HIGH COURT OF JUDICATURE AT ALLAHABAD
Date of Judgment reserved: 27.03.2017
Date of delivery of Judgment: 05.05.2017
Court No. – 36
Case :- CRIMINAL APPEAL No. – 125 of 2011
Appellant :- Mahesh
Respondent :- State Of U.P.
Counsel for Appellant :- Romeshwari Prasad, Abhishek Kumar, Brijesh Sahai,V.P. Pandey,Vikas Srivastava
Counsel for Respondent :- Govt. Advocate
Hon’ble Ramesh Sinha,J.
Hon’ble Krishna Pratap Singh,J.
(Delivered by Hon’ble Krishna Pratap Singh,J.)
1. Heard Sri Vikas Srivastava and Sri V.P. Pandey, learned counsel for the appellant and Sri Ashish Pandey, learned A.G.A. for the State.
2. The present appeal is directed against the judgment and order dated 22.12.2010 passed by Additional District and Sessions Judge, Court No. 4, Agra in Session Trial No. 456 of 2004 arising out of Criminal Case Crime No. 314 of 2004 (State vs. Mahesh and Others), under Sections 498-A and 304-B I.P.C. and Section 4 Dowry Prohibition Act, Police Station Jagner, District Agra.
3. The sole appellant-accused Mahesh has been convicted under Section 498-A I.P.C. and sentenced him to undergo three years rigorous imprisonment along with fine of Rs. 5,000/- and to serve further three months imprisonment in default of payment of fine. He has also been convicted under Section 304-B I.P.C. and sentenced him to undergo life imprisonment. He has also been convicted under Section 4 Dowry Prohibition Act and sentenced him to undergo two years rigorous imprisonment with fine of Rs. 10,000/- and to serve further four months imprisonment in default of payment of fine. Learned trial court has further directed that all the aforesaid sentences of the appellant-accused shall run concurrently.
4. The other four accused namely Luxman, Smt. Shanti Devi, Smt. Indira Devi and Rambir were acquitted of all the charges.
5. Briefly, the facts of the case are as follows:-
6. The first information report of the present case was lodged on 06.05.2004 at about 18:30 P.M. at Police Station Jagner, District Agra, under Sections 498-A, 304-B and 120-B I.P.C. and under Sections ¾ Dowry Prohibition Act regarding an incident which is said to have taken place on 06.05.2004 at about 10:00 A.M. in village Saraidhi situated at a distance of about 10 ½ Kilometers towards North from the police station.
7. Appellant-accused Mahesh got married to deceased Shashi daughter of Lal Singh PW-1 on 03.07.2003 according to the Hindu rites and rituals. In the marriage of the deceased informant Lal Singh PW-1 had given one lac cash, one motorcycle, colour T.V. and dowry to the best of his capacity. But the appellant-accused and his relatives were not satisfied with the dowry and used to demand a fridge and Splendor motorcycle and beat her in connection with demand of dowry and expelled her from the house after the four months of her marriage. After mediation informant Lal Singh PW-1 had sent her daughter back to her in-laws place on saying of Raj Bahadur and Mukesh where she was killed by her husband and family members of her husband. He got a report Exhibit Ka-1 written by Brijesh Kumar son of Gulab Singh given by him the present case was registered at Police Station Jagner, District Agra against nine persons including husband (appellant-accused) of the deceased.
8. Constable No. 2463 Mahabir Singh PW-4 had prepared chik FIR Exhibit Ka-3 and G.D. entry Exhibit Ka-4.
9. After receiving information on 06.05.2004 that a married woman had been killed in connection with demand of dowry the then Sub-Divisional Magistrate Khairagarh Mr. Devendra Dixit PW-5 went to the village Saraidhi to prepare the inquest report. On his dictation H.C.P. Arjun Singh prepared the inquest report Exhibit Ka-5 and other relevant papers Challan Lash Exhibit Ka-6, Photo Lash Exhibit Ka-7 and letter to C.M.O. Exhibit Ka-8 were also prepared. One brick and one empty bottle of Pepsi were also recovered from a Well and recovery memo Exhibit Ka-9 was prepared in presence of witnesses Brijesh Kumar and Rambir. Blood stained earth and simple earth were also collected from the place of occurrence and recovery memo Exhibit Ka-10 was prepared at spot. Sealed dead body of deceased Shashi was sent for postmortem. Constable Bharat Singh and Constable Mahesh Chandra, Police Station Jagner, District Agra brought the dead body of the deceased Shashi for the postmortem examination. Balendu Bhushan Singh PW-6, the then C.O. Khairagarh, District Agra commenced investigation into crime and recorded the statement of informant Lal Singh PW-1 on 08.05.2004 and on pointing out of the informant Lal Singh PW-1 he inspected the place of occurrence and site plan Exhibit Ka-11 was sketched. On 13.05.2004 Station Officer arrested the appellant-accused Mahesh and send him to jail. On 14.05.2004 the Investigation Officer recorded the statement of the Doctor Lokesh Kulshreshtha. On 25.05.2004 accused Luxman was arrested and sent to jail. On 25.05.2004 Investigating Officer recorded the statement of Karuwa, Durga Singh and Udaibhan. On 20.06.2004, the Investigating Officer recorded the statement of Gafur Khan, Subhash Singh, Sahab Singh and Mahender Singh at Police Station and after completion of investigation charge-sheet Exhibit Ka-12 was forwarded against the accused namely appellant-accused Mahesh, Luxman, Smt. Shanti Devi, Smt. Indira Devi and Rambir.
