Sharad Tripathi vs State Of U.P.
2013 Latest Caselaw 6274 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- CRIMINAL APPEAL No. - 1428 of 2010
 

 
Appellant :- Sharad Tripathi
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Abhay Kumar, D P Singh
 
Counsel for Respondent :- Govt. Advocate, Sunil Kumar Singh
 
AND
 
Case :- CRIMINAL APPEAL No. - 952 of 2010
 

 
Appellant :- Smt. Rajeshwari & Ors.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Abhay Kumar, Akhil Kumar Mishra, Anita Singh Nagore, Chandra Shekhar Sinha, Shishir Singh Chaunah
 
Counsel for Respondent :- Govt. Advocate, Sunil Kumar Singh
 

 

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

1. Heard Chandra Shekhar Sinha, learned counsel for the appellants assisted by Shri Sanjay Singh Chauhan; Sri Sunil Kumar Singh learned counsel for the complainant; and Ms Zeba Islam Siddiqui, learned AGA for the State respondent.

2. These two criminal appeals have arisen out of the judgment and order dated 2.3.2010, hence they have been heard together and are being decided by a common judgment.

3. Both the aforesaid criminal appeals have been filed against the judgment and order dated 12.3.2010 passed by the learned Additional Sessions Judge, Court No.4, District Hardoi in Sessions Trial No.772 of 2008, case crime no.1771 of 2008, Police Station Kotwali City, District Hardoi by which the appellants - Sharad Tripathi, Smt. Rajeshwari, Vimal and Gopesh, were convicted under Section 304-B IPC and sentenced to undergo 10 years RI, under Sections 498-A IPC and sentenced to undergo 1 year RI along with fine of Rs.1000/-. In default of fine, they were directed to undergo 2 months RI, and under Section ¾ of the Dowry Prohibition Act and sentenced to undergo 6 months RI along with fine of Rs.1000/-, and in default, of fine were directed to undergo two months extra imprisonment.

4. As per prosecution version, a FIR was lodged by Suresh Chandra Trivedi in Police Station Kotwali City, Hardoi on 23.6.2008 that his daughter Neelam was married with Sharad Tripathi son of Raj Kumar Tripathi on 24.11.2007, and in this marriage sufficient gifts etc. was given according to his capacity, but Sharad Tripathi, his father Raj Kumar Tripathi, mother Smt. Rajeshwari, brothers Vimal and Gopesh and sister Jyoti were not satisfied with that gift etc., and were demanding a Hero Honda motorcycle and Rs.50,000/- cash as dowry for constructing a room in their house. He was unable to fulfill their demand on account of which they started torturing and harassing his daughter. On 21.6.2008, at about 12 noon, he called his daughter, then she started weeping, and said 'give them motorcycle and pay Rs.50,000/- cash, otherwise she will be killed, and they are talking of contracting second marriage'. In the night of 21/22.6.2008, at about 2.15 AM, Sharad Tripathi called his son and informed him that Neelam is missing. Then he went to the marital house of Neelam, but she was not available there. During search, somebody informed that a dead body of a girl is lying near railway track. He rushed towards the railway track, but all the family members of Sharad Tripathi fled away from their house. He went to the railway track, and found that the dead body was of his daughter Neelam. There were several injuries on her body. In the meantime, GRP arrived and prepared inquest report, and sent the dead body for post mortem. Slippers of Sharad Tripathi was also found near the dead body, which was sealed by the police. On this information, FIR under Sections 498-A, 304-B IPC and Section ¾ of the Dowry Prohibition Act was registered.

5. After investigation, charge sheet was submitted against Sharad Tripathi, Raj Kumar Tripathi, Smt. Rajeshwari, Vimal and Gopesh. During trial Raj Kumar Tripathi died. After committal of the case charge under Sections 498-A, 304-B IPC and Section ¾ of the Dowry Prohibition Act was framed against the accused persons. They pleaded not guilty and claimed to be tried.

