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2013 DIGILAW 2767 (ALL)

Jawahar v. State of U. P.

2013-11-12

ARVIND KUMAR TRIPATHI II

body2013
JUDGMENT Hon’ble Arvind Kumar Tripathi (II), J.—Instant criminal appeal has been filed by the appellant Jawahar challenging the order dated 25.7.2011 passed by the Additional Sessions Judge/Special Judge, E.C. Act, Court No. 9, Sultanpur in Sessions Trial No. 7 of 2007 (Crime No. 1001 of 2006, under Sections 498-A, 304-B, 506 IPC and Section ¾ of the Dowry Prohibition Act, Police Station Gosainganj, District Sultanpur) by which the appellant was convicted under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act, and was directed to undergo 3 years RI and fine of Rs. 500/-, 10 years RI and six months RI and fine of Rs. 500/- respectively. In default of payment of fine, two months further imprisonment. 2. The facts, in short, are that Videshi brother of the deceased moved an application before the Superintendent of Police, Sultanpur that his sister Kewla Devi was married with Jawahar son of Bihari, resident of village Sonvatara, police station Gosainganj, District Sultanpur, who is addicted to alcohol. His elder brother Hira Lal is also addicted to alcohol and Kewla Devi, when forbade them from consuming alcohol, was beaten by those persons. On 31.8.2005 at about 8 a.m. he received information that Kewla Devi has been burnt, then he alongwith other relatives went to the matrimonial house of Kewla Devi and saw her in badly burnt condition. She told him that on 30.8.2005 at about 4/5 p.m. Hira Lal and Jawahar had demanded money for consumption of alcohol, when she resisted Hira Lal exhorted Jawahar to kill her, as she is a spoil sport. On this Jawahar poured kerosene oil upon Kewla Devi. When she tried to run away Hira Lal caught hold of her and Jawahar lit fire in her clothes due to which she started burning. On alarm being raised, the villagers tried to save her, then Ram Lal and Moti Lal threatened them that, whoever will come to rescue, will be killed. Kewla was admitted in hospital, and is in precarious condition. The Magistrate has recorded her statement. On this application, the Superintendent of Police directed the Station Officer, Police Station Gosainganj, Sultanpur to lodge FIR. On his direction, case crime No. 1001 of 2006, under Section Sections 498-A, 307, 506 IPC, was registered at police station Gosainganj against Jawahar, Hira Lal, Ram Lal and Moti Lal. The Magistrate has recorded her statement. On this application, the Superintendent of Police directed the Station Officer, Police Station Gosainganj, Sultanpur to lodge FIR. On his direction, case crime No. 1001 of 2006, under Section Sections 498-A, 307, 506 IPC, was registered at police station Gosainganj against Jawahar, Hira Lal, Ram Lal and Moti Lal. During investigation Kewla Devi died on 17.9.2006, so inquest report was prepared and dead body was sent for post mortem, and case was converted under Sections 498-A, 304-B, 506 IPC and Section ¾ of the Dowry Prohibition. After investigation charge-sheet was submitted. Case was committed and charge was framed against all the accused persons. The accused persons pleaded innocence and claimed to be tired. The prosecution examined Videshi as PW-1, Ramkesh as PW-2, Mangaroo as PW-3, Dr. C.B.N. Singh Tripathi as PW-4, Dr. K.V. Singh as PW-5, Rajendra Chandra, Naib Tehsildar as PW-6, Martand Prakash Singh, Circle Officer as PW-7, Dwarika Prasad Yadav, C.P. No. 916 as PW-8, and Tulsiram, C.P. 51 as PW-9. The statement of the accused person was recorded under Section 313 Cr.P.C. Marriage was admitted, but all other facts were denied. 3. The Court below has, after going through the evidence on record, convicted the accused Jawahar Sections 498-A, 304-B, 506 IPC and Section ¾ of the Dowry Prohibition Act and Section 4 of the Dowry Prohibition Act and acquitted Ram Lal, Hira Lal and, Moti Lal from all the charged offences. Feeling aggrieved, this appeal has been filed by Jawahar. 4. Learned counsel for the appellant argued that no case is made out, as in the FIR there is no mention of demand of dowry. The demand of Rs. 10,000/- is not in connection with the marriage, so the ingredients of the evidence are not proved, and conviction under Sections 498-A, 304-B, 506 IPC is not justified. It was further argued that there is no evidence that the deceased was tortured or was subjected to cruelty soon before her death. 5. Learned AGA argued that as demand of dowry, and killing of wife for non-fulfillment of demand of dowry is heinous offence and a crime against the woman and children, hence conviction awarded by the trial Court is justified and no interference is warranted. 6. A perusal of FIR dated 13.9.2006, which is Ex.Ka.1, reveals that no date of marriage has been mentioned. 6. A perusal of FIR dated 13.9.2006, which is Ex.Ka.1, reveals that no date of marriage has been mentioned. Simply, it has been stated that Jawahar is addicted to alcohol, and his brother Hira Lal persuaded him to drink alcohol and Kewla Devi always tried that Jawahar leave the habit, but they used to assault Kewla Devi. It has been mentioned that after Kewla Devi was burnt, he was informed by Kewla Devi herself that on that day Hira Lal and Jawahar had come to demand money for taking alcohol and when she refused Jawahar poured kerosene oil on her. Hira Lal caught hold of her and Jawahar put her to fire. A perusal of FIR clearly reveals that not a single word of demand of dowry has been mentioned. 