Balram & Another vs State Of U.P. on 5 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgment Reserved on : 15.11.2017

Judgment Delivered on : 05.12.2017

Court No. – 61

Case :- CRIMINAL APPEAL No. – 4822 of 2010

Appellant :- Balram Another

Respondent :- State Of U.P.

Counsel for Appellant :- I.K. Chaturvedi,Gaurav Singh,Sunil Kumar

Counsel for Respondent :- Govt. Advocate,J.B. Kesarwani,Shyam Babu Vaish

Connected with

Case :- CRIMINAL APPEAL No. – 5976 of 2010

Appellant :- Narendra

Respondent :- State Of U.P.

Counsel for Appellant :- Anil Raghav,S.P. Singh Raghav

Counsel for Respondent :- Govt. Advocate,J.B.Kesharwani,Shyam Babu Vaish

Hon’ble Umesh Chandra Tripathi,J.

1. These two appeals are directed against the judgment and order dated 22.07.2010 passed by Additional Sessions Judge, Court No. 10, Ghaziabad in Sessions Trial No. 1050 of 2008 (State of U.P. v. Narendra others) arising out of Case Crime No. 231 of 2007 whereby the accused-appellants Balram and Smt. Beerbala were convicted and sentenced as follows: (a) Seven years’ imprisonment under Section 304B Indian Penal Code (hereinafter referred to as ‘IPC’), (b) Two years’ imprisonment and fine of Rs. 2000/- under Section 498A IPC, and (c) Fine of Rs. 1000/- under Section 3/4 of Dowry Prohibition Act, 1961 (hereinafter referred to as ‘DP Act’) and in case of default in payment of fine, additional imprisonment for six months each; whereas accused-appellant Narendra was convicted and sentenced as follows: (a) Ten years’ rigorous imprisonment for offence under Section 304B IPC, (b) Two years’ rigorous imprisonment and a fine of Rs. 2000/- for offence under Section 498A IPC, and (c) Two years’ rigorous imprisonment and a fine of Rs. 1000/- for offence under Section 3/4 DP Act and in case of default in payment of fine, additional imprisonment for six months. All the sentences were directed to run concurrently.

2. Brief facts of the case, as discernible from record, are that in the night intervening 07/08.05.2007 at about 01.00 A.M., the accused-appellant Narendra was awoken by weeping of his infant daughter. He saw that his wife Smt. Kamlesh was not there. He then switched on the light of the room, on which he saw his wife hanging from the pipe attached to the ceiling of the room with a noose made of ‘chunni’ (a kind of scarf typically worn by Indian women). He got scared and immediately opened the noose from her neck and brought her down. He saw that she was dead.

3. After about ten hours of the occurrence on 08.05.2007 at about 11.05 A.M., the information of the incident was given by accused-appellant Narendra at Police Station- Muradnagar and the same was taken down in the General Diary at serial no. 13. It was marked as Ex.Ka.3.

4. On the basis of the aforesaid information, the police went to the place of occurrence (Ordnance Factory, Muradnagar, Quarter No. 67/05) and saw Smt. Kamlesh lying dead on the bed. Her body was covered by a bed sheet. Her both eyes and mouth were closed. Fists were semi-opened. She was wearing a red-coloured blouse and petticoat. On the nose, she was wearing a pearl made of yellowish substance. On both the wrists, she was wearing a pair of three red-coloured bangles. On both the legs, she was wearing a pair of ‘bichhua’ (toe ring) and one ‘payal’ (anklet) each. Wounds were seen on her neck.

5. Inquest witnesses were selected. Inquest on the body of the deceased was conducted. In the opinion of inquest witnesses, death was caused due to hanging. Inquest report (panchayatnama) was prepared at about 01.30 P.M. and the same was marked as Ex.Ka.2.

6. In the opinion of the inquest witnesses, it was thought proper to send the dead body for autopsy. In the process, relevant papers were prepared- letter for post mortem (Ex.Ka.3), photo lash (Ex.Ka.4). The dead body was sealed. Specimen seal was prepared and the same was marked as Ex.Ka.5.

