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2016 DIGILAW 3393 (ALL)

Kamla Devi v. State of U. P.

2016-10-04

HARSH KUMAR

body2016
JUDGMENT Harsh Kumar, J. Heard Shri Alkesh Singh Chauhan, learned counsel for the appellants, learned A.G.A. for the State and perused the record. 2. Present appeal has been filed against the judgment and order dated 25.01.2005 passed by Additional District & Sessions Judge/ Special Judge (N.D.P.S.), Kanpur Dehat in Sessions Trial No.180 of 2004 (State Vs. Swamideen and others), under Sections 498A, 304B IPC and Section 3 /4 of the Dowry Prohibition Act, P.S. Mangalpur, District Kanpur Dehat, by which each accused/ appellant was convicted for the offence under Sections 498A, 304B IPC and 3/4 of the Dowry Prohibition Act and sentenced for the offence under Section 4 98A IPC with rigorous imprisonment for a period of two years along-with fine of Rs.1000/- and in case of default in payment of fine with one month's additional rigorous imprisonment; under Section 3 04B IPC with rigorous imprisonment for a period of ten years along-with fine of Rs.5000/- and in case of default in payment of fine with three months' additional rigorous imprisonment; under Section 3 of the Dowry Prohibition Act with rigorous imprisonment for a period of five years along-with fine of Rs.15,000/- and in case of default in payment of fine with six months' additional rigorous imprisonment; and under Section 4 of the Dowry Prohibition Act with rigorous imprisonment for a period of one year along-with fine of Rs.2000/- and in case of default in payment of fine with two months' additional rigorous imprisonment and all the sentences shall run concurrently. 3. 3. Learned counsel for the appellants contended that it is proved from the evidence on record and the defence evidence had been produced by the accused/ appellants on account to the effect that the appellants were not present in Qasba Bhola Nagar Jhinjhak, Police Station Mangalpur, District Kanpur Dehat at the time of alleged incident; that the husband of appellant Smt. Kamla Devi was on police duty at Agra and she was residing there with him since before the incident and accused appellant Rama Kant @ Ravikant, husband of the deceased was attending a meeting in village Gobana, Post Chirahuli, Auraiya, which started at 11 a.m. and lasted upto 4.00 p.m. on 02.12.2003; that on the date of incident some miscreants entered the house of appellant Rama Kant @ Ravikant in his absence and caused death of his wife; that on returning home to get the information of death of his; that a false FIR was lodged by uncle (Chacha) of the deceased; that the trial court acted wrongly in disbelieving the evidence of DW-3, the landlord of the accommodation, in which the appellant Smt. Kamla Devi was residing with her husband in Fatehabad, District Agra; that the prosecution has failed to establish charges against the accused/ appellants beyond reasonable doubt and it is not proved from the evidence on record that accused/ appellant Smt. Kamla Devi ever made any demand of dowry or treated the deceased with cruelty in connection with non-fulfillment of demand of dowry; that the impugned judgment of conviction is liable to be set aside and the accused/ appellants are entitled for an order of acquittal. 4. 4. Per contra learned A.G.A. contended that this is a case of brutal dowry death committed in broad day light by the husband and in-laws of the deceased within one year of marriage; that the postmortem report of deceased indicates that multiple injuries were caused to the person of deceased and thereafter she was strangulated to death and in order to show it a case of suicide, firstly rope was wrapped around her neck, but when the accused/ appellants found that the theory of suicide will not prevail, a false theory was developed that the deceased was killed by some unknown miscreants; that no loot is alleged to have been committed at the time of incident in the house of accused/ appellants and the deceased; that it cannot be believed that some miscreants would have entered the house of accused/ appellant Rama Kant @ Ravikant in broad day light only to cause death of his wife without looting the valuables; that the accused/ appellant Smt. Kamla Devi has failed to establish that she was living with her husband at Agra and in view of the facts and circumstances it was quite natural for her to live with her daughter-in-law after recent marriage of his son; that the appeal has been filed with wrong and baseless allegations and is liable to be dismissed. 