Shanker Lal vs State Of U.P.
2015 Latest Caselaw 466 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							           Reserved									  A.F.R.	
 
Case :- CRIMINAL APPEAL No. - 531 of 2008	
 

 
Appellant :- Shanker Lal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Khaleeq Ahmad Khan,Dinesh Kumar,Kaushal Kishor Tewari
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Surendra Vikram Singh Rathore,J.

Hon'ble Anant Kumar,J.

(Delivered by Hon'ble Anant Kumar,J)

(1) This criminal appeal under Section 374(2) Cr.P.C. has been filed by the appellant Shanker Lal against the judgment and order dated 21.2.2008 passed by Additional Sessions Judge, Court No. 8, Sitapur in Sessions Trial No. 253 of 2006 convicting the accused in alternative charge under Section 302 I.P.C. and has been sentenced to undergo life imprisonment and a fine of Rs. 5,000/-. Other co-accused persons Smt. Munni Devi and Sitaram were acquitted with all the charges. The appellant was also acquitted with the charges under Sections 498A, 304-B I.P.C. and Section ¾ Dowry Prohibition Act.

(2) Brief facts relevant for the disposal of this appeal are that complainant Gaya Prasad S/o Sirdar, resident of Village - Sarkhanpur, Police Station - Kheri, District - Kheri Lakhimpur submitted a written report before the S.O., Police Station - Laharpur Kheri, District Sitapur. Complaint was duly scribed by Sitaram S/o Cheduram resident of Village - Sarkhapur, Police Station Kheri, District - Lakhimpur Kheri on 2.10.2005. It is stated in the complaint that marriage of the daughter of the complainant Rambeti @ Bhadhakka Devi had taken place about 5 years back with Shankerlal S/o Sitaram resident of Muhalla- Behti, Police Station -Laharpur, District - Sitapur. Since very beginning the terms of the daughter of the complainant were not cordial with her mother-in-law. Today in the morning he came to know that his daughter has died in her in-laws place due to stomach pain, then complainant alongwith his family members came to Behti and it was found that inside the house of the Sitaram the dead body of the deceased Rambeti was lying. On her neck and hand there were injuries and swelling and nails in the hand had become blueish. It is further stated that in the house nobody was present and all have fled away. It is also alleged that the mother-in-law of the deceased Munni Devi, son-in-law Shanker Lal and father-in-law Sitaram have killed her in the previous night. A request was made to lodge the report and legal action be taken. On the basis of this written complaint chick F.I.R. was prepared in Police Station - Laharpur being Crime No. 505 of 2005, under Sections 498A, 304-B I.P.C. and Section ¾ Dowry Prohibition Act and an entry to this effect was made on 02.10.2015 at 15.40 hours as G.D. No . 34.

(3) It is to be mentioned here that in G.D. it is mentioned that the complainant had disclosed at police station that due to the mental disturbance he could not disclose in the complaint that father-in-law, mother-in-law and husband were making demand of dowry constantly, but he forgot to mention this fact in the F.I.R. Entry to this effect was made in G.D. report. The investigation was handed over to the Investigating Officer and an information to Tehsildar was sent, who had conducted inquest. The Investigating Officer visited the place of occurrence and prepared site plane and recorded the statement of witnesses. In the meantime, inquest of the deceased was prepared and her body was sent for postmortem. Postmortem was conducted on 03.10.2005 at 2.30pm and during postmortem following injuries were found:

1. Contusion 5 cm X 4 cm on the front of left upper arm 5 cm blow left shoulder tip.

2. Abraded contusion 4 cm X 3.5 cm on the front of Rt. upper arm 10 cm below Rt shoulder tip.

3. Contusion 12.5 cm X 3.5 cm on the front of neck six centimeter below chin on opening extra variation of blood present in muscles and tissue under neath injury rt. corner of hyoid bone found fractured.

(4) After investigation, the Investigating Officer filed chargesheet against accused persons, namely, Smt. Munni Devi @ Malti Devi, Sitaram and present appellant Shanker Lal, under Sections 498A, 304-B I.P.C. and Section ¾ Dowry Prohibition Act. Since the case was triable by the Court of Sessions, case was committed to the Court of Sessions by C.J.M. Sitapur vide his order dated 23.3.2006. The accused persons were summoned in the Court of Sessions and on 11.7.2006 charges were framed against them under Section 498A, 304-B I.P.C. and Section ¾ Dowry Prohibition Act. On 6.9.2007 an alternative charge under Section 302 readwith Section 34 I.P.C. was further framed against all the accused persons. Trial proceeded. On behalf of prosecution as many as 13 documents were marked as exhibit and 7 witnesses were examined, wherein PW.1 Gaya Prasad, complainant, PW.2- Ram Singh, PW.3- Ram Chandra, witness of fact, PW.4- C.O. Shri Prakash Diwedi, Investigating Officer, PW. 5- Dr. Awadhesh Chandra, Senior Physician, District Hospital, Sitapur, who had conducted postmortem of the body of the deceased, PW. 6 Constable Shyam Kumar, who had written chick F.I.R. In the G.D. entry. PW. 7 Prem Chand, Tehsildar, who conducted inquest.

