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Devi Deen Alias Deviram vs State Of U.P. on 14 May, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Judgement Reserved on 10.4.2019

Judgement Delivered on 14.5.2019

Court No. – 1

Case :- CRIMINAL APPEAL No. – 144 of 2014

Appellant :- Devi Deen Alias Deviram

Respondent :- State Of U.P.

Counsel for Appellant :- Sanjay Rajpoot,Kuldeep Johri

Counsel for Respondent :- Govt. Advocate

(connected with)

Case :- CRIMINAL APPEAL No. – 578 of 2014

Appellant :- Ram Vinay And Another

Respondent :- State Of U.P.

Counsel for Appellant :- Sanjay Rajpoot,Jitendra Kumar Yadav,Kuldeep Johri,Mohammad Asif

Counsel for Respondent :- Govt. Advocate

Hon’ble Ramesh Sinha,J.

Hon’ble Dinesh Kumar Singh-I,J.

(Delivered by Hon’ble Dinesh Kumar Singh-I,J.)

1. Heard Sri Mohd. Asif and Sri Kuldeep Johri, learned counsel for the appellant and Sri M.C. Joshi, learned A.G.A. for the State.

2. This Criminal appeal No. 578 of 2014 has been preferred against the judgment and order dated 24.12.2013 passed by Additional Sessions Judge, Court No. 2, Pilibhit in S.T. No. 111 of 2012 (State of U.P. Vs. Ram Vinay and others), whereby accused-Ram Vinay (appellant no. 1) and Lajjawati (appellant no. 2) have been convicted under Section 302 IPC and have been sentenced with life imprisonment and fine of Rs. 20,000/- and in default of payment of fine one year rigorous imprisonment. Further both the appellants have been convicted under Section 498-A IPC and have been sentenced with two and a half years rigorous imprisonment and fine of Rs. 5,000/- and in default of payment of fine three months additional imprisonment. Further both the appellants have been convicted under Section 4 of D.P. Act and have been sentenced with one and a half year imprisonment and fine of Rs. 5,000/- and in default of payment of fine, three months additional imprisonment and all the above sentences have been directed to run concurrently.

3. The other Criminal Appeal No. 144 of 2014 has been preferred against the same judgment by accused Devi Deen @ Deviram, who has been convicted under Section 498-A IPC and has been awarded two and a half year imprisonment and fine Rs. 5,000/- and in default of payment of fine three months additional imprisonment and has further convicted under Section 4 of D.P. Act and sentenced with one and a half year imprisonment and fine of Rs. 5,000/- and in default of payment of fine three months additional imprisonment and it is further directed that all the sentences shall run concurrently.

4. Since both the above appeals arise out of the common judgment, they are being taken up together.

5. In brief the facts of the case are that informant Vinod Kumar S/o Khushi Ram, r/o village Amanpur Gotiya, P.S. Tilhar, District Shahjahanpur had married his sister Laxmi @ Bhoori according to Hindu rites about two years ago with Ram Vinay S/o Devi Deen, r/o Naglarata after giving him adequate dowry but he was not satisfied with the same nor his parents were satisfied and they were giving physical and mental torture to his sister for additional dowry and due to non-fulfilment of the same, feeling harassed his sister hanged herself in the night, regarding which information was given by a villager on telephone, in response to which he and his family members reached the house of her sister and found that her dead body was lying inside the house and near the same her elder sister Suneeta was there and leaving her behind he had come to lodge the report. On the written report (Ext. Ka-1) case Crime No. 1128 of 2011 was registered under Section 498-A, Section304-B IPC and ¾ D.P. Act, P.S. Bilsanda, Sub-district Beesalpur, District Pilibhit on 2.11.2011 at 15:30 hours against Ram Vinay S/o Devi Deen (husband of the deceased), Devi Deen (S/o unknown), father of Ram Vinay, mother of Ram Vinay, all residents of Naglarata within the jurisdiction of P.S. Bilsanda, District Pilibhit.

6. PW-6, HCP Omkar Singh, who was posted at P.S. Bilsanda on 2.11.2011, had prepared the chick F.I.R. at 15:30 hours of this case which is Ext. Ka-9 and also made entry of this case in G.D. at report no. 34, time 15:30 hours, which is Ext. Ka-10. Thereafter, the investigation of this case was handed over to C.O. Baghpat Sri Rafiq Ahmad (PW-7), who prepared site plan at the instance of informant which is Ext. Ka-11. On 3.11.2011 and on 4.11.2011, he arrested accused Ram Vinay and Devi Deen respectively and recorded their statements and, thereafter, handed over investigation to C.O. Beesalpur. The second investigating Officer Alok Sharma (PW-8), the then C.O., Bilsanda, had taken over the investigation of this case on 16.11.2011 and recorded statement of sister of the deceased namely, Suneeta Devi, recorded statements of informant and witnesses of Panchayatnama namely, Shiv Kumar, Omkar and witness Arun Kumar and also that of the Dr. K.S. Gupta, who had conduced post-mortem of the deceased. On 24.11.2011, he recorded statements of witnesses of Panchayatnama namely, Chhotey Lal, Ram Swaroop and Rajesh Kumar and submitted charge sheet against the accused Ram Vinay on 24.11.2011, which is Ext. Ka-12.

