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2015 DIGILAW 42 (CHH)

Chandrahas Upadhyay v. State Of Chhattisgarh

2015-02-03

MANINDRA MOHAN SHRIVASTAVA

body2015
Judgment Manindra Mohan Shrivastava, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 3rd July, 2009 passed by learned Sessions Judge, Mahasamund in S.T. No. 22/09, whereby and whereunder the appellants have been held guilty of commission of offence alleged against them and sentenced as under:- Conviction Sentence U/s. 304-B, read with Section 34 of the IPC R.I. for 8 years and fine of Rs. 2000/-, in default of payment of fine, further R.I. for 6 months U/s. 498-A read with Section 34 of the IPC R.I. for 1 year and fine of Rs. 1000/-, in default of payment of fine, further R.I. for 3 months Case of the prosecution is that the appellant Chandrahas was married to Poonam (since deceased) on 25th April, 2002. It is the case of the prosecution that after marriage, appellant-Chandrahas started harassing and subjecting to cruelty, the deceased Poonam in connection with demand of dowry so much so that the deceased was found dead in the matrimonial house on 16.10.2008. Information regarding death was given to the police and the dead body was sent for postmortem. Dr. Lalit Mohan (P.W. 6) with one Dr. Ajit Kumar Nayak conducted postmortem of the body of the deceased and upon examination of internal and external injuries, prepared report in Ex. P-3. Dr. Lalit Mohan (P.W. 6) opined that death was due to asphyxia caused by hanging and the time since death was stated to be within 24 hours from the time of postmortem. Merg intimation was recorded. Upon merg inquiry, FIR in Ex. P-14 was recorded on 9th January, 2009 in the Police Station-Bagbahara. The police registered offence under Section 304-B of the IPC against the appellant on the allegation that deceased-wife was subjected to cruelty in connection with demand dowry soon before her death. Upon completion of usual investigation, charge sheet was filed in the Court of Judicial Magistrate First Class, who, in turn, committed the case for trial to the Court of Sessions. On the basis of material contained in the charge sheet learned Sessions Judge framed charges against the appellants for commission of offence under Section 304-B read with Section 34 of the IPC as also under Section 498-A read with Section 34 of the IPC. The appellants abjured guilt. They were put to trial. On the basis of material contained in the charge sheet learned Sessions Judge framed charges against the appellants for commission of offence under Section 304-B read with Section 34 of the IPC as also under Section 498-A read with Section 34 of the IPC. The appellants abjured guilt. They were put to trial. In order to prove its case, prosecution examined as many as 12 witnesses. Each of the appellants were examined under Section 313 of the Cr.P.C. in connection with incriminating evidence and circumstances appearing against them. Appellants denied having committed any offence and stated that the deceased was suffering from mental disease so she committed suicide. In order to establish their defence, appellant examined two defence witnesses namely Uday Pratap Singh (D.W. 1) and Manish Neware (D.W. 2). 2. Learned trial Court relying upon the evidence led by the prosecution held the appellants guilty of commission of offence under Section 304-B read with Section 34 of the IPC as also Section 498-A, read with Section 34 of the IPC. 3. Assailing correctness and validity of impugned judgment of conviction and order of sentence, learned counsel for the appellants submits that the prosecution has failed to prove, by leading cogent and reliable evidence, that there was any demand of dowry by the appellants from the deceased Poonam and that she was subjected to cruelty in connection with demand of dowry soon before her death. Learned counsel for the appellants submits that the evidence of Mohanlal Pandey (P.W. 1) father, Smt. Krishna Pandey (P.W. 2) mother, Jai Kishan Pandey (P.W. 3) brother, Paramjeet (P.W. 4) and Mahesh Kumar Pandey (P.W. 5) do not make out any case of demand of dowry. Except use of the word ^ngst* no specific details have been given. It is further submitted that the story of demand of dowry is an improvement upon the diary statement. The father, mother or brother of the deceased never stated in the diary statement regarding demand of dowry and the entire case of the prosecution is that the appellant-Chandrahas, after marriage, lost his job and had become drunkard and kept on asking money from his wife for purchasing liquor and whatever cruelty has been alleged was only under those circumstances. The father, mother or brother of the deceased never stated in the diary statement regarding demand of dowry and the entire case of the prosecution is that the appellant-Chandrahas, after marriage, lost his job and had become