(5) The witnesses PW.2 and PW. 3 were recalled with the permission of the court and they were re-examined after framing of the alternative charge under Section 302 I.P.C. After completion of the prosecution witness statement of the accused persons were recorded under Section 313 Cr.P.C. wherein they were referred the evidence recorded against them during trial, in which they have denied and stated that they have been falsely implicated in this Case. Munni Devi further stated that on the date of occurrence she alongwith her husband had gone to police station and accused Shankerlal gone to his in-laws to give information of this Case. It was further stated that Rambeti (deceased) was earlier married to one Brijkishore and after divorce from him this was second marriage of the deceased with Shaker Lal. In the night how the deceased died could not be ascertained. In the morning Shanker Lal had gone to give information to his in-laws and his mother went to lodge report but her report was not lodged. Accused Shanker Lal has not disclosed a single fact in her statement under Section 313 Cr.P.C. regarding the circumstances of the death of the deceased. He has also not stated as to how the deceased died in his house. Who had committed this incident was not known to him. In the morning he had gone to give information to his in-laws and his mother had gone to lodge written information but his report was not lodged. After recording the statement under Section 313 Cr.P.C. the accused persons were given a chance to produce evidence in their defence. In the defence two witnesses DW.1 Parashuram and DW.2 Guddu have been produced. DW.1 Parashuram has stated that on the date of occurrence appellant Shanker Lal was working at Hotel in Kesriganj and in the morning when he came to know about the incident, he went to inform the appellant and then appellant went to his in-laws place to give information. DW.2 Guddu is the hotel owner, who has stated that on the date of occurrence the accused was working entire night at his hotel, so plea of alibi was taken by the appellant Shaker Lal.

(6) After completion of the evidence from both the sides, the trial court heard learned counsel for the accused persons and learned ADGC on behalf of State.

(7) After assessing the evidence on record, the learned trial court came to the conclusion that in the F.I.R. there is no allegation of demand of any dowry and during investigation also this fact was not disclosed to the Investigating Officer and later on before the court this fact was stated that the accused persons were demanding Rs. 50,000/- as dowry and due to non-fulfillment of the same, deceased was tortured., so it is an improvement made by the prosecution witnesses before the court, which is not admissible, so trial court came to the conclusion that offence under Section 498A and 304B I.P.C. and under Section ¾ Dowry Prohibition Act is not made out against accused persons. Thereafter, learned trial court proceeded further to consider the alternative charge framed under section 302/34 I.P.C. against accused persons and the trial court came to the conclusion that since death of the deceased had occurred in the house of the complainant then it was his primary duty to explain the circumstances under which deceased had died. For holding this learned trial court had taken provision of Section 106 of the Indian Evidence Act into account. Learned trial court came to the conclusion that the present appellant being husband has failed to explain the circumstances which were within his special knowledge, so he should be held guilty of charge under Section 302 I.P.C. The learned trial court has further held that on behalf of defence two witnesses DW.1 and DW.2 have been produced to prove the alibi, but the witnesses are not reliable. None of hotel in the village runs for entire night and even in his statement under Section 313 Cr.P.C. accused Shanker Lal has not stated that he was not present at his house on the date of occurrence. Learned trial court looking into entire facts and circumstances gave benefit of doubt to the accused Munni Devi and Sitaram and came to the conclusion that they were not involved in murder of deceased, whereas Shanker Lal was found guilty of the charge under Section 302 I.P.C., as stated above, hence this appeal has been filed by the accused Shanker Lal.

(8) We have heard Sri Khaleeq Ahmad Khan, learned counsel for the appellant and Sri Sharad Dixit, learned A.G.A. on behalf of State and perused the record.

