Kripa vs State Of U.P.
2017 Latest Caselaw 7451 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 31							A.F.R.
 
Case :- CRIMINAL APPEAL No. - 2020 of 2007
 
Appellant :- Kripa
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- R.N.S. Chauhan
 
Counsel for Respondent :- Government Advocate
 

 
Hon'ble Dinesh Kumar Singh,J.

1. Heard Shri R. N. S. Chauhan, learned counsel for accused-appellant and Shri Masood Alam, learned AGA on behalf of the State and perused the evidence on record carefully.

2. The present appeal has been preferred by the accused-appellant, Kripa, aggrieved by the judgment and order dated 23.08.2007 passed by learned Additional Sessions Judge, Court No.6, District Unnao in Session Trial No. 194 of 2003, arising out of Case Crime No. 167 of 2002, under Sections 498-A, 304-B, 201 IPC and Section 3/4 of Dowry Prohibition Act, Police Station Sohramau, District Unnao.

3. The accused-appellant was convicted for the offences punishable under Section 498-A, 304-B, 201 IPC read with Section 3/4 of Dowry Prohibition Act and sentenced to undergo two years rigorous imprisonment under Section 498-A IPC with the fine of Rs.500/- and in case of failure to pay the fine, six months additional imprisonment. Accused-appellant was sentenced to undergo seven years rigorous imprisonment under Section 304-B IPC and under Section 201 IPC for three years rigorous imprisonment with the fine of Rs.500/- and in the event of non payment of fine, to undergo one year additional imprisonment. The accused-appellant was also convicted under Section 3/4 of Dowry Prohibition Act to undergo one year rigorous imprisonment with the fine of Rs.3,000/- and in the event of non payment of fine to undergo three months additional imprisonment.

4. In the aforesaid impugned judgment and order four other co-accused, namely, Puttan, Rajjan, Uma Shankar and Lallu were acquitted of all the charges.

5. On 08.08.2002, the complainant, Kalicharan, father of the deceased, Usha, sent a complaint to the Chief Minister, Government of Uttar Pradesh to the effect that on 05.08.2002, in-laws of his daughter, Usha, wife of Kripa Dhanuk, killed her for not meeting their demand of dowry. Usha was married in the year 1999 with Kripa, S/0 Babu Lal. It was alleged that Usha, one month before the date of incident, came to his father's place and she told him having with tears in her eyes that her husband had been time and again demanding dowry which included one gold chain, one colour television and a motorcycle. It was further alleged that Kripa, Puttan, Rajjan, Uma Shankar, all sons of Babu Lal had badly assaulted his daughter and as a result thereof she died. Lallu, S/o Kali Charan was also involved in the commission of crime.

6. It was said that he was informed by Kripa over telephone that Usha was seriously ill and there was no chance of her survival. On receiving this information, the complainant, who was on duty at Banaras, came but was informed by the villagers that Usha was given severe beatings, as a result thereof, she had died and immediately after her death, her body was cremated so that evidence is destroyed. The case was not registered at the police station and, therefore, he gave the complaint to the Chief Minister on 08.08.2002.

7. In pursuance of the aforesaid complaint, Case Crime No. Nil of 2002, under Sections 498-A, 304-B, 201 IPC and Section 3/4 of Dowry Prohibition Act was registered at the Police Station Harchandrapur Sadar, Raibareli. Since the incident was of Police Station Sohramau, District Unnao, it was transferred to the said police station for investigation and thereafter, it was again registered as Case Crime No. 167 of 2002, under Sections 498-A, 304-B, 201 IPC and Section 3/4 of Dowry Prohibition Act at Police Station Soharamau, District Unnao against the aforesaid accused.

8. After investigation, charge sheet was filed under the aforesaid sections against the accused, Kripa, Puttan, Rajjan, Uma Shankar and Lallu and charges were framed.

