Krishna Kumar vs State Of U.P.
2013 Latest Caselaw 2609 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.8								Reserved										     AFR
 
		
 
		 High Court of Judicature at Allahabad,
 
                      		Lucknow Bench, Lucknow
 
		     	
 
			District- Lakhimpur-Kheri
 

 
Case :- Criminal Appeal No. - 623 of 2007
 

 
Krishna Kumar S/O Ram Swaroop, R/O Village Mathiya
 
P.S. Kotwali Sadar, Lakhimpur-Kheri	-----------------Appellant
 
			
 
			Vs.
 
State Of U.P.				-----------------Respondent 
 

 
Counsel for Appellant :- Kapil Dev Srivastava,R K   						      Singh,Vishwas Shukla
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble  Vishnu Chandra Gupta, J. 
 
				JUDGEMENT

Challenge in this criminal appeal under Section 374 (2) of Code of Criminal Procedure (for short Cr.P.C.) is the judgement and order dated 01.03.2007 passed by Additional Sessions Judge/ Fast Track Court No.6, Lakhimpur Khiri in Sessions Trial No. 448 of 2003 convicting the sole appellant Krishna Kumar under Section 304-B IPC with 10 years simple imprisonment, under Section 498-A IPC with two years simple imprisonment and fine of Rs. 1000/-, in default of payment of fine further three months simple imprisonment and under Section 4 Dowry Prohibition Act(for short DP Act) with one year simple imprisonment and a fine of Rs. 1000/-, in default of payment of fine further two months simple imprisonment. The trial Court did not direct that the sentences awarded to run concurrently.

Facts

Facts in nutshell are that appellant married with Renu, daughter of Bharat Prasad (PW1) about two and half years ago from the date of occurrence. The FIR was lodged by Bharat Prasad (PW1) on 22.11.2002 with the allegations that appellant after marriage started harassing on account of demand of motorcycle in dowry. On 21.11.2002 appellant assaulted her at about 9.00 p.m. The information assaulting Renu by the appellant was communicated by one Rajesh son of Chhotan, resident of Village Mathiya. After receiving this information Bharat Prasad along with wife Kanyawati (PW2), his sons Sanjay, Jaiprakash and elder brother Shyam Narayan went to village Mathiya on 22.11.2002. They reached about 9.00 A.M. where they found dead body of Renu. Written report (Ext. Ka-1) was given by Bharat Prasad in the police station, on the basis of which, the FIR (Ext Ka-8) was drawn after making necessary entries in G.D. No.25 (Ext Ka 9) under Section 304B, 498A IPC and ¾ D.P. Act at case crime No. 1074 of 2002 in P.S.-Kotwali, Lakhimpur Sadar, District Lakimpur Khiri. The matter was investigated. The inquest (Ext.Ka-2) was drawn upon the dead body of deceased Renu . Dead body of the deceased sent for post mortem examination with Chalan of dead body (Ext.Ka-3), sketch of dead body (Ext.Ka-4), letter written to R.I. (Ext. Ka-5), letter to CMO (Ext.Ka-6) , impression seal (Ext. Ka-7) and with other necessary papers.

The post mortem examination of deceased was conducted on 22.11.2002 at 2.30 P.M. by Dr.A.K. Arya (PW4) and Dr. S.K.Shukla. The following ante mortem injuries were noted in post-mortem examination report (Ext.Ka-10):-

i. Abraded contusion 6 cm x 3 cm over inner aspect of right forearm 6 cm below right elbow.

ii. Abraded contusion 9 cm x 3 cm over back of left forearm 3 cm below left elbow.

iii. Abraded contusion 6 cm x 2 cm over outer aspect of left side chest 20 cm below left axilla

iv. Abrasion 3 cm x 1 cm over left scapula

v. Contusion 2 cm x 2 cm on front of left leg 6 cm above ankle joint.

vi. Abraded contusion 10 cm x 6 cm over front of left thigh 18 cm below left knee.

vii. Abraded Contusion 15 cm x 6 cm over front of left leg just below left knee

viii. Contusion 3 cm x 2 cm on front of right leg 2 cm above ankle joint.

Membranes, brain, plural, lungs both, mucosa, gall balder and spleen were found congested. The cause of death could not be ascertained by the doctor. Consequently viscera was preservers. However, no report of viscera was brought on record before trial court.

After recording the statement of witnesses and concluding the investigation conducted by Sri S.K. Shukla PW7 and later by C.O., Digamber Jain, charge sheet (Ext Ka-10)[wrongly marked again Ext.Ka-10] was filed. The Investigating Officer also prepared site plan (Ext. ka-11).

