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Santosh vs State Of U.P. on 12 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

A.F.R.

Court No. – 31

Case :- CRIMINAL APPEAL No. – 1876 of 2003

Appellant :- Santosh

Respondent :- State Of U.P.

Counsel for Appellant :- R.N.S.Chauhan

Counsel for Respondent :- Govt.Advocate

Hon’ble Dinesh Kumar Singh,J.

1. The present appeal has been preferred by the accused/appellant, Santosh against the judgement and order dated 31.10.2002 whereby the accused/appellant has been convicted and sentenced under Section 498A IPC for a period of 2 years rigorous imprisonment with fine of Rs. 2,000/- and in the event of non payment of fine, additional 6 months rigorous imprisonment. He has also been convicted and sentenced under Section 304B IPC for 10 years rigorous imprisonment with fine of Rs. 5000/- and in default of payment of fine one year additional rigorous imprisonment. It was further directed that both the sentences will run concurrently.

2. The prosecution case as imerges from the record is that on 1.11.1998 at 9:00 AM Bauwn, brother of the accused/appellant reached the residence of the complainant/Ramnath, father of the deceased Geeta and informed him that Geeta had died out of burn injuries. On receiving this information, the complainant and other family members reached the residence of the accused/appellant and from looking at the dead body of the deceased, Geeta they believed that husband, brother in law, father in law and two sisters in law of the deceased Geeta assaulted the deceased and set her on fire.

3. It was also alleged in the FIR Exhibit ka-1 that the accused/appellant Santosh used to torture the deceased for dowry and the entire family had been demanding dowry. They had been pestering the deceased to bring money from her parents for setting up a business. The parents twice gave the money but their greed increased and they started demanding Rs.50,000/- more whereas at the time of marriage, the parents and relatives gave many articles such as scooter, bed, sofa, utensils, gold and silver jewellery etc., and performed the marriage with fanfare. The complainant believed that mother in law Munni, father in law Hari Shankar, husband Santosh, brother in law Bauwn, and two sisters in law namely Bittan and Rashmi had killed the deceased. After Investigation, charge-sheet was filed and the accused namely Munni Devi, Harishankar, Bauwn@ Sandeep, Ms. Bitton @ Neetu and Mr. Rashmi were charged under Sections 302, 304B IPC.

4. The prosecution produced as many as 9 documents namely; FIR Exhibit Ka-1, Chik report Exhibit Ka-2 copy of the G.D. Exhibit Ka-3, Inquest report Exhibit Ka-4, Post Mortem report Exhibit Ka-5, Site map Exhibit Ka-6, Sample of earth Exhibit Ka-7, Marriage Card Exhibit Ka-8 and Charge-sheet Exhibit Ka-9 to prove its case besides witnesses P.W.-1 Ramnath, father of the deceased, P.W.-2 Arun Kumar, brother of the deceased, P.W.3 Rajendra Singh Head Constable, P.W. 4 Arun Kumar Mishra, Naib Tehsildar, P.W. 5 Dr. Rajiv Khare and P.W.6 Shri Ram Charan C.O.

5. In their statements recorded under section 313 CrPC, the accused denied any dowry demand by them and said that the witnesses had falsely deposed and they had been wrongly implicated. They further said that the marriage of the deceased with the accused/appellant took place more than 7 years ago.

6. Ramnath, the complainant, P.W. 1 reiterated the FIR version of the incident and further said that the marriage between the deceased Geeta and the accused/appellant Santosh was performed on 26.11.1995. He said that in the first year of marriage Geeta had come twice-thrice and stayed with them but she did not make any complain regarding demand of dowry or any other complain against her in laws. A girl child was born after one year of the marriage and at that time she said to him that there was requirement of some money and her in-laws were torturing her. He also said that the deceased informed him that her husband was unemployed. The deceased asked him to give Rs.10,000/- He said to her that next time when she would visit he would give Rs.10,000/-. Next time when she visited again, he gave Rs.10,000/-. After 4-6 months, she again visited her parents but she did not make any complaint. In the third year marriage, a baby boy was born to her. After the birth of the second child, the deceased and accused/appellant visited and asked him to give Rs.50,000/- so that they would start living separately from other members of the family. He said that the deceased used to ask him to give money so that the accused/appellant can set up some business as he was unemployed.

