Sandeep Chaudhary vs State Of U.P.
2014 Latest Caselaw 5420 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 21.7.2014
 
Delivered on 01.9.2014
 
Court No. - 39
 

 
Case :- CRIMINAL REVISION No. - 3167 of 2007
 

 
Revisionist :- Sandeep Chaudhary
 
Opposite Party :- State Of U.P.
 
Counsel for Revisionist :- Sunil Kumar,Dileep Kumar,Sanjay Mishra
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Harsh Kumar,J.

Heard Sri Dilip Kumar, Advocate assisted by Sri Uma Nath Pandey, learned counsel for the revisionist and learned A.G.A. for the State.

This criminal revision has been filed against the orders dated 1.8.2007 and 22.8.2007 passed by Additional Sessions Judge (Fast Track Court No.3), in Sessions Trial No.251 of 2006 (State Vs. Sandeep Chaudhary), P.S. Kasona, District Gautam Budh Nagar, by which the Application 6-B moved by revisionist for his discharge under Section 306 I.P.C. was rejected on 1.8.2007 and thereafter charges under Section 306 I.P.C. were framed against him vide order dated 22.8.2007.

The brief facts relating to the case are that upon written report given by Pratap Singh, the father-in-law of revisionist, F.I.R. No.20 of 2005 was lodged at Case Crime No.28 of 2005 on 22.1.2005 at 00:10 a.m. against the revisionist and three others under Sections 498A, 304B I.P.C. and Section ¾ D.P. Act with the allegations that Anjali Singh, the daughter of first informant was married to revisionist Sandeep Chaudhary on 23.1.1998 according to Hindu Rites and dowry was given even beyond the capacity of first informant. That after marriage there was demand of dowry and was cruelty in connection with such demands to which the first informant continued to fulfil by making payment of amounts as per his capacity. That about four days before the incident a demand of Wagon-R vehicle was made which was beyond his capacity and for non-fulfilment of above demand of dowry death of his daughter was committed by husband and in-laws of Smt. Anjali deceased, who are named in the F.I.R. After investigation, charge-sheet was submitted in this case against only Sandeep Chaudhary out of four named accused under Section 306 I.P.C. on 25.9.2005. The magistrate taking cognizance, committed case to the sessions and Sessions Trial No.251 of 2006 was registered. At the time of hearing on charge the sole accused moved an Application 6-B for his discharge in view of the fact that the deceased had committed suicide on account of long ailment as she was suffering from epilepsy and despite regular treatment by the revisionist she could not recover. Though the death of Smt. Anjali was caused by use of licensed revolver of revisionist but the deceased has left behind her a suicide note in which it has been specifically mentioned that she is committing suicide on account of ailment and nobody shall be responsible for her death. The above application was rejected vide order dated 1.8.2007, and 9.8.2007 was fixed for framing of charges and later on after hearing counsel for prosecution as well as accused, the trial court framed the charges against the sole accused under Section 306 I.P.C. on 22.8.2007. Feeling aggrieved this revision has been filed by the accused.

Learned counsel for the revisionist argued that the wife of revisionist committed suicide in the night of 21.1.2005 and immediately thereafter a written information was given by the revisionist at P.S. Kasona, District Gautam Budh Nagar to the effect that his wife has committed suicide by shooting herself with licensed revolver; that at the time of preparation of inquest report by the police, a suicide note was recovered by the police in which the deceased has mentioned that she is very much upset with her ailment of epilepsy in which after the fits of epilepsy the headache is unbearable, so nobody must be held responsible for her death and she begs pardon from her husband, son, Jeth, Jethani and Sas, who are providing her treatment since last seven years despite no improvement; that the Investigating Officer has obtained forensic report from Forensic Lab, Agra which states that the suicide note is in the hand writing of deceased Anjali; that the F.I.R. was lodged by father of deceased on 22.1.2005 at about 00:10 a.m. with the allegations of demand of dowry from her and of harassment and cruelty in connection with demand of dowry resulting in her death, upon which Case Crime No.28 of 2005 was registered under Sections 498A, 304B I.P.C. and Section ¾ D.P. Act; that after investigation the Investigating Officer did not find sufficient evidence under Sections 498A, 304B I.P.C. and Section ¾ D.P. Act and submitted charge-sheet only against the revisionist under Section 306 I.P.C.; that according to the F.I.R., marriage between deceased and revisionist was solemnized on 23.1.1998 and on the date of occurrence 21.1.2005 the period of seven years had almost completed and by calculating a month of 30 days, 7 years period expired on completion of 2520 days, at the most in the month of December, 2004; that from the statements of witnesses recorded by Investigating Officer no case under Section 306 I.P.C. is made out against the revisionist because there is no evidence regarding abetment U/s 107 I.P.C. on the part of the revisionist of abetting Smt. Anjali to commit suicide, who committed suicide of her own will on account of long ailment of epilepsy.

