HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

RESERVED JUDGMENT

Court No. – 82

Case :- CRIMINAL APPEAL No. – 5267 of 2018

Appellant :- Mukesh

Respondent :- State Of U.P.

Counsel for Appellant :- Bal Ram Gupta

Counsel for Respondent :- G.A.

Hon’ble Pradeep Kumar Srivastava,J.

1. This criminal appeal has been preferred against the judgment and order dated 31.08.2018, passed by XIIth Additional Sessions Judge, Agra, in Sessions Trial No. 17 of 1997, arising out of Case Crime No. 80 of 1996, under Sections 302/Section201 IPC, Police Station Jaitpur, District Agra, whereby the accused-appellant has been convicted for the offence under Section 498A IPC for three years rigorous imprisonment along with fine of Rs. 5000/- and in default of fine three months additional rigorous imprisonment and under Section 304B IPC for ten years rigorous imprisonment along with fine of Rs. 25,000/- and in default of fine one year additional rigorous imprisonment.

2. The prosecution story is that the informant Raghuveer Singh gave a written report on 02.09.1996 at Police Station Jaitpur stating that he is resident of District Itawah. His daughter namely Baby Kumari @ Raju was married with Mukesh Singh son of Pooran Singh on 30.06.1993. His daughter told him one year before that she was being harassed for motorcycle and television and for this reason, the accused persons have committed murder of his daughter along with her one year child. He was informed by his nephew on 30.08.1996 at about 08:00 P.M. and he was told that the child was sick and he died in the hospital and because of the shock due to death of child his daughter also died. The informant reached there on 31.08.1996 and he was informed that both killed themselves by burnt themselves. At the time of incident Pooran Singh, father-in-law of the deceased, his wife, his daughter and his son Mukesh and Dharmendra were in the house and they all killed his daughter and her child and caused disappearance of the dead bodies.

3. On the basis of written report, the first information report was registered against the accused persons for the offences under Sections 498A, Section304B, Section302 and Section201 IPC and it was investigated by police and thereafter charge sheet was submitted against the accused persons namely Mukesh, Bhupendra Brijpal and Shree Krishna for the offences under Sections 302/Section201 IPC. The learned trial court however framed charges under Sectionsections 304B/Section498A/Section201 IPC and in the alternative, under Section 302 IPC.

4. The prosecution examined PW-1 Raghuveer Singh, PW-2 Satish Singh, PW-3 Naresh Singh, PW-4 Jitendra Singh Chauhan, PW-5 S.I. R.K. Singh Yadav and PW-6 Constable Clerk Gajraj Singh.

5. The statements of accused persons were recorded under Section 313 Cr.P.C. wherein they have stated that the statements of the witnesses are false and the case has been falsely registered. They have stated that they never demanded any dowry nor they committed murder of the deceased. Accused Brijpal has stated that he has no relationship with accused-appellant Mukesh and he has no concern with the said crime. Similar is the statements of accused Bhupendra Singh and accused Shree Krishna. DW-1 Mukesh, the present accused-appellant and DW-2 Anita Devi were examined in defence.

6. After hearing both the parties, the learned trial court has convicted the accused-appellant for the offence under Sections 498A and Section304B IPC. Bhupendra Brijpal and Shree Krishna have been acquittal from all charges whereas, accused-appellant has been acquitted under Sectionsection 201 IPC.

7. Aggrieved by the impugned judgment, the accused-appellant has filed the present criminal appeal challenging the impugned judgment on the ground that the same is against the weight of evidence on record. There was material contradictions in the testimonies of the prosecution witnesses. The judgment has been passed on surmises and conjectures and awarded sentence is too severe. The conviction is bad in the eyes of law. The demand of dowry and harassment was not proved by the prosecution. The statements of defence witnesses have been ignored by the learned trial court, therefore, the impugned judgment is liable to be set aside and the accused-appellant is entitled for acquittal.

8. Heard Sri Bal Ram Gupta, learned counsel for the appellant, Sri L.D. Rajbhar and Sri Prem Shanker Mishra, learned A.G.A. and perused the record.

