Shrawan Singh @ Sarwan Singh And ... vs State Of U.P.
2015 Latest Caselaw 2002 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Case :- CRIMINAL APPEAL No. - 385 of 2012
 

 
Appellant :- Shrawan Singh @ Sarwan Singh And Anr.
 
Respondent :- State Of U.P.

Counsel for Appellant :- Shyam Sunder Mishra,Dinesh Kumar Verma,Jitendra Singh

Counsel for Respondent :- Govt. Advocate

Hon'ble Om Prakash-VII,J.

1. This criminal appeal has been preferred by the accused appellants Shrawan Singh alias Sarwan Singh and Smt. Ramshri against the judgement and order dated 24.1.2012 passed by the Additional District & Sessions Judge (Temporary Ex-cadre Post) -01, Fatehpur in Session Trial No. 379 of 2009 (State vs. Shrawan Singh alias Sarwan Singh and another) convicting and sentencing the appellants for the offences punishable under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act. Fine was also imposed.

2. The facts of the case, as unfolded by the informant Kailash Singh son of Ram Swarup Singh in the First Information Report (in short 'F.I.R.'), are that two years ago the informant had married his daughter Meera Devi with Shrawan Singh Parihar resident of village Shakul Pur, police station Husain Ganj. After the marriage, Shrawan Singh and his mother beat his daughter demanding money from the informant. Many times the informant had fulfilled the demand but five days ago, the son-in-law alongwith the daughter of the informant had come to the house of the informant and made a demand of Rs. 25,000/-. Out of the demanded money, Rs. 10,000/- was given by the informant but the son-in-law of the informant and his mother were not happy. On 17.5.2009, the daughter of the informant was killed by his son-in-law and his mother. The dead-body of the deceased was lying in their house.

3. On the basis of the written report (Ext. ka-1), chik First Information Report (Ext. Ka-4) was registered at Police Station concerned on 18.5.2009 at 8.15 a.m. mentioning all the details as had been described in Ext. Ka-.1. G.D. entry (Ext. Ka-5) was also made at the same time.

4. Investigation of the matter was entrusted to Arun Kumar Singh, Circle Officer City, Fatehpur. The Investigating Officer started investigation. He inspected the place of occurrence and prepared site plan (Ext. ka-7). Inquest of the dead-body was done and report (Ext. ka-3) was prepared. Other police papers i.e. letter to Chief Medical Officer (Ext. ka-8), photo lash (Ext. ka-9), challan lash (Ext. ka-10, sample seal (Ext. ka-11) were also prepared.

5. Autopsy report (Ext. ka-2) was prepared after conducting the post mortem on 18.5.2009 at 3.20 p.m.

6. As per the post mortem report, the deceased was thin body built and the rigor mortis was passed of in upper extremities and was present in lower extremities.

7. On examination of the dead body of the deceased, following ante-mortem injuries were found:

1. Ligature mark 22 x 1.5 cm obliquely based in neck about thyroid cartilage 5 cm from chin, 5 cm from right ear, 2 cm from left ear, a gap of 8 cm behind left ear. On dissection margins were red and contused, leathery and parchment like.

2. Contusion size 2 x 2 cm left elbow.

3. Contusion size 5 x 3 cm over right elbow joint.

4. Contusion 4 x 4 cm over left side.

5. Contusion 5 x 3 cm over left scapula.

8. In the opinion of the doctor, death was caused due to asphyxia as a result of ante-mortem injury.

9. After completing the investigation, charge-sheet (Ext. ka-6) against all the accused appellants was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session court, was committed to the Court of sessions.

10. Accused/appellants appeared and initially charge under Sections 498-A, 304-B, IPC and ¾ Dowry Prohibition Act was framed. Later on, on 16.1.2012, charge under Sections 302/34, 306 IPC was also framed in the trial court against them. All the accused have denied the charges framed against them and claimed their trial.

