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Rajesh Jha vs State Of U.P. on 26 April, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

A.F.R.

Court No. 4

Case :- CRIMINAL APPEAL No. – 4467 of 2012

Appellant :- Rajesh Jha

Respondent :- State Of U.P.

Counsel for Appellant :- H.N. Singh,Arun Kumar Singh,Brijesh Sahai,Virendra Kumar Maurya

Counsel for Respondent :- Govt. Advocate

Hon’ble Bala Krishna Narayana,J.

Hon’ble Ghandikota Sri Devi,J.

Per Hon’ble B. K. Narayana, J.

Heard Sri Brijesh Sahai, assisted by Sri Bhavya Sahai, learned counsel for the appellant and Smt. Manju Thakur, learned A. G. A.-I for the State.

This criminal appeal has been preferred by appellant, Rajesh Jha against the judgement and order dated 18.10.2012 passed by the Additional District Sessions Judge, Court No. 7, Ghaziabad in S. T. No. 854 of 2009; State Versus Rajesh Jha convicting the appellant and sentencing him to undergo imprisonment for life u/s 304-B I. P. C., three years simple imprisonment and a fine of Rs. 10,000/- and in case of default in payment of fine, three months additional simple imprisonment u/s 498A I. P. C., one year simple imprisonment and a fine of Rs. 5,000/- and in case of default in payment of fine, one month additional simple imprisonment u/s 4 of SectionDowry Prohibition Act. All the sentences were directed to run concurrently.

Upon being charge-sheeted, Chief Judicial Magistrate, Ghaziabad committed the accused Rajesh Jha for trial to the Court of Sessions Judge, Ghaziabad where the case was registered as S. T. No. 854 of 2009; State Versus Rajesh Jha and made over for trial from there to the Court of Additional District Sessions Judge, Court No. 7, Ghaziabad who on the basis of the material on record and after hearing the prosecution as well as the accused on the point of charge, framed charge u/s 498-A, 120-B, 304-B I. P. C. and Section 4 of Dowry Prohibition Act. The accused abjured the charges framed against him and claimed trial.

The prosecution in order to prove the charges framed against the accused examined six witnesses out of whom P. W. 1 Krishna Madhav Jha was examined as witness of fact while P. W. 2 Dr. Anil Prakash, P. W. 3 Jai Prakash Yadav, Naib Tehsildar, P. W. 4 Rahul Srivastava, Circle Officer, P. W. 5 Dinesh Kumar, Head Moharrir and P. W. 6 Dr. Ashok Kumar Goyal were produced as formal witnesses.

The prosecution in addition to oral evidence, adduced documentary evidence as well, which has been referred to and dealt with in great detail by the trial court and which need not be reproduced herein and to which we shall refer to as and when the context so requires.

After closing of the prosecution case, the statement of the appellant u/s 313 Cr. P. C. was recorded. He stated that he had never tortured or maltreated his wife Anuradha for additional dowry or otherwise. He stated that she was ambitious and short-tempered and wanted to work. Since, his financial condition was good enough and he had small children, he had forced her to quit her job on account of which his wife had committed suicide. He examined Rajesh Jha, Deepak Yadav and Dr. Nishar as D. W. 1, D. W. 2 and D. W. 3.

Learned Additional District Sessions Judge, Court No. 7, Ghaziabad after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted the appellant and awarded aforesaid sentences to him.

Hence, this appeal.

The appellant had challenged the impugned judgement and order dated 18.10.2012 before this Court by means of this appeal, which was allowed by a Division Bench of this Court comprising of Hon’ble Vikram Nath, J. and Hon’ble Pratyush Kumar, J. (as His Lordship then was) vide judgement and order dated 27.7.2015. The operative portion of the order dated 27.7.2015 runs as hereunder:

“Accordingly, the appeal is allowed. Impugned judgment and orders dated 18.10.2012 are set aside. The Sessions Trial No. 854 of 2009 (SectionState vs. Rajesh Jha) is remanded back to the trial Court with the direction that a charge under Section 302 I.P.C also be framed against the present appellant and thereafter the trial court may proceed in accordance with provisions contained in Section 216 Cr.P.C. The trial court is directed to ensure presence of the witnesses in advance and proceed with the trial on day to day basis. We expect that efforts should be made to conclude the trial as early as possible preferably within three months. We also grant liberty to the present appellant to move his bail application, if he so desires, before the Court of Session, Ghaziabad. Who shall consider it in the light of subsequent events and material available on record.

