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2016 DIGILAW 1993 (ALL)

Heeralal v. State of U. P.

2016-05-23

ARVIND KUMAR MISHRA I

body2016
JUDGMENT Arvind Kumar Mishra-I, J. – Heard Sri Shiv Pal Singh, learned Amicus Curiae on behalf of the appellant, Sri S.A.M. Zaidi, learned AGA for the State at length and perused the record. 2. This jail appeal has been preferred by convict-accused Heeralal son of Asharfi Lal against the judgment and order of conviction dated 31.07.2012 passed by the Additional Sessions Judge, Court No. 3, Lakhimpur Kheri in Sessions Trial No.1081 of 2009 arising out of Case Crime No.497 of 2007, under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, Police Station Singahi, District Kheri, whereby the appellant has been sentenced, under Section 498-A IPC, to two years rigorous imprisonment coupled with fine of Rs. 2,000/-, in case of default, he would have to suffer two months' additional simple imprisonment. He has been further sentenced, under Section 304B IPC, to ten years' rigorous imprisonment coupled with fine of Rs. 5,000/-, and in case of default, he would have to suffer six months' additional simple imprisonment. He has been further sentenced to one year's rigorous imprisonment coupled with fine of Rs. 2,000/-, in case of default, he would have to suffer two months' additional imprisonment under Section 4 of the Dowry Prohibition Act. All the sentences shall run concurrently. 3. Brief facts of this case as discernible from record appears to be; that first informant Daya Ram son of Sri Bhagwan Deen resident of Bhedaura, P.S. Singahi, District Lakhimpur Kheri, lodged a written report at police station Singahi, District Lakhimpur Kheri on 04.12.2007 with accusation regarding dowry death of his sister Kanyawati who was wedded to Heeralal son of Asharfi Lal one year ago. For about 10 to 12 days, his sister and brother-in-law were missing from their house. His brother-in-law (appellant) used to work as driver in Batra's farm house. Today the informant came to know that the dead body of his sister was lying in the sugarcane field of Batra's farm. He suspects that his brother-in-law Heeralal has murdered his sister and has thrown her body in the sugarcane field because he used to demand dowry from her. Report be lodged and action be taken. This report is exhibit Ka-1. 4. He suspects that his brother-in-law Heeralal has murdered his sister and has thrown her body in the sugarcane field because he used to demand dowry from her. Report be lodged and action be taken. This report is exhibit Ka-1. 4. The contents of the first information report were taken down in the check FIR at Crime no.496 of 2007 under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, Police Station Singahi, District Kheri on 04.12.2007 at 3.10 p.m. Check FIR is exhibit Ka-3. On the basis of entries so made in check FIR, the case was registered against the appellant at report no. 27 in GD of the same day (04.12.2007) at the aforesaid crime number under aforesaid sections of IPC and Dowry Prohibition Act at P.S. Singahi. Carbon copy of GD is exhibit Ka-4. 5. Thereafter, investigation of the case started and was taken over by Sri Ram Kishun, the then Circle Officer of the concerned District. Inquest report of the deceased was prepared on 04.12.2007. It commenced at 16.20 hours and completed at 17.45 hours. In the opinion of 'Panchans', it was thought proper to send the body of the deceased for post mortem examination in order to ascertain real cause of death. This inquest report is exhibit Ka-2. 6. Thereafter, relevant papers were prepared for sending the dead body of the deceased for post mortem examination, i.e. Photonash exhibit Ka-8, specimen seal exhibit Ka-9, challan of dead body (police form no. 13) exhibit Ka-10, Letter to R.I. exhibit Ka-11, letter to Chief Medical Officer, Lakhimpur Kheri exhibit Ka-12. Thereafter, dead body of the deceased Kanyawati was sent to district Hospital, Kheri where post mortem examination was conducted by Dr. P.B. Gaur, on 05.12.2007 at 3.00 p.m. who found following antemortem injuries on the body of the deceased Kanyawati: - i. Contusion 15 cm x 3 cm over front of neck 5 cm below chin and 5 cm below right ear. On dissection subcutaneous tissues ecchymosed and hyoid bone found fractured. Trachea found deeply congested. ii. Contusion 3 cm x 3 cm over back on right elbow. 7. In the opinion of doctor, cause of death was due to asphyxia as a result of ante-mortem injury and strangulation. Post mortem examination report is exhibit Ka-7 on record. 8. On dissection subcutaneous tissues ecchymosed and hyoid bone found fractured. Trachea found deeply congested. ii. Contusion 3 cm x 3 cm over back on right elbow. 7. In the opinion of doctor, cause of death was due to asphyxia as a result of ante-mortem injury and strangulation. Post mortem examination report is exhibit Ka-7 on record. 8. The Investigating Officer also prepared site plan of the place from where the body of the deceased Kanyawati was recovered. He has proved the same as Exhibit Ka-5. After completing investigation, the Investigating Officer filed charge sheet against the appellant in his abscondence. Charge sheet is exhibit Ka-6 on record. Thereafter, in due course of time, the appellant was arrested and was put to face the trial. 9. The learned trial court, after hearing the appellant on point of charge, recorded its prima-facie satisfaction for framing charge under Sections 498-A, 304-B IPC and in the alternative under Section 302 IPC and 4 Dowry Prohibition Act. The charges were read over and explained to the accused who denied charges and opted for trial. 