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Anand Babu vs State Of U.P. on 20 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgment reserved on 22.10.2019

Judgment delivered on 20.11.2019.

Court No. – 77

Case :- CRIMINAL APPEAL No. – 4229 of 2018

Appellant :- Anand Babu

Respondent :- State of U.P.

Counsel for Appellant :- Sanjay Rajpoot

Counsel for Respondent :- G.A.

Hon’ble Ram Krishna Gautam,J.

1. This appeal under Sectionsection 374(2) of Code of Criminal Procedure (hereinafter referred to as SectionCr.P.C.) has been filed by convict appellant Anand Babu against judgment of conviction and sentence made therein dated 4.6.2018 passed by Court of Sessions Judge, Pilibhit, in S.T. No. 288 of 2014, State Vs. Anand Babu and others, arising out of Case Crime No. 724 of 2014, u/s 498A, 304B SectionI.P.C and 4 D. P. Act, P.S. Jahanabad, District Pilibhit.

2. In brief, memo of appeal contends that the trial court failed to appreciate facts and law placed before it. There was no evidence against appellant. Marriage between deceased and appellant, was solemnized on 8.6.2014, in a simple manner with no dowry nor any demand at the time of marriage or subsequent to marriage. No evidence with regard to demand of dowry or cruelty with regard to it was there on record. Spouse were living happily and no complaint, in any manner, was there prior to present incident. Both families were farmers, having no status to claim or fulfill demand of dowry. Both of witnesses were declared hostile and they have not supported prosecution, even then impugned judgment of conviction with deterrent sentence was passed. Autopsy examination report reveals cause of death due to head injury and it was an accident. But learned Sessions Judge, Pilibhit, failed to appreciate the facts and law placed on record. Hence this appeal for setting aside impugned judgment of conviction and sentence made therein with further prayer for acquittal from charges levelled against appellant.

3. Perusal of impugned judgment and record of lower court reveals that F.I.R. (Ext. Ka1), chik F.I.R. (Ext. Ka2) of Case Crime No. 724 of 2014, u/s 498A, 304B SectionI.P.C and 4 D. P. Act, P.S. Jahanabad, District Pilibhit, dated 29.6.2014 registered at 17.35 hours, for an occurrence of 27.6.2014, having no specific mention of time upon F.I.R. having computerised typing and signature of complainant Sunil Kumar over it (Ext. Ka1) against Anand Babu (husband), Shakuntala Devi (mother-in-law), Guddu Joshi (brother-in-law), Vijay Joshi (brother-in-law), Shanker (brother-in-law- Bahnoi), Gita (wife of Shanker) and Shrawan Kumar (father-in-law), with this contention that informant Sunil Kumar was a resident of Mohalla Dubey, P.S. Bisalpur, District Pilibhit, and since last 15 years he was residing at Delhi and working as labourer, for maintaining his family, residing there at. His sister Savita was married to Anand Babu, resident of Mohalla Mishran Tola @ Joshi Tola, P.S. Jahanabad, District Pilibhit, about three months back at Delhi. This was second marriages of both Anand Babu and Savita. After some time of marriage Anand Babu (husband), Shrawan Kumar (father-in-law), Shakuntala (mother-in-law), Guddu and Vijay (brothers of Anand Babu), their brother-in-law (Bahnoi) Hari Shanker and their Sister Gita demanded Rs. One lac for doing business. They started demanding dowry from Savita and as a result cruelty was being committed with her. Informant, along with his father Ram Prakash, brother Sushil and nephew Akash went to Jahanabad for making persuasion to accused persons that he was not in a capacity to make payment of dowry of Rs. One lac. Please do bear. But it was of no avail and persistent demand of dowry with cruelty was there. On 27.6.2014 information about murder of Savita was received through telephone. Informant along with his family members rushed at spot and found dead body at mortuary. Savita, informant’s sister, was murdered for dowry by her in-laws and an attempt to make it a case of accident was made. Whereas this was a dowry death. Hence this report.