Office is directed to send the record along with a copy of the judgment to the trial court within thirty days. ”

It appears that the appellant filed Criminal Appeal No. 757 of 2018; Rajesh Jha Versus The State of Uttar Pradesh, arising out of S. L. P. (Crl.) No. 5091 of 2016 against the aforesaid judgement before the Apex Court. The Hon’ble Apex Court disposed of Criminal Appeal No. 757 of 2018 by the following order passed on 16.5.2018, which is reproduced hereunder:

“Leave granted.

We have heard learned counsel for the parties and perused the record.

In view of the judgement in “SectionJasvinder Saini Ors. V. State (Government of NCT of Delhi), (2013) 7 SCC 256”, the impugned order is set aside. The matter is remanded to the High Court. The High Court may decide the matter on merits in accordance with law.

In view of the fact that appellant has already been in custody for more than seven years as stated by learned counsel for the parties, the appeal may be decided as far as possible within three months from the date of receipt of a copy of this order.

The appeal is disposed of in above terms.”

From the perusal of the judgement and order dated 27.7.2015 passed by this Court in this criminal appeal, it appears that the Division Bench comprising of Hon’ble Vikram Nath, J. and Hon’ble Pratyush Kumar, J. (as His Lordship then was) which has passed the aforesaid judgement had allowed this appeal and after setting aside the impugned judgement and order, had remanded the matter back to the trial court with the direction to frame charge under Section 302 I. P. C. also and proceed with the trial thereafter strictly in accordance with the provisions of Section 216 Cr. P. C. It appears that the Division Bench after going through the evidence on record was of the view that since the evidence on record indicated commission of offence under Section 302 I. P. C., it was imperative that he should be tried under Section 302 I. P. C. as well with regard to which, no charge was framed by the trial Judge despite the following direction issued by the Hon’ble Apex Court vide judgement and order dated 22.11.2010 in the case of Rajbeer alias Raju and another Vs. State of Haryana :-

“We further direct all trial courts in India to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such henious and barbaric crimes against women.

Copy of this order be sent to Registrar Generals/Registrars of all High Courts, which will circulate it to all trial courts.”

A reading of the judgement and order dated 27.7.2015 passed by the Division Bench of this Court in this appeal further indicates that the Division Bench had not examined the case of the appellant or the State on merits as from the very inception the Division Bench was inclined to remand the matter to the trial court for framing charge under Section 302 I. P. C. also in addition to the charges under other sections.

A plain reading of the order of the Apex Court reveals that the Apex Court had set aside the order impugned in view of the SectionJasvinder Saini Ors. V. State (Government of NCT of Delhi), (2013) 7 SCC 256 and remanded the matter back to the High Court with a direction to decide the appeal on merits in accordance with law.

It appears that the order dated 22.11.2010 passed in Rajbeer alias Raju (supra) was examined by the Apex Court in Jasvinder Saini (supra) and the following observations made therein which are germane to our purpose, are being reproduced hereinbelow:

“13. Be that as it may the common thread running through both the orders is that this Court had in Rajbirs case (supra) directed the addition of a charge under Section 302 IPC to every case in which the accused are charged with Section 304-B. That was not, in our opinion, the true purport of the order passed by this Court. The direction was not meant to be followed mechanically and without due regard to the nature of the evidence available in the case. All that this Court meant to say was that in a case where a charge alleging dowry death is framed, a charge under Section 302 can also be framed if the evidence otherwise permits. No other meaning could be deduced from the order of this Court. It is common ground that a charge under Section 304B IPC is not a substitute for a charge of murder punishable under Section 302. As in the case of murder in every case under Section 304B also there is a death involved. The question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima facie support a charge under Section 302 IPC the trial Court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the Court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304B is established. The ingredients constituting the two offences are different, thereby demanding appreciation of evidence from the perspective relevant to such ingredients. The trial Court in that view of the matter acted mechanically for it framed an additional charge under Section 302 IPC without adverting to the evidence adduced in the case and simply on the basis of the direction issued in Rajbirs case (supra). The High Court no doubt made a half hearted attempt to justify the framing of the charge independent of the directions in Rajbirs case (supra), but it would have been more appropriate to remit the matter back to the trial Court for fresh orders rather than lending support to it in the manner done by the High Court.