6. The prosecution examined Suresh Chandra Trivedi as PW-1, Smt. Madhuri wife of Suresh Chandra Trivedi as PW-2, Prabhakar Tripathi, Naib Tehsildar as PW-3, Dr. R.C. Gupta as PW-4, Rahul Mishra, Circle Officer Police, Hardoi as PW-5, Rampal Singh Sengar, Circle Officer Police, Hardoi as PW-6, and Hukuk Singh, Constable Clerk as PW-7.

7. The statement of the accused persons was recorded under Sections 313 Cr.P.C. in which they admitted that Neelam was married with Sharad Tripathi on 24.7.2007, but they denied demand of dowry, and harassment for non-fulfillment of demand of dowry. It was also admitted that Sharad Tripathi called the son of the informant in the night. After this, the defence examined Ram Kumar Tiwari as DW-1, Krishna Kumar Tripathi as DW-2 and Manoj Kumar, Junior Clerk, Chhatrapati Sahuji Medical College, Lucknow as DW-3.

8. Learned court below, after going through the evidence on record, and hearing the parties, convicted the accused persons under Sections 498-A, 304-B IPC and Section ¾ of the Dowry Prohibition Act, and directed them to undergo the sentence, as mentioned above.

9. It was argued from the side of defence that the prosecution has failed to prove the demand of dowry, and they have also failed to prove that the accused persons had committed any offence. The deceased has committed suicide, as she was not happy with the marriage because she wanted to study further.

10. Ms Zeba Islam Siddiqui, learned AGA argued that the death is unnatural, and has been caused within a year of marriage. There was allegation of demand of dowry, hence there is presumption regarding dowry death, and defence has to explain the circumstances of death to which they have miserably failed, the witnesses have not been cross examined on crucial aspects, so the court below has rightly convicted the accused persons, and no interference is warranted by the Court.

11. In this case, admittedly, the date of marriage is 24.7.2007. It is also admitted that the dead body of Neelam was found on the railway track on 22.6.2008.

12. A perusal of the post mortem report reveals that folowing injuries were found on the body of the deceased: -

(1) Lacerated wound 14 cm x 2.5 cm bone deep on forehead;

(2) Lacerated wound 8 cm x 4 cm bone deep on left side of face;

(3) Lacerated wound 3 cm x 0.5 cm on skull, 8 cm above nose;

(4) Contusion 20 cm x 10 cm on skull underneath frontal pivotal bone fractured;

(5) Lacerated wound 12 cm x 5 cm x muscle deep on from of neck;

(6) Abraded contusion 20 cm x all around left forearm;

(7) Abraded contusion 6 cm x 4 cm on left wrist. Second and third metacarpal bone found fractured;

(8) Abraded contusion 14 cm x 4 cm on left thigh. Femur bone found fractured.

(9) Crush injury 24 cm x all around just below left knee, left leg, and left foot was found absent;

(10) Contusion 18 cm x 10 cm on right thigh;

(11) Lacerated wound 3.5 cm x 2.5 cm x muscle deep on right leg, 10 cm below knee joint. Both tibia and fibula bone found fractured;

(12) Multiple abraded contusion 40 cm x 30 cm on ftontal chest and abdomen.

13. P.W.4 Dr. R.C. Gupta has proved this post mortem report to be in his own hand writing, which is Ex. Ka.9. According to this witness, the cause of death was shock and hemorrhage as a result of ante mortem injuries and time of death of about half to one day prior to post mortem. This post mortem was conducted on 22.6.2008 at about 4.30 PM. He has further stated that the death might have been caused by suicide by jumping before a train

14. It was submitted from the side of appellants that the Neelam was not willing to marry, and wanted to study, and was forcibly married against her will, and has committed suicide. In order to prove this contention, the appellants have examined DW-1 Ram Kumar Tiwari, DW-2 Krishna Kumar Tripathi and DW-3 Manoj Kumar.

