G COURT OF CHHATTISGARH . BILASPUR Hon’ble ShriRa‘eev Gu ta C.J. & ‘Hon’ble Shri Sunil Kumar Sinha J. CORAM: N 3%riminal Aggeal No. 411 of 2008 ‘ Chhoturam Densil Vs. State of Chhattisgarh & (Cohnected Cr.Rev. No. 428 of2008) i JUDGMENT For consideration $42M l §am§3 Kama!“ Smha 1 Jwgg [y , , \ HON’BLE SHRI JUSTICE RAJEEV GUPTA 4:3; Sdl- Chief Justice 7‘- Post for Judgment 14/02/201 o Sd/- SUNIL KUMAR SINHA Judge \ HIH \ \‘:\r I /‘ N HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Ra'eev Gu ta C.J. & N Hon’ble Shri Sunil Kumar Sinha J. Criminal Aggeal No. 41 1 of 2008 Chhoturam Densil, S/o Mohan Lal Densil, aged about 21 years,-R/o Wlage- Sonthi, Police Station- Sakti, District- Janjgir—Champa (C.G.) Versus APPELLANT State of Chhattisgarh, through District Magistrate, District~ Janjgir-Champa (C.G.) (Criminal AQ‘Qeal under Section 374 (2) of The Code of Criminal Procedure! ’ And RESPONDENT I Criminal Revision No. 28 or 2008 APPLICANT Complainant Pooran Lal, S/o Rambharos, aged about 45 years, Caste Satnami, R/o Village Bade Mudpar, Police Station Dabhra, District Janjgir—Cham'pa (C.G.) Versus ‘ ’ Chhoturam Densii S/o Mohaniai Dehsii,’ aged about 21 years i Kshatri Lal S/o Mohanlai Satnami, aged about 24 years 3. Mohan Lal S/o Faguram Satnami, aged about 60 years 4. Devantin Bai W/o Mohanlal Satnami, aged about56 years ‘ All residents of village Sonthi, Police Station Sakti, District- Janjgir-Champa (C.G.) 5. The State of Chhatiisgarh, through Police Station Sakti, District- Janjgir- Champa (C.G.) (Criminal Revision under Section 397 1 read with Section 401 of The Code of Criminal Procedurel RESPONDENTS 1 \ 4 . Cr.A. No. 41 1/2008 & Cr.Rev. No. 428/2008 > I Aggearance: Mr. Awadh Trlpathl Advocate for the appellant & respondents/accused persons In reVIsmn petmon Mr Govmd Ram Mm Advocate for the rewslon petitioner Mr Sudhtr Bajpal Dy. Govt. Advocate forthe State. JUDGMENT (26 .02.201 O) Following Judgment of the Court was delivered by Suml Kumar Smha, J (1) Appellant-Chhoturam Densil stands convicted u/ss 498—A & 304—B IPC and sentenced to undergo R.l. for 3 years and fine of Rs.100/— & R.l. for 7 yearsland fine of Rs.200/— with default sentences, respectively, with a further direction to run the sentences concurrently. (2) The conviction and sentences have been awarded by the, Additional Sessions Judge, Sakti, District Janjgir-Cha'mpa (C.G.) in Sessions Trial No. 43/2008 on 5‘“ ofApril 2008. (3) While convicting appellant-Chhoturam (husband of the deceased) as aforementioned, the other co-accused persons namely ’Kshatri Lal (brother-in—law — Jeth), Mohanlal (father-in-law) and Devantin Bai (mother—in-law) have been acquitted of the charges framed u/ss 304-B, 498-A read with Section 34 of iPc. t (4) ’Chhoturam has challenged the conviction and sentences awarded to him whereas the revrsron petitioner (father of the deceased) has challenged the acqurttal of the above accused persons and has also prayed for enhancement of the sentence. awarded to appellant- Chhoturam. Cr.A.. 41 1/2008 & Cr.ReV. No. 428/2008 (5) The facts, briefly stated, are as under:- Deceased- Diviya was married to appellant-Chhoturam 2 years prior to the date of incident which took place on 12.4.2007 at about 10.00 a.m. when she received burn injLiries. She was admitted to CIMS Hospital, Bilaspur, where she died during the course of her treatment on 13.4.2007 at about 1.30 p.m. Her death was reported by the CIMS authorities to the police. During the course of investigation, the police found that the accused persons ‘ were demanding colour television and a motorcycle and on account of all these they were treating the} deceased with cruelty. According to the prosecution, it was a dowry death. lt is on this account, the deceased got herself burnt after pouring kerosene oil on er. The learned Sessions Judge convicted the husband on the basis of evidence of Kachra Bai (PW-1 — mother of the deceased), Pooranlal (PW-2 — father of the deceased) and Lalit Ram (PW-22 — u'ncle of the deceased). The other relations of the husband were acquitted on the ground that from the very beginning they were residing separately and thereiwas hardly any evidence against them. (6) Mr. Awadh Tripati, learned counsel appearing on behalf of the appellant & respondents/accused persons in revision petition, argued that the finding in relation to treating the deceased with cruelty and dowry death is perverse, therefore, the same cannot be sustained. He relied on the decisions of the Apex Court rendered in Naravanamurthz—Vs- State ‘k of Kamataka & Anr. AIR 2008 SC 2377 and D. JaKana —Vs- State of Karnataka', (20092 6 SCC 575. No h Cr.A. No. 41 1/2008 & Cr.ReV. No. 428/2008 (7) Mr. Govind Ram Miri, learned counsel appearing on behalf of the revision petitioner, argued that the acquittal of the relations of the appellant vitiates on account of misappropriation of the evidence. He aiso argued that the sentence awarded to appellant— Chhoturam is inadequate and the same should be suitably enhanced. (8) Mr. Sudhir Bajpai, learned Govt. Advocate appearing on behalf of the State, supported the arguments raised by Mr. Govind Ram Miri. (9) We have heard the learned counsel for the parties at length and have also perus’ed the records of the sessions case. (10) Kachra Bai (PW—1) deposed that after the marriage when Diviya came to their house, she