Satyadeo & 2 Others vs State Of U.P.
2015 Latest Caselaw 3768 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgement Reserved on 9.9.2015
 
  	                               Judgement Delivered on 3.11.2015               
 

 
Case :- CRIMINAL APPEAL No. - 3444 of 2013
 

 
Appellant :- Satyadeo & 2 Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mrs. Vatsala,Rajiv Lochan Shukla
 
Counsel for Respondent :- Govt. Advocate
 

 
	CONNECTED WITH
 

 
Case :- CRIMINAL APPEAL No. - 3565 of 2013
 

 
Appellant :- Pramod And 2 Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Mrs. Vatsala
 
Counsel for Respondent :- Govt. Advocate,Bharat Prataap Singh
 

 

 
Hon'ble Om Prakash-VII,J.

1. Both the aforementioned connected appeals have been filed against the common judgment and order dated 19.7.2013 passed by Additional Sessions Judge, Court No.l4, District Aligarh in Sessions Trial No.235 of 2009 (State Vs. Satya Dev and another), Sessions Trial No.823 of 2011 (State Vs. Ram Prakash and another) and Sessions Trial No.151 of 2005 (State Vs. Pramod and others) pertaining to case crime no.192 of 2001, Police Station Banna Devi, District Aligarh whereby the trial Court convicted and sentenced the accused-appellants for the offence under sections 498-A, 323/34, 313 IPC and 3/4 Dowry Prohibition Act to undergo two years rigorous imprisonment and a fine of Rs.1000/- to each of the accused-appellant for the offence under section 498-A IPC, to undergo six months rigorous imprisonment for the offence under section 323/34 IPC to each of the accused-appellant, to undergo five years rigorous imprisonment and a fine of Rs.5000/- to each of the accused-appellant for the offence under section 313 IPC and to undergo five years rigorous imprisonment and a fine of Rs.15000/- to each of the accused-appellant for the offence under sections 3/4 Dowry Prohibition Act. Trial Court has also ordered additional imprisonment in default of payment of fine imposed upon the accused-appellants.

2. Since both the aforesaid connected criminal appeals have been heard together, therefore, the Court proceeds to decide the same by a common judgment.

3. Prosecution story as unfoled in the written report is as follows :

Informant P.W.1 Chandra Pal Singh gave a written report at police station concerned mentioning therein that the marriage of his daughter P.W.2 Km. Seema (daughter of the informant), was solemnized with appellant Pramod Kumar on 9.5.1997. Informant had given sufficient dowry according to his capacity, but the appellants, just after the marriage, started harassing his daughter on account of demand of dowry. They also kept his daughter (victim) hungry for about four days during her pregnancy period and caused cruelty to bring Rs.1 lac. A girl was born out after major operation and after discharge from the hospital, the victim reached at her in-laws' house. All the accused-appellants beaten her black and blue and expelled her from the house. Chachiya Sasur of the victim was also involved in the matter. On 8th October, 1998, accused-appellants called the daughter of the informant i.e. victim in a family ceremony. On that occasion, the informant giving Rs.20,000/- to his son-in-law (appellant Pramod) sent his daughter to her in-laws' house, but on 21.1.2001 again accused-appellants beat her. On 27.1.2001, she was again expelled from her in-laws' house. Victim was pregnant at that time. Miscarriage occured due to the act of the accused-appellants, but no one had taken care of the victim.

4. On the basis of written report (Ex.Ka.-1), chick F.I.R. (Ex.Ka.-2) was registerd at the police station concerned on 27.5.2001 at 21:20 hours for the offence under sections 498-A, 323 IPC and 3/4 Dowry Prohibition Act. Entry was also made in the G.D. as Ex.Ka.-3. Investiation was started in the matter. The investigating officer visited the place of occurrence and prepared the site plan (Ex.Ka.-5), recorded the statements of the witnesses and also collected the medical evidence and on the strength of evidence collected during investigation, submitted the charge-sheet (Ex.Ka.-6) against the accused-appellants Pramod, Munish and Yogesh.

