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2022 DIGILAW 161 (UTT)

State of Uttarakhand v. Rajendra Singh Yadav

2022-06-24

R.C.KHULBE, S.K.MISHRA

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JUDGMENT : Ramesh Chandra Khulbe, J. The present appeal has been filed by the State Government against the judgment and order dated 07.06.2002 passed by the learned Additional Sessions Judge, Udham Singh Nagar in S.T. No. 399 of 2001, whereby the accused was not found guilty and, accordingly, acquitted under Sections 304B IPC and Section 3/4 of the Dowry Prohibition Act. 2. The factual matrix of the case is that, the informant – Sunil Kumar Yadav S/o Jairam Singh Yadav, resident of Shanti Nagar, Bilaspur, District Rampur submitted an application at Chowki Majhola under Police Station Khatima, District Udham Singh Nagar on 31.07.2001 stating therein that the marriage of her younger sister Mamta was solemnized with Rajendra Singh Yadav on 19.06.1998, as per Hindu rites and rituals and had given dowry as per his capacity. Husband of his sister Rajendra Singh immediately after marriage started demanding Rs.50,000/-. The sister of the informant told about this several time to the informant. The informant and his family members convinced Rajendra Singh Yadav several times. Brother-in-law of the informant is working as Teacher in Primary School, Bhiliya (Jamour), District Udham Singh Nagar. On 30.07.2001, in the night, at about 10.00 P.M an unknown person informed, over phone, the informant that Rajendra Singh has burnt his sister Mamta by pouring Kerosene oil on her. On this, the informant and his family reached at Jamour on 31.07.2001, in the morning, at 7:00 A.M. and saw that her dead body was lying in burnt condition. Brother-in-law of the informant was not there at the spot. It is alleged that Mamta was burnt and murdered by her husband in greediness of dowry. On the basis of the above information, Ex.Ka-1, Chick FIR Ex.Ka-13 was registered at the Police Chowki. 3. The initial investigation of case was carried out by investigating Officer C.O, Rudrapur, PW6 Smt. Vimla Gunjyal. She inspected the spot of incidence, prepared site map marked as Ex.Ka-5A and statement of witnesses was recorded. Ex.Ka-14 is the carbon copy of G.D., Ex.Ka-2 panchnama, Ex.Ka-3 Postmortem Report, Ex.Ka-4 medical examination report regarding the burnt marks found on the body of deceased Mamta, Ex.Ka-5 Report of Doctor to Police Station regarding admission of deceased in hospital, Ex.Ka-6 letter of Tehsildar addressed to I.O regarding conducting post-mortem, Ex.Ka-7 letter of Tehsildar, Khatima addressed to CMO regarding carrying out postmortem of dead body of deceased. Ex.Ka-8 sketch of dead body, Ex.Ka-9 sample of stamp, Ex.Ka-10 letter regarding sending the clothes of deceased dead body after postmortem and Ex.Ka-11 is Report of collection sample of mud from the place of incidence. Thereafter, the investigation was handed over to PW7 D.S. Kunwar, who recorded the statements of the witnesses. After completion of investigation, charge sheet (Ex.Ka-6) was submitted under Section 304B IPC and Section 3/4 of the Dowry Prohibition Act. 4. After compliance of Section 207 of the Cr.P.C., the concerned Magistrate committed the case to the Court of Sessions for trial. Accordingly, the concerned Court took the cognizance. Thereafter, the concerned Court framed the charges against the respondent for the offences punishable under Section 304B IPC and under Section 3/4 of the Dowry Prohibition Act but he pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution examined PW1 Sunil Yadav- informant, PW2 Bhuri Devi, mother of the victim, PW3 Sanjiv Kumar, PW4 Dr. Vimal Kumar Srivastava, ENT Surgeon, PW5 Dr. Prakash Chander Pandey, PW6 Smt. Vimla Gunjyal, CO, Rudrapur, who is the first I.O. of the case, PW7 D.S. Kunwar, DSP, Khatima, the Investigating Officer and PW8 Krishna Singh, Tehsildar, who prepared panchnama. 6. PW1 Sunil Yadav is the informant and stated that the marriage of his sister Mamta was solemnized on 19.06.1998 with accused Rajendra Singh. After the marriage, the accused kept his sister along with him for a year. Thereafter, accused demanded motorcycle or Rs.50,000/- in cash. He used to beat the deceased. Before one month of the incident Rs.30,000/- in cash was given to the accused and an assurance was given for payment of the balance amount of Rs.20,000/- after Raksha Bandhan festival. 