HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Court No. – 46

AFR

Case :- JAIL APPEAL No. – 1678 of 2014

Appellant :- Pramod Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail

Counsel for Respondent :- A.G.A.

Hon’ble Arvind Kumar Mishra-I,J.

Hon’ble Vivek Kumar Singh,J.

The instant jail appeal has been preferred by the appellant Pramod Kumar son of Ujagar, resident of Varkasi, Police Station Bela, District Auraiya, presently resident of 4/58 Ambedkarpuram, Police Station Kalyanpur, District Kanpur Nagar against the judgment and order of conviction dated 16.10.2012 passed by the Additional Sessions Judge, Court No. 7, Kanpur Nagar, in Session Trial No. 269 of 2009-State Vs. Pramod Kumar and others, arising out of Case Crime No. 1241 of 2008, under Sections 498A, 302 I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Kalyanpur, District Kanpur Nagar, whereby the appellant was sentenced to life imprisonment under Section 302 IPC coupled with fine Rs.5000/-, two years simple imprisonment coupled with fine Rs.3000/- under Section 498-A I.P.C. and six months simple imprisonment under Section 4 Dowry Prohibition Act and in case of default in payment of fine, additional six months imprisonment.

In this case, initially the charge under Section 302 I.P.C. was made in the alternative and the main charge was one under Section 304-B I.P.C.

Heard Dr. Abida Syed, learned amicus curiae for the appellant and Sri J.K. Upadhyay assisted by Sri Manoj Kumar Singh, Sri Virendra Kumar Maurya, Sri Dinesh Kumar Srivastava, Sri D.D. Chauhan and Sri Virendra Singh Rajbhar learned A.G.As. for the State and perused the record.

The factual matrix of this case as discernible from record and particularly from the first information report discloses fact that written report- Exhibit Ka-1 was lodged by the informant Vidyawati wife of Late Mool Chand, resident of Village Meghan, Police Station Rasoolabad, District Kanpur (Dehat) at Police Station Kalyanpur, District Kanpur Nagar on 23.11.2008 at 1:45 P.M. whereby she made specific allegations of dowry demand and the consequent dowry death committed by several persons including the appellant. The informant alleged in the written report that her daughter Kusuma was wedded to Pramod Kumar son of Ujagar, resident of Village Barkasi, Police Station Bela, District Auraiya, way back in June, 2002. Soon after the marriage, the appellant and his family members demanded dowry and tortured the victim. The victim when came back to her parental home, narrated to her mother about the demand of dowry being raised by the accused.

It has also been described in the written report that two sons were born out of the wedlock between the accused and the victim but the appellant and his family members persisted with the demand for dowry- time and again. Four months prior to the incident, the informant’s daughter was beaten and ousted from her Sasural (house in of in-laws) at 4/58 Ambedkarpuram, Awas Vikas-3. Thereafter, the victim started living with the informant at her home and in the meanwhile threatening telephonic calls were received by the victim. She was threatened to life. On 20.11.2018 the appellant and his family members came to the house of the informant and took the victim with them on promise that they will not cause any embarrassment to the victim. The incident took place in the intervening night of 22/23.11.2008. On 23.11.2008, the informant received a telephonic call to the effect that her daughter has been murdered. The informant reached the place of occurrence- i.e.- 4/58 Ambedkarpuram, Awas Vikas-3 where she found her daughter lying dead. The blood had oozed out from her mouth. This written report is Ext. Ka-1.

The contents of the written report were taken down in the concerned Check FIR at Case Crime No. 1241 of 2008 under Sections 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Kalyanpur, District Kanpur Nagar at 1.45 P.M. Check FIR is Ext. Ka-8. On the basis of the entry so made in the Check F.I.R., a case was registered against the accused in the concerned G.D. at Serial No.28 on 23.11.2008 at 1:45 P.M. at the aforesaid police station under aforesaid Sections of IPC and Dowry Prohibition Act. Copy of the general diary is Ext. Ka-9.