7. Post mortem on the cadaver of the deceased Smt. Kamlesh was conducted the same day, i.e. on 08.05.2007 at about 03.30 P.M. by Dr. Vipin Chandra Gupta (P.W.4), who noted eight ante-mortem injuries on the person of the deceased- (1) Ligature mark on the front and right side of neck above the thyroid cartilage. There was congestion in tissue. (2) Contused swelling starting from both sides of face up to chin (3) Contusion on both sides of chest (4) Contusion on the outer part of right arm (5) Contusion on the outer part of right side waist (6) Contusion on the front side of left shoulder (7) Contusion mark on the outer part of left side waist (8) Contusion mark on the rear portion of left thigh.

Internal Examination:

On internal examination, it was found that the brain and brain membrane, lungs and lung membranes, wind pipe, liver, spleen and kidney were congested. Digested food was found in the stomach as well as small intestine. In the opinion of doctor, death of the deceased was caused due to asphyxia as a result of strangulation. On dissection of the body, it was found that the deceased died about half day before.

The post mortem report is on record and marked as Ex.Ka.9.

8. On 08.05.2007, the police took the ‘chunni’ (scarf) from the spot of occurrence. Recovery memo was prepared for it and the same was marked as Ex.Ka.8.

9. On 12.05.2007, a written report (Ex.Ka.1) was filed by informant Prakash Singh (P.W.1), father of the deceased, contents whereof were taken down in the FIR at Police Station- Muradnagar on 12.05.2007 at 06.10 P.M. in Case Crime No. 231 of 2007 under Sections 498A and 304B IPC. The chik FIR is on record and marked as Ex.Ka.10. On the basis of entry so made in the chik FIR, relevant entry was made in the G.D. at serial no. 035 at 6.10 P.M. (18.10 hours) on 12.05.2007 at the same police station under aforesaid sections of IPC and a case was registered against the accused persons. The relevant G.D. entry is on record as marked as Ex.Ka.11.

10. As per version of the F.I.R., marriage of Smt. Kamlesh with appellant Narendra s/o Murari Lal r/o Village Nangalia, District- Bulandshahrnhbg was solemnized on 28.11.2004, temporarily residing in Sector 67, Gali No. 3, near Shiv Mandir, Muradnagar, as per hindu rituals. The father of deceased fulfilled the demand of dowry so raised by the bridegroom side more than his capacity. But still the bridegroom and his family members, from the day of marriage started demanding Rs. 2 lakhs from the bride and they even assaulted her saying that they were not satisfied with the dowry given by her father. They also threatened to kill her if their dowry demand is not fulfilled by her father. Smt. Kamlesh then told her father about her being assaulted by the bridegroom and his family members when she refused to give them Rs. 2 lakhs. On this information, the informant (father of Smt. Kamlesh) and his family members went to the house of accused-appellant Narendra and said that they are unable to pay the money demanded by them due to poverty. The appellant and his family members then stopped harassing Smt. Kamlesh. In the meantime, Smt. Kamlesh was blessed with a daughter. On 08.05.2007 at about 02.30 A.M., the informant was telephonically informed by appellant Balram that his daughter is absconding from the house. On this information, the mother and the brother of Smt. Kamlesh reached her house, where they saw Smt. Kamlesh lying dead on the bed with wounds and contusions on her body. They were told that Smt. Kamlesh had committed suicide.

11. The Investigating Officer recorded statement of various witnesses and also prepared site plan on 20.05.2007. The site plan is on record and marked as Ex.Ka.12. The Investigating Officer also took in his possession the wedding card of accused-appellant Narendra and his wife deceased Smt. Kamlesh and marked it as ‘8Ga’. The wedding card shows the date of marriage as 18.11.2004.

12. After completion of investigation, in Investigating Officer filed two separate charge-sheets – one against Narendra and Beerbala (accused-appellants) (Ex.Ka.13) and other relatives and another against accused-appellant Balram (Ex.Ka.14) under Sections 498A, 304B IPC and Section 3/4 DP Act.

13. Thereafter, committal proceedings took place and the case was committed to the Court of Sessions. As a sequel to that, the case was made over for trial and disposal to the court of Additional Sessions Judge, Court No. 10, Ghaziabad. Accused-appellants were heard on point of charge and the trial court was prima facie satisfied with the case against them. Therefore, it framed charge against them under Sections 498A, 304B IPC and Section 3/4 DP Act. Charges were read over and explained to the accused, who abjured the charges and claimed to be tried.

