Maniram vs State Of U.P.
2014 Latest Caselaw 4164 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                            A.F.R.                    
 
RESERVED
 
Court No. - 25
 

 
Case :- CRIMINAL APPEAL No. - 953 of 2009
 

 
Appellant :- Maniram
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sunil Kumar Singh, Ajai Kr.Singh, Anoop Vajpayee,D.K.Singh Chauhan
 
Counsel for Respondent :- G.A.
 

 
AND
 
Case :- CRIMINAL APPEAL No. - 900 of 2009
 

 
Appellant :- Smt. Shanti Devi @ Santa
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sunil Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
                                                    ******
 
Hon'ble Aditya Nath Mittal,J.

Heard learned counsel for the appellants, learned Additional Government Advocate and perused the record.

Both the aforesaid appeals have been filed against the judgment and order dated 31.03.2009, passed by the learned Additional Sessions Judge, Court No.2, Hardoi, by which the appellants have been convicted for the offences punishable under Sections 498-A and 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act.

As per prosecution case, the complainant Muneshwar Dayal lodged the report on 26.05.2002 stating therein that he had solemnized marriage of her daughter about four years ago with the accused Mani Ram and according to his capacity he had also given dowry in the said marriage. But the accused-Mani Ram (husband), Smt. Urmila Devi (Nanad) and Smt. Shanti Devi (mother-in-law) were not satisfied with the said dowry and she was tortured for additional dowry. On 16.05.2002, there was Tilak ceremony in the house of the complainant, in which Mani Ram and his family members had not attended the Tilak ceremony. When it was inquired from his daughter then she told that they are angry due to non-fulfillment of the dowry, therefore, they had not attended the Tilak ceremony. The daughter of the complainant was sent to her-in-laws on 23.05.2002 along with Sanjeev Kumar. On 25.05.2002, he received information on telephone that his daughter has received burn injuries upon which the complainant and other persons went to the village of the appellants where he saw that his daughter was lying in the burn condition. The matter was investigated and after investigation the charge-sheet was filed.

The appellants were charged for the offence punishable under Sections 498-A and 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act, which they had denied and claimed trial.

The prosecution has examined Muneshwar Dayal PW-1, Dr. Chandra Kishore PW-2, T.P. Verma the then Tehsildar PW-3, Sant Ram PW-4, Sohan Lal Pushkar PW-5, Kushhar Saurabh the then Circle Officer PW-6 (Last I.O.) and Ram Pratap Singh the then Circle Officer Sahabad as PW-7 (First I.O.). After the prosecution evidence, the statement under Section 313 Cr.P.C. was recorded. Smt. Urmila Devi in her statement under Section 313 Cr.P.C. had stated that she was married before twelve years ago from the date of incident and on the date of incident she was in her-in-laws (Sasural) and had come to the spot on the information of incident. Smt. Shanti Devi @ Santa had stated in her statement under Section 313 Cr.P.C. that at the time of incident her daughter-in-law was cooking food and she was not in the house. She had gone to the Mango field for taking care which was purchased by her husband. Upon seeing the fire, she had come on the spot. She has further stated that upon her alarm villagers had also come, who had ceased the fire.

The accused-Mani Ram has stated that he was married about eight years ago and at the time of incident he was at his shop and upon information he had come to the house and gave the information to all the persons including the police station.

In the defence, Ram Kishore Dixit DW-1, Satya Ram DW-2 and Sushil Kumar Verma as DW-3 have been examined.

After appreciating the evidence on record, learned court below came to the conclusion that the accused persons are guilty for the offence punishable under Section 498-A and 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act and accordingly convicted them.

The complainant Muneshwar Dayal PW-1 has stated in her statement that his daughter was married with accused-Mani Ram on 14.05.1997 and his daughter has told him that the accused persons are demanding one Buffalo and one Motorcycle and she was tortured for that. He has further stated that on 16.05.2002, there was Tilak ceremony in his house, in which, Mani Ram and his family members had not come and upon inquiry his daughter has told that they are angry for not fulfilling the demand of dowry. The daughter of the complainant was sent to her-in-laws on 23.05.2002 and on 25.05.2002 she received information that his daughter has been killed. This witness has proved the First Information Report as Ext. Ka-1 and the Marriage Card as Ext. Ka-2.