5. Upon hearing the learned counsel for the parties and perusal of record, I find that in this case of dowry death within one year of the marriage, it is established from the prosecution evidence on record that there was demand of Rs.50,000/- and motorcycle by the accused persons, out of which a sum of Rs.25,000/- was paid as part payment to satisfy the demand and the deceased was being treated with cruelty in connection with non-fulfillment of rest of the demand of dowry. The material evidences on record viz. Postmortem report shows the multiple anti-mortem injuries on the person of deceased, and her hide bone was fractured. The medical officer has opined the cause of death to be asphyxia as a result of pressure over neck. In absence of any loot, the contention of the deceased having been killed by miscreants may not be believed. Postmortem report shows the multiple anti-mortem injuries on the person of deceased, and her hide bone was fractured. The medical officer has opined the cause of death to be asphyxia as a result of pressure over neck. In absence of any loot, the contention of the deceased having been killed by miscreants may not be believed. The prosecution has adduced reliable and cogent evidence in support of the charges under Sections 498A, 304B IPC and Section 3 /4 of the Dowry Prohibition Act and in view of evidence on record, there is sufficient ground of making presumption of dowry death against the accused/ appellants under Section 113B of the Indian Evidence Act. The accused/ appellants have failed to discharge their burden. It is fully established from the evidence on record that dowry death of Smt. Pinki @ Shakuntala Devi was committed by strangulation within a period of 7 years of the marriage under other than normal circumstance and soon before her death, she was subjected to cruelty in connection with demand of dowry. 6. It is also established from the evidence on record that the deceased was living with her husband and the husband accused/ appellant Rama Kant @ Ravikant has failed to prove his presence elsewhere in the meeting and has failed to establish the plea of alibi taken by him. However, as far as plea of alibi of Smt. Kamla Devi, mother-in-law is concerned, I find that the learned trial court has accepted the plea of alibi taken by Swamideen, the father-in-law of deceased and so in the circumstance there is hardly any sufficient ground for disbelieving the same plea which was taken by Smt. Kamla Devi, the mother-in-law of deceased, who claims to be living with her husband at Fatehabad, Agra. In ordinary course of business until otherwise is proved, it is supposed that wife must be living with her husband to take care of home affairs and after believing the plea of alibi of Swamideen to be on duty in Agra and residing there, the trial court appears to have committed mistake in disbelieving the same plea taken by Smt. Kamla Devi. Moreover, nature of injuries caused to deceased may not be presumed to have been caused by at least two persons with the help of Smt. Kamla Devi, who is an old lady presently aged about 76 years as she had stated her age to be 55 years in her statement u/s 313 Cr.P.C. on 05.11.2014. 7. In view of the discussions made, I have come to the conclusion that there is no illegality or incorrectness in the order of conviction and sentence of Rama Kant @ Ravikant for the charges framed against him. However, by giving benefit of doubt and accepting the plea of alibi taken by Smt. Kamla Devi, wife of Swamideen, her conviction and sentence is liable to be set aside and the appeal is liable to be partly allowed. The appeal in respect of Rama Kant @ Ravikant is liable to be dismissed and the judgment and order of conviction and sentence with regard to appellant Rama Kant @ Ravikant passed by the trial court is liable to be upheld. 8. The appeal is accordingly partly allowed in respect of appellant no.1 Smt. Kamla Devi and is partly dismissed in respect of appellant no.2 Rama Kant @ Ravikant. The conviction and sentence of appellant no.1 Smt. Kamla Devi is aside and she is acquitted of the charges framed against her and the conviction and sentence of appellant no.2 Rama Kant @ Ravikant is upheld. 9. It is reported that the appellant no.2 Rama Kant @ Ravikant was in custody during trial and was not granted bail during pendency of this appeal, so after completing term of sentence, he has been released from jail on 10th December, 2003. 10. The accused-appellant Kamla Devi is on bail. She need not surrender. Her bail bond and surety bonds are cancelled and sureties stand discharged. 11. Let the lower court record be sent to the court below along with copy of this judgment and order.