To support its case, the prosecution examined Bharat Prasad (PW1) father of the deceased, Smt. Kanayawati (PW2) mother of deceased, Vijay Vardhan Tomar (PW3) Tehsildar who prepared inquest, Head constable Dujai Ram (PW4), Dr. A.K. Arya (PW5), Digamber Singh, C.O. Police (PW6) and S.K. Shukla C.O. Police (PW7). After conclusion of evidence of the prosecution appellant under section 313 Cr.P.C. claimed his false implication on account of dispute of return of articles given in marriage . Appellant also adduced oral evidence of one Rakesh Giri (DW1). The appellant claimed that death of deceased was natural.

After appreciating evidence on record trial court recorded the conviction and sentence by impugned judgement and order against appellant. Hence this appeal.

Heard the learned counsel for the appellant and special counsel appearing on behalf of the complainant and learned AGA.

Submissions of Counsel for the parties

Learned counsel for the appellant submits that in this case prosecution has failed to establish that death of deceased was otherwise than in normal circumstance hence necessary ingredients of section 304-B IPC are not established. Consequently, to prove the offence under section 304-B IPC the presumption under Section 113-B of Evidence Act cannot be drawn and the appellant is entitled to be acquitted under Section 304-B IPC.

It was further submitted that no FIR or any complaint was ever made before the incident about the demand of motorcycle. It was further submitted that if it is taken to be true that deceased have ante-mortem injuries even then prosecution has failed to establish that the deceased died due to injuries sustained by her in the light of statement of doctor. It was further submitted that possibility of this fact cannot be ruled out that these injuries may come due to fall of deceased. Hence no offence is made out against the appellant and the appeal deserve to be allowed.

It is also submitted by learned counsel for the appellant that trial court has committed manifest error of law by not mentioning the sentence to run concurrently.

Learned counsel for the appellant further contended that it is not a case in which deceased died on account of burn. The prosecution failed to establish the cause of death of deceased. Viscera report has not been brought on record. From the evidence of PW 5 Dr. A.K. Arya it is established that injuries caused to the deceased were simple in nature and death could not be caused due to these injuries. Dr. Arya categorically stated that death was not the result of ante mortem injuries found on the person of the deceased, therefore , prosecution has failed to establish that deceased died on account of bodily injuries. In these circumstances her death cannot said to have been caused "otherwise than in normal circumstances" within the meaning of Section 304-B IPC. Therefore, most important ingredient of section 304-B IPC could not be established and provision of Section 113-B of Indian Evidence Act cannot be attracted.

On the contrary, learned AGA has shown that doctor found ante mortem injuries on the person of the deceased. It has been submitted by learned AGA that accused could not have courage to suggest to the doctor during cross-examination that death of deceased was natural or these injuries would be caused by fall. In absence of cross examination on these vital issues the defence taken by the appellant cannot sustain. Neither in Section 313 Cr.P.C. nor in defence evidence any explanation has been offered by the appellant about the injuries. Hence it is established on record that death was occurred otherwise than in normal circumstance. Even if viscera report is not available on record, the injuries sustained on the person of the deceased which are 8 in number show that before death the deceased was subjected to cruelty. This fact is not in dispute that death of deceased was occurred in the matrimonial home in presence of sole appellant who is husband of the deceased. Harassment on account of demand of dowry is established from the evidence of parents coupled with injuries sustained by the deceased before death, as such all necessary ingredients under Section 304-B and 498-A IPC and section 4 D.P. Act are available.

It is further submitted by learned AGA that in such type of cases it is the discretion of trial court to decide, whether the sentences awarded under different sections may run concurrently or consecutively. Therefore sentences could not run concurrently in the above mentioned case. Hence appeal deserve to be dismissed.

The special Counsel did not submit any new point and virtually adopted the arguments advanced by the learned AGA.

To appreciate the arguments advanced by the parties it would be necessary to have a fresh look of the evidence on record of the trial Court.

Bharat Prasad (PW1) is the informant and also the father of the deceased. He stated on oath that appellant is his son in law ans his marriage was solemnized about 2 and ½ year before this incident. He demanded Motorcycle in dowry. He could not fulfil the demand. On account of demand of dowry and its non fulfilment her daughter Renu was treated with physical cruelty by the appellant as informed to him by his daughter . Her daughter also apprehending his killing in her matrimonial home for this reason. On 22.11.2002 Rajesh resident of Mathiya informed that her daughter was beaten by the appellant at about 9.00 pm and she died. On this information he along with his wife Kanayawati (PW2) and other family members went to village Mathiya where he found that the dead body of her daughter is lying in the house of appellant with mark of injuries on her body. He also stated that he lodged the FIR on the basis of written report and proved the same. He also stated in cross-examination that no body was there when he reached to the house of appellant. He also stated that he did not make any complaint of harassment and cruelty in police because he wanted to continue the relationship of he daughter with the appellant. He denied this suggestion that her daughter was suffering from acute pain, so she used to fell down. He also denied that after the death of his daughter he demanded back the dowry. He also denied that her daughter died natural death.

