Pappu Sonkar vs State Of U.P.
2018 Latest Caselaw 1612 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved									A.F.R.	
 
Case :- JAIL APPEAL No. - 315 of 2018
 

 
Appellant :- Pappu Sonkar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Dharmendra Pratap Singh
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

1. Aggrieved by the judgment and order dated 4.8.2017 passed by the Additional Sessions Judge/ F.T.C.-1, Kaushambi, in S.T. No. 688 of 2009, State Vs. Pappu Sonkar and others, arising out of Case Crime No. 493 of 2009, u/s 498A, 304B I.P.C. and 3/4 D.P. Act, Police Station Saini, District Kaushambi, whereby the learned trial court has convicted the appellant, who is the husband of the deceased, under sections 304B, 498A I.P.C. and 4 D.P. Act, sentencing him with 10 years, 3 years and 2 years imprisonment respectively along with fine with default stipulations, the appellant has preferred this appeal from jail.

2. Heard Mr. Dharmendra Pratap Singh, learned counsel for the appellant and Mr. Shyam Dhar Yadav, learned AGA on behalf of the State and perused the record.

3. The facts giving rise to this appeal are that the marriage between the appellant and the daughter of the complainant Rubi Devi was performed on 4.6.2009 at Village Medipur Kanwar, P.S. Saini, District Kaushambi. The complainant Kalluram Sonkar had given dowry according to his capacity in the marriage. However, the appellant and his family members were not satisfied with the given dowry and used to harass the bride by demanding a motorcycle and Rs. 25000/- in cash. The daughter of the complainant informed her parents that her in-laws were threatening to kill her if their demands were not fulfilled. The complainant went to the matrimonial home of his daughter several times but he was not permitted either to meet her or to take her back with him. On 18.7.2009 i.e. just about one and half months after the marriage the daughter of the complainant was done to death by her husband and in-laws by pouring kerosene oil on her body and setting her ablaze. As a result she sustained 95% burn injuries on her body. In a very serious condition she was admitted to Swaroop Rani Hospital, Allahabad, where she succumbed to her injuries on 23.7.2009.

4. A report was lodged by the complainant against the husband/ appellant and his family members including father-in-law, mother-in-law and brother-in-law (Devar) stating the aforesaid facts, which was registered at Crime No. 493 of 2009, u/s 498A, 304B I.P.C. and 3/4 D.P. Act, Police Station Saini, District Kaushambi. The check report (Ext. Ka-3) was prepared and relevant entries were made in the general diary (Ext. Ka-4).

5. During the period when the deceased was in hospital, her dying declaration was recorded by the Additional City Magistrate, Allahabad, who has been examined as PW9 during trial and he has proved the dying declaration as (Ext. Ka-10). In the dying declaration the deceased has stated as under:-

Þesjk ifr gekjs Åij feV~Vh dk rsy Mkydj fQj ekfpl ls vkx yxk fn;k FkkA dy fnukad 18-07-2009 dks fnu esa 12-00 cts nks & rhu FkIiM ekjs Fks fQj feV~Vh dk rsy Mkydj vkx yxk fn;kA gekjs firk us ipkl gtkj budks ns fn;k FkkA vkSj ekax jgs Fks blhfy, ekjrs o xkyh nsrs FksA vkx yxkus ds ckn esjs vkneh ckgj pys x;sA ejs fpYykus ij dksbZ vkneh vk;k] ikuh Mky fn;k] vkx cq> x;hA vkSj vkSjrsa vk xbZaA os gafl;k /kksrh ¼diMk½ dkVdj fudkyhA blds ckn eq>s fyVk fn;sA xkMh djds ;gka gkfLiVy yk;s gSA tc eq>s vkx yxh Fkh rks ml le; ?kj esa dksbZ ugha FkkA esjs eka&cki dks [kcj gks x;h gSA nksuksa dy gh vk x;s gSA vLirky esa gSAß

6. After the death of Smt. Rubi inquest proceedings were performed by the Additional City Magistrate (PW9) and the dead body was sent for postmortem. During inquest proceedings the family members from both the sides i.e. her in-law and parents were present. The appellant told the Magistrate that he had gone to his field and his wife was cooking food when her Sari caught fire accidentally. Hearing her shrieks, they all reached the spot and extinguished the fire. During the effort to extinguish fire, his right hand also got burnt.

7. Dr. P. N. Nadar (PW5) conducted the postmortem on the dead body of the deceased and prepared the postmortem report (Ext. Ka-2), which shows that the victim was aged about 20 years. Superficial to deep burn injuries were found on all over her body except some part of backside of right hand, head, lower part of abdomen, private part and soles. The cause of death was found to be septicaemia due to burn injuries.

