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Budhiman Singh vs State Of U.P. on 20 April, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

Court No. – 14

Case :- CRIMINAL APPEAL No. – 987 of 2016

Appellant :- Budhiman Singh

Respondent :- State Of U.P.

Counsel for Appellant :- Rama Kant Jayswal

Counsel for Respondent :- Govt. Advocate

Hon’ble Mrs. Rekha Dikshit,J.

1. This appeal assails the correctness of the judgment and order dated 14.07.2016 passed by learned Additional Sessions Judge/Fast Tract Court, Hardoi in Sessions Trial No.833 of 2008, arising out of Case Crime No.305 of 2007, whereby the Sessions Judge has convicted the appellant-accused namely, Budhiman Singh and sentenced him under Section 498A I.P.C. for three years rigorous imprisonment with fine of Rs.10,000/-, in default, to undergo three months additional simple imprisonment, under Section 304B IPC for seven years rigorous imprisonment and under Section 4 of Dowry Prohibition Act for two years’ rigorous imprisonment with fine of Rs.5,000/-, in default, to undergo two months additional simple imprisonment. All the sentences were directed to run concurrently.

2. In brief, the prosecution case is that the complainant Shiv Pratap Singh moved an application in Police Station Atarauli stating therein that he solemnized the marriage of his sister Anju Devi with appellant Budhiman Singh @ Raju on 09.05.2004 as per his capacity and status, but the family members of the appellant were not satisfied with the dowry and used to harass his sister in connection with insufficient dowry. Whenever, his sister used to visit his house, she always narrated the cruelty and harassment subjected to her by her in-laws. On 01.04.2007 around 08:30 hours, an unknown person informed him through telephone about the illness of his sister, he rushed to her house where he found the dead body of his sister lying in her house. Apparently, it appeared that as if his sister has been done to death by strangulation.

3. A first information report was lodged on the premise of said application on 02.04.2007 at Case Crime No.305 of 2007, under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act against the accused persons. The dead body of the deceased was sent for postmortem, where it was conducted by Dr. Ajay Verma, PW-3. Exhibit Ka-2 is the postmortem report in which ante mortem injuries are as follows:

“(i) Ligature mark 16 x 2 cm on both side neck.

(ii) 6 cm below left ear.

(iii) 4 cm below right ear.

(iv) 3 cm below adenoid process.”

4. The case was investigated by the Additional Superintendent of Police, Har Dayal Singh, PW-5 and charge-sheet exhibit Ka-5 was submitted after completion of investigation against the accused-appellant under Sections 498A, 304B, 323 IPC and 3/4 Dowry Prohibition Act. Charge was framed against the appellant under Sections 498A, 304B IPC and 4 Dowry Prohibition Act and alternative Section 302/149 IPC by the trial court to which the accused-appellant denied and claimed trial.

5. To bring home the guilt of the appellant, the prosecution has examined as many as six witnesses.

6. PW-1 Shiv Pratap Singh, complainant of the case, has substantiated the allegations made in the first information report regarding marriage of his sister with the appellant on 09.05.2004 as per his capacity and status. It has further been stated that in-laws of his sister, used to torture and harass her for additional dowry and demanded financial help for purchase of a plot in Lucknow, which he could not fulfill, consequently on 01.04.2007 they all strangulated his sister to death on account of insufficient dowry. He has categorically mentioned that before death of the deceased, he had conversation with his sister pertaining to torture on account of insufficient dowry, consequently his brother Vishnu Pratap Singh PW-2 visited the house of his sister.

7. PW-2 Vishnu Pratap Singh, brother of the deceased has also substantiated the version of F.I.R. and statement of PW-1 confirming marriage of the deceased on 09.05.2004 with the accused-appellant and her torture and harassment due to insufficient dowry. When he reached the house of his sister on 01.04.2007, after receiving information of her illness, he found the dead body of his sister lying in her house.

