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Allahabad High Court · body

2017 DIGILAW 904 (ALL)

JAI PRAKASH DUBEY v. STATE OF U. P.

2017-03-31

RAM SURAT RAM (MAURYA)

body2017
JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri Mukhtar Alam alongwith Sri Shahab Uddin, for the appellant and A.G.A, for State of U.P. 2. This appeal has been filed from the conviction and sentence passed by Additional Sessions Judge, Court No. 3, Mau, dated 4.10.2013, in S.T. No. 157 of 2008, State of U.P. v. Jai Prakash Dubey and others (arising out of Case Crime No. 259 of 2008, under Section 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act, 1961, P.S. Haldharpur, district Mau), sentencing the appellant for ten years imprisonment under Section 304-B IPC and three years imprisonment with fine of Rs. 10000/- under Section 498-A IPC, with default stipulation. 3. On the complaint of Raj Kumar Dubey (PW-1) (the brother of the deceased), HM Brindavan Mishra (PW-7) registered an FIR of Case Crime No. 259 of 2008, under Section 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act, 1961, at P.S. Haldharpur, district Mau on 25.3.2008 at 9.30 hours, against Jai Prakash Dubey (husband), Hansh Nath Dubey (father-in-law) and Smt. Parwati (mother-in-law), Manju (nanad), Reena (nanad), Vandana (nanad) and Prem Pandey (maternal father-in-law) of the deceased Suryakala @ Kanchan. It has been stated in the FIR that his younger sister Suryakala @ Kanchan was married to Jai Prakash Dubey, on 27.6.2004, according to Hindu rites. After some time of marriage, Jai Prakash Dubey (husband), Hansh Nath Dubey (father-in-law) and Smt. Parwati (mother-in-law), Manju (nanad), Reena (nanad), Vandana (nanad) and Prem Pandey (maternal father-in-law) jointly began to demand Rs. 50000/- cash, motorcycle and colour television as dowry. His sister used to inform him about aforementioned demand on mobile phone as well as on coming to his house time to time and also used to say that the accused were threatening to kill her on non-fulfillment of their demand. Thereafter, they tried to pacify them several times but they had killed his sister. They came to know about this incident on telephone, then came to the house of the accused on 25.3.2008 and found that dead body of Suryakala @ Kanchan was kept in the hut. 4. Inquest of the deceased was conducted by Kanhaiya Lal, Tahsildar (PW-5) on 25.3.2008 between 11.00 to 12.30 hours alongwith SI Brajesh Singh (PW-6). Post mortem was conducted by Dr. Yusuf Ansari (PW-4) alongwith Dr. R.R. Chauhan on 25.3.2008 at 15.45 hours. 4. Inquest of the deceased was conducted by Kanhaiya Lal, Tahsildar (PW-5) on 25.3.2008 between 11.00 to 12.30 hours alongwith SI Brajesh Singh (PW-6). Post mortem was conducted by Dr. Yusuf Ansari (PW-4) alongwith Dr. R.R. Chauhan on 25.3.2008 at 15.45 hours. In post mortem report (Ex-Ka-2) cause of death was mentioned as “suspected poisoning” and duration about 12 to 24 hours. Viscera was preserved. In Viscera report (Ex-Ka-16) ‘aluminium phosphide’ poison was found. On the clothes of Suryakala @ Kanchan also ‘aluminium phosphide’ poison was found vide report dated 12.6.2008 (Ex-Ka-17). Vidya Sagar Mishra, Circle Officer of Police (PW-4), started investigation. He inspected the spot on 25.3.2008 and prepared site plan (Ex-Ka-3). He arrested the accused Hansh Nath, Parwati, Manju Devi on 26.3.2008 and recorded their statements. He arrested Jai Prakash on 31.3.2008 and recorded his statement. After investigation, he submitted charge-sheet No. 40 of 2008 (Ex-Ka-4) against Jai Prakash, Hansh Nath, Parwati, Manju and charge-sheet No. 40-A of 2008 (Ex-Ka-5) against Vandana and Reena, under Section 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act, 1961. On committal, S.T. No. 157 of 2008 was registered against Jai Prakash Dubey and others and S.T. No. 125 of 2009 was registered against Reena and Vandana. Both the cases were consolidated and tried together. Additional Sessions Judge framed charges on 5.12.2009.The accused denied charges and claimed trial. 5. Prosecution examined Raj Kumar Dubey (PW-1), the first informant and brother of the deceased, Smt. Sharda Devi (PW-2), mother of the deceased, Dr. Yusuf Ansari (PW-3), who conducted autopsy of the deceased, Vidya Sagar Mishra (PW-4), Investigating Officer, Kanhaiya Lal (PW-5), who conducted inquest of the deceased, SI Brijesh Singh (PW-6) and Brindavan Mishra (PW-7), to prove check FIR. The accused in their statements under Section 313 Cr.P.C. admitted date of marriage and date of death but denied the prosecution case. They denied demand of any dowry or torture of the deceased in relation to it. The appellant has also stated that on the date of incident, he was in service and was not present at his house. 6. Additional Sessions Judge, by his judgment dated 4.10.2013 held that the deceased Suryakala @ Kanchan was married to Jai Prakash Dubey on 27.6.2004 and she died on 24.3.2008 at the house of the appellant due to poisoning. The appellant has also stated that on the date of incident, he was in service and was not present at his house. 