Ram Dayal Gupta And Another vs State Of U.P.
2012 Latest Caselaw 6099 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 

 
		        Criminal Appeal No. 5113 of 2004
 

 
1.  Ram Dayal Gupta son of Ram Lutawan
 
2.  Shakuntla alias Sonpati, w/o Ram Lutawan
 
     Both residents of Tinich, P.S.-Gaur, District-Basti                        			      						..................  Appellants.
 
Vs.
 
State of UP						 .................Respondent.
 
*******
 
Hon'ble Rakesh Tiwari, J.

Hon'ble Anil Kumar Sharma, J.

(Delivered by Justice Rakesh Tiwari)

We have heard Sri R. Rai and Sri A.K. Rai, appearing for the appellants, Syed. Ali Murtuza, learned Brief Holder for the State, and perused the record.

This criminal appeal challenges the judgement and order dated 26.8.2004 passed by Sessions Judge, Basti in Session Trial No.39 of 2004: State Vs. Ram Dayal Gupta and another convicting the appellants under section 304-B IPC and sentencing them to undergo imprisonment for life, under section 498-A IPC to one year R.I. with fine of Rs.1000/- each and in case of default of fine, the accused/appellants to undergo 6 months additional R.I. The appellants have been further sentenced under section 3/4 of Dowry Prohibition Act to 1 year R.I. with fine of Rs.1000/- each and in default of payment of fine to undergo 6 months additional R.I.

The appeal is preferred on the ground that conviction of the appellants is against the weight of evidence on record; that conviction of the appellants is bad in law and in any case sentence imposed upon the appellants is too severe.

The facts culled out from the written report of complainant dated 28.6.2003 are that Smt. Pushpa daughter of complainant was married according to Hindu rites with accused-Ram Dayal about a year back and a good amount of money was spent in the matrimonial alliance even beyond the capacity of the complainant-father of the deceased. However, the accused were not satisfied and further demanded ring and seekar (chain) which was promised in dowry; that the complainant could not fulfil the demand in as much as he has three daughters, but it was promised that he would satisfy the said demands later on; that as demands were not fulfilled, the husband and his parents started torturing, tormenting and teasing the deceased. When the deceased visited her parents' house, she narrated her plight to her parents. The complainant consoled her saying that as soon as his financial position eases, the demand of dowry of her in-laws would be fulfilled. On 28.6.2003 the complainant received an information with regard to death of her daughter and he reached there. He was told by the villagers that deceased was beaten and killed on account of non-fulfilment of dowry by her in-laws and her dead body was placed near the Railway line.

On the basis of written report, the chick report was recorded by constable Mahaveer Singh who also made an entry into the G.D. on 28.6.2003. The dead body of deceased was recovered near the railway track which was taken into possession by Sri Prem Nath Tewari, S.I. P.W. 9. Immediately after the police was informed with regard to the recovery of the dead body, it was taken into possession by the police and the inquest report was prepared. The corpse was sent to the District Hospital, Basti for autopsy which was submitted by Dr. M.K. Sinha, P.W.8 along with another doctor, who conducted the post mortem on 28.6.2003 on the cadaver of the deceased which was brought by constable Mahaveer Singh and Radhey Shyam Yadav. The investigation of the crime was conducted by Sri Anil Mishra, Dy. S.P., P.W. 5 who recorded the statement of the witnesses and prepared the site-plan and after completion of the investigation, he submitted charge sheet against all accused persons. The post mortem report shows ante mortem injuries on the body of the deceased thus:

1.Incised wound with sharp margins 7 cm x 1 cm x bone cut on right side of forehead, obliquely placed upper end at middle of forehead and lower end at lateral angle of right eye clotted blood present. Brain membrane cut and clotted blood present in brain matters.

2.Incised wound 3 cm x 1 cm x muscle deep on right side of upper lip and cut through and through, clotted blood present.

