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2022 DIGILAW 10 (UTT)

Chiranji Pal v. State of Uttaranchal

2022-01-05

RAVINDRA MAITHANI

body2022
JUDGMENT : Ravindra Maithani, J. Present appeal is preferred against the judgment and order dated 28.01.2004/29.01.2004, recorded in Sessions Trial No. 338/2001 and 366/2001, State Vs. Chiranji Pal and four others, by the court of Additional Sessions Judge/FTC Kashipur, District Udham Singh Nagar. By the impugned judgment and order, the appellant has been convicted under Section 304B and 498A IPC and Section 4 of the Dowry Prohibition Act, 1961 (for short, “the Act”) and sentenced as hereunder:- (i) Under Section 304B IPC, rigorous imprisonment for a period of seven years and a fine of Rs.500/-. In default of payment of fine to undergo further imprisonment for a period of six months. (ii) Under Section 498A IPC, rigorous imprisonment for a period of two years with a fine of Rs.200/-. In default of payment of fine to undergo further imprisonment for a period of three months. (iii) Under Section 4 of the Act, rigorous imprisonment for a period of six months and with the fine of Rs.250/-. In default of payment of fine to undergo further imprisonment for a period of two months. In fact, there is a typographical error in the impugned order, a paragraph above the order opens the mind of the Court, as to under what offences the appellant is to be convicted. But, in the first paragraph of the order, Section 498-A IPC as such has not been typed. But, it does not make any difference. Reading the judgment, makes it clear, as to under what offences the appellant has been convicted. 2. Briefly stated, the prosecution is as follows: The deceased, Radha, a girl of 18 years, was married to the appellant on 01.04.2001. Soon after the marriage, additional dowry was demanded. The PW1 Ved Prakash father of the deceased gave Rs. 13,000/- to the appellant, as additional dowry. On 03.07.2001, PW1 Ved Prakash, father of the deceased came to know that his daughter has been killed by the appellant and his family members. On 04.07.2001, PW1 Ved Prakash, the father of the deceased came to know that Radha died due to burn injuries. PW1 Ved Prakash, the father of the victim lodged a report of the incident on 04.07.2001, based on which, Case Crime No. 671/2001, under Section 498-A and 304B IPC and Section 3/4 of the Act was lodged against the appellant and other family members at Police Station Kashipur. 3. PW1 Ved Prakash, the father of the victim lodged a report of the incident on 04.07.2001, based on which, Case Crime No. 671/2001, under Section 498-A and 304B IPC and Section 3/4 of the Act was lodged against the appellant and other family members at Police Station Kashipur. 3. On 04.07.2001, an inquest of the deceased was prepared and post mortem conducted. According to the post mortem report, the death was caused by shock and coma due to ante mortem burn injuries. The Investigating Officer (“IO”) also visited the place of occurrence. He prepared the site plan and took into custody various articles which includes a kerosene iron stove, burnt pieces of mattress, a plastic zericane without kerosene, a piece of burnt bed sheet and a half burnt ladies kurta. He also took into custody, a wedding invitation of the deceased. On 13.11.2001, the appellant and other accused were charged for the offences under Sections 498-A and 304B IPC and Section 3/4 of the Act, to which, they denied and claimed trial. 4. The prosecution, in order to prove the case, examined as many as eight witnesses, namely, PW1 Ved Prakash, PW2 Chetan Singh, PW3 Ganga Ram, PW4 Smt. Shakuntala Devi, PW5 Ramakant Prasad, PW6 Dr. D.C. Dhyani, PW7 Hansa Datt Pandey, and PW8 Prakash Chandra. In his defence, the appellant produced two defence witnesses, namely, DW1 Maqsood Ahmad and DW2 Pooran Singh. 5. After prosecution evidence, the appellant and other co-accused were examined under section 313 of the Code of Criminal Procedure, 1973 (for short, “the Code”). According to the appellant, he has been falsely implicated and the witnesses have falsely deposed against him. The appellant has stated that his wife Radha died due to accident. While cooking meals, she caught fire. The appellant tried to save her and in this process, his hands were also burnt. 6. The Court, after hearing the parties, by the impugned judgment and order, acquitted all the other accused but convicted and sentenced the appellant, as stated hereinbefore. Aggrieved by it, the appellant preferred the instant appeal. 