7. There is dying declaration of the deceased also, which was recorded by Rajendra Chandra, Naib Tehsildar PW-6. This dying declaration is on record, and has been marked as Ex.Ka.21. There is categorical statement of Kewla Devi - the deceased, in it, which is as follows : “ eSa dsoyk nsoh] iRuh tokfgj mez yxHkx 25 o”kZ fuoklh xzke lksuwrkjk] Fkkuk xkslkbZxat] ftyk lqyrkuiqj c;ku djrh gWw+ fd fnukad 30&8&2006 dks fnu esa yxHkx 3 cts esjs ifr Jh tokfgj] lqr fcgkjh ls ?kj esa fookn gksus ij mUgksaus esjs Åij feV~Vh dk rsy Mkydj vkx yxk fn;k ftlls eSa cqjh rjg ls ty x;hA ” 8. This also goes to show that even in her dying declaration nothing has been mentioned about the demand of dowry and torture or harassment for non-fulfillment of demand of dowry. Videshi PW-1, when appeared before the Court for evidence, he developed the story, and has stated that whenever his sister came to her parental house, she used to tell them that the accused persons are demanding Rs. 10,000/- as dowry. When controverted from the facts, mentioned in the FIR, he has stated that whatever has been mentioned in the FIR is correct. He has further stated that the fact, which he has narrated in the statement that the accused persons harassed her for bringing Rs. 10,000/- from her parental house, is also correct. He has further stated that he is unable to tell that whether demand of Rs. 10,000/- has been mentioned in the FIR or not. 9. One more thing is very important. 10,000/- from her parental house, is also correct. He has further stated that he is unable to tell that whether demand of Rs. 10,000/- has been mentioned in the FIR or not. 9. One more thing is very important. It has no where been stated when the marriage ceremony was performed. It has simply been stated by Videshi PW-1 that Gauna ceremony was performed six years prior to the incident. PW-2 is also the brother of the deceased, and he has also stated same thing, but he has not stated the date of marriage. PW-3 is the father of the deceased, but he has also not stated that when and in which year or how much prior to the incident, marriage of Kewla Devi took place. He has simply stated that Gauna was performed about six years earlier. 10. A perusal of dying declaration, which has been proved by PW-6 clearly reveals that it is a case in which death occurred due to simple reason of some dispute between husband and wife, and husband poured kerosene oil and set her on fire and prosecution has implicated four more persons under Sections 498-A, 304-B, 506 IPC and Section ¾ of the Dowry Prohibition while the FIR and dying declaration does not support the theory of demand of dowry and cruelty for payment of dowry. 11. It is a case in which trial Court should have framed an additional charge of Section 302 IPC against Jawahar, but the trial Court has failed to do so even after dying declaration of the deceased. Since Section 302 IPC is graver offence than Section 304-B IPC, hence conviction of accused Jawahar under Section 304-B IPC cannot be converted in convicted of Section 302 IPC without framing charge under Section 302 IPC. 12. Since Section 302 IPC is graver offence than Section 304-B IPC, hence conviction of accused Jawahar under Section 304-B IPC cannot be converted in convicted of Section 302 IPC without framing charge under Section 302 IPC. 12. The Apex Court in Rajbir @ Raju v. State of Haryana, Crl.M.P. No. 23051 of 2010 dated 22.11.2010 has directed the trial Courts in India to ordinarily add Section 302 to the charge of Section 304-B, but the trial Court has not complied with the directions of the Apex Court The decision of the Apex Court is most appropriate for the instant case in the prevailing circumstances, as there is an evidence under Section 32 of the (Indian) Evidence Act, in form of dying declaration, which, at present does not reveals demand of dowry and harassment or cruelty due to non-fulfillment of demand of dowry. 13. In view of the above, I deem it fit to quash the judgment and conviction of Jawahar, and remand the matter with the direction to the trial Court to frame additional charge of Section 302 IPC, and proceed with the trial in accordance with law within a specific period. 14. In view of the above, without making any comments on the offence under Sections 304-B and 498-A IPC, and without any comments on their conviction and without commenting on the judgment and conviction under Section 4 of the Dowry Prohibition Act, the judgment is liable to be quashed and the sentence of the appellant Jawahar is liable to be set aside, and the appeal is liable to be allowed. 15. In the result, the criminal appeal is allowed. The conviction and sentence of the appellant Jawahar is quashed. The matter is remanded back to the trial Court to frame additional charge under Section 302 IPC, and to proceed with the trial in accordance with law. The trial Court is directed to decide the sessions trial expeditiously, preferably within a period of six months from the date of communication of this order. It is also directed that the trial Court shall not be prejudiced by any observations made in this judgment. 16. The Registrar, High Court Lucknow Bench is directed to communicate the order immediately to the Sessions Judge of the trial Court. Record be also transmitted alongwith communication so that trial may start earlier.