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Smt.Maharani And Ors.(2) vs The State Of U.P. on 13 April, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

Case :- CRIMINAL APPEAL No. – 304 of 2002

Appellant :- Smt.Maharani And Ors.(2)

Respondent :- The State Of U.P.

Counsel for Appellant :- R.N.S.Chauhan

Counsel for Respondent :- Govt.Advocate

Hon’ble Dinesh Kumar Singh,J.

1. The present appeal is directed against the judgment and order dated 20.02.2002 passed by the Special Sessions Judge, Sitapur in Sessions Trial Nos.1603 of 1997 and 161 of 1998 arising out of Case Crime No.132 of 1997, under Section 498-A and 304-B IPC and 3/4 of the Dowry Prohibition Act.

2. The Trial Court had convicted the accused and sentenced them to undergo rigorous imprisonment of 7 years under Section 304 B IPC.

3. The case of the prosecution as emerges out from the record is that the complainant, Ramadhar, P.W.-1 gave a written complaint (Exh.Ka-1) on 28.04.1997 at the Police Station-Khairabad that his daughter Smt. Kundali (deceased) was got married to the accused, Satrohan about 2 years before her death. The accused demanded scooter at the time of Kaleva ceremony during marriage. However, this demand could not be met due to financial position of the complainant. Soon after marriage the accused, Satrohan, his elder brother, Guddoo and his mother, Smt. Maharani started deceased subjecting to cruelty and harassment for non fulfillment of their dowry demand of scooter. The accused would not send the deceased to her paternal home and they did not even allow the complainant him to meet the deceased.

4. It was further alleged that 15 days before death of the deceased, the complainant went to bring the deceased to his house but the accused did not send the deceased with him. The deceased anyhow could meet the complainant and told him that the accused were subjecting her to cruelty for not fulfillment of demand of scooter as dowry. She apprehended her death within a period of 1 month. The complainant tried to make the accused understand that he was not in a position to give a scooter because of his poverty but the accused were not satisfied with his pleadings.

5. It was further alleged that on 27.04.1997 at about 12 noon, someone from Village Madhopur, Police Station-Sandra came to the complainant’s house and informed him that his daughter had died. On receiving this information, the complainant and others went to the house of the accused where they found the deceased dead. The complainant suspected the death of the deceased at the hands of the accused persons.

6. On the basis of aforesaid written complaint, FIR (Exh.Ka-2) at Case Crime No.132 of 1997 was registered under Sections 498-A and 304-B IPC and Section 3/4 Dowry Prohibition Act at the police station. Before lodging of FIR by the complainant, the death had been reported to the police station by the accused, Satrohan and police had reached the place of occurrence and the inquest report, photo lash, challan lash etc., were already prepared by Sub-Inspector, Nabiullah Farooqui. He had also sent the dead body of the deceased in sealed condition for postmortem. The post mortem was conducted by Dr. L. P. Rao on 29.08.1997 at 3:30 P.M. and no antemortem injury was found on the person of the deceased. The cause of death could not be ascertained and, therefore, viscera was preserved and sent for chemical examination to forensic science laboratory, Lucknow. In the report of chemical examination, viscera was found containing Aluminium Phosphide poison.

7. The investigation of the case was entrusted to Dr. S.N. Bharadwaj, then the Circle Officer (City). Later on the investigation was taken up by Shri Akhilesh Kumar, Circle Officer (City), Sitapur. He recorded the statement of Ramadhar on 25.06.1997 and also recorded the statement of mother and uncle of the deceased on 17.09.1997 and 18.09.1997 and submitted the charge-sheet against the accused, Satrohan and Guddu on 20.09.1997. The investigation was transferred to Ram Mohan Roy, Circle Officer (City) and he submitted the charge-sheet against the accused, Maharani. The case of the accused, Satrohan and Guddu was committed to the Court of Sessions on 17.11.1997 and the case of the accused, Smt Maharani was committed in Sessions Court on 22.01.1998. Charges were framed against the accused by separate orders under Sections 498-A and 304-B IPC and Section 3/4 of the Dowry Prohibition Act. The accused denied charges and claimed for trial.