14. The prosecution in order to prove guilt of the accused examined as many as seven prosecution witnesses, out of whom father of deceased informant Prakash Singh (P.W.1) and brother of deceased Udayveer Singh (P.W.2) were examined as witnesses of fact, while Sub-Inspector Madan Singh (P.W.3), Dr. Vipin Chandra Gupta (P.W.4), Sub-Inspector Brajpal Singh (P.W.5), Circle Officer (C.O.) Ram Singh (I.O.) (P.W.6) and C.O. Uday Shankar Singh (first I.O.) (P.W.7) were examined as formal witnesses.

15. Except as above, no other testimony was adduced, therefore, evidence of the prosecution was closed and statements of the accused were recorded under Section 313 of Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’), wherein, they claimed to have been falsely implicated in this case.

16. In their statements recorded under Section 313 Cr.P.C., accused-appellants Narendra, Balram and Beerbala claimed that the prosecution evidence was false and stated as under:

(a) Accused-appellant Narendra stated that his wife Smt. Kamlesh had gone on a scooter in search of tuition, where she met with an accident and had received wounds. The scooter was also damaged. Due to this incident, an altercation had taken place between him and his wife, due to which she committed suicide.

(b) Accused-appellant Balram stated that in the intervening night of 07/08.05.2007 at the time of the incident, he had gone to attend the marriage ceremony of his friend Mahesh Bhati in Village Hasanpur, District- Bulandshahr and his wife had gone to her paternal home.

(c) Accused-appellant Beerbala stated that on account of vacation of her children, she had gone to her paternal home (‘maika’) on 03.05.2007 and she was not present in the her home in the intervening night of 07/08.05.2007 when the incidence took place.

17. In turn, the defence examined as many as eight defence witnesses- Shyoraj Singh (D.W.1), Smt. Usha (D.W.2), Mahesh (D.W.3), Dr. Alka Rastogi (D.W.4), Soran Singh (D.W.5), Deepa (D.W.6), Rajpal Singh (D.W.7) and Sachin Kumar (D.W.8).

18. Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and passed the impugned judgment and order.

19. Aggrieved by the order of the learned trial Judge, the appellants have preferred the instant appeals.

20. Heard Sri Sunil Kumar, learned counsel for the appellants and Sri L.D. Rajbhar, learned Additional Government Advocate for the State of Uttar Pradesh.

21. Learned counsel for the appellants contended that death of deceased Smt. Kamlesh was suicidal and not homicidal. No injury is shown in the inquest report. From the prosecution evidence, demand of dowry is not proved. Inquest report has been prepared on the information of accused-appellant Narendra husband of Smt. Kamlesh. At the time of inquest report, mother and Udayveer, brother of deceased Smt. Kamlesh were present, even though they have not made any complaint about demand of dowry. First information report has been lodged after four days of the occurrence. Cause of delay in lodging the first information report is not explained by the prosecution. The prosecution has utterly failed to prove that just before her death, the deceased Smt. Kamlesh was subjected to cruelty and harassment by her husband or any relative of the husband in connection with demand of dowry. The prosecution version is not natural. The learned trial court has passed the impugned order without properly appreciating the evidence. The prosecution has failed to prove the guilt of the appellants beyond reasonable doubt.

22. Apart from arguing on the merits of the case, learned counsel for the appellants further contended that there is no evidence against the appellants Balram and his wife Smt. Beerbala. If court comes to the conclusion about guilt of appellant Narendra, then a lenient view should be taken in sentencing him and his sentence should be reduced to minimum sentence prescribed under Section 304B IPC, that is to say, seven years.

23. Learned A.G.A. contended that there is no infirmity or illegality in the impugned order passed by the trial court and as such the appeals are liable to be dismissed.

24. To appreciate the arguments of the parties and also the evidence, it is necessary to look into the statutory provisions of Section 304B IPC and Section 113B of the Evidence Act (hereinafter referred to as ‘the Act’). Provisions of Section 304B IPC reads as follows:

[304B. Dowry death.–(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation.–For the purpose of this 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.]

Section 113B of the Act reads as follows:

[113B. Presumption as to dowry death.–When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation.–For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).]

