HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 14 A.F.R.
Case :- CRIMINAL APPEAL No. – 453 of 1996
Appellant :- Bhagwan Singh And Another
Respondent :- State Of U.P.
Counsel for Appellant :- V.Bhatia,Anoop Vajpayee,Atul Kumar Yadav,Kapil Misra,Vineet Kumar Mishra
Counsel for Respondent :- Govt. Advocate
Hon’ble Sheo Kumar Singh-I,J.
1. The present criminal appeal has been filed by the appellant Bhagwan Singh and Krishna Pal Singh against judgment and order dated 11.10.1996 passed by IInd Special Additional District Sessions Judge, Hardoi in Session Trial No. 58 of 1995 whereby and whereunder appellants were convicted under Section 304-B IPC and sentenced to undergo rigorous imprisonment for 10 years, further convicted the appellants under Section 498-A and sentenced both of them to undergo rigorous imprisonment for one year and also convicted the appellants under Section 3/4 of Dowry Prohibition Act and sentenced to undergo rigorous imprisonment for one year.
2. This is a case where a young innocent lady of about 20 years of age having been married in the family of the appellants died within three years of marriage. The provisions of criminal procedure code were set into motion on the first information report submitted by one Balram Singh son of Mulayam Singh resident of village Suhedi, police station Lonar, district Hardoi on 27.9.1994 whereby he had communicated the incharge of police station regarding the present incident.
3. The contents of the first information report reveals that the deceased Saroj Singh was married to appellant Bhagwan Singh about three years ago from her death. After the marriage, when she visited the in-laws house and came back to parental house, she informed her parents that her husband and in-laws had been asking for motorcycle and an amount of Rs. 20,000/- as a dowry and directed her to bring with her when she comes back from her parental house. The first information report further reveals that the complainant performed the marriage of his daughter and paid cash of about Rs. 50,000/- and other items. In spite of the aforesaid, the appellants-accused were not happy as some more items and amount of Rs.20,000/- and motorcycle was desired to be given in marriage which were not given as stated in the first information report. Informant had further stated that her daughter was tortured and threatened to adverse consequences in the event all the demands are not fulfilled. In fact, at the time of vidai, on account of non providing motorcycle and Rs. 20,000/-, the complainant assured the accused-appellants to provide them these item in future, but as the informant side was unable to fulfil the demands, the victim-deceased was beaten repeatedly. Appellant Bhagwan Singh was consoled by the informant and it was promised that the demands will be fulfilled at the earliest opportunity and Saroj was taken by Bhagwan Singh to his house but some time later, the informant along with his brother Ranveer Singh went to the house of Bhagwan Singh where aforesaid demand was again repeated and the informant returned back after promising arrangement of motorcycle and the amount so demanded. On 26.9.1994 at about 5.00 P.M. at village Suhedi, Ranveer Singh communicated the informant that Smt. Saroj had been poisoned to death by the in-laws. Receiving such information, the informant along with his family members went to village Rajpur Labhera and found Saroj dead. But it was too late, thus he did not proceed to lodge first information report in the police station. On the next date i.e. 27.9.1994, a first information report was lodged in police station where it was registered as crime No. 103 of 1994 under Sections 498-A/304-B IPC and under Section 3/4 Dowry Prohibition Act, against Bhagwan Singh, Krishan Pal Singh, Raj Kumari, Guddu Singh @ Dharmendra Singh and Suman. During investigation, statement of witnesses were recorded and body of the deceased was taken into hospital for post mortem. Post mortem was conducted on 27.9.1994 at about 4.10 P.M by Dr. S.K. Saxena. The body of the deceased was brought by constable Bharatveer Singh and village Chowkidar Arvind of police station Pali in a sealed cover.
4. In the exhibit Ka-2 doctor had opined that a young lady of average body whose eyes and mouth were half opened and was about 20 years of age was brought in the hospital. In the external examination, it was found that rigor mortis passed for upper limb and it was passing for lower limb. Since cause of death could not be ascertained hence viscera was preserved and was sent to scientific laboratory for scientific examination. The report Ex. Ka-18 reveals that tissue pieces of stomach, tissue pieces of liver, spleen and kidney were preserved for medico legal information and were sent to Joint Director, Vidhi Vigyan Prayogshalala, Uttar Pradesh, Lucknow where it was found that there were aluminium phosphide poison in viscera at point No.1 and 2. It has further been opined by the scientific report that there were aluminium phosphide poison in the stomach and kidney.
