Amrit Lal And Others. vs State Of U.P.
2016 Latest Caselaw 6261 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
							RESERVED ON 14.09.2016
 
							DELIVERED ON 29.09.2016
 
									(AFR)
 

 

 
Court No. - 20
 

 
Case :- CRIMINAL APPEAL No. - 537 of 1994
 

 
Appellant :- Amrit Lal And Others.
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rajeev Saxena,Amit Srivastava,Neeraj Sahu,S.H.  Ibrahim
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Mrs. Ranjana Pandya,J.

1. Challenge in this appeal is to the judgment and order dated 02.12.1994 passed by the Special Judge, Unnao in ST No. 386 of 1991 (State Vs. Amrit Lal and others) under Sections 498-A, 304 B IPC, Police Station Morawana, District Unnao by which accused Bachchu Lal and Saroj were acquitted for the charges levelled against them. Whereas accused Amrit Lal, Smt. Rajrani and Chilbil were found guilty and convicted for two years' rigorous imprisonment and fine of Rs.1,000/- each under Section 498-A IPC and 10 years' rigorous imprisonment each under Section 304-B IPC with default stipulation.

2. Brief facts of the case are that informant Shiv Kumari lodged a written report on 14.02.1990 stating that her daughter Rakhi was married to Chilbil, son of accused Amrit Lal. She has given sufficient dowry in the marriage. On 11.01.1990 when the deceased came to her maternal house, she told to her parents that she was compelled to bring Rs.10,000/-, failing which she would be murdered. She also told her mother that the demand for one watch and a ring was also made. On 11.02.1990, the girl was taken away by her father-in-law. On 13.02.1990 at 4:00 PM all the in-laws of the deceased closed the door of room, sprinkled kerosene oil on her and done her to death. Husband of the deceased went to Kanpur, met Phool Chand Gupta and requested him to save him. Hence, the report was lodged. On the basis of this written report PW-6, Brij Kishore Bajpai scribed chik report which was proved by this witness as Ext. Ka-2. Further this witness proved the copy of GD as Ext. Ka-3. PW-5, Constable Ram Dularey carried corpse of the deceased for post-mortem. The Investigating Officer was not produced in evidence. However, four witnesses of fact were produced by the prosecution.

3. PW-1 is Shiv Kumari who proved the written report, which was marked as Ext. Ka-1.

4. PW-2 is Munnu Singh, who is neighbour of the informant. PW-3 is Phool Chand, cousin of the deceased and PW-4 is Rajjan Babu Gupta, brother of the deceased and son of the informant. Since the defence admitted the genuineness of the papers, hence the report of SI was marked as Ext. Ka-5, Ka-6, Ka-7. The inquest report was exhibited as Ka-8. The copy of GD entry relating to the death of deceased made on 13.02.1990 was marked as Ext. Ka-9. The letter by RI was marked as Ext. Ka-10. Photo of corpse was marked as Ext. Ka-11 and the post-mortem report was marked as Ext. Ka-12. After the prosecution evidence was closed, the statement of accused was recorded under Section 313 Cr.P.C. The surviving appellant Chilbil denied the occurrence and stated that at the time of occurrence he had gone to Kanpur to purchase clothes. Accused DW-1 was examined. He stated that the deceased committed suicide. He further stated that surviving appellant Chilbil was not present at the scene of the occurrence.

5. After hearing the arguments advanced by the parties and going through the material available on record, the learned Trial Court convicted and sentenced the accused appellants as narrated in para - 1 of the judgment.

6. Feeling aggrieved with the impugned judgment and order of the learned Trial Court, the convicted accused appellants, namely, Chilbil, Rajrani and Amrit Lal preferred appeal before this Court. Smt. Rajrani and Amrit Lal died during the pendency of the appeal, hence the appeal in their context has abated.

7. I have heard the learned counsel for accused appellants, learned AGA appearing for the State and perused the Trial Court record.

