Santoo @ Santosh Kumar vs State Of U.P.
2016 Latest Caselaw 2146 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 25
 
Case :- CRIMINAL APPEAL No. - 446 of 1995
 
Appellant :- Santoo @ Santosh Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.S.Rastogi,A.K.Singh Somvanshi,Nisha Srivastava
 
Counsel for Respondent :- Govt. Advocate
 
                                                                *****
 

 
Hon'ble Aditya Nath Mittal,J.

The challenge in this appeal is the judgment and order dated 08.08.1995, passed by the Ist Additional Sessions Judge, Kheri in Session Trial No.219 of 1990, under Sections 498-A, 306 & 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act, relating to Case Crime No.66 of 1988, Police Station-Maigalganj, District-Kheri, by which, the appellant has been convicted for the offence punishable under Sections 498-A, 306 & 304 -B I.P.C.

The facts in brief of the case are that the complainant, Jagdish, lodged the First Information Report on 29.07.1988 stating therein that his daughter was married to Santosh @ Santoo (appellant) and he had given the dowry in the marriage, but the appellant along with his family members continued to torture his daughter and on 29.07.1988 they again castigated his daughter, abused and quarreled with her, due to which at about 12:00 noon she committed suicide by pouring Kerosene oil upon her. Upon her alarm, her sister-in-law (Jethani) Smt. Reshma also raised alarm and tried to defuse the fire. She was brought to Aurangabad Hospital, but could not survive. Upon which the case at Case Crime No.66 of 1988 was registered. The inquest report was also prepared on the same day and she was subjected to post-mortem also. After investigation the charge-sheet was filed against four accused persons including the appellant and they were charged for the offence punishable under Sections 498-A, 306 and 304-B I.P.C. The appellant denied the charge and claimed trial. The prosecution has examined Jagdish the complainant as PW-1, who has corroborated the contents of the First Information Report and has stated that the appellant used to torture and caused cruelty to her daughter in connection with demand of dowry. On the date of incident, she poured the Kerosene oil upon herself and inflicted fire. Upon the information he also went on the spot and at that time she was alive. She was brought to hospital but she had died. He has further stated that she was tortured for demand of dowry. He has further stated that he got scribed the First Information Report by Ved Prakash Shukla and put his thumb impression. The First Information Report has been proved as Ext. Ka.1.

Smt. Reshma PW-2, who is sister-in-law (Jethani) of the deceased, has also supported the statement of the complainant stating that she resided alongwith the deceased and all the accused persons castigated, abused and quarrelled with the deceased for demand of dowry and on the date of incident she was also beaten, due to which, she has poured the Kerosene oil upon herself and caused fire. She had also narrated the incident to the complainant.

Head Constable Ram Jeewan Yadav has been examined as PW-3, who has proved the Chik F.I.R as Ext. Ka-2 and entry in the G.D. as Ext. Ka-3.

Dr. A.A. Khan has proved the post-mortem of the deceased. Constable Ram Singh PW-5 has stated that after inquest the body was brought for post-mortem. Dhoom Singh Tomar PW-6 is the Investigating Officer, who has proved the investigation of the case and has stated that he had recorded the statements of the witnesses and he has also visited the place of incident. The charge-sheet has been proved as Ext. Ka-5 (in should be Ka-4).

Shyam Lal Verma PW-7 has inspected the dead body of the deceased and got the inquest report and necessary documents prepared, which have been proved as Ext. Ka-6, Ka-7 and Ka-8, Ka-9 & Ka-10 (it should be Ka-5 to Ka-9). The siteplan has been proved as Ext.Ka-11 (it should be Ka-10) and the memo of recovery of Match box, one quilt and one gallon containing Kerosene oil has been proved as Ext. Ka-12 (it should be Ka-11).

After the prosecution evidence, the statement of the accused persons was recorded. The appellant has denied the evidence and has stated in his statement that there was enmity with Smt. Reshma because his maternal grand mother (Nani) had sold the land in the name of his brother Laxmi Dhar, in which, Anant Ram and Smt. Reshma claimed their share regarding which the dispute is going on before the Consolidation Court. His Mausi had also executed the sale-deed in the name of Laxmi Dhar and Smt. Rani. Upon which, Smt. Reshma is also contesting. There was election enmity with Ved Prakash Shukla, therefore, a false case has been lodged against the appellant.

In the defence evidence Sri Gyanendra Kishore DW-1 has been examined, who has stated that Santoo and Laxmi Dhar were living separately since long and the deceased had died during cooking of the food. It has also been stated that there was no question of demand of any dowry because Jagdish (complainant) was the old relative of Santoo (appellant). The deceased has never told about the torture due to dowry. He has further stated about the litigation regarding the property.

