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Awadhesh Kumar Dubey vs State on 9 January, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 26.11.2018

Delivered on 09.01.2019

Court No. – 34

Case :- JAIL APPEAL No. – 7238 of 2008

Appellant :- Awadhesh Kumar Dubey

Respondent :- State

Counsel for Appellant :- From Jail, Smt. Archana Singh (A.C.)

Counsel for Respondent :- A.G.A., Nikhil Chaturvedi.

Hon’ble Sudhir Agarwal,J.

Hon’ble Ram Krishna Gautam,J.

(Delivered by Hon’ble Ram Krishna Gautam,J.)

1. This criminal appeal u/s 374(2) of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) has been filed by the appellant Awadhesh Kumar Dubey against the judgment and order dated 26.8.2018 passed by Additional Sessions Judge/ F.T.C. 1, Jalaun at Orai, in S.T. No. 52 of 2008, State Vs. Awadhesh Kumar Dubey, related with Case Crime No. 383 of 2007, of P.S. Sirsa Kalar, District Jalaun, convicting appellant for an offence punishable u/s 498A I.P.C. with a sentence of three years R.I. and fine of Rs. 4000/-, in default one year R.I., for the offence punishable u/s 304B I.P.C. with a sentence of life imprisonment and for the offence punishable u/s 4 of the Dowry Prohibition Act two years’ R.I. and fine of Rs. 2000/- and in default fifteen days R.I.

2. The factual matrix of the case emanating from the first information report (hereinafter referred to as the F.I.R.) and the evidence adduced before the Trial Court is that Raghunandan Dubey, son of Devi Shanker Dubey, resident of Qasba and P.S. Kuthaund, district Jalaun, presented an F.I.R. at Police Station Sirsa Kalar, District Jalaun, on 28.11.2007 at 7.40 P.M. stating that his niece Arpana @ Soni, daughter of Yashodanandan Dubey was married with Awadhesh Kumar, s/o Ramesh Chandra Dubey, r/o Village Pipari Athgaiya, P.S. Sirsa Kalar, District Jalaun, about three years ago as per Hindu rituals. Dowry as per capacity to the tune of Rs. 2.5 lacs cash was given in the marriage, but the husband Awadhesh Kumar Dubey, Ramesh Chandra (father-in-law) and Smt. Lalita Devi (mother-in-law) were not satisfied with the dowry and were demanding additional dowry of a motorcycle and Rs. 20,000/- cash for carrying on business. Arpana @ Soni used to complain about it when visited her parental home. Informant and family members were not in a position to fulfill the above demand. On 28.11.2007 at about 5.30 P.M. Ramesh Chandra telephonically summoned the informant at his home. This was suspected to be an untoward incident and he rushed to village Pipari Athgaiyan where Arpana @ Soni, aged about 24 years, was found lying dead on the floor of the room of the accused persons. There was oozing of blood from her mouth and nostrils. Upon enquiry it came to the notice that the husband, father-in-law and mother-in-law of Arpana @ Soni had killed her at about 4.00 P.M. Arpana used to apprise her parents that in case of non-fulfillment of above demand of motorcycle and cash of Rs. 20,000/- as additional dowry, her in-laws would kill her. Under the above pretext those accused persons have killed her.

3. On submission of FIR at the Police Station Sirsa Kalar, Case Crime No. 383 of 2007, u/s 498A, 304B I.P.C. and 3/4 D. P. Act was got registered against Awadhesh Kumar Dubey (husband), Ramesh Chandra (father-in-law) and Smt. Lalita (mother-in-law). The distance of police station from the place of occurrence is about 6 Kms towards west. After registration of the F.I.R. usual investigation followed. Investigating Officer (hereinafter referred to as “I.O.”) visited spot, collected blood stained and plain earth in separate containers and sealed them (marked as Exhitib Ka16). He also prepared inquest report (Panchayatnama) (Exhibit Ka2), photo of dead body and other formal documents i.e. Form 13, letter to C.M.O., letter to R.I. (Exhibits Ka6 to Ka9, respectively). Dead body of the deceased was properly sealed and sent to District Hospital, Jalaun, through Constables CP 112 Brijendra Singh Yadav and CP 425 Ajay Singh.

