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Mahesh vs State Of U.P. on 15 November, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 79

Case :- CRIMINAL APPEAL No. – 4273 of 2013

Appellant :- Mahesh

Respondent :- State of U.P.

Counsel for Appellant :- R.K. Vaish,Ram Pal Singh

Counsel for Respondent :- Govt. Advocate

with

Case :- CRIMINAL APPEAL No. – 3789 of 2013

Appellant :- Ramesh Chandra And Another

Respondent :- State of U.P.

Counsel for Appellant :- R.K. Vaish,Govind Saran Hajela,Ram Pal Singh,Shivam Yadav

Counsel for Respondent :- Govt. Advocate

Hon’ble Ram Krishna Gautam,J.

1. Criminal Appeal No. 4273 of 2013 (Mahesh Vs. State of U.P.) as well as Criminal Appeal No. 3789 of 2013 (Ramesh Chandra and Another Vs. State of U.P.), have been filed under Section 374(2) of Cr.P.C. against judgment of conviction and sentence made therein, by Court of Special Judge SC/SectionST Act, Farrukhabad, in Sessions Trial No. 50 of 1993 (SectionState vs. Mahesh and others) arising out of Case Crime No. 71 of 1992, under Sections 498-A, Section304-B I.P.C. read with Section 3/4 of D.P. Act, Police Station Merapur, District Farrukhabad, dated 1.8.2013, wherein trial Judge has convicted appellants and sentenced with three years rigorous imprisonment and fine of Rs. 1,000/-, in default one month simple imprisonment under Section 3 of D.P. Act, with further imprisonment of one year rigorous imprisonment and fine of Rs. 500/-, in default 15 days additional simple imprisonment under Section 4 of D.P. Act, with further imprisonment of three years rigorous imprisonment and fine of Rs. 1,000/-each, in default one month additional simple imprisonment under Section 498-A I.P.C., with ten years rigorous imprisonment under Section 304-B I.P.C., with a direction for concurrent running of sentences and adjustment of previous imprisonment, if any. Both of the criminal appeals have been filed against one and common judgment of conviction and order of sentence as above, arising out of one and common case crime number in one and common session trial. Hence, these appeals were consolidated together and are being decided together.

2. Memo of appeal briefly contends that impugned judgment is against the evidence placed on record. Sentence was deterrent and excessive. Trial Judge failed to appreciate evidence of PW-1, PW-2, PW-3 and PW-7. It was only PW-1, who in his cross-examination, has said about cruelty, whereas in testimony of PW-2, no evidence of demand or cruelty with regard to it, was there. PW-3, in his cross-examination, has admitted marriage to be performed in cordial atmosphere. It was without any demand of dowry, though he had heard fire shot, but his testimony is not against the appellants. PW-7, Shiv Ram Singh, is real brother of deceased Rooma Devi and has said about his information with regard to demand of dowry. The single testimony of PW-1, was against the appellants. But owing to his death, after a part of cross-examination, he could not be cross-examined by defence counsel. Hence, his evidence is not admissible. Appellants were having their separate living. There was proof of “Rashan card” of them. But it was not taken into consideration, because of being photocopy of same. Appellants as well as informant were members of poor family, no question of demand of dowry ever arisen. Appellants were not present at their home at the time of occurrence. Deceased was murdered by some anti-social elements. She was all alone inside the house. Someone did this offence. But appellants were falsely implicated, whereas they were at field at their work, where they got information of this happening, they rushed on spot, they informed informant side, even then they were falsely implicated in this case crime number. Deceased was given love and affection. No cruelty was ever caused to her. Even, she was educated with the help of her husband and she had appeared in High School Examination, before this occurrence. On the basis of same set of evidence, accused Kishan Lal was acquitted, rest were convicted and sentenced as above. Convict Smt. Shanti Devi, died and her appeal stood abated. No specific allegation, as against any of convict-appellants, is there. Rather a general allegation of demand of dowry was leveled against each, whereas appellant Ramesh Chandra and Om Pal were having separate living. Case could not be proved beyond reasonable doubt, even then, judgment of conviction was passed and after hearing over quantum of sentence, highly excessive and deterrent sentence was awarded. Hence, this appeal with prayer to set aside impugned judgment of conviction and sentence made therein with further prayer for award of acquittal in it.