5. Concerned Magistrate took the cognizance and the case, being exclusively triable by the Court of Sessions, was committed to the Court of Sessions for trial.

6. Accused appeared and charges were framed against them under sections 498-A, 323/34, 313 IPC and 3/4 Dowry Prohibition Act to which they deined and claimed their trial.

7. In order to prove its case, prosecution examined P.W.1 Chandra Pal Singh, the informant, P.W.2 Seema Devi, the victim, P.W.3 Constable Surendra Singh, P.W.4 Dr. M.K. Rajput, who has proved the papers relating to miscarriage of the child and P.W.5 S.I. Sanjeev Kumar Tomar.

8. It is also pertinent to mention here that during the course of trial, an application under section 319 Cr.P.C. was moved by the prosecution and after hearing the parties, the trial Court summoned the appellants Kalpana, Satyadev and Mahadevi and also one Ram Prakash to face the trial. Charges were also framed against them and consolidating all the Sessions Trials evidence were recorded.

9. After closure of the prosecution evidence, statement under section 313 Cr.P.C. of the accused-persons were recorded.

10. All the accused-persons stated that they never made any demand of dowry nor cause any cruelty, harassment or maltreatment to the victim. The investigating officer has submitted the charge-sheet on the basis of false evidence. The witnesses made false statement before the Court. Accused-appellant Pramod claimed that he was living separately along with the victim from other appellants at the time of occurrence. Accused-appellant Ram Prakash claimed that he was living separately at Agra in connection with his service in the Police Line and he has no concern with the present offence. Similar is the statements of other accused. They have specifically stated that miscarriage is not the result of act committed on part of the appellants. They never beat the victim and never demanded any additional dowry.

11. Accused-persons in their defence have also filed the ration card, copy of the service book and domicile certificate issued by the B.D.O. / Village Pradhan and also the identify cards of some of the accused-appellants.

12. Trial Court, after hearing the parties, vide impugned judgment and order convicted and sentenced the accused-appellants as above and acquitted the co-accused Ram Prakash. Hence, this Appeal.

13. No appeal has been filed on behalf of the State against the acquittal of Ram Prakash.

14. I have heard Shri Rajiv Lochan Shukla and Mrs. Vatsala, learned counsel for the appellants in this appeal as well as in the connected criminal appeal no.3565 of 2013 and Shri Bharat Pratap Singh, learned counsel for the complainant as well as learned AGA appearing for the State.

15. Submission of the learned counsel for the appellants is that the prosecution could not prove its case for the offence under Section 3 & 4 of the Dowry Prohibition Act. The findings of the trial Court are not in accordance with law. Giving of Rs.20,000/- to the appellant Pramod by P.W.1 Chandra Pal Singh at the time of sending the victim to her in-laws' house for attending the family ceremony will not be treated as dowry. Offence under section 313 IPC is also not attracted in the present matter. The trial Court has not analyzed the essential ingredients to constitute the offence punishable under section 313 IPC and reached at a wrong conclusion. No documentary evidence was adduced by the prosecution to demonstrate the treatment of the victim regarding bleeding in between 27.1.2001 to 16.4.2001. There is no evidence to establish the nexus between the act of the accused-appellants with the miscarriage said to have been occured. Prosecution witnesses have made improvement in their statements at different stages. Victim herself has admitted that she was willing to go with her husband, but the informant, with some ulterior motive, did not send her to her in-laws' house. Thus, the first information report was lodged against the wishes of the victim. When the victim was sent to her in-laws' place, the first incident regarding offence under section 498-A ceased to exist. The first information report was delayed, but no plausible explanation was given regading the delay. Medical evidence also does not support the prosecution version. No original document was produced before the Court. Photo-copies could not be read in evidence. It was further submitted that the offence under section 323 IPC is also not attracted in this matter. There is no evidence regarding causing cruelty, harassment or maltreatment to the victim.