14. In the light of what we have said above, the order passed by the trial Court and so also that passed by the High Court are clearly untenableand shall have to be set aside. That would not, however, prevent the trial Court from re-examining the question of framing a charge under Section 302 IPC against the appellant and passing an appropriate order if upon a prima facie appraisal of the evidence adduced before it, the trial Court comes to the conclusion that there is any room for doing so. The trial Court would in that regard keep in view the decision of this Court in SectionHasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 where this Court has recognized the principle that in cases where the trial Court upon a consideration of broad probabilities of the case based upon total effect of the evidence and documents produced, is satisfied that any addition or alteration of the charge is necessary, it is free to do so. Reference may also be made to the decisions of this Court in SectionIshwarchand Amichand Govadia and Ors. v. State of Maharashtra and Anr. (2006) 10 SCC 322 and the decision of the Calcutta High Court in SectionRajendra Singh Sethia v. State and Ors. 1989 Cri. L. J. 255 and that delivered by the Allahabad High Court in SectionShiv Nandan and Ors. v. State of U.P. 2005 Cri. L.J 3047 which too are to the same effect. In any such fresh exercise which the trial Court may undertake, it shall remain uninfluenced by the observations made by the High Court on merits of the case including those touching the probative value of the autopsy surgeons opinion.”

What follows is that the charge under Section 302 I. P. C. is not required to be framed mechanically where an accused is facing trial under Section 304B I. P. C. on the basis of the directions issued by the Apex Court in the case of Rajbeer alias Raju (supra) alone unless the court upon consideration of broad probabilities of the case based upon evidence on record is satisfied that any addition or alteration of charge is imperative.

Record of this case shows that Anuradha, the daughter of P. W. 1 informant Krishna Madhav Jha was married with the appellant Rajesh Jha on 13.6.2004. Immediately after marriage, the appellant who was a drug addict and alcoholic, started torturing his wife Anuradha for having brought inadequate dowry. The couple had two children namely, Adi and Bony. On the date of the incident, i. e. 22.3.2009 at about 8.00 A. M. Rajesh Jha informed P. W. 1 informant Krishna Madhav Jha, father of Anuradha that his daughter was no more. P. W. 1 informant Krishna Madhav Jha gave a written report (Ext. Ka 1) at P. S.-Indirapuram alleging dowry death of his daughter at the hands of the appellant. On the basis of the written report (Ext. Ka 1), chik F. I. R. (Ext. Ka 12) was scribed and case was registered as Case Crime No. 621 of 2009, under Sections-498A, 304B and 120-B I. P. C. and Sections- 3/4 of SectionDowry Prohibition Act at P. S.-Indirapuram, district-Ghaziabad. Investigation was started by P. W. 4 Rahul Srivastava, Investigating Officer of the case, who reached the place of incident on 22.3.2009 and after inspecting the same, prepared its site plan (Ext. Ka 9). At the instance of P. W. 1 informant Krishna Madhav Jha on the same day, he seized two photographs and one compact disc (C. D.) containing video film of the couple’s marriage and prepared its recovery memo (Ext. Ka 10). After holding inquest on the body of the deceased on the same day, he prepared the inquest report (Ext. Ka 4) and other related documents. After completing the inquest proceedings, he got the dead body of the deceased dispatched to the mortuary for postmortem examination.

P. W. 2 Dr. Anil Prakash who had conducted the postmortem on the body of the deceased on 23.3.2009 at 1 P.M. proved his postmortem report as (Ext. Ka 3). The postmortem report of the deceased indicates following ante mortem injuries on the body of the deceased :-

1. Abrasion 0.5 cm x 0.2 cm near right pinna.

2. Abrasion 0.5 cm x 0.5 cm on front surface of the (left) leg 20 cm below knee joint.

3. Contusion 2 cm x 2 cm on back surface of right leg, 8 cm above ankle joint.

According to P.W.2 Dr. Anil Prakash, the cause of death was asphyxia due to smothering.

P. W. 3 Jai Prakash Yadav, Naib Tehsildar who had conducted the inquest proceedings on 23.3.2009, proved the inquest report and accompanying papers as (Ext. Ka 4 to Ext. Ka 8).