(9) At the very outset, learned counsel for the appellant has stated that as per version of the F.I.R., the marriage of the appellant had taken place with the deceased within 7 years of the occurrence, so the learned trial court had committed an error in framing the alternative charge. It further argued that on the similar evidence co-accused Munni Devi and Sitaram were acquitted. There was no distinguishing feature in the case of present appellant, so, he should also be acquitted from the charges level against him. It is also argued that plea of alibi taken by the appellant has not been taken in right prospects and the witnesses DW.1 and DW.2 produced on behalf of defence have wrongly been disbelieved by the trial court and in any case of matter the appellant should have been acquitted by the trial court.

(10) Replying the arguments advanced on behalf of appellant, learned A.G.A. on behalf of State has argued that since in the F.I.R. there was no whisper of demand of dowry, however, later on, in the evidence it had came that there was a demand of dowry and Rs. 50,000/- was constantly demanded, so the trial court had not committed any error in framing alternative charge against the accused persons under Section 302/34 IPC. It is further stated that since the deceased was the wife of the present appellant, the burden was heavy upon him to prove the circumstances under which the death of the deceased had taken place and the facts within the special knowledge of the appellant should have been disclosed before the court under Section 106 of Indian Evidence Act and since plea of alibi placed before the court was disbelieved it served as an additional charge in the circumstances which will go against appellant, so learned A.G.A. has argued that the learned trial court has rightly convicted the accused under Section 302 I.P.C. At the very outset, it is to be seen whether the trial court had committed no error in framing any alternative charge under Section 216 of the Criminal Procedure Code, which is provided as under :

216. Court may alter charge. - (1) Any Court may alter or add to any charge at any time before judgment is pronounced.

(2) Every such alteration or addition shall be read and explained to the accused.

(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.

(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.

(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.

(11) So in our view, trial court has got ample power to add or alter charge at any time before judgment is pronounced. In our view, the trial court has not committed any error in framing the alternative charge and in this regard the submission of the learned counsel for the appellant has got no force.

(12) Regarding the plea of alibi learned counsel on behalf of appellant has cited a case law reported in 2005 (12) SCC, page 267 Gayadin Vs State of M.P. As per the facts of said case, the marriage between appellant and the deceased Kasturi Bai had taken place about 4/5 years prior to the incident. It was alleged that the accused used to torture the deceased and there were frequent quarrels between appellant and deceased. On 18.1.1985 at about 8.30 pm witnesses PW. 12 Keshav Singh and PW. 10 Lal Singh had gone to the house of the appellant to ascertain whether he was available for doing some labour work on the next day. These two witnesses saw the deceased Kasturi Bai lying on a carpet inside the house and she was weeping. The appellant Gayadin told the witnesses that he was not willing to come up for work as he was mentally upset. The witnesses were told by the Kasturi Bai that she was beaten by the appellant. On the next date PW. 13 came to know that kasturi bai had died and he went to nearby police Station to lodged an F.I.R. Head constable Nawab Singh (PW. 17) went to visit the place of incident and he saw that a funeral pyre was being set up for cremating the dead body of the deceased Kasturi Bai. On seeing the police, the persons who were assembled there left the place and PW. 17 took the dead body form the pyre. The dead body was sent for postmortem examination. During postmortem doctor found there was series of serious injury on the body of the deceased Kasturi Bai. There were marks of violence on the neck and a contusion on the right side of the neck. The doctor also noticed ligature mark and the presence of clotting of blood. There was also a stab wound of 32 cm X 12 cm of spandle (sic) nature on the abdomen and it was opined as an injured accused after the death.

(13) On the side of the prosecution, 18 witnesses were examined and the High Court found the appellant guilty on the basis of the circumstantial evidence. The learned Sessions Judge was of view that there was no direct evidence to connect the appellant to the incident and the plea setup by the appellant was accepted. The appellant had stated when questioned under Section 313 Cr.P.C. that he was not present at his house on the date of the incident as his maternal uncle passed away and he went to the neighbouring village and from there he came to know as his wife had died and on reaching the house he was informed that his wife had died of cold and he made preparation to cremate the dead body and then the police came.

(14) On these set of facts the Hon'ble Supreme Court took the view, which is as under :

"5. At the outset it is to be stated that there is no direct evidence to prove the prosecution case. The High Court mainly relied on the circumstances that there existed a bad relationship between the appellant and his wife and he used to beat her and that the appellant was last seen alongwith the deceased and that he had set up a false plea of alibi. The counsel for the appellant and the counsel for the State drew our attention to the oral evidence adduced in this case. PW. 12 and PW. 10 were examined to prove that the appellant used to beat the deceased Kasturi Bail. These two witnesses are neighbours and they stated that they came to the house of the appellant and saw the deceased Kasturi Bai lying on the carpet and she had been weeping and stating that she was beaten by her husband. Apart from this there is no direct evidence as to what had transpired on the day prior to the death of the deceased. Strangely enough, these two witnesses were not questioned by the investigating officer within a reasonable time. PW. 10 was questioned about 20 to 22 days after the incident whereas PW. 12 was questioned by the police after a period of 8 days of the incident. There is no case that these witnesses were not available in the locality during the time of the incident and the police could have ascertained the facts from these neighbours. There is every possibility that these witnesses could have been planted witnesses just to help the prosecution. This fact should have been taken note of by the High Court, especially when the High Court was considering a case of an appeal against acquittal.