5. After investigation, charge sheet under Section 498-A, 304-B IPC and 3/4 Dowry Prohibition Act was submitted against the accused Bhagwan Singh and Krishan Pal Singh. Learned Chief Judicial Magistrate took the cognizance and committed the case to the court of Session for trial. Learned Sessions Judge summoned the accused and charge under aforesaid sections were levelled against them for which, they denied and claimed for trial. In order to prove the case, the prosecution has examined P.W.1 Balram Singh, PW.2 Dr. S.K. Saxena, P.W.3 Rakesh Singh, P.W.4 Circle Officer Ram Pal Gautam, P.W.5 Head Constable Pratap Narain Singh. In order to prove exhibit Ka-7 to Ka-14 prosecution has examined S.I. A.P. Pandey. Constable Bharatveer Singh was posted in police station Pali at the time of incident and took the body from the place of incident to the mortuary/hospital for post mortem purposes. After examining the prosecution witnesses, statement under Section 313 Cr.P.C. was recorded in which both the appellants had stated that they were living separately and the deceased fell ill and during the treatment she died. The appellant had examined P.W.1 Ranveer Singh as defence witness. The appellant had also pleaded that there was no demand of dowry in the present case.
6. Learned trial judge by his judgment and order under appeal convicted the appellants, as noted above. Learned counsel for appellants argued mainly on the following points:-
(i) There is inordinate delay in lodging the first information report, which itself creates a doubt on the prosecution story.
(ii) There is lack of positive evidence about demand of dowry.
(iii) No evidence has been adduced about torture on the deceased either soon before the death on account of demand of dowry or otherwise.
7. Learned A.G.A. vehemently supported the judgment of the Lower Court and he replied the arguments of appellants on all counts. He supported that there is sufficient material and the Trial Judge has taken note of all the facts and on detail examination the appellants have been convicted.
8. There is no dispute about the fact that death has taken place well within seven year of marriage in an unnatural way.
“304-B. 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 harrassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused her death. Explanation for the purpose of this sub-section ‘dowry’ shall have 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.”
9. To press and apply the aforesaid Section, the prosecution has to establish that death is of a woman is caused by burns or bodily injury, occurs not under normal circumstances within seven years of the marriage and the lady was subjected to cruelty or harassment by the husband and relatives of the husband in connection with the demand of dowry. Section 113-B of the Evidence Act was also inserted with a view to draw a presumption as to the dowry death.
“113-B: 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.”
10. As per the definition of “dowry death” in Section 304-B I.P.C. and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand for dowry”. While considering these two provisions, Hon’ble Apex Court in M. Srinivasulu Vs. State of A.P. reported in (2007) 12 SCC 443 has observed thus:
“8 The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of a woman, (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or harassment by her husband for dowry.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.”
11. Hon’ble Apex Court in the case of Raman Kumar Vs. State of Punjab reported in (2009) 16 SCC 35 has again discussed Section 113-B of the Evidence Act and Section 304-B IPC and has quoted one paragraph of its judgment rendered in the case of Kaliyaperumal Vs. State of Tamilnadu reported in (2004) 9 SCC 157 as under:-
“A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the death occurring otherwise than in normal circumstances. The expression soon before is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. Soon before is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression soon before her death used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined. A reference to the expression soon before used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term soon before is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression soon before would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.”
12. If it is established by the prosecution that the circumstances to presume the death of the lady as a dowry death are reliable and if all the points are raised from the appellant side is negated it will be a case of confirmation of the conviction and sentence.
13. Admittedly, the marriage of the deceased was solemnized just before three years of death who died on account of poisoning in the house of her in-laws on 26.9.1994.
14. Here is a case where none of the accused-appellants informed about the incident either to the complainant or to the police. They did not take the deceased to the doctor for the treatment. The complainant having received the information came on the spot and thereafter all these things proceeded and after cremation, the first information report was lodged. There is evidence on record that when incident happened and the informant came to the house of the deceased, none of the appellants were available there. There is no explanation from the side of the appellants-accused that for what purposes and under what circumstances had left the house. Learned counsel for State had argued that the fact of absconding just after the incident provide certain presumptions regarding culpability of the appellants.
15. I have to examine the circumstances under which the appellants were absconding from the date of incident till the date of arrest. The prosecution has examined PW-4 Circle Officer Shahabad, Hardoi who had deposed that he tried to search out the house of the appellants but found both of them absconding from their house and they were arrested on 3.10.1994.
