Ramesh & Another vs State Of U.P.
2011 Latest Caselaw 1462 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 

 
CRIMINAL APPEAL NO. 1222 OF 2006
 

 
Ramesh and Another ........ Vs. ............ State of U.P.
 

 
Connected with
 

 
CRIMINAL APPEAL NO. 2375 OF 2006
 

 
Satya Prakash .......... Vs. ........ State of U.P.
 

 

 
Hon'ble Vinod Prasad, J.

Challenge by the Appellant mother Savitri Devi (A-1) alongwith her two appellant sons Satya Prakash (A-2) and Ramesh (A-3) in these two connected appeals is to the same judgment and order of their convictions and sentences dated 4.3.2006 for offences U/Ss 498-A and 304-B I.P.C., P.S. New Agra, District Agra and implanted sentences of 3 years RI with Rs. 5,000/- fine on each of the appellants for the first charge and 10 years RI for the second charge imposed by Additional Sessions Judge, Court No. 4, Agra, in S.T. No. 957 of 2000,State Vs. Satya Prakash and others and hence both the appeals, after being clubbed, are being decided by this common judgment.

According to the prosecution allegations as are perceivable from written report, exhibit Ka-1 and chik FIR exhibit Ka-3, and subsequently as was testified before the trial court by the three fact witnesses informant Bhagwan Singh P.W. 2, Man Singh P.W. 3 and Bahadur Singh P.W. 4 were that informant Bhagwan Singh P.W. 2 S/O Nirottam had six issues namely Kiran Devi(deceased),Man Singh(P.W.2), Ravindra, Sukkhi, Janki and Pappi, out of whom Kiran Devi(deceased) was married to appellant Satya Prakash A-2, residents of village Manohar Pur, quarter to seven years prior to her demise on 28.6.1993 in her parental village Ashoka Pura. Distance between both the villages is about a kilometer. According to his economic condition and fiscal means that the informant had given dowry in the marriage albeit appellants A1 to 3 and father-in-law were dissatisfied with it and deceased was being taunted for bringing less dowry and appellants additionally desired a motorcycle and a buffalo. Deceased anyhow tolerated her torture but during her marital life span, whenever she visited her parental house, five or six times, she had complained about appellants behaviour to her parents and their rapacious demand.

Non fulfillment of dowry demand aggravated deceased harassment and torture which took ugly turn of physical assault as well. Appellants had imbibed an idea of committing bigamy by solemnizing second marriage of A2 as well if their lust for additional dowry is not satiated. During intervening period deceased had also attained motherhood by giving birth to a female child. In the month of August 1999 appellants pushed out the deceased and her daughter out of their house in her worn attires and since then she was aboding with her parents. Eight or ten days prior to her death(date of the incident) father-in-law Hakim Singh came to take her back and at that time he was given pairs of buffaloes and goats by the informant who had also requested him to desist from future torturing of the deceased. As a gesture of respect and concern informant had accompanied the three to Hakim Singh's house to see them off.

On 30.5.2000, P.W. 4 Bahadur Singh and Nemi Chand were coming to appellant's village Bahadur Pur and therefore informant requested them to bring the deceased back with them. Both the aforesaid persons went to village Bahadur Pur and stayed there over night. Next day morning while on their way to bring Kiran Devi(deceased) back with them that they gained knowledge that she had been done to death and consequently after their return to their village they intimated informant (PW2) about the death of his daughter at 8 a.m. Immediately PW2 accompanied with co-villagers Brijendra, Hakim Singh, Layak Singh, Kalicharan etc. came to appellant's house and there they found corpse of the deceased lying in an inside room. After making some preliminary inquiries informant got FIR exhibit Ka-1 scribed through Prabhu Dayal and lodged it at police station New Agra, District Agra the same day at 8.15 p.m., which FIR was registered as crime no. 213 of 2000, under Sections 498-A, 304-B I.P.C.

P.W. 5 Rudal Singh, Head Moharrir prepared chik FIR exhibit Ka-2 and relevant G.D. entry exhibit Ka-3.

