Ashadeen & Others vs State Of U.P.
2017 Latest Caselaw 5628 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 43
 
Case :- CRIMINAL APPEAL No. - 1781 of 1990
 
Appellant :- Ashadeen & Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant:- Amit Kumar, Kamal Krishna, Rajendra Singh, Vikas Singh
 
Counsel for Respondent:- A.G.A.
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

Hon'ble Rajiv Gupta,J.

The appellants have assailed the judgment of the Special/ Additional Sessions Judge, Fatehpur1 dated 05th September, 1990 passed in Session Trial No. 508 of 1989, finding the appellants guilty for commission of offences under Sections 304-B and 498-A I.P.C.. The trial Court heard the appellants on sentence and by an order dated 06th September, 1990 sentenced the appellants to imprisonment for life under Section 304-B I.P.C.. They were further sentenced to imprisonment for three years' rigorous imprisonment under Section 498-A I.P.C. and they were also awarded a fine of Rs.1,000/- each under Section 498-A I.P.C.. All the sentences were directed to run concurrently. It was also provided that in case of default in payment of fine, the appellants shall further undergo imprisonment for three months.

The prosecution commenced on 17th March, 1989 upon receipt of a written complaint by P.W.-1 Madho Narain at 8.30 a.m. at Police Station Jahanabad, District Fatehpur. The first information report2 was registered on the same day as Case Crime No. 50 of 1989, under Section 498-A and 304-B I.P.C. In his written report P.W.-1 stated that his daughter Durga Devi, aged about 22 years, was married with one Ashadeen Bajpai, son of Ram Swaroop Bajpai, about three years back. It was alleged that almost every day the family of the accused used to harass his daughter Durga Devi in respect of demand of dowry. They had threatened her that if she failed to get a motor bike to them from her father, she would be done to death. On 16th March, 1989 in respect of the said demand they had administered some poisonous substance in her food resulting in her death, and along with his daughter Durga Devi, her daughter, who was aged about five months only, also died due to poisonous substance.

In his complaint, P.W.-1 named the appellants-- Ashadeen Bajpai (husband of Durga Devi), Ram Swaroop Bajpai (father of Ashadeen Bajpai), Smt. Basanti (mother of Ashadeen Bajpai), Rani (widowed daughter of Ram Swaroop Bajpai). The said written report is marked as Ext. Ka-1 and FIR is marked as Ext. Ka-8.

On the basis of the said written report, chik FIR was prepared by Constable Moharrir Sheo Ram Pal, which was marked as Ext.Ka-8, and he registered the case vide G.D. No. 12 on 17th March, 1989 at 08.30 A.M. After registering the said FIR under Section 498-A and 304-B I.P.C., the investigation was entrusted to Sri R.P. Yadav, S.O. Jahanabad. He proceeded to the place of occurrence and after arrival of Sub-Divisional Magistrate, Bindaki the inquest report was prepared in presence of Bhagwati Prasad Mishra, Prem Swaroop, Ram Kumar, Manohar Lal and Kallu, who were residents of the same village and who had signed the Panchnama. According to their opinion, there was no visible physical injury on the body of the deceased. Her nails had turned blue. According to their opinion, she died due to consumption of poison.

In the opinion of the Magistrate, the death may have been caused due to intake of some poisonous substance. In view of the fact that the death had occurred within 2-3 years of marriage, having regard to seriousness of the matter, he has recommended the post-mortem by two doctors.

Similar panchnama was prepared on the dead body of Khushboo, five months' old daughter of Durga Devi. The opinion of the Panchas and the Magistrate was same as in the case of Durga Devi.

The post-mortem of the dead body of the deceased was conducted on the same day i.e. 18th March, 1989 at 2.30 P.M. by P.W.-6 Dr. Mohd. Matin, who prepared their post-mortem reports, which are Ext.Ka-23 and Ext. Ka-24. The post mortem report has recorded following ante-mortem injuries on the dead body of Durga Devi:

"1. Contusion 12 cm x 7 cm on the right side neck just below right ear.

2. Contusion 22 cm x 11 cm on the right side back 6 cm below inferior spine of right scapula.

3. Contusion 6 cm x 6 cm on the left side of head just above left ear."

On internal examination of the dead body of deceased Durga Devi, the Doctor found that heart was empty. Stomach was empty. Large and small intestines were empty. Right and left lungs were congested. Gall bladder, spleen and kidney were also congested.

On the internal examination of the dead body of deceased Khushboo, the Doctor found that both brain and membranes were congested. Both right and left lungs were also congested. Heart was empty. In the stomach half ounce milk was found. Both large and small intestines were congested. Gall bladder, spleen and kidneys were also congested. Bladder was empty.

The doctor opined that the cause of death could not be ascertained, hence their viscera were preserved.

Forensic examination was undertaken. The result was obtained from the laboratory. In its reports dated 04th August, 1989, which were received in the Court of the Chief Judicial Magistrate, Fatehpur, it was revealed that in their viscera copper sulphate was found and the tests for other chemical/ poison were found negative.