4. Inquest report (Ext. Ka5) was got prepared by S.I. Phool Singh, upon information received through telephone from Circle Officer, Jahanabad, on 27.6.2014 at 10.00 A.M. regarding lying of a dead body of deceased lady at Platform no. 2 of Railway Station, who had met with some accident at railway track. Inquest proceeding started at 11.30 A.M. Death was held to be owing to antemortem injuries caused by dashing of rail, but it was opined to get it examined under autopsy examination for which requisite papers, challan dead body (Ext. Ka6), Photo dead body (Ext. Ka7), specimen seal of sealing dead body (Ext. Ka8), letter to R.I. (Ext. Ka9) and letter to C.M.O. (Ext. Ka10) were got prepared and those papers, along with sealed intact dead body, were carried to Medical Officer (PW5) Dr. D. N. Singh, who was on postmortem duty, where autopsy examination was conducted and autopsy examination report (Ext. Ka4) under handwriting and signature of Dr. D. N. Singh was got prepared at the time of autopsy examination. External and internal examinations of dead body, which was under sealed intact position, and was duly identified by police personnel, who brought it, was got made, wherein three antemortem injuries (1) lacerated wound 8 cm x 6 cm x bone deep on occipital region, underlying bone fracture, (2) lacerated wound 7 cm x 4 cm x scalp deep on forehead, and (3) defused abraded contusion present at multiple places all over body along with few lacerated wound over back. Haemotama was present in occipital lobe right side with profusing of blood in brain tissue. Bleeding from nose and ear was present resulting death owing to coma and hemorrhage due to antemortem injuries.

5. Investigation resulted in submission of charge sheet (Ext. Ka13) against Anand Babu, Guddu, Vijay, Shakuntala @ Maharani and Shrawan Kumar. Magistrate took cognizance on 13.8.2014 over charge sheet.

6. As the offence punishable u/s 304B SectionI.P.C. was exclusively triable by Court of Sessions, hence after making compliance of provisions of Sectionsection 207 Cr.P.C., file was committed to the Court of Sessions, under Sectionsection 209 Cr.P.C., for making its trial.

7. Learned Additional Sessions Judge/ Special Judge (E.C. Act), Pilibhit, vide order dated 30.9.2014 heard learned learned Public Prosecutor as well as learned counsel for defence, thereupon charges for offences punishable under above sections were framed against accused persons. Charges levelled by Sri Yogesh Chandra Tripathi, Additional Sessions Judge/ Special Judge (E.C. Act), Pilibhit, in English translation by Court itself, is being reproduced as below:

“I, Yogesh Chandra Tripathi, Additional Sessions Judge/ Special Judge (E.C. Act), Pilibhit, charge you accused (1) Anand Babu, (2) Guddu, (3) Vijay, (4) Smt. Shakuntala Devi @ Maharani, (5) Shrawan Kumar, as follows-

First- That Anand Babu was married with Savita, sister of informant Sunil Kumar, D/o Ram Prakash, resident of Mohalla Dubey, P.S. Bisalpur, District Pilibhit, three months back to her death and after marriage, you being husband and in-laws demanded Rs. One Lac in dowry and owing to failure in fulfillment of the same, you did cruelty by way of physical and mental torture resulting cruel treatment with her. Thereby you committed offence punishable u/s 498A SectionI.P.C. within the cognizance of this court.

Second- You demanded Rs. One Lac in dowry from informant’s sister after her being at your house and in case of default you did assault and cruelty with her. You with a cruel behaviour assaulted her and owing to demand of dowry and failure of its fulfillment you made murder of her on 27.6.2014, thereby you committed offence of dowry death punishable u/s 304B SectionI.P.C. within the cognizance of Court.

Third- You after marriage of Savita, informant’s sister, with Anand Babu and her being at your house did demand of Rs. One lac in additional dowry, thereby committed offence punishable u/s 4 of D.P. Act within cognizance of this court.

In alternate

That you with a joint intention for fulfillment of common object did assault over informant’s sister Savita on 27.6.2014 at your house, thereby she was murdered. Hence, you committed offence punishable u/s 302 read with 149 SectionI.P.C. within the cognizance of this court.

