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2018 DIGILAW 1637 (ALL)

Om Prakash v. State of U. P.

2018-07-26

REKHA DIKSHIT

body2018
JUDGMENT : Rekha Dikshit, J. This appeal assails the correctness of the judgment and order dated 18.01.2001 passed by learned VIIth Additional Sessions Judge, Barabanki in Sessions Trial No.453 of 1992, arising out of Case Crime No.68 of 1992, under Sections 498A, 304B IPC, Police Station Bado Sarai, District Barabanki, whereby the trial court has convicted the appellants-accused namely, Om Prakash, Ram Kumar, Smt. Jalawati @ Jalwanti and Kiran @ Gudiya and sentenced them under Section 498A I.P.C. for one year's rigorous imprisonment with fine of Rs.5,000/-, in default, they shall undergo two months additional imprisonment and under Section 304B IPC for seven years' rigorous imprisonment. 2. The appellant no.2 Ram Kumar died in the year 2001 as per report of the Chief Judicial Magistrate, Barabanki dated 30.04.2011, as such the appeal stands abated against the appellant no.2 Ram Kumar vide order dated 03.05.2011. Now this Court proceeds with the appeal of appellant nos.1-Om Prakash, 3-Smt. Jalawati @ Jalwanti and 4-Kiran @ Gudiya only. 3. In brief, the prosecution case is that the complainant Nanhe lodged a written report on 07.08.1992 around 07.30 P.M. stating therein that he solemnized the marriage of his daughter Sankata Devi with appellant no.1 Om Prakash in ''Vaishya Sammelan' in the month of June 1991, wherein no dowry was either settled. After sometime when his daughter visited his house then she narrated the torture of her in-laws which included her husband, father-in-law, mother-in-law and sister-in-law in connection with dowry. In the month of April, Ram Kumar, father-in-law, took his daughter away to his own house and at that time the complainant gave him Rs.10,000/- and assured him to give demanded articles later on. His daughter wrote a letter to him stating the torture of her in-laws but he could not visit her house. On 06.08.1992, he was informed by his nephew Shitala Prasad @ Pappu and Shyam Lal that his daughter Sankata Devi has been burnt by her in-laws. On which information, he along with other family members and neighbour rushed to Sadar Hospital, Barabanki, where he found his daughter dead and none of her in-laws were present there. On the aforesaid premise, first information report was lodged at Case Crime No.62/1992 under Sections 498A, 304B IPC against the accused persons. 4. The dead body of the deceased was sent for postmortem, where she was examined by Dr. On the aforesaid premise, first information report was lodged at Case Crime No.62/1992 under Sections 498A, 304B IPC against the accused persons. 4. The dead body of the deceased was sent for postmortem, where she was examined by Dr. Suresh Chandra (PW-8) on 07.08.1992, exhibit Ka-5 is the postmortem report, in which antemortem injuries are as follows: "(i) Sooty blackening of the whole body except foot and lower 1/3 of both legs. Singeing of hair of scalp in the front and upper part, eyebrow, eyelashes axillary hair and pubic hair. Odour of kerosene from the body. Pieces of burnt blouse found attached to the chest and back. 2nd to 3rd degree antemortem burn (90%) sparing lower of legs and feet skin peeling off at places on both upper limb and trunk. There is line of redness at the junction of upper 2/3 and lower 1/3 of both legs." 5. The case was investigated by Shri Tej Bahadur Singh, PW-7 and consequently charge sheet Exhibit Ka-6 was submitted, after completion of investigation, against the accused persons, Om Prakash, Ram Kumar, Smt. Jalawati @ Jalwanti and Kiran @ Gudiya under Section 498A, 304B IPC. The charges were framed under Sections 498A/34, 304B IPC against the appellants, who denied the charges and claimed trial. 6. To bring home the guilt of the appellants, the prosecution has examined as many as eight witnesses. 7. PW-1 Nanhe, complainant of the case, has deposed in his oral testimony that he solemnized his daughter's marriage with appellant no.1 Om Prakash in the year 1991. No dowry as such was settled at the time of marriage since it was in ''Vaishya Sammelan', but later on the in-laws of his daughter demanded cash, T.V., fridge etc. as dowry to which he gave Rs.10,000/- to Ram Kumar and assured to give rest of articles later on, but still his daughter was burnt alive on 06.08.1992. He has further proved the written report exhibit Ka-2 in his statement. He has also proved the letter written by his nephew Shitala Prasad @ Pappu exhibit Ka-1 in his oral testimony. 8. PW-2 Smt. Kamla Devi, PW-2, wife of the complaint and mother of the deceased has also substantiated the testimony of PW-1 and averment made in the first information report. He has also proved the letter written by his nephew Shitala Prasad @ Pappu exhibit Ka-1 in his oral testimony. 