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2024 DIGILAW 2510 (ALL)

Chhote Lal v. State of U. P.

2024-12-12

ASHWANI KUMAR MISHRA, GAUTAM CHOWDHARY

body2024
JUDGMENT : Ashwani Kumar Mishra, J. 1. These appeals are directed against a composite judgment and order of conviction and sentence dated 30.9.2021, passed by the Additional Sessions Judge (Fast Track Court-I), Banda in Session Trial Nos. 65 of 2015 (State v. Chhangu and others) and 178 of 2015 (State v. Punna alias Puran and another), arising out of Case Crime No. 156 of 2014, Police Station Pailani, District Banda, whereby the accused appellant Chhangu has been convicted and sentenced to life imprisonment under Section 304-B IPC, as well as accused appellants Chhote Lal, Shiv Mohan, Punna @ Puran and Urmila have been convicted and sentenced to seven years imprisonment under Section 304-B IPC; all the accused appellants Chhangu, Chhote Lal, Shiv Mohan, Punna @ Puran and Urmila have been convicted and sentenced to three years imprisonment alongwith fine of Rs. 10,000/- each under Section 498-A IPC and on failure to deposit fine to undergo additional imprisonment for two months each; two years imprisonment alongwith fine of Rs. 10,000/- each under Section 4 Dowry Prohibition Act and on failure to deposit fine to undergo additional imprisonment for two months each. 2. Incident in the present case occurred on 3.9.2014 when the deceased (wife of the accused appellant Chhangu) allegedly sustained burn injuries, as a result of which she died. The inquest was conducted on 3.9.2014 on the basis of information given by the husband Chhangu at 1.10 pm. The inquest was conducted between 3.00 pm to 4.30 pm on 3.9.2014 itself. The inquest witnesses included the accused appellant Chhangu. In the opinion of the inquest witnesses the deceased had poured kerosene on herself, as a result of which she died, due to burn injuries. The body was sealed and sent for post-mortem, which was conducted on the next day i.e. 4.9.2014. The post-mortem report is on record, as per which the cause of death is ante-mortem burn injuries. Following injuries have been found on the body of the deceased: “External Examination: (1) superficial to deep burn whole over body except sole anterior. Skin peeled multiple places, blackish whole body .. hair, scalp burn symmetrical eye burn eyelash axillary pelvic hair. Red line present on anterior part of sole. Internal Examination :Trachea and bronchial tree are congested with sooty particle present. Both lungs congested, on cut section carbon particles present.” 3. Skin peeled multiple places, blackish whole body .. hair, scalp burn symmetrical eye burn eyelash axillary pelvic hair. Red line present on anterior part of sole. Internal Examination :Trachea and bronchial tree are congested with sooty particle present. Both lungs congested, on cut section carbon particles present.” 3. The record reveals that information was given to the family members of the deceased as well as the police on the date of incident itself. Though the proceedings of inquest and post-mortem were undertaken yet no FIR was lodged in the matter. The family members of the deceased were also present at the time of inquest etc. The last rites of the deceased were also performed by the accused appellant Chhangu in the presence of family members of the deceased. 4. The family members of the deceased proceeded on the premise that the deceased died having committed suicide by pouring kerosene on herself. The First Information Report in the present case has been lodged after more than a month on 10.10.2014 on the basis of a written report made by the informant on 17.9.2014. The contents of the FIR are that the informant is a resident of District Mahoba, who had married his daughter (deceased) with accused about one and a half year back and ever since the marriage, the wife was being harassed for demand of dowry by the in-laws and the husband. Deceased was physically and mentally tortured for demand of a motorcycle and Rs. 50,000/-. The deceased was also harassed by not providing her food for such reasons. The FIR further alleges that on 3.9.2014 the in-laws and husband of the deceased have poured kerosene on her and set her ablaze. The report could not be lodged earlier as the informant was running from pillar to post and request is made that appropriate steps be taken in the matter. The written report, which is the basis of FIR, is on record and has been duly exhibited during trial. 5. After the FIR was registered, investigation followed in which the statement of witnesses were recorded and ultimately charge-sheet came to be filed against the accused under Section 498-A, 304-B IPC and 3/4 Dowry Prohibition Act on 5.2.2015 and 11.3.2015. The concerned Court took cognizance of the matter and committed the case to the Court of Sessions where it got registered as Session Trial Nos. The concerned Court took cognizance of the matter and committed the case to the Court of Sessions where it got registered as Session Trial Nos. 65 of 2015 and 178 of 2015. Charges have been framed against the accused under Section 498-A, 304-B IPC and alternate Section 302/34 IPC as well as Section 3/4 Dowry Prohibition Act. The accused have denied their implication and demanded trial. 6. During the course of trial, documentary evidence are adduced by the prosecution in the form of FIR as Ex.Ka-12; written report as Ex.Ka-1; post-mortem report as Ex.Ka-2; inquest report as Ex.Ka-3; charge-sheet dated 5.2.2015 as Ex.Ka-10; charge-sheet dated 11.3.2015 as Ex.Ka-11; and site plan with Index as Ex.Ka-9. 