7. On the basis of evidence, charges were framed against the accused appellants under Section 498-A, Section304-B alternatively u/s 302 SectionIPC and ¾ D.P. Act on 17.4.2012, to which, they pleaded not guilty and claimed to be tried.

8. In order to prove its case from the side of prosecution, Vinod Kumar, brother of deceased as PW-1, Arun, brother-in-law of the deceased as PW-2, Dr. K.S. Gupta, who conducted post-mortem of the deceased as PW-3, Smt. Suneeta sister of the deceased as PW-4, Ram Niwas Shukla, Retired Naib Tehsildar, who conducted panchayatnama as PW-5, H.M. Omkar Singh, who prepared the chik F.I.R. and G.D. as PW-6, I.O. Sri Rafiq Ahmad as PW-7 and I.O. Alok Sharma as PW-8, were examined.

9. Thereafter, the prosecution evidence was closed and the statements of accused were recorded under Section 313 Cr.P.C. in which they took the plea of false implication and in defence examined Sahaj Ram as DW-1.

10. Accused-appellant Ram Vinay has stated additionally that after seven and ½ years of his marriage, his wife had committed suicide by hanging herself. He has a son of four years. One month after his marriage, he had started living separate from his parents with his wife. His parents used to live in separate house. His younger sister-in-law was in love with one Premi, who belonged to Sonar caste, who used to come to his house and his sister-in-law had eloped with him because of which the people of his matrimonial home were having inimical terms and used to insult him and his wife saying that both of them were complicit in elopment of his sister-in-law and because of this, feeling insulted, his wife had committed suicide in his absence.

11. Accused-appellant Devi Deen additionally has stated that his son Ram Vinay had married his wife seven and half years prior to the occurrence of his wife having committed suicide. Soon after his marriage, his son and daughter-in-law had started living separate in her different house. Ram Vinay has a son of four years, who is living with him and has denied to have ever demanded any dowry from the deceased and pleaded that he was innocent.

12. Accused-appellant Lajjawati has also repeated the same version as that of her husband Devi Deen.

13. On the basis of evidence which has come on record, the trial court has convicted the accused-appellants and has awarded them punishment mentioned above.

14. Learned counsel for the appellants vehemently argued that the trial court has not interpreted the evidence on record in accordance with law. The deceased had committed suicide because of feeling humiliated as her sister married a person of her choice without consent of her parents, for which the accusation was being made of involvement of the deceased and, hence, she committed suicide. It was further argued that in this case the hyoid bone of the deceased was not found fractured and, therefore, it was, through and through, a case of suicide and not of homicide as it is in the rarest of the rare case that in case of homicide hyoid bone would not get fractured. It is further argued that the trial court has convicted the accused under Section 302 IPC despite the fact that accused-appellants have been held guilty of demand of dowry, instead of convicting them under Section 304-B IPC. It has been further argued that father-in-law and mother-in-law of the deceased were living separate from the deceased then there could be no possibility of their being involved in murdering the deceased and, therefore, it is very much apparent that the trial court has committed gross error in appreciation of evidence. The accused-appellants deserve to be acquitted.

15. On the other hand, learned A.G.A. vehemently argued that it was fully proved on the basis of evidence on record that a demand of motor-cycle was being made from the side of accused-appellants and due to non-fulfillment of the same, the deceased has been done to death by being strangulated which is evident from the post-mortem, as the cause of death has been shown to be strangulation in the post-mortem report. It was further argued that mother-in-law and the husband, both are rightly held guilty under Section 302 IPC being inmates of the house in which murder was committed of wife of the accused Ram Vinay. Therefore, appeals deserve to be dismissed.

16. It is essential for us to go through the evidence on record to assess whether the conclusion drawn by the trial court is appropriate.

17. Informant Vinod Kumar (PW-1) has stated in examination-in-chief that about two years ago his sister Laxmi @ Bhoori was married according to Hindu rites with Ram Niwas R/o village Naglarata in which adequate dowry was given as per his capability but the people at her matrimonial home were not satisfied with the same and were pressurizing her to bring more dowry and for that she was being harassed and was being beaten. It was being stated by them that till they get one motor-cycle, they were continue to harass her. Her sister used to plead with the accused that they were very poor people as parents were not alive and her brother was not well off enough, so whatever had been given in dowry was maximum which could have been given but his sister continued to be beaten. She used to tell about all this whenever she visited her brother’s home that if the motor-cycle was not given to the accused side, they would kill her. It is further stated by this witness that his elder sister Suneeta was also married in the same village with one Siyaram and because of that his sister Lakshmi @ Bhoori used to tell her elder sister Suneeta that if a motor-cycle is not given to the accused side they would not leave her alive. On 2.11.2011 at about 7-8 a.m., one of his neighbours had informed him that he had received an information on phone that people of matrimonial home of his sister had killed his sister Laxmi @ Bhoori, after hearing this he, his brother Omkar went to the matrimonial home of his sister Laxmi @ Bhoori and saw that she was lying dead and was bleeding from her nose. There were contusions below the knee and there was mark in the neck as well. Thereafter, he went to the P.S. after reaching village Naglarata. His brother-in-law (Bahnoi) Ram Vinay and his family members were not present there. He gave an application at the P.S. stating therein that post-mortem be got conducted of his sister for which the dead body was sent to Pilibhit, where post-mortem was conducted on 3.11.2011 and report, which was given by him at the P.S., was Ext. Ka-1. It was also stated by this witness that all the accused named above had strangulated his sister Laxmi @ Bhoori to death and this occurrence took place about 9 to 10 months ago.