8. The prosecution in order to prove its case examined only two witnesses i.e. P.W.-1, Ramadhar and P.W.-2, his wife Sheorani. No formal witness was examined as defence had admitted the documents i.e. FIR Exh.Ka-2, Copy of the general diary of the registration of the case Exh.Ka-3, Inquest Report Exh.Ka-4, Photo Lash Exh.Ka-5, Chalan Lash Exh.Ka-6, Specimen of Seal Exh.Ka-7, Letter to RI Exh.Ka-8, Letter to Senior Medical Superintendent Exh.Ka- 9, Postmortem Report Exh.Ka- 10, Site Plan Exh.Ka11, Charge-Sheet Exh.Ka12.

9. The statements of the accused under Section 313 of the Code of Criminal Procedure was recorded in which they denied the prosecution case, however, they did not lead any evidence in their defence.

10. P.W.-1 in his statement in examination-in-chief reiterated the contents of the complaint and proved the complaint.

11. P.W.-2, Sheorani, mother of the deceased corroborated the statement of P.W.-1 and said that the demand of scooter made at the time of Kaleva ceremony by the accused, Satrohan could not be fulfilled as it was beyond their financial status and, therefore, the accused got annoyed. She further said that whenever the accused came to her parental home, she would tell that the accused were torturing her on account of demand of dowry. The deceased was not allowed to come when her brother went to bring her. She further said that her husband wanted to bring the deceased to their home about 15 days before her death but she was not allowed to come by the accused. After receiving the information from someone regarding the death of the deceased, her husband and others went to the house of the accused and found her dead.

12. To decide the question whether the Sessions Court is right in upholding the accused-appellant guilty under Section 304B I.P.C., Section 304B of the I.P.C. and Section 113B of the Evidence Act, 1872 are to be read together which read as under:-

“”304B. Dowry death.–

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.–For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprison­ment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

“113B. 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 for dowry, the Court shall presume that such person had caused the dowry death. Explanation.–For the purposes of this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).””

13. From the bare perusal of Section 304B IPC, it is clear that whether the death of a married woman is caused by any burn or bodily injury within 7 years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of husband for or in connection with, any demand for dowry, such husband and/or relative shall be deemed to have caused dowry death. These two facts are necessary to be established by the prosecution to bring home charge of dowry death under section 304 IPC i.e. (i) the death has taken place within 7 years of marriage, and (ii) soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband and/ or in connection with any demand of dowry. If any of these two ingredients is not established by the prosecution, the accused-appellant cannot be convicted under Section 304B IPC. The deeming aspect of Section 304B IPC does not create a legal fiction but only creates a presumption of causing dowry death.

14. Section 113B of Evidence Act also provides that once it is shown that soon before her death a woman was subjected by husband or relative of husband to cruelty in connection with any demand of dowry, the Court shall presume that such person has caused dowry death.

15. To bring home charges under Section 304B IPC, the following questions need to be decided in the present appeal:-

(I) Whether the death of the deceased occurred within 7 years of her marriage with the accused, Satrohan?

(ii) Whether the accused demanded dowry and they subjected the deceased to torture and cruelty for non fulfillment of dowry demand?; and

(iii) Whether the deceased was subjected to cruelty soon before her death and for that reason she committed suicide?

16. In this case two ingredients are undisputably proved i.e. the death of the deceased was not under the normal circumstances and she died an unnatural death inasmuchas the chemical examination report (Exh.Ka-14) showed that the Viscera of the deceased contained Aluminium Phosphide poison and this report was not disputed by the defence. In fact the case of the defence had been that the deceased had committed suicide. Secondly, that the deceased had died within 7 years of her marriage. What is to be seen is whether the third and the most crucial ingredient i.e. whether the deceased was subjected to dowry demand by the husband and/or his relatives for dowry demand gets established or not.

17. In order to prove the third ingredient, it is required for the prosecution to establish that there was dowry demand by the accused and secondly that for non fulfillment of such dowry demand, the deceased was subjected to cruelty by her husband and/or his relatives soon before her death.

