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2019 DIGILAW 1153 (ALL)

Rajendra v. State of U. P.

2019-05-02

PRADEEP KUMAR SRIVASTAVA

body2019
JUDGMENT : Pradeep Kumar Srivastava, J. The learned counsel for the accused appellant has chosen to argue on appeal instead of bail application to which learned AGA has agreed. 2. Heard Sri Anupam Dubey, learned counsel to the appellant and Sri L.D. Rajbhar, learned AGA for the State and perused the record. 3. The accused-appellant has preferred this appeal to set aside the judgment of conviction and sentence passed by Additional Sessions Judge/Special Judge, Dacoity Affected Area, Jalaun at Orai by which the trial court has convicted the accused-appellant in S.T. No. 31 of 2017, Case Crime No. 243 of 2016, Police Station- Dakor, District-Jalaun and has sentenced the accused-appellant Rajendra under section 304-B I.P.C. for 7 years rigorous imprisonment and Rs. 15,000/- fine, under section 498-A I.P.C. for three years rigorous imprisonment and Rs.3,000/- fine and under section 3/4 Dowry Prohibition Act for five year rigorous imprisonment and Rs. 15,000/- fine. 4. One FIR was lodged by the informant Manohar stating that his daughter Varsha was married with Rajendra on 24.06.2012 according to Hindu Rights and Rituals. Despite sufficient dowry given, after six months of marriage, the accused-appellant started demanding motorcycle and golden chain and harassing the deceased for non fulfilment of demand of dowry. The mother-in-law of the deceased, Gyasi also supported the accused-appellant for doing so In the last Raksha Bandhan, a settlement took place between them and it was communicated to the accused-appellant that they are not in a financial position to fulfil the demand. The accused-appellant however, continued cruel treatment and harassment and on 12.11.2016, Versha committed suicide by hanging herself. The FIR was registered for the offence under section 498-A, 304-B IPC and 3/4 Dowry Prohibition Act. The dead body was taken into custody by the police and was sent for post-mortem. After investigation, a charge sheet was filed against the accused-appellant for the said offences. The learned trial court framed charge under section 498-A, 304-B IPC and Dowry Prohibition Act, and in alternative, framed charge under section 302 IPC. 5. The prosecution examined PW-1 Manohar, (informant father), PW-2 Smt. Kusum Devi (mother), and PW-3 Sunil Kumar Agrawal. The accused-appellant admitted the genuineness of police papers. 6. After hearing the prosecution and defence, the learned trial court convicted and sentenced the accused-appellant Rajendra by impugned judgment. Hence, aggrieved by the judgment, this appeal has been filed. 7. 5. The prosecution examined PW-1 Manohar, (informant father), PW-2 Smt. Kusum Devi (mother), and PW-3 Sunil Kumar Agrawal. The accused-appellant admitted the genuineness of police papers. 6. After hearing the prosecution and defence, the learned trial court convicted and sentenced the accused-appellant Rajendra by impugned judgment. Hence, aggrieved by the judgment, this appeal has been filed. 7. Learned counsel to the accused-appellant has challenged the impugned judgment on the ground that two witnesses i.e. PW-1 Manohar who is father of the deceased and PW-2 Smt. Kusum Devi, mother of the deceased have been examined and both were declared hostile by the prosecution. The judgment of conviction and sentence thereupon recorded by the trial Court is illegal, arbitrary and not based on the evidences available on record and is liable to be set aside. 8. Sri L.D. Rajbhar, the learned AGA has however, submitted that PW-1, Manohar was examined by the prosecution who supported the prosecution version in his examination-in-chief, but he turned hostile during his cross-examination and, therefore, the finding arrived at by the learned trial court cannot be said to be baseless and without any evidence. 9. In V.K. Mishra Vs State of Uttarakhand, (2015) 9 SCC 588 and Panchanand Mandal Vs State of Jharkhand, (2013) 9 SCC 800 , it has been held that before recording conviction of an accused u/s 304-B IPC, the following conditions must be proved- 1. That the death of woman was caused by burns or bodily injury or otherwise than under normal circumstances. 2. That such a death should have occurred within 7 years of marriage. 3. That the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband. 4. That such cruelty or harassment should be for or in connection with demand for dowry. 5. That such cruelty or harassment is shown to have been meted out to the woman soon before her death. 10. In Shanti vs State of Haryana, (1991) AIR SC 1226, it has been held that for the application of the offence of dowry death under 304-B IPC, the death must occur by burn, bodily injury or otherwise than under normal circumstances and it covers all unnatural death, whether homicidal or suicidal. 11. In most of dowry death cases, direct evidence is hardly available as the death occurs within the confines of the matrimonial home. 11. In most of dowry death cases, direct evidence is hardly available as the death occurs within the confines of the matrimonial home. Therefore, such cases are proved by circumstantial evidence. It is why section 113-B of the Evidence Act enacts a rule of presumption which can be raised on proof of death of wife within within 7 years of marriage in suspicious circumstances and soon before her death, she was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. Section 113-B provides as follows: "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 of dowry, the court shall presume that such person had caused the dowry death." 