(Reserved)
Court No. - 76
Case :- CRIMINAL APPEAL No. - 2375 of 2018 Appellant :- Dhirendra Bajpai @ Dheeru And Another Respondent :- State of U.P.
Counsel for Appellant :- Jitendra Prasad Mishra Counsel for Respondent :- G.A.
Hon'ble Ajai Tyagi,J.
1. This appeal has been preferred by the appellants against the judgment and order dated 20.3.2018, passed by Additional Sessions Judge, Court No.2, Kanpur Nagar, in Session Trial No.175 of 2015 (State vs. Dhirendra Bajpai @ Dheeru and another) arising out of Case Crime No.611 of 2014 under Sections 498-A, 304-B IPC and Section 4 of Dowry Prohibition Act, 1961 (herein after referred to as 'the Act, 1961') Police Station-Barra, District-
Kanpur Nagar, whereby the learned trial court has convicted and sentenced the appellants under aforesaid sections and awarded three years R.I. and fine of Rs.2,000/- under Section 498-A IPC, in default of payment of fine they shall also undergo one month additional imprisonment, ten years imprisonment under Section 304-B IPC and awarded two years imprisonment for the offence under Section 4 of the Act, 1961 and fine of Rs.3,000/- and in default of payment of fine, they shall also undergo one month additional imprisonment.
2. Brief facts of the case are that first information report was lodged by informant Gokaran Prasad (PW1) on 9.10.2014 that her daughter got married with Dhirendra Bajpai on 18.5.2014 in which he has spent Rs.5 lakh. In-laws of his daughter were not satisfied with the dowry given in marriage. When his daughter Uma Devi came to her parental house, she told her husband-Dhirendra Bajpai, her brother (jeth) Mukta Bajpai, bua-saas Kunti Devi, mother-in-law Ranno Devi, Maternal Uncle and Rishi Kumar used to demand motor-
cycle, gold-chain as additional dowry and used to torture her for not meeting out the demand. They all used to say that do not return to their house without above said articles otherwise we will kill you. He tried to make them understand and her- in-laws said that they had committed mistake and it will not be repeated in future. Husband of his daughter (Appellant No.1) and jeth-Mukta Bajpai came and took his daughter to her matrimonial home. After that, his daughter stated to him on phone that all the above family members of her husband including the husband have again started the demand of motor-cycle and gold-chain repeatedly and give beating and torture to her. On 8.10.2014, all the above persons killed his daughter. On the basis of above report, Case Crime No.611 of 2014 was registered at P.S.-Barra, Kanpur Nagar, under Sections 498-A, 304-B, 323, 506, 302 IPC read with Section 34 IPC and section 3/4 of the Act, 1961. Charge- sheet was submitted against Dhirendra Bajpai, Surendra Bajpai @ Mukta, Smt.Ranno Devi. Learned trial court framed charges against above accused persons. After trial, learned trial court convicted Dhirendra Bajpai and Ranno Devi under Section 498-A and 304-B IPC as well as Section 4 of the Act, 1961. Maximum sentence awarded to them under Section 304-B IPC was for a period of 10 years. Hence, this appeal.
3. Heard Shri Jitendra Prasad Mishra, learned counsel for the appellants, Shri Arun Kumar Singh, learned AGA appearing on behalf of the State and perused the record.
4. Learned counsel for the appellants has submitted that there is no material evidence against the appellants regarding any demand of dowry or any cruelty against the deceased. It is also submitted that two witnesses of fact, namely, Gokaran Prasad (PW1) and Geeta Devi (PW2) are produced by prosecution. PW1 is father of the deceased and PW2 is mother of the deceased. Both the witnesses have failed to establish any demand of dowry or cruelty towards the deceased. It is also submitted that in their statements under Section 313 Cr.P.C., the appellants have clearly stated that after the marriage, the deceased was in her matrimonial home only for a few days. It is argued that in fact, deceased was in love with one Amit and wanted to marry him. Therefore, she was not satisfied with the husband- appellant No.1. She committed suicide after some talk with Amit on telephone. Appellants have nothing to do with the death of the deceased. Investigating Officer did not collect the call-detail report of deceased and Amit. It is also submitted that there cannot be any presumption of dowry-death. In this case, postmortem report also shows that there was no antemortem injury on the body of the deceased, therefore, there was no question of torture on the part of the appellants. Dhirendra Bajpai (A-1), the husband of the deceased, is languishing in jail for the past more than seven years after considering the period of remission.
