Research › Search › Judgment

Allahabad High Court · body

2021 DIGILAW 140 (ALL)

Tarun v. State of U. P.

2021-01-25

GAUTAM CHOWDHARY, K.J.THAKER

body2021
JUDGMENT : 1. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record. 2. The present criminal appeal has been filed against the judgement and order dated 20.08.2014 passed by Additional Sessions Judge, Court No.1 Bulandshahr in Sessions Trial No. 106 of 2012, "State of U.P. Vs. Tarun and others", arising out of Case Crime No. 807 of 2011, under section 304-B & 498-A of IPC and section 4 of the Dowry Prohibition Act, 1961, Police Station Kotwali Nagar, District Bulandshahr, whereby the appellant has been convicted and sentenced under Section 304-B IPC with rigorous imprisonment of life, under section 498-A IPC with simple imprisonment of 3 years and a fine of Rs. 10,000/-, in default of payment of fine to further undergo 3 month imprisonment and under section 4 of the Dowry Prohibition Act, 1961 one year imprisonment and a fine of Rs. 5,000/- in default of payment of fine to further undergo 3 month imprisonment. 3. The brief facts which led to the litigation and whereby the State had to start investigation are that the marriage of deceased Seema, daughter of Ram Sewak Paliwal resident of Futa Kuwan Wali Gali, Devi Pura-II, Bulandshahr was solemnized with Tarun Paliwal on 25.06.2011. In this marriage nearly about 8 lakhs was incurred but the family members of Tarun Paliwal were not satisfied and they were harassing the deceased time to time. Family members and appellant were demanding 2 lakhs more as dowry but father of the deceased Seema was not in a position to fulfill the same. On 15.10.2011 deceased Seema informed her mother on telephone that the demand has not been fulfilled. On 16.10.2011 a unknown person informed on telephone that his daughter has been done to death and they should reach at Bulandshahr, on reaching there they saw that his daughter was lying dead and there were many injuries on her body. 4. The trial was to be conducted by the court of Sessions as it was Sessions triable case, hence the case was committed to the court of sessions. 5. The court of sessions framed charges against accused who pleaded not guilty. 6. The prosecution examined the following witnesses : 1. Ram Sewak P.W.1 2. Smt. Krishna Paliwal P.W.2 3. Sandeep Paliwal P.W.3 4. Vijay Paliwal P.W.4 5. Indraveer Singh P.W.5 6. Dr. Naresh Viz P.W.6 7. Bhan Singh P.W.7 8. 5. The court of sessions framed charges against accused who pleaded not guilty. 6. The prosecution examined the following witnesses : 1. Ram Sewak P.W.1 2. Smt. Krishna Paliwal P.W.2 3. Sandeep Paliwal P.W.3 4. Vijay Paliwal P.W.4 5. Indraveer Singh P.W.5 6. Dr. Naresh Viz P.W.6 7. Bhan Singh P.W.7 8. Satish Chandra P.W. 8 7. In order to substantiate the oral testimony of the witnesses and their medical evidence, documentary evidence were also produced which are as follows : 1. Written report Ext. Ka-1 2. F.I.R. Ext. Ka-3 3. Recovery & Superdi of ornaments Ext. Ka-10 4. Recovery memo of Plastic rope) Ext. Ka-11 5. P.M. Report Ext. Ka-5 6. Panchayatname Ext. Ka-2 7. Chargesheet (Mool) Ext. Ka-13 8. Challan Lash Ext. Ka-8 8. The prosecution placed reliance on the following documentary evidence so as to bring home the charges levelled against the accused. 9. The accused was examined under section 313 Cr.P.C. also for evidences being led an over and the submissions of the counsels were heard. 10. Learned counsel for the appellant has submitted that on the evidence which has led the accused can not be said to have committed any office which would fall within the preview of section section 304-B read with section 498-A IPC. It is further submitted that the presumption that the death occurred within seven years of marriage is rebutable preposition if no allegation of any dowry was there. In the case on hand it is that the suicide note can not be the sole basis of conviction of the accused, yet on the basis of conclusion that the deceased was subjected to death. In the alternative he has submitted that if this court comes to the conclusion that the accused is guilty of section 304-B, he has submitted that the punishment imposed by the court that of life imprisonment is not warranted and the accused who is in jail be likewise convicted 11. In the alternative he has submitted that if this court comes to the conclusion that the accused is guilty of section 304-B, he has submitted that the punishment imposed by the court that of life imprisonment is not warranted and the accused who is in jail be likewise convicted 11. learned counsel for the appellant has contended that even if this court is not with him on the argument which he has advanced so as to contend that this was not dowry death, it is submitted that even if this court relied on the suicide note and comes to the conclusion that the death was within the period of seven years of the marriage, the punishment imposed by the court for life imprisonment is not warranted on the facts of the case. The suicidal note is not a conclusive evidence according to the learned counsel for the appellant. Learned counsel for the appellant has relied on the following decisions. (1) 1994 0 Supreme (SC) 1014, Hem Chand Vs. State of Haryana decided on 6.10.1994; (2) 2010 0 Supreme (SC) 136, G.V. Siddaramesh Vs. State of Karnataka decided on 5.02.2010 in Criminal Appeal No. 160 of 2006; (3) 2014 0 Supreme (SC) 73, Hari Om Vs. State of Haryana & another decided on 31.10.2014 in Criminal Appeal No. 1167 of 2011; (4) Criminal Appeal No. 4701 of 2013, Raju @ Rajeev Vs. State of U.P. decided on 25.01.2019 in Criminal Appeal No. 4701 of 2013 and (5) Criminal Appeal No. 5047 of 2019, Vivek Vs. State of U.P. decided on 23.09.1019 in Criminal Appeal No. 5047 of 2019. 