10. Postmortem examination on dead body of Shashi was performed by Doctor Lokesh Kulshreshtha PW-3 on 07.05.2004. The dead body was brought to the Doctor by Constable 694 Bharat Singh and Constable 195 Mahesh Chandra duly sealed and the aforesaid Constables had identified the dead body of the deceased Shashi. Physique of the female dead body was of the average built. On the body of the deceased Shashi the following ante-mortem injuries were found:-
(i) Lacerated wound 6 Cm. x 4 Cm. over left side forehead area.
(ii) Lacerated wound 4 Cm. x 2 Cm. over the right parietal area.
(iii) Lacerated wound 2 Cm. x 1 Cm. over left parietal area.
(iv) Multiple abrasion 6 Cm. x 4 Cm. over left side face. Mandible fractured.
Cause of death of deceased was Coma as a result of ante-mortem injuries. Postmortem report is Exhibit Ka-2.
11. On the strength of charge-sheet submitted accused were summoned. Since disclosed offence was exclusively triable by the Sessions Court the Chief Judicial Magistrate, Agra committed the case to the Court of Sessions on 18.08.2004 where it was registered as Session Trial No. 456 of 2004 (State vs. Mahesh and Others). The aforesaid session trial was transferred to the Court of Additional District and Sessions Judge, Agra for trial.
12. Learned trial Judge charged the accused namely Mahesh, Luxman, Smt. Shanti Devi and Smt. Indira Devi with offences under Sections 498-A, 304-B, 302 and 120-B I.P.C. and under Sections 3 and 4 Dowry Prohibition Act on 30.09.2004. Learned trial Judge also charged the accused Rambir with offence under Sections 302/120-B and 304-B/120-B I.P.C. on 27.08.2005. The accused persons pleaded not guilty and claimed to be tried and consequently sessions trial procedure was restored to establish the guilt of the accused persons.
13. In order to prove its case prosecution has examined informant Lal Singh PW-1 and Mahesh Chandra PW-2 as the witnesses of fact. Doctor Lokesh Kulshreshtha PW-3, Constable Mahabir Singh PW-4, Devendra Dixit ADM (Administration) PW5 and Investigating Officer Balendu Bhushan Singh PW-6 are the formal witnesses.
14. After the evidence of prosecution statement of accused persons were recorded under Section 313 Cr.P.C. Accused persons have stated that they have been falsely implicated in this case and witnesses have deposed false story against them. Appellant-accused Mahesh and accused Smt. Shanti Devi have stated that on the date of incident they had gone to attend the marriage ceremony in village Kaulra Kala. Accused Smt. Indira Devi and accused Luxman have stated that on the date of incident they had also gone to attend the marriage ceremony in village Gujja, District Muraina. Accused Rambir has stated that he is resident of other village. He has no relation with the family of the accused persons. At the time of incident he was not present at the place of occurrence. He has been falsely implicated in this case due to enmity.
15. Mohar Singh DW-1, accused Rambir DW-2 and Mahabir Singh Dw-3 have been examined as defence witnesses.
16. Learned trial Court believed the prosecution case and therefore convicted the appellant-accused Mahesh under Sections 498-A and 304-B I.P.C. and under Section 4 of the Dowry Prohibition Act and sentenced him accordingly vide impugned judgment and order dated 22.12.2010 which decision has now been called in question in the instant appeal.
17. Four accused persons namely Luxman, Smt. Shanti Devi, Smt. Indira Devi and Rambir were acquitted of all the charges levelled against them.
