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Kamlesh Singh & Others vs State Of U.P. on 2 February, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR Reserved.

Case :- CRIMINAL APPEAL No. – 624 of 1997

Appellants :-1. Kamlesh Singh

2. Vishwa Raj Singh

3. Munshi

Respondent :- State Of U.P.

Counsel for Appellants:-V.Bhatia,K.K.Singh Rathore,P.Chakravarty,Shushil Kumar Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Anil Kumar Srivastava II, J.

1. Heard Shri Sushil Kumar Singh, learned counsel for the appellants, learned AGA and perused the record.

2. This appeal has been filed against the impugned judgment and order dated 15.10.1997 passed by the learned Sessions Judge, Sitapur in Sessions Trial No.569 of 1994, State Vs. Kamlesh Singh and others arising out of case crime no. 30 of 1993 under sections 498A and 304B I.P.C and section 3/4 Dowry Prohibition Act, Police Station Pisawan, District Sitapur, whereby the accused appellants Kamlesh Singh, Vishwaraj Singh and Munshi Singh have been convicted and sentenced under section 304B IPC for ten years’ rigorous imprisonment each, under section 498A IPC for two years’ rigorous imprisonment each and under section 4, Dowry Prohibition Act for two years’ rigorous imprisonment each. It was ordered that all the sentences shall run concurrently.

3. A First Information Report (in short ”FIR’) was lodged by the complainant Chander Singh on 28.2.1993 at about 1.30 p.m. stating that his sister Janaka Devi was married to Kamlesh Singh about four years from the date of incident. Complainant has given the articles in the marriage. Just after the marriage, his sister Janka Devi was tortured by the accused-appellants for bringing she-buffalo and Vicky from her parental house. Kamlesh Singh used to beat her. Whenever Janka Devi used to come to her parental house, she tells it to the complainant. Complainant also went to the house of the accused and have discussion with accused. The accused made demand of the articles from the complainant, but he has shown his inability to fulfill the demand. Then the accused Kamlesh Singh, his brothers Vishwaraj Singh and Munshi Singh threatened to kill his sister. On 27.2.1993, when Shiv Raj Singh, brother of the complainant went for Mela Parikrama, accused Vishwaraj Singh met him and told that if he will not give the she-buffalo and Vicky, then he has to face the dire consequences. Shiv Raj Singh went to the house of another sister and stayed there in the night. In the morning, he reached the house of the accused to meet his sister Janka Devi where he found that the accused were making preparation to take the dead body of Janka Devi for cremation. When Shiv Raj Singh asked Kamlesh Singh as to what happened to Janka Devi, Kamlesh Singh got angry and did not tell anything. Then Shiv Raj Singh sent one Raghuveer Singh to the complainant. The complainant came to the house of his sister Janka Devi. Thereafter he lodged the FIR, which was registered at case crime no. 30 of 1993 under sections 498A and 304B IPC and section 3/4 D.P.Act, P.S. Pisawan, District Sitapur.

4. Investigation was handed over to Circle Officer Sri Nageshwar Singh. Inquest proceedings were conducted on 28.2.1993. Postmortem of the dead body of deceased was conducted on 01.03.1993 at 2.45 p.m., wherein the cause of death could not be ascertained and the viscera was preserved. During investigation, statements of the witnesses were recorded. Site plan was prepared. Report of the Forensic Science Laboratory was received regarding viscera, wherein it is mentioned that the viscera contains Mandrex (Diphen Hidramin and Methaquinon) poison. Thereafter the charge-sheet was submitted against the accused.

5. Accused were charged under sections 498A and 304B IPC and section 4 D.P.Act. They denied the charges and claimed trial.

6. In order to prove its case, prosecution has produced P.W.1 Chander Singh, brother of the deceased and complainant, P.W.2 Shiv Raj Singh, brother of the deceased, P.W. 3 Constable Kamal Singh, G.D. writer and P.W. 4, Dr. G.C. Verma, who has conducted the postmortem. Formal proof of the documents of investigation was dispensed with by the learned counsel for the defence.

7. Accused have stated in the statement under section 313 Cr.P.C. that Kamlesh Singh was married to deceased. It is further admitted that in the marriage, appropriate dowry was given. It is stated in the statement that a girl was born to the deceased. Thereafter, she was suffering from fever. She was being treated. She died due to the fever. Other accused have also made the similar statement.