Hence, no case is made out against the appellants.
5. Per contra, Shri Arun Kumar Singh, learned AGA appearing for the State, has submitted that deceased was married with the appellant No.1 on 18.5.2014 and she died on 8.10.2014. Hence, she died just after six months of her marriage. There is specific allegation against appellants in FIR that they used to demand motor-cycle and gold-chain as additional dowry and for not meeting out the demands, deceased was harassed and tortured to the extent that she committed suicide. Learned AGA also submitted that PW1 is father and PW2 is mother of the deceased. Both these witnesses have supported the prosecution case and stated that appellants were demanding additional dowry and due to non- fulfillment of their demand, they used to beat and torture her. Therefore, the committal of suicide was due to demand of additional dowry and torture. Hence, prosecution case is fully proved and appeal is liable to be dismissed.
6. Postmortem report is proved by Dr.Manoj Kumar Srivastava (PW4), who had conducted the postmortem of the deceased.
Antemortem injuries in the postmortem shows the ligature mark of 32cm x 1cm around the neck of the deceased. There is only Injury No.2, which is abrasion only, which cannot be said to be the result of any physical torture. Hyoid-bone of deceased was found intact. Hence, it is proved that it was a case of suicide. Although, suicide is also covered within the purview of dowry-death.
7. So far as question of demand of additional dowry is concerned, as per the prosecution case, it is demanded in the form of motor-cycle and gold-chain by the appellants. Gokaran Prasad (PW1) and Geeta Devi (PW2), the witnesses of fact, who are father and mother of the deceased, respectively, have told the demand of motor-cycle and gold-chain, no other article is said to be demanded by the appellants. Learned trial court lost its sight from the fact that both the above said articles, i.e, motor-cycle and gold- chain, were of no use of Smt.Ranno Devi (A-2), mother-in-law of the deceased. Direct beneficiary of these two articles was only the husband of the deceased, namely, Dhirendra Bajpai (A-1). Therefore, if the said demand of additional dowry in the form of motor-cycle and gold-chain is seen from the angle of the beneficiary of the demand, there is nothing on record against the appellant No.2-Smt. Ranno Devi. No overt act is shown on the part of the appellant No.2. In my considered opinion, in absence of any overt act and not being the direct beneficiary of articles demanded as additional dowry, nothing remains on the record against Smt.Ranno Devi (A-2). There is no evidence against appellant No.2, how she could be the beneficiary of motor-cycle and gold- chain and what overt act is done by her to secure the articles demanded as additional dowry. There remains only general allegations against Smt.Ranno Devi. Hence, Smt.Ranno Devi (A-2) is wrongly convicted and sentenced by the trial court and appeal is liable to be allowed against her.
8. As far as the conviction of husband of the deceased Dhirendra Bajpai (A-1) is concerned, he could be the direct beneficiary of motor-cycle and gold-chain. In Surinder Singh vs. State of Punjab [1999 (1) Crimes 4296], it is held that husband being the direct beneficiary can be inferred to have caused life of wife so miserable that she was compelled to commit suicide. In this perspective, learned trial court has rightly appreciated the evidence as against husband of the deceased. There is no infirmity in the findings of trial court against the appellant No.1, but in the facts and circumstances of the case, sentence awarded to Dhirendra Bajapi of ten years under Section 304-B IPC is harsh.
9. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of UP [(2004) 7 SCC 257] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the principle of proportionately. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically.
10. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream.
11. In the case in hand, no antemortem injury-marks were found in postmortem. It is established case that deceased committed suicide. Keeping in view the manner of commission of crime and also keeping in view the period of detention already undergone by Dhirendra Bajpai(A- 1), his sentence under Section 304-B IPC is reduced from ten years to seven years. For rest of the offences, sentence will remain the same.
12. Accordingly, the appeal is partly allowed. The conviction of Dhirendra Bajpai (A-1) is upheld with the modification of sentence as aforesaid.
13. The appeal pertaining to Smt.Ranno Devi (A-2) is hereby allowed and she is acquitted to all the charges levelled against her.
14. Copy of this judgment be sent to court concerned for ensuring its compliance.
(Ajai Tyagi, J.)
Order Date :- 23.09.2021 LN Tripathi