I hereby direct you for trial for above charge.

Dated: 30.09.2014 Sd/- Illegible

(Yogesh Chandra Tripathi)

Addl. Sessions Judge/ Special

Judge (E.C. Act), Pilibhit.”

8. Charges were read over and explained to accused persons, who pleaded not guilty and claimed for trial.

9. Prosecution examined PW1- informant Sunil Kumar, PW2- HC Rita Tomar, PW3- Sushil Kumar Joshi, PW4- Ram Prakash, PW5- Dr. D. N. Singh, PW6- S.I. Phool Singh, PW7- Dy. S.P. Investigating Officer Indu Siddhartha and PW8- Suresh Chandra.

10. With a view to have explanation of accused persons, if any, over incriminating material brought on record by prosecution, statements of accused persons were got recorded u/s 313 SectionCr.P.C. in which each of accused persons denied the accusation and pleaded their innocence by alleging testimonies to be false. It was said in common that deceased committed suicide by jumping before train over railway track owing to her depression. Because she was previously married with Govind and was blessed with two kids, who were with Govind and against her wishes she was married with Anand Babu, under pressure of her family members. She remained under depression. There was no demand of dowry or cruelty with regard to it nor a question of such demand ever arisen. Previous marriage with Govind was not broken by a decree of divorce and this fact was hidden, while performing marriage with Anand Babu. No evidence in defence was given by accused persons.

11. After hearing learned public prosecutor as well as learned counsel for defence, learned Sessions Judge, Pilibhit, passed the impugned judgment, wherein accused-appellant Anand Babu was convicted for offences punishable u/s 498A, 304B SectionI.P.C. read with section 4 D. P. Act. He was acquitted of charge levelled as alternative charge for offence punishable u/s 302 read with 149 I.P.C.

12. One accused Vijay was minor and juvenile in conflict with law. Hence, his file was got separated and transmitted to Juvenile Justice Board, Pilibhit, for making trial.

13. Rest of accused persons Guddu, Smt. Shakuntala Devi @ Maharani and Shrawan Kumar were acquitted of the charges levelled against them. No State Appeal against judgment of acquittal of Guddu, Shakuntala Devi @ Maharani and Shrawan Kumar is there.

14. This appeal is only by convict appellant- husband Anand Babu against judgment of conviction as well sentence. It was awarded after hearing learned Public Prosecutor as well as learned counsel for defence on the quantum of sentence and was in the tune of ten years R.I. for offence punishable u/s 304B SectionI.P.C., two years R.I. and fine of Rs. 10,000/-, in case of default of payment of fine six months additional imprisonment, for offence punishable u/s 498A SectionI.P.C. and one year’s R.I. and fine of Rs. 5000/- and in case of default four months additional imprisonment for offence punishable u/s 4 D.P. Act with direction for concurrent running of sentences and adjustment of previous incarceration, if any, in this case crime number towards sentence awarded, as above.

15. Against the judgment of conviction and sentence made therein convict appellant Anand Babu (husband) has filed this criminal appeal.

16. Heard Sri Sanjay Rajpoot, learned counsel for accused-applicant and Sri Munna Lal, learned AGA for the State.

17. Learned counsel for appellant argued that this was second marriage performed by informant and his family members without any information or disclosing about erstwhile marriage of Savita with Govind or her two kids being with Govind. This was against wishes of Savita resulting her depression. The marriage was performed at Delhi at Arya Samaj temple that too without any dowry and in a very ordinary manner. Both sides i.e. bride and groom sides are poor farmers and residents of Pilibhit having no means of living except doing job of labourer and ‘Pheriwala’ for their two time meals. No demand of dowry in the tune of Rs. One lac was ever made nor there was any cruelty with regard to it. Even then this judgment of conviction and sentence was passed. There was great inconsistency and material contradiction amounting exaggeration and embellishment in the testimonies of prosecution witnesses. This all had arisen bonafide doubt in the case of prosecution, but the trial court failed to appreciate facts and law placed before it. It was neither dowry death nor a murder. Rather the death was owing to an accident due to suicide, committed by the deceased. Instantly information was given to informant and his family members, who got this delayed report lodged against accused persons. On the same set of evidence, learned trial Judge passed judgment of acquittal for co-accused persons, but convict appellant has been convicted and sentenced on the evaluation of same evidence; merely because of his being husband of deceased. Hence this appeal with above prayer for setting aside impugned judgment of conviction and sentence made therein with a further prayer for judgment of acquittal against the charges levelled against him.