18. In cross-examination, this witness has stated that he has three brothers including himself and four sisters, out of whom, Suneeta is the eldest and amongst the brother, he is eldest. His deceased sister Laxmi @ Bhoori was elder to the youngster sister Madhuri. The eldest sister Suneeta had been married and the youngster sister Madhuri, had married Manna who is resident of Tilhar, District Shahjahanpur, in other caste, of her own free will. Another sister Soni was married. All the three brothers were living in the same house and none of them had been married.

19. He does not recollect whether he had mentioned this fact in the F.I.R. or not that the deceased was beaten. He had stated it to the I.O. that for additional dowry she was being beaten but he does not recollect whether the same was mentioned by him in the report and further stated that if the said is not found written in his report as well as in his statement given to I.O., he could not tell its reason. He had got it written in the report that ” ek motor cycle………… jitna diya bhaut hai”. This fact with regard to motor-cycle was written by him in report. He had also stated to the I.O. that whatever was given, was enough, if the I.O. had not written the same in his statement, he could not tell its reason. He had also mentioned in his report that his sister Laxmi @ Bhoori would be killed by the accused persons and about this fact statement was also given by him to the I.O. but if the same was not mentioned, he could not tell its reason. He has further stated that the phone was received by villagers and not by him. The person who had received the message by way of phone, was Asha Ram but he does not know his phone number nor does he know the phone number of the person who had given information on phone. Whatever talks were held on phone, were done by Asha Ram and not by him. He had married his sister on his own and not with assistance of his sister and brother-in-law. Further this witness has stated that at about 3:00 pm, he had reached the house of her sister along with 3-4 other villagers, whose names he does not know. He had seen his sister in the courtyard. No marks appeared to be there on her neck nor was there any mark of blue colour in her neck. Ram Vinay (husband of the deceased) has two other brothers namely, Shiv Ratan and Ram Ratan, who live separate with their parents. He does not know as to whose houses are situated to the east and west side of the house of accused Ram Vinay. He has further stated that the other sister Suneeta lives in the same village, whose house is situated about 50 to 60 paces towards east of the house of accused Ram Vinay. When he had reached the house of Ram Vinay, his sister had arrived there half an hour thereafter. At that time, there were many people, assembled there, of the said mohalla along with Ram Vinay. The villagers had asked about the occurrence as to how the same happened, thereafter, said that it was not asked. The people assembled there including Sabhapati and Chaukidar of the village also. When he had gone to lodge report, police also arrived. He had not lodged the report after consulting his sister and brother-in-law, rather had gone to lodge the same on his own and his elder brother Omkar had accompanied him. He had narrated the entire episode to the Inspector and the written report was given at the P.S. which was got written by a person who is a tea vendor, who had not charged anything for writing the same, but he does not know his name nor was he known to him. When the said report was given to Deevan Ji, he had asked as to by whom he had got the same written, then he had told him that the same was got written by a tea vendor in front of P.S. He had gone to the P.S. by bicycle of his Mama (maternal uncle) namely, Ram Vilas and spent about half an hour there and, thereafter, he had received a copy of the report. He does not recollect as to when the copy of the report was received by him. This witness has further stated that the house of brother of Ram Vinay is situated leaving in between eight to ten houses. No marriage card was printed nor does he have any document with respect to the date of marriage. The pandit/priest did not belong to his village but barber was of his village but he does not recollect his name. Further this witness has stated that the other elder sister Madhuri had done inter-caste marriage and had got married to one person of Sonar caste which was performed four to five months prior to the present occurrence. She had eloped with the said person and married him of her own free will. There was no consent in that marriage given by his sister and brother-in-law and because of this marriage his family had to suffer ignominy. Madhuri never used to call him on phone nor did she ever call his sister and brother-in-law. He has denied the suggestion that he had not married the deceased to accused Ram Vinay, who is present in court and it is also wrong to say that he never demanded any dowry. He did not lodge any report with respect to her other sister Madhuri having eloped with the said person with whom she had married. It is wrong to say that due to her having eloped, his sister Laxmi @ Bhoori (deceased) was subjected to insults because of which she used to remain depressed. It is also wrong to say that he (PW-1) used to hold the deceased guilty in respect of other sister Madhuri having eloped and it is also wrong to say that the deceased used to remain mentally perturbed because of this defamation and consequently she hanged herself to death. It is also wrong to say that he had lodged the report in collusion with police to falsely implicate the accused persons.