Dr. Chandra Kishore has conducted the postmortem of the deceased and has proved the postmortem as Ext. Ka-3. T.P. Verma, Tehsildar PW-3 has conducted the inquest of the deceased and has proved the inquest report as Ext. Ka-4, letter regarding postmortem as Ext. Ka-5, report to C.M.O. as Ext. Ka-6, photo of lash, sample of seal as Ext. Ka-7 to Ext. Ka-9. Satya Ram PW-4 is a witness of fact, who is the real uncle of the deceased. He has stated that whenever his niece used to go to her father's house (Maika) then she told that the accused persons are demanding one Motorcycle and one Buffalo in additional dowry. He has further stated that subsequently the accused persons said that they do not want Buffalo and in lieu of that they may be given Rs.50,000/- for doing business. He has further stated in his statement that on 16.05.2002, there was Tilak ceremony in his house, but none from the family of in-laws of the deceased had attended the Tilak ceremony. When it was inquired that why they have not attended the Tilak ceremony then she had told that they are angry due to non-fulfillment of demand of dowry. After that, on 23.05.2002, she was sent to her-in-laws and on 25.05.2002 and he received information that his niece has died due to burn injuries.

Sub-Inspector Sohan Lal Pushkar PW-5 has proved the Chik F.I.R. as Ext. Ka-10 and the copy of G.D. as Ext. Ka-11 and Ka-12. Kushhar Saurabh, the then Circle Officer, PW-6 has proved the investigation and has stated that he has taken statement of Smt. Urmila Devi and then he had filed the charge-sheet for the offence punishable under Section 498-A and 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act. The Charge-sheet has been proved as Ext. Ka-13.

Ram Pratap Singh, the then Circle Officer, has been examined as PW-7, who has conducted the investigation of the case and that also prepared the recovery memo regarding Ash from the spot, which has been proved as Ext. Ka-14. Site Plan has been proved as Ext. Ka-15 and the charge-sheet has been proved as Ext.Ka-16.

In defence, three witnesses have been examined. Ram Kishore Dixit DW-1 has proved the marriage ceremony as Ext.Kha.1. Satya Ram DW-2 has stated in her statement that the daughter of the complainant had died while cooking the food and he had also reached on the spot. At the time of fire, Rati Ram and his wife were present there. Sushil Kumar Verma, Gram Panchayat Adhikari, DW-3 has proved the extract of Family Register as Ext. Kha-2.

Learned counsel for the appellants has submitted that in the investigation, the offence punishable under Section 498-A and 306 I.P.C. was found and accordingly the charge-sheet was submitted for the said offence and there was no evidence regarding the case under Section 304-B I.P.C.. It has also been submitted that as per the extract of Family Register and Voter List, the marriage was solemnized in the year 1994 and not in the year 1997 as alleged. It has also been submitted that she got burn injuries while she was cooking food and the accused persons were not present on the spot because the husband is a shop keeper, who was at his shop. Mother-in-law had gone for taking care of Mango field and Smt. Urmila (Nanad) was in her-in-laws. It has also been submitted that it has not been proved that she was tortured for additional demand of dowry soon before her death and at the most, it is a case of Section 306 I.P.C. and a lenient view may be taken.

Learned Additional Government Advocate has defended the impugned judgment and has submitted that there is ample evidence regarding torture soon before the death regarding which Panchayat was also held. It has also been submitted that in the said document of defence i.e. extract of Family Register and Voter List, the name of the wife of Mani Ram has been mentioned as Manorama while neither in the cross-examination nor by any instant evidence, it has been proved that the deceased Rewa Devi was also called as Manorama. He has also submitted that DW-1 has admitted in his statement that Panchang has not been written by him and the said Family Register has also not been signed by any competent authority.

It is true that after investigation the charge-sheet for the offence punishable under Section 498-A and 306 I.P.C. and Section 3/4 of the Dowry Prohibition Act was filed against all the accused persons. For convicting a person under Section 304-B I.P.C., it should be proved that death has occurred under unnatural circumstances within seven years of marriage and soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband in connection with the demand of dowry.

