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2018 DIGILAW 1169 (ALL)

GHAN SHYAM @ PAHADI v. STATE OF U. P.

2018-05-09

DINESH KUMAR SINGH, PRASHANT KUMAR

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JUDGMENT : Prashant Kumar, J. These criminal appeals i.e. [(Criminal appeal No.1416 of 2006-Ghan Shyam @ Pahadi V. State of U.P.) and (Criminal Appeal No.1173 of 2006-Hari Lal and Another V. State of U.P.)] arose from the same judgment of conviction and order of sentence dated 03.06.2006, thus, are heard together and disposed of by this common judgment. 2. In these appeals, the appellants namely Ghan Shyam @ Pahadi, Hari Lal and Smt. Deoki have challenged the judgment of conviction and order of sentence dated 03.06.2006 passed by the Fourth Additional Sessions Judge, Court Room No.8, Faizabad, in Sessions Trial No.269 of 1991, arising out of Case Crime No.160 of 1991, of Police Station Jalalpur, District Ambedkar Nagar, whereby and whereunder all the appellants were convicted under Sections 304-B and 498-A of the Indian Penal Code. All the appellants have been sentenced to undergo imprisonment for life and pay a fine of Rs.10,000/- each for the offence under Section 304-B of the Indian Penal Code. In case of default in depositing the fine, they were further directed undergo imprisonment for life for two years. All the appellants were also sentenced to undergo rigorous imprisonment for one year for committing an offence under Section 498-A of the Indian Penal Code and are directed to pay a fine of Rs.5000/- each for the said offence. The appellants were further directed that if the appellants failed to pay the fine then they shall further undergo imprisonment for one year. 3. The prosecution case, as per the written report of the informant namely Salik Ram, is that his daughter namely Savitri Devi was married to appellant Ghan Shyam @ Pahadi 6 to 7 years before the date of lodging of the First Information Report. It is further alleged that inmates of in-laws family of his daughter were assaulting and harassing her for demand of dowry. It is stated that whenever the informant's daughter used to come to her parental house, she disclosed about the same. It is stated that on 22-23 May there was a marriage in the family of appellant Hari Lal and in that marriage also the appellants had assaulted his daughter Savitri Devi. It is further stated that the informant had also attended the said marriage and his daughter disclosed about the assault. It is stated that on 22-23 May there was a marriage in the family of appellant Hari Lal and in that marriage also the appellants had assaulted his daughter Savitri Devi. It is further stated that the informant had also attended the said marriage and his daughter disclosed about the assault. It is then stated that in the night of 24-25 May, the informant received information that the daughter of informant had fallen ill, whereupon the informant and his wife went to the house of the appellants, where they saw that his daughter was lying dead. It is alleged that after seeing the informant and his wife all the appellants fled away. 4. It appears that the informant on 25.05.1991 had submitted a written report in Jalalpur police station, District Ambedkar Nagar, on the basis of which Case Crime No.160 of 1991, under Sections 498-A and 304-B of the Indian Penal Code instituted and police took up investigation. It appears that during investigation, the police prepared the inquest report and thereafter sent the dead body for post mortem examination. It then appears that the doctor, who conducted post mortem examination on 26.05.1991 had not found any external or internal injuries on the body of the deceased. However, viscera was preserved and was sent to Forensic Science Laboratory, Lucknow, for examination. It appears that the report of Forensic Science Laboratory, Uttar Pradesh, Lucknow was received in the court of 06.08.1993 which shows that the viscera collected from the Stomach, Intestine, Liver, Kidney and Spleen of the deceased contains aluminum phosphate (a poison). During the investigation, the police recorded the statements of witnesses and inspected the place of occurrence and prepared its site plan and after completing the investigation submitted charge-sheet against the appellants under Sections 498-A & 304-B of the Indian Penal Code. 5. It appears that the learned Chief Judicial Magistrate, Faizabad, vide his order dated 10.09.1991 committed the case to the court of Sessions as the offence under Section 304-B of the IPC is exclusively triable by the court of sessions. Thereafter, charges were framed against the appellants under Section 498-A & 304-B of the IPC and the said charges were read over and explained to the accused-appellants in Hindi to which they pleaded not guilty and claimed to be tried. 