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Allahabad High Court · body

2010 DIGILAW 1712 (ALL)

Gunja Devi v. State of U. P.

2010-05-21

Y.K.SANGAL

body2010
Y.K.Sangal,J.:- All these above three appeals are filed against the judgment and order dated 28.09.1986 passed by 9th Additional District and Sessions Judge, Lucknow in ST No. 211/1985 under Section 498-A, 304-B IPC and ¾ D.P. Act. By the impugned judgment and order, the learned Session Judge held guilty to all the three appellants for the offence under Section 304-B, 498-A IPC and ¾ Dowry Prohibition Act. Sentence awarded each of them are as follows:- 2. Under Section 304-B 10 years R.I., under Section 498-A 2 years R.I. and under Section ¾ D.P. Act 1 years R.I. to each of the accused-appellants and orders are there that all the sentences shall run concurrently. 3. Sarjoo Prasad, Shanti Devi, Smt. Pammi Shatrughan and and Suchit Lal,Smt. Sarvesh were also tried for the above offences along with the three appellants but after giving them benefit of doubt they were acquitted for the charges level against them by the same judgement. 4. Any appeal against the acquittal order of these accused persons was filed on behalf of the State, learned AGA has not press it. All the three appeals are filed against the single judgment of the learned Session Judge, hence these are being decided simultaneously. 5. Brief facts of the case are that a written report was submitted by the informant of the case who is the father of deceased that Bindeshwari married 27.06.1987 with the appellant Suman Bihari and Ganga Prasad, Smt. Gunja Devi are parents of Suman Bihari. After marriage, she remained happily in her in-laws house. When third time, she came at her parent's house house, she complained that her husband and Sasur are complaining for insufficient dowry and they made a demand of Scooter and 2 Bigha land. Informant shown his inability to fulfill the demand. Thereafter accused persons started her torture and harassment and she was beaten severally by them. To avoid her harassment and torture Rs. 7540/- were paid by him in cash to the accused persons in part to fulfill their demand and forced to assure them that their demand of amount for scooter cost will be soon fulfilled. Again she was treated cruelly by the accused persons on 03.09.1992. Kerosene oil was sprinkled on her and they tried to put her on fire but she succeeded in escaping from there and reached to her parents house and stated about the incident with her. Again she was treated cruelly by the accused persons on 03.09.1992. Kerosene oil was sprinkled on her and they tried to put her on fire but she succeeded in escaping from there and reached to her parents house and stated about the incident with her. She pressed her parents to fulfill their demand otherwise she will be done to death. Again they shown their inability. A report was made at police station Gudumba about this occurrence. Later on, a Panchayat was arranged with the interruption of police in the month of November. Accused persons assured that she will not be maltreated. She was again sent to her in-laws house. For a certain period, they have suspended their demand but again they started to harass her for the same purpose. Two letters were sent by his daughter through some unknown person. When informant also visited in her in-laws house, again she stated about their demand. 6. Some days' before before the death of Bindeshwari, she came her parents house and stated that a demand of Rs. 5,000/- has been made by her in-laws and husband and she pressed them to pay this amount. Any how he arranged only Rs. 1500/- and sent back her to in-laws house saying that he will come soon and will have a talk with her in-laws. On 20.06.1993 someone informed him that accused persons in the company of their other family members have administered poison to her resulting in her death. After receiving the information, when he went to her matrimonial house, he saw that she was lying dead there. Her face and other parts of body were having blackening. Blood was oozing from her mouth. He went to inform the police in this regard. Already accused Ganga Prasad etc. were there at police station. His report was not lodged and police persons had abused and forced him to run away from there with the threat that if he made any complaint with the higher authorities, he will face the consequences of the same. His one of the companion informed the Circle Officer in this regard and on his wireless message post-mortem of dead body was got done by the police. They again pressed him to cremate the body. After post-mortem, body was handed over to him and he cremated the same at her own expenses. None from her in-laws joined the last ceremonies after death. They again pressed him to cremate the body. After post-mortem, body was handed over to him and he cremated the same at her own expenses. None from her in-laws joined the last ceremonies after death. 7. On this report under the directions of higher authorities, a case was registered at police station concerned at Crime No. 208/1993 under Section 498-A, 304-B IPC and ¾ D.P. Act. Investigation of the case was started. Site plan of the place of occurrence was prepared. Statement of witnesses were recorded. post-mortem report was collected where in the opinion of the doctor cause of death was not ascertained. Visra was preserved, the same was sent for chemical analysis. As per report, poison was found in Visra. Charge-sheet was submitted in the matter, on the same cognizance was taken by the learned Magistrate and as the case was exclusively triable by the Court of Session, same was committed to the Court of Session. 