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2017 DIGILAW 506 (UTT)

Rajendra Singh v. State

2017-09-14

RAJIV SHARMA

body2017
JUDGMENT : Since common questions of law and facts are involved in the above titled criminal appeals, hence the same are being taken up together and adjudicated by this common judgment. 2. These appeals are directed against the judgment and order dated 25.10.2016, rendered by learned Additional Sessions Judge, Kotdwar, Garhwal in Sessions Trial No. 03 of 2015, whereby the appellants, were charged with and tried for the offences under Section 498-A/34, 304-B/34 and 302/34 of IPC. The appellants were convicted and sentenced to undergo imprisonment for a period of three years under Section 498-A/34 of IPC and to pay a fine of Rs.2,000/- (each) and in default of payment of fine to undergo simple imprisonment for a period of two months. The appellants were also convicted and sentenced to undergo imprisonment for a period of ten years under Section 304-B/34 of IPC and to pay a fine of Rs.2,500/- (each) and in default of payment of fine to under simple imprisonment for a period of three months. The appellants were acquitted for the offence under Section 302/34 of IPC. 3. The case of the prosecution, in a nutshell, is that Shyam Singh lodged the missing report on 23.08.2014 to the effect that he has received a telephonic call at 11:30 PM that his daughter has left the house along with her son. The complainant reached Satpuli. He searched for her. She was not traceable. The complaint was registered under Sections 363 and 365 of IPC. The dead bodies of complainant’s daughter and his grandson were recovered from Ganga barrage at Haridwar. Thereafter, the FIR was registered on 31.08.2014. It is stated in the FIR that initially on 23.08.2014, the complainant has gone to lodge the report. It is mentioned therein that the appellants were harassing his daughter for bringing insufficient dowry. He was called to Police Station Haridwar city. He recognized the dead bodies of his daughter and his grandson. The bodies were sent for postmortem examination. Thereafter, the matter was investigated and the challan was put up against the accused after completing all the codal formalities. 4. The prosecution has examined as many as nine witnesses in its support. The statements of the appellants were recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. According to them, the deceased had a love affair with Narendra Singh. 4. The prosecution has examined as many as nine witnesses in its support. The statements of the appellants were recorded under Section 313 of Cr.P.C. They have denied the case of the prosecution. According to them, the deceased had a love affair with Narendra Singh. The appellants were convicted and sentenced, as noticed hereinabove. Hence, the present appeals. 5. Learned Advocates for the appellants have vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt against the appellants. Learned counsel appearing on behalf of the State has supported the judgment dated 25.10.2016. 6. We have heard learned counsel for both the parties and perused the judgment and record carefully. 7. PW1 Shyam Singh has deposed that the marriage of his daughter was solemnized with the appellant Chandan Singh on 18-19.04.2009 as per the Hindu rites and customs. He has given dowry according to his capacity. His daughter was staying in a joint family. She was harassed for bringing insufficient dowry. His daughter used to inform him on telephone about the harassment being caused to her. She was forced to bring Max vehicle. He was not in a position to give Max vehicle. He agreed to give motorcycle. He used to pay Rs.20-25,000/- to his daughter to satisfy her in-laws. His daughter fell very sick during pregnancy. She was brought to Delhi. She was got treated by him. He had a conversation with his daughter on 15-16.08.2014. She told him that appellant Chandan Singh was beating her. The family members of the appellants were supporting him. He has received a telephonic call on 21.08.2014 that his daughter has gone to take her son from the school. She has not come back. He has told the police that his daughter and his grandson were killed. He has gone to lodge the report. The police officers have insisted him to lodge the missing report. He has further deposed that his daughter was killed by the appellants for bringing insufficient dowry. In his cross-examination, he has deposed that he was staying in Delhi. His salary was Rs.19,000/- per month. The appellants have brought his daughter to Delhi during pregnancy. He used to have conversation with his daughter on day-to-day basis. He did not know Narendra Singh. He did not know that he was the class-fellow of his daughter. In his cross-examination, he has deposed that he was staying in Delhi. His salary was Rs.19,000/- per month. The appellants have brought his daughter to Delhi during pregnancy. He used to have conversation with his daughter on day-to-day basis. He did not know Narendra Singh. He did not know that he was the class-fellow of his daughter. He has denied the suggestion that they were against the marriage of his daughter with Narendra Singh. 