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2018 DIGILAW 2553 (ALL)

Shailendra v. State Of U. P.

2018-12-17

REKHA DIKSHIT

body2018
JUDGMENT : Rekha Dikshit, J. 1. This appeal assails the correctness of the judgment and order dated 13.01.2017 passed by Additional Sessions Judge, Court No.2, Hardoi in Sessions Trial No.419 of 2011, Case Crime No.873 of 2010, State versus Shailendra, whereby the learned Additional Sessions Judge has convicted the accused-appellant under Sections 498-A and 304-B IPC and sentenced him to undergo 2 years rigorous imprisonment with fine of Rs.1000/-, in default, to undergo one month additional simple imprisonment under Section 498-A IPC and 10 years rigorous imprisonment under Section 304-B IPC. All sentences were directed to run concurrently. 2. Briefly stated, the prosecution case is that the sister of the complainant got married with the appellant two years before the incident, and the marriage was solemnized as per his capacity including eighty thousand rupees in dowry. The appellant demanded a buffalo during the marriage which was assured to be given later on, but the same could not be fulfilled, as such he tortured his sister. Later on when he could not fulfill the demand of a buffalo, the appellant demanded Rs.2,000/-which also could not be done, due to which on 1.8.2010 around 7.00 PM in the evening the appellant killed her sister by administering some poisonous substance to her. 3. The first information report was lodged on the basis of an application under Section 156(3) Cr.P.C. moved by the complainant at Case Crime No.873 of 2010, under Sections 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act. The dead body of the deceased was sent for postmortem where it was conducted by Dr. Surjit Singh – P.W.-4. Ext. Ka-8 is the postmortem report in which no apparent injury was found on the dead body of the deceased. ‘ 4. The case was investigated by Additional Superintendent of Police, Tribhuvan Singh, P.W.-5, and charge sheet (ext. ka-10) was submitted after completion of investigation against the appellant under Section 306 IPC. Charge was framed against the appellant under Sections 306 IPC and alternate charge under Sections 498-A and 304-B IPC, by the trial court to which he denied and claimed trial. 5. To bring home the guilt of the appellant, the prosecution has examined as many as six witnesses. 6. Charge was framed against the appellant under Sections 306 IPC and alternate charge under Sections 498-A and 304-B IPC, by the trial court to which he denied and claimed trial. 5. To bring home the guilt of the appellant, the prosecution has examined as many as six witnesses. 6. P.W.-1, Jagpal, the complainant, has deposed on oath that the deceased was his sister, aged 22 years and she was married to the appellant two years before the incident as per Hindu rites. During marriage a buffalo was demanded by the appellant and assurance was given for fulfilling the same. But after sometime the demand was not fulfilled, the family members of the appellant and he, himself, started torturing and harassing his sister. Later on there was a demand of Rs.2000/-by the appellant which also could not be fulfilled, as such they caused death of his sister. Since his report was not lodged in the police station concerned, he moved an application before the court under Section 156 (3) Cr.P.C., which has been proved by him as ext. ka-1. 7. P.W.-2, Jay Devi, mother of the deceased, has substantiated and corroborated the statement of P.W.-1 stating therein that the appellant demanded a buffalo and later on two thousand rupees which was not fulfilled, due to which the appellant and his family members caused death of the deceased. 8. P.W.-3, Prabhakar Tripathi, the then Nayab Tehsildar, has deposed in his oral testimony that he prepared inquest report of the deceased and has proved inquest report (ext. ka-2), ext. Ka-4 to ext. Ka-7 in his oral testimony. 9. P.W.-4, Dr. Surjit Singh, has proved postmortem report (ext. ka-8) in his oral testimony and has stated that the deceased died due to poisonous substance found in her stomach, as per viscera report. 10. P.W.-5, Tribhuvan Singh, Additional Superintendent of Police, is the Investigating Officer, who has proved the site plan (ext. ka-9) and the charge sheet (ext. ka-10) in his oral testimony and has stated that he recorded the statement of witnesses, visited the place of occurrence and after completion of investigation, submitted charge sheet accordingly. 11. Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C., in which the appellant has denied the entire incident and claimed that he has been falsely implicated in the present case. 11. Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C., in which the appellant has denied the entire incident and claimed that he has been falsely implicated in the present case. He has also stated that his in-laws were demanding money from him which he refused to give, as such, this false case has been lodged against him. 12. The trial court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under Sections 498-A and 304-B IPC and sentenced him under Section 498-A IPC for 2 years rigorous imprisonment with fine of Rs.1000/-and under Section 304-B IPC for 10 years rigorous imprisonment with fine of Rs.10,000/-. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal. 13. Heard Shri Rajat Pratap Singh, learned counsel for the appellant and Shri Manoj Singh, learned AGA for the State and perused the record. 14. Learned counsel for the appellant submitted that no offence under Section 304-B IPC is made out as there is no specific demand of dowry in the statement of P.W.-1 and P.W.-2. It has further been argued that no complaint was ever made regarding any torture or harassment by the appellant to the deceased. Since the deceased has died due to some poisonous substance, it cannot be termed as a ‘dowry death’ because no demand or torture before the death of the deceased has been established by the prosecution. Moreover, there are lot of discrepancies and contradictions in the statement of witnesses which falsify the prosecution case. 15. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellant 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 appellant and the impugned judgment warrants no interference. 16. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record. 17. In the instant case, the deceased was married to appellant as per Hindu rites and the capacity and status of the complainant. The appellant demanded a buffalo during the period of solemnization of the marriage, the same could not be fulfilled. 17. In the instant case, the deceased was married to appellant as per Hindu rites and the capacity and status of the complainant. The appellant demanded a buffalo during the period of solemnization of the marriage, the same could not be fulfilled. Later on, again he demanded the same in dowry and also asked the deceased to bring two thousand rupees if buffalo is not being arranged, on account of same, he used to torture the deceased mentally and physically as she died due to consumption of some poisonous substance. 18. The appellant has been charged under Sections 498A, 304B and 4 Dowry Prohibition Act. In this context, the provisions of Section 304-B IPC are 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)". 19. Indisputably the deceased was married to the appellant but the family members of the appellant were not satisfied with non-fulfillment of demand of dowry, as such they used to torture her, on account of which she died on 1.8.2010 due to consumption of some poisonous substance. There is no documentary evidence to establish the fact that the death of the deceased occurred within seven years of solemnization of the marriage but for the statement of appellant under Section 313 Cr.P.C. in which he has admitted his marriage two years before the incident to the deceased. P.W.-1 and P.W.-2 have stated in their oral testimony that the marriage was solemnized two years before the death of the deceased. In such circumstances, it may be termed as established that the death of the deceased occurred within seven years of the marriage. This fact is also not disputed that the death of the deceased was caused due to presence of aluminum phosphate poison in her stomach. In such circumstances, it may be termed as established that the death of the deceased occurred within seven years of the marriage. This fact is also not disputed that the death of the deceased was caused due to presence of aluminum phosphate poison in her stomach. It is established by the viscera report as well as postmortem and the testimony of Dr. Surjit Singh, P.W.-4. This ingredient is also established that the deceased died an unnatural death, otherwise, than under normal circumstances. 20. 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. 21. Now, I advert to the assessment of evidence brought on record by the prosecution to show that the cruelty or harassment was meted out to the deceased for non-fulfillment of demand of a buffalo/Rs.2000/-in connection with dowry. P.W.-1, complainant and P.W.-2, mother of the deceased, have categorically stated in their testimony that in-laws of the deceased tortured and harassed her for not bringing a buffalo and Rs.2000/-as demanded at the time of marriage as well as later on in connection with dowry, but none of the witness has clearly indicated as to when such demand was made after marriage and what action or reaction was shown by them towards her in-laws. 22. 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. 22. 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 dowry 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 the harassment soon before her death and that too in connection with any demand for dowry. The evidence led by the prosecution has to be of the extent which may establish that the harassment was to the extent of resulting in the death of deceased. Mere negative statements in connection with insufficient dowry will not suffice to establish the provisions of dowry death. 23. In the present case, only two witnesses of fact have been produced, namely, P.W.-1 and P.W.-2, who have substantiated the fact of first information report lodged on the premise of an application moved under Section 156(3) Cr.P.C. by the complainant. There is an allegation of demand of a buffalo at the time of marriage and also later on by the appellant but none of the witnesses has stated that, what was the cruelty or harassment on part of the appellant, which resulted in the death of the deceased making it a "dowry death". To convict the death of the deceased, there must be some proximate live-link with the death and demand of dowry. 