8. PW-3 Dr. Ajay Verma, who conducted postmortem of the deceased, has proved the postmortem report as exhibit Ka-2.

9. PW-4 Constable Virendra Bahadur Singh has proved the chik F.I.R. exhibit Ka-3 and G.D. Exhibit Ka-4 in his statement on oath.

10. PW-5 Har Dayal Singh, Additional Superintendent of Police, Investigating Officer of the present case has proved charge-sheet exhibit Ka-5, site plan exhibit Ka-4A in his testimony.

11. PW-6, Constable Kaulesar Yadav has proved recovery memo exhibit Ka-10 in his deposition as secondary evidence on behalf of Sub Inspector, Arun Kumar Shukla.

12. Incriminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C. in which the appellant has denied the entire incident and claimed that he has been falsely implicated in the present case. The appellant has adduced three witnesses in defence to establish his innocence and document as per list 162-B, 163-B, 164-B, 165-B, 166-B and 167-B which relates to the original ration card, original ‘Akar Patra’ and Khatauni, medical papers and photocopies of order passed by the Hon’ble Court.

13. D.W.-1 Ram Prakash has deposed on oath that he attended the marriage of the appellant and deceased in which there was no demand of dowry. It has also been stated that the rest of the family members were living separately from the appellant.

14. D.W-2 Hanuman Singh has also substantiated the separate living of other accused from the appellant and has also stated that the appellant is blind and handicapped since birth and he was much younger than the deceased, due to which there was less compatibility between both of them. It has further been stated that the appellant got the deceased medically treated but he never harassed or tortured her in connection with the dowry.

15. D.W.-3 Sharda Singh has deposed on oath that he was the mediator in the marriage of the appellant and deceased and has confirmed the separate living of other family members from the appellant. He has also stated that the appellant was 19 years of age at the time of marriage and handicapped with weak eyesight. There was no dispute in the marriage and no demand of dowry was made by the appellant or his family members.

16. The trial court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act and sentenced him under Section 498A I.P.C. for three years rigorous imprisonment with fine of Rs.10,000/-, in default, to undergo three months additional simple imprisonment, under Section 304B IPC for seven years rigorous imprisonment and under Section 4 of Dowry Prohibition Act for two years’ rigorous imprisonment with fine of Rs.5,000/-, in default, to undergo two months additional simple imprisonment. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal.

17. Heard Rama Kant Jaiswal, learned counsel for the appellant, Mr. Rajesh Singh, learned A.G.A. for the State and perused the record.

18. Learned counsel for the appellant has submitted that no offence under Section 304B IPC is made out as there is no specific demand of money in the first information report nor in the oral testimony of PW-1 and PW-2, the witnesses of fact produced by the prosecution. It has further been argued that both the aforesaid witnesses have improved upon in their statements alleging demand of money for purchase of plot in Lucknow though no specific amount has been mentioned by any of them.

19. Learned counsel for the appellant has also argued that there is no evidence regarding the deceased being subjected to cruelty or harassment by the appellant “soon before her death”. Initially six accused persons were tried for the offence under Section 304B IPC in pursuance of the F.I.R. lodged by the complainant but except for the appellant, rest of the accused persons have been acquitted by the learned court below. Learned counsel has submitted that there is no additional evidence against the appellant but for the evidence on which premise rest of the accused persons have been acquitted by the court below as such it cannot be said that the accused-appellant committed any offence under Section 304B IPC. It has further been argued that in a span of three years, no complaint in connection with the demand of dowry was ever made by the complainant though it has been alleged that since marriage, there was dissatisfaction due to insufficient dowry.

20. It has also been submitted that the accused-appellant was suffering from weak eyesight, was handicapped and five years younger to the deceased. Since there was no issue out of their wedlock, the deceased was under depression due to incompatibility in the marriage and having no issue, consequently she committed suicide by hanging herself. There is no evidence, which may distinguish the case of the accused-appellant from that of other accused, who have been acquitted by the trial court under Section 304B IPC. It has also been submitted that but for the ligature mark, no other injury was found on the body of the deceased, as such suicide by herself is a probable circumstance. Moreover there are lot of discrepancies and contradictions in the statement of witnesses which falsify the prosecution case.

21. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellants in the commission of crime in this case. The FIR version has fully been supported by medical and ocular evidence, based on the said evidence, the court below rightly convicted the appellants and the impugned judgment warrants no interference.

22. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.

23. In the present case, admittedly, the deceased was married with the appellant on 09.05.2004 as per the capacity and status of the complainant but the family members of the appellant were never satisfied with the dowry, consequently tortured the deceased mentally, which she used to narrate to the complainant whenever, she visited his house.

24. The appellant has been charged under Sections 498A, 304B and 4 Dowry Prohibition Act. In this context, the provisions of Section 304B IPC are taken into account which reads as under:

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

Explanation.- For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

The essential ingredients of the said offence are: (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have been occurred within seven years of marriage (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry; and (v) such cruelty is shown to have been meted out to the woman soon before her death.

The Explanation appended to Section 304B defines dowry to have the same meaning as contained in Section 2 of the Dowry Prohibition Act, 1961, which 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) applied.”

Section 113B in the Evidence Act has been inserted, which reads as under:

“113B. Presumption as to dowry death. – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.-For the purposes of this section “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)”

25. Indisputably the marriage of the deceased and the appellant took place on 09.05.2004 but the family members of the accused-appellant were not satisfied with the dowry as such they used to torture the deceased. Admittedly, the deceased died on 01.04.2007, which clearly establishes the fact that the death of the deceased occurred within seven years of marriage.

26. This fact is also not disputed that the death of the deceased was caused by hanging due to asphyxia, which has been established by the postmortem report of the deceased as well as oral testimony of PW-3 Dr. Ajay Verma. Thus, this ingredient is also established that the deceased died an unnatural death, otherwise than under normal circumstances.

27. As per the definition of “dowry death” in Section 304B IPC and the wording in the presumptive provision of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, is that the `woman’ must have been “soon before her death” subjected to cruelty or harassment “for, or in connection with, the demand for dowry”. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. 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. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC.)

(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.

28. Now, I advert to the assessment of evidence brought on record by the prosecution to show that the cruelty or harassment was meted out to the deceased for brining insufficient dowry. PW-1, the complainant and PW-2 brother of the deceased have categorically stated in their testimony that the in-laws of the deceased were not satisfied with the dowry given in the marriage and always demanded financial help for purchased of plot in Lucknow, but none of the witness has clearly indicated as to when was such demand made and by whom and what action or reaction was shown by them towards her in-laws though an important factor is that no such demand find place in the first information report lodged by the complainant himself.

29. Mere bald allegation regarding demand of dowry and cruelty or harassment on that account will not suffice the essential ingredient of the provisions of dowry death. As per contents of the first information report also, a general allegation of demand of dowry has been levelled against the persons named therein but nothing specific has been stated. No particular dates or associate evidence has been led to establish the fact that the deceased was subjected to cruelty or the harassment soon before her death and that too in connection with any demand for dowry. The evidence led by the prosecution has to be of the extent which may establish that the harassment was to the extent of resulting in the death of deceased. Mere negative statements in connection with insufficient dowry will not suffice to establish the provisions of dowry death.

30. In the instant case, only two witnesses of fact have been produced, namely, PW-1 and PW-2, who have stated in their testimony that there was a demand of money for purchase of plot in Lucknow, but nowhere, it has been connected with the term ”dowry’. Whether mere demand of financial help for purchase of plot in Lucknow can be termed as ”dowry’ is highly questionable. The first information report has vague allegation of dowry and harassment. There is no mention of any demand in connection with dowry for purchase of plot in Lucknow. None of the witness has stated that, what was the cruelty or harassment on part of the appellant which resulted in the death of the deceased, making it ”dowry death’. To convict the death of deceased, there must be some proximate live links with the death and demand of dowry.