6. Additional Sessions Judge, by his judgment dated 4.10.2013 held that the deceased Suryakala @ Kanchan was married to Jai Prakash Dubey on 27.6.2004 and she died on 24.3.2008 at the house of the appellant due to poisoning. From statements of PW-1 and 2, demand of dowry and torture of the deceased in relation to it was not proved beyond reasonable doubt against Hansh Nath Dubey, Smt. Parwati Devi, Smt. Manju, Smt. Reena and Smt. Vandana and they are entitled to benefit of doubt. However, the prosecution has proved that after about one year of the marriage, Jai Prakash Dubey started demand of colour television, motorcycle and Rs. 50000/- as dowry and torture of the deceased in relation to it. The charges against the appellant under Section 304-B, 498-A IPC are proved and Section 3/4 of Dowry Prohibition Act, 1961 is not proved. On these findings, he convicted the appellant under Section 498-A, 304-B IPC and sentenced as mentioned above. He acquitted remaining accused. Hence, this appeal has been filed. No appeal has been filed against acquittal, either by State of U.P. or by the first informant. 7. I have considered the arguments of the counsel for the parties and examined record. Offence of “dowry death” are generally committed in complete secrecy, inside the house. It has become a large social evil, in this country. By Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983), Parliament introduced Chapter XX-A into Penal Code, 1860 (IPC) containing Section 498-A, in order to “deal effectively, not only with cases of dowry deaths, but also cases of cruelty to married women by their in-laws”. Conspicuously, this section does not employ the word “dowry” at all. In essence, the amendment makes matrimonial cruelty to the wife punishable with imprisonment for a term which may extend to three years together with fine. The Explanation to Section 498-A defines “cruelty” in clause (a) to the Explanation to first mean wilful conduct as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life. Since there is no allusion to dowry it converts cruelty, which would ordinarily entitle the wife to seek a dissolution of her marriage, into a criminal act. Since there is no allusion to dowry it converts cruelty, which would ordinarily entitle the wife to seek a dissolution of her marriage, into a criminal act. Parliament restricted the subject offence to only cruelty perpetuated on women since their emancipation, in meaningful terms, largely remains a mirage. Secondly, broadly stated, clause (b) to the Explanation of Section 498-A IPC, postulates harassment meted out to the woman with a view to coercing her or her relatives to meet any unlawful demand for any property or valuable security. Although this clause does not employ the word “dowry”, it is apparent that its object is to combat this odious societal excrescence. Act 46 of 1983 simultaneously incorporated changes in Section 174 (3) CrPC pertaining to the suicide or death of a woman within seven years of her marriage; it mandated the examination by the nearest civil surgeon of the body of the unfortunate woman. In addition thereto, Section 113-A was introduced into the Evidence Act, 1872, by Clause 7 of Act 46 of 1983, specifies that when the question is whether the commission of suicide by a woman had been abetted by her husband or his relative and it is shown that she has committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by relatives of her husband. Realizing difficulties of prosecution in proving guilt of “dowry death” beyond reasonable doubt, as required under criminal law, Parliament by Act No. 43 of 1986 made drastic amendments. In Indian Penal Code, 1860 Section 304-B, in Dowry Prohibition Act, 1961, Section 8-A and in Evidence Act, 1872, Section 113-B were added, making it mandatory for the Court to raise presumption of dowry death, if its ingredients are shown to exist by the prosecution. 8. A Bench of three Hon’ble Judges of Supreme Court after considering previous judgments, in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 , held that in order to attract application of Section 304-B IPC, the essential ingredients are as follows: 1.The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. 2. 2. Such a death should have occurred within seven years of her marriage. 3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband. 4. Such cruelty or harassment should be for or in connection with demand of dowry. 5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death. On proof of the essential ingredients mentioned above, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. 9. Supreme Court in Sher Singh v. State of Haryana, (2015) 3 SCC 724 , held that in Section 113-A of the Evidence Act, Parliament has, in the case of a wife’s suicide, “presumed” the guilt of the husband and the members of his family. Significantly, in Section 113-B which pointedly refers to dowry deaths, Parliament has again employed the word “presume”. However, in substantially similar circumstances, in the event of a wife’s unnatural death, Parliament has in Section 304-B “deemed” the guilt of the husband and the members of his family. The use of word “shown” instead of “proved” in Section 113-A and 113-B of Evidence Act, 1872, indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, “shown” will have to be read up to mean “proved” but only to the extent of preponderance of probability. Thereafter, the word “deemed” used in that section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The “deemed” culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong “presumption” of his culpability. The accused is required to rebut this presumption by proving his innocence. The same view was reiterated in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 . 10. The “deemed” culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong “presumption” of his culpability. The accused is required to rebut this presumption by proving his innocence. The same view was reiterated in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 . 