4. Autopsy on the dead body of the deceased Arpana @ Soni was conducted on 29.11.2007 at 2.30 P.M. by Dr. M.S. Rajpoot (PW6), who prepared postmortem report (Exhibit Ka13). According to the doctor the deceased was aged about 21 years with average body built. Eyes were closed, mouth was semi open, both of lips were blued, eyes were congested, oozing of blood from nostrils, abdomen was swollen with gasses and presence of discolouration in right iliac fossa. Rigor mortis present in neck, upper and lower limbs. Following ante-mortem injuries were found by this Medical Officer:

1. Contusion 10 cm x 6.5 cm on anterior aspect of neck, 2 cm. below the chin.

2. Contusion 8 cm x 4 cm on right parietal and temporal area of skull 4 cm above the right ear.

3. Contusion 10 cm x 6 cm on left side of face just below left eye.

4. Contusion 4 cm x 3 cm on right side of forehead just above the right eyebrow.

5. Contusion 7 cm x 3.5 cm on right side of face just below right eye.

6. Contusion 6 cm x 4 cm on right shoulder at the tip.

In the opinion of the doctor cause of death was asphyxia due to strangulation of about one day ago.

On internal examination subcutaneous tissue along with muscle and carotid blood vessels beneath injury no. 1 were lacerated with fracture of hyoid bone. Brain, membranes, larynx and trachea were congested. Trachea contained frothy mucous. Larynx and trachea cartilages were fractured. Both lungs were congested. Sematous bull was present on the surface of the lungs. Left chamber of heart was empty, whereas right chamber was full of blood. Teeth were 16/16. About 100 ml. pasty material was found in stomach. Small intestine was filled with gasses and large intestine was filled with faecal material. Gall bladder was semi filled. Urinary bladder was empty. Uterus was empty. The death was of about 4.00 P.M. on 28.11.2007.

5. On receipt of postmortem report (Ext. Ka-13) and after concluding investigation the I.O. submitted charge-sheet on 29.1.2008 (Exhibit Ka5) against Awadhesh Kumar Dubey only in the Court of C.J.M., Jalaun. Case was committed to the Court of Sessions on 19.2.2008 and registered as S.T. No. 52 of 2008 and ultimately trial was transferred to Court of Additional Sessions Judge/ F.T.C. 1, Jalaun at Orai, who framed charge on 12.3.2008 against accused-appellant Awadhesh Kumar Dubey u/s 498A, 304B of I.P.C. and 3/4 of D.P. Act. The charge reads as under:

“आरोप

मैं, रमेश गुप्त, अपर सत्र न्या०/फा०ट्रै०को०-01, जौलौन स्थान उरई आप अभियुक्त अवधेश कुमार दुबे पुत्र रमेशचन्द्र को निम्न प्रकार से आरोपित करता हूँ-

यह कि आपके द्वारा घटना दि० 28.11.07 समय 4 बजे शाम बहद मकान ग्राम पीपरी अठगई या बफासला करीब 6 किमी० दक्षिण अंतर्गत थाना सिरसाकलार जनपद जालौन में, के पूर्व वादी मुकदमा की भतीजी अर्पणा उर्फ सोनी से दहेज के रूप में एक मोटरसाइकिल व 20 हजार रूपये नगद की मांग की गयी और न देने पर उसके साथ मानसिक व शारीरिक क्रूरता का व्यवहार किया गया। इस प्रकार आपके द्वारा किया गया कृत्य धारा 498ए भा०द०वि० के अंतर्गत दण्डनीय अपराध व इस न्यायालय के प्रसंज्ञान के अंतर्गत है।

यह कि वादी मुकदमा की भतीजी अर्पणा की शादी के तीन वर्ष पश्चात उसकी मृत्यु असामान्य परिस्थितियों में उसकी ससुराल में हुई। और उसकी मृत्यु से पूर्व आपके द्वारा उसके साथ दहेज की मांग की गयी और मांग पूरी न होने पर उसके साथ निर्दयता बरती गयी। इस प्रकार आपके द्वारा कारित कृत्य धारा 304बी के अन्तर्गत दण्डनीय व इस न्यायालय के प्रसंज्ञान के अंतर्गत है।