8. All the accused were charged to face the trial for the offences as above. They have pleaded not guilty and claimed their trial. 9. On behalf of the prosecution PW-1 Hasan informant father of the deceased proved written report Exhibit Ka-1 and also referred two letters written and sent by the deceased. He had narrated story of the FIR in his on oath statement. Another PW-2 Raja Ram is the son of informant and he had again given the case of FIR. PW-3 Dr. L.J. Kesri who conducted the post-mortem of the body of deceased proved the report Exhibit-Ka-3. PW-4 Ram Pal is said witness of Panchayat arranged and supported case of prosectuion of demand of dowry by accused person and harassment of the deceased by them. He further said that Rs. 7500/- at one time and Rs. 1500/- at another time were given by the informant to the accused persons in his presence to meet out their demands. PW-5 Laxmi Narayan Deputy S.P., PW-6 Vaseem Ahmad, PW-7 Bharat Singh are the investigating officers. They have given the details of their part of investigation in the matter. PW-8 Ram Nayan Chubey is the person who prepared the Panchayatnama in another connected document, PW-9 is a Head Constable Chandrika who registered the case. PW-11 Vinod Kumar Scientist has proved the visra report Exhibit Ka-10. 10. They have given the details of their part of investigation in the matter. PW-8 Ram Nayan Chubey is the person who prepared the Panchayatnama in another connected document, PW-9 is a Head Constable Chandrika who registered the case. PW-11 Vinod Kumar Scientist has proved the visra report Exhibit Ka-10. 10. Genuineness of most of the documents produced in support of case was admitted on behalf of the accused persons. In their statements under Section 313 Cr.P.C all the accused persons have denied the correctness of the prosecution case and evidence and pleaded that they are not guilty and claimed that they are falsely implicated in the case. 11. In their defence Gauri Shankar DW-1, S.N. Pandey DW-2 were examined and they brought on the record that a Murfi T.V. was purchased by accused Suman Bihari from his shop and Ganga Prasad is serving as lineman in the Electricity Department and he purchased a motor-cycle after taking loan from the Department and monthly of loan installments are being deducted from his pay. D.W.3 Navami said that in the marriage ceremonies of Ram Awatar on 15.05.1993 deceased Bindeshwari was there and her jewellery was lost. It was further stated by this witness that she was ill and due to this cause, she died. 12. Hearing the parties counsel and State counsel and perusing the record by the impugned judgment and order, learned Session Judge hold guilty to all the three accused-appellants and sentenced them as above for the charges leveled against them. Aggrieved by this judgment and order, these appeals are filed. 13. Heard the arguments of counsel and learned AGA for the State and perused the record. 14. Undisputed facts of the case are that the deceased Bindeshwari was daughter of the informant P.W.-1 Hasan alias Sohan. She was married with the accused Suman Bihari on 27.06.1987. Other accused Ganga Prasad and Smt. Gunja Devi were Sasur and Saas of Bindeshwari. Bindeshwari died in her In-laws house on 20.06.1993. Her death took place within seven years of her marriage. 15. Although, at early stage of the matter it was the case of the appellants that she died her natural death and it was also tried to say that her death took place due to a shock due to uncertain reasons. It was nowhere case of the appellants that she had committed suicide. 15. Although, at early stage of the matter it was the case of the appellants that she died her natural death and it was also tried to say that her death took place due to a shock due to uncertain reasons. It was nowhere case of the appellants that she had committed suicide. After the death an information was given to the Police by the informant and an entry was made in this regard in the G.D. of the Police Station, which is clear from the Exbt. Ka-15, available on the record dated 20.06.1993. Genuineness of this document was admitted on behalf of the accused-appellants From perusal of this document, it reveals that he had informed the Police that her death was not in normal circumstances. Blood was oozing from her mouth. Panchayatnama prepared by the Police on his information also available on the record. From its perusal, it appears that he informed the Police, dead body is in doubtful condition. Blood is oozing from her nostal and stomach is having swelling. In the post-mortem report also Rings were found by the Doctor on her body. Visra of the dead body were preserved and sent for analysis. P.W. 11, the Analysist had proved the report prepared. In his on oath statement, he said that in Visra Malathin Insecticide poison was found. This all shows that cause of death of Bindeshwari was poision found in her body. This all shows that within seven years of her marriage, Bindeshwari, daughter of the informant had died not in normal circumstances in her In-laws house and poison was found in her body which was the cause of her death. 16. Section 498-A of the Indian Penal Code provides as follows : 498A. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Husband or relative of husband of a woman subjecting her to cruelty - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purposes of this section, "cruelty" means - (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Section 304 B IPC deals with dowry death which reads as follows : " 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 of dowry, such death shall be called' dowry death', and as such husband or relative shall be deemed to have caused here death. Explanation.- For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). Explanation.- For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (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." Section 4 of the Dowry Prohibition Act reads as follows : ["Penalty for demanding dowry.- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two yeas and with fine which may extend to ten thousand rupees : Provided that the Court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months.] Section 113-B of the Evidence Act provides as follows : "113B. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation : For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)" 17. An FIR was lodged by the informant Hasan giving detail that after marriage, how her daughter was being harassed, ill treated and beaten by the accused-appellants for non-fulfillment of the demand of dowry. It is specific case that demand accused persons was for Scooter and Two Biswa land. To support this case of the FIR four witnesses were examined on behalf of the prosecution. P.W.-1, informant Hasan is the father of the deceased. He had given all details about the demand harassment cruelty even of the accused persons with Bindeshwari. It is specific case that demand accused persons was for Scooter and Two Biswa land. To support this case of the FIR four witnesses were examined on behalf of the prosecution. P.W.-1, informant Hasan is the father of the deceased. He had given all details about the demand harassment cruelty even of the accused persons with Bindeshwari. He said that after the marriage twice when she had returned to her parental house, no complaint was made by her but when she came back 3rd time, she said that a demand of two Biswa land and Scooter is being made by the accused persons and for its non-fulfillment, she is being harassed and maltreated by them. He further said that once the accused persons after sprinkling kerosene oil on her tried to put her on fire but she succeeded in escaping from there with the help of neighborers. After this information by her, when she was at her parents house, an application was submitted at the P.S. concerned and on the intervention of the Police a Panchayat was arranged in the temple situated in front of the Police Station where in part fulfillment of their demand, Rs. 7,540/- were paid by the informant to the accused Ganga Prasad and said that rest amount about the cost of Scooter (Rs.15,000/-) was to paid later on and again she was sent to her In-laws house as the panchayat had decided so. Again, after sometime, accused persons started to harass and ill treating her. Before 15 days of her death she came to her parent's house and stated that a demand of Res. 5,000/- is being made by the accused persons and if the demand is not fulfilled, they will kill her. Informant arranged only Rs. 1500/- and given to her to hand over the same to the accused persons and assured her that after sometime, he will reach there and will have a talk with the accused-appellants. In earlier part of his statement he had also stated that when the deceased Bideshwari was in her in-laws house, she sent two letters by some unknown persons which were received by him and she had mentioned in these letters that she is being harassed and teased by the accused persons for non-fulfillment of their demand of dowry. These original letters are also available on record and referred by him in his statement. These original letters are also available on record and referred by him in his statement. Statement of the informant was corroborated by his son and Brother of the deceased, P.W. 2 Rajkumar by his on oath statement. They were cross-examined at length on behalf of the accused-appellants but nothing as such came out so that their these on oath statement can be said not reliable. 18. Two other witnesses P.W. 4 Rampal and P.W. 10 Shiv Shankar were also examined on behalf of the prosecution. Rampal stated that daughter of informant was being harassed and being treated cruelly by the accused-appellants for non-fulfillment of demand of dowry. She was ousted by the accused -appellants from her matrimonial house. Police was informed in this regard and on the intervention of the Police, a Panchayat was arranged in the Temple situated in front of the police Station where again the demand of dowry was pressed by the accused-appellants for Scooter and two Biswa land, where the informant shown his inability to transfer Two Biswa land saying that he has his family and son but agreed for the Scooter demand and in part performance of this, Rs. 7,500/- were paid to Ganga Prasad by the informant and Bindeshwari was sent to her In-laws house. After lapse of some period, the informant came to his house and asked him to arrange some money for the demand of accused-appellants as they came out at his house. He had arranged Rs. 500/- and in his presence Rs. 1500/- were paid to Suman Bihari, husband of the deceased. He has also supported the fact that Panchayat was again arranged to resolve the dispute between them. Bindeshwari was also called in that Panchayat where she stated that she is being ill treated by the accused-appellants for non-fulfillment of their demand and again the dispute was resolved between them by the Pancha's and a compromise was prepared there. Later on he came to know that she was done to death by the accused persons/appellants by administering poison to her as their demand was not being fulfilled. P.W. 10 is the witness of this panchayat and he supported the on oath statement of the informant and P.W. 4 Rampal in this regard. 