Santosh Prasad Yadav Vs State of Chhattisgarh

This appeal under Section 374(2) of Cr.PC has been filed by the appellant against the judgment dated 27.02.2006 passed in ST No. 45/04 by the 2^nd Additional Sessions Judge (FTC), Ramanujganj, District Surguja, CG by which the appellant has been convicted for an offence punishable under Section 498-A of IPC and sentenced to undergo RI for 3 years and fine of Rs. 1000/-, plus default stipulation.

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Case of the prosecution in brief is that the merg intimation was lodged in police Station Chalgali by Ram Sunder S/o. Nanku on 07.08.2003 that second marriage of his son Santosh / accused was performed with the daughter of Laloo Yadav namely Kamli Bai about 7 months back. In the morning on 07.08.2003, he had gone to search for labour work for livelihood and came back where his son Santosh / appellant informed that while Kamli Bai / deceased was fetching water

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from the hand pump, she suddenly fell down and it was seen that the deceased Kamli Bai vomiting in the courtyard and some smell of pesticide was coming from the vomit. Kamli Bai deceased was taken to Pratapur for treatment and on the way doctor of Paraswaar hospital examined her at about 7:30 in the morning and inform that she has died. Thereafter, on being such information, merg was registered under Section 174 CrPC as Ex. P-16. During the merg inquiry, notice to panch vide Ex. P-1 was given for their presence. Vide Ex. P-5 dead body panchnama was prepared in presence of Nayab Tahsildar. The dead body was sent for postmortem vide Ex. P-8. The doctor gave a report that the deceased died due to consumption of poison (pesticide). Thereafter, FIR (Ex. P-6) was recorded under Section 306 of IPC against the appellant. Spot map (Ex. P-7) was prepared, vide Ex. P-15 Visra of the deceased was preseved and sent for chemical analysis. In the chemical analysis report Ex. P-17 it was found that chemical poison was found on her body. The appellant was arrested vide (Ex. P-9). After due investigation, the charge-sheet was filed before the Chief Judicial Magistrate, Ramanujganj. The case was committed to the Sessions Court and thereafter, it was received by the trial Court for trial. The appellant herein was charged for an offence punishable under Section 306 of IPC, he denied the charges and claimed to be tried. The defence examined only one witness Indradev Yadav (DW-1).

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Prosecution, in order to establish its case, examined as many as 10 witnesses and Exhibited 17 documents. Statement of the accused / appellant under Section 313 CrPC was recorded in which he pleaded his innocence and false implication in the case.

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After appreciating the evidence available on record, learned trial Court has acquitted the appellant for the offence punishable under Section 306 of IPC however, convicted the appellant under Section 498-A of IPC by the impugned judgment which was assailed before this Court. Hence this appeal.

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Learned counsel for the appellant submits that the case against the appellant for an offence punishable under Section 498-A of IPC is not made out and there is no evidence as such to convict the appellant. He further submits that during the course of merg inquiry, no such allegations were leveled against the appellant and no any witness has stated with regard to harassment on account of demand of dowry to the deceased and statement of the witnesses does not inspire confidence and it appears to be an afterthought in order to implicate him. He further submits that statement of the witnesses were recorded after considerable period of time about two months. Therefore, it is not trustworthy and therefore, it should not be considered for conviction of the appellant by this Court and he submits that appeal may be allowed and the appellant may be acquitted from the charge. Alternatively, he submits that the appellant is facing the trial since 2004. The appellant was granted bail by the trial Court and after his conviction, sentence was also suspended and he has never misused the liberty granted to him. He further submits that the possibility of his reform in the society cannot be ruled out and his freedom is not detrimental to the society. The appellant has remained in jail for two months and three days and considering the mitigating circumstances, in the event the Court is not convinced, the sentence imposed may be reduced to the period already undergone. He placed reliance upon the judgment of Hon’ble Supreme

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Court in the case of Santoshi and others Vs. State of madhya Pradesh reported in (2009) 16 SCC 753 : (2010) 3 SCC (Cri) 397 : 2009 SCC OnLine SC 1184.

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On the other hand, counsel for the respondent/State submits that even if the appellant has been acquitted under Section 306 of IPC but there are ample evidence available on record to convict the appellant under Section 498-A of IPC. She further submits that after the merg inquiry was conducted, the FIR was lodged and the statement of the witnesses were recorded therefore, it cannot be said that there is delay in recording statement of the witnesses. The learned trial Court on meticulous examination of the evidence available on record gave a well merited finding of conviction which does not require any interference by this Court hence, she further submits that simply because the appellant has faced long drawn trial, it is not a ground to seek sympathy and reduction of the sentence.

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Heard learned counsel for the parties and perused the material available on record.