11. Trial proceeded, and on behalf of prosecution, eight witnesses were examined., wherein PW-1, Kailash Singh, PW-2 Smt. Laxmi Devi, PW-3 Dr. Nafees-ur-Rahman, PW-4 Nayab Tehsildar Dinesh Kumar Mishra, PW-5 Constable Rajendra Prasad Rai, PW-6 Arun Kumar Singh, Deputy Superintendent of Police, PW-7 Narendra Pratap Singh, Circle Officer and PW-8 Sub-Inspector Pratap Bahadur Singh.

12. After closure of prosecution evidence, statement of accused appellants under Section 313 Cr.P.C. was recorded.

13. Accused persons in their statements under Section 313 Cr.P.C. denied the allegations and stated that they have been falsely implicated for ulterior motive.

14. The accused appellants were afforded opportunity to adduce evidence in their defence. They had filed prescription dated 16.4.2007 of District Women Hospital, Fatehpur, prescription dated 17.12.2007 of Vailvi, prescription dated 12.1.2008 of Vailvi, prescription dated 31.7.2008, prescription dated 13.2.2009 of Community Health Centre, Husain Ganj, prescription dated 17.3.2009 of Dr. Nawal Clinic, prescription dated 19.3.2009 of Dr. Nawal Clinic, prescription dated 25.3.2009 of Dr. Nawal Clinic and prescription dated 11.9.2009 of Community Health Centre, Husain Ganj.

15. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellants beyond reasonable doubt and convicted and sentenced the accused appellants, hence this appeal.

16. I have heard Shri Jitendra Singh, learned counsel for the appellants, learned AGA for the State at length and perused the entire record carefully.

17. Castigating the impugned judgement and order, learned counsel for the appellants has submitted that no offence, as levelled by the prosecution against the appellants, is attracted. The prosecution could not prove the essential ingredients to constitute the offence beyond reasonable doubt. Trial Court has illegally appreciated the evidence and reached at a wrong conclusion. Deceased was under treatment due to illness. Appellants have proved the treatment papers before the Court below, but the trial Court did not take them into consideration. Deceased committed suicide. Appellant Shrawan was present at the railway station at the time of incident for obtaining reservation ticket. He was informed by someone on the mobile phone about the incident. He has not committed the present offence. There are general allegations of demand of dowry. There is no specific allegation regarding cruelty and harassment extended to the deceased. Deceased had gone to Gujarat along with the appellant Shrawan and lived there for few months. Again she wanted to go along with the appellant Shrawan to Gujarat, but she was asked to go later on, therefore, she became annoyed and committed suicide. Two brothers of the deceased were also living along with the appellant Shrawan at Gujarat to earn their livelihood. There is no evidence that any demand regarding dowry was ever made by the appellant from the deceased or her brothers at Gujarat. Prosecution has only examined father and mother of the deceased. Brothers of the deceased were not examined, who were living with the appellant Shrawan and deceased. There is also no specific evidence regarding demand of dowry against the appellant no.2 Ramshree, the mother-in-law of the deceased and she is aged about 70 years at present. Lastly, it was submitted that the appellant no.1 is in jail since 18.5.2009.

18. In reply, learned AGA appearing for the State has submitted that in the postmortem report, ante mortem injuries caused by the accused-appellants were also found on the body of the deceased, besides this fact that the deceased was done to death by hanging. Non-examination of the brothers of the deceased will not be sufficient to disbelieve the testimony of father and mother of the deceased. Medical evidence fully support the prosecution case. All the essential ingredients to constitute the offence under sections 498-A, 304-B and 4 Dowry Prohibition Act were established by the prosecution beyond reasonable doubt. Presumption made by the trial Court under section 113-B of the Evidence Act is correct. Hence, trial Court findings cannot be termed to be illegal. It is an admitted fact of the parties that death of the deceased was unnatural in the house of the appellants and both the appellants were present at that time in the house. The explanation made by the appellants in rebuttal of the prosecution evidence is not believable and probable. Hence, trial Court findings are not liable to be interfered with.