16. There is no doubt that the circumstances like absconsion can be treated as one of the incriminating circumstance but the said circumstance itself can not be a ground of convicting unless the other circumstances are linked with that one. In Mutru @ Girish Chandra versus the State of U.P. AIR 1971 SC 1050, the Apex Court held that the act of absconding is no doubt relevant piece of evidence to be considered along with other evidence, but its value would always depend on the circumstances of each case. Generally the court considers it as a very small item in the evidence for sustaining conviction.
17. In the instant case, it can not be ruled out that the accused-appellant persons left their place of residence either due to fear or to avoid arrest as such is the instinct to self preservation in an average human being as would be evident from the decision of the Apex Court in Thima versus The State of Mysore, AIR 1971 SC 1871. The conduct of absconding is relevant under Section 8 of the Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest. Such is the instinct of self-preservation in an average human being.
18. One of the argument of learned counsel for appellant is about the delay in lodging the first information report. The incident took place on 26.9.1994 and when Ranveer Singh communicated the death by poisoning, then the informant reached to the village in the house of the appellant and after that the first information report was lodged on 27.9.1994. In the given set up of facts, in no case, the argument of delay in lodging the first information report can carry any weight, specially in the circumstances, where the scientific report reveals that the cause of death was due to administering poison in the body of the deceased.
19. Another argument as advanced by the learned counsel for the appellants was that there is no evidence of demand of dowry. The prosecution has examined P.W.1 Balram Singh and P.W.3 Rakesh Singh who had made a consistent statement that there was a demand of dowry and it was communicated to them by the deceased. There was also panchayat with regard to the fact of demand of dowry and complainant had assured the appellants to fulfil their demands and also assured them to wait. Right from the lodging of the first information report and till the oral evidence which has been confidently established by the prosecution witnesses that from time to time there was demand of dowry and in spite of giving valuables in the marriage, the lady victim-deceased elaborated the terror on her. The statement of two witnesses on the issue was not shaken during the cross examination. There is no doubt about the fact that death has taken place well within seven years well being unnatural. Section 304-B deals with dowry death. The death may be of following two natures:-(i) Natural death (ii) Unnatural death. Law does not take cognizance of the natural death but in case if it is unnatural death, then the provisions of law and the criminal jurisprudence comes into picture. Unnatural death may be of following kinds:-
(i) Accidental death
(ii) Suicidal death
(iii) Homicidal death
(iv) Dowry death
20. There is no case of accidental death. It is the version of the prosecution that the circumstances under which death took place gives certain presumptions as provided under Section 113-B of the Evidence Act. Further when the death of a woman occurs otherwise than under normal circumstances within seven years of marriage and it is shown that soon before the death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand of dowry, such death shall be called dowry death. There is an allegation of demand of dowry and there is evidence of the prosecution that there was demand of dowry and harassment in furtherance of demand of dowry.
21. 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.” As per the definition of “dowry death” in Section 304-B I.P.C. and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand for dowry”.
22. In the case of State of Punjab vs. Iqbal Singh, AIR (1991) SC 1532 observed as under:-
“The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections 113-A and 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married women is subjected to cruelty or harassment by her husband or his family members Section 498-A, IPC would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304-B, IPC. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with,any demand for dowry, Section 113-B,Evidence Act provides that the court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract Section 302, IPC.
23. In the case of Ramesh Panjiyar vs. State of Bihar, (2005) 2 SCC 388, the Court held that the prosecution has to rule out the possibility of a natural or incidental death so as to bring it within the purview of “Death occurring otherwise than in the normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC are pressed into service. Hence, the prosecution is obliged to show that soon before the occurrence there was cruelty or harassment only attracting the provision of Section 113-B.
24. In the case of Kanas Raj vs. State of Punjab Ors., (2000) 5 SCC 207, it was held that in case of dowry death the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instances but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand of dowry is shown to have persisted, it shall be deemed to be “soon before death”.
25. Prima facie neither definite period has been indicted in the aforementioned section nor the expression “soon before” has been defined.
26. In Balka Singh Ors. v. State of Punjab, AIR 1975 SC 1962, the Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 and held as under:
“The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply.”
“It is indeed necessary however to note that there would hardly be a witness whose evidence does not contain some amount of exaggeration or embellishment, sometimes there would be a deliberate attempt to offer the same and sometimes the witnesses in their over anxiety to do better from the witness-box details out an exaggerated account.”
