HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Judgment reserved on 21.3.2018

Judgment delivered on 11 .5.2018

Court No. 28

Case :- CRIMINAL APPEAL No. – 18 of 2003

Appellant :- Smt. Sawariya Others

Respondent :- State of U.P.

Counsel for Appellant :- R.B. Sahai, Amrish Sahai

Counsel for Respondent :- Govt. Advocate

Hon’ble Umesh Chandra Tripathi,J.

1. Heard Sri R.B. Sahai, learned counsel for the appellants and Sri L.D. Rajbhar, learned A.G.A., for the State.

2. This appeal is directed against the judgment and order dated 20.12.2002 passed by learned Additional Sessions Judge/Special Sessions Judge, E.C. Act, Fatehpur in S.T. No. 287 of 1999 (State Vs. Arjun and others), P.S. Khakhreru, District Fatehpur whereby accused/appellants Smt. Sawariya, Siroman, Pheran and Arjun were convicted for the offence punishable under Sections 498-A, 304-B, 201 Indian Penal Code (in short referred to as “IPC”) Section 3/4 Dowry Prohibition Act (in short referred to as “D.P. Act”) and sentenced to:-

(i) rigorous imprisonment for a period seven years under Section 304-B IPC,

(ii) rigorous imprisonment for a period of two years under Section 498-A IPC,

(iii) rigorous imprisonment for a period of one year under Section 201 IPC and

(iv) rigorous imprisonment for a period of one year under Section 3/4 D.P. Act.

3. All these sentences were directed to run concurrently.

4. By the judgment and order accused Prabhu was acquitted from the offence under Sections 498-A, 304-B, 201 IPC Section 3/4 D.P. Act.

5. Brief facts of the prosecution case are that on 10.5.1999 informant Ramphal has submitted written information to Superintendent of Police, Fatehpur with allegation that his daughter Sangeeta (now deceased) was married with appellant Arjun three years ago. After her marriage, she went to her matrimonial home. When she returned to her parental home from matrimonial home, told the informant that her husband (Arjun), father-in-law (Shiroman), mother-in-law (Smt. Sawariya) and brother-in-law (jeth) were demanding Buffalo and Rs. 20,000/- cash in dowry. She was beaten and subjected to cruelty and harassed for demand of dowry by them. On 7.5.1999 at about 11:00 PM appellants and co-accused Prabhu, brother-in-law (sala) of appellant (Shiroman) have killed deceased (Sangeeta). At that time, Sangeeta was crying in defence. Her hue and cry was heard by Smt. Awadh Rani W/o Chhedu, Pradhan s/o Heera, Dharmpal s/o Shiv Lal and Neeta Devi daughter of informant Ramphal and other villagers. On Saturday informant (Ramphal) got information about death of Sangeeta. He reached at her matrimonial home where accused persons threatened him and compelled to leave the spot. The dead body of Smt. Sangeeta was lying in river Yamuna. On this information, by order of Superintendent of Police, Fatehpur, a first information report against the above named accused was lodged on 11.5.1999 at 11:00 PM at Police Station Khakhreru, District Fatehpur at Crime No. 41 of 1999 under Sections 498-A, 304-B, 201 IPC Section 3/4 D.P. Act. Dead body of deceased was recovered on 11.5.1999 at 5:30 PM at bank of river Yamuna in village Chandanapur. On the same day, inquest report and relevant police papers were prepared by the Investigating Officer. Post mortem of the deceased Smt. Sangeeta was conducted on 12.5.1999 at 2:45 PM by Dr. S.S. Banerjee. As per post-mortem report, dead body of deceased was badly decomposed. There was no any injury visible on the person of deceased. Cause of death could not be ascertained and viscera was preserved. In her viscera report, no chemical poison was detected. As per report of Forensic Science Laboratory, Lucknow, no poison was found in her viscera. After investigation police has submitted charge-sheet against appellants and co-accused Prabhu.

6. Learned Trial Court has framed charge under Sections 498-A, 304-B, 201 IPC Section 3/4 D.P. Act against appellants Smt. Sawariya, Siroman, Pheran and Arjun and co-accused Prabhu and explained charge to them. They pleaded not guilty and claimed to be tried.

7. To substantiate charge against accused, prosecution has examined PW-1 Ramphal, PW-2 Smt. Shanti Devi as witnesses of fact and PW-3 Dr. Mohd. Idris, PW-4 Head Constable Laik Ahmad, PW-5 Naib Tehsildar Sidh Narain Mishra, PW-6 Inspector K.L. Savita, PW-7 First Investigation Officer (in short referred to as “IO”) Deputy Superintendent of Police Banshidhar Mishra, PW-8 Dr. S.S. Banerjee and PW-9 (second IO) Deputy Superintendent of Police Narendra Kumar Singh as formal witnesses.

8. After closure of prosecution evidence, statements of the accused/appellants under Section 313 Code of Criminal Procedure (in short referred to as “Cr.P.C.”) were recorded wherein they pleaded their innocence and stated that witnesses have deposed falsely against them due to enmity. However, they admitted this fact that Smt. Sangeeta was married with appellant Arjun before three years of her death.

9. In defence, no evidence was adduced.

10. Upon detailed consideration of evidence on record, learned Trial Court found the guilt of the accused/appellants Smt. Sawariya, Siroman, Pheran and Arjun under Sections 498-A, 304-B, 201 IPC Section 3/4 D.P. Act is proved beyond reasonable doubt.