3. Perusal of record of lower Court reveals that First Information Report Ex.Ka-1, scribed by Jograj Singh and signed by informant Babu Ram, was submitted at police Station Merapur at 1.6.1992, with this contention that informant’s daughter Rooma Devi was married on 5.6.1990 with Mahesh, son of Jado, R/o Deosni, District Farrukhabad. Dowry, as per capacity, with a cash and goods amounting to Rs. 40,000/-, was paid. Even then, in-laws were not satisfied with it and they were demanding additional dowry of scooter with golden chain. Informant’s son, Shiv Ram, had gone to the house of Rooma Devi, on 25.5.1992, for bringing her back. When in-laws asked that unless scooter, golden chain with ring is not being fulfilled, she will not be permitted tp be at her parental house. Rooma Devi, was frequently being tortured, for which she complained to her parents and brother. She narrated it to her brother Shiv Ram, under weeping and owing to this demand of dowry, she was killed by firearm shot at her nuptial home at about 11:30 A.M., on 1.6.1992, by her husband Mahesh, brothers-in-law Ramesh Chandra, Kishan Lal and Ompal and mother-in-law Shanti Devi. This occurrence was informed by Kripal Singh, son of Jawahar Lal, R/o Police Station Deosni, District Farrukhabad. Informant, along with his family members, rushed at the place of occurrence and found her daughter dead. A tamancha of .315 bore was lying there. She was having wound of firearm shot over her abdomen. Upon his written report Ex.Ka-1, Case Crime No. 71 of 1992, under Section 498A, Section304-B I.P.C. read with Section 3/4 of D.P. Act was got registered, at police Station Merapur, District Farrukhabad, on 2.6.1992 against Mahesh, Kishan lal, Ramesh Chandra, Ompal, Smt. Shanti Devi, vide Chick F.I.R. Ex.Ka-3, by way of entry in General Diary of police station Ex.Ka-4. This was investigated, wherein, inquest proceeding Ex.ka-7, with concerned police forms photo dead body Ex.Ka-9, letter to C.M.O. Ex.Ka-8, Police Form-13 Ex.Ka-10, Letter to R.I. Paper No. 12-A, were got prepared. Plain soil and blood stained soil was taken from the spot by way of recovery memo, Ex.Ka-5. Dead body was put under seal with preparation of specimen seal and it was handed over, along with those documents, to Constable Arvind Singh and Homeguard Shishu Pal for taking it to mortuary for its autopsy examination. It was examined under autopsy examination and the autopsy examination report Ex.Ka-2 was got prepared by Medical Officer. Empty tamancha of .315 bore, having empty cartridge in its barrel, were taken in possession, for which recovery memo was got prepared, it was kept under seal and on the basis of its presentation, case crime number 71 of 1992, under Section 25/Section27 of Arms Act was got registered at above police station. Site map Ex.Ka-11 was got prepared by Investigating Officer and after investigation of same, charge-sheet Ex.Ka-12 was filed against Mahesh, Kishal Lal, Ramesh Chandra, Ompal and Shanti Devi for offences punishable under Section 498-A, Section304-B I.P.C. read with Section 3/4 of D.P. Act. Magistrate took cognizance over it and as the offence was exclusively triable by Court of Sessions, hence, it was committed to Court of Session.

4. Learned Session Judge, Farrukhabad, made over this file to Court of Special Judge D.A.A. Act, where both sides were heard over framing of charges, then after charges for offences punishable under Sections 498-A, Section304-B I.P.C. read with Section 3/4 of D.P. Act. were framed, which was read over and explained to accused persons. Who pleaded not guilty and claimed for trial. Prosecution examined informant PW-1 Babu Ram, PW-2 Maha Ram, PW-3 Kripal, PW-4 Dr. S.C. Tiwari, PW-5 H.C.P. Gore Lal, PW-6 S.I. Nanha Ram Kureel, PW-7 Shiv Ram Singh.

5. With a view to obtain explanation, if any, and version of accused persons, their statements were got recorded under Section 313 of Cr.P.C., wherein accusation was denied. It was said to be a false implication, under pretext of fetching money from accused persons, which was denied. Then after, this false case was got registered. Marriage was without any dowry and no dowry was ever demanded nor was ever any cruelty with regard to it. Rooma Devi did appear in her High School Examination before this occurrence. On the eve of occurrence, each of the accused persons, were at work at their field. She was all alone inside the house. Kripal, who was mediator of this marriage, gave information of this untoward incident occurred at home. Husband and other family members rushed at their home, found her dead, lying at home. A tamancha was lying thereat and upon request of accused persons, mediator Kripal, informed informant side as well as police. Police got accused persons apprehended at police station. The family members of Rooma Devi demanded money, which was not fulfilled and this false implication was got lodged. There had been a separate living of each brothers of husband of Rooma Devi. Mother-in-law Shanti Devi, was residing with elder brother Ramesh Chandra. They were of no concern with affairs of Mahesh and his family. In defence, documentary evidence of High School appearance with “Rashan Card” and oral testimony of DW-1 Benche Lal and DW-2 Jograj Singh, were examined. After hearing learned counsels for both sides, impugned judgment of conviction and sentence was passed.