8. The case was investigated. The first investigating officer Deep Narayan (PW4) inspected the spot and prepared site plan (Ext. Ka-7). Thereafter the second investigating officer Circle Officer Gyan Prakash Chaturvedi (PW8) recorded the statements of witnesses, collected documentary evidence including marriage invitation card (Ext. Ka-8) and after conclusion of investigation submitted charge-sheet (Ext. Ka-9) against the appellant and his family members.

9. The case being exclusively triable by the Court of Sessions, it was committed to the court of sessions where charges were framed against all the accused persons, who denied from the charged and claimed their trial.

10. The prosecution in order to prove its case examined nine witnesses in all. A brief description of the witnesses is as follows:

11. PW-1 is the complainant Kalluram Sonkar, who is father of the victim and who has proved the written report as Ext. Ka-1. PW-2 Smt. Dania is the mother of the victim, PW-3 Ramesh Chandra is the brother of the victim, PW-4 Deep Narayan is the first investigating officer, PW-5 is Dr. P. N. Nadar, who has conducted postmortem of the deceased and has proved the postmortem report as Ext. Ka-2, PW-6 is S.I. Ram Krishna Mishra, who has proved the check report (Ext. Ka-3) and relevant entries in general diary regarding registration of the case (Ext. Ka-4), PW-7 is Constable Jai Hind Yadav, who has proved the inquest report as Ext. Ka-5 and death report as (Ext. Ka-8), PW-8 is the second investigating officer, who has proved the site plan as (Ext. Ka-7), copy of marriage invitation card (Ext. Ka-8) and charge-sheet (Ext. Ka-9) and PW9 is the Additional City Magistrate Sri Ramashray, who has proved the dying declaration as Ext. Ka-10, the Inquest report as Ext. Ka-11, letter sent to R.I. (Ext. Ka-12), letter sent to C.M.O. (Ext. Ka-13), Police Form No. 13 as Ext. Ka-14, sample of seal as Ext. Ka-15 and memo of dead body (Challan Lash) as Ext. Ka-16.

12. After conclusion of the aforesaid documentary and oral evidence led by the prosecution, statements of the accused persons were recorded u/s 313 Cr.P.C. in which all of them denied from the truthfulness of the prosecution case and stated that they have been falsely implicated in this case and the witnesses have given false evidence. No evidence was adduced by them in defence.

13. The learned trial court, after a detailed discussion of evidence available on the record and placing reliance on various judgments rendered by Hon'ble Supreme Court, found the appellant guilty and sentenced him as aforesaid. However, it acquitted the remaining accused i.e. in-laws due to lack of sufficient evidence against them.

14. The legality and correctness of the impugned judgment has been challenged by learned counsel for the appellant mainly on the following grounds:

1. The deceased had sustained 95% burn injuries. In such serious condition, it was impossible for her to speak, therefore, the dying declaration is wholly doubtful and learned court below has wrongly placed reliance on the dying declaration while convicting the appellant.

2. The doctor, who has given certificate of fitness at the time of recording of the dying declaration of the deceased has not been produced by the prosecution in court during trial.

3. The deceased was taken to the hospital by the appellant himself. He tried his best to save his wife and while extinguishing the fire, he has also sustained burn injuries.

4. The parents and brother of the deceased have admitted the fact that there was no dowry demand at the time of marriage and the marriage was performed in a cordial atmosphere.

5. The cause of death has been found to be septicemia and not the burn injuries.

6. The witnesses have admitted the fact that during the period of five days when the deceased remain admitted in the hospital, her husband and in-laws were continuously present.

7. The essential ingredients of the offence u/s 304B I.P.C. are missing in this case. There is no evidence on record that the deceased was subjected to cruelty "soon before her death".

8. There is no independent witness of the occurrence. All the witnesses are family members and close relatives.

9. The applicant is languishing in jail since 9 years, which fact is evident from paragraph no. 57 of the impugned judgment itself in which the court below has clearly mentioned that the accused Pappu Sonkar is continuously in jail since last eight years.

10. As the appellant has already undergone nine years in jail and he has no criminal antecedents, a lenient view may be taken in this matter and he may be released by altering his sentence to the period already undergone.

15. Per contra, learned AGA has vehemently contested the appeal by arguing that all the essential ingredients of section 304B I.P.C. are present in this case. The dying declaration of the deceased has been recorded after obtaining a fitness certificate from the doctor concerned, who has certified the fitness of the deceased not only before recording the dying declaration but also after its conclusion.