15. Before examining the evidence of prosecution witness, the statement of the defence witness is essential. DW-1 Ram Kumar Tiwari has stated that he lives near the house of Sharad Tripathi. In the marriage no dowry was demanded. They never used to torture Neelam for demand of dowry. Neelam used to talk to him. She has informed him that her marriage was solemnized without her consent. She will not live with Sharad Tripathi. Neelam used to go to her maika. On 21.6.2008 also Neelam had gone some where. Sharad Tripathi and his family members and he himself were searching for her. In the meantime, they came to know that Neelam has committed by coming in front of railway train. In his cross examination, he has asked to identify the accused persons, but he could only identify Vimal, and was unable to tell the name of other persons. He further informed that the conversation with Neelam happened in the house of Vimal, and Sharad Tripathi was also present. Neelam had said that she does not like Sharad Tripathi, and she will not live with him. On this, all the accused persons were laughing. After that, the conversation took place one or two times more. He further informed that he came to know of her disappearance in the night at about 2.30 or 3 AM. He had also come out of his house after hearing the noise. At that time, matrimonial relations of Sharad Tripathi were also present. He further stated that he had reached the place of occurrence, where the dead body was found, at about 5.30 or 6 AM.

16. DW-2 Krishna Kumar Tripathi has stated that one day Neelam had come to his house and informed him and his wife that her marriage was solemnized without her consent. He has informed that Neelam used to leave the house without telling any body. On 21.6.2008, Neelam had gone some where. When he came to know, he along with Sharad Tripathi and other family members started searching her. In the meantime, they came to know that Neelam had committed suicide by coming in front of railway train. At that time, her parents were also present there. In his cross examination, he has stated that when Neelam came to her matrimonial house after marriage, he also had gone there along with his wife, but Neelam did not utter a single words. Neelam had come to his house 3 - 4 months prior to the incident along with Jyoti, and had stated that she was forced to marry Sharad Tripathi. He has further stated that he has never heard any quarrel between them. He has further admitted that due to the distance between the two house he, could not hear any conversation, or activity in the house of Sharad Tripathi.

17. There is no doubt that the dead body was found on railway track. If the theory of Neelam committing suicide by jumping on the railway track in front of railway train is to be believed, then considering the nature of injuries received by her, it was very natural that huge quantity of blood would have been found on the railway track. The Investigating Officer, who has prepared the site plan, has not found any blood on the railway track.

18. PW-5 Rahul Mishra, Circle Officer Police, Harpalpur, Hardoi was the person, who was entrusted with the investigation after lodging of the FIR. This witness has prepared site plan, which is Ex.Ka.10. A perusal of site plan Ex.Ka.10 shows that the dead body was found on the railway track, and that has marked with sign '+'. He has not mentioned any where that any blood was found on the spot.

19. PW-1 Suresh Chandra Trivedi has very specifically stated in his examination in chief that the place where the dead body was found was devoid of any blood. This witness has further stated that at the place of occurrence a gent's slipper was also found, which belonged to Sharad Tripathi.

20. Ex.Ka.10 site plan also shows the place of occurrence where the gent's slipper was found by the Investigating Officer. This slipper was found near the dead body. PW-1 Suresh Chandra Trivedi has categorically stated that the slipper belongs to Sharad Tripathi.

21. The statement of Sharad Tripathi reveals that he was not cross examined on these two aspects; (1) There was no blood at the place of occurrence; and (2) Slipper belongs to Sharad Tripathi.

22. Absence of any question in cross examination on any aspect makes the statement on that aspect trustworthy. The Apex Court in the case State of Uttar Pradesh v. Nahar Singh and others, AIR 1998 SC 1328 has held that absence of cross examination on any point leaves that aspect unchallenged and trustworthy. Hence, absence of blood on the place where dead body was found clearly rules out the possibility of suicide, or accidental death by a railway train. This shows that the deceased was murdered some where else, and her dead body was dumped on a railway track. The slippers of Sharad Tripathi on the railway track shows his involvement, and presence of Sharad Tripathi on the railway track when dead body was dumped there.

