..<:£rx f ,* - •% ' 'tfl :i w^iS:-'^ i'fee?^' ;L l^k' "f ;" 1>"X\ HIGH COURT OF CHHATTISGARH. BILAS1 CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha, J. CdminaLAppeaLNo. 58^of 2003 Manoj Kumar & others Vs. State of Chhattisgarh JUDGMENT For consideration -_; Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA Sd/- OuefJustice »,, (;a •IH t|lfi w PosLforJudgment 2-7/09/2008 --AJ Sd/- Z-P./09/2008' RT~ •-••--1/. < .—fe!-^^"'^'4^ HIGH COURT OF CHHATTISGARH. BILASPUR CORAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. APPELLANTS RESPONDENT Criminal Appeal No. 585 of 2003 1. Manoj Kumar, aged 21 years, S/o Radhelal Sonkar, R/o. Gudiyaripara, Arang, Distt.- RaipuF (C.G.) 2. Radhelal, aged about 50 years, S/o. Heeraram Sonkar, R/o Gudiyaripara, Arang, Distt.- Raipur (C.G.) 3. Smt. Munni Bai (Dhamin), aged about 45 years, W/o Radhelal Sonkar, R/o Gudiyaripara, Arang, Distt.- Raipur Versus State of Chhattisgarh (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Arun Kochar, Counsel for the appellants. Mr. Praveen Das, Dy, Govt. Advocate, for the State. JUDGMENT (29.09.2008) Following judgment of the Court was delivered by Syn i 1 KumarSinha, J. (1) This appeal is directed against the judgment of conviction and order of sentence dated 9.4.2003 passed by the Sixth Additional Sessions Judge, Raipur in Sessions Trial No. 277/2002, whereby, the appellants have been convicted under Section 304-B I.P.C. and sentenced to undergo imprisonment of life and to pay a fine of iL......__- %i ..,<i»(Ea<;sesl !'t'aiSI!liBis:8*8ss' V 3 •^s^/ ^-,-^yf"" Criminal Apueal No. 585 of2003 Rs.5,000/-, in default of payment of fine to further undergo R.l. for 3 months. (2) Deceased- Madhu Bai was married to appellant No.1, Manoj Kumar, on 5 of May, 2001. She was residing in her in-laws place. She consumed poison in the intervening night of 9-10 of March, 2002. A merg intimation was lodged on 10th of March, 2002. The Investigating Officer reached to the place of occurrence on the same day. He prepared inquest (Ex.-P/2) on the body of the deceased and sent the dead body for its postmortem to Medical College, Raipur, where the postmortem examination was conducted by Dr. Ulhas Gonnade (PW-11),who prepared his report Ex.-P/12. The Autopsy Surgeon opined that the cause of death was asphyxia on account of poisoning. (3) In further investigation, plain soil and blood stained soil were seized after scratching from the wall of the room of the deceased under Ex.-P/4. Bedding of the deceased was seized under Ex.-P/5 and viscera of the deceased was seized under Ex.-P/9. Clothes of the deceased were also seized. Out of the above seized articles, viscera & bedding of the deceased, containing vomiting, were sent for their chemical examination to F.S.L., Sagar under Ex.-P/21 and soil & the clothes were sent for their chemical examination to F.L.S., Raipur under Ex.-P/23. The report from the F.S.L, Raipur was received under Ex.-P/25, according to which, blood stains were not found on the sample of soil, whereas, blood stains were found on the clothes of the deceased. However, no report of viscera could be i. %^s^^^ i tA& s; ^ 'S 8 ^..vy '"^^SSS^" Criminal Appeal No. 585 of2003 received from F.S.L. Sagar. Based on such investigation, a First Information Report (Ex.-P/17) was registered against the husband, father-in-law, mother-in-law and Jeth & Jethani of the deceased. .1 (4) After completion of usual investigation, the charge-sheet was filed in the Court of Judicial Magistrate First Class, Raipur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Sixth Additional Sessions Judge, Raipur, who conducted the trial and convicted and sentenced the appellants as aforementioned. Whereas, two co-accused persons namely- Chandrashekhar Sonkar and Bhagwati Bai, wife of Chandrashekhar Sonkar {Jeth & Jethani) were acquitted. (5) The appellants are the husband, father-in-law & mother-in-law of the deceased. The conviction of the appellants is based upon the testimonies of Madanlal (PW-1, father of the deeeased), Sharad Bai (PW-2, mother of the deceased), Chotelal Sonkar (PW-7), Tijiya Bai (PW-8) and Naresh Kumar Sonkar (PW-9). (6) Mr. Arun Kochar, learned counsel for the appellants, argued that it was not a case of dowry death, therefore, the conviction of the appellants u/s 304-B I.P.C. cannot be sustained. Alternatively, he argued that the facts and circumstances of the case would show that it was not a case calling full sentences to be awarded to the appellants. He submitted that the sentences of life imprisonment are too harsh, which may be reduced to the minimum sentence prescribed for commission of an offence punishable u/s 304-B I.P.C. He relied on the judgments of the Apex Court rendered in the '..!?'"