The Investigating Officer3 had prepared a site plan (Ext.Ka-22) and recorded the statements of other witnesses. After completion of the investigation, a charge-sheet was submitted against the appellants on 19th April, 1989 under Section 498-A and 304-B I.P.C., on the basis of which trial, being Session Trial No. 508 of 1989, commenced.

Following charges were framed against the appellants by an order of the Special & Additional Sessions Judge, Fatehpur dated 15th June, 1990:

"1. Firstly. That sometime on 16.3.89, in the house of the accused, situated in village Malakapur, Qasba and P.S. Jahanabad, district Fatehpur, death of Smt. Durga Devi, wife of accused Ashadeen Bajpai, and daughter of Madho Narain Dixit, occurred otherwise than under normal circumstances, due to poisonous food within four years of her marriage, and that she was subjected to cruelty before her death in connection with demand of dowry and thus you all committed the offence of dowry death punishable u/s 304B I.P.C., and within the cognizance of this Court;

2. Secondly, That you sometime before 16.3.89 and after her marriage, in your house, subjected Smt. Durga Devi to cruelty by demanding a Motor cycle from the deceased in dowry and thereby you committed an offence punishable u/s 498A I.P.C. and within the cognizance of the court of Session;"

The matter was committed to the Court of Session. The prosecution in support of its case examined P.W.-1 Madho Narain, the complainant and father of deceased Durga Devi; P.W.-2 Govind Narain, son of Madho Narain and real brother of deceased Durga Devi; P.W.-3 Durga Charan Pandey, one of the sons-in-law of Madho Narain; P.W.-4 Constable Sheo Ram Pal, who had written the chik FIR; P.W.-5 R.P. Yadav, S.O, who had conducted investigation; P.W.-6 Dr. Mohd. Matin, who had conducted autopsy; and, P.W.-7 I.P. Chand, Dy. S.P. Fatehpur.

The defence also examined two witnesses: D.W.-1 Bhagwati Prasad, neighbour of the appellants, and D.W.-2 Mohan Lal, another neighbour of the appellants.

The prosecution has also filed some documents. These documents are letters which were sent by husband of deceased Durga Devi, the appellant no. 1, to his brother-in-law (Sarhu) demanding motor bike or in lieu of it cash. All the three letters are dated 12th January, 1988, 17th January, 1988 and 29th January, 1989, which are marked as Ext. Ka-5, Ext. Ka-4 and Ext. Ka-3 respectively.

After the evidences were recorded, all the accused persons were examined under Section 313 Cr.P.C. on 18th August, 1990, wherein they denied the allegations made against them and they pleaded that they have falsely been implicated.

The trial Court, however, by the impugned judgment, after examining all the oral and documentary evidences available on the record, found that the appellants are guilty of commission of the offences under Sections 304-B and 498-A I.P.C. and sentenced them for life imprisonment and other sentence and fine, as mentioned in the preceding paragraph. The trial Court acquitted Rani, sister in-law of the deceased Durga Devi.

We have heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Rajendra Singh, learned counsel for the appellants, and Sri Narendra Kumar Singh Yadav, learned A.G.A., at length and perused the record.

During the pendency of the appeal, appellant no. 2- Ram Swaroop and appellant no. 3- Smt. Basanti Devi have unfortunately died, hence vide order dated 15th February, 2017 this Court has abated their appeal.

Sri V.P. Srivastava, learned Senior Counsel appearing for the appellants, submitted that the finding of the trial Court holding the appellants guilty under Sections 498-A and 304-B I.P.C. suffers from perversity. He submits that all the three letters, which are Ext.Ka-3, Ext.Ka-4 and Ext.Ka-5, are forged and fabricated documents. He has tried to demonstrate that these letters are not in the handwriting of appellant no. 1- Ashadeen and the Court has grievously erred in relying on those letters without sending them for the expert opinion. He further submits that only one letter has been sent by the appellant no. 1 directly to the complainant and two other letters dated 12th January, 1988 and 29th January, 1989 were sent through his brother-in-law. He has pointed out that the aforesaid fact has not been mentioned in the statements of Ram Swaroop and Govind Narain as they had not mentioned this fact to the I.O.. He has only referred some letters and told the I.O. that he will produce them at a later stage. He further submitted that even if the entire allegations made in the aforesaid three letters are taken to be true on their face value and accepted in their entirety, it cannot be said that deceased Durga Devi was in the house of the appellant-Ashadeen. All the three letters clearly indicate that at the time of sending these letters the victim was in her parental home and hence, the entire prosecution story that she committed suicide in the house of the appellants cannot be believed. He also submitted that the statements of D.W.-1 and D.W.-2 as well as the statements of appellant no. 1 and his father recorded under Section 313 Cr.P.C. clearly indicate that some dispute exists regarding jewellery of deceased Durga Devi vis-a-vis her sister and brother-in-laws (Sarhu of appellant no. 1). The said sister of Durga Devi was also married in the same village.

Learned Senior Counsel appearing for the appellants has drawn our attention to the statements of D.W.-1 and D.W.-2. Both of them have deposed that on 17th March, 1989, the date when deceased Durga Devi committed suicide, her real sister and her husband came to their house and a serious quarrel erupted in respect of her ornaments. The statements of D.W.-1 and D.W.-2 shall be considered by us in the later part of this judgment.