6. Apart from the evidence of PW.10 and PW.12, there is no other evidence to show the bad relationship between the appellant and the deceased. Of course, the evidence adduced by the appellant to prove his alibi was not very convincing and merely because he had set up a false alibi, it cannot be held that he was positively responsible for the murder. Apart from the accused, there were 5 other inmates in the house. The prosecution evidence is not able to throw any light on the complicity or otherwise of any one of the inmates of the house in this case. There is no evidence to point out that the appellant alone was responsible for causing death of the deceased Kasturi Bai.

7. Under these circumstances, the High Court was not justified in reversing the acquittal of the appellant for the charge of murder punishable under Section 302 IPC. However, we notice that even as per the statement of the appellant and the prosecution evidence is clinchingly proved that the appellant had actually participated in cremation of the dead body of the deceased Kasturi Bai, the appellant can certainly be attributed with the knowledge that the deceased died of multiple injuries as there were series of serious injuries on her body. Even if the appellant had not participated in the commission of murder, he was certainly aware that the criminal offence had been committed and instead of informing the police about the inident, he hastily made preparation for cremating the dead body of the deceased. The act committed by the appellant thus proves that the appellant committed the offence punishable under Section 201 of the Indian Penal Code. Already a charge against the appellant was there and he faced trial and defended his case and hence no prejudice is caused to him. He is found guilty of offence punishable under Section 201 IPC."

(15) Relying on this judgment, learned counsel for the appellant has stated that in this case also since appellant has been acquitted from the charges under Section 498A, 304B I.P.C. And ¾ Dowry Prohibition Act and there is no direct evidence to connect the accused to the offence, so the trial court has committed error in convicting the accused under Section 302 I.P.C. Against this, learned A.G.A. has stated that in this case Hon'ble Supreme Court had held that merely because the evidence adduced by the appellant to prove his alibi was not very convincing and merely because he had set up a false alibi, it could not be held that he was positively responsible for the murder. But the wrong plea of alibi taken by the appellant will be another link of chain in this case of circumstantial evidence, in this regard the learned A.G.A.has cited a case reported in (2010) 8 SCC page 430 Shaikh Sattar Vs. State of Maharastra, the Hon'ble Apex Court has held as under:

"35. Undoubtedly, the burden of establishing the plea of alibi lay upon the appellant. The appellant herein has miserably failed to bring on record any facts or circumstances which would make the plea of his absence even probable, let alone, being proved beyond reasonable doubt. The plea of alibi had to be proved with absolute certainty so as to completely exclude the possibility of the presence of the appellant in the rented premises at the relevant time. When a plea of alibi is raised by an accused it is for the accused to establish the said plea by positive evidence which has not been led in the present case. We may also notice here at this stage the proposition of law laid down in the case of Gurpreet Singh Vs. State of Haryana, (2002) 8 SCC 18 as follows:

"This plea of alibi stands disbelieved by both the courts and since the plea of alibi is a question of fact and since both the courts concurrently found that fact against the appellant, the accused, this Court in our view, cannot on an appeal by special leave go behind the abovenoted concurrent finding of fact".

36. But it is also correct that, even though, the plea of alibi of the appellant is not established, it was for the prosecution to prove the case against the appellant. To this extent, the submission of the learned counsel for the appellant was correct. The failure of the plea of alibi would not necessarily lead to the success of the prosecution case which has to be independently proved by the prosecution beyond reasonable doubt. Being aware of the aforesaid principle of law, trial court as also the High Court examined the circumstantial evidence to exclude the possibility of the innocence of the appellant."

(16) It is further stated that in another case law reported in (2010) 3 SCC (Cri) page, 1469 Santosh Kumar Singh Vs. State through C.B.I., the Hon'ble Apex Court has held as under :

It has been held time and again that a false plea taken by an accused in a case of circumstantial evidence is another link in the chain. In Trimukh Maroti Kirkan vs. State of Maharashtra 2006 (10) SCC 681 it has been held :

"The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the Crl. Appeal No.87 of guilt of the accused and inconsistent with their innocence.

and again

"14. If an offence takes place inside the privacy of a house and in such circumstances, where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the of knowledge of any person, the burden of proving that fact is upon him."