8. The learned counsel for the accused appellants has submitted that the judgment and order under appeal is bad in the eye of law and is, therefore, liable to be set aside.

9. Learned counsel for the accused appellants has further submitted that prosecution has miserably failed to prove the ingredients of Section 498-A IPC and Section 304-B IPC and the learned Trial Court has committed grave illegality in convicting the accused appellants.

10. Per contra, the learned AGA appearing for the State supported the impugned judgment and order under appeal and has submitted that the appeal has no merit and is liable to be set aside. He has also submitted that the conviction is based on evidence available on record and the appeal merits rejection.

11. Then, the learned counsel for accused appellants has submitted that there is inordinate delay in lodging the FIR, hence the prosecution case becomes doubtful.

12. Perusal of the chik report shows that the occurrence in question has taken place on 13.02.1990 at about 4:00 PM, whereas the report was lodged on the next day at 16:40 hours, the place of occurrence being five kilometers away from the police station.

13. In this regard, the learned AGA appearing for the State has submitted that the mother of the deceased came to her house and when she came to know about the incident, then, she lodged the report, hence the alleged delay in lodging the report has been satisfactorily explained. Thus, the delay in lodging the first information report is not fatal for the prosecution.

14. In the aforesaid backdrop the statements of the prosecution witnesses has to be referred.

15. PW-1 is Shiv Kumari, the informant, who has stated that Phool Chand told her that some mishappening had occurred with her daughter. In cross-examination she has admitted that last rites of the deceased were performed by the accused persons at Ganga Ghat in the presence of her husband and son. Munnu Singh, PW-2, has specifically stated in this regard that at 07:00 PM he had got the news of the incident. The inquest of deceased was prepared in the presence of this witness. Further, he has stated that when he went to the matrimonial house of the deceased, the parents and family members of the deceased also accompanied him. The informant was present with the dead body of the deceased. Phool Chand is cousin of the deceased who has stated that he went to the police station along with the dead body. Even the real brother of the deceased, PW-4 namely Rajjan Babu stated that he was informed by his brother-in-law on 14.02.1990 about the incident. Thus, it is clear that the mother of the deceased had come to know about the incident. Even if she was busy in the last rites of the deceased, which were performed, what prevented her from lodging the report, is not clear from the record. Thus, there is a delay in lodging the FIR, which casts a shadow of doubt on the prosecution case.

16. Before I proceed to evaluate the evidence on record led by the prosecution in support of the charges framed against the accused, it is necessary to examine the law relating to 'dowry death'. The Hon'ble Supreme Court has highlighted all the aspects of law relating to 'dowry demand' and 'dowry death' in recent case of Prem Kanwar Vs. State of Rajasthan- 2009(1) JT 197. Paras 6 to 12 of the reports are as under:-

"6. In order to attract Section 304-B IPC, the following ingredients are to be satisfied:

i) The death of a woman must have been caused by burns or bodily injury or otherwise that under normal circumstances

ii) Such death must have been occurred within 7 years of the marriage;

iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

iv) Such cruelty or harassment must be in connection with the demand of dowry.

Section 304-B and Section 498-A reads as follows:-

"304-B Dowry death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than normal circumstances within Seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

Explanation- For the purpose of this sub-section, 'dowry' shall have same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

498-A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation- For the purpose of this section cruelty means-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman: where harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

7. The term "dowry" has been defined in Section 2 of the Dowry Prohibition Act, 1961 (in short "dowry Act") as under:-

"Section 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 of the marriage; or

(b) by the parents of either party to a marriage or to any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mehr in the case of person whom the Muslim Personal Law (Shariat) applies.

Explanation I- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section unless they are made as consideration for the marriage of the said parties.

Explanation II- The expression "valuable security" has the same meaning in Section 30 of the Indian Penal Code(45 of 1861).