It is also urged by learned Senior Advocate that the trial Court has accepted the genuineness of the letters on the basis of the acknowledgment of the employment exchange, which is alleged to bear signature of appellant no. 1. It is submitted that the trial Court has not compared the signature on the said acknowledgment with any specimen signature of appellant no. 1 and it was not proved by the witnesses in the Court. In such a situation the trial Court ought to have sent the letters to the handwriting expert for his opinion. Hence, the finding of the trial Court on the basis of the disputed signature of appellant no. 1 is a perverse finding and the said finding rests on complete misreading of the record.

Learned Senior Counsel appearing for the appellants further submits that there is no evidence against appellant no. 1, hence maximum punishment which has been awarded to appellant no. 1 is not justified. Lastly it was urged that the trial Court has not exercised its jurisdiction in proper perspective while considering the quantum of sentence in terms of Section 235 Cr.P.C. He has relied on a judgment of the Supreme Court in the case of Hira Lal v. State (Govt. of NCT), Delhi4.

Learned A.G.A. submits that the demand of dowry is established from the material on the record. In the FIR it has been categorically stated that the appellants were demanding a motor cycle as a dowry and from the letters sent by appellant no. 1 the said fact is established beyond reasonable doubt. He submits that on account of non-fulfillment of demand of dowry the deceased was harassed and was treated with cruelty at her matrimonial home by her husband and other appellants and she was driven to commit suicide. He also submitted that ante-mortem injuries found on the neck and some other parts of the body of the deceased indicate that deceased Durga Devi was subjected to cruelty before her death.

We have heard and considered the submissions advanced by the learned counsel for the parties and carefully perused the record.

P.W.-1 Madho Narain is father of deceased Durga Devi. He has deposed that one of his sons-in-law Bhagwati, who lives in Jahanabad, informed him in the morning at about 8.00-8.30 a.m. on 17th March, 1989 that in the night of 16/17th March, 1989 the appellants have killed his daughter by giving her poison and five months' old daughter of Durga Devi was also killed along with her by giving poison. He immediately rushed to the house of the appellants, where he found dead body of his daughter in a room. At that point of time Rani, sister-in-law of Durga Devi, was giving milk to Khushboo, who was alive at that time. Other appellants Ashadeen, his son-in-law, and appellant no. 3, mother of appellant no. 1, were also present there. He dictated a report to his son Govind Narain. During his examination he has proved the FIR, Ext. Ka-1.

P.W.-1 further deposed that the appellants were demanding a motor cycle or Rs.20,000/- cash from the very beginning and they used to subject his daughter to harassment and she was also beaten by them. Ashadeen, his son-in-law, has sent letters demanding dowry through one of his sons-in-law, who lives in Kanpur. Khushboo, daughter of Durga Devi, also died after having the milk.

In his cross-examination P.W.-1 Madho Narain has stated that he had told the police that Khushboo died after having milk but the said fact was not recorded in the FIR. The Circle Officer has recorded his statement and he has mentioned this fact to him also. His statement was recorded after 4-6 days of the occurrence of the incident. The accused have demanded dowry through the letters also. He has also stated that the accused did not make any request to him for Rs.20,000/- but they threatened his daughter Durga Devi. He had not considered it necessary to make a report regarding the said demand.

P.W.-2 Govind Narain Dixit is real brother of deceased Durga Devi. He has deposed that his sister Durga Devi was married on 07th February, 1987 with Ashadeen Bajpai, appellant no. 1. At the time of marriage there were no differences with the appellants, but during the Kalewa ceremony (which is followed by marriage) the appellant no. 1-- Ashadeen demanded a motorcycle, to which they expressed their inability on the ground that it was beyond their capacity to give a motorcycle. After the marriage, his sister Durga Devi visited their house during festivals and other similar occasions. However, after sometime when she came to their house, she told them that she was subjected to harassment and cruelty in respect of demand of motorcycle.

P.W.-2 further deposed that Ashadeen had sent a letter to one of his brothers-in-law Durga Charan Pandey, who has forwarded this letter to the P.W.-2, wherein he had demanded a motorcycle. Ashadeen, appellant no.1, sent similar three letters to Durga Charan Pandey, all of which were given to him. In one of the letters Ashadeen has threatened that in case motorcycle is not given, he will end the relationship. All the four letters and other documents, which were in the writing of Ashadeen, were given by P.W.-2 to the I.O. and those are on the record as Ext.11A-1 to Ext.11A-7. It is stated that Ashadeen, appellant no. 1, has got himself registered at the Employment Exchange of Kanpur. At that time P.W.-2 was also present with him and he had seen him signing one of the papers being Ext.A-7, which is acknowledgment issued by the Employment Exchange.

P.W.-2 further stated that accused- Ashadeen had sent an unstamped (barang) letter addressed to Durga Charan Pandey, elder brother-in-law of P.W.-2. In addition to the said letter, he had also sent three other letters, which were received by him. All these letters are in respect of the demand of motor cycle. He had stated that in these letters it was mentioned that in the event of non-receipt of motor cycle, the relationship between them would be broken. P.W.-2 had handed over these letters to the I.O.. All these letters are exhibited as Ext.Ka-2 to Ext.Ka-6 and are on the record.