6. This file was committed to Court of Sessions, from where it was made over to Court of Special Judge, Dacoity Affected Areas, where charges were framed as follows:

(English Translation has been made by Court itself)

“I, M.Q. Siddique, Special Judge, D.A.A., Farrukhabad, charge you Mahesh, Kishan Lal, Ompal, Ramesh Chandra and Shanti devi as follows:

(1) That on or before 6.9.1992, you kept Rooma Devi, daughter of informant Babu Ram and wife of Mahesh under cruelty, torture with regard to demand of dowry in the tune of Scooter, chain and ring. Thereby, you committed offence punishable under Section 498-A IPC, within the cognizance of this Court.

(2) That you on above date at 11:30 A.M within area of village Mouja Deosni, within police Station Merapur, District Farrukhabad, did assault, coupled with cruelty with regard to demand of dowry, in the tune of scooter, chain and ring, with informant’s daughter Rooma Devi, who is wife of Mahesh and was married on 5.6.1990. On above date, under joint mensrea, you, did firearm shot over Room Devi, resulting her death. Thereby, you committed offence punishable under Section 304-B read with Section 34 of I.P.C., within the cognizance of this Court.

3. You, on or before above date, at above place and even prior to it at different times, did demand of additional dowry in the tune of Scooter, chain and golden ring and in case of its failure, you did assault coupled with cruelty with Rooma Devi. Thereby, you, committed offence punishable under Section 3/4 of D.P. Act, within the cognizance of this Court.

I, hereby, do the trial of same.

M.Q.Siddique

Speical Judge, D.A.A., Farrukhabad

5.4.1996″

This was appended with mention that charges were read over and explained to accused persons. Who pleaded not guilty and claimed for trial. Meaning thereby, it was not charge framed by Court of Sessions Judge or Court of Additional Sessions judge. Rather, it was a charge framed by Special Judge, D.A.A., Farrukhabad. The Uttar Pradesh Dacoity Affected Areas Act, 1983, SectionU.P. Act No. 31 of 1983, is an act to make provision for specifying certain offences in the dacoity affected areas of the Utter Pradesh, in order to curb effectively, the commission of scheduled offences and to make provision for punishment and speedy trial, thereof, and for the attachment of properties acquired through the commission of such offences and for matters connected therewith or incidental thereto. Under Section 2(d) of D.A.A. Act, “Session Judge” in relation to dacoity affected area, means, where such area consists of a district or part thereof, the Sessions Judge exercising jurisdiction in such district or part, as the case may be. Where such area consists of two or more districts or parts thereof, such Sessions Judge, as may be specified by the High Court, in this behalf for exercising jurisdiction in that area. Section 2(f) of the Act makes definition for Special judge, which means a judge appointed under Sub-section 2 of Section 5 of the Act to preside over a Special Court. Section 5 (f) Act provides constitution of special courts (1) For the purposes of speedy trial of scheduled offences committed in a dacoity affected area, the State Government may, in consultation with the High Court, constitute, by notification as many Special Courts as may be necessary in or in relation to such dacoity affected area or areas as may be specified in such notification. (2) A Special Court shall consist of a Single Judge, who shall be appointed by the High Court from amongst the serving Sessions Judges or Additional Sessions Judges. Meaning thereby, Sessions Judge or Additional Sessions Judge, who are a surviving Judge, is to be appointed as a presiding judge of a special Court, constituted under Section 5 of the Act, for the purpose of speedy trial of scheduled offences, committed in a dacoity affected areas, whereas, present offence of dowry death is not related to scheduled offences and for it, a court under Section 5 of the Act, was not constituted. Though, a court of Additional District and Sessions Judge, was constituted for trying above scheduled offences, committed in dacoity affected area of District Farrukhabad, under U.P. Dacoity Affected Areas Act, 1983. Hence, presiding Judge of Special Court, D.A.A., Farrukhabad, was of course, Additional Sessions Judge, appointed for presiding over Special Court of D.A.A., Farrukhabad, with regard to offences scheduled under above act. But, while exercising jurisdiction for sessions cases, which were not related to above scheduled offences under U.P. D.A.A. Act, 1983, the jurisdiction to be written and to be exercised by presiding Judge is of Additional Sessions Judge, Farrukhabad and it was not written in above charge made by Presiding Judge of D.A.A., which was apparently erroneous. But as a Presiding Judge, was Additional Sessions Judge, who was appointed as Special Judge of D.A.A. at Farrukhabad. Hence, this trial was made in exercise of jurisdiction of Additional Sessions Judge, though it was not written in the judgment, which is apparently irregularity but not illegality.