7. Learned senior counsel for the appellant would submit that, in the instant case, the prosecution has utterly failed to prove the charges against the appellant. The appellant ought to have been acquitted of the charges, but the court below has committed an error in convicting and sentencing the appellant. Aggrieved by it, the appellant preferred the instant appeal. 7. Learned senior counsel for the appellant would submit that, in the instant case, the prosecution has utterly failed to prove the charges against the appellant. The appellant ought to have been acquitted of the charges, but the court below has committed an error in convicting and sentencing the appellant. Therefore, the appeal deserves to be allowed. 8. Learned senior counsel also raised the following points in his submission:- (i) The prosecution has utterly failed to prove that soon before the death of the deceased any demand of dowry was made by the appellant. (ii) The prosecution has utterly failed to prove that any cruelty was committed to the deceased for or in connection with the demand of dowry. (iii) PW1 Ved Prakash, the informant himself has not supported the prosecution case. In his cross-examination, he denied the allegations. (iv) According to the FIR, PW1 Ved Prakash took loan of Rs.6000/- from PW3 Ganga Ram and Rs.7000/- from PW2 Chetan Singh and paid this amount as additional dowry to the appellant. But, PW2 Chetan Singh and PW3 Ganga Ram have not supported the prosecution case. (v) There is no evidence that the appellant set the deceased ablaze. (vi) The conduct of the appellant is a determining factor. He has stated as to how the deceased caught fire. He tried to save the deceased Radha, who was his wife. In this process, he also got burn injuries. He took the deceased to the hospital. It was an accidental fire. (vii) There are material contradictions in the statement of PW1 Ved Prakash, the informant, who is father of the deceased and PW4 Smt. Shakuntala Devi, the mother of the deceased with regard to demand the dowry. On the one hand, according to the FIR and the statement of PW1 Ved Prakash as recorded in his examination in chief, the demand was made after marriage, whereas, PW4 Shakuntala Devi has stated that the demand was made at the time of marriage itself. (viii) PW4 Smt. Shakuntala Devi has stated that the deceased and the appellant would visit her house frequently at the interval of eight days. But, there is no evidence that the deceased ever complained of the demand of dowry either to PW4 Smt. Shakuntala Devi or to any other person. (viii) PW4 Smt. Shakuntala Devi has stated that the deceased and the appellant would visit her house frequently at the interval of eight days. But, there is no evidence that the deceased ever complained of the demand of dowry either to PW4 Smt. Shakuntala Devi or to any other person. (ix) There are also contradictions in the statements of PW1 Ved Prakash and PW4 Smt. Shakuntala Devi. On the one hand, according to PW1 Ved Prakash, stated that he has cremated the deceased. On the other hand, PW4, Smt. Shakuntala Devi stated that the cremation was done by the in-laws. (x) It is not categorically established by the prosecution as to how the deceased died. Was it accidental fire or she died due to stove burst? But, it is argued that if there are two views possible, in criminal cases, the view which supports the accused should be adopted. 9. On the other hand, learned State counsel would submit that in the instant case, the prosecution has been able to prove the case beyond reasonable doubt. Within three months of the marriage, the deceased died other than natural circumstances. PW1 Ved Prakash, in his examination-in-chief has supported the prosecution case. In his cross examination by the defence, he denied the prosecution case. But, it is argued that again, when the prosecution cross examined this witness, he has reiterated the version of his examination-in-chief and the FIR, which he lodged. Therefore, it is argued that the evidence of PW1 Ved Prakash may not be discarded merely on the basis of the fact that in his cross examination, at one stage, he denied the prosecution case. The learned State counsel also raised the following points in his submission. (i) PW4 Smt. Shakuntala Devi is totally reliable witness. She is mother of the deceased. She has stated about the demand of dowry and the cruelty that was meted out to the deceased and it alone establishes the prosecution case. (ii) PW5 Ramakant Prasad is the IO, who prepared the site plan on 04.07.2001 itself, which he has proved. It shows that the stove was intact. It was lying at the door. It was not burst. It has no sign that it has any damage. It supports the prosecution case and denies the suggestion given by the defence that the injury was caused due to the stove burst. It shows that the stove was intact. It was lying at the door. It was not burst. It has no sign that it has any damage. It supports the prosecution case and denies the suggestion given by the defence that the injury was caused due to the stove burst. (iii) In the instant case, the prosecution is able to prove all the ingredients of Section 304B IPC. Therefore, in this case, presumption under Section 113B of the Indian Evidence Act, 1872 (for short, “the Evidence Act”) are attracted to presume that this is the appellant, who caused death of the deceased. 