Circle Officer, P.S. Hariparvat, Jagdish Sharma, P.W. 6 set investigation into motion copied the chik FIR and the G.D. entry, recorded 161 Cr.P.C. statement of the informant, conducted spot inspection and prepared site plan exhibit Ka-4. Thereafter I.O. interrogated head moharrir Rudal Singh. On 2.6.2000, in-laws were apprehended and their statements were recorded. Two days thereafter C.O. interrogated punch witnesses Guru Prasad, Meghraj, Bedan Singh, Pati Ram and Kajjan Singh and recorded their statements. On 10.7.2000, I.O./PW6 prepared recovery memo of the two plastic jerrycans found at the spot which were half filled with kerosene oils and thereafter interrogated and recorded the statements of witnesses Nathu Ram and Sobaran Singh. Circle Officer thereafter copied various affidavits filed by witnesses Sheela Devi, Indra Jeet, Pappu, Bhagwan Singh, Man Singh, Ram Prasad and Nemi Chand. Subsequent thereto I.O. interrogated the two postmortem doctors Dr. A.K. Singh and Dr. R.L. Sharma. Inquest on the cadaver of the deceased was conducted by S.I. Laxmi Narayan,on the information supplied by Nathu Ram son of Kali Charan, on 31.5.2000 from 12.30 a.m. to 2 p.m. Who had prepared inquest report Ext. Ka 6 and other relevant papers, therefore I.O. had interrogated him as well. Concluding investigation ,on 21.7.2000, C.O.(P.W.6), the I.O. charge sheeted A1 to 3,vide exhibit Ka-5. Perusal of inquest papers reveal that at that time parental relatives of the deceased were present at the spot but they refused to be a witness of inquest.

Postmortem examination on the dead body of the deceased was conducted on 1.6.2000 at 2.15 p.m. by the two doctors who had prepared their autopsy report Ext. Ka 13, the perusal of which reveals that deceased was 26 years of age having an average built body,rigor mortis had passed off from her both extremities but decomposition had not set in. Two days had lapsed since her death. In the stomach 100 m.l. watery fluid was present, with small and large intestines containing digested food, fecal matter and gases. Her cavity and peritoneum were lacerated, lung, spleen, membrane were congested. Carbon particulars were present in her trachea and larynx, which both were also congested. Following ante-mortem injuries were detected on deceased body by the doctors:-

AMI- Extensive deep burn all over the body with sole & head Rt. flank and abdomen burnt--------are coming out mark of red line present. singeing of hair present smell of kerosene oil is present. Body opened muscle deep due to burn on both lateral side of chest cage back of left side chest & abdomen part of Lt. & Rt. thigh. Tongue is protruded out.

From the perusal of the deposition of the doctor, it transpires that the body of the deceased was badly burnt, right side portion of abdomen was lacerated and from it inner part of the body were protruding. Brest from both the sides were burnt upto muscles deep and because of it, both the sides of breasts were lacerated. Back side of right chest, abdomen, front of both the thigh were blast and torn because of extensive burnt. Tongue was protruding out, bones and joint were burnt at places, generation organs were also burnt. Kerosene oil smell was coming out and lying of redness were present.

Regarding cause of death doctors opined that it was due to shock as a result of extensive burn injuries.

On the basis of the charge sheet exhibit Ka-5, accused appellants were summoned by the Magistrate, who finding their case triable by courts of sessions committed it to Session's Court where it was registered as S.T. No. 957 of 2000. IIIrd Additional Sessions Judge, Agra, charged A1 to 3 U/Ss 498-A, 304-B I.P.C. on 14.2.2001 and since they all abjured those charges and claimed to be tried that their trial proceeded in an effort to bring their guilt home.

In the trial prosecution relied upon testimonies of Pappu P.W. 1, informant Bhagwan Singh P.W. 2, Man Singh P.W. 3 and Bahadur Singh P.W. 4 as fact witnesses, besides depositions of formal witnesses head moharrir Rudal Singh P.W. 5, I.O. Jagdish Sharma P.W. 6 and postmortem doctor A.K. Singh P.W. 7. PW6 had also proved the inquest report and other relevant papers prepared by S.I. Laxmi Narayan as exhibits Ka-6 to Ka-10 and recovery memos of burnt clothes and jerrycans exhibits Ka-11 to Ka-12.

