Suresh Singh & Others vs State Of U.P.
2015 Latest Caselaw 1736 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 9.7.2015
 
								        Delivered on 10.8.2015
 
Court No. 53
 

 
Case :- CRIMINAL APPEAL No. - 4224 of 2012
 
Appellant :- Suresh Singh & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.B. Singh,B.D. Sharma,Jitendra Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

1. The present criminal appeal has been preferred against the judgment and order dated 9.10.2012 passed by the learned Additional District and Sessions Judge, Court No.4, Kanpur Dehat in Sessions Trial No.354 of 2010 (State Vs. Suresh Singh and others), arising out of Case Crime No.218 of 2009, under Sections 498-A, 304-B I.P.C. and Section ¾ D.P. Act, Police Station-Mangalpur, District Kanpur Dehat, by which the learned trial court has convicted and sentenced the appellants 10 years R.I. for the offence under Section 304B I.P.C., 3 years R.I. for the offence under Section498-A I.P.C. and fine of Rs.1000/- to each and in default of payment of fine, 2 months additional imprisonment, 2 years R.I. under Section 4 of the D.P. Act and fine of Rs. 2000/- to each and in default of payment of fine 2 months additional imprisonment. All the sentences are running concurrently.

2. Prosecution case in brief is that the marriage of informant's sister, namely, Sundari was performed with accused/appellant no.3, namely, Shailendra Singh Bhadoria on 1.5.2007. In the marriage, Rs.3,00,000/- (Rupees Three Lacs) in cash was given along with other articles. After the marriage, when the sister of the informant went to her parents' house from her in-laws' on the ceremony of 'Chauthi' everything was normal, but when she returned back to her in-laws' house on second time, a demand of Bolero vehicle was being made by the accused persons from the sister of the informant, for which she was harassed and threatened if the said demand would not be fulfilled, she would not be alive. On the information given by the victim to the informant and his father, they both tried to pacify the in-laws of the victim and stated that since they are farmers hence it is beyond their means to give a Bolero vehicle, but in spite of helplessness shown by the informant and his father to the in-laws of the victim, they continued their demand of Bolero vehicle and victim was being tortured physically as well as mentally by her in-laws, i.e., husband Shailendra Singh Bhadoria, father-in-law Suresh Singh, mother-in-law Smt. Mithilesh, Chachiya Sasur Dinesh Singh and Chachiya Sas Smt. Madhu Singh.

3. On 20.1.2008, the informant's sister/victim was taken by her husband Shailendra Singh, father-in-law Suresh Singh and brother-in-law Ankur to her parents' house as the sister of the informant was not feeling well and her treatment was going on. When the condition of the victim deteriorated, she was admitted in Hellet Hospital at Kanpur on 26.1.2008 where she died after 4-5 hours in the night on 26/27.1.2008. Thereafter, the informant moved an application for lodging a report and requesting for panchayatnama and post mortem of the deceased on 28.1.2008, but his report was not lodged. Thereafter, the informant moved an application to the Director General of Police and Chief Minister, U.P. Lucknow and other higher officials for lodging an FIR but the same was not lodged, hence he moved an application under Section 156(3) Cr.P.C. for lodging of FIR and on the basis of which the present FIR has been lodged against the accused persons.

4. The FIR of the incident was lodged on 16.4.2009 at 15.05 P.M. at Police Station Mangalpur, District Kanpur Dehat which was registered as Case Crime No.218 of 2009, under Sections 498A, 304-B I.P.C. and ¾ D.P. Act, Police Station-Mangalpur,District Kanpur Dehat against the five accused persons including the appellants.

5. Prior to it, the inquest report of the deceased was prepared by PW5 Man Mohan Singh on 27.1.2008 at about 12.50 P.M. at Hellet Hospital, Kanpur Nagar. The post mortem of the deceased was conducted by PW6 Dr. Yogesh Dayal on 27.1.2008. The dead body of the deceased was brought to him by Dhanpal Singh, Constable of Police Station-Swaroop Nagar in a sealed condition, who identified him. The post mortem of the deceased was conducted on the same day at about 3.05 P.M. No ante mortem injuries were found on the person of the deceased by the doctor and the cause of death of the deceased could not be ascertained and viscera was preserved.

6. The viscera of the deceased was sent for Chemical Analyst, who vide his report dated 6.1.2010 has submitted that Aluminium Phosphide poison was found in the viscera of the deceased.

7. The investigation of the case was carried out by the then Circle Officer Berapur, namely, Sri Karamveer Singh PW7 as well as Sri Anil Kumar, PW8, the then Deputy Superintendent of Police, Derapur, who made a spot inspection of the place of occurrence, prepared the site plan of the same and recorded the statements of the witnesses and after investigation finding evidence against the accused persons, submitted charge sheet against them in the Court.