10. In turn, the prosecution was asked to adduce its testimony in order to prove its case. The prosecution in all produced six witnesses. A brief reference of the same is sketched hereunder: 11. Daya Ram PW-1 is the first informant and brother of deceased. Pooran PW-2 is witness of fact regarding dowry demand. He is brother of the deceased and has proved demand of dowry and cruelty being perpetrated on the deceased by the appellant. Ram Bux Pal PW-3 is Head Moharrir who made entries in the relevant check FIR and GD, exhibit Ka-3 and Ka-4, respectively. Ram Kishun PW- 4 is the Investigating Officer. He has detailed various steps which he took in completing the investigation. He has proved filing of charge sheet (exhibit Ka-6). Dr. Prakash Babu Gaur PW-5 has conducted post mortem examination on the dead body of the deceased. He has proved the same as exhibit Ka-7. Mahendra Kumar Srivastava PW-6 is Nayab Tehsildar who got prepared the inquest report exhibit Ka-2. He has also proved papers exhibit Ka-8 to Ka-12. 12. Thereafter, evidence for the prosecution was closed and statement of appellant was recorded under Section 313 Cr.P.C. wherein he has termed his implication false stating that his wife used to live alone. Mahendra Kumar Srivastava PW-6 is Nayab Tehsildar who got prepared the inquest report exhibit Ka-2. He has also proved papers exhibit Ka-8 to Ka-12. 12. Thereafter, evidence for the prosecution was closed and statement of appellant was recorded under Section 313 Cr.P.C. wherein he has termed his implication false stating that his wife used to live alone. Some anti-social elements tried to commit rape on her and on opposition being raised, they murdered her and threw her body away in the sugarcane field. No specific testimony has been led by the defence. 13. After hearing both the sides on merits, the trial court vide impugned judgment dated 31.07.2012 convicted the appellant under aforesaid charges and awarded sentence under Sections 498A, 304B IPC and Section 4 Dowry Prohibition Act and acquitted of alternative charge under Section 302 IPC. 14. Consequently, this appeal. 15. It has been vociferously contended by learned counsel for the appellant that in this case, all the ingredients as laid down under Section 304B IPC have not been proved. The fact of cruelty and dowry demand have not been specifically established by the prosecution. The appellant has nothing to do with the dowry demand and the alleged dowry death. The demand of dowry has not been specifically proved by the prosecution. The appellant is in jail for the last 7 years. The police has wrongly roped in, the applicant in this case. There is no link evidence against the appellant connecting him with the crime. Virtually, it is no evidence case against the appellant. 16. Sri S.A.M. Zaidi, learned AGA has refuted aforesaid argument by contending that in so far as ingredients of dowry death as contained under Section 304B IPC are concerned, the same have been well proved. The fact of cruelty and demand of dowry have been specifically proved by testimony of two witnesses of fact i.e Daya Ram PW-1 and Pooran PW-2 who are brothers of deceased Kanyawati. 17. The appellant himself has suggested that some antisocial elements tried to commit rape on the deceased Kanyawati. On opposition being made to the same, she was murdered and her body was thrown in sugar cane field. This specific fact was neither proved by circumstances nor by post-mortem examination report nor by any independent testimony. More so, the appellant had been absconding for about one year and 10 months after the incident. On opposition being made to the same, she was murdered and her body was thrown in sugar cane field. This specific fact was neither proved by circumstances nor by post-mortem examination report nor by any independent testimony. More so, the appellant had been absconding for about one year and 10 months after the incident. His presence could be secured after filing of charge-sheet and only after issuance of process under Sections 82 and 83 Cr.P.C. The presumption of dowry death, under facts of the case, is to be drawn under Section 113 B of the Evidence Act. Now it is up to the appellant to rebut the presumption of dowry death which under circumstances has not been rebutted. 18. Considered above submissions also. 19. Before proceeding further with the case, it would be proper to consider the contents of the written report dated 04.12.2007 (exhibit Ka-1). Perusal whereof reflects that it alleges fact that the dead body of the deceased Kanyawati was lying in sugarcane field of Batra's farm. It has been specifically alleged that the appellant used to demand dowry from the deceased and there is every reason to believe that he has caused dowry death and has thrown away the dead body in the sugarcane field. One very special circumstance has been described in the FIR relating to fact that both the deceased and her husband (brother-in-law of complainant) were missing from home for about 10 to 12 days. Obviously, this is very particular circumstance of this case and its effect will be considered at appropriate stage, as and when the context so required. 20. Before proceeding further, it would be appropriate to take into account Section 304B IPC which is reproduced hereunder: "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. 21. (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. 