Chandra Bhan Maurya & Another vs State Of U.P.
2015 Latest Caselaw 2332 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
	       	      	 Judgment reserved on : 3.9.2015                   
 
			            Judgment delivered on : 16.9.2015.
 

 
Case :- CRIMINAL APPEAL No. - 684 of 2010
 

 
Appellant :- Chandra Bhan Maurya & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ram Surat Patel, Raj Kumar Singh,S.M. Fazal
 
Counsel for Respondent :- Govt. Advocate, Abhineet Kumar Jaiswal
 

 

 
Hon'ble Om Prakash-VII,J.

1. This criminal appeal has been filed by the appellants Chandra Bhan Maurya and Ram Chandra Maurya against the judgment and order dated 30.1.2010 passed by Additional Distrcit & Sessions Judge, Court No.10, Allahabad in Sessions Trial No.59 of 2003 (State Vs. Chandra Bhan Maurya and others) arising out of case crime no.30 of 2002 under Sections 498-A, 304-B of the Indian Penal Code (In Short 'IPC') and 3/4 Dowry Prohibition Act, Police Station Utaraon, District Allahabad whereby the trial Court has convicted and sentenced the accused-appellants for the offence under sections 498-A IPC for two years rigorous imprisonment and a fine of Rs.5000/- and in default of payment of fine, one month additional imprisonment, for the offence under section 304-B IPC for ten years rigorous imprisonment and a fine of Rs.20000/- and in case of default in payment of fine, six months additional imprisonment and for the offence under section 3/4 Dowry Prohibition Act, one year rigorous imprisonment and a fine of Rs.1000/- and in default of payment of fine, one week additional imprisonment. All the sentences shall run concurrently.

2. The prosecution story, as unfolded in the first information report, in brief was as under.

3. The informant Dwarika Prasad (P.W.1) son of Mahadev resident of village Nazarpur, P.S. Suriyawan, District Sant Ravidas Nagar (Bhadohi) gave a written report / application (Ex.Ka.-1) to the Senior Superintendent of Police, Allahabad stating therein that on 11.6.1998, he performed a decent marriage of his daughter Nisha Devi with Chandra Bhan Maurya son of Ram Chandra Maurya resident of Damgada, P.S. Utraon, District Allahabad. He gave Rs.11000/- in cash along with clothes and other gift items in the tilak ceremony and in the marriage, according to the demand, Rs.25000/- in cash was given for scooter. When his daughter came back after 15 days of her vidai, she told her father that her father-in-law (Ram Chandra Maurya) had spent all the money given in the marriage and pressurizing her to bring one motorcycle, a colour t.v. and Rs.1,00,000/- in cash for doing the business of carpet. On this, the informant and family members became shocked. Thereafter, the informant visited the place of his son-in-law and talked to him and his father, who told the informant about the fulfillment of their demand. For the welfare of his daughter, the informant gave assurance to her in-laws' and again his daughter was sent to her matrimonial home along with a motorcycle. In spite of this, the husband and her in-laws' used to extend cruelty and harassment to her daughter. Sometimes her mother-in-law caused burn injuries to her by heated element. The informant was in constant touch with her daughter. Within three years of her marriage, two daughters were born out of the wedlock, out of which one was about 7 - 8 months old. On 4.2.2002 at about 4 to 5 P.M., her in-laws' and husband poured kerosene oil on his daughter and set her ablaze. On objection made by the neighbours, they admitted her daughter in the hospital, where she succumbed to her injuries on 9.2.2002. On 6.2.2002, Ram Chandra, the father-in-law of the her daughter, got registered the agricultural land in the name of his grand children for the assurance that the informant would not lodge the case of dowry death. During treatment in the hospital when she (deceased) regains her consciousness, her in-law's and husband used to threat her. On 5.2.2002, on receiving information, the informant came to Swaroop Rani Hospital and saw that proper treatment was not being given to her daughter. He spent about Rs.10000/- in the treatment to save the life of her daughter. After her death, the informant made several attempts to lodge the F.I.R. against the accused persons, but F.I.R. was not lodged.

