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2018 DIGILAW 502 (ALL)

ATUL SINGH v. STATE OF U. P.

2018-02-26

REKHA DIKSHIT

body2018
JUDGMENT Hon’ble Mrs. Rekha Dikshit, J.—This appeal assails the correctness of the judgment and order dated 21.3.2017 passed by Additional Sessions Judge/Fast Track Court, Hardoi in Sessions Trial No. 148 of 2012, State v. Atul Singh and others, whereby the learned Additional Sessions Judge has convicted the appellant-accused under Sections 498-A, 304-B IPC and Section 4 of Dowry Prohibition Act and sentenced him to undergo 3 years’ imprisonment with fine of Rs. 5,000/- under Section 498-A I.P.C. and in default of payment of fine he was sentenced to undergo two months’ additional imprisonment, 7 years rigorous’ imprisonment under Section 304-B and 2 years’ rigorous imprisonment with fine of Rs. 2000/ under Section 4 of Dowry Prohibition Act. In default of payment of fine he shall undergo one month’s additional imprisonment. All sentences were directed to run concurrently. 2. Narrated concisely, prosecution case is that the complainant Mahesh Singh filed written report stating therein that he married his daughter Roobi Singh @ Chandrakanti Singh four years before with the appellant as per his own capacity and status, but in-laws of his daughter were not satisfied with the dowry and continuously demanded a motorcycle and a chain. On 30.10.2011 the appellant and his parents burnt his daughter alive, which information was given by his sister Radha Devi, he rushed to her in-laws house where he found his daughter dead. 3. The FIR was registered against the appellant on 1.11.2011 at Case Crime No. 455 of 2011, under Sections 498-A and 304-B IPC and Section ¾ of Dowry Prohibition Act. The dead body of the deceased was sent for postmortem where it was conducted by Dr. Masood Alam - P.W.-4, Ext. Ka-2 is the postmortem report in which antimortem injuries are as follows : Superficial to deep burn, both chest, abdomen, back of chest, right and left upper and lower extremest burnt. 4. The case was investigated by Shri Devendra Kumar Gautam, C.O., P.W.-6, who recorded the statement of witnesses, prepared site plan Ext. Ka-8. After completing investigation, he submitted charge-sheet Ext. Ka-9 under Sections 498-A, 304-B IPC and Section ¾ of Dowry Prohibition Act against the appellant. The charge was framed against the appellant under Sections 498-A, 304-B and Section 3/4 of D.P. Act and alternative charge under Section 302/34 IPC on 9.8.2012, which he denied and claimed trial. 5. Ka-8. After completing investigation, he submitted charge-sheet Ext. Ka-9 under Sections 498-A, 304-B IPC and Section ¾ of Dowry Prohibition Act against the appellant. The charge was framed against the appellant under Sections 498-A, 304-B and Section 3/4 of D.P. Act and alternative charge under Section 302/34 IPC on 9.8.2012, which he denied and claimed trial. 5. To bring home the guilt of the appellant, the prosecution has examined as many as ten witnesses and two witnesses have been adduced in defence alongwith the documentary evidence as per list 139-B. 6. P.W.-1 is the informant of the case Mahesh Singh, who has deposed in his oral testimony that he solemnized the marriage of the deceased with the appellant almost four years before as per his status but in-laws of his daughter were not satisfied and aways demanded a motorcycle and gold chain as additional dowry. Since this demand was not fulfilled, they used to torture the deceased and finally on 30.11.2011 they killed her by burning her alive. When he received the information from his sister, he rushed to the place of occurrence and immediately lodged a report against the appellant. 7. P.W.-2 Mahendra, uncle of the deceased has substantiated the version of FIR as well as P.W.-1 on oath, stating therein that in-laws of the deceased used to demand a motorcycle and gold chain as additional dowry and on account of the same, they tortured the deceased. It has also been stated that the deceased went to her in-laws house 18 to 20 days before her death. 8. P.W.-3 Smt. Maheshwari, who is the mother of the deceased, has confirmed the marriage of the deceased with the appellant as per her status but the deceased informed about the displeasure of her in-laws on insufficient dowry, she has also confirmed demand of motorcycle and gold chain as additional dowry. When this demand was not fulfilled, they continuously tortured the deceased and finally killed her by burning her alive. She has also stated that her son-in-law took the deceased from her parents’ house almost 1¼ months before her death. 9. P.W.-4 Masood Alam has proved postmortem report Ext. Ka-2 in his oral testimony. 10. P.W.-5 Kamlesh Shanker Dixit, Nayab Tehsildar, has deposed on oath that he got prepared the inquest report Ext. Ka-3, related paper Exts. Ka-4 to Ka-7 and he has proved all above mentioned exhibits in his deposition. 11. 9. P.W.-4 Masood Alam has proved postmortem report Ext. Ka-2 in his oral testimony. 10. P.W.-5 Kamlesh Shanker Dixit, Nayab Tehsildar, has deposed on oath that he got prepared the inquest report Ext. Ka-3, related paper Exts. Ka-4 to Ka-7 and he has proved all above mentioned exhibits in his deposition. 11. P.W.-6 Devendra Kumar Gautam, C.O is the investigating officer of the present case who, has proved site plan Ext. Ka-8, Charge-sheet Ext. Ka-9 and Ext. Ka-10. 