•°?!, ^ -.^.J' ''^'GWSS^'" Criminal Aupeal No. 585 of 2003 *,»H4^:<:3^^a jsfSS!S3S5ev ^i?i:s?^^^^ ^i~S^?^-S'-S^rtiB^y matters of Sanf Rai -Vs- State of Haryana. (1998) 8 SCC 605; Vanga Sriniwas -Vs- Public Prosecutor. High Court of A.P., (2007) 3 SCC (Cri) 627 & Ashok Kumar -Vs- State of Harvana. f2007) 9 SCC 433. (7) On the other hand, Mr. Praveen, learned Dy. Govt. Advocate for the State, opposed these arguments and supported the judgment passed by the Sessions Court. (8) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (9) For the dowry death, it is necessary to establish that the death of the woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances witjiin seven years of her marriage. It is further necessary to establish that soon before her death she was subjected to cruelty or harassment by her husband or any relative or her husband for, or in connection with, any demand for dowry. (10) In the present case, if we look into the evidence part, it is established that the death of the deceased occurred in the intervening night of 9-10 of March, 2002, which was within a period of 10 months from the date of marriage and her death has occurred otherwise than under normal circumstances because the Doctor opined that the cause of death was asphyxia as a result of poisoning. Apart from the above, it comes in the evidence of PW-1, Madanlal father of the deceased, that his daughter was being .^.•'sSSSQt-f,^ j vy (f' Crimmal Appeal No. 585 of20Q3 treated with cruelty as her ornaments and clothes were kept by the accused persons. Appellant- Manoj Kumar used to come in drunken condition. He used to beat his daughter. The appellants were pressurizing his daughter for bring a motorcyde and Rs.50,000/- as dowry and they always used to threat her daughter. PW-2, Sharad Bai, mother of the deceased, has also deposed regarding treating the deceased with cruelty and also regarding demand of dowry. She has categorically stated that Madhu used to tell her that the appellants say that she should bring motorcycle and money, otherwise, she will be killed by pouring hot water or kerosene oil on her. (11) The above evidence of father and mother of the deceased is corroborated by the evidence of PW-7, Chotelal Sonkar, who deposed that two months prior to the date of incident, appellant- Radhelal has sent a letter to the parents of the deceased writing that the deceased was ill. On the second day, he along with Gopal, Madanlal (PW-1) went to village Aarang. They found that Madhu was all right. When they asked to appellant Radhelal, he said that Madhu had not taken food since last day, therefore, he had called them. When they inquired from Madhu, she told that the accused persons were pressurizing her to bring Rs.10,000/- as dowry and for that they beat and harass her. She told that the husband also comes in late night in drunken condition and he also beats her. (12) PW-8, Tijiya Bai & PW-9, Naresh Kumar Sonkar, have also stated regarding demand of motorcycle and money in dowry by the ^^^"""'^s: Criminal ApoealNo. 585 of2003 •tB3E3i^ appellants and harassing the deceased on account of non- fulfiltments of such demand by her. (13) Though these witnesses have been put to lengthy cross examination but the defence has not been able to elicit any such circumstance, on which, either their evidence may be discarded or it may be said that they are making false allegations against the appellants. (14) Mr. Kochar has arguedabout the minor contradictions coming in the inter-se evidence of these witnesses. According to us, those contradictions are not material contradictions, particularly affecting thecredibility of the witnesses. When we are examining a case with reference to commission of a particular offence, we are to look into the relevancy of the facts in relation to the said offence and if in appreciation, it is found that the ingredients ofthe offence concerned are established on the un-impeached evidence of the witnesses pressed into motion by the