(17) In another case law cited on behalf of prosecution, which is reported in 1994 Crl. L. J., 233 (SC) Jagjit Singh Vs. State of Himachal Pradesh. It is so happened in this case that dead body of the deceased was found in the room of the house of the appellant and the same was taken out of breaking upon the lock. Later on, when the appellant was arrested he had shown his ignorance about circumstances, in which murder of the deceased had taken place. In these set of circumstances, the Hon'ble Apex Court has held as under :

"The case ultimately rests on the circumstantial evidence. Both the courts below have held that the plea set up by the appellant is a false one. In a case of this nature where the dead body with fatal injuries was found in the room of the appellant, he has to give an explanation which should at least look probable. Having gone through various circumstances established by the independent evidence, we agree with the High Court that the explanation given by the appellant is a false one. However, we shall proceed to consider some of the submissions made by the learned counsel.

It is contended that the prosecution having put forward a case based on the direct evidence make it appear a case based on circumstantial evidence. We see no force in this submission. Obviously the presence of Kulwant Singh cannot be secured at all but that does not prevent the prosecution from relying on the evidence through circumstantial in nature and if such evidence is sufficient to bring home the guilt, the conviction should follow.

(18) Another case law cited on behalf of learned A.G.A. is (2003) 11 SCC page 299 Chandrashekharappa Vs. State of Karnataka . As per the facts of this case the appellant (husband) and his wife were living at the father-in-law's place alongwith his father-in-law and other family members. On the date of occurrence the father-in-law, i.e. complainant was sitting out side the house. A little later, he found the accused coming out from the house and going away. Complainant Ramalingappa became suspicious. He entered in the house and found his daughter lying inside the kitchen room with her face upward. He was perturbed. He raised a hue and cry. The village people collected. They called Annapurnamma (deceased) wife of the appellant by name but she did not respond. A private medical practitioner was called to see Annapurnamma. He came and declared her dead. Complainant then proceeded to Police Station and lodged F.I.R. of the incident. On postmortem various injuries were found on different part of body of the deceased.

(19) During the trial the plea taken by the accused in his statement recorded under Section 313 Cr.P.C. is that his relationship with his wife Annapurnamma was happy. He had left for Bangalore in search of employment after informing his wife as he was unemployed. He went to Bangalore. However, what he said there is significant. To quote the words of the accused:

"I returned after one week and went to Jeenahalli. Within two days I was arrested by Nyamathi Police. They told me that my wife complained for divorce and obtained my signatures. After 4-5 days I went to Bangalore and stayed in the house of my mother's cousin Ramappa. One day my father came to Bangalore and brought me to Jeenahalli. I went to police station. After two days I want sent to jail." (emphasis supplied)

In support of the plea of alibi so taken by the accused examined Ramappa, DW.1 in defence. Ramappa was a retired military personnel running a security service in Bangalore. He was related with the accused as his uncle's daughter was mother of the accused. That apart, the accused was friend of Ramappa's son. According to Ramappa, the accused came to Bangalore on 4.4.1996 in search of job and stayed at Bangalore "nearly for 20 days". Thereafter, the father of the accused came to Bangalore and informed that the police was searching for him. The accused accompanied his father to his native place and thereafter the accused did not return to Bangalore. Without entering into deeper scrutiny of the evidence of this witness, it would suffice to observe that the statement of this witness is not consistent with the plea taken by the accused in his statement. Moreover, the statement of Ramappa, DW.1 was recorded in the court on 31.3.1997. The witness had not made any note of the date of arrival of the accused. It is difficult to appreciate how this witness would orally remember the exact date of arrival of the accused to his place and the number of days for which the accused stayed with him. There is a difference of 18 days between the date of the arrival of the accused at Bangalore as stated by the witness and the date of the incident while the statement of the witness is that the accused had stayed with him for nearly 20 days, that is, the witness is not sure as to the number of days for which the accused might have stayed with him. The trial court and the High Court have rightly discarded the plea of alibi taken by the accused-appellant as untrustworthy.

In such circumstances, it was for the accused to explain how the deceased met with her death and his own conduct which the accused has failed to do. The trial court and the High Court have rightly held that the chain of circumstantial evidence forged from the evidence adduced by the prosecution is enough for fastening the guilt on the accused beyond any reasonable doubt. He has been rightly held guilty for intentionally causing the death of his wife, Annapurnamma."