Regard may be had to the fact that these exhibits have been relied upon by the trial Court as there were signatures of Ashadeen and the trial Court found that signature on the acknowledgment of the Employment Exchange (Ext.Ka-7) is similar to those on the letters purported to be written by Ashadeen to his in-laws demanding a motorcycle. He has further deposed that when they failed to fulfill the demand for the motorcycle, the appellant no. 1, his mother, sister and father have administered poison to his sister with a motive to kill her. When they got the news from one Bhagauti Prasad Mishra, who is one of his brothers-in-law, he went to the house of his sister with his father, where they found that his sister Durga Devi and her daughter Khushboo were lying dead. He observed that their nails had turned blue and on the neck of deceased Durga Devi there was swelling and the mark of injury was clearly visible. His father had reached there earlier and when P.W.-2 asked the appellants the cause of death of his sister, they kept mum. His father dictated the written report to him which was signed by his father and he submitted it in the police station.

During the cross-examination, he deposed that relationship between two families deteriorated after one year of marriage of his sister. At her sister's place he had made enquiries from the neighbours and was informed that some quarrel took place in the preceding night and his sister was weeping. Regarding the acknowledgment of Employment Exchange, he deposed that the said card was given to him by Ashadeen much earlier and when the police has recorded his statement, the said card was in his possession but he could not trace it at that time.

In respect of the letters sent by Ashadeen demanding motorcycle, P.W.-2 stated that Ashadeen did not send the letters directly to him. Ashadeen had sent all the letters to his brother-in-law Durga Charan Pandey, who forwarded it to the P.W.-2's family.

P.W.-3 Durga Charan Pandey deposed that he is one of the sons-in-law of the P.W.-1, whose daughter Maya Devi was married to him in June, 1975. The deceased Durga Devi was the youngest and fifth daughter of P.W.-1 who was married in the year 1987. He has proved the Ext. Ka-2, an unstamped (barang) letter, which was sent by the appellant no. 1- Ashadeen at his factory's address, where P.W.-3 was working. He had given this letter to Govind Narain, P.W.-2. After the said unstamped letter, Ashadeen had sent two more letters, which he received through the sons of the landlord, but the said fact was not told by him in his statement under Section 161 Cr.P.C.. He has proved the letters.

P.W.-4 is Constable Sheo Ram Pal, who had prepared the chik FIR.

P.W.-5 R.P. Yadav is the Investigating Officer. He has proved that the FIR was registered in his presence and other papers were prepared. He has recorded the statement of Madho Narain Dixit, P.W.-1, and when he reached at the spot, he prepared the inquest report of the dead body of Durga Devi and also informed the Sub Divisional Magistrate, Bindaki and when he reached, in his presence inquest report was prepared and Panchayatnama was also prepared. Similar procedure was adopted in the case of deceased Khushboo, daughter of deceased Durga Devi, who was 5 months' old.

In his cross-examination he deposed that the FIR was registered in his presence. The complainant- P.W.-1 did not tell him that the milk was administered to the daughter of Durga Devi nor he had been informed by the complainant that the appellants were demanding Rs.20,000/- dowry. He has stated that the complainant informed that family members of husband of deceased Durga Devi were pressurizing her for dowry and in respect of the same demand, they have written several letters also. He further stated that he did not find any tablet from the spot, where Durga Devi was found dead and near her dead body, her daughter's dead body was also lying. He could not recover any suspicious material from the spot. After the spot inspection, he had made enquiries from the neighbours and residents of the same village.

P.W.-6 is the Doctor, who has conducted the autopsy of the dead bodies of deceased Durga Devi and her daughter. The Doctor has opined that there are some ante mortem injuries on the body of deceased Durga Devi which have been extracted in the preceding paragraphs. Three contusions were found: first, 12 cm x 7 cm on the right side neck just below right ear; second, 22 cm x 11 cm on the right side back 6 cm below inferior spine of right scapula; and third, 6 cm x 6 cm on the left side of head just above left ear. The doctor has deposed that the deceased persons' vital organs viz. Heart, liver, kidneys were found congested. The cause of death could not be known in the post mortem, so their viscera was sent to forensic laboratory for the chemical analysis.

In his cross-examination the doctor has deposed that nails of the deceased Durga Devi were turned blue and bleeding was found from her nose. Viscera of the deceased is preserved normally when there is a possibility of poisoning. He has further deposed that milk was found in the stomach of deceased Khushboo and no injury was found on the body of Khushboo. As stated above, only three injuries were found on the body of deceased Durga Devi.

P.W.-7 is the Deputy Superintendent of Police, who is a formal witness. He has deposed that he had recorded the statement of Madho Narain, P.W.-1. It is stated that statements of Baghauti Prasad, Ram Kumar, Prem Swaroop, Manohar Lal and Kallu were recorded by him. He has also recorded the contents of four letters dated 12th January, 1988, 17th January, 1988, 12th January, 1989 and 14th January, 1989. He has also recorded the statement of the then S.D.M., Bindaki Sri Nisheesh Kumar.

