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Mahesh Patel vs State Of U.P. on 18 April, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 13.3.2019

Delivered on 18.4.2019

Court No. – 49

Case :- CRIMINAL APPEAL No. – 1878 of 2017

Appellant :- Mahesh Patel

Respondent :- State Of U.P.

Counsel for Appellant :- Anand Kumar Singh,Ashish Kumar Singh,Manvendra Singh,Pradeep Kumar Singh, Satyendra Kumar Singh

Counsel for Respondent :- G.A.

Hon’ble Ram Krishna Gautam,J.

This Criminal Appeal under Sections 374(2) read with Section 389(1) of Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) has been filed by convict appellant Mahesh Patel against judgment of conviction and sentence made therein dated 30.3.2017 passed by the Additional Sessions Judge/ F.T.C. Court No. 1, Varanasi, in S. T. No. 93 of 2015, State of U.P. Vs. Mahesh Patel and others, arising out of Case Crime No. 436 of 2014, under sections 304B, 498A, 201 I.P.C. and 4 D.P. Act, Police Station Rohaniya, District Varanasi, whereby the convict appellant has been sentenced with seven years rigorous imprisonment for offence punishable u/s 304B I.P.C., one year’s simple imprisonment with fine of Rs. 1000/- for offence punishable u/s 498A I.P.C., one year’s simple imprisonment with fine of Rs. 1000/- for offence punishable u/s 201 I.P.C. and one year’s simple imprisonment with fine of Rs. 1000/- for offence punishable u/s 4 D.P. Act with direction for concurrent running of sentences and adjustment of previous imprisonment, if any, in this case crime, and in default of payment of fine one month’s additional imprisonment has to be served.

Heard Sri Manvendra Singh, learned counsel for appellant, and Sri N. K. Srivastava, learned AGA for the State. Perused the lower court’s record.

Prosecution case, which surfaced from record, was that an information by one Shrichand Bind, a representative of Gram Pradhan of Village Ganj Khwaja, police station Alinagar, district Chandauli, was submitted at Police Station Alinagar, District Chandauli, on 01.11.2014 at 11.45 A.M. that a dead body of unknown lady, aged about 28 years, was lying in a paddy field, within the area of village Ganj Khawaja at a distance of about 4 Kms. towards east from the police station. Upon this information inquest proceeding of dead body of an unknown woman, aged about 28 years, religion Hindu, was got conducted by Sub Inspector of Police, Police Station Alinagar, after taking witnesses Shrichand Bind, Smt. Kewla Devi, Manoj Kumar, Ram Vilas and Ganga Prasad on 01.11.2014 at 13.05 hours and this was found to be a case in which no apparent injury was there on the person of deceased and even after effort identification of the dead body could not be established, hence for determining real cause of death autopsy examination was needed, for which relevant police papers were got prepared and dead body under sealed intact position was sent for autopsy examination.

Autopsy examination, on dead body, brought by police of P.S. Alinagar, District Chandauli, was got conducted on 02.11.2014 at 4.00 P.M., in which ante-mortem injuries were found with finding of death owing to ante-mortem throttling and thereafter asphyxia resulting death. On the basis of postmortem report, vide G.D. Entry No. 35 at about 13.15 hours of 13.5.2014, Case Crime No. 372 of 2014, u/s 302, 201 I.P.C., was got lodged against unknown person at P.S. Alinagar, District Chandauli, and investigation was deputed to S.O. Anup Kumar Yadav of P.S. Alinagar, District Chandauli.