P. W. 4 Rahul Srivastava, the Investigating Officer of the case after completing the investigation, filed charge-sheet (Ext. Ka 11) before the Chief Judicial Magistrate, Ghaziabad. The Investigating Officer / Dy. S. P. in his statement disclosed the various steps taken by him during the course of investigation. He proved the site plan (Ext. Ka 9) prepared by him, recovery memo of papers and articles given to him by P. W. 1 informant Krishna Madhav Jha and had identified the same as (Ext. Ka 10). The aforesaid papers and articles were exhibited as material Exhibit Nos. 1 to 24. He also proved the charge-sheet (Ext. Ka 11). Photographs and C. D. of the marriage were exhibited as material Exhibit Nos. 25 and 27 respectively.

P. W. 5 Head Constable Dinesh Kumar had scribed the chik F. I. R. (Ext. Ka 12) and made entries in the General Diary vide rapat no. 28 time 12.30 hours on 22.03.2009 (Ext. Ka 13).

P. W. 6 Dr. Ashok Kumar Goyal, the then Emergency Medical Officer at M. M. G., Hospital, Ghaziabad had medically examined the appellant on 24.03.2009 brought to him by Constable Hari Shankar on the request of S. O., P. S.-Indirapuram, Ghaziabad. He deposed that he had examined the appellant at about 2.30 P. M. and prepared his injury report. According to P. W. 6 Dr. Ashok Kumar Goyal at the time of medical examination, on the body of the appellant following injuries were found :

1. Blue contusion 6 cm x 4-1/2 cm in front of left forearm 6 cm above left wrist joint oval with teeth mark, 3 cm above and below the contusion.

2. Blue contusion 4 cm x 2 cm in front left forearm 7 cm below elbow joint.

3. Blue contusion 3 cm x 2 cm in front of right upper arm 2 cm above elbow joint.

According to P. W. 6 Dr. Ashok Kumar Goyal, duration of the injuries was estimated to be three days old and their nature was simple.

The prosecution in order to prove the charge framed against the appellant had examined P. W. 1 informant Krishna Madhav Jha as the sole witness of fact. He in his statement recorded before the trial court supported the version contained in the written report (Ext. Ka 1). He further disclosed the details of the amount spent by him on the marriage of his daughter Anuradha on account of the conduct of the appellant. He also proved a document allegedly written by the appellant with some endorsement made by the deceased in english, which was brought on record and proved as (Ext. Ka 2) which indicates that the appellant and his wife had agreed for separation prior to divorce by mutual consent. The endorsement made by the deceased is to the following effect:

“Please do not torture me any more, otherwise I will call the cops. I am not going to sign any document. I want a healthy life all in favour of my kids.”

In his statement recorded under Section 313 Cr. P. C., the appellant has denied the fact that he had tortured his wife Anuradha for dowry or for any other reason. According to him, P. W. 1 informant Krishna Madhav Jha has given false statement about his marital or personal life. He has claimed that Anuradha had committed suicide and false report was lodged by the first informant. All the payments claimed to be made by the first informant were actually made by him. Postmortem report has been wrongly prepared in collusion with the first informant. He has denied that Exhibit (Ka-2) was written by him or Anuradha. He claims that F.I.R was anti-timed. His medical examination was a procured one and as the first informant wants to grab his movable and immovable property, for this reason false prosecution has been launched. His wife was very ambitious and short-tempered. She wanted to pursue her career but for the welfare of small children, he did not permit her to accept any low paid job as his financial condition was very good. On account of this frustration, she had committed suicide.

Rajesh Jha also appeared as D. W. 1 and elaborated his earlier statement on oath with further details about his financial condition and payments claimed to be made by him.

Deepak Yadav D. W. 2 is the President of Resident Welfare Association where the present appellant and the deceased used to reside. According to this witness, relations between the present appellant and his wife (deceased) were very good. As per his knowledge, the appellant never tortured or treated his wife with cruelty. On 22.03.2009 at 08:00 a.m., he was telephonically informed by the present appellant that his wife Anuradha had ended her life. When he reached his house, the appellant was weeping.

