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Rajveer vs State Of U.P. on 4 January, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 15

Case :- JAIL APPEAL No. – 1171 of 2017 AFR

Appellant :- Rajveer

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Imran Ibrahim A/C

Counsel for Respondent :- G.A.

Hon’ble Arvind Kumar Mishra-I,J.

Heard Sri Imram Ibrahim, learned amicus curiae for the appellant, Sri B.D. Nishad, learned AGA for the State and perused the record.

The present criminal appeal has been preferred by the appellant Rajveer against the judgment and order dated 25.07.2016 passed by Additional Sessions Judge, Court No.3, Kannauj, in Session Trial No.416 of 2010 (State Vs. Rajveer) arising out of Case Crime No.414 of 2010 under Sections 304 B, 498 A IPC and Section 4 of the Dowry Prohibition Act, Police Station Gursahaiganj, District Kannauj whereby the appellant has been sentenced to undergo ten years rigorous imprisonment under Section 304 B IPC, two years rigorous imprisonment coupled with fine Rs.10,000/- under Section 498A IPC, in default of payment of fine, he will have to suffer additional three months imprisonment and one year rigorous imprisonment coupled with fine Rs.5,000/- under Section 4 of Dowry Prohibition Act, in default of payment of fine, he will have to suffer additional two months imprisonment. All the sentences have been ordered to run concurrently.

Relevant to mention that by the impugned judgment, the appellant has been acquitted of charge under Section 302 IPC and Section 3 of the Dowry Prohibition Act.

The prosecution story as reflected from the written report appears to be that the first information report under Sections 498 A, 304 B IPC, 3/4 Dowry Prohibition Act was lodged by the informant Udai Narayan at Police Station Gursahaiganj, District Kannauj on 23.05.2010 at 5:00 a.m. which was noted at Case Crime No.414 of 2010 by Head Constable Shiv Narain Mishra. As per contents of the first information report, the incident was stated to have occurred on 22.05.2010 at about 10:00 p.m. It was alleged that the appellant was married to the daughter of the informant in the year 2004. After the marriage, things went smoothly but later on demand of four wheeler was raised and the in-laws were reconciled on the point which pacified the demand of dowry for some time. Thereafter, demand of dowry of four wheeler was again raised and it was threatened that in case the demand is not fulfilled, the informant’s daughter Manorma will be killed. The information of death of Manorma reached to the informant’s nephew Ajai on his cell phone and it was stated that see the consequence of non-fulfillment of dowry demand. The informant’s daughter is lying dead in the house of her in-laws. Report be lodged and action be taken. The written report is Ext. Ka-1.

Contents of the aforesaid information were taken down in the concerned Check FIR at Case Crime No.414 of 2010 under Sections 498 A, 304 B IPC and 3/4 Dowry Prohibition Act, Police Station Gursahaiganj, District Kannauj on 23.05.2010 at 5:00 a.m. Check FIR is Ext. Ka-3. On the basis of entries so made in the check F.I.R., a case was registered against the accused-appellant in the relevant G.D. at serial no.6 on 23.05.2010 at 5:00 a.m. at aforesaid case crime number at Police Station Gursahaiganj under aforesaid sections of I.P.C. against accused-appellant. Copy of general diary is Ext. Ka-4.

Thereafter, the investigation ensued. In the process, inquest report of the deceased Manorma was prepared on 23.05.2010 itself. It commenced at 8:45 a.m. and completed at 9:45 a.m. Thereafter, the dead body be sent for post mortem examination for ascertaining real cause of death. This inquest report is Ext. Ka-2.

Thereafter, post mortem examination on the cadaver of the deceased Manorma was done by Dr. Nitin Vaish PW-7, on 23.05.2010 at 5:00 p.m. in the mortuary at District Kannauj wherein he noted the following ante mortem injuries:-

1. Ligature mark – 2 cm x 30 cm encircling whole neck situated above thyoid cartilage 2 cm below, 5 cm below right ear, 7.0 cm below left ear, 5.0 cm below occiptal protuberance. On cutting ligature mark white glistering subcutaneous present. Trachea congested. Haemotoma present.

2. Contusion 3.0 cm x 1.0 cm over left upper arm, 7.0 cm above elbow joint.

3. Contusion elbow posterior aspect 5 cm x 2 cm abraded.

4. Contusion 2.5 cm x 0.5 cm over left side leg lateral aspect, 8 cm below knee joint.

In the opinion of the doctor, cause of death was asphyxia as a result of strangulation. This post mortem examination report is Ext. Ka-5.

