Manoj vs State Of U.P.
2015 Latest Caselaw 1051 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
A.F.R.
 
Court No. - 43
 
Case :- CRIMINAL APPEAL No. - 2666 of 2015
 
Appellant :- Manoj
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Sanjay Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ramesh Sinha,J.

1.With the consent of learned counsel for the appellant and learned AGA for the State, the present appeal is being finally heard and decided by the Court at the admission stage when the matter has come up as fresh today as the appeal is not likely to be heard in near future and it would become infructuous if it comes in due course. The appellant has been convicted for maximum sentence of five years u/s 306 and 316 IPC respectively by the trial court out of which he has already served out four years and eleven months as he is stated to be in jail since 19.8.2010.

2.Heard Sri Sanjay Srivastava, learned counsel for the appellant, Sri Nitin Srivastava, learned AGA for the State.

3.This appeal has been filed against the judgment and order dated 24.6.2015 passed by Additional Sessions Judge (F.T.C), Court No.1, District Bulandshahar in S.T. No.746 of 2010, arising out of case crime no.202 of 2010 convicting and sentencing the appellant u/s 316 IPC to undergo five years R.I. with fine of Rs.10,000/- and in default to undergo two months R.I. and u/s 306 IPC to undergo five year R.I. with fine of Rs.25,000/- and in case of default to undergo three months R.I.

4.The prosecution story in brief as stated by the informant is that the marriage of her daughter Mukesh @ Mohini was solemnized on 28.2.2009 with the accused appellant Manoj by giving sufficient dowry in accordance with Hindu rites and traditions but being not satisfied with the dowry given by the informant, the in-laws of the deceased used to harass her for bringing additional dowry of Rs.50,000/- and also a motorcycle for which she was being mentally and physically harassed by them and also had beaten her. The informant had brought the deceased to his house and had told her that the things would become normal in future. Due to some reasons he did not lodge an FIR about the earlier incident at the concerned Police Station. He further stated that in spite of the matter being referred to the Panchayat of Mohammadpur about the harassment of his daughter, the husband of the deceased Manoj, father-in-law Nanak, Nanad Nidhi and Seema and mother-in-law Machla used to demand of Rs. 50,000/- additional dowry and a motorcycle from her and used to assault her. On 17.8.2010 at about 11 a.m., the deceased who was carrying pregnancy of about six months was done to death by the accused persons by hanging her. The accused being influential persons no one was ready to give evidence against them. The informant also informed some persons of the village namely Mohan Lal S/o Ghamandi, Devi Ram S/o Lahori, Suresh S/o Khem Singh and Panchayat was also held regarding her harassment for demand of dowry and assaulting her in the house.

5.On 17.8.2010, an FIR was lodged about the said incident at Police Station Jahangirpur, district Bulandshahar which is marked as Ext. Ka-1 on the basis of which Case Crime No.202 of 2010 u/s 498-A, 304-B and ¾ Dowry Prohibition Act was registered against the appellant Manoj, father-in-law Nanak, Nanad Nidhi and mother-in-law Smt. Machla which has been marked as Ext. Ka-2. The said FIR was also endorsed in the general diary at the concerned Police Station on 17.8.2010 at 12.10 p.m. as Ext. Ka-3. After registration of the FIR, the constable Raghuraj Singh and Homeguard Ram Kumar reached the place of occurrence and Sub-Inspector of Police Ramesh Chandra in the presence of Nayab Tehsildar Khurja Bulandshahar Sri Devraj Singh conducted the inquest of the deceased in the presence of witnesses Dinesh Kumar, Devi Ram, Ganesh and Suresh Chaudhary which was marked as Ext. Ka-8. The site-plan of the occurrence was also prepared as Ext. Ka-9 and letter of C.M.O Ext.Ka-10, Photo Nash Ext. Ka-11, Police letter no.Ext-Ka-13, Namuna Mohar as Ext.Ka-12, Dupatta of the deceased as Ext. Ka-13. The dead-body of the deceased was sealed and was given in the custody of constable Raghuraj and Homeguard Ram Kumar for being taken to District Hospital, district Gautam Budh Nagar for post mortem. The post mortem of the deceased was conducted by the in-charge Medical Officer Dr. Dinesh Mohan Saxena on 18.8.2010 at 10.45 and the post mortem report was marked as Ext. Ka-4. As per post mortem report of the deceased, the cause of death was Asphyxia as a result of ante-mortem hanging and further a dead fetus of about 5-6 months was found in her womb. There was no ante-mortem injuries found on the dead-body of the deceased except ligature mark.

6.The investigation was carried out and charge sheet was submitted against the accused husband Manoj, father-in-law Nanak and mother-in-law Smt. Machla for offence u/s 498-A, 304-B, 316 IPC and ¾ Dowry Prohibition Act.

7.On 22.1.2011, the trial court framed charges against the accused-appellant and two other accused Nanak and Smt. Machla u/s 498-A, 304-B and 316 IPC and Section 4 Dowry Prohibition Act and alternative charge was also prepared on 13.5.2011 u/s 302/34 IPC against the accused persons.

