Triveni & Others vs State Of U.P.
2014 Latest Caselaw 3608 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Court No. - 25
 
Case :- CRIMINAL APPEAL No. - 395 of 1996
 
Appellant :- Triveni & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Smt. Shashi Awasthi,P.K.Gupta,V.K.Pandey
 
Counsel for Respondent :- Govt. Advocate
 

 
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Hon'ble Aditya Nath Mittal,J.

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

This criminal appeal has been filed against the judgment and order dated 30.07.1996, passed by the Vth Additional Sessions Judge, Sitapur, by which the appellants have been found guilty for the offence punishable under sections 498-A and 304-B I.P.C. and has accordingly convicted with the rigorous imprisonment of one year along with fine of Rs.500/- for the offence punishable under Section 498-A and with rigorous imprisonment of ten years for the offence punishable under Section 304-B I.P.C.

The prosecution case in brief is that the daughter of the complainant-Shiv Narain was married with Triveni s/o Shri Rameshwar at about three years ago from the date of incident. After the marriage, the appellants had demanded Watch and Cycle in the dowry. Due to non-fulfillment of this demand, she was resulted into death on 19.02.1993. The First Information Report was lodged on 24.02.1993. After investigation, the charge-sheet was filed for the offence punishable under Sections 498-A and 304-B I.P.C. The charges are accordingly framed. The appellants denied the charges and claimed trial.

The prosecution has examined Shiv Narain PW-1, Badri Prasad PW-2, Constable Ram Naresh Singh PW-3, Sub-Inspector Gopal Singh PW-4, Dr. L.N. Verma PW-5 and Dy.S.P. Rajendra Singh Yadav as PW-6.

In the statement recorded under Section 313 Cr.P.C., it was alleged that there was no transaction of any dowry and in their community there is no custom of dowry. There was dispute because after death of father-in-law of Badri, appellants brother Raja Ram had kept the mother-in-law of Badri with the help of Shiv Narain, who had usurped 1 Kg Silver ornament, regarding which there was enmity. At the time of incident, accused-Triveni was not present on the spot and no family member was also present on the spot. The door of the house was locked.

After appreciating the evidence on record, learned court below came to the conclusion that the prosecution has successed in proving that the deceased was tortured for additional dowry, due to which, she had committed suicide. Learned court below has also come to the conclusion that the accused persons had abetted the said suicide. Learned court below found guilty the appellants for the offence punishable under Sections 498-A and 304-B I.P.C. and accordingly convicted them.

Learned counsel for the appellants has submitted that at the time of incident the husband was not present and other family members were also not present in the house. When they came back to the house, they found the door locked and at the same day they had reported the matter to the police concerned. There is no evidence of torture and no antemortem injury has been found in the postmortem report. Case under Section 304-B I.P.C. is not made out and Lalta Prasad DW-1 has specifically proved that there was no custom of dowry in their community.

Learned counsel for the appellants has further submitted that incident took place in the year 1993, for which more than 21 years have passed, therefore, a lenient view may be taken against the appellants.

Learned Additional Government Advocate has defended the impugned order.

It is to be mentioned here that during pendency of this appeal, the appellant no.3 Smt. Ketaki had died. Therefore, the appeal filed by her has been abated.

Shiv Narain PW-1, who is the father of the deceased, has stated in his statement that whenever his daughter used to come to his home, she always complained about the torture by the appellants for not giving the Watch and Cycle in dowry. He has also stated that due to non-fulfillment of the said demand of dowry, his daughter has been murdered. The written report has been proved as Ext. Ka-1. Badri Prasad PW-2, who is the son of Shiv Narain-complainant, has also supported the statement of Shiv Narain PW-1 and has stated that his sister was being tortured for additional dowry.

The Constable Ram Naresh Singh PW-3 has proved the Chik F.I.R. as Ext. Ka-2 and copy of the G.D. as Ext. Ka-3. Sub Inspector Gopal Singh PW-4 has stated that on 19.02.1993, at about 7.00 p.m. Triveni s/o Rameshwar had given a written report at the police station that when he had gone to collect the grass, then his wife has committed suicide. Upon this information, he along with other police personnel went on the spot. There was no arrangement of light, therefore, the inquest was not conducted in the night and the inquest was conducted on 20.02.1993. He has also stated that at the time of inquest, the father and other family members of the deceased were present and they had not made any complaint to him. On 24.02.1993 he had not taken any statement of Shiv Narain, but only inquired from him, who had stated that his daughter was tortured for non-fulfillment of the demand of dowry.