8. PW2 Sunita Devi has corroborated the statement of PW1 Shyam Singh. They have given dowry as per their capacity. The appellants were not happy. They used to demand money. Her daughter was underfed during pregnancy. She was brought to Delhi. Her daughter used to tell her about the harassment being caused to her by in-laws. They used to pay her money to meet the demands of the appellants. 15-16 days before the death of her daughter, she talked to her on telephone. She told her that she was being harassed. She has beaten up by the appellants. In her cross-examination, she has denied the suggestion that after the marriage of her daughter, her daughter was talking to Narendra Singh. She has also denied the suggestion that her daughter was interested to marry Narendra Singh. 9. PW3 Narendra Singh has deposed that the deceased was his class-fellows. There was no relationship between him and the deceased. They just knew each other being class-fellow. He had gone to Delhi in search of job. He had no conversation ever with the deceased after her marriage. In his cross-examination, he has stated that he studied with deceased for 10-12 years. He has passed his intermediate in the year 2008. He used to go at 9:00 AM and come back at 11:00 PM. He had conversation with deceased 1-2 times in a week. He did not remember telephone number of Bunty. His SIM has gone out of order on 22.08.2014. He has left a message “leave me alone”. 10. PW4 Dr. Suresh Aggarwal has conducted the postmortem examination. According to him, the death has occurred 1-2 weeks before the postmortem examination. The cause of death of the deceased was asphyxia due to drowning. He has proved the postmortem report. 11. PW5 Bhawna Kainthola has deposed that the information was received that dead body was lying near Kankhal. 12. 10. PW4 Dr. Suresh Aggarwal has conducted the postmortem examination. According to him, the death has occurred 1-2 weeks before the postmortem examination. The cause of death of the deceased was asphyxia due to drowning. He has proved the postmortem report. 11. PW5 Bhawna Kainthola has deposed that the information was received that dead body was lying near Kankhal. 12. PW7 Hoshiyar Singh has deposed that he was posted at Police Station Satpuli on 23.08.2014. PW1 Shyam Singh had lodged the complaint before him to the effect that his daughter and his grandson were missing. He has made inquiries from the persons residing near the house of the appellants. The call details of deceased were taken into consideration. Mobile phone of the deceased was switched off. PW2 Sunita Devi has apprehended that the appellants have killed her daughter. 13. PW8 Km. Aruna Bharti has deposed that she has recorded the statements of witnesses. The DNA samples of the deceased and her son were sent. The report of DNA test was received on 20.02.2015. In her cross-examination, she has deposed that during the course of investigation, it transpired that the deceased used to talk with Narendra Singh during night. PW3 Narendra Singh has refused to marry her. The last conversation took place on 21.08.2014. One constable Sehdev was going on his duty. He has given his statement that he met one lady with a boy. She had made a call from his phone. She requested to be taken back and she was at Haridwar. Thereafter, the constable received a call on his telephone. He was requested to trace out the woman. However, she was not traceable. 14. The marriage of the deceased was solemnized with appellant Chandan Singh on 18-19.04.2009. PW1 Shyam Singh and PW2 Sunita Devi have categorically deposed that their daughter was harassed for bringing insufficient dowry. The appellants used to ask for dowry including a car. Whenever their daughter used to come to their house, she used to narrate the mental and physical torture caused by the appellants. They used to give her Rs.20-25,000/- every time. She was not medically treated during her pregnancy. She has come to Delhi. She has a conversation with them on 15-16.08.2014. She again narrated the incident that she was harassed and beaten up by the appellants for bringing insufficient dowry. The father of the deceased was a poor person. They used to give her Rs.20-25,000/- every time. She was not medically treated during her pregnancy. She has come to Delhi. She has a conversation with them on 15-16.08.2014. She again narrated the incident that she was harassed and beaten up by the appellants for bringing insufficient dowry. The father of the deceased was a poor person. He could not afford the demand. He agreed to give them a motorcycle. 15. The deceased and her son left on 21.08.2014. This information, according to PW1 Shyam Singh was given to him by the appellants at 11-11:30 PM. The police officials have impressed upon PW1 Shyam Singh to lodge the missing report since the dead body was not recovered as yet. Thereafter, the dead body was recovered and the FIR was lodged on 24.08.2014. It is surprising that the appellants have not lodged any report including missing report after the deceased Bunty had gone missing. The missing report was lodged by the father of the deceased on 23.08.2014. 