HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No.633/2013
Sandeep s/o Amar Singh by caste Meghwal, r/o Bhangwa, Police
Station, Bhirani, District Hanumangarh.
(Presently lodged at Central Jail, Jodhpur)
—-Appellant
Versus
State of Rajasthan
—-Respondent
For Appellant(s) : Mr. Nishant Bora
For Respondent(s) : Mr. C.S. Ojha, Public Prosecutor
HON’BLE MR. JUSTICE SANGEET LODHA
HON’BLE DR. JUSTICE VIRENDRA KUMAR MATHUR
Judgment
Per Hon’ble Mr. Sangeet Lodha, J.
7th August, 2018
1. This appeal is directed against judgment dated 18.6.13
passed by the Additional Sessions Judge, Bhadra in Sessions Case
No.22/10, whereby the appellant has been convicted and
sentenced for the offences as under :
304B IPC
Life imprisonment with fine Rs.5,000/-; in default to further
undergo rigorous imprisonment for one year.
498A IPC
Rigorous imprisonment for one year with fine Rs.1,000/-; in
default to further undergo simple imprisonment for one month.
201 IPC
Rigorous imprisonment for one year with fine Rs.1,000/-; in
default to further undergone simple imprisonment for one month.
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2. Precisely, the prosecution case is that on 4.10.10
complainant Prabhu Ram (PW1) submitted a written report
(Ex.P1) to the SHO, Police Station, Bhirani stating that his
daughter Raj Bala was married to Sandeep resident of Bhangawa
on 8.5.09. At the time of marriage, he had given dowry as per his
financial status. However, Sandeep, his mother, father Amar
Singh, brother-in-law (Jeth) Suresh Banshilal and sister-in-law
(Jethani) Shilo Sharda were not happy with the dowry given and
used to torture complainant’s daughter for bringing insufficient
dowry and raised additional dowry demand of Motor Cycle and
Rs.50,000/- in cash. The factum of demand of dowry was
intimated by Raj Bala to his father complainant Prabhu Ram when
she came to her home. On this, the complainant accompanied by
his family members Karn Singh, maternal uncle Bhoop Singh and
uncle Balram went to Bhangwa and tried to convince accused
persons not to raise demand for dowry, then accused persons told
that if their dowry demand is not fulfilled, their daughter will have
to bear the consequences. Thereupon, the persons accompanied
the complainant convinced them that the demand will be fulfilled
on any auspicious occasion but the accused persons for fulfillment
of their demand at the earliest used to beat complainant’s
daughter Raj Bala and even did not serve meal to her on many
occasions. On 3.10.10, Raj Bala informed her mother on telephone
that all the accused person subjected her to beating in connection
with the dowry demand, they should fulfill their demand else she
will be killed by them. On 4.10.10 in the morning, the complainant
received a call from Village Bhangwa that the Raj Bala has died.
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On this, when the complainant alongwith his family members went
to Bhangwa then saw that Raja Bala’s dead body was lying near
diggi (water body) and the injuries were seen on her various
parts of the body. According to the complainant, accused persons
killed her daughter for not fulfilling the demand of dowry.
3. On the basis of the written report (Ex.P1) submitted as
aforesaid, the police registered an FIR for offence under Sections
498A, 304B IPC and the investigation commenced.
4. During the investigation, the police drawn various memos
and after inquest proceedings, the dead body was subjected to
autopsy. The statements of the witnesses were recorded under
Section 161 Cr.P.C., accused persons were arrested and the
recoveries were made.
5. After completion of the investigation, the police filed charge
sheet against the accused appellant Sandeep and Beer Singh for
offences under Sections 304B, 498A, 201 120B IPC before the
Additional Chief Judicial Magistrate, Bhadra. The matter was
committed to the Court of Additional Sessions Judge, Bhadra for
trial. The trial Judge vide order dated 8.12.10, framed the charge
against the accused persons Sandeep and Beer Singh for the
offences under Sections 304B, 498A, 201 120B IPC. The
accused persons denied the charges and claimed trial. During
the trial Beer Singh expired and therefore, the proceedings
against him were dropped.
