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Uttarakhand High Court · body

2019 DIGILAW 211 (UTT)

State of Uttarakhand v. Rajendra Singh Yadav

2019-03-15

ALOK SINGH

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JUDGMENT : ALOK SINGH, J. 1. Present Government Appeal has been filed by the State/appellant against the judgment and order dated 07.06.2002 passed by Additional Sessions Judge/FTC, Udham Singh Nagar in Sessions Trial No.399/2001, whereby respondent-Rajendra Singh Yadav was acquitted from the charges levelled against him under Section 304-B IPC and Section 3/4 of the Dowry Prohibition Act. 2. Heard Mr. Atul Kumar Sah, A.G.A. with Mr. Sachin Panwar, Brief Holder for the State/appellant and Mr. G. S. Negi, Advocate for the respondent/accused and also perused the lower court’s record carefully. 3. In the present case, accused-respondent is alleged to have committed the offences punishable under Section 304-B IPC and Section, 3/4 D.P. Act. According to the postmortem report, the victim died due to shock on account of ante-mortem burn injuries. The death of victim was, therefore, caused by burns. The following elements of ‘dowry-death’ were proved:- (i) Victim’s marriage was solemnized with accused-respondent on 19.06.1998. (ii) Victim died otherwise than in normal circumstances on 30/31.07.2001 and the death of victim occurred within 7 years of her marriage. (iii) The death of victim was caused by burns. Her death occurred otherwise than under normal circumstances. 4. In a nutshell, it was proved that the death of victim was caused by burns, which occurred otherwise than in normal circumstances within 7 years of her marriage. 5. Now, the next question which arises for consideration is - whether it is shown that soon before her death, the victim was subjected to cruelty or harassment by her husband in connection with any demand for dowry? If the prosecution is successful in showing the same, then according to the scheme of Section 304-B IPC, such death should be called ‘dowry death’ and respondent-accused, in the instant case, shall be deemed to have caused her death. 6. The essential components of Section 304B of IPC are: (i) Death of a woman occurrs otherwise than under normal circumstances within seven years of marriage, (ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. 7. When the above ingredients are fulfilled, the husband (respondent herein), who subjected her to such cruelty or harassment, shall be presumed to be guilty of offence under Section 304B of IPC. Section 113B of the Indian Evidence Act, 1872, comes to the aid of prosecution. 7. When the above ingredients are fulfilled, the husband (respondent herein), who subjected her to such cruelty or harassment, shall be presumed to be guilty of offence under Section 304B of IPC. Section 113B of the Indian Evidence Act, 1872, comes to the aid of prosecution. It provides for 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 had 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’. 8. Burden to prove innocence is more on the accused under Section 113B than under Section 113A, which places a far lighter burden on the accused. In Section 113B of the Evidence Act, which is relatable to Section 304B of IPC, the Court ‘shall presume’. The presumption shall be raised only on proof of the following essentials:- (i) The question before the court must be whether the accused has committed the dowry death of a woman. (ii) The woman was subjected to cruelty or harassment by her husband or his relatives. (iii) Such cruelty or harassment was for, or in connection with, any demand for dowry. (iv) Such cruelty or harassment was soon before her death. 9. In dowry death cases and in most of such offences direct evidence is hardly available and such cases are usually proved by circumstantial evidence. This section as well as Section 113B of the Evidence Act enact a rule of presumption, i.e., if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply. 10. To recapitulate, the marriage was solemnized between the victim and the accused-respondent on 19.06.1998. The victim died on 30/31.07.2001 otherwise than in normal circumstances within 7 years of her marriage. What is the evidence available against her husband (respondent herein) with regard to the fact that ‘soon before her death’ she was subjected to cruelty by her husband in connection with demand for dowry? 11. The victim died on 30/31.07.2001 otherwise than in normal circumstances within 7 years of her marriage. What is the evidence available against her husband (respondent herein) with regard to the fact that ‘soon before her death’ she was subjected to cruelty by her husband in connection with demand for dowry? 11. It was alleged in the FIR that after the marriage, the accused was demanding a sum of Rs.50,000/- from the parents of the victim. PW1 Sunil Yadav, who is the brother of victim, has specifically stated in his examination-in-chief that after the marriage, accused was demanding a motorcycle or cash of Rs.50,000/- as dowry; and accused used to beat the victim. PW2 Bhoori Devi, mother of the victim, has stated in her evidence that whenever her daughter (victim) came to her parental house, she said to her mother that a motorcycle or a cash of Rs.50,000/- be provided; and the victim also told her mother that accused beats her. PW2 further stated in her examination-in-chief that 20 days before the death of her daughter, a sum of Rs.30,000/- was given to accused and it was assured to him that rest of the amount would be paid to him. The testimony of PW1 & PW2 inspires confidence. Cruelty or harassment differs from case to case. It relates to mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. The evidence as discussed above clearly shows that victim was subjected to cruelty soon before her death. Besides this, the burden to prove innocence is more on the respondent-accused under Section 113-B of the Evidence Act. Nothing has been brought in their cross-examination, which might cast suspicion on the testimony of the aforesaid witnesses. 12. Thus, there is nothing in the cross-examination of PW1 and PW2 to indicate that they were telling a lie. Their evidence was based upon what the victim stated to them, when she was alive. They were the parents (i.e. brother & mother) of the victim and who could be the better persons other than them, who might state in their evidence as to what transpired in the mind of the victim. Victim could tell her mental agony only to her mother. They were the parents (i.e. brother & mother) of the victim and who could be the better persons other than them, who might state in their evidence as to what transpired in the mind of the victim. Victim could tell her mental agony only to her mother. Although, accused has a right to maintain silence, but he has a duty to speak when he is required to speak in law. A married girl remains confined within the four walls of her matrimonial home. Her husband is her guardian and protector. It is the husband, in whose house, the victim ordinarily lives. The same is the second home of the victim. When she was living with her husband, it was the duty of accused to speak as to why the victim died at their home otherwise than in normal circumstances. Accused-respondent has nowhere stated or gave any suggestion in his statement recorded under Section 313 Cr.P.C. that there were differences between him and the victim and, therefore, she committed suicide. In other words, accused did not give any suggestion to the effect that victim committed suicide in a foul mood or in a fit of anger. 13. It has come in the postmortem report that the victim sustained ante-mortem burn injuries; smell of kerosene oil was present; and the victim died because of shock on account of ante-mortem burns. 14. The victim survived her marital life for 3 years. It is, therefore, held that the victim was subjected to cruelty or harassment by her husband soon before her death in connection with the demand for dowry. Learned trial court has not appreciated the prosecution evidence correctly and has committed mistake in holding that the prosecution was not able to prove its case against the accused beyond a shadow of reasonable doubt. Interference is, thus, called for in the impugned judgment and order. 15. Government Appeal preferred by the State/appellant is, therefore, allowed. Respondent-Rajendra Singh Yadav is convicted under Section 304-B IPC & Section ¾ Dowry Prohibition Act and is hereby sentenced to undergo Seven years rigorous imprisonment under Section 304-B IPC and to undergo two years rigorous imprisonment along with a fine of Rs.2000/- under Section 3/4 of the Dowry Prohibition Act and in case of default in payment of fine, additional imprisonment for two months. Both the sentences shall run concurrently. 16. Both the sentences shall run concurrently. 16. The accused-respondent is directed to surrender before the Court concerned forthwith to serve out the sentence as awarded by this Court. 17. Registry is directed to send a copy of this judgment along with L.C.R. to the Court below for ensuring compliance of this order. In this regard, compliance report must be submitted before this Court within four weeks from today.