31. Learned counsel for the appellant has referred Gurnaib Singh v. State of Punjab; (2013) 7 SCC 108 wherein it has been observed:

”Mental cruelty – what is – held, in family life there can be differences, quarrels, misgivings and apprehensions but it is the degree which could raise the same to the level of mental cruelty – manner in which daughter-in-law should be treated.

32. In the present case as per the allegation of F.I.R. and the testimony of PW-1 and PW-2, it appears as if the prosecution is indicating towards mental agony to which the deceased was subjected by her in-laws but for mere bald allegation regarding negative statements there is nothing specific which may indicate that she was subjected to any sort of mental cruelty.

33. Another case referred to is State of Karnataka v. Dattaraj Others; (2016) 12 SCC 331 wherein it has been held:

“Demand allegedly made of Rs.20,000 for purchase of agricultural land was too remote to the occurrence, and therefore, would not satisfy requirement of “soon before her death” contemplated under Section 304B (1) IPC.”

34. In the present case also, there is a vague allegation regarding demand of money for purchase of plot in Lucknow, which do not have proximate or close nexus with the death of the deceased so that it may satisfy the requirement of “soon before her death” as contemplated under Section 304B (1) IPC.

35. Learned counsel for the appellant has also placed Sunil Bajaj v. State of M.P.; (2001) 9 SCC 417 wherein it has been held:

“Section 304B – dowry death – ingredients of – it being a deeming provision and having regard to gravity of punishment prescribed, court should take greater care and caution in examining the evidence and reaching its conclusion – on facts held, prosecution failed to establish two essential ingredients viz. soon before death, the deceased had been subjected to cruelty or harassment by her husband or relatives and the same was for or in connection with demand of dowry – hence accused husband cannot be convicted under Section 304B.”

36. In the aforesaid perspective, the evidence of witnesses of fact is to be appreciated in which the most noticeable factor is that PW-1 has stated that fifteen days before the death of the deceased, he had conversation with her regarding physical and mental harassment of the deceased by her in-laws, on which count he sent his brother PW-2 to pacify the dispute at her house, but, on the contrary PW-2, also brother of the deceased has stated that his nephew went to the house of the deceased and he also informed about the harassment, she is being subjected to but there is no such statement that he himself visited the house of the deceased. The alleged nephew has not been examined in evidence and the testimony of PW-1 and PW-2 regarding cruelty or harassment “soon before her death” is to remote to be connected with the demand of dowry. Even before this, it has to be established by the prosecution whether financial help for purchase of plot in Lucknow can be termed as demand for or in connection with dowry. There is no evidence on record to establish the nature of cruelty or harassment to which the deceased was allegedly being subjected to. In this context a reference may be made to Durga Prasad and another v. State of Madhya Pradesh; (2010) 9 SCC 73 wherein it has been observed:

“dowry death due to suicide – presumption of causing – ingredients of evidence to sustain such presumption – proof of subjecting victim to cruelty and harassment prior to her death, held, not sufficient – It must also be proved that she committed suicide on account of such cruelty and harassment – These are also the ingredients of evidence required to be led for the presumption under Section 113-B, Evidence Act – Moreover, it has also to be shown that such cruelty or harassment was for, or in connection with, any demand of dowry – Only then can resultant death be called “dowry death”. Benefit of doubt given – except bald statements of victim’s mother and brother alleging that victim had been subjected to cruelty and harassment prior to her death, no other evidence adduced to prove that she committed suicide on account of the same.”

37. Another case, which may be referred to is Biswajit Halder @ Babu Halder and others v. State of W.B.; (2008) 1 SCC 202 wherein it has been held:

“dowry death – ingredients – on facts, conviction not sustainable – subjecting the deceased to cruelty and harassment must be shown to be for or in connection with the demand for dowry”

38. In this case, there is practically no evidence to show that there was any cruelty or harassment for or in connection with demand of dowry. This deficiency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304-B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with demand of dowry. Therefore, the prosecution has apparently failed to prove the aforesaid aspect.