18. Learned counsel for the appellant-accused has submitted that the appellant-accused is innocent and has been falsely implicated in the present case. The appellant-accused had never ill treated nor any dowry was demanded from the deceased. It is also submitted that at the time of incident appellant-accused was not present at the place of occurrence as he had gone to attend the marriage ceremony in village Kaulra Kala. Therefore, the criminal appeal filed by the appellant-accused Mahesh is liable to be allowed.
19. Learned A.G.A. for the State has submitted that the prosecution evidence is sufficient to prove the offences punishable under Section 498-A and 304-B I.P.C. and Section 4 of Dowry Prohibition Act. It is also submitted that in the view of consistent version of informant Lal Singh PW-1 and Mahesh Chandra PW-2 that deceased Shashi consistently used to complaint of her harassment for dowry by the appellant-accused Mahesh. It was further submitted that the statement of both the prosecution witnesses are reliable and trustworthy. It was also submitted that learned trial Court has rightly convicted the appellant-accused in the present case, therefore, the appeal filed by the appellant-accused Mahesh has no merit and should be dismissed.
20. We have considered the submissions advanced by leaned counsel for the parties and perused the judgment of the trial Court as well the record of the case.
21. In this appeal point for determination is raised whether conviction of the appellant-accused Mahesh recorded by the learned trial Court for the offences punishable under Sections 498-A and 304-B I.P.C. and under Section 4 of Dowry Prohibition Act is against law and evidence on record.
22. The essential ingredients of the Section 304-B I.P.C. are as under:-
(1) The death of a married woman should be caused by burns or bodily injury or otherwise than under a normal circumstances.
(2) Such a death should have occurred within seven years of her marriage.
(3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(4) Such cruelty or harassment should be for or in connection with demand of dowry.
(5) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
23. It is not disputed that the wife of the appellant-accused Mahesh died on 06.05.2004 at about 10:00 A.M. It is also not disputed that the deceased Shashi and appellant-accused Mahesh married on 3rd July, 2003. Therefore, the death of Shashi took place within seven years from the date of her marriage. The case of prosecution rested on the circumstantial evidence. The prosecution has relied upon four circumstances to establish the guilt of the appellant-accused which are as under:-
1. Deceased and the appellant-accused Mahesh were wife and husband.
2. They were living in the same house.
3. The deceased was harassed by the appellant-accused Mahesh for additional dowry soon before her death.
4. The death of the deceased was homicidal in nature.
24. Lal Singh PW-1 is the father of the deceased Shashi. He has deposed that he had married his daughter Shashi with the appellant-accused Mahesh on 3rd July, 2003. In the marriage of the deceased informant Lal Singh PW-1 had given 1 lac cash, one motorcycle, colour T.V. and dowry to the best of his capacity but the appellant-accused was not satisfied with the dowry and used to demand Fridge and Splendor motorcycle and beat her in connection with demand of dowry and lastly expelled her from the house after four months of her marriage. After mediation informant Lal Singh PW-1 had send his daughter (deceased) back to her in-laws place where she was killed by the husband and family members of her husband. Mahesh Chandra PW-2 is the brother of the deceased Shashi. He has also fully supported the prosecution case and deposed that his sister deceased Shashi was married with the appellant-accused Mahesh on 3rd July, 2003. In her marriage sufficient dowry had been given but her husband and family members of her husband were not satisfied with the dowry and used to demand a Fridge and Splendor motorcycle and beat her in connection with the demand of dowry and expelled her from the house. After 2 or 3 months before the death of Shashi an attempt was made to patch up between the two sides for which a panchayat was held in which it was resolved that she would go back to the matrimonial home. After mediation deceased was send back to her in-laws place with Raj Bahadur and Mukesh. In this way both the aforesaid witnesses of fact have supported the prosecution version. Both the witnesses have undergone a lengthy cross-examination but nothing material in their cross-examination could be elicited which makes their evidence unreliable. Thus from the prosecution evidence it is proved that the deceased and appellant-accused Mahesh were wife and husband and they were living in the same house at the time of incident. The appellant-accused Mahesh also has not disputed these facts. The third circumstance relied upon by the prosecution is that the deceased was subjected to cruelty and harassment by the appellant-accused Mahesh for additional dowry. The said circumstance is also established by the statement of Lal Singh PW-1 and Mahesh Chandra PW-2.
25. The fourth circumstance that the death of Shashi in the opinion of Doctor Lokesh Kulshreshtha PW-3 was ‘Coma’ due to ante-mortem injuries. According to him following ante-mortem injuries were found on the body of the deceased:-
(i) Lacerated wound 6 Cm. x 4 Cm. over left side forehead area.
(ii) Lacerated wound 4 Cm. x 2 Cm. over the right parietal area.
