Ramesh Chandra Gupta vs The State Of U.P.& 3 Ors.
2013 Latest Caselaw 5082 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 12	                 										
 
Case :- CRIMINAL REVISION No. - 567 of 2007
 

 
Revisionist :- Ramesh Chandra Gupta
 
Opposite Party :- The State Of U.P.& 3 Ors.
 
Counsel for Revisionist :- S.A.Siddiqui
 
Counsel for Opposite Party :- Govt.Advocate,Arun Sinha,Gulam Mustafa
 

 
Hon'ble Arvind Kumar Tripathi (II),J.

1. This criminal revision has been filed by Ramesh Chandra Gupta challenging the order of acquittal passed by Additional Sessions Judge/Fast Track Court No. 2, Unnao, dated 5th of September 2007, in Session Trial No. 363 of 2003, under section 498A, 304B I.P.C and section 3/4 of Dowry Prohibition Act, Police Station- Purwa, District Unnao.

2. Brief facts are as follows, a first information report was lodged by Ramesh Chandra Gupta in Police Station Purwa on 1st July 2003 at about 1:50 PM alleging that his daughter Kanchan Gupta was married with Manoj Gupta son of Bharat Gupta on 19th of May 2002 Manoj Gupta, from his childhood, was living with his Bua Smt Indrani Gupta and Fufa Durgesh Gupta in their residence Kastolwa kasba Purwa, District Unnao. He has spent and given Rs.51,000/- cash, fridge, motorcycle, colour TV and ornaments in dowry. Bua and Fufa of Manoj Gupta had performed/arranged the marriage, but they were not satisfied with the dowry and started demanding One Lakh rupee cash from the very beginning. His daughter returned to her parental house after Chauthi ceremony and when she returned back to her matrimonial house, they threatened her to kill by burning and did not perform bidai for seven months. On 18th of April 2003, his daughter came back to her parent's house and she told them that they are inclined to kill her and are also inclined to remarry Manoj. On 30th June 2003,at about 8 AM a person told them that Manoj, Durgesh and Indrani had killed her by burning. On this information, when informant along with his son Vipin was going to Purwa, he met with Manoj at Basaha Tiraha, who was taking his daughter to Lucknow on a jeep. The whole body of his daughter was burned. When he asked from his daughter then she told him that the above three persons have burned her for non-payment of one lakh rupees. Informant went to Lucknow on the same jeep and on the way his daughter repeatedly told him the same fact. She succumbed to the burn injuries before reaching Medical College Lucknow. Her postmortem was conducted in Lucknow o 30th of June 2003.

3. On this report a first information report was lodged against Manoj Kumar Gupta, Durgesh Gupta and Indrani Gupta under section 498A, 304B IPC and section 3/4 Dowry Prohibition Act. After investigation, charge-sheet was submitted against them under the above sections.

4. Charges under the above sections were framed against the accused persons, to which they denied and claimed it to be tried.

5. Prosecution in order to prove the case, examined P.W.1 Ramesh Chander, P.W-2 Vipin Kumar Gupta, P.W-3 Constable Ram Singh, P.W-4 Dr. Sharad Kumar Verma, PW-5 Vijay Bahadur Rai, P.W-6 Paresh Pandey Supt of police, P.W-7 Constable Chandrika Prasad and P.W -8 Naib Tehsildar Desh Deepak Singh.

6. After close of prosecution evidence, statement of accused persons under section 313 of Criminal Procedure Code was recorded. Accused persons denied the charges and stated that Kanchan died due to accidental burn injuries while she was cooking food. Accused persons did not adduce any evidence in their defence.

7. Learned Court below, after going through the evidence and after hearing the arguments, acquitted all the accused persons from the charges framed. Feeling aggrieved, this criminal revision has been filed by the Informant.

8. I have heard Sri S. A. Siddiqui learned counsel for revisionist and Sri Arun Sinha learned counsel for respondents and learned A.G.A. for the State and gone through the record.

9. It was submitted by learned counsel for revisionists that admittedly death occurred within seven years of the marriage and the death was unnatural due to burning. It was also argued that there was an allegation of demand of dowry and harassment for non-fulfillment of demand of dowry, hence it will be presumed that it was a dowry death caused by the accused persons. It was also argued that while going to Medical College Lucknow the deceased herself, who was alive at that time, had told the informant that she was burned by her husband, Durgesh and Smt. Indrani for non-fulfillment of demand of Rs.1 lakh cash. It was further submitted that this statement should have been treated as dying declaration of the deceased but the Court below has committed a mistake in not treating that statement to be the dying declaration. It was also submitted that there is evidence that she was subjected to cruelty soon before her death and thus the presumption under section 113B of Evidence Act is applicable against the accused persons.

10. It was submitted from the side of learned counsel for respondent 2 to 4 that there is no evidence regarding the deceased being harassed for non-fulfillment of demand of dowry soon before her death. It was further submitted that due to this the presumption under section 113B of the Evidence Act will not arise. It was further submitted that in the absence of such presumption, Prosecution has to prove its case beyond reasonable doubt, in which the Prosecution has miserably failed. It was further submitted that the alleged statement of the deceased before her father does not fall under the category of dying declaration and the learned court below has rightly disbelieved that statement and accused persons have been rightly acquitted. It was further submitted that the Revisional Court cannot substitute its finding by replacing the finding given by the day trial court. It was also submitted that when there are two views possible then the view that supports the defence is to be considered.