20. It is apparent from the testimony of this witness that he has clearly stated that his deceased sister Laxmi @ Bhoori was married to the accused Ram Vinay about two years prior to the date of occurrence which has been disputed by the accused side in statement made under Section 313 Cr.P.C., wherein it is stated that marriage had been performed more than seven years ago and that there was one son of four years, who was living with father-in-law and mother-in-law of the deceased. It is also clearly stated by this witness that demand of one motor-cycle was being consistently made from the deceased, who was pleading with the accused side that she was extremely poor and that her brother was not financially well off enough to meet out the said demand on which she was physically and mentally tortured by accused side. It also appears to be the suggestion which is evident from the statement of this witness that deceased committed suicide because her younger sister had eloped and subsequently married a person who was of a different caste for which PW-1 was holding the deceased guilty but the said suggestion has been clearly denied by this witness.

21. PW-2 Arun S/o Rakesh, who is brother-in-law of the deceased has stated in examination-in-chief that occurrence took place 10 months ago. His younger sister-in-law Lakshmi @ Bhoori was married according to Hindu rites with Ram Vinay (accused). Lakshmi @ Bhoori (deceased) used to call him on phone and tell him that where he has got her married, these people say bring dowry. Prior to her death, deceased had telephoned him and had stated that if motor-cycle was not given to them, they would kill her. PW-2 and his wife used to console her. He came to know about the death of the deceased by villagers of the village of accused. When he along with his wife went to the matrimonial home of the deceased, he saw that Lakshmi @ Bhoori was lying dead.

22. In cross-examination, this witness has stated that he was telephoned on 2.11.2011 by the villagers of the deceased. The phone-call was made by his brother-in-law (Sadhu- Siyaram) but he does not know that person’s phone number. His brother-in-law (Sadhu) had made a phone-call to him at 9:00 a.m.. He had reached the place of occurrence at about 12 noon with his wife, till then police had not reached there. His (PW-2’s) brother-in-law (sala) Omkar and elder sister-in-law (sali) Lakshmi @ Bhoori were present in the house. He had told his brother-in-law Vinod (sala) prior to going to Bilsanda that a demand of motor-cycle was being made. He used to go to the matrimonial home of the deceased and otherwise also he was in touch with her on telephone. They had consulted among themselves at about 12 noon that the report be lodged and after Vinod had left for the Police Station, he returned home. Further this witness has stated that the father-in-law i.e. father of the deceased-Lakshmi, had hanged himself. He does not have knowledge that the other sister-in-law (sali), who had eloped and had married a person of her choice and whether she used to come to the house of deceased Lakshmi or not. About one month prior to the death of Lakshmi @ Bhoori, the said sister-in-law had fled from home. He was never met Investigating Officer in respect of this case nor police ever interrogated him. Today his brother-in-law (sala) has brought him for his statement before court. It is wrong to say that the persons of deceased’s ‘Sasural’ (matrimonial home) were taking ill of the fact that his younger sister-in-law was assisted by the deceased and her husband in running away/eloping with a person of different caste and it is also wrong to say that because of that the deceased used to remain mentally perturbed.

23. From the statement of this witness, it is apparent that he had reached the house of deceased by 12 noon and he is real brother-in-law of the deceased with whom the deceased used to talk on telephone and apprise that demand of motor-cycle was being made from her and if the same was not met, she would be killed. She (deceased) had also expressed her displeasure to him in regard to having been married in such a house, where such demand was being made and she was being harassed.

24. Dr. K.S. Gupta (PW-3), who had conducted the post-mortem report of the deceased on 3.11.2011 at 4:10 pm, whose dead bodies was brought in sealed condition by constable 628 Gopinath and Home-guard 629 Dalvir of P.S. Bilsanda, has stated that he had found the death of the deceased to have taken place two days prior to the conducting of post-mortem. He had found the rigor-mortis having passed off from upper parts of the body and was in the process of passing off from the lower parts of the body. The blood was coming out of mouth and nose. He had found following ante-mortem injuries on her person:-

(i) Ligature mark 15 cm x 3 cm in front of neck, 4 cm below right ear and 4.5 cm below left ear and 5 cm below chin, on cutting under neath, tissues were ecchymosed.

(ii) Thyroid rings were broken, ligature mark was horizontally placed.

(iii) Cause of death was recorded to be asphyxia due to strangulation.

This witness has proved the post-mortem report, which is Ext. Ka-2 in his hand-writing.

25. In cross-examination, this witness has stated that other than ligature mark he did not found any other ante-mortem injury on the person of the deceased. If a person is murdered thereafter, any such kind of injury would not come. The deceased would have eaten something three to four hours prior to her death.

26. From the statement of this witness, it is apparent that he conducted post-mortem of the deceased on 3.11.2011 at about 4:10 pm and according to him two days prior to that, the deceased would have died and by that calculation, the time of death comes to be the intervening night of 1/2.11.2011 which is the time mentioned in the F.I.R. It is also proved by his statement that deceased died unnatural death which is homicidal one, as she has been found to have been strangulated to death, as a result of asphyxia.