10. A Bench of three Hon’ble Judges of Supreme Court in Kans Raj v. State of Punjab, (2000) 5 SCC 207 , held that “Soon before” is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be “soon before death” if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough. Supreme Court again in Baljinder Kaur v. State of Punjab, (2015) 2 SCC 629 , held that the proximity test i.e. there must be material to show that “soon before her death” the woman was subjected to cruelty or harassment “for or in connection with dowry”. The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. “Soon before death” is a relative term and no straitjacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term “soon before death” is left to be determined by the Courts depending upon the facts and circumstances of each case. In cases related to dowry death, the circumstances showing the cruelty or harassment are not restricted to a particular instance, but normally refer to a course of conduct. Such conduct of cruelty or dowry harassment must be “soon before death”. There should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. Similar View has been taken in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588 . 11. The phrase “preponderance of probability” came for consideration before Supreme Court in N.G. Dastane (Dr) v. S. Dastane, AIR 1975 SCC 1534, in which it has been held that the normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the Court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable at the second. Within the wide range of probabilities the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: “the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue”; or as said by Lord Denning, “the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear”, Blyth v. Blyth, (1966) All E R 524. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. 12. In light of aforementioned principles, evidence of the present case has to be scrutinized. Raj Kumar Dubey (PW-1), in his statement, has stated that his younger sister Suryakala @ Kanchan was married to Jai Prakash Dubey, on 27.6.2004, according to Hindu rites. She went to her matrimonial house on second day of marriage and at that time she lived there for six months. After some times of marriage, Jai Prakash Dubey (husband), Hansh Nath Dubey (father-in-law) and Smt. Parwati (mother-in-law), Manju (nanad), Reena (nanad), Vandana (nanad) and Prem Pandey (maternal father-in-law) began to demand Rs. 50000/- cash, motorcycle and colour television as dowry and used to torture her in relation to it. They also used to threaten to kill her. After some times of marriage, Jai Prakash Dubey (husband), Hansh Nath Dubey (father-in-law) and Smt. Parwati (mother-in-law), Manju (nanad), Reena (nanad), Vandana (nanad) and Prem Pandey (maternal father-in-law) began to demand Rs. 50000/- cash, motorcycle and colour television as dowry and used to torture her in relation to it. They also used to threaten to kill her. He came to know about demand of dowry through his sister on mobile phone as well as on her coming to his house. Thereafter, they tried to pacify them several times but was of no effect. They used to demand aforesaid dowry and torture her. They had killed his sister. They came to know about her death on telephone through Yogendra on 25.3.2008 in morning, then came to the house of the accused and found that dead body Suryakala @ Kanchan was kept in the hut. He gave written information of this incident to the police. In cross-examination, he stated that he was five brothers and five sisters. In the marriage of Kanchan, Manju Tiwari (sister of his mother) was mediator. His father died in 2002. He had four-five bigha land. He was doing agriculture. He was convicted and sentenced in a case under Section 302 IPC and was enlarged on bail from appeal. At the time of settlement of marriage neither any dowry nor motorcycle, television and Rs. 50000/- was demanded and the marriage was pleasantly solemnized. Whatever, things were given by them was happily accepted by the accused. At the time of marriage, Jai Prakash Dubey was doing service in Bhilai and his father was doing agriculture. His family was simple. Manju and Reena were married at the time of marriage of his sister and Vandana was married thereafter. After marriage, his sister went to her matrimonial house three times. He never informed his mausi (Smt. Manju Tiwari) in respect of demand of dowry and torture of Kanchan in relation to it nor gave any complaint to the police. Since before one year of her death, his sister had gone to her matrimonial house and since then she was living there. 13. Smt. Sharda Devi (PW-2), in her statement, has stated that Suryakala @ Kanchan was married to Jai Prakash Dubey, about 7 year ago. Her sister Manju Tiwari was mediator. Whatever demand was at the time of marriage, it was given. 