Learned counsel for the revisionist further submitted that the treatment of deceased, of epilepsy continued from 28.11.1998 up till 2.1.2005 just up to the time of death; that there is no evidence of demand of dowry with the deceased or of treating her with cruelty in connection with the demand of dowry; that the impugned order dated 1.8.2007 is wrong on facts and law and it is wrong to say that the revisionist was a drunkard or was treating the deceased with cruelty; that apart from the order dated 1.8.2007 rejecting the Application 6-B for discharge, the order dated 22.8.2007 framing charge under Section 306 against the revisionist, is also wrong and incorrect and the two orders dated 1.8.2007 and 22.8.2007 are liable to set-aside and the revisionist is liable to be discharged. In support of his argument learned counsel for the revisionist has relied on 2010 (8) SCC 628 Madan Mohan Singh Vs. State of Gujarat and another, 2011 (3) SCC 626 M. Mohan Vs. State represented by the Deputy Superintendent of Police and 2013 (10) SCC 48 Pinakin Mahipatray Rawal Vs. State of Gujarat.

Learned A.G.A. has defended the impugned orders and submitted that undisputedly the death of Smt. Anjali, wife of the revisionist has occurred by fire arm injury under other than normal circumstance within seven years of her marriage by use of licensed revolver of the revisionist and there are allegations and sufficient evidence to show that there was continuous demand of dowry and soon before her death she was subjected to cruelty and harassment by her husband in connection with demand of dowry, and her death comes within the category of dowry death; that merely for the reason that charge-sheet has been submitted under Section 306 I.P.C. in connivance with the accused-revisionist by planting a forged and fictitious suicide note, the revisionist may not avoid conviction under Section 304B and 498A I.P.C. or ¾ D.P. Act or seek discharge even under Section 306 I.P.C.; that under the provisions of Section 113B of Evidence Act there is a presumption of dowry death against the husband-revisionist and even in a case of suicide, there is a presumption as to abetment of suicide by the revisionist under Section 113A of the Evidence Act; that in any case the fact of committal of alleged suicide by Smt. Anjali, within seven years of marriage by use of licensed revolver of her husband otherwise than under normal circumstances may not be ignored and there are allegations of cruelty or harassment for demand of dowry and Car soon before her death; that the suicide note is a forged and fictitious paper which has been falsely planted to make a false defence; that the application for discharge was rightly rejected by the additional sessions judge and the order framing charge is also correct and in accordance with law; that there is no illegality in the impugned order and no good ground for setting it aside.

The undisputed facts of the case are that the death of Smt. Anjali (wife of revisionist) was caused otherwise than under normal circumstances, by gun shot injury by the use of licensed revolver of the revisionist on 21.1.2005 and F.I.R. was lodged by father of deceased in the same night of 21/22.1.2005 (at 00:10 a.m.) with the allegations that marriage of deceased and revisionist was solemnized on 23.1.1998 and she was treated with cruelty and harassment in connection with demand of dowry by her husband and in-laws and soon before her death (four days before the occurrence) there was demand of a Wagon-R Car, for non-fulfilment of which, her dowry death was caused by accused named in F.I.R., by the licensed revolver of the revisionist. The defence version is that the deceased had committed suicide and since there was no abetment for suicide from the revisionist and suicide was committed due to long ailment of epilepsy and deceased also left behind her a suicide note seeking pardon from the revisionist and her in-laws, the learned lower court acted wrongly in rejecting the application for discharge of the revisionist and in framing charges against him under Section 306 I.P.C.

As far as the argument of learned counsel for the revisionist that on the date of occurrence, 7 years period from the date of marriage had expired on or about 16.12.2004 by calculating 30 days in a month and 84 months in 7 years i.e. 2520 days is concerned, I do not find any force in this argument as Section 304B of I.P.C. makes a provision for punishment in a case of dowry death caused within 7 years of marriage and the period of 7 years may not be considered to have been completed before midnight of 22/23.1.2005 as this period of 7 years is to be calculated according to the British Calender.

It is pertinent to mention that Section 49 of I.P.C. defines the year and month as under:-

"Year", "Month"-wherever the word "year" or the word "month" is used, it is to be understood that the year or the month is to be reckoned according to the British calender."

In the case of Eeradi Laxman Vs. State of Andhra Pradesh, 2009 Cr.L.J. 1727, Hon'ble the Apex Court has holding that "a legal day commences at 12 O'clock midnight and continues till next midnight held that in case of an accused born on 10.5.1978, the said day was to be counted as a whole day and it cannot be said that he had attained the age of 16 years before 12 O'clock in the midnight of previous day i.e. on 9.5.1994. The offence if committed at about 1 p.m. on 9.5.2014, he was a juvenile at the time of occurrence".