25. As per definition of dowry death under Section 304B IPC and the wording in the presumptive Section 113B of the Act, if it is proved that death of woman is caused by any burn 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 (i) She was subjected to cruelty or harassment by her husband or his relatives, or (ii) Such cruelty or harassment was for, or in connection with, demand of dowry, or (iii) Such cruelty or harassment was soon before her death; then it becomes obligatory on the court to raise a presumption that accused caused dowry death.

26. As per post mortem report Ex.Ka.9 and statement of P.W.4 Dr. Vipin Chandra Gupta, cause of death of deceased Smt. Kamlesh was asphyxia as a result of strangulation. This shows that death of the deceased in homicidal and not suicidal. Learned counsel for the appellant contended that the deceased committed suicide by hanging herself. P.W.4 Dr. Vipin Chandra Gupta in his cross-examination specifically denied that the death of deceased was caused by hanging and stated before court that death of deceased was not possible by hanging because in the case of hanging, there will be white subcutaneous tissues under the mark, which will not be in the case of strangulation. The inference drawn by Dr. Vipin Chandra Gupta P.W.4 is supported by Modi Medical Jurisprudence.

27. Here it must also be noted that out of eight injuries, seven injuries on the person of the deceased were contusion and contused swelling. Contusion and contused swelling may not have occurred in accident. In the accident, there must also be abrasion or laceration on the contusion.

28. It is further contended by learned counsel for the appellant that in inquest report Ex.Ka.2, except ligature mark on the neck, no other injury has been mentioned. The deceased was a lady. Her body was seen by Smt. Devaki Joshi. She was not an expert and it was not possible for her to be aware about the fact that she must give special attention to the ante-mortem injuries on the dead body. For a layman, it is very common to ignore contusion on the dead body. The ante-mortem injuries caused to the deceased has been admitted by appellant Narendra in his statement under Section 313 Cr.P.C.

29. The size of contusions on the dead body were:- 19 cm. x 12 cm., 28 cm. x 19 cm., 14 cm. x 03 cm., 40 cm. 10 cm., 25 cm. x 10 cm., 45 cm. x 20 cm. and 15 cm. x 10 cm. Learned counsel for the appellant contended that this size of contusion may not have been caused by a blunt object such as a stick (‘lathi’) and ‘danda’. From the prosecution side, no one has seen the occurrence, therefore, it was not possible for any witness of the prosecution to say that injury to Smt. Kamlesh have been caused by ‘lathi’ and ‘danda’. It is possible that these injuries might have not been caused by ‘lathi’ and ‘danda’, but caused by some other blunt object of a considerably good width. Only because of this reason, it cannot be said that these injuries have not been caused to deceased Smt. Kamlesh before her death.

30. Dr. Vipin Chandra Gupta had specifically stated that these injuries might have been caused to the deceased before half day of post mortem. Post mortem was conducted on 08.05.2007 at 03.30 P.M. This means that these injuries had been caused to the deceased in the intervening night of 07/08.05.2007. Therefore, the contention of learned counsel for the appellant that deceased Smt. Kamlesh has sustained injury in accident cannot be relied on.

31. Prosecution witness P.W.1 Prakash Singh and P.W.2 Udayveer Singh have proved this fact that marriage of Smt. Kamlesh was solemnized with accused-appellant Narendra on 28.11.2004. This fact has also been admitted by accused in their statement under Section 313 of Cr.P.C. The deceased died in the intervening night of 07/08.05.2007. Therefore it is proved beyond doubt that deceased Smt. Kamlesh died within seven years of her marriage and her death was caused otherwise than under normal circumstances.