8. On committal of the case by the learned Magistrate to the Court of Sessions, the charges were framed against the accused persons under Sections 498A, 304-B I.P.C. and ¾ D.P. Act on 25.1.2011. The accused pleaded not guilty and sought their trial.

9. The prosecution in support of its case has examined PW1 Roop Singh, PW2 Tej Singh, PW3 Siddheshwari, PW4 Constable Narendra Prasad Pandey, PW5 Man Mohan Singh, PW6 Dr. Yogesh Dayal, PW7 Karamveer Singh, PW8 Anil Kumar.

10. The documentary evidence filed by the prosecution such as application under Section 156 (3) Cr.P.C., chik FIR, carbon copy of G.D., endorsement of lodging of the FIR, inquest report and post mortem report of the deceased, site plan of place of occurrence, charge sheet submitted against the accused persons as Ex. Ka.-2 to Ka.-7.

11. The accused in their statement under Section 313 Cr.P.C. denied the allegation levelled against them except the question no.3 that 'accused Shailendra Singh Bhadoria (husband), Suresh Singh (father-in-law) and Ankur (brother-in-law) on 20.1.208 had left the deceased to her parents' house and only accused Shailendra Singh Bhadoria, husband of the deceased, stayed at the house of the deceased and rest of the accused persons had returned". The accused further deposed before the trial court that the present FIR has been lodged in order to extract money from them and false report has been lodged against them.

12. The accused in their defence have examined DW1 Dinesh Singh Bhadoria, DW2 Pramod Singh, DW3 Suresh Singh, DW4 Ashok Kumar Sinha (Chemical Analyst).

13. PW1 Roop Singh, informant of the case is the real brother of the deceased, PW 2 Tej Singh is father of the deceased and PW3 Siddheshwari is the mother of the deceased. The said prosecution witnesses have deposed before the trial court that the marriage of the deceased with accused Shailendra Singh Bhadoria was solemnized on 1.5.2007 and after marriage all the accused persons started demanding the four wheeler vehicle from her and when the same could not be fulfilled, she was physically and mentally harassed by them and finally she was done to death for want of dowry. In examination-in-chief, all the three witnesses have supported the prosecution case.

14. PW4 Constable Clerk Narendra Prasad Pandey proved the chik FIR, G.D. report endorsing the FIR ( Ex. Ka.2 and Ka 3.)

15. PW5 Manmohan Singh prepared the inquest report of the deceased and proved the same.

16. PW6 Dr. Yogesh Dayal deposed before the trial court that he had conducted the post mortem of the deceased and proved the same as Ex. Ka.-5

17. PW7 Karamveer Singh, the Investigating Officer of the case, proved the site plan as Ex. Ka.-5.

18. PW8 Sri Anil Kumar, 2nd Investigating Officer, who was examined by the trial Court has deposed that he submitted the charge sheet against the accused persons and proved the same as Ex. Ka.-6 & Ka.-7.

19. The viscera report of the deceased was brought on record by the prosecution and according to which, in the stomach and in pieces of liver tissue poison of Aluminium phosphide was found.

20. Heard Sri B.D.Shrama, learned counsel for the appellants, Sri Nikhil Chaturvedi, learned AGA for the State and perused the record.

21. It has been argued by the learned counsel for the appellants that the FIR of the incident was lodged after a great delay on the basis of an application under Section 156(3) Cr.P.C. on 16.4.2009 though the incident had taken place on 26/27.1.2008, i.e., after four months of the incident. He further submits that the demand of Bolero vehicle by the appellants from the deceased and her parents is absolutely false one and the said allegation has been levelled just to make out a case of dowry death against the appellants, though from the evidence of PW1 Roop Singh, the informant of the case, PW 2 Tej Singh and PW3 Siddheshwari who are parents of the deceased, it is evident that no such complaint was made by them prior to any of the authorities and further there is no evidence to show that the accused were harassing the deceased for Bolero vehicle and she was done to death for not fulfilling the same. He next argued that the deceased was suffering from some ailment and on 20.1.2008 she was taken to her parents' house by her husband Shailendra Singh Bhadoria, father-in-law Surendra Singh and brother-in-law Ankur, who returned to their house after leaving her and her husband Shailendra Singh Bhadoria stayed back there and she was being taken care of by her husband and her parents for about a week. It appears that on 26.1.2008 when the deceased was at her parents' house in ailing condition, she committed suicide by consuming some poisonous substance and when her condition deteriorated she was immediately rushed to the hospital by her husband and her parents where she was admitted and she died within 4-5 hours after admission on the same day. On the death of the deceased, the informant of the case immediately sent an information to the police of the concerned police station which arrived there and prepared inquest report of the deceased, in which the husband of the deceased namely, Shailendra Singh Bhadoria along with brother of the deceased, namely, Roop Singh who is informant of the case, were the witnesses, which shows the bonafide conduct of the appellants and their innocence. Though the police had arrived at the hospital on an information given by the brother of the deceased on her death, but no effort was made to lodge the FIR against the accused persons. He next submitted that as the accused persons were not responsible for the death of the deceased and family members of the deceased were also satisfied that the deceased has died in her parents' house by consuming some poisonous substance, hence, they did not lodge the FIR and it was after four months of the incident an application under Section 156(3) Cr.P.C. was moved by the informant on 16.4.2009 in order to extract money and for his ulterior motive.