28. A similar view has been reiterated in Appabhai Anr. v. State of Gujarat, AIR 1988 SC 696, wherein the Court has cautioned the courts below not to give undue importance to minor discrepancies which do not shake the basic version of the prosecution case. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness for the reason that witnesses now a days go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. However, the courts should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.
29. In Sucha Singh v. State of Punjab, AIR 2003 SC 3617, the Court had taken note of its various earlier judgments and held that even if major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, it is the duty of the court to separate grain from chaff. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim falsus in uno falsus in omnibus (false in one thing,false in everything) has no application in India and the witness cannot be branded as a liar.In case this maxim is applied in all the cases it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however, truth is the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of credence, and merely because in some respects the court considers the same to be insufficient or unworthy of reliance, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well.
30. Admittedly, the incident of death by poisoning had taken place in the own house of the appellants. This aspect notice remained unanswered by the appellant about the inquest report, opinion of panchayat, opinion of the person present at the time of panchayatnama or to the fact that the death was caused due to poisoning. The internal organs of the deceased were found congested viz brain, kidneys, larynx, small intestine, spleen, Gall bladder, cesophagus.
31. Learned counsel for appellants had submitted that it is suicidal death. There is no case that the deceased had committed suicide. There is no reason or explanation from the side of the appellants for committing the suicide. Even if, it was a case of suicide, there was no need for absconding the appellants from the place of occurrence or from their own home. There is no explanation why the first information report was not lodged in the nearest police station by the appellants in the nearest point of time. There is no explanation as to why the deceased was not admitted in the hospital and there is also no explanation as to why her parental side was not communicated to the fact of poisoning or death. The version that the deceased was given medical treatment found not proved due to reason that no medical slip has been produced by the appellant and no doctor had been examined on the side of defence that she was suffering from any disease or fell ill and the doctor treated her.
32. Learned counsel for appellants had further submitted that the deceased never intended to live in village. It has been evidence from the facts and circumstances that both the parties were familiar with each before marriage and were of village back ground and marriage was performed within full knowledge of these things. Thus the theory that she was not intended to live in village is not justified.
33. Submission of learned counsel for the appellants is that as there was no complaint prior to this incident, therefore, the allegation of demand of dowry become unbelievable. I am not at all convinced with the submission of learned counsel for the appellants. In a matrimonial relationship, the family member of the victim always tries and makes their best efforts for the continuance of the marriage. In case any complaint or any F.I.R. is lodged to this effect then the dispute becomes irreversible and it would further deteriorate the relationship of the wife with her husband and the other family members of her matrimonial home. Due to this reason, the complaint of minor incidents of cruelty with the wife or demand of dowry are not generally reported. The Court is required to appreciate the evidence, keeping in view the prevailing circumstances in the society. Therefore, the ground, which has been taken on behalf of the appellants, has absolutely no force. All the two witnesses have made specific allegation that after ‘Gauna’ ceremony, the demand of dowry was made and the victim was consequently ill treated. She died within seven year of marriage.
34. The next submission of learned counsel for the appellants is that there is no evidence on the point that soon before her death, deceased was subjected to cruelty in connection with the demand of dowry is apparently misconceived. The meaning of the words ‘soon before her death’ has been considered by the Apex Court in various judgments. In the case of Satvir Singh Vs. State of Punjab reported in (2001) 8 SCC 633, which was followed by Hon’ble Apex Court in
the case of Balwant Singh Vs. State of Punjab reported in 2004 (7) SCC 724 and has held as under:-
“It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at sometime, if Section 304-B I.P.C. is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few week before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words “soon before her death” is to emphasis the idea that her death should in all probabilities, have been the aftermath of such cruelty or harassment. In other words there should be perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between infliction of such harassment or cruelty and her death is wide the court would be in a position to guage that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to sneft its cord from the concept “soon before her death.”
35. We find that the appellants were charged under Section 304B I.P.C. The specific allegation leveled against them was that they had subjected the deceased to cruelty far or in connection with the demand of dowry and she had died unnatural death within seven years of her marriage. Thus the appellants knew that they were to defend themselves against the allegation of cruelty.
36. Section 304-B was inserted by amending Act No.43 of 1986 to deal with cases involving dowry deaths occurring within seven years of marriage. Sub-section (1) of Section 304B IPC lays down that 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. By virtue of explanation appearing below sub-section (1), the word `dowry’ used therein carries the same meaning as is contained in Section 2 of The Dowry Prohibition Act, 1961.