6. The prosecution in support of its case examined as many as
22 witnesses viz. P.W.-1 Prabhu, P.W.-2 Balwan, P.W.-3 Ranveer
Singh, P.W.-4 Rakesh, P.W.-5 Hari Ram, P.W.-6 Saroj, P.W.-7
Mayawati, P.W.-8 Dara Singh, P.W.-9 Daya Ram, P.W.-10 Geeta,
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P.W.-11 Pratap Singh, P.W.-12 Kamla, P.W.-13 Bhoop Singh, P.W.-
14 Hawa Singh, P.W.-15 Karn Singh, P.W.-16 Nevil Clark, P.W.-17
Jag Mahendra, P.W.-18 Dr. Vijay Pal Yadav, P.W.-19 Rajpal, P.W.-20
Gajanand, P.W.-21 Vinod and P.W.-22 Lal Bahadur and
documentary evidence was exhibited as Ex.P1 to Ex.P46. The
accused appellant was examined under Section 313 Cr.P.C.,
wherein he denied involvement in the offence. He alleged that his
wife Raj Bala has been killed by accused Beer Singh, who was
maintaining illicit relations with her. No evidence was led in
defence.
After completion of evidence, on 2.3.13 the charge framed
against the appellant Sandeep was amended and he was charged
for the offences under Sections 304B in alternative under Section
302, 498A, 201 120B IPC. The parties declined to lead further
evidence.
7. The trial court after due consideration of the evidence on
record and rival submissions, convicted and sentenced the
appellants as indicated above. Hence, this appeal.
8. Learned counsel for the appellant contended that the trial
court has committed serious error in convicting the appellant for
offences under Sections 304B, 498A 201 IPC. Learned counsel
urged that there is no evidence on record to establish that the
deceased was subjected to cruelty or harassment by the appellant
for or in connection with any demand of dowry soon before her
death. It is submitted that only the interested witnesses namely
P.W.-1 Prabhu Ram, the father of the deceased, P.W.-7 Mayawati,
the mother of the deceased, P.W.-8 Dara Singh, the uncle (chacha)
of the deceased, P.W.-10 Geeta, sister-in-law of the deceased P.W.-
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12 Kamla, aunt (mausi) of the deceased and P.W.-14 Hawa Singh,
the uncle (mausa) of the deceased have levelled omnibus
allegations against all including the appellant regarding demand of
dowry and thus, the trial court has seriously erred in convicting
the appellant on the testimony of the said interested witnesses.
Learned counsel submitted that as a matter of fact all the
witnesses who are closely related have given their statements in
line of the deposition of P.W.-1 Prabhu Ram, the father of the
deceased. Though the allegations against all the persons were
there for demand of dowry, however, the police did not file challan
against Amar Singh, Phuli and other family members of the
appellant. Learned counsel submitted that no specific date and
time regarding the demand of dowry is mentioned by the
witnesses in their deposition. It is submitted that as per the
complainant he was informed about the demand of dowry just a
day before the incident on telephone by her daughter but the call
details were not produced to prove the conversation. Drawing the
attention of the Court to the post mortem report (Ex.P37), learned
counsel submitted that the cause of death was opined to be
asphyxia however, the final opinion was to be given after chemical
examination but no such report was produced by the prosecution.
Learned counsel submitted that the death by strangulation or
asphyxia was not proved and therefore, it cannot be said that the
deceased had died unnatural death and therefore, the provisions
of Section 304B IPC are not attracted. Lastly, learned counsel
contended that for offence under Section 304B IPC, life
imprisonment, which is the maximum punishment prescribed and
therefore, in absence of any aggravating circumstances, the
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extreme punishment of life imprisonment imposed is not justified.
Learned counsel would submit that without any justification the
extreme punishment imposed is against the sentencing principles.
9. On the other hand, learned public prosecutor submitted that
from bare perusal of the statements of P.W.-1 Prabhu Ram, P.W.-7
Mayawati, P.W.-8 Dara Singh, P.W.-9 Dayaram, P.W.-10 Geeta,
P.W.-12 Kamla, and P.W.-14 Hawa Singh, it is apparent that soon
before the death, deceased-Raj Bala was subjected to cruelty and
harassment for and in connection with the demand for dowry and
therefore, the conviction of the appellant by the trial court after
due appreciation of the evidence on record cannot be faulted with.