drunkard and kept on asking money from his wife for purchasing liquor and whatever cruelty has been alleged was only under those circumstances. It is contended that in the absence of there being any reliable and cogent evidence of demand of dowry, no case of commission of offence under Section 304-B of the IPC is made out. Learned counsel for the appellants further argues that present is a case of false implication on afterthought grounds, because the incident happened on 16.10.2008 when wife of appellant Chandrahas died. However, thereafter, no complaint was made in the police station alleging cruelty and demand of dowry for three months and the FIR was lodged as late as on 09.01.2009 During this period, there was no allegation of any demand of dowry or cruelty. Therefore, the case of the prosecution is highly doubtful and therefore the conviction is liable to be set aside. In the alternative, it is submitted that even if it is held that appellant - Chandrahas is guilty of commission of offence alleged, he has already undergone 6 years of R.I. therefore, the period of sentence may be altered and reduced to the period already undergone. 4. On the other hand, learned counsel for the State supports the judgment of conviction and sentence and submits that minor contradiction and omissions have not impeached the credibility of Mohanlal Pandey (P.W. 1), Krishna Pandey (P.W. 2), Jai Kishan Pandey (P.W. 3), Paramjeet (P.W. 4) and Mahesh Kumar Pandey (P.W. 5) who have all stated that dowry was demanded from deceased Poonam and in connection with demand of dowry, the deceased was subjected to cruelty. He submits that there is evidence on record to prove beyond all doubt that soon before the date of occurrence, the deceased had telephoned in the parental house and had stated that she is being harassed and tortured. The evidence of demand of money of Rs. 50,000/- in the background of dowry demand clearly proves that the deceased was subjected to cruelty in connection with demand of dowry. The evidence of demand of money of Rs. 50,000/- in the background of dowry demand clearly proves that the deceased was subjected to cruelty in connection with demand of dowry. She was found dead in the matrimonial house and the medical report - proves that she died in suspicious circumstances and it was not a normal death. Doctor has proved that the death was due to hanging. The marriage was solemnized within seven years of incident, therefore, all ingredients of commission of offence are made out and the appeal is liable to be dismissed. 5. In the case of Manohar Lal Vs. State of Haryana (2014) 9 SCC 645 , the Supreme Court examined the scope and ambit of provisions contained under Section 304-Bof IPC and the necessary ingredients which are required to be proved before the conviction can be ordered. It was held as under: "18. For the purpose of the said section, a presumption can be raised only on proof of the following essentials: (a) Death of a woman was caused by burns or bodily injury or occurs otherwise than under a normal circumstance; (b) Such death took place within seven years of her marriage; (c) The women was subjected to cruelty or harassment by her husband or his relatives; (d) Such cruelty or harassment was for, or in connection with, any demand for dowry; and (e) Such cruelty or harassment was soon before her death. In this connection, we may refer the decision of this Court in Kaliyaperumal Vs. State of T.N." 6. In the case of Sunil Bajaj Vs. State of M.P., 2001 (9) SCC 417 , the Supreme Court held: (SCC pp, 420-421 para 5 & 6) "5. We have given our attention and consideration to the submissions made by the learned counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence under Section 304-B IPC, the following essentials must be satisfied: (1) the death of a woman must have been caused by bums or bodily injury or otherwise than under normal circumstances; (2) such death must have occurred within 7 years of her marriage; (3) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; (4) such cruelty or harassment must be for or in connection with demand of dowry. 6. It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called "dowry death" and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death under Section 304-B is imprisonment of not less than 7 years, which may extend to imprisonment for life. Unlike under Section 498-A IPC, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case the accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304-B IPC, an exception is made by deeming provision as to nature of death as "dowry death" and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution. In the case on hand, the learned counsel for the appellant could not dispute that the first two ingredients mentioned above are satisfied." 