9. From perusal of the record it appears that PW-1 Raghuveer Singh (informant) has stated on oath that he is father of the deceased Baby Kumari @ Raju. His daughter was married with Mukesh Singh son of Pooran Singh on 30.06.1993. According to capacity, he gave dowry but the accused-appellant and his family members were not satisfied and were demanding television and motorcycle and for that they started harassing and beating his daughter. Whenever the deceased came to her parental house, she used to tell about that. The informant tried to convince Pooran Singh the father-in-law of the deceased that he will give television and motorcycle on money being arranged but the accused persons were not convinced and they continued harassing the deceased. On 30.08.1996 at about 08:00 P.M., his nephew, Kalloo informed him that his daughter and her child have died. Then he reached there on 31.08.1996 but he did not get the dead body of the deceased. He tried to search her in the hospital as he was informed that the child of the deceased was admitted in the hospital and expired and in that shock his daughter also died. When he collected the information from the local villagers, he came to know that the accused persons caused the death of his daughter and her child both and removed their dead bodies.

10. PW-2 Satish Singh has been declared hostile as he stated ignorance about the incident.

11. PW-3 Naresh Singh has also been declared hostile who has further stated that he heard that the child of Mukesh was ill and due to illness the child died. After the death of the child, the wife of Mukesh also died.

12. PW-4 Jitendra Singh Chauhan is the brother of the deceased, who has supported the prosecution version and has stated that due to non fulfillment of demand of dowry, the accused persons used to harass the deceased and finally they killed her by setting her ablaze. The information of her death was given by Ram Karan.

13. PW-5 is S.I. R.K. Singh Yadav is IO who has proved site plan and charge sheet.

14. PW-6 is Constable Clerk Gajraj Singh of Police Station Jaitpur, who has proved chick FIR and GD.

15. The accused-appellant Mukesh has also got examined himself as defence witness DW-1, who has admitted the date of marriage with the deceased and has stated that after two years of marriage a son was born, who fell ill after his birth. After one year, due to illness, the child died in a hospital, whereas he was always under treatment. At the time of incident, he was working as tailor in Delhi and the brother of the deceased Jitendra was also working with him and learning tailoring. Because of the death of the son, the deceased came in shock and fell ill and after about one month, she also died. Her funeral took place publicly in the presence of local villagers. On the information of the death of his wife, he and the brother of the deceased Jitendra also came to the village from Delhi. Jitendra remained present in funeral. They never demanded motorcycle and television nor they caused any harassment to the deceased. She died due to illness but the informant lodged false FIR. Bhupendra, Brijpal and Shree Krishna are not his relatives but they are only local villagers.

16. Similarly, DW-2 Anita has stated that she knows Mukesh and his family. The deceased was her sister-in-law in relation. Her husband was mediator of the marriage of Mukesh and the deceased. Mukesh and his family are very courteous and civilized. Son of the deceased died in the age of one year due to illness and because of this shock, the deceased also died. The accused and his family members never demanded any dowry. The real brother of the deceased Jitendra was living with Mukesh in Delhi and was learning tailoring.

17. Learned counsel for the accused-appellant has submitted that there is no evidence that the death of the deceased took placed in an unnatural or abnormal circumstances. She died naturally due to shock because of the death of her son and a funeral took place in the village publicly.

18. On the contrary, learned A.G.A. has argued that the deceased was married with the accused-appellant just five years ago. The accused persons were demanding motorcycle and television and because of non fulfillment of demand of dowry, the deceased was physically and mentally harassed by the accused persons and for that reason they caused death of the deceased and the dead body was thrown in the river.

19. In V.K. Mishra Vs State of Uttarakhand, (2015) 9 SCC 588 and Panchanand Mandal Vs State of Jharkhand, (2013) 9 SCC 800, it has been held that before recording conviction of an accused u/s 304-B SectionIPC, the following conditions must be proved-

1.That the death of woman was caused by burns or bodily injury or otherwise than under normal circumstances.

2.That such a death should have occurred within 7 years of marriage.

3.That the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband.