8.The accused pleaded not guilty and prayed for trial.

9.The trial court also framed alternative charge u/s 306 IPC against the appellant and two other co-accused persons in the light of the judgment of the Apex Court in the case of Rajveer @ Raju Vs. State of Hariyana reported in AIR 2011 (S.C) 568 as it was found necessary under the facts and circumstances of the case and had further placed reliance on the judgment of the Apex Court reported in S.C.C. 217 K. Prema S. Rao Vs. Yaadlo Sri Niwasa Rao, 1994 and other decisions of the Apex Court.

10.The prosecution in support of it's case examined P.W.1 Dal Chandra, P.W.2 Surendra, P.W.3 Mohan Lal, P.W.4 Constable Jamshed Ali, P.W.5 Dr. Dinesh Mohan Saxena, P.W.6 Investigating Officer Dr. Suresh Chandra Tomar, P.W.7 Nayab Tehsildar Devraj Singh and P.W.8 Sub-Inspector Ramesh Chandra.

11.The statement of accused Nanak and Smt. Machla was recorded u/s 313 Cr.P.C. by the trial court and they have stated that they were living separately from the deceased and their son Manoj and have no concern with the present incident and prayed that they may be acquitted.

12.The accused appellant Manoj in his statement recorded u/s 313 Cr.P.C. has stated before the trial court that he has been falsely implicated in the present case and he too may be acquitted.

13.In defence the accused have led oral evidence of D.W.1 Dheeraj Singh, D.W.2 Brajveer Singh and beside this have not filed any documentary or oral evidence.

14.The trial court while discussing the evidence of P.W.1 who is the father of the deceased and from the prosecution evidence gathered that the marriage of the deceased with the appellant Manoj was solemnized on 28.2.2009 according to Hindu rites and traditions which has also been admitted by the accused appellant Manoj but rest of the allegations has been denied by him.

15.P.W.1 Dal Chand who is the informant of the case has repeated the prosecution story regarding harassment of the deceased his daughter by the appellant and his family members for additional dowry of Rs.50,000/- and a motorcycle and further has stated that his daughter was being cruelly treated by the accused persons mentally and physically for the same. She was also assaulted by the accused persons and attempt to set her ablaze was also made by them but due to some reason or the other he did not lodge an FIR against the accused persons about the earlier incident and on 17.8.2010 when they came to know about the death of her daughter and reached the place of occurrence, they found her in a dead condition and further the deceased was carrying pregnancy of about six months and the child in her womb also died for which the informant lodged an FIR against the accused persons including the appellant for the offence u/s 498-A, 304-B IPC and ¾ Dowry Prohibition Act. The informant further stated that Panchayat was also held in the village for the harassment being made to her daughter by the accused persons for demand of dowry and a motorcycle but the accused did not mend their ways and continued to harass his daughter. One and half months prior to the incident, the deceased was brought back from her parent's house.

16.P.W.2 Surendra who is the real brother of the deceased had also reiterated the prosecution story as has been stated by P.W.1 and further stated that Rs.50,000/- which were being demanded by the accused persons as additional dowry, her father agreed that Rs.40,000/- would be paid to them and in that event his father also tried to sell of his agricultural field but before the same could be sold of, they received information on 17.8.2010 that the deceased has been hanged to death.

17.P.W.3 Mohan Lal who was the member of the village panchayat has admitted the fact of marriage between the deceased and accused Manoj and he has also supported the version given by P.W.1 and P.W.2 regarding harassment being made on the deceased by the accused persons for want of Rs.50,000/- and a motorcycle. The father of the deceased had agreed to sell of some of the land to meet out the demand on which the accused persons agreed to settle the issue by taking Rs.40,000/- and a motorcycle but as no person could be available for buying the land as the father of the deceased belongs to Harijan Caste, hence the said land could not be sold out and the deceased died.

18.P.W.4 Constable Jamshed Ali has proved the FIR as Ext. Ka-2 and stated that he has made endorsement about registration of it in the general diary and proved Ext. Ka-3 which is stated to be in his signature and also had informed about the incident to Senior Superintendent of Police.

19.P.W.5 Dr. Dinesh Mohan Saxena, who was the medical officer had conducted the post-mortem on the dead-body of the deceased on 18.8.2010 at 10.45 and proved it as Ext. Ka-4 and has stated that the cause of death is asphyxia as a result of ante-mortem hanging and except ligature mark, there was no other ante-mortem injuries found on the person of the deceased. At the time of death, she was carrying pregnancy of about 5-6 months.

20.P.W.6 Suresh Chandra Tomar, Deputy Superintendent of Police was the Investigating Officer of the case and he has stated that he reached the place of occurrence and prepared the inquest report, made spot inspection, prepared site-plan, police documents and submitted charge sheet against the accused persons and proved the charge sheet as Ext. Ka-7 and recorded the statement of witnesses.

21.P.W.7 Nayab Tehsildar, Khurja, district Bulandshahar Devraj Singh has deposed before the trial court that under the orders of the S.D.M he reached Mohammadpur and in the presence of Investigating Officer, he also conducted the inquest of the deceased and proved the inquest report as Ext. Ka-8, letter sent to C.M.O as Ext.Ka-9, Photo nash as Ext. Ka-10 and other police papers as Ext.Ka-11 and Ka-13 and had signed the said papers which he proved.