Learned public prosecutor submitted that in the instant case, in
view of persistent demand of dowry on the part of the appellant,
which continued even a day before the incident, by virtue of
provisions of Section 113B of the Evidence Act, the presumption
has to be raised that the appellant caused dowry death of Raj Bala
and thus, the judgment under appeal does not warrant any
interference by this Court in exercise of its appellate jurisdiction.
10. We have considered the rival submissions and carefully
scanned the evidence adduced at the trial.
11. It is settled law that the evidence of interested witness
cannot be discarded merely on the ground that they are interested
witnesses. However, it is necessary that the evidence of such
witnesses is scrutinized by the court carefully.
12. In Agnoo vs. State of U.P.,AIR 1971 SC, 296, the Supreme
Court held that the fact of relationship would add to value of his
evidence because he would be interested in getting the real culprit
rather than innocent persons punished.
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13. In Kartik Mallhar vs. State of Bihar (1995) 8 JT(SC) 425, the
Apex Court observed:
“we may also observe that the ground that the witness being
a close relative and consequently being partisan witness should
not be relied upon, has no substance. This theory was repelled
by this court as early as in Deelip Singh’s case (AIR 1953 SC
364) in which this court expressed its surprise over the
impression which prevailed in the minds of the members of the
bar that relatives were not independent witness Speaking
through VIVIAN BOSE J., the Court observed para 25 of AIR
1953(SC):
“We are unable to agree with the learned Judges of the High
Court that the testimony of the two eye witnesses requires
corroboration. If the foundation for such an observation is
based on the fact that the witnesses are women and that the
facts of seven men hands on their testimony, we know of no
such rules. If it is grounded on the reason that they are
closely related to the deceased we are unable to concur.”
14. Suffice it to say that the evidence of close relatives of the
deceased is not liable to be rejected on the ground that they are
interested witnesses. But then, their evidence needs to be
scrutinized by the court carefully.
15. Before considering the testimony of witnesses examined by
the prosecution to arrive at the conclusion as to whether the
deceased was subjected to cruelty and harassment by the
appellants soon before her death in connection with any demand
for dowry, we deem it appropriate to refer to the relevant
provisions and the case law on the issue involved in the matter.
16. Indisputably, to attract the provisions of Section 304B IPC,
following ingredients must be satisfied :
(i) The death of a woman should be caused by any burns or
bodily injuries or otherwise than under normal circumstances.
(ii) Such a death should have occurred within seven years of her
marriage.
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(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 any demand of dowry.
(v) Such cruelty or harassment should be shown to have been
meted out to the woman soon before her death.
17. As per Section 113B of the Evidence Act, the presumption as
to dowry death shall be raised when it is shown that soon before
the death the woman had been subjected to cruelty or harassment
by the accused persons for and in connection with the demand of
dowry. In other words, on the proof of the essential conditions
noticed above, the Court is under an obligation to raise the
presumption that the accused caused the dowry death.
18. In Kans Raj vs. State of Punjab and Others [(2005) 5 SCC
207], a Bench of 3 Learned Judges of the Hon’ble Supreme Court
observed :
“It is further contended on behalf of the respondents that
the statements of the deceased referred to the instances
could not be termed to be cruelty or harassment by the
husband soon before her death. “Soon before” is a
relative term which is required to be considered under
specific circumstances of each case and no straitjacket
formula can be laid down by fixing any time-limit. This
expression is pregnant with the idea of proximity test.
The term “soon before” is not synonymous with the term
“immediately before” and is opposite of the expression
“soon after” as used and understood in Section 114,
Illustration (a) of the Evidence Act. These words would
imply that the internal should not be too long between
the time of making the statement and the death. It
contemplates the reasonable time which, as earlier
noticed, has to be understood and determined under the
peculiar circumstances of each case. In relation to dowry
deaths, the circumstances showing the existence of
cruelty or harassment to the deceased are not restricted
to a particular instance but normally refer to a course of
conduct. Such conduct may be spread over a period of
time. If the cruelty or harassment or demand for dowry is
shown to have persisted, it shall be deemed to be “soon
(9 of 19) [CRLA-633/2013]before death” if any other intervening circumstance
showing the non-existence of such treatment is not
brought on record, before such alleged treatment and the
date of death. It does not, however, mean that such time
can be stretched to any period. Proximate and live link
between the effect of cruelty based on dowry demand
and the consequential death is required to be proved by
the prosecution. The demand of dowry, cruelty or
harassment based upon such demand and the date of
death should not be too remote in time which, under the
circumstances, be treated as having become stale
enough”. (emphasis supplied)
19. In K. Prema S. Rao Vs. Yadla Srinivasa Rao (AIR 2003 SC
11) the Hon’ble Supreme Court examined the words ‘soon before
her death’ and observed:
“To attract the provisions of S.304-B, IPC, one of the main
ingredients of the offence which is required to be
established is that “Soon before her death” she was
subjected to cruelty and harassment ‘in connection with
the demand for dowry’. There is no evidence on record to
show that the land was demanded as a dowry. It was
given by the father to the deceased in marriage ritual as
“pasupukumuma”. The harassment or cruelty meted out
to the deceased wife by the husband after the marriage to
force her to transfer the land in his name was ‘not in
connection with any demand for dowry’. One of the main
ingredients of the offence of “demand of dowry” being
absent in this case, the accused could not be said to have
committed offence under S.304-B.”
