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2013 DIGILAW 457 (ALL)

DEEP CHAND v. STATE OF U. P.

2013-02-07

ANIL KUMAR SHARMA, RAKESH TIWARI

body2013
Anil Kumar Sharma, J. Heard Sri Anjani Kumar Dubey, counsel for the appellants, Ms. Usha Kiran, learned A.G.A. for the State, and perused the record. Both the criminal appeals challenge the judgment and order dated 10.11.2004 passed by District & Sessions Judge, Kannauj in S.T. No. 295 of 2003, convicting and sentencing each of the appellant under section 302/34 I.P.C. with imprisonment for life, convicting and sentencing each one of them under section 498-A I.P.C. for 2 years R.I. and further convicting and sentencing them under section 201 I.P.C. for period of 3 years R.I. Since both the connected appeals emanate from the common judgment and are entwined by same facts and law, therefore, they have been heard together and are being decided by this judgment. The facts germane to the appeal and culled out from record, are that a written report dated 7.4.2003 was submitted by the complainant-Shital Prasad son of late Shiv Pal, R/O Village-Mahoi, P.S. & Tehsil-Derapur, District-Kanpur Dehat; that he had married his daughter Radha Devi ( since deceased) to Deep Chandra in village-Goora, according to Hindu rites; that her in-laws were torturing her since the day of marriage regarding which his daughter had written letters addressed to him many a times narrating that her in-laws are pressurising her to bring Rs.50,000/- from her father; that when the complainant went to the house of the in-laws of his daughter, Deep Chandra, ( husband), Ratan Lal ( father-in-law), Smt. Munni Devi ( mother-in-law) and Sanjai son of Ratan Lal, had beaten him asking him to go back. The complainant had thereafter come back to his house. It is stated in the written report that after 2-3 days, an unknown person informed the complainant by telephone at about 6.00 A.M. that his daughter has been killed by her in-laws. On hearing this, the complainant went to the house of the in-laws of his daughter where he was informed that dead body of his daughter has been taken for cremation at the Ghat. The complainant then went to the police station-Tirwa and informed the police which accompanied him towards Rajghat where dead body of his daughter was said to be cremated. However, it was found in the river near the Ghat; that the in-laws of the deceased on seeing police ran away. The complainant then went to the police station-Tirwa and informed the police which accompanied him towards Rajghat where dead body of his daughter was said to be cremated. However, it was found in the river near the Ghat; that the in-laws of the deceased on seeing police ran away. The complainant in the written report also prayed that since his daughter was being tortured by her in-laws since the day of her marriage, and ultimately she has been murdered, appropriate action may be taken against them. After submission of the written report, chick report was prepared and case was entered in the G.D. at about 19.00 hours on 7.4.2003 being registering Case Crime No. 198 of 2003, under section 302/34, 498-A, 201 IPC and under section 3/4 of Dowry Prohibition Act, in police station-Tirwa, District-Kannauj, against the accused namely, Deep Chandra son of Ratan Lal, Ratan Lal son of Chandrashekhar, Smt. Munni Devi ( mother-in-law), Sanjai son of Ratan Lal and Smt. Santoshi Devi wife of Sanjai. The distance of police station from the place of occurrence was about 10 km. The investigation of the case was taken up by C.O. Tirwa, District-Kannauj. After inquest, the body of the deceased was sealed in cloth and sent on 8.4.2003 for post mortem by Naib Tehsildar at about 9.30 P.M. in the custody of C.P. 394- Virendra Singh and C.P233- Pramod Kumar. The post mortem on the cadaver of dead body of deceased was conducted by Dr. Satendra Kumar ( P.W. 3) in the presence of Dr. R.D. srivastava. A perusal of post mortem report shows that the doctor on external examination reported the deceased to be aged about 30 years of average body built, her eyes were bulging and congested, nails & lips were cynosed. Rigour mortis had passed all over body. On initiation of internal examination her abdomen opened with a sound. In the opinion of the doctor, death was caused due to Asphyxia as a result of throttling. The following ante mortem injuries were also found on the body of the deceased. 1.Contusion 4 cm x 2 cm over right side chin. 2.Contusion 3 cm x 2 cm over left side neck at upper part. 3.Contusion 6 cm x 2.5 cm at mid of neck on front and left side. 4.Contusion 3 cm x 2 cm over medial aspect of left elbow. 