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2018 DIGILAW 428 (ALL)

Upendra Singh v. State of U. P.

2018-02-17

REKHA DIXIT

body2018
ORDER : Rekha Dixit, J. 1. This appeal assails the correctness of the judgment and order dated 26.04.2017 passed by Additional Sessions Judge, Court No. 10, Unnao in Sessions Trial No. 388 of 2016, Case Crime No. 235 of 2016, State versus Upendra Singh, whereby the learned Additional Sessions Judge has convicted the accused-appellant under Sections 304-B IPC and 4 of Dowry Prohibition Act and sentenced him to undergo 10 years simple imprisonment with fine of Rs. 10,000/-, in default, to undergo one year additional simple imprisonment and one year simple imprisonment with fine of Rs. 2000/- under Section 4 of Dowry Prohibition Act, in default, to undergo one month additional simple imprisonment. All sentences were directed to run concurrently. 2. Briefly stated, the prosecution case is that the complainant Sudha Singh married her daughter Soni Singh on 19.4.2012 to appellant Upendra Singh, as per her status and capacity, but the husband, father-in-law and brother-in-law of her daughter were not satisfied with the dowry, and complained of one lakh rupee less in the given dowry at the time of marriage, due to which they used to torture her daughter. On 2.5.2016 in-laws of her daughter brought her to Unnao and on 4.5.2016 she was done to death after electrocuting her. 3. The first information report was registered on the said premise at Case Crime No. 235 of 2016, 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. S.K. Pandey-P.W.-3. Ext. Ka-2 is the postmortem report in which antemortem injuries are as follows:- fctyh ls tyh pksV 8 xq.kk 6-0 cka;s gkFk ds vUn:uh lrg ij dksuh ls 8&10 lsŒehaŒ Åij lkFk esa 'kSyks ØsVj lkbV byhosVsM jkbM vkQ Likbu ckgj fudyh gqbZ e/; Hkkx esa ihNsa dh rjQ ?kqVus ls 12 lsŒehŒ Åij fon ,s lSyksa fØ;sVj FkksM+k lk mBk gqvkA j;ky dk fjt lkFk esa xzks ,l cslA 4. The case was investigated by Shri Ram Arj, C.O., P.W.-4, who recorded the statement of witnesses, prepared site plan. After completing investigation, he submitted charge sheet (ext. ka-4) under Sections 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act against the appellant. The charge was framed against the appellant under Sections 498-A, 304-B and Section 4 of Dowry Prohibition Act, which he denied and claimed trial. 5. After completing investigation, he submitted charge sheet (ext. ka-4) under Sections 498-A, 304-B IPC and Section 3/4 of Dowry Prohibition Act against the appellant. The charge was framed against the appellant under Sections 498-A, 304-B and Section 4 of Dowry Prohibition Act, which he denied and claimed trial. 5. To bring home the guilt of the appellant, the prosecution has examined as many as four witnesses. 6. P.W.-1, Smt. Sudha Singh, complainant and mother of the deceased, while corroborating the averments of the first information report, has stated that the in-laws of the deceased used to torture her on account of one lakh rupee less in dowry at the time of marriage, due to which electrocuted her, as such she died. She further stated that due to death of her daughter, her husband and herself were mentally upset, as such the report was lodged after delay of twenty days. Further in her cross-examination, she has deviated from her statement in examination-in-chief and has stated that the appellant, her son-in-law, and his father never demanded any dowry and were fully satisfied with whatever was given at the time of marriage. It has been further stated that when the appellant got job, he took her daughter with him and they were living happily. Since the entire family was very upset with the death of the deceased, none of the family members including herself lodged any report against the appellant. It has also been deposed that she is not aware as to how her signature appeared on the written complaint (ext. ka-1). 7. P.W.-2, Veerpal Singh, father of the deceased, has deposed on oath that at the time of marriage of the deceased with appellant on 19.4.2012, he gave a motorcycle and Rs. 51,000/- as gift to her daughter but her in-laws and husband never tortured her on account of dowry. He has further stated that his daughter died due to electrocution and this witness has been declared hostile by the prosecution. 8. P.W.-3, Dr. S.K. Pandey, conducted postmortem of the deceased and has proved the said report (ext. Ka-2 in his oral testimony. 9. P.W.-4 Shri Ram Arj, the then C.O., Unnao is the Investigating Officer of the present case, who has proved the site plan (ext. ka-3) and the charge sheet (ext. ka-4) in his oral deposition. 10. 8. P.W.-3, Dr. S.K. Pandey, conducted postmortem of the deceased and has proved the said report (ext. Ka-2 in his oral testimony. 9. P.W.-4 Shri Ram Arj, the then C.O., Unnao is the Investigating Officer of the present case, who has proved the site plan (ext. ka-3) and the charge sheet (ext. ka-4) in his oral deposition. 10. Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C., who denied all of them, except the marriage with the deceased and stated that he never demanded any dowry and the witnesses have falsely deposed against him. No evidence oral or documentary has been adduced by the appellant in defence. 11. The trial court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under Sections 304-B IPC and 4 of Dowry Prohibition Act and sentenced him under Section 304-B IPC for 10 years simple imprisonment with fine of Rs. 10,000/- and under Section 4 of Dowry Prohibition Act for one year simple imprisonment with fine of Rs. 2,000/-. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal. 12. Heard Shri Sunil Kumar Singh and Shri Shailendra Tripathi, learned AGA for the State and perused the record. 13. Learned counsel for the appellant submitted that no offence under Section 304-B IPC is made out as there is no oral or documentary evidence, to establish that the deceased was subjected to any cruelty or harassment soon before her death. It has also been submitted that both the witnesses of fact have turned hostile and not supported the prosecution case. Moreover, there is no evidence to substantiate the fact that the deceased was electrocuted by the appellant. 14. 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. 15. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record. 16. 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. 15. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record. 16. In the instant case, the deceased was married to appellant on 19.4.2012, and the complainant solemnized marriage as per her status and capacity but the family members of the appellant including husband were not satisfied due to one lakh rupee less in the dowry, on account of which all of them tortured and harassed the deceased. 17. 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)". 18. Indisputably the marriage of the deceased and the appellant took place on 19.4.2012 and she died on 4.5.2016. Thus, it can be concluded that the incident took place within 7 years of the marriage as there is no otherwise evidence on record. This fact is also not disputed that cause of death of the deceased was electrocution which has been established by the postmortem report (ext. ka-2) of the deceased as well as oral testimony of P.W.-4, Dr. S.K. Pandey. This ingredient is also well settled that the deceased died an unnatural death, otherwise, then under normal circumstances. 19. 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". 19. 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. 20. Now, the evidence led by prosecution is to be assessed to show that cruelty or harassment was meted out by the deceased for brining insufficient dowry. P.W.-1, complainant and P.W.-2, father of the deceased have categorically stated in their testimony that in-laws of the deceased never demanded any dowry and were fully satisfied with whatever was given at the time of marriage. Both the witnesses have also stated that the deceased never complained of any torture either physical or mental in connection with the demand for dowry. 21. In the present case, two witnesses of fact have been produced, namely, P.W.-1 and P.W.-2, who have not supported the prosecution case and categorically denied any demand of dowry by the appellant and also any torture or harassment of the deceased in connection with the dowry. 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 a "dowry death". To convict the death of the deceased, there must be some proximate live-link with the death and demand of dowry. 22. 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 a "dowry death". To convict the death of the deceased, there must be some proximate live-link with the death and demand of dowry. 22. Learned counsel for the appellant has referred the judgment of Hon'ble Supreme Court in the Case of Tarsem Singh versus State of Punjab reported in (2008)16 Supreme Court Cases 155 reads as under: "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, any demand for dowry". Presumption in terms of S. 113-B is one of law but such a presumption can be raised only on proof of the following essentials: viz. (1) accused must be tried for offence under S. 304-B; (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. 23. 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 or 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. 24. 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. 25. 25. 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. 26. 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. 27. "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. 28. 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. 29. In the matter under consideration the proximity between the death of the deceased and cruelty has not been established by the prosecution. 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. 29. In the matter under consideration the proximity between the death of the deceased and cruelty has not been established by the prosecution. In this context, statement of P.W.-1 and P.W.-2 is to be taken into account in which both of them have denied any harassment or torture with the deceased by her in-laws/appellant in connection with demand for dowry. Mere statement either of the deceased regarding demand of dowry, torture or harassment or on that premise, the statement of witnesses cannot be sufficient enough to bring the death of the deceased under the purview of expression "soon before her death" used in substantive Section 304-B IPC. It has to be established beyond doubt that the deceased was subjected to cruelty in connection with demand for dowry, which subsequently 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 the absence of proof of such ingredients, presumptions for committing the offence under Section 304-B IPC could also not be raised in the present matter. The burn injuries, consequent to electrocution found on the body of the deceased are not sufficient enough to raise presumption under Section 113-B of the Evidence Act. 30. Learned counsel for the appellant has also referred the judgment of Supreme Court in the case of Durga Prasad and another versus State of Madhya Pradesh reported in (2010) 9 Supreme Court Cases 73 as under: "B. Penal Code, 1860-Ss. 304-B, 498-A and 306-Conviction reversed-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." 31. 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. 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 appellant for the offence under Section 302 IPC, therefore, no question arises for the accused appellant to discharge the burden as required under Section 106 of the Evidence Act. 32. 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 the accused-appellant guilty for the offence under Section 304B IPC and Section 4 Dowry Prohibition Act is not in accordance with the evidence, the same is not sustainable and the appeal filed by the appellant is liable to be allowed. 33. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly entitled to acquittal. 34. In the result, the appeal is allowed and the judgment and order dated 26.04.2017 passed by learned Additional Sessions Judge, Court No. 10, Unnao in Sessions Trial No. 388 of 2016 is hereby set aside. Appellant Upendra Singh is acquitted on benefit of doubt from the charges under Sections 304-B IPC and 4 of Dowry Prohibition Act. 35. Appellant Upendra Singh is in jail since 13.7.2016. If he is not wanted in any other case, he be released from jail forthwith. 36. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgment to the District Judge, Unnao forthwith.