39. Learned counsel for the appellant has vehemently argued that on the same set of evidence other accused persons have been acquitted whereas he has been convicted though there is no other additional evidence, which may implicate the appellant in the said commission of crime. The entire consideration of the oral as well as documentary evidence on record, admittedly, there is no additional evidence implicating only the appellant for commission of said crime. In this context, he has referred Bhola Ram v. State of Punjab; (2013) 16 SCC 421, wherein it has been held :

“Dowry death – merely making of demand for dowry – reiterated, without other ingredients of Section 304-B IPC being established, the same is not enough for conviction under Section 304-B IPC – dowry death victim should also have been treated with cruelty or harassed for dowry, either by her husband or a relative – herein, even assuming the silent or conniving participation of appellant-accused (brother of deceased victim’s husband) in making demands for dowry, there is absolutely no evidence on record to suggest that he actively or passively treated deceased victim with cruelty or harassed her in connection with, or for, dowry.”

40. The testimony of PW-1 and PW-2 also do not indicate any specific demand on part of the appellant or any categorical harassment or cruelty done by him to the deceased. There is general, same allegation against all the family members including husband and when they have not been found guilty on the same set of facts, the instance of the husband being held guilty for the offence appears to be highly improbable. The argument of the learned counsel for the appellant appears to be tenable.

41. In order to raise a presumption under Section 113-B of Evidence Act, which is relatable to Section 304-B IPC a heavy burden has been shifted on to the accused to prove his innocence. Having regard to the language of Section 113-B of Evidence Act, which indicates that when the question arises as to whether a person has committed the dowry death of a woman and it is shown that soon before her death, she was subjected to cruelty or harassment by such other person or in connection with any demand for dowry, the court shall presume that such person had caused such dowry death.

42. The legal fixation ought to be created must be raised only on fulfillment of the condition precedent therefor. All the requisite ingredients of the offence must be brought home before the presumptive evidence is to be used by the court for holding the accused guilty.

43. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution.

44. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined.

45. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. 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.

46. In this case, the testimony of PW-1 and PW-2 merely indicates a vague demand of money for purchase of plot in Lucknow but nowhere any cruelty or harassment immediate before death of the deceased has been attributed to the appellant. It has to be established that the deceased was subjected to cruelty in connection with the demand for dowry, which consequently resulted in her death, but there is nothing on record to show the same as such it may be concluded that the prosecution could not prove that the deceased was ever subjected to cruelty or harassment by the accused appellant which resulted in her death. In absence of proof of such ingredients presumption for committing the offence under Section 304-B IPC could also not be raised in the present matter. But for injury consequent to hanging, no injury was found on the body of the deceased, which further diminishes the presumption under Section 113-B of the Evidence Act.

47. Thus on the basis of analysis made herein above, this Court is of the view that the trial court’s finding on the point of holding guilty the accused appellant for the offence under Sections 498A, 304B IPC and Section 4 Dowry Prohibition Act is not in accordance with the evidence and law and the same is not sustainable and the appeal filed by the appellant is liable to be allowed.

48. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly entitled to acquittal.

49. In the result, the appeal is allowed and the judgment and order dated 14.07.2016 passed by learned Additional Sessions Judge/Fast Tract Court, Hardoi in Sessions Trial No.833 of 2008 is hereby set aside. Appellant Budhiman Singh is acquitted on benefit of doubt from the charges under Sections 498A and 304B IPC and under Section 4 of Dowry Prohibition Act.

50. Appellant Budhiman Singh is in jail. If he is not wanted in any other case, he be released from jail forthwith.

51. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgement to the District Judge, Hardoi forthwith.

Order Date:-20.4.2018

Anupam S/-

 

 

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