16. Learned A.G.A. argued that prosecution was able to establish the essential ingredients to constitute the offence under sections 3 & 4 of the Dowry Prohibition Act. Marriage is not denied by the accused-appellants. Torture, maltreatment, harassment and cruelty started from the year 1998 and was continued till the lodging of the F.I.R. Delay in lodging of the F.I.R. was properly and satisfactorily explained by the prosecution. The essential ingredients to constitute the offence under section 498-A, 323, 313 IPC were established by the prosecution. Payment of Rs.20,000/- itself shows that there was a demand of dowry and in connection with the said dowry demand, the victim was subjected to cruelty, harassment and maltreatment. Miscarriage of pregnancy is also the result of cruelty and hurt caused by the accused-appellants to the victim. Statement of P.W.4 Dr. M.K. Rajput clearly proves all these facts. Medical evidence also corroborates the oral version.

17. I have considered the rival submissions advanced by the learned counsel for the parties and have also gone through the record.

18. In the instant case, it is an admitted fact between the parties that accused-appellant Pramod was married with the victim P.W.2 Smt. Seema Devi on 9.5.1997 and the victim lived for some time at her in-laws' house. It is also apparent from the record that at the time of lodging the F.I.R., the victim was staying at her parental house. One female child was born out from the wedlock of accused-appellant Pramod and P.W.2 Seema Devi (the victim), who is still alive. It is also clear from the statement of P.W.4 Dr. M.K. Rajput that miscarriage was happened in the hospital on 21.4.2001. Doctor has opined that dilation and currettage (D&C) procedure was performed only to save the life of the victim, as there was excessive bleeding, but the doctor did not specify any reason of the excessive bleeding. It is also clear from the record that the victim was expelled from her matrimonial house on 27.1.2001. She was admitted in the hospital on 16.4.2001 by her father P.W.1. No documentary evidence was adduced by the prosecution to establish that the victim was under treatment since 27.1.2001 to 16.4.2001. The F.I.R. was lodged on 27.5.2001. Reason for delay in lodging the F.I.R. was shown that when no one turned up from the side of the in-laws' family to take care of the victim, information was given to the police.

19. Since the matter relates to matrimonial dispute, therefore delay in lodging the F.I.R. becomes immaterial in such type of matters. The victim sufferring from acute mental pain and agony due to cruelty caused on part of in-laws' member normaly do not want to proceed further to start litigation in the hope that at one point of time, all the disputes would be resolved and a peaceful living (life) would be started. Similarly, the parents of the victim also do not come forward immediately to take legal action against the in-laws' of her daughter with the hope that the matter would be subsided with the passage of time. Therefore, in the present matter, delay occurred in lodging the F.I.R. is not material and fatal to the prosecution case. Victim, at the time of lodging the F.I.R., was living at her parental house.

20. So far as the demand of dowry is concerned, in the F.I.R itself P.W.1 has mentioned that the dispute arose after marriage. When the victim went to her in-laws' place, she was kept hungry and members of her in-laws' family were not paying heed in her treatment at the time of birth of the child. The fact mentioned in the written report (Ex.Ka-1) was clearly supported by P.W.1 Chandra Pal Singh and P.W.2 Seema Devi, the victim. Both of them have clearly stated that the members of her in-laws' family were causing cruelty, harassment and maltreatment to the victim on account of non-fulfillment of dowry demand. Whether offence under section 3 or under section 4 of the Dowry Prohibition Act is attracted in the matter or not, will be discussed at the later part of the judgment, but it is established from the prosecution evidence that in-laws of the victim were making demand of dowry after the marriage and P.W.1 Chandra Pal Singh had also given Rs.20,000/- when the victim was sent along with her husband - the accused-appellant Pramod to her in-laws' house.

21. Before proceeding to deal with other submissions, I would like to refer the definition of dowry and punishment thereof as enumerated in the Dowry Prohibition Act.

