Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 2556 (ALL)

Neeraj v. State of U. P.

2018-12-18

REKHA DIXIT

body2018
ORDER : Rekha Dixit, J. 1. This appeal assails the correctness of the judgment and order dated 24.01.2018 passed by learned Additional Sessions Judge, Court No. 4, Lakhimpur Kheri in Sessions Trial No. 565 of 2016, arising out of Case Crime No. 628 of 2016, whereby the Sessions Judge has convicted the accused-appellant, Neeraj, and sentenced him under Section 498-A I.P.C. for two years simple imprisonment with fine of Rs. 5000/-, under Section 304-B IPC for ten years rigorous imprisonment and under Section 4 of Dowry Prohibition Act for one year simple imprisonment with fine of Rs. 2000/- in default, to undergo one month additional simple imprisonment. All the sentences were directed to run concurrently. Appellant Neeraj, has been acquitted of alternative charge under Section 302 IPC. If fine amount is deposited, half of the whole amount shall be paid to the victim as compensation. 2. In brief, the prosecution case is that the complainant Pradeep lodged a written report stating therein that his sister was married to appellant Neeraj on 28.4.2016 as per Hindu rites and his capacity and status, but her husband and in-laws were not satisfied with the dowry and always demanded one lakh rupee for opening of a medical shop as additional dowry which could not be fulfilled, due to which they tortured and harassed her and finally strangulated her to death. 3. A first information report was lodged on the premise of the written report at Case Crime No. 628 of 2016, under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act against the accused-appellant. The dead body of the deceased was sent for postmortem, where it was conducted by Dr. Amit Kumar Singh, P.W.-1. Exhibit Ka-1 is the postmortem report in which antemortem injuries are as follows: 1- uhyxw fu'kku 10 lsehŒ xq.kk 3 lsaehŒ xnZu ij lkeus BqMMh ls 3 lsehŒ uhps FkhA pksV dk foPNsnu djus ij dksf'kdk,a mRrd bdkbZ eksTM rFkk gkbZMoksu VwVh ik;h x;h Fkh rFkk 'okl uyh vR;f/kd dUtsLVsM FkhA 2- uhyxw fu'kku 20 lsehŒ xq.kk 15 lsehŒ ihNs dh rjQ dejs ls Bhd Åij FkhA 4. The case was investigated, site plan was prepared, statement of witnesses was recorded and after completion of investigation, charge sheet under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act was submitted against the appellant. The case was investigated, site plan was prepared, statement of witnesses was recorded and after completion of investigation, charge sheet under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act was submitted against the appellant. Charge was framed against the appellant under Sections 498-A, 304-B IPC and 4 Dowry Prohibition Act and alternative charge under Section 302 IPC by the trial court which the accused-appellant denied and claimed trial. 5. To bring home the guilt of the appellant, the prosecution has examined as many as ten witnesses. 6. PW-1, Dr. Amit Kumar Singh, had conducted postmortem of the deceased and proved the postmortem report (ext. Ka-1) in his oral testimony. He has also stated that cause of death of the deceased was asphyxia, due to strangulation. 7. PW-2, Pradeep, complainant of the case, has substantiated the allegation of first information report and deposed that the deceased was married to the appellant 2½ years before the incident and she was continuously tortured for not bringing one lakh rupee as dowry, due to which the appellant strangulated her to death. 8. PW-3, Hemraj, father of the deceased, has deposed on oath that the appellant never demanded one lakh rupee as additional dowry neither the deceased ever reported torture or harassment on the part of the appellant, as such this witness was declared hostile by the prosecution. 9. PW-4, Ramkali, mother of the deceased, has corroborated the statement of P.W.-3 and denied any demand of dowry in the form of one lakh rupee or any torture or harassment of her daughter by the appellant. This witness was also declared hostile by the prosecution. 10. PW-5, Prema alias Marro, sister-in-law of the deceased has also deposed that she never saw in-laws of the deceased torturing her mentally or physically and there was no such demand of one lakh rupee for opening of a medical shop. This witness was also declared hostile by the prosecution. 11. P.W.-6, Gobare, mediator of the marriage of the deceased with the appellant, has stated that there was no demand of one lakh rupee as additional dowry by the appellant and no torture or harassment was ever done by the appellant to the deceased. He was also declared hostile by the prosecution. 12. P.W.-7, Lal Krishna, Nayab Tehsildar, has proved inquest report, challan nash, letter of police, photo nash, letter of C.M.O., letter of R.I., sample ext. ka-3 to ext. He was also declared hostile by the prosecution. 12. P.W.-7, Lal Krishna, Nayab Tehsildar, has proved inquest report, challan nash, letter of police, photo nash, letter of C.M.O., letter of R.I., sample ext. ka-3 to ext. ka-8 in his deposition. 13. PW-8, Dinesh, brother of the deceased, has stated in his oral testimony that the deceased was married to the appellant on 28.4.2016 but there was no demand of any additional dowry in the form of one lakh rupee for opening of a medical shop. He has further stated that the deceased was never subjected to any cruelty by the appellant as she never complained of the same. This witness has also been declared hostile by the prosecution. 14. P.W.-9, Jagdish, has stated on oath that the deceased was his niece, who was married to the appellant on 28.4.2016 but there was neither any demand of additional dowry nor any cruelty in connection with demand of dowry to the deceased. He has also been declared hostile by the prosecution. 15. P.W.-10, constable Shyam Kumar Singh, has proved chik FIR (ext. ka-9) G.D. (ext. Ka-10) in his oral testimony. Genuineness of site plan and charge sheet (ext. ka11 and ext. ka-12 respectively) was admitted by the learned counsel for the appellant in the trial court. 16. 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 further stated that the number of witnesses of fact have not supported the prosecution case and produced one witness in defence. 17. D.W. 1, Maya Devi, has deposed on oath that her residence is nearby the residence of the appellant and in the preceding night of the alleged incident, number of miscreants entered the house of the appellant and killed the deceased. The appellant was not present in the house as he had gone for his job outside the village. 18. The trial court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act and sentenced him under Section 498-A I.P.C. for two years simple imprisonment with fine of Rs. 18. The trial court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act and sentenced him under Section 498-A I.P.C. for two years simple imprisonment with fine of Rs. 5000/-, under Section 304-B IPC for ten years rigorous imprisonment and under Section 4 of Dowry Prohibition Act for one year simple imprisonment with fine of Rs. 2000/-, in default, to undergo one month additional simple imprisonment. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal. 19. Heard Shri Rajiva Dubey, learned counsel for the appellant, Shri Sama Parvez, learned A.G.A. for the State and perused the record. 20. Learned counsel for the appellant has submitted that no offence under Section 304-B IPC is made out as there is no evidence to substantiate the fact of demand of dowry by the appellant. Witnesses of fact P.W.-3, P.W.-4, P.W.-5, P.W.-6, P.W.-8 and P.W.-9 have not supported the prosecution case and declared hostile by the prosecution. It has also been argued that there is no evidence to establish the cruelty or harassment to which the deceased was subjected 'soon before her death'. Moreover, there is lot of discrepancies and contradictions in the statement of P.W.-2, complainant, which also falsify the prosecution case. 21. 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. 22. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record. 23. In the present case, admittedly, the deceased was married to the appellant on 28.4.2016 as per capacity and status of the complainant, but the family members of the appellant were never satisfied with the dowry and always demanded one lakh rupee for opening of a medical shop as additional dowry, consequently tortured the deceased mentally and physically and strangulated her to death. 24. The appellant has been charged under Sections 498-A, 304-B and 4 Dowry Prohibition Act. In this context, the provisions of Section 304-B IPC are taken into account which reads as under: "304B. 24. The appellant has been charged under Sections 498-A, 304-B 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)". 25. Indisputably, the marriage of the deceased and the appellant took place on 28.04.2016 but the family members of the appellant were not satisfied with the dowry, as such, tortured the deceased. Admittedly, the deceased died after 2½ years of the marriage, which clearly establishes the fact that the death of the deceased occurred within seven years of marriage. 26. This fact is also not disputed that the death of the deceased was caused by asphyxia, due to strangulation, which has been established by the postmortem report of the deceased as well as oral testimony of PW-1, Dr. Amit Kumar Singh. Thus, this ingredient is also established that the deceased died an unnatural death, otherwise than under normal circumstances. 27. This fact is also not disputed that the death of the deceased was caused by asphyxia, due to strangulation, which has been established by the postmortem report of the deceased as well as oral testimony of PW-1, Dr. Amit Kumar Singh. Thus, this ingredient is also established that the deceased died an unnatural death, otherwise than under normal circumstances. 27. 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. 28. 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 bringing one lakh rupee as additional dowry. P.W.-3, P.W.-4, P.W.-5, P.W.-6, P.W.-8 and P.W.-9 have categorically stated in their testimony that there was no demand of one lakh rupee as additional dowry. The deceased never reported any sort of torture or harassment or cruelty on the party of the appellant. The only witness of fact, who has substantiated the demand of dowry and cruelty in his oral testimony, is the complainant, brother of the deceased, but her deposition has not been corroborated by the father, mother, sister-in-law and other brother of the deceased. It has also not been established that the alleged demand was made by whom and what action or reaction was shown by them towards in-laws of the deceased. 29. It has also not been established that the alleged demand was made by whom and what action or reaction was shown by them towards in-laws of the deceased. 29. 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. 30. In the instant case, only the complainant, P.W.-1, has stated in his testimony that there was a demand of one lakh rupee for opening of a medical shop as additional dowry, but nowhere, it has been connected with the term 'dowry'. Mere stating that the demand of one lakh rupee was additional dowry, cannot bring it in the term "dowry". None of the witness, including P.W.-1, 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 link with the death and demand of dowry. 31. Learned counsel for the appellant has also placed 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." 32. 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." 32. In the aforesaid perspective, the evidence of witnesses of fact is to be appreciated in which the most noticeable factor is that except PW-1, none of the witness has supported the prosecution case and categorically denied any demand of dowry or any cruelty in connection with demand for dowry by the appellant. Even testimony of P.W.-1 regarding cruelty or harassment "soon before her death" is too remote to be connected with the demand of dowry. There is no evidence on record to establish the nature of cruelty or harassment to which the deceased was allegedly being subjected to. 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." 33. 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". 34. 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. 34. 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. 35. 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. 36. The legal fixation ought to be created must be raised only on fulfillment of the condition precedent therefore. 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. 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. 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 case, only the testimony of PW-2 indicates a demand of rupee one lakh for medical 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 accused-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 injury consequent to strangulation, no injury was found on the body of the deceased, which further diminishes the presumption under Section 113-B of the Evidence Act. 41. 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 injury consequent to strangulation, no injury was found on the body of the deceased, which further diminishes the presumption under Section 113-B of the Evidence Act. 41. 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. 42. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly entitled to acquittal. 43. In the result, the appeal is allowed and the judgment and order dated 24.01.2018 passed by learned Additional Sessions Judge, Court No. 4, Lakhimpur Kheri in Sessions Trial No. 565 of 2016 is hereby set aside. Appellant Neeraj is acquitted on benefit of doubt from the charges under Sections 498-A and 304-B IPC and under Section 4 of Dowry Prohibition Act. 44. Appellant Neeraj is in jail. If he is not wanted in any other case, he be released from jail forthwith. 45. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgment to the District Judge, Lakhimpur Kheri forthwith.