18. Learned AGA vehemently oppose the arguments of learned counsel for appellant. It was argued by learned AGA that after having information of unnatural death, within three months of marriage, the informant and his family members had rushed at the spot and found her dead and her dead body was lying at mortuary, where autopsy examination was got conducted. After performing last rituals, this F.I.R. was got lodged and it was with all precise accusation of dowry death against accused persons. Prosecution by its four witnesses of fact, as well formal witnesses, has proved its case beyond reasonable doubt. As convict appellant was husband, demand of dowry to the tune of Rs. One lac was made at Delhi followed by subsequent demand of dowry. Prosecution case was proved in their testimonies by factual witnesses. Hence, judgment of conviction and sentence was awarded against husband-convict appellant. For rest of accused persons, who were not instrumental in demand of dowry or cruelty with regard to it, the case could not be proved beyond reasonable doubt. Hence judgment of acquittal for them was passed. It was correct appreciation and marshaling of facts placed on record and proper with due application of law in making judgment of conviction. Before sentencing, both sides were heard over quantum of sentence and under correct perception of law with supported precedents, sentence of ten years R.I. with other sentences were awarded. Hence, judgment of conviction and sentence made therein is with full support of fact and evidence placed on record coupled with correct perspective of law propounded by various Courts. Hence this appeal, being devoid of merit, deserves to be dismissed.

19. Section 304-B of I.P.C. was inserted by Act No. 43 of 1986 w.e.f. 19.11.1986 that:-

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.

There is an explanation that for the purpose of this sub-section, “dowry” shall have the same meaning as in Sectionsection 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.

20. The Apex Court in Pathan Hussain Basha Vs. State of Andhra Pradesh, AIR 2012 SC 3205 has propounded that if a married woman dies in unnatural circumstances at her matrimonial home within seven years from her marriage and these are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under “dowry death” and there shall be a presumption against the husband and the relatives.

21. The Apex Court in many cases has propounded that where the evidence revealed that accused-husband killed deceased-wife for not satisfying his dowry demand but nothing on record to show involvement of co-accused in-laws with the offence committed by the accused, co-accused in-laws are not guilty of offence under sections 304B I.P.C.

22. The Apex Court in Kashmir Kaur Vs. State of Punjab, AIR 2013 SC 1039 has propounded that in a case of trial for dowry death the essential ingredients to attract the provisions of Sectionsection 304B I.P.C. for establishing offence are (a) that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry, (b) the death of the deceased woman was caused by any burn or bodily injury or some other circumstance, which was not normal, (c) such death occurs within seven years from the date of her marriage, (d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (e) such cruelty or harassment should be for or in connection with demand of dowry, and (f) it should be established that such cruelty and harassment was made soon before her death.

23. The Apex Court in Banshi Lal Vs. State of Haryana, AIR 2011 SC 691 has propounded that the court has to analyse the facts and circumstances as leading to death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. Meaning thereby cruelty or harassment with regard to demand of dowry soon before death is a crucial ingredient to be proved by prosecution before attracting any provisions of section 304B I.P.C.

24. Apex Court in Mustafa Shahdal Shaikh Vs. State of Maharashtra, AIR 2013 SC 851 has propounded that “soon before death” means interval between cruelty and death should not be much. There must be existence of a proximate and live links between the effect or cruelty based on dowry demand and the concerned death. 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.

