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2019 DIGILAW 1815 (ALL)

Brijesh Kumar v. State of U. P.

2019-07-29

ARVIND KUMAR MISHRA I

body2019
JUDGMENT : 1. Heard Sri Yogesh Srivastava, learned counsel for the appellants, Sri Om Narain Tripathi, learned A.G.A. Ist assisted by Sri Sanjay Kumar Rajbhar and Sri Rajeev Kumar Rai, Brief Holders for the State and perused the material brought on record of this appeal. 2. Appropriate to mention that during the course of appeal, appellant no.3 Lakhi Ram expired, therefore, his appeal stood abated against him, vide order of this Court dated 15.12.2017. Now, this appeal is confined to only two surviving appellants-Brijesh Kumar (appellant no.1) and Smt. Bala (appellant no.2). 3. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order dated 10.01.2017 passed by Additional Sessions Judge/Fast Track Court No.2, Ghaziabad in Sessions Trial No.951 of 2005, under Sections 498A, 304B and ¾Dowry Prohibition Act, police station-Sahibabad, district Ghaziabad, arising out of Complaint Case No.243 of 1998 and renumbered as 1758 of 2004, whereby each of the appellants has been sentenced to 10 years R.I. under Section 304-B IPC; 2 years R.I. under Section 498A IPC coupled with fine Rs.2,000/- with default stipulation for 3 months R.I.; one year R.I. under Section 4 Dowry Prohibition Act coupled with fine Rs.1,000/- along with default clause for two months R.I. All the sentences are directed to run concurrently. 4. Gravamen of the charge is rooted in the application under Section 156(3) Cr.P.C. dated 09.09.1997, which was treated as Miscellaneous Application No.4337 of 1997, Karmveer Singh vs. Brijesh Kumar and others, and subsequently treating it as a complaint, the same was numbered as Complaint No.243 of 1998 by the learned Judicial Magistrate, Ghaziabad, vide its order dated 01.12.1997, subsequently, this complaint was renumbered as Complaint No.1758 of 2004 and statement of the complainant and his witnesses was recorded under Sections 200 and 202 Cr.P.C. Thereafter the case was committed to the court of Sessions, when this case was numbered as Sessions Trial No.951 of 2005, State vs. Brijesh Kumar and others and the trial commenced. 5. Brief facts of the prosecution case, as discernible from record, is that the complainant Karmveer-got his daughter Babita married with Brijesh Kumar s/o Lakhi Ram according to the Hindu rites and customs on 16.02.1997 at his village-Kanakpur and spent money according to his capacity. 5. Brief facts of the prosecution case, as discernible from record, is that the complainant Karmveer-got his daughter Babita married with Brijesh Kumar s/o Lakhi Ram according to the Hindu rites and customs on 16.02.1997 at his village-Kanakpur and spent money according to his capacity. After the marriage ceremony was over, the husband of his daughter-Brijesh Kumar demanded at village Arthala with his daughter one scooter and Rs.20,000/- as dowry, which fact was told to him by his daughter when he visited her in the house of her in-laws. The complainant went back to his village and took several persons of the village and again went to the house of in-laws of his daughter and requested them that his position is quite vulnerable to meet the aforesaid demand and he also took his daughter with him at village-Kanakpur. Complainant's son-in-law (damad) Brijesh Kumar-came to village-Kanakpur on 07.05.1997 asked for 'vidai' of his daughter (the deceased) by saying that engagement of his sister Sarika is scheduled to take place at his home, when the complainant said to him that he will not send his daughter with him because he had committed cruelty upon her on account of non fulfilment of the dowry demand, whereupon, Brijesh Kumar apologized, then only on 09.05.1997, the complainant sent his daughter with Brijesh Kumar. The complainant went to take back his daughter in July, 1997, but her in-laws refused to send her to her parental home. While he talked to his daughter Babita, she told about cruelty being perpetrated to her on account of non-fulfilment of dowry. The complainant again tried to reconcile the in laws of Babita by asking them not to torture his daughter (on account of non-fulfilment of demand of dowry) and requested that she be sent with him when Brijesh Kumar suggested that on the occasion of forthcoming 'Rakshabandhan festival', he will send Babita to her parental home. The complainant came back to his home. Around midnight of 6.8.1997 