On 09.11.2014 computerized typed report under signature of Ramji Singh, Advocate, was submitted before Station Officer, Police Station Rohaniya, District Varanasi, that his daughter Sunita Patel was married on 7.5.2011 with Mahesh Patel, son of Rajnarayan Patel, resident of Village Govindpur, P.S. Rohaniya, district Varanasi, as per Hindu rituals and dowry, as per capacity, was given in the marriage to Mahesh Patel. As his family members were not satisfied with the dowry given in the marriage, they were making complaint and torturing Sunita Patel for additional dowry. This was complained by Sunita Patel to her parents as well as her elder brother. Besides this Mahesh Patel and his sister-in-law (Bhabhi) Aarti, wife of Sanjay Patel were repeatedly demanding additional dowry through telephonic call and many times it was fulfilled. Mahesh Patel was persuaded that his repeated demand may not be fulfilled. Sunita was blessed with a female child, out of wedlock of Mahesh Patel. After this, demand and torture accelerated. Upon protest Mahesh and his friend Suraj alias Chhotu Patel, son of Ram Lakhan had beaten Sunita two months back and she was left at about 1 Km from her parental house, forcibly. She came along with her tiny four months old baby, to her parents. She complained to her parents. On this the informant along with his brother Amresh, Kamlesh, Lachhiman, son of Bhagwan and Balkishun son of Saltoo and many other reputed persons of the village went at the house of Mahesh, but they were not amenable to them and directed for last demand of dowry, otherwise he will leave Sunita or she may be done to death. Applicant and others went back. But upon persuasion made by Kedar, a relative of Mahesh, and persons, who had accompanied the informant, he sent his daughter Sunita along with Sunil, brother of Mahesh, upon assurance of Mahesh on 3.10.2014. After two-three days the same demand and cruelty occurred. This was instantly reported to the informant through cellphone by Sunita. On 01.11.2014 at about 8.00 P.M. the informant called on personal cellphone of Sunita Patel but it was switched off. Inspite of repeated efforts call could not be made. On 4.11.2014 about 6.00 P.M. he perceived some rumour that his daughter has been murdered and thrown somewhere. Then after he along with his elder brother and nephew went at the home of Mahesh, who apprised that Sunita had left her daughter and had fled with someone. Informant searched her at the residence of his relatives and places of probability for her recovery but of no avail. Then he went at above Police Station Rohaniya, where he came to know that Mahesh had lodged a missing report of his wife Sunita at P.S. Rohaniya on 2.11.2014. On 7.11.2014 a news item was flashed in ‘Amar Ujala’ that a dead body of unknown lady has been recovered from a paddy field within the area of Police Station Alinagar, Chandauli, on 1.11.2014. On this information the informant along with his wife Hira Devi, son Abhilesh Kumar Patel, cousin Chandrama Singh Patel, Tanendra Pratap Singh, Advocate, brother Kamlesh Kumar Singh, Chandrabhan Singh Patel, Mahendra Prasad Pate, Ex. Gram Pradhan, Sudhir Kumar Singh, Kripa Sinkar Pal, Anju Kumar Singh, Rajendra Kumar Patel and staff of Police Station went to P.S. Alinagar, Chandauli, where Station Officer showed the belongings of the deceased, autopsy examination report, photograph of deceased, clothes and ornaments of the deceased. This was identified to be of the dead body of Sunita Patel. It was believed that Sunita Patel was murdered by her husband Mahesh Patel, Jeth Anil Patel, Sunil Patel, Vinod alias Raja Patel, Anita wife of Anil, Aarti wife of Sanjay, and Suraj alias Chhotu Patel, a friend of Mahesh, and this murder was owing to dowry death for which dead body was taken and thrown at the above place within the area of P.S. Alinagar, district Chandauli.

Report of identification of deceased and recovery memo of her belongings (Ext. Ka2 and Ext. Ka5) were got prepared. Investigation resulted in submission of Charge sheet in Case Crime No. 436 of 2014 for offences punishable u/s 498A, 304B, 302, 201 I.P.C. read with section 3/ 4 D. P. Act, P.S. Rohaniya, district Varanasi, against Mahesh Patel, Vinod Patel alias Raja, Suraj alias Chhotu Patel and Smt. Aarti Patel, wife of Sanjay Patel and the C.J.M., Varanasi, took cognizance over it on 7.2.2015.

Offence of dowry death was exclusively triable by court of Sessions, hence the C.J.M. Committed the file to the Court of Sessions Judge, Varansi.