8. Learned trial court after appreciating the evidence on record recorded a finding of guilt against the accused. Learned trial court has held that there was a demand of she -buffalo and Vicky by the accused. Deceased was tortured for the demand by the accused. She was also tortured for demand of dowry ”soon before her death’. It is further held that the deceased died within seven years of her marriage in her laws house. Death was not normal, rather it was abnormal as Mandrex (Diphen Hidramin and Methaquinon) poison was found in the viscera. Learned trial court has further held that the accused have failed to discharge the burden as provided under section 113B of the Evidence Act. They could not prove that the deceased died due to the fever after delivery of a daughter. Consequently, the learned trial court has found guilty the accused and convicted and sentenced them as above.

9. Learned counsel for the appellants has submitted that there was no demand of dowry. Demand of dowry is not proved. It was an after thought. It is neither a case of homicide nor unnatural death. It is further submitted that the ingredients of section 304 B IPC are not proved by the prosecution as the prosecution has utterly failed to prove that ”soon before the death’ there was any demand of dowry by the accused. There is no evidence on record to prove that the deceased was being tortured for demand of dowry by the accused. It is further submitted that accused were no under obligation to discharge their burden as the very ingredients of section 304-B IPC could not be proved by the prosecution.

10. Per contra, learned AGA has submitted that prosecution has successfully proved the case beyond reasonable doubt against the accused. It has been proved that the deceased was tortured for demand of she-buffalo and Vicky by the accused, soon before her death. Deceased died in abnormal circumstances within seven years of her marriage in her laws house. Mandrex (Diphen Hidramin and Methaquinon) poison was found in the viscera by the Forensic Science Laboratory. Accused have failed to discharge their burden under section 113B of the Evidence Act. When all the ingredients of section 304B IPC are proved, then accused are under legal obligation to discharge the burden that the death was not homicidal as the death was not under abnormal circumstances.

11. Before dealing with the merits of the case, it would be appropriate to discuss the legal aspect of section 304-B IPC and presumption under section 113-B, Indian Evidence Act.

12. The actual words used in Section 304-B IPC are of importance. This section reads as under:-

” 304-B. 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.”

13. In a large number of decisions, the Hon’ble Apex Court has indicated the ingredients of Section 304-B IPC, which are now broadly accepted. In Pawan Kumar V. State of Haryana (1998) 3 SCC 309 the ingredients were identified as : SCC p. 314, para 6)-

“[a] When the death of a woman is caused by any burns or bodily injury, or

[b] occurs otherwise than under normal circumstances.

[c] and the aforesaid two facts springs within 7 years of girl’s marriage.

[d] and soon before her death, she was subjected to cruelty or harassment by her husband or his relative.

[e] this is in connection with the demand of dowry.”

(emphasis in original)

14. The ingredients of Section 304-B IPC were rephrased in Kans Raj V. State of Punjab (2000 ) 5 SCC 207 in the following words: (SCC p. 217, para 9).

“(a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;

(b) such death should have occurred within 7 years of her marriage;

(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;

(d) such cruelty or harassment should be for or in connection with the demand of dowry; and

(e) to such cruelty or harassment the deceased should have been subjected to soon before her death. As and when the aforesaid circumstances are established, a presumption of dowry death shall be drawn against the accused under section 113B of the Evidence Act. It has to be kept in mind that presumption under Section 113B is a presumption of law. We do not agree with the submissions made by Mr.Lalit, learned Senior Counsel for the accused that the statement made by the deceased to her relations before her death were not admissible in evidence on account of intervening period between the date of making the statement and her death.”

The expression “otherwise than under normal circumstances’ was explained to mean “death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury.”

15. A Somewhat recent exposition is to be found in Hira Lal v. State (Govt. of NCT of Delhi) (2004) 8 SCC 80 wherein the Hon’ble Apex Court held that to attract the application of Section 304-B IPC, the essential ingredients are as follows: (SCC p. 85, para 8)

“(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

(ii) Such a death should have occurred within seven years of her marriage.

(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.”

16. More recently the ingredients of Section 304-B IPC have been abbreviated in Bakshish Ram v. State of Punjab (2013) 4 SCC 131 in the following words:

(SCC p. 136. para 14)

“(a) that a married woman had died otherwise than under normal circumstances;

(b) such death was within seven years of her marriage; and

(c) the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death.”