During trial, P.W. 1 Pappu, a resident of appellants village turned hostile and deposed that the marriage of the deceased was solemnized 7 or 8 years ago. Dowry to the satisfaction of the appellants were given in the marriage and hence they had not raised any further demand. He denied that the deceased was assaulted because of non fulfillment of dowry demand and he had not witnessed pouring of kerosene oil on the deceased. He denied his previous 161 Cr.P.C. statement made to the I.O. and stated that he had signed on blank paper under pressure mounted by the police. PW1 denied prosecution suggestion that he was not testifying truth to shield co villagers and neighbours.

However informant Bhagwan Singh P.W. 2 and his son Man Singh P.W. 3 supported prosecution case in all it's material aspects of allegations and, besides narrating their allegations contained in the FIR, exhibit Ka-1, deposed further that at the time of death of the deceased her daughter was 5 or 6 years of age, police had got the postmortem done and it was they who had performed the last rites at the bank of river yamuna. P.W. 2 further deposed that the marriage of the deceased was solemnized in the hindi calendar month of asharh. He, however, pleaded ignorance regarding the date of the marriage but testified that the marriage was solemnized quarter to seven years ago. He had given lagan patri (the document for fixing of the marriage indicating the date and the details of the parties prepared by the pandit). This witness, PW2, was cross examined searchingly for many days by the defence but in respect of the said lagan patri defence failed to shatter his testimonies. PW2 also stated that lagan patri was prepared in duplicate by Babu Ram Pandit resident of village Chhimahi and in the course of investigation he had handed over the same to the I.O. He is clear and emphatic in denying defence suggestion that he had got the said lagan patri forged and manufactured. He had further stated that the original of lagan patri was sent to the house of the bridegroom(appellants). He further disclosed that deceased had visited their house four or six times. On the first occasion after her marriage she had stayed in her in- laws house for eight days. Truthfully this witness had admitted of not lodging any complaint against torture of the deceased and assault on her to anybody on any earlier occasion. He had denied defence case that FIR was dictated after consultation with a lawyer. He had also admitted that one of his sister Sukkhi was also married in appellants village to Ved Prakash and her in-laws house is also close by. He had denied the suggestion that the marriage of the deceased was solemnized a decade ago and at the time of her death, her daughter was 7 or 8 years old besides refuting defence case that there was no demand of dowry by the appellants nor they had tortured the deceased for the same. PW2 also denied the suggestion that because the deceased was unable to conceive a male child that she was under psychological trauma because of which she had committed suicide.

Testimonies of PW2 has been corroborated by P.W. 3 Man Singh, brother of the deceased on all material aspects of the allegations and he had further testified that at the time of deceased marriage he was a child of twelve years and at that time,deceased being elder to him was eighteen or nineteen years. Being ill-literate PW3 showed his ignorance regarding actual date of deceased marriage besides stating that it was performed in the Hindi calender month of jeth but in the same breath he has stated that he could not tell correctly all Hindi calender months. PW3 further testified that they had arrived at appellants house after demise of his sister and on that date her daughter was five years of age. This witness denied defence suggestion that information regarding deceased death was given to them by her husband A-2 and that there was no demand of dowry from the appellants and that he had testified untruthfully and the deceased was never tortured for demand of dowry. He further denied defence case that because the deceased was unable to bear a male child that she committed suicide under psychological break down.

P.W.4, Bahadur Singh in his statements had evidenced that he is a co villager of informant and deceased was known to him. He had gone to bring deceased back to village Bahadur Pur along with Nemi Chandra and there they were informed regarding deceased demise following day morning and consequently they had returned to their village and had divulged the death news to the PW2. This witness was subjected to searching and lengthy cross examination but the defence failed to elicit any damaging statement from him. It failed to discredit his veracity. From his depositions appellants failed to bring forth any statement which can distract or diminish prosecution case.

Rest of the formal witnesses P.W.5 Rudal Singh, Head Moharrir, Investigating Officers Jagdish Sharma P.W.6 and Autopsy Doctor A.K. Singh P.W.7 have testified above mentioned facts and therefore, the same are being eschewed from being repeated to avoid voluminizing this judgment.