Learned Sessions Judge, after hearing Public Prosecutor and learned counsel for defence vide order dated 13.4.2015, levelled charge against Suraj alias Chhotu Patel as under:

“eS] izse izdk’k frokjh] l U;k;k/kh’k] okjk.klh ,rn~}kjk vki lwjt mQZ NksVw iVsy dks fuEu vkjksiksa ls vkjksfir djrk gwW%

izFke ;g fd vkius fnukad 01-11-2014 ls 04-11-2014 dh ‘kke 6-00 cts ds iwoZ fdlh le; lk’k; egs’k iVsy] fouksn iVsy mQZ jktk o Jherh vkjrh iVsy ds lkFk feydj lquhrk iVsy dh xyk nckdj e`R;q dkfjr dj gR;k fd;k vkSj blds }kjk vkius /kkjk 302 lifBr /kkjk 34 Hkk0na0la0 ds vUrZxr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds izlaKku esa gSA

f}rh;;g fd vki ;g tkurs gq, fd vki o egs’k iVsy] fouksn iVsy mQZ jktk o Jherh vkjrh iVsy ds }kjk lquhrk iVsy dh gR;k dk vijk/k dkfjr gqvk Fkk] ml vijk/k ds ckjs esa dksbZ lwpuk ugha fn;s vkSj fnukad 04-11-2014 dks le; yxHkx 6-00 cts ‘kke ds iwoZ fdlh le; cgn xzke xat[oktk vUrZxr Fkkuk vyhuxj] tuin pUnkSyh fLFkr /kku ds [ksr esa lquhrk iVsy dk ‘ko] tks gR;k ds vijk/k dk lk{; Fkk] vkius vius dks oS/k n.M ls cpkus ds fy, fNik;kA blds }kjk vkius /kkjk 201 Hkk0na0la0 ds vUrZxr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds izlaKku esa gSA

vr,o] eSa funsZf’kr djrk gawW fd vkids fo:) mDr vkjksiksa dk fopkj.k bl U;k;ky; }kjk fd;k tkosA

1. That you in between 1.11.2014 to 4.11.2014 at 6.00 P.M. under joint mensrea and common intention with Mahesh Patel, Vinod Patel alias Raja and Smt. Aarti Patel throttled and thereafter murdered Sunital Patel and committed offence punishable u/s 302 I.P.C. within the cognizance of above court.

2. You knowing that you along with Mahesh Patel, Vinod Patel alias Raja and Smt. Aarti Patel had commited murder of Sunita Patel, took dead body before 6.00 P.M. of 4.11.2014 and with a view to hide evidence of murder and to protect yourself from above criminality, thrown dead body in a paddy field at village Ganj Khwaja within area of P.S. Alinagar, District Chandauli, thereby committed offence punishable u/s 201 I.P.C. within the cognizance of the court.”

(English Translation by court)

Against Mahesh Patel, Vinod Patel alias Raja and Smt. Aarti Patel the following charges were framed on 13.4.2015:

“eS] izse izdk’k frokjh] l U;k;k/kh’k] okjk.klh ,rn~}kjk vki

1 egs’k iVsy

2 fouksn iVsy mQZ jktk o

3 Jherh vkjrh iVsy

dks fuEu vkjksiksa ls vkjksfir djrk gwW%

izFke ;g fd fnukad 07-05-2011 ls 04-11-2014 dh ‘kke 6-00 cts ¼lquhrk nsoh dh ‘kknh ds ckn vkSj mldh e`R;q½ ds iwoZ le;≤ ij vki yksxksa us cgn xzke xksfoUniqj] vUrZxr Fkkuk jksgfu;kW] tuin okjk.klh esa ngst esa :0 2]00][email protected] ds fy, vki yksxksa us jketh flag dh iqh lquhrk iVsy dks dzwjrkiw.kZ vkpj.k dj izrkfM+r fd;k vkSj blds }kjk vki yksxksa us n.Muh; vijk/k vUrZxr /kkjk 498, Hkk0na0la0 fd;k] tks bl U;k;ky; ds izlaKku esa gSA