7. The judgment, in question, has been passed by Court of Special Judge, SC/SectionST Act, Farrukhabad, presided by Sri Sooba Singh. It was written in caption of this judgment as Special Judge, SC/SectionST Act, Farrukhabad. Whereas, offence punishable under Section 304-B I.P.C., is triable by Court of Sessions Judge and only a Sessions Judge, exercising jurisdiction of Sessions Judge, given in SectionCr.P.C., is competent to make trial of a sessions case. But in the present case, neither Sessions Judge has been written in the caption nor below the signature of Presiding Judge or at any place in the judgment, with mention that above jurisdiction of deciding this sessions trial, was exercised in the power of Sessions Judge. Repeatedly, this Court, vide circular letters, have impressed each Judicial Officers, posted within the jurisdiction of Uttar Pradesh, to ensure writing of the correct designation of Court with correct exercise of jurisdiction, under which order or judgment is being passed. Hence, this judgment is apparently lacking mentioning of a Sessions judge or Additional Sessions judge, for exercising jurisdiction for making trial and passing judgment in a sessions trial for offence of dowry death, which was committed to Court of Sessions for its trial. Not only this, even charge framed is not with mention that it was by a Court of Sessions Judge, in exercise of power of Sessions Judge for making judicial decision in a sessions trial, which has been committed to Court of Sessions for making its trial. As has been written above, it was irregularity on the part of Presiding Judge of Special Judge, D.A.A. Court, who has framed charge and even it was irregularity by judge who passed this judgment. Under the Scheduled Caste and SectionScheduled Tribe (Prevention of Atrocities) Act, 1989, the purpose of legislation was to legislate an act to prevent the commission of atrocities against the members of Scheduled Castes and Scheduled Tribes, to provide for Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. Under Section 14 of the Act, which provides Special Court for the purpose of providing for speedy trial, the State Government, with the concurrence of the Chief Justice of the High Court, by notification in the Official Gazette, specified for each District a Court of Sessions to be a special Court to try the offences under this Act. Meaning thereby, a Sessions Judge, working in the District and Sessions Division, is to be notified as to Special Court for the purpose of providing for speedy trial of offences, scheduled under the Scheduled Caste and SectionScheduled Tribe (Prevention of Atrocities) Act, 1989. Hence, a Presiding Judge of Special Court SC/SectionST Act, is a Session Judge, notified for presiding a Special Court constituted under Section 14 of above Act. But while exercising jurisdiction for making trial, other than those scheduled, under above scheduled acts, the jurisdiction of the Court shall remain to be of Sessions Judge or Additional Sessions Judge and it will not be of Presiding Judge of a Special Judge SC/SectionST Act. Because the same is regarding speedy trial of cases given under above act. But in this judgment, neither in the caption nor below signature, it has been written to be a judgment by a Sessions Judge or Additional Session Judge or in exercise of power of Session Judge or Additional Session Judge. Rather, it has been written to be a judgment, delivered by Special Judge SC/SectionST Act, Farrukhabad, which is apparently erroneous. But the same is irregularity not illegality. But a Presiding Judge of such a senior Court of Special Judge, Dacoity Affected Area or Special Judge SC/ST (Prevention of Atrocities) Act, 1989, must be careful while writing jurisdiction and designation of his Court, in exercise of jurisdiction of making trial of Sessions trial as well as special sessions trial or any other proceeding of any other nature.

8. Section 304-B 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 Sectionsection 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.

9. 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.

10. 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.

11. 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 Sectionsection 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.

12. The Apex Court in Banshi Lal Vs. State 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.

13. 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.

14. 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 Sectionsection 304B I.P.C. and Sectionsection 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.

15. Regarding presumption under Sectionsection 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.

16. Though, the Apex Court has visualized 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 Sectionsection 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.

17. Before going any further, it would be relevant to mention here that Sectionsection 113-B of Indian Evidence Act, 1872, provides that 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 had 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. The explanation to the section provides that expression ‘dowry death’ shall have the same meaning as in Sectionsection 304B of IPC. Section 304B of the IPC defines ‘dowry death’ and provides punishment for said offence. Section 304B IPC provides that 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 other 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.