(20) In these set of circumstances and on the basis of these case laws, learned A.G.A. Has argued that the learned Trial Court has rightly disbelieved the plea of alibi of the accused appellant that on the fateful night the applicant was not at home and was at hotel, so it is another chain of circumstances against the appellant. Dead body of the wife of the appellant was found inside his house and it was for him to explain the circumstances under which the deceased had died to which the appellant has miserably failed. So, this is a case of circumstantial evidence. It is another circumstance which goes against the appellant.

(21) In the light of submissions raised by learned A.G.A we have examined the judgment rendered by the trial court. The learned trial court has taken into account in detailed statement of witnesses DW.1 and DW.2, who were examined on behalf of accused to prove his alibi. The learned trial court has rightly disbelieved these witnesses and has given very convincing cogent reason for the same. The trial court has rightly taken into account that normally in the village side tea stall or hotel does not run for entire night, because in the night there may be no customer. Only the Dhabas, which are by the side of highways, are generally opened in the night. But the hotel of Sanker lal is situated at Kesriganj Triangular, which is about 1 ½ km away from the residence of the appellant. There is no such defence evidence to prove that the hotel of Ram Singh PW.2 opened for entire night. This apart the distance between hotel and the residence of the appellant is so short that the appellant can conveniently come to the residence in the night to kill his wife and conveniently go to the hotel again. So to our view plea of alibi has rightly been disbelieved by the trial court. Therefore, after giving a thoughtful consideration to the finding of the trial court, we are of the view that regarding the plea of alibi finding recorded by the trial court is very convincing and cogent and there is no justification to interfere in the said finding. So we confirm the finding of the trial court as long as the plea of alibi taken by the appellant is concerned.

(22) This apart, learned counsel for the appellant has vehemently argued that in this case all the witnesses of fact have stated that there was a demand of dowry in this case and primary charges against the appellant and another co-accused persons were framed under Section 498A, 304B I.P.C. And ¾ Dowry Prohibition Act. The learned trial court has wrongly convicted the accused appellant under the alternative charge framed under Section 302 I.P.C.for which there was no convincing evidence on record. We have carefully examined such of the matter. In this case learned trial court has held that in the F.I.R.there was no mention about the demand of dowry and during investigation also the complainant and other witnesses had not given evidence to this effect. All of a sudden, during evidence before the trial court complainant and the witnesses had disclosed that there was a demand of Rs. 50,000/- as dowry, so the trial court came to the conclusion that there was a mark improvement made by the complainant in this regard, so this should not be taken into account and in these circumstance, the learned trial court came to the conclusion that no case under Section 498A, 304B I.P.C. and Section ¾ Dowry Prohibition Act is made out against the accused. Hence looking into the material on record, the learned trial court came to the conclusion that the charge under Section 302 I.P.C. is clearly proved against the present accused appellant but regarding the other accused persons benefit of doubt was given and trial court gave a categorical finding that there is no such evidence on record to prove that the other co-accused persons Munni Devi and Sitaram were also involve in killing the deceased. They were given a benefit of doubt and they were acquitted. As we have been informed, no appeal against their acquittal have been filed on behalf of State. The view taken by the Trial Court that there is no mention about the demand of dowry and F.I.R. is concerned, in this regard, we have gone through the record, it is true that in the complaint there is no mention of demand of any dowry. Only this much is mentioned that the daughter of the complainant was not in good terms with her mother-in-law and he was informed at his house that due to stomach pain his daughter had died and when he reached at the house of her daughter in-laws place she was found dead and her body lying on the floor and she was having injuries on the part of her body. Then alongwith the complaint, complainant had gone to lodged the report to the police station and G.D. entry was made at police station in G.D. Report no. 34 at 15.40 hours on 2.10.2005. This G.D. is marked as Ext. Ka (6). In this G.D. at the bottom it is mentioned that at police station the complainant had disclosed that due to nervousness he could not mention in his complaint that the father-in-law, mother-in-law and husband of the deceased were demanding dowry since long. This apart PW. 1 has stated in his statement that after 6 to 7 months of marriage there was a demand of Rs. 50,000/- cash by father-in-law, mother-in-law and husband of the deceased and whenever the deceased came to her father's place she used to disclose this fact. But regarding this part of G.D. entry, as stated above, no cross-examination was made on behalf of the defence likewise PW.2 has also stated in his statement that the deceased was nice of this witnesses and whenever she was in her father's place, she visited his house as well. She had disclosed that there was a demand of Rs. 60,000/- in cash and due to non-fulfillment of same, she was threatened to kill. Likewise PW. 3 Ramchand has also stated that whenever deceased come to his wife, she disclosed that there was a demand of Rs. 50,000/- as dowry. So this apart Investigating Officer PW.4 C.O. Sri Prakash Diwedi has stated in his statement that witnesses had disclosed him during the Investigation that after three years of marriage Rs. 60,000/- was demanded by all the three accused persons as dowry. So, it is evident that due to disturbed mind and nervousness the complainant could not mention in his complaint regarding the demand of dowry, but immediately after reaching the police Station he has disclosed at the police Station that due to nervousness he forgot to mention the demand of dowry, which was demanded by the in-laws and husband of the deceased and even the Investigating Officer has stated in his statement that during trial witnesses had disclosed that there was a demand of dowry, so, since very beginning it was a case of the prosecution that there was a demand of dowry and due to non-fulfillment, the deceased was tortured and finally she was done to death and in our view merely because the complainant failed to mention this fact in the complaint and later on at police station he disclosed this fact, it cannot be held that it was not the case of the prosecution regarding demand of dowry. So, in our view, the trial court has failed to appreciate these material evidences on record and has not discussed these things in the judgment. In this regard on behalf of defence a case law reported in 2014 (2) CCSC, page 638 (SC) Donthula Ravindranath @ Ravinder Rao Vs. State of Andhra Pradesh has been cited. In the said case the sole appellant alongwith his parent was tried for the offence under Section 304B and 498 I.P.C. Apart from that appellant was tried for an offence under Section 302 I.P.C. simplicitor while all the three persons were charged and tried for the offence under Section 302 readwith 109 I.P.C., while the sole appellant herein was convicted for the offence under Section 302 as well as 498A I.P.C., the trial court had not recorded any finding against the appellant insofar as the charge under Section 304 I.P.C. is concerned. Other accused persons were acquitted from all the charges. As per the facts of the said case Para 4 to 10 of the said judgment is reproduced as under :