f}rh; ;g fd fnukad 01-11-2014 ls 04-11-2014 dh ‘kke 6-00 cts ds iwoZ fdlh le; vki yksxksa us lquhrk iVsy ds fookg ds 7 o”kZ ds vUnj ngst ds :0 2]00][email protected] ds fy, izrkfM+r dj lquhrk iVsy dh vizkd`frd ngst e`R;q dkfjr fd;k vkSj blds }kjk vki yksxksa us n.Muh; vijk/k vUrZxr /kkjk 304ch] Hkk0na0la0 fd;k] tks bl U;k;ky; ds izlaKku esa gSA

fodYi esa;g fd vkiyksxksa us fnukad 01-11-2014 ls 04-11-2014 dh ‘kke 6-00 cts ds iwoZ fdlh le; lk’k; lwjt mQZ NksVw iVsy ds lkFk feydj lquhrk iVsy dh xyk nckdj e`R;q dkfjr dj gR;k fd;k vkSj blds }kjk vki yksxksa us /kkjk 302 lifBr /kkjk 34 Hkk0na0la0 ds vUrxZr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds izlaKku esa gSA

r`rh; ;g fd vki yksx ;g tkurs gq, fd vki yksxksa ,oa lwjt mQZ NksVw iVsy ds }kjk lquhrk iVsy dh gR;k dk vijk/k dkfjr gqvk Fkk] ml vijk/k ds ckjs esa dksbZ lwpuk ugha fn;s vkSj fnukad 04-11-2014 dks le; yxHkx 6-00 cts ‘kke ds iwoZ fdlh le; cgn xzke xat[oktk vUrxZr Fkkuk vyhuxj] tuin pUnkSyh fLFkr /kku ds [ksr esa lquhrk iVsy dk ‘ko] tks gR;k ds vijk/k dk lk{; Fkk] vki yksxksa us vius dks oS/k n.M ls cpkus ds fy, fNik;kA blds }kjk vki yksxksa us /kkjk 201 Hkk0na0la0 ds vUrZxr n.Muh; vijk/k fd;k] tks bl U;k;ky; ds izlaKku esa gSA

prqFkZ ;g fd fnukad 07-05-2011 ls 04-11-2014 dh ‘kke 6-00 cts ds iwoZ ¼lquhrk iVsy dh ‘kknh ds ckn vkSj mldh e`R;q ds igys½ vki yksxksa us ngst esa mlls :0 2]00][email protected] dh ekWx dh vkSj blds vki yksxksa us n.Muh; vijk/k vUrZxr /kkjk 4 ngst izfr”ks/k vf/kfu;e fd;k] tks bl U;k;ky; ds izlaKku esa gSA

vr,o] eSa funsZf’kr djrk gawW fd vkiyksxksa ds fo:) mDr vkjksiksa dk fopkj.k bl U;k;ky; }kjk fd;k tkosA

1. That you from the date of marriage of Sunita with Mahesh on 7.5.2011 and till her unnatural death on 4.11.2014 at about 6.00 P.M. at different time, date and place did cruelty with regard to demand of Rs. 2 lacs from informant’s daughter Sunita, thereby committed offence punishable u/s 498A I.P.C. within the cognizance of the Court.

2. You in between 1.11.2014 to 4.11.2014 at 6.00 P.M. at any time within seven years of marriage of Sunita Patel did cruelty with regard to demand of dowry of Rs. 2 lacs and thereby committed dowry death punishable u/s 304B I.P.C. within the cognizance of the court.

In the alternate

You, in between 1.11.2014 to 4.11.2014 at 6.00 P.M. at any time with common intention and joint mensrea of Suraj alias Chhotu Patel throttled Sunita Patel thereby committed murder of her punishable u/s 302 I.P.C. read with 34 I.P.C. within the cognizance of the Court.

3. You under the knowledge that you have committed murder of Sunita Patel under joint mensrea and common intention of Suraj alias Chhotu Patel with intention to hide evidence and protecting yourselves for criminality had thrown before and a time before 6.00 P.M. of 4.11.2014 the dead body in a paddy field situate at village Ganj Khwaja within the area of P.S. Aliganj, District Chandauli, thereby committed offence punishable u/s 201 I.P.C. within the cognizance of the Court.