18. Sub-Sectionsection 2 of Sectionsection 304-B further provides that whoever commits dowry death shall be punished for imprisonment for a term which may not be less than seven years but which may extend to imprisonment for life. It is relevant to mention here that Sectionsection 498A provides punishment for an offence of cruelty by husband or a relative of husband of a woman.

19. Their Lordships of Hon’ble Supreme Court in the case of SectionSatvir Singh and others vs. Sate of Punjab and another, (2001) 8 SCC 633 has observed as under:

“20. Prosecution, in a case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus:

“2. 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 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) applies.

20. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is “at any time” after the marriage. The third occasion may appear to be an unending period. But the crucial words are “in connection with the marriage of the said parties”. This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of “dowry”. Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

21. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words soon before her death is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept “soon before her death”.

22. Their Lordships of Hon’ble Supreme Court in the case of SectionRajinder Singh v. State of Punjab, (2015) 6 SCC 477 has observed as under:

“7. The primary ingredient to attract the offence under Section 304B is that the death of a woman must be a “dowry death”.”Dowry” is defined by Section 2 of the Dowry Prohibition Act, 1961, which reads as follows:

“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) applies

Explanation I.- [***] Explanation II.-The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).”

8. A perusal of this Section shows that this definition can be broken into six distinct parts:

(1) Dowry must first consist of any property or valuable security – the word “any” is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.

2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.

3) Such property or security can be given or agreed to be given either directly or indirectly.

4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.

5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.

6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression “in connection with” would in the context of the social evil sought to be tackled by the SectionDowry Prohibition Act mean “in relation with” or “relating to”.

9. The ingredients of the offence under Section 304-B have been stated and restated in many judgments. There are four such ingredients and they are said to be:

(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;

(b) such death must have occurred within seven years of her marriage;

(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(d) such cruelty or harassment must be in connection with the demand for dowry.”

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

24. PW-1 Babu Ram informant of this case, in his Examination-in-Chief, has categorically said that his daughter Rooma Devi was married with Mahesh in year 1990. Ramesh Chandra, Kishan Lal are the elder brothers of Mahesh, Ompal is the younger brother of Mahesh, Shanti Devi is the mother-in-law of Rooma Devi. They were not satisfied with dowry given in the tune of Rs. 40,000/- by him and they were making further demand of chain, ring and scooter. He got an information from Kripal and rushed at the home of accused persons, where found his daughter under gunshot wound, over her chest. Then after, he got this case registered by way of presenting Ex.Ka-1 at police station. In cross-examination, he further reiterated marriage to be of year 1990 and this occurrence of unnatural death in year 1992, for which there is no contradiction or exaggeration. Rather, Mahesh Chandra, in his statement recorded under Section 313 of Cr.P.C. has said about unnatural death by way of murder of his wife Rooma Devi and her marriage with him. Hence, this ingredient of marriage and death of bride within two years of marriage, on 2.6.1992, by unnatural death, by antemortem firearm shot wound, is undisputed fact. Therefore, there is no doubt that the first essential ingredients of offence punishable under Section 304-B I.P.C., is present in this case.

25. Convict-appellants being husband and blood relative of husband, is also undisputed fact.

26. Third ingredient relating to cruelty and harassment, by husband or convict-appellants, in connection with dowry demand, coupled with harassment, soon before this occurrence, has been proved by PW-1, Babu Ram, though, he could not be examined in cross in full, rather, he was examined in part. Then after, he died and could not be available for rest of cross-examination. But, his Examination-in-Chief, was recorded and it was got adjourned on the application of accused counsel, because of which, cross-examination could not be completed. Again, he was resumed for cross-examination on subsequent date, where it could not be completed. Rather, continued for next date as was mentioned by Presiding Judge over the testimony itself on 30.11.1999 and then after owing to his death, he could not be cross-examined. But he has been sufficiently cross-examined and opportunity of cross-examination was given to learned counsel for the defence. But owing to his adjournment application, this was adjourned for subsequent dates. But, whatever cross-examination is there, there is specific mention that deceased used to make complain with her parents regarding cruelty being made to her with regard to demand of dowry of scooter, chain and ring and it was of the date in close proximity of time, when informant’s son, Shiv Ram Singh, had been at the house of deceased for bringing her back but she was not permitted to be at her parental house. This has further been reiterated by PW-2, Maha Ram, who is brother of deceased. He, in his Examination-in-Chief, has said that after having information of death of his sister, Rooma Devi, by way of murder with regard to demand of dowry of scooter, chain and ring, he rushed at the home of his sister, where found her dead, having injury of firearm shot over her abdomen. There was lying a tamancha of .315 bore. He has categorically said that his brother-in-law Mahesh, his brothers Kishal Lal, Ompal and Ramesh Chandra and his mother Shanti Devi, were demanding scooter, chain and ring, since time of marriage but they were being persuaded. But of no avail. Rather, his sister was being behaved with cruelty and assault by them. Even, she was not sent back to her parental house. This has been specifically said in his cross-examination that convict persons, never demanded dowry from him. Rather, it was being made from his father, who was Karta of the family and it was being apprised by his father to him.