यह कि घटना दि० 28.11.07 समय चार बजे के पूर्व, बहद स्थान ग्राम पीपरी अठगईया बफासला करीब 6 किमी० दक्षिण में आपके द्वारा वादी मुकदमा की भतीजी से अपर्णा से दहेज के रूप में 20 हजार रूपये नगद व एक मोटरमाइकिल की मांग की गयी। इस प्रकार आपके द्वारा किया गया कृत्य धारा ¾ दहेज प्रतिषेध अधिनियम के अंतर्गत दण्डनीय अपराध व इस न्यायालय के प्रसंज्ञान के अंतर्गत है।

अतएव एतद द्वारा आप को निर्देशित किया जाता है कि उक्त अपराध के लिए आपका विचारण इस न्यायालय द्वारा किया जाए।

दि० 12.03.08 ह० अपठनीय”

“Charge

I, Ramesh Gupt, Additional Sessions Judge/ F.T.C.-01, Jalaun at Orai, hereby charge you accused Awadhesh Kumar Dubey son of Ramesh Chandra with the following charges:

That on 28.11.2007 at 4.00 P.M. in the house situated in Village Pipari Athgaiya, within the area of Police Station Sirsakalar, District Jalun, about 6 Kms away towards south, you have demanded a motorcycle and Rs. 20000/- in cash as dowry from the niece of the informant and on non-fulfillment of the aforesaid demand you have subjected her with cruelty mental and physical. Thereby you have caused an offence punishable under section 498A I.P.C. and within the cognizance of this court.

That death of Aparna, niece of the informant, occurred in her nuptial house under unusual circumstances after three years of her marriage. Before her death you had made a demand of dowry and gravity of your cruelty with her increased for non-fulfillment of demand of dowry. Thereby you have committed an offence punishable under section 304B I.P.C. and within the cognizance of this court.

That prior to the incident, which occurred on 28.11.2007 at abut 4.00 P.M. in Village Pipari Athgaiya situated about 6 Kms away towards south from the police station you had demanded Rs. 20,000/- cash and a motorcycle in dowry from Arpana, niece of the informant, thereby you have committed an offence punishable under section 3/4 of the Dowry Prohibition Act within the cognizance of this court.

You are hereby directed to be tried for the aforesaid offences by this court.”

[English translation by Court]

6. Accused denied charges and claimed to be tried.

7. Prosecution examined PW1- Yashoda Nandan (father of the deceased), PW2- Radhunandan Dubey (complainant), PW3- S.I. Sri Krishna (I.O.), PW4- P.L. Sankhwar, S.D.M., who prepared the inquest report with other necessary documents at the place of occurrence, PW5- Constable Moharrir Kailash Nath Yadav, who had registered the F.I.R. and has formally proved chick FIR (Exhibit Ka11), PW6- Dr. M. S. Rajpoot, Medical Officer, who conducted autopsy examination and has proved postmortem examination report (Exhibits Ka13). He also proved his signature on police papers received at the time of post-mortem (Ext. Ka-14 and Ka-15). PW7-S.I. Brijesh Singh, had visited the spot and had proved taking of sample of blood stained and plain earth from the spot with preparation of recovery memo (Exhibit Ka16).

8. Thereafter statement of accused-appellant was recorded u/s 313 Cr.P.C. in which he stated the prosecution story to be false. He claimed that he has been falsely implicated in this very Case Crime number, but admitted his marriage as per Hindu rituals with deceased Arpana on 27.6.2004. Demand of dowry was denied. His implication in the crime, investigation and filing of charge-sheet has been attributed to informant’s influence on police. He has categorically stated that “oknh eqdnek j?kquanu nqcs vius HkkbZ ds ifjokj ij gkoh FkkA tc viZ.kk toku gks xbZ rks mls Hkh vius ncko esa fy;kA viZ.kk dh vLoHkkfod e`R;q tc gqbZ rc eSa cacbZ esa FkkA”

“Informant Raghunandan Dubey had overpowered the family of his brother. When Arpana became young, he also took her under his pressure. At the time of death of Arpana, he was in Mumbai.”