20. Analysing the words ‘soon before her death’, the Hon’ble
Supreme Court in Kamesh Panjiyar Vs. State of Bihar (2005) 2
SCC 388, held :
“A conjoint reading of Section 113-B of the Evidence Act
and Section 304-B IPC shows that there must be
material to show that “soon before her death”, the victim
was subjected to cruelty or harassment “for or in
connection with the demand of dowry”. Prosecution has
to rule out the possibility of a natural or accidental death
so as to bring it within the purview of “death occurring
otherwise than in normal circumstances”. The expression
“soon before her death” is very relevant where Section
113-B of the Evidence Act and Section 304-B IPC are
pressed into service. Prosecution is obliged to show that
soon before the occurrence there was cruelty or
harassment and only in that case presumption operates.
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Evidence in that regard has to be led by prosecution.
“Soon before” is a relative term and it would depend
upon the circumstances of each case and no straitjacket
formula can be laid down as to what would constitute a
period of soon before the occurrence. It would be
hazardous to indicate any fixed period, and that brings
in the importance of a proximity test as indicated by the
said expression both for the proof of an offence of dowry
death as well as for raising a presumption under Section
113-B of the Evidence Act. A reference to the expression
“soon before” used in Section 114 illustration (a) of the
Evidence Act is relevant. The determination of the period
which can come within the term “soon before” under
section 114 illustration (a) is left to be determined by
the courts, depending upon the 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 cruelty or
harassment concerned and the death in question. There
must be existence of a proximate and live link between
the effects of cruelty based on dowry demand and the
death concerned. If the alleged incident of cruelty is
remote in time and has become stale enough not to
disturb mental equilibrium of the woman concerned, it
would be of no consequence.”
21. In Biswajit Halder @ Babu Halder Vs. State of W.B.. 2008(1)
SCC (Cr.) 171, the Hon’ble Apex Court observed:
“13. If Section 304-B IPC is read together with Section 113-
B of the Evidence Act, a comprehensive picture emerges that
if a married woman dies in unnatural circumstances at her
matrimonial home within 7 years from her marriage and
there are allegations of cruelty or harassment upon such
married woman for or in connection with demand of dowry
by the husband or relative sof the husband, the case would
squarely come under “dowry death” and there shall be a
presumption against the husband the relatives.”
22. In Durga Prasad Vs. State of M.P. 2010(3) SCC (Cr.) 1154,
the Hon’ble Supreme Court held that in order to hold an accused
guilty of an offence u/s 304-B IPC, it has to be shown that apart
from the fact that the woman died on account of burn or bodily
injury, otherwise than in the normal circumstances, within 7 years
of her marriage, it has also to be shown that soon before her
death, she was subjected to cruelty or harassment by her
husband or any relative of husband for, or in connection with any
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demand for dowry. Only then would such death be called “dowry
death” and such husband or relative shall be deemed to have
caused death of the woman concerned.
23. In the backdrop of the position of law settled as above, we
shall now proceed to examine whether the accusation against the
appellants stand established beyond reasonable doubt on the
basis of evidence on record.
24. Indisputably, the deceased Raj Bala and the appellant
Sandeep were married on 8.5.09 i.e. about 1½ years before the
incident. As per the post mortem report (Ex.P37) cause of death
was opined to be asphyxia, however, the final opinion was
reserved awaiting report of chemical examination. P.W.-18 Dr.