Similarly in this case as the marriage took place on 23.1.1998, for the purposes of provisions of Sections 304B, 306 I.P.C. or Section 113A, 113B of Indian Evidence Act, the period of 7 years may not be considered to have been completed before 12 O'clock in the midnight of previous day i.e. 22.1.2005 upon reckoning the period in accordance with law. Otherwise also when a presumption under Section 113A and 113B for the offences under Section 304B and 306 I.P.C. may not be available against the accused from the very first day on 8th year i.e. after 12 O'clock in the midnight of 22.1.2005, the same may not be considered to have been discontinued before 12 O'clock in the midnight of 22.1.2005.

The provisions of Section 113A of Indian Evidence Act are being reproduced hereunder:-

"113A. 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."

Since there are allegations of demand of dowry, cruelty and harassment in connection of such demand of dowry earlier and soon before her death, there is a presumption that even if it was not a case of homicide but a suicide was committed, the same was abetted by the revisionist and his relatives. However, according to the prosecution, it is a case of dowry death where the death of deceased was caused by the revisionist by use of his licensed revolver.

As far as the suicide note is concerned, it is alleged to be supported with expert report obtained by the Investigating Officer, it may not be disputed that Investigating Officer may not be defined as court and the genuineness of alleged suicide note which is alleged to have been planted in order to make a false defence is to be tested by the court during evidence at the trial. The Investigating Officer only gives his opinion regarding commission of an offence, on the basis of evidence collected by him and despite submission of charge-sheet, a court may always reach to a different conclusion from the opinion of Investigating Officer and may hold the accused guilty of more heinous offences for which he was not charge-sheeted by the Investigating Officer or may hold him guilty for some minor offence, other than for which he was charge-sheeted or may acquit him of the offences for which the charge-sheet was submitted against the accused.

As far as the expert opinion regarding hand-writing of deceased, over the suicide note is concerned, the above expert report is also a mere opinion under the provisions of Section 45 of Indian Evidence Act and may not be considered as evidence unless examination of author of such an hand-writing expert before the court. At present the above opinion has no binding effect and may not be considered as conclusive proof of the hand-writing of deceased over the suicide note. During evidence at the trial, the genuineness of suicide note and that of the writing taken for comparison, will be tested by the Sessions Court so as to reach at some reasonable conclusion.

Since every presumption is rebutable, the presumption under Section 113A and 113B of Indian Evidence Act is also rebutable but unless the presumption provided under law is not rebutted by any cogent and reliable evidence before the court, such presumption stands good and may not be ignored. The court's hand are not tight after recording evidence during the trial if it finds no sufficient evidence against the accused it may acquit him and on finding sufficient evidence is also not barred from convicting him as well as his relatives for the offences of dowry death under Section 304B as well as under Section 498A I.P.C. and Section ¾ D.P. Act.

During the course of arguments, the revisionist has filed copy of affidavit of first informant and order passed by court in Succession Certificate Case No.21 of 2008 in which vide order dated 30.11.2008 upon no objection by the first informant, succession certificate has been issued by court on 30.11.2008 in favour of the revisionist. The issuance of succession certificate has no bearing on the impugned order or offence in question and is not relevant for the purpose of this case.

The case laws relied on behalf of the revisionist are not applicable to the facts of this case because in Madan Mohan Singh Vs. State of Gujarat and another (supra), it was a case of suicide by employee and there were no ingredients of abetment of suicide by employer. Similarly, in the case of M. Mohan Vs. State represented by the Deputy Superintendent of Police (supra), there were no allegations of demand of dowry and in the case of Pinakin Mahipatray Rawal Vs. State of Gujarat (supra), also there were no allegations of demand of dowry and the only allegation was that the husband had developed some intimacy with another woman during the subsistence of marriage and failed to discharge his marital obligations.

Unlike this case, in all the above three cases, relied on behalf of the revisionist, there was no presumption of dowry death or abetment of suicide under the provisions of Section 113A or 113B of Indian Evidence Act and so above cases are not applicable in this case and do not give any protection to the accused-revisionist. At this stage, there can be no presumption that deceased Smt. Anjali would have committed suicide on account of alleged ailment of epilepsy and the alleged suicide note would have really been executed by her as per claim of defence version.

In view of the discussions made above, I do not find any illegality, irregularity, impropriety or incorrectness in the impugned order dated 1.8.2007 rejecting application 6B of the revisionist for discharge or in order dated 22.8.2007 framing charges against the revisionist for the offence under Section 306 I.P.C. There is no sufficient grounds for interfering with or setting it aside the impugned orders. The revision is devoid of merits and is liable to be dismissed.

Accordingly, the revision is dismissed. The interim order, if any, stands vacated.

Let a copy of this order be sent to court below for expeditious disposal of old sessions trial in accordance with law.

Order Date :-01.9.2014

Kpy