As the investigation proceeded further, the Investigating Officer prepared site plan of the incident besides recording the statement of various witnesses. The site plan is Ext. Ka-10. After completion of the investigation, charge sheet (Ext. Ka-11) was filed against accused Rajveer by the Investigating Officer Karan Singh PW-10.

Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction and disposal of the case to the aforesaid trial court of Additional Sessions Judge, Court No.3, Kannauj who in turn heard both the sides on point of charge and was prima-facie satisfied with case against the accused-appellant, accordingly, framed charges under Section 302 IPC and alternative charge under Sections 498 A, 304 B IPC and 3/4 Dowry Prohibition Act. Charges were read over and explained to the accused-appellant who abjured charges and opted for trial.

In furtherance of the proceedings the prosecution produced in all 10 witnesses. A brief sketch of witnesses is ut-infra:-

Udai Narayan PW-1 is the informant. Suraj Mukhi PW-2 is the mother of the deceased. Daya Ram PW-3 is the scribe of the information. Ram Gopal PW-4 is uncle of the deceased. Mahesh Chandra is distant relative (Chachiya Sasur) of the deceased. HCP Shiv Narayan Mishra PW-6 has prepared Check FIR and relevant general diary entry of date 23.05.2010 and has proved the same. Dr. Nitin Vaish PW-7 has conducted autopsy on the cadaver of the deceased on 23.05.2010. SSI Ved Prakash PW-8 has prepared inquest report and other ancillary papers and has proved the process. Shiv Prakash Mishra PW-9 is the first Investigating Officer of this case. Karan Singh PW-10 has also conducted part of the investigation and has filed charge sheet against the appellant as Ext. Ka-11. Except as above, no other evidence was adduced by the prosecution.

Therefore, evidence for the prosecution was closed. The statement of the accused was recorded under Section 313 Cr.P.C. wherein he has denied the allegations made against him and claimed his implication false and has stated that the case was lodged against him on account of enmity with the villagers at their instance. He has further stated that the father of the deceased had come to take the deceased back to her parental home. On being refused, she felt aggrieved and committed suicide.

The defence has led testimony of three witnesses namely Ankit Yadav DW-1 son of the deceased, Jai Karan Singh DW-2 and Subodh Kumar DW-3. Thereafter the evidence for the defence was closed.

The case was heard on merit by the learned trial Judge who after appraisal of facts and circumstances and evaluation of the evidence of the case, recorded conviction against the appellant and sentenced him to undergo ten years rigorous imprisonment under Section 304 B IPC, two years rigorous imprisonment coupled with fine Rs.10,000/- under Section 498A IPC, in default of payment of fine, he will have to suffer additional three months imprisonment and one year rigorous imprisonment coupled with fine Rs.5,000/- under Section 4 of Dowry Prohibition Act, in default of payment of fine, he will have to suffer additional two months imprisonment and acquitted under Section 302 IPC and Section 3 of the Dowry Prohibition Act.

Consequently, this appeal.

It has been contended by the learned amicus curiae for the appellant that in this case, conviction recorded under Section 304 B IPC is vitiated in the eye of law on account of fact that all the essential ingredients as described under Section 304 B IPC have not been proved and one of the ingredients – that soon before her death the victim was subjected to any cruelty – is altogether missing and what to say about factum of cruelty being perpetrated on the deceased. Even the demand of dowry has not been proved even in the least that it was so raised and the death was caused on account of non-fulfillment of the demand of dowry.

It has been further contended that perusal of the statement of informant Udai Narayan PW-1, father of the deceased is conducive to fact that relationship between the deceased and the appellant was cordial and congenial and there was no occasion for raising any demand of dowry. Fact is that a number of the villagers of the village of the appellant were inimical towards him, who after death of the deceased Manorma tried to fish in troubled water and instigated the informant to lodge the report against him on false ground.

While concluding argument, it has been contended that the court below did not consider the aforesaid factual as well as legal aspects of the case and has wrongly returned the finding of conviction and awarded sentence against him, which finding of conviction is based more on conjecture and surmises than on evidence on record.

While retorting to the aforesaid argument, learned AGA has submitted that the prosecution witnesses have consistently proved all the essential ingredients described under Section 304 B IPC and specific averments have been made and the testimony on record is clinching and the same cannot be doubted regarding the demand of dowry and cruelty being perpetrated on the deceased.