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Laloo Yadav (PW-1) – father of the deceased has deposed in his statement that the appellant used to assault the deceased demanding Rs. 10,000/- and also a motorcycle. When Kamli (deceased) used to come to him, all these thing were being told to him. He was subjected to lengthy cross-examination. In his cross-examination submits that it is true to say that at the time of first marriage of Kamli (deceased) no demand of dowry was made. He himself deposed that he has given the dowry. He has deposed that first marriage was not working because of the dowry. He further submits that because of the maarpeet the marriage was broken. He further submits that he has not lodged the

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report in the police station with regard to demand of dowry against the appellant. He further deposed that he has not stated in the Panchnyat with regard to demand of dowry and feeding poison. He has further deposed that he has not informed the villagers with regard to demand of dowry. Harihar Yadav (PW-2) – brother of the deceased deposed that Kamli (deceased) was married to Jitan Yadav in the year 1997-98 and lived with him for 3-4 years, she was assaulted by him and she came back to her home in the year 2001-2002. Kamli (deceased) was married to Santosh (the appellant) second time. Kamli (deceased) lived with the appellant for 6-7 months. He deposed that accused/appellant used to demand Rs. 10,000/- cash and motorcycle from Kamli (deceased). This facts were told by Kamli (deceased) to her mother. He further deposed that in the sawan month of 2003, they had gone to her in-laws house of Kamli (deceased). At that time, Kamli (deceased) has informed that the appellant and his family members used to assault her by demanding Rs. 10,000/- and a motorcycle. After one week accused/appellant came to bring Kamli (deceased) and demanded Rs. 10,000/- and motorcycle. Malti Devi Yadav (PW-3) – Mother of the deceased has stated in the line of father of the deceased (PW-1).

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After cumulative assessment of these evidence, the learned trial Court though acquitted the appellant under Section 306 of IPC, however convicted the appellant under Section 498-A. After deep analysis of the statements, the findings so recorded does not appear to have any infirmity, therefore, conviction of the appellant under Section 498-A of IPC does not require any interference.

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This leads me to the second submission with regard to reduction of sentence. Hon’ble Supreme Court in case of Kunja Bai Vs. State of

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Madhya Pradesh reported in (2016) 15 SCC 608 it has been observed

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as under:-

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“ 14. Apart from arguing on merits of the case, the learned counsel for the appellant would submit that the harsh sentence of rigorous imprisonment for a period of one year ought to be reduced. The learned counsel for the appellant would submit that the incident took place in the year 1989, and about 27 years had passed since then. The learned counsel for the appellant would further submit that the appellant was an elderly lady of over 65 years of age and suffering from various ailments associated with old age. The learned counsel for the appellant would also submit that no minimum sentence waws prescribed under Section 498-A IPC, and the appellant had already undergone imprisonment for a period of one month. Keeping these aspects of the matter in view, the learned counsel for the appellant would submit that the sentence ought to be reduced.”

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In case of S. Mahaboob Basha Vs. State of Karnataka

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reported in (2014) 10 SCC 244 it has been held as under:-

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“11. The appellant-accused had remarried and has three children through his second wife, who are to be educated. The appellant through his first wife has two daughters and one son and one daughter is said to be pursuing engineering course. The appellant has to take care of his aged parents. The appellant has undergone sentence of imprisonment for about one month and the

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appellant is presently on bail. Considering the totality of the facts and circumstances of the case, the sentence of imprisonment imposed on the appellant for conviction under Section 498-A IPC is reduced to the period already undergone by him and a fine of Rs 2,00,000 (Rupees two lakhs only) is imposed, in default of payment of fine, the appellant is to undergo imprisonment for five months. Insofar as the conviction of the appellant under Section 506 IPC is concerned, he was sentenced to undergo SI for six months and it is reduced to the period already undergone and the same is ordered to run concurrently. The fine amount of Rs 2,00,000 is payable in two instalments. Rs 1,00,000 is payable within four months from today and remaining Rs 1,00,000 within six months thereafter. In default of payment of any one instalment of the amount, the appellant is to undergo the imprisonment as aforesaid. The fine amount of Rs 2,00,000 shall be paid to PW 1 Noorunissa as compensation under Section 357 CrPC. We direct the trial court/Principal Judicial Magistrate, First Class, Bellary to issue notice to PW 1 Noorunissa, as and when the instalments are deposited and disburse the amount to PW 1 Noorunissa.”

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In case of Santoshi and others (Supra) it has been held as

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under:-

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“4. So far as the other appellants, namely, Brahma, S/o Maniram Rathore, Maniram, S/o Gopal Rathore, Kalawati, W/o Maniram Rathore and Dakshri, W/o Bramha Rathore, are concerned, they have also undergone

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imprisonment for a term of about 5 to 6 months. We are also informed that they have also paid the fine. Considering the facts and circumstances of the case and also considering the fact that at least two of them are ladies, we alter the sentence of imprisonment awarded to them to the period already undergone by them.”

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Nothing incriminating is brought to the notice of this Court that appellant has not reformed during pendency of this appeal. Nothing significant is on record to suggest that his freedom is detrimental to society at large. Overall facts & circumstances indicates that no harm to society at large is likely to cause in case the accused/appellant is prematurely released.

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The accused/appellant – Santosh Prasad Yadav must be aged about 52 years. The appellant has undergone sentence of imprisonment for two months and three days and the appellant is presently on bail. Be that as it may, having considering the totality of the mitigating circumstances, this Court is inclined to reduce the sentence imposed upon the accused/appellant to the sentence already undergone, however, the fine amount of Rs. 1,000/- is enhanced to Rs. 2,000/- for appellant which shall be deposited within a period of 90 days, failing which appellant to undergo simple imprisonment for 15 days. Out of total fine amount as imposed by the learned trial Court and enhanced by this Court, Rs. 1,000/- shall be paid to Malti Devi Yadav (PW-3) after due verification as compensation in terms of Section 357 of Cr.P.C. The appellant is reported to be on bail. The bail bond shall

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remain in operation for next 6 months in view of the Section 437 (A) of the Cr.P.C.

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