27. Smt. Suneeta, wife of the Siyaram, who is elder sister of the deceased (PW-4) has stated in examination-in-chief as PW-4 that the occurrence took place about one year ago. Her younger sister Lakshmi @ Bhoori was married to accused Ram Vinay r/o village Naglarata about two years ago, who is present in court. She had arranged this marriage after telling her father and after the marriage was fixed, some days thereafter, her father had expired, whereafter she and his brother together had performed this marriage. Enough dowry, as per their capability, was given in the said marriage to the father-in-law, mother-in-law and husband of the deceased, who were not satisfied with the same and used to beat and abuse the deceased and were consistently demanding one motor-cycle. Her brother Vinod is disabled person. Her sister used to tell people at her matrimonial home that her brother was disabled and was younger to her. Parents were not alive, hence from where they would be able to provide a motor-cycle and then the accused used to tell her that if she does not arrange for a motor-cycle, she would be killed. Her house and house of her sister were situated close to each other in the same village. Her sister used to tell her that the accused were giving her threat to kill and was being beaten badly. In the night of Tuesday, they together murdered her sister, although she did not specify the date. Further she stated that since she came to know about the said fact, she reached there and found that the dead body of her sister was lying in courtyard. She had reached the place of incident after hearing rumour.

28. In cross-examination, this witness has stated that she had given dowry as per her capability in this marriage. She had not informed his brother and when Ram Vinay etc. were going to cremate her sister (deceased) then she came to know about her death. Right from the time of her marriage Ram Vinay was demanding a motor-cycle. About the said demand, she had also told her brother Vinod and Omkar and had also told that accused Ram Vinay used to beat the deceased everyday and on the day of incident also she was beaten. Further she has stated that Shiv Ratan and Shivram were living separate with their parents. Her (PW-4’s) house was adjacent to the house of accused Ram Vinay, where she used to come frequently. She had counselled accused Ram Vinay not to commit ‘mar-peet’ with her sister and to take separation. Whenever her brother used to come to take the deceased along, they would not send her. No marriage card was got printed. She or her brother had made no report that the demand of dowry was being made by the accused persons, at any police station or Higher Authorities. She cannot tell the names of barber and the priest, who had performed this marriage. The investigating officer had interrogated her in Bisalpur. The whole day dead body was lying. At about 3:00-4:00 pm, the police arrived and, thereafter, sun had set. The whole day villagers were trying to help the parties to enter into compromise because it was being stated that the deceased had hanged herself, hence both the sides should compromise but the same did not happen even though there was no mark on the neck of the deceased. The hands and legs were crushed and broken. Lot of blood was coming out of her mouth and nose, which was being thrown out again and again by mother of the accused Ram Vinay. Her face was extremely swollen. There were bangles lying all around the courtyard. ‘Kathri’ which was spread, was found full of blood. The blood was thrown out in order to obfuscate the fact so that no one could say that she was killed and that people should believe that she had committed suicide. The said fact was revealed by her to the I.O. in Bisalpur but if the same was not found written, she could not tell its reason. She did not tell it to the I.O. that she used to counsel Ram Vinay and Ram Niwas used to tell her not to interfere in their affair. Her sister namely Madhuri had married herself in Tilhar. She had not fled/eloped, in fact her marriage was performed as Barat had come. Her brother had not levelled any allegation upon Ram Vinay or the deceased of assisting Madhuri in eloping with her husband. These people were defaming on their own. She has denied the suggestion that she and her brother were levelling allegation upon Ram Vinay and the deceased for colluding in her younger sister’s elopement because of which the deceased was anguished. One day prior to the death of the deceased, her brother Vinod had come for her Bidai but the same was refused and she was being beaten. She has stated it to be wrong that because of being real sister of the deceased, she was making false statement at the instance of her brother.

29. The testimony of this witness is extremely credible in part because she was living at a close distance from the house of deceased, where the incident happened. She was also instrumental in marriage of the deceased with the accused Ram Vinay, as the parents of the deceased had died. She has clearly proved the demand of one motor-cycle being made by accused Ram Vinay for which the deceased was being harassed persistently and she also has stated to have counselled the accused Ram Vinay to take separation from his sister instead of beating her repeatedly because there was no possibility of satisfying his demand for the said motor-cycle, as they were very poor person. We find that the statement of this witness is not believable with respect to the deceased having been badly beaten because doctor had found only two injuries which are cited above. It also seems to be exaggeration on her part that the blood was being thrown out of the house repeatedly by the mother of the deceased so as to remove the evidence so as to make it appear to be a case of committing suicide by hanging because doctor did not find any such external injury by which she would bleed so profusely.

30. Sri Ram Niwas Shukla, Tehsildar, has stated as PW-5 in examination-in-chief that on 2.11.2011 he was posted as Naib Tehsildar, Bisalpur and on the order of S.D.M., he performed inquest of the deceased Smt. Lakshmi @ Bhoori, wife of Ram Vinay, resident of Naglarata, whose dead body was placed in courtyard on ground. He had appointed panchas and had prepared the inquest report with the assistance of sister of the deceased namely, Suneeta.

31. According to the opinion of panchas, the death of the deceased had occurred by committing suicide by tying her Sari around her neck but for knowing real cause of death, the post-mortem was recommended to be conducted, therefore, inquest, photo nash, challan nash, chitthi R.I., chitthi C.MO. were prepared and the dead body was sealed and the sample seal was prepared. All these papers were presented on record in front of him. The panchayatnama was marked as Ext. Ka-3, Photo nash, Challan nash, chitthi R.I., chitthi C.M.O. and sample seal were marked as Ext. Ka-4, Ka-5, Ka-6, Ka-7 and Ka-8 respectively. Thereafter, the dead body was sent for post-mortem through constable Gopinath and Dalveer Singh along with necessary documents to mortuary of Pilibhit for post-mortem.