This “formula”, though framed in different words by the Hon’ble Apex Court, from time to time, conveys the same meaning of the essential ingredients of an offence punishable under Section 304-B IPC.

17. Importantly, Section 304-B IPC does not categorise death as homicidal or suicidal or accidental. This is because death caused by burns can, in a given case, be homicidal or suicidal or accidental. Similarly, death caused by bodily injury can, in a given case, be homicidal or suicidal or accidental. Finally, any death occurring “otherwise than under normal circumstances” can, in a given case, be homicidal or suicidal or accidental. Therefore, if all the other ingredients of Section 304-B IPC are fulfilled, any death (whether homicidal or suicidal or accidental) and whether caused by burns or by bodily injury or occurring otherwise than under normal circumstances shall, as per the legislative mandate, be called a “dowry death” and the woman’s husband or his relative “shall be deemed to have caused her death”. The section clearly specifies what constitutes the offence of a dowry death and also identifies the single offender or multiple offenders who has or have caused the dowry death.

18. The evidentiary value of the identification is stated in Section 113-B of the Evidence Act, 1872 (the Act). The key words in this section are “shall presume” leaving no option with a court but to presume an accused brought before it of causing a dowry death guilty of the offence. However, the redeeming factor of this provision is that the presumption is rebuttable. Section 113-B of the Act enables an accused to prove his innocence and places a reverse onus of proof on him or her.

Section 113-B of the Act reads as follows:

“113-B. 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).”

19. That the presumption under Section 113-B of the Act is mandatory may be contrasted with Section 113-A of the Act which was introduced contemporaneously. Section 113-A of the Act, dealing with abetment to suicide, uses the expression “may presume”. This being the position, a two-stage process is required to be followed in respect of an offence punishable under Section 304-B IPC: it is necessary to first ascertain whether the ingredients of the section have been made out against the accused; if the ingredients are made out, then the accused is deemed to have caused the death of the woman but is entitled to rebut the statutory presumption of having caused a dowry death.

20. On the question of burden of proof, the Apex Court referred to Section 113-B of the Act and held in para-19 of the Report: (Pawan Kumar Case, SCC p. 319 (Supra).

“19……. We find that Section 8-A of the aforesaid 1961 Act which came into force w.e.f. 2nd October, 1985 for taking or abetting any dowry, the burden to explain is placed on such person against whom the allegation of committing an offence is made. Similarly, under Explanation to Section 113-B of the Indian Evidence Act, which was also brought in by the aforesaid Act No. 43 of 1986, there is presumption that such death is on account of dowry death. Thus the burden, if at all, was on the accused to prove otherwise.”

21. In Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577, a Bench of three Judges of the Hon’ble Apex Court elucidated the requirements of Section 304-B IPC read with Section 113-B of the Act and contrasted it with Section 113-A of the Act. Paras 27 to 30 are extremely important in this context and are reproduced below: (SCC pp. 586-87).

“27. The postulates needed to establish the said offence are: (1) Death of a wife should have occurred otherwise than under normal circumstances within seven years of her marriage; (2) soon before her death she should have been subjected to cruelty or harassment by the accused in connection with any demand for dowry. Now reading Section 113-B of the Evidence Act, as a part of the said offence, the position is this: If the prosecution succeeds in showing that soon before her death she was subjected by him to cruelty or harassment for or in connection with any demand for dowry and that her death had occurred (within seven years of her marriage) otherwise than under normal circumstances ”the court shall presume that such person had caused dowry death’.”

Under Section 4 of the Evidence Act:

“Shall presume”.–Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.

So the court has no option but to presume that the accused had caused dowry death unless the accused disproves it. It is a statutory compulsion on the Court. However, it is open to the accused to adduce such evidence for disproving the said compulsory presumption, as the burden is unmistakably on him to do so. He can discharge such burden either by eliciting answers through cross-examination of the witnesses of the prosecution or by adducing evidence on the defence side or by both.”

22. In Yashoda v. State of M.P. (2004) 3 SCC 98, the Hon’ble Apex Court held that once the ingredients of Section 304-B IPC are fulfilled, the onus shifts to the defence to produce evidence to rebut the statutory presumption and to whom that the death was in the normal course with which the accused were not connected. This is what was said: (SCC p. 103, para 13).