19. Later on he came to know that she was done to death by the accused persons/appellants by administering poison to her as their demand was not being fulfilled. P.W. 10 is the witness of this panchayat and he supported the on oath statement of the informant and P.W. 4 Rampal in this regard. 19. This shows that not only the on oath statement of P.W.1 and 2 who are the near relatives of the deceased i.e. Father and Brother of deceased, two independent witnesses, P.W. 4 and P.W. 10 Rampal and Shiv Shankar have also supported the case of the prosecution that Bindeshwari was done to death by the accused persons/appellants by administering poison as their demand of dowry was not being fulfilled. 20. Learned counsel for the accused-appellants argued that there is inordinate unexplained delay in lodging the FIR on behalf of the informant. It is correct that after one month of the death report was entered in the Police Diary but in the FIR, its detailed and sufficient explanation is available. It is mentioned that under the influence of the accused persons, police of the P.S. concerned has not entered his correct information in the Police papers. Accused Ganga Prasad and one other was present there when he reached to inform the death of Bindeshwari. He made a complaint to Circle Officer, only on his intervention dead body was sent for post-mortem after the Panchnama. This report was entered in the Police papers when the application was sent to DIG. The same was received through proper channel at the Police Station having note of D.IG. and S.S.P. etc. then case was registered. All these facts were mentioned in the FIR about the delay in the information are not correct, nowhere brought on record on behalf of the accused-appellants. From the information entered in the G.D. Exbt. Ka-15, and Panchayat Nama it reveals that since the beginning, informant was not ready to accept, as per saying of the accused persons she died her natural death. In these circumstances, the alleged delay has no effect on the case of the prosecution. 21. Learned counsel for the accused-appellants argued that there is no direct evidence on record that poison was administered by the accused persons to the deceased. Now this is established on the record that she died as poison was found in her body. In these circumstances, the alleged delay has no effect on the case of the prosecution. 21. Learned counsel for the accused-appellants argued that there is no direct evidence on record that poison was administered by the accused persons to the deceased. Now this is established on the record that she died as poison was found in her body. She was in care of her husband, Father-in-Law and Saas in her matrimonial house. How the poison was found in her body it was also the duty of the accused-appellant to explain it as provided under Section 106 of the Evidence Act and also under Section 113-B of the same Act, as presumption against them, informant in the FIR, has tried to explain it that some unknown person on 20.06.1993 informed him at his house that poison was administered to Bindeshwari by the accused persons after conspiring in between. Some details are also given by him in the FIR. Learned counsel for the appellants argued that these details are based only on hearsay and the same are not admissible. It may be so, but it is established fact that she died because poison was consumed by her. How this poison reached in her body, it is nowhere explained on behalf of the accused-appellants. So in the aforesaid circumstances, if it is taken correct that as per prosecution case, poison was administered to her by the accused persons, no wrong was committed by the learned Sessions Judge in holding as such. 22. Three witnesses were examined on behalf of the accused persons in their defence. First witness, D.W.1 Gauri Shankar stated that Television was purchased by Suman Bihari from his shop and D.W.-2, S.N.Pandey stated that Ganga Prasad had purchased Motor-Cycle, as loan was sanctioned to him by the department where he was in service and installments of the loan are being deducted from his salary. Learned AGA argued that if for his house need, Television was purchased by the accused, Suman Bihari it has of no effect on the present case because there is no case of the prosecution that there was a demand of the accused persons for Television also. Learned AGA argued that if for his house need, Television was purchased by the accused, Suman Bihari it has of no effect on the present case because there is no case of the prosecution that there was a demand of the accused persons for Television also. Further, if Ganga Prasad had purchased the Motor Cycle from the loan advanced to him from his department for his own use and demand of Scooter may be for Suman Bihari, this will also have no effect on the case of the prosecution. 