7. The expression "soon before her death" used in Section 304-B of IPC and Section 113-B of the Evidence Act was also considered by the Supreme Court in the case of Hira Lal Vs. State (Govt. of NCT of Delhi) 2003 (8) SCC 80 , which reads as under (SCC pp 85-86 para 8). "8. Section 304-B IPC which deals with dowry death, reads as follows: "304-B. Dowry death.--(1) Where the death of a woman is caused by any bums 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. 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." The provision has application when 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. In order to attract application of Section 304-B IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death should have occurred within seven years of her marriage. (iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband. (iv) Such cruelty or harassment should be for or in connection with demand of dowry. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows: "113-B. Presumption as to dowry death.--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 304-B of the Indian Penal Code (45 of 1860)." The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the preexisting law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B is a presumption of law. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death." 8. Applying the aforesaid principles, the evidence on record is to be examined in order to find out whether a case of commission of offence under Section 304-B IPC is made out or not. 9. In the present case, the death of the deceased was otherwise than under normal circumstances. Poonam was found dead in her matrimonial house. Chintaram (PW 10) has stated that on the date of incident when the door was knocked and it was not opened, he and Chandrahas pushed the door which was opened and they saw that the wife of Chandrahas was hanging with the fan. Thereafter, her dead body was pulled down. He stated that the wife of Chandrahas had hanged herself. 10. The dead body was taken for postmortem and the evidence of Dr. Lalit Mohan (PW 6) proves that the deceased died of hanging. Dr. Lalit Mohan (PW 6) has stated that there were found ligature mark on the neck of the deceased. He has categorically stated in para-7 of his evidence that the deceased died due to asphyxia cased by hanging and it was left to be decided whether in the circumstances, it was homicidal or suicidal. The mode and manner of death, that the dead body was hanging to the fan in the room and cause of death as stated by the doctor proves that the deceased died due to hanging. Therefore, it is proved that the deceased died due to asphyxia, caused by hanging which was a death otherwise than under normal circumstances. 11. Present is a case where the deceased died on 16.10.2008. The postmortem was also conducted on 17.10.2008. Therefore, it is proved that the deceased died due to asphyxia, caused by hanging which was a death otherwise than under normal circumstances. 11. Present is a case where the deceased died on 16.10.2008. The postmortem was also conducted on 17.10.2008. The inquest report on record does not contain anything to suggest that at the time, any of the witnesses stated regarding any dowry demanded by the appellants. It was after almost more than 2 1/2 months that the FIR was recorded in the police station on 09.01.2009 wherein for the first time, the allegation was made that the deceased was subjected to torture and cruelty and there was demand of dowry. Smt. Krishna Pandey (PW 2) mother of the deceased in her cross-examination has sought to explain the delay by stating in para 9 that it was period of election, therefore, the police authorities were not interested in writing report. However, no explanation has come either from the father of the deceased Mohanlal Pandey (PW 1) nor from her brother Jai Kishan Pandey (PW 3) as to why there was so much of delay in lodging FIR. Thus, it is a case where the FIR was lodged after great inordinate delay and the explanation offered for delay is not at all satisfactory. 12. Mohan Lal Pandey (P.W. 1), father of the deceased has deposed that the marriage of his daughter with the appellant, had taken place on 25.4.2002. This being the case of the prosecution, it is also proved that the wife of the appellant Chandrahas died within seven years of marriage. He has stated that his daughter was being harassed by her husband Chandrahas, father-in-law Keshv and mother-in-law for dowry. He deposed that she was asked to do lot of work, due to which she used to fall sick. When she became pregnant, she was left in her parental house in a sick condition and he got his daughter treated. He further deposes that in February 2003, a son was born, but thereafter no proper care was taken by the husband and his family members nor any expenses were provided. When child became 8 months old, appellant Chandrhas had taken his wife back stating that he would not repeat ill-treatment. But, thereafter