(English translation by Court)

9. No evidence in defence was given.

10. On appreciation of evidence and after hearing both the sides, Trial Court convicted and sentenced the accused-appellant Awadhesh Kumar Dubey as stated above by the judgment and order impugned in this appeal.

11. Being dissatisfied with conviction and sentence awarded by Trial Court the appellant is before this court in this appeal.

12. We have heard Smt. Archana Singh, Amicus Curiae, appearing for the appellant and Sri Nikhil Chaturvedi, learned AGA for the State and have gone through the impugned judgment and lower court’s record.

13. Learned Amicus Curiae for the appellant has submitted that there is a clear variation in the manner of occurrence stated in the F.I.R., which has been improved and changed subsequently by the witnesses of fact showing that the prosecution story is not true. Plea of alibi has been taken by the accused-appellant before the Trial Court that he was not present on the spot on the date of occurrence. Mother and father of the appellant were named in the F.I.R. but no charge-sheet was submitted against them. There had been an alienation of land in favour of the son of the accused-appellant by them and the complainant has been made guardian of the minor child, whereas he was neither his natural nor probable guardian. Both the witnesses of fact are close relatives.

14. Per contra, learned AGA argued that it is an offence punishable u/s 304-B I.P.C. There is a presumption u/s 113 and 114 of the Evidence Act. The four essential ingredients of offence of dowry death have been cogently proved by the prosecution. Three of them were not disputed by the accused-appellant. The first that the accused-appellant is the husband of the deceased; second that the death of the deceased occurred under unnatural circumstances; that death occurred within seven years of marriage at her nuptial home and death was caused by bodily injury. Ocular testimonies of PW1 and PW2 have also proved fourth ingredient i.e., persistent cruelty with regard to demand of dowry of motorcycle and cash of Rs. 20,000/-.

15. The unnatural death of the deceased on 28.11.2007 at her nuptial home situate in Village Pipari within seven years of marriage (which was performed on 27.6.2004) was an undisputed fact. Death by ante-mortem strangulation has been proved by medical evidence. Ocular testimonies of the complainant (PW2) as well father of the deceased (PW1) have been found to be fully reliable regarding demand of dowry coupled with cruelty for demand of dowry by the husband (accused-appellant) and thereby this unnatural death of the deceased.

16. Section 304B- Dowry Death has been inserted by Section 10 Act No. 43 of 1986 with effect from 19.11.1986 provides as under:-

“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.”

17. In Satbir Singh Vs. State of Punjab (2001)8 SCC 633 Court has propounded meaning of “dowry”- it should be any property or valuable security given or agreed to be given in connection with the marriage. Customary gift or payment in connection with birth of child or other ceremonies unrelated to the marriage ceremony, held, do not fall within the ambit of “dowry”.

18. While propounding the ingredients of dowry death punishable u/s 304B I.P.C., Supreme Court has held that the essential components are:

(i) Death of a woman occurring otherwise than under normal circumstances, within 7 years of marriage.

(ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence under Section 304B.

19. In Smt. Shanti and another vs State of Haryana, (1991)1 SCC 371 as well as in Kans Raj Vs. State of Punjab, (2000) 5 SCC 207 Court has propounded that “in order to seek conviction u/s 304B I.P.C. against a person for the offence of dowry death, the prosecution is obliged to prove that the death of the deceased woman was caused by any burns or bodily injury or had occurred otherwise than under normal circumstances; such death should have occurred within seven years of her marriage; the deceased was subjected to cruelty or harassment by her husband or his relations; such cruelty or harassment should be for or in connection with any demand for dowry; and such cruelty or harassment to the deceased should have been made soon before her death.”

20. While propounding law upon the expression “soon before death” Supreme Court held that the expression itself indicates that there must be existence of proximate and live links between the effect of cruelty based on dowry demand and the concerned death.

21. The death caused other than under normal circumstances means the death not in the usual course but apparently under suspicious circumstances, being not caused by burn or bodily injury.

