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2022 DIGILAW 1645 (ALL)

Shyam Babu v. State of U. P.

2022-10-12

ASHWANI KUMAR MISHRA, SHIV SHANKER PRASAD

body2022
JUDGMENT : Ashwani Kumar Mishra, J. 1. This Criminal Appeal arises out of judgment and order of conviction and sentence dated 27.04.2006, passed by the Additional Session Judge, Fast Track Court No.2, Fatehpur in Session Trial No. 72 of 2004 arising out of Case Crime No.161 of 2003, whereby accused appellant no.1 Shyam Babu, appellant no.2 Suresh @ Dhandhu and appellant no.3 Lalli @ Kalawati have been convicted and sentenced to life imprisonment under Section 304B IPC and have also been convicted and sentenced to three years imprisonment under Section 498A IPC with a fine of Rs.1,000/-and in default of fine they have to undergo one year additional imprisonment. They have also been convicted and sentenced to one year imprisonment under section 3/4 of Dowry Prohibition Act with a fine of Rs.2,000/-and in default of fine they have to undergo one year additional imprisonment. All the sentences are directed to run concurrently. 2. Prosecution case, in brief, is that deceased Rupa Devi got married to the accused appellant no.1 on 20.04.2003. On 28.08.2003 the first informant (PW-1), who happens to be the father of the deceased, received an information that the deceased has been killed by the accused appellants by hanging as he had failed to meet the dowry demand. The incident is of 28.08.2003 and a written report scribed by one Ashok Kumar was given on 29.08.2003 on the basis of which a First Information Report was registered as Case Crime No.161 of 2003 under Sections 498A, 304B IPC and 3/4 of Dowry Prohibition Act, Police Station Thariyaon, District Fatehpur. 3. After registering FIR the Investigating Officer came on spot and an inquest was conducted in the presence of inquest witnesses as also in the presence of Naib Tahsildar. The dead body of deceased was found in the house of accused appellant no.1. In the opinion of inquest witnesses the death of deceased was caused on account of hanging as also on account of injuries and, therefore, postmortem was required to be conducted to ascertain the cause of death. The dead body was accordingly sealed and sent to mortuary where the postmortem was conducted by Dr. Sanjay Gupta (PW-3). In the opinion of inquest witnesses the death of deceased was caused on account of hanging as also on account of injuries and, therefore, postmortem was required to be conducted to ascertain the cause of death. The dead body was accordingly sealed and sent to mortuary where the postmortem was conducted by Dr. Sanjay Gupta (PW-3). In the postmortem report following injuries have been found on the deceased and cause of death has been ascertained as asphyxia as a result of ante-mortem strangulation:- “(i) Ligature mark all around neck 30cm x 2cm, 7cm below, 5cm each on both side below ear. Groove base is pale margins ecchymosed hard lathery and parchment like. Nylon string with knot present all around the neck cut away from knot preserved sealed and sent to SP Fatehpur. On internal examination – Muscles of neck ruptured large muscle contused hyoid bone fractured present. (ii) Contusion on right side of scalp at temporal region size 6cm x 4cm underlying muscles contused, underlying facture parietal bone present. (iii) Abrasion on left side of abdomen in hypochondrium 9cm above umbilicus size 6cm x 3cm. (iv) Abrasion on back of left side of chest 5cm left to midline at T 10 level size 3x2cm. (v) Abrasion 5cm below knee joint size 3x2cm.” 4. Upon conclusion of statutory investigation under Chapter XII of the Criminal Procedure Code charge sheet (Ex.Ka.9) came to be submitted against the accused appellants by the Investigating Officer on 29.10.2003. Having taken cognizance of the charge sheet the Magistrate committed the case to the court of session where proceedings were registered as Session Trial No.72 of 2004. On 25.11.2004 the court concerned framed charges against the accused appellants under Sections 498A, 304B IPC and 3/4 of Dowry Prohibition Act. The accused appellants denied the charges levelled against them and demanded trial. 5. In order to bring home the charge the prosecution has adduced oral testimony of PW-1 and PW-2, who are the parents of deceased and are the two witnesses of fact. Oral testimony has also been adduced of Dr. Sanjay Gupta as PW-3 who conducted the postmortem. PW-4 Suresh Kumar was the Naib Tahsildar, who has verified the inquest whereas PW-5 Lal Bahadur Singh is the Investigating Officer. PW-6 Arvind Kumar Yadav is the Circle Officer, who has proved the charge sheet. Oral testimony has also been adduced of Dr. Sanjay Gupta as PW-3 who conducted the postmortem. PW-4 Suresh Kumar was the Naib Tahsildar, who has verified the inquest whereas PW-5 Lal Bahadur Singh is the Investigating Officer. PW-6 Arvind Kumar Yadav is the Circle Officer, who has proved the charge sheet. The prosecution has also adduced documentary evidence including written report as Ex.Ka.1, postmortem report as Ex.Ka.2, inquest report as Ex.Ka.3, charge sheet as Ex.Ka.9 and site plan with index as Ex.Ka.8. 