Dr. Nishar D. W. 3 is the witness of the fact that on 24.01.2005, Smt. Anuradha Jha was brought by her husband Rajesh Jha to the hospital due to her taking over dose of anti-depressants. He has proved the page 1 of the treatment report as Exhibit (Kha-1). He has further, stated that Anuradha was referred to Dr. Ramjeet Jaiswal, a Psychiatrist who endorsed his opinion as Exhibit (Kha-2). Thereafter he proved the opinion of Dr. Mukesh Gupta as Exhibit (Kha-3), observation notes of Dr. Faiyaz as Exhibit (Kha-4), Dr. Meenakshi Seth as Exhibit (Kha-5), Dr. Ankit Gupta as Exhibit (Kha-6), Dr. Amit Gupta as Exhibit (Kha-7), observation noted by Dr. Ramjeet Jaiswal as Exhibit (Kha-8) and advice for discharge signed by Dr. Faiyaz as Exhibit (Kha-9). He has also proved the record of the treatment of Smt. Anuradha Jha as Exhibit (Kha-10) and filed it before the Court.

Following questions arise for our consideration :-

Whether on the evidence on record and upon consideration of broad probabilities of the case, charge under Section 302 I. P. C. is liable to be framed against the appellant and if our reply is in the negative, whether the prosecution has succeeded in proving the charges framed against the appellant under Section-304B and 498A I. P. C. and Section-4 of Dowry Prohibition Act beyond all reasonable doubts or not ?

In order to ascertain whether the charge under Section-302 I. P. C. is required to be framed against the appellant, a prima facie appraisal of the testimony of P. W. 1 informant Krishna Madhav Jha and the medical evidence on record is imperative.

Upon a careful appraisal of the material on record, we find that in the F. I. R., which was lodged by P. W. 1 Krishna Madhav Jha, it has been stated by him in no certain terms that he believed that Rajesh Jha had killed his daughter and with a view to misguide, he had put a noose around her neck. At the same time, in the F. I. R. it is also alleged that soon after his marriage with informant’s daughter, Anuradha, Rajesh Jha had started maltreating and torturing his wife for having brought inadequate dowry.

P. W. 1 informant Krishna Madhav Jha in his examination-in-chief has fully supported the prosecution case as spelt out in the F. I. R. In his evidence he has also given the instances of demand of dowry made by the appellant from him. He had also deposed that when he had reached her matrimonial home after receiving news of her death, he saw the dead body of his daughter lying on the floor of her bed room while Rajesh Jha was sitting on a sofa enjoying “Gutkha”. He told him that his daughter had committed suicide and police personnel were also sitting inside the house.

The inquest report (Ext. Ka 4) of the deceased which has been brought on record indicates that the inquest witnesses had noticed mark of one injury on the right ear of the deceased and blue marks on her neck and body and in their opinion, the deceased had been smothered to death by appellant Rajesh Jha. The postmortem on the dead body of Anuradha was conducted by P. W. 2 Dr. Anil Prakash, who also prepared her postmortem report (Ext. Ka 3).

According to P. W. 2 Dr. Anil Prakash, the cause of death was asphyxia, as a result of smothering. P. W. 2 Dr. Anil Prakash in his cross examination at page 42 of the paper-book further deposed that the signs of death by ante mortem hanging and death by smothering are different. He deposed that if the death is caused on account of asphyxia as a result of smothering and hanging, in that case, condition of the internal organs will remain same but the marks of injury would be possible in a case of death by hanging. Small marks of injury would also be possible on the external part of neck and the internal part like tricia and muscles of neck. He denied the suggestion given to him that the cause of death of deceased was other than due to smothering.

Perusal of the evidence of P. W. 1 informant Krishna Madhav Jha, P. W. 2 Dr. Anil Prakash, inquest report (Ext. Ka 4) and postmortem report (Ext. Ka 3) of the deceased leaves no room about any doubt that her death was homicidal.

The question, which arises is that whether every dowry death which is not on account of ante mortem hanging and which is shown to be a suicide, will amount to culpable homicide amounting to murder ?

The dowry death defined in Section 304B I. P. C. evinces that where the death occurs within seven years of the marriage, which is unnatural and it is proved that soon before her death, the victim was tortured in connection with any demand of dowry, the same shall constitute a dowry death. The purpose for framing additional charge under Section 302 I. P. C. by the Court in a case where the accused is being tried for the offence under Sections-304B and 498A I. P. C. and under the provisions of Section 4 of Dowry Prohibition Act appears to be that even if the prosecution fails to prove the charge under Section 498A I. P. C. or that the deceased was tortured in connection with any demand of dowry soon before her death, the accused may not go scot-free and if the ingredients of Section 302 I. P. C. are proved by the prosecution against him, he may accordingly be convicted and sentenced under Section 302 I. P. C.