The record reflects that investigation of the case ensued soon after the lodging of the F.I.R. at Police Station Kalyanpur but the information of death of the victim was in the meanwhile conveyed to the concerned Additional City Magistrate of Kanpur Nagar, who being informed of the dowry death of the deceased Kusuma arrived on the spot and under the supervision of S.I. Mahaveer Singh got prepared the inquest report which is Exhibit Ka-2 and the inquest was completed on 23.11.2008 at 2.45 P.M. In the inquest, unanimous opinion was expressed by the inquest witnesses for conducting postmortem examination of the dead body of the deceased- Kusuma for ascertaining real cause of death, therefore, relevant papers were prepared and the dead body was sent for post-mortem examination at the mortuary at Kanpur Nagar. Postmortem examination was conducted by PW-4 Dr. N. Chandra on 24.11.2008 at 12.30 P.M. at mortuary Kanpur Nagar, wherein the following ante- mortem injuries were noted during examination:-

(1) Ligature mark 30 cm x 01 cm all around the neck, 4 cm below from chin and 5 cm below from right and left ears, underlying ligature mark. White glycerin present.

(2) Abraded contusion 1.5 cm x 1 cm on the right side chin.

In the opinion of the doctor, cause of death was stated to be asphyxia as a result of strangulation. The duration between the death and postmortem examination was rated about one and half days. The postmortem examination report was proved by Dr. N. Chandra- PW-4, as Exihibit Ka-7.

In the meanwhile, the investigation progressed and same was taken to its logical end by S.I. Vipin Kumar Mishra PW-3, who after noting the contents of the F.I.R. and the concerned general diary, recorded the statements of various persons and at the instance of informant prepared the site plan of place of occurrence which is Exhibit Ka-3. In the meanwhile, he also searched for the accused and arrested them and recorded their statements. He also took note of the contents of the inquest report and the postmortem report and after completing the investigation, filed charge sheet against accused Exhibit Ka-4.

Consequently, the case was committed to the court of Sessions from where it was transferred to the court of Additional Sessions Judge, Court No.1, Kanpur Nagar, after numbering the same as Session’s Trial No.269 of 2009, whereupon the trial court heard the accused on the point of charge and was prima facie satisfied with the case against accused under Sections 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act. Apart from that, charge was also framed under Section 302 IPC in the alternative. The charges were read over and explained to the accused, who abjured the charges and claimed to be tried.

The prosecution in order to bring home guilt of the accused examined as many as 6 prosecution witnesses. A brief reference of the witnesses is sketched as herein under:-

PW-1 Vidyawati is the informant and mother of the victim. She has lodged the written report Exhibit Ka-1. PW-2 Vinod Kumar is maternal uncle of the victim. He has turned hostile. PW-3 Vipin Kumar Mishra is the Investigating Officer. He has elaborated various steps he took in completing the investigation, and filing charge sheet against the accused. Dr. N. Chandra PW-4 has conducted postmortem examination on the dead body of the deceased and has proved the same as Ext. Ka-7. PW-5 Vijay Kumar is a constable. He has noted the contents of written report in the Check F.I.R. and in the concerned general diary and has proved the Check F.I.R. and the concerned general diary entry. PW-6 Vijay Singh is the brother of the deceased, he has proved the factum of marriage being performed between the deceased Kusuma and the appellant. But he has turned hostile.

Thereafter the evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C. wherein he has answered the certain specific questions and claimed his implication false on the ground of enmity. However, he has not made any disclosure regarding his false involvement.

The defence led oral testimony of DW-1 Suresh Babu and DW-2 Basudev. Thereafter evidence for the defence was closed.

As a sequel to the closure of evidence for the defence the case was posted for arguments. The trial court after hearing the case on its merit and after considering the record and evaluating evidence and circumstances recorded conviction against the accused and passed sentence against him as aforesaid.

Consequently, this appeal.

It has been vehemently argued by Dr. Abida Syed, learned amicus curiae for the appellant that the entire incident is shrouded in mystery as to how the victim died. It cannot be specifically and conclusively pointed out that the accused was the perpetrator of the crime as the accused had no motive to commit such ghastly crime. The allegations made by the prosecution are not specific regarding demand of dowry. The demand of dowry has been generated for false implication of the accused in this case. There is not an iota of evidence supporting fact of demand of dowry and fact of torture as mandated under Section 304-B I.P.C. For this specific reason the trial court, after appreciation of evidence, found it appropriate and convenient not to convict the appellant under Section 304-B I.P.C. but due to arbitrary and parochial approach, the appellant was illegally and erroneously convicted under Section 302 I.P.C. apart from Section 498-A I.P.C. and Section 4 Dowry Prohibition Act.