27. Learned counsel for the appellants vehemently argued that no demand was ever made to this witness and whatever testimony regarding demand, is on the basis of hearsay. This witness has categorically said that his father PW-1, was Karta of the family and he was repeatedly apprising about demand of dowry and cruelty being given to Rooma Devi, for this there is no contradiction or exaggeration in cross-examination and this was the testimony of PW-1 and PW-2, in Examination-in-Chief, having no contradiction in cross-examination in the testimony, which could be recorded till his death.

28. PW-3 is Kripal, who was mediator of this marriage, has said about hearing of firearm shot sound. He rushed at the home of Mahesh, found Rooma Devi under pool of blood. He informed to accused persons as well as informant side and this was all about 10:00 to 11:00 A.M. of the day. Meaning thereby, death by way of firearm shot, resulting injury as well as death at the home of accused persons, has been proved by this witness. But he has categorically said that he had not seen the assailants.

29. PW-4, is Dr. S.C. Tiwari, who along with Dr. P.R. Singh, did autopsy examination at 2.6.1992 of deceased Rooma Devi, daughter of Babu Ram, R/o, Village Deosni, P.S. Merapur, District Farrukhabad, which was brought under sealed intact position, by Constable Arvind Kumar and Home-guard Shishupal of Police Station Merapur, wherein, post mortem examination report was got prepared under handwriting and signature of this witness. Deceased was about 20 years, with teeth of 11 pairs. She was of average body built, having antemortem (1) wound of entry 1.5cm X 1cm through over the left side of chest, 16cm above umbilicus at 1:00 P.M. position. This was having laceration, blackening with inverted margin, blackening was around 4cm to 5cm. It was correspondent to wound of exit 1cm X 1cm on the back side near right illiac bone, having reverted margin. The side of this injury was from left to right and from upward to downward. Bullet was recovered. (2) contusion 2cm X 1cm of right upper arm (3) abraded contusion 3cm X 2cm on right forearm towards posterior side (4) multiple abrasion in the area of 12cm X 10cm towards posterior side over the left side of chest in the area of 3cm X 2cm X 2cm X 1cm, (5) contusion 4cm X 2cm over the left leg over the posterior side. In the internal examination, there was laceration of lungs with its membrane, having blood in the chest cavity. Teeth 15/14, laceration of stomach, semi-digested food mixed with blood, small intestine having laceration over many parts, large intestine with fecal matters, laceration over liver and gall bladder, laceration over right kidney and this death was owing to above antemortem injuries. Autopsy Examination Report Ex.Ka-2, has been formally proved by this witness. In his, cross-examination, there is no contradiction or exaggeration. Rather, learned counsel for the defence, in his argument before this Court as well as in the statement recorded under Sectionsection 313 of Cr.P.C., as of accused persons have admitted this murder by some unknown anti-social element and false implication of accused persons. Meaning thereby, the death owing to above antemortem firearm shot injury was undisputed fact. Hence, this formal witness has proved formal evidence.

30. PW-5, is Head Constable Gore Lal, who has proved formal registration of this case crime number that while being posted on 2.6.1992, at Police Station Merapur, as Constable-clerk, he got case crime No. 71/1992, under Section 498-A, Section304-B IPC and 3/4 of D.P. Act, registered against Mahesh, Ramesh Chandra, Kishan Lal, Ompal and Shanti Devi, under his handwriting and signature, by way of Chick F.I.R. No. 60, proved on record as Ex.Ka-3. This registration of case crime number was entered in General Diary Entry No. 2, on 2.6.1992 at 0:30 A.M., proved and exhibited as Ex.Ka-4. In cross-examination, there is no contradiction or exaggeration. Rather, there is reiteration of same version.

31. PW-6, Nanha Ram Kureel, was Investigating Officer and he has proved his investigation including preparation of recovery memo of blood stained and plain soil from spot as Ex.Ka-5, a tamancha lying thereat, thereby getting case crime number registered under SectionArms Act vide G.D. Entry Ex.Ka-6. Inquest proceeding got conducted by S.D.M. Sri Parmanand Tiwari, in presence of Sub-inspector Ahmad Ali Khan. The same being exhibited as Ex.Ka-8 to 10, spot map of spot Ex.Ka-11. In cross-examination, there is no contradiction, exaggeration or embellishment. Rather this witness has formally proved his investigation made in this case.

