Anchan @ Ravi Shanker vs State Of U.P.
2013 Latest Caselaw 5460 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 

 
Case :- CRIMINAL APPEAL No. - 110 of 2008
 

 
Appellant :- Anchan @ Ravi Shanker
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dhananjai Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 

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

1. This criminal appeal has been filed by the appellant Anchan @ Ravi Shanker, son of Balak Ram Mishra, resident of village Salempur, Police Station Bangarmau, District Unnao challenging the judgment and order dated 9.1.2008 passed by Additional Sessions Judge, Court No.2, Unnao in ST No.393 of 2006 (State v. Balak Ram and others), arising out of case crime no.267 of 2006, under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act, Police Station Bangarmau, District Unnao by which he was convicted under Section 304-B IPC and was directed to undergo 7 years RI, under Section 498-A IPC for 2 years RI and fine of Rs.1000/- and under Section 4 of the Dowry Prohibition Act for 2 years RI and fine of Rs.1000. In default of payment of fine, further 1 year SI.

2. Facts, in brief, are that Ritu daughter of Krishna Kumar was married with Anchan @ Ravi Shanker on 29.4.2004 in which sufficient dowry, as per the capacity of the informant, was given, but the In-laws and other matrimonial relatives were not happy and satisfied with the dowry, and after some time they started torturing and harassing Ritu for golden chain, buffalo and colour TV. On 4.5.2006, at about 3 pm, the informant received information that his daughter has been burnt by her matrimonial relatives. He went to inquire about his daughter, and on the way, he came to know that his daughter has been taken to Unnao by an ambulance. When he reached Government Hospital, Unnao, he found his daughter dead, and there were several injuries on her body. An FIR was lodged in Police Station Bangarmau on 5.5.2006 at about 9.30 pm, and the investigation was entrusted to the Circle Officer Arun Kumar Srivastava. After investigation, charge sheet under Sections 498-A, 304-B IPC and Section ¾ of the D.P. Act was submitted against Balak Ram, Anchan @ Ravi Shanker, Babloo, Smt. Kiran and Smt. Ram Dulari. After taking cognizance, the learned Magistrate committed the case for trial, and the learned Sessions Judge, Court No.2, Unnao framed charge against the accused persons under Sections 498-A, 304-B IPC and Section 4 of the D.P. Act. The accused persons pleaded not guilty and claimed to be tried.

3. In order to prove its case, the prosecution had examined Krishna Kumar Pandey, father of the deceased as PW-1, Smt. Nisha, mother of the deceased as PW-2, Dr. Rajesh Kumar Agarwal as PW-3, Madan Prasad Srivastava, Naib Tehsildar as PW-4, Sharda Shankhwar, S.I. As PW-5, Hukum Singh, Head Constable as PW-6 and Arun Kumar Srivastava, Circle Officer, who had investigated the case, as PW-7. After close of prosecution evidence, the statement of the accused persons under Section 313 Cr.P.C.

4. Balak Ram has stated in his statement under Section 313 Cr.P.C. that Ritu was preparing food and while she was preparing food, accidently, her clothes caught fire on account of which she received burn injuries.

5. Accused Anchan @ Ravi Shanker has stated in his statement under Section 313 Cr.P.C. that he was in his school. After school was over, he came to his house. His wife told him that she is bringing food and she went to prepare food while he was waiting in his room, and all of sudden, he heard cries 'cpkvks cpkvks', then he rushed and found that Ritu has caught fire. He extinguished the fire, and his uncle and other had come, then they took her to Bangermau Hospital, and from there they took her to Unnao Hospital, where she died. He has further stated that when he went to his wife she has caught fire. On alarm, his uncle came till that time she was burning. He went to his room and came with a blanket and tried to extinguish the fire. He had received some blisters in his hand. They took his wife for treatment. They did not inform the police regarding burning of his wife. At the time of incident his father was in the garden. When he reached, the fire was extinguished.

6. Kiran in her statement under Section 313 Cr.P.C. has stated that after the marriage of Anchan @ Ravi Shanker they were living separately. Their food was also cooked separately.