6. The witness of fact namely PW-1 has stated that the marriage of deceased with the accused appellant no.1 was solemnized on 20.04.2003 in which dowry was settled as Rs.7000, 10gm gold, one buffalo and a cycle but he could only give Rs.7000 cash, utensils of Rs.4500 and clothes of Rs.3000 and due to his poor financial condition he could not give 10gm gold, one buffalo and cycle. It was deposed that due to not providing of such dowry articles the deceased was harassed by all the accused appellants and she was physically assaulted from time to time. Every time when the deceased used to visit her parents she was asked to get the remaining dowry. It was also stated that information with regard to unnatural death of deceased was given to PW-1 and PW-2 by one Ashok Kumar and when they came to the house of accused appellant no.1 they found the dead body on the floor and tied from two sides with a green colour rope. It was further stated that when PW1 came on spot the accused appellants were not there and written report was given next day after it was scribed by Ashok Kumar. In the cross-examination PW-1 has admitted that the dead body was found in the new house of accused appellant no.1, although it was alleged that all the accused appellants were living together in the same house. PW-1 has also admitted that prior to this incident he had not made any complaint with regard to demand of dowry or harassment meted out to deceased and that he only tried to counsel the family members not to harass his daughter. 7. PW-2 has also made similar disclosure in her statement. She has also denied the suggestion given to her during cross-examination that house of accused appellant no.1 is separate and distinct from the house occupied by accused appellant nos.2 and 3. 7. PW-2 has also made similar disclosure in her statement. She has also denied the suggestion given to her during cross-examination that house of accused appellant no.1 is separate and distinct from the house occupied by accused appellant nos.2 and 3. PW-2, however, has admitted that last rites of deceased were performed by the accused appellants. 8. PW-3 Dr. Sanjay Gupta, who conducted the postmortem, has clearly stated that the deceased died due to injuries noticed above. 9. PW-5, who is the Investigating Officer, in his cross-examination has noted availability of two houses with the accused appellants’ family one of which has been addressed as the house of accused appellant no.1 which is towards end of Abadi and the other referred to the house of appellant nos.2 and 3 within the Abadi. The statement of PW-5, in that regard, is extracted hereinafter:- ^^eqyfte ';keckcw dk edku xkao ds vkcknh ds fdukjs gS mlds edku ds iwoZ feys gq, [ksr gS ?kVuk ds le; /kku dh Qly [kM+h FkhA vfHk;qDr >Yyh o Jhefr yYyh dk edku tks vkcknh ds vanj gS mls Hkh ns[kk gSA ‘;ke ckcw ds edku ds nf{k.k dh [ksr gS ftues ?kVuk ds le; /kku dh Qly [kMh FkhA^^ 10. The incriminating material surfaced during the course of trial against the accused appellants was confronted to them under section 313 Cr.P.C. and the accused appellants have stated that the deceased and accused appellant no.1 were residing in the new house constructed towards the end of Abadi while accused appellant nos.2 and 3 were residing in the old house existing in midst of Abadi. The allegation with regard to demand of dowry or strangulating the deceased have been specifically denied. The postmortem report has been questioned by the accused appellants and it has been stated that the report itself is manipulated. 11. On the basis of evidence brought before the court below in the form of oral testimony and documentary evidence the trial court has come to the conclusion that the deceased was subjected to demand of dowry and her death has occurred within seven years from the date of marriage. It has also been held that the deceased was strangulated and, therefore, her death has occurred in unnatural circumstances and necessary ingredients to attract offence under section 304B IPC are clearly made out. It has also been held that the deceased was strangulated and, therefore, her death has occurred in unnatural circumstances and necessary ingredients to attract offence under section 304B IPC are clearly made out. The court below has also returned a finding that the deceased was subjected to demand of dowry and consequently appellants have also been convicted under section 498A IPC and 3/4 D.P. Act. 12. Learned counsel for the accused appellants submits that the appellants were arrested and sent to jail on 31.08.2003. The accused appellant no.1 has remained in jail ever since then and has been enlarged on bail by this Court vide order dated 08.09.2022 and, therefore, the actual period of incarceration of accused appellant no.1 is 19 years and with remission period of 4 year 3 months 7 days the incarceration would be more than 23 years. So far as the accused appellant nos.2 and 3 are concerned they have been enlarged on bail by this Court vide order dated 13.09.2006. 