Section 2 in the Dowry Prohibition Act, 1961

2. Definition of ''dowry'. --In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly--

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 3 [***] Explanation II.-- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

Section 3 in the Dowry Prohibition Act, 1961

3. Penalty for giving or taking dowry.--(1) ] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: --1[(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable 2[with imprisonment for a term which shall not be less than 3[five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]\:" Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than 4[five years].] 5[(2) Nothing in sub-section (1) shall apply to, or in relation to,-- 1[(2) Nothing in sub-section (1) shall apply to, or in relation to,--"

(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;

(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf): Provided that such presents are entered in a list maintained in accordance with the rules made under this Act: Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.]

Section 4 in the Dowry Prohibition Act, 1961

4. Penalty for demanding dowry.--If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: 2[4. Penalty for demanding dowry.--If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees\:" Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.]

22. Certainly, Section 3 of the Dowry Prohibition Act attracts only in cases of giving or taking of the dowry, but Section 4 provides punishment on account of demanding of dowry.

23. The trial Court finding is that accused-appellants have committed the offence under Section 3 /4 Dowry Prohibition Act. Close analysis of the entire evidence adduced by the prosecution clearly reveals that the essential ingredients to constitute the offence under section 3 of the Dowry Prohibtion Act were not proved by the prosecution. Allegation against the accused-appellants was simply of dowry demand after the marriage, hence on the basis of evidence available on record, offence under section 4 of the Dowry Prohibition Act is only attracted in the present matter. Finding recorded by the trial Court to constitute the offence under section 3 of the Dowry Prohibition Act is contrary to the provisions of Section 3 of the Dowry Prohibition Act. Trial Court has imposed a punishment of five years rigorous imprisonment and a fine of Rs.15000/- to each of the accused-appellant for the offence under section 3/4 Dowry Prohibition Act. Offence under section 4 Dowry Prohibition Act is only attracted in the present matter as has been held above. Maximum punishment for the offence under section 4 of the Dowry Prohibition Act could be imposed of two years rigorous imprisonment and a fine of Rs.10000/-. Considering the legal situation, punishment imposed for the offence under section 4 Dowry Prohibition Act is also liable to be modified reducing it as above.

24. As far as the offence under section 313 IPC is concerned, prosecution case is that when the victim was expelled from her in-laws' house on 27.1.2001, she was in the advanced stage of pregnancy i.e. two months. Miscarriage is said to have been occured on 21.4.2001. It means at the time of miscarriage, an embryo / fetus in the womb of the victim must be of about five months. It is also the case of the prosecution that when the accused-appellants beat the victim on 21.1.2001, bleeding started. There is no documentary evidence available on record to establish that any treatment regarding bleeding, said to have been started to the victim, was given during the period w.e.f. 27.1.2001 to 16.4.2001.

25. Offence under section 313 IPC would only attract in the present matter when the prosecution was able to establish the nexus between the miscarriage, bleeding and the act of beating to the victim by the accused-appellants. Before discussing this point, I would like to refer the provisions of Sections 312, 313, 315 & 316 IPC.

312. Causing miscarraige.--Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation.-A woman who causes herself to miscarry, is within the meaning of this section.

313. Causing miscarriage without woman's consent.--Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 2*[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

315. Act done with intent to prevent child being born alive or to cause it to die after birth.--Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.

316. Causing death of quick unborn child by act amounting to culpable homicide. --Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Illustration

A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section.

26. Section 312 IPC provides that whoever voluntarily causes a woman with child to miscarry, and if such miscarraige is not caused in good faith for the purpose of saving the life of the woman, shall be punished with imprisonment as mentioned in Sections 312 IPC. Section 313 IPC make the act of miscarraige punishable if it is done without the consent of the woman.