Smt Kanayawati (PW2) fully corroborated the statement of her husband and supported the prosecution version. In cross examination she stated that who got her daughter in hospital she is not aware. She denied that her daughter was ever suffering from stomach-ache or due to this pain she used to fell. She also denied that she threatened the appellant that if he does not return the articles of dowry, she will lodge report in police.

Nothing could be elicited after cross-examination with these two witnesses of fact which may be helpful to the defence or may be sufficient to discredit the testimony.

Vijay Vardhan (PW3) prepared the inquest and noted the injuries of deceased in inquest. He is a formal witness.

H.C.Duzai Ram(PW4) is the witness of registration of crime and proved the documents of police. He is also a formal witness.

Dr. A.K.Arya (PW5) is the doctor who conducted post mortem of deceased and proved the same. In cross-examination he stated that all the injuries on person of deceased and noted by him were simple and were not sufficient to cause death of the deceased. But he specifically denied that the injuries may be caused to the deceased due to fall on some stone or on wood. He also stated that he could not tell the actual time of causing injuries. These witnesses are also formal witnesses.

Digamber Singh Kushwaha,CO (PW6) and S.K.Shukla,CO (PW7) are the Investigating Officers and proved the different stages of investigation and also proved the documents prepared during investigation. Both these witnesses denied that they did not conduct fair investigation.

Rakesh Giri (DW1) stated on oath that Renu, the wife of appellant died her natural death. Appellant never demanded dowry from parents of deceased. Appellant and deceased were living togather with love. They gave birth to a girl. Parents of Renu came after her death and demanded the dowry given in marriage. On refusal to return by the appellant, a false case was registered against him. In cross-examination he stated that when he saw the dead body of Renu no injuries were there on her body. He used to go to the house of appellant on and off. He denied the suggestion that he is telling false on account of relations with appellant.

Findings and Discussion

(A) About charges under section 498-A IPC and 4 of D.P.Act

So far as the offence under Section 498A IPC is concerned, non explanation of injuries on the person of Renu deceased by accused appellant itself shows that she was subjected to cruelty by the husband. Hence ingredients of Section 498-A IPC are established by evidence of PW1 and PW2 supported with medical evidence . PW 1 and 2 ,the parents of the deceased categorically stated that deceased was subjected to cruelty and harassment on account of demand of motorcycle. Nothing elucidated from the evidence after cross examination which may extend any help to defence. The prosecution has successfully established that deceased was subjected to cruelty on account of demand of motorcycle in dowry. Hence necessary ingredients of Section 4 of D.P. Act are also found to be established beyond reasonable doubts. The findings recorded by the trial court in this regard are liable to be affirmed.

(B) About charge under Section 304-B IPC

The moot question for consideration before this court is that-Whether the death of deceased was occurred otherwise than in normal circumstances?

To an offence of section 304-B IPC following are the necessary ingredients;

i- where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances

ii- within seven years of her marriage

iii- and it is shown that soon before the death of the woman she was subjected to cruelty or harassment

iv- by her husband or his relations

v- for or in connection with any demand for dowry,

such death shall be called 'dowry death'

In this case, the defence is that deceased died her natural death and is not a case of dowry death. The basis of argument of appellant's counsel is that in this case death of deceased is not caused by burn or bodily injury. In post mortem the cause of death was not known. The viscera was preserved and report was not placed on record of the trial court for the reason best known to prosecution. Hence it could not be said that the death of deceased was unnatural. Therefore, due to failure to establish this important ingredient of offence charge under section 304B IPC shall fail.

The supreme Court in AIR 2000 Supreme Court 2324 ,Kans Raj v. State of Punjab held in para 17,18 and 19 held as under;

"17. It is established that the death of Sunita Kumari by suicide had occurred within 7 years of her marriage and such death cannot be stated to have occurred in normal circumstances. The term "other than under normal circumstances" apparently means not the natural death. This Court in Smt. Shanti v. State of Haryana, AIR 1991 SC 1226 : (1990 Cri LJ 1713) held that (Para 4) :

". . . . . . . . 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 the death of the woman she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called 'dowry death" and the husband or relatives shall be deemed to have caused her death and shall be punishable with imprisonment for a minimum of seven years but which may extend to life imprisonment."

18. In other words the expression 'otherwise than under normal circumstances' would mean the death not in usual course but apparently under suspicious circumstances, if not caused by burns or bodily injury.