had told them that she was being harassed by her husband, brother—in-law (jeth) and in-laws on account of a demand of colour television & a motorcycle and she was being beaten also. However they sent back their daughter to her matrimonial home and they went for earning their livelihood. A male child was born out of wed-lock of the appellant and the deceased. Second time when the deceased came to their place, she again told them that she was being maltreated on account of demand of dowry, she very specifically told that the black & white television and CD, given by the parents were destroyed by the accused persons. Chhoturam came their house for taking the deceased and the deceased again went to her in-laws place. After 15 days, the deceased again came to village Mudpar along with her small child. She told that she was beaten on accOunt of not giving the colour television and the motorcycle. Again she was sent to her parents place. However they told to the husband of the deceased that later on, they will give CLA. No. 41 1/2008 & Cr.Rev. No. 428/2008 colour television but they will not be able to give motorcycle. After the above incidents, they went to Jammu-Kashmir for earning livelihood. On a particular day, they got telephonic message that deceased Diviya has received burn injuries. They immediately rushed to village Mudpar but by that time the deceased has died and her funeral etc. had already taken place. ln the cross examination, she admitted that just after 15 days of the marriage, appellant-Chhoturam and deceased-Diviya were residing separately in a separate house. Though she stated in cross examination in Para-5 that as soon as her brother~in-law Lalit Ram (PW—22) received message about burn injuries sustained by Diviya, he went to the hospital, where Diviya made oral dying declaration that she was burnt after pouring kerosene oil on her, but Lalit Ram (PW-22) does not support the dying declaration made before him. (11) Pooranlal (PW-2) is the father of the deceased. He supported the evidence of Kachra Bai (PW—1) by deposing that on the above occasions when the deceased visited their house, she always told that she was treated with cruelty by the accused persons on account of demand of colour television and motorcycle. (12) Lalit Ram (PW~22) is the uncle of the deceased. He also supported the evidence of the parents of the deceased so far as it relates to constant demand of colour television and motorcycle. (13) Though these witnesses were put to lengthy cross-examinations by the defence, but the defence has not been able to elicit any such circumstances, on which, their evidence may be out-rightly discarded. On the basis of evidence of these witnesses, it comes that the deceased was CLA. No'. 41 1/2008 & Cr.Rev. No. 428/2008 being treated with cruelty and there was constant demand of motorcycle and colour television. It also comes that the deceased was Iiving separately along with her husband just after the marriage. We find that there are no allegations regarding demand of dowry at the time of marriage. Therefore, the learned Sessions Judge has held that when the other relations of the husband were residing separately they would be hardly getting occasions to treat the deceased with cruelty and also to harass her on account of demand of dowry. Therefore, in the above facts and circumstances of the case, the learned Sessions Judge has acquitted the other accused persons and has held appellant-Chhoturam guilty of the offence punishable u/ss 304-B & 498-A of the IPC. (14) In Narayanamun‘hy’s case (supra), the husband was acquitted of the charges u/s 304—B on the ground that there was nothing to show that demand for dowry was soon before death and neighbours were not supporting prosecution case. The said case is factually distinguishable - l from the present case. In the present case, the things have happened in quick succession. In Hira Lal and Others —Vs- State (Govt. of NCT), § , Delhi, (2003) 8 SCC 80 which is also noticed in the judgment of Narayanamun‘hy, the Apex Court observed that “The determination of the period which can come within the term ‘soon before’ is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question-There must be existence of a proximate and live link between the effect of cruelty \ based on dowry demand and the concerned death. The Apex Court . QA’ No. 41 1/2008 & Cr.Rev. No. 428/2008 cautioned that if alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium oflthe woman concerned, it would be of no consequence”. In the present case, as stated supra, since the things have happened in quick succession it cannot be said the demand was remote in time and there was no existence of proximate and live link between the effect of cruelty based on dowry demand and the concerned death. (15) ln D. Jayana’s case (supra), the only evidence relatable to Section 304-B was that of a neighbour who was examined after 2 months after the alleged date of occurrence. The Apex Court held that though the evidence appears to be sufficient to bring in application of Section 498—A, there is definite inadequacy to attract Section 304-8 IPC and in that view of the matter, therefore, the conviction u/s 304-B IPC was set-aside and the conviction u/s 498-A IPC was maintained. ln the present case, there is intact evidence of parents and uncle of the deceased. Therefore, the