Dr. L.N. Verma PW-5 has proved the postmortem as Ext. Ka-11 and has stated that death is possible on 19.02.1993 in the night.

The cause of death was asphyxia and no external injury was found in the postmortem.

Rajendra Singh Yadav, Dy S.P. (PW-6) has proved the investigation of the case and has proved the site plan as Ext. Ka-12 and the charge-sheet as Ext. Ka-13.

It is not in dispute that death has occurred within seven years of marriage. It is also not disputed that cause of death is asphyxia due to hanging.

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 relative of her husband in connection with 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 cruetly 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".

So far as offence punishable under Section 498-A is concerned, Shiv Narain PW-1 and Badri Prasad PW-2, who are father and brother of the deceased, have specifically stated in their statements that the deceased was subjected to cruelty due to non-fulfillment of demand of dowry. These witnesses have been cross-examined at length and nothing adverse has come in their cross-examination. The appellants have tried to prove that there is no custom in their community to demand the dowry. Now a days, it is generally seen that there may not be any custom in a civilized society for demand of dowry but still the bribes are treated in many home by the husband, in-laws and the relatives for demand of dowry. The aforesaid witnesses of fact have specifically alleged that there was demand of Watch and Cycle in the dowry, which were not fulfilled, therefore, she was subjected to cruelty.

I do not find any sufficient ground to disbelieve the statements of these witnesses on the point of cruelty, due to demand of dowry. The ingredient of Section 498-A are fully satisfied by the statement of these witnesses. Accordingly, I come to the conclusion that the learned trial court has rightly drawn the conclusion that the deceased was subjected to cruelty due to demand of dowry by the appellants. Therefore, the conviction under Section 498-A I.P.C. is upheld.

As far as offence punishable under Section 304-B I.P.C. is concerned, as stated above, it is the duty of the prosecution to prove that the deceased was subjected to cruelty in connection with demand of dowry "soon before her death" and the said aspect has to be established beyond any reasonable doubt by the prosecution. None of the prosecution witness has stated that soon before her death, she was subjected to cruelty in connection with demand of dowry. 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.

Now, it has to be seen whether the deceased was driven to commit suicide because of harassment done by the appellants. It is not disputed that victim has died due to hanging. In the postmortem report, there are no external injuries on the body of the deceased. It is also not disputed that the accused Triveni had himself informed the police about the suicide of his wife on the same day when he came back after collecting grass. In the inquest report also, this fact has been mentioned that main door of the house was locked from inside, which was broken away and it was found that in a room, the body of the deceased was hanging. It has also come in the evidence that the family members of the deceased were informed about the incident by the local police and the family members had arrived on the date of incident in late hours. Shiv Narain PW-1 has admitted in his statement that Sub-Inspector Gopal Singh had met him at the police station and he had assured that whatever action they will like, that shall be taken. Sub-Inspector- Gopal Singh has been examined as PW-4, who has also stated that at the time of inquest, the family members of the deceased were present and at that time they had not complaint anything about the incident. It is also not disputed that the report of the matter was lodged on 24.02.1993 and then the investigation was done.

Hon'ble the Apex Court in the case of Narwinder Singh vs. State of Punjab reported in (2011) 2 SCC 47 has held as under:-

"While accepting the finding of the High Court that the prosecution has ot been able to establish the charge under Section 304-B Indian Penal Code and had, therefore converted the punishment to onbe under Section 306 Indian Penal Code, this Court observed that cruelty or harassment sans demand of dowry which drives the wife to commit suicide attracts the offence of abetment of suicide under Section 306 Indian Penal Code. The Court further observed that mere omission or defect in framing charge would not disable the court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the mater would fall within the purview of Sections 221 (1) (2) Code of Criminal Procedure."

In the case of K. Prema S. Rao and another vs. Yadla Srinivasa Rao and others reported in (2003) 1 SCC 217, the Hon'ble Apex Court has held as under:-

"The same facts found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306 Indian Penal Code of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304-B which is punishable with minimum sentence of seven years' rigorous imprisonment and maximum for life. Presumption under Section 113-A of the Evidence Act could also be raised against him on same facts constituting offence of cruelty under Section 498-A Indian Penal Code. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498-A Indian Penal Code".