3.Incised wound 9 cm x 2 cm x muscle deep on lower part of right knee joint, clotted blood present.

4.Incised wound 10 cm x 2 cm x muscle deep on upper part of right leg 3 cm below injury no. 3, clotted blood present.

5.Lacerated wound 1 cm x .5 cm on left leg 3 cm below left knee joint, clotted blood present.

6.Incised wound 6 cm x 1.5 cm x bone cut deep on left ankle joint, just below left lateral malodorous, clotted blood present.

All the accused persons pleaded not guilty and urged that the entire allegations against them are false. However, accused Ram Dayal admitted that he was married with the deceased one year back from the date of occurrence; that one month before the occurrence, Lal Chandra, the husband of the elder sister of the deceased, had taken the deceased on the pretext that her mother was ill; that similar statement was also made by Ram Lutawan and by Smt. Shakuntla Devi in their examination under section 313 Cr.P.C.; but accused Smt. Kailashi who is sister of the husband of the deceased, pleaded that she was married about one year before the occurrence and she was residing with her in-laws; and had not come to her parents' house since then. She in her examination under section 313 Cr.P.C. alleged that a false case was foisted by the parents of the deceased against her and her family members to defame them.

The prosecution examined 9 witnesses in support of its case and also proved documents in order to prove the charge, whereas the accused persons examined one Arjun Prasad- D.W.1 and Rajesh-D.W.2 in defence.

The Court considering the provisions of Section 304-B of I.P.C. which deals with the dowry death and related evidence produced by the prosecution of Sant Ram (P.W. 1)- father of the deceased, Vidyawati (P.W.2)-mother of the deceased, Lal Chand-(P.W.4)- husband of the elder sister of the deceased and the doctor who had conducted the post mortem-P.W.8, came to the conclusion that there is overwhelming evidence showing that death caused to the deceased was unnatural and come within the ambit of Section 304-B/498-A IPC as well as under section 3/4 of D.P. Act. According to the findings of the court, reading of section 113-B of Evidence Act and section 304-B IPC in relation to evidence produced by prosecution show that soon before the death of deceased she was subjected to cruelty and harassment and that her death was not a possibility of natural or accidental death. The court also found that marriage of deceased was solemnized with the accused/appellant -Ram Dayal; that the deceased-Pushpa died on 28.6.2003 within seven years of her marriage; and that dowry demand was root cause of her death for which she was subjected to harassment by her in-laws and her husband.

Regarding case of Smt. Kailashi, who is real sister of the deceased, the court noted that in her statement under section 313 Cr.P.C., she has stated that after her marriage she had been living with her in-laws and had nothing to do with alleged demand of dowry; and that she had never come to her parents' house after her marriage. The court did not find her guilty of the charge while considering the case of Ram Lutawan- father-in-law of the deceased. The court held that she would neither be beneficiary nor would be affected in any way if the demand is fulfilled or not. In the circumstances, the court below was of the view that Ram Lutawan, the father-in-law and Kailashi- the sister-in-law of the deceased have been falsely implicated. The court of sessions, relying upon the judgment of the Apex Court rendered in the case of Kansh Raj Vs. State of Punjab & others, AIR 2000 SC 2324, acquitted them, but convicted the others i.e. the husband and the mother in-laws of the deceased vide the judgment impugned in the present criminal appeal.

Learned counsel for the appellants has submitted following points for consideration:

1.From plain reading of the FIR, nothing against mother-in-law about demand of dowry is found. He submits that in the FIR it has been clearly stated that it was the husband and father-in-law of the deceased who were demanding ring and chain in dowry.

2.The appellant- Shakuntla alias Sonpati suffered from ill-health and was not able to move.

It is vehemently argued by counsel for the appellants that acquittal of other two co-accused has been made on the same evidence on which the appellants in the present appeal have been convicted, therefore, the appellants in the present appeal should also be extended same benefit of acquittal.