someone telephonically informed him that his daughter has been killed by her husband-Brijesh Kumar, father-in-law Lakhi Ram and mother-in-law Smt. Bala. The complainant being accompanied with others arrived at village Arthalawhere he saw his daughter-Babita-lying dead in a room and her husband (Brijesh Kumar) and her in laws had absconded. Around midnight of 6.8.1997 someone telephonically informed him that his daughter has been killed by her husband-Brijesh Kumar, father-in-law Lakhi Ram and mother-in-law Smt. Bala. The complainant being accompanied with others arrived at village Arthalawhere he saw his daughter-Babita-lying dead in a room and her husband (Brijesh Kumar) and her in laws had absconded. Report of this case was tried to be lodged at police station-Sahibabad, but no report was lodged although papers were kept by the police with it. 6. The police also got his signature on some blank papers and told him that the report shall be lodged after obtaining the postmortem examination report in two days, but no report was lodged. On 21.8.1997, he also gave application for lodging the report to the Senior Superintendent of Police, Ghaziabad, whereupon, he was told that the report shall be lodged on 2.9.1997, but no action taken. Consequently the complaint. 7. It was prayed in the complaint that the case be lodged/registered and investigated, whereupon, after consideration of the application, the same was treated as complaint case and the procedure prescribed for complaint cases was adopted and the statement of the complainant and his witnesses was recorded and after recording the statement it was found that the case is exclusively triable by the court of Session, hence the case was committed to the court of Sessions, whereupon, it was numbered at aforesaid Sessions Trial number and was sent for trial to the aforesaid court of Additional Sessions Judge/Fast Track Court No.2, Ghaziabad where the trial commenced and after hearing the prosecution and the accused the trial court was satisfied with prima facie case under Sections 498A, 304B and U/s ¾Dowry Prohibition Act. Consequently, charges under aforesaid sections of Indian Penal Code and the Dowry Prohibition Act, respectively, were framed, the same were explained to the accused, who abjured the charges and opted for trial. 8. Consequently, the prosecution was required to adduce its testimony, whereupon as many as four witnesses were produced. Brief sketch of the same is as herein under; 9. Karmveer P.W.1 is the complainant and father of the deceased-Babita. Hari Singh P.W.2 is the cousin brother of the complainant. Tansen P.W.3 is the witness of fact of marriage of deceased Babita with accused Brijesh Kumar on 16.2.1987. Dr. Brief sketch of the same is as herein under; 9. Karmveer P.W.1 is the complainant and father of the deceased-Babita. Hari Singh P.W.2 is the cousin brother of the complainant. Tansen P.W.3 is the witness of fact of marriage of deceased Babita with accused Brijesh Kumar on 16.2.1987. Dr. A.P. Gupta P.W.4 is the doctor witness, who conducted the postmortem examination on the body of the deceased Babita on 7.8.1997 at Mortuary District Hospital, Ghaziabad and has noted the following ante-mortem injuries on examination: (1) Ligature mark of size 17cm x 2cm encircling neck with a gap on both of rear and partial on left side located 4 cm below right ear looped just below on mastoid bone and just over mastoid bone on left side and located above thyroid cartilage in front. (2) Contusion of size 4 cm x 2 cm over lower part of chin just over ligature mark above thyroid cartilage (upper part of neck). Ligature mark present. 10. Duration was stated to be about one day. Post mortem was conducted at 4 P.M. and the cause of death was stated to be asphyxia as a result of ante-mortem hanging. This postmortem examination report is Exhibit Ka-3 on record. 11. Thereafter, statement of the accused was recorded under Section 313 Cr.P.C., wherein, they denied the charges and it was submitted by accused-Brijesh Kumar that after the marriage, his daughter-Babita-suffered from fits, she was given medical treatment by him. On the date of occurrence, he had gone away from home for duty and at the time when he came back, he found Babita dead. Report of this incident was lodged at the police station and his parental home was also informed. Later on, the parents of Babita demanded Rs.40,000/- and articles which were given to Babita at the time of her marriage, which were given back to him (Karmveer), but in order to create pressure for more money, the complainant lodged false report. 