27. Here in the instant matter, prosecution was able to establish the case to this extent that miscarraige was happened on 21.4.2001, as is clear from the statement of P.W.4. Submission of the learned counsel for the appellant that original documents regarding treatment given to the victim after miscarraige of pregnancy were not produced, is not material in the present matter. P.W.4, who was assisting the Senior Doctor, has clearly proved the photo-copies of the documents and admitted the factum of D&C performed on the victim on the basis of consent given by P.W.1 Chandra Pal Singh, the father of the victim. But the main question remains to be answered is that whether the miscarraige was the direct consequence of the act of beating to the victim by the accused-appellants on 21.1.2001. Since there is no documentary evidence available on record, except the oral statement of P.W.1 and P.W.2, in the opinion of this Court, it cannot be inferred that miscarraige, which was happened after a gap of about three months, was the direct consequence of the beating made on 21.1.2001. The trial Court finding on this aspect is not in accordance with law and evidence. Apart to this, if the essential ingredients to constitute the offence under section 313 IPC are taken into consideration, then also it is found that in the present matter, no inference could be drawn against the accused-appellants for offence of miscarraige under section 313 IPC. The trial Court has not only misread the evidence, but has also not taken into consideration the exact provisions of section 313 IPC, therefore, reached at a wrong conclusion. Thus, in my considered view, finding of the trial Court regarding conviction of the accused-appellants for the offence under section 313 IPC is not sustainable. Prosecution could not prove its case beyond reasonable doubt to attract the offence under section 313 IPC.

28. So far as offence under section 323 IPC is concerned, the statement of P.W.1 is based on hearsay evidence. He has stated before the Court and mentioned in the F.I.R. what was stated to him by P.W.2 the victim. But the statement of P.W.2 Seema Devi clearly shows that she was beaten by the accused-appellants on 21.1.2001. It may be noted here that if there is no injury report filed by the prosecution to show that injury was caused to the victim, then also to constitute the offence under section 323 IPC only this much is sufficient that the victim was beaten. To attract the offence under section 323 IPC, it is not necessary to cause any visible injuries to any person. Thus, finding recorded by the Trial Court regarding the offence under section 323 IPC cannot be said to be illegal and interference in this regard is not required.

29. As far as offence under section 498-A IPC is concerned, P.W.1 and P.W.2 both the witnesses have consistently stated that accused-appellants were causing cruelty and harassment to the victim to bring the additional dowry in form of Rs.1 lac. She was expelled from in-laws' house due to this reason. There is sufficient evidence to establish that accused-appellants were making additional demand of dowry after the marriage and due to this reason the victim (P.W.2) was subjected to cruelty and harassment in that connection. Finding recorded by the trial Court regarding offence under section 498-A IPC is not liable to be interfered with. Punishment imposed for the offence under section 498-A IPC could also not be termed disproportionate.

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

31. The conviction and sentence imposed upon the appellants Pramod, Munish, Yogesh, Kalpana, Satyadeo and Mahadevi under Section 313 IPC and under Section 3 Dowry Prohibition Act is liable to be set-aside and is hereby set-aside. Appellants Pramod, Munish, Yogesh, Kalpana, Satyadeo and Mahadevi are acquitted of the charges under section 313 IPC and under section 3 Dowry Prohibition Act.

32. Conviction and sentence imposed upon the appellants Pramod, Munish, Yogesh, Kalpana, Satyadeo and Mahadevi under Section 4 of the Dowry Prohibition Act is liable to be modified as discussed above and is accordingly modified. They are punished for the offence under section 4 of Dowry Prohibtion Act to undergo two years rigorous imprisonment and a fine of Rs.10000/- to each of the appellants and in default of payment of fine, they shall undergo additional imprisonment of three months.

33. Conviction and sentence imposed upon the appellants by the trial Court for the offences under sections 323/34 and 498-A IPC are affirmed.

34. The record of the trial Court along with copy of the judgment be sent to the Court concerned for compliance. Compliance report be also submitted to this Court.

Dated : 3rd November, 2015.

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