In the case of Satvir Singh and others Vs. State of Punjab and another reported in (2001) 8 SCC 633 the Hon'ble Apex Court has held as under:-

"The essential components of Section 304-B are: (i) Death of a woman occurring otherwise than under normal circumstance, within 7 years of marriage, (ii) Soon before her death she should have been subjected to cruelty and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence Under Section 304-B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstance". It may appear that the former limb which is described by the words "death caused by burns or bodily injury" is a redundancy because such death would also fall within the wider province of "death caused otherwise than under normal circumstances". The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence".

The Hon'ble Apex Court in the case of Hira Lal and others vs. State (Govt.NCT) Delhi reported in (2003) 8 SCC 80 has held as under:-

"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B Indian Penal Code shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B Indian Penal Code are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that r5egard has to be led by the prosecution".

The learned Judge, while proceeding further and interpreting the expression "soon before", opined thus:-

"The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence".

It is relevant to refer here the provision of Section 113-A and 113-B of the Evidence Act, which read as under:-

"113-A. Presumption as to abetment of suicide by a married woman,- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Section 113-B, which provides for presumption as to dowry death, was inserted with a view to fight against the plague of dowry death. The said provision is as follows:-

113-B Presumption as to dowry death.

When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has 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.

Explanation - For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code".

In the present case, it has been disputed that the said death has been caused within seven years of marriage. As per the prosecution case, the marriage was solemnized on 14.05.1997 while the defence case is that the marriage was solemnized in the year 1994. The prosecution has examined Muneshwar Dayal PW-1, who is father of the deceased, Sant Ram PW-4, who is the real uncle of the deceased as witnesses of fact. Both these witnesses have stated in their statements that marriage was solemnized on 14.05.1997. These witnesses have been cross-examined at length. The complainant has also submitted and proved the Card of Marriage as Ext. Ka-2. No Card in rebuttal has been submitted by the accused persons, but they have examined Ram Kishore Dixit DW-1 as Pandit of the said marriage ceremony, who has proved Paper No.9-A as Ext. Kha-1. This witness in his cross-examination has admitted that the said paper is not in his hand writing and he does not know that who has written that paper. He has also found that on that paper there is no signature of Rati Ram or any other person. The said "Patra" is also not signed by this witness. The statement of this witness is absolutely not reliable in view of the facts came in the cross-examination. When the paper No.9-A has not been signed by him and he does not know that who has signed that paper, then in such circumstances he was not a competent witness to prove Paper No.9-A.

Satya Ram DW-2 and Sushil Kumar Verma DW-3 are also silent about the said date of marriage. Sushil Kumar Verma is Gram Panchayat Adhikari, who has proved the extract of Family Register but in the cross-examination, he has admitted that this Register has not been signed by any competent authority. He has also failed to tell that in whose hand writing the entries have been made. He has further stated that he is posted since August 2008. The alleged entries relate to the year 1984-1985, but the said entries are also not proved because this witness has failed to tell as to who has written these entries. Moreover, the said Family Register has not been signed by any competent authority. In these circumstances, the statement of Sushil Kumar Verma DW-3 is also not reliable.

Muneshwar Dayal PW-1 and Sant Ram PW-4, who are witnesses of fact, have been cross-examined at length on this point and in the cross-examination also, they have supported their version that the marriage was solemnized on 14.05.1997. I do not find any reason to disbelieve their statement, which is supported by the Marriage Card as Ext. Ka-2. Accordingly, it is held that the marriage was solemnized on 14.05.1997.

It is also not disputed that the deceased has died within seven years of marriage by burn injuries. As per the prosecution, she was inflicted burn injuries, while as per the defence version, the said fire took place when she was cooking food and the accused persons were not present on the spot. There are allegations of demand of one Buffalo as well as one Motorcycle and it has been alleged that the deceased was tortured for non-fulfillment of demand of dowry. It is not disputed that the deceased has died under unnatural circumstances.

As far as demand of dowry is concerned, Muneshwar Dayal PW-1 and Sant Ram PW-2 have specifically stated in their statements that the accused persons had demanded one Buffalo and one Motorcycle in additional dowry and the deceased was tortured for non-fulfillment of this demand. It has also come in the evidence that subsequently the demand of one Buffalo was converted into demand of Rs.50,000/- for doing business. If the money is demanded as dowry even for the business purpose, it comes within the purview of dowry. It has also come in the evidence that the deceased was tortured for non-fulfillment of demand of dowry. All these witnesses of fact have been cross-examined at length and both these witnesses have supported the prosecution case.

