Uma Kant vs State Of U.P. on 12 September, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 14

AFR

Case :- CRIMINAL APPEAL No. – 6928 of 2010

Appellant :- Uma Kant

Respondent :- State Of U.P.

Counsel for Appellant :- Virendra Kumar Singh,A. Kumar Srivastava,A.K.Sachan,Bharat Bhushan Paul,R K Vaish

Counsel for Respondent :- Govt.Advocate

Hon’ble Arvind Kumar Mishra-I,J.

By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 06.10.2010 passed by Additional Sessions Judge, Court No.5, Bareilly, in Sessions Trial No.195 of 2004, State of U.P. Vs. Uma Kant, arising out of Case Crime No.610 of 2002, under Sections 498A, 306 IPC, Police Station- Bahedi, District- Bareilly, whereby the appellant has been sentenced to undergo three years rigorous imprisonment coupled with fine Rs.20,000/- under Section 498A IPC, in default of payment of fine, he will have to suffer addition six months imprisonment and ten years rigorous imprisonment coupled with fine Rs.50,000/- under Section 306 IPC, in default of payment of fine, he will have to suffer addition one year imprisonment. Both the sentences were ordered to run concurrently.

Heard Sri R.K. Vaish, learned counsel for the appellant, Sri Pradeep Kumar, learned AGA for the State and perused the record of this appeal.

Brief facts as unfolded by the first information report and gathered from the record appear to be; that the first information report was lodged at Police Station Bahedi on 14.06.2002 at 4:30 a.m. regarding death of the informant’s daughter Usha Devi on account of non-fulfillment of demand of dowry, with the allegations that the informant got wedded his daughter with the appellant Uma Kant in the year 1998 and gave gift/dowry according to his capacity. But after the marriage, the appellant along with his family members raised demand of Rs.50,000/- in cash and one Hero Honda motorcycle and on account of non-fulfillment of dowry demand, the informant’s daughter was maltreated and cruelty was perpetrated on her. The informant along with his son Virendra Kumar and wife Rama Devi visited house of in-laws of his daughter in the year 2001 after the marriage when he tried to console the appellant and his family members for not meeting the demand of dowry. The informant’s elder son-in-law Parmeshwari Lal visited house of the in-laws of his daughter when his daughter told him that in case her father does not take her away from the house of the in-laws, she will be killed. On this information, the informant along with his son went to take back the victim with him but the appellant and his family members did not send the victim with the informant. On 13.06.2002, at 5:00 p.m., Ex. Pradhan Pappu came to the informant and intimated that the informant’s daughter had died. Upon the information so received, the informant along with his family members proceeded to the spot where they saw villagers making preparation for funeral of the deceased Usha Devi. Allegations have been made in the concluding part of the first information report that the informant’s daughter has been killed on account of non-fulfillment of dowry demand. This dowry demand can be treated to be a cause of abetment. Request was made for lodging the report and taking appropriate action. The written report is Ext. Ka-1.

Record further reveals that contents of the written information were taken down in the concerned Check FIR at Case Crime No.610 of 2002 under Sections 304B IPC and 3/4 Dowry Prohibition Act, Police Station Bahedi District Bareilly, on 14.06.2002 at 04:30 a.m. Check FIR is Ext. Ka-3.

On the basis of entries so made in the check F.I.R., a case was registered against the appellant in the relevant G.D. at serial no.7 on 14.06.2002 at 04:30 a.m. at the aforesaid Case Crime Number at Police Station Bahedi, under aforesaid Sections of I.P.C. and Dowry Prohibition Act against the appellant. General diary copy is Ext. Ka-4.

Pursuant to the registration of the aforesaid case against the appellant, the Investigating Officer, Om Prakash Singh swung action and taken over the investigation. He arrived on the spot and at the instance of the informant, prepared site plan of the occurrence Ext. Ka-7 and also completed other formalities. The inquest of the deceased Usha Devi was held on 14.06.2002 and it was completed at 12:00 noon. Inquest report is Ext. Ka-6.