16. Learned AGA has further contended that only on the ground that the doctor, who had given the certificate of fitness, could not be produced in court, the dying declaration, which is a very valuable piece of evidence in this case, cannot be discarded. Learned AGA has further contended that the dying declaration has been duly proved by the Additional City Magistrate Sri Ramashray (PW9), who during his cross-examination has stated on oath that "Doctor Sahab had come before recording of dying declaration". Learned AGA has further contended that the Magistrate, who has been examined as PW9, is an independent witness, who has admittedly no enmity with the appellant. He is a government servant and there is no reason as to why he will depose against the appellant, in order to falsely implicate him.

17. Learned AGA has further contended that there is sufficient evidence on record that the deceased was ill-treated by her husband and in-laws "soon before her death". The evidence on record clearly shows that she was not sent to her parental home by her in-laws and husband despite the fact that her father and brother had repeatedly come to her matrimonial home for her Vidai. Moreso, the deceased in her dying declaration has categorically stated that her husband had slapped her two or three times in the noon on the same day using abusive and filthy language, which also shows her ill treatment soon before her death.

18. On the aforesaid grounds learned AGA has prayed that the appeal being meritless be dismissed.

19. I have considered the rival contentions advanced by learned counsel for both the parties and have gone through the lower court's record.

20. The incident has occurred inside the four walls of the house and no one has witnessed the incident. The marriage invitation card is available on the record, which has been duly proved by the investigating officer, which shows that only one and half months had lapsed since the date of the marriage of the deceased. All the three witnesses of facts, who are parents and brother of the deceased, have supported the prosecution case during trial and all of them are throughout cogent and consistent with regard to the fact that the deceased Rubi was subjected to cruelty in connection with additional dowry demand of Rs. 25000/- in cash and a motorcycle.

21. In so far as the argument regarding non-examination of independent witness is concerned, it is to be kept in mind that the offence of dowry death is generally committed in complete secrecy inside the house and it is very difficult for the prosecution to lead evidence. No member of the family of accused, even if he is witness of the occurrence, would come forward to depose against other family member. The neighbour, whose evidence may be of some assistance, are generally reluctant to depose in the court as they want to keep aloof and do not want to antagonize a neighbourhood family. The parents and other family members of the bride being away from the scene of commission of occurrence, are not in a position to give direct evidence except regarding demand of money or dowry.

22. The present case is related to the offence of dowry death, which is committed inside the house. Hence direct evidence is never available in these cases and the entire prosecution rests on circumstantial evidence in these cases.

23. The Hon'ble Supreme Court in Trimukh Maroti Kirkan Vs. State of Maharashtra, 2007 Cr.L.J. 20 has observed as under:-

"If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly 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 degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the 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 and there is no duty at all on an accused to offer any explanation. In case of no explanation or false explanation it would become an additional link in chain of circumstances."

24. The essential ingredients of section 304B I.P.C. have been enumerated by Hon'ble Supreme Court in catena of judgments as follows:-

1. The death of women must have been caused by burns or bodily injury or otherwise than under normal circumstances.

2. Such death must have occurred within seven years from the date of the marriage.

3. Soon before her death, the women must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

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

25. Now testing the facts of the present case on the touch stone of the essential ingredients of section 304B I.P.C. as enumerated above, it is clearly evident that the death of Smt. Rubi has been caused by burn injuries otherwise than under normal circumstances. She has died only after one and half months from the date of her marriage. In the dying declaration she has categorically stated that in the afternoon her husband had slapped her 2 or 3 times using abusive language. She has also stated that her husband and in-laws were ill treating and threatening her to kill, if their demand of a motorcycle and Rs. 25000 in cash was not fulfilled.

26. The statements of PW1, PW2 and PW3 show that Smt. Rubi was not even permitted to go to her parental home not even once after her marriage and her Vidai was refused. As a result her father and brother had to return empty handed. Her husband/appellant had extended threats that if the demand were not fulfilled, Rubi would not be able to go to her Mayaka in a living condition. All these facts clearly indicate that Ruby was ill treated by her husband and in-laws "soon before her death". The Hon'ble Apex Court in the case of V.K. Mishra and another Vs. State of Uttarakhand and another, (2015)9 SCC 588 has interpreted the words "soon before death" as under:-

"A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. ''Soon before' is a relative term and it would depend upon circumstance of each case and no strait-jacket formula can be laid down as to what would constitute a period ''soon before the occurrence'. There must be in existence a proximate live link between the facts of cruelty in connection with the demand of dowry and the death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned it would be of no consequence."

