DEEPAK KUMAR Vs. STATE OF U. P.

JUDGEMENT

(1.) This appeal under Section 374(2) of the Code of Criminal Procedure has been filed by convict appellant Deepak Kumar @ Babbu @ Ballu against judgment of conviction and sentence made therein by Additional Sessions Judge / Fast Track Court, Chitrakoot in Sessions Trial No. 55 of 2014 (State Vs. Deepak Kumar @ Babbu @ Ballu and another), arising out of Case Crime No. 91 of 2013, under Sections 498-A, 304-B/34, 302/34 I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Bahilpurwa, District Chitrakoot, wherein convict appellant has been convicted and sentenced with ten years' rigorous imprisonment and fine of Rs.1,00,000/- for offence punishable under Section 304-B I.P.C., three years' rigorous imprisonment and fine of Rs.10,000/- for offence punishable under Section 498-A I.P.C., two years rigorous imprisonment and fine of Rs.10,000/- under Section 4 of Dowry Prohibition Act with a direction for further imprisonment of two months each in case of default of payment of fine and concurrent running of sentences with adjustment of previous imprisonment, if any.

(2.) Memo of appeal is with this mention that judgment of conviction and sentence is against the fact and evidence placed on record, based on conjectures and surmises, hence not sustainable in eyes of law, liable to be set aside. Prosecution failed to prove case beyond all reasonable doubt, despite the trial Court convicted and sentenced, as above. There was material contradiction in the testimony of prosecution witnesses, but trial Court failed to appreciate it. First Information Report, dated 23.12.2013, was registered as Case Crime No. 91 of 2013 for offences punishable under Sections 498-A, 307 I.P.C. read with Section 3/4 Dowry Prohibition Act against the appellant and others, which was based on hearsay facts. Informant Chhotey Lal Jaiswal, in his testimony, has categorically said, as was deposed by him, that he was not aware of the facts of case. It was an occurrence of accident, in which Geeta suffered burn injuries at about 4.00 AM on 22.12.2013. DW-1 Smt. Kailashwati, along with her son Sandeep, rushed on spot and wrapped his quilt around the body of deceased for putting fire off. She was instantly taken at District Hospital, Karvi, from where she was referred and taken to Jivan Jyoti Hospital, Allahabad, where she was admitted in I.C.U. and this treatment of her was done by her husband, present convict appellant. He spent about Rs.4,00,000/- in medical expenses, despite this effort, unfortunately, she died on 30.12.2013. Last rituals were performed by him, which shows the bona fide conduct of convict appellant. Father and mother of Geeta rushed at District Hospital, Karvi at about 6.00 AM of 22.12.2013. Even in medical proceeding, no complaint of dowry demand or cruelty with regard to it was said by prosecution side. PW-2 Smt. Prema has said that it was a complaint two days before occurrence, hence trial Court acquitted other co-accused, who stood on trial on the same set of evidence, whereas convicted and sentenced convict appellant, as above, and he is languishing in jail since 17.01.2014. Award is maximum provided under Section 304-B I.P.C. with a fine of Rs.1,00,000/-, whereas no such provision of fine is there in Section 304-B I.P.C. Trial Court sentenced with an anxiety to sentence on the basis of whims, that is why, even without being any provisions of fine, huge amount of Rs.1,00,000/- has been imposed upon him. The sentence too was not commensurate to offence. Hence, this appeal for setting side judgment of conviction and sentence made therein.

(3.) Learned counsel for appellant argued that all other co-accused have been acquitted of the charges on the same set of circumstances and evidence, but convict appellant, who is husband and was with no specific accusation against him, was convicted and sentenced, as above. Sentence of rigorous imprisonment of ten years was the highest provided by legislature under Section 304-B I.P.C. and there is no provision for imposition of fine, even then fine of Rs.1,00,000/- has been imposed, which shows the anxiety and whim of presiding Judge. First Information Report was sent with inordinate delay of 24 days, which proposed ante timed F.I.R., which was not in accordance with Section 157 Cr.P.C. For having explanation of accused persons over incriminating evidence, proved by prosecution, their statement was got recorded under Section 313 Cr.P.C. But explanation given by convict appellant was not entertained in impugned judgment. There was not a single whisper of demand of dowry, punishable under Section 3 or 4 of D.P. Act, as was provided under Section 2 of D.P. Act.