In the opinion of the inquest witnesses and the Investigating Officer, it was suggested that post mortem of the dead body of Usha Devi be ensured in order to ascertain real cause of death. Therefore, relevant papers were prepared such as specimen seal Ext. Ka-5, photonash Ext. Ka-6, Police Form 13 Challan dead body Ext. Ka-7, letter to CMO Ext. Ka-8 and letter to RI Ext. Ka-9.

Thereafter, the dead body was sent for post mortem examination in the mortuary at Bareilly where post mortem examination on the cadaver of the deceased Usha Devi was done by Dr. R.K. Rastogi, PW-3 on 15.06.2002 at 05:00 p.m. wherein he noted the following ante mortem injuries:

1. Abraded contusion 12 x 1.5 cm upper part of neck, front side and both side, 6 cm below chin, and 4 cm below from right ear and 10 cm below the left ear. On cutting skin ecchymose present, underneath trachea ring fractured.

2. Contusion 6 x 4 cm on front side of right forearm.

3. Contusion 8 x 4 cm on front side of forearm.

In the opinion of the doctor, cause of death was assigned to be asphyxia due to strangulation. This post mortem examination report is Ext. Ka-2.

In the meanwhile, the investigation continued. The Investigating Officer PW-6 in the process recorded statement of various persons including the informant and Constable who made relevant entry in the Check FIR and general diary. He prepared site plan of the place of occurrence Ext. Ka-7. After doing the needful, he filed charge sheet against the appellant Ext. Ka-8.

Pursuant thereto committal proceeding took place and after compliance with Section 207 Cr.P.C., the case was committed to the court of Sessions from where it was transferred to the Additional Sessions Judge, Court No.5, Bareilly, for conduction of trial and disposal of the case, after numbering it as Sessions Trial No.195 of 2004 State Vs. Uma Kant. Learned trial Judge heard the prosecution and the appellant on point of charge and was prima-facie satisfied with the case against the appellant, accordingly, framed charges under Sections 498A, 306 IPC. Charges were read over and explained to the appellant who abjured charge and claimed to be tried.

In turn, the prosecution was required to adduce its testimony in support of the charge brought against the appellant to prove his guilt, whereupon the prosecution produced in all six witnesses whose reference is being sketched hereinbelow.

Het Ram PW-1 is the informant and the father of the deceased Usha Devi and he has proved the lodging of the first information report. Virendra Kumar PW-2 is brother of the deceased. He has testified on fact of demand of dowry and torture meted out to the deceased. Dr. R.K. Rastogi PW-3 has conducted post mortem examination on the cadaver of the deceased and has proved post mortem examination report Ext. Ka-2. Head Constable Subhash Chandra PW-4 has noted relevant entries in the Check FIR and general diary as Ext. Ka-3 and Ext. Ka-4, respectively. Nand Lal PW-5 is witness of inquest. Om Prakash Singh PW-6 is the Investigating Officer, he has detailed various steps he took in completing the investigation. He has also proved filing of the charge sheet Ext. Ka-8 against the appellant. Except as above, the Court itself examined Constable Harveer Singh as CW-1. He has testified on fact that he is acquainted with the handwriting of S.I. Patram Singh and he is also acquainted with the handwriting of Ram Sevak Sharma who had served summons in this case.

After that much, evidence for the prosecution was closed and statement of the appellant was recorded under Section 313 Cr.P.C. wherein he has claimed to have been falsely implicated in this case and the witnesses are biased and they are not telling truth. It has been submitted on behalf of the appellant that the information regarding death of the wife of the appellant was given by Jagdish @ Pappu, Ex. Pradhan of the village. On the information so given, the informant side came to the house of the appellant and they insisted for obtaining Rs.2,00,000/- when refused, this false report was lodged against the appellant. No testimony, whatsoever, has been led by the defence and the case was posted for arguments.