16. Learned Advocates appearing on behalf of the appellants have vehemently argued that they have published the pictures of missing Bunty with her son on 25.08.2014. What was expected from them was to lodge the FIR immediately when Bunty had gone missing with her son. It has come on record that deceased Bunty with her son was staying with the appellants. Appellants have treated her with cruelty for bringing insufficient dowry. They used to demand more dowry. The death of the deceased occurred within seven years of marriage. The marriage was solemnized on 18-19.04.2009. The presumption under Section 113-B of the Indian Evidence Act is attracted in this case. 17. Their Lordships of Hon’ble Supreme Court in (2010) 13 SCC 689 , in the case of Satya Narayan Tiwari @ Jolly and another vs. State of Uttar Pradesh, have explained the term “soon before” the marriage which reads as under :- “28. There can be no quarrel with the proposition that the proximity test has to be applied keeping in view the facts and circumstances of each case. Regarding the aforesaid decision, the facts were somewhat different in that the deceased was not shown to have been subjected to cruelty by her husband for at least 15 months prior to her death. On the fact of that case, it was held that Section 304-B IPC was not attracted. 29. Regarding the aforesaid decision, the facts were somewhat different in that the deceased was not shown to have been subjected to cruelty by her husband for at least 15 months prior to her death. On the fact of that case, it was held that Section 304-B IPC was not attracted. 29. On the other hand, the present case fully answers the test of “soon before”. There is the testimony of demand of Maruti car being pressed by the two accused persons after about six months of the marriage of the deceased (which took place about three years before the incident) and of her being pestered, nagged, tortured and maltreated on non-fulfilment of the said demand which was conveyed by her to her parents from time to time on her visits to her parental home and on telephone. Things had reached to such a pass that on getting a message from her about three months before the incident, Surya Kant Dixit PW 1 accompanied by Jaideo Awasthi PW 2 had to go to her sasural in Farrukhabad in an attempt to dissuade the two accused from pressing such demand, but they (the two accused) humiliated them and turned them out of the house with the command not to enter their house again without meeting the demand of a Maruti car. He did not take any action on the consolation offered by the father-in-law of his daughter and also on the advice of his daughter. It was natural that the victim also did not want her father to take any extreme step against the two accused. She might have thought that things would improve with the passage of time but it seems that that did not happen. 30. Surya Kant Dixit PW 1 was in a helpless state after suffering humiliation at the hands of the accused persons about three months before the actual incident. He could simply wait and watch in the hope of things to improve, but the 24 situation did not improve at all. It, however, cannot be taken to mean that the demand made by the two accused persons had subsided or was given up by them. It can justifiably be inferred from what happened subsequently that they continued to torture the unfortunate lady because of non-fulfilment of the demand of Maruti car. It, however, cannot be taken to mean that the demand made by the two accused persons had subsided or was given up by them. It can justifiably be inferred from what happened subsequently that they continued to torture the unfortunate lady because of non-fulfilment of the demand of Maruti car. In our opinion, the test of “soon before” is satisfied in the facts, evidence and circumstances of the present case. 55. We are of the view that the presumption of Section 113-B of the Evidence Act is attracted in this case and the discussion that we have made hereinabove makes it abundantly clear that the defence could not displace the said presumption. The culpability of the two accused in committing this crime is established to the hilt by the facts and circumstances proved by the prosecution. They undoubtedly are the authors of this crime. 57. To sum up, the prosecution has been able to prove the following: (1) The death of the deceased was caused by strangulation and burning within seven years of her marriage (2) The deceased had been subjected to cruelty by her husband and mother-in-law (the two appellant-accused) over the demand of Maruti car in dowry raised and persistently pressed by them after about six months of the marriage and continued till her death. (3) The cruelty and harassment was in connection with the demand of dowry i.e. Maruti car. (4) The cruelty and harassment is established to have been meted out soon before her death. (5) The two accused were the authors of this crime who caused her death by strangulation and burning on the given date, time and place. 