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Gobarey vs State Of U.P.,Lucknow. on 24 April, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Case :- CRIMINAL APPEAL No. – 1085 of 2001 Reserved

Appellant :- Gobarey

Respondent :- State Of U.P.,Lucknow.

Counsel for Appellant :- R.K.Khare,Jitendra Singh

Counsel for Respondent :- Govt.Advocate

Hon’ble Rajeev Singh,J.

1. Heard Shri Jitendra Singh, learned counsel for the appellant and Shri Aniruddh Kumar Singh, learned Government Advocate.

2. The present appeal has been preferred against the judgment and order dated 08.11.2001 passed by Special Judge (N.D.P.S. Act), Lucknow in Session Trial No.287 of 1996 arising out of Case Crime No.144 of 1995, whereby convicting and sentencing the appellant under Section 498 A I.P.C. to undergo rigorous imprisonment for a period of two years and fine of Rs.5000/-. In default of payment of fine, he has to further undergo additional imprisonment for a period of one year and under Section 3/4 Dowry Prohibition Act to undergo rigorous imprisonment for a period of one and a half years and fine of Rs.4000/-. In default of payment of fine, he has to further undergo additional imprisonment for a period of one year.

3. Factual matrix of the case is that on 22.07.1995 at about 7:20 hours, Gokaran (father-in-law) reported to the Police Station that his daughter-in-law committed suicide by hanging. On the said information, inquest of the body of the deceased was conducted in presence of the villagers. The witnesses opined that she committed suicide by hanging with rope. After inquest the body was sent for postmortem and autopsy was conducted on 23.07.1995. Thereafter, on 27.07.1995, the written complaint was given by Ram Prasad s/o Kallu Rawat (brother of the deceased) with the allegation that marriage of deceased was solemnized four years back with Bhagwati s/o Gokaran Rawat by giving all the gifts as per his ability but after few days, Bhagauti (husband of deceased), Gokaran Rawat (father-in-law of the deceased), Smt. Vishna (mother-in-law of the deceased), Ms. Rajeshwari (sister-in-law of the deceased ) and Goberay (cousin brother of the father-in-law) started victimizing her and raising demand of Rs.20,000/- and lastly on 21.07.1995, she was killed. On the aforesaid complaint, FIR as Case Crime No.144 of 1995 under Sections 498A/304 B I.P.C. and Section ¾ Dowry Prohibition Act, Police Station Ittaunja, District Lucknow was registered on 27.07.1995. After recording the statement under Section 161 Cr.P.C. of the witnesses, the charge-sheet was prepared by the Investigating Officer on 11.08.1995 against Bhagauti (husband), Gokaran (father-in-law), Goberay, (cousin brother of the father-in-law), Smt. Vishna (mother-in-law of the deceased), Ms.Rajeshwari (sister-in-law of the deceased) under Section 498A, 304B I.P.C. and ¾ Dowry Prohibition Act. Therefore, the court below took cognizance and committed the case to the court of sessions on 24.04.1996 and it was registered as S.T. No.287 of 1996 and charge was framed by court below on 30.03.1997, under Sections 498A, 304 B I.P.C. and ¾ Dowry Prohibition Act and on 16.07.2001 additional charge of Section 306 I.P.C. was also framed. The accused persons denied the guilt and prayed for trial.

4. The prosecution produced six witnesses namely, PW-1-Kallu (father of the deceased), PW-2-Ram Prasad (brother of the deceased), PW-3- S.I. Hanuman Prasad Divedi, PW-4 Dr. Umesh Chandra, PW-5-S.I. Ram Lakhan and PW-6- Mr. S.M. Ileyasi (Investigating Officer) and also relied 12 documentary evidences.

5. Learned counsel for the appellant submitted that appellant is not related to the family of the in-laws of the deceased. As merely on the presumption, he has been alleged that he is uncle of husband of the deceased.

6. As it is admitted that the appellant is neighbour of the father-in-law of the deceased and merely on the basis of general allegation and presumption, he has been convicted under Section 498A I.P.C. and ¾ Dowry Prohibition Act.

7. Learned counsel for the applicant submits that the accused-appellant has not been convicted previously for any offence and he is the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and he is confining his submission in the appeal only with respect to the order of sentence.

8. Learned counsel for the applicant further submitted that in view of the aforesaid facts, trial court ought to have been invoked the provisions of the Probation of Offenders Act, 1958 (hereinafter referred to as the “Act”). The court has not given any special reason in the impugned judgment and order of conviction and sentence for not giving the benefit of provisions of Section 360 Cr.P.C. of the provision of Act, 1958.

9. The accused-appellant has statutory right for claiming the benefit of beneficial legislation i.e. the provisions of the Act and the learned trial court was under a duty to consider the applicability of Section 360 Cr.P.C. or Section 3 or 4 of the Act, as mandated under Section 361 Cr.P.C. If the provisions of Section 360 Cr.P.C. or provisions of the Act were not applied, then the learned trial court should have recorded reasons for the same.

10. Learned A.G.A. has submitted that the offence against the appellant is fully established on the basis of evidence but if the sentence awarded to him is reduced, he would have no objection.

11. After hearing the submission of learned counsel for the parties and going through the record of the case, it appears that the appellant belongs to a poor family and there is no criminal history against him.

12. Under the said circumstances, I am of the view that the purpose of justice will be served if the appellant would be sentenced to undergo imprisonment during which he was in custody for the offence.

13. In view of the above facts and circumstances mentioned and considering the scope of Section 4 of the Act, this appeal is, accordingly, dismissed by upholding the conviction of the accused-appellant. The accused-appellant is released on probation. The accused-appellant shall file personal bonds to the tune of Rs.20,000/- and he shall keep peace in the society and shall not commit any such offence in future. This bond shall be for one year; (a) In case of breach of any such condition, the accused-appellant will undergo the sentences passed by the Trial Court as per law; (b) The accused-appellant shall file the bonds within a period of two month from the date of lifting of Covid-19 Lock-Down.

14. Let the copy of this judgment as well as the lower court record be transmitted to the concerned Trial Court forthwith for necessary compliance.

Order Date :- 24.04.2020.

Amit/-

 

 

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