32. Now, it has to be seen that just before her death, deceased Smt. Kamlesh was subjected to cruelty or harassment by her husband and any relative of husband in connection with demand of dowry. This element and burden of prove in case of dowry deaths have been dealt with in detail by Hon’ble The Apex Court in Sher Singh @ Partapa v. State of Haryana 2015 (89) ACC 288 (SC). The Apex Court held as under:

12 In our opinion, it is beyond cavil that where the same word is used in a section and/or in sundry segments of a statute, it should be attributed the same meaning, unless there are compelling reasons to do otherwise. The obverse is where different words are employed in close proximity, or in the same section, or in the same enactment, the assumption must be that the legislature intended them to depict disparate situations, and delineate dissimilar and diverse ramifications. Ergo, ordinarily Parliament could not have proposed to ordain that the prosecution should “prove” the existence of a vital sequence of facts, despite having employed the word “shown” in Section 304B. The question is whether these two words can be construed as synonymous. It seems to us that if the prosecution is required to prove, which always means beyond reasonable doubt, that a dowry death has been committed, there is a risk that the purpose postulated in the provision may be reduced to a cipher. This method of statutory interpretation has consistently been disapproved and deprecated except in exceptional instances where the syntax permits reading down or reading up of some words of the subject provisions.

13 In Section 113A of the Evidence Act Parliament has, in the case of a wife’s suicide, “presumed” the guilt of the husband and the members of his family. Significantly, in Section 113B which pointedly refers to dowry deaths, Parliament has again employed the word “presume”. However, in substantially similar circumstances, in the event of a wife’s unnatural death, Parliament has in Section 304B “deemed” the guilt of the husband and the members of his family. The Concise Oxford Dictionary defines the word “presume” as: supposed to be true, take for granted; whereas “deem” as: regard, consider; and whereas “show” as: point out and prove. The Black’s Law Dictionary (5th Edition) defines the word “show” as- to make apparent or clear by the evidence, to prove; “deemed” as- to hold, consider, adjudge, believe, condemn, determine, construed as if true; “presume” as- to believe or accept on probable evidence; and “Presumption”, in Black’s, “is a rule of law, statutory or judicial, by which finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted.” The Concise Dictionary of Law, Oxford Paperbacks has this comprehensive yet succinct definition of burden of proof which is worthy of reproduction:

“Burden of Proof: The duty of a party to litigation to prove a fact or facts in issue. Generally the burden of proof falls upon the party who substantially asserts the truth of a particular fact (the prosecution or the plaintiff). A distinction is drawn between the persuasive (or legal) burden, which is carried by the party who as a matter of law will lose the case if he fails to prove the fact in issue; and the evidential burden (burden of adducing evidence or burden of going forward), which is the duty of showing that there is sufficient evidence to raise an issue fit for the consideration of the trier of fact as to the existence or non-existence of a fact in issue.

The normal rule is that a defendant is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case by establishing both the actus reus of the crime and the mens rea. It must first satisfy the evidential burden to show that its allegations have something to support them. If it cannot satisfy this burden, the defence may submit or the judge may direct that there is no case to answer, and the judge must direct the jury to acquit. The prosecution may sometimes rely on presumptions of fact to satisfy the evidential burden of proof (e.g. the fact that a woman was subjected to violence during sexual intercourse will normally raise a presumption to support a charge of rape and prove that she did not consent). If, however, the prosecution has established a basis for its case, it must then continue to satisfy the persuasive burden by proving its case beyond reasonable doubt (see proof beyond reasonable doubt). It is the duty of the judge to tell the jury clearly that the prosecution must prove its case and that it must prove it beyond reasonable doubt; if he does not give this clear direction, the defendant is entitled to be acquitted.

There are some exceptions to the normal rule that the burden of proof is upon the prosecution. The main exceptions are as follows. (1) When the defendant admits the elements of the crime (the actus reus and mens rea) but pleads a special defence, the evidential burden is upon him to prove his defence. This may occur, the example, in a prosecution for murder in which the defendant raises a defence of self-defence. (2) When the defendant pleads automatism, the evidential burden is upon him. (3) When the defendant pleads insanity, both the evidential and persuasive burden rest upon him. In this case, however, it is sufficient if he proves his case on a balance of probabilities (i.e. he must persuade the jury that it is more likely that he is telling the truth than not). (4) In some cases statute expressly places a persuasive burden on the defendant; for example, a person who carries an offensive weapon in public is guilty of an offence unless he proves that he had lawful authority or a reasonable excuse for carrying it”.