In the present case, considering the evidence on record, the trial court found that the prosecution has failed to prove the fact that the deceased was subjected to cruelty "soon before her death", I am of the opinion that the basic ingredients of the offence under Section 304-B I.P.C. are not satisfied but the ingredients of offence punishable under Section 306 I.P.C. have been established by the prosecution inasmuch as the death has occurred within seven years in unnatural circumstances and the deceased was subjected to cruelty.

For the facts and circumstances of the case, I am of the opinion that the offence punishable under Section 304-B I.P.C. is not made out, but the offence punishable under Section 306 I.P.C. is made out.

It is settled position of law that if the charge has not been framed for the offence punishable under Section 306 I.P.C. but has been framed for the offence punishable under Section 304-B I.P.C., the Court can convict the accused for the said offence and omission to frame charge under Section 306 I.P.C. shall not result in any failure of justice.

The Hon'ble Apex Court in K. Prema S. Rao and another vs. Yadla Srinivasa Rao and others reported in (2003) 1 SCC 217 has held as under:-

"As provided in Section 215 of Cr.P.C. omission to frame charge under Section 306 I.P.C. Has not resulted in any failure of justice. We find no necessity to remit the matter to the trial court for framing charge under Section 306 I.P.C and directed a retrial for that charge. The accused cannot legitimately complaint of any want of opportunity to defend the charge under Section 306 I.P.C. And a consequent failure of justice. The said fats found in evidence, which justify conviction of the appellant under Section 498-A for cruel treatment of his wife, make out a case against him under Section 306 I.P.C. of having abetted commission of suicide by the wife. The appellant was charged for an offence of higher degree causing "dowry death" under Section 304-B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113-A of the Evidence Act could also be raised against him on same fats constituting offence of cruelty under Section 498-A, I.P.C. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498-A, I.P.C.

The Hon'ble Apex Court in the case of Narwinder Singh vs. State of Punjab reported in (2011) 2 SCC 47 has held as under:-

"It is a settled proposition of law that mere omission of defect in framing charge would not disable the Court from convicting the accused for the offence which hasbeen found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Section 221 (1) and (2) of the Code of Criminal Procedure. In the facts of the present case, the High Court very appropriately converted the conviction under Section 304-B to one under Section 306 I.P.C.

In our opinion, there has been no failure of justice in the conviction of the Appellant under Section 306 I.P.C. by the High Court, even though the specific charge had not been framed".

In view of the above legal position, I am of the view that the appellants can safely be convicted for the offence punishable under Section 306 I.P.C.

Accordingly, the conviction under Section 304-B, I.P.C. is set aside, but the appellants are convicted for the offence punishable under Section 306 I.P.C.

The appellants Triveni and Bharat are convicted for the offence punishable under Section 498-A, I..P.C. and Section 306 I.P.C. Both these appellants are directed to serve the sentences of one year rigorous imprisonment and a fine of Rs.500/- each for the offence punishable under Section 498-A, I.P.C. and in default of payment of fine, they shall further undergo imprisonment of one month.

Triveni is husband of the deceased and Bharat is the Jeth of the deceased. It was the primary duty of the husband to have taken care of his wife and should have saved her from other family members. Therefore, the husband is entitled to a greater punishment as compared to the Jeth.

Accordingly, appellant-Triveni, who is husband of the deceased, is sentence to three years rigorous imprisonment along with a fine of Rs.10,000/- for the offence punishable under Section 306 I.P.C. and in default of payment of fine, he shall further undergo imprisonment of six months.

The another appellant-Bharat, who is the Jeth of the deceased, is sentenced to two years rigorous imprisonment and a fine of Rs.2000/- for the offence punishable under Section 306 I.P.C. and in default of payment of fine, he shall further undergo imprisonment of two months.

All the sentences shall run concurrently and the period already undergone shall be set off in the aforesaid punishment.

The Chief Judicial Magistrate, Sitapur by his Letter No.174/CJM dated 05.05.2014 has informed that both the appellants-Triveni and Bharat have been arrested and they are detained in custody. They shall remain in custody till completion of the aforesaid term of imprisonment.

Accordingly, the appeal is partly allowed.

The office is directed to send a certified copy of this order to the Superintendent of Jail, Sitapur as well as Sessions Judge, Sitapur. The lower court record shall also be transmitted to the Sessions Judge, Sitapur, at an early date.

Order Date :- 25.7.2014

Suresh/