Learned court below has also appreciated the evidence on record regarding this fact. Despite of his best efforts, learned counsel for the appellants also could not show any material contradiction regarding the alleged demand of dowry and cruelty caused the deceased. It has also come in the evidence that at the time of incident Smt. Urmila was residing in her Maika because in her-in-laws, a case of murder was pending. The accused Smt. Urmila has taken plea that she was marriage about twelve years ago from the date of incident and she was not present at the time of incident. In the evidence, it has come clearly that these three accused persons had demanded the dowry from the deceased and had caused cruelty to her. It is worthwhile to mention that apart from these three accused persons, there are two sister-in-laws (Nanands) of the deceased and there is a father-in-law also, who was alive at the time of incident. They have not been implicated in the said demand of dowry or cruelty. The complainant could have easily named two other Nanands of the deceased and the father-in-law, but the same has not been done. The specific allegation has been made against these appellants regarding the demand of dowry and causing cruelty due to non-fulfillment of the dowry. From the evidence on record, it is proved beyond any reasonable doubt that a Buffalo and one Motorcycle was demanded from the deceased by these appellants and she was subjected to cruelty for non-fulfillment of this demand. All the necessary ingredients of offence punishable under Section 498-A I.P.C. and Section 3/4 of Dowry Prohibition Act are proved beyond reasonable doubt.

Learned court below has also considered all aspects in this regard and has drawn a correct conclusion that the offence punishable under Section 498-A I.P.C. and Section 3/4 of Dowry Prohibition Act are proved against the accused persons. From the careful scrutiny of the evidence on record, I am also of the opinion that the offence punishable under Section 498-A and 3/4 of Dowry Prohibition Act are proved against the appellants.

Now the question arises as to whether it was a case of dowry death or whether the accused persons had abeted to commit suicide or whether it was an accidental fire. For the offence punishable under Section 304-B I.P.C., it is required to be proved that soon before her death she was tortured by the husband or any of his relatives regarding the demand of dowry. In the evidence, it has come clearly that the accused persons were demanding dowry and they were not happy. Therefore, they had not attended the Tilak ceremony on 16.05.2002. It has also come in the evidence that after Tilak ceremony, the deceased was sent to her-in-laws on 23.05.2002 and the incident has taken place on 25.05.2002. By the statement of Sub-Inspector Sohan Lal Pushkar PW-5, it is also proved that on 26.05.2002 Rati Ram, who is the father of the accused-Mani Ram and husband of Smt. Shanti Devi @ Santa, had given a written report at the police station informing that his daughter-in-law has died due to fire, regarding which, the G.D. Ext. Ka-12 has been proved. The complainant has lodged the First Information Report on 30.05.2002. However, on Tehrir (Ext. Ka-1) the date has been mentioned as 26.05.2002, but it is not disputed that the case has been registered on 30.05.2002. In the investigation, the case under Section 306 I.P.C. has been found and no charge-sheet for the offence punishable under Section 304-B I.P.C. has been submitted. T.P. Verma, the then Tehsildar PW-3 has conducted the inquest report of the deceased, who has stated that dead body of the deceased was lying in the residue of Chhappar and the whole body was burnt badly. In the statement of T.P. Verma PW-3, it has come that when he had inspected the dead body, it was fully burnt and froth was coming out from the mouth. He has further stated in his cross-examination that at the time of inquest report, the family members of the deceased had not complained anything about her killing. For convicting a person for the offence punishable under Section 304-B I.P.C., the prosecution is obliged to prove that she was subjected to cruelty or harassment soon before her death. In the present case, there is no direct evidence regarding the alleged cruelty or harassment soon before the incident. Certainly, under the provisions of Section 113-B of the Evidence Act, a presumption can be drawn against the accused persons, but in Section 113-B of the Evidence Act, it has been mentioned that it must be shown that soon before her death she was subjected to cruelty or harassment.