22. He urged that on the same evidence, co-accused Dinesh Singh and Smt. Madhu Singh who are Chachiya Sasur and Chachiya Sas respectively of the deceased have been acquitted by the trial Court on the ground that they were living separately from the deceased and and her husband, but the trial court has convicted the father-in-law and mother-in-law of the deceased who were also living separately from the deceased and her husband and convicted them along with husband of the deceased namely, Shailendra Singh Bhadoria. He further submitted that the finding recorded by the trial Court in convicting the appellants for the offence under Sections 498A, 304B I.P.C. and ¾ DP. Act is against the evidence on record and the appellants have been falsely implicated in the present case. There appears to be no evidence against the appellant for demand of dowry or to show that the deceased was done to death by them for non-fulfilling the demand of four wheeler vehicle in dowry. Hence, the judgment and order passed by the trial Court should be set aside and the accused/appellants be acquitted.

23. In support of his contention, learned counsel for the appellants has placed reliance upon a judgment of the Apex Court in the case of Ramaiah @ Rama Vs. State of Karnataka, reported in LAWS (SC) 2014-8-18/TLPRE-2014-0-646 and has drawn the attention of the Court towards paragraph no.12 of the judgment, which is quoted here-in-below:

"12. We are conscious of the fact that in such cases, sometimes there may be delay in lodging the FIR for various valid reasons. However, it is important that those reasons come on record. There is no explanation worth the name given by the complainant as to why the complainant maintained stoic silence. In this backdrop, the testimony of these witnesses alleging dowry demand has to be tested more stringently and with some caution. On that touchstone, when we analyse the statements, we find the contradictions therein, as pointed out by the learned trial court, become very appealing and meaningful."

24. Per contra, learned AGA appearing for the State has strongly argued that the deceased was done to death within seven years of marriage and there is presumption under Section 113B of the Indian Evidence Act against the accused appellants which has not been discharged by them. There was also a demand of dowry of Bolero vehicle from the parents of the deceased who showed their inability to fulfil the said demand, on account of which the deceased was being harassed and it appears that due to harassment the deceased consumed some poisonous substance which was found in her viscera, hence the trial court was right in convicting the appellants and sentencing them for the offence in question. In support of his contention, learned AGA has placed reliance upon a judgment of Apex Court in the case of Tummala Venkateswar Rao Vs. State of Andhra Pradesh, reported in (2010) 2 SCC 240 .

25. Having considered the submissions advanced by the learned counsel for the parties and perused the record.

26. The fact which admittedly emerges from the record is that the marriage between the deceased and appellant Shailendra Singh Bhadoria was solemnized on 1.5.2007 and deceased at the time of her death was at her parents' house along with her husband who was brought there in ailing condition by her husband, father-in-law and brother-in-law on 20.1.2008 and father in law and brother-in-law had left the deceased along with her husband, accused appellant no.3 Shailendra Singh Bhadoria at her parents' house where she was being treated in an ailing condition by her husband and her parents. When the condition of the deceased deteriorated on 26.1.2008, she was immediately rushed to the Hellet Hospital, Kanpur by her husband and her parents and admitted there where she died within 4-5 hours on the same day. The information about the death of the deceased was sent to the concerned police station which arrived there and prepared the inquest report of the deceased in the hospital in presence of her husband, parents and brother, as it is apparent from the inquest report that the accused appellant Shailendra Singh Bhadoria along with the brother of the deceased Roop Singh were the witnesses of the inquest.

27. As per the viscera report of the deceased, she died by consuming poisonous substance, i.e., Aluminium Phosphide which was found in her viscera.

28. From the evidence of PW1 Roop Singh, the brother of the deceased and PW2 and PW3, namely, Tej Pal Singh and Smt. Siddheswari, it is apparently clear that though it is alleged that the deceased was being harassed and cruelly treated by the accused appellants for demand of Bolero vehicle as dowry, but no complaint regarding the same was ever made to any of the higher authorities. Moreover, the said fact has been admitted by the said three prosecution witnesses in their cross examination also and it was only stated by them that they tried to console the deceased.

29. It is noteworthy to mention here that when the deceased was brought to her parents house by her father-in-law, her husband and brother-in-law, she did not make any complaint to her parents or brother regarding demand of a Bolero vehicle for which she was being harassed and also that some poisonous substance had been given to her by them.