12. Accused-appellant Smt. Bala has stated that she was residing separately from Brijesh Kumar and his wife and she had got no connection with them. She used to reside at the ground floor of the house and Brijesh Kumar and his wife used to reside in the upper portion of the house. 13. 12. Accused-appellant Smt. Bala has stated that she was residing separately from Brijesh Kumar and his wife and she had got no connection with them. She used to reside at the ground floor of the house and Brijesh Kumar and his wife used to reside in the upper portion of the house. 13. The defence got examined J. Framjay s/o L. D.P. Framjay to the effect that on 6th August, 1997-the date of the incident this witness was working as Section Officer of the Office and on that day accused-appellant Lakhi Ramwas on duty from 10.00 a.m. to 4.00 p.m. as senior peon and Lakhi Ram used to go to Ghaziabad for attending on his duty. 14. The trial court after hearing arguments pros and cons and after appraisal of the facts and evaluation of the testimony on record delivered aforesaid judgment of conviction, whereby sentenced each of the appellants as aforesaid. 15. Consequently, this appeal. 16. Sri. Sri Yogesh Srivastava, learned counsel for the appellants has contended that ingredients of Section 304B IPC are not attractable in this case. The complaint is highly belated and there is no reasonable explanation for such delay. The present surviving appellants are Brijesh Kumar (husband) and Smt. Bala (step mother-in-law of the deceased) and there is nothing positive, which may show that they raised any demand of dowry. The essential element of cruelty as envisaged in Section 304B IPC is missing altogether, except for some vague allegations, there is nothing concrete, which may justify cruelty being perpetrated on the victim by the appellants. Appellant no.2 Smt. Bala has specific case of separate living and both the victim-Babita and the appellant no.2 Smt. Bala had no connection with each other at the time of the occurrence. The fact is that the victim out of frustration and due to illness being annoyed by repeated fits committed suicide. The prosecution/complainant has failed to establish the charges and the court below based its judgment on conjecture and surmises erroneously recorded finding of conviction and passed sentence which is not sustainable in the eyes of law. 17. Learned A.G.A.s in reply submitted that in this case it is noticeable there is no F.I.R. lodged but the proceeding was initiated by moving application under Section 156(3) Cr.P.C. Which ultimately was converted into complaint, which in fact was done after refusal of the police to register and investigate the case. 17. Learned A.G.A.s in reply submitted that in this case it is noticeable there is no F.I.R. lodged but the proceeding was initiated by moving application under Section 156(3) Cr.P.C. Which ultimately was converted into complaint, which in fact was done after refusal of the police to register and investigate the case. The complainant being placed in helpless position had no choice, but to come out with complaint and the process of complaint took its own time and fructified into sessions trial thus taking time which aspect is itself explanatory of the delay occasioned in lodging the complaint against the appellants. There is no worthy proof that the appellant no.2 Smt. Bala was residing separately and had got no nexus with the deceased at the time of the occurrence on 6.8.1997. All the ingredients of Section 304B IPC are proved to the hilt. Admittedly, the postmortem examination report, Exhibit Ka3, is itself indicative of fact that the death is due to asphyxia as a result of ante-mortem hanging. Fact of cruelty has been specifically testified by the prosecution witnesses particularly by P.W.1 Karmveer. 18. On the basis of the rival submission and considering the attendant facts and circumstances of the case, the point for adjudication of this appeal is whether the complainant/prosecution has been able to prove the charges under Section 498A, 304B IPC and under Section 4 Dowry Prohibition Act beyond all reasonable doubt against the accused-appellants? 