6. Thereafter, the prosecution had examined altogether five witnesses in support of its case. Thereafter, charges were framed against the appellants under Section 498-A & 304-B of the IPC and the said charges were read over and explained to the accused-appellants in Hindi to which they pleaded not guilty and claimed to be tried. 6. Thereafter, the prosecution had examined altogether five witnesses in support of its case. Apart from the above oral evidence, the prosecution had also brought on the record that the written report (Exhibit Ka-1), Post Mortem Report (Exhibit Ka-2), First Information Report (Exhibit Ka-3), a copy of the G.D. (Exhibit Ka-4), Site map (Exhibit Ka-5), Charge-sheet (Exhibit Ka-6), Inquest report of the deceased (Exhibit Ka-7), and had also produced the viscera report of the Forensic Science Laboratory on 04.11.1992 issued by the Assistant Director, Forensic Science Laboratory, Mahanagar, Lucknow. 7. After close of the case of prosecution, the appellants were examined and their statements recorded under Section 313 of the Criminal Procedure Code in which their defence is of total denial. 8. After considering the arguments and evidences available on the record, the learned trial court concluded that the prosecution had proved the charges levelled against the appellants and accordingly convicted and sentenced the appellants by the impugned judgment of conviction and order of sentence as stated hereinabove. 9. Heard Sri Abdul Rafey Siddiqui, learned counsel appearing for the appellants and Sri Izhar Hussain, learned Additional Government Advocate for the State and perused the relevant record. 10. While assailing the impugned judgment, learned counsel appearing for the appellants submits that in the instant case no offence made out under Section 304-B of the IPC. It is submitted that admittedly, the occurrence took place on 25.05.1991. PW-2 (the informant and father of the deceased), in his cross-examination has admitted that the marriage of his daughter took place on 08.05.1983, thus, if calculated the marriage of the informant's daughter took place prior to 8 years from the date of occurrence. Thus, the offence under Section 304-B of the IPC is not made out. It is submitted that there is no direct evidence to show that the appellants had administered poison to the deceased nor there is any direct evidence to show that the appellants had tortured the deceased for demand of dowry. Therefore, no offence made out against them. Hence, the impugned judgment of conviction and order of sentence cannot be sustained. 11. On the other hand, Mr. Therefore, no offence made out against them. Hence, the impugned judgment of conviction and order of sentence cannot be sustained. 11. On the other hand, Mr. Izhar Hussain, learned Additional Government Advocate opposed the submissions raised by the learned counsel for the appellants and submits that this is a case of dowry death and there are evidence to show that the appellants used to torture the deceased for demand of dowry. Thus, the offence under Sections 304-B & 498-A of the Indian Penal Code are made out and hence, the appellants were rightly convicted and sentenced by the learned trial court. 12. Having heard the submissions, we have gone through the record of the case. 13. From perusal of the post mortem report (Exhibit Ka-2) as well as deposition of Doctor PW-3, we find that the doctor had not found any external or internal injuries on the body of the deceased. However, it appears that the doctor had collected and preserved viscera of deceased. It appears that the said viscera were sent to Forensic Science Laboratory, Uttar Pradesh, Mahanagar, Lucknow, for examination. The report of the Forensic Science Laboratory, dated 04.11.1992 reveals that the visceras of stomach, intestine, liver, pancreas, kidney and spleen of the deceased contains aluminum phosphate (a type of poison). 14. In view of the aforesaid report of the Forensic Science Laboratory, it appears that due to consumption of poison the deceased died and thus in our considered view, she died in an abnormal circumstances. 