10. PW1, Ved Prakash is the informant, who is father of the deceased. He lodged the FIR. He has proved it in his examination in chief. According to him, the deceased Radha and the appellant were married on 01.04.2001, but soon after the marriage, the appellant and his family members started demanding additional dowry. They demanded scooter, coloured TV, golden chain, and Rs.25,000/- cash. This witness sought time to give all these things. According to this witness, due to this demand, the deceased was harassed and tortured by the appellant and his family members. This witness would state that, in fact, he took Rs. 6000/- from PW3 Ganga Ram and Rs.7000/- from PW2 Chetan Singh and gave Rs.13,000/- to the appellant and sought further time to pay the remaining amount. This witness received information from the appellant himself in the midnight of 03.07.2001, that the deceased had stomach ache. When this witness reached Kashipur on 04.07.2001, he came to know that, in fact, the deceased died due to burn injuries. This witness has proved the FIR, Ex.A1 and also stated that, in fact, the wedding invitation was given by him to the police of which, a memo Ex. A2 was also recorded. 11. PW2 Chetan Singh and PW3 Ganga Ram are those two persons, from whom, according to the FIR, PW1 Ved Prakash had taken money. But, both PW2 Chetan Singh and PW3 Ganga Ram have not supported the prosecution case. 12. PW4 Smt. Shakuntala Devi is the mother of the deceased. She has corroborated the statement of the PW1 Ved Prakash, as stated by him in his examination in chief. According to PW4 Smt. Shakuntala Devi, in fact, soon after the marriage, demand of dowry was made. 12. PW4 Smt. Shakuntala Devi is the mother of the deceased. She has corroborated the statement of the PW1 Ved Prakash, as stated by him in his examination in chief. According to PW4 Smt. Shakuntala Devi, in fact, soon after the marriage, demand of dowry was made. Once the deceased along with the appellant had visited her house, the deceased had then requested this witness that additional dowry may be given to the appellant, otherwise, they would kill her. According to this witness, the deceased was crying when requesting for additional dowry. 13. PW5 Ramakant Prasad is the IO, who prepared the site plan Ex.A3, took into custody various articles from the place of occurrence and prepared recovery memo Ex.A4. After investigation, this witness has submitted the charge sheet. 14. PW6 Dr. D.C. Dhyani conducted post mortem of the deceased. He proved the post mortem report. According to him, the deceased had 80% burn injury. There was no other injury on her person. The cause of the death, according to this witness, was due to ante mortem burn injuries. 15. PW7 Hansa Dutt Pandey had prepared the inquest of the deceased. He proved it and other documents. 16. PW8 Constable, Prakash Chandra has written the chik FIR and made entries of the offence in the general diary of the police station. 17. In the instant case, the appellant had also produced two witnesses in his defence, DW1 Maqsood Ahmad and DW2 Pooran Singh. DW1 Maqsood Ahmad has stated that the family of the appellant was living separately. The appellant never demanded any dowry from the deceased or her family members and never harassed the deceased for this reason. According to this witness, on the date of incident, in the night, they heard noise and when they visited the house of the appellant, they found that a stove was burst there. Due to which, the deceased caught fire. The appellant was trying to save the deceased and in that process, his hands also got burn injuries. 18. DW2 Pooran Singh has also supported the statement of DW1 Maqsood Ahmad in his examination in chief. 19. This is the most unfortunate incident. A young girl of 18 years died just within three months of her marriage, other than, under normal circumstances. 18. DW2 Pooran Singh has also supported the statement of DW1 Maqsood Ahmad in his examination in chief. 