19. Obviously, it is a case, wherein the proceeding was initiated against the appellants by moving application under Section 156(3) Cr.P.C., which was converted into complaint and a Miscellaneous Complaint Case was registered by the concerned Magistrate, who after completing the formalities and after recording the statement of the complainant-Karmveer-and his witnesses committed the proceeding/case to the court of Sessions as the case was to be tried exclusively by the court of Session. The trial was conducted by the concerned court of Additional Sessions Judge/Fast Track Court No.2. 20. As per the prosecution case, testimony of four witnesses has been recorded out of whom three are the witnesses of fact, whereas the fourth witness is P.W.4 Dr. The trial was conducted by the concerned court of Additional Sessions Judge/Fast Track Court No.2. 20. As per the prosecution case, testimony of four witnesses has been recorded out of whom three are the witnesses of fact, whereas the fourth witness is P.W.4 Dr. A.K. Gupta, who conducted the postmortem examination, therefore, on factual aspect the testimony of witnesses of fact is quite relevant in so far as the allegations in the complaint are concerned, the complainant-Karmveergot his daughter married to the appellant no.1 Brijesh Kumar on 16.2.1997 according to Hindu Rites and Custom and gave sufficient gifts along with cash Rs.21,000/and articles; and 'vidai' ceremony was performed, the daughter of the complainant went with her husband at his village-Arthala within police station Sahibabad. Subsequently to the marriage, specific demand of dowry was raised for Rs.20,000/cash and one scooter and after seven days of the marriage when the complainant visited 'sasural' of his daughter, his daughter told that she had been maltreated with cruelty by her in-laws. The complainant kept on reconciling the matter with the in-laws of the deceased, but to no avail. 21. On 6.8.1997 information of death of his daughter was telephonically received by him that his daughter has been killed by her husband-Brijesh Kumar, father-in-law Lakhi Ram and mother-in-law Smt. Bala. The complainant went to the house of the in-laws of his daughter at village-Arthala where he found his daughter lying dead. He tried to lodge the report of the incident, but the concerned police of police station-Sahibabad suggested that the report shall be lodged after obtaining post mortem examination report. On 21.8.1997 the complainant also gave an application to the Senior Superintendent of Police, Ghaziabad for lodging the report, but no report was lodged, ultimately, an application under Section 156(3) Cr.P.C. was moved, which led to the trial of the aforesaid accused. 22. In the wake of aforesaid factual position and the contents of the complaint and the attendant facts and circumstances of this case, the testimony has come-forth to the effect on the point of marriage of deceased with appellant no.1 Brijesh Kumar that it took place on 16.2.1997, wherein the complainant incurred as marriage expenses Rs.70,000/and he gave articles to his daughter, but accused Brijesh Kumar, Lakhi and Smt. Bala were not satisfied with the same. They demanded one scooter and Rs.20,000/, as dowry. 23. They demanded one scooter and Rs.20,000/, as dowry. 23. After the marriage, when the complainant visited house of in-laws of his daughter, when she told about the aforesaid dowry demand and the consequent torture/maltreatment given to her by her in-laws on account of non-fulfilment of dowry demand. Later on, the complainant being accompanied with one Satpal, Tansen, Hari Singh went to the house of in-laws of Babita and expressed his inability to meet the aforesaid demand and took his daughter with him on 7.5.1997. Thereafter on 7.5.1997 accused Brijesh Kumar came to his house and told him that engagement of his sister Sarika is to take place, therefore, he should send back Babita with him. At this stage also, the complainant told Brijesh Kumar that he is demanding dowry and torturing his daughter, whereupon, Brijesh Kumar apologized and promised that he will not do the same, and after two days, Brijesh Kumar took with him Babita back to his home. After that in the month of July, 1997 the complainant went to take back home his daughter when Brijesh Kumar said to him that he will send his daughter to her parental home in the forthcoming festival of Rakshabandhan, thereafter on 6.8.1997, the complainant was informed telephonically about the death of his daughter by some unknown person. The complaint has been proved by P.W.1 Karmveer as Exhibit Ka1 and affidavit filed in support of the complaint has been proved as Exhibit Ka-2. 