21. Here the basic ingredients regarding dowry death can be easily taken note of by referring - to fact that it should be death of a woman and the death should have been caused by any burns or bodily injury or it occurs otherwise than normal circumstances and this death should occur within seven years of marriage and next it should be shown that soon before her death the lady was subjected to cruelty or harassment by her husband or any relatives of her husband for or in connection with the demand of dowry, then this death shall be called 'dowry death' and persons so causing death shall be deemed to have caused her death. 22. Now I have to consider each of the aforesaid ingredients of dowry death as to whether the same have been proved or not by the prosecution vis-a-vis testimony and circumstances of the case. On the point qua fact of marriage of deceased with appellant, it has been stated by the two witnesses of fact Daya Ram PW-1 and Pooran PW-2 that the marriage took place about 3 to 4 years ago (when their testimony was recorded). The testimony of Daya Ram PW-1 was recorded on 02.02.2011 and testimony of Pooran PW-2 was recorded on 16.04.2011. This part of their statement has not been specifically challenged and there is nothing adverse surfacing in their cross examination which may create any doubt on the prosecution version that the marriage did not take place as claimed by these two witnesses. Therefore, fact of death of deceased Kanyawati within seven years of her marriage with the appellant is well established by testimony of PW-1 and PW-2. 23. It has been stated in their testimony that the deceased Kanyawati was their sister who was married with the appellant. The appellant used to reside in their village. Various articles were presented in the marriage according to their capacity, but after marriage Heeralal was not satisfied with dowry and he demanded TV, Cycle, utensils etc. and he used to beat their sister. Heeralal also demanded dowry from both these witnesses but they could not give any dowry because of their poor financial condition. Various articles were presented in the marriage according to their capacity, but after marriage Heeralal was not satisfied with dowry and he demanded TV, Cycle, utensils etc. and he used to beat their sister. Heeralal also demanded dowry from both these witnesses but they could not give any dowry because of their poor financial condition. They somehow tried to pacify the appellant but he was relentless. When the deceased came to them, they were told about demand of dowry and cruelty perpetrated by the appellant on her, for not fulfilling demand of dowry. Thus fact of demand of dowry and consequent cruelty also stand established against the appellant. More so, the post mortem examination report establishes cause of death due to asphyxia as a result of strangulation. This by itself is suffice to hold that the death in question is unnatural. In the testimony of PW-1, it has been stated on page 2 that the deceased came to his house 2-3 days prior to her death. She told him that Heeralal beats her for not fulfilling demand of dowry. In his cross examination, he has stated that demand of dowry was raised after 2-3 months of the marriage. These facts have been virtually established and no reasonable doubt exists to disbelieve this testimony regarding dowry demand and cruelty being perpetrated by the appellant on the deceased for not fulfilling demand of dowry. 24. Thus, the factum of marriage within 7 years of death is proved. The death is admittedly unnatural one. The demand of dowry and cruelty being perpetrated to the deceased, for or in connection with such demand of dowry, has also been proved by the prosecution witnesses. This nexus between demand of dowry coupled with fact of cruelty and death is closely connected, therefore, it is obvious that soon before her death Kanyawati was subjected to cruelty and harassment by the appellant and her dead body was thrown away in sugar cane field of Batra's farm. 25. Now relevant query arises as to what the appellant was doing for about 10 to 12 days after her wife was missing. What was his whereabouts in those days. Why did he not inform anyone about disappearance of his wife? Why did he not inform family members of the deceased Kanyawati about her disappearance. 25. Now relevant query arises as to what the appellant was doing for about 10 to 12 days after her wife was missing. What was his whereabouts in those days. Why did he not inform anyone about disappearance of his wife? Why did he not inform family members of the deceased Kanyawati about her disappearance. The most relevant aspect is that he did not inform even the police about disappearance of his wife. This particular aspect remained shrouded in mystery till date. 26. At this stage, it would be relevant to have discussion on the post mortem report (exhibit Ka-7). Bare perusal of the same indicates that there are two specific ante-mortem injuries noted on the body of deceased. The first one is on the neck itself. It is specified as contusion 15 cm x 3 cm over front of neck 5 cm below chin and 5 cm below right ear. On dissection subcutaneous tissues ecchymosed and hyoid bone found fractured. Trachea found deeply congested. The second injury mentions contusion 3 cm x 3 cm over back on right elbow. 27. The duration of death was stated to be about 10 days. This by itself is sufficient to infer that for about at least 10 days, appellant's wife was missing, but he kept silence and did not inform anybody about the same, whereas, he has taken plea that some anti-social elements tried to commit rape on her and on opposition being made to the same, she was murdered and her body was thrown away in sugarcane field of Batra's Farm. 28. This aspect of suggested rape (by the appellant) is strange imagination of the appellant. How can he guess this particular incident of rape in the absence of any cogent testimony or circumstance to that effect on record. There is nothing on record which may give any inkling or force to such suggestion regarding sexual assault on the deceased. Even the post mortem examination report does not suggest commission of any rape on the deceased. Obviously, the point so raised should either be established by circumstance or by some evidence. Therefore, suggestion of rape does not hold ground. 