Another purpose for framing the charge under Section 302 I. P. C. seems to be where the dowry death appears to have been caused in such a brutal and diabolic manner that it shocks the human conscience, the maximum punishment of imprisonment for life prescribed on conviction under Section 304B I. P. C. in such a case, may not be sufficient to meet the ends of justice and warrant imposition of death penalty. Framing of alternative charge under Section 302 I. P. C. shall facilitate the Court to award capital punishment in an appropriate case of dowry death.

In the present case, we have no hesitation in holding that the death of the deceased is culpable homicide amounting to murder but at the same time, there is no evidence on record indicating that the instant case falls under the category of rarest of rare case which warrants award of capital punishment to the appellant. Even if the matter is remitted back to the trial court for a fresh trial of the accused after framing alternative charge under Section 302 I. P. C. against him and even if the charge is found to be proved, we do not feel that the same shall invite the imposition of capital punishment on the accused. The appellant has already been sentenced to imprisonment for life which is the maximum sentence which can be awarded upon the conviction of the appellant under Section 304B I. P. C. and also normally in most of the cases where convictions are recorded under Section 302 I. P. C. Hence we are of the firm view that no useful purpose shall be served by setting aside the judgement and order impugned before us and remanding the case to the trial court with the direction to frame charge under Section 302 I. P. C. also against the appellant and thereafter proceed with the trial.

We, therefore, advert to the next question i. e. whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts or not ?

It is fully established from the evidence of P. W. 1 informant Krishna Madhav Jha, father of the deceased Anuradha that immediately after her marriage with Rajesh Jha, his daughter Anuradha was subjected to torture at his hands for having brought inadequate dowry. He has also deposed that he was an alcoholic. He used to return to his home drunk and beat his wife. The couple had two children. His daughter had left her matrimonial home thrice and on all the three occasions after seeking forgiveness and swearing that he would not maltreat her, he took back Anuradha with him. He was informed on the telephone by the President of the Society where the appellant was residing with his daughter that screams and sounds of physical violence used to filter from the house of the appellant even at 10.00 P. M. and he used to beat her almost every day but the President of the Society could not intervene despite his best efforts on which, he had called Anuradha on phone and asked her to return to her home immediately. On the same evening Anuradha and Rajesh Jha had come to his house. He tried to remonstrate with him. Rajesh sought forgiveness for the last time and gave his words that he will never repeat his conduct although Anuradha had told him that Rajesh was getting dramatic and he will never mend himself. He had sent back Rajesh after giving him Rs. 10,000/-. After three or four months, he received a telephone call from the Society, on which, his wife Premkala Jha and daughter Anuradha Jha went to his house and remonstrated him for the whole night and returned after again giving Rs. 10,000/- to Rajesh. On 22.3.2009, Rajesh Jha called him at about 9.45 A. M. and told him that the condition of Anuradha was serious and asked him to come immediately. Within ten minutes, he left his house for the house of Rajesh along with his wife and son Prashant Kumar, when he reached there at about 11.45 A. M., a large number of people and police officer were sitting inside the house. The dead body of Anuradha was lying on the floor in the bed room and Rajesh was sitting at Sofa and eating Gutkha. Rajesh told him that his daughter Anuradha committed suicide, when he knew that all had been manipulated by Rajesh. A string was lying in the room. He lodged the written report of the incident at P. S.-Indirapuram.

We have already referred to in detail the medical evidence on record comprising of the statement of P. W. 2 Dr. Anil Prakash and the post-mortem report of the deceased (Ext. Ka 3) according to which the deceased had died due to asphyxia as a result of smothering. Further it is proved from the evidence of P. W. 1 informant Krishna Madhav Jha that soon before her death, the appellant had maltreated and tortured the deceased for unfulfilled demands of dowry at least on two occasions before the incident and was forced to give the appellant Rs. 10,000/- on both the occasions but he continued to torture her. It is fully proved from the evidence of P. W. 1 Krishna Madhav Jha that soon before her death, she was tortured by Rajesh in connection with demands of dowry. In view of the above, we have no hesitation in holding that the death of Anuradha was a dowry death.