32. In cross-examination, this witness has stated that the order of S.D.M., Bisalpur was not on file as he has given oral direction. The Ext. Ka-3 to Ext. Ka-7 were prepared by S.I. Razi Ahmad at his instructions but did not bear signatures of the said S.I. In column no. 1 of the inquest report, the name of Omkar S/o Khushiram, r/o village Amanpur Gautiya, P.S. Tilhar, District Shahjahanpur, brother of informant, has been entered and according to the written report and information of panchass, the opinion was that deceased had committed suicide by tying her Sari around her neck. When he had reached at the place of incident, the S.O. and S.I. and police force of the concerned P.S. were present. He had reached around 5:00 pm. This witness is a formal witness, who had prepared challani documents which have been mentioned above.

33. PW-6, H.C.P. Omkar Singh, who had registered the case, has stated in cross-examination that on Ext. Ka-1 (written report), there are no signatures of the any scribe, who had scribed this written report, he does not know. There was no mention made in the said report of any demand of motor-cycle or cash, although it was mentioned that the sister had hanged herself in the night, although the place, time and date of the same were not mentioned. After having seen F.I.R., he stated that it was made seen in court on 15.11.2011 but when the same was dispatched from P.S., the date and time are not mentioned in relevant columns as they are left blank and only this much is endorsed that the same was sent by post. When the G.D. of the said case was seen by the then C.O., no date has been mentioned thereof. When the order was passed by C.O., Bisalpur to consign the original G.D., he could not tell. He has stated it to be wrong that under pressure from Higher Authorities, the case was registered ante-timed.

34. This witness is a formal witness as he has simply lodged the F.I.R. at the P.S. In cross-examination it has emerged that signature of the scribe were not found on the written report but that would not throw out the case of the prosecution. The non-mentioning of the dates in G.D., these things would fall in the category of lapses left by the investigating agency benefit of which cannot be allowed to go to the accused.

35. PW-7, C.O., Rafiq Ahmand has stated in cross-examination that when he inspected the place of incident, he did not find any blood spread over there. When he had initiated investigation, he had not received the post mortem report by then, he had not taken in possession the marriage card of the deceased. He had assumed the investigation on 3.11.2011 and stated it to be wrong that he had not visited the spot and completed the investigation sitting in his office itself.

36. This witness is a formal witness, who has conducted investigation. His statement that he did not find blood on the place of occurrence belies the statement of PW-4 Suneeta, sister of the deceased, who has stated that lot of blood was thrown out by the mother of the deceased so as to remove the evidence that the deceased was done to death by the accused persons and wanted to make it appear to be a case of suicide by hanging.

37. In the light of statement of this witness that there was no blood found on the place of incident, does not mean that the deceased did not die unnatural death as the doctor has clearly stated that she was found to have been strangulated and died due to asphyxia which was not possible by self infliction.

38. Sri Alok Sharma (PW8) has stated in cross-examination that he had partly conducted investigation of this case. In written report, informant had not mentioned about any specific demand of dowry. No mention was made of the name of scribe or his address. In the said written report, it was mentioned that the accused were demanding additional dowry and because of non fulfillment of it, the deceased was being mentally and physically harassed. He perused the site plan in which at place ‘B’ is shown ‘mitti ki kutiya’ (hut of mud) where it was mentioned that the deceased had hanged herself with the assistance of her Sari. In the column of person, who gave information in panchayatnama, it is mentioned that the deceased committed suicide. In opinion expressed by Panchas, it is mentioned that the death of the deceased occurred due to committing suicide by tying Sari around her neck. S.I. Razi Ahmad has given statement that deceased died of poison. During investigation, none from the side of informant provided him ‘Laganpatri’ and programme of marriage. The informant had stated to him that because of being poor he could not get the marriage card printed. He did not record statement of priest and barber. This witness has stated that all the ceremonies were performed by respected persons but no search was made of priest, barber or respected persons named by him. The name of person, who had made a phone-call in respect of the occurrence was not noted in the case diary nor was it noted as to whom had given a call nor the telephone number was mentioned nor call details were obtained in this regard. He did not record the statement of sister of the deceased namely, Madhuri nor does he know whether there was any sister of the deceased by the name of Madhuri or not. The informant did not tell anything about marriage of the said sister Madhuri. No evidence was given by Suneeta in respect of blood being found on the place of incident. She had not stated to him that blood was thrown out several times out of the house and that the blood was dripping. He denied that he had completed entire investigation sitting in his office.