In their statements under Section 313 Cr.P.C. all the accused appellants denied incriminating circumstances appearing against them in prosecution evidences and pleaded that the marriage of A-2 and the deceased was solemnized more than seven years ago in 1991 and they had never demanded any buffalo or motorcycle. Appellant A-3 further stated that he had got a dairy at a distance of one and a half kilometers from his residence and he lives there. Appellants examined Nathu Ram D.W.1 to support their version.

According to DW1 Ramesh, A3 had a dairy of fifteen or sixteen buffaloes at a distance of one and a half kilometers from his house and he lived there with his family. Deceased had a happy marital life and had no complaints against the appellants. She,however, was under immense psychological stress for not having a son as male descent and that she had died in the intervening night between 30/31.5.2000 when A-3 with his family were at their dairy and A-1 had gone to his sister's house. At that time only A-2 was present and she was sleeping outside. He further evidenced that on the instructions of A-2 he had gone to police station New Agra and had informed the police. This witness had further deposed that the marriage of A-2 was performed in 1991. During his cross-examination he had stated that he does the business of shoe lacer with four or five cobblers since last fifteen years and was residing in his ancestral house at a distance of hundred or hundred and twenty five meters from the house of appellants and in between these residential accommodations there was no other house at the time of the incident. He had further deposed that when the deceased was engulfed in fire then her family members had raised shrieks, hue and cry and police also had arrived at the spot at 8.00 a.m. in the morning. He further evidenced that when he had gone to get register written information, I.O. had interrogated him and then he had informed the police that because the deceased was not having a male child that she had committed suicide. He had further stated that since nobody interrogated him earlier he did not divulge those facts to anybody. He further deposed that no demand of dowry was raised by the appellants and all these facts were testified by him for the first time in court. He had denied defence suggestion that he was deposing falsely to shield the appellant accused from punishment.

On the evidences and materials tendered before it Additional Session's Judge concluded that prosecution has successfully established both the charges of dowry demand and dowry death beyond and shadow of doubt to the hilt and consequently it convicted the appellants on both the counts and sentenced them as has been referred to in the opening paragraph of this judgment, hence these two connected appeals by the convicted accused challenging their convictions and sentences.

I have heard Sri V.P. Srivastava, learned senior counsel in support of this appeal assisted by Sri B.B Paul and Sri K.N. Bajpayee, learned State counsel in opposition.

Assailing and castigating impugned judgment learned senior counsel submitted that in this case prosecution has failed to bring on record any reliable material that the marriage was solemnized with in seven years and therefore, charge under Section 304 B IPC must fail as it cannot be concluded convincingly that the nuptial knot was tied within seven years, which is an un-eschewable fact to bring home that charge. He further contends that according to the F.I.R. version itself, quarter to seven years had lapsed since solemnization of the marriage and defence has demolished that fact by filing the marriage card, a perusal of which indicate that marriage was solemnized in the year 1991 and resultantly, the date on which incident had occurred, seven years had already lapsed and hence recourse to presumption under Section 113 B Evidence Act could not have been taken to record conviction U/S 304 B IPC,which conviction can not be sustained. There is no convincing evidence and material for charge of demand of dowry and on unsatisfactory evidences of fact witnesses and scanty materials, which remains unsubstantiated from any independent source, conviction under that offence is also liable to be set aside. Learned counsel further submitted that lagan patri produced and relied upon by prosecution is a sham document and that too is a photocopy, which too was not got proved in consonance with provisions of Evidence Act therefore it cannot be considered to judge the guilt of the appellants and hold them guilty. Photocopy of a document is inadmissible in evidence unless requirements of leading secondary evidence is satisfied and since that has not been done by the prosecution therefore said Lagan Patri, cannot be utilised by the prosecution against the appellants and trial Judge committed error in relying upon it. Contrary to prosecution evidence voter list filed by the defence indicates that in the years 1991 name of the deceased as wife of A-2 was entered in the voter list and therefore, it must be presumed that their marriage was solemnized more than seven years ago and in such a view, charge under Section 304 B IPC must fail. It was further contended that trial Judge ignored to consider relevant materials on record supporting defence version and wrongly relied upon prosecution documents and hence it's conclusions are lopsided. It without critical appreciation of evidences tendered by the prosecution in a dispassionate manner has convicted appellants and therefore impugned order suffers from the vice of none application of mind as well and deserves to be set aside and the appeals should be allowed and appellants be acquitted of all the charges.