4. On the basis of written report, first information report (Ex.Ka-2A) was lodged on 24.2.2002 at police station concerned. G.D. entry was also made.

5. Deceased was under treatment in the hospital where she died on 9.2.2002. An information regarding the death of the deceased was given to the concerned police on the same day. The concerned police reached the mortuary and prepared the inquest report (Ex.Ka.-12) along with police papers (Ex.Ka.-13), report to police concerned (Ex.Ka-14), report to C.M.O. (Ex.Ka.-15), Form 13 (Ex.Ka.-16), sample seal (Ex.Ka-17). Dead body was kept in a sealed cloth and was handed over to the constable Sri Krishan Katiyar for postmortem.

6. Dr. A.C Verma (P.W.5), Medical Officer, M.L.N., Hospital conducted the post mortem on the dead body of the deceased Nisha Devi on 12.2.2002 at 2:30 P.M. As per postmortem report (Ex.Ka.-3), deceased was aged about 22 years. She was of average built and muscular body. She expired on 9.2.2002 at 3:05 P.M. The following antemortem injuries were found on the dead body of the deceased Nisha Devi :

(i)Superficial to deep burn all over the body except part of both the upper arms and head. Pus pocket present in the wounds. Marks of surgical cut open in both the legs present.

On internal examination, membranes were found congested. Lungs were also congested. 200 ml. fluid was found present in the stomach. Small intestine and large intestine were half full. The death was caused due to septicemic shock as a result of extensive burn.

7. The investigating officer also inspected the place of occurrence and prepared the site plan (Ex.Ka-10). He also collected the evidence and recorded the statements of the witnesses under section 161 Cr.P.C. Marriage cards Ex.Ka.-4 and Ex.Ka.-5 and letters sent by the deceased to her parents were also collected. After completing the investigation, charge-sheet (Ex.Ka.-11) was submitted against the accused-appellants for the offences under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act.

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

9. Accused appeared before the Court concerned. Charges against both the accused-appellants were framed under under Sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, to which they denied and pleaded themselves innocent and claimed their trial.

10. In order to prove its case, prosecution examined P.W.1 Dwarika Prasad, the informant, who is the father of the deceased, P.W.2 Smt. Kesa Devi, the mother of the deceased, P.W.3 Jitendra Kumar Maurya, who is the brother of the deceased, P.W.4 Constable Rakesh Kumar Singh, the chick writer, who prepared the chick F.I.R. (Ex.Ka.-2A), P.W.5 Dr. A.C. Verma, who conducted the postmortem on the body of the deceased, P.W.6, C.O. Mansa Ram Gautam, the subsequent investigating officer of the case, P.W.7 Brijesh Kumar Srivastava, the first investigating officer, P.W.8 Abhay Singh, the retired Circle Officer, who had also conducted the investigation in the matter and P.W.9 Dinesh Chandra Yadav, who prepared the inquest report.

11. Court has also examined C.W.1 Kamlesh Mani Tripathi, who proved the treatment papers of the deceased, C.W.2 Ashish, who was also the witness of treatment of the deceased. Prosecution has also proved the letters Exts.Ka.-6, 7, 8 and 9.

12. After conclusion of the prosecution evidence, statements of the accused-appellants were recorded under section 313 Cr.P.C., in which they stated the prosecution story to be false, but they specifically pleaded that the deceased died due to accidental burn injuries. Accused-appellants also examined D.W.1 Dinesh Chandra Yadav, Retired Deputy Collector, D.W.2 Dr. Y.K. Pathak, D.W.3 Dr. B.P. Srivastava and also proved the dying declaration said to have been made by the deceased before this defence witness on 5.2.2002.

13. The trial Court after hearing the parties, vide impugned judgment and order, convicted and sentenced the accused-appellants as aforesaid. Hence, this Appeal.

14. Heard Sri R.C. Yadav and Sri Raj Kumar Singh, learned counsel for the appellants, Sri Zafeer Ahmad, learned A.G.A. for the State and perused the record.