4. You in between 7.5.2011 to 4.11.14 at 6.00 P.M. i.e. in between marriage of Sunita Patel and her death demanded Rs. 2 lacs in dowry thereby you committed offence punishable u/s 4 D.P. Act within the cognizance of the Court.”

(English translation by Court)

Charges, levelled as above, were read over and explained to each of accused persons, who pleaded not guilty and claimed for trial.

Prosecution examined PW1- informant Ramji Singh, PW2-Hiramani, PW3- Akhilesh Kumar Patel, PW4- Dayaram, PW5- Dr. Gyan Prakash Singh and PW6- Mukesh Chandra Uttam.

For having explanation, if any, over incriminating evidence led by prosecution and for obtaining version of accused, statements of accused persons were got recorded u/s 313 Cr.P.C. in which each of the evidence led by prosecution were stated to be incorrect except that Sunita was married on 7.5.2011 with Mahesh Patel and she was blessed with a female baby. Accused Aarti Patel and Vinod Patel alias Raja replied that they are with separate living, having no concern with Mahesh Patel or his wife (deceased Sunita Patel). They never demanded any dowry or did cruelty regarding it or committed any offence. They have been falsely implicated in this crime number because of being family member of Mahesh Patel. Accused Suraj alias Chhotu Patel replied that he is not a family member of Mahesh Patel nor is of any concern with the offence. He is a resident of the same village, hence has been falsely implicated.

Accused Mahesh Patel examined himself as DW1 and Shobhnath Patel as DW2.

Formal proof of inquest proceeding was dispensed with by learned counsel for defence. Proof of inquest report along with police papers prepared in the inquest proceeding were formally dispensed with and not controverted.

Having heard learned Public Prosecutor and learned counsel for defence the trial Judge acquitted Vinod Patel alias Raja and Smt. Aarti Patel for offences punishable u/s 304B/302, 498A, 201 I.P.C. and Section 4 of D.P. Act. The accused Suraj alias Chhotu Patel was acquitted for offences punishable u/s 302/34 and 201 I.P.C., whereas accused-appellant Mahesh Patel was convicted for offences punishable u/s 304B, 498A, 201 I.P.C. and section 4 of D.P. Act and after hearing learned counsel both sides, on quantum of sentence, the impugned order of sentence, written as above, was passed.

No appeal by State against judgment of acquittal, passed for those accused Vinod Patel alias Raja, Smt. Aarti Patel and Suraj alias Chhotu Patel, is there. Hence, the only assail is against judgment of conviction and sentence made therein for husband -accused- appellant Mahesh Patel.

Learned counsel for convict-appellant Mahesh Patel argued that the impugned judgment and order dated 30.3.2017 is illegal, unjust and against the evidence on record. The Trial Judge failed to appreciate the facts and law placed before it. Prosecution failed to prove charges beyond reasonable doubt. But the trial court committed manifest error in convicting and sentencing the appellant, as above.

There were so many contradictions in the testimonies of prosecution witnesses and the prosecution case was entirely demolished, but the Trial Court passed the impugned judgment on the basis of surmises and conjectures. There was no evidence of dowry or cruelty with regard to it soon before death. Death was not at nuptial house. Prior to it a missing report of deceased was got lodged by convict-appellant at Police Station Rohaniya for missing of his wife- deceased and her dead body was recovered within the area of Police Station Alinagar, District Chandauli, much away from his residence.

Mother of deceased, PW2- Hiramani, and brother of deceased PW3- Akhilesh Kumar Patel, had categorically stated that the accused-appellant never demanded any dowry or did cruelty regarding it towards his wife-deceased. PW1-informant in his testimony has categorically stated that appellant Mahesh Patel was having separate living with no concern of his family members, even this false accusation was got lodged against each of family members, which ended in their acquittal. Hence, his testimony, though full of contradictions, was wholly unreliable. There was direct conflict between medical evidence and oral testimony. Hence this appeal.

Section 304B of I.P.C. was inserted by Act No. 43 of 1986 w.e.f. 19.11.1986 that

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.