13. Learned counsel for the accused appellants further contends that the deceased had actually committed suicide and the finding returned by the court below that it was a case of strangulation is unsustainable. It is also argued that the accused appellant no.1 was living separately with the deceased in the new house while accused appellant nos.2 and 3 were residing in old house situated within the Abadi area and as the accused appellant nos.2 and 3 had a separate living they cannot be implicated and convicted for the offence under section 304B IPC. It is also contended that allegations of demand of dowry are vague and general in nature and there is no specific incident asserted by the prosecution in respect of such demand nor any complaint was ever made to the police with respect to alleged demand of dowry. Learned counsel further urges that the manner in which the body has been found with bangles in her hands as per inquest report clearly shows that she has not been tortured prior to her death and even the last rites were performed by the accused appellants. It is also submitted that punishment accorded to appellant no.1 is highly excessive. 14. Learned counsel further urges that the manner in which the body has been found with bangles in her hands as per inquest report clearly shows that she has not been tortured prior to her death and even the last rites were performed by the accused appellants. It is also submitted that punishment accorded to appellant no.1 is highly excessive. 14. Sri Arun Kumar Singh, learned A.G.A. for the State submits that the injuries found on the body of deceased together with the fact that the death occurred due to strangulation would clearly show that the offence was committed by more than one person. It is also submitted that the accused appellants have not adduced any defence evidence to show that the accused appellant nos.2 and 3 had a separate living and the positive evidence of PW-1 and PW-2 that accused appellant nos.2 and 3 were living together with deceased in the same house remains unrebutted. 15. We have heard learned counsel for the parties and perused the materials brought on record. 16. The facts as have been noticed above clearly reveal that the marriage of deceased with accused appellant no.1 was solemnized on 20.04.2003 and the incident leading to unnatural death occurred on 28.08.2003 which is nearly four months after the marriage. So far as the allegation with regard to demand of dowry is concerned PW-1 and PW-2 have clearly stated that at the time of marriage it was agreed that in addition to the dowry items given the informant had to give 10gm gold, one buffalo and cycle, which could not be given and the deceased was being consistently harassed for getting such dowry items. The statement of PW-1 and PW-2 in that regard is specific. Although it is admitted to PW-1 and PW-2 that no formal complaint in respect of demand of dowry was lodged by them, yet, their statement that they were attempting to persuade the family members not to harass the deceased by making them personal requests seems credible. It is otherwise natural that parents of bride would make all efforts to ensure peaceful living of their daughter and only if their efforts fail that a formal complaint would ordinarily be lodged. The gap in the period of marriage and death is only about four months and, therefore, non lodgement of any formal complaint would not mean that there existed no demand of dowry. The gap in the period of marriage and death is only about four months and, therefore, non lodgement of any formal complaint would not mean that there existed no demand of dowry. Except to deny such accusations under section 313 Cr.P.C. the appellants have not produced any evidence to rebut the allegations made by PW-1 and PW-2 with regard to demand of dowry. The finding of the court below that the deceased was subjected to demand of dowry immediately prior to her death is, therefore, found to be based on evidence available on record and we find no infirmity in it. 17. So far as the cause of death of deceased is concerned the postmortem report has been proved by the concerned doctor (PW-3) and from its perusal it is apparent that the deceased was strangulated to death. Hyoid bone of deceased was found fractured. The body of the deceased otherwise had injury marks which clearly supports the prosecution version that the deceased was tortured and she was strangulated to death. The finding by the court below that the deceased died due to unnatural circumstances is thus clearly borne out from the records. We, therefore, find that necessary ingredients to attract offence under section 304B IPC are clearly shown to exist in the facts of the case. The finding of court below with regard to demand of dowry and consequential implication of accused appellant no.1 in offences under section 304B, 498A IPC and 3/4 D. P. Act is, therefore, sustained. 