(iii) Lacerated wound 2 Cm. x 1 Cm. over left parietal area.
(iv) Multiple abrasion 6 Cm. x 4 Cm. over left side face. Mandible fractured.
26. Exhibit Ka-2 is the postmortem examination report. Accepting the medical evidence it is clear that Shashi had suffered a homicidal death. According to the statement of Lal Singh PW-1 and Mahesh Chandra PW-2 the dead body of the deceased was found in hut which was situated in the garden of one Kalyan Singh. Investigating Officer has also shown that very place in the site plan Exhibit Ka-11 by letter A. We have seen that demand of dowry and harassment have been proved by the prosecution and death of the deceased had taken placed within year from her marriage and it is also established that soon before her death the deceased was ill treated by the husband appellant-accused. In the Evidence Act there is a presumptive Section 113-B. Presumption under Section 113-B is presumption of law. On proof of essential ingredients of Section 304-B I.P.C., it becomes obligatory on the Court to raise presumption that accused had caused dowry death. All the essential ingredients have been proved by the prosecution in the present case. Once the prosecution is able to establish the ingredients of Section 304-B I.P.C., the presumption against the accused starts as provided under Section 113-B of the Indian Evidence Act but it is rebuttable presumption and the onus lies on the accused against whom the presumption lies to discharge it.
27. In rebuttal defence has examined three witnesses Mohar Singh DW-1 has deposed that he has five sisters and brothers. Smt. Shanti Devi is his sister and Luxman is his brother-in-law (Behnoi). Smt. Shanti Devi has five children. Smt. Shanti Devi aged about 75 years and Luxman aged about 80 years are the parents of the appellant-accused Mahesh. He had attended the marriage ceremony of appellant-accused Mahesh. The appellant-accused Mahesh had not taken any dowry in his marriage. He has further deposed that the marriage of his son Pintu was solemnized on 07.05.2004. Smt. Shanti Devi and appellant-accused Mahesh had attended the marriage ceremony of his son Pintu. On the date of incident appellant-accused Mahesh and his sister Smt. Shanti Devi were not present at the place of occurrence. Rambir DW-2 has also deposed that on 06.05.2004 the appellant-accused Mahesh and his mother Smt. Shanti Devi had attended a marriage ceremony in village Kaulra Kala. Mahabir DW-3 has deposed that on 05.05.2004 accused Luxman had gone to his village Gujja, District Muraina Madhya Pradesh. But these defence witnesses in their statement have not given cogent explanation as to how and who committed the murder of deceased Shashi. At the time of incident the deceased Shashi was living with the appellant-accused Mahesh who was her husband. Appellant-accused Mahesh has given statement under Section 313 Cr.P.C. that he had gone to attend the marriage ceremony in the village Kaulra Kala but this statement of the appellant-accused does not appear to be true. Appellant-accused Mahesh has also not given cogent explanation as to how and who had committed the murder of his wife Shashi. In catena of decision Hon’ble Apext Court has held that in view of Section 106 of Indian Evidence Act there will be corresponding burden on inmates of the house to give a cogent explanation as to how the deceased was done to death. We have seen that the death of the deceased Shashi was homicidal in nature. The explanation given by the defence in this regard appears to be false. Defence has not given any cogent explanation regarding the injuries of the deceased. In the case of no explanation or false explanation it would become an additional link in chain of circumstances. In the instant case, the relevant circumstances provided a complete chain of events clearly pointing towards the guilt of husband (appellant-accused Mahesh).
28. On the basis of above discussions, we are of the view that the appellant-accused Mahesh cannot escape his liability for a chrage under Section 304-B I.P.C. In the instant case, all the ingredients of Section 304-B I.P.C. are satisfied that the death of Shashi occurred within seven years of her marriage. Her death occurred otherwise than under normal circumstances and she was subjected to harassment which amounted to cruelty within the meaning of Section 498-A I.P.C. of which charge the appellant-accused Mahesh is also found guilty by the learned trial Court. The offence under Section 304-B I.P.C. is punishable with sentence for a term which may not be less than seven years but may extend to imprisonment for life. Learned counsel for the appellant-accused has contended that the appellant-accused Mahesh is in jail for more than 12 years. The occurrence is of the year 2004. It is further submitted that the parents of the appellant-accused Mahesh are very old, infirm and are suffering from various diseases. There is no person to look after them. It is also submitted that interest of justice would be met if life imprisonment of the appellant-accused Mahesh is reduced to imprisonment for the period already undergone. We are convinced with the submission of learned counsel for the appellant-accused Mahesh.