22. In the present case death of deceased occurred within three years of marriage at her nuptial home by bodily injuries proved by the Medical Officer (PW6) by oral testimony as well as documentary evidence (Exhibit Ka13), which proves the death owing to ante-mortem injuries and strangulation and inflicting of injuries mentioned in Exhibit Ka13. This testimony has neither been rebutted by defence nor cogently explained by the convict appellant in his statement recorded u/s 313 Cr.P.C.

23. PW1-Yashoda Nandan, father of the deceased, in his testimony, in examination in chief, has stated that the marriage of his daughter Arpana alias Soni was performed with appellant Awadhesh Kumar Dubey on 24.6.2004. Rs. Two lacs were spent in the marriage including dowry but her in-laws were not satisfied. His second daughter Sapna was married in April 2006. Dowry given in the marriage of Sapna was at par the marriage of Arpana @ Soni but a motorcycle was given in the marriage of Sapna, which had not been given in the marriage of Arpana @ Soni and after this marriage husband and in-laws of Arpana @ Soni had been demanding a motorcycle as additional dowry. Appellant Awadhesh Kumar Dubey was torturing her regarding this demand. This was being complained by Arpana to her parents whenever she visited her parental home. She was persuaded and sent back to her nuptial home under anticipation that all things would be normal in future but information of her death was received on 27.11.2007. This witness was at his job at Agra on the said date and on receiving information, he came to his village Kuthaund and on the next day, reached village Athgaiyan. His daughter Arpana was murdered by her husband because of non-fulfillment of demand of additional dowry of motorcycle. Appellant had been demanding Rs. 20,000/- cash along with motorcycle. In cross-examination he stated that his monthly salary was Rs.7500/-, his brother Raghunandan was having a shop of sweets and fast food at Town Kuthaund. His statement was taken by Circle Officer at Jalaun. Ramesh Chandra, father of the appellant, had transferred 8 Bighas of agricultural land in the name of the minor son of the appellant in which Raghunandan has been entered as guardian and this deed was executed in the presence of this witness as well as his wife and subsequently an affidavit was filed within two days to the I.O. A suggestive question has been put to this witness that he and his wife received consideration for getting Ramesh Chandra and his wife exonerated from this case. This has been answered in negative. He maintained parity regarding dowry given in the marriage of his second daughter but in addition one motorcycle was given by him and after this marriage the appellant used to commit cruelty on the deceased Arpana @ Soni for not giving the motorcycle to him. A suggestive question has been given by learned counsel for defence to this witness that the accused was in Mumbai on the day of occurrence, which has been answered in negative. No evidence in defence was adduced by appellant to prove the plea of alibi. There is no contradiction, exaggeration or embellishment in the testimony of this witness, rather he has fully proved that the convict appellant is his son-in-law and marriage of deceased Arpana @ Soni was performed on 27.6.2004. His second daughter Sapna was married in April 2006 in which a motorcycle was given in the dowry and after this, the appellant demanded motorcycle as an additional dowry with cash of Rs. 20,000/-. Arpana was put in persistent torture owning to non-fulfillment of this demand of additional dowry. She was found dead under unnatural circumstances by strangulation and causing ante-mortem injuries on her person on 27.11.2007. Hence, persistent cruelty regarding demand of motorcycle and cash of Rs. 20,000/- as additional dowry has been proved by this witness.

24. PW2 is the informant, Raghunandan, who is real uncle of the deceased. He was with good financial status with no kids or wife of his own. He was looking after the family of his elder brother Yashoda Nandan, who was in his job at Agra. He has said that in the marriage of Arpana Rs. 2,50,000/- was given as dowry. After marriage whenever Arpana visited her parental home, complained regarding demand of a motorcycle and Rs. 20,000/- as additional dowry by her husband and in-laws. Torture with regard to it by her husband was always complained to them. On 28.11.2007 at about 5.30 P.M. father-in-law of Arpana informed him on telephone about untoward incident and summoned him. He along with his family members and villagers rushed to nuptial home of Arpana, where she was found dead with oozing of blood from her mouth and nostrils. Village Pradhan and others also rushed to the spot. He filed written report at Police Station Sirsa Kalar after getting it scribed by Pradhan Ram Narayan Dixit at Pipari. This F.I.R. was proved by this witness and exhibited as Exhibit Ka1. After registration of Case Crime number the police had gone to the spot. Inquest report (Ext. Ka-2) was got prepared under his signature on the instrcution of the S.D.M. In the categorical answer given to the questions put to this witness, he has stated that ” viZ.kk ds ifr vo/ks’k vkils ngst dh ekax djrs Fks vkSj geyksxksa }kjk ngst dh ekax iwjh u djus ds dkj.k mldks ekjihV djds vo/ks’k us gR;k dj nh gSA”