After appreciating the evidence on record, learned trial court found guilty the appellant for the offence punishable under Sections 498-A, 306 & 304-B I.P.C., while other accused persons, namely, Laxmi Dhar, Smt. Rani were acquitted and the fourth accused, namely, Smt. Sarna Devi had died during the course of trial.

Learned counsel for the appellant has submitted that the presumption under Section 113-A of the Indian Evidence Act has been wrongly drawn because demand of dowry was not proved. It has also been submitted that the appellant was not convicted under Section 3/4 of Dowry Prohibition Act and it was not proved that she was subjected to cruelty. It has also been submitted that it was an accidental fire, which is proved by the fact that PW-4 Dr. A.A. Khan in his statement has specifically stated that he had not found any odor of Kerosene oil either on the body or clothes of the deceased. It has also been submitted that the mud from the spot has not been collected by the police nor it has been sent for chemical examination, so as to establish the alleged Kerosene oil on the spot. Therefore, the prosecution case is not proved. Jagdish PW-1 is not an eye witness and he has stated on the basis of statement of Smt. Reshma PW-2 with whom there is admitted enmity, which has been admitted by Jagdish PW-1. It has also been submitted that it was not a suicidal death and Smt. Reshma PW-2 has also not said anything about demand of dowry. There was no direct demand or evidence of dowry because PW-1 has admitted that demand was with the deceased who used to say her mother while mother of the deceased has not been examined in court. Smt. Reshma PW-2 has admitted that because the deceased was not having any issue/ child, therefore, she remained sad. PW-2 Smt. Reshma has not seen pouring the Kerosene oil neither she has seen the quarrel. It has also been submitted that the statement of DW-1 Gyanendra Kishore has been wrongly discarded.

In support of his submission, learned counsel for the appellant has relied upon the case Sunil Bajaj vs. State of M.P. reported in 2002 Supreme Court Cases (Cri.) 608, in which, Hon'ble the Supreme Court has held as under:-

"We have given our attention and consideration tot he submissions made by the learned counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. But in cases where both the courts concurrently recorded a finding that the accused was guilty or an offence in the absence of evidence satisfying the necessary ingredients of an offence, in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence under Section 304-B I.P.C., the following essentials must be satisfied:

(1) the death of a woman must have ben caused y burns or bodily injury or otherwise than under normal circumstances;

(2) such death must have occurred within 7 years of her marriage;

(3) soon before her death, he woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;

(4) such cruelty or harassment must be for or in connection with demand of dowry.

It is only when the aforementioned ingredients are established by acceptable evidence such death shall be called dowry death and such husband or his relative shall be deemed to have caused her death. It may be noticed that punishment for the offence of dowry death under Section 304-B is imprisonment of not less than 7 years, which may extend to imprisonment for life. Unlike under Section 498-A IPC, husband or relative of husband of a woman subjecting her to cruelty shall be liable for imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304-B IPC an exception is made by deeming provision as to nature of death as dowry death and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution. In the case on hand, the learned counsel for the appellant could not dispute that the first two ingredients mentioned above are satisfied."

Reliance has also been placed on Harjit Singh vs. State of Punjab reported in 2006 (54) ACC 282 (Supreme Court), in which the Hon'ble Supreme Court has held as under:-

"It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Indian Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof. Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the court unless the materials on record are such which would establish the said charge against the accused.

Before invoking the provisions of Section 306 IPC, it is necessary to establish that : (i) the deceased committed suicide, and (ii) she had been subjected to cruelty within the meaning of Section 498-A IPC.

Only in the event those facts are established, a presumption in terms of Section 113-A of the Indian Evidence Act could be raised. In the instant case, the prosecution has not been able to prove that the deceased was subjected to cruelty within the meaning of Section 498-A IPC. No case that the deceased committed suicide was also made out."