8. Explanation of Section 304-B refers to "dowry" as having the same meaning as in section 2 of the Act', the question "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 herein, and in the absence of any such evidence it would not constitute to be 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. This position was highlighted in Pawan Kumar and others vs State of Haryana (1998 (3) SCC 309).

9. The offence alleged against the accused is under Section 304-B IPC which makes "demand of dowry" itself punishable. Demand neither conceives no 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 Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry death and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence that could be either direct on indirect. Is is significant that section 4 of the 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 work "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seek, 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 an Section 4 which deals with a penalty for demanding dowry; under the Act and the IPC. His makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.

10. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Sections 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by the dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry death. Section 113-B as follows:-

"113-B: Presumption as to dowry death- When the question is whether as person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such persons has caused the dowry death.

Explanation- For the purposes of this section' dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 196)."

11. The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on "Dowry Deaths and Law Reform" Keeping in view the impediment in the per-existing law in securing evidence to prove dowry related death, legislature through it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of 'Dowry death; in section 304-B IPC and the wording in the presumptive section 113-B of the Evidence Act, one of the essential ingredients, amongst other, in both the provisions in that the concerned woman must have been "soon before her death" subjected to cruelty or harassment for or in connection with demand of dowry" Presumption under section 113-B is a presumption of law. On proof of the essentials mentioned there in, it becomes obligatory on the Court to raises a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:

(1) The question before the Court must be whether the accused committed the dowry death of a woman (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.

12. A conjoint of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be materials to show that soon before the death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances." The expression 'soon before' is very relevant where Section 113-B if the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and would depend upon the circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in section 114-B Illustration (a) of the Evidence Act is relevant. It is lays down that Court may presume that a man who is in the possession of goods 'soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not be disturb mental equilibrium of the woman concerned, it would be of no consequence."

17. Now, I proceed to consider the four ingredients which are essential to establish a case for the offence punishable under section 304-B IPC.

18. As regards the ingredient No. (i) is concerned, a perusal of the inquest report Ext. Ka-8 and post-mortem report Ext. Ka-12 would show that the whole body of the deceased was burnt and smell of kerosene oil was present on the body of deceased. A perusal of the post-mortem report reveals that the doctor did not find any ante-mortem injuries on the body of the deceased at the time of autopsy. The prosecution witnesses have also proved that the deceased died unnatural death. Thus, the ingredient No. (i) stands proved. As far as ingredient No. (ii) is concerned, there is no quarrel on the fact that unnatural death of the deceased took place in her matrimonial home within seven years of her marriage. Thus, the ingredient No. (ii) also stands established.

19. As far as ingredients No. 3 and 4 are concerned, a perusal of the lower Court record reveals that initially after investigation, the Investigating Officer submitted a final report against all the accused persons. On 04.06.1990 the Court while rejecting the final reports summoned the accused persons to face trial. PW-1, the mother of the victim, has stated that accused demanded a sum of Rs.10,000/- from her son Rajjan Babu. I would like to revert back to the first information report in which it has been stated that demand of Rs.10,000/-, one watch and a ring was made. The first information report is silent as to who demanded the dowry although in the first information report it has been mentioned that all the five accused burnt the deceased to death. PW-1, Shiv Kumari, has stated that her daughter told her that Rs.10,000/- and a ring should be given, otherwise she would not be sent to her matrimonial home. This witness had to undergo the test of cross-examination in which she has admitted that she gave a statement to the Investigating Officer as follows :

"'kknh esa ngst ds ysu&nsu dk dksbZ >xM+k ugha gqvk FkkA eSaus tks ns fn;k Fkk mu yksxksa us og ys fy;k FkkA dqN ekax ugha fd;k FkkA" Further she has admitted that she stated to the investigating officer that "esjh yM+dh us geyksxksa ls viuh lkl llqj tsB tsBkuh ;k vius ifr ds fo:) dksbZ f'kdk;r fdlh fdLe dk ugha fd;k FkkA mlus ngst ekaxus ;k mRihfM+r djus dh dksbZ f'kdk;r ugha fd;k FkkA"

