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Jitendra Shukla vs State Of U.P. on 14 March, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

Court No. – 15

AFR Case :- CRIMINAL APPEAL No. – 1299 of 2015

Appellant :- Jitendra Shukla

Respondent :- State Of U.P.

Counsel for Appellant :- Shravan Kumar Tiwari,O.P. Tiwari,Piyush Kumar Singh, Ram Mohan Mishra

Counsel for Respondent :- Govt Advocate,Neelam Srivastava

Hon’ble Mrs. Rekha Dikshit,J.

1. This appeal assails the correctness of the judgment and order dated 16.10.2015 passed by Additional Sessions Judge, Court No.8, Unnao in Sessions Trial No.620 of 2015, State versus Jitendra Shukla and another, whereby the learned Additional Sessions Judge has convicted the appellant-accused Jitendra Shukla and sentenced him as under:

U/S 304-B IPC – Seven years’ imprisonment.

U/S 4 of Dowry Prohibition Act – Four months’ imprisonment with fine of Rs.1000/- with default stipulation of one months’ additional simple imprisonment.

All the sentences were directed to run concurrently.

2. Briefly stated, the prosecution case against the appellant is that the complainant Ashok Kumari lodged a written report on 7.6.2010 stating therein that she solemnized the marriage of her daughter Sonam (Goldi) aged 25 years on 27.11.2009 with the appellant as per her capacity and status but the family members of the appellant were not satisfied and always demanded Rs.2,00,000/- (Rupees two lakhs) as additional dowry from her daughter. On this premise appellant, husband of the deceased, mother-in-law, jeth, Dewars connived and burnt her alive, she died while on way to the hospital.

3. The FIR was registered against the appellant and his family members at Case Crime No.739 of 2010, under Sections 498A and 304-B IPC and Section 3/4 Dowry Prohibition Act. The dead body of the deceased was sent for postmortem, which was conducted by Dr. Rajedra Prasad – P.W.-6, Ext. Ka-9 is the postmortem report in which antimortem injury is as follows:

Superficial to deep burn, all over the body except both side, line of redness present.

4. The case was investigated by S.O. Brijesh Kumar Mishra, who recorded the statements of witnesses, prepared site plan of place of occurrence and submitted charge sheet under Sections 498-A, 304-B IPC and Section ¾ of Dowry Prohibition Act against the appellant after completing investigation. The charge was framed against the appellant under Sections 304-B IPC (alternative charge under Section 302 IPC), 498-A IPC and Section 4 Dowry Prohibition Act which he denied and claimed trial.

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

6. P.W.1 – complainant and mother of the deceased has substantiated the fact of marriage of her daughter with the appellant and also the demand of Rs.2,00,000/- as additional dowry. She has further stated that on 24.5.2010 the appellant took her daughter from her house to his own house and at that time she refused to send her daughter complaining to him regarding demand of Rs.2,00,000/- as additional dowry but he promised not to harass her daughter on this count, then she let her daughter accompany the appellant. On 7.6.2010 in the afternoon, she received information about the burning of her daughter.

7. P.W.-2 Bindesh Kumar Mishra has deposed in his oral testimony that the marriage of his daughter Sonam was solemnized with the appellant on 27.11.2009 as per his capacity and status. He has further stated that his wife P.W.-1 stays in his parental house as he is always outside in connection with his private job. Her daughter always mentioned that the accused-appellant tortures her in connection with demand of Rs.2,00,000/- as additional dowry. The in-laws of his daughter have connived and burnt his daughter, who died in the hospital.

8. P.W-3 – Head Constable, Balak Ram Pal has proved chik FIR – Ext. Ka-2 and G.D. – Ka-3 in his oral testimony.

9. P.W.-4 – Uma Shankar, Tehsildar, who prepared inquest report and has proved the same Ext. Ka-4 and related papers – Ext. Ka-5 to Ka-8 in his oral testimony.

10. P.W.-5 – Nirmal Bajpayee has deposed in his oral testimony that he scribed the written report – Ext. Ka-1 on the dictation of the complainant Ashok Kumari and has proved the same.

11. P.W.-6 – Dr. Rajendra Kumar has proved postmortem report Ext. Ka-9 in his oral testimony.

12. P.W.-7 – S.O. Brijesh Kumar Mishra, is the investigating officer of the present case, who has proved site plan – Ext. Ka-10, Charge sheet – Ext. Ka-11 and recovery memo – Ext. Ka-12 and Ka-13 in his oral testimony.

13. Increminating evidence and circumstances were put to the appellant under Section 313 Cr.P.C., who denied all of them and stated that the family members of the deceased were demanding Rs.1,00,000/- (Rupees one Lakh) which could not be fulfilled, as such, he has been falsely implicated in the present case. It has been further stated that at the time of the incident he was in the fields and he received information that his wife caught fire during cooking food. In saving her wife, he was also badly injured. It is also stated that the deceased was not keeping good health and he never tortured or harassed in connection with demand of dowry.