Reliance has also been placed on Changala Gaya Sankara Rao vs. State of A.P. reported in 1997 (1) Crimes 122, in which in para-9 and 11 it has been held:-

"9. In the case on hand the learned Sessions Judge relied upon Ex. P7. He did not give cogent reasons as to why he has given much importance to Ex. P7. However, in view of the ratio of the above judgments, it should be held that the dying declarations including Ex. P7 cannot be taken into consideration, in view of their varying contents. On this aspect ever the oral evidence does not support the prosecution case. PW 1 is a neighbour. She stated that 1/2 years ago at 6.00 p.m. she was in her house and she heard the cries of the deceased saying 'Amma', 'Amma'. Then she went into the house. She found the deceased on fire. She covered her body with a door curtain and she was taken to the hospital in an auto. In the cross- examination she stated that she asked the deceased as to what happened. The deceased replied that due to stove she caught fire. PW 1 did not see any kerosene bottle or match-stick in the room where the deceased was lying i.e. dining hall. This witness was sought to be declared as hostile, but it was refused. This evidence is supported by the evidence of PW 16 who is the Investigating Officer in this case. He clearly stated that the stove they found was in working condition. There were no traces of kerosene in the room etc. If really the accused had poured kerosene on the person of the deceased and had set fire, there should be kerosene on the floor of the kitchen room where the deceased was lying after the accident. It is further stated that immediately after the accident the deceased was shifted in an auto to the Hospital. In such a case the body and clothes of the deceased should be smelling kerosene. However, in Ex. P8 the Doctor opined that there is no smell of kerosene. This indicates that no kerosene is poured on the body of the deceased and no force is used against the deceased at the time of the incident. Further, PW 8 the Doctor states that there were many relations of the deceased in the hospital at the time of recording the dying declarations. May be the contents of Ex. P7 were the out-come of the advice given by the relations. Therefore, the circumstances in this case are more in favour of the accidental death rather than suicidal or homicidal death.

11. I have already held that the circumstances in this case are more in favour of the accidental death. Therefore, the accused cannot be held responsible for the death of the deceased. Further, a mere beating on one occasion is not sufficient to constitute cruelty under Section 498-A I.P.C."

Reliance has also been placed on Assoo vs. State of Madhya Pradesh reported in (2011) 4 Supreme Court Cases 448, in which Hon'ble the Supreme Court has held as under:-

"We are of the opinion that besides the evidence of PWs 1 and 2, which itself is extremely shaky, there is no other statement to show any misbehaviour or demands for dowry. There is also no indication as to when these demands had been made. It must be noted that every quarrel between a husband and wife which results in a suicide cannot be taken as an abetment by the husband and the standard of a reasonable and practical woman as compared to a headstrong and over sensitive one, has to be applied. Taking the evidence against the appellant, as it is, we find that no abetment of suicide is made out."

Reliance has also been placed on Praveen Pradhan vs. State of Utaranchal and another reported in (2012) 9 Supreme Court Cases 734, in which, Hon'ble the Supreme Court has held as under:-

"The offence of abetment by instigation depends upon the intention of the person who abets and not upon the act which is done by the person who has abetted. The abetment may be by instigation, conspiracy or intentional aid as provided under Section 107 IPC. However, the words uttered in a fit of anger or omission without any intention cannot be termed as instigation."

Learned Additional Government Advocate has defended the impugned judgment and has submitted that there was specific demand of dowry and there is evidence on record to establish that the deceased was tortured for demand of dowry, therefore, she committed suicide.

The main questions for consideration are as follows:-

(i) Whether the alleged demand of dowry has been proved by the prosecution.

(ii) Whether she was tortured and caused cruelty in connection with demand of dowry.

(iii) Whether the deceased had committed suicide due to torture and cruelty in relation to demand of dowry by pouring Kerosene oil upon herself.

The prosecution has examined two witnesses of fact, namely, Jagdish the complainant and Smt. Reshma, who is Jethani of the deceased. Jagdish PW-1 has admitted in his statement that his daughter was tortured for demand of dowry and on the date of incident she poured the Kerosene oil upon herself by which she died.

As far as the demand of dowry is concerned, there is no specific item mentioned in the First Information Report. The complainant in his cross-examination has admitted that the appellant or his family members never came to his house for demand of dowry. He has further stated that they used to ask for dowry from the deceased, who used to tell her mother (wife of the complainant) and his wife used to tell him regarding the demand of dowry. He has further admitted that the dowry was not demanded from him directly. In his cross-examination, it has also come that wife of the complainant i.e. mother of the deceased is alive. In the present case, the mother of the deceased has not been examined in the court. In this regard, learned counsel for the appellant has also relied upon the Division Bench judgment of this Court rendered in Criminal Appeal No.44 of 1980; Ram Vinod vs. State of U.P., in which, the Division Bench of this Court has held as under:-