19. I have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire records.

20. First of all Court proceeds to deal with the F.I.R. In this matter, it is an admitted case of the prosecution that at the time of preparing the inquest report, P.W.1 Kailash Singh was present. Perusal of the inquest report reflects that almost all the witnesses of inquest are belonging to the prosecution side. F.I.R. was lodged after the postmortem. Submission of the learned counsel for the appellants is that if the deceased was done to death by the accused-appellants and the parents of the deceased were present at the time of inquest, then why the complaint was not made by them to the police immediately. Non-making of complaint about the offence levelled against the accused-appellants clearly indicates that informant lodged the F.I.R. with ulterior motive after consultation.

21. I have minutely analyzed the submission of the learned counsel for the appellants with the evidence available on record. It is true that parents of the deceased were present at the time of inquest and postmortem, but it does not mean that offences alleged against the accused-appellants are false. By that time, they were not aware about the cause of death. They found the dead body of the deceased lying in the courtyard of the appellants. Death of the deceased is unnatural by hanging. Therefore, lodging of the first information report on 18.5.2009 does not make the F.I.R. a suspicious document. Delay in lodging the F.I.R. in such type of matter will not make the prosecution evidence regarding demand of dowry, cruelty, harassment and cause of death unbelievable.

22. In the instant case, on analysis of the evidence available on record, it is evident that the deceased died within seven years of her marriage and cause of death, as per the medical evidence, was hanging. Antemortem injuries were also found on the body of the deceased. P.W.1 Kailash Singh, the father of the deceased was present at the time of preparation of inquest. It is also an admitted case of the prosecution that he received information about the death of the deceased and reached immediately at the place of occurrence and found the dead body of the deceased lying in the courtyard. It has also come in the evidence that after the marriage, both the deceased and her husband were living in Gujarat in connection with the employment. They have come at the native place about six or seven months before. It has also come in the prosecution evidence that two younger brothers of the deceased were also residing along with the appellant Shrawan in Gujarat for some time in connection with the employment. Prosecution case is that Rs.65,000/- was demanded as a dowry at the time of marriage, which was agreed to be paid by the parents of the deceased. Rs.25,000/- could not be paid and the same was being demanded by the appellant Shrawan. On one occasion, Rs.10,000/- was paid when the appellant Shrawan and the deceased had gone to the house of the informant. In the F.I.R., there are general allegations regarding demand of dowry. No specific date and time was mentioned in the F.I.R. when both the appellants demanded dowry and caused cruelty and harassment to the deceased, except that five days before, appellant Shrawan demanded Rs.25,000/- as additional dowry at the house of the informant. In the statement also, both the witnesses have made general allegation on the point of demand of dowry. Specific allegation is against appellant Shrawan only regarding demand of Rs.25,000/- as additional dowry at the house of the informant five days prior to the incident. The same fact was also stated by P.W.2, the mother of the deceased.

23. Medical evidence clearly suggest that death of the deceased was the result of hanging and four antemortem contusions were also found on the body of the deceased. If the statement of the doctor conducting the postmortem is minutely scrutinized, it is clear that death of the deceased is unnatural. In this matter issue is that whether deceased committed suicide by hanging or she was done to death by hanging. Trial Court opinion is that both the accused-appellants were continuously making demand of additional dowry from the deceased and her parents soon before the death of the deceased. Deceased was subjected to cruelty and harassment in connection with the demand of dowry soon before her death and she died within seven years of her marriage.

24. In the backdrop of the above factual situation, I have to analyse whether the finding recorded by the trial Coiurt is in accordance with the evidence available on record and the prosecution was able to establish the guilt of both the accused-appellant for committing the present offence or the trial Court has committed illegality in holding guilty to both the accused-appellants.

25. In the instant matter, as has been discussed above, death with no stretch of imagination can be termed as natural death. Medical evidence clearly suggests that the death of the deceased was unnatural. Four contusions were found by the doctor on her body while conducting the postmortem. Contention of the learned counsel for the appellants was that antemortem injuries in the form of contusions would have occurred while the deceased was committing suicide, but the argument advanced by the learned counsel for the appellants is not appealable. Death of the deceased was the result of hanging. It means she was done to death by tightening her neck with some rope or cloth. It is improbable and unbelievable that during course of committing suicide, a person would receive antemortem injuries. It is possible only when a person committing suicide will confront with hard and rough substances. Injuries found on the body of the deceased does not suggest such possibility.