The case was heard on merits whereby the learned trial court convicted the appellant under Sections 498A, 306 IPC and sentenced to undergo three years rigorous imprisonment coupled with fine Rs.20,000/- under Section 498A IPC, in default of payment of fine, he will have to suffer addition six months imprisonment and ten years rigorous imprisonment coupled with fine Rs.50,000/- under Section 306 IPC, in default of payment of fine, he will have to suffer additional one year imprisonment which eventually gave rise to this appeal.

Hence, this appeal.

It has been claimed on behalf of the appellant that the fact is that the appellant is innocent and has not committed any offence. Prior to the occurrence, the only child of the deceased had expired at her parental home due to some ailment. This death shocked the deceased and she remained under mental depression and she committed suicide out of depression.

It has been further claimed on behalf of the appellant that fact is that regarding death and ailment of the child of the deceased, no previous information/intimation was given to the appellant. Subsequently, when information of the death of the child came to the knowledge to the appellant, he refused to allow his wife to again visit house of her parents. To say that she was refused to visit house of her parents on account of non-fulfillment of demand of dowry is a lame excuse and pretext to coerce the situation in order to take money from him.

It has been next claimed on behalf of the appellant that ingredient of Section 306 IPC has not been proved by the prosecution. It was incumbent and was prime consideration of the prosecution that specific abetment for committing the suicide ought to have been proved but the prosecution utterly failed to prove any abetment given by the appellant to his wife for committing suicide. Perpetration of cruelty and torture on the wife of the appellant has not been proved by the prosecution. No dowry demand, whatsoever, was ever raised by the appellant nor fact qua demand of dowry has been proved before the trial court. Testimony of Nand Lal PW-5 is clinching on the point that some demand was raised for money before Naib Tehsildar at the time of preparation of inquest report of the deceased. When the demand was not fulfilled by the appellant side, the first information report was lodged against the appellant.

It has been next claimed on behalf of the appellant that at the time of the incident, he was away from home and the dead body of the deceased Usha Devi was sent by Nand Lal. The entirety of the facts and circumstances of the case does not inspire confidence or consistency to the magnitude which may justify conviction and fact that charge stand proved beyond reasonable doubt.

Per contra, learned AGA has replied to the aforesaid arguments by submitting that each and every ingredient of Section 306 IPC has been abundantly proved demand of dowry, factum of torture and the very cause for committing suicide. More so, testimony on record itself indicative of fact that the case is one of simplicitor suicide but three injuries have also been found on the deceased Usha Devi. Injury no.1 is abraded contusion 12 x 1.5 cm upper part of neck, front side and both side, 6 cm below chin, and 4 cm below from right ear and 10 cm below the left ear. On cutting skin ecchymose present, underneath trachea ring fractured. Injury no.2 is contusion 6 x 4 cm on front side of right forearm. Injury no.3 is contusion 8 x 4 cm on front side of forearm.

Learned AGA has further submitted that testimony of the informant Het Ram PW-1 and Virendra Kumar PW-2 is most clinching on the point and in the sense that the very reason why the deceased committed suicide has been attributed to the appellant and his family members. Even the doctor witness PW-3 has not been challenged on the point of suicide being committed by the deceased. The prosecution has been able to prove its case beyond reasonable doubt. Learned trial court while acting upon the evidence on record has rightly convicted the appellant and passed just sentence.

Also considered the aforesaid submissions. On the basis of the submissions so made and rival facts so raised between the parties, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove its case within four corners under Sections 306 and 498A IPC against the appellants beyond reasonable doubt?

Bare perusal of the first information report itself suggests that clear cut allegations regarding dowry demand have been made in form of cash Rs.50,000/- and one Hero Honda motorcycle. It has been alleged that the informant along with his son went to the house of the deceased after marriage in the year 2001 and tried to console family members of the appellant including the appellant that he is not able to meet demand of dowry and then they came back. Later on, the informant sent his son to get back her daughter but the appellant refused to send the informant’s daughter due to which the deceased could not come to the informant’s house.