There is an explanation that 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 Apex Court in Pathan Hussain Basha Vs. State of Andhra Pradesh, AIR 2012 SC 3205 has propounded that if a married woman dies in unnatural circumstances at her matrimonial home within seven years from her marriage and these are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under “dowry death” and there shall be a presumption against the husband and the relatives.

The Apex Court in Satbir Singh Vs. State of Punjab, AIR 2001 SC 2828 has propounded that the prosecution under section 304B of I.P.C. cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and such was caused “soon beore her death”. The word “dowry” has to be understood as it is defined in section 2 of the Dowry Prohibition Act,1961. Thus, there are three occasions related to dowry, i.e. before marriage, at the time of marriage and at an unending period. The customary payment in connection with the birth of child or other ceremonies, are not involved within the ambit of “dowry”.

The Apex Court in many cases has propounded that where the evidence revealed that accused-husband killed deceased-wife for not satisfying his dowry demand but nothing on record to show involvement of co-accused in-laws with the offence committed by the accused, co-accused in-laws are not guilty of offence under sections 304B I.P.C.

The Apex Court in Kashmir Kaur Vs. State of Punjab, AIR 2013 SC 1039 has propounded that in a case of trial for dowry death the essential ingredients to attract the provisions of section 304B I.P.C. for establishing offence are (a) that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry, (b) the death of the deceased woman was caused by any burn or bodily injury or some other circumstance, which was not normal, (c) such death occurs within seven years from the date of her marriage, (d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (e) such cruelty or harassment should be for or in connection with demand of dowry, and (f) it should be established that such cruelty and harassment was made soon before her death.

The Apex Court in Banshi Lal Vs. Hate of Haryana, AIR 2011 SC 691 has propounded that the court has to analyse the facts and circumstances as leading to death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. Meaning thereby cruelty or harassment with regard to demand of dowry soon before death is a crucial ingredient to be proved by prosecution before attracting any provisions of section 304B I.P.C.

Apex Court in Mustafa Shahdal Shaikh Vs. State of Maharashtra, AIR 2013 SC 851 has propounded that “soon before death” means interval between cruelty and death should not be much. There must be existence of a proximate and live links between the effect or cruelty based on dowry demand and the concerned death. 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.

This has again be reiterated by Apex Court in Kaliyaperumal Vs. State of Tamil Nadu, AIR 2003 SC 3828 that the expression ‘Soon before her death” used in the substantive section 304B I.P.C. and section 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression “soon before hear death” is not defined. The determination of the period which can come within the term “soon before” is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

Regarding presumption under section 113B of the Evidence Act in this very ruling the Apex Court has propounded that 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.

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.

Though, the Apex Court has visualised that direct ocular testimony is rarely available in dowry death case and in most of such offence direct evidence is hardly available and such cases are usually proved by circumstantial evidence. This section as well as section 113B of the Evidence Act enact a rule of presumption i.e. if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply.

Hence the present case is to be scrutinized in view of above settled principle of law and factual evidence proved on record.