18. So far as the argument advanced on behalf of the accused appellant nos.2 and 3 on the premise that they had a separate living and, therefore, they cannot be convicted for the above offences is now taken up for consideration. 19. The evidence on record about separate or joint living of appellant nos.1 and 2 with the deceased is primarily in the nature of oral statement of witnesses which needs to be examined. PW-2 in her examination-in-chief has stated that father of appellant no.1 had died prior to the marriage of the deceased and that the deceased after marriage was living with her husband together with Jeth and Jethani (appellant nos.2 and 3) in the house of appellant no.2. In her cross-examination she has, however, admitted that dead body of the deceased was found in the house of accused appellant no.1. In her cross-examination she has, however, admitted that dead body of the deceased was found in the house of accused appellant no.1. The statement of PW-2 clearly shows existence of two houses i.e. one belonging to accused appellant no.2 (Jeth) while the other was the house of husband (appellant no.1). PW-5, who is the Investigating Officer, has visited and seen the place of occurrence and in his cross-examination has clearly stated that the house of appellant no.1 is towards corner of Abadi and abuts the paddy field whereas the house of accused appellant nos.2 and 3 is within the Abadi area. The statement of PW-5 therefore clearly corroborates the statement of PW-2 insofar as existence of two houses belonging to accused appellants in the same village is concerned. PW-1 and PW-2 have, however, denied the suggestion that accused appellant nos.2 and 3 were living separately in their house situated within the old Abadi while accused appellant no.1 was living in his new house constructed towards the end of Abadi, but we do not find their statement to be reliable since on this aspect their statement are contradictory and the statement of PW-5, who is an independent person, appears to be more reliable. Inference of two separate houses belonging to Jeth and husband of deceased are clearly discernible from their statements. Existence of two houses, which are specifically described as house of accused appellant no.1 Shyam Babu and house of accused appellant no.2 Suresh @ Dhandhu together with statement of PW-2 that the deceased alongwith her husband was residing in the house of accused appellant no.2, makes it clear that the appellants family had two houses in the same village. Inconsistency in the statement of PW-2 that all the appellants were living in the house of Jeth whereas body of deceased was found in the house of appellant no.1 coupled with the statement of PW-5 clearly proves that accused appellant no.1 had a separate living with the deceased while appellant nos.2 and 3 were separately residing in the old house within the abadi. The evidence in that regard is corroborated by the specific defence taken by the accused appellants in their statement under section 313 Cr.P.C. that the accused appellant nos.2 and 3 were living separately in old house situated in Abadi. 20. The evidence in that regard is corroborated by the specific defence taken by the accused appellants in their statement under section 313 Cr.P.C. that the accused appellant nos.2 and 3 were living separately in old house situated in Abadi. 20. We may, at this stage, notice an additional fact regarding marriage itself was solemnized between the accused appellant no.1 with the deceased. PW-1 has admitted that prior to marriage of deceased the father of appellant no.1 had died and the trial court has also noticed that their marriage was settled on the intervention of mother and Nana of appellant no.1 Shyam Babu. The prosecution witnesses of fact have not included the name of Jeth and Jethani (appellant nos.2 and 3) as the persons instrumental in solemnizing the marriage. This also lends support to the evidence otherwise available on record that Jeth and Jethani (appellant nos.2 and 3) were living separately. Trial court although has noticed this aspect of the matter but has rejected the plea of separate living on the ground that no evidence was led by the appellants to substantiate the plea of separate living. After noticing the existence of two houses belonging to appellants in same village the trial court has observed that either ancestral house within the Abadi has fallen or may have been sold. This remark is based completely on surmises. We are, therefore, not inclined to accept the reasoning assigned by the trial court in coming to the conclusion that despite the existence of two houses in the same village the two families were living in the house of accused appellant no.1. Moreover, as the existence of two houses was clearly admitted and the PW-5 had also indicated that old house within the Abadi was of accused appellant no.2 while the new house belonged to accused appellant no.1 there was no other requirement of adducing any voter list etc. to substantiate the plea of separate living on part of the accused appellant nos.2 and 3. 