HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. 44
Crl. Appeal No. 4763 of 2008
Dinesh.......................... Appellant
Vs.
State of U.P. ......................... Opposite party
Hon'ble Shiv Charan, J.
Hon'ble Vijay Kumar Verma, J.
Objections filed by learned AGA against the prayer of bail be placed on record.
Heard Sri R. P. Srivastava, learned counsel for the appellant and AGA for the State on the prayer of bail of appellant Dinesh convicted by Sri Abdul Mobeen, the then Addl. Sessions Judge/Fast Track Court No. 1, Basti in S.T. No. 294 of 2004 (State Vs. Dinesh and others) under section 498A, 304B and 201 IPC and 3/4 D.P. Act, P.S. Purani Basti, District Basti and also perused the trial court record as well as other relevant documents.
Learned counsel for the appellant argued that co-accused Hari Ram, father of the appellant, has already been granted bail by this Court vide order dated 11.11.2008. Learned counsel in this connection placed reliance on observation of this Court made in disposing of the bail matter of Hari Ram. In this connection, it will be material to state that dying-declaration of the deceased was recorded by the Magistrate while she was admitted in the Hospital. In that dying declaration, the deceased stated that she sustained injuries accidentally while preparing tea for her husband (appellant herein). Although on behalf of the prosecution, evidence was produced as well as the circumstances were demonstrated that there are chances of procuring the dying declaration and that at the time of alleged recording of the dying declaration, the deceased was not in fit mental condition to give any statement, but another Bench of this Court vide order dated 11.11.2008 made an observation regarding dying declaration to the effect that, "having regard to the above, the dying declaration of the girl, which exonerates the in-laws and describe it as a case of accidental burn also does not appear to have been manipulated." Placing reliance on this observation of the Court, learned counsel for the appellant stated that on the basis of the said order, the appellant also deserves bail in this case, although he is husband of the deceased. Further argued that the appellant was on bail and has not misused the bail.
AGA opposed the prayer of bail and argued that evidence was produced by the prosecution to the effect that at the time of recording the alleged dying declaration, the deceased was not in a fit condition of mind. That the relations of the deceased were not called after sustaining the burn injuries by the deceased and hence the judgement of the trial court is justified.
Considering all facts and circumstances of the case, we will not like to make any comment regarding merits of the case, but since the co-accused Hari Ram has already been granted bail with aforecited observation, at this stage we are not inclined to over-look the said observation made by this Court. If there might be any circumstance to nullify the dying declaration, that will be considered at the time of final disposal of the appeal, but having regard to the aforesaid observation of the Court in the order dated 11.11.2008, without making further comment, we are of the opinion that the appellant also may be admitted to bail.
Let the appellant Dinesh be released on bail in above case till disposal of the appeal on his furnishing personal bond and two sureties in the like amount to the satisfaction of the trial court concerned.
Realisation of the total amount of fine imposed under Section 304-B I.P.C. shall remain stayed, as no fine can be imposed for the offence punishable under Section 304-B I.P.C.
We are surprised to see that the learned trial Judge has imposed fine also on the accused persons under section 304-B IPC, whereas no fine is prescribed in sub-Section (2) of Section 304-B I.P.C. The offence of dowry death is defined in sub-section (1) of section 304-B I.P.C. and sentence is provided in sub-section (2). For the sake of convenience section 304-B I.P.C. is reproduced below:-
304-B. Dowry death.-
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
Although sentence of imprisonment can be extended upto life imprisonment under Section 304-B (2) I.P.C., but no fine can be imposed, as the legislature has not prescribed imposition of fine under this Section. The court can award only that sentence, which is prescribed in the Statute and if in any Statute, no fine is prescribed for any offence, then no fine can be imposed by any Court. It is very unfortunate that such glaring mistake has been committed by the Judicial Officer of the rank of Addl. Sessions Judge and sentence in the aforesaid Session Trial has been passed by the learned trial Judge without going through Section 304-B I.P.C.
The Registrar General is directed to send a copy of this order within a week through the District Judge concerned to Sri Abdul Mobeen, the then Additional Sessions Judge, Fast Track Court No. 1, Basti for his future guidance.
13.02.2009
yachna/-