Vijay Pal Yadav, who was member of the Medical Board, which
conducted autopsy of the dead body of Raj Bala, the probable
cause of death was asphyxia. He deposed that at the time of
examination both the lungs were found congested and water
blood was oozing out. It is true that the prosecution did not
procure the chemical examination report but then, the dead body
of the deceased was found immersed in water in diggi and the
description of the body and the injuries found on the person of the
deceased as reflected in Panchanama (Ex.P2) and post mortem
report (Ex.P37) clearly establishes that the deceased had died
unnatural death. It is pertinent to note that the accused Sandeep
who was present at the place of occurrence absconded and was
later arrested on 17.10.10. It is not even the stand of the accused
appellant in his statement recorded under Section 313 Cr.P.C. that
Raj Bala had died natural death rather, he has taken the stand
that Beer Singh, who is his cousin had illicit relations with his wife
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and when he was sleeping at home, Beer Singh after killing Raj
Bala while carrying the dead body on motor cycle thrown it in
diggi. Thus, the contention sought to be raised by the counsel for
the appellant that Raj Bala had died natural death, is absolutely
baseless.
25. The next question which needs to be examined is as to
whether on the basis of the evidence on record the prosecution
has proved that the deceased has been subjected to harassment
and cruelty by the appellant soon before her death for or in
connection with any demand of dowry.
26. P.W.-1 Prabhu Ram, the father of the deceased, has deposed
that after six months of marriage inter alia Sandeep had raised
demand for motor cycle and Rs.50,000/- in cash, which was
revealed to him by her daughter when she came to her paternal
home. Thereupon, he alongwith Balveer, Karn Singh and Bhoop
Singh went to Village Bhangwa, a panchyat was convened where
they undertook to do something after ripening of the crop. The
accused persons including Sandeep threaten that if the demand of
dowry is not fulfilled, it will not be good for Raj Bala. He deposed
that Raj Bala was used to be beaten for not fulfilling the demand
of dowry. He categorically deposed that on 3.10.10, Raj Bala
telephoned her mother that accused persons are raising demand
for dowry and if their demand is not fulfilled, they will kill her and
on the next day, telephonic message was received from Bhangwa
that Raj Bala has died and her body is lying near a diggi. He
deposed that he alongwith his family members went to Bhangwa
and saw that the dead body of his daughter was lying near the
diggi and there were marks of injuries.
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27. P.W.-6 Saroj, sister-in-law of deceased Raj Bala being wife of
her cousin, deposed that after six months of the marriage Raj Bala
told her that Sandeep is demanding a motor cycle and
Rs.50,000/- in cash, he beats her and does not serve the meal.
His mother-in-law, father-in-law, brother-in-law and sister-in-law
also used to harass her. She deposed that just a day before the
incident, Raj Bala informed his mother regarding the dowry
demand raised by Sandeep and threatening given to kill her. This
was revealed to her by mother of the deceased Raj Bala. Mother
of the Raj Bala talked with father-in-law of Raj Bala, who said that
there is nothing to worry about, he will be coming to Karanpur
with Raj Bala in the morning and on the next day morning, it was
revealed that Raj Bala has died.
28. P.W.-7 Mayawati, the mother of the deceased, deposed that
after six months of the marriage when Raj Bala came to her
paternal home, she revealed that Sandeep is raising demand for
motor cycle and Rs.50,000/- in cash and on account of non-
fulfillment of demand, she is being tortured and his family
members also supports him. Then her husband Prabhu, brother in
law Bala, Karan Singh etc. went to Bhangwa and talked to
Sandeep and his family members, who were convinced and
thereafter, Sandeep had taken Raj Bala to her matrimonial home.
After 20 days, Raj Bala informed her on telephone that on account
of non fulfillment of demand of motor cycle and Rs.50,000/-,
Sandeep has beaten her. They planned to go Bhangwa but before
they could go there, a message was received that her daughter
has been killed and thrown in Diggi.
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29. The deposition of P.W.8-Dara Singh, P.W.9-Dayaram, P.W.12-
Kamla, P.W.13-Bhup Singh and P.W.14-Hawa Singh is also in line
of the deposition of P.W.1-Prabhu Ram, P.W.6-Saroj and P.W.7-
Mayawati.