15. As noticed above, in the instant case, the appellants were charged under Sections 304-B & 498-A of the Indian Penal Code. The definition of dowry death is quoted hereinafter for ready reference:- Section 304-B of the Indian Penal Code:- "(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. Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 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." 16. From careful perusal of the definition of dowry death, we find that the following are essential ingredients of the dowry offence:- (i) Death of a woman occurring otherwise then under normal circumstances within seven years of marriage (ii) soon before her death, she should have been subjected to cruelty and harassment in connection with demand of dowry. It is worth mentioning that if the aforesaid two ingredients are fulfilled then the Court will presume that the husband or his relatives are guilty of the offence under Sections 304-B of the IPC, as per the provisions contained under Section 113-B of the Indian Evidence Act. 17. Under such circumstance, we are proceedings to consider whether the ingredients of offence of dowry death as defined under Section 304-B of the IPC have been proved in this case or not? 18. Pw-2 Salik Ram is the father of the deceased, though, he stated in his examination-in-chief dated 05.06.2000 that his daughter was married with the appellant Ghan Shyam @ Pahadi on 07.05.1984 but in the cross-examination held on 28.09.2002 he categorically stated that the marriage of his daughter took place on 08.05.1983. He further stated that the statement made by him on 05.06.2000 that his daughter was married on 07.05.1984 is wrong. 19. Under such circumstances, we find that the statement of PW-2 regarding the date of marriage of the deceased is self contradictory. PW-1 who is the mother of the deceased had not stated the exact date of marriage of her daughter. She had stated that her daughter was married on 07th May but she has not given year of marriage. Later on, she clarified that about 9 years before the date of her deposition, her daughter was married. PW-1 was examined in the court on 15.09.1999. 20. Under such circumstances, we find that PW-1 has also not proved the date of occurrence. Later on, she clarified that about 9 years before the date of her deposition, her daughter was married. PW-1 was examined in the court on 15.09.1999. 20. Under such circumstances, we find that PW-1 has also not proved the date of occurrence. Therefore, we find that the prosecution had failed to prove the first ingredient of the offence of dowry death that the deceased (the daughter of informant) had died within 7 years of her marriage in an abnormal circumstances. 21. There is no direct evidence on the record to show that these appellants had administered poison to the deceased. Thus, it cannot be presumed that they had caused the death of the deceased by administering poison to her. Likewise, we further find that there is no direct evidence to show that the deceased was subjected to cruelty and harassment by these appellants in connection with the demand of dowry. In this respect, only hearsay evidence is available on the record which in our considered view is not admissible in evidence, in view of the provisions contained under Section 60 of the Evidence Act. 22. In view of the aforesaid discussion, we find that the prosecution had miserably failed to prove the charges levelled against the appellants. Thus, we find that the learned trial court had committed serious illegality and or irregularities in convicting the appellants for the charges under Sections 304-B & 498-A of the Indian Penal Code. Thus, the impugned judgment of conviction and order of sentence cannot be sustained in these appeals. 23. Accordingly, these appeals i.e. [(Criminal appeal No.1416 of 2006-Ghan Shyam @ Pahadi V. State of U.P.) and (Criminal Appeal No.1173 of 2006-Hari Lal and Another V. State of U.P.)] succeed and are hereby allowed. The impugned judgment of conviction and order of sentence dated 03.06.2006 passed by Fourth Additional Sessions Judge, Court Room No.8, Faizabad, is set aside. The appellants are acquitted from the charges levelled against them. 24. It appears that the appellants namely Ghan Shaym @ Pahadi and Smt. Deoki are in jail custody. Thus, they are directed to be released forthwith, if not wanted in any other case. 25. Appellant Hari Lal, is on bail. Thus, he is discharged from the liabilities of bail bonds furnished by him. 26. Office is directed to communicate this order forthwith to the court concerned and send back the lower court record to ensure compliance.