It has been added next that the judgment of conviction is based on imagination and the reasoning assigned for convicting the accused is based on conjecture and surmises which is not sustainable in the eye of law. The prosecution witnesses, particularly the mother, the brother and the maternal uncle of the victim have not supported the case of demand of dowry, thus the conviction recorded under Section 498-A I.P.C. is per-se illegal and not sustainable. The circumstances of the case have not been fully proved and established by the prosecution. Various links in the chain of circumstances are missing and the chain of circumstances is incomplete. The appellant neither bears any criminal history nor is he a previous convict.

While retorting to the aforesaid contentions raised by learned amicus curiae for the appellant, learned A.G.A. on behalf of the State, has submitted that the conviction was rightly recorded under Section 302 I.P.C. and the charge was framed in the alternative. After recording the evidence and considering the merit of the case, the trial court was of specific view that the ingredient of torturing the victim soon before her death or the fact of mal-treatment of the victim by the accused was in fact missing but founded the guilt of the accused primarily under Section 302 I.P.C. on the ground that all the prosecution witnesses of fact though not supporting the case of demand of dowry have invariably testified to the ambit that the accused was residing with the victim at the time of the occurrence (in the intervening night of 22/23.11.2008). The accused being husband of the victim has not come out with any satisfactory explanation as to under what circumstance strangulation was caused to the victim.

Learned AGA has further elaborated that the other attendant circumstances also supported the case of the prosecution which is very much on record. PW-2 Vinod Kumar-the maternal uncle of the victim though not supporting the prosecution case has turned hostile, for the reason that the case has been compromised between the accused and the family members of the deceased outside the court but he (PW-2) has categorically stated, as is reflected on page 24 of the paper book, that after reaching to the place of occurrence, this witness telephonically informed the accused about the death of the victim who on being informed about the death of his wife (the victim) suddenly switched off his mobile/phone and thereafter absconded and did not return to the spot (the place of occurrence). This particular fact is established beyond doubt, as is reflected from the contents of the inquest report, that no one of the family members- including the accused- was present on the spot at the time of preparation of the inquest report. Can it be expected of a husband, whose wife has been reportedly dead, will abscond from his house- the place of occurrence and will not return to the place of occurrence where the death (of his wife) took place. This is abnormal conduct of the accused which conduct raises question-mark on the intent and knowledge of the accused.

Learned A.G.A. has also drawn our attention to the various aspects of the case and has claimed that there is no eye witness account of the incident but it is admitted that the death of the victim is unnatural. Dr. N. Chandra has not been put any specific question in his cross-examination on the point that the death in fact was natural one.

Learned A.G.A. also took assistance of the statements of the prosecution witnesses, who were produced before the trial court, recorded under Section 161 Cr.P.C. and claimed that they deviated from their statements under Section 161 Cr.P.C., for specific reason that a compromise was arrived at between the accused and the family members of the deceased outside the court which aspect has also been considered by the trial court. Specific suggestion about such compromise has been given by the prosecution to the prosecution witnesses of fact after they were declared hostile.

Learned AGA has summed up that the trial court has rightly evaluated the testimony on record and after recording clear cut finding has based its findings of conviction on material on record. Some variation in the testimony of the witnesses of fact is natural one, but variation in the testimony is not of a degree and magnitude which may over throw case of the prosecution. Finding of conviction and the sentence awarded under the circumstances, of the case is justified.

Upon consideration of the rival submissions so raised and the claim made by both the sides, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been successful in establishing charges under Sections 302, 498A IPC and and Section 4 Dowry Prohibition Act beyond shadow of reasonable doubt against the appellant?

Before we advert to the merit of the case, it can be conveniently observed that the death of the victim is admitted to both the sides. So far as the contents of the postmortem examination report (Ext. Ka-7) as proved by Dr. N. Chandra PW-4 are concerned, it signifies that the death of the deceased is not natural but specific ante-mortem injuries have been noted in the postmortem examination report by the doctor which injuries have been affirmed by explicit opinion that the death of the deceased is/was unnatural. This fact situation specifically proved by the doctor has not been challenged by the defence and it becomes a fact admitted to the defence.

Now coming to the meritorial aspect of the case, we may observe that it is a case based on circumstantial evidence as there is no eye account testimony of the occurrence. We can cut short our appreciation by analysing testimony of the prosecution witnesses- particularly PW-1 Vidyawati, PW-2 Vinod Kumar and PW-6 Vijay Singh- who have categorically stated that the accused alone was residing with the victim. Admittedly, the accused is none other than the husband of the victim and he was residing with the victim. He was having physical custody of his wife. We can again cut short our appreciation by observing that the accused has not come out with any specific explanation as to how and under what circumstances the incident took place. Surprisingly he has not claimed his absence from the place of occurrence on the night intervening 22/23.11.2008.