also, he continued to torture his daughter Poonam in connection with dowry. When child became 8 months old, appellant Chandrhas had taken his wife back stating that he would not repeat ill-treatment. But, thereafter also, he continued to torture his daughter Poonam in connection with dowry. He has further deposed that 6 to 7 times Poonam was brought back to parental house and then after 4-6 months, she was sent back to matrimonial house and she used to tell him that appellant Chandrahas was harassing her and abusing along with the mother-in-law and father-in-law, due to which she used to fall sick time and again. It is before the death of his daughter, she had informed that mother-in-law had a dispute with her brother-in-law and she was beaten by him so she has left for own parental house. He then deposes that 2-4 days before the date of incident, Poonam had telephoned stating that she is being subjected to cruelty in the matrimonial house and thereafter on 16.10.2008, information was received regarding sickness and then he reached hospital. His daughter was found dead. In his examination-in-chief, this witness has not specifically stated about the items demanded by way of dowry and all that has been stated is that dowry was demanded. The details of such demand has not been stated in his evidence. However, the evidence of this witness shows that the deceased had been complaining about torture and cruelty. He has also deposed that once upon a time, he had given Rs. 50,000/- to his son-in-law, the appellant so that he could start his work. In his cross-examination, this witness has stated that his daughter mostly resided in the parental house. The appellant used to come for compromise and take her back. 9 months before her death, she last resided in her parental house. This witness also states that upon receipt of information of death, he had seen the dead body in the hospital at Kharihar-road and the police had also arrived. After inquest, the dead body was also sent for post mortem and after post mortem, the dead body was handed over to the appellant and the dead body was cremated at Komakhan, the matrimonial place and he had also attended. This witness has been confronted with his case diary statement Ex. D-1 and he admitted that he is unable to explain why he has not stated regarding torture and at the same time states that he suspected murder. This witness has been confronted with his case diary statement Ex. D-1 and he admitted that he is unable to explain why he has not stated regarding torture and at the same time states that he suspected murder. In the diary statement with which witnesses has been confronted (Ex. D-1), there is no allegation of demand of dowry and cruelty in connection with demand of dowry. It is thus clear that in so far as the allegation of demand of dowry is concerned, that is clearly an improvement in the Court statement. 13. The mother of the deceased namely Smt. Krishna Pandey (P.W. 2) has stated that her daughter was being harassed in connection with demand of dowry. However, what dowry was demanded and when it was demanded, has not been stated in her evidence. She has also not stated which items were being demanded. She has stated that her daughter was time and again shunted out from matrimonial house. She has also deposed that her daughter was assaulted by her mother-in-law and husband and she was being ignored. Two days before her death, she had called that her husband and other members in the house are harassing and her husband in drunken condition demands money. Thereafter, information was sent regarding daughter being admitted in the hospital where she was found dead. She states that her statement was taken by the police after two months of the incident. She has further stated that the version that her daughter used to beat by her mother-in-law was not stated by her in her police statement. In para-9 of her cross-examination, she has admitted that for two months, no complaint was made in the police station. The explanation for not lodging report is that it was a voting period and the police was not prepared to take report, which is not at all satisfactory explanation. Thus, in the evidence of mother Smt. Krishan Pandey (P.W. 2) also, there is no specific allegation with regard to demand of dowry and allegation are omnibus in nature. 14. Jai Kishan Pandey (P.W. 3), brother of deceased, has stated that she was being harassed by in-laws including her husband. She was beaten up. Her in-laws used to beat her and the deceased used to tell him over telephone that she is being harassed and tortured. 