12. P,.W.-7 Rajan Kumar, Sub-Inspector has proved the recovery memo Ext. Ka-11 and related material Ext. 1 to 5 in his oral deposition. 13. P.W.-8 Ganga Ram, H.C.P. has proved chik FIR - Ext. Ka-12, G.D. - Ext. Ka-13 in his deposition. 14. 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 has been falsely implicated due to enmity. He has further stated that he resided with his wife and children in the village, whereas his parents used to live in Delhi and his wife died in an accident due to burn injuries. 15. The appellant has adduced two witnesses in defence to establish his innocence and railway tickets, identity card and photocopy of attendance register as per list 139-B as documentary evidence. 16. D.W.-1 Kishan has deposed on oath that he resides in Delhi and accused Balveer Singh and his wife and two children, namely, Anand Singh and Droov Singh are his tenants since last 8 years. It has also been stated that Balveer Singh used to visit his village occasionally on Holi and Dewali and on 30.11.2011 he and his wife were in Delhi when they received the information of accidental death of his daughter-in-law. 17. D.W.-2 Dileep Singh has stated on oath in his oral testimony that he resides in the same village and is neighbour of accused-appellant. On 30.10.2011 in the evening at around 6.00 p.m. the wife of the accused-appellant caught fire while cooking food, they all rushed to save her but she was declared dead in the hospital. It has further been stated that at the time of accident the accused-appellant was not present in the house and also, that there was no dispute between husband and wife. 18. It has further been stated that at the time of accident the accused-appellant was not present in the house and also, that there was no dispute between husband and wife. 18. The trial Court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under Sections 498A, 304B IPC and 4 Dowry Prohibition Act and sentenced him under Section 498A I.P.C. for three years’ rigorous imprisonment with a fine of Rs. 5,000/-, under Section 304-B IPC for 7 years’ rigorous imprisonment and under Section 4 of Dowry Prohibition Act for two years’ rigorous imprisonment with a fine of Rs. 2,000/-. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal. 19. Heard Shr Rajat Pratap Singh and Shre Diwakar Singh, learned counsel for the appellant, Shri G.K. Pandey, learned brief holder for the State and perused the record. 20. Learned counsel for the appellant submitted that no offence under Section 304-B IPC is made out as there is no oral and documentary evidence to establish that the deceased was subjected to any cruelty or harassment soon before her death. It has also been submitted that the deceased died due to burn injuries received while cooking food in the kitchen which is established by the prosecution evidence itself and the accused-appellant was not present in the house as has been substantiated by oral testimony of his neighbour D.W.-2. 21. Learned counsel has also argued that the incident took place in the kitchen where the food was being cooked and the injuries also indicate that it was an accident, not intentional burning of the deceased as there was no burn injury above neck. It has also been submitted that no complainant was made either by the family members of the deceased regarding any demand of dowry or any torture in connection with the same. Moreover, there are lot of discrepancies and contradictions in the statement of witnesses which falsify the prosecution case. 22. 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. 23. 22. 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. 23. Considered the rival contentions and perused the impugned judgment and order of the trial Court and material on record. 24. In the instant case, the deceased was married to accused-appellant 4 years before the incident and the complainant solemnized the marriage as per his status and capacity but the family members of the appellant including himself were never satisfied with the dowry and always demanded a motorcycle and gold chain on account of which all of them tortured and harassed the deceased. 25. 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). 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. 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)” 26. 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)” 26. Indisputably the marriage of the deceased and the appellant took place 4 years before the incident and this fact has not been disputed by the accused-appellant also. Thus, it can be concluded that the incident took place within 7 years of the marriage as there is no otherwise evidence on record. Admittedly, the incident took place on 30.10.2011 which after 4 years of the marriage, therefore, this fact is clearly established that the deceased died within 7 years of marriage. 27. This fact is also not disputed that the cause of death of the deceased was burn injuries which she allegedly caught while cooking food in the kitchen. The cause of death has been established by the postmortem report Ext. Ka-2 of the deceased as well as oral testimony of P.W.-4 Dr. Masood Alam. Thus, this ingredient is also well-settled that the deceased died and unnatural death, otherwise, then in under normal circumstances. 28. 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. 