In the backdrop of the aforesaid specific fact situation, we upon careful consideration of the reply/statement given/made by the accused to specific question nos. 12, 13 and 14 put to him under Section 313 Cr.P.C. by the trial court, gather that he did not furnish any plausible reason or explanation about his whereabout or absence from the place of occurrence at the relevant point of time. Once evidence has been tendered before the trial court by producing six prosecution witnesses whereby certain fact situation stood proved to the peril of the accused then the initial burden of proof rested on the prosecution stood discharged and it, in turn, shifted on the accused at least to the import and magnitude to explain the specific fact as to what happened in the night intervening 22/23.11.2008 which resulted into death of the victim. Here, it is relevant to mention that the cause of death has been explained in the postmortem report to be Asphyxia due to ante-mortem strangulation.

It is trite law that the accused is not required to explain as to how the victim died in the first instance. Mere presence of the accused at the spot would not ipso-facto be the basis of his conviction but in case certain vital aspects in the shape of fact situation which are required to be proved by the prosecution, are reasonably proved by it then the onus so rested on the prosecution at the initial stage stood discharged by the prosecution. In this case initial burden of proof has been elaborately and reasonably discharged by the prosecution. Now nothing more remains to be proved. Death by strangulation of the victim now becomes especial and particular fact and will be attributed to be with especial knowledge of the accused. He is required to explain that particular aspect

Specific circumstances deserve mention at this juncture; that the victim was wedded to the accused, the accused alone was residing with the victim at the time of her death in the house at Ambedkarpuram. The death in question is homicidal and not natural. The victim was in the custody of her husband-the accused-at the time of her death. The incident occurred in the night intervening 22/23.11.2008 and the accused when informed telephonically about death of his wife by PW-2 Vinod Kumar did not return to the spot (his house at Ambedkarpuram) and remained at large, till he was arrested by the I.O.-Vipin Kumar Mishra-PW-3.

The prosecution witnesses have proved the above fact situations regarding relationship between the accused and the deceased, they being husband and wife resided together under the same roof. The death in question was due to asphyxia as a result of strangulation. Under such proved circumstances, it is noticeable that the aforesaid prosecution witnesses of fact PW-1, PW-2 and PW-6 though deviated from their statement recorded under Section 161 Cr.P.C. and have denied the fact of dowry demand being raised by the accused, have pointed out in crystal clear terms that the accused alone resided with the victim. Once these specific facts were proved by the prosecution witnesses then the prosecution discharged its initial burden of proof and at this point, nothing more was expected of it

Now fact of death/strangulation of the deceased would be imputed to be within the especial knowledge of the accused as to what led to the death of the victim inside the house on the fateful day, but no explanation, of any sort, was given by him. His silence at this juncture is intriguing.

Now it was incumbent on the accused in his capacity of being the husband of the deceased to have come out with specific, genuine and reasonable explanation about his whereabouts on the fateful day of occurrence if he was not present in his home in the aforesaid intervening night (22/23.11.2008) or to give specific explanation as to how the death of the deceased took place by strangulation. These two aspects cannot be proved by leading any ocular testimony/evidence by the prosecution because this particular aspect is purely based on circumstantial evidence as eye account testimony of the death of the victim is not there. The burden of proof so shifted and rested on the accused has not been discharged by the accused-even in the least.

We can conveniently hold that in this case, dowry demand was raised by the accused soon after the marriage of the deceased took place with the accused and after two children were born out of their (accused and the victim) wedlock, the demand of dowry continued, due to which four months prior to the incident the deceased was ousted from her in-laws house and the victim started living with the informant at her home.

In the meanwhile, as per the description contained in the F.I.R. demand of dowry continued though through telephonic calls. Now the point is that the version of the first information report was denied by PW-1 Vidyawati on the ground that she got the report lodged at the instance of the villagers but the entire testimony of PW-1 when taken as a whole gives two colours of the evidence. It is noticeable that she stood intact in her examination-in-chief and confirmed to her statement under Section 161 Cr.P.C. but she turned hostile during her cross examination which took place after gap of some time. She has been won over by the defence.