7. Smt. Ram Dulari in her statement under Section 313 Cr.P.C. has stated that Ritu has caught fire while she was preparing food, and she has herself told about this.

8. Babloo also in his statement under Section 313 Cr.P.C. has stated that he is residing separately and before the incident he had gone to his sasural in Shahjahanpur.

9. After the statements of the accused under Section 313 Cr.P.C. Ramdev Dwivedi was examined as DW-1 and Dr. Brij Mohan, Medical Officer, Primary Health Centre, Bangarmau was examined as DW-2.

10. After going through the evidence and hearing the parties, the trial court convicted Anchan @ Ravi Shanker under Sections 498-A, 304-B IPC and Section ¾ of the D.P. Act and sentenced him, as mentioned above. The other accused persons were acquitted. Feeling aggrieved, this criminal appeal has been filed by the appellant.

11. Heard Shri Dhananjai Kumar Singh, learned counsel for the appellant and learned AGA.

12. It was argued from the side of the appellant that the findings recorded by the trial court are perverse and contrary to the material on record. The defence version and the evidence are more cogent and reliable than the prosecution case. The prosecution has failed to prove its case beyond reasonable doubt. The delay in lodging the FIR has not been explained. At the time of inquest the informant and his family members have not been made any complaint. The deceased died on account of accidental burn, and there was no demand of dowry, and any cruelty for non-fulfillment of demand of dowry.

13. In this case, marriage is admitted to have been held on 29.4.2004. This fact is not disputed from the statement of accused persons under Section 313 Cr.P.C. It is also not disputed that Ritu had died on account of burn injuries. It is also not disputed that she received burn injuries on 4.5.2006 in the house of the appellant. Section 113 - B of the Indian Evidence Act, which is reproduced hereinbelow: -

"Presumption as to dowry death.-- When the question is whether a person had committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."

makes presumption that in case of dowry death of woman and if it is shown that soon before her death such woman had been subjected to cruelty or harassment in connection with demanding dowry, it shall be presumed that such person has caused dowry death.

14. In this case, PW-3 is Dr. R.K. Agarwal, who has conducted post mortem of the body of the deceased on 5.5.2006. This post mortem report has been proved and marked as Ex.Ka.3. According to this report, following injuries were found on the body of the deceased: -

"Superficial to deep burn injury present (I) to (III) degree injury on neck, chest, both arms, abdomen, thigh up to knee joint. Up to left side of burn and non-burn part redness was present. According to this witness, death has occurred due to shock and result of ante mortem burn injuries."

15. The statement of the accused person under Section 313 Cr.P.C. supports the allegation of burning. In view of this, it is clear that the death was unnatural.

16. From the evidence, it has to be seen that whether the prosecution has been able to prove cruelty soon before her death.

17. The word 'soon before' is a relative term, and it would depend upon the circumstances of each case, and no straitjacket formula could be laid down as what would constitute a period of soon before the occurrence. The expression 'soon before her death' used in the substantive Section 304-B IPC, and Section 113-B of the Evidence Act is present with the idea of proximity test.

18. Cruelty means, harassment of a woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

19. In the instant case, in the FIR itself, it has been mentioned that after some time his daughter Ritu was harassed and assaulted for demand of golden chain, one buffalo and one colour TV. In the statement also PW-1 has stated that 14 days before her death Anchan @ Ravi Shanker had gone to her Sasural and brought her back to her matrimonial home. It has also been stated that after seven days, his first daughter has informed him that the accused persons are assaulting her regularly. PW-2 mother of the deceased has also corroborated this version. These two statements clearly constitute offence of cruelty for demand of dowry.

20. DW-1 has stated that at about 1.30 PM Balak Ram came to his Sasural, which is in the same village and informed that his daughter in law has caught fire while preparing the food, so he and his wife and other members of the Sasural rushed towards his house. His daughter in law was speaking in verandah of Balak Ram's house. His wife Munni Devi asked Ritu as to what happened, then she told her that she has caught fire while preparing food. This witness has further stated that she informed Ritu's father through his mobile. In his cross examination she stated that he has informed the police regarding burning of Ritu. He has further admitted that he did not accompanying Ritu to the hospital, but his wife has accompanied her. He further stated that he did not enter in the kitchen of Balak Ram. He did not enquire as to from which thing she caught fire. Ritu was lying on a cot. He has not seen any other thing burnt there.