14 As is already noted above, Section 113B of the Evidence Act and Section 304B of the IPC were introduced into their respective statutes simultaneously and, therefore, it must ordinarily be assumed that Parliament intentionally used the word ‘deemed’ in Section 304B to distinguish this provision from the others. In actuality, however, it is well nigh impossible to give a sensible and legally acceptable meaning to these provisions, unless the word ‘shown’ is used as synonymous to ‘prove’ and the word ‘presume’ as freely interchangeable with the word ‘deemed’. In the realm of civil and fiscal law, it is not difficult to import the ordinary meaning of the word ‘deem’ to denote a set of circumstances which call to be construed contrary to what they actually are. In criminal legislation, however, it is unpalatable to adopt this approach by rote. We have the high authority of the Constitution Bench of this Court both in State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory AIR 1953 SC 333 and State of Tamil Nadu v. Arooran Sugars Limited (1997) 1 SCC 326, requiring the Court to ascertain the purpose behind the statutory fiction brought about by the use of the word ‘deemed’ so as to give full effect to the legislation and carry it to its logical conclusion. We may add that it is generally posited that there are rebuttable as well as irrebuttable presumptions, the latter oftentimes assuming an artificiality as actuality by means of a deeming provision. It is abhorrent to criminal jurisprudence to adjudicate a person guilty of an offence even though he had neither intention to commit it nor active participation in its commission. It is after deep cogitation that we consider it imperative to construe the word ‘shown’ in Section 304B of the IPC as to, in fact, connote ‘prove’. In other words, it is for the prosecution to prove that a ‘dowry death’ has occurred, namely, (i) that the death of a woman has been caused in abnormal circumstances by her having been burned or having been bodily injured, (ii) within seven years of a marriage, (iii) and that she was subjected to cruelty or harassment by her husband or any relative of her husband, (iv) in connection with any demand for dowry and (v) that the cruelty or harassment meted out to her continued to have a causal connection or a live link with the demand of dowry. We are aware that the word ‘soon’ finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304B or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt. It seems to us that what Parliament intended by using the word ‘deemed’ was that only preponderance of evidence would be insufficient to discharge the husband or his family members of their guilt. This interpretation provides the accused a chance of proving their innocence. This is also the postulation of Section 101 of the Evidence Act. The purpose of Section 113B of the Evidence Act and Section 304B of the IPC, in our opinion, is to counter what is commonly encountered – the lack or the absence of evidence in the case of suicide or death of a woman within seven years of marriage. If the word “shown” has to be given its ordinary meaning then it would only require the prosecution to merely present its evidence in Court, not necessarily through oral deposition, and thereupon make the accused lead detailed evidence to be followed by that of the prosecution. This procedure is unknown to Common Law systems, and beyond the contemplation of the Cr.P.C.

33. According to the principle laid down by Hon’ble The Apex Court, once prosecution proved that where death of woman has occurred otherwise than under normal circumstance within seven years of her marriage and she was subjected to cruelty and harassment by her husband and the relatives of her husband soon before her death in connection with demand of dowry, then heavy burden of proof lies upon accused to adduce evidence dislodging his guilt, beyond reasonable doubt. In the present case, accused-appellant Narendra has failed to prove beyond reasonable doubt that his wife Smt. Kamlesh committed suicide due to depression.

34. P.W.1 Prakash Singh, P.W.2 Udayveer Singh have stated before court that after 2-3 days of marriage, accused-appellant Narendra and his relative demanded Rs. 2 lakhs from Smt. Kamlesh for establishing a curtain factory. On her refusal, they assaulted her. Learned counsel for the appellant, quoting the definition of dowry, contended that demand of Rs. 2 lakhs from Smt. Kamlesh for establishing a curtain factory is not dowry. Dowry is defined under Section 2 of the Dowry Prohibition Act, 1961 as follows:

2 Definition of ”dowry’. –In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person,

at or before 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

3 [***]Explanation II.– The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

35. Learned counsel for the appellant relied on the opinion of Hon’ble The Apex Court in the case of Vipin Jaiswal v. State of U.P. 2013 (82) ACC (61). The Court held as follows:

“….In our view, both the Trial Court and the High Court failed to appreciate that the demand, if at all made by the appellant on the deceased for purchasing a computer to start a business six months after the marriage, was not in connection with the marriage and was not really a ‘dowry demand’ within the meaning of section 2 of the Dowry Prohibition Act, 1961….”

In the fact of that particular case, the Hon’ble Apex Court observed that demand was made for purchasing a computer to start a business, six months after the marriage, was not in connection with the marriage and was not really a dowry demand.