14. Accused-appellant has adduced three witnesses in defence:

15. D.W.-1 – Shiv Rani has stated on oath that she is neighbour of accused-appellant and on 7.6.2010 in early morning at 7 O’ clock she was on the roof of her house when she saw smoke coming out of the house of the accused-appellant and also loud noises. She has further stated that the deceased had caught fire while cooking food and at that time the accused-appellant had gone for natural call and was not at home. It has also been stated that he tried to save the deceased but could not succeed.

16. D.W.-2 – Harikand Awasthi has deposed on oath on 6.6.2010 there was marriage of his daughter which was attended by mother and three brothers of accused-appellant. On the next day i.e. 7.6.2010, they all received the information of the said incident and rushed to their own house.

17. D.W.-3 Dr. Manish has stated on oath that on 8.6.2010 at 9.45 a.m. he examined the burn injuries of accused-appellant and has proved the injury report – Kxt. kha-1 and Bed Head Ticket – Ext. Kha-2.

18. The trial court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under Sections 304B IPC and 4 Dowry Prohibition Act and sentenced him under under Section 304-B IPC for 7 years’ imprisonment and under Section 4 of Dowry Prohibition Act for your months’ imprisonment with a fine of Rs.1,000/-. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal.

19. Heard Shri Ram Mohan Mishra, learned counsel for the appellant, Shri Mohd. Kaleem, learned AGA for the State and perused the record.

20. Learned counsel for the appellant has submitted that the deceased was suffering from some illness due to which she caught fire while cooking food. It has further been argued that at the time of incident, accused-appellant was not at home, he came after receiving the information and tried to save the deceased in which he himself received burn injuries.

21. It is further argued that there is no evidence to establish any cruelty or harassment in connection with demand of dowry from the deceased. The accused – appellant has been falsely implicated in the present case because he could not fulfiled the demand of family members of the deceased. Moreover, there are lot of discrepancies and contradictions in the evidence of witnesses which falsify the prosecution case.

22. 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 appellant and the impugned judgment warrants no interference.

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

24. The deceased was married to the appellant on 27.11.2009 but the family members, dissatisfied with the dowry, continuously demanded rupees two lakhs as additional dowry from the deceased which was not fulfilled, on which count the appellant along with his mother and brothers burnt the deceased alive and she died on way to the hospital.

25. 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)”.

26. Indisputably, the marriage of the deceased was solemnized with the accused-appellant on 27.11.2009, which has been substantiated by P.W.-1 and P.W.-2 in their oral testimony as well as by production of marriage invitation card – material Ext.-1, proved by P.W.-1 in her deposition.

27. It is pertinent to mention here that the said invitation card was taken as piece of evidence during investigation by the Investigating Officer. Thus, it can be concluded that there remains no doubt regarding solemnization of marriage on the above mentioned date. It is also not disputed and also substantiated by documentary evidence that the deceased died on 7.6.2010. Thus, confirming that the death of the deceased occurred within 7 years of the marriage.

28. This fact is also not disputed that the death of the deceased was caused due to shock and antimortem burn injuries which has been established by postmortem report of the deceased as well as oral testimony of P.W.-6. Thus, this ingredient is also established that the deceased died unnatural death, otherwise than under normal circumstances.

29. As per the definition of “dowry death” in Section 304-B 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.

30. Now, the evidence brought on record by the prosecution to show that the cruelty or harassment was meted out to the deceased for bringing insufficient dowry that too “soon before her death” has to be assessed. P.W.-1, the complainant of the case has categorically stated in his oral testimony that he performed marriage as per his capacity and status, but his son-in-law and his family members were not happy and continuously threatened deceased to life, if their demand of rupees two lakhs as additional dowry is not fulfilled. When the deceased used to visit her parents house, she used to narrate the torture, cruelty or harassment by her in-laws, but the complainant always tried to pacify the same for the sake of future of the deceased.

31. On 24.5.2010, the appellant came to the house of the complainant to take the deceased with him, then the complainant specifically told him that she is not prepared to send her daughter with him on the premise that he tortures her for additional dowry of rupees two lakhs, which they are unable to fulfill. On this, the appellant promised not to harass deceased but said additional dowry of rupees two lakhs given to him slowly after making due arrangement, then the deceased went with him to his house. On 7.6.2010 in the afternoon, she received information of the alleged incident and when she reached the house of her daughter, she was lying burnt on the floor and the appellant was not present there.

32. P.W.-2, father of the deceased, who has private job outside the city and his wife generally resides in her parental house, has substantiated the entire facts stated by P.W.-1 in her statement. He has also stated that when he reached the hospital, none of the family members of the accused-appellant were present there, and moreover, the last rites of the deceased were also performed by him.