32. PW-7, Shiv Ram Singh, is the crucial witness, who in his testimony as Examination-in-Chief, has categorically said that after receiving information about death of his sister Rooma Devi on 1.6.1992, he, along with his father, brother and other co-villagers, went at Village-Deosni, where found his sister dead, who was having firearm shot wound over her chest. There was pool of blood and many other injuries upon her person. A tamancha was lying thereat. Many persons were assembled. Then after, he along with his father, went at police station, where, got case registered by presenting an application scribed by Jograj. Dead body was examined under inquest proceeding, then after, this was sent for autopsy examination. Marriage of Rooma Devi was of year 1990, which was of month of June. It was with Mahesh Chandra. Dowry was given. What was the dowry, it was under the knowledge of his father because he was Karta of the family. Husband and in-laws were not satisfied with dowry, they were making demand of scooter, chain and ring. This was since the marriage and whenever his sister came back, she made complaint of above demand and cruelty with regard to it. At the time of second vidai too, above demand of dowry could not be fulfilled, as a result Rooma Devi was being tortured by them. She was frequently being assaulted. Before this occurrence, this witness had been at the house of Rooma Devi, when she narrated entire occurrence and when made conversation with in-laws, they said that unless dowry is being fulfilled, this will continue. He requested for getting Rooma Devi, back with him but it was forbidden by accused persons. They said that unless demand being fulfilled, she will not be at her parental house. This witness came back, when Rooma Devi was weeping. He assured her that within 2 to 4 days, he will come back with dowry but in between, she was murdered by in-laws. In cross-examination again, there is reiteration that soon before unnatural death, this witness had been at the home of accused persons, where, they made demand and did cruelty with regard to it. They did not let Rooma Devi to be with this witness for their parental house and this was with saying that unless demand is being fulfilled, she will not be permitted to be at her parental house. This witness has been cross-examined at length, but, even after hair-splitting cross-examination, there is no contradiction, exaggeration or embellishment. Rather, he is fully intact witness.

33. When asked about those testimony and incriminating materials, each of the accused persons answered in the same way that they were at their field for their work, when Kripal went there and informed about this occurrence. This was by some anti-social elements. But money was demanded by informant side, which could not be fulfilled and this case was got lodged. There is no demand of dowry or cruelty with regard to it. Now, there is presumption all dowry death against husband and his family members, provided all essential elements of offence of dowry death, given under Section 304-B I.P.C., is being fulfilled by prosecution. Hence, the prosecution was successful to prove those ingredients beyond reasonable doubt and there was presumption of dowry death against accused persons. Now, burden is over the defence to rebut presumption under Section 113-B of Evidence Act, laid as above, for which two witnesses DW-1 and DW-2, have been examined, in which DW-1 Jograj Singh, has said that he is resident of village Deosni and fully acquainted with accused persons, because of being of same village. Mahesh was married at Village Hasnapur. He had participated in above ceremony. All rituals were performed under cordial atmosphere. No dispute regarding demand of dowry was ever arisen. Wife of Mahesh was being kept with love and affection. She was never treated with any torture or assault. Rather, she was residing with all pleasure at her in-laws’ house. After marriage of Mahesh, his all four brothers got separation. They were residing separately whereas Kishan Lal, was residing prior to marriage under separation. Deceased was educated and she appeared in High School Examination, just before this occurrence. House and farm of this witness is adjacent to house and agricultural farm of Mahesh. The day Rooma Devi died, this witness was present at his tube-well, where all other accused persons were present at their field, when Kripal came and informed about the death of wife of Mahesh, this witness along with Mahesh and his family members, rushed at their home and found deceased lying thereat. Information was given to informant side as well as to police, who rushed on spot and performed remaining proceeding. In cross-examination, he has categorically admitted that wife of Mahesh was married two years back with the above date of occurrence. Tilak Ceremony was performed, wherein goods were given. At the time when she died, this witness was at his tubewell. How, when and what circumstances she died, is not under knowledge of this witness. But he had seen pool of blood lying nearby her. How she died is not under his knowledge because she was lying dead inside the house of Mahesh. This witness even not enquired as to how and when she died. “Mahesh ki patni ki mrityu kaise hue maine nahi dekha tha. Maine Mahesh ki patni ke pas khoon dekha tha. Uski mrityu kisse hue maine nahi dekha. Mahesh ki patni Mahesh ke ghar ke andar mari padi thi. Maine pata nahi kiya ki wo kaise mari va kis chiz se mari. Mujhe yah bhi nahi maloom ki mritika ki mrityu kitne bje hue thi”. Meaning thereby, this witness and his testimony is of no avail, for proving plea of alibi of accused persons. His testimony is of no help, because place of occurrence is inside the house of Mahesh and his presence was being said to be at field at that time when Kripal rushed there, is not proved by this witness. Hence, for proving plea of alibi, testimony of this witness is of no help.