23. The Apex Court has in the case of Kunhiabdullah v. State of Kerala, (2004) 4 SCC 13 held that before recording conviction of an accused under Section 304-B IPC the following condition must be proved - (i) The death of a woman was caused by burns or bodily injury, or otherwise than under normal condition, (ii) That such death should have occurred within 7 years of marriage, (iii) That the woman must have been subjected to cruelty or harassment by her husband, or any relative of her husband, (iv) That such cruelty, or harassment should be for or in connection with demand of dowry, and (v) That such cruelty, or harassment is shown to have been meted out to the woman soon before her death.

24. Now, the only thing, which has to been seen that whether there was demand of dowry, and whether she was subjected to cruelty, or harassment soon before her death?

25. There is allegation in the FIR that not being satisfied with the gifts etc. the accused person started demanding Hero Honda Motorcycle and Rs.50,000/- cash for constructing a room in their house. It is also in the FIR that on 21.6.2008 at about 12 noon, when her father called her, she started weeping, and told him to fulfill their demand of Rs.50,000/-, and motorcycle otherwise they will kill him. She also told that they are taking of contracting second marriage of Sharad. This fact has also narrated by PW-1 Suresh Chandra Trivedi in his examination in chief. This fact has also been narrated by PW-1 Suresh Chandra Trivedi in his cross examination too. He has further stated that Sharad has never allowed his daughter Neelam to stay in her parental house. PW-2 Smt. Madhuri has also narrated the same statement in her examination in chief, and in her cross examination. These two statements clearly established that there was demand of dowry, and the deceased was being subjected to cruelty, or harassment for non-fulfillment of demand of dowry

26. Now, it has to be seen as to whether all the accused persons are guilty for demand of dowry, or harassment, or simply it can be attributed on the part of the husband.

27. The demand of motorcycle is such demand, which only relates to the husband. So far as other accused persons are concerned, there are general allegations against them, and there is no specific allegations.

28. In the cross examination PW-1 Suresh Chandra Trivedi has specifically stated that when Sharad Tripathi came to his house, he informed him that he will not be able to pay Rs.50,000/- and a motorcyle this time, but whenever he will be able to manage, it will be given. It has also specifically mentioned in the cross examination that when the dead body was recovered Sharad Tripathi and Raj Kumar Tripathi fled away.

29. From the above discussions, it is proved that this unnatural death of the deceased occurred within seven years of marriage. It is also proved that there was demand of dowry, and it is also proved the deceased was subjected to cruelty and harassment for non-fulfillment of demand of dowry. It is also proved that there are general allegations against Smt. Rajeshwari, Vimal and Gopesh. No overt act, or specific allegation of demand of dowry has been assigned to them.

30. In view of the aforesaid, I am of the opinion, that CRIMINAL APPEAL No. - 952 of 2010 is liable to be allowed, and Smt. Rajeshwari, Vimal and Gopesh are liable to be acquitted under Sections 498-A, 304-B IPC and Section ¾ of the Dowry Prohibition Act. Accordingly, CRIMINAL APPEAL No. - 952 of 2010 is allowed. Smt. Rajeshwari, Vimal and Gopesh are acquitted of the charges framed. They are in jail. They be released forthwith, if not wanted in any other case.

31. While discussing the object and purpose of imposing adequate sentence the Apex Court in paras 8, 9 and 10 of State of Madhya Pradesh v. Saleem @ Chamaru and another, AIR 2005 SC 3996 has held as under: -

"The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose "'such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. (para 8)

Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude -or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. (para 9)

The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"." (para 10)

32. Sharad Tripathi is the husband, and all the evidences point towards his involvement, and demand of dowry, hence CRIMINAL APPEAL No. - 1428 of 2010 filed by him is liable to fail, and is hereby dismissed. The conviction of Sharad Tripathi in Sessions Trial No.772 of 2008 is hereby confirmed.

Order Date :- October 4, 2013

Anupam

(Justice Arvind Kumar Tripathi - II)