15. Submission of the learned counsel for the appellants is that prosecution could not prove the case beyond reasonable doubt. Deceased herself in the dying declaration recorded by the Magistrate has stated nothing against the appellants. The witnesses examined on behalf of the prosecution have also not made any reliable statement, but the trial Court wrongly appreciated the prosecution evidence. The first information report was lodged belatedly, but no plausible explanation was given. It is an admitted case of the prosecution that appellants themselves provided the treatment to the deceased. It was further submitted that the prosecution case is also not supported from the dying declaration recorded in the matter. The informant and his family members were present at the time of inquest, but they did not make any complaint about the said offence. Prosecution could not prove its case to the hilt, as required under the law. Therefore, presumption raised by the trial Court taking recourse of the provisions of section 113-B of the Evidence Act is illegal. There are general allegations against both the appellants. Prosecution was also not able to establish that the appellant no.2 ever demanded any dowry from the deceased or her parents. The trial Court itself did not place reliance on the dying declaration, but on the basis of insufficient evidence, conjectures and surmises, convicted and sentenced the appellants. The findings recorded by the trial Court are perverse.

16. On the other hand, learned A.G.A. for the State aruged that prosecution case is supported from the medical evidence. Deceased died within seven years of her marriage and the death of the deceased was otherwise than under normal circumstances. Offence took place in the house of the accused-appellants. There is evidence on record that the accused-appellants were making additional demand of dowry and were causing cruelty and harassment to the deceased soon before her death. It was further argued that all the essential ingredients to constitute the offence under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act were established by the prosecution beyond reasonable doubt. The trial Court has rightly made presumption taking recourse of the provisions of Section 113-B of the Evidence Act. Delay in lodging the F.I.R. has properly been explained in the F.I.R. Since the deceased was under treatment, therefore, informant and his family members were also busy. Thus, the delay occurred in lodging the F.I.R. The findings of the trial Court regarding guilt of the appellants are in accordance with the evidence and law.

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

18. Prosecution examined three witnesses of fact to prove the date of marriage, demand of dowry, cruelty and harassment said to have been caused in connection with the demand of dowry and also to establish the unnatural death of the deceased. Offence is said to have been committed on 4.2.2002. Prosecution case is that accused persons poured kerosene oil over the body of the deceased and set her ablaze. This information was received to the informant on 5.2.2002. Deceased died on 9.2.2002 in the hospital during treatment. P.W. 1 Dwarika Prasad and P.W.2 Smt. Kesa Devi are the father and mother of the deceased. P.W.3 Jitendra Kumar Maurya is the brother of the deceased. All these three witnesses have supported the prosecution case.

19. P.W.1 Dwarika Prasad has stated that he had given Rs.11000/- as dowry at the time of Tilak ceremony and other articles were also given by him at that time. He had also given Rs.25000/- for purchasing the scooter at the time of marriage. Appellants were demanding Rs.1 lac for business purpose and also colour t.v. and motorcycle. Informant in this connection had gone to the in-laws' house of the deceased and talked with the appellants, but they were adamant on their demand. The deceased had gone to her in-laws second time, but the accused persons were causing cruelty and harassment in connection with the continuous demand of additional dowry. Two daughters were also born out from the wedlock of the deceased and her husband. P.W.1 also stated that he stayed for about 4 to 5 days in the hospital to look after her daughter. Deceased had stated to him that accused-appellants had committed the present offence and they were pressurizing her not to disclose this fact otherwise they would kill her children. P.W.1, P.W.2 and P.W.3 all have stated that no any dying declaration was recorded in the hospital as they remained present there during the whole period. P.W.2 and P.W.3 have supported the prosecution case as narrated in the F.I.R.

20. Besides the above evidence, there was evidence of dying declaration said to have been made by the deceased on 5.2.2002. It is recorded by P.W.9 (D.W.1) Dinesh Chandra Yadav, the retired Deputy Collector. In the said dying declaration, proved as Ex.Kha-1, the victim (deceased) stated as under.