11. A perusal of the decision of the trial court shows that trial court has acquitted the accused persons on two grounds, firstly that there is no evidence of harassment for demand dowry soon before her death and secondly the dying declaration is not believable as the deceased was not in a position to talk.

12. It is well settled that a revisional court can re-appreciate the evidence in order to ascertain as to whether the findings given by the trial court are perverse.

13. Admittedly, marriage was performed on 19th May 2002 and death occurred on 30th June 2003. It is also admitted that cause of death was shock as a result of anti-mortem burn injuries. It has come in evidence of the PW-1 that soon after the marriage, Manoj, Durgesh and Indrani started demanding one lakh rupees as dowry. It has also come in evidence of PW-1 that his daughter came from her matrimonial house after chauthi and thereafter she went to her matrimonial house, where she was threatened that she will be killed by burning if one lakh rupees is not paid to them. She was also not sent back to her parental house for seven months. He has further stated that his daughter came from matrimonial house on 18 April 2003. Then she told them that father, give them one lakh rupees otherwise they will kill her and remarry Manoj. The same facts has been narrated by P.W -2 Vipin Kumar.

14. From the above statements it is established that there was demand of dowry and the deceased was being harassed for non-fulfillment of demand of dowry.

15. The expression "soon before death" has not been defined either in Indian Penal Code or in Evidence Act, therefore in each case court has to analyze facts and circumstances leading to death of victim and decide if there is any proximate connection between demand of dowry and act of cruelty or harassment and death. In the case of Kailash AIR 2007 S.C.107, Heera Lal 2003(8) SCC 80, Harjeet Singh JT 2005(10) 399. It has been held that the expression is a relative term which is required to be considered under specific circumstance of each case and no straight jacket formula can be laid down by fixing any time limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before" is synonymous with the term " Immediately before". This is because of what is stated in section 114, illustration (a) of the Evidence Act. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. The expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question.

16. In relation to dowry death, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death", if any other intervening circumstance showing the nonexistence of such treatment is not brought on record, before such alleged treatment and the date of death.

17. In the instant case, it has come in evidence that marriage was performed in the month of May 2002 and the deceased died on 30th June 2003. The intervening period is only one year and eleven days. It has also come in evidence that the girl came to her parental house on 18 April 2003.It has also come in evidence that at that time she told her parents that pay Rs. 1 lakh otherwise she will be killed. It has also come in evidence of the P.W-2 that after that she went to her matrimonial house in the month of June 2003 where she died of burn injuries on 30th of June 2003.

18. The evidence in this case shows that the finding given by the trial court that there is no evidence to show that the deceased was subjected to cruelty soon before her death, is not based on evidence on record and is perverse.

19. Coming to the second aspect of the case regarding dying declaration, the position which emerges from the evidence on record is that P.W-1 has not been cross-examined by the defence on this aspect. In view of this fact the statement of PW-1 is unrebutted. P.W-2 has also testified about this fact in his examination -in- chief, in his cross-examination this witness too has stated about the fact that his sister told him that she has been burned by the accused persons on non-fulfillment of demand of one lakh rupees.

20. P.W-4 is the doctor who has performed the autopsy of the body of the deceased and prepared the postmortem report. Though the doctor has stated that the deceased has suffered deep burn injuries to the tune of 90% but the very relevant question was not asked to establish that whether in such type of injuries, the deceased would be able to communicate or tell anything to her father. In absence of such fact, the reasoning given by the trial court is based on only conjecture and surmises. There is nothing on record to show that the deceased was unable to communicate about her death to her father.

21. In the case of Laxman versus State of Maharashtra A.I.R 2002 Supreme Court page 2973, the Apex Court has held that a dying declaration can either be oral,or in writing and that any adequate method of communication, whether the use of words, signs or otherwise will suffice, provided that the indication is positive and definite. There is no requirement of law stating that a dying declaration must necessarily be made before a magistrate. This view has, later on, been reiterated by the Apex Court in the case of State of Madhya Pradesh Vs. Dal Singh and others 2013 Cr.L.J 2983.

22. From the above discussion this court is of the view that the findings and the reasoning given by the trial court for not applying the presumption under section 113-B of the Evidence Act in the instant case and acquitting the accused persons are based on conjectures and surmises and are not based on the evidence or record and thus is perverse and liable to be quashed.

23. Consequently this criminal revision is liable to be allowed and is hereby allowed. The judgment of the trial court dated 5th September 2007 is set aside. The session trial number 363 of 2003,crime number 284 of 2003,under section 498 -A, 304-B I.P.C and 3/4 Dowry Prohibition Act is remanded back to the Session's Judge, Unnao either to decide himself afresh or transfer it to some other competent court to decide it after hearing the parties on the same evidence which is on record, probably within a period of six months from the date when a certified copy of this order is placed before the Session's Judge Unnao.

 

 
Order Date :- 14/8/2013
 
Subodh/-				 [Justice Arvind Kumar Tripathi (II)]