19. This is the most unfortunate incident. A young girl of 18 years died just within three months of her marriage, other than, under normal circumstances. The appellant is charged with the offence that he demanded dowry and for that purpose subjected the deceased to cruelty and finally the deceased died. 20. In order to bring home the guilty under Section 304B IPC, what is required to be proved is as follows:- (i) The death is caused by burn or bodily injury or otherwise than under normal circumstances. (ii) Such death occurred within seven years of marriage. (iii) Soon before her death, the woman was subjected to cruelty or harassment. (iv) Such harassment was done for or in connection with any demand of dowry. 21. The expressions “soon before death” is not any specified time in the statute. It may vary as per the circumstances of each case. In the case of Udai Chakraborty and others Vs. State of West Bengal, (2010) 7 SCC 518 , the death occurred within two years of the marriage. Under such circumstances the Hon’ble Supreme Court observed as hereunder:- “15. The offence under Sections 304-B read with 498-A IPC is made out in this case and has been proved by the prosecution beyond any reasonable doubt. The period of two years in a marriage itself is a very short period. In fact, the deceased had died in less than two years of marriage. The expression “soon before her death” has to be given its due meaning as the legislature has not specified any time which would be the period prior to death, that would attract the provisions of Section 304-B IPC. The concept of reasonable time would be applicable, which would primarily depend upon the facts of a given case, the conduct of the parties and the impact of cruelty and harassment inflicted upon the deceased in relation to demand of dowry to the cause of unnatural death of the deceased. In our considered view, the marriage itself has not survived even for a period of two years, the entire period would be a relevant factor in determining such an issue. 22. In our considered view, the marriage itself has not survived even for a period of two years, the entire period would be a relevant factor in determining such an issue. 22. The rule of appreciation of the Evidence does not require that the evidence of a person, who has been permitted to be cross examined by the party, who called such witness, may be totally discarded. If the statement of a witness may be separated from what is reliable and what is not reliable, the reliable portion of the witness may be taken into consideration. The principle of falsus in uno, falsus in omnibus does not apply to the appreciation of evidence. Merely because PW1 Ved Prakash has at one stage not supported the prosecution case in his cross examination by the defence, does not mean that his evidence may totally be discarded. It has to be weighed. 23. It is a criminal trial. The standard of proof that requires for convicting an accused is beyond reasonable doubt. What is “proved” and how it is to be proved is also to be determined as per the Indian Evidence Act, 1872 (for short, “the Evidence Act”). “Proved” is defined under Section 3 of the Evidence Act, as hereunder:- “Proved”.––A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists” 24. In fact, apart from the specific presumptions, Section 114 of the Evidence Act also permits the court to presume certain facts. In fact, Section 114 of the Evidence Act assist the court, to determine, as to whether, the fact has been proved or not. This Section 114 of the Evidence is as hereunder:- “114. Court may presume existence of certain facts. –– The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume-............................................ .................................................................................. .................................................................................. .................................................................................” 25. In the instance case, reference has been made to Section 113B of the Evidence Act, which provides for the presumption as to the dowry death, it reads as hereunder:- “113B. Illustrations The Court may presume-............................................ .................................................................................. .................................................................................. .................................................................................” 25. In the instance case, reference has been made to Section 113B of the Evidence Act, which provides for the presumption as to the dowry death, it reads as hereunder:- “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 had 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. These are some of the principles, which should be kept in view, while appreciating the evidence, in order to appreciate the evidence in this case and to examine the impugned judgment and order. 