7. In addition to above, the prosecution has produced the informant as PW-1, who has supported the prosecution case, according to which the deceased has been done to death as he could not arrange dowry of Rs. 50,000/- and a motorcycle. The informant has been cross-examined by the defence where he has admitted that his daughter was earlier married to Shiv Prasad, which resulted in a divorce whereafter the deceased re-married the accused Chhangu. This was also the second marriage of accused Chhangu as his first wife has died. In the cross-examination PW-1 has stated that both Chhangu and his daughter were from the same community and on Chaitra Navdurga he had married his daughter with Chhangu in the village of Chhangu i.e. Sindhan. PW-1 has stated that he is a labour and had no means to arrange any major item for marriage at Sindhan. He has stated that when Baraat arrived he gave Rs. 500/- alongwith three thaliyan (steep plates) and Kalphool etc. He has further stated that the family members of accused were present alongwith baraties but he did not remember their names. He has also stated that marriage was solemnized with Chhangu without any hassle or demand. Accused Chhangu is also a labour. He visited his daughter twice and on both occasions he found her living happily. His daughter had also come alongwith son-in-law and stayed at their place for three days, whereafter the accused Chhangu took his wife back. He admitted that neither any harassment was meted out to his daughter nor any panchayat etc. was held and no complaint was made with regard to demand of dowry. His daughter had also come alongwith son-in-law and stayed at their place for three days, whereafter the accused Chhangu took his wife back. He admitted that neither any harassment was meted out to his daughter nor any panchayat etc. was held and no complaint was made with regard to demand of dowry. He admitted that on 3.9.2014 itself he came to know from the brother of Chhangu that his daughter has committed suicide. The brother of the deceased arrived on the same day at about 4.30 pm. The inquest and other proceedings were conducted in his presence. After the proceedings were concluded the dead body was taken by the accused Chhangu and he performed the last rites of the deceased. He also stated that a written report was made by him on 3.9.2014 also but the same is not on record. This witness has further stated that the report was scribed in his own handwriting. He has also stated that demand of dowry was made within a year of marriage. His daughter told such fact during Sawan. He has further stated that only after he wrote a letter to the Superintendent of Police, the FIR was lodged. 8. PW-2 is the wife of the informant and is the mother of the deceased. She is also the mother-in-law of accused Chhangu. In her examination-in-chief PW-2 has also supported the prosecution case. In her cross-examination she has admitted that during her previous marriage the deceased suffered two abortions whereafter a female child was born, who too died after 8 months. She has admitted that the deceased got divorced with her first husband Shiv Prasad. She has also admitted that due to consent the accused Chhangu and her daughter had chosen each other as husband and wife. Certain items like utensils, bed, quilt, fan etc. were given in marriage. However, no cash was given in dowry. This witness has stated that her daughter told her about the demand of dowry. She admitted that no complaint regarding demand of dowry was made. PW-2 has denied the suggestion that upon coming to the matrimonial house of her daughter, she came to know that deceased had committed suicide and that is why no report was lodged initially and only with an intent to extract money, the FIR has been lodged after a long gap. 9. PW-2 has denied the suggestion that upon coming to the matrimonial house of her daughter, she came to know that deceased had committed suicide and that is why no report was lodged initially and only with an intent to extract money, the FIR has been lodged after a long gap. 9. PW-3 is the brother-in-law of the informant and has also supported the prosecution case. His testimony also does not contain any particulars of demand of dowry, soon before the death of the deceased. 10. PW-4 is Dr. T.R. Sarsaiya, who was conducted the post-mortem. He has opined that the cause of death of deceased was the burn injuries and that there existed no other injury on her body. Carbon particles were found present in the Trachea. PW-5 is K.G. Vishwakarma, who prepared the inquest proceedings and has proved the inquest report. 11. PW-6 is the Circle Officer, who conducted investigation in the matter. This witness has proved the police papers and the charge-sheet etc. In his cross-examination, the Investigating Officer has admitted that in the statement of neighbour there was no disclosure made with regard to demand of dowry and they stated about the deceased having burnt herself. The Investigating Officer has also stated that the informant told him that he is a labour and has no financial means to give any dowry and that only Rs. 500/- was given to accused Chhangu at the time of marriage. The Investigating Officer has also stated that Jeth and Jethani of the deceased were living separately from the deceased. PW-7 is Kanchan Singh Yadav, who has proved the GD entry. 