Learned AGA has submitted next that the doctor witness has proved the cause of death due to asphyxia as a result of strangulation which by itself is indicative of intriguing nature and conduct of the appellant because the deceased died inside the house of the appellant. Apart from ligature mark around the neck of the deceased, three other ante mortem injuries in the shape of contusions have also been noted on the body of the deceased by the doctor witness PW-7.

Learned AGA summed up by adding that there is no point in sparing real culprit and implicating an innocent person in this case. The testimony of the prosecution witnesses of fact does inspire confidence and there is no element of doubt in their testimony. The instant appeal lacks force.

Also considered above submissions.

The moot point involved for adjudicating this appeal relates to the fact whether the prosecution has been able to establish charges against the appellant beyond all reasonable doubt ?

Bare perusal of the first information report is suggestive of fact that specific allegations of dowry demand in shape of four wheeler was raised and the intimation of death of the deceased was given by the appellant himself on the cell phone of Ajay – nephew of the informant. When the informant side reached the house of the in-laws of the deceased, they found the deceased Manorma lying dead inside the house.

In this factual background, testimony of PW-1 and PW-2 when read conjointly as a whole is indicative of fact that in case specific demand of dowry was raised after the death of father of the appellant Rajveer and the same continued till and up to the time of death of the deceased. Testimony of PW-2, mother of the deceased is quite specific on the point of demand of dowry and cruelty being perpetrated on the deceased, therefore, to contend that there was no specific demand of dowry and no cruelty perpetrated on the deceased cannot be accepted to be the correct factual position in this case. On the contrary fact of demand of dowry and perpetration of cruelty have been specifically proved.

Section 304 B IPC stipulates in clear cut terms that in case the death of a woman takes place by any injury or burn or occurs otherwise than under normal circumstances of the case and it is shown that soon before her death, she was subjected to cruelty by her husband or any relative of her husband for or in connection with any dowry of demand, the same shall be called dowry death. Therefore, it is proved in this case that the accused-appellant has committed dowry death.

That way, bare perusal of testimony of PW-2 reflects that soon after the deceased was taken to her in-laws house by the appellant, she died. The death in question as per testimony of the doctor witness PW-7 is proved to be unnatural on account of asphyxia due to strangulation. The dead body of the deceased was lying inside the house of the appellant and it was not found hanging. In the wake of argument advanced by the appellant if it is assumed that the deceased committed suicide out of frustration because of economic problem or frustration then how was it possible for a person to have committed her own strangulation and causing self-suffered injuries in shape of contusions.

It is gathered from the post mortem examination report Ext. Ka-5 that there was ligature mark – measuring 2 cm x 30 cm encircling whole neck situated above thyoid cartilage 2 cm below, 5 cm below right ear, 7.0 cm below left ear, 5.0 cm below occiptal protuberance. On cutting ligature mark white glistering subcutaneous present. Trachea congested. Haemotoma present. There were three contusions 3.0 cm x 1.0 cm over left upper arm, 7.0 cm above elbow joint, contusion on elbow posterior aspect 5 cm x 2 cm abraded and contusion 2.5 cm x 0.5 cm over left side leg lateral aspect, 8 cm below knee joint.

These ante mortem injuries are particular in nature and have not been explained by the appellant. Admittedly, the deceased was in the custody of the appellant at the time of her death. Thus, all the essential ingredients as contained under Section 304 B IPC – i.e. – the death being unnatural, demand of dowry, perpetration of cruelty soon before her death and perpetration of cruelty have been reasonably proved. That way consistent finding of conviction has been recorded by the trial court and the same cannot be said to be not based on material on record.

In view of above scrutiny, I find that testimony on record qua circumstances are sufficiently proved to establish charge under Sections 304 B, 498 A IPC and Section 4 of the Dowry Prohibition Act beyond reasonable doubt. Learned trial Judge has taken correct view of the fact, circumstances and evidence on record and has recorded just finding and has rightly sentenced the appellant which order of conviction and sentence needs no interference by this Court.

Thus the judgment and order dated 25.07.2016 passed by Additional Sessions Judge, Court No.3, Kannauj, in Session Trial No.416 of 2010 (State Vs. Rajveer) arising out of Case Crime No.414 of 2010 under Sections 304 B, 498 A IPC and Section 4 of the Dowry Prohibition Act, Police Station Gursahaiganj, District Kannauj is affirmed and upheld.

In view of above, the appeal lacks merit and the same is dismissed. The appellant is in jail. He shall serve out his sentence.

Let a copy of this judgment be certified to the trial court for necessary information and follow up action.

Order Date :- 04.01.2018

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