7. On 30.07.2001, at about 10:00 P.M, some unknown person informed over phone that his sister Mamta has been burnt by pouring kerosene oil. On this information, he along with his mother, sister and his neighbour reached village Jamour, Khatima. On 31.07.2001, at 7:30 A.M, they saw the dead body of deceased in a burnt condition lying on the ground. Whereas, accused Rajendra was not present at the spot. Accordingly, information was given to the police. 8. PW2 Bhuri Devi, who is the mother of the deceased, has stated that marriage of the deceased Mamta was solemnized on 19.06.1998 with the accused Rajendra. Accused-respondent is a teacher in a primary school. Whereas, accused Rajendra was not present at the spot. Accordingly, information was given to the police. 8. PW2 Bhuri Devi, who is the mother of the deceased, has stated that marriage of the deceased Mamta was solemnized on 19.06.1998 with the accused Rajendra. Accused-respondent is a teacher in a primary school. At the time of marriage, fridge, colour T.V, sofa, bed, jewellery, utensils etc. were given. The accused-respondent demanded motorcycle at the time of marriage and an assurance was given to the accused for fulfilling his demand. After marriage, the deceased made a complaint to her that the accused-respondent used to beat her and was demanding a motorcycle or Rs.50,000/- in cash. She received a phone call from the deceased twenty days before her death and she was asking for money. She called her daughter and son-in-law and gave Rs.30,000/- and promised that the balance of Rs.20,000/- would be given on Raksha Bandhan festival. On 30.07.2001, someone informed through phone that accused-respondent Rajendra had burnt my daughter alive by pouring kerosene oil on her. Her elder son, husband, and relatives went to the matrimonial house of the deceased. 9. PW3 Sanjiv Kumar is the witness of panchnama. PW4 Dr. Vimal Kumar Srivastava stated that on 31.07.2001 he was posted as Medical Officer at District Hospital Pilibhit. On that day, he conducted autopsy of deceased Smt. Mamta. He prepared the post-mortem report, which is Ex.Ka-3. 10. PW5 Dr. Prakash Chander Pandey stated that on 30.07.2001 he was posted as Medical Officer at CHC Khatima. On that day, in the evening at 7:50 P.M. he conducted medical examination of Smt. Mamta. She was brought by her husband. There was no identification marks on her body as it was a case of 90% burnt injuries. He treated the patient, took the advice of the surgeon and informed the police. In his opinion, the cause of death is due to burn injury by coming in contact with kerosene oil. He proved the medical examination report (Ex.Ka-4). 11. PW6 Smt. Vimla Gunjyal, Circle Officer, Rudrapur stated that on 31.07.2001 the investigation was handed over to her. She recorded the statement of informant and prepared the site map. 12. PW7 D.S. Kunwar, Deputy Superintendent of Police, Khatima stated that he received the investigation on 02.08.2001 and recorded the statement of witnesses. Accordingly, after completion of the investigation, submitted the charge sheet (Ex.Ka-6). 13. She recorded the statement of informant and prepared the site map. 12. PW7 D.S. Kunwar, Deputy Superintendent of Police, Khatima stated that he received the investigation on 02.08.2001 and recorded the statement of witnesses. Accordingly, after completion of the investigation, submitted the charge sheet (Ex.Ka-6). 13. PW8 Krishna Singh stated that on 31.07.2001 he was posted as Tehsildar, Khatima. On getting information regarding murder of Smt. Mamta, he went at Jamour and prepared panchnama, which is Ex.Ka-2. 14. After completion of the prosecution evidence, statement of the accused-respondent under Section 313 of Cr.P.C. was recorded, in which he denied all the evidences produced by the prosecution. In defence, the accused produced DW1 Udaybhan Yadav. 15. After hearing learned counsel for the parties, the trial court came to this conclusion that there is no evidence against the accused-respondent and, accordingly, he was acquitted of the charges under Section 304B IPC and under Section 3/4 of the Dowry Prohibition Act. Feeling aggrieved by it, the State has preferred the present appeal. 