After the prosecution evidence was concluded, the statements of the accused persons were recorded under Section 313 Cr.P.C. They have denied the charges. The appellant no. 1- Ashadeen has denied the letters, which have been said to be written by him. However, he has stated that he has been falsely implicated as there was a conspiracy to grab his jewellery.

Appellant No. 2- Ram Swaroop in his defence has stated that his daughter-in-law Durga Devi had kept her ornaments with her sister and brother-in-law. When they refused to return her ornaments, she has committed suicide. Similar statement was made by Ashadeen, appellant no. 1, who stated that he has been falsely implicated in the case as main accused with a motive to grab the ornaments of Durga Devi.

To substantiate their defence, the accused have got examined two witnesses, namely, Sri Bhagwati Prasad as D.W.-1 and Sri Mohan Lal as D.W.-2.

D.W.-1 Bhagwati Prasad has deposed that his house is just in front of the house of the appellants across the road. In the night when Durga Devi died, he had heard quarrel between deceased Durga Devi and her real sister, who is married to Bhagwati Prasad Mishra. Her sister lives in the same village. On the said date, sister of the deceased Durga Devi had come to the house of the deceased Durga Devi. The deceased Durga Devi had kept her jewellery with her sister. The deceased demanded back her jewellery from her sister. On her demand, her sister flatly denied the fact that she has any such jewellery of deceased Durga Devi. Then Durga Devi told her sister that in case she failed to return her jewellery, she would die. It is stated that after an hour sister of the deceased went back to her house and in the morning Durga Devi and her daughter were found dead.

In his cross-examination D.W.-1 told that he had heard altercation between deceased Durga Devi and her sister. They were talking in the house at a veranda. He had seen that Ashadeen, accused-appellant no.1, was also there. Both the sisters remained there for an hour. They were talking in low-voice, but he was able to hear their conversation. He further deposed that he had seen Ashadeen, accused-appellant, sitting at his shop. In the morning at about 6.00 a.m. he heard wailing emanating from the house of the accused/appellants, but he went for goat grazing. He had no knowledge how Durga Devi died. For the first time he came to know today that both mother and daughter died due to poison. He had no knowledge that what happened at the house of deceased Durga Devi as he had gone for goat grazing. He had also stated that he never saw Durga Devi and her sister quarreling.

In reply to a query of the Court, D.W.-1 stated that when altercation took place between Durga Devi and her sister, a crowd assembled near the spot. Ram Swaroop and Ashadeen were also part of that crowd. After an hour, sister of Durga Devi went back to her house and before that the quarrel continued for an hour and the crowd remained there for an hour.

D.W.-2 Mohan Lal is also a next door neighbour of the appellant, Ram Swaroop. He has deposed that one day before the date of incident sister of deceased Durga Devi had come at about 4-5 p.m. in the evening. The deceased Durga Devi requested her sister to return her jewellery. Thereafter a quarrel erupted between them. After sometime her sister told that she did not have any jewellery of deceased Durga Devi. Hearing the said reply, deceased Durga Devi stated that in case her sister does not return her jewellery, she would not be found alive in the morning.

In his cross-examination, he stated that both the sisters were quarreling in the courtyard. He heard the conversations of both the sisters from his door. At that point of time he was sitting at a platform, which is about 10 paces from the courtyard of Ram Swaroop. He also stated that conversation between the sisters was in a loud voice. At that time Ram Swaroop was sitting at his shop and Ashadeen had gone to the market for shopping. Mother of Ashadeen was sitting at the door and she pacified both the sisters and after sometime sister of Durga Devi went back to her house. He further stated that their heated exchanges continued for an hour. In the night between 12.00 -1.00 a.m. he came to know that Durga Devi had died due to stomach pain and after 2-3 hours her daughter Khushboo also died. Khushboo was 4-5 months' old. This witness said that immediately after the incident he had gone out, hence he was not aware about the fact of death of Durga Devi and her five months' old daughter.

In response to a query of the Court, D.W.-2 stated that from the platform, where he was sitting, it was not possible to see the courtyard. However, the heated exchange between the sisters was heard by 10-15 men and women. He has denied the suggestion that a crowd had assembled in front of the house of Ram Swaroop.

Learned Senior Counsel appearing for the appellants Sri V.P. Srivastava has laid much emphasis on two facts:

(i) there was no demand of dowry by the appellants' family, which he tried to establish from the following facts:

(A) Letters dated 12th January, 1988 (Ext. Ka-5), 17th January, 1988 (Ext.Ka-4), 29th January, 1989 (Ext. Ka-3) and cover page of the letter Ext. Ka-2 are forged and fabricated. All the letters, wherein demand of dowry has been made, are forged, fictitious and manufactured letters.

(B) The trial Court has erred in relying on these letters without seeking the opinion of the handwriting expert.

(ii) The reason for suicide by deceased Durga Devi was not due to harassment by the family members of husband in respect of dowry, but was due to a dispute of jewellery between deceased Durga Devi and her sister, wife of Bhagwati Prasad Mishra, who are married in the same village.