“13…….Once the prosecution proves the facts which give rise to the presumption under Section 304-B IPC, the onus shifts to the defence and it is for the defence to produce evidence to rebut that presumption. The defence may adduce evidence in support of its defence or may make suggestions to the prosecution witnesses to elicit facts which may support their defence. The evidence produced by the defence may disclose that the death was not caused by them, or that the death took place in normal course on account of any ailment or disease suffered by the deceased or that the death took place in a manner with which they were not at all connected. In the instant case if the defence wanted to prove that the deceased had suffered from diarrhoea and vomiting and that resulted in her death, it was for the defence to adduce evidence and rebut the presumption that arose under Section 304-B IPC. The defence could have examined the doctor concerned or even summoned the record from the hospital to prove that in fact the deceased has suffered such ailment and had also been treated for such ailment.”

23. In Nallam Veera Stayanandam v. Public Prosecutor, (2004) 10 SCC 769 the Hon’ble Apex Court specifically adverted to an accidental death and the applicability of Section 304-B IPC as well as the presumption under Section 113-B of the Act and held: (SCC p. 772, para 5)

“5…….It is true from the evidence led by the prosecution it has been able to establish that the appellants were demanding dowry which was a harassment to the deceased. It is also true that the death of the deceased occurred within 7 years of the marriage, therefore, a presumption under Section 113-B of the Evidence Act is available to the prosecution, therefore, it is for the defence in this case to discharge the onus and establish that the death of the deceased in all probability did not occur because of suicide but was an accidental death.”

24. Similarly, in Sharad v. State of Maharashtra (2012) 5 SCC 548, the Hon’ble Apex Court was again concerned with an accidental death. This Court referred to Section 113-B of the Act to conclude that the burden of proving that it was an accidental death was upon the accused. It was held: (SCC p. 551, para-8)

“8. The counsel for the appellant next tried to advance the plea that it was in fact a case of accidental burn and Savita caught fire by falling down on the chulha. It is seen above that Savita died from burn injuries within two and a half year of her marriage with the appellant. It is also established that soon before her death she was subjected to cruelty or harassment by the appellant in connection with the demand for the unpaid amount of the dowry. All the three facts and circumstances put together clearly attracts the provision of Section 113-B of the Evidence Act and the burden lay upon the appellant to prove the defence plea that it was a case of accidental burn. There is, however, no evidence on record even to remotely support the plea of accidental burn.”

25. Finally, in Pathan Hussain Basha v. State of A.P (2012) 8 SCC 494, the Hon’ble Apex Court reiterated that the burden of proving the innocence of the accused or rebutting the statutory presumption is on him and not on the prosecution which has only to prove that the ingredients of an offence of dowry death are made out. It was held: (SCC p. 603, para 17)

“17. Applying these principles to the facts of the present case, it is clear that the ingredients of Section 304-B read with Section 498-A IPC are completely satisfied in the present case. By a deeming fiction in law, the onus shifts on to the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused persons. The accused did not care to explain as to how the death of his wife occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected of the accused to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal thereto, there is no occasion to interfere in the judgments of the courts under appeal.”

A discordant note on the issue of burden of proof in an accidental death was struck in Hira Lal’s case (supra) wherein the Hon’ble Apex Court conjointly read Section 304-B IPC and Section 113-B of the Act. It was held that the onus is on the prosecution to rule out the possibility of a natural and accidental death. It was held in para 9 of the Report as follows: (SCC p. 86)

“9. 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. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’.”

These very words were repeated, almost in identical terms, in Kunhiabdulla v. State of Kerala (2004) 4 SCC 13, State of A.P. v. Raj Gopal Asawa (2004) 4 SCC 470 and in Kamesh Panjiyar v. State of Bihar (2005) 2 SCC 388 that it is for the prosecution to show that the dowry death was not natural or that it was accidental.

26. This view has recently been followed in Bakshish Ram (Supra) wherein it was held that: (SCC p. 138, para 19).

“19…… [A] perusal 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. In other words, 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 prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates.”