29. Now, the Court emphasize on to assess the evidence laid by prosecution to show that cruelty or harassment was meted out by the deceased for brining insufficient dowry. (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. 29. Now, the Court emphasize on to assess the evidence laid by prosecution to show that cruelty or harassment was meted out by the deceased for brining insufficient dowry. P.W.-1 the complainant, P.W.-2 uncle of the deceased and P.W-3 Smt. Maheshwari - mother of the deceased had categorically stated in their testimony that in-laws of the deceased were not satisfied with the dowry given in the marriage and always demanded a motorcycle and gold chain as additional dowry, but none of the witnesses has clearly indicated as to when and by whom such demand was made and what was the subsequent reaction of them. 30. 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 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. 31. In the present case, three witnesses of fact have been produced, namely, P.W.-1, P.W.-2 and P.W.-3, who have made the same statement regarding demand of dowry of a motorcycle and gold chain as additional dowry which has been mentioned in the FIR itself. None of the witnesses has categorically 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”. The same allegation of demand of a motorcycle and gold chain since marriage till the date of death cannot be treated to be of such gravity immediate before which resulted in her death. To convict the death of the deceased, there must be some approximate live-links with the death and demand of dowry. 32. The same allegation of demand of a motorcycle and gold chain since marriage till the date of death cannot be treated to be of such gravity immediate before which resulted in her death. To convict the death of the deceased, there must be some approximate live-links with the death and demand of dowry. 32. Learned counsel for the appellant has referred the judgment of Hon’ble Supreme Court in the Case of Tarsem Singh v. State of Punjab, (2008)16 SCC 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. 33. Learned counsel for the appellant has referred another case of Hon’ble Supreme Court in the Case of Biswajit Halder alias Babu Halder and others v. State of West Bengal, (2008) 1 SCC 202 , on the same point. 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 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. 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. 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 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. 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. 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 the matter under consideration the proximity between the death of the deceased and cruelty has not been established by the prosecution. In this context P.W.-2 has stated in his oral testimony that the deceased went to her in-laws’ house 18 to 20 days before her death, whereas P.W.-3 has deposed that the deceased went to her in-laws’ house approximately 1¼ month before. Thus, even this fact also could not be established as to how much time before deceased left for the house of her in-laws, and consequently, it has also not been established as to what was the cruelty or harassment which disturbed her to the extent coming her death. 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. 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 the catching of FIR in the kitchen while cooking food, found on the body of the deceased are not sufficient enough to raise presumption under Section 113-B of the Evidence Act. 41. Perusal of the site plan, relevant documents and oral testimony of P.W.-7 do indicate that the incident took place where the food was being prepared which may be termed as kitchen, though it was a tin shade and this fact has also been corroborated by D.W.-2 the neighbour of the accused-appellant. Thus, it may be accepted that the incident took place while the deceased was cooking food, but general allegation regarding demand of dowry cannot establish that the deceased was subjected to cruelty or harassment prior to her death. 42. Learned counsel for the appellant has also referred the judgment of Supreme Court in the case of Durga Prasad and another v. State of Madhya Pradesh, (2010) 9 SCC 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.” 43. 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 Sections 498A, 304B IPC and Section 4 Dowry Prohibition Act is not in accordance wth the evidence, the same is not sustainable and the appeal filed by the appellant is liable to be allowed. 44. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly entitled to acquittal. 45. In the result, the appeal is allowed and the judgment and order dated 21.3.2017 passed by learned Additional Sessions Judge/Fast Tract Court, Hardoi in Sessions Trial No. 148 of 2012 is hereby set aside. Appellant Atul Singh 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. 46. Appellant Atul Singh is in jail since 3.11.2011. Appellant Atul Singh 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. 46. Appellant Atul Singh is in jail since 3.11.2011. If he is not wanted in any other case, he be released from jail forthwith. 47. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgement to the District Judge, Hardoi forthwith.