8. PW-2 Smt. Kamla Devi, PW-2, wife of the complaint and mother of the deceased has also substantiated the testimony of PW-1 and averment made in the first information report. She has further stated that when her daughter returned after few days, she specifically stated about the demand of cash and other articles as dowry. She has also admitted the fact that she received a letter from the deceased in which there was specific averment regarding torture on account of dowry. 9. PW-3 Constable Udai Pratap Singh has proved chik F.I.R. and copy of G.D. in his oral testimony exhibit Ka-3 and Ka-4 respectively. 10. PW-4 Shyam Lal Gupta, nephew of the complainant has admitted in his oral testimony that he wrote a letter to the complainant exhibit Ka-1 in which allegations against Ram Kumar has been levelled for demand of dowry. 11. PW-5 Smt. Ketaki, daughter-in-law of the complainant has categorically stated that the deceased specifically told about the torture and harassment by her in-laws in connection with demand of dowry and she was not willing to go back to her in-laws' house. 12. PW-6 Radhey Shyam, son of the complainant has also substantiated the deposition of prosecution witnesses stating therein that the deceased informed about the harassment in connection with demand of dowry of her in-laws. He has confirmed receiving of information regarding death of the deceased by Shyam Lal and Shitala on 06.08.1992. 13. PW-7, Circle Officer, Tej Bahadur Singh, the Investigating Officer of the present case has proved site plan exhibit Ka-8, recovery memo exhibit Ka-9. He recorded the statement of witnesses and submitted charge-sheet Exhibit Ka-6 accordingly. 14. PW-8, Dr. Suresh Chandra has proved the postmortem report exhibit Ka-5 and other relevant papers exhibit Ka-10 in his statement. 15. Incriminating evidence and circumstances were put to the appellants under Section 313 Cr.P.C., in which the appellants only admitted the marriage and denied any demand of dowry. It has further been stated that none of the appellants were present at the time of incident at the house. 16. The appellants have adduced two witnesses to establish his innocence along with documentary evidence as per list A-225. 17. It has further been stated that none of the appellants were present at the time of incident at the house. 16. The appellants have adduced two witnesses to establish his innocence along with documentary evidence as per list A-225. 17. DW-1, Avadhesh Bux Das, had deposed in his oral testimony that he resides nearby the house of Ram Kumar and on the date of incident, after hearing the loud noises, he rushed towards the house of Ram Kumar and found the main door locked, as such, he entered the house from the roof of Radhey Shyam, neighbour of Ram Kumar and found the deceased burning alive. It has further been stated that deceased herself informed him that she caught fire while burning furnace and she was taken to the hospital by Om Prakash himself. 18. DW-2, Ram Nath, has also substantiated the oral deposition of DW-1. He has also specified that on the day of incident around 07:30A.M., he met Ram Kumar, who was going along with his daughter Kiran to the court in connection with date fixed in the case of his daughter. He has also stated that the appellant no.1 Om Prakash and his mother left for the shop around same time, as such, none of them were present in the house at the time of incident. 19. The trial court held that the appellants committed the said incident and the prosecution established the circumstance, proving their guilt under Sections 498A, 304B IPC and sentenced them under Section 498A I.P.C. for one year's rigorous imprisonment with fine of Rs.5,000/- and under Section 304B IPC for seven years' rigorous imprisonment. Aggrieved by the verdict of the conviction, the appellants preferred the present appeal. 20. Heard Shri Rajeev Dubey, learned counsel for the appellants and Shri Shalini Srivastava, learned A.G.A. for the State. 21. Learned counsel for the appellants has submitted that no offence under Section 304B IPC is made out as there is no specific demand of money alleged by the prosecution in the entire evidence against the appellants. Whatever false allegation as has been levelled against the appellant Ram Kumar, who has already died. Further, it has been argued by learned counsel for the appellants that there is no evidence regarding the deceased being subjected to cruelty or harassment by the appellants "soon before" her death. Whatever false allegation as has been levelled against the appellant Ram Kumar, who has already died. Further, it has been argued by learned counsel for the appellants that there is no evidence regarding the deceased being subjected to cruelty or harassment by the appellants "soon before" her death. Further, it has been stated that the marriage was solemnized in ''Vaishya Sammelan" where there was no question of any demand of dowry. 22. Learned counsel for the appellants indicated that the entire facts and circumstances of the case specify the absence of the appellants at the place of incident. He has also argued that initially such plea of alibi has been taken which has been substantiated and supported by oral testimony of defence witnesses. Moreover, there are lot of discrepancies and contradictions in the evidence of witnesses, which falsify the prosecution case. 23. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellants in the commission of crime in this case. The FIR version has fully been supported by medical and ocular evidence, based on the said evidence, the court below rightly convicted the appellants and the impugned judgment warrants no interference. 24. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record. 25. In the present case, the deceased was married to appellant no.1-Om Prakash in the month of June, 1991 in "Vaishya Sammelan", where admittedly no question of dowry was involved. Later on as per allegations of prosecution, dowry was demanded in the form of cash and articles like T.V., fridge etc., to which the complainant gave Rs.10,000/- and assured to give rest of the articles later on, still the in-laws of the deceased burnt her alive on 06.08.1992, 26. The appellants have been charged under Sections 498A and 304B IPC. Predominantly, the provisions of Section 304B IPC, are to be taken into account which reads as under: "304B. The appellants have been charged under Sections 498A and 304B IPC. Predominantly, the provisions of Section 304B IPC, are to be taken into account which reads as under: "304B. 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. Explanation.- For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 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." The essential ingredients of the said offence are: (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have been occurred within seven years of marriage (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry; and (v) such cruelty is shown to have been meted out to the woman soon before her death. The Explanation appended to Section 304B defines dowry to have the same meaning as contained in Section 2 of the Dowry Prohibition Act, 1961, which reads as under: "2. The Explanation appended to Section 304B defines dowry to have the same meaning as contained in Section 2 of the Dowry Prohibition Act, 1961, which reads as under: "2. Definition of 'dowry'.- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applied." Section 113B in the Evidence Act has been inserted, which reads as under: "113B. 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 has 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. Explanation.-For the purposes of this section "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)" 27. Indisputably, marriage of the deceased and appellant no.1 was solemnized in the month of June, 1991 and the incident occurred on 06.08.1992, which clearly establishes the fact that the death of the deceased occurred within seven years of marriage. 28. This fact is also not disputed that the death of the deceased was caused due to ante mortem injuries, which has been established by postmortem report of the deceased, as well as, oral testimony of PW-8 Dr. Suresh Chandra. Thus, this ingredient is also established that the deceased died an unnatural death, otherwise than under normal circumstances. 29. As per the definition of "dowry death" in Section 304B IPC and the wording in the presumptive provision of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, is that the 'woman' must have been "soon before her death" subjected to cruelty or harassment "for, or in connection with, the demand for dowry". 29. As per the definition of "dowry death" in Section 304B IPC and the wording in the presumptive provision of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, is that the 'woman' must have been "soon before her death" subjected to cruelty or harassment "for, or in connection with, the demand for dowry". On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with, any demand for dowry. (4) Such cruelty or harassment was soon before her death. 30. Now, the evidence brought on record by the prosecution to show that the cruelty or harassment was meted out to her for brining insufficient dowry, has to be assessed. PW-1, the complainant, has stated in his testimony that the appellants demanded cash and articles like T.V., fridge etc. from the deceased to which the complainant gave Rs.10,000/- and assured to give rest of the articles later on. The demand of dowry was conveyed to him through the deceased and by Ram Kumar, father-in-law of the deceased, who visited his house. PW-2, wife of the complainant and mother of the deceased has also substantiated the said fact, however, none of the witness has clearly indicated as to when was such demand made and what action or re-action was shown by them towards the in-laws of the deceased. PW-5, daughter-in-law of the complainant and PW-6, son of the complainant have also narrated the same fact, which indicates a vague demand by the accused Ram Kumar, father-in-law of the deceased, who has died, as such even, if there was any such demand, it is of no consequence now. However, none of the other appellants have been stated for demanding any dowry and harassing the deceased on account of insufficient dowry by the prosecution witnesses. 