16. We have heard learned Deputy Advocate General for the State and learned Senior Counsel for the accused person at length and perused the entire material on record. 17. It is argued by learned counsel for the State that the marriage of the victim and the accused-respondent was solemnized in the year 1998. The victim died on 30.07.2001 otherwise than in the normal circumstances within seven years of her marriage. The respondent-husband used to demand dowry from the deceased (wife) and commit marpeet with her soon before her death. The brother and mother have given sufficient evidence against the respondent. There is sufficient evidence to convict the respondent u/s 304B IPC. The trial court did not appreciate the evidence properly and the appeal is liable to be allowed. 18. Per contra, learned counsel for the respondent submitted that there is no sufficient evidence in the matter to convict the accused-respondent and the trial Court has rightly acquitted the accused-respondent. 19. Having heard the learned counsel for the parties, it would be proper to discuss the charges levelled against the accused persons separately on the basis of evidence adduced by the prosecution. 20. 19. Having heard the learned counsel for the parties, it would be proper to discuss the charges levelled against the accused persons separately on the basis of evidence adduced by the prosecution. 20. First of all, for scrutinizing the case of the prosecution and the evidences led by the accused-respondent, we may extract below the relevant provision of Section 304B IPC that relates to “dowry death”: - “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 subsection, “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.” 21. As can be seen from the aforesaid provision, for convicting the accused for an offence punishable under Section 304B IPC, the following pre-requisites must be met: (i) that the death of a woman must have been caused by burns or bodily injury or occurred otherwise than under normal circumstance; (ii) that such a death must have occurred within a period of seven years of her marriage; (iii) that the woman must have been subjected to cruelty or harassment at the hands of her husband, soon before her death; and (iv) that such a cruelty or harassment must have been for or related to any demand for dowry. 22. 22. Section 113B of the Indian Evidence Act, 1872, the same refers to a presumption relating to a dowry death and is phrased as below:- “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 has 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).” 23. The explanation appended to Section 304B IPC states that the word “dowry” shall have the same meaning as provided in Section 2 of the Dowry Prohibition Act, 1961 which reads as follows: “2. Definition of ‘dowry’ - In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly – (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal law (Shariat) applies.” 24. The main ingredients of the offence, which is required to be established to attract the provision of Section 304B IPC is that ‘soon before her death’ the victim was subjected to cruelty or harassment for or in connection with demand of dowry. 25. Once the prosecution has established to demonstrate that a woman has been subjected to cruelty or harassment for or in connection with demand of dowry ‘soon before her death’ the Court shall proceed on presumption that the person who has subjected her to cruelty in connection with demand of dowry has caused dowry death within the meaning of Section 304B IPC read with Section 113B of the Indian Evidence Act. 26. 26. Now, the question is whether the prosecution has established elementary ingredients of dowry death to attract the presumption mentioned in Section 113B of the Indian Evidence Act with respect to the cause of death. 27. PW4 Dr. Vimal Kumar Srivastava and PW5 Dr. Prakash Chander Pandey found the smell of kerosene oil on the body of the deceased who had suffered 90% burn injuries. Therefore, in the present case, the deceased - victim succumbed to the burn injuries. As the death was relatable to burn injuries within seven years of marriage it clearly satisfies the first two ingredients of the offence. 