Per contra, learned AGA submitted that guilt of the appellants have been established beyond doubt and both the appeals lacks merit and deserves to be dismissed.

I have considered the arguments by both the sides and have perused the trial court record. In this appeal it is not disputed that deceased Kiran Devi lost her life in un-natural circumstances in the house of the appellants in the intervening night between 30/31.5.2000 because of sustained extensive burn injuries and at the time of her death she had a female child. Age of the deceased had also not been challenged by the defence and therefore on the date on which she died her age was twenty six years. Spouses relationship between A2 and the deceased is also not disputed. On such admitted facts the real bone of contention between rival sides is period of marriage as to bring the offence within the ambit of section 304 B IPC and whether there was any demand of dowry because of which deceased was murdered.

Starting from the begged last question it transpires that prosecution version of nuptial tie being knotted within seven years seems to be a truthful version. It is an adage that marriages are made in heaven. Informant had given photocopy of lagan patrika to P.W.6 Jagdish Sharma, Circle Officer during course of investigation, which is clear from the perusal of the case diary. P.W.2 informant was subjected to searching cross-examination on the said lagan patrika. Defence could not muster courage to challenge authenticity of preparation of such a document. It did not produce any other document to rebut the claim by the prosecution. This fact shows that the defence was aware of existence of said lagan patrika as being a genuine document. While cross-examining informant P.W.2 on the contents of lagan patrika defence itself brought on the record those missing links which were not divulged by the prosecution. In such a view appellants now can not take a somersault and denied existence of said lagan patrika. Learned senior counsel strenuously harangued that entries made in lagan Patrika including marriage date was a subsequent interpolation after obtaining a blank copy of the same but he failed to point out any specific reason for the same. To refute prosecution allegations defence miserable failed to bring on record original lagan patrika, which according to the claim by the informant was in their possession. Since original was in possession of the rival sides, photo copy of the same was admissible in evidence and a presumption can be drawn in favour of the photocopy so tendered by the informant and which forms the part of the case diary to be a genuine document. Learned D.G.C., who conducted the trial was not oblivious of his responsibility as a prosecutor and therefore, he committed mistake in not getting the said photocopy exhibited as a secondary evidence. Date of marriage in the said lagan patrika is entered as 28th June 1993. The said date corroborates with the age of the female child as according to prosecution claim daughter was born after five or six years of the marriage. On the contrary marriage card filed by the appellants, do not inspire any confidence as it does not contain necessary informations which are necessary to be mentioned there. It is very interesting to note that there is no date for Bidai mentioned in the said marriage card. Otherwise also, appellants have not got the said marriage card proved. If the appellants were so sure about the genuineness of their marriage invitation card they could have got it proved by entering into witness box. No date of marriage has been mentioned by the appellants either in their statements under Section 313 Cr.P.C. or anywhere else. They want date of the marriage to be fathomed out on surmises. Once charged U/S 304 B , IPC it was defence responsibility to negate pleaded ingredients of said charge. It was it's responsibility to demolish prosecution case on preponderance of probability, once prosecution had alleged categorical assertions bringing it's case within the mischief of section 304B IPC to which presumption under section 113 B applied, but it miserably falied to discharge it's burden. Since,through cross-examination, defence has brought on record the material to indicate that the marriage of the deceased was solemnized with A-2 on 28.2.1993, they cannot now be allowed to argue to the contrary. In above view last submission raised by learned senior counsel does not find force and is hereby repelled.