27. According to the FIR, after marriage itself, the demand of dowry was made. This is what PW1 Ved Prakash has stated. PW4 Smt. Shakuntala Devi has not stated anything, which may be considered contradicting to the statement given by PW1 Ved Prakash or inconsistent with what is stated in the FIR. What PW4 Smt. Shakuntala Devi has stated is that “vidai ke baad” the demand was made. Although, she has stated that somehow they could manage “vidai”. The FIR and the statement of PW1 Ved Prakash reveal that after marriage, demand was made. PW4 Shakuntala Devi says somehow they could manage vidai and after vidai, the demand was made. The line is blurred but quite distinct. The Demand was made after marriage not before the marriage. This is what PW4 Shakuntala Devi has stated. It is not inconsistent. Whatever contradictions have been tried to be highlighted on behalf of the defence, are, in fact, natural variation in the statements of a truthful witnesses. 28. The statement of PW1 Ved Prakash has to be considered in a different context as well. This witness was examined firstly on 23.07.2002, but the prosecution did not cross examine this witness on that date, on the ground that the senior lawyer was not at the station. The date was adjourned for 31.07.2002. When cross examined by the defence, this witness initially did not support the prosecution case. But, the prosecution did not stop here. This witness was examined firstly on 23.07.2002, but the prosecution did not cross examine this witness on that date, on the ground that the senior lawyer was not at the station. The date was adjourned for 31.07.2002. When cross examined by the defence, this witness initially did not support the prosecution case. But, the prosecution did not stop here. The prosecution further sought permission to cross examine this witness PW1 Ved Prakash. In the beginning, sentence of the cross examination by the prosecution PW1 Ved Prakash would submit that on 23.07.2002, he did not give any evidence in the court. This statement is pulpably false. It appears that he was under some pressure not to speak truth on that date, when he was cross examined firstly by the defence on 31.07.2002. But, when he was confronted with regard to his signatures made on the statement recorded on 23.07.2002, he could not deny it and thereafter he reiterated what he had stated in his examination-in-chief on 23.07.2002. He also further proved the FIR lodged by him. The statement of PW1 Ved Prakash is to be read in the totality, under the circumstances that his cross examination was not conducted on the date, when his examination in chief was recorded. This Court is of the view that the statement of PW1 Ved Prakash is not such an evidence, which may be discarded in totality. In fact, PW1, Ved Prakash has supported the prosecution case in his examination in chief and further in his cross examination by the prosecution. In between, this Court has no doubt that, perhaps, he was won-over by the defence. Therefore, at certain stage, he did not support the prosecution case. 29. In addition to the statement of PW1 Ved Prakash, PW4 Smt. Shakuntala Devi’s statement is inspiring a lot of confidence. She was categorical in her statement that after marriage, demand of dowry was made. In paragraph two of her statement recorded on 11.11.2001, PW4 Smt. Shakuntala Devi would told that after marriage, the deceased along with the appellant visited her house, the deceased, while crying, requested that additional dowry be given to the appellant or else she would be killed. 30. On behalf of the defence, an argument has been raised that if the deceased had visited her father’s house at a regular interval of eight days, why no complaint was made? 30. On behalf of the defence, an argument has been raised that if the deceased had visited her father’s house at a regular interval of eight days, why no complaint was made? This argument has no legs to stand on. In the second paragraph of her examination, PW4 Smt. Shakuntala Devi has categorically stated that the deceased had told it to her that demand of dowry is being made from her. It should be given or else she would be killed. And this, according to PW4 Smt. Shakuntala Devi, was stated to her by the deceased, while crying, which speaks in volume. 31. Period of three months may, in fact, be in continuity for demand of dowry. PW1 Ved Prakash and PW4 Smt. Shakuntala Devi have categorically stated that after marriage, demand of dowry was made. Both these witnesses have stated that, in fact, some money was given to the appellant. It is true that PW2 Chetan Singh and PW3 Ganga Ram did not support the case, but it does not doubt the prosecution case in any manner. The demand of dowry or harassment, according to the witnesses PW1 Ved Prakash and PW4 Smt. Shakuntala Devi, has definitely been made soon before the death of the deceased. 