Vijai Shankar vs State of U. P. - 2023 Supreme(All) 428

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 428

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJIT SINGH, JJ.
Vijai Shankar - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 3811 of 2011, Criminal Appeal No. 3812 of 2011, Criminal Appeal No. 2350 of 2011
Decided On : 21-02-2023

Advocates Appeared:
For the Appellant : Arvind Kumar Kushwaha, Pooja Upendra Kumar Rai.

Headnote:
Indian Penal Code, 1860 – Section 304B, 498 – Dowry Prohibition Act – Section 3, 4 – Demand of Dowry – Commits culpable homicide not amounting to murder – Learned Advocate assisted by Advocates for appellant – Period of incarceration of accused appellants death of deceased is necessary – Accused jail for incarcerated before she was released on bail by this Court – Held, Court considers that no accused person is incapable of being reformed measures should be applied to give them an opportunity of reformation in order to bring them social stream perusal of impugned judgment awarded by learned trial court for life term is very harsh keeping in view the entirety of case and gravity of offence – Hon'ble Apex Court discussed held that undue harshness should be avoided taking into account reformative approach underlying in criminal justice system – Appeal is partly allowed.

ORDER :

1. Heard Sri Arvind Kumar Kushwaha, learned Advocate assisted by Ms. Pooj and Sri Upendra Kumar Rai, learned Advocates for the appellant and learned A.G.A. for the State.

2. A short prelude about the period of incarceration of accused-appellants and the death of the deceased is necessary. Accused, Vijai Shankar and Smt. Meena Devi, are in jail for more than 12 years and Accused-Chandrawati was also incarcerated before she was released on bail by this Court. The deceased died after a period of 01 month and 07 days. In her Dying Declaration the deceased stated that her mother-in-law and father-in-law have brought her to the hospital and therefore, mother-in-law was granted bail by this Court. The incident occurred because of harassment to her. The court below acquitted the accused under Section 498A but convicted them under Section 304B for life imprisonment.

3. All the three appeals arise out of same incident and challenge the judgment and order dated 14.04.2011 passed by Additional Sessions Judge, New Court No.2, Jaunpur in Sessions Trial No.188 of 2010 (State vs. Vijai Shanker & Others) whereby the learned Additional Sessions Judge has convicted accused-appellants under Section 304B of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced them to undergo imprisonment for life.

4. Brief facts as culled out from the record are that on the basis of complaint of the father of the deceased a First Information Report was lodged under Section 498A, 307 of IPC and Section 3/4 of Dowry Prohibition Act, at P.S. Sarai Khwaja, Jaunpur against the accused with an allegation that accused-persons have set ablaze the daughter of informant by pouring kerosene oil on her. She sustained burn injuries and died during the course of treatment. After her death Section 304 B of was added by the investigating agency. The investigating officer recorded the statements of all the witnesses and submitted the charge-sheet to the learned Magistrate. The learned Magistrate summoned the accused and committed them to Court of Sessions as prima facie the case was triable by Sessions Court.

5. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried. The Trial started and the prosecution examined 15 witnesses who are as follows:

1	Savitri Devi	PW1
2	Rajesh	PW2
3	Neetu Devi	PW3
4	Sunil Yadav	PW4
5	Meera	PW5
6	Rajesh Chandra Srivastava	PW6
7	Prakash Kumar	PW7
8	Ramesh Kumar	PW8
9	Shiv Pratap Singh	PW9
10	Dr. Satish Singh	PW10
11	Dr. Prabha Shankar Chaturvedi	PW11
12	Dr. R.K. Jaiswal	PW12
13	Vinod Kumar Singh	PW13
14	Santosh Kumar Singh	PW14
15	Jyoti Prasad Sonkar	P.W.15

6. In support of ocular version following documents were filed and proved:

1	F.I.R.	Ex.Ka.17
2	Written	Report Ex.Ka.1
3	Dying Declaration	Ex. Ka. 10/16/11
4	Injury Report	Ex.Ka. 12
5	Postmortem	Report Ex.Ka.9
6	Charge-sheet	Ex. Ka.8
7	Site Plan	Ex.Ka.14

7. At the end of the trial, after recording the statements of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the accused-appellants as mentioned above.

8. It is submitted by learned counsel for the appellants that the incident occurred at the spur of moment which arose due to sudden quarrel and the accused had not premeditated to do away with the deceased.

9. In alternative, it is submitted that at the most, the death can be said to be homicidal death not amounting to murder and punishable under Section 304 II or Section 304 I of I.P.C. If the Court decides that the accused is guilty, then the accused may be granted fixed term punishment of incarceration. In support of his arguments learned counsel for the appellant has relied on the de