Turning towards another argument regarding demand of dowry, prosecution case from it's inception is that all the accused demanded it. However summation of evidences of fact witnesses reveal that so far as A2 and father-in- law Hakim Singh are concerned there are specific allegations against them. For rest of the accused A1 and A3 there are omnibus general allegations of unconvincing nature. It was Hakim Singh, father-in-law, who had gone to the house of the informant to bring back the deceased. At that time he certainly demanded the aforesaid dowry and that is why, two buffaloes and two goats were given to him. Informant had also plead to him with folded hands that he may take the aforesaid livestocks but should not torture his daughter nor she be assaulted. During trial, P.W.2 and 3 have supported the said allegations. Informant P.W.2 went on to depose that father-in-law has even informed him that he can accept the aforesaid livestock in lieu of motorcycle. At that time father-in-law was accompanied by his brother as well. Thus, so far as demand of dowry is concerned, prosecution witnesses have successfully established that charge in respect of the husband, A2 and father-in-law, since dead. In such a view, it is not difficult to seperate their case from rest of the accused and to conclude that so far as appellant Satya Prakash A2 is concerned he did demand the dowry and charge U/S 498 A is established against him to the hilt. But so far as A1 and A3 are concerned from the materials on record and evidences of fact witnesses it is difficult to conclude that they also demanded the said dowry. Nothing concrete and tangible had been brought on record by the prosecution witnesses but for ipse dixit that they also demanded the dowry. A single line statement of the informant that mother-in-law has said that if he will not fulfill the demand, they will not keep the deceased with them is not acceptable as said deposition does not inspire any confidence and was an embellishment and the same was testified for the first time during trial. Prior to it said fact was never divulged to any body not even to the I.O. during investigation. Moreover, Savitri Devi was an aged lady of 60 years. So far as motorcycle is concerned, the same was of no use to her. In such a view, I am of the opinion that so far as charge of dowry demand against A1 and A3 are concerned, the same is embellished and a disproved fact.

Death of the deceased was unnatural, which is an admitted fact as even according to defence case, deceased had committed suicide by pouring kerosene oil upon her. It is also not disputed by learned counsel for the appellants that the death of the deceased was not in natural circumstances and therefore said aspect of the case does not demand any further probing.

Coming to the defence version that because the deceased was unable to conceive a male child and therefore, she was dejected and resultantly committed suicide is not appealing to juristic thoughts. Deceased was just 26 years of age and there is no evidence on record at all that there was any medical opinion that she could not have attained motherhood on any subsequent occasion. There was no reason for the deceased to be dejected on such a score, which in fact never existed. This suggestion by the defence does not require deeper scrutiny, as on the face of it the same is liable to be rejected. If the deceased was physically fit to given birth to a female child, there was no occasion for her at the young age of 26 years to be dejected because of non-conceiving of a male child. Above discussion leads to conclude that defence version does not inspire any confidence and is therefore thrown over board.

Another important aspect of the appeal is absence of A3 from the spot. A3 had pleaded alibi and had taken a defence that he was living at his diary along with his family members. For that purpose, accused have examined D.W. 1, who has also testified the said fact. Prosecution albeit cross examined DW1 at length but did not suggest him that alibi of A3 supported by him is a false statement of fact. While critically appreciating evidences of Pws and Dws double scales and standard can not be applied. Evidence of witnesses of both sides have to be scanned on the same touch stone of probability and probity. Since, the prosecution has not disputed the said version, which was pleaded by A3 in his statement under Section 313 Cr.P.C. I am of considered view that charges against A3, Ramesh, of demanding dowry and causing dowry death remains disproved.

Concluding this judgment and the discussion, Criminal Appeal of Savitri Devi and Ramesh, A1 and A3, being Criminal Appeal No. 1222 of 2006, deserves to be allowed whereas the appeal of appellant Satya Prakash, A2, being Criminal Appeal No. 2375 of 2006, deserves to be dismissed.

In view of above, the appeal of appellants Ramesh and Savitri Devi being Criminal Appeal No. 1222 of 2006 is allowed in full. They are acquitted of both the charges under Sections 498-A and 304-B I.P.C. Both the aforesaid appellants are on bail, they need not surrender, their bail bonds and surety bonds are discharged.

Appeal of appellant Satya Prakash being Criminal Appeal No. 2375 of 2006, is dismissed in full. His conviction and sentence imposed by the trial Judge is confirmed as it does not require any interference by this court. Aforesaid appellant is in jail, he shall remain incarcerated to serve out remaining part of his sentence.

Let a copy of this judgment be certified to the trial court for it's intimation and future action.

Dt.3.5.2011

RK/AKG/-