In the present case, admittedly, the father-in-law of the deceased has informed the police about the incident on 26.05.2002. The complainant and his other family members were also present at the time of inquest report and as per the statement of T.P. Verma PW-3, no complaint was made by the complainant or his family members that she has been killed due to demand of dowry. Therefore from the evidence on record, it is not proved that soon before her death, the deceased was subjected to cruelty or harassment by the husband or any relatives of the husband. After Tilak ceremony the deceased had joined the family of the appellants on 23.05.2002 and the incident had taken place on 25.05.2002. The incident has taken place after about more than four years of marriage. Admittedly, during this period the deceased had peacefully remained in the house of the appellants. On the spot inspection, it has been found that Chhappar was also burnt and there were marks of burning on the Wall also. From all facts and the circumstances and the evidence on record, it appears that it was an accidental fire, due to which, the deceased had died. Although from perusal of the Case Diary, it reveals that the deceased was not having any issue and she remained in depression, therefore, she has committed suicide. But the prosecution has not come forward with such evidence that she has committed suicide on account of demand of dowry or due to any other reason.

Learned counsel for the appellants has relied upon the case of Mustafa Shahadal Shaikh vs. State of Maharashtra reported in (2013) 1 SCC (Cri.) 664, in which the Hon'ble Apex Court has held as under:-

"To attract the provisions of Section 304-B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. In fact, the learned counsel appearing for the appellant submitted that there is no proximity for the alleged demand of dowry and harassment. With regard to the said claim, we shall advert to the same while considering the evidence led in by the prosecution. Though the language used is "soon before her death", no definite period has been enacted and the expression "soon before her death" has not been defined in both the enactments. Accordingly, the determination of the period which can come within the term "soon before her death" is to be determined by the courts, depending upon the facts and circumstances of each case. However, the said expression would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence".

In view of the aforesaid principles laid down by the Hon'ble Apex Court, the scrutiny of evidence on record shows that the ingredients "soon before her death" is totally missing from the evidence on record. On the other hand, the defence has been taken that at the time of incident the husband was at the shop, the mother-in-law was in the field of Mango, Smt. Urmila (Nanand) was at her place of in-laws and the father-in-law Rati Ram was attending the village Panchayat. The father-in-law has informed about the incident to the police. The complainant was also present at the time of inquest report and he had not complained about the alleged killing. The cumulative consideration of all these facts goes to show that it was an incidental fire and the deceased was not burnt by the appellants in furtherance of the demand of dowry. Accordingly, the conviction and sentence for the offence punishable under Section 304-B I.P.C. is liable to be set aside.

Considering all facts and circumstances of the case mentioned above, I am of the view that both the appeals are liable to be partly allowed.

Both the above mentioned appeals are partly allowed. The conviction for the offence punishable under Section 304-B I.P.C. is set aside, but the conviction for the offence punishable under Section 498-A I.P.C. and Section 3/4 of Dowry Prohibition Act is maintained.

So far as the quantum of punishment is concerned, the appellants have been sentenced to three years rigorous imprisonment for the offence punishable under Section 498-A I.P.C. along with fine of Rs.5000/- and they have been sentenced to two years rigorous imprisonment for the offence punishable under Section 3/4 of Dowry Prohibition Act along with fine of Rs.5000/-.

Considering all facts and circumstances of the case, I am of the opinion that so far as the sentence of Mani Ram, who is the husband of the deceased, is concerned, it does not require any interference. But the sentence awarded to Smt. Urmila (Nanand) and Smt. Shanti Devi @ Santa is modified to one year rigorous imprisonment and a fine of Rs.5000/- each for the offence punishable under Section 498-A I.P.C. and the sentence of one year rigorous imprisonment for the offence punishable under Section 3/4 of Dowry Prohibition Act. In default of payment of fine, all the accused persons shall undergo additional sentence as awarded by the trial court.

The appellant-Mani Ram is in jail. The other appellants, namely, Smt. Urmila and Smt. Shanti Devi @ Santa are on bail, who are directed to surrender before the Chief Judicial Magistrate, Hardoi within ten days from today to serve out the sentence. Failing which, the court below shall be at liberty to take coercive action against the appellants.

Office is directed to send the lower court record along with copy of this order to the court concerned. The office is further directed to send the certified copy of this order to the Superintendent of Jail, Hardoi for information and necessary action.

Date: August 08, 2014

Suresh/-