36. Facts of this case are totally different. In this case, after three days of marriage, accused-appellant Narendra and his relatives started demanding Rs. 2,00,000/- from the deceased, although they said to the deceased that this money was being demanded for establishing a curtain factory and that curtain factory will be managed by the deceased. Only because husband and his relatives promised her that money is required for establishing a factory and that factory will be managed by her, it cannot be said that demand is not in connection with dowry. After three days of the marriage, demand was being made to the bride and that demand was continuing and on refusal, she was being beaten by them. In such circumstances, it is apparent that demand was definitely in connection with marriage and it is a case of dowry demand.

37. From the post mortem report and statement of doctor, it is evident that deceased was brutally beaten just before her death and she was strangulated. Accused-appellant Narendra in his statement recorded under Section 313 of Cr.P.C. admitted this fact that deceased had died in his room, he was also sleeping in that room. The Hon’ble Apex Court in Sher Singh @ Partapa v. State of Haryana 2015 (supra) held as under:

10 It is already empirically evident that the prosecution, ubiquitously and in dereliction of duty, in the case of an abnormal death if a young bride confines its charges to Section 304B because the obligation to provide proof becomes least burdensome for it; this is the significance that attaches to a deeming provision. But, in any death other than in normal circumstances, we see no justification for not citing either Section 302 or Section 306, as the circumstances of the case call for. Otherwise, the death would logically fall in the category of an accidental one. It is not sufficient to include only Section 498A as the punishment is relatively light. Homicidal death is chargeable and punishable under Sections 302 and 304B if circumstances prevail triggering these provisions. This Court has repeatedly reiterated this position, including in State of Punjab v. Iqbal Singh, 1991 (3) SCC 1 and quite recently in Jasvinder Saini v. State (Govt. of NCT of Delhi) 2013 (7) SCC 256.

38. The present case is also that of homicidal death. Charge under Section 302 of IPC must have been framed by the trial court, but unfortunately, in the present case, the trial court has not framed charge under Section 302 IPC against accused-appellants.

39. The Hon’ble Apex Court in Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 held that if accused gives a false answer in his statement under Section 313 Cr.P.C., then it will be a additional circumstance to prove the guilt of the accused. If a fact is in special knowledge of accused and he fails to disclose it, an adverse inference has to be drawn against him under Section 106 of the Act.

40. In this particular case, from the evidence on record, it is proved beyond reasonable doubt that death of deceased was caused by strangulation after assaulting her. In his statement under Section 313 Cr.P.C., accused-appellant Narendra stated that she (deceased) had committed suicide. The deceased died in the same room in which accused-appellant Narendra Singh was sleeping, then it was the duty of Narendra to explain how the deceased died. The explanation of Narendra about the death of deceased is false. In such circumstances, adverse inference of guilt of accused Narendra shall be drawn.

41. Prosecution witnesses admitted this fact that accused-appellant Narendra donated blood to the brother of the deceased when he was ill. After marriage of deceased Smt. Kamlesh with accused-appellant Narendra, cousin (sister) of the deceased Smt. Usha was married to appellant Narendra’s brother Kamod. In that marriage, there was no demand of dowry. Smt. Usha is leading a happy married life. On these grounds, learned counsel for the appellant contended that there was no reason for demanding dowry by the appellant. In matrimonial relations, sometimes the relation between the couple becomes bitter and after sometime it comes back to normal and the relation becomes cordial. Appellant’s brother Kamod was living happily with his wife. Only because Kamod has not harassed his wife for demand of dowry, it cannot be said that appellant had also not harassed his wife deceased Smt. Kamlesh for the same. Similarly, on the basis of donation of blood by the appellant Narendra to deceased’s brother at the time of his illness, it cannot be said that the appellant had never demanded any dowry from the deceased.