21. DW-2 has informed that on 4.5.2006 he was visited at Community Health Centre, Bangarmau as a doctor. On that day, Smt. Ritu, wife of Anchan @ Ravi Shanker was brought by her hospital for treatment. She was 90% burnt. He made Anchan @ Ravi Shanker to put his signature in the emergency register and on telling this Anchan @ Ravi Shanker entered in the accidental register. He has given information to the Police Station Bangarmau. After primary treatment referred her to the District Hospital Unnao.

22. The statement of DW-2 simply corroborates that Smt. Ritu was brought to Community Health Centre by her husband. This does not indicate that she caught fire while preparing food. It is worth noticing that while Anchan @ Ravi Shanker brought his wife to Community Health Centre, he has not received any burn injury while trying to extinguish fire, though in his statement under Section 313 Cr.P.C. he has stated that he has received some blisters in his hand while extinguishing fire, but he was not medically examined, and he also did not ask for his treatment by the doctor from Community Health Centre, Bangarmau. In view of this, the statement of the appellant under Section 313 Cr.P.C. is not supported by medical evidence.

23. There is no denying of the fact that the deceased received burn injury in the house of the appellant and presumption of Section 106 of the Evidence Act is also applicable and burden to prove that Smt. Ritu caught fire while preparing food lies on the appellant.

24. DW-1 has been examined to support the theory that Ritu accidentally caught fire while cooking food. His statement does not inspire confidence for the reasons enumerated below: -

(i) He did not enter in the kitchen to ascertain as to whether what has been stated is correct, or not; and

(ii) He stated that his wife had talked to Smt. Ritu, who told her that she has received burn injuries while preparing food, but his wife, who could have been a material witness, has not been produced.

25. The site plan prepared by the Investigating Officer is Ex.Ka.11. The kitchen is shown by letter "X", but the Investigating Officer has not found any cooked food or semi cooked food. The Investigating Officer has inspected the spot on 6.5.2006, but he only found utensils. The cooking appliances, from which she had received burn injuries, has not been shown. This circumstances also goes against the accused appellant.

26. The trial court has dealt with the evidence thoroughly, and found that the appellant has not tried to save his wife promptly. The learned court below has laid emphasis on the fact that the blanket, by which the fire was doused, was not produced, or shown to the Investigating Officer. The site plan Ex.Ka.11 shows that the kitchen is visible from the place of occurrence where Smt. Ritu was lying on a cot in burnt condition, so when DW-1 and his family members reached inside the house of Balak Ram, it was very natural for them to see the place where she received burn injuries. Not going to the kitchen shatters the statement of DW-1.

27. From the above discussions, and from the statements of the prosecution witnesses, it is clear that Smt. Ritu died an unnatural death within seven years of marriage. It is also proved that she was harassed for demand of dowry soon before her death.

28. In view of the above, the court below has rightly convicted the appellant under Section 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act.

29. Learned counsel for the appellant lastly argued that the sentence of the appellant be reduced.

30. Per contra, learned AGA, however, opposed to reducing of sentence, and argued that the sentence should be commensurate with the guilt established.

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. I do not find any circumstances, to reduce the sentence of the appellant. The deceased was 21 years of age, and she met her death within two years of her marriage.

33. From the above discussions, this appeal is liable to be dismissed, and is hereby dismissed. The appellant shall surrender before the trial court for serving out remaining part of the sentence failing which, the Chief Judicial Magistrate, Unnao shall issue appropriate process for taking the appellant in custody, and for producing him before the trial court for sending him jail to serve out the remaining part of sentence.

34. The Registrar, Lucknow Bench is directed to send a copy of this judgment to the District and Sessions Judge, Unnao for compliance at the earliest.

Order Date :- September 5, 2013

Anupam

(Arvind Kumar Tripathi (II), J.)