Assuming it to be that the testimony of PW-1 regarding her claim that she got the report lodged at the instance of the villagers does not sound well, for the reason that in case the contents of the written report Exhibit Ka-1 were written by the scribe Vijay Kumar were not read over and explained to her as she claimed in her cross examination, but she has narrated virtually the same version in her examination-in-chief as contained in the F.I.R. and in her statement under Section 161 Cr.P.C., which aspect goes to give strength to the suggestion made by the prosecution that the effort to get the case compromised outside the court was a plausible reason for her turning hostile in her cross-examination. The consistency of evidence given by Vidyawati in her examination-in-chief inspires confidence regarding fact of dowry demand being raised by the accused and the fact that the accused alone was residing with the victim. Statement of PW-1 recorded under Section 161 Cr.P.C. also matches with her testimony given in examination-in-chief. There is no worthy reason for disbelieving testimony of PW-1 as recorded in her examination-in-chief. On the contrary her testimony takes ‘U’ turn in her cross-examination which makes that specific cross-examination testimony shaky, vacillating and tutored one.

The other factual witnesses appear to have colluded with PW-1 and were interested in ensuring exoneration of the accused from the charges. They being interested witnesses on the point of fact of dowry demand and on the point of complicity of the accused in the crime cannot be said to be worthy of their credit. They are deliberately not telling the truth. Therefore, their testimony on the point of their being hostile can be ignored.

We are conscious of the fact that in our country, the maxim-falsus in uno, falsus in omnibus – false in part, false in all- in analyzing and scrutinizing the testimony of a witness is not applicable. In our country, the piece of testimony which appears to be and is found to be truthful version and separable from his testimony can be taken and utilized by the courts and can form basis of conviction. Thus, it is obvious that the only condition regarding such testimony is that the evidence so tendered is separable from the rest of the evidence given by the witness, and which appears to be truthful version. Here testimony of PW-1 given in her examination-in-chief carries element of truth and the same is taken to be truthful version of the witness.

Now we may also advert to the testimony of the doctor-PW-4 when he has testified in his cross examination that the death in question was due to Asphyxia as a result of strangulation. At the cost of repetition we can ingeminate that once the prosecution has discharged its initial burden of proof and nothing more remained to be proved by the prosecution, then the burden of proof by virtue of Section 106 of the Indian Evidence Act shifted on the accused. Now it was incumbent on the accused to have come out with explanation about the specific circumstance as to how the victim was strangulated to death. The subsequent burden of proof so shifted on the accused was not discharged by him. Abysmal silence of the accused regarding knowledge of a particular and especial fact imputes him with culpability and becomes a conclusive circumstance against him giving way to the inescapable conclusion that he alone is the perpetrator of the crime.

Now in so far as the plea of malice or ill-will imputed against the prosecution witnesses by the accused is concerned, we after careful perusal of the testimony of the prosecution witnesses of fact and the various attendant circumstances of this case, do not find existence of any ill-will or malice working in the mind of the prosecution witnesses which motivated them to falsely implicate the accused with false allegations in this case. No specific reason has been assigned by the accused that because of any particular reason, the prosecution witnesses of fact had grudge against him and were interested in ensuring his conviction leaving the real culprit scot-free. At this stage, it can be conveniently observed that the Investigating Officer carried out the investigation in the right prospective and he filed charge sheet against the accused and it cannot be said that the investigation is either tainted or was unfair and guided with malice or ill-will against the the accused and the I.O. was any how interested in ensuring his conviction.

While parting with this judgment, we would endeavour to make our appreciation of the two defence witnesses produced by the accused. DW-1 is Suresh Babu and DW-2 is Basudev. Their testimony when read together and as a whole, does not come to the rescue of the accused. However, they have categorically stated that Pramod Kumar resided with his wife at Kanpur Nagar and his relatives were not residing with him but they were residing in their village. It is surprising that both the defence witnesses have not come up with any piece of testimony which may alienate presence of the accused from the place of occurrence in the fateful intervening night of 22/23.11.2008. For the reasons aforesaid, their testimony is of no help.

The trial court while appraising the facts and evaluating the evidence on record has recorded just finding of conviction under Sections 302 and 498A I.P.C. and Section 4 Dowry Prohibition Act which finding of conviction and the sentence imposed is hereby affirmed.

Consequently, this appeal lacks merit and is dismissed, accordingly.

In this case, the accused-appellant is languishing in jail, therefore, no consequential order need be passed. He will suffer the sentence so imposed on him by the trial court.

Let a copy of this order be certified to the court concerned for ensuring compliance.

Order Date :- 29.6.2018

Rmk.