12. The above evidence of the prosecution has been confronted to the accused persons for recording their statement under Section 313 Cr.P.C. The accuseds have denied the evidence and stated that due to enmity they have been falsely implicated. They have further stated that marriage was mutually agreed upon by the deceased and accused Chhangu, and that there was no demand of dowry etc. 13. The defence in addition to the statement under Section 313 Cr.P.C. has also produced Badaniya wife of Shyam Babu as DW-1. She has clearly stated that the deceased and the accused Chhangu, both, are from the same community and with the agreement and consent, they were living together with each other. She has also stated that accused Chhangu and his brother were living separately. She has clearly stated that the deceased and the accused Chhangu, both, are from the same community and with the agreement and consent, they were living together with each other. She has also stated that accused Chhangu and his brother were living separately. She has also stated that the deceased committed suicide in her matrimonial house, and that none was present at that time. Hari Prasad Mishra has been produced as DW-2. He has stated that the deceased had started living with accused Chhangu without any formal marriage solemnized between them. It is on the basis of aforesaid evidence that the trial Court has come to the conclusion that the guilt of the accused has been proved beyond reasonable doubt. Consequently, accused appellants have been convicted and sentenced as per the above. 14. Learned counsel for the accused appellants has challenged the finding of guilt recorded by the trial Court contending that necessary ingredients to prove the offence under Sections 304-B, 498-A IPC are clearly missing and, therefore, the conviction and sentence of the accused appellants are unsustainable. Learned counsel further submits that there is no iota of evidence to suggest that any dowry demand was made at the time of marriage or even thereafter, nor there is any credible evidence to show that the demand of dowry was made soon before the death of the deceased or that the death occurred on account of failure to meet the demand of dowry. 15. Learned A.G.A. for the State, on the other hand, opposes the submission advanced on behalf of the accused appellants and contends that the evidence on record clearly supports the finding of guilt, inasmuch as PW-1, PW-2 and PW-3 have consistently asserted that the demand of dowry was made by the in-laws and husband of the deceased and that the death occurred on account of failure of the family members of deceased to meet the demand of dowry. 16. We have heard Shri Yogesh Shrivastava, learned counsel for the accused appellants and Shri Vikas Goswami, learned A.G.A. and perused the materials available on record, including original records of trial Court. 17. The facts of the case as appear on record clearly indicates that the deceased was earlier married to one Shiv Prasad and her first marriage resulted in a divorce. 17. The facts of the case as appear on record clearly indicates that the deceased was earlier married to one Shiv Prasad and her first marriage resulted in a divorce. This apparently was for the reason that twice the pregnancy during first marriage resulted in abortion and the female child born subsequently also died after eight months. The mother of deceased as well as informant both have admitted that marriage of the deceased with accused appellant Chhangu was her second marriage. Similarly, the marriage of accused Chhangu with the deceased was also his second marriage after his first wife had died. Both the deceased and accused Chhangu belong to same community. PW-1 in his testimony has admitted that the marriage of deceased with the accused Chhangu was performed at the village Sidhana, which is the village of accused Chhangu. PW-1 has also stated that he is a man of limited means being labourer and gave only Rs. 500/- at the time of marriage. He has admitted that no complaint was ever made by him with regard to demand of dowry to anyone. 18. Though all the prosecution witnesses of fact, namely PW-1, PW-2 and PW-3 have stated that there was a demand of dowry in the form of Rs. 50,000/- and a motorcycle but except for bald allegation in that regard the evidence of these witnesses lack clarity with regard to date or time when such demand was made by the husband or the in-laws of the deceased. The allegation made in the testimony of these witnesses will have to be examined in the context of totality of evidence placed on record during the stage of trial. PW-1 and PW-2 are the parents of the deceased and both have admitted that they had limited means and that the marriage was solemnized without any dowry. PW-1 has stated that he gave Rs. 500 in marriage, while PW-2 has stated that no such amount was paid at the time of marriage and only some utensils, quilt, mattress etc. were given at the time of marriage. These witnesses have clearly stated that there was no hassle with regard to demand of dowry and the entire ceremony was solemnized peacefully. 19. PW-1 has clearly stated that he visited his daughter only twice and on both the occasions he found her happily living with her husband. were given at the time of marriage. These witnesses have clearly stated that there was no hassle with regard to demand of dowry and the entire ceremony was solemnized peacefully. 19. PW-1 has clearly stated that he visited his daughter only twice and on both the occasions he found her happily living with her husband. PW-1 and PW-2 have admitted that demand of dowry was made within the first year of the marriage and that such demand was not followed subsequently by the family members. 