28. Coming to the issue of demand of dowry, in the FIR, Sunil Yadav, brother of the deceased, has clearly stated that the respondent-accused had started demand of dowry of Rs.50,000/- from the deceased-wife and in his statement before the Court, he clearly stated that on demand of dowry, Rs.30,000/- in cash were given to the respondent-accused before Raksha Bandhan and an assurance was given to the accused for payment of remaining amount after Raksha Bandhan festival. He also stated that the accused used to commit marpeet with the victim after the marriage. 29. PW2 Bhuri Devi, who is mother of the deceased, also corroborated the statement of PW1 and fairly stated that the accused used to demand dowry from the deceased. This fact was narrated by the deceased to her and, accordingly, Rs.30,000/- in cash was given to the respondent-accused. She also clearly stated that when the deceased reached at her parental house she disclosed that the accused-respondent used to commit marpeet with her on account of demand of dowry. 30. The FIR clearly indicates that the accused-respondent used to demand dowry. PW1 Sunil Yadav is the brother of deceased while PW2 Bhuri Devi is the mother. From the perusal of the evidence of both the witnesses, it is clear that they categorically stated that the accused- respondent used to commit marpeet with deceased and used to demand Rs.50,000/- as dowry. They also stated that on demand of dowry, Rs.30,000/- in cash were given to the respondent-accused before Raksha Bandhan and an assurance was given to the accused for payment of remaining amount after Raksha Bandhan festival. It is argued by the learned Senior Counsel Mr. They also stated that on demand of dowry, Rs.30,000/- in cash were given to the respondent-accused before Raksha Bandhan and an assurance was given to the accused for payment of remaining amount after Raksha Bandhan festival. It is argued by the learned Senior Counsel Mr. Arvind Vashishtha that there is no evidence that the deceased was put to any torture or ill-treatment for demand of dowry soon before the occurrence. It is apparent from the definition of “dowry death” that the expression “soon before” has not been defined anywhere. It always depends on the facts of the particular case. It is further seen from the evidence of P.W.2 – Bhuri Devi that her daughter called her prior to 20 days before her death and asked her to bring money. This was in relation to the earlier demand of Rs.50,000/-. She has further stated that she called her daughter (deceased) and son-in-law (respondent) and gave Rs.30,000/- to the accused and the deceased with the promise that the rest of the money will be given after Raksha Bandhan. Few days before Raksha Bandhan, the deceased died due to burn injuries. It has been held by the learned Additional Sessions Judge that the fact that if the appellant could wait till so many days then what is the reason for him to commit the murder 4-5 days before Raksha Bandhan. 31. We are of the opinion that such surmises or presumptions are not proper and should not have been resorted to by the Trial Judge in a case of such a serious nature. We are of the opinion that the fact that 20 days prior to the death, the deceased called her mother and asked her to bring money is sufficiently indicative of the fact that she was put to torture for the demand of dowry, which led her to call her mother. Therefore, we are of the firm opinion that the appreciation of evidence by the learned Additional Sessions Judge is not only unreasonable, but is also perverse requiring our interference. 32. As per statement of PW4 Dr. Vimal Kumar Srivastava and PW5 Dr. Prakash Chander Pandey, the cause of death of the deceased is due to burn injuries. 33. As per the statement of DW1 Udaybhan Yadav, on the fateful day, the respondent was very much present at the house. 34. 32. As per statement of PW4 Dr. Vimal Kumar Srivastava and PW5 Dr. Prakash Chander Pandey, the cause of death of the deceased is due to burn injuries. 33. As per the statement of DW1 Udaybhan Yadav, on the fateful day, the respondent was very much present at the house. 34. It is an admitted fact that the incident occurred on 30.07.2001 while marriage of the respondent with the deceased was solemnized on 19.06.1998, which shows that the victim died within seven years of her marriage. 