7. P.W. 2, Arun Kumar said that the marriage was performed on 26.11.1995. He further said that before marriage, the accused/appellant was running a shop and after 6 months of the marriage this shop was given to the other son by the father of the accused/appellant. He said that his brother in law was unemployed and for this reason his sister was disturbed and annoyed. He said two children were born out of the wedlock. The children were with the accused/appellant. Whenever the deceased visited her paternal home, she would ask for money to be given to the accused/appellant for setting up business. He denied that her death was accidental.

8. P.W.1, Ramnath was again examined and he was confronted with marriage card produced by the accused/appellant. In this marriage card, date of the marriage was mentioned as 19.05.1990. The witness said that the marriage cards were also got printed by in laws of the deceased and the card shown to him was for the marriage of his daughter. This card was marked as Exhibit Kha-1.

9. With respect to the incident, only P.W. 1 and P.W. 2 were examined and no other witnesses of the neighborhood was examined.

10. P.W. 5, Dr. Rajiv Khare in his deposition said that on 1.1.1998 he was posted in District Hospital, Unnao and he performed the post mortem of the deceased, Geeta. He said that the cause of death was antemortem burn injuries. But this witness did not say what was the reason of fire such as kerosene oil etc., he could not express any opinion whether she was put on fire or she set herself on fire.

11. P.W. 3, Rajendra Singh said that on the basis of Exhibit Ka-1 chik report Exhibit Ka-2 was prepared and he made the entries in G.D. The copy of which marked as Exhibit Ka-3.

12. P.W.4, Shri Arun Kumar Mishra, Naib Tehsildar who conducted inquest proceedings proved the inquest report. It was marked as Exhibit Ka-5. The brother and sister of the deceased were the witnesses of the inquest proceedings who signed the inquest report and they did not say anything about subjecting the deceased to cruelty by the accused/appellant for dowry demand. The inquest witnesses were of the opinion that the deceased died due to burn injuries.

13. P.W. 6, Shri Ram Charan, C.O. who conducted the investigation proved the site map, sample of earth etc., which were marked as Exhibit ka-6 and Exhibit ka-7 respectively. He said that he recovered the marriage card which was marked as article Exhibit Ka-1. He proved the charge-sheet which was marked as Exhibit Ka-9.

14. The Trial Court after considering the evidence on record arrived at a finding that the date of marriage was 26.11.1995 not of 19.05.1990 as mentioned in the Exhibit Kha-1 produced by the accused/appellant. The death of the deceased was within 7 years of the marriage. From the statements of P.W. 1 and P.W. 2, the Trial Court concluded that there was no evidence with respect to the demand of dowry except that the deceased told her father that the accused/appellant was demanding Rs.50,000/-. There was no proof of any cruelty for dowry demand by the accused/appellant and, therefore, the Trial Court acquitted all other accused except accused/appellant of all charges. Only the accused/appellant was convicted under Sections 498A and 304B IPC on the ground that as the accused/appellant was unemployed and, therefore, under the circumstances in all probabilities he would have asked his deceased wife that if the money was arranged, they could stay separately and do some business. Since she did not receive any corporation from her parents side, she committed suicide in distress. As the death occurred within a period of 7 years from the marriage, the Trial Court convicted the accused/appellant under Sections 498A and 304 B IPC.

15. The following questions arise in the present appeal which need to be considered:-

(i) Weather under the facts and circumstances it can be said that the accused appellant demanded dowry;

(ii) Whether the death of the deceased Geeta was a dowry death or suicide;

(iii) Whether if the death of the deceased Geeta was a suicide, should the accused/appellant be held guilty for abetting the suicide.

16. The Trial Court from the evidence on record has not recorded any definite finding of dowry demand. From the statements of the P.W. 1 and P.W. 2, it is clear that the deceased, Geeta  requested them to arrange Rs.50,000/- for setting up some business for her husband as he was unemployed. This demand of Rs.50,000/- is not mentioned in the FIR. In the FIR general allegations of dowry demand and cruelty were made. Even believing it to be true that the accused/appellant demanded Rs.50,000/- for setting up business, this demand cannot be termed as dowry demand.