27. It is true that the witnesses have admitted the fact that at the time of marriage there was no demand of dowry and the marriage was performed in a cordial and congenial atmosphere but this does not mean that such demand could not have been raised after the marriage. If it was not so, there was no reason as to why the parents of Rubi would have falsely implicated their own son-in-law and his family. Instead, the aforesaid admission by the parents and brother of the deceased clearly show that they are not tutored witnesses and they have stated the true facts.

28. Thus, all the essential ingredients of dowry death are found present in the instant case.

29. In so far as the reliability and trustworthiness of dying declaration is concerned, the dying declaration in this case has been recorded by the Additional City Magistrate after taking certificate of fitness by the doctor. The Additional City Magistrate has been examined as PW9 and he has categorically stated that the deceased was able to speak at the time of recording her dying declaration.

30. In the dying declaration, the deceased has categorically alleged that her husband had slapped her 2 or 3 times and thereafter he poured kerosene oil on her and set fire. She has also alleged about the demand of dowry and her ill treatment in connection with such demand. There is no reason to disbelieve it in view of the famous legal maxim of the law of Evidence i.e. Nemo Moriturus Praesumitur Mentire which means a man will not meet his maker with a lie in his mouth. Our Indian Law also recognizes this fact that "a dying man seldom lies" or in other words "truth sits upon the lips of a dying man".

31. In so far as the argument advanced by learned counsel for the appellant that the deceased having 95% burns was not in a position to speak, is concerned, the appellant has not stated anything in his statement u/s 313 Cr.P.C. about physical condition of the deceased Rubi as to whether she was in a position to speak or not despite the fact that he remained present in the hospital for 4 or 5 days with her during which period the dying declaration was recorded.

32. In Pawan Kumar Vs. State of H.P. 2017(4) Supreme 533 the Apex Court has held that there can not be an absolute rule that a person suffering from 80% burn injuries cannot give a dying declaration and it depends on the nature and seat of injury. If the vocal cords have not been effected the person can speak. It is also to be kept in mind that Section 304B I.P.C. is a deeming provision under which the prosecution is obliged only to 'show' the presence of essential ingredients of the offence and the prosecution has not to prove the case to the hilt just like in cases related to other offence. If the prosecution is successful in showing the presence of all the essential ingredients of section 304B I.P.C., the burden u/s 113-B of the Evidence Act shifts on the accused to prove his innocence. Hon'ble Apex Court in the case of Sher Singh @ Partapa vs. State of Haryana, (2015) 1 SCR 29 has interpreted the use of words "shown" and "deemed" in Section 304B I.P.C. as under:

"The use of word ''shown' instead of ''proved' in Section 304B IPC indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, ''shown' will have to be read up to mean ''proved' but only to the extent of preponderance of probability. Thereafter, the word ''deemed' used in that Section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The ''deemed' culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong ''presumption' of his culpability. The accused is required to rebut this presumption by proving his innocence."

33. The same view has been reiterated by Hon'ble Apex Court in Ramakant Mishra @ Lalu etc. vs. State of U.P., 2015 (3) SCALE 186.

34. Where the prosecution has shown that ''soon before her death' the deceased was subjected to cruelty or harassment by the husband or in- laws in connection with demand for dowry, the presumption under Section 113B of Evidence Act arises and the Court shall presume that such person who had subjected the woman to cruelty or harassment in connection with any demand for dowry shall be presumed to have caused the dowry death. The presumption that arises in such cases may be rebutted by the accused.

35. Now reverting back to the facts of the present case, it is clearly evident that the prosecution has established beyond reasonable doubts that ''soon before her death' Rubi was subjected to cruelty and harassment by the appellant in connection with demand of dowry. Whereas the appellant has failed in rebutting the presumption raised under Section 113B of the Evidence Act. The appellant has not adduced any evidence in order to discharge his burden, therefore, in view of the provisions u/s 113B of the Evidence Act it will be deemed that the appellant has caused dowry death.

36. The impugned judgment shows that the learned trial court has discussed each and every aspect of the matter in detail and has relied upon several judgments of Hon'ble Apex Court and of this court before holding the appellant guilty. The findings of the court below convicting the appellant under Section 304B IPC are based upon proper appreciation of evidence and convincing reasons. The court below has rightly convicted the appellant under Sections 304B and 498A IPC and Section 4 Dowry Prohibition Act. There does not appear any illegality or irregularity in the findings arrived at by the trial court requiring any interference by this court. The appeal is liable to be dismissed and is dismissed accordingly.

37. The appellant is in jail. He shall remain in jail to serve out the remaining period of sentence as awarded by the learned trial court.

38. Let a copy of this judgment along with lower court's record be sent back to the court concerned for necessary compliance.

Order Date :-20.7.2018

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