24. In the cross-examination of P.W.1 Karmveer, as appearing on page nos.1516 of the paper book, it has emerged that accused Brijesh Kumar was living in the upper portion of the house and he was not given any money by his father-Lakhi Ram. Whatever commodity or articles and edible items were required for use to the daughter of the informant-Babita-were usually given by the informant-Karmveer-to Brijesh Kumar. It is also evident from the testimony of P.W.1 Karmveer that Brijesh Kuamar was engaged in doing knitting work; it means, Brijesh Kumar was himself earning money and his livelihood and there is nothing on record, which may show that Lakhi Ram used to maintain his son Brijesh Kumar; further that Brijesh Kumar was not residing in the upper portion of the house with his wife Babita-the deceased. The aforesaid fact situation testified by P.W.1 Karmveer virtually establishes a case of separate living of Lakhiram and his third wife Smt. Bala-with accused Brijesh s/o Lakhi Ram and deceased Babita. 25. Further, accused Smt. Bala is the step-mother of Brijesh Kumar and she did not like Brijesh Kumar, then this attitude of disliking Brijesh Kumar can be conveniently construed to be a factor for accused Smt. Bala not to reside with Brijesh Kumar. Therefore, contention raised on behalf of the appellant-Smt. Bala by her learned counsel that Smt. Bala was residing separately from Brijesh Kumar and she being step-mother was not interested in Brijesh Kumar, under facts and circumstances of this case is a fact to be taken to be true as such and that aspect is very much reflected in the testimony of P.W.1 Karmveer-the complainant. Therefore, the above contention of separate living as mooted by the learned counsel for the appellant (Smt. Bala) is sustained and it is held that the accused Smt. Bala was residing separately from the deceased after the marriage and she had no active role to play in the commission of the offence, therefore, the case of accused Smt. Bala is quite distinguishable and does not fall within the ambit of Section 304B, 498A IPC and Section 4 of the Dowry Prohibition Act for causing dowry death and perpetrating cruelty on the deceased-Babita as such. Case of Smt. Bala stands on different footing. She being step-mother, she is entitled to benefit of doubt, which particular aspect has escaped attention of the lower court and on the point of separate living of accused-appellants-Smt. Bala and Lakhi Ram, the court below failed to appreciate properly testimony of P.W.1 Karmveer qua the attendant facts and circumstances of this case. 26. She being step-mother, she is entitled to benefit of doubt, which particular aspect has escaped attention of the lower court and on the point of separate living of accused-appellants-Smt. Bala and Lakhi Ram, the court below failed to appreciate properly testimony of P.W.1 Karmveer qua the attendant facts and circumstances of this case. 26. Above discussion takes to the conclusion that the prosecution has not been able to prove its case beyond all reasonable doubt against the appellant (no.2) Smt. Bala for reasons aforesaid and the trial court committed gross error in recording conviction against her (Smt. Bala), therefore, the finding of conviction being erroneous and perverse on the face, cannot be sustained in the eye of law, as such the finding of conviction recorded by the trial court vide its order dated 10.01.2017 passed by Additional Sessions Judge/Fast Track Court No.2, Ghaziabad in Sessions Trial No.951 of 2005, under Sections 498A, 304B and 4 Dowry Prohibition Act, police station-Sahibabad, district Ghaziabad, arising out of Complaint Case No.243 of 1998 and renumbered as 1758 of 2004 in so far as it relates to appellant no.2 Smt. Bala is hereby set aside, consequently this appeal to the extent of case of appellant Smt. Bala (appellant no.2) is allowed and she is exonerated of all charges. 