**c;ku fd;k fd eS vkt lqcg tyh gWwA eS lqcg jksVh cukus ds fy;s xSl tykus tk jgh FkhA lqcg va/ksjk Fkk blfy;s oxy es fn;k tykdj j[k yh FkhA fn;k ls /kksrh es vkx idM fy;kA eS cq>kus yxhA vkx ugh cq>h rks eS fpYykus yxhA vkx cq>kus esjs vkneh rFkk vkSj lc igWqp x;sA vkSj lc es tks vk;s mudk uke eS ugh tkurhA eSa rks ty jgh Fkh fdldks ns[krhA vkx cq>kus ds fy;s esjs mij ikuh MkysA blds vykok eq>s dqN vkSj ugh dguk gSaA c;ku lqudj rlnhd fd;kA **

21. The trial Court finding is that the dying declaration Ex.Kha-1 is a suspicious document. It was not recorded in accordance with law. Prosecution witnesses have also denied of any such statement. Certificate of the doctor about the physical and mental status of the deceased before recording of the dying declaration was not obtained but it was certified after recording the dying declaration. Dying declaration is also not in questionnaire format and it does not disclose every fact of the crime.

22. Medical report (Ex.C-1) prepared on 4.2.2002 indicates that superficial to deep burn injury present all over the body except the scalp and sole. Skin was peeling off at different places. Injuries were fresh and were kept under observation. Postmortem report (Ex.Ka.-3) also reflects that superficial to deep burn injuries were present all over the body except part of both the upper arms and head.

23. If the injury report, postmortem report and the statement of the doctor are taken into consideration, then it is clear that the deceased received superficial to deep burn injuries. She was initially taken to the district hospital by the appellant Chandra Bhan Maurya. Treatment was continued in the hospital till her death. There are two versions regarding the physical and mental condition of the deceased. D.W.3 Dr. B.P. Srivastava has stated that the deceased was admitted in the Emergency Ward of the Surgery. In the cross-examination, this witness stated that when the deceased was admitted in the hospital, she was not in a condition to speak, but he opined that on the basis of treatment, she could be able to speak.

24. In the instant case, first and foremost question for consideration is the existence of the first information report.

Certainly, the first information report was lodged on 24.2.2002. Offence is said to have been committed on 4.2.2002. Deceased died on 9.2.2002 in the hospital during treatment. Sale deeds in favour of the two daughters of the deceased were executed by the appellants before lodging of the first information report. Informant had explained the reasons for delay in lodging the first information report. He was repeatedly knocking the door of the police station, but no first information report was registered. Thereafter, he moved an application before the S.S.P. concerned. The same fact has been stated by P.W.1 Dwarika Prasad. On perusal of the written report, it is apparent that although first information report was registered on 24.2.2002, but the written report was moved earlier on 19.2.2002. Direction was also issued for registration and investigation of the case. Deceased was under treatment till her death. Informant and his family members were busy in the treatment of the deceased. It has come in the evidence that they were present in the hospital till she took her last breath. Two daughters of the deceased are alive, therefore, the fact raised by the informant that accused-appellants were pressurizing the informant not to lodge the first information report otherwise they would also kill her daughters cannot be disbelived. If the sale deeds executed in favour of the daughters are taken into consideration, then the fact emerges out that some discussion between the parties was going on regarding the offence. The trial Court observation that every efforts were being made by the appellants to dissuade the informant from lodging the first information report is absolutely correct and in accordance with evidence. In the facts and circumstances of the case, the delay in lodging the first information report is not deliberate. Apprehension in the mind of the informant regarding safety and security of the children cannot be ruled out. Therefore, the trial Court has rightly observed that delay in lodging the first information report is properly explained by the prosecution. This Court is also of the view that the finding recorded by the trial Court on this aspect is not liable to be interfered with.

25. So far as the finding on the point of recording of the dying declaration of the deceased is concerned, it is evident that no certificate was issued by the doctor before recording of the dying declaration regarding the physical and mental condition of the deceased. It is also apparent that the dying declaration is not in the question-answer form. Legal position for recording the dying declaration is that every endeavor should be made to record the dying declaration in questionnaire format. Sanctity of such type of dying declaration is more in the eye of law than the other form of dying declaration, though there is no any general rule that in each and every case, dying declaration should have been recorded in question-answer form. Sanctity and authenticity of the dying declaration is attached with its truthfulness.