Learned counsel for the appellants has taken the Court to the contents of each letters and laid heavy emphasis that in case the contents of these letters are assumed to be correct, in that event it will be found that deceased Durga Devi remained at the house of her father only for about last two years and she could not have conceived. Elaborating his submissions it was urged that deceased Durga Devi committed suicide on 17th March, 1989. Her five months' old daughter, who also died with her, was born in the month of October-November, 1988. From the letters dated 17th January, 1988 (Ext. Ka-4) and 12th January, 1988 (Ext. Ka-5) it can be demonstrably established that she was not at her matrimonial house but at her parents' house. The contents of all the three letters clearly demonstrate that the appellant no.1--Ashadeen had threatened that he would not take back deceased Durga Devi to his house unless his demand of motorcycle is met. He has also stated that in case he is not given motorcycle, he will break up the relationship, and he has advised her wife that until the motorcycle is given, she may live the life of Hindu widow at her father's house. He has drawn our attention to the material discrepancy and inconsistency in the statements of P.W.-1, P.W.-2 and P.W.-6, the doctor's evidence.

We have heard and considered the submissions advanced by the learned Senior Counsel appearing for the appellants and learned A.G.A. and carefully perused the statements of all the witnesses.

The accused persons have been charged under Sections 498-A and 304-B I.P.C. In the matter of dowry death, there is presumption as to dowry death under Section 113-B of the Evidence Act. The prosecution has to prove only that soon before the death of woman, who died otherwise than in the normal circumstances within seven years of her marriage, she was subjected to cruelty and harassment for demand of dowry. The burden of proof is on the prosecution. Section 113-B of the Evidence Act reads as under:

"113B. Presumption as to dowry death.--When the question is whether a 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 person had caused the dowry death.

Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."

Section 304B I.P.C., which relates to dowry death, reads as under:

"304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under 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 the 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."

Section 498-A I.P.C. also relates to dowry death and it relates to cruel conduct of the husband and his family. Section 306 I.P.C. deals with abetment of suicide.

In the case of dowry death the prosecution has to prove only that death was not due to natural or accidental death. If it is found it was unnatural death, coupled with the fact that soon before the death the deceased was subjected to cruelty or harassment, in such event the presumption under Section 113-B of the Evidence Act and Section 304-B I.P.C. operates.

As regards the period 'soon before death', the Supreme Court in a series of decisions has ruled that it would be hazardous to indicate any fixed period. The Legislature has not provided any definite period in the amended law. The determination of period has been left to be determined by the Courts keeping in the view proximity test and having regard to the facts and circumstances of each case. Reference may be made to the judgments of the Supreme Court in the case of Baljinder Kaur v. State of Punjab5, Thakkan Jha v. State of Bihar6 and Baldev Singh v. State of Punjab7.

The Supreme Court has also held that a conjoint reading of Section 113-B of the Evidence Act and Section 304-B I.P.C. shows that if there is any material to determine that soon before the death of the woman she was subjected to cruelty or harassment and the death was not natural or accidental death, then it will bring within the purview of dowry death under Section 304-B I.P.C.. To operate the presumption under Section 113-B of the Evidence Act a duty is cast upon the prosecution to show that soon before the occurrence of death there was cruelty or harassment. Once such an evidence is on the record, in that event the presumption under Section 113-B and Section 304-B I.P.C. comes into play. Paragraphs-17 and 18 of the judgment of the Supreme Court in Baljinder Kaur (supra) read as under:

"17. In Kamesh Panjiyar v. State of Bihar8 this Court considered the expression "soon before death" and held as under: (SCC p. 393, para 11)

"11. ...The expression ''soon before' is very relevant where Section 113-B of 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 it would depend upon the circumstances of each case and no straitjacket 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."

The same view was expressed in Thakkan Jha v. State of Bihar9 and Baldev Singh v. State of Punjab10.

18. The above decisions of this Court laid down the proximity test i.e. there must be material to show that "soon before her death" the woman was subjected to cruelty or harassment "for or in connection with dowry". The facts must show the existence of a proximate live link between the effect of cruelty based on dowry demand and the death of the victim. "Soon before death" is a relative term and no straitjacket formula can be laid down fixing any time-limit. The determination of the period which can come within the term "soon before death" is left to be determined by the Courts depending upon the facts and circumstances of each case."

Applying these principles in the present case, we find that there is sufficient evidence on the record which demonstrably establishes that there was a demand for dowry. Our definite opinion on this point is based on the following evidences:

(i) In the FIR it is categorically stated that the appellants have made persistent demand for a motorcycle in dowry and in respect of the same demand deceased Durga Devi was subjected to harassment.

(ii) P.W.-1 in his statement has deposed that after the marriage of his daughter, the appellants were demanding motorcycle or Rs.20,000/- cash, and Ashadeen, accused-appellant no. 1, had sent several letters demanding the dowry. Statement of P.W.-1 is corroborated by the P.W.-2, who has deposed that at the time of Kalewa ceremony (which is followed by the marriage) Ashadeen made a demand of motorcycle, but at the same time the family of the bride expressed its inability to meet his demand. After some time of the marriage, deceased Durga Devi had informed the family members that she is subjected to harassment and cruelty in respect of the said demand.