17. Section 2 of Dowry Prohibition Act,1961 reads as under :-

“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 parents 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 [or any time after the marriage] [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.”

18. This demand of Rs.50,000/- cannot be said to be in connection with the marriage of the party to the marriage. From the evidence on the record it is clear that even if it is believed that the accused/appellant demanded Rs.50,000, this demand was made third year of the marriage after the baby boy was born out of the wedlock. This demand of Rs.50,000/- was not in connection with the marriage and, therefore, does not come within the definition of dowry demand under Section 2 of the Dowry Prohibition Act 1961.

19. The Supreme Court of India in the case of Appasaheb and anr versus State of Maharastra (2007) 9 SCC 721, in para 11 has held as under:-

“11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558).”

20. It is important to keep in mind that for holding an accused guilty of offences under Sections 304B and 498A IPC that the prosecution is required to prove beyond reasonable doubt that the deceased was subjected to cruelty or harassment by the accused/appellant for dowry. Unless the cruelty and harassment with respect to dowry demand are proved by cogent and credible evidence, the accused cannot be held guilty under Sections 498A and 304 B IPC.

21. In the present case, the prosecution has not brought on record credible, cogent and reliable evidence to prove beyond reasonable doubt that the deceased was subjected to cruelty and harassment by the accused/appellant for dowry. The testimonies of P.W. 1 and P.W. 2 do not suggest that the accused/appellant was torturing and subjecting the deceased for dowry. P.W. 1 in his statement had specifically said that the deceased did not complain about the harassment or torture with respect to dowry demand in the first year of marriage and only in the third year of marriage she asked him to give Rs.50,000/- for setting up a separate business by the accused/appellant. In absence of clear proof of harassment and cruelty for dowry, it is not safe to convict the accused/appellant under Section 498A IPC though the death was within the period of 7 years of marriage.

22. The Trial Court judgment is based on conjectures and surmises and not on the basis of cogent, credible and reliable evidence in respect of the demand of dowry and cruelty to the deceased. The statements of P.W. 1 and P.W. 2 themselves cause a shadow of doubt on prosecution story that the deceased was subjected to harassment or cruelty before her death in connection with the demand of dowry.

23. In order to succeed for charge under Section 498A IPC, the prosecution was required to prove that the accused/appellant had subjected the deceased Geeta to cruelty as defined in explanation of the Section. The cruelty has to be willful conduct of such a nature that would likely to drive a woman to commit suicide or cause grievous injuries endangering her life or health. If the natural consequence of the conduct of the accused could not be said to be causing injury to life, limb or health of the woman, the accused could not be held liable for the offence under Section 498A IPC.

24. For presumption of a dowry death under Section 113B of the Indian Evidence Act and the offence under section 304B IPC, the prosecution is required to prove demand of dowry, harassment or cruelty caused by the husband or relative(s) to the deceased soon before the death. From the evidence on record the prosecution had not been able to prove beyond reasonable doubt, the essential ingredient i.e. harassment or cruelty for dowry.

25. To bring home the charge for offence under Section 304B IPC, the prosecution is required to prove:- (a) death of a woman for unnatural causes; (b) death happened within a period of 7 years of marriage, (c) soon before the death, the woman was subjected to cruelty or harassment by the husband or relative of the husband; and (d) such harassment and cruelty was in connection with the demand of dowry.

26. Considering the evidence on record it cannot be said that prosecution had been able to prove beyond the reasonable doubt the ingredients of Section 304B for holding the accused/appellant guilty for the offence of dowry death. For the reasons mentioned the accused/appellant is acquitted of charges under Sections 498A and 304B I.P.C. The impugned judgment and order passed by the Trial Court is set aside and the accused/appellant is acquitted of all charges. Bail bonds are canceled. Sureties are discharged.

27. The Appeal is allowed.

Order Date:-12.12.2017

prateek

 

 

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