25. This has again be reiterated by Apex Court in Kaliyaperumal Vs. State of Tamil Nadu, AIR 2003 SC 3828 that the expression ‘Soon before her death” used in the substantive Sectionsection 304B I.P.C. and Sectionsection 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression “soon before hear death” is not defined. 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 concerned cruelty or harassment and effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

26. Regarding presumption under Sectionsection 113B of the Evidence Act in this very ruling the Apex Court has propounded that 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.

2. The woman was subjected to cruelty or harassment by her husband or his relatives.

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.

27. Though, the Apex Court has visualized that direct ocular testimony is rarely available in dowry death case and in most of such offence direct evidence is hardly available and such cases are usually proved by circumstantial evidence. This section as well as Sectionsection 113B of the Evidence Act enact a rule of presumption i.e. if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply.

28. Before going any further, it would be relevant to mention here that Sectionsection 113-B of Indian Evidence Act, 1872, provides that 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 had 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. The explanation to the section provides that expression ‘dowry death’ shall have the same meaning as in Sectionsection 304B of IPC. Section 304B of the IPC defines ‘dowry death’ and provides punishment for said offence. Section 304B IPC provides 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 other 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.

29. Sub-Sectionsection 2 of Sectionsection 304-B further provides that whoever commits dowry death shall be punished for imprisonment for a term which may not be less than seven years but which may extend to imprisonment for life. It is relevant to mention here that Sectionsection 498A provides punishment for an offence of cruelty by husband or a relative of husband of a woman.

30. Their Lordships of Hon’ble Supreme Court in the case of SectionSatvir Singh and others vs. Sate of Punjab and another, (2001) 8 SCC 633 has observed as under:

“20. Prosecution, in a case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus:

“2. 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 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.

31. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is “at any time” after the marriage. The third occasion may appear to be an unending period. But the crucial words are “in connection with the marriage of the said parties”. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry”. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

32. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B 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 weeks 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 emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death 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 snuff its cord from the concept “soon before her death”.

33. Their Lordships of Hon’ble Supreme Court in the case of SectionRajinder Singh v. State of Punjab, (2015) 6 SCC 477 has observed as under:

“7. The primary ingredient to attract the offence under Section 304B is that the death of a woman must be a “dowry death”.”Dowry” is defined by Section 2 of the Dowry Prohibition Act, 1961, which reads 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 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

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

8. A perusal of this Section shows that this definition can be broken into six distinct parts:

(1) Dowry must first consist of any property or valuable security – the word “any” is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.

2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.

3) Such property or security can be given or agreed to be given either directly or indirectly.

4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.

5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.

6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression “in connection with” would in the context of the social evil sought to be tackled by the SectionDowry Prohibition Act mean “in relation with” or “relating to”.

9. The ingredients of the offence under Section 304-B have been stated and restated in many judgments. There are four such ingredients and they are said to be:

(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;

(b) such death must have occurred within seven years of her marriage;

(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(d) such cruelty or harassment must be in connection with the demand for dowry.”

34. Hence, the present case is to be scrutinized in view of above settled principles of law and factual evidence proved on record.