32. It is true that there is no direct evidence that the appellant set fire on the deceased. It is also true that the appellant also sustained certain burn injuries. Although, in the impugned judgment, there has been an observation that there is no evidence of any injury having been sustained by the appellant, in the process of saving the deceased. But, in the original record, there is a remand sheet of 04.07.2001 by which the appellant and the other co-accused were remanded to judicial custody. In the last sentence of this remand order, the concerned Magistrate has recorded that there were burn injuries at various parts of the body of the appellant Chiranji Pal. Undoubtedly, he sustained some injuries. 33. According to PW1 Ved Prakash himself, it is the appellant, who had telephoned him about the sickness of the deceased on 03.07.2001. Although, there is no categorical finding as to who took the deceased to the hospital, there is no such evidence. But, the fact remains that PW1 Ved Prakash or PW4 Smt. Shakuntala Devi did not take the deceased to the hospital. Although, there is no categorical finding as to who took the deceased to the hospital, there is no such evidence. But, the fact remains that PW1 Ved Prakash or PW4 Smt. Shakuntala Devi did not take the deceased to the hospital. They reached the hospital, where they found the deceased dead. It implies and the Court can presume it that the appellant and his family members took the deceased to the hospital. But, merely because the appellant has some burn injuries or he took the deceased to hospital, he may not be absolved of the criminal liability that may be fastened to him based on the facts proved by the prosecution. 34. In fact, it is the appellant, who is the best person to tell as to what happened in the night of 03.07.2001. In his examination under Section 313 of the Code, he simply says that the deceased caught fire, while she was cooking the meals. How did she catch fire? 35. PW5, Ramakant Prasad is the Investigating Officer. He visited the place of occurrence on 04.07.2001 itself. The stove was at the door. Does it mean that the deceased was cooking meals at the door? It is not only the kerosene stove. But, an empty kerosene zericane was also found. Why was it there? More importantly, if the deceased caught fire while cooking meals, how did she reach to the bed? The bed was burnt, the mattress was burnt, the bed sheet was burnt. Is it a case of accidental fire or was the deceased killed, while asleep on the bed? It could have been explained by the appellant himself, if he was in the same room. 36. Reference has been made to the statements of PW1 Ved Prakash and PW4 Smt. Shakuntala Devi with regard to cremation of the deceased. In fact, there is no contradictions in the statement of PW1 Ved Prakash & PW4 Smt. Shakuntala Devi on this aspect. PW1 Ved Prakash has stated that he conducted last rites of the deceased. PW4 Smt. Shakuntala Devi has told that her husband was present at the time of cremation. She was not present at cremation. 37. Perhaps, keeping in view, such deaths other than under normal circumstances, that the legislature had enacted the provision of law as contained under Section 304 B IPC with the presumption under Section 113B of the Evidence Act. PW4 Smt. Shakuntala Devi has told that her husband was present at the time of cremation. She was not present at cremation. 37. Perhaps, keeping in view, such deaths other than under normal circumstances, that the legislature had enacted the provision of law as contained under Section 304 B IPC with the presumption under Section 113B of the Evidence Act. The death is other than under normal circumstances. The deceased was harassed and tortured for the demand of dowry. She died just within three months of her marriage. Such demand of additional dowry and cruelty or harassment was done to her soon before her death. The explanation with regard to the cause of death as given by the appellant is false. Therefore, this Court is of the view that the prosecution has been, in fact, able to prove the charges beyond reasonable doubt against the appellant. The court below did not commit any error in convicting and sentencing the appellant. Accordingly the appeal deserves to be dismissed. 38. The appeal is dismissed. 39. The appellant is on bail. His bonds cancelled and sureties discharged of their liabilities. Let the appellant be taken into custody to serve out the remaining sentence. 40. A copy of this judgment along with Lower Court Record be transmitted to the Court below for compliance.