“Awadhesh, husband of Arpana was demanding dowry from us and because of non-fulfillment of the demand of dowry Awadhesh had killed her by assaulting her.” (English Translation by Court)

25. In the cross-examination PW2 has explained his earning to be Rs. 8000/- per month with maximum expenditure of Rs.2000/- per month and savings of Rs. 6000/- per month. He was having a shop at town Kuthaund. Arpana was having a son Shivansh. Though, he has denied execution of sale deed by father of the appellant Awadhesh Kumar Dubey in favour of Shivansh but we find this part of his evidence untrustworthy. At the time of lodging of report this witness got the report lodged against appellant and his parents but subsequently within 9-10 days he came to know about innocence of parents, hence he filed an application before the I.O. A suggestive question regarding accused-appellant being in Mumbai at the time of the occurrence, has been answered in negative. No evidence has been adduced by the appellant in proof of alibi. We find no exaggeration, contradiction and embellishment in the statement of this witness.

26. PW3, Sri Krishna, is the I.O., who has formally proved his investigation that while being posted as Circle Officer at Jalaun on 28.11.2007 he received information on telephone as well as R.T. set that Case Crime No. 383 of 2007, u/s 498A, 304B I.P.C. and 3/4 D.P. Act was registered at P.S. Sirsa Kalar, and he was deputed for investigation. Thereafter he rushed to P.S. Sirsa Kalar, where he received copy of chick FIR. Thereafter constable clerk Kailash Nath Yadav was examined. Owing to late night, spot could not be inspected on that day and was inspected on 29.11.2007. Blood stained and plain earth were taken from the spot and their recovery memo was copied in the case diary. Statement of complainant Raghunandan Dubey was recorded in the case diary. Upon his pointing out site map (paper no. Ka7) was prepared, which has been proved as Exhibit Ka3. Appellant Awadhesh Kumar Dubey was arrested on 30.11.2017. Autopsy report was copied in the case diary, statement of Executive Magistrate, P. S. Sankhwar was got recorded, copy of “Vyavhar” in all six pages were taken in possession and its recovery memo was prepared, which has been proved as Exhibit Ka 4. Statements of Shivrani, mother of the deceased, Yashodanandan, father of deceased, Nanke, a witness of Panchayatnama, constables Ajay Singh and Brijendra Singh, who had taken the dead body for postmortem examination, Dr. M. S. Rajpoot, who had conducted postmortem examination on the dead body of the deceased, Constable Rajesh Chanda, Shiv Kumar, Mataru Singh, Ram Narayan, scribe of the F.I.R., Satish Pathak and Bhupendra were recorded by him. Affidavits of Raghunandan Dubey (complainant) and Yashodanandan were noted in the case diary. After completion of investigation charge-sheet against the appellant Awadhesh Kumar Dubey was got filed under his handwriting and signature. This has been proved as Exhibit Ka5. Material exhibits 1 to 6 have been formally proved by this witness. In cross-examination the examination in chief has been reiterated with no material contradiction.

27. PW4, P. S. Sankhwar, Executive Magistrate, has proved inquest proceedings and preparation of documents regarding it. The same has been scribed by Head Constable Dhan Singh under instruction of this witness. After inquest proceedings, dead body was properly sealed and after preparation of specimen seal, was sent for postmortem examination through constables Ajay Singh and Brijendra Singh. Relevant papers have been formally proved by this witness as Exhibit Ka 6 to Ka 10. Inquest report (Exhibit Ka2) has been proved by this witness. In cross-examination there is no deviation or exaggeration.