35. PW1-informant Sunil Kumar, in his testimony, has categorically stated that his sister Savita, who was previously married with Govind, but was with dissolution of her marriage, was married with convict appellant Anand Babu three months prior to her unnatural death. This date of marriage and Marriage certificate (Ext. Kha11), which was of Arya Samaj Temple, Tishajari, Delhi, having photographs of Anand Babu and Savita affixed over it, was proved by this witness and this fact has not been disputed in his cross-examination. Rather fact of marriage with convict appellant on 8.4.2014 was undisputed before trial court as well as before this appellate court by learned counsel for appellant. The main thrust was made by learned counsel for appellant that the second marriage with convict appellant was without a valid divorce decree regarding erstwhile marriage of deceased with Govind. This aspect is of no avail because admittedly, marriage was performed and certificate (Ext. Kha11) of same is on record. It was said from very beginning that previous marriage with Govind was dissolved by mutual consent. Dissolution of marriage by a decree of divorce is a legal mandate for dissolution of marriage. But even under SectionHindu Marriage Act ritual of dissolution of marriage by way of mutual consent in lower trodden community or any community having this custom prevailed therein has been held to be a way of dissolution of marriage. Moreso, the validity of same may be a question before Family Court or a Civil Court, regarding declaration of status of marriage in between parties. But regarding criminal trial for an offence of dowry death, it has been propounded by Apex Court at many times, particularly in Reema Agarwal Vs. Anupam, AIR 2004 SC 1418 that inspite of marriage being illegal or unrecognized, the same shall be held to be a marriage in a criminal trial regarding cruelty with regard to demand of dowry and for domestic violence. In the present case, marriage is admitted fact. Hence illegality or irregularity is of no consequence for this trial. This marriage was performed on 8.4.2014 and this unnatural death of bride-deceased occurred on 27.6.2014. It is also an undisputed fact. This has been proved by testimony of PW1, regarding which, there is no contradiction, exaggeration or embellishment. This witness has categorically said that after having information of death of his sister Savita, he along with his family members rushed at the place of her in-laws and found dead body of his sister at mortuary. After getting the same, after autopsy examination, last rituals were performed then after report of this case by way of presenting a computerised application having signature of this witness i.e. Exhibit Ka1 was presented at P.S. Jahanabad, where this case crime number was got registered against accused persons. No contradiction or exaggeration regarding registration of this case crime number is there in his testimony. It has further been corroborated by testimony of PW2- Head Constable Reeta Tomar, who in her testimony, has averred that while being posted as constable clerk at P.S. Jahanabad on 29.6.2014, she, on the basis of Ext. Ka1, brought by Sunil, who was accompanied by Parveen and Manoj Pandey and had come at P.S. Jahanabad at 17.35 hours, got case crime number registered vide chik no. 186 of 2014 by way of making entry in General Diary, which was prepared under one and common process by pasting carbon beneath it under handwriting and signature of this witness and the same is on record as Exhibit ka2- chik F.I.R. and Exhibit Ka3- General Diary entry. A suggestive question was put to this witness that this report was got lodged under dictation of police personnel and this has been vehemently answered in negative. It has further been reiterated that Sunil Kumar gave this FIR (Ext. Ka1) to this witness and on the basis of which, this case crime number was registered at above given time, date and place under handwriting and signature of this witness. Regarding this testimony, in answer to question put u/s 313 SectionCr.P.C., there is no denial regarding registration of case crime number by this witness. Rather a false implication has been answered. But this witness has categorically proved formal registration of this case crime number and there is corroboration by PW1 and PW2.

36. PW3- Sushil Kumar Joshi is further a witness of fact and brother of deceased, who has said that deceased was married with Anand Babu as per Hindu rituals on 8.4.2014. All accused persons are husband and his blood relatives. They demanded Rs. One lac from the deceased and within ten to 11 days of marriage Rs. 10,000/- was demanded from this witness. He paid Rs. 5000/- but again within 10 to 11 days Rs. 20,000/- was demanded. It was said to be beyond his capacity then after a telephonic demand from his father was made by accused persons in the tune of Rs. One lac. Father of this witness along with Akash went to accused for persuading, but they were not amenable and persistent demand of Rs. One lac in dowry was there for which deceased made complaint to her parents. There was complaint of torture too and on 27.6.2014 an information regarding death of his sister was received. He along with his father and brother rushed at Pilibhit and found dead body of his sister at mortuary. After autopsy examination, dead body was handed over to them and it was taken at Bisalpur, where last rituals were performed on 28.6.2014. Then after on 29.6.2014 this FIR was got lodged, upon report of his brother. In cross-examination, it has specifically been said by this witness that deceased was previously married. But after personal settlement, she was residing at her parental house. Subsequently, she was married with Anand Babu and this witness was a witness of above marriage. It was performed at Arya Samaj Temple, Delhi. Within 20-24 days of marriage there was demand of dowry from father of this witness, whereas within ten days Anand Babu demanded money of Rs.10,000/- from this witness and he without disclosing to any one of his family members paid Rs. 5000/- to Anand Babu. Anand Babu had gone Delhi within ten days of marriage for making demand and then after he made persistent demand of Rs. One lac, which could not be fulfilled. This unnatural death occurred within three months of marriage. There is no contradiction, exaggeration and embellishment in the testimony of this witness. It is fully corroborated by statement of PW2.