39. After having perused the entire evidence we find that according to prosecution the deceased Lakshmi @ Bhoori is stated to have been married to the accused Ram Vinay about two years prior to her death with Ram Vinay after having given sufficient dowry as per capability of the informant, who is brother of the deceased but all the three accused namely Ram Vinay, Devi Deeen and Lajjawati were not satisfied with the same and were demanding a motor-cycle and due to non-fulfillment of the said demand, the deceased was mentally harassed and physically tortured. As per F.I.R., the deceased hanged herself due to the said ill-treatment at the hands of the accused. The defence taken by the accused is that there was no said demand of dowry ever made. The marriage was performed with deceased more than seven years ago and that the accused Devi Deen and Lajjawati, father-in-law and mother-in-law respectively of the deceased were living separate from the accused in other house, as has been stated in their statement under Section 313 Cr.P.C. The accused Ram Vinay has taken defence that he has four years son, his wife had committed suicide with whom he was married more than seven years ago. Since one month after marriage he and his wife had started living separate from his parents who were living in different house. He also took the plea that his younger sister-in-law had fallen in love with one, who was of Sunar caste, who used to come to his house, with whom, the said sister-in-law had eloped, as a result of which the people of his matrimonial home had started having enmity towards him and used to insult his wife, as a result of which, feeling perturbed and humiliated, his wife had committed suicide in his absence by hanging herself.

40. For an offence under Section 304-B the important ingredients which need to be satisfied are (a) there is a married lady; (b) she has died an unnatural death including death by burn or by bodily injury or by poisoning etc.; (c) that such death has occurred within seven years of her marriage; (d) it must be found that soon before her death she was subjected to cruelty or harassment for, or in connection with any demand for dowry by her husband or by any of his relatives.

41. We have to evaluate the above evidence in the light of above ingredients.

42. First of all, the ingredient number one that the marriage was performed. There is admission in this case on the part of the accused that deceased was married to him and, therefore, the said ingredients fully satisfied.

43. Next, it has to be seen whether the deceased has died unnatural death, in this regard we find that doctor has expressed his opinion that the deceased was found to have suffered two injuries, one of which is ligature mark around her neck and the other thyroid rings were broken and the cause of death was mentioned by the doctor to be asphyxia due to strangulation.In our opinion, the doctor has clearly stated this to be a unnatural death although no clear opinion has been expressed whether it was a case of suicide or homicide but we are of the opinion that since thyroid rings were found broken and as a result of asphyxia the deceased has died, therefore, possibility of her being strangulated to death by someone cannot be ruled out and, who could be that person, is the question here.

44. In the house it is apparent that husband and wife were staying as the case of separate residence has been taken by the other co-accused i.e. father-in-law and mother-in-law, therefore, with the aid of Section 106 of the Evidence Act, we would like to hold that it was the responsibility of the accused-husband who was the sole inmate of the house in which deceased died, to disclose as to how his wife was strangulated to death. The accused has explained the death of his wife by saying that the deceased had committed suicide because she was mentally perturbed as an allegation was levelled against her and the accused-husband that both of them were instrumental in elopement of the younger sister of the deceased namely, Madhuri with a person of different caste with whom she had married. We do not find this to be good enough explanation of the death of the deceased and we find that medical evidence clearly indicates that it was homicidal death, therefore, it would be the husband, who was living with the decreased, who could have killed the deceased as he could only explain her death. It may also be mentioned here that had it been a case of suicide by hanging, why the deceased had brought down the dead body of the deceased and placed it on the floor as it is found that when the police had arrived at the scene of occurrence it found the dead body lying in the ground in courtyard. It also creates suspicion that in fact the deceased was done to death by accused by strangulating her with the help of her ‘Sari’ which was found tied around her neck and it may not be a case of suicide by hanging. Why the accused did not wait for the police to arrive to see that the deceased had hanged herself and it would be appropriate that police would have taken down the body if the same was hanging.

45. It is also to be noticed that if the wife had committed suicide, it was the primary duty of the accused-husband to rush to the police station and lodge a F.I.R. in this regard but nothing of the sort has been done on his part which makes us disbelieve his defence that his wife had committed suicide due to perturbance, therefore, this ingredient is found satisfied that deceased died unnatural death, rather died homicidal death and, therefore, the second ingredient stands satisfied.

46. The third most important ingredient is that death occurred within seven years of marriage. The accused had taken the defence in statement under Section 313 Cr.P.C. that his marriage with the deceased was performed more than seven years ago from the date of her death, in regard to which he had examined a witness also i.e. DW-1, who has stated that when the deceased died, more than seven years of marriage had elapsed. Three children were born out of the said wedlock, out of whom two had died and one child of four years may still alive. In Statement of father-in-law under Section 313 Cr.P.C. also it is stated that four years old son of the deceased was living with him separate from the accused Ram Vinay. Against this evidence from the side of prosecution, it is stated that the marriage of the deceased was performed with accused within two years prior to her death. From the post-mortem report we find that she was found to be 20 years of age on the date of her post-mortem which was conducted on 3.11.2011.

47. We find that PW-1, who is brother of the deceased, in this regard has clearly stated that the deceased was married to the accused-husband just two years prior to her death. We find that no cross-examination has been made on this point, of PW-1 by defence that the deceased was married to the accused-husband within two years prior to her death nor any suggestion has been made from the side of accused that it was wrong to say that she was married to the accused within two years prior to her death. It is also to be noted that this witness has explained that he could not produce the marriage card etc. because of poverty and could not disclose the name of priest and barber, who had conducted the ceremonies in marriage. They could have been relevant witnesses to prove that the marriage was performed just two years prior to death of the deceased.