12. As far as 498-A of I.P. Code and the conviction under section 4 of dowry prohibition Act against the accused is concerned, it is submitted that he has already completed the period of incarceration of three years and one year respectively. Learned counsel is not aware that the fine has been deposited or not yet, as accused is in jail. As against this the learned A.G.A. contends that all the witnesses and evidence on record would justify the fact that the accused was the person who had hastened the death of the deceased. All the evidence proves that the deceased was done to death or she has committed suicide. As against this the learned A.G.A. contends that all the witnesses and evidence on record would justify the fact that the accused was the person who had hastened the death of the deceased. All the evidence proves that the deceased was done to death or she has committed suicide. Death has occurred according to learned counsel for the State and he contends that even if this Court comes to the conclusion that it was not a murder but she had committed suicide it was just within five months of the marriage. The consistent version of all the prosecution witnesses go to show that there was a prolonged demand of two lakhs from the side of accused and his family members. It is further submitted by learned counsel for the State that it is not a case where judgements relied by the counsel for appellant would be applicable. 13. Learned counsel for the State even opposes the alternative prayer of Sri Apul Mishra appearing for the appellant, in view of the gruesomeness and time during which a young lady has met with her fate it is submitted that even if this court comes to the conclusion that it was suicide then also no leniency or sympathy should be shown to such a person. Several judgements and the findings of learned Judge who has convicted the accused are relied. Section 304(B) of IPC reads as follows:- 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. 14. 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. 14. The totality of the evidence of all the witnesses who are independent witnesses as well as the family members of the deceased and the evidence of the police personnel and the documentary evidence conclusively prove that the death occurred, it was a suicide death she was harassed and now it is an admitted position which is emerged on the record and we are concur with the learned Sessions Judge who has proved has convicted the accused and has disbelieved the theory that the deceased was at depression due to she being post graduate whereas the accused-husband was not even cleared his 12th standard examination. The evidence of the witnesses can not be burst aside prayed that the minor discrepancy which has been pointed out by the accused. The documentary evidence by which it can be said that the dying declaration was searched after he was released on bail. All these may leave to one conclusion that deceased had died during seven years of her marriage. The suicide note at 82 is rood that view of the matter in view of decision Kansraj Vs. State of Punjab, 2020 Cr.L.J. 2993 and Satyaver Singh and another Vs. State of Punjab, 2001 (43) ACC 1083 are judgements which have made with the learned Judge. The Apex Court in State of Rajasthan Vs. S. Bahadur and another, 2005 SCC (Crl.) 228 has been relied by the learned Judge. We do not find any reason to defer with the same. The FIR and the evidence of P.W. 1, 2 and 3 point out to one fact that the deceased was wedded to the appellant. The evidence of P.W. 4 also goes to show that there were ligature marks and panchayatnama was also prepared. All these facts go to show that it was a suicide and the demand was immediately before she committed or took her life. The witnesses who have testified against the accused cannot be said to be such witnesses whose testimony has taken, they were put to cross examination also. We concur with the learned trial judge. 15. All these facts go to show that it was a suicide and the demand was immediately before she committed or took her life. The witnesses who have testified against the accused cannot be said to be such witnesses whose testimony has taken, they were put to cross examination also. We concur with the learned trial judge. 15. What was the cause of death was mentioned in the suicidal note that she was being belittled time and again, despite she not being at any fault and that led to her leaving for the heavenly abode. We are not going into the cause of death as that fact is appreciated by the learned trial Judge, we concur with the learned trial Judge and we are unable to accept the submissions of Sri Apul Mishra that it is not a case of conviction. 16. The nexus to the quantum of punishment the most unfortunate part is that the deceased died out during the short span of her marriage. The learned counsel for the appellant has relied on the decision of G.V. Siddharamesh (Supra) and has requested this Court that while confirming conviction this court may sentence him for 10 years. The said decision would apply to the facts of this case. Further relied on Hari Om (Supra) will also permit us to vary the sentence and reduce the same to ten years. A recent decision of our High Court in Criminal Appeal No. 4701 of 2013 dated 11.04.2019 in the case of Raju @ Rajiv Vs. State of U.P. will also permit us to reduce the sentence and the judgement of Lordship Justice Pritinkar Diwakar in the case of Raju @ Rajiv will permit us to reduce the sentence for the following reasons. (i) The death was not so gruesome that the accused be sentenced till his last breath though the period during which the deceased had given up her life was during a short span of her marriage. (ii) In the suicidal note which has been sought to be proved by examining D.W. 2 has not been converted by prosecution even before the trial Judge which also raise with us in lessening with period of incarceration of the accused. 17. The sentence of imprisonment is substituted by ten years of imprisonment with remissions allowable. (ii) In the suicidal note which has been sought to be proved by examining D.W. 2 has not been converted by prosecution even before the trial Judge which also raise with us in lessening with period of incarceration of the accused. 17. The sentence of imprisonment is substituted by ten years of imprisonment with remissions allowable. As far as 498-A I.P.C. is concerned the period of incarceration is already over, he shall deposit fine of Rs. 10,000/- failing which the default sentence would stand to run from date of incarceration is over and as far as Dowry prohibition case is concerned, the period of one year is already over, he shall deposit Rs. 5,000/- failing which the default sentence would run from the date of incarceration. 18. The appeal is partly allowed. The record of this case be sent back to the trial court. 19. We are thankful to the counsels for assisting this court.