37. PW4- Ram Prasad is father of deceased and he has said in his testimony the case of prosecution in full tune. Specific mention of demand of Rs. One lac in dowry by convict appellant and incapacity to make payment of same has been said by this witness. Information of death under unnatural circumstances on 27.6.2014, was received by this witness, though it was reported to be a death owing to rail side accident and this was communicated by his nephew at 2.00 P.M. of 27.6.2014. He along with his family members rushed at Pilibhit and on the same day at about 7 to 7.30 P.M. he reached Pilibhit and found dead body of his daughter at mortuary. Marriage was performed at Arya Samaj Temple at Delhi on 8.4.2014 and this was under initiation of sister and brother-in-law (Bahnoi) of Anand Babu. Regarding demand of dowry and incapacity to make payment of same then after persistent demand coupled with cruelty, there is no contradiction, exaggeration or embellishment in testimony of this witness. Rather this witness is a fully natural witness with full reliability and his testimony is fully corroborated by testimonies of PW1 and PW3. Though, since very beginning the case of defence is that deceased committed suicide by jumping before a train i.e. death under unnatural circumstances is not disputed. But plea of suicide is being taken. Whereas PW5 Dr. D. N. Singh in his testimony has proved medico legal examination in autopsy examination of deceased, which was brought in sealed intact position along with papers of inquest proceeding by constable of P.S. Jahanabad, wherein injuries were found, as written in inquest report. Postmortem report (Ext. Ka5) prepared under signature of this witness and above antemortem injuries were cause of this death as those injuries caused coma and hemorrhage resulting death. In examination in chief, this witness, has categorically said that all these three injuries, written as above, may be caused by hard blunt object. But in cross-examination a suggestive question was put that they may be of rail accident and it was answered in affirmative. There is no crush injury over deceased. Injuries were over head resulting fracture of occipital bone, laceration of scalp deep over forehead. Even if, it was owing to jumping before train, there is no evidence of jumping before train brought on record by convict appellant against whom there was presumption of dowry death u/s 113B of Evidence Act. But as against it, there was testimony of Investigating Officer- PW7 wherein she has categorically said in her testimony in chief that during investigation sister of convict appellant had made statement that deceased had asked her sister-in-law Rita Devi for taking her at her home. Because she was being tortured by her in-laws and there is no rebuttal or contradiction or cross-examination of this peace of evidence said by investigating officer in her testimony. This Rita Devi was sister of convict appellant and she has narrated against appellant before this investigating officer, but Rita Devi has not been examined in defence for making rebuttal of this testimony. Death of deceased is unnatural, even if, it may be suicide, is unnatural for bringing ingredient of dowry death fulfilled, as provided u/s 304B I.P.C.

38. In the present case, prosecution by these evidence of fact i.e. PW1, PW3 and PW4 has successfully proved that marriage of deceased with convict appellant was performed on 8.4.2014. Deceased died under unnatural circumstances because of coma and hemorrhage caused by antemortem injuries found over her person under unnatural circumstances on 27.6.2014. There had been persistent demand of dowry coupled with cruelty in the tune of Rs. One lac and this was even one week before the above unnatural death. Convict appellant is husband of deceased. Hence all necessary ingredients of dowry death were proved by prosecution and presumption of offence of dowry death having committed by accused, who was her husband, was there. It was incumbent upon husband- convict appellant Anand Babu to give evidence in defence for rebutting above presumption raised u/s 113B of Evidence Act. But no evidence in defence has been given by convict appellant.