It is true that the appellant Rajesh has led evidence in rebuttal to prove that neither he had ever demanded any dowry from Anuradha nor he tortured her in connection with any unfulfilled demand of dowry. He had himself appeared in the witness box and apart from deposing the aforesaid facts in his evidence, he has stated that Anuradha was a very ambitious and aggressive person, who wanted to work but he himself was very well placed and he felt that there was no necessity for Anuradha to take any assignment and that her priorities should be to look after her small children, whose welfare was paramount. He also deposed that prior to the incident, she had made another attempt to commit suicide by swallowing sleeping pills in the year 2005 but by her timely admission in Minakshi Hospital Kaushambi, Ghaziabad, her life could be saved. He also in his evidence gave instances in which Anuradha in a state of extreme anger had broken costly items including the watch of the appellant. On 21.3.2009, Anuradha had again expressed her desire to work, which was followed by heated arguments between them. They went to sleep at about 11.00 P. M. However, when he woke up at about 8.00 A. M., he did not find Anuradha in her bed room, while searching for Anuradha he went in the other room and saw that Anuradha had wrapped a white towel around her neck and face and hung herself from the ceiling fan of the room by a nylon rope and a chair was lying on the bed. He immediately brought her down and kept her on the floor and immediately informed the neighbours and the President of the Society about the occurrence. Someone called the doctor, who after examining her, declared her dead. He had given information to his father-in-law P. W. 1 Krishna Madhav Jha at about 8.30 A. M.

Sri Deepak Yadav, the President of the Resident Welfare Association of the building where the appellant was residing, was examined as D. W. 2. He deposed that he knew the appellant and his wife Anuradha since the year 2004. The couple had two children. The relations between the appellant and his wife were harmonious and he had seen them strolling in the evening holding each other’s hands. He had never been informed that Rajesh had ever tortured his wife for any unfulfilled demands of dowry. He was not aware that Rajesh was an alcoholic or used to beat his wife. On 22.3.2009, he had received a phone call from him that his wife had committed suicide, on which he rushed to his flat and on reaching there, he saw the dead body of Anuradha lying on the floor.

D. W. 3 Dr. Nishar Ahmad was examined by the appellant. He in his statement deposed that Anuradha had attempted to commit suicide on 24.1.2005 by taking overdose of Rivotoril, Venfex and Zepic tablets. She was treated by Dr. Ankit Gupta. He proved the documents pertaining to the treatment of Anuradha by Ankit Gupta.

Upon a critical and comparative evaluation of the testimonies of the witnesses produced on behalf of the prosecution and the defence for proving their respective cases, we do not find any merit in the defence version that the deceased had committed suicide by hanging herself. The evidence adduced by the prosecution fully proves that the deceased died within five years of her marriage. Appellant’s presence in his house at the time of deceased’s death is admitted to him. Her death was homicidal and not suicidal and she was tortured soon before her death in connection with demands of dowry. The defence in our opinion failed to effectively rebut the legal presumption which arises under Section 304B I. P. C.

In order to attract the provisions of Section 304B I. P. C. following essential ingredients are required to be established as laid down by the Apex Court in the case of Kaliyaperumal Versus State of Tamil Nadu, AIR 2003 SC 3828.

Presumption: Applicability

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.

The expression “soon before her death” used in the substantive Section 304B I. P. C. also came up for interpretation before the Apex Court in the case of Kaliyaperumal (supra) and the Apex Court has held as hereunder:

Testing the evidence adduced by the prosecution in this case on the touch stone and in the background of the aforesaid principles, we find that the deceased had died within five years of her marriage. Her death was homicidal and not suicidal and soon before her death, she was subjected to cruelty and harassment by her husband, the appellant in connection with demand for dowry and such cruelty was in connection with the demand for dowry.

Thus, we do not find that the learned trial Judge committed any illegality or legal infirmity in convicting the appellant under Section-304B of I. P. C. and awarding the aforesaid sentences to him.

Coming to the sentence, we find that upon conviction under Section 304B I. P. C. the accused shall be awarded punishment, which shall not be less than seven years but which may extend to imprisonment for life.

Since we have already found that the defence has miserably failed to prove that the deceased had committed suicide and it is proved from the evidence led by the prosecution that the death of the deceased was homicidal, we do not find that sentence of life imprisonment awarded to the appellant by the trial court needs any interference.

This appeal lacks merit and is accordingly dismissed.

Order Date: 26/04/2019

HR

 

 

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