"In the above discussed dying declaration (Ext. Ka 4) it is alleged that the deceased Smt. Laxmi Devi had stated that her husband had poured kerosene oil on her body and then burnt her and further that he had done so on the instigation of is parents. This dying declaration was given on 26.10.1977 at about 11 p.m., but it is really curious to note that she did not say even a single word in this regard to implicate her husband with the crime in question to her parents whom she met much before that, i.e. in the evening on 25th October, 1977, as it clear from the statement of Salik Ram (P.W.3). He has clearly deposed that when he alongwith his wife, met Smt. Laxmi Devi in the kitchen where she was lying in burnt state on bare cot he had asked her as to how it had happened then she did not tell anything in this regard; she had simply hinted; she was feeling pain. He has deposed that he and his wife had started weeping and were sitting by the side of the cot on which Smt. Laxmi Devi was lying. He has further deposed that in the hospital also he had talked with his daughter Smt. Laxmi Devi but she did not tell him that her husband had burnt her. He also deposed that in the hospital his wife had also talked with the daughter Smt. Laxmi Devi, but at that time he was not there. At this juncture it is pertinent to note that the wife of Salik Ram (P.W. 3), though alive, has not been examined by the prosecution to show as to what had transpired between her and deceased Laxmi Devi. Thus, this aspect also does not help the prosecution, even if the deceased head told her mother that she had been burnt by her husband accused Ram Vinod. Obviously, adverse inference would be drawn against the prosecution in this regard."

In this connection, learned counsel for the appellant has also placed reliance on the case State of Rajasthan vs. Teg Bahadur and others reported in 2005 Supreme Court Cases (Cri.) 218, in which in Hon'ble the Supreme Court has held as under:-

"On a careful scrutiny of the statements of the aforesaid witnesses, it is seen that witnesses have given different statements regarding demand of dowry. According to him, with respect to dowry, dispute was raised at the time of marriage. According to Om Prakash, when Suman returned to her parents' house, she complained about demand of dowry by the in-laws. There is no corroboration about the statement of Om Prakash by the statement of his wife Smt. Hira Bai. Under these circumstances, we are of the opinion, that there is lack of evidence to prove the demand of dowry and that the evidence led by the prosecution bristle with discrepancies and contradictions. On the basis of the evidence, it could not be treated to have been proved that actually the accused had made a demand of dowry and that was made soon before the death and due to this, the deceased was harassed."

In the aforesaid judgments, the Hon'ble Apex Court has held that because there was no corroboration about the statement of the witness, therefore, there is lack of evidence to prove the demand of dowry. In the present case also the wife of the complainant, Jagdish PW-1, has not been examined and admittedly there was no direct demand of dowry from the complainant and the deceased had also not told anything about the demand of dowry to him. Therefore, the mother of the deceased was a relevant witness and in these circumstances the alleged demand of dowry, as stated by the complainant Jagdish PW-1, is not reliable.

As far as the statement of Smt. Reshma PW-2 is concerned, although this witness is the close relative of the deceased as well as the appellant but it is admitted fact that there is some property dispute between these parties. She has stated in her cross-examination that her husband are three brothers, namely, Anant Ram, Laxmi Dhar and Santosh & Santoo, who are residing separately for the last nineteen years and there has been a partition regarding the property amongst these three brothers. This statement is contrary to the examination-in-chief in which she has stated that her husband are three brothers and all are residing in one house. This witness has admitted the fact of property dispute amongst three brothers. This witness has specifically admitted in her statement that she had not seen the deceased inflicting fire to herself and she has also not seen her pouring the Kerosene oil upon herself.

As far as demand of dowry is concerned, she has also stated in her cross-examination that regarding demand of dowry she does not know anything and it must be in the knowledge of her mother-in-law, who might have demanded the dowry.

In these circumstances, there was no direct demand of dowry from the complainant, Jagdish PW-1 and Smt. Reshma PW-2 has further stated in her cross-examination that she does not know anything about the demand of dowry. Therefore, it is not proved beyond reasonable doubt that there was demand of dowry.

As far as the alleged torture and cruelty is concerned, Jagdish PW-1 was not an eye witness of the alleged cruelty and he has lodged the report at the instance of Smt. Reshma PW-2. Smt. Reshma PW-2 has admitted in her cross-examination that the deceased did not use to comply the directions of her Jethani (Rani). Therefore, there was quarrel between the two and in the same continuation she has admitted that she had not seen the deceased inflicting fire or pouring the Kerosene oil upon her.

Certainly, if any person will pour the Kerosene oil upon himself and inflict the fire, then the adore of Kerosene oil is must upon the clothes and body of the deceased. In this regard the statement of Dr. A.A. Khan PW-4 is relevant, who has conducted the post-mortem examination of the deceased and this witness has specifically stated in his cross-examination that neither he had found any adore of Kerosene on the dead body nor on the clothes. In view of this specific statement of Dr. A.A. Khan, who had conducted the post-mortem examination, the theory of pouring Kerosene oil and inflicting fire becomes doubtful and by this statement of doctor the possibility cannot be ruled out that it might be an accidental fire.