1.Contusion 4 cm x 2 cm over right side chin. 2.Contusion 3 cm x 2 cm over left side neck at upper part. 3.Contusion 6 cm x 2.5 cm at mid of neck on front and left side. 4.Contusion 3 cm x 2 cm over medial aspect of left elbow. 5.Contusion 2.5 cm x 1 cm on dorsum of right forearm at middle. 6.Contusion 8 cm x 5 cm right side chest over breast. 7.Contusion 4 cm x 3 cm on outer side of right leg at lower 1/3. On completion of investigation, charge sheet was submitted by the I.O. After committal of the case with Court of Session charges under section 302/34, 498-A and 201 IPC were proved against the accused who abjured the guilty and claimed trial. The prosecution in support of its case produced 6 witnesses, namely- Shital Prasad-P.W. 1, Vimlesh Kumar-P.W.2, Dr. Satendra Kumar-P.W.3, Dr. Rajesh Kumar-P.W.4, Mahesh Misra-P.W.5 and Omkar Singh-P.W. 6. The statement of accused under section 313 Cr. P.C. were recorded. They did not adduce any evidence in defence. The trial court by impugned judgment dated 10.11.2004 held accused-Deep Chandra and Ratan Lal guilty of offence committed by them under section 302/34, 498-A and 201 IPC, whereas Smt. Munni Devi was acquitted from the charges. The accused- Deep Chandra and Ratan Lal have filed these appeals on the ground that the charge against the appellants was framed under section 304-B IPC and they have been convicted under section 302 IPC, hence without framing of charge under aforesaid section, conviction is bad in law. The contention of counsel for the appellants is that as per prosecution case, marriage of Smt. Radha Devi ( since deceased) was solemnized more than 7 years back from the date of incident; that there is no evidence of her murder having been committed by the accused-appellants; that initially FIR was lodged at police station on 7.4.2003 vide G.D. entry no. 22, hence lodging of subsequent FIR by the complainant is hit by section 162 Cr.P.C. He further submits that the letters which are alleged to have been written by the deceased, were never made available to the I.O. during the course of investigation, therefore, those letters could not be read in evidence for conviction of appellants and that the evidence on record have not been judiciously considered. Therefore, conviction of appellants in the facts and circumstances by drawing adverse inference against them is bad in law. Learned counsel for the appellants further submitted that there are material contradiction in the evidence on record and the statement of witnesses. According to him, FIR does not show that the deceased was being harassed and tortured by her in-laws to bring the amount of Rs.50,000/-. It is stated that this is an improvement brought by the prosecution at a subsequent stage. In this regard, he has relied upon statement of P.W. 1 which being the focal point for conviction of the accused reproduced below: @ Hindi @ Counsel for the appellants then argued that the appellants had never absconded and it is apparent from the statement of P.W. 1 that information was given to him by the accused persons on telephone; that there is again a contradiction in the statement of P.W. 1 that he had received information of unnatural death of his daughter by telephone or by telegram though in his cross-examination he has admitted that he knows differences between telephone and telegram and that he has received information regarding death of his daughter by telephone. Per contra, learned A.G. A. has argued that information was not given on telephone to her parents by the in-laws of Radha Devi ( since deceased); who without giving any information either to the police or informing her parents threw her dead body in water of 'Kali Nadi' near the Ghat in a scheduled place. It is urged that neither any relative nor villagers of deceased were present when her body was being taken by her in-laws in a hush manner; and that since body of the deceased was found in the house of the appellants, burden of proof was on them to discharge and explain how the injuries on her cadaver had come. Learned A.G.A. has further argued that since the marriage of Radha Devi was solemnized more than 7 years earlier, therefore, dowry death could not be presumed. However, it is apparent from the letters of the deceased written to her parents that her in-laws were torturing her mentally and physically for bringing Rs.50,000/- from her father, who was also beaten by them when he had gone to village Goora. However, it is apparent from the letters of the deceased written to her parents that her in-laws were torturing her mentally and physically for bringing Rs.50,000/- from her father, who was also beaten