12. In Dinesh vs State of Haryana, (2014) 2 Crimes(SC) 197, it has been held that since the crimes of dowry death are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the Legislature has tried to strengthen the hands of prosecution by incorporating a presumption under section 113-B of the Evidence Act on proof of certain facts mentioned above. Cruelty & Harassment 13. In Shivanand Mallappa Koti vs State of Karnataka, (2007) AIR SC 2314 and Rajendra vs State, (2009) AIR SC 855, it has been held that Explanation to section 498-A IPC defines cruelty and having regard to the background of the dowry death under section 304-B and 498-A IPC, the meaning of cruelty and harassment is same in both sections. Explanation to section 498-A IPC defines cruelty caused on wife by husband or his relatives as follows: (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 14. 14. In short, cruel treatment or harassment of wife by husband or his relative to force her to fulfil demand of dowry is the common element for the commission of offences under section 304-B and 498-A of the Indian Penal Code. In State of Punjab Vs. Gurmit Singh, (2014) 9 SCC 632 , it has been held that meaning of the words "any relative of her husband" occurring in Section 304-B IPC & meaning of the words "relative of the husband" occurring in Section 498-A IPC are identical and mean such person related by blood, marriage or adoption. A penal statute should be strictly construed. The expression "any relative of her husband" occurring in Section 304-B IPC should be limited to persons related by blood, marriage or adoption. Soon Before Her Death 15. For the offence of dowry death, it should be shown that soon before her death, the wife was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. In Raja Lal Singh vs State of Jharkhand, 2007 AIR SC 2153, it was remarked that 'soon before her death' do not necessarily mean immediately before death. It is an elastic expression and cannot be defined in terms of specific period of days, a few weeks or months, but there should be perceptible nexus between the death of the deceased and dowry related harassment. In Surinder Singh vs State of Haryana, (2014) AIR SC 817, it has been held that where the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time. 16. It is clear from the medical report and examination of the doctor, who conducted post-mortem that the deceased must have died on 12.11.2016 by committing suicide. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time. 16. It is clear from the medical report and examination of the doctor, who conducted post-mortem that the deceased must have died on 12.11.2016 by committing suicide. In the FIR also it has been mentioned that the deceased committed suicide which finds support by the post mortem report. It is also clear that both the accused-appellant and deceased were married on 24.06.2012 and the incident took place on 12.11.2016 and as such she died within seven years of her marriage. It is also established that she committed suicide which comes in the purview of an unnatural and suspicious death as provided in Section 304B IPC. What was required to be established was that there was continuous demand of dowry from the side of accused-appellant after marriage, that she was put to harassment continuously on account of non-fulfilment of demand of dowry and soon before her death, she was put to cruelty and harassment. 17. Here, the statement of P.W. 1 Manohar is very relevant. It appears that during his examination-in-chief, he proved the written Report, and stated that there was demand of Motorcycle and Golden Chain from the side of accused appellant and both used to quarrel and deceased was put to cruel treatment and harassment. His wife had communicated their financial incapability to fulfil the demand. During cross-examination, in the very beginning, he turned hostile and disowned the FIR and completely denied the prosecution story. He stated that the accused never demanded dowry nor harassed the deceased. He was cross-examined by prosecution and he said that he was threatened by the police that if he will not support the FIR version he can be punished and, therefore, he gave the statement under that pressure. It is also pertinent to mention that PW-2 is none other than his own wife and mother of the deceased who also did not support the prosecution version or the statement of PW-1 given in his examination-in-chief and turned hostile from the very beginning. When PW-1 turned hostile in the cross-examination, it was but obvious for the learned trial Court to see whether there was any evidence on record adduced by prosecution in support of prosecution case. When PW-1 turned hostile in the cross-examination, it was but obvious for the learned trial Court to see whether there was any evidence on record adduced by prosecution in support of prosecution case. The statement of PW-1 given in examination-in-chief could be used for the purpose of corroboration and support to such evidence. A person who has stated contrary to what he has stated in examination-in-chief, does not remain trustworthy and his solitary statement in examination-in-chief cannot be taken to be a complete proof of the matter so as to record a finding of conviction. But from perusal of the judgment, it appears that despite the fact that P.W. 1 and P.W. 2 both became hostile, even then the order of conviction has been passed. 