24. A reference may be made to Gurnaib Singh v. State of Punjab; (2013) 7 SCC 108 wherein it has been observed: ''Mental cruelty -what is -held, in family life there can be differences, quarrels, misgivings and apprehensions but it is the degree which could raise the same to the level of mental cruelty - manner in which daughter-in-law should be treated. 25. In the present case, as per the allegation of F.I.R. and the testimony of PW-1 and PW-2, it appears as if the prosecution is indicating towards mental agony to which the deceased was subjected by her in-laws but for mere bald allegation regarding negative statements there is nothing specific which may indicate that she was subjected to any sort of mental cruelty. 26. 26. Another reference may be made to Sunil Bajaj v. State of M.P.; (2001) 9 SCC 417 wherein it has been held: "Section 304B -dowry death -ingredients of -it being a deeming provision and having regard to gravity of punishment prescribed, court should take greater care and caution in examining the evidence and reaching its conclusion -on facts held, prosecution failed to establish two essential ingredients viz. soon before death, the deceased had been subjected to cruelty or harassment by her husband or relatives and the same was for or in connection with demand of dowry -hence accused husband cannot be convicted under Section 304B." 27. In the aforesaid perspective, the evidence of witnesses of fact is to be appreciated in which the most noticeable factor is that PW-1 and P.W-2 have stated that the appellant took the deceased two months before her death from the house of her parents and torture her continuously, when his demand for a buffalo / Rs.2000/-was not fulfilled. There is no evidence on record to establish the nature of cruelty or harassment to which the deceased was allegedly being subjected. In this context 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." 28. 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." 28. Another case, which may be 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". 29. 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. 30. In order to raise a presumption under Section 113-B of Evidence Act, which is relatable to Section 304-B IPC a heavy burden has been shifted on to the accused to prove his innocence. Having regard to the language of Section 113-B of Evidence Act, which indicates that when the question arises as to whether a person has committed the dowry death of a woman and it is shown that soon before her death, she was subjected to cruelty or harassment by such other person or in connection with any demand for dowry, the court shall presume that such person had caused such dowry death. 31. The legal fixation ought to be created must be raised only on fulfillment of the condition precedent therefor. 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. 32. 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. 32. 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. 33. "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. 34. 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. 35. In this case, the testimony of PW-1 and PW-2 merely indicates a demand of buffalo and Rs.2000/-in connection with the demand for dowry but nowhere any cruelty or harassment immediate before death of the deceased has been attributed to the appellant. 35. In this case, the testimony of PW-1 and PW-2 merely indicates a demand of buffalo and Rs.2000/-in connection with the demand for dowry but nowhere any cruelty or harassment immediate before death of the deceased has been attributed to the appellant. It has to be established that the deceased was subjected to cruelty in connection with the demand for dowry, which consequently resulted in her death, but there is nothing on record to show the same, as such it may be concluded that the prosecution could not prove that the deceased was ever subjected to cruelty or harassment by the appellant which resulted in her death. In absence of proof of such ingredients, presumption for committing the offence under Section 304-B IPC could also not be raised in the present matter. But for the presence for poisonous substance in the body of the deceased, no injury was found on her body, which further diminishes the presumption under Section 113-B of the Evidence Act. 36. 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 the accused appellant for the offence under Sections 498A, 304B IPC and Section 4 Dowry Prohibition Act is not in accordance with the evidence and law and the same is not sustainable and the appeal filed by the appellant is liable to be allowed. 37. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly entitled to acquittal. 38. In the result, the appeal is allowed and the judgment and order dated 13.01.2017 passed by learned Additional Sessions Judge, Court No.2, Hardoi in Sessions Trial No.419 of 2011 is hereby set aside. Appellant Shailendra is acquitted on benefit of doubt from the charges under Sections 498A and 304B IPC and under Section 4 of Dowry Prohibition Act. 39. Appellant Shailendra is in jail. If he is not wanted in any other case, he be released from jail forthwith. 40. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgement to the District Judge, Hardoi forthwith.