In this regard he has placed reliance upon the statement of Lal Chand (P.W. 4) son of Ram Kuber who was married to elder daughter of the complainant who stated in his statement that the deceased was murdered by all the accused persons namely Ram Dayal, Ram Lutawan, Shakuntla and Kailashi. He has also stated that his father-in-law and the villagers had told him that the deceased was murdered by the accused persons and her dead body thrown near the railway track which was just adjacent to the house of appellants and the Railway station.

Per contra, learned counsel for the appellants submitted that there has been no overt-act in his aforesaid statement attributed to the accused-appellants by P.W. 4. Therefore, the appellants are entitled to be acquitted as there is no specific role assigned to of any of them in the said allegation of doing away with Smt. Pushpa (since deceased). On the question of reduction of sentence, he has placed reliance upon paragraphs 11 to 17 of the judgment rendered by the Apex Court in the case of G.V. Siddaramesh Vs. State of Karnataka 2010 (68) ACC 1008. He submits that the appellants have already undergone sentence of 18 years imprisonment in jail, therefore, in consideration of the view taken by the Apex Court in the aforesaid case, the appellants in the present appeal are entitled to be released by awarding sentence already undergone by them in jail.

After hearing counsel for the parties, and from perusal of evidence of Sant Ram and Vidyawati, P.W.1 & 2 respectively, as well as from reading of FIR and charges, it is apparent that the appellants have not been convicted under section 302/304 IPC. In fact, the accused-appellants have been charged under section 304-B of I.P.C. which lays down certain conditions for application of said section. Section 304-B of I.P.C. reads thus:

"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 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 her husband and 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, and (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."

Admittedly, the deceased-Smt. Pushpa had been married about a year back with the accused/appellant- Ram Dayal Gupta. It is also admitted that she died within one year of her marriage. A perusal of FIR as well as statement of P.W. 3 show that giving a ring and chain a dowry was a condition of marriage which could not be fulfilled by father of the deceased. According to the statement of P.W. 1, he had promised to fulfil the aforesaid demand of dowry some time after marriage as he could not fulfil the same at the time of marriage. It has come out in the evidence as well as in the FIR that in-laws of the deceased i.e. appellants in the present appeal were not only demanding dowry since settlement of her marriage, but were harassing and torturing the deceased after marriage had been performed. She had told this to her father in presence of P.W. 3 also about the continuing demand of ring and chain which had not been given in dowry at the time of marriage. Therefore, all the elements provided for applicability of section 304-B of I.P.C. for dowry death are proved from the record.

A perusal of post mortem report shows that the doctor had opined that death was caused due to shock and haemorrhage as a result of ante mortem injuries which have been elicited above. The deceased was brutally killed in her matrimonial home and there is no explanation how the body of the deceased came to the railway track. It is noteworthy that Dr. M.K. Sinha P.W.8 has stated that ante mortem injuries found on the person of deceased cannot be sustained by her in railway accident. This statement of the doctor has gone unchallenged. Section 304-B does not imply on overt-act by the accused persons. It is sufficient for its application if the conditions laid down therein are met and as soon as they are fulfilled, a presumption to death for demand of dowry come into existence.

The contention of counsel for the appellant that the appellants in present appeal are also entitled to be released on the basis of evidence on which other two co-accused have been acquitted, is fallacious. The court below has discussed the evidence on record in detail in this regard which shows that the evidence on which co-accused have been acquitted is different from the evidence on which the accused/appellants in the present appeal have been convicted.

For all the reasons stated above, we are of the view that there is no illegality or infirmity in the judgment impugned in the present appeal, and the appellants have rightly been convicted under section 304-B IPC and sentencing them to undergo imprisonment for life, and under section 498-A IPC to one year R.I. with fine of Rs.1000/- each.

The appeal is, accordingly, dismissed.

Let a certified copy of judgment be sent to the court concerned for ensuring compliance which should be reported to this Court within two months.

Dated: 18.12.2012

RCT/-