26. In the present matter, admittedly the deceased, in her dying declaration, did not disclose any fact regarding dowry demand, cruelty and harassment extended on account of demand of dowry. She simply stated that she received burn injuries due to fire caught her from dia (lamp). If the last line of the dying declaration is minutely analyzed in context with the other facts and circumstances of the case and also with the sale deed said to have been executed in favour of the daughters of the deceased, dying declaration (Ex.Kha.-1) becomes suspicious document. The last line of the dying declaration clearly indicates that the deceased was under pressure. Prosecution witnesses have stated that no such dying declaration was ever recorded. The trial Court has placed reliance on their statements and disbelived the dying declaration.

27. If for the sake of argument, the defence version be taken into consideration that a dying declaration of the deceased was recorded, then also for the reasons mentioned above, the dying declaration appears to be a suspicious document. Thus, the Court is of the view that the finding recorded by the trial Court regarding the dying declaration is based on the correct appreciation of the evidence available on record. No interference is required by this Court in the said finding.

28. As far as the letters said to have been written by the deceased and referred to by the appellants to establish the conduct of the deceased are concerned, admittedly, two children were born out from the wedlock of the deceased and her husband. Both are alive. In this backdrop, it cannot be said that the deceased was annoyed with her husband, therefore, she committed suicide. The trial Court has rightly rejected the contention of the appellants on this aspect. No interference is required in the finding of the trial Court on this issue also. The trial Court finding that letters itself demonstrate the cruelty and harassment caused by the accused is also correct. If she (deceased) was not medically examined earlier regarding injuries caused by the accused, then also the prosecution story on this basis in the bride burning case cannot be doubted. Generally, the parents do not think to initiate any criminal proceeding against the in-laws due to the reason that the family dispute will be resolved after sometime. In the present matter, from the statements of P.W.1, 2 and 3, it is quite clear that efforts were made to settle the matter, but the accused insisted for their demand. Therefore, contention of the appellants that no complaint prior to the lodging of the F.I.R. was ever made by the informant thus the prosecution story becomes doubtful, is not acceptable and the trial Court finding cannot be interfered with on this issue.

29. Non-complaining about the offence at the time of the inquest or during treatment will also not make the prosecution case doubtful. Parents would have thought that her daughter was safe. This is a case of bride burning. No person, except the deceased, was present in the house to help her.

30. Now the question is whether the demand said to have been made by the appellants comes under the purview of Section 3/4 Dowry Prohibition Act and the cruelty and harassment was being caused in connection with the demand of dowry and this fact comes under the purview of soon before her death. As is clear from the medical evidence that death of the deceased was not natural one. She received burn injuries and died during treatment. Thus, the death of the deceased is otherwise than under normal circumstances.

31. Before proceeding to deal with the submission raised by the learned counsel for the parties, I would refer the law laid down by the Hon'ble Supreme Court in the case of Sultan Singh Versus State of Haryana (2014) 14 Supreme Court Cases 664, relevant paras of which is quoted below.

"14. We may also note that the presumption under Section 113B of the Indian Evidence Act has been enacted to check the menace of the dowry deaths and in appreciating the evidence, the social background of the legislation cannot be ignored. In Pawan Kumar vs. State of Haryana, it was observed:

"11. It is true, as argued by learned counsel for the appellants, that in criminal jurisprudence benefit of doubt is extendable to the accused. But that benefit of doubt would arise in the context of the application of penal law, and in the facts and circumstances of a case. The concept of benefit of doubt has an important role to play but within the confines of the stringency of laws. Since the cause of death of a married woman was to occur not in normal circumstances but as a "dowry death", for which the evidence was not so easily available, as it is mostly confined within the four walls of a house, namely the husband's house, where all likely accused reside. Hence the aforesaid amendments brought in the concept of deemed "dowry death" by the husband or the relatives, as the case may be. This deeming clause has a role to play and cannot be taken lightly and ignored to shield an accused, otherwise the very purpose of the amendment will be lost. Of course, the prosecution has to prove the ultimate essential ingredients beyond all reasonable doubt after raising the initial presumption of "deemed dowry death".