by them when he had gone to village Goora. There is strong circumstance that she was done away with by her in-laws, particularly in view of the fact that accused-appellants and their parents had tried to disguise her unnatural death, as death by suicide or hanging. We have heard counsel for the parties and perused the record. The circumstantial evidence which leads to guilt of accused-appellants only and no one else, is as follows: 1.Radha Devi ( since deceased) was married to Deep Chandra about more than 7 years back; 2.Deep Chandra ( husband of deceased), Ratan Lal ( father-in-law),Smt. Munni Devi ( mother-in-law) were not satisfied with the dowry given in the marriage and they were not only pressurising the deceased, but they were torturing her to bring Rs.50,000/-. 3.Father of the deceased pleaded that on several occasions in-laws of his daughter beaten her for bringing the money. Admittedly, the deceased was a young lady of 30 years of age. Post mortem report of her body shows that her death was caused due to throttling and not hanging. It may be pointed out here that when the complainant after information of unnatural death of his daughter reached with police on the spot where her body had been thrown in the water of 'Kali Nadi', they found mouth of deceased tied with two 'gamchhas' or towels and injuries could be seen on the body, particularly on the left eye. Symptoms of post mortem report showed the classic cause of strangulation in which eyes were closed, nails and lips were synozed. It is evident from the statement of P.W. 1 that information regarding unnatural death of deceased was received from some other person other than her in-laws, even mother-in-law of deceased did not know whereabouts of Radha Devi ( since deceased). From the statement of Dr. Santosh Kumar, Senior Radiologist, who was posted on 8.4.2003 on post mortem duty and had conducted post mortem of Radha Devi, it is apparent that injuries no. From the statement of Dr. Santosh Kumar, Senior Radiologist, who was posted on 8.4.2003 on post mortem duty and had conducted post mortem of Radha Devi, it is apparent that injuries no. 1,4,5,6 and 7 could have been caused before her death and could not have come on the body, if she had fallen once before her death, rather these injuries could come when she colluded with some solid things. The statement of Dr. Santosh Kumar reads thus: "CHOT NO. 1,4,5,6,7 MRITU HONE SE PURVA KISI BHI CHHAN AANA SAMBHAV HAI. YAH SABHI CHOTEN YADI MRITU SE PURVA GIRI HO TO EK VAR ME UPROKT SABHI CHOTEN AANA SAMBHAV NAHI HAI. JIVIT AWASTHA ME KISI SAKHAT CHEEJ SE TAKRANE PAR YAH CHOTEN AANA SAMBHAV HAI". From the above statement, it is clear that the injuries on the body of the deceased were caused when she was alive and had resisted her throttling. Even otherwise if the argument of the defence counsel that she had hanged herself and committed suicide is taken on its face value then neither injuries upon her body are explained as stated by the doctor nor there is any explanation as to how her mouth was found tied by two 'Gamchhas' or towels when the body was recovered by the police from the water of 'Kali Nadi' where the in-laws had thrown it, before running away on seeing police with the complainant. Therefore, in our considered opinion, the court below has rightly come to the conclusion that the accused-appellants have failed to discharge their burden of proof that as to how the injuries were caused before her unnatural death and particularly of the fact that body was found in the water. The manner in which accused-appellants have tried to dispose of the body of the deceased without even informing her parents who was informed by third person of the village, as well as the fact that her mother-in-law did not tell them whereabouts the body of deceased and how she died on inquiry being made by them, is sufficient proof of their conduct that they were guilty of doing away with Radha Devi. The letters and evidence of prosecution witnesses clearly establish that there was a demand of money by the accused-appellants from the parents of the deceased. The letters and evidence of prosecution witnesses clearly establish that there was a demand of money by the accused-appellants from the parents of the deceased. For the reasons stated above and in view of the facts and circumstances of the case, we affirm the view taken by the court below in the impugned judgment and order. Accordingly, the conviction and sentence by the court below is upheld. In result, both the appeals stand dismissed. Let a copy of this order be certified to the concerned Chief Judicial Magistrate for immediate compliance.