(iii) P.W.-2 has also deposed regarding unstamped letter, which was followed by three successive letters, making demand for motorcycle in no uncertain terms. He has also deposed that Ashadeen has threatened that if his demand is not met, he will sever the relationship. He has proved all the exhibits of those letters in the Court. We do not find any inconsistency or material discrepancy in the statements of P.W.1 and P.W.-2.

(iv) P.W.-3, who is one of the sons-in-law of Madho Narain--P.W.-1 and Sarhu (brother-in-law of Ashadeen), has stated that the accused- Ashadeen wrote him an unstamped letter, which he has received on 23rd January, 1989, and he has proved the Ext. Ka-2.

As regards the submission of learned Senior Counsel appearing for the appellants that the letters are manufactured and fictitious, we have carefully perused the contents of all the three letters. These letters have been proved on the basis of an alleged acknowledgment of the Employment Exchange to be of accused- Ashadeen. The said acknowledgment was produced by his brother-in-law P.W.-2 Govind Narain, who claimed that it was given to him by Ashadeen some years back. Out of the four letters, three letters were not given to Investigating Officer on the ground that they were not traceable. The signature of the appellant- Ashadeen on the acknowledgment has been compared by the trial Court with the handwriting of alleged author of three letters. The Court has found that handwriting is similar. Hence, it has found that all the letters were proved and it has relied on the contents of the letters.

We have seen carefully the signature of Ashadeen, appellant no. 1, on the acknowledgment of Employment Exchange and have compared the handwriting of three letters with the said specimen. We have doubt about the similarity of the specimen signature and the handwriting of the letters. In our view, the proper course open to the trial Court was to send these letters to the handwriting expert.

In addition to above, we find sufficient force in the submission of learned counsel for the appellants that in case the contents of the three letters dated 12th January, 1988, 17th January, 1988 and 29th January, 1989 are accepted to be true, it would emerge that deceased Durga Devi was not at her husband's house and she remained at the house of her father. In one of the letters, appellant no. 1 has clearly threatened deceased Durga Devi that he would not allow her to enter his house and she would remain and live at the house of her father and lead life of widow. As noted above, at the time of occurrence in March, 1989, her daughter Khushboo was five months' old. Thus, absence of deceased at her husband's house can demolish the entire case of the prosecution. She must have conceived in the month of February/ March, 1988. According to the letters dated 12th January, 1988 and 17th January, 1988 she was at her father's house. In the letter it is clearly mentioned that he will not allow her to come back to his house unless his demand for motorbike is met. Hence, we find that these letters raise reasonable doubt regarding their genuineness.

But even if these letters are not taken into consideration, for the reasons stated above the charges of demand of dowry is established. We have already analysed the evidence in the forgoing paragraphs with regard to our finding regarding demand of dowry.

As regards the submission of learned Senior Counsel appearing for the appellants that the deceased has committed suicide on account of her quarrel with her sister regarding non-receipt of her jewellery from her sister, we find it difficult to accept the said submission. The post-mortem report and the opinion of the doctor show that injuries were found on the body of deceased Durga Devi. There were contusion 12 cm x 7 cm on the right side neck just below right ear, contusion 22 cm x 11 cm on the right side back 6 cm below inferior spine of right scapula, and contusion 6 cm x 6 cm on the left side of head just above left ear. According to viscera report, it was found that she has consumed copper sulphate. Viscera report shows that she died of poison. Even if it is found that she died of poison, it is presumed that she committed suicide due to harassment by the appellants. There is no escape from the conclusion that husband abetted suicide, as a result the wife/deceased committed suicide.

In Rajinder Kumar v. State of Haryana11 the Supreme Court went elaborately into all implications of various amendments made in the Evidence Act and the Indian Penal Code and quoted with approval the judgment of Hira Lal v. State (Govt. of NCT of Delhi)12. Paragraph-15 of the judgment reads as under:

"15. In Hira Lal v. State (Govt. of NCT), Delhi13, this Court analysed Section 304-B IPC and Section 113-B of the Evidence Act and made the following observations: (SCC pp.85-86, para 8)

"8. Section 304-B IPC which deals with dowry death, 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 under 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 the 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.'

The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:

(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

(ii) Such a death should have occurred within seven years of her marriage.

(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

(iv) Such cruelty or harassment should be for or in connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

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

'113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had 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 1860).'

The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 91st Report dated 10-8-1983 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that 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 others, in both the provisions is that the woman concerned must have been 'soon before her death' subjected to cruelty or harassment 'for or in connection with the demand of dowry'. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise 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 has committed the dowry death of the 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."

In the light of the principles laid down in the above mentioned cases and as discussed above, we find that following ingredients are established from the evidences:

(a) Deceased Durga Devi was married in the month of February, 1987 and she died unnatural death on 17th March, 1989, hence she died within seven years of marriage. Her death was unnatural. It is a common case of the parties that she committed suicide. It has also been established from the evidence that she was subjected to harassment or cruelty by her husband and other appellants in connection with demand of dowry/ motorcycle.