PW1-Ramji Advocate, who is informant of the case, has said in his examination in chief that his daughter Sunita Devi was married with appellant Mahesh Patel on 7.5.2011 and after marriage her in-laws including husband Mahesh Patel were complaining about the dowry given in the marriage. This was informed by Sunita to the informant, her mother Smt. Hiramani Devi. She was making complaint through telephone about alleged demand of dowry and cruelty by Mahesh Patel, his sister-in-law Smt. Aarti, w/o Sanjay Patel and no complaint of the same was ever got registered. Specific occurrence was said to be of two months back of the present occurrence in which Suraj @ Chhotu Patel along with Mahesh Patel had brought Sunita and left her near one Km. of house of informant. She was beaten and she along with her tiny child of four month came to the house of the informant. She apprised above cruelty when informant along with his brother Amresh Kumar, Kamlesh Kumar, Lachhiman and Bal Kishun went at the house of Mahesh, where demand by family of Mahesh for Rs. Two lacs was made and threat of dire consequence was given. Informant came back. No report of such cruelty was got lodged at police station. Rather Sunita was sent to her nuptial home along with Sunil, elder brother of Mahesh, on 3.10.2014 upon assurance given by Kedar, a relative of Mahesh. After this again demand and cruelty continued. This too was not complained. Hence except testimony of this witness, no evidence regarding this demand or cruelty or specific evidence of torture is there on the record. Other specific occurrence is that the informant tried to call on cellphone of Sunita on 1.11.2014 but this was switched off and on 4.11.2014 he perceived that she was murdered and thrown somewhere by her in-laws. He went at Police Station Rohaniya, District Varanasi, where he came to know that a missing report of Sunita was got lodged by Mahesh on 2.11.2014 i.e. till then no accusation was launched by the informant. Rather he remained in search of his daughter but was of no avail. Meaning thereby till then no suspicion regarding dowry death crept in the mind of informant nor he got any case lodged. On 7.11.2014 a news item was flashed in Hindi daily “Amar Ujala” regarding recovery of a dead body of a woman and then after this witness along with his family members rushed at Police Station Alinagar, District Chandauli, and found clothes and ornaments of his daughter Sunita, which were identified to be of Sunita and then this report (Ext. Ka1) was lodged. Meaning thereby that this death was not at nuptial home of deceased. Rather it was a case of recovery of dead body in the area of Police Station Ali Nagar, District Chandauli, and this was found to be of Sunita. Though, this dead body was recovered on 01.11.2014 and under autopsy examination followed after inquest proceeding this was held to be a culpable homicide amounting to murder. In cross-examination this witness changed his statement recorded in examination in chief regarding demand of dowry and cruelty regarding it by in-laws of Sunita. A clear admission was made by this witness that Suraj @ Chhotu, son of Ram Lakhan, was neither of family nor blood relative of Mahesh (husband of deceased) nor there was any demand of dowry or cruelty with regard to it by in-laws of deceased. Rather Mahesh along with deceased was living separately from other family members and marriage was settled by negotiation with father of Mahesh, who was no more on the date of occurrence and none of accused ever demanded any dowry from this witness. He stated that “Mere Damad wa Meri Putri Sunita Devi Raj Narayan Patel Ki Mrityu Ke Bad se Vinod Patel, Aarti Patel wa Mahesh Patel ke Bhaee se Alag Rahte the. Khana Pina Wa Rahan Sahan Alag tha.” Subsequently it has been said by him that “Shadi ki baatchit maine Mahesh ke pita Rajnarayan se kiya tha tatha unhin se baatchit pakki hone par maine apani lakaki ki shadi Mahesh Patel se kiya. Shadi ke samay Aarti Patel, Sunil, Anil, Vinod urf Raja wa Anita patni Anil se shadi ke sambandh main koi baatchit len den ke babat nahin huee thi. Shadi ke samay Sunil, Anil, Vinod urf Raja, Anita wa Aarti ne mujhse dahej ki koi mang nahi kiya tha.” It has further been said by him that “Yah baat sahi hai ki Mahesh Patel apne sabhi bhaeeyon se alag hai wa khan pan alag-alag hai.”

Regarding charge against accused Suraj no evidence either direct or ocular or circumstantial was there. Though the Trial Court has acquitted him and there is no appeal against order of acquittal. But testimony of this witness is of this fact that he has never seen involvement of any family member of her in-laws in commission of her murder or taking of her dead body. “Maine apni lakdi Sunita ki hatya karte huye ya uski lash lekar jate huye Suraj urf Chhotu ko mere wa mere parivar ke kisi sadasya dwara nahin dekha gaya tha.”