"4. The wife of the appellant by name Jyotsna died on 21st May 2003. The deceased Jyotsna and the appellant married sometime in 1998, therefore, the death of Jyotsna took place within seven years from the date of marriage. The prosecution case rested on the circumstantial evidence. The prosecution relied on five circumstances to establish the guilt of the appellant herein, they are -- (i) the deceased and the appellant were wife and husband; (ii) they were living in the same house; (iii) the deceased was harassed by the appellant for additional dowry; (iv) according to the medical evidence though the body was allegedly found hanging it was infact a case of strangulation; and lastly an extra-judicial confession was made by A-1 before PW9.

5. To establish the above circumstances the prosecution examined as many as 16 witnesses. PW1, PW2 and PW4 are the parents and brother of the deceased respectively. PW5 and PW6 are neighbours and PW7 is a resident of the locality who according to the prosecution saw the dead body hanging by a lungi to the roof. PW14 is the doctor who conducted post mortem examination on the dead body on 22.5.2003. PW15 is the Sub-Inspector of Police/Station House Officer attached to the V-Town Police Station, Nizamabad, Andhra Pradesh, who initially registered a crime under section 304B IPC on the report (Ex.P1) made by PW1. PWs1, 2 and 4 were examined to prove the factum of harassment for dowry by the appellant herein. PW3 is the husband of the sister of the deceased who was also examined for the purpose of establishing the harassment for dowry. Their evidence remains unimpeached and both the courts below believed their version insofar as the appellant is concerned.

6. PW7 is a resident of the locality where the appellant and the deceased lived. According to the prosecution, he went to the appellant's house at 8.30 a.m. on the fateful day in order to collect some amount due from A-1. There he found the deceased hanging by a lungi to the roof on the first floor of the building. With the hope of saving the life, PW7 disentangled the dead body and laid it on the floor only to find that the lady was already dead. Thereafter, he alongwith the help of another person Bhumaiah (who is not examined) shifted the dead body to the ground floor of the building.

7. According to the evidence of PW1, some unknown person had informed by telephone on the fateful day in the morning hours that the deceased was ill. Thereafter, PW1 passed on the information to PW4, who was residing in the same town (Nizamabad) as the appellant and the deceased, and asked him to ascertain the state of affairs. Thereafter, PW1 along with other members of the family rushed to Nizamabad only to find the dead body of his daughter.