28. PW5, Kailash Nath Yadav, had registered F.I.R. on the basis of written report of the complainant and has proved date time and place under his signature. He has formally proved chick F.I.R. (Exhibit Ka11) and G.D. Entry (Exhibit Ka 12). There is no contradiction in the testimony of this formal witness.

29. PW7 is S.I. Brijesh Singh, P.S. Sirsa Kalar, who had visited the spot on the very date of lodging of the F.I.R. prepared site plan, took blood stained and plain earth from the spot, prepared specimen seal in the presence of complainant Raghunandan Dubey and this has been exhibited as Exhibit Ka 16. There is no deviation in the cross-examination, rather he has corroborated the testimony of the Executive Magistrate.

30. In the statement of the accused-appellant Awadhesh Kumar Dubey recorded u/s 313 Cr.P.C., marriage of deceased with appellant on 27.6.2004 is undisputed. Giving of dowry in the marriage of second daughter of Yashodanandan has not been disputed. Bald reply of “Galat Hai” (it is incorrect) has been given in the answer to question nos. 2, 4, 5 and 6. Plea of alibi i.e. being in Mumbai has been taken in answer to question no. 7 but no evidence regarding it has been adduced by the appellant in defence.

31. Thus, prosecution by oral as well as documentary evidence has proved the ingredients of the offence punishable u/s 304B of I.P.C. There was no doubt about commission by husband/ convict appellant, which is punishable u/s 304B I.P.C. No evidence has been adduced by the appellant in defence in rebuttal of the presumption.

32. In Rajender Singh Vs. State of Punjab (2015) 6 SCC 477 paras 1, 13 and 20 Court has propounded as under:

“Dowry death is a great social evil practised against women of this country for centuries. Section 304-B I.P.C. is a stringent provision meant to combat this social evil of alarming propositions. Therefore, this provision must be given a fair, pragmatic, and common sense interpretation so as to fulfill the object sought to be achieved by Parliament. A strict construction merely it being a penal statute would not be appropriate.”

33. In Sanjay Kumar Jain Vs. State of Delhi (2011) 11 SCC 733, in para 44 Court has propounded as under:

“Dowry system is a big slur and curse on our society, democracy and the country. It is incomprehensible how such unfortunate and condemnable instances of dowry deaths are frequently occurring in our society. All efforts must be made no combat and curb the increasing menace of dowry death.”

34. In view of the above discussion, in our view, the Trial Court has rightly appreciated the facts and law placed before it and the impugned judgment merits its affirmation in the appeal. The appeal merits dismissal.

35. In the result, Jail Appeal is dismissed. Impugned judgment and order dated 26.8.2018 passed by Additional Sessions Judge/ F.T.C. 1, Jalaun at Orai, in S.T. No. 52 of 2008, State Vs. Awadhesh Kumar Dubey, related with Case Crime No. 383 of 2007, of P.S. Sirsa Kalar, District Jalaun, convicting appellant Awadhesh Kumar Dubey for an offence punishable u/s 498A I.P.C. with a sentence of three years R.I. and fine of Rs. 4000/-, in default one year R.I., for the offence punishable u/s 304B I.P.C. with a sentence of life imprisonment and for the offence punishable u/s 4 of the Dowry Prohibition Act two years’ R.I. and fine of Rs. 2000/- and in default fifteen days R.I. is hereby confirmed.

36. Lower court record alongwith a copy of this judgment be sent back immediately to District Court concerned for compliance and further necessary action.

37. A copy of this order be also sent to appellant through concerned Jail Suprintendent.

38. Before parting, we find it appropriate to place on record our commendation to learned counsel, who has argued this appeal as Amicus Curiae with ability and actually assisted the Court effectively. We provide that she shall be paid counsel’s fee as Rs. 11,000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad, to Smt. Archana Singh, Amicus Curiae, without any delay and, in any case, within 15 days from the date of receipt of copy of this judgment.

Order Date :- 09.01.2019

Pcl

 

 

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