9. P.W.1, Jageshwar, P.W.2, Smt. Wazifan and P.W.3, Dharmendra, in their depositions, said that Usha, wife of Kripa died because of snake bite. These witnesses were declared hostile. The complainant, P.W.4 did not name all the accused in his examination-in-chief, and P.W.5, Lallu, S/o Kalicharan, supported the prosecution case but did not take the name of all the accused. P.W.6, Rajeshwari, the mother of the deceased, in her examination-in-chief did not make specific allegations against Lallu. P.W.7 is the Investigating Officer.

10. P.W.8, Dr. R. K. Chaudhary, who examined the deceased when she was brought to the hospital in unconscious state. He said that her condition was very serious and smell of some poisonous substance was coming from body of the deceased. She was admitted in casualty. The patient was having severe stomachache and she was vomiting. The examination report prepared by the doctor was marked as Ex.Ka-8. It was further said by this witness that as her condition was very serious, she was referred to the District Hospital and she was died on the way. She was brought to the Primarty Health Centre by her husband, Kripa. According to P.W.8, this could be a case of poisoning.

11. The statements of accused were recorded under Section 313 Cr.P.C. The defence produced four witnesses, viz.-D.W.1, Rajaram, D.W.2, Takdeer Ali, D.W.3, Ganga Prasad and D.W.4, Chandar to disprove the prosecution case. D.W.1 and D.W.2 had said that the deceased Usha died as a result of snake bite, whereas, D.W.3 deposed that Usha was cremated in the presence of complainant. D.W.4 has said that except Kripa, other accused are living separately in Lucknow in relation to their work.

12. The trial court, after considering the evidence on record and the arguments advanced by the parties, found only the present accused-appellant, Kripa guilty for the offences mentioned herein above and acquitted all other accused.

13. The important aspect of the case is that the deceased was brought to the hospital by Kripa, her husband, in serious condition, and the medical examination report as well as the deposition of the doctor, P.W.8, who examined her and proved the report, clearly indicate that the deceased had consumed poison or was poisoned. She was referred to the District Hospital as her condition was extremely serious. She died on the way to the District Hospital. The police was not informed by Kripa and, therefore, no FIR was registered, and in absence of the FIR postmortem was also not conducted and she was hurriedly cremated.

14. The defence theory that the death was the result of snake bite does not get support from the medical evidence. The medical evidence is to the effect that this was the case of poisoning. The defence witnesses, D.W.1 to D.W.3 cannot be given any credence inasmuch as doctor did not notice any sign/ mark of snake bite and even Kripa did not tell the doctor that deceased was bitten by snake. Therefore, the theory, which the defence tried to develop during trial does not have any leg to stand.

15. The question which remains to be answered is that whether she was administered poison or she consumed the poison on her own because of the distress as a result of cruelty by the accused-appellant for demand of dowry. There is no evidence to suggest that she was administered poison by the accused. Had he administered the poison, he would not have taken her to the hospital. Thus, the only alternative is that she herself consumed poison and as a result thereof she died. To destroy the evidence, the accused did not inform the police and cremated her hurriedly.

16. In view of the aforesaid facts and circumstances, the accused-appellant is guilty for committing the offence under Section 201 IPC.

17. From the statement of P.W.4, the complainant, it is clear that there was no demand of dowry at the time of marriage as he admitted that his daughter was literate and she could read and write but she never informed him about the cruelty meted out to her for demand of dowry. He also said that his son-in-law was a labourer and he never demanded dowry but he used to torture his daughter. The evidence of P.W.5 and P.W.6 is also to that extent. The accused-appellant has a 16 years' old daughter and aged mother.

18. From the statements of the witnesses, it is quite clear that there was no demand of dowry as alleged in the FIR. The fact that she was subjected to cruelty by the accused-appellant is proved and due to this cruelty by her husband she consumed poison and as a result thereof she died. Therefore, I do not find the accused-appellant guilty under Sections 498-A, 304-B IPC read with Section 3/4 of Dowry Prohibition Act and therefore, he is acquitted for offences under the aforesaid provisons.