27. In Suresh Kumar Vs. State of Haryana (2013) 16 SCC 353, Hon’ble the Apex Court has held that:-

“We are, of course, bound by the decision of a larger Bench of this Court in Multtani. Following that decision, we must hold that the initial burden of proving the death of a woman within seven years of her marriage in circumstances that are not normal is on the prosecution; such death should be in connection with or for a demand of dowry which is accompanied by such cruelty or harassment that eventually leads to the woman’s death in circumstances that are not normal. After the initial burden of a deemed dowry death is discharged by the prosecution, a reverse onus is put on the accused to prove his innocence by showing, inter alia, that the death was accidental.”

28. Now it is to be considered as to whether the basic ingredients to attract the provisions of section 304-B IPC have been proved by the prosecution.

29. Now it is to be seen that prosecution has been able to prove the following necessary ingredients of section 304-B IPC:-

(i). “The death of a woman should be caused by burns or fatal injury or otherwise than under a normal circumstance”. In order to prove this ingredient, prosecution has produced P.W. 4 Dr. G.C.Verma, who has conducted the postmortem of the body of the deceased. No apparent cause of death of the deceased could have been assessed by the Doctor, hence the viscera was preserved. Report of the Forensic Science Laboratory is Ext. Ka-12. Genuineness of the document has been admitted by the learned counsel for the accused before the trial court. It was reported by the Forensic Science Laboratory that the viscera was containing Mandrex (Diphen Hidramin and Methaquinon) poison. No other chemical poison was found in the viscera. P.W. 4 Dr. Verma has stated that the death could have been caused in the night of 27/28.2.1993. It was not a natural death, rather it was a death which has been caused due to administering the Mandrex which contains poison, hence the prosecution has been successfully able to prove the first ingredient that the death was otherwise than under normal circumstances.

(ii) “Such a death should have occurred within seven years of her marriage”. It is stated by P.W. 1 complainant Chander Singh that the marriage of deceased Janka Devi with accused Kamlesh Singh was performed four years before the date of incident. P.W. 2, Shiv Raj Singh, who was the brother of the deceased, has stated the same.

In the statement under section 313 Cr.P.C., accused have admitted that the marriage was performed four years before the date of incident. D.W. 1 Teni Singh, who was the Intermediary in the marriage, has stated that the marriage of deceased was performed with Kamlesh Singh before four years from the date of incident. All these statements conclusively prove that the death of the deceased Janka Devi occurred within seven years of her marriage.

The next necessary ingredient is (iii) “she must have been subjected to cruelty or harassment by her husband or any relative of her husband.”

(iv) “such cruelty or harassment should be for or in connection with demand of dowry.”

(v) ” to such cruelty or harassment the deceased should have been subjected to soon before her death.”

30. All these ingredients are interconnected, hence they are dealt with jointly. In the FIR, it is stated that just after the marriage, accused were torturing the deceased for brining a she-buffalo and Vicky in the dowry. Whenever Janka Devi used to come to her parental house, she narrates this facts to her brothers, but they were not in a financial position to meet the demand. Accused used to threatened that if the demands are not made good, Janka Devi would be killed. On 27.2.1993, accused Vishwaraj Singh met P.W. 2 Shiv Raj Singh in Mela Parikrama and again made the demand and threatened that if the demands are not made good, dire consequences have to be faced. P.W. 1 Chander Singh has reiterated this statement. The evidence of P.W.1 Chander Singh on this point is clinching and believable. It is argued that no independent witness of the incident has been produced. It is further submitted that when earlier demands were made, no complaint to any authority was made by the brothers of the deceased, which could prove that earlier also any such type of demand was made.

31. In Surinder Singh Vs. State of Haryana, (2014) 4 SCC 129, it has been held by the Hon’ble Apex Court that:-

“Before closing, the most common place argument must be dealt with. In all cases of bride burning it is submitted that independent witnesses have not been examined. When harassment and cruelty is meted out to a woman within the four walls of the matrimonial home, it is difficult to get independent witnesses to depose about it. Only the inmates of the house and the relatives of the husband, who cause the cruelty, witness it. Their servants, being under their obligation, would never depose against them. Proverbially, neighbours are slippery witnesses. Moreover, witnesses have a tendency to stay away from courts. This is more so with neighbours. In bride burning cases who else will, therefore, depose about the misery of the deceased bride except her parents or her relatives? It is time we accept this reality. We, therefore, reject this submission.” (Para 33)