26. In the present matter, injuries are ante mortem injuries, which clearly indicate that all the contusions found on the body of the deceased would have caused before hanging her. Thus, finding recorded by the trial Court regarding medical evidence is not liable to be interfered with as death of the deceased is unnatural.

27. Only question in the case is that whether both the appellants were responsible for committing the said offence or only the appellant Shrawan (husband). Since offence under section 304-B IPC was inserted by the legislature in the enactment on the ground that in such type of offence, there would have been no direct evidence. Informant and other family members would not be present at the place of occurrence. Only the members of in-laws' house would be present at the scene of occurrence against whom generally the allegations are levelled. The legislature has fixed certain ingredients for establishing the presumption for the offence under section 304-B IPC. If the prosecution establishes those facts, presumption under section 113-B of the Evidence Act is made against the accused. In the present matter, there is general allegation regarding demand of dowry against both the accused-appellants. Later on, role has been specified against the accused-appellant Shrawan (husband). Accused-appellant no.2 Ramshri was aged about 65 years at the time of incident. It is improbable and unbelievable that she would have caused injuries upon the body of the deceased. There is specific allegation against the accused-appellant Shrawan that he demanded additional dowry. If the plea taken by the accused-appellant Shrawan is taken into consideration that deceased also wanted to go along with appellant Shrawan to Gujarat and she was told to go later on, therefore, she became perturb, then also the cause for annoyance appears only against the husband (appellant Shrawan). At what point of time accused-appellant Ramshri demanded additional dowry and when cruelty and harassment were caused to the deceased by her was also not established by the prosecution beyond reasonable doubt. For making the presumption for committing the offence under section 304-B IPC against appellant no.2 or the presumption may raise only when all the essential ingredients to constitute the offence under section 304-B IPC are established. In the opinion of the Court, prosecution was not able to establish the specific time for making demand of dowry, causing cruelty or harassment against the appellant no.2 Ramshri. Proximity and nexus between the death of the deceased and the demand of dowry, cruelty and harassment extended to the deceased is also not established against appellant no.2. Since all the essential ingredients, as required under section 304-B IPC against the appellant Ramshri were not established by the prosecution, therefore, presumption made by the trial Court taking recourse of the provision of section 113-B the Evidence Act is not sustainable.

28. Hon'ble Apex Court vide judgment and order datd 19.11.2014 passed in criminal appeal no.1142 of 2011 in the case of Baljinder Kaur Vs. State of Punjab has held in paragraphs no.14, 15 & 16 as under.

"14. The expression "soon before death" in Section 304B IPC and Section 113B of the Evidence Act was considered by this Court in Hira Lal vs. State (Govt. of NCT) Delhi; 2003 (8) SCC 80 and this Court in paragraph (9) observed as under:-

"9. A conjoint reading of Section 113-B of the Evidence Act and Section 304- B IPC 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 IPC 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 regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113- B of the Evidence [pic]Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods "soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession". 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."

15. In Kamesh Panjiyar alias Kamlesh Panjiyar vs. State of Bihar, (2005) 2 SCC 388, this Court considered the expression "soon before death" and held as under:-

"......The expression ''soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. 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 regard has to be led by prosecution. ''Soon before' is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. 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......" The same view was expressed in Thakkan Jha & Ors. vs. State of Bihar, (2004) 13 SCC 348 and Baldev Singh vs. State of Punjab, (2008) 13 SCC 233.

16. The above decisions of this Court laid down the proximity test i.e. there must be material to show that "soon before her death" the woman was subjected to cruelty or harassment "for or in connection with dowry". The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. "Soon before death" is a relative term and no strait-jacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term "soon before death" is left to be determined by the Courts depending upon the facts and circumstances of each case."