30. We find that the statements of the aforesaid witnesses
examined by the prosecution do not suffer from contradiction or
embellishment in respect of material particulars i.e. the demand
of dowry, the cruel treatment meted out to the deceased for and
in connection with the demand of dowry and the period during
which such demand was raised. We do not find any reason not to
believe the testimony of these witnesses, we find them truthful
and reliable.
31. Having considered the evidence adduced by the prosecution
as aforesaid, we are of the considered opinion that the appellant
made persistent demand for motor cycle and Rs.50,000/- in cash
just after six months of marriage. On the demand of dowry being
raised by the appellant, the father and other family members of
the deceased tried to pacify him saying that they will be able to do
something after ripening of the crop, however, the demand
continued even a day before the incident. On the basis of the
evidence on record, it is clearly established that there was
persistent demand of dowry soon before the death of Raj Bala and
she was harassed and ill treated by the appellant on account of
non fulfillment of demand and she died in the circumstances which
cannot be considered to be normal. We are satisfied that the
prosecution has been able to establish the charge against the
appellant under Sections 304B 498A IPC beyond reasonable
doubt.
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32. As discussed hereinabove, it stands established that Raj Bala
had died unnatural death. The stand of the defence that Beer
Singh killed Raj Bala is not found proved on the basis of any
cogent evidence on record rather, the presence of co-accused Beer
Singh is found doubtful. The presence of the appellant at the place
of occurrence stands established, he had absconded and was later
arrested on 17.10.10. There is no explanation furnished by the
appellant regarding the injuries on the person of the deceased.
The motor cycle on which the dead body of the deceased was
carried to diggi was recovered at the instance of the appellant.
Thus, apparently, the appellant removed the dead body of the
deceased to cause disappearance of the evidence relating to the
crime committed. Thus, the learned trial Judge has rightly found
the charge of offence under Section 201 IPC proved against the
appellant.
33. In view of the discussion above, the conviction of the
appellant by the learned trial Judge for offences under Sections
304B, 498A and 201 IPC does not suffer from any infirmity or
illegality warranting interference by this court in exercise of its
appellate jurisdiction.
34. Coming to the sentence, it is noticed that under Section
304B IPC on the charge being proved, the court is given discretion
to impose proper sentence which could be not less than 7 years
but may extend to imprisonment for life.
35. In ‘Ram Naresh Ors. vs. the State of Chhatisgarh’ (2012) 4
SCC 257, the Hon’ble Supreme Court while considering the
elaborate principles of sentencing laid down in Bachan Singh vs.
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State of Punjab’, (1980) 2 SCC 684 and ‘Machhi Singh Ors. vs.
State of Punjab’, (1983) 3 SCC 470, while dealing with the
question of death sentence, observed that the cumulative effect of
both aggravating and mitigating circumstances need to be taken
into account while awarding the sentence. The court observed :
“76. The law enunciated by this Court in its recent
Judgments, as already noticed adds and elaborates the
principles that were stated in Bachan Singh and
thereafter, in Machhi Singh. The aforesaid Judgments,
primarily dissect these principles into two different
compartments-one being the “aggravating
circumstances” while the other being the “mitigating
circumstances”. The court would consider the
cumulative effect of both these aspects and normally, it
may not be very appropriate for the court to decide the
most significant aspect of sentencing policy with
reference to one of the classes under any of the
following heads while completely ignoring other classes
under other heads. To balance the two is the primary
duty of the court. It will be appropriate for the court to
come to a final conclusion balancing the exercise that
would help to administer the criminal justice system
better and provide an effective and meaningful
reasoning by the court as contemplated Under Section
354(3) Code of Criminal Procedure.”
The court while enumerating certain aggravating and
mitigating circumstances and determining the questions relatable
to sentencing policy further observed:
“79. The court then would a draw a balance sheet of
aggravating and mitigating circumstances. Both aspects
have to be given their respective weightage. The court
has to strike a balance between the two and see
towards which side the scale/balance of justice tilts.
The principle of proportion between the crime and the
punishment is the principle of “just deserts” that serves
as the foundation of every criminal sentence that is
justifiable. In other words, the “doctrine of
proportionality” has a valuable application to the
sentencing policy under the Indian criminal
jurisprudence. Thus, the court will not only have to
examine what is just but also as to what the Accused
deserves keeping in view the impact on the society at
large.