13. Smt. Sharda Devi (PW-2), in her statement, has stated that Suryakala @ Kanchan was married to Jai Prakash Dubey, about 7 year ago. Her sister Manju Tiwari was mediator. Whatever demand was at the time of marriage, it was given. At the time of marriage Suryakala went to her matrimonial house. After marriage, her family members used to visit the house of Suryakala. Her daughter used to complain about her in-laws, in respect of their demand Rs. 50000/- cash, motorcycle and colour television as dowry. After marriage, her daughter came to her house about after one year. On coming to her house also she informed about aforesaid demand by all the accused. After marriage till death about four time, her daughter came to her house. They came to know about death of her daughter on telephone through Yogendra on 25.3.2008 in morning, then they came to the house of the accused and found that dead body Suryakala @ Kanchan was kept in the hut. Her son had performed cremation of the deceased. In cross-examination, she stated that her son Raj Kumar was sent to jail in murder case, prior to the marriage of Suryakala. In that case, she had to incur heavy expenses. Her husband died prior to the marriage of Suryakala. She had made complaint to his sister Manju, in respect of demand of dowry. Manju and Reena were married at the time of marriage of her daughter and Vandana was married thereafter. Manju and Reena were at their matrimonial house. Her husband was police in U.P. Police and died in harness. Her younger son Ranjeet was employed in dying in harness rules. Her sister Manju Tiwari had arranged the marriage of his daughter, looking her poor condition. Her daughter could not conceive during this period as such she carrying mental agony. Her daughter went to her matrimonial house 8 months prior to her death. She had done bidai of her daughter pleasantly. 14. From the statement of PW-1 and 2 it is proved that Sharda Dubey, father of the deceased was in service of U.P. Police as constable and died in the year 2002. He owned four-five bigha land. He left behind him five sons and five daughters. After death of Sharda Prasad, Raj Kumar Dubey, who was his eldest son was sent to jail in a murder case. He was convicted and sentenced in that case. He owned four-five bigha land. He left behind him five sons and five daughters. After death of Sharda Prasad, Raj Kumar Dubey, who was his eldest son was sent to jail in a murder case. He was convicted and sentenced in that case. He was enlarged on bail from the appeal. At the time of marriage of Suryakala, on 27.6.2004, none of her brothers had any other income except agriculture. Manju Tiwari had arranged the marriage of Suryakala, looking the poor condition of the family and the marriage was pleasantly solemnized without any demand of dowry. At the time of marriage, Jai Prakash Dubey was doing service in Bhilai. His father was doing agriculture. His family was simple. In the family of Jai Prakash, apart from his parents, there were two married sisters and one unmarried sister at the time of his marriage. During about four years, Suryakala went to her matrimonial house three times. PW-1 and 2 never made any complaint in respect of demand of dowry and torture of Suryakala @ Kanchan in relation to it to Smt. Manju Tiwari, who was their near relation and mediator of the marriage nor gave any complaint to the police. Since before one year of her death, Suryakala @ Kanchan had gone to her matrimonial house and since then she was living there. There is nothing on record to show that during this period, Suryakala @ Kanchan had made any complaint regarding demand of dowry or her torture in relation to it. Thus demand of dowry and torture of Suryakala @ Kanchan in relation to it by the appellant soon before her death was not proved. On similar set of evidence, the Court below held that the charges of demand of dowry and torture of the deceased in relation to it was not proved against other accused. No reason has been given as to why it was found proved against the appellant. Finding of trial Court in this respect is illegal and liable to be set aside. 15. In post mortem report no external/internal injury was found on the body of Suryakala @ Kanchan. Cause of death was poisoning and aluminium phosphide poison was found in viscera report. Aluminium phosphide is available in market in the shape of sulphas, which is used as insecticide. 15. In post mortem report no external/internal injury was found on the body of Suryakala @ Kanchan. Cause of death was poisoning and aluminium phosphide poison was found in viscera report. Aluminium phosphide is available in market in the shape of sulphas, which is used as insecticide. Due to its bad smell, it cannot be consumed under dillusion of any other drink or eatable things. In the absence of any injury on the body of deceased in post mortem report, it cannot be said that it was administered to Suryakala @ Kanchan by using force nor it can be said that she was subjected to cruelty at that time, which abetted her to commit suicide. Thus it is fully proved that death of Suryakala @ Kanchan was not homicidal but suicidal. Smt. Sharda Devi (PW-2) admitted that her daughter could not conceived during about four year of her matrimonial life as such she carrying mental agony. In the absence of proof of the charges of demand of dowry and torture of the deceased in relation to it, soon before her death, no presumption of dowry death can be raised under Section 113-B of Evidence Act, 1872. Conviction of the appellant under Section 304-B, 498-A IPC is liable to be set aside. 16. In view of the aforesaid discussion, the appeal is allowed. Conviction and sentence of the appellant under Section 304-B, 498-A IPC passed by Additional Sessions Judge, Court No. 3, Mau, dated 4.10.2013, in S.T. No. 157 of 2008, State of U.P. v. Jai Prakash Dubey and others (arising out of Case Crime No. 259 of 2008, under Section 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act, 1961, P.S. Haldharpur, district Mau) are set aside. The appellant is in jail. He will be released and set at liberty forth with.