3rd witness of the accused-appellants Navami Prasad stated that Bindeshwari attended a marriage of her near relative where she lost her jewelery and for that she was perturbed. Learned counsel for the appellants argued that this may be a cause that she might have consumed poison. Amongst the accused appellants, one is husband and other two are Saas and Sasur of the deceased. They were not knowing about the loss of her jewellery, if it was so and she was perturbed due to this, it is unnatural and improbable. No such defence has been taken by them in their statements under Section 313 Cr.P.C. 23. All these clearly shows that this story was developed by the accused persons at a very late stage of defence to save their skin, and has no force. Learned counsel for the accused-appellants argued that one most important ingredient of the offence under Section 304-B IPC is that harassment of the deceased cruelly must be "soon before" her death in relation of the demand of dowry but it is not established from the evidence of the prosecution. Since the beginning i.e. from the FIR and up to the statement of P.W. 10 Shiv Shankar, it is clear that since long continuously the deceased was being harassed and being treated cruelly by the accused-appellants for non-fulfillment of their demand of dowry. "Soon before death" is the relative term and it would depend on the circumstances of each case and no straight jacket formula can be laid down as to what would constitute the period soon before death. It would normally imply that the interval should not be there between the concerned cruelty or harassment and the death in question. "Soon before death" is the relative term and it would depend on the circumstances of each case and no straight jacket formula can be laid down as to what would constitute the period soon before death. It would normally imply that the interval should not be there between the concerned cruelty or harassment and the death in question. In the present case, the circumstances showing the incident of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct which spread over a period of time. If the cruelty or harassment or demand for dowry is shown persisted up to the last, it shall be deemed to soon before her death. 24. In the statement of the witness, it is there that just few days before the death of Bindeshwari a Panchayat was arranged second time in the presence of P.W. 4 and P.W.10 where she had stated before the Panchs that she is being harassed and being cruelly treated by the accused-persons for non-fulfillment of their demand of dowry and she was earlier ousted from the matrimonial house and they had tried to put her on fire due to this this only. Again before the Panchs, the accused persons had pressed their demand and she stated cruel treatment with her continuously. This all shows that there is sufficient evidence on record that soon before her death also, she was harassed and treated cruelly for non-fulfillment demand of dowry. 25. From the above, it is clear that accused persons have made a demand directly and also indirectly from the deceased and parents of her of dowry so they are also liable to be punished under Section 4 of the Dowry Prohibition Act. 26. Learned counsel for the accused-appellants argued that punishment awarded to the accused persons is quite harsh and lenient view may be taken by this Court. 27. In 2005 SCC (Crl.) 511 Kamlesh vs. State, apex Court has laid down as follows : " Marriages are made in heaven, is an adage. A bride leaves the parental home for the matrimonial home, leaving behind sweet memories therewith a hope that she will see a new world full of love in her groom's house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. A bride leaves the parental home for the matrimonial home, leaving behind sweet memories therewith a hope that she will see a new world full of love in her groom's house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a duaghter-in-law, but a daughter in fact. Alas the alarming rise in the number of involving harassment to the newly wed girls for dowry shatters the dreams. In-laws are characterised to be outlaws for perpetrating terrorism which destroys the matrimonial home. The terrorist is dowry, and it is spreading tentacles in every possible direction." 28. In the facts and circumstances of the case, taking into consideration the above law by the apex Court, punishment awarded by the trial court to the accused appellants cannot be held excessive and no further lenient view is required. 29. Seeing all the facts and circumstances of the case, considering the arguments of both parties' counsel and after going through the judgement of the trial court, I do not find any illegality, invalidity and impropriety and also factual mistakes in the judgement. In all the three appeals there is no force and the same are liable to be dismissed. 30. Accordingly, Criminal Appeal No. 431 of 1996 Srimati Gunja Devi vs. State; Criminal Appeal No. 432 of 1996 Suman Bihari vs. State and Criminal Appeal No. 433 of 1996 Ganga Prasad vs. State are hereby dismissed. Findings of conviction and sentence awarded to the accused-appellants are hereby affirmed. All the accused persons-appellants are not present in the court. They are on bail, the same is hereby cancelled. Copy of the judgement be sent to the trial court forthwith. The court concerned will take steps to procure the attendance of the accused persons by issuing N.B.W and notices to their sureties and if they appear, the be taken into custody and sent to jail along with the warrants to serve out the sentence. Compliance report be sent to this Court within two months.