From the aforesaid discussion, neither the demand of dowry is proved beyond reasonable doubt nor the alleged cruelty and torture is proved beyond reasonable doubt and mere particularly the absence of adore of Kerosene oil on the body or the clothes further fulsify the case of the prosecution. It has also come in the evidence that at the time of incident the accused persons were present on the spot at the time of lodging of the complaint and the victim was brought to the hospital under collaboration of these persons. Had the appellant and his family members caused the dowry death, it was probable that they might have tried to run away from the spot, but it has not been done.

In Changala Gaya Sankara Rao vs. State of A.P. (supra), the Andhra Pradesh High Court has decided the similar case where there was no smell of Kerosene oil in the clothes and body of the deceased, therefore, the case of the prosecution was week and has further held that the circumstances are mere in favour of the accidental fire rather suicidal or homicidal death.

Certainly, the presumption under Section 113-A of Indian Evidence Act can be drawn only when the main ingredients of Section 113-A of Indian Evidence Act are satisfied. Section 113-A of Indian Evidence Act provides as under:-

"113-A. Presumption as to abetment of suicide by a married woman.

When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

According to above provisions, the husband or relative of the husband should have subjected the deceased to cruelty only then it can be presumed that the suicide has been abetted by her husband or relatives of her husband. In the present case, there is no direct evidence of alleged cruelty and it is not proved beyond reasonable doubt that the deceased was subjected to cruelty by her husband or relatives of husband. Therefore, in my opinion, the presumption under Section 113-A of Indian Evidence Act is not attracted. Although the complainant in his statement has stated that his daughter has told him and his wife about the demand of dowry and the cruel attitude, but in the cross-examination, he has explained and has stated that neither the accused persons came to his house for demand of dowry nor the dowry was demanded from him directly, but the deceased used to say it to her mother and her mother used to tell him. In these circumstances, the alleged demand of dowry was not directly within the knowledge of the complainant. Moreover, the complainant has not stated in his statement that regarding the alleged demand of dowry as well as cruel treatment, nor he himself had complained the accused persons or to the public authorities. In this case, neither there was any Panchayat nor any such previous incident which goes to show that there was some dispute regarding demand of dowry.

It is relevant to mention that the Investigating Officer has not collected mud from the spot which could prove the smell of Kerosene oil on the mud or the earth, but in view of the specific statement of Dr. A.A. Khan PW-4, the said story of pouring Kerosene oil committing suicide is absolutely become unreliable. Jagdish PW-1 was not an eye witness of the incident and he has stated on the basis of statement of Smt. Reshma PW-2. There is admitted enmity between Smt. Reshma PW-2 and the appellant and there are so many material contradictions in her statement as discussed above and more particularly the fact of residing in one house as well as admitting in the cross-examination that she neither saw the deceased pouring the Kerosene oil nor inflicting fire. As regards the demand of dowry, she has also shown her negligence and has stated that this fact must be in the knowledge of her mother-in-law and she does not know anything about it. Moreover, PW-1 Jagdish has also admitted in his statement that he does not know as to what was demanded in dowry. Normally, in the dowry either cash or some jewellery or valuable things are demanded and merely saying that dowry was demanded, is not sufficient to prove the guilt either for the offence punishable under Section 304-B I.P.C. or for the offence punishable under Section 498-A I.P.C.

In the evidence, it has also come that there was no issue to the deceased, therefore, she remained sad and on the date of incident there was dispute between the accused Smt. Rani and her. She has not stated any dispute, quarrel or torture by the appellant. Therefore, there is no evidence of cruelty soon before the death against the appellant.

For the peculiar facts and circumstances mentioned above, the finding of learned trial court are perverse and against the evidence on record. In my opinion, the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt. The conduct of the appellant as well as his family members has also been such which creates reasonable doubt about the incident because they had not tried to escape away from the place of occurrence.

After taking into consideration the evidence on record collectively, I am of the view that the prosecution has failed to prove his case beyond reasonable doubt. Accordingly, the appeal is liable to be allowed.

The appeal is allowed. The conviction and sentence awarded by the trial court is hereby set aside and the appellant is acquitted for the said offences.

Office is directed to send the copy of this order alongwith lower court record to the court concerned at an early date.

Order Date :- 03.05.2016

Suresh/