18. The learned trial court has relied upon the judgment in Prithi vs State of Haryana, 2011 AllCriC 72 398 in which it was reiterated that the testimony of hostile witness cannot be rejected totally and his evidence is not washed off the record. The evidence is acceptable to the extent it is found to be dependable on careful scrutiny thereof and supports the version of prosecution. It is pertinent to mention that it was a case of murder under section 302 IPC and one of the eyewitness (informant) who was injured also, did not name the assailant but supported prosecution version. Other eyewitness who was a related witness named and supported the prosecution version and gave full account of the incident. The learned trial court also referred to the judgment of the supreme court in Ramkishor vs State of UP, (2015) 90 AllCriC 77 for the same preposition of law. But again in this case, decided by this court, the facts were different and similar to Prithi (supra) where the hostile witness supported the prosecution version in entirety except naming the assailant but stated that he saw the assailant running out from the house just after the incident and the dying declaration of the deceased was also proved by a fact witness. Thus, in both the cases referred by the learned trial court, there was trustworthy evidence on record in terms of other witness account or dying declaration and the statement of the hostile witness was used and relied upon in support thereof. 19. Thus, in both the cases referred by the learned trial court, there was trustworthy evidence on record in terms of other witness account or dying declaration and the statement of the hostile witness was used and relied upon in support thereof. 19. In a recent judgment, Ramesh vs State of Haryana, (2017) 1 SCC 529 , the Supreme Court expressed concern on witnesses turning hostile, particularly in high profile cases. In the instant case even the injured witness who was present on spot, turned hostile and the trial court disbelieved the dying declaration of the deceased on the basis of the statement of a hostile witness whose testimony was found false on the basis of evidence on record. The Supreme Court after analysis of various cases underlined the reasons of hostility to be (1) threat/intimidation (2) Inducement by various means (3) Use of muscle and money power by the accused (4) Use of stock witness (5) Protracted trial (6) Hassles faced by the witnesses during investigation or trial (7) Non-existence of any clear-cut legislation to check hostility of witness. (8) Culture of compromise which results from various factors like village and family solidarity, compensation, false case, false statement recorded by police, subsequent good relationship developed between the parties and the like. This view has been further reiterated in Mahender Chawla vs Union of India, 2018 SCCOnline 2679. 20. The purpose of the above discussion is to point out that there may be various reasons for hostility and while appreciating the evidentiary value of a hostile witness, the trial courts should not be mechanical and should consider the evidence in the light of factual matrix in each case. In case the witness has turned hostile during cross-examination, the statement in examination-in-chief may be taken in support of other reliable and trustworthy evidence available on record. It should be always kept in mind that right of cross-examination is available to the accused as part of his right to fair trial and unless there is evidence of threat, fear or pressure or the like to procure hostility, the trial courts should be very cautious in placing reliance on it, otherwise, the valuable right of the accused of cross-examination and fair trial will become futile and nugatory. 21. 21. The principle of law as laid down by different judgments of the Supreme Court that the testimony of hostile witnesses shall not be completely discarded and the part of the statement which supports the prosecution version can always be taken into consideration cannot be disputed, but the way it has been applied in the facts and circumstances of this case, that was totally uncalled for and unwarranted. It has been held in Ram Swaroop v. State of Rajasthan, 2004 AIR SC 2243 ; 2005 SCC (Cri) 61, that the credibility of a hostile witness cannot be discarded altogether. But this puts the court on guard and cautions the court against acceptance of such evidence without satisfactory corroboration. Thus, it appears that the aforesaid principle of law was misread and misunderstood by the learned trial court to mean that a conviction can be recorded on solitary statement of a witness who has disowned his testimony of examination-in-chief and has turned hostile during the beginning of the cross-examination. No doubt, where other reliable and trustworthy evidence is available on record, the same can be used in support thereof. 22. On the basis of above discussion, I find that by convicting accused-appellant, the learned trial Court has committed illegality and the finding of conviction on the basis of no reliable evidence on record is apparently perverse. Consequently, the impugned judgment is illegal and is not sustainable under law. Therefore, the impugned judgment of conviction and sentence dated 17.7.2018 is liable to be set aside and consequently the accused-appellant is entitled to be acquitted from the said charges. 23. Accordingly, the appeal is allowed. The impugned judgment of conviction and sentence dated 17.7.2018 is set aside and consequently the accused-appellant is acquitted from the said charges. 24. Office is directed to send the record to lower court along with copy of the judgment for information and necessary compliance.