27. Accordingly, this appeal is allowed in so far as it relates to accused-appellant Smt. Bala. 28. In this case the appellant no.2 Smt. Bala is in jail. She be set free forthwith, if she is not wanted in connection with any other case after complying with the provisions of Section 437A Cr.P.C. 29. Now, in so far as appellant no.1 Brijesh Kumar is concerned, then obviously he being the husband and he was residing with the deceased-Babita at the time of the occurrence and the death in question is unnatural one due to ante-mortem hanging. The doctor witness P.W.4 Dr. A.P. Gupta has proved the postmortem examination report, Exhibit Ka3, he has also expressed his opinion that the death was caused because of the asphyxia due to ante-mortem hanging. He has also opined in his examination-in-chief on page no.36 of the paper-book that the ante-mortem injury no.2 might have been caused by danda/stick. However, he has further opined in his cross-examination that ante-mortem injury no.2 might have been caused by erosion as well. He has also opined in his examination-in-chief on page no.36 of the paper-book that the ante-mortem injury no.2 might have been caused by danda/stick. However, he has further opined in his cross-examination that ante-mortem injury no.2 might have been caused by erosion as well. He has also expressed opinion to the magnitude that in such type of cases, the cause of death shall always be asphyxia, therefore, the death in question is undoubtedly unnatural. Ante-mortem injury no.2 has been elaborated as contusion of size 4cm x 2 cm over lower part of chin just over ligature mark. 30. The marriage of deceased Babita with Brijesh Kumar took place in the month of February, 1997, whereas the death occurred in the month of August, 1997. Therefore, the death in question took place within seven years of the marriage. It has also been stated by the prosecution witnesses that dowry demand was raised and the fact of dowry being demanded and cruelty perpetrated has also been testified by the prosecution witnesses; particularly by P.W.1 Karmveer. Accused Brijesh Kumar lastly refused to send the deceased with P.W.1 Karmveer and said to him that he will himself send Babita to her parental home on the forthcoming festival of Rakshabandhan, but prior to that proposed 'sending off' the incident occurred on 6.8.1997. Cause of death is evidently asphyxia due to ante-mortem hanging. It is no denying fact that the deceased was residing with the appellant-Brijesh Kumar in his room over the upper portion of the house of Lakhi Ram (The father-in-law of the deceased). 31. As per the mandate contained in Section 113-B of the Indian Evidence Act, 1872, now the burden of proof to dispel the aforesaid factual as well as legal aspect is upon the husband i.e.-to say-Brijesh Kumar. However, Brijesh Kumar has not come out specifically with any particular case, except submitting in his statement under Section 313 Cr.P.C., that Babita was suffering from some fits/stroke and on the day of the occurrence, he had gone away for duty, and on returning back home, he found her dead. Thereafter, he lodged the report at the police station and called his in-laws when they demanded Rs.40,000/- and the articles given to Babita at the time of marriage; then Karmveer had been returned the articles and Rs.40,000/. 32. On the basis of above, both the parties settled the case and funeral was performed. Thereafter, he lodged the report at the police station and called his in-laws when they demanded Rs.40,000/- and the articles given to Babita at the time of marriage; then Karmveer had been returned the articles and Rs.40,000/. 32. On the basis of above, both the parties settled the case and funeral was performed. However, this piece of testimony remained not proved i.e. to say it was neither proved nor disproved. The result would be that it is merely a statement. 33. Further, this statement also does not gather any force from any cogent piece of evident or the attendant facts and circumstances of this case. Brijesh Kumar being husband is required to positively dispel the presumption created by virtue of aforesaid section 113-B of the Indian Evidence Act, which he has failed to do on his part. Consequently, finding of conviction recorded against him (Brijesh Kumar) by the trial court is on the face found to be based on material on record after appreciation and evaluation of the evidence, which needs no interference. Consequently, the sentence awarded to appellant no.1 Brijesh Kumar is also justified under the prevailing facts and circumstances of this case and finding recorded by the trial court in relation thereto are hereby affirmed. 34. Resultantly, the appeal of Brijesh Kumar lacks force and the same is hereby dismissed. 35. Accused appellant Brijesh Kumar is in jail. He will serve out his remaining part of the sentence. 36. Accordingly, the instant appeal is allowed partly in aforesaid terms. 37. Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.