20. She stated that this was a correct statement given by her to the Investigating Officer. A twist came in her statement when she said that dowry was demanded two days prior to the death of the deceased when her father-in-law Amrit Lal came to take her back to her matrimonial home. The real brother of the deceased is Rajjan Babu who has stated that on 12.01.1990 he went to the matrimonial house of his sister where Amrit Lal, Raj Rani, Bachchu, his wife and children demanded Rs.10,000/-, a ring and a watch. This is not in consonance with the statement of PW-1 because as per the statement of PW-1, Shiv Kumari, dowry was demanded for the first time when co-accused Amrit Lal took her back to the matrimonial home. Munnu singh is the neighbour of the deceased. Initially, in the first information report his name was written as the scribe which was scored out and scribe was mentioned to be Pancham. Thus, Munnu Singh, PW-2, contradicting Shiv Kumari, PW-1 and Rajjan Babu, PW-4, has stated that when for the first time the deceased came to her parental house, then, she stated that her in-laws demanded a ring and ten thousand of rupees and she also stated that they would murder her if she does not give them ring and cash. Phool Chand, PW-3, has stated nothing about the alleged demand of dowry.

21. The prosecution witnesses have stated that after the incident, the sole surviving appellant Chilbil went to Kailash Chand and asked Kailash Chand to save him. This is not palatable and digestible in as much as the occurrence is said to have taken place on 13.02.1990 at about 4:00 PM where as there is a GD entry on record bearing Ext. No. Ka-9 dated 13.02.1990 entered at 20:10 hours stating that Kailash Chand Gupta gave an information at the police station about suicidal death of the deceased. It cannot be anticipated that Kailash Chand Gupta who is not shown to be interested in anybody, would go to the police station to get the GD entry done in anticipation of lodging the first information report. This is not a case which was tried for the offence punishable under Section 302 IPC. The prosecution has failed to prove that soon before her death, the deceased was subjected to cruelty and harassment by her husband or any relative of her husband and such cruelty or harassment was in connection with demand of dowry. Thus, neither demand for dowry has been proved beyond reasonable doubt nor the dowry death has been proved beyond the reasonable doubt by the prosecution.

22. I am aware that it is the duty of the accused to bring the facts which are exclusively in their knowledge before the Court as to how the deceased died unnatural death in her matrimonial house. Whereas the offence like murder or dowry death is committed in secrecy inside the house, undoubtedly the initial burden to establish the case would be upon the prosecution but the nature and amount of evidence to be led by it to establish the charge cannot be of the same decree as is required in other cases of circumstantial evidence. The burden would be comparative of a lighter character. In view of Section 106 of the Indian Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution. Perhaps keeping the above factors in mind, the Legislature very intelligently has provided for presumption of "dowry death" and not "dowry murder" or as is commonly spoken in Hindi as "Dahej Hatya".

23. But in the present case since the prosecution has miserably failed to prove the initial primary burden, hence the absence of cogent explanation about the commission of crime could not have led the Trial Court to draw an inference about her dowry death. As such, in absence of proof of ingredients No. (iii) and (iv), the appellants could not have been convicted under Section 498-A and Section 304-B IPC. Although the evidence of DW-1 Ajay Kumar is of no consequence, but the charges levelled against the accused have not been proved, hence the conviction on all counts cannot be sustained and the appeal is liable to be allowed.

24. In view of the facts and circumstances of the case discussed above, the appeal is allowed. The impugned judgment and order is set aside. The appellants are acquitted of the charges levelled upon them.

25. The appellants are on bail. Their bail bonds are cancelled and sureties are discharges. However, the provisions of Section 437-A Cr.P.C. shall be complied with.

26. Let a copy of this judgment be sent to the concerned Court.

Order Date :- 29.09.2016

LBY