32. There could not be any possibility for any independent witness who could have seen the incident. So far as the question of earlier conduct is concerned, in our society, the family member of the girl always makes an attempt to settle the matter amicably. It is a case of 1993 i.e. about 24 years back. In the rural background, generally the family members or the brothers of the girl do not go to the police unless and until situation becomes so harsh that they have no option to make a complaint to the police or move before the court. Villagers, and for that purpose even in urban area at the very beginning of the relationships when relations between the two sides become strained, an effort is always made to reconcile the matter amicably because it is a common perception that once the matter goes to the police, then the possibility of reconciliation becomes very week. In these circumstances, even if no complaint was made to the police regarding demand of dowry or torture being made by the accused for the demand of she- buffalo and Vicky, it does not make any difference or it could not said to be fatal for the prosecution.

33. P.W.1 Chander Singh has stated that whenever her sister deceased Janka Devi comes to his house, she used to tell about the mal treatment by the accused. P.W. 2 Shiv Raj Singh is another brother of the deceased, who has stated that just after the marriage, number of times deceased comes to his house, there was continuous demand. Every time, P.W. 2 and P.W.1, brothers of the deceased reconcile the deceased and send her to her in laws house. Statements of P.W. 1 Chander Singh and P.W. 2 Shiv Raj Singh are wholly believable. There is nothing on record which could prove that they are falsely implicating the accused. This fact further finds support from the FIR which was lodged promptly on 28.2.1993 at 1.30 p.m. According to P.W. 2 when he met the accused Vishwaraj Singh on Mela Parikrama in the evening of 27.2.1993, the accused Vishwaraj Singh repeated the demand of she-buffalo and Vicky and said that if it is not made good, dire consequences have to be faced, then in the night he stayed at the house of his another sister Urmila Devi who was residing in village Husainpur. In the morning, he went to the house of the deceased to meet her where he found deceased’s dead body. Thereafter he informed Chander Singh. An FIR was lodged. The sequence of incident clearly establishes that the FIR was lodged at the earliest without making any undue delay. FIR is also not so prompt which was caused a doubt about it might be ante time or ante dated. Such conduct itself goes to show that the FIR is prompt.

34. Learned counsel for the accused appellants submits that the story of meeting of P.W. 2 Shiv Raj Singh in Mela Parikrama with accused Vishwaraj Singh is false. It has been created falsely. In the matter of prompt FIR where there are no chances and possibilities of false implication of accused. If the FIR is lodged with delay, there may be possibilities of consultations, deliberations and false implication, but in the matter of prompt FIR such possibilities are automatically ruled out.

35. In Ramaiah alias Rama VS. State of Karnataka (2014) 9 SCC 365, there was a delay in lodging the FIR., the Hon’ble Apex Court has held that the delay in lodging the FIR per se may not render prosecution case doubtful as there may be various reasons for lodging the FIR with some delay. However, in such cases, the prosecution need to offer some explanation for the delay, but in the present case, F.I.R. is prompt one. Even if there is any delay that too has not been on fatal.

36. Expression ”soon before her death’ has been dealt with by the Hon’ble Apex Court in Surinder Singh Vs. State of Haryana (2014) 4 SCC 129, wherein it was held in para 17 and 18:-

17. “Thus, the words ‘soon before’ appear in Section 113B of the Indian Evidence Act, 1872 and also in Section 304B of the IPC. For the presumptions contemplated under these Sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words ‘soon before’ is, therefore, important. The question is how ‘soon before’? This would obviously depend on facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for along time. Therefore, ‘soon before’ is a relative term. In matters of emotions we cannot have fixed formula. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.

18. In this connection we may refer to judgment of this Court in Kans Raj v. State of Punjab[5] where this Court considered the term ‘soon before’. The relevant observations are as under: “… … … “Soon before” is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term “soon before” is not synonymous with the term “immediately before” and is opposite of the expression “soon after” as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death.

It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be “soon before death” if any other intervening circumstance showing the non- existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.”

Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law.”

37. A natural story has been stated by P.W. 2 Shiv Raj Singh that he stayed over the house of her another sister Urmila, whose village is nearby to the village of the deceased. In the morning when he reached the accused house, he found the dead-body of the deceased. Accused were making arrangements for the cremation of the dead body of his sister Janka Devi. Since P.W. 2 Shiv Raj Singh reached there, they could not cremate the dead body and postmortem was conducted. This statement cannot be doubted in any manner.