22.P.W.8 Sub-Inspector of Police Ramesh Chandra has also deposed before the trial court that he was also present along with constable, homeguard and Nayab Tehsildar, Khurja at the time when the panchayatnama of the deceased was being conducted and also signed the inquest report as Ext.Ka-8 and proved the same. He stated that the dead-body of the deceased was kept in a Angan on a cot in her in-laws house.

23.Learned counsel for the appellant has vehemently argued that the trial court has disbelieved the prosecution case regarding demand of dowry and the deceased being done to death for want of the same by the accused persons. Further it found that the prosecution has set-out the instant case to be a case of dowry death which is not proved by the evidence on record. Moreover the, alternative charge framed u/s 302 IPC by the trial court against the accused was also not found proved by the prosecution. The trial court further framed an alternative charge u/s 306 IPC and has also on the same set of evidence acquitted the father-in-law of the deceased Nanak, mother-in-law of the deceased Smt. Machla i.e. the parents of the appellant and has convicted the appellant on u/s 306 IPC and further u/s 316 IPC which is against the evidence on record, hence the same may be set-aside by this Court.

24.The learned counsel for the appellant argued that there is no evidence against the appellant to show that the appellant made demand of dowry from the parents of the deceased which prompted her to commit suicide and the trial court has misread the evidence and convicted the appellant. He urged that the maximum sentence awarded to the appellant Manoj who is the husband of the deceased u/s 316 IPC is five years and u/s 306 IPC for five years respectively out of which he has already served out four years and eleven months in jail as he is in jail since 19.8.2010 and fine of Rs.10,000/- has been imposed on him u/s 316 IPC and Rs.25,000/- has been imposed u/s 306 IPC. He prays that the sentence of the appellant may be reduced to already undergone and the imposition of fine by the trial court on him be set-aside.

25.Learned AGA in reply to the argument of learned counsel for the appellant submitted that the marriage between the appellant and the deceased was solemnized on 28.2.2009 and deceased died on 17.8.2010 within one and half year of marriage. The deceased died in her matrimonial home. At the time of death, she was carrying pregnancy. One and half years prior to the present incident, the deceased was harassed for dowry and an attempt was made to set her ablaze by pouring kerosene oil by the appellant and his family members. A Panchayat was held and matter was settled but thereafter she was again harassed for demand of dowry for which she committed suicide by burning herself.

26.Having considered the submissions advanced by learned counsel for the parties and perused the judgment of the trial court. It is an admitted fact that the marriage of the deceased was solemnized with the appellant on 28.2.2009 and she died on 17.8.2010 within eighteen months of her marriage in her matrimonial home with a child in her womb. The trial court after examining the evidence on record though framed charges against the accused u/s 498-A, 304-B and ¾ Dowry Prohibition Act and alternative charge u/s 302 IPC but it did not find any evidence against the appellant regarding the death of the deceased being caused for want of dowry or she was done to death by the appellant or his family members. Hence the charges framed against the appellant was not found to be proved and the trial court acquitted the appellant as well as his parents as the deceased was living separately with her husband from them giving benefit of doubt. But the charge u/s 316 IPC and alternative charge framed u/s 306 IPC against the appellant the trial court found from the prosecution evidence that admittedly, the appellant and the deceased were living together and the deceased was pregnant carrying pregnancy of about 5-6 months at the time of her death. The appellant was also present along with his wife at the time of incident and the appellant failed to give the reason and explanation before the trial court as to why the deceased committed suicide who was pregnant and only stated that he has been falsely implicated in the present case. The view taken by the trial court against the appellant that the burden lies on him to prove as to how his wife died in view of Section 106 of the Evidence Act weighed in it mind does not appear to be quite convincing and reasonable. In the facts and circumstances of the present case, it would be more appropriate that a presumption u/s 113A of the Evidence Act be drawn against the appellant as his wife committed suicide with a child in her womb within a period of seven years from the date of her marriage and that her husband subjected her to cruelty, the court presumes having regard to all other circumstances of the case that said suicide has been abetted by her husband i.e. the appellant. Thus, the conviction and sentence of the appellant by the trial court u/s 306 and 316 IPC is correct.

27.Learned counsel for the appellant also failed to demonstrate before this Court by any cogent evidence on record to show that under what circumstances, the deceased committed suicide with a child in her wound within eighteen months of the marriage. Thus the finding recorded by the trial court by the impugned judgment and order in convicting the appellant and sentencing him u/s 316 and 306 IPC does not require any interference by this Court.

28.The appeal of the appellant lacks merit and is dismissed summarily.

29.Registrar General of this Court is directed to send the certified copy of this judgment and order to the District Judge, Bulandshahar for necessary information and for keeping it with the record of trial court. The District Judge, Bulandshahar is also directed to transmit the lower court record of the present Sessions Trial to this Court which shall be consigned to record.

08.07.2015

Gaurav.