34. DW-2 Benche Lal, in his examination-in-chief, has said to be resident of same village Deosni and next door neighbor of accused persons. Wife of Mahesh was residing all pleasantly at her in-laws house. She was never met with any demand of dowry or cruelty. She got appeared in examination of High School by Mahesh but nothing, more than this, fact is under knowledge of this witness. In cross-examination, this witness showed his inability to tell the name of wife of Mahesh. Marriage was two years old. How she died is not under knowledge of this witness. He went after having information about her death at her home but he could not know how she died nor he even enquired from family members about this death “Mahesh ki patni ka naam nahi malum wah kaise mari yah jankari nahi hai, mai marne ke bad pahucha mujhe marne ki suchna mujhe paune baje mili thi tab mai khet per tha suchna per mai mritika ki lash ke pass gaya tha parantu maine aaj tak yah jankari nahi ki ki Mahesh ki patni kaise mari maine Mahesh va uske parivar walo se bhi aaj tak nahi puchha ki Mahesh ki patni kaise mari”. Meaning thereby, this witness is not aware as to how and under what circumstances, deceased died. He, even, not enquired from the family members of deceased as to how and under what circumstances, she died. This witness was examined for proving plea of alibi but testimony of this witness is of no belief or help to accused.

35. Apex Court in Vithal Tukaram Maurya Vs. State of Maharashtra, (2002) SCC 2020, has propounded “It is true that such crimes against women are generally committed within four walls of a house and many times in secrecy. Independent eye-witness or other direct evidences are scarcely available to the prosecution. But that is no reason to rely on circumstantial evidence, which is not of required standard and base conviction on surmises. In a sound criminal juridic system, such offences against women should not escaped unpunished but this equally desirable in social interest that members of family of victim are not made to suffer punishment merely because of their relation with deceased. It is duty of Court to see that the penal provisions intended to curb such crime by bringing the offenders to book, do not cause injustice to innocent people”. Trial Judge, while appreciating oral testimony on record, came to conclusion that one of accused, who was elder brother of husband, was having separate living prior to this marriage and was of no concern with this occurrence and on the basis of it, judgement of acquittal for Kishan Lal, has been passed and there is no State appeal against this acquittal. Hence, the argument of learned counsel for the defence i.e. present appellants that on same set of evidence, Kishan Lal, has been acquitted whereas appellants have been convicted, is of no effect because Kishan Lal, being blood relative of husband of deceased, was having separate living prior to marriage of Mahesh with deceased. Hence, he was of no concern with affair of husband of deceased, that is why, he was acquitted by trial Judge and for his acquittal, there is no appeal by State.

36. Apex Court in Surinder Singh Vs. State of Haryana, AIR 2014 SC 817, has propounded “Harassment of a married woman in an Indian household is a peculiar phenomenon. In most cases it is seen that the husband or the members of his family are never satisfied with what they get as dowry. The wife’s family is expected to keep fulfilling this insatiable demand in some form or the other for some period of time after marriage. Such demands are also fulfilled by parents of the wife for fear of their daughter being ill- treated. The courts of law cannot lose sight of these realities to fulfil legislative intent behind Section 113-B of Evidence Act and Section 304-B of I.P.C.”

37. Under Section 106 of Evidence Act, person who is in personal knowledge of some fact is expected to disclose the same, in evidence. In a death of such type, which occurred inside the home of accused persons, it was expected from accused, who is husband being bedroom partner, to explain the circumstances, under which this death owing to antemortem firearm shot wound coupled with contusion and laceration found on the body of deceased, in autopsy examination, occurred. But for this, no recital is there. Hence, trial judge, has rightly concluded about success of prosecution for proving charges leveled against appellants, to have been proved beyond the reasonable doubt, for which appellants could not prove as to where and under what way trial Judge failed to appreciate evidence, proved on record.

38. So far as sentence regarding appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case.

39. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should ‘respond to society’s cry for justice against the criminal’. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].

40. Accordingly, both of these criminal appeals, merit its dismissal. Dismissed, accordingly.

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

Order Date :- 15.11.2019

Kamarjahan

 

 

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