39. PW6- S.I. Phool Singh, is the investigating officer, who conducted inquest proceeding on 27.6.2014 and in his testimony he categorically proved that after having information of lying of a dead body of a lady at platform no. 2 of railway station from his Circle Officer, he along with relevant documents rushed at spot and did perform inquest proceeding under his handwriting and signature. Requisite papers, challan dead body, photo dead body, specimen seal of seal by which dead body was sealed intact, letter to R.I. and letter to C.M.O. were prepared by this witness and this was opined by witnesses of inquest proceeding to be death owing to antemortem injuries, but examination in autopsy examination was needed. Hence those documents were got prepared and then sealed intact dead body along with those documents were sent for its autopsy examination. The spot map, where this death was said as well as the spot, where this dead body was lying, was got prepared by this witness. These documents have been formally proved by this witness and regarding it there is no contradiction or dispute by learned counsel for defence. Rather those proceedings have been undisputed and even said to have been death owing to suicide by jumping before train at railway track by deceased herself.

40. PW7- Dy. S.P. Investigating officer Mrs. Indu Siddhartha, in her testimony, has proved investigation of Case Crime No. 724 of 2014, u/s 498A, 304B SectionI.P.C and 4 D. P. Act, P.S. Jahanabad, District Pilibhit, wherein she has formally proved site plans, Ext. Ka11 and Ext. Ka12 and charge sheet Ext. Ka13 to be under handwriting and signature of this witness. She has categorically said that track man was examined by her, who had said about death owing to jumping before train by unknown lady. This has been said by convict appellant Anand Babu too. But it was unnatural death, which has been proved by prosecution and this was within three months of marriage, wherein all through there was demand of dowry coupled with cruelty with regard to it.

41. PW8- Suresh Chandra, in his testimony, has said that he himself had not seen the lady jumping before train. Rather it was hearsay. Hence his testimony is of no avail for this trial.

42. Now convict appellant being husband was expected to explain the situations, which were under his personal knowledge, as was required u/s 106 of SectionEvidence Act. But explanation given by this convict appellant is that deceased had committed suicide by jumping before train owing to depression, which she was suffering because her marriage was performed against her wishes and she was under depression because her two kids were living with her erstwhile husband. Even if this statement of convict appellant is to be accepted, then he, being husband, was duty bound for being careful for reporting matter to his in-laws regarding situation of mental depression of deceased. But no such information was either given to police nor to informant side nor even this unnatural happening was reported at police station by convict appellant. Rather this criminal machinery was put in motion by presenting Exhibit Ka1 by informant. Convict appellant was not present in the inquest proceeding too. He did not perform last rituals of deceased. These all circumstances, even otherwise, goes against him.

43. Apex Court in Trimukh Maroti Kirkan Vs. State of Maharashtra, (2007) 10 SCC 445 has propounded as under:

“14. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused, if the strict principle of circumstantial evidence, as notice above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties.”

44. Hence on this score too convict appellant failed to prove whether and under which circumstance the trial court failed to appreciate facts and evidence placed on record. Hence, from over all appreciation of facts and evidence placed on record, it is apparently clear that judgment of conviction passed by learned Trial Judge is fully based on evidence and supported by it. There is no illegality or irregularity in it.

45. So far as sentence regarding appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case.

46. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should ‘respond to society’s cry for justice against the criminal’. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].

47. In the present case aggravating and mitigating circumstances, narrated as above, prove that dowry death was committed by convict appellant.

48. Apex Court in Ashok Kumar Vs. State of Rajasthan, 1991(1) SCC 166 has propounded as under:

“Bride burning is a shame of our society. Poor never resort to it. Rich do not need it. Obviously because it is basically an economic problem of a class, which suffers both from ego and complex. Unfortunately, the high price rise and ever increasing cost of lving coupled with enormous growth of consumer goods effacing difference between luxury and essential goods appear to be luring even the new generation of youth, of best service, to be as much part of the dowry menace as their parents and the resultant evils flowing out of it. How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter-in-law becomes immediate necessity. If she or her parents are no more able to satiate the gree and avarice of her husband and their family members, to make the boy available, once again in the marriage market. Eliminate it and much may stand resolved automatically … … …”

49. Hence, sentencing too of convict appellant was adequate and commensurate to degree of offence on this score. The appeal is liable to be dismissed.

50. The appeal is dismissed accordingly.

Order Date :- 20.11.2019

Pcl

 

 

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