19. The High Court appears to have adopted a casual approach in dealing with a specified heinous crime considered to be a social crime. Relying upon minor discrepancies and some omissions, the Court has wrongly acquitted the accused-husband, namely, Rakesh Kumar. The charges framed against respondent No. 2 had been proved by the prosecution beyond reasonable doubt and there was no justification for interfering with the conviction recorded and sentence passed against him by the trial Court."

AIR 1991 Supreme Court 1226 ,Shanti v. State of Haryana the Apex Court in absence of postmortem examination and inquest of the deceased and also after cremation of the dead body held that the death occurs otherwise than under normal circumstances as is evident from para 5,6,7,and 8 of the judgement

"5. Both the Courts below have held that the two appellants did not send the deceased to her parent's house and drove out the brother as well as the father of the deceased complaining that scooter and television have not been given as dowry. We have carefully examined this part of the prosecution case and we are satisfied that the prosecution has established beyond all reasonable doubt that the appellants treated the deceased cruelly and the same squarely comes within the meaning of "cruelty" which is an essential, under S. 304-B and that such cruelty was for demand for dowry. It is an admitted fact that death occurred within seven years of the marriage. Therefore three essentials are satisfied. Now we shall see whether the other essential namely whether the death occurred otherwise than under normal circumstances is also established? From the evidence of P.W. 1, the father, P.W. 2 the brother, and P.W. 3 the mother, it is clear that they were not even informed soon about the death and that the appellants hurriedly cremated the dead body. Under these circumstances, the presumption under S. 113B is attracted. The accused examined defence witnesses to rebut the presumption and to show that the deceased suffered heart-attack. We have examined the evidence of D.Ws. 2 and 3 and we agree with the Courts below that this theory of natural death cannot be accepted at all. No material was placed to show that the deceased suffered any such attack previously. if it was natural death, there was no need for the appellants to act in such unnatural manner and cremate the body in great and unholy haste without even informing the parents. Because of this cremation no postmortem could be conducted and the actual cause of death could not be established clearly. There. is absolutely no material to indicate even remotely that it was a case of natural death. It is nobody's case that it was accidental death. In the result it was an unnatural death; either homicidal or suicidal. But even assuming that it is a case of suicide even then it would be death which had occurred in unnatural circumstances. Even in such a case,S.304B is attracted and this position is not disputed. Therefore, the prosecution has established that the appellants have committed an offence punishable under S.304B beyond all reasonable doubt."

In view of the aforesaid decisions of Apex Court the circumstances are material and not of non availability of cause of death to establish that case falls within the ambit of terms " otherwise than under normal circumstances ".

In this case prosecution proved that deceased was having as many as 8 injuries on the person of deceased. The parents proved that deceased was subjected to harassment and cruelty on account of demand of dowry. The appellant did not adduce any evidence that deceased was suffering from any disease at the time of death or she fell down and she got injuries. The statement of defence witness that body of deceased was not having any injuries cannot be accepted in view of statement of Dr. A.K.Arya PW5. Hence the theory of natural death is not established. The appellant has failed to explain as to how these injuries were caused to her before her death. Hence in the aforesaid circumstances the death of deceased shall be termed as unnatural death.

It is also proved that deceased was subjected to cruelty by the appellant , her husband,on account of demand of dowry soon before her death as injuries were found on person of the deceased. It is not denied that death of deceased was occurred within 7 years of her marriage in the matrimonial house. It is true that viscera report has not been brought on record by the prosecution but it has not been argued that the same was suppressed. It may be latches on the part of prosecution but this laps on the part of prosecution cannot be taken to be the sole point to acquit the appellant from the serious charges of dowry death, specially when sufficient material is available on record to prove all the necessary ingredients of offence under section 304-B IPC.

In view of the above facts and circumstances of the case , the conviction of appellant is liable to be confirmed under section 304-B, 498-A IPC and under section 4 of D.P.Act.

So far as sentence part of judgement of trial court is concerned, this Court is of the view that end of justice shall meet if the sentences awarded to the appellant under section 498-A, 304-B and Section 4 of D.P.Act should be directed to run concurrently. Accordingly the judgement and order of the trial court is liable to be modified.

The appeal is dismissed. The conviction of appellant under section 304-B, 498-A IPC and section 4 of D.P.Act is hereby confirmed. The sentences awarded by the trial Court under section 304-B, 498-A IPC and 4 of D.P.Act are also confirmed but with direction that these sentences shall run concurrently. The trial Court Judgement and order is modified accordingly.

Let a copy of judgement of this appeal along with record of trial court be sent back forthwith with direction to the trial court that release of appellant be ensured in terms of judgement of this court.

Order dated:23.05.2013

GSY