31. However, none of the other appellants have been stated for demanding any dowry and harassing the deceased on account of insufficient dowry by the prosecution witnesses. 31. Mere bald allegation regarding demand of dowry and cruelty or harassment on that account will not suffice the essential ingredient of the provisions of dowry death. As per contents of the first information report also, a general allegation of demand of cash and articles like T.V., fridge etc. has been levelled against the persons named therein but nothing specific has been stated. No particular dates or associate evidence has been led to establish the fact that the deceased was subjected to cruelty or harassment soon before her death and that too on account of dowry. Mere negative statements in connection with insufficient dowry will not suffice to establish the provisions of dowry death. 32. In the instant case, PW-1 and PW-2 have categorically referred to a letter written by the deceased to them with the alleged demand of dowry and harassment by her in-laws, but it has not been produced in evidence. Another letter said to be written and proved by PW-4 has been produced with the averment that he visited the house of the deceased and narrated the conditions in his letter to the complainant. Even this letter has been received on 10.08.1992 much after the incident took place. Moreover such vague and general allegation and alleged behaviour cannot be treated as conclusive evidence to establish cruelty or harassment "soon before" her death. The evidence led by the prosecution has to be of the extent which may establish that the harassment was of such gravity which resulted in the death of deceased. None of the witness has stated that, what was the cruelty or harassment on part of the appellant which resulted in the death of the deceased, making it ''dowry death'. To convict the death of deceased, there must be some proximate live links with the death and demand of dowry. 33. None of the witness has stated that, what was the cruelty or harassment on part of the appellant which resulted in the death of the deceased, making it ''dowry death'. To convict the death of deceased, there must be some proximate live links with the death and demand of dowry. 33. A reference may be made to Durga Prasad and another v. State of Madhya Pradesh; (2010) 9 SCC 73 wherein it has been observed: ''dowry death due to suicide - presumption of causing - ingredients of evidence to sustain such presumption - proof of subjecting victim to cruelty and harassment prior to her death, held, not sufficient - It must also be proved that she committed suicide on account of such cruelty and harassment - These are also the ingredients of evidence required to be led for the presumption under Section 113-B, Evidence Act - Moreover, it has also to be shown that such cruelty or harassment was for, or in connection with, any demand of dowry - Only then can resultant death be called "dowry death". Benefit of doubt given - except bald statements of victim's mother and brother alleging that victim had been subjected to cruelty and harassment prior to her death, no other evidence adduced to prove that she committed suicide on account of the same.' 34. Another case referred to is Biswajit Halder @ Babu Halder and others v. State of W.B.; (2008) 1 SCC 202 wherein it has been held: ''dowry death - ingredients - on facts, conviction not sustainable - subjecting the deceased to cruelty and harassment must be shown to be for or in connection with the demand for dowry'. 35. In this case, there is practically no evidence to show that there was any cruelty or harassment for or in connection with demand of dowry. This deficiency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304-B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with demand of dowry. Therefore, the prosecution has apparently failed to prove the aforesaid aspect. 36. The legal fixation ought to be created must be raised only on fulfillment of the condition precedent there for. It has to be shown in addition that such cruelty or harassment was for or in connection with demand of dowry. Therefore, the prosecution has apparently failed to prove the aforesaid aspect. 36. The legal fixation ought to be created must be raised only on fulfillment of the condition precedent there for. All the requisite ingredients of the offence must be brought home before the presumptive evidence is to be used by the court for holding the accused guilty. 37. 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. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution. 38. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. 39. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. 39. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 40. In this context, the statement of defence witnesses DW-1 and DW-2 may also be considered, who have categorically stated that they were present outside the house when the incident took place, they rushed to rescue the deceased from the roof of neighbour as the main door of the house was locked and no other family member was in the house. Both of them have confirmed catching of fire while burning furnace. Though the plea of alibi taken by the appellants may not be said to be established conclusively, but it does create a doubt regarding their presence at the time of incident. In this context, learned counsel for the appellant has referred to State of Haryana v. Ram Singh (2002) 2 SCC 426 wherein it has been observed: "The evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution." 41. Another judgment has also been referred to by the learned counsel for the appellant which is Dudh Nath Pandey v. State of Uttar Pradesh; (1981) 2 SCC 166 on the credibility or reliability of defence witnesses. 42. In the present case, there is a general assertion regarding demand of cash and T.V., fridge etc. in the first information report, as well as, in the testimony of PW-1, PW-2, PW-5 and PW-6, and alleged harassment on that count, the only proximate link stated by prosecution witnesses is a letter written by PW-4 to the complainant stating therein about the harassment given to the deceased by her in-laws. The entire evidence is a general allegation, which reasonably and prudently, cannot be accepted in the term ''soon before' as enumerated in Section 304B IPC. The entire evidence is a general allegation, which reasonably and prudently, cannot be accepted in the term ''soon before' as enumerated in Section 304B IPC. It has to be proved and established by the prosecution that the deceased was subjected to harassment and cruelty in connection with demand for dowry to such an extent or gravity, which resulted in her death. Mere allegation of demand of cash and articles as dowry that too after the marriage, as such, it can in no way be treated as a demand "soon before" the death of the deceased and that she was also subjected to cruelty for the same, which resulted in her death. 43. The entire evidence, as discussed above, merely indicates a vague demand of cash and certain articles after the marriage as told by the deceased to her family members and somewhat narrated by PW-4 in his letter to the complainant, but nowhere any cruelty or harassment immediate before death of the deceased has been attributed to the appellants. The PW-1 has categorically stated that a demand was made by Ram Kumar, father-in-law of the deceased, though it has not been established, even if it be taken as true then there is no averment against rest of the appellant and Ram Kumar has already died. It has to be established that the deceased was subjected to cruelty in connection with the demand for dowry, which resulted in her death, but there is nothing on record to show the same, as such it may be concluded that the prosecution failed to prove that the deceased was subjected to any sort of cruelty or harassment in connection with demand for dowry by the accused appellants, soon before her death. In absence of proof of such ingredients presumption for committing the offence under Section 113B of Indian Evidence Act could also not be raised in the present matter. Certainly, burn injuries were found on the body of the deceased, but this fact alone is not sufficient to raise presumption under Section 113-B of the Evidence Act. 44. As far as, the applicability of Section 106 of the Evidence Act is concerned, the burden of proving the fact specially within the knowledge of the person lies upon him. Certainly, burn injuries were found on the body of the deceased, but this fact alone is not sufficient to raise presumption under Section 113-B of the Evidence Act. 44. As far as, the applicability of Section 106 of the Evidence Act is concerned, the burden of proving the fact specially within the knowledge of the person lies upon him. Since no presumption could be raised taking recourse of provision of Section 113-B of the Evidence Act and there is no charge against the accused appellants for the offence under Section 302 IPC, therefore, no question arises for the accused appellants to discharge the burden as required under Section 106 of the Evidence Act. 45. Thus on the basis of analysis made herein above, this Court is of the view that the trial court's finding on the point of holding guilty to the accused appellants for the offence under Sections 498A and 304B IPC is not in accordance with the evidence and law, the same is not sustainable and the appeal filed by the appellants is liable to be allowed. 46. For all the reasons stated above, the appellants are entitled to the benefit of doubt and accordingly entitled to acquittal. 47. In the result, the appeal is allowed and the judgment and order dated 18.01.2001 passed by learned VIIth Additional Sessions Judge, Barabanki in Sessions Trial No.453 of 1992 is hereby set aside. Appellants Om Prakash, Smt. Jalawati @ Jalwanti and Kiran @ Gudiya are acquitted on benefit of doubt from the charges under Sections 498-A and 304-B IPC. 48. The appellants are on bail. Their bail bonds and sureties stand discharged. 49. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgment to the District Judge, Hardoi forthwith.