29. Hon’ble Apex Court in the case of V.K. Mishra Anr. Vs. State of Uttarakhand Anr., 2015 Law Suit (SC) 665 in para nos. 40 and 41 of the judgment has held as under:-
“40. For the offence under Section 304B IPC, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304B IPC thus prescribes statutory minimum of seven years. In Kulwant Singh Ors. vs. State of Punjab, (2013) 4 SCC 177, while dealing with dowry death Section 304B and 498A IPC 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.
41. As per prison records, the accused-Rahul Mishra is in custody for more than five years which includes remission. Bearing in mind the facts and circumstances of the case and the occurrence was of the year 1997 and that the accused Rahul Mishra is in custody for more than five years, interest of justice would be met if life imprisonment awarded to him is reduced to imprisonment for a period of ten years. Appellants V.K. Mishra and Neelima Mishra, each of them have undergone imprisonment of more than one year. Appellants No. 1 and 2 are aged about seventy and sixty four years and are said to be suffering from various ailments. Considering their age and ailments and facts and circumstances of the case, life imprisonment imposed on appellants V.K. Mishra and Neelima Mishra is also reduced to imprisonment of seven years each.”
30. Hon’ble Apex Court in the case of Hem Chand Vs. State of Haryana, 1994 Law Suit (SC) 933 in para no. 7 of the judgment has held as under:-
“7. Now coming to the question of sentence, it can be seen that Section 304-B 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.” The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304-B, I.P.C would show that when a question arises whether a person has committed the offence of dowry death of a woman what 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 113-B 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 304-B 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. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 I.P.C. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr. Usha Rani, P.W. 6 and Dr. Indu Latit, P.W. 7 gave one opinion. According to them no injury was found on the dead body and that the same was highly decom-posed. On the other hand, Dr. Dalbir Singh, P.W. 13 who also examined the dead body and gave his opinion, deposed that he noticed some injuries at the time of re-post mortem examination. Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304-B I.P.C. would be attracted. But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As a matter of fact, the trial court only found that the death was unnatural and the aspect of cruelty has been established and therefore the offences punishable under Section 304-B and 201 I.P.C. have been established. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304-B I.P.C. was made out. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime he himself indulged therein and precipitated in it and that bride killing cases are on the increase and therefore a serious view has to be taken. As mentioned above Section 304-B I.P.C. only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment for life should be in rare cases and not in every case.”
31. Hon’ble Apex Court in the case of Hari Om Vs. State of Haryana Another, 2014 Law Suit (SC) 894 in para nos. 24 and 25 of the judgment has held as under:-
“24. Recently in G.V. Siddaramesh Vs. State of Karnataka, 2010 3 SCC 152, this Court while allowing the appeal filed by the accused only on the question of sentence altered the sentence from life term to 10 years on more or less similar facts. Hon’ble H.L. Dattu, J. (as His Lordship then was) speaking for the Bench held as under:
“31. In conclusion, we are satisfied that in the facts and circumstances of the case, the appellant was rightly convicted under Section 304-B IPC. However, his sentence of life imprisonment imposed by the courts below appears to us to be excessive. The appellant is a young man and has already undergone 6 years of imprisonment after being convicted by the Additional Sessions Judge and the High Court. We are of the view, in the facts and circumstances of the case, that a sentence of 10 years’ rigorous imprisonment would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years’ rigorous imprisonment. The other conviction and sentence passed against the appellant are confirmed.”
“25. Applying the principle of law laid down in the aforementioned cases and having regard to the totality of facts and circumstances of this case, we are of the considered opinion that the ends of justice would meet, if we reduce the sentence of the appellant from life imprisonment to that of 10 years. In our view, this case does not fall in the category of a “rare case” as envisaged by this Court so as to award to the appellant the life imprisonment. That apart, we also notice that while awarding life imprisonment, the courts below did not assign any reasons.”
32. In the light of the above case law and facts and circumstances of the present case, we confirm the conviction of the appellant-accused Mahesh under Section 304-B I.P.C. but reduce the sentence of imprisonment for life to the period already undergone (we are informed by learned counsel for the appellant-accused Mahesh that the appellant-accused Mahesh is in jail for more than 12 years). The other conviction and sentence passed against the appellant-accused Mahesh are confirmed. The appellant-accused Mahesh may be released forthwith if not required in any other case.
33. Accordingly the appeal stands partly allowed.
34. Let a copy of this judgment along with lower Court record be sent to Learned Sessions Judge concerned for compliance of this judgment.
(Krishna Pratap Singh,J.) (Ramesh Sinha, J.)
Order Date :- 05.05.2017