(b) From the record harassment is established to be continued till her death. We also find that the testimonies of defence witnesses--D.W.-1 and D.W.-2 are full of material inconsistencies and discrepancies. D.W.-1 stated that altercation between the sisters in respect of jewellery of deceased Durga Devi took place in the veranda of the house and he heard their conversation from the outside. He has also stated that the conversation was going on in a low-voice, which he was able to hear from the outside of the house. Whereas, D.W.-2 stated that conversation and altercation was going in the courtyard of deceased's house and it was so loud that a crowd of 15-20 people assembled in front of the house of Ram Swaroop, appellant no. 2. Any such crowd was denied by the D.W.-1 in the following words:

" pyrk fQjrk yksx Fks HkhM ugha yxh FkhA "

We have perused the statements of both D.W.-1 and D.W.-2 and we find that it was improbable that the conversation between two sisters which was going on either in the veranda or in the courtyard could be heard by D.W.-1 and D.W.-2 from outside of the house. D.W.-1 has stated that the conversation was going on in low-voice and according to D.W.-2, it was in loud-voice. Moreover, the presence of Ashadeen at the time of said conversation is also contradictory. D.W.-1 has stated that he had seen Ashadeen in the house when the said conversation was going on, whereas D.W.-2 has stated that Ashadeen had gone to the market for shopping and he denied the presence of Ashadeen in the house. After careful perusal of their statements it is evident that their statements do not inspire confidence. Hence, we are not able to accept the version of the so called altercation between the sisters for jewellery as true version.

For the foregoing reasons and in the circumstances, we do not find that judgment and order of the trial Court suffers from any infirmity, legal or factual, except the reliance placed by it on the three letters discussed above.

Insofar as the submission of learned counsel for the appellants that the trial Court has erred in awarding maximum punishment to appellant no. 1 for commission of offence under Section 304-B I.P.C. is concerned, we find that his submission merits acceptance. The trial Court has not recorded any reason for awarding maximum punishment to appellant no. 1. As mentioned above, Section 304-B I.P.C. only raises presumption and lays down that maximum sentence should be seven years but it may extend to imprisonment for life. The Legislature has used the word "may" in Section 304-B I.P.C.. It shows that awarding maximum punishment to life imprisonment in every case is not necessary. The Court has discretion to award sentence between seven years to life imprisonment. Suffice it would be to say that while exercising its discretion the Court must keep in the mind the totality of the facts and circumstances of the case.

Before proceeding further we deem it appropriate to notice the recent trend in the Supreme Court judgments on the question of sentence in the matter under Section 304-B I.P.C. and analogous provision. A recent decision of the Supreme Court in Hari Om v. State of Haryana and another14 is in point in this context. In the said judgment the Supreme Court has quoted with approval its three previous decisions in Hem Chand v. State of Haryana15, State of Karnataka v. M.V. Manjunathegowda16 and G.V. Siddaramesh v. State of Karnataka17. Relevant part of the judgment in Hari Om (supra) being paragraphs-16 to 19 are reproduced hereunder:

"16. Now, the question arises as to whether we should reduce the appellant's sentence and if so, to what extent, as urged by the learned Senior Counsel for the appellant.

17. This issue has been the subject-matter of debate before this Court in several cases, which arose out of Section 304-B read with Section 498-A and wherein this Court while interpreting the expression "may" occurring in Section 304-B IPC held that it is not mandatory for the Court in every case to award life imprisonment to the accused once he is found guilty of the offence under Section 304-B. It was held that the Court could award sentence in exercise of its discretion between seven years to life imprisonment depending upon the facts of each case. It was held that in no case it could be less than seven years and that extreme punishment of life term should be awarded in "rare cases" but not in every case.

18. In Hem Chand v. State of Haryana18, the courts below had awarded life term to the accused under Section 304-B read with Section 498-A but this Court reduced it to 10 years. This was also a case where the accused was a police officer who had suffered life imprisonment. This Court held as under: (SCC p. 731, paras 7-8)

"7. ...the appellant-accused was a police employee and instead of checking the crime, he himself indulged therein and precipitated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.

8. Hence, we are of the view that a sentence of 10 years' RI would meet the ends of justice. We, accordingly while confirming the conviction of the appellant under Section 304-B IPC, reduce the sentence of imprisonment for life to 10 years' RI."

19. Similarly, this Court in State of Karnataka v. M.V. Manjunathegowda19, while convicting the accused under Section 304-B awarded 10 years' imprisonment in somewhat similar facts."

Applying the aforesaid principles what we find in this case is that the trial Court has not recorded any reason for extreme punishment of imprisonment of life, which can be awarded in rare cases and not in every case. We are of the view that the ends of justice would be amply met by modifying punishment awarded to the appellant no.1, Ashadeen. Accordingly, for the reasons recorded above, we modify his sentence from life imprisonment to seven years. The appellant no. 1 is on bail. He is directed to surrender before the Court concerned and to serve out the remaining sentence.

Let the lower Court records and a certified copy of this order be sent to the concerned Court below for ensuring compliance of the order.

Accordingly, the appeal is partly allowed.

Order Date :- 24.10.2017

Faridul/SKT/-