19. The death of Usha is the result of consumption of poison and evidence is on record to conclude that she was subjected to cruelty and harassment by the accused-appellant.

20. Section 306 IPC reads as under:

306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

21. Since the deceased was driven to take extreme step of consuming the poison to end of her life as a result of cruelty and harassment meted out to her, I hold the accused-appellant guilty under Section 306 IPC.

22. Shri R. N. S. Chauhan, learned counsel for the accused-appellant has placed reliance upon the judgment of Supreme Court in the case of Gurdeep Singh Vs. State of Punjab and others : (2011) 12 SCC 408 to contend that on the facts the accused-appellant could not have been convicted under Section 304-B IPC in as much as the prosecution had failed to prove the requisite ingredients of the dowry death as mentioned in Section 304-B IPC. He has placed reliance on para-12 and 13 of the aforesaid judgment, which read as under:

"12. We first take the argument relating to Section 304-B and the presumption drawn under Section 113-B. A bare reading of Section 304-B presupposes several factors for its applicability, they being: (i) death should be of burns or bodily injury or has occurred otherwise than under normal circumstances; (ii) within seven years of the marriage; and (iii) that soon before her death she had been subject to cruelty or harassment by her husband or his relatives. This Court in Suresh Kumar Singh's case (supra) has held that even if one of the ingredients is not made out, the presumption under Section 113-B of the Evidence Act would not be available to the prosecution and the onus would not shift to the defence.

13. We find in the present case that there is no evidence of unnatural death. It is the prosecution story that the deceased had been poisoned. It has, however, come in the evidence, and in particular, in the report of the Forensic Science Laboratory dated 21-8-1995, that on an analysis of the bones and ashes no poisonous substance had been found to be present. In this view of the matter, the mere fact that deceased happened to be a young woman would not lead to the inference that she had died an unnatural death. Likewise, we find that the evidence of demand for dowry or goods soon before death is also lacking. Admittedly, the only evidence of any demand was of Rs. 25,000 made one year prior to the incident and as per the defence evidence of DW 2 and DW 4, the money for the execution of the sale deed had been taken out from the bank a day earlier. In the light of these two factors it has been held in para 25 of the above-cited case as under:

"25. Indisputably, in order to attract Section 304-B, it is imperative on the part of the prosecution to establish that cruelty or harassment has been meted out to the deceased ''soon before her death'. There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fixed period can be indicated therefor. It, however, must undergo the test known as ''the proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim.

We, therefore, find that evidence clearly fails the proximity test as laid down in the aforesaid judgment."

23. The aforesaid judgment does not have any application to the facts of the present case. In the above case there was no evidence of unnatural death, but in the present case, the deposition of P.W.8 along with the Ex.Ka-3 clearly indicate that death of the deceased was due to unnatural causes in as much as she died because of poisoning. When the evidence has come on record that her death was not natural, the said judgment does not have any application to the facts and circumstances of the present case. The accused-appellant cannot contend that the death of the deceased was natural, particularly, where the case of defence was that she died because of snake bite and that story is completely belied by the medical evidence on record.

24. Keeping in view that the accused-appellant has 16 years old daughter, aged mother of more than 80 years, I sentence him under Section 201 IPC for six months' rigorous imprisonment and six months imprisonment under Section 306 IPC. Both the sentence will run concurrently. The impugned judgment and order of trial court is modified to this extent. The bail bonds of the accused-appellant are cancelled. Sureties are discharged.

25. Learned Chief Judicial Magistrate, Unnao is directed to affect the arrest of the accused appellant and sent him to prison.

26. Needless to say that the accused-appellant will be entitled to claim remission of the sentence already undergone.

27. The appeal is disposed of accordingly.

Order Date :- 30.11.2017

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