35. The trial Court did not assess the evidence properly and acquitted the respondent, simply, on the basis of the conjectures and surmises that the respondent had taken the deceased to the hospital for treatment and there is no dying declaration on record. 36. From the perusal of the evidence, it is clear that when the deceased was rushed to the hospital she was 90% in burn condition and before few days of her death she disclosed to her mother and brother that she was subjected to cruelty and harassment by the respondent-husband for the demand of dowry. 37. From the reassessment of the entire evidence, we came to this conclusion that the prosecution has successfully proved its case beyond the reasonable doubt against the respondent-accused and that there is clinching evidence brought on record to inculpate respondent- Rajendra Singh (husband of the deceased). The circumstances put together, unerringly point to his guilt in extinguishing the life of his wife within three years and two month of the marriage on her failing to satisfy the demands of dowry. The FIR was lodged promptly after the death of victim. 38. From the above analysis, it is clear that the prosecution was able to successfully prove that the death of the deceased due to burn injuries took place within approximately three years and two months of her marriage. It has further been proved that soon before her death she was subjected to harassment and cruelty pursuant to demand of dowry. Since the ingredients of Section 304B IPC stand satisfied, the presumption under Section 113B, Evidence Act operates against the accused-respondent, who is deemed to have caused the offence specified under Section 304B IPC. 39. It has further been proved that soon before her death she was subjected to harassment and cruelty pursuant to demand of dowry. Since the ingredients of Section 304B IPC stand satisfied, the presumption under Section 113B, Evidence Act operates against the accused-respondent, who is deemed to have caused the offence specified under Section 304B IPC. 39. From the reassessment of the entire evidence produced by the prosecution, the following facts are proved:- a) The marriage of deceased - Mamta was solemnized with the respondent (Rajendra Singh Yadav) on 19.06.1998 as per Hindu rites and rituals. b) The victim died otherwise than in normal circumstances on 30.07.2001 due to burn injuries. c) The death occurred within seven years of her marriage. d) The deceased was subjected to cruelty and harassment at the hands of her husband (respondent) soon before her death. e) The respondent has caused cruelty and harassment towards his wife - Mamta for the demand of dowry. f) The deceased called her mother 20 days prior to her death and asked her to bring the money, and that P.W.2 - Bhuri Devi called her daughter (deceased) and son-in-law (respondent) and gave Rs.30,000/- with the promise that the rest of the money will be given after Raksha Bandhan. g) As per the medical evidence, victim - Mamta died due to 90% burn injuries. 40. In view of the above discussion, the present Government Appeal is liable to be allowed and the same is allowed. 41. Accordingly, the impugned judgment and order dated 07.06.2002 passed by the learned Additional Sessions Judge/ Fast Track Court, Udham Singh Nagar in S.T.No.399 of 2001, under Section 304B IPC and Section 3/4 of the Dowry Prohibition Act is hereby quashed and set aside. 42. Consequently, the respondent-Rajendra Singh Yadav @ Rajendra Kumar is hereby convicted under Section 304B IPC and 3/4 of the Dowry Prohibition Act and is, accordingly, sentenced to undergo seven years’ rigorous imprisonment along with a fine of Rs.20,000/- under Section 304B IPC, in default of payment of fine, he shall further undergo six months’ rigorous imprisonment and to undergo one year’s rigorous imprisonment along with a fine of Rs.5,000/- under Section 4 of the Dowry Prohibition Act, in default of payment of fine, he shall serve two months’ additional imprisonment. Both the sentences shall run concurrently. 43. Both the sentences shall run concurrently. 43. The accused-respondent is directed to surrender before the concerned Court below to serve out the sentences as awarded by the Court. 44. Let a copy of this judgment and order along with the LCR be transmitted to the Court concerned for compliance.