14. Jai Kishan Pandey (P.W. 3), brother of deceased, has stated that she was being harassed by in-laws including her husband. She was beaten up. Her in-laws used to beat her and the deceased used to tell him over telephone that she is being harassed and tortured. He has also stated that deceased was being tortured in connection with demand of dowry but he has not clearly spelt out as to what was being demanded in the name of dowry and when such demand was made. In this regard, the evidence of this witness is also not very specific and the complaint with regard to demand of dowry are omnibus in nature without any specific details. He has also stated that the statement was taken by the police after two months of the date of incident. He further admitted in her cross-examination that he had not leveled any allegation of cruelty nor his statement recorded by the police. This witness further states that nobody including him had made any complaint to the police regarding cruelty in connection with dowry. 15. Paramjeet (P.W. 4) has stated that when he had gone to the house of Mohan Lal Pandey (P.W. 1), he saw that Poonam was weeping and upon being asked, she said that her in-laws are beating her and time and again, money is being demanded. She also stated that a demand of Rs. 50,000/- was made. In his cross-examination, he says that deceased Poonam has stated regarding such demand 1 & 1/2 months before the date of incident. In para-4 of his evidence, he states that when his diary statement was taken by the police after 2-3 months of the incident, he had not stated all such things which were told to him by the deceased. 16. Mahesh Kumar Pandey (P.W. 5) has stated that he had gone to Komakhan along with brother of Poonam on number of occasions and in his presence, Poonam used to tell her brother that her husband, father-in-law and mother-in-law harassed and tortured her and she was also assaulted. 17. The evidence of the aforesaid prosecution witnesses, do not make out a case of demand of dowry by the appellants from the deceased. 17. The evidence of the aforesaid prosecution witnesses, do not make out a case of demand of dowry by the appellants from the deceased. Though there are allegation of harassment, torture and beating as also ill-treatment meted out to the deceased, in so far as demand of dowry is concerned, the evidence in this regard is of general nature without any specific details as to which items were demanded as dowry, and when such demand was made and by whom. Moreover, the evidence of the prosecution witnesses also shows that the story of demand of dowry is an improvement upon the case diary statement. Therefore, from the entire reading of the prosecution evidence, it has to be held that the prosecution has failed to prove beyond reasonable doubt that there was demand of dowry by the appellants from the deceased and the deceased was subjected to cruelty in connection with demand of dowry. 18. Having held so, one of the essential ingredients of commission of offence under Section304-B of the IPC that the cruelty was in connection with demand of dowry is not made out. Therefore, the conviction of the appellants under Section 304-B is unsustainable in law. 19. However, evidence of Mohan Lal Pandey (P.W. 1.), Smt. Krishna Pandey (P.W. 2), Jai Kishan Pandey (P.W. 3), Paramjeet (P.W. 4) and Mahesh Kumar Pandey (P.W. 5) prove beyond all doubt that the deceased was not given proper treatment in her matrimonial house. She was being tortured, harassed and also assaulted by the appellants. All the witnesses have stated that deceased had been continuously making complaint regarding torture, harassment and beating by the appellants in the matrimonial house. The deceased had only 6 years old child. Evidence has come on record that her husband had left the job and used to demand money, as he had become drunkard also. The witnesses have specifically stated regarding harassment and cruelty subjected to deceased by both the appellants. Therefore in so far as conviction of the appellants under Section 498-A of the IPC is concerned, it does not warrant any interference. In the result, the appeal is partly allowed. The conviction of the appellants under Section 304-Bread with Section 34 of the IPC is declared illegal and the appellants are acquitted of the charges of commission of offence under Section 304-B/34 of the IPC. In the result, the appeal is partly allowed. The conviction of the appellants under Section 304-Bread with Section 34 of the IPC is declared illegal and the appellants are acquitted of the charges of commission of offence under Section 304-B/34 of the IPC. The conviction of the appellant under Section 498-A read with Section 34 of the IPC is upheld. As the appellant No. 1 has already undergone more than 6 years of imprisonment, he be set at liberty forthwith. Appellant No. 2 has remained in jail from 6.4.2009 to 11.5.2009 and thereafter she was granted bail by this Court on 3.8.2009. Therefore, her bail bonds are cancelled. Appellant No. 2 be taken into custody to serve the remaining part of sentence awarded to her under Section498-A read with Section 34 of the IPC.