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80. Every punishment imposed is bound to have its
effect not only on the Accused alone, but also on the
society as a whole. Thus, the courts should consider
retributive and deterrent aspect of punishment while
imposing the extreme punishment of death.”
36. In ‘Sunil Dutt Sharma Vs. State (Government of NCT of
Delhi)’ (2014) 4 SCC 375, the Hon’ble Supreme Court while
dealing with a matter regarding conviction for offence under
Section 304 B IPC, wherein the accused was sentenced to suffer
maximum punishment of life imprisonment relying upon the
principles of sentencing evolved by the court over the years in
context of death penalty, observed:
“12. Are we to understand that the quest and search for
a sound jurisprudential basis for imposing a particular
sentence on an offender is destined to remain elusive
and the sentencing parameters in this country are bound
to remain Judge-centric? The issue though
predominantly dealt with in the context of cases
involving the death penalty has tremendous significance
to the Criminal Jurisprudence of the country inasmuch as
in addition to the numerous offences under various
special laws in force, hundreds of offences are
enumerated in the Penal Code, punishment for which
could extend from a single day to 10 years or even for
life, a situation made possible by the use of the
seemingly same expressions in different provisions of
the Penal Code as noticed in the opening part of this
order.
13. As noticed, the “net value” of the huge number of
in-depth exercises performed since Jagmohan Singh has
been effectively and systematically culled out in Sangeet
and Shanker Kisanrao Khade. The identified principles
could provide a sound objective basis for sentencing
thereby minimising individualised and Judge-centric
perspectives. Such principles bear a fair amount of
affinity to the principles applied in foreign jurisdictions, a
resume of which is available in the decision of this Court
in State of Punjab v. Prem Sagar. The difference is not in
the identity of the principles: it lies in the realm of
application thereof to individual situations. While in India
application of the principles is left to the Judge hearing
the case, in certain foreign jurisdictions such principles
are formulated under the authority of the statute and are
applied on principles of categorisation of offences which
approach, however, has been found by the Constitution
(18 of 19) [CRLA-633/2013]Bench in Bachan Singh to be inappropriate to our
system. The principles being clearly evolved and
securely entrenched, perhaps, the answer lies in
consistency in approach.
14. To revert to the main stream of the case, we see no
reason as to why the principles of sentencing evolved by
this Court over the years though largely in the context of
the death penalty will not be applicable to all lesser
sentences so long as the sentencing Judge is vested with
the discretion to award a lesser or a higher sentence
resembling the swing of the pendulum from the
minimum to the maximum. In fact, we are reminded of
the age-old infallible logic that what is good to one
situation would hold to be equally good to another like
situation. Besides, para 163(italicised portion) of Bachan
Singh, reproduced earlier (see at SCC p.385-f, above),
bears testimony to the above fact.”
37. In the instant case, undoubtedly the appellant is found guilty
of charge under Section 304B IPC but there is no aggravating
circumstance found proved against the appellant. It is not the
prosecution case that the appellant is habitual offender. It is not
disputed before us that the conduct of the appellant during his
stay in jail is found satisfactory. The appellant was arrested on
17.10.10 and thereafter, he is behind the bars till this date and
thus, he has already undergone sentence for more than 7 years.
Thus, taking into consideration the absence of aggravating
circumstances and the existence of mitigating circumstances
following the view taken by the Hon’ble Supreme Court in the
decisions referred supra, we consider it appropriate to modify the
order on sentence and reduce the sentence of life awarded by the
learned trial Judge to the sentence already undergone.
38. In the result, the appeal is partly allowed. The judgment and
order under appeal passed by the learned trial Judge convicting
the appellant Sandeep for offences under Sections 304B, 498A
and 201 IPC is upheld. However, we modify the order of the
(19 of 19) [CRLA-633/2013]
learned trial Judge on sentence and reduce the sentence of
imprisonment of life awarded to the appellant to the sentence
already undergone. The appellant shall be released from jail
forthwith, if not required in any other case. However, the
appellant shall furnish a personal bond in sum of Rs.50,000/- and
a surety of like amount to the satisfaction of the learned trial
Judge in conformity with the provisions of Section 437A Cr.P.C.
(VIRENDRA KUMAR MATHUR),J (SANGEET LODHA),J
vij
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