above two judgments are not of much assistance to the appellant/accused. ‘ (18) In Sant Rai —Vs- $tate of Harlana, (19982 8 SCC 605, in a case punishable u/ss 304-B, 306, 498-A & 201 IPC, the appellant/husband was sentenced to undergo imprisonment for life u/s 304-B IPC by the 2 Courts (16) For the foregoing reasons, we do not find any infirmity recording the conviction of the appellant/accused u/ss 304-B & 498—A IPC. (17) Now we shall consider about the adequacy of sentences awarded to appellant-Chhoturam. below. In the appeal, the Apex Court while maintaining the conviction of the appellant u/s 304-B observed that the sentence of life imp’risonment imposed against the appellant u/s 304-B IPC 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. (19) In Ashok Kumar —Vs- State of Haryana (2007) 9 SCC 433, the appellant was convicted u/s 304-B IPC and was sentenced to undergo imprisonment forlife. His appeal was dismissed by the High Court. ln 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, sentence of imprisonment awarded against him was reduced to 7 years rigorous imprisonment. (20) We have carefully considered the argument, advanced by Mr. Govind Ram Miri, in this regard. We are of the view that appropriate sentence to be awarded in a particular case cannot be determined upon a straight—jacket formula. lt varies upon the facts and circumstances of the each case. The principle of proportion between crime and punishment is governed by the “Doctrine ofjust desert”. The doctrine is the foundation Cr.A. No. 41 1/2008 & Cr.Rev. No. 428/2008 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 desert” 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. (21) In case on hand, the appellant is a yo‘ung person as he was aged about 21 years on the date of the incident. He has a male child who was aged about 10 months on the date of the incident. The appellant is in jail since 17.8.2007. He belongs to a poor labour family. Therefore‘ in our considered view the rigorous imprisonment for 7 years along with concurrent sentence of 3 years and the fine imposed in both the counts are the adequate sentences awarded to the appellant which call far no interference in criminal revision filed by the father of the deceased. (22) So far as the revision against the acquittal of the accused persons is concerned, we have held supra that it comes in the evidence of father and mother of the deceased that the acquitted accused persons were residing separately in their separate houses as appellant-Chhoturam has separated from his parental house just after the marriage of the deceased with him. It is not the case of the prosecution that the relations of the CriA‘ No. 41 1/2008 & Cr.ReV. No. 428/2008 husband had demanded dowry at the time of the’ marriage. Since the husband and wife were residing separateiy, demand of motorcycle and coiour television can reasonabiy be attributed to the husband alone. It also comes in the evidence of Kachra Bai (PW—1) that after the third complaint made by the deceased to them, they had gone to village Sonthi and had a talk with appellant-Chhoturam that they will give colour television but they will not be able to give motorcycle. It is in these circumstances, the learned Sessions Judge held that the relations of the husband were neither responsible for treatingthe deceased with cruelty nor for her dowry death. (23) The revisional power of the High Court under Section 397 read with Section 401 does not create any right in the litigant, but only conserves the power to see that justice is done and the subordinate Courts do not exceed jurisdiction or abuse their powers. The order of lower Court ought not to be lightly set aside unless it has entailed miscarriage of justice or l where two views are possible merely because the revisional Court takes the other view. It is only in glaring cases of injustice, resulting from some violation of fundamental principles of law by the trial Court, that the High Court is empowered to set aside the order of acquittal and direct a re—trial of the acquitted accused. The mere circumstances that a finding of fact recorded by the trial Court may, in the opinion of the High Court, be wrong, will not justify setting aside the acquittal and directing re-trial. The revisional court is entitled to reverse the finding only when it reaches to the conclusion that finding of thetrial Court is perverse and the jurisdiction cannot be invoked lightly;\ Even in the cases where it is .i I i ' N possible to take two views on the same matter then in the ordinary course I 11 Cr.A. N0. 41 1/2008 & Cr,ReV. No. 428/2008 the View taken by the Court below should not be interfered in the revisional jurisdiction. (24) in the opinion of this Court, the Sessions Court has taken a view and has recorded a, finding, which appears to be one of the possible views which couid have been taken by a Court in the facts and circumstances of the case. Therefore, we do not find any reasons to interfere with the findings recorded by the Sessions Court relating to the acquittal of the other accused persons. (25) For the foregoing reasons, the appeal filed by appellant-Chhoturam and the revision petition filed by the father of the deceased, both are liable to be dismissed and are hereby dismissed. sd/ /\ I j Sunni Kumar Set/m §§n§aa Chief Jus‘ice \ ‘ Eadge ‘ t?