Regarding soon before death this witness has categorically stated that “Yah baat sahi hai ki Sunil Patel, Anil Patel, Vinod urf Raja, Anita wa Aarti ya uske parivar ke kisi vyakti ne mujhse ya mere parivar se kabhi bhi dahej ki mang nahin kiye”. Hence neither demand before marriage nor after marriage by any in-laws of deceased was ever made with this informant- PW1. As has been said by him. In his cross-examination there was contradiction with examination in chief as well prosecution version. In cross-examination, on 16.9.2015, this witness has categorically said regarding an occurrence of ten days before “Ghatna ke das din pahle meri ladki se mujhse wa mere parivar walon se antim bar batchit huee thi. Gumshudagi report likhane ke bad Mahesh Patel dwara apni patni ke gayab hone ki suchna likhwane ke pashchat thane ke S.I. Mahesh Gautam ek war mere paas gaye the. Report likhwane ke 2-4 din bad mere yahan gaye the. Jab hamko dinank 4-11-2014 ko ladki ke sasural walon dwara ladki ko markar phek dene ki jab jankari huee usi din se main lagatar barawar thane par jata raha aur S.O. Mahoday se bar bar prarthana kar raha tha ki meri report darj kar len lekin S.O. Mahoday hamko bar bar yahi kah rahe the ki Vakeel Sahab Main Gumshudagi ke babat pamphelet chhapwa raha hun aur unhone kaha ki khoee ladkiyan to bis saal bad milti hai. Isliya jab tak mrityu ka koi praman nahin milega tab tak main F.I.R. nahin darj karunga.” Meaning thereby this witness was fully aware about registration of Missing Report (Gumshudagi report) because appellant Mahesh Patel had visited him and he too was under search of his daughter i.e. till then search was being made and no report of case crime was got lodged. Hence the essential ingredient of demand of dowry coupled with cruelty with regard to it is not before death and unnatural death of bride within seven years of marriage was to be proved by this witness. But regarding cruelty ‘soon before death’ in his testimony is not worth fulfilled. Though unnatural death is an undisputed fact but that is not at nuptial home. Rather at a remote place within the area of police station Alinagar, district Chandauli, and for which missing report was got lodged upon the report of the convict-appellant Mahesh Patel at his police station i.e. convict-appellant was not with any malafide and he under his testimony as DW1 has categorically proved that he, while was at his shop, information regarding missing of his wife was received by him, he searched for her and ultimately got a missing report registered at his police station; then after this recovery of dead body and death as homicide was there.

Next witness is PW2- Hiramani, who is mother of deceased and wife of informant. She in her examination in chief has said that marriage of her daughter with Mahesh Patel was performed on 7.5.2011 and there was demand of dowry by in-laws coupled with cruelty for it. In cross-examination she resiled from prosecution case with contention that she never visited house of her deceased daughter and marriage was negotiated with Rajnarayan, father of Mahesh Patel. Her daughter never complained about any cruelty. Rather everything was usual and normal. She has been cross-examined in which she has stated that “Is mukadame ke abhiyuktagan mujhse athwa meri beti se kabhi kisi prakar ke dahej ki mang nahin kiya. Yah bhi sahi hai ki Sunita devi ke sasural walon ne kisi prakar ke ddahej ki mang Sunita se na hin mere pati Ramji Patel athwa kisi anya se nahin kiya.” Her daughter never made any complaint to her father. She was cross-examined after being declared hostile by learned Public Prosecutor in which she has denied her previous statement. Her testimony is not in support of prosecution case.

PW3-Akhilesh Kumar Patel, brother of deceased, is also a witness declared hostile and in cross-examination by prosecution itself in which he resiled from his previous statement and has not supported prosecution.

Hence all these three witnesses of fact by their testimonies, in over all appreciation of them, could not prove charge beyond reasonable doubt. Rest of the witnesses are formal witnesses having proved police investigation, medical examination, etc. etc. establishing death of deceased as murder but commission of cruelty or dowry death by convict appellant could not be proved beyond reasonable doubt. The Trial Court failed to appreciate facts and law placed before it. Hence this appeal merits its allowance.

Accordingly, this appeal is allowed. The appellant Mahesh Patel is acquitted of all the charges levelled against him. He is in jail. He be released forthwith.

Keeping in view the provisions of section 437-A Cr.P.C. the appellant is directed to forthwith furnish a personal bond in the sum of Rs. Fifty Thousand and two reliable sureties each in the like amount before the trial court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof shall appear before the Appellate forum.

Let a copy of this judgment along with lower court’s record be sent back to the court concerned for immediate compliance and necessary action.

Order Date :-18.4.2019

Pcl

 

 

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