4.That such cruelty or harassment should be for or in connection with demand for dowry.

5.That such cruelty or harassment is shown to have been meted out to the woman soon before her death.

20. SectionIn Shanti vs State of Haryana, AIR 1991 SC 1226, it has been held that for the application of the offence of dowry death under 304-B SectionIPC, the death must occur by burn, bodily injury or otherwise than under normal circumstances and it covers all unnatural death, whether homicidal or suicidal.

21. In most of dowry death cases, direct evidence is hardly available as the death occurs within the confines of the matrimonial home. Therefore, such cases are proved by circumstantial evidence. It is why Sectionsection 113-B of the Evidence Act enacts a rule of presumption which can be raised on proof of death of wife within within 7 years of marriage in suspicious circumstances and soon before her death, she was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. Section 113-B provides as follows:

“Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand of dowry, the court shall presume that such person had caused the dowry death.”

22. SectionIn Dinesh vs State of Haryana, 2014 (2) Crimes 197, it has been held that since the crimes of dowry death are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the Legislature has tried to strengthen the hands of prosecution by incorporating a presumption under Sectionsection 113-B of the Evidence Act on proof of certain facts mentioned above.

Cruelty Harassment

23. SectionIn Shivanand Mallappa Koti vs State of Karnataka, AIR 2007 SC 2314 and SectionRajendra vs State, AIR 2009 SC 855, it has been held that Explanation to Sectionsection 498-A IPC defines cruelty and having regard to the background of the dowry death under Sectionsection 304-B and Section498-A IPC, the meaning of cruelty and harassment is same in both sections. Explanation to Sectionsection 498-A IPC defines cruelty caused on wife by husband or his relatives as follows:

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

24. In short, cruel treatment or harassment of wife by husband or his relative to force her to fulfil demand of dowry is the common element for the commission of offences under Sectionsection 304-B and Section498-A of the Indian Penal Code. In State of Punjab Vs. Gurmit Singh, (2014) 9 SCC 632, it has been held that meaning of the words “any relative of her husband” occurring in Section 304-B IPC meaning of the words “relative of the husband” occurring in Section 498-A IPC are identical and mean such person related by blood, marriage or adoption. A penal statute should be strictly construed. The expression “any relative of her husband” occurring in Section 304-B IPC should be limited to persons related by blood, marriage or adoption.

Soon Before Her Death

25. For the offence of dowry death, it should be shown that soon before her death, the wife was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. SectionIn Raja Lal Singh vs State of Jharkhand, AIR 2007 SC 2153, it was remarked that ‘soon before her death’ do not necessarily mean immediately before death. It is an elastic expression and cannot be defined in terms of specific period of days, a few weeks or months, but there should be perceptible nexus between the death of the deceased and dowry related harassment. SectionIn Surinder Singh vs State of Haryana, AIR 2014 SC 817, it has been held that where the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be ‘soon before death’ if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time.

26. It is admitted fact that both victim and accused got married about three years before from the date of incident. It needs to be examined whether the deceased died unnatural death in abnormal circumstances? Since the dead body was neither recovered nor put to postmortem, it could not be determined how she died or what was the cause of her death. For the constitution of the offence of dowry death, it must be proved that there was unnatural death in abnormal circumstances. In FIR, the informant has alleged that she was killed by accused persons because of non-fulfillment of demand of dowry and thereafter, the accused caused the dead body to disappearance.

27. In Madhu Vs. State of Karnataka, 2014 (84) ACC 329(SC), Ramjee Rai Vs. State of Bihar, 2007 (57) ACC 385 (SC) and Prithi Vs. State of Haryana,(2010) 8 SCC 536, law has been well settled that it is not at all necessary for conviction of an accused for murder that the corpus delicti (dead body) be found. Undoubtedly, in the absence of the corpus delecti there must be direct or circumstantial evidence leading to the inescapable conclusion that the person has died and the accused are the persons who committed the murder. Discovery of dead body is a rule of caution and not rule of law. Conviction can be recorded even in the absence of recovery of dead body. However, it is not essential to establish corpus delicti but fact of death of victim must be established by any other fact.