18. Regarding the demand of scooter made by the accused, Satrohan P.W.-1, the complainant had only said that the accused, Satrohan had demanded scooter and he also said that her daughter told him that the demand of scooter made only by her husband to be fulfilled. Thus, the dowry demand of scooter was made only by the accused, Satrohan and not by other two accused. The witness P.W.-1, Ramadhar had accepted in his cross examination that the accused had given sufficient jewellery to the deceased at the time of marriage and his financial condition was poor, therefore, knowing fully well that the complainant’s financial position was not such, it would be unlike for the accused to demand dowry when they themselves gave sufficient jewellery to the deceased at the time of marriage. This fact establishes that the accused family was well off in comparison to the family of the complainant.

19. Learned counsel further submits that even if there was demand of dowry, from the statements of P.W.-1 and P.W.-2, it is evident that the demand was made only by the accused, Satrohan and not by two other accused.

20. The second aspect to bring home charge under Section 304-B IPC is whether the deceased was subjected to cruelty for or in connection with demand of scooter soon before her death. P.W.-1, Ramadhar in his statement has said that her daughter came thrice to his house and when she went for 4th time, she was not allowed to come back. He said that with respect to she being subjected to cruelty she used to tell to family members that she was being subjected to cruelty by the accused for dowry demand. When he went to bring her back to his home, the accused for the 4th time did not allow her to come with him. P.W.-2 in her cross examination had said that only accused, Satrohan used to beat the deceased.

21. From the analysis of evidence of P.W.-1 and P.W.-2, it is clear that the deceased had not been sent to her paternal home as demand for scooter by the accused could not be fulfilled. Nothing has come on record to show that the deceased was subjected to cruelty by the accused soon before her death.

22. The learned Trial Court on the basis of the aforesaid evidence had concluded that the conduct of the accused in not sending the deceased to her paternal home for the 4th time could have led her to commit suicide and, therefore, he concluded that this act of the accused would amount to subjecting the deceased to cruelty within the meaning of Section 498-A of Indian Penal Code. The learned Trial Court also concluded that this act of the accused not sending the deceased to her paternal home 15 days before her death would amount to subjecting the deceased to cruelty soon before death and, therefore, found the accused guilty under Section 304-B IPC. However, in the opinion of learned Trial Court since only accused. Satrohan demanded the dowry of scooter, charge under Section 304-B IPC read with Section ¾ Dowry Prohibition Act proved against him only. All the three accused were found guilty for the offence under Sections 498-A and 304-B IPC and only accused, Satrohan under Section 3/4 Dowry Prohibition Act and the accused were further sentenced accordingly only under Section 304B IPC as in the opinion of learned Trial Court, it would be unnecessary to give separate sentence for the offence punishable under Section 498A IPC and Section ¾ Dowry Prohibition Act.

23. Considering the evidence of P.W.1 and P.W.2, I am of the view that the offence under Section 498A I.P.C. and Section ¾ Dowry Prohibition Act is proved against the accused, Satrohan only. P.W.1 and P.W.2 had accepted that the demand of scooter as dowry was made only by the accused, Satrohan. The Trial Court’s finding that since the deceased was not sent for the 4th time with her father to her parental home, it would amount to subjecting the deceased to cruelty by the accused is not correct view of the matter.

24. The Supreme Court in the case of State of W.B. Vs. Orilal Jaiswal and another (1994) 1 SCC 73, has observed that “the courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”

25. I, therefore, find that the prosecution has failed to prove that the deceased was subjected to cruelty soon before her death. There was no mark of injury on her body in the post mortem examination. Therefore, the allegation that she used to be physically tortured and beaten up by the accused, Satrohan is also not proved.

26. In view of the aforesaid, offence under Section 304B IPC is not proved against the accused-appellant, Satrohan and, therefore, he is acquitted of charges under Section 304B IPC.

27. In view of the aforesaid appeal of accused, Guddoo and Smt. Maharani are allowed and they are acquitted of all charges. Their bail bonds are cancelled and sureties are discharged.

28. So far as the accused, Satrohan is concerned his conviction under Section 498A IPC and Section ¾ Dowry Prohibition Act is affirmed. He is convicted for the sentence already undergone. It is not required to arrest him and send him for any imprisonment.

29. His bail bonds are cancelled. Sureties are discharged.

30. The appeal is thus, partly allowed.

Order Date:-13.04.2018

prateek

 

 

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