prosecution, the conviction based upon such appreciation cannot be held to be vitiated. We find that on the basis of evidence of the above witnesses, all the ingredients of the offence punishable u/s 304-B I.P.C. are made out in this case and the conviction of the appellants u/s 304-B I.P.C. can well be sustained. (15) As far as adequacy of the sentence is concerned, in the matter of Sant Raj (supra), in a case punishable u/ss 304-B, 306, 498-A & 201 I.P.C., the appellant/husband was sentenced to undergo imprisonment for life u/s 304-B I.P.C. by the 2 Courts fe Criminal Appeal No. 585 of 2003 below. In the appeal, the Apex Court while maintaining the conviction of the appellant u/s 304-B observed that the sentence of life imprisonment imposed against the appellant u/s 304-B I.P.C. was excessive. The said sentence was reduced to the minimum i.e. 7 years rigorous imprisonment and it was further ordered that sentences on other counts would run concurrently. (16) In the matter of Vanga Sriniwas (supra), the appellant/husband was convicted u/s 304-B I.P.C. Considering the fact that the alleged occurrence took place on 24.1.1997 and the appellant-accused has undergone the agony for more than 10 years, the Apex Court held the a sentence of 7 years would meet the ends ofjustice, and the appellant was convicted accordingly. (17) In the matter of Ashok Kumar (supra), the appellant was convicted u/s 304-B I.P.C. and was sentenced to undergo imprisonment for life. His appeal was dismissed by the High Court. In the appeal to the Supreme Court, so far as penalty is concerned, the point raised was that in any view of the matter, the trial Court was not justified in awarding extreme penalty of life imprisonment to the appellant. The Supreme Court while maintaining the conviction of the appellant observed that in the facts and circumstances of the case, the ends of justice would be met in case the sentence of imprisonment awarded against the appellant is reduced to 7 years rigorous imprisonment. Accordingly, the criminal appeal was allowed in part and, while upholding the conviction of the appellant, his 'B*:.. Criminal Appeal No. 585 of 2003 sentence of imprisonment awarded against him was reduced to 7 years rigorous imprisonment. (18) We have carefully considered the second argument advanced by Mr. Kochar in light of the above judgments of the Apex Court. We are of the view that what would be an appropriate sentence in a particular case cannot be based upon a straightjacket formula. It depends upon the facts and circumstances of each cases. The principle of proportion between crime and punishment is governed by the "Docthne ofjust deserl". The doctrine is the foundation of a criminal sentence which is ultimately awarded for a punishment to the wrong doer. What one really deserves should be the punishment for having committed a crime is the underlying principle. The punishment must not be disproportionately great is a corollary of "just deserf' which is governed by the same principle which says that there cannot be a punishment without guilt and the basic element behind the principle is the proportion between crime and punishment. The lesser is the gravity of the crime, the smaller would be the punishment and the greater is the gravity of the crime, the higher would be the punishment, subject to the ancillary factors for determining the proportion of the same, though all further subject to the statutory obligations specifically provided by law in force. (19) In case on hand, the appellants, who are the husband, father- in-law and mother-in-law, are continuously in jail since 11.3.2002 and 14.3.2002 and have undergone the agony for a period of more than 6 % years till date. Therefore, in our considered opinion, the -^.-;a^.^ 18!EB;¥ ii8 fl Criminal Appeal No. 585 of2003 ^y ends of justice would be served, if their sentence of life imprisonment is reduced to the sentence of 7 years rigorous imprisonment. (20) Accordingly, the appeal is partly allowed. While maintaining the conviction ofthe appellants u/s 304-B I.P.C., the sentence of life imprisonment and fine of Rs.5,000/- awarded to the appellants are set aside. Finally, they are sentenced to undergo rigorous imprisonment for 7 years. They shall be entitled to set-off the period already undergone by them. Sd/- ChiefJustice Sd/- Sunil Kumar Sinha Judge ^ va':ti /