28. In Ram Gulam Chowdhary Vs. State of Bihar, 2001(2) JIC 986 (SC), it was held that when the dead body was not found but there was direct evidence of mother, sister and neighbored of deceased that the accused persons entered into the house of the deceased, dragged him out, dealt with blows with various weapons and took away the body of the deceased and thereafter body could not be recovered and therefore post mortem could not be done, then it has been held by the Supreme Court that it was for the accused to explain what they did with the body after they took away. Conviction recorded by trial court on the basis of direct evidence for the offences under Sections 302/Section149, Section201 I.P.C. in the absence of recovery of dead body was upheld by the Supreme Court.

29. In this case, it is clear that the dead body was not recovered and could not be put to postmortem. Therefore, medically it is not established that the death was unnatural. But the prosecution is not absolved from the responsibility to prove that the death was unnatural and it happened pursuant to cruelty and harassment on account of non-fulfillment of demand of dowry. Therefore, it is to be seen what other evidence is available on record to show that the death occurred in suspicious circumstances.

30. The F.I.R. version in respect of cause of death appears to be inconsistent. The first version is that the accused committed murder and removed the dead body by throwing the same in the river. This has been negatived by the learned trial court itself as the accused has been acquitted from the charge under Sections 302/Section201 I.P.C.. The second version is about demand of dowry and harassment. The accused persons were demanding motorcycle and TV and the deceased told a year back that she was being harassed by accused persons. It is also admitted fact that a year before she gave birth to his son as, as per F.I.R., at the time of death of the deceased, the son was about one year old when he died. Therefore, it goes to show that till the birth of son, their married life was normal. It has been nowhere stated that after birth of son, the accused ever demanded dowry and harassed the deceased. PW-4 Jitendra is brother of the deceased and he has also stated similarly regarding dowry demand and harassment. There is no statement by him that after the birth of son, the deceased ever complained about dowry harassment. There is no evidence of any panchayat on this account between the parties nor there is any evidence that because of dowry demand and harassment, the deceased ever came to her parents and stayed there showing her unwillingness to go back, whereas these are common eventualities in such cases.

31. It is also important to note that PW-5 IO has stated that during investigation, he did not find any evidence regarding dowry demand and harassment. The learned trial court has criticized this this part of the statement on the basis that F.I.R. itself contains the allegation of dowry demand and harassment. But that allegation is based on what the deceased said to them one year before from her death. After the birth of son whether she made such complaint is no where on record. It has been nowhere stated by PW-1 and PW-4 that in the last one year, particularly after the birth of son she made such complaint.

32. Here, in this kind of situation, the delay in lodging FIR also becomes material. According to F.I.R., the informant got information of the death on 30.8.1996 at 8 P.M. The incident took place on 29.6.1996 in the night. The FIR has been lodged on 2.9.1996 at 7 PM. As per F.I.R., the informant reached there on 31.8.1996. Even then the F.I.R. was lodged on 2.9.1996 at 7 P.M. and it shows that from the date of incident , on the 5th day, and after information on 30.8.1996, on 4th day the F.I.R. was lodged. So, there is delay of 4 to 5 days in lodging the F.I.R., whereas, in the F.I.R., at the very out set, it has been stated that accused persons have killed the deceased and her son. There is no explanation of this delay, neither in F.I.R. nor in his statement. The delay in lodging F.I.R. is very vital as it gave opportunity for disposal/funeral of the dead body which led to a situation in which postmortem could not be conducted which was so necessary for the determination of cause of death. The consequence of this lapse will certainly effect the credibility of prosecution case.

33. Again, there is varying statement in respect of death of the deceased. The first allegation is that the accused person killed the deceased and her son. No witness examined by prosecution has established this fact nor any of them have seen accused persons causing death or murder. Another allegation is that the nephew of informant Kallu informed him about the death and informed that the son was ill and died in hospital and out of shock, his daughter also died. Kallu has not been examined though he was nephew of informant and has been shown in the list of witness in the charge-sheet. Thus prosecution has withheld a very important witness and adverse inference will be drawn against prosecution. The third allegation is that both died by burning themselves. The fourth allegation is that the accused persons killed both daughter and son and this has been further improved by informant in his on oath statement that they so did because of non-fulfillment of demand of dowry. This variation and inconsistency also adversely effects the credibility of the prosecution case.