38. Learned counsel for the accused appellants further submits that there is no evidence on record that the deceased was tortured for demand of dowry ”soon before her death.’ The term ”soon before death’ has already been dealt with by the Hon’ble Apex Court in the case of Surinder Singh (Supra).

39. According to P.W. 2 Shiv Raj Singh on 27.2.1993, in the evening accused Vishwaraj Singh, who is brother of Kamlesh Singh, husband of the deceased met him and again made the demand of she-buffalo and Vicky and also threatened for dire consequences if the demand is not made good. Prior to it, continuously, deceased was being tortured by the accused for such demand. In the FIR, it is also mentioned that the complainant has given articles in marriage as per his financial condition, but continuously demand for she-buffalo and Vicky was being made by the accused.

40. D.W.1 Teni Singh, who is the intermediary in the marriage, has stated that he has never been informed about such demand. Even if it is so, it does not improbablise the prosecution version. Although D.W.1 Teni Singh might have been an intermediary in the marriage, but it is not always necessary that demand of dowry should also be informed to him. Statement of P.W. 2 Shiv Raj Singh is wholly reliable. Accused Vishwa Raj Singh met him on 27.2.1993 and again demanded she-buffalo and Vicky and also threatened for dire consequences. On the very next day i.e. in the intervening night of 28.2/1.3.1993 deceased died by administering poison to her. All these facts conclusively prove that the deceased was done to death by the accused for the demand of dowry in her in laws house within seven years of her marriage.

41. When the necessary ingredients of section 304-B IPC have been duly proved by the prosecution, then a conclusive presumption under section 113-B of the Evidence Act is to be drawn against the accused. Although the accused have an opportunity to rebut the same, but in the present case, accused have not been able to submit any reason as to how the deceased died in their house? A suggestion has been given that the deceased died due to fever since the birth of a female child by the deceased. It is stated that before two months of the date of incident a girl child was born, since then deceased was in fever and she died due to the fever. A false defence has been taken by the accused. When in the viscera examination, poison is found, then the story of death due to fever is fully proved to be a false story. It is clear that the ingredients of section 304-B IPC read with section 498A IPC are completely satisfied in the present case. By a deeming fiction of law, the onus shifts on the accused to prove as to how the deceased died. It is for the accused to show that the death of the deceased did not result from any cruelty or demand of dowry by the accused. The accused did not care to explain as to how the deceased died in their house. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was mandatory for the accused to explain as to how and why deceased died in their house? Conduct of the accused immediately prior and after the death of the deceased is also relevant. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. There being no rebuttal there too, there is no occasion to interfere in the judgment of the learned court below.

42. Considering all the facts and circumstances of the case, it is fully proved beyond reasonable doubt that the charges levelled against the accused appellants are proved. Learned trial court has rightly convicted and sentenced the accused appellants for the offence punishable under sections 304B and 498A IPC and section 4 of the Dowry Prohibition Act.

43. Now the point of appropriate sentence comes for my consideration. For the offence under Section 304-B IPC, the minimum sentence provided under law is seven years which may be extended to imprisonment for life. So a very vast discretion has been given to the Court to inflict appropriate sentence. Thus, appropriate sentence, in cases of dowry death, depends upon the facts and circumstances of each case. In the instant case, the deceased died within seven years of her marriage in her in laws house by consuming Mandrex (Diphen Hidramin and Methaquinon) poison. Possibility that it might have been consumed by the deceased cannot be ruled out.

44. Now I will have to consider the law on the point of sentence to be inflicted under Section 304-B I.P.C. Hon’ble the Apex Court in the case of Hem Chand v. State of Haryana reported in (1994) 6 SCC 727, in paragraph 7 of the judgment, has held as under:-

“Now coming to the question of sentence, it can be seen that Section 304B I.P.C. lays down that: “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.”