29. In view of the law laid down in Baljinder Kaur case (supra) and on the basis of aforesaid discussion, the findings recorded by the trial Court against appellant no.2 Ramshri are liable to be interfered with and set-aside applying the rule of caution as the same are based on general allegations.

30. So far as the findings recorded by the trial Court against accused-appellant no.2 Shrawan are concerned, he had specifically demanded dowry when deceased and this appellant had gone to the house of P.W.1. Parents of the deceased had also given Rs.10,000/- to him, but Shrawan was continuously demanding additional money by pressurizing the deceased. Trial Court finding on the point of illness and treatment of the deceased is also not interferable, as accused-appellant Shrawan could not establish that deceased committed suicide herself because she was suffering from the disease and due to that reason she became perturbed.

31. All the essential ingredients require before making presumption for the offence under section 304-B, 498-A IPC and 4 Dowry Prohibition Act were proved by the prosecution beyond reasonable doubt against the accused-appellant no.1 Shrawan. The trial Court finding regarding guilt of the accused-appellant Shrawan is in accordance with the evidence and law. No interference is required by this Court in the said findings.

32. Learned counsel for the appellants has also argued that appellant Shrawan is in jail in this matter from the very beginning. He was not granted bail during trial nor in the appeal. More than six years have been served out by him in the custody in this matter. Minimum punishment provided under the law for the offence under section 304-B IPC is of 7 years. Appellant is not habitual offender nor there is any criminal antecedent against him. Considering the facts and circumstances of the case and adopting lenient view, the appellant be awarded for a minimum sentence prescribed under the law.

33. Learned A.G.A. on this point has submitted that trial Court after considering all the facts and circumstances of the case has sentenced the accused-appellants for 10 years R.I. Deceased was beaten before hanging.

34. To analyse this fact, I have to take into consideration the legal position on point of imposition of sentence.

35. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of the offence and the manner in which it was executed or committed. It is the obligation of the court to constantly remind itself that the right of the victim, and be it said, on certain occasions the person aggrieved as well as the society at large can be victims, never be marginalised. The measure of punishment should be proportionate to the gravity of the offence. Object of sentencing should be to protect society and to deter the criminal in achieving the avowed object of law. Further, 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. 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 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'. [Vide : (Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].

36. In view of the above propositions of law, the paramount principle that should be the guiding factor is that the punishment should be proportionate to the gravity of the offence and conform to the conscience of the society.

37. In view of the above settled legal position and in the facts and circumstances of the case, this Court is of the view that accused-appellant Shrawan is continuously in jail in this matter from the date of his arrest. The purpose of imposing the punishment to deter the criminal to commit such type of crime would be sub-served if the accused-appellant Shrawan be punished for the offence under section 304-B IPC for Seven years R.I., the minimum sentence prescribed for the offence under section 304-B IPC, which would also conform the conscience of the society.

38. Thus, on the basis of foregoing discussion, the appeal having some merit deserved to be allowed in part and accordingly the same is partly allowed.

39. The conviction and sentence imposed upon the appellant no.2 Ramshri under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act is liable to be set-aside and is hereby set-aside. Appellant no.2 Ramshri is acquitted from the charges under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act. Appellant Ramshri is on bail. She need not to surrender. Her personal and surety bonds are hereby cancelled and sureties are discharged from their liability.

40. Conviction and sentence imposed upon the appellant no.1 Shrawan under Sections 498-A, 304-B IPC and Section 4 of the Dowry Prohibition Act is liable to be modified as discussed above and is accordingly modified. Sentence imposed upon the appellant Shrawan by the trial Court for the offence under section 498-A IPC and 4 Dowry Prohibition Act is affirmed, but the punishment for the offence under section 304-B IPC is reduced to Seven years R.I. All the sentences shall run concurrently as has been ordered by the trial Court in the impugned judgement and order.

41. The record of the trial Court along with copy of the judgment be sent to the Court concerned and Chief Judicial Magistrate concerned for immediate compliance. Compliance report be also submitted to this Court.

Dated : 27th August, 2015.

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