In view of the aforesaid background of the factual situation, what comes out in the evidence of both the witnesses of fact PW-1 and PW-2 qua demand of dowry and subsequent torture, the Court comes across testimony of Het Ram PW-1 and Virendra Kumar PW-2 who are father and brother respectively of the deceased Usha Devi who have stated in clear cut terms that after marriage of the deceased with the appellant, demand of dowry was raised in form of cash for Rs.50,000/- and Hero Honda motorcycle. Also it has been stated that in case this demand is not fulfilled, the deceased will not be sent to her parental home. When the informant side expressed inability to meet the aforesaid demand, the appellant murdered the deceased Usha Devi.

It has emerged in the testimony of both the witnesses of fact that Parmeshwari Lal who is elder son-in-law of the informant once went to take back the deceased to her parental home, he too was refused and threatened that in case dowry demand is not fulfilled, she will be killed. The information regarding death of the deceased was given by Pappu, Ex. Pradhan on 13.06.2002 at 5:00 p.m. The inquest of the deceased was held on 14.06.2002 at 12:00 noon wherein also some injuries were found on the body of the deceased. Later on, the doctor witness PW-3 noted the following ante mortem injuries on the body of the deceased:

1. Abraded contusion 12 x 1.5 cm upper part of neck, front side and both side, 6 cm below chin, and 4 cm below from right ear and 10 cm below the left ear. On cutting skin ecchymose present, underneath trachea ring fractured.

2. Contusion 6 x 4 cm on front side of right forearm.

3. Contusion 8 x 4 cm on front side of forearm.

Insofar as ante-mortem injuries caused to the deceased Usha Devi are concerned, testimony of Dr. R.K. Rastogi PW-3 is relevant to be considered. He has testified in clear cut terms that approximate time of death may be any time on 13.06.2002 and this death may be caused by knot given by Sari and further by pressing throat. Cause of death has been stated to be asphyxia due to strangulation. The post mortem examination report has been proved by the doctor as Ext. Ka-2. The doctor witness has been cross-examined wherein he has specifically stated that ante-mortem injuries may have been caused on the body of the deceased at the time of defending the body by the deceased. No specific challenge has been given to the doctor witness on the point of cause of death or fact that it was suicidal nor any explicit opinion has been given by the doctor witness that it was a case of suicide.

In this view of the matter, it is obvious that testimony of PW-1 and PW-2 read conjointly with testimony of the doctor witness, who conducted autopsy, is itself indicative all along that it cannot be said by any stretch of imagination that it is a case of suicidal death minus dowry death and it was incumbent upon the appellant under circumstances when aforesaid facts have already been proved by the prosecution, to come out with specific evidence which led the deceased to commit suicide. But the Court does not gather any such circumstance or fact which may even whisper or give any inkling to the fact of suicide being committed by the deceased.

In the statement of the appellant recorded under Section 313 Cr.P.C. he is silent on the point of cause of death and no specific statement has even been given on point that the death was caused due to suicide committed by the deceased out of frustration. No worthy reason has been assigned which led to suicide being committed by the deceased on account of any circumstance or depression on account of death of little child of the deceased prior to the incident. The learned trial Judge took genuine view of facts and circumstances and evidence on record, and recorded just finding of conviction based on material on record and awarded just sentence.

Therefore, judgment and order of conviction dated 06.10.2010 passed by Additional Sessions Judge, Court No.5, Bareilly, in Sessions Trial No.195 of 2004, State of U.P. Vs. Uma Kant, arising out of Case Crime No.610 of 2002, under Sections 498A, 306 IPC, Police Station- Bahedi, District- Bareilly, is hereby upheld. This appeal lacks merit and is accordingly dismissed.

In this case, appellant is languishing in jail, he shall serve out the remaining part of his sentences imposed on him by the trial court.

Let a copy of this order be certified to the court concerned for information and necessary follow up action.

Dt. 12.09.2017

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