42. Smt. Kamlesh died on the intervening night of 07/08.05.2007, but the first information report has been lodged on 12.05.2007 with a delay of four days. The brother, mother and father of deceased were present at the time of inquest, even though they did not move any complaint to the police about the demand of dowry. P.W.1 Prakash Singh explained that the police was not lodging the first information report. The explanation of P.W.1 may be wrong. In this particular case, delay in lodging F.I.R. does not affect the prosecution case. It may be possible that father of the deceased P.W.1 may have been convinced with the explanation of his son-in-law accused-appellant Narendra that his daughter died in accident, but after post mortem report, when he comes to know that his daughter was brutally killed, then he may have lodged F.I.R. In matrimonial cases, such delay in lodging F.I.R. is always possible. In such cases, the parents of the deceased always remain in various dilemmas.

43. Inquest report has been prepared on information of applicant Narendra. On this basis, innocence of Narendra cannot be presumed. He informs the police about the death of his wife after 10 hours of the incident. However, as per chik F.I.R. Ex.Ka.10., Police Station- Muradnagar is at a distance of 2 km. from the spot. It is also an additional circumstance against him.

44. Learned counsel for the appellant further contended that prosecution has failed to prove that soon before death of Smt. Kamlesh, there was demand of dowry by the accused. To convict an accused under Section 304B IPC, it is not necessary for prosecution to prove that soon before her death, there was demand of dowry. It will be sufficient for prosecution to prove that soon before death of deceased, she was subjected to cruelty or harassment for any demand of dowry or in connection with any demand of dowry. In this particular case, deceased was brutally beaten soon before her death. This shows that she was subjected to cruelty soon before her death.

45. P.W.1 Prakash Singh admitted in his cross-examination that six months before the death of deceased Smt. Kamlesh, accused-appellant Narendra along with this wife was living in Muradnagar at Balram’s residence. Appellant Balram was working in a factory at Muradnagar. That residence was allotted to him by the factory. P.W.1 Prakash Singh also admitted this fact that accused-appellant Narendra was living with his wife Smt. Kamlesh in a separate room that had a tin roof. All his household goods were kept in that room. They cooked their food also in that room. This means that accused-appellant Narendra and his wife Smt. Kamlesh were living separately from his brother Balram and his wife Beerbala. Both the brothers Narendra and Balram were living separately. Kitchens of appellant Narendra and appellant Balram were also separate. Appellant Narendra and his wife Smt. Kamlesh were living separately in the quarter alloted to his brother Balram only before six months of the incident. In such circumstances, it cannot be said that appellant Balram and his wife Beerbala were also demanding dowry from deceased Smt. Kamlesh or harassing her for any demand of dowry. Since appellant Balram and his wife Beerbala were living in a separate room, in such circumstances, it cannot be said that death of deceased Smt. Kamlesh was in their special knowledge. Therefore, they are not bound to explain the death of Smt. Kamlesh.

46. For the reasons aforesaid, guilt of accused-appellant Narendra for the offences punishable under Sections 498A, 304B IPC and Section 4 of the Dowry Prohibition Act is proved beyond reasonable doubt. Accused-appellants Balram and Beerbala are entitled to be given benefit of doubt for offences punishable under Sections 498A, 304B IPC and Section 4 of the Dowry Prohibition Act.

47. As far as reduction of sentence of accused-appellant Narendra is concerned, it is not a case of suicidal death, but a case of homicidal death. In such circumstances, it is not justified to reduce his sentence.

48. Accordingly,

(i) Criminal Appeal No. – 4822 of 2010 (Balram and Another v. State of U.P.) is allowed. Conviction of appellants Balram and Smt. Beerbala under Sections 498A, 304B IPC and Section 3/4 of DP Act is hereby set aside and they are acquitted.

(ii) Criminal Appeal No. – 5976 of 2010 (Narendra v. State of U.P.) is dismissed. Conviction and sentence of appellant Narendra passed by Additional Sessions Judge, Court No. 10, Ghaziabad under Sections 498A, 304B IPC and Section 3/4 DP Act are hereby upheld.

49. Appellants Balram and Beerbala are on bail. They need not surrender. Their bail bonds are cancelled and sureties stand discharged.

50. Appellant Narendra is also on bail. His bail bonds stand cancelled. He shall be taken into custody forthwith to undergo the remaining part of the sentence awarded to him.

51. Office is directed to send a certified copy of this order to Sessions Judge, Ghaziabad for its compliance. Let the lower court record be remitted back to the court concerned.

Order Date :- 05.12.2017

I. Batabyal

[Umesh Chandra Tripathi,J.]

 

 

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