34. On the contrary, the statement of PW-4 Jitendra also varies with F.I.R. version and the statement of PW-1. He says that the accused persons killed the deceased and her son by burning them on account of non-fulfillment of demand of dowry. In the F.I.R., one version is that both died by burning themselves but PW-1 has not supported it in his statement and has said that the accused persons killed them and caused disappearance of the dead bodies. He has stated that he did not see any accused burning them or killing them. In respect of death of son, PW-4 has stated that he does not know whether he was ill and died out of illness. He has not categorically denied it but has expressed his ignorance only. Regarding information of death, he has stated that they got information about death on 1.9.1996 when he and his father were in their village at District Itawa.. This is against F.I.R. version and statement of informant where it has been stated that he got the information on 30.8.1996. This is a very important contradiction and creates doubt on the credibility of both the witnesses.

35. PW-4 has further stated that he did not see any one killing his sister. They reached Police Station on 2.9.1996 at 11 A.M. and F.I.R. was lodged within one hour after reaching there in which it was written that the son of her sister died out of illness in hospital and his sister also died out of that shock. This contradicts the time of lodging F.I.R. which has been lodged at 7 P.M.. It appears that the learned trial court, for no reason recorded in the judgment, has ignored this material discrepancy and delay in lodging F.I.R. There is one more fact demonstrating that the relationship between him and appellant was very good which is not possible if his sister and accused were not happy with each other.

36. The accused in his statement as DW-1 has stated that Jitendra was living in Delhi with him and was learning tailoring with him. DW-2 Aneeta Devi has stated on oath that the brother of deceased, Jitendra (PW-1) was working with accused Mukesh in Delhi from the last two years from the date of death of her sister. DW-2 is sister in law of deceased and her husband settled the marriage of deceased with accused and she resides one and half km away from the house of the accused. PW-4 has stated that he lived in Delhi in 1994 prior to death of his sister and was learning tailoring. He and accused Mukesh were living there with his sister. After 15-20 days, Mukesh started doing some other work in Delhi. He has stated that Mukesh was working in Delhi till his sister died. This also shows that the relationship between the two was normal. This also shows that if the accused was living in Delhi there could be least opportunity for him to cause dowry harassment. When they all lived in Delhi, it has been nowhere stated by PW-4 that she was harassed by the accused. There is no evidence that the accused ever demanded dowry from or before PW-1 or PW-4. There is one more fact to be noticed that PW-4 has stated that he came to know that in the funeral of his sister, village people participated. This further demolishes the prosecution version that the accused caused the dead body to disappear. This also shows that the funeral took place publicly which is not possible if the death had been unnatural and in abnormal circumstances.

37. According to defence as stated by DW-1, after the death of her son out of illness, after about one and quarter month, the deceased died out of shock and illness. DW-2 has also stated the same thing. In Anil Sharma Vs. State of Jharkhand, (2004) 5 SCC 679, it has been held that an accused can examine himself u/s 315 SectionCr.P.C. as a defence witness and equal treatment should be given to the evidence of prosecution and defence. Standard and parameter for evaluation of evidence is the same whether it is a prosecution witness or defence witness. Unfortunately, the learned trial court has applied different yardstick for evaluation of defence witness and has expected that everything should be proved by defence by producing documentary evidence. When the accused himself as DW-1 and DW-2 have stated on oath that the son was sick and died out of illness more than a month before the death of deceased and in that shock the deceased fell ill and started suffering from fit attacks, the trial court has desired the same to be proved by treatment slip etc., whereas the F.I.R. contains the fact of death of son out of illness and thereafter death of deceased out of shock. There is no suggestion put by prosecution that the son did not die due to illness. In respect of treatment slip of wife (deceased), DW-1 has stated that the same was submitted in the High Court. There is no reason to disbelieve the witnesses on this point. No suggestion has been given to the witness on this point that no such treatment slip has been filed in the High Court.