11. Learned counsel for the appellants contended that Smt. Sangeeta died her natural death. Her last ceremony was held in presence of informant. Prosecution has failed to prove the guilt of appellants beyond reasonable doubt, even though the trial court has passed the impugned order of conviction without properly appreciating the evidence available on record and as such, the same is liable to be set aside.

12. Learned A.G.A., has contended that there is no any illegality or infirmity in the order passed by the learned Trial Court and as such the appeal is liable to be dismissed.

13. 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:

[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 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).]

14. 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; (ii) Such cruelty or harassment was for, or in connection with, demand of dowry; and (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.

15. PW-1 Ramphal and PW-2 Smt. Shanti Devi have proved this fact that their daughter Smt. Sangeeta died after three years of her marriage. This fact was admitted by the appellants in their statement under Section 313 Cr.P.C. As such, it is proved beyond doubt that Smt. Sangeeta died within seven years of her marriage.

16. As per post-mortem report, there was no any external injury on the person of the deceased. As per report of Forensic Science Laboratory (Ex. K-12), no poison was found in her viscera. For knowing cause of death, viscera was preserved. Informant Ramphal stated before Court that appellants and co-accused Prabhu caused death of his daughter Smt. Sangeeta by strangulation. Her alarm was heard by Smt. Awadh Rani W/o Chhedu, Pradhan s/o Heera, Dharmpal s/o Shiv Lal and Neeta Devi youngest daughter of informant Ramphal, but none of these witnesses have been examined by the prosecution. The statement of informant Ramphal is not corroborated by the post-mortem report. There is no evidence on record to show that death of Smt. Sangeeta is caused otherwise than under normal circumstances. This shows that deceased died in normal circumstance.

17. PW-8 Dr. S.S. Banerji admitted this fact that he could not narrate whether the deceased died in normal circumstance or otherwise. From the post-mortem report, it is also evident that there was post-mortem burning on the person of the deceased. This shows that dead body was set on fire and dead body was recovered on 11.5.1999 from the bank of Yamuna river. Only on the basis of this recovery, it can’t be said that death of Smt. Sangeeta was caused otherwise than normal circumstances. PW-2 Shanti Devi has put thumb impression on her statement before the court. Accused Shiroman and Smt. Smt. Sawariya have also put their thumb impression on the statement under Section 313 Cr.P.C. Informant Ramphal and accused Arjun and Pheran have made their signature on the statement. This shows that informant and accused who are either illiterate or semi illiterate are poor villagers. In villages, most of the people who died natural death might have been consulted to doctor before death and their cause of death might have also not been ascertained. Only because before death, deceased was not consulted to doctor or her cause of death could not be ascertained, it could not be inferred that death has been caused otherwise than under normal circumstances. Presently, in case of death of bride, fear of implication in dowry death case exist. Due to this fear, husband and in-laws may try to dispose the dead body of bride as earlier as possible. Due to this fear, appellants may have also disposed the dead body of Smt. Sangeeta in river Yamuna in hurry. On the basis of this circumstance, it cannot be also inferred that death of deceased Smt. Sangeeta was caused otherwise than under normal circumstances. Accordingly, prosecution has failed to prove that death of Smt. Sangeeta was caused otherwise than under normal circumstances.

18. PW-1 Ramphal and PW-2 Shanti

Devi have not specified the date and time when Smt. Sangeeta returned at their home from her matrimonial home. They have also not specified date, time or place of demand of dowry. There is no evidence on record to show that deceased was treated with cruelty or harassment by the appellants soon before her death.

19. No specific role has been assigned to accused/appellants Smt. Sawariya, Siroman, Pheran and Arjun for demand of dowry. Name of the accused-appellants who demanded buffalo and Rs. 20,000/- cash as dowry have also not been specified by any of the witnesses of prosecution. General allegation of demanding dowry has been made against husband, his mother, father, brother and maternal uncle Prabhu. On the basis of general allegation, all relatives of husband including brother and maternal uncle cannot be held responsible for demand of dowry and harassment. Our social system is changing at a rapid pace. In the 21st century, the concept of joint family has completely changed. Today, there are few families which have a joint living. Nowadays, every person likes to live separately from his brother, sister and other family members. In such a social system, unless specific allegation has been made, all the relatives of the husband should not be made responsible for demand of dowry, cruelty or harassment.

20. Here, it must be noticed that on the same evidence and general allegations, learned Trial Court has acquitted the co-accused Prabhu.

21. For the aforesaid reasons, I am of the view that the prosecution has not shown, even by preponderance of probability, that soon before her death, deceased Smt. Sangeeta was treated with cruelty or harassed by accused-appellants Smt. Sawariya, Siroman, Pheran and Arjun in connection with demand of dowry. It is not proved that the death of Smt. Sangeeta was caused otherwise than under normal circumstances. The trial court while recording conviction against the appellants failed to consider all these facts and recorded erroneous finding of conviction, which cannot be sustained.

22. Accordingly, this criminal appeal is allowed. Conviction of appellants-Smt. Sawariya, Siroman, Pheran and Arjun under Sections 498A, 304B IPC and Section 4 of Dowry Prohibition Act is hereby set aside and they are acquitted.

23. The appellants are on bail. They need not surrender. Their bail bonds stand cancelled.

24. Office is directed to send a certified copy of this order to Sessions Judge, Fatehpur for its compliance. Office is further directed to send back the lower court record without any delay.

Order Date :- 11.5.2018

Jaswant