21. In view of the above deliberations made on the factual aspects we are persuaded to the view that accused appellant nos.2 and 3 had a separate living in their old house within the Abadi. to substantiate the plea of separate living on part of the accused appellant nos.2 and 3. 21. In view of the above deliberations made on the factual aspects we are persuaded to the view that accused appellant nos.2 and 3 had a separate living in their old house within the Abadi. The statement of PW-2 that all the members were living in the house of Jeth (appellant no.2) otherwise cannot be accepted in view of the admitted position that the dead body of the deceased was found in the house of accused appellant no.1. We are, therefore, of the view that the trial court has not considered the evidence in correct perspective and its refusal to accept the plea of separate living of accused appellant nos.2 and 3 cannot be sustained. The finding in that regard is thus reversed. We accept the contention advanced on behalf of the accused appellant nos.2 and 3 that they had a separate living and, therefore, that they cannot be implicated for the offences under section 304B IPC. We further find that the allegations with regard to demand of dowry by accused appellant no.2 and 3 are clearly vague as no specific date, time or manner of demand of dowry by them has been disclosed by any of the prosecution witnesses, as such we hold that the conviction of accused appellant nos.2 and 3 under sections 498A IPC and ¾ D.P. Act also cannot be sustained. 22. This takes us to the last facet of this appeal i.e. the argument with regard to quantum of punishment awarded to the accused appellant no.1 in the matter. Section 304B defines ‘dowry death’ in following manner:- “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 purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). Explanation. For the purposes 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.” 23. Upon evaluation of evidence on record we have already returned a finding that the unnatural death of the deceased was on account of demand of dowry and the conviction of appellant no.1 under section 304B has been affirmed. Subsection (2) of section 304B IPC then provides for punishment of dowry death. The imprisonment for offence under section 304B IPC cannot be less than seven year but it may extend to imprisonment for life. What exactly be the appropriate punishment to be awarded under section 304B IPC would depend upon the facts and circumstances of each case. The death of the deceased in the present case has occurred on account of strangulation and injury marks have otherwise been found on the body of the deceased. The death has otherwise occurred nearly four months of the marriage itself. We are, therefore, of the view that this is not a case in which minimum punishment prescribed under section 304B IPC ought to be awarded to the accused appellant no.1. A harsher punishment would certainly be warranted in the facts of this case. However, we find that accused appellant no.1 has already suffered actual incarceration of more than 19 years and together with remission the total period would extend to more than 23 years. Considering the facts and circumstances of the case and upon overall evaluation of evidence on record we are of the view that the sentence of more than 23 years already undergone by appellant no.1 would adequately meet the end of justice and, therefore, we accept the argument advanced on behalf of appellants that the sentence of life imprisonment awarded to accused appellant no.1 be modified and be substituted by the sentence already undergone by him. Subject to the above modification on the quantum of sentence the conviction of accused appellant no.1 is sustained. 24. The appeal at the instance of accused appellant no.1 is, accordingly, allowed in part and the sentence awarded to him of life imprisonment under section 304B IPC is substituted with sentence already undergone by him. Subject to the above modification on the quantum of sentence the conviction of accused appellant no.1 is sustained. 24. The appeal at the instance of accused appellant no.1 is, accordingly, allowed in part and the sentence awarded to him of life imprisonment under section 304B IPC is substituted with sentence already undergone by him. Judgment and order of the court below dated 27.04.2006 is accordingly modified. Since the accused appellant no.1 is on bail, his sureties and bonds shall stand discharged and he shall be set at liberty, unless is wanted in any other case subject to compliance of section 437A Cr.P.C. So far as the appeal at the instance of accused appellant nos.2 and 3 is concerned it succeeds and is allowed. Judgment and order dated 27.04.2006, to the extent of appellant nos.2 and 3, is set aside. Since the accused appellant nos.1 and 2 are on bail, their sureties and bonds shall stand discharged and they shall be set at liberty, unless they are wanted in any other case subject to compliance of section 437A Cr.P.C.