48. The other witness, who deposed in this regard is Suneeta (PW-4), who is elder sister of the deceased. She has also stated that deceased was married two years prior to her death of deceased with the accused-husband and in cross-examination she has also admitted that no marriage card was got printed in this marriage.

49. PW-8, (I.O.) has also stated that informant had told him that because of poverty he had not got the marriage card printed. He also stated that he had not recorded statements of priest and the barber, although witnesses had told him that all the ceremonies were performed by the respectable persons but I.O. did not try to find out the names and addresses of the said person. It appears to be a lacuna on the part of the investigating officer not to take evidence in this regard but looking to the fact that informant had also stated to the I.O. that because of poverty, marriage card was not got printed for marriage of the deceased with accused-husband, the same appears to be believable statement and it is also noticed that none of the witnesses from the side of prosecution has stated that after marriage the deceased had begotten any children out of the wedlock but a doubt has been created in the mind in this regard from the side of accused by producing DW-1, who has stated that the deceased had three children, out of whom two have died and one is alive, although it looks little far-fetched that a lady who died at the young age of 20 years, would have given birth to three children and nothing with regard to those children would be stated from the side of prosecution, nor any cross-examination is made from the defence side in this regard. To the prosecution witnesses, in this regard not even any suggestion has been found that the deceased had three children prior to her death and that she was married to the deceased more than seven years ago. It appears that this evidence has been created from the side of prosecution only with a view to coming out of the ambit of offence under Section 304-B IPC, because for an offence to be covered under that Section, it was necessary for the prosecution to prove that the death occurred within seven years.

50. We find that the statement of PW-1 and PW-4, who are real brother and sister of the deceased are believable that accused-husband was married two years prior to her death and, hence the ingredient that the deceased died within seven years of marriage, an unnatural death, is also found proved.

51. The last ingredient is that it must be found proved that soon before death of deceased she was subjected to cruelty or harassment in connection with any demand of dowry.

52. In this regard we find that PW-1 and PW-4 both have clearly stated that a motor-cycle was being demanded by the accused-husband from the deceased, while deceased was consistently trying to convince the accused that because of her brother being very poor he could not provide the same and PW-4, who was living very close to the house of the deceased, has also clearly stated that she tried to counsel several times the accused husband but he would dissuade her from making any interference in this regard and ultimately the deceased was done to death. We find nothing in the cross-examination made on this point from the side of accused, to create any doubt in our mind that the said demand of motor-cycle was not made from the side of accused-husband, therefore, this ingredient is also found satisfied by us.

53. In view of above, we come to the conclusion that the entire evidence which has been relied upon from the side of prosecution is conclusively proving that the deceased died an unnatural death (homicidal death) inside the house of accused-husband for non-fulfillment of the demand of dowry (a motor-cycle), and therefore, offence under Sectionsection 304- B IPC is fully found established against the accused husband Ram Vinay.

54. As regard the other two co-accused Devi Deen and Lajjawati, who have been held guilty by the trial court, we find that there could be no possibility of any demand being made from their side because motor-bicycle is a thing which would be of use to the husband only not to the parents of the husband. Moreover, we find that these two accused have taken the plea that they were living separate from the husband of the deceased and this fact has been admitted by PW-1 in cross-examination, therefore, benefit of doubt is given to the mother-in-law and father-in-law. We do not find any charge established against the accused appellants Devi Deen, Lajjawati therefore, accused Devi Deen stands acquitted of offence under Section 498-A IPC and section 4 D.P. Act while accused Lajjawati stands acquitted of offence under Sectionsections 302, Section498A IPC and Section 4 of D.P. Act. The accused Devi Deen is already on bail, hence he need not surrender. His bail bonds stand discharged. The trial court shall take bonds from them in terms of Section 437-A of the Cr.P.C.

55. Accused Lajjawati is in jail, hence she shall be released in the present case unless wanted in any other case subject to her executing bonds in terms of section 437-A Cr.P.C.

56. As regards the accused-appellant- Ram Vinay, we find that instead of offence under Section 302 IPC, he is found guilty under Section 304-B IPC for having committed offence of dowry death and acquit him of offence under Section 302 IPC and find the finding of the trial court to that extent not in accordance with law. He is also found guilty of offence under Section 498-A and 4 of D.P. Act. As regards the sentence we would like to mention that since we have found that accused Ram Vinay could be the person who would have strangulated his wife to death, therefore, the sentence of life imprisonment is found appropriate to be inflicted upon him to meet the ends of justice. As regards the sentence with respect to other offences, we uphold the judgment of the trial court with respect to this accused- Ram Vinay.

57. Accused-Ram Vinay is already in jail, he shall serve out the remaining sentence awarded to him.

58. Let a copy of this judgment and order be transmitted to the trial court forthwith along with lower court record with a direction that trial court shall ensure that accused Ram Vinay serves out the remaining sentence in accordance with law.

59. Appeal No.144 of 2014 preferred by Devi Deen Alias Deviram is, accordingly, allowd.

60. Appeal No. 578 of 2014 preferred by Lajjawati stands allowed.

61. Appeal No. 578 of 2014 preferred by Ram Vinay is dismissed.

(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.)

Order Date :- 14.5.2019

A.P.Pandey

 

 

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