37. The ingredient of cruelty is common to Sections 304B and 498A IPC, but the width and scope of two sections is different, inasmuch as Section 304B deals with cases of death as a result of cruelty or harassment within seven years of marriage, Section 498A has a wider spectrum and it covers all cases in which the wife is subjected to cruelty by her husband or relative of the husband which may result in death by way of suicide or cause grave injury or danger to life, limb or health (whether mental or physical) or even harassment caused with a view to coerce the woman or any person related to her to meet unlawful demand for property or valuable security.
38. In our country the bride burning, bride hanging or poisoning cases have become common. These kind of offences are not the ordinary crimes committed in anger or for property. These are crimes against society on account of which the entire social fabric is disrupted. Time has come when everybody is to seriously think over the nature and gravity of the crime. It is very pathetic situation when the young girl aged about 20-25 years leaves her parents to serve another family who is totally unknown to her. She is to be extended even more love, affection and the help in comparison to our own daughter as the lady after marriage is just a part of the family where she is married. She takes care of all the members of the family right from young to old, and therefore, any kind of indiscipline, misconduct with the young lady can be termed as inhuman and nobody can claim any sympathy and deserves any leniency.
39. In the light of facts, this court is of the view that learned trial judge had discussed each and every prosecution witnesses in detail apart from the statement of defence witness P.W.1 and after proper analysis has drawn a conclusion, which is well permitted in law and found that the death of the deceased was unnatural coming within the purview of dowry death.
40. Now the question, which has been raised by the learned counsel for appellants is that appellant No. 2 Krishan Pal Singh is the father and is presently about 80 years of old man. He had no concern with the appellant No.1 and not in any way instrumental in demand of dowry or harassment or causing death of the deceased. It has further been argued that responsibility raised with the husband-appellant No.1, Bhagwant Singh, who is presently in custody and is in jail. Learned counsel has relied his version on Kans Raj versus state of Punjab Supreme court 2000 (3) 554 wherein Hon’ble Supreme court has observed that father or sister, in-laws of the deceased can not be said to have been involved in the commission of the crime by mere conjecture and implication of such relatives can not implicate them for demand of dowry. A tendency has however been developed for roping in all relations of in-laws of deceased in the matter of dowry death which, if not discouraged is likely to affect the case of the prosecution even against the real culprit. In their over enthusiasm and inside to seek conviction the married people, the parent of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against real accused as appears to have been happened in the present case.
There is evidence on record that the father was residing separately. In the light of Jagjit Singh versus State of Punjab 2009 (4) SCC 479, the father should not be held guilty for the offence as mentioned above.
41. The contention of the learned counsel for appellants that the death within seven years of marriage has not been proved by the prosecution witnesses does not find support from the prosecution witnesses as post mortem reveals age of the deceased as 20 years. The appellant had cross examined the witnesses in which the fact came on record that the deceased appeared in high school examination at her parental home. The age at the time of appearing in the examination of high school be not assessed less than 14 years and marriage can not be presumed to have been performed before 14 years. The prosecution witnesses have fully proved that the marriage took place just before three years of the death. These facts prove the case of prosecution that the death took place within seven years of marriage and come within category of dowry death.
42. In the light of above discussion, this court is of the view that the appellant No.1 Bhagwan Singh has been rightly convicted by the learned trial Judge. So far as the conviction of Krishan Pal Singh, father of the appellant No.1, is concerned, in light of above discussion and in light of the separate living, benefit of doubt should be given to him and the case of torture or dowry death is not proved against him. Thus appeal of Krishna Pal Singh deserves to be allowed.
43. Accordingly appeal is partly allowed. The conviction and sentence passed in Session Trial No. 58 of 1995 against Krishna Pal Singh is set aside and he is acquitted from the charges levelled against him. The appellant Krishna Pal Singh is on bail. He need not to surrender. His personal bond and sureties are discharged.
44. The conviction and sentence against Bhagwan Singh is confirmed and the appeal of appellant Bhagwan Singh is dismissed. Appellant-accused Bhagwan Singh is in jail. He will serve out remaining sentence.
45. Let a certified copy of this order be sent to the concerned court / Chief Judicial Magistrate Hardoi for compliance of this order.
Order Date :- 26.7.2017