45. A reading of Section 304B I.P.C. would show that when a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied.

46. Hon’ble the Apex Court in the case of G.V. Siddaramesh v. State of Karnataka reported in (2010) 3 SCC 152 has observed in paragraph 30 of the judgment as under:-

“On the point of sentence, learned Counsel for the appellant pointed out that the appellant is in jail for more than six years . The appellant was young at the time of incident and therefore, the sentence awarded by the trial court and confirmed by the High Court may be modified. In so far as sentencing under the section is concerned, a three Judge Bench of this Court in the case of Hemchand v. State of Haryana [(1994) 6 SCC 727] has observed that: “Section 304B merely raises a presumption of dowry death and lays down that the minimum sentence should be 7 years, but it may extend to imprisonment for life. Therefore, awarding the extreme punishment of imprisonment for life should be used in rare cases and not in every case.” Keeping in view the facts and circumstances of the case, this Court reduced the sentence from life imprisonment awarded by the High Court to 10 years R.I. on the above principle.”

47. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases.

48. A reference on this point may also be made to the pronouncement of Hon’ble Apex Court in the case of Sunil Dutt Sharma V State reported in (2014) 4 SCC 375 wherein Hon’ble the Apex Court has considered the point of sentence in detail and has observed in para 5 as under:-

“The power and authority conferred by use of the different expressions noticed above indicate the enormous discretion vested in the Courts in sentencing an offender who has been found guilty of commission of any particular offence. No where, either in the Penal Code or in any other law in force, any prescription or norm or even guidelines governing the exercise of the vast discretion in the matter of sentencing has been laid down except perhaps, Section 354(2) of the Code of Criminal Procedure, 1973 which, inter-alia, requires the judgment of a Court to state the reasons for the sentence awarded when the punishment prescribed is imprisonment for a term of years. In the above situation, naturally, the sentencing power has been a matter of serious academic and judicial debate to discern an objective and rational basis for the exercise of the power and to evolve sound jurisprudential principles governing the exercise thereof.”

49. The case of Sunil Dutt Sharma (Supra) was also a case of dowry death. In that case the cause of death was strangulation and Hon’ble Apex Court was of the view that a sentence of 10 years rigorous imprisonment would be appropriate.

50. In a very recent judgment in the case of V.K. Mishra and another v. State of Uttarakhand reported in (2015) 9 SCC 588, Hon’ble the Apex Court has again considered the question of sentence in cases of dowry death and has observed in paragraph no. 42 as under:-

“42. For the offence Under Section 304-B Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304-B Indian Penal Code thus prescribes statutory minimum of seven years. In Kulwant Singh and Ors. v. State of Punjab (2013) 4 SCC 177, while dealing with dowry death Sections 304-B and 498-A Indian Penal Code in which death was caused by poisoning within seven years of marriage conviction was affirmed. In the said case, the father-in-law was about eighty years and his legs had been amputated because of severe diabetes and mother-in-law was seventy eight years of age and the Supreme Court held impermissibility of reduction of sentence on the ground of sympathy below the statutory minimum.”

51. Sentence awarded by the learned trial court is appropriate in the circumstances of the present case.

52. The trial court has also awarded sentence for the offence under Section 498-A I.P.C. but the offence under Section 498-A I.P.C. is included in the offence under Section 304-B I.P.C. So there was no need to pass separate sentence under Section 498-A I.P.C. It has been so held by Hon’ble the Apex Court in the case of Smt. Shanti and another v. State of Haryana reported in (1991) 1 SCC 371. Last lines of paragraph 5 reads as under:-

“5……… But from the point of view of practice and procedure and to avoid technical defects it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded under Section 498-A in view of the substantive sentence being awarded for the major offence under Section 304-B.”

53. Consequently, this appeal deserves to be dismissed and is accordingly dismissed. Judgment and order dated 15.10.1997 passed by the learned Sessions Judge. Sitapur in Sessions Trial No.569 of 1994, State Vs. Kamlesh Singh and others arising out of case crime no. 30 of 1993 under sections 498A and 304B I.P.C and section 3/4 D.P.Act, Police Station Pisawan, District Sitapur is confirmed. Accused appellants Kamlesh Singh, Vishwa Raj Singh and Munshi are on bail. Their personal bonds and bail bonds are cancelled. Sureties are discharged. They shall be taken into custody to serve out the sentence as imposed by the learned trial court and confirmed by this Court.

54. Let a copy of this judgment alongwith the lower court record be sent to the learned trial court forthwith by the office to ensure the compliance of this judgment. Learned trial court shall send the compliance report within four weeks.

Order Date: 02.02.2017

GSY

 

 

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