33. The defence witness, D.W.-2 has stated in his testimony that the family members of the appellant were attending the marriage of his daughter on 6.6.2010 and got the information of the said incident on 7.6.2010, accordingly, they started at 7 O’ clock from that place to their own house. D.W.-2 has not adduced any evidence which may establish that there was marriage of his daughter on 6.6.2010. Moreover, he has deposed before the court without receiving any summon for the evidence. If his statement is to be taken as true, then, the time of the incident varies at noticeable pace because P.W.-1 got the information in the afternoon and when he reached at her in-laws place, none of the family members was present there. P.W.-6 – Dr. Rajendra Kumar has expressed the probability of the death of the deceased between 12 noon and 4.00 p.m. on the date of the incident, which again falsify the fact that the incident took place early in the morning.

34. Similar is the case with the testimony of D.W.-1, who has for the first time deposed before the court that she witnessed the incident at 7.00 a.m. in the morning and at that time the appellant was away from the house for natural call. The place of occurrence also varies as per the testimony of defence witnesses and the site plan prepared by the Investigating Officer. There is remarkable distance shown between the kitchen and the place of occurrence in the site plan whereas defence version is that she caught fire while cooking food. The manner of burn injuries also do not corroborate the defence version, as apparently burn injuries were received, when the deceased was in vertical position, had she been cooking food, the position would have been horizontal, which do not corroborate with the medical evidence.

35. It has been argued on behalf of the appellant that the deceased was mentally sick, as such, she caught fire while cooking food but no substantial evidence has been adduced either documentary or oral which may establish the abovementioned facts. If for the sake of argument, it be accepted that the deceased was suffering with some mental disease, then leaving her alone in the house while all family members were away, is itself a cruelty.

36. Now, the most important ingredient is to be considered vis-a-vis the evidence of the prosecution.

37. 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.

38. 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.

39. 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.

40. “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.

41. 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.

42. This fact is established by the testimony of prosecution witnesses that the deceased accompanied the appellant on 24.5.2010 from her parental house to the house of her in-laws, with the assurance that no further harassment shall be done, but on 7.6.2010 she died due to burn injuries. Though, there is no specific evidence regarding cruelty or harassment in between this period, but considering the entire facts of the case, this period can very well be treated as “soon before her death” under the provision of Section 304 IPC. Proximity between the death and the cruelty is to be established and the period “soon before her death” can be extended as per the facts of the case. Nexus has to be established between death and the cruelty. The aforesaid discussions do clearly establish nexus between the death of the deceased and harassment and cruelty in connection with the demand of dowry to the deceased.

43. In view of the aforesaid discussion, the prosecution has clearly established the charge under Section 304-B IPC against accused-appellant, as such, now the presumption under Section 113-B of the Indian Evidence Act is to be raised and it is for the accused to establish the cause of death, reason of death of the deceased and his non-involvement in the said occurrence.

44. In the present case, the defence version is that accused-appellant was not present at the house and when he was informed, he reached and tried to save the deceased, in which he himself received burn injuries, for which witness D.W-3 has been produced, who has proved Ext. Kha-1 and Kha-2 – injury report of alleged injuries of the appellant. D.W.-3 has opined that the injuries of the appellant can be of 7.6.2010 in between 6.00 a.m. to 7.00 a.m., but this fact is to be taken into account that the appellant was examined by D.W.-3 on 8.6.2010 at 9.45 a.m. admitted at 10.55 a.m. and at 11.15 a.m. he was not on his bed. Moreover, there are number of overwritings in the injury reports. In this respect, the most noticeable facts is that the incident occurred on 7.6.2010 around 6.00 to 7.00 in the morning but the treatment of the appellant was done by D.W.-3 on 8.6.2010 at 9.45 a.m., he was admitted in the hospital at 10.55 a.m. and only 20% burn injuries were found. Moreover, the investigating officer – P.W.-7 has stated in his testimony that he had no knowledge about the injuries of the appellant and the same ignorance was also expressed by P.W.-1. In the circumstances, the defence testimony can not be treated as trustworthy and sufficient enough to disprove the presumption raised as per law under Section 113-B of the Indian Evidence Act. Thus, it may be summoned up, that the charge under Section 304-B IPC against the appellant stands proved. As far as the charge under Section 498-A is concerned, the entire factual evidence indicate towards the demand of dowry and consequent harassment and cruelty thereby establishing the charge under aforesaid sections.

45. Thus, the trial court has rightly arrived at the conclusion on the basis of the prosecution evidence that appellant Jitendra Shukla was involved in the commission of crime and he took active participation in causing death of the deceased. The finding recorded by the trial court for convicting the appellant does not call for any interference by this Court.

46. Hence, Criminal appeal is dismissed by confirming conviction and sentence awarded to appellant Jitendra Shukla. The appellant is in jail. He shall remain in jail to serve out sentence awarded by the trial court in pursuance of impugned judgment and order dated 16.10.2015.

47. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgment to the District Judge, Unnao.

Order Date :-14.3.2018

KR

 

 

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