38. It is admitted case of prosecution that none of the witnesses were present on spot at the time of death of the deceased or her son. PW-1 and PW-4 have admitted that they did not see the deceased dying and they cannot say who killed her or how she died. Prosecution version is not consistent regarding cause of death. The learned trial court has disbelieved the prosecution case on the point that the deceased was killed by accused and he caused the dead body to disappear. No witness who informed the informant or his family regarding death of deceased has been examined by the prosecution. There is no evidence that the death of deceased took place in unnatural circumstances. It is pertinent to mention that there is no presumption in law of unnatural death and there is always a presumption in favor of natural death unless those circumstances are established which lead to inference that death was unnatural and the victim died in abnormal circumstances. It has been stated by the informant that when he reached to the village of victim, he gathered information from the local people that they died by burning themselves. No such witness has been examined who gave such information to the informant. No sign have been found by I.O. during investigation of such burning in the house in terms of burn spot or consequent ashes or blackening nor it was shown by the complainant.

39. Moreover, two witnesses PW-2 and PW-3 who have been examined have not supported the prosecution case have turned hostile. PW-3 who happens to be Village Pradhan has stated that the son of accused was sick and died and in that shock his wife also died. He has further stated that he never heard about dowry demand and harassment by accused. PW-2 has also stated that Mukesh used to live in Delhi prior to his marriage and used to come to village sometimes. He heard that his wife died out of illness. Thus these to witnesses give support to defence version. It is true that in all cases it is not necessary that the dead body should be recovered and as such postmortem may not be possible. But in such kind of situation, evidence, direct or circumstantial, must be produced by prosecution which could lead to inference that some offence was committed in respect of dead person by accused. No witness who saw accused taking, handling or carrying the dead body in suspicious way has been examined to show that some offence was committed. There is variation in FIR version in respect of manner and cause of death and the statement of PW-1 and PW-4 on this point is based on hearsay, speculation and suspicion only. The fact that PW-4 was living with accused in Delhi and learning tailoring also shows normal relation. There is no evidence that accused ever demanded dowry from or before PW-1 and PW-4. It has been no where stated by witness that they were not informed about the death. It has been admitted by PW-4 that a public funeral took place and this fact has not been categorically denied by PW-1 when asked in cross-examination.

40. The delay of 4-5 days in lodging F.I.R. is very fatal in such case as it prevented the opportunity of postmortem which was so necessary for determination of cause of death. There is no evidence that the victim was put to cruelty and harassment soon before her death nor there is any evidence that dowry was demanded or cruelty was committed after the birth of son. The police did not find a case of dowry demand and dowry death and no charge-sheet was submitted for any such offence. On the basis of same evidence other accused persons have been already acquitted by the learned trial court. Where the basic ingredients of the offence of dowry death necessary for invoking presumption under Sectionsection 113-B of the Evidence Act was not proved, it was not valid for the court to shift burden on accused-appellant or use Sectionsection 106 of the Evidence Act to hold him guilty. In absence of any credible evidence, the conclusion of guilt against accused cannot be said to be justified under law.

41. On the basis of above discussion, I find that the impugned judgment is perverse and suffers from illegality and not sustainable under law and the impugned judgment and sentence is liable to be set aside.

42. The appeal is allowed. Judgment and order dated 31.08.2018, passed by XIIth Additional Sessions Judge, Agra, in Sessions Trial No. 17 of 1997, arising out of Case Crime No. 80 of 1996, convicting and sentencing the accused-appellant Mukesh under Sections 498A, Section304B I.P.C., Police Station Jaitpur, District Agra, is set aside and the accused-appellant Mukesh is acquitted from the said charge under Sectionsection 304-B/Section498-A IPC.

43. Accused-appellant Mukesh is directed to be released from jail forthwith.

44. The office is directed to transmit back the lower court record along with a copy of this judgment for information and necessary compliance.

Order Date :- 12.07.2019

sailesh

(Hon’ble Pradeep Kumar Srivastava, J.)