rare cases and not in every case. In view of the mitigating circumstances noticed in the present 56 case stated supra and keeping in view the age of the appellant - Accused No.1 and the age of the child (10 years) born out of the wedlock between the accused No.1 and the deceased and the surrounding circumstances, the sentence awarded by the trial Court to the appellant - Accused NO.1 is liable to modified.
60. Our view is fortified by the latest judgment of the Hon'ble Supreme Court in the case of Kashmira Devi -vs- State of Uttarakhand reported in AIR 2020 SC 652, wherein at paragraphs 19,20 and 24 it is held as under:
19. In the present case, PW-1-Rajeshwari Devi, mother of deceased and PW-3-Bachan Singh, father of deceased has stated that deceased Urmila was harassed by her in-laws for bringing insufficient dowry. They have also stated that after the marriage, when deceased came to her parental home, she was complaining that her husband and in-
laws including father-in-law, mother-inlaw and others were demanding dowry. PW-1 further stated that deceased Urmila was beaten up by accused persons due to which, her eye was damaged and she 57 was operated. PW1 - stated that when deceased again went back to her parental home, on 02.02.2008, PW-1 had taken deceased to her in-laws house where, they were not even offered a glass of water and the accused persons enquired as to what they have brought with them. PW-1 told them that they were not in a position to fulfil their demands and after overnight stay, on 03.02.2008, PW-1 returned to her house. From the evidence of PW-1, prosecution has proved that "soon before the death", deceased was subjected to cruelty and harassment. When prosecution has established that deceased was subjected to dowry harassment "soon before the death" and that within seven years of marriage deceased Urmila had died an unnatural death, the presumption under Section 113-B of the Evidence Act is to be raised against the appellant that she caused the dowry death. Once the prosecution is able to establish the ingredients of Section 304B IPC, it is for the accused to rebut the presumption. But the accused have not adduced any reliable evidence to rebut the presumption. The evidence of DW-1 and DW-2 relating to the incident will not be sufficient when the incident is viewed keeping in perspective the evidence of prosecution relating to the demand for dowry preceding the actual incident. In fact, 58 when the deceased was shifted from Kota hospital, Srinagar to Dehradun hospital, PW-1 tried to accompany them but the accused refused to take PW-1 along. Not informing about the incident and refusal of the appellant and other accused to take PW-1 along with them to the hospital, are strong circumstances against the appellant.
20. In the above background, the justification for the reliance placed on the third dying declaration dated 13.02.2008 by the High Court is to be examined. The evidence of PW1, as noted, would disclose that when she first went to the Hospital in Srinagar, she found that the deceased was surrounded by her husband and in-laws while PW1, the mother of the deceased was not allowed to interact with her daughter. It is in that circumstance the said declarations dated 06.02.2008 and 07.02.2008 were recorded. Firstly, the statement dated 06.02.2008 was not recorded by a Competent Authority or an Officer but is recorded by the so-called Panchayat in the manner to aid the accused. Insofar as the second dying declaration dated 07.02.2008 it is no doubt true that it has been recorded after a communication being addressed to the Tehsildar and after being certified by the doctor that the deceased was mentally fit to make the declaration. Though the said requirements 59 are satisfied, the surrounding circumstances in which the statement was recorded while she was under the control of her in-laws. Such statements relied on by the appellant would not inspire confidence in the Court. In addition, it is noticed that the same is in the form of question and answer which could also be out of context depending on the manner in which the questions were put.
24. Having arrived at the above conclusion the quantum of sentence requires consideration. The High Court has awarded life imprisonment to the appellant on being convicted under Section 304B IPC. The minimum sentence provided is seven years but it may extend to imprisonment for life. In fact, this Court in the case of Hem Chand v. State of Haryana (1994) 6 SCC 727 has held that while imposing the sentence, awarding extreme punishment of imprisonment for life under Section 304B IPC should be in rare cases and not in every case. Though the mitigating factor noticed in the said case was different, in the instant case keeping in view the age of the appellant and also the contribution that would be required by her to the family, while husband is also aged and further taking into consideration all other circumstances, the 60 sentence as awarded by the High Court to the appellant herein is liable to be modified.
61. In view of the above, the 2nd point raised in the present appeal is answered in the affirmative holding that the quantum of sentence imposed by the Fast Track Court calls for modification by this Court, in the facts and circumstances of the present case. The Fast Track Court is not justified in imposing life imprisonment for the offence punishable under Section 304B of the Indian Penal Code and the same is disproportionate to the gravity of the crime.
62. For the reasons stated above, we pass the following:
ORDER
i) The Criminal Appeal is allowed in part.
ii) The impugned judgment of the trial Court in so far as convicting the appellant - Accused No.1 -61
Ganesh Babu for the offences punishable under Sections 498A and 304B of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, is upheld and affirmed.
iii) The impugned order of sentence passed by the trial Court imposing life imprisonment for the offence punishable under Section 304B of the Indian Penal Code, is modified and the sentence of imprisonment for life is altered by ordering the appellant - Accused No.1 to undergo Rigorous Imprisonment for a period of seven years six months, which shall include the period of sentence already undergone by the appellant. The fine as imposed and the default sentence is sustained.
iv) The impugned order of sentence passed by the trial Court for the offences punishable under Sections 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, is confirmed.
v) The sentences shall run concurrently. 62
vi) The parties to bear their own cost.
vii) The trial Court is directed to secure the presence of the appellant - Accused No.1 to serve the remaining period of sentence. Liberty is also reserved to the appellant to surrender before the trial Court within a period of one month.
63. In crafting this judgment, the erudition of Sri Balakrishna, learned counsel for the appellant and Sri Vijay Kumar Majage, learned Addl. SPP for the respondent - State, is commendable and the same is placed on record.
Sd/-
JUDGE Sd/-
JUDGE Gss/-