12. Explanation to Section 304-B refers to dowry "as having the same meaning as in Section 2 of the 1961 Act", the question is: what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage.

13. When words in a statute are referable to more than one meaning, the established rule of construction is found in Heydon's case1 also approved by this Court in Bengal Immunity Co. Ltd. v. State of Bihar AIR at p. 674. The rule is to consider four aspects while construing an Act:

(a) what was the law prior to the law which is sought to be interpreted;

(b) what was the mischief or defect for which new law is made;

(c) what is the remedy the law now provides; and

(d) what is the reason of the remedy.

14. The Court must adopt that construction which, "suppresses the mischief and advances the remedy".

15. Applying this principle, it is clear that the earlier law was not sufficient to check dowry deaths hence aforesaid stringent provisions were brought in, so that persons committing such inhuman crimes on married women should not escape, as evidence of a direct nature is not readily available except of the circumstantial kind. Hence it is that interpretation which suppresses the mischief, subserves the objective and advances the remedy, which would be acceptable. The objective is that men committing such crimes should not escape punishment. Hence stringent provisions were brought in by shifting the burden onto the accused by bringing in the deemed clause. As aforesaid, the definition of "dowry" was amended with effect from 19-11-1986, to include the period even after the marriage.

16. The offence alleged against the appellants is under Section 304-B IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the 1961 Act. It was argued on behalf of the appellants that mere demand of scooter or fridge would not be a demand for dowry. We find from the evidence on record that within a few days after the marriage, the deceased was tortured, maltreated and harassed for not bringing the aforesaid articles in marriage. Hence the demand is in connection with marriage. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the 1961 Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the appellant seeks, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the 1961 Act and the Indian Penal Code. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. This leads to the inference, when persistent demands for TV and scooter are made from the bride after marriage or from her parents, it would constitute to be in connection with the marriage and it would be a case of demand of dowry within the meaning of Section 304-B IPC. It is not always necessary that there be any agreement for dowry."

In Baljinder Kaur Versus State of Punjab (2015) 2 Supreme Court Cases 629, in para 23 held as under.

"23. There is no evidence showing any persistent dowry demand or the conduct of the appellant subjecting Sharanjit Kaur to cruelty or harassment for or in connection with dowry. About twenty days prior to the occurrence, when Sharanjit Kaur went to her father's house, she only generally stated about the dowry demand. She had not specifically stated about the demand of dowry by the appellant. In their evidence PWs 4 and 5 have stated that on 25.8.1997, they went to the house of Pritam Singh in village Burj Naklian, all the accused except appellant-Baljinder Kaur were in the house. After the alleged demand of gold karra two months after the marriage, Sharanjit Kaur went to her house, again came back to the marital house and again went to her father's house and again came back to the marital house. In our considered view, the alleged demand of gold karra about two months after the marriage cannot be said to constitute a proximate live link with the death of deceased Sharanjit Kaur and the conviction of the appellant under Section 304-B IPC cannot be sustained."

32. In the instant case, trial Court finding is that there was an additional demand of dowry after the marriage. Section 3 & 4 of the Dowry Prohibition Act clearly provide punishment for giving, taking and demanding of dowry. If the statement of the prosecution witnesses is compared with the finding of the trial Court and also with the legal provisions, it emerge out that all the essential ingredients to constitute the offence under section 3 & 4 of the Dowry Prohibition Act are proved by the prosecution. Death of the deceased was due to burn injuries received by her within seven years of her marriage. There was persistent demand of dowry made by the accused side. Not only this fact, P.W.1 had given his motorcycle with the hope that now the accused side will be satisfied and will not make any demand in future.