8. The learned counsel for the appellant argued that there is no iota of evidence to establish that the appellant caused the death of Jyotsna. He submitted that even if the offence under section 498A is proved in the absence of any clinching evidence that the appellant caused the death of Jyotsna it would not be safe to convict the appellant for the offence under section 302 IPC as the requirement of criminal law is that the prosecution must establish the guilt of accused beyond all reasonable doubt and in a case of circumstantial evidence the chain of circumstances is so complete that they collectively point only to the guilt of the accused without leaving any scope for doubt. The learned counsel made elaborate submissions impeaching the credibility of the evidence of PW14 the doctor who conducted the post mortem examination. PW14 opined that the cause of death is "shock due to asphyxia on account of strangulation". The learned counsel relied upon various passages from Modi's Textbook of Medical Jurisprudence in a bid to establish that having regard to the nature of the external injuries on the body of the deceased, the death of Jyotsna is a result of hanging but not strangulation thereby creating doubt about the credibility of the prosecution case.

9. On the other hand, the learned counsel for the State argued that the concurrent finding of fact resulting in the conviction of the appellant under section 302 IPC may not be interfered with in the absence of any illegality in the judgment under appeal.

10. We must at the outset state that one of the five circumstances relied upon by the prosecution to establish the guilt of the appellant i.e. the alleged extra-judicial confession made by the appellant before PW9 is disbelieved by the High Court. Therefore, only four circumstances remain, they are: (i) the appellant and the deceased were husband and wife; and (ii) they were living in the same house. These facts are not even disputed by the appellant. The third circumstance relied upon by the prosecution is that the deceased was harassed by the appellant for additional dowry. The said circumstance is abundantly established by the evidence of PW1 to PW4.

The fourth circumstance that the death of Jyotsna in the opinion of the doctor was caused by strangulation (we do not propose to examine the correctness of the opinion) even if believed need not, in our opinion leave to the conclusion that it is only the accused who must be held responsible for such strangulation. The building in which the accused and the deceased were living consists of four portions where others were also living.

Even if we give the benefit of the above mentioned doubt to the appellant, the appellant cannot escape his liability for a charge under Section 304B I.P.C. which creates a legal fiction. All the ingredients of Section 304B are satisfied in the instant case, that the death of Jyotsna occurred within seven years of her marriage the death occurred otherwise than under normal circumstances and that Jyotsna was subjected to harassment which amounted to cruelty within the meaning of Section 498A I.P.C. of which charge the appellant is also found guilty by both the courts below.

11. In the light of the abovementioned circumstances, the appellant in our opinion must be found guilty for an offence under Section 304B I.P.C. He was infact charged at trial for the said offence though both the courts below failed to record any finding in this regard. The offence under Section 304B I.P.C. is punishable with the sentence for a term which may not be less than seven years but which may extend to imprisonment for life. We, therefore, alter the conviction of the appellant for an offence under Section 302 I.P.C. To an offence under Section 304B I.P.C. and reduce the sentence to the period already undergone (we are informed that the appellant is in jail for almost a decade).

(23) In these set of circumstances, learned counsel for the appellant has argued that there is no direct evidence to prove that the appellant had killed the deceased. But, since this case is based on the circumstantial evidence, we are of the view that this case is clearly covered with the case of Donthula Ravindranath @ Ravinder Rao Vs. State of Andhra Pradesh as stated above. Since learned trial Court has not taken into account the evidence on record and there was a demand of dowry and consequently non-fulfillment of the same the deceased died an unnatural death as par the postmortem report to which the appellant had completely failed to explain and the following circumstances are fully proved against the appellant:

1) The deceased and the appellant were wife and husband; 2) They were living in the same house; 3) The deceased was harassed by the appellant for fulfillment of demand of dowry. 4) According to the medical evidence, the death of the deceased has caused in unnatural and abnormal circumstances; 5) The plea of alibi taken by the appellant had miserably failed before the trial court.

All these circumstances clearly indicate the guilt of the accused under Section 498A, 304B I.P.C. and Section ¾ Dowry Prohibition Act.

(24) In our view, the appeal is liable to be partly allowed and his conviction under Section 302 I.P.C. is liable to be converted into under Section 498A and 304B I.P.C. And ¾ Dowry Prohibition Act.

(25) Accordingly, this appeal is partly allowed and the conviction of the appellant is converted to one under Section 498A, 304B I.P.C. and Section ¾ of Dowry Prohibition Act. He is convicted under the above sections and the sentence is hereby reduced to the period which he has already undergone.

(26) It is apparent that the appellant is in jail since the date of his arrest i.e. 4.10.2005, hence, he shall be released forthwith, if not required in any other case.

(27) Judgment of the trial court is, accordingly, modified.

(28) Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.

 
Order Date :- 11.05.2015
 
S. Kumar
 
				
 
	        (Anant Kumar,J)	        ( Surendra Vikram Singh Rathore,J)