58. In our opinion, the trial Judge recorded an acquittal adopting a superfluous approach without in depth analysis of the evidence and circumstances established on record. On thoroughly cross-checking the evidence on record and circumstances established by the prosecution with the findings recorded by the trial court, we find that its conclusions are quite inapt, unjustified, unreasonable and perverse. Proceeding on a wrong premise and irrelevant considerations, the trial court has acquitted the accused. The accused are established to have committed the offences under Sections 498-A and 304-B IPC and under Section 4 of the Dowry Prohibition Act and the findings of the High Court are correct.” 18. Proceeding on a wrong premise and irrelevant considerations, the trial court has acquitted the accused. The accused are established to have committed the offences under Sections 498-A and 304-B IPC and under Section 4 of the Dowry Prohibition Act and the findings of the High Court are correct.” 18. Their Lordships of Hon’ble Supreme Court in (2011) 4 SCC 427 , in the case of “Bachni Devi and another Vs. State of Haryana”, have reiterated the principle and explained the term “demand for dowry’ under Section 304B IPC and presumption. Their Lordships have held that as under: - “12. For making out an offence of “dowry death” under Section 304-B, the following ingredients have to be proved by the prosecution: (a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances; (b) such death must have occurred within seven years of her marriage; (c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (d) such cruelty or harassment must be in connection with the demand for dowry. 19. In the backdrop of the above legal position, if we look at the facts of the case, it is clearly established that Kanta died otherwise than under normal circumstances. There is no dispute of fact that death of Kanta occurred within seven years of her marriage. That Kanta was subjected to harassment and ill-treatment by A-1 and A-2 after PW 8 refused to accede to 26 their demand for purchase of motorcycle is established by the evidence of PW 8 and PW 9. Then there is evidence of PW 10 that PW 8 had called him and DW 1 to his house where A-1 had made demand of motorcycle. PW 10 stated that he sought to reason to A-1 about inability of PW 8 to give motorcycle at which A-1 got angry and warned that Kanta would not be allowed to stay in her matrimonial home. PW 10 stated that he sought to reason to A-1 about inability of PW 8 to give motorcycle at which A-1 got angry and warned that Kanta would not be allowed to stay in her matrimonial home. It is true that the appellants produced DW 1 in defence and he did state in his examination-in-chief that he did not meet A-1 at the house of PW 8 but in the cross-examination when he was confronted with his statement under Section 161 CrPC (portion A to A) where it was recorded that he and PW 10 had gone to the house of PW 8 and both of them (PW 10 and DW 1) counselled A-1 to desist from demanding motorcycle but she stuck to her demand, DW 1 had no explanation to offer. The evidence of DW 1 is, therefore, liable to be discarded. 20. In the light of the evidence let in by the prosecution, the trial court cannot be said to have erred in holding that it was established that unlawful demand of motorcycle was made by A-1 and A-2 from PW 8 and Kanta was harassed on account of his failure to provide the motorcycle and that led Kanta to commit suicide by hanging. Pertinently, the demand of motorcycle by A-1 from PW 8 was for A-2 and when PW 8 showed his inability to meet that demand, A-2 started harassing and ill-treating Kanta. In this view of the matter, it cannot be said that there was no demand by A-2. 21. The High Court has also examined the matter thoroughly and reached the finding that A-1 and A-2 had raised a demand for purchase of motorcycle from PW 8; this demand was made within two months of the marriage and was a demand towards “dowry” and when this demand was not met, Kanta was maltreated and harassed continuously which led her to take extreme step of finishing her life. We agree with the above view of the High Court. There is no merit in the contention of the counsel for the appellants that the demand of motorcycle does not qualify as a “demand for dowry”. All the essential ingredients to bring home the guilt under Section 304-B IPC are established against the appellants by the prosecution evidence. We agree with the above view of the High Court. There is no merit in the contention of the counsel for the appellants that the demand of motorcycle does not qualify as a “demand for dowry”. All the essential ingredients to bring home the guilt under Section 304-B IPC are established against the appellants by the prosecution evidence. As a matter of law, the presumption under Section 113-B of the Evidence Act, 1872 is fully attracted in the facts and circumstances of the present case. The appellants 27 have failed to rebut the presumption under Section 113-B. 22. For the foregoing reasons, we find no merit in the appeal and it is dismissed accordingly. Two months’ time is given to A-1 to surrender for undergoing the sentence awarded to her.” 19. In 2016 (4) SCC Page 604, in the case of ‘Gajanan Dashrath Kharate v. State of Maharashtra’, their Lordships of Hon. Supreme Court have held that the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer explanation. In paragraph no.13, their Lordships have held as under:- “13. As seen from the evidence, appellant Gajanan and his father Dashrath and mother Mankarnabai were living together. On 7-4-2002, mother of the appellant-accused had gone to another Village Dahigaon. The prosecution has proved presence of the appellant at his home on the night of 7-4-2002. Therefore, the appellant is duty-bound to explain as to how the death of his father was caused. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. When an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution. In view of Section 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on the accused to offer. On the date of the occurrence, when the accused and his father Dashrath were in the house and when the father of the accused was found dead, it was for the accused to offer an explanation as to how his father sustained injuries. When the accused could not offer any explanation as to the homicidal death of his father, it is a strong circumstance against the accused that he is responsible for the commission of the crime.” 20. In (2015) 4 SCC Page 393, in the case of ‘Ashok v. State of Maharashtra’ their Lordships of Hon. Supreme Court have held that initial burden of proof is on prosecution to adduce sufficient evidence pointing towards guilt of accused. However, in case it is established that accused was last seen together with deceased, prosecution is exempted to prove exact happening of incident as accused himself would have special knowledge of incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Their Lordships have held as under: - “12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. However, in case of last seen together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non-explanation of death of the deceased, may lead to a presumption of guilt.” 21. Learned Advocates appearing on behalf of the appellants have further argued that there is a delay in lodging the FIR. It has come in the statement of PW1 Shyam Singh that he has gone to lodge the report about the murder of his daughter by the appellants but police constable has only lodged the missing report. He was also under shock. Thereafter, he filed the FIR on 24.08.2014, after the recovery of dead bodies of his daughter and his grandson. 22. Learned Advocates appearing on behalf of the appellants have vehemently argued that the deceased Bunty was upset since she could not marry Narendra Singh. PW1 Shyam Singh and PW2 Sunita Devi have deposed that their daughter had no intimacy with Narendra Singh. 23. PW3 Narendra Singh in his examination-in-chief has deposed that he has passed his intermediate in the year 2008 and thereafter, gone to Delhi. He has never talked to her after he had gone to Delhi. In his cross-examination, he has admitted that he did not know the telephone number of Bunty. 24. Learned Advocates for the appellants have submitted that Narendra Singh has uploaded a status on social media “leave me alone”. “Leave me alone” could be meant for any person and not for Bunty. The deceased has married with the appellant Chandan Singh on 18.09.2009. She had gone missing on 21.08.2014. She had a son. It could not be believed that after marriage and having a son, she was interested to marry Narendra Singh. 25. PW8 Km. Aruna Bharti has tried to give a new twist in the case. She has deposed that the deceased has met with one constable namely Sahdev. She has requested him to make a call. She was requesting to be taken back and she was at Haridwar. 25. PW8 Km. Aruna Bharti has tried to give a new twist in the case. She has deposed that the deceased has met with one constable namely Sahdev. She has requested him to make a call. She was requesting to be taken back and she was at Haridwar. Thereafter, Sahdev again received a call from PW3 Narendra Singh, asking him to trace her. 26. The fact of the matter is that Sahdev has not been produced in the Court. Why a woman would talk to a stranger. It has also not come on record that the lady with whom constable Sahdev had interaction was the deceased. The deceased was residing in a joint family of the appellants. It is for the appellants to explain under Section 106 of the Indian Evidence Act that under what circumstances she died due to drowning. It is also strange that the telephone of PW3 Narendra Singh has gone out of order only on 21.08.2014. The prosecution has not proved the telephone calls as per Section 65-B of the Indian Evidence Act. 27. The prosecution has proved its case against the appellants beyond reasonable doubt. There is no occasion for us to interfere with the well-reasoned judgment of the trail court. 28. Accordingly, there is no merit in these appeals and the same are hereby dismissed. Appellants are already in jail. They shall serve out the sentence, so awarded, to them by the trial court. 29. Let a copy of this judgment along with LCR be sent back to the trial court for forthwith compliance. 30. Pending application, if any, also disposed of accordingly.