20. We have carefully analysed the testimony of all three prosecution witnesses. We are not impressed by the case of the prosecution that there existed any demand of dowry by the accused persons from the deceased or her family members, which continued till soon before her death. The reason for such conclusion is that PW-1 and the accused Chhangu both are labourer and are men of limited means. PW-1 and PW-2 both have admitted that marriage between the deceased and accused Chhangu was solemnized without any hassle and the averment with regard to dowry at the time of marriage is also inconsistent. While PW-1 states he gave Rs. 500 to accused Chhangu, the version of PW-2 is just contrary to it, who states that no cash was given at the time of marriage. PW-2, however, states that some utensils, quilt, mattress etc. were given at the time of marriage. PW-1, moreover, has admitted that his married daughter came only once to his house when she stayed for three days and was taken by the accused husband, thereafter. During this period of three days the deceased was happy and had not raised any grievance. 21. Though in the facts of the case the deceased has died within seven years of marriage but in order to prove the offence under Section 304B IPC the prosecution is required to establish the fact that there was demand of dowry which continued till soon before her death. Though two ingredients of Section 304B IPC i.e. death occurred within seven years of marriage and death is unnatural are established, on record, but the third ingredient with regard to demand of dowry soon before death is clearly found lacking. 22. Death has occurred in this case on 3.9.2014. The prosecution witnesses of fact have admitted that they were informed about the incident and they arrived on the date of death. 22. Death has occurred in this case on 3.9.2014. The prosecution witnesses of fact have admitted that they were informed about the incident and they arrived on the date of death. Evidence also shows that after the inquest and post-mortem was conducted the dead body of deceased was handed over to accused Chhangu, who performed the last rites. For almost several days thereafter also no complaint was made that it was a case of dowry death. It is otherwise admitted on record that no previous complaint was ever made to anyone with regard to demand of dowry. PW-1 has also admitted that no panchayat etc. was held for the purpose. From totality of the evidence on record, we are not persuaded to accept the reasoning assigned by the trial Court that it was on account of refusal to meet the dowry demand that the deceased has been done to death. The evidence also falls short of it. 23. It is otherwise admitted that the deceased and accused Chhangu both have contracted second marriage and the venue of marriage was the village of accused Chhangu. This clearly shows that the marriage was solemnized with the consent of the parties as they belonged to the same community. The evidence at the most shows that some articles or a petty amount was given at the time of marriage by the family members of the deceased to the accused husband. There is no evidence to show that the any demand of dowry was made at the time of marriage. Except for vague allegations there are no details as to when demand of dowry was made from the deceased or her family members. Considering the poor economic condition of the family of deceased as also particulars of demand, we are doubtful of any demand of dowry. 24. The evidence otherwise shows that soon after the death it was reported that the deceased had committed suicide. It transpires that after the family members of the deceased came to the matrimonial house where deceased had died found no untoward evidence suggesting any foul play in the death of the deceased. They allowed the dead body of deceased to be handed over to husband for performing last rites. No immediate complaint was made either. It is after almost two weeks that a written report was made and the FIR was lodged after almost five weeks. 25. They allowed the dead body of deceased to be handed over to husband for performing last rites. No immediate complaint was made either. It is after almost two weeks that a written report was made and the FIR was lodged after almost five weeks. 25. The circumstances of this case coupled with the evidence on record, taken in its totality, persuade us to conclude that the prosecution has failed to establish that there was any demand of dowry soon before death of deceased, which resulted in her unnatural death. Once that be so, the findings of trial Court in convicting the accused appellants cannot be sustained. 26. In view of the evidence available on record, we have no hesitation in holding that the conviction and sentence of the accused appellants is not sustainable on the basis of evidence available on record and the prosecution has failed to prove the guilt of the accused appellants beyond reasonable doubt. 27. Accordingly, the present appeals succeed and are allowed. The impugned judgement and order of conviction and sentence dated 30.9.2021, passed in Session Trial Nos. 65 of 2015 (State v. Chhangu and others) and 178 of 2015 (State v. Punna alias Puran and another), is hereby set aside. The accused appellants Chhote Lal, Shiv Mohan, Punna @ Puran and Urmila are on bail and their sureties and bonds stand discharged and they shall be set free, and the accused appellant Chhangu, who is reported to be in jail, shall be released forthwith, unless he is wanted in any other case subject to compliance of Section 481 B.N.S.S., 2023. 28. Let a copy of this order be sent to the concerned Chief Judicial Magistrate for necessary compliance.