29. Even the post mortem examination report does not suggest commission of any rape on the deceased. Obviously, the point so raised should either be established by circumstance or by some evidence. Therefore, suggestion of rape does not hold ground. 29. It is one of the circumstances that after the investigation was over, the whereabouts of the appellant was not known and after filing of charge-sheet, his presence could be secured only when non-bailable warrant was issued pursuant to issuance of process under Section 82 and 83 Cr.P.C. This fact has been proved by the Investigating Officer, Ram Kishun-PW-4. The application so moved for issuance of non-bailable warrant has been proved as exhibit Kha-8 and Kha-9. It is obvious that at the time of her death, the deceased Kanyawati was in custody of her husband and it was upto the appellant to explain circumstances and fact of death as to how she died. 30. All the essential ingredients of Section 304B IPC have been proved and established. Now the presumption will be drawn against the appellant for causing dowry death by virtue of Section 113B of the Indian Evidence Act. Ready reference of Section 113B of the Evidence Act is required to be made at this stage. "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." 31. As per Section 113B of the Evidence Act, presumption as to dowry death will be drawn against the appellant. Now it is up to the appellant to disprove and rebut this presumption. Obviously, the appellant has not come out with any clarification regarding death of the deceased Kanyawati that it was caused while rape was attempted to be committed on her. To say that all ingredients of dowry death as contained under Section 304B IPC have not been established by the prosecution is not acceptable. 32. Here in this case, all ingredients of Section 304B IPC have been established by the prosecution which invariably raises presumption contained under Section 113B of the Indian Evidence Act which presumption remained unrebutted by the appellant. 32. Here in this case, all ingredients of Section 304B IPC have been established by the prosecution which invariably raises presumption contained under Section 113B of the Indian Evidence Act which presumption remained unrebutted by the appellant. Obviously, the circumstances are so strewn and placed that they indicate exclusive involvement of the appellant in the commission of the alleged crime (under Section 304B IPC). For reasons best known to the appellant, he kept silent for at least 10 days after the death of his wife and he was absconding ever since. His abscondence continued for over 22-23 months, for which no plausible explanation has been given by the appellant. 33. No doubt, fact of mere abscondence will not link an accused with the crime but abscondence in particular circumstance, like the present one, must be reasonably explained and clarified on the part of the accused. Here non explanation of the appellant's abscondence after disappearance of his wife from his house is pointing to the guilt of the appellant himself. It is admitted fact that 3-4 days prior to her death, the deceased had visited house of her brother and had told about ill treatment and harassment to PW-1 and PW-2 by the appellant for not fulfilling demand of dowry. There is no motive for false implication of the appellant by the first informant. 34. Testimony of all the prosecution witnesses is innocuous, clinching and inspiring confidence and nothing adverse comes out of their cross examination. It is a special circumstance that no one knew anything about death of deceased till recovery of her dead body and conduction of post mortem examination; but the appellant came out with specific case of sexual assault by anti-social elements on the deceased. In such a scenario, it was open to the appellant to have come out with some cogent evidence or circumstance which could have supported such claim or hypothesis. 35. The learned trial court has rightly taken into account testimony of the prosecution witnesses on record and appreciated circumstances of the case and has recorded just finding of conviction while imposing sentence on the appellant according to law. 36. 35. The learned trial court has rightly taken into account testimony of the prosecution witnesses on record and appreciated circumstances of the case and has recorded just finding of conviction while imposing sentence on the appellant according to law. 36. In the result, the impugned judgment and order of conviction dated 31.07.2012 passed by the Additional Sessions Judge, Court No. 3, Lakhimpur Kheri in Sessions Trial No.1081 of 2009 arising out of Case Crime No.497 of 2007, under Sections 498-A, 304-B IPC and 4 Dowry Prohibition Act, Police Station Singahi, District Kheri, is upheld in appeal. 37. Consequently, the instant appeal being devoid of merit is dismissed. 38. In this case, appellant Heeralal is in jail. He shall serve out the remaining part of his sentence imposed upon him in the aforesaid sessions trial. 39. Let a copy of this judgment be certified to trial court for intimation and necessary follow up action. Appeal Dismissed.