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Chandra Prakash Rathaur vs State Of U.P. on 9 August, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 20 Reserved

Case :- CRIMINAL APPEAL No. – 3086 of 2012

Appellant :- Chandra Prakash Rathaur

Respondent :- State Of U.P.

Counsel for Appellant :- Anurag Pathak,Ram Surat Patel,S.P. Lal

Counsel for Respondent :- Govt. Advocate

*******

Hon’ble Ravindra Nath Kakkar,J.

This criminal appeal has been preferred against the judgment and order dated 11.07.2012 passed by Additional Sessions Judge/Temporary Ex-Cadre Court No.1, Jalaun at Orai in S.T. No.122 of 2011 arising out of Case Crime No.37 of 2011, under Sections 498A, 304-B, 302, 201 I.P.C. and ¾ D.P. Act, Police Station Konch, District Jalaun, by which the appellant was convicted and sentenced to two years R.I. and fine of Rs.5000/- under Section 498-A I.P.C.; further ten years R.I. under Section 304-B; further one year R.I. and fine of Rs.2000/- under Section 201 I.P.C.; further two years R.I. and fine of Rs.5000/- under Section 4 of D.P. Act. In default of payment of fine to further two months under Section 498-A I.P.C., 15 days under Section 201 I.P.C.; two months R.I. under Section 4 of D.P. Act. All the sentences were ordered to run concurrently.

Prosecution story, in brief, is that sister of the complainant Raj Kumari was married to accused appellant Chandra Prakash Rathaur five years prior to the incident at Rahkola Devi Temple, Daboah which was solemnized by Adarsh Vivah Samiti. After one year of her marriage, her husband and in-laws including father-in-law, mother-in-law, jeth and jethani illegally demanded Rs.2 lacs as dowry and started harassing and torturing his sister which was settled by intervention of Panch but it was in vein. On 9.1.2011 at about 8 p.m. night complainant was informed by the local police that his sister was burnt to death. Complainant and his relatives reached to the resident of his sister where he was informed that his sister was done to death by strangulation and the dead body was kept on the roof. The accused persons wanted to destroy the body of deceased. The case was registered against the accused persons including the accused appellant. It also transpires that after lodging of the FIR accused Thakur Das (father-in-law) on the same day gave an application to the police station that she (deceased) committed suicide by burning herself. After investigation charge sheet was filed against the accused persons under Sections 498A, 304-B, 201 I.P.C. and ¾ D.P. Act. In the alternative charge under Section 302 I.P.C. was framed.

The prosecution in support of its case examined as many as ten witnesses in which P.W.1 Lakhan Singh – complainant and brother of deceased Raj Kumari, P.W.2 Kashi Prasad – father of deceased, P.W.3 Waheed – witness of post mortem, P.W.4 Kadhore – witness of post mortem, P.W.5 Motilal – witness of fard taken from the element of mobil oil and pieces of roof, P.W.6 Dr. Avnesh Kumar, who conducted post mortem examination, P.W.7 Dhananand, who is also a witness of fard taken from oil and physical materials, P.W.8 Arun Kumar Dixit – Investigating Officer, P.W.9 Constable Ramkrishna, who proved the chik FIR and relevant G.D. and P.W.10 Veer Singh Yadav – Naib Tehsildar who is a witness of inquest.

After close of prosecution evidence statement of the accused-appellant under Section 313 Cr.P.C. was recorded wherein he stated that he has been falsely implicated in this case.

After hearing both the parties, learned trial court has convicted the accused appellant Chandra Prakash Rathaur and rest of the accused persons, namely, Thakur Das @ Thakuri (father-in-law) Smt. Keshkali (mother-in-law), Bhagat Singh (jeth) and Smt. Rajkumari (jethani) were acquitted from the charges.

At the very outset learned counsel for the appellant submitted that he does not want to press the appeal on merit, however, prays for modification and reduction of quantum of sentence.

Learned A.G.A. has no objection to the prayer made above.

Perusal of the impugned judgment reveals that brother and father of the deceased along with independent witnesses P.W.3, P.W.4, P.W.5 and P.W.7 have been examined in this case. Although fact witnesses father and brother of deceased turned hostile but cross examined by the prosecution. P.W.3, P.W.4, P.W.5 and P.W.7, who were witnesses of inquest as well as of fard that was recovered from the place of incident, have supported the prosecution case as alleged in the FIR. The important feature of the case is that the information of death was not given either from the husband or from in-laws but the same has been given by the police station to the brother of the deceased. The other important feature is that recovery of physical materials are in support of the prosecution case. It is also an admitted fact that the dead body was found on the roof in the residence of accused appellant in 100% burn condition which is established and proved by the post mortem report. Physical materials such as mobile oil also supports the prosecution version.

It is established legal proposition that in order to attract the provisions of Section 304-B, i.e. in burn cases, following essentials are required to be proved in order to raise the presumption of burn death :-

i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

ii) Such death must have been occurred within 7 years of the marriage;

iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

iv) Such cruelty or harassment must be in connection with the demand of dowry.

As per Section 113-B of I.P.C. a rule of presumption is that if death occurs within seven years of the marriage in suspicious circumstances and that is caused by burns or any other bodily injuries soon before her death and the deceased was subjected to cruelty and harassment in connection with any demand of dowry, the Court shall presume that such person had caused the dowry death.

It is relevant to mention that even assuming that it is a case of suicide even then it would be death which had occurred in unnatural circumstance, even in such a case Section 304-B is attracted, as held in the case of Smt. Shanti Vs. State of Harayana, AIR 1991 SC 1226.

In this case also death was unnatural; within 7 years of marriage and there was a demand of dowry and soon before her death she was subjected to harassment and cruelty. Therefore, I do not find any perversity or infirmity in the jugement of conviction as the same is based on cogent and credible evidence and does not require any interference.

So far as the argument of the learned counsel for the appellant that father and brother of the deceased had not supported the prosecution version as they have turned hostile, the case rests on the circumstantial evidence. All other accused persons have already been acquitted by the trial court.

I have considered the submissions made by the learned counsel for the appellant and perused the record and found that learned court below has recorded the finding of conviction after appreciating the evidence available on record and after affording opportunity of hearing to both sides. The finding of conviction recorded by the learned trial court are based on material available on record. Since it being a case of dowry death, learned trial court has considered the legal proposition regarding presumptions provided in the Evidence Act and has appreciated the evidence accordingly. The finding of conviction are reasoned one and based on material available on record.

There appears no justification to interfere with the finding of conviction recorded by the trial court.

The appellant is languishing in jail since 11.01.2011 and also during trial he was detained in jail for more than five months. The sentence served by the accused appellant is more than seven years. So I am of the view that appeal deserves to be partly allowed. The appeal is partly allowed on the quantum of sentence. The findings of conviction recorded by the trial court against the accused appellant for the offence under Sections 498-A, 304-B, 201 I.P.C. and Section 4 of D.P. Act is hereby confirmed and maintained. The sentence of conviction for ten years awarded for the offence under Section 304-B I.P.C. is reduced from ten years to seven years already undergone. No interference is being made with the rest of sentences awarded by learned trial court. All the sentences awarded shall run concurrently.

The accused-appellant shall be entitled to get the benefit of section 428 Cr.P.C.

Accordingly, the impugned judgement stands modified to the above extent.

Let a certified copy of the judgement and order be sent to the Chief Judicial Magistrate concerned for compliance report.

The lower court records be returned for compliance.

Order Date :- 09.08.2018

Anand/-

 

 

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