30. A specific question was put by the trial Court to the informant PW1 Roop Singh, who is brother of the deceased during his examination in the Court which is as under:

"ziz'u%& vkidh cfgu us vkidks ;k vkids ?kj ds fdlh lnL; ls e`R;q ds igys ;g ckr crk;h Fkh fd mls mlds ifr] llqj] nsoj esa ls fdlh us ;k lHkh us fo"k f[kyk;k ;k fiyk;k ?

mRrj %& th ughA""

31. Thereafter during the cross examination of PW2 Tej Singh, father of the deceased, who denied and stated that when the deceased was brought by the accused persons she has not disclosed to him that any of the accused appellants or their family members had administered poisonous substances to her.

32. It further transpires from the evidence of PW3 Smt. Siddheswai, mother of the deceased that the husband of the deceased remained with the deceased at her parents house and also admitted her in the hospital for treatment on 26.1.2008 who died within 4-5 hours of her admission on the same day.

33. Thus, from the prosecution evidence there appears to be no demand of Bolero vehicle as dowry by the accused appellants from the deceased or from her parents. She also did not complain to her parents about the same when she was brought to her parents house on 20.1.2008 and also not informed them that she was administered any poisonous substance by the accused appellants or any other family members. It appears that the deceased consumed some poisonous substance at her parents' house and she was in an ailing condition. The husband of the deceased who was present there, immediately rushed her to the hospital where she died. After her death the husband was throughout present at the time of inquest proceeding as well as at the time of post mortem examination of the deceased and also when the last rites of the deceased were performed in the presence of her parents. Thereafter, the brother and parents of the deceased tried to black-mail the accused appellants in order to extract money from them and when they refused to pay the same, the present FIR was lodged after fourteen months of the incident on the basis of an application under Section 156(3) Cr.P.C. The prosecution has not given any plausible explanation for not lodging the FIR promptly though it is evident from the evidence of PW1 Roop Singh that when the deceased died in Hellet hospital information of the same was sent to the concerned police station which arrived and conducted the inquest of the deceased and further sent the dead body of the deceased for the post mortem, but then too, the FIR was not lodged by any of the family members of the deceased. The explanation given by PW1 Roop Singh that the police did not lodged the FIR appears to be not convincing and true as he moved an application under Section 156(3) Cr.P.C. after seven months of the incident, i.e., on 10.7.2008. Thus, for seven months all the family members of the deceased kept silent and did not make any attempt to lodge the FIR which speaks about their otherwise conduct.

34. The contention of the learned counsel for the accused appellants that they were falsely implicated in the present case by the informant and parents of the deceased for extracting money from them, appears to be correct. The finding recorded by the trial Court in convicting the appellants for the offence in question is based on surmises and conjectures which is not borne out from the record. The trial Court has misread the evidence on record and convicted appellants.

35. It has been pointed out by the learned counsel for the appellants that appellant no.1 and 2 who are father-in-law and mother-in-law of the deceased were living separately from the deceased and her husband at Gurgaon where the husband of the deceased was also employed.

36. The maximum sentence awarded to all the appellants is 10 years R.I. The accused appellant Shailendra Singh Bhadoria, husband of the deceased, has already served out in 9 years in jail.

37. The finding recorded by the trial Court that the accused appellants had brought the deceased to her parents house and left there in an ailing condition after she was administered some poisonous substance, appears to be against the evidence on record as firstly it is apparent from the evidence of PW1 and PW2 that the deceased did not complain to anyone that she was administered any poisonous substance either by the accused appellants or by any other family members and brought to her parents house goes to show that the said finding is not proved from the prosecution evidence.

38. Moreover, as per the viscera report aluminium phosphide was found in the viscera, which is known to be a strong poison and its' foul smell cannot be tolerated by any human being and it appears that when she consumed the said poison on 26.1.2008 and was taken to the hospital by her husband and her parents she though was being treated for being saved but she could not survive and died within 4-5 hours after admission on the same day.

39. In view of the foregoing discussions, the allegation levelled against the appellants does not stand proved by the prosecution. Hence, the impugned judgment and order dated 9.10.2012 passed by the trial Court convicting and sentencing the appellants is hereby set aside.

40. The accused appellant no.3, namely, Shailendra Singh Bhadoria, who is stated to be in jail, shall be released forthwith, if not wanted in any other case.

41. The appellant nos. 1 and 2, namely, Suresh Singh and Smt. Mithlesh are stated to be on bail, they need not to surrender before the Court concerned. Their bonds and sureties are hereby discharged .

42. In view of the above, the appeal stands allowed.

43. Office is directed to send a certified copy of this order to the C.J.M., concerned for its compliance.

Dt. 10.8.2015

NS