33. Submission of the learned counsel for the respondents is also that a motorcycle and Rs.1 lac was being demanded by the accused-persons. In the considered opinion of this Court, the nature of the demand could not be connected with the appellant no.2 Ram Chandra Maurya, who is the father of the husband of the deceased and was aged about 65 years at the time of the said offence. He would not be benefited in any way with the said demand. The amount said to have been demanded would only be utilized by the husband and the motorcycle which was also being demanded would only be used by the husband. The appellant no. 2, father of appellant no.1 would not be the beneficiary in any manner with the said demand. If there is no proximate live link of the death of the deceased and the dowry demand with the appellant no.2, then merely on this basis that he is the father of the husband of the deceased, he could not be made responsible and punished for the offence under section 498-A, 304-B IPC and 3/4 Dowry Prohibition Act.

34. Thus after careful analysis made hereinabove, I am of the view that appellant no.2, who is the father of the husband of the deceased, could not be attributed with the role of demand of additional dowry in form of Rs.1 lac for business purpose and a motorcycle.

35. So far as the role attributed to the accused-appellant no.1 Chandra Bhan Maurya, who is the husband of the deceased, is concerned, there is proximate live link of the dowry demand and harassment & cruelty extended by him to the deceased. With the death of the deceased, he was the only person who would be benefited with the demand of motorcycle and Rs.1 lac. Therefore, cruelty and harassment extended to the deceased could be attributed only to the accused-appellant no.1 Chandra Bhan Maurya. It has come in the evidence that the mother-in-law, who had not faced the trial, was continuously causing cruelty to the deceased. She used to cause burn injuries to the deceased by applying heated plier / tongs (chimta) on the parts of the body of the deceased. There is sufficient material available on record to show that soon before her death, the victim was subjected to cruelty and harassment by her husband - the appellant no.1 in connection with the demand of additional dowry. The death of the deceased was not natural or accidental, but death occurred otherwise than under normal circumstances. On applying the proximity test against the appellant no.1 Chandra Bhan Maurya, presumption under section 113-B of the Evidence Act could be raised in the matter. The trial Court finding regarding guilt of the accused-appellant no.1 Chandra Bhan Maurya is in accordance with law. There is no infirmity or illegality in the finding recorded by the trial Court. The dying declaration relied upon by the accused-appellants is a suspicious document and is not safe to place reliance and the accused-appellant no.1 could not be exonerated from the charge levelled against him on the basis of said dying declaration. The cruelty caused by the accused-appellant no.1 could not be termed as remote cause and it remain continued till the date of offence. The view taken by this Court also find supports from the evidence that parents of the deceased were making continuous efforts to satisfy and settle the demand.

36. Thus, on the basis of analysis made here-in-above, this Court is of the view that the trial Court finding regarding guilt of the accused-appellant no.1 Chandra Bhan Maurya for the offence under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act is not liable to be interfered with.

37. So far as the sentence imposed upon the accused appellant no.1 Chandra Bhan Maurya is concerned, this Court is also of the view that no interference is required regarding sentence imposed upon him under section 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, but the trial Court finding regarding imposition of fine upon accused-appellant no.1 Chandra Bhan Maurya for the offence under section 304-B IPC is liable to be modified and is accordingly modified by removing the fine, as no fine can be imposed for the offence punishable under section 304-B IPC. The legislature has not prescribed imposition of fine under this Section. The court can award only that sentence, which is prescribed in the Statute and if in any Statute, no fine is prescribed for any offence, then no fine can be imposed by any Court. It is very unfortunate that such glaring mistake has been committed by the trial Court in imposing the fine for the offence under section 304-B IPC.

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 Ram Chandra Maurya by the trial Court under Sections 498-A, 304-B IPC and Section 3/4 of the Dowry Prohibition Act is liable to be set-aside and is hereby set-aside. Appellant no.2 Ram Chandra Maurya is acquitted from the charges under Sections 498-A, 304-B IPC and Section 3/4 of the Dowry Prohibition Act. Appellant Ram Chandra Maurya is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability.

40. Conviction of accused-appellant no.1 Chandra Bhan Maurya held by the trial Court under Sections 498-A, 304-B IPC and Section 3/4 of the Dowry Prohibition Act is affirmed, but the sentence of fine imposed by the trial Court for the offence under section 304-B IPC is set-aside confirming the sentence of imprisonment imposed upon accused-appellant no.1 Chandra Bhan Maurya for the offence under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act.

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 : 16th September, 2015.

ss