Deepak Kumar @ Babbu @ Ballu vs State Of U.P.
2019 Latest Caselaw 6247 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on: 04.07.2019
 
Delivered on: 01.08.2019
 
Court No. - 79
 

 
Case :- CRIMINAL APPEAL No. - 4887 of 2017
 

 
Appellant :- Deepak Kumar @ Babbu @ Ballu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Som Prakash Pandey,Anil Kumar Pandey,Ashutosh Yadav,Shyam Lal
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ram Krishna Gautam,J.

1. This appeal under Section 374(2) of the Code of Criminal Procedure has been filed by convict appellant Deepak Kumar @ Babbu @ Ballu against judgment of conviction and sentence made therein by Additional Sessions Judge / Fast Track Court, Chitrakoot in Sessions Trial No. 55 of 2014 (State Vs. Deepak Kumar @ Babbu @ Ballu and another), arising out of Case Crime No. 91 of 2013, under Sections 498-A, 304-B/34, 302/34 I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Bahilpurwa, District Chitrakoot, wherein convict appellant has been convicted and sentenced with ten years' rigorous imprisonment and fine of Rs.1,00,000/- for offence punishable under Section 304-B I.P.C., three years' rigorous imprisonment and fine of Rs.10,000/- for offence punishable under Section 498-A I.P.C., two years rigorous imprisonment and fine of Rs.10,000/- under Section 4 of Dowry Prohibition Act with a direction for further imprisonment of two months each in case of default of payment of fine and concurrent running of sentences with adjustment of previous imprisonment, if any.

2. Memo of appeal is with this mention that judgment of conviction and sentence is against the fact and evidence placed on record, based on conjectures and surmises, hence not sustainable in eyes of law, liable to be set aside. Prosecution failed to prove case beyond all reasonable doubt, despite the trial Court convicted and sentenced, as above. There was material contradiction in the testimony of prosecution witnesses, but trial Court failed to appreciate it. First Information Report, dated 23.12.2013, was registered as Case Crime No. 91 of 2013 for offences punishable under Sections 498-A, 307 I.P.C. read with Section 3/4 Dowry Prohibition Act against the appellant and others, which was based on hearsay facts. Informant Chhotey Lal Jaiswal, in his testimony, has categorically said, as was deposed by him, that he was not aware of the facts of case. It was an occurrence of accident, in which Geeta suffered burn injuries at about 4.00 AM on 22.12.2013. DW-1 Smt. Kailashwati, along with her son Sandeep, rushed on spot and wrapped his quilt around the body of deceased for putting fire off. She was instantly taken at District Hospital, Karvi, from where she was referred and taken to Jivan Jyoti Hospital, Allahabad, where she was admitted in I.C.U. and this treatment of her was done by her husband, present convict appellant. He spent about Rs.4,00,000/- in medical expenses, despite this effort, unfortunately, she died on 30.12.2013. Last rituals were performed by him, which shows the bona fide conduct of convict appellant. Father and mother of Geeta rushed at District Hospital, Karvi at about 6.00 AM of 22.12.2013. Even in medical proceeding, no complaint of dowry demand or cruelty with regard to it was said by prosecution side. PW-2 Smt. Prema has said that it was a complaint two days before occurrence, hence trial Court acquitted other co-accused, who stood on trial on the same set of evidence, whereas convicted and sentenced convict appellant, as above, and he is languishing in jail since 17.01.2014. Award is maximum provided under Section 304-B I.P.C. with a fine of Rs.1,00,000/-, whereas no such provision of fine is there in Section 304-B I.P.C. Trial Court sentenced with an anxiety to sentence on the basis of whims, that is why, even without being any provisions of fine, huge amount of Rs.1,00,000/- has been imposed upon him. The sentence too was not commensurate to offence. Hence, this appeal for setting side judgment of conviction and sentence made therein.

3. Learned counsel for appellant argued that all other co-accused have been acquitted of the charges on the same set of circumstances and evidence, but convict appellant, who is husband and was with no specific accusation against him, was convicted and sentenced, as above. Sentence of rigorous imprisonment of ten years was the highest provided by legislature under Section 304-B I.P.C. and there is no provision for imposition of fine, even then fine of Rs.1,00,000/- has been imposed, which shows the anxiety and whim of presiding Judge. First Information Report was sent with inordinate delay of 24 days, which proposed ante timed F.I.R., which was not in accordance with Section 157 Cr.P.C. For having explanation of accused persons over incriminating evidence, proved by prosecution, their statement was got recorded under Section 313 Cr.P.C. But explanation given by convict appellant was not entertained in impugned judgment. There was not a single whisper of demand of dowry, punishable under Section 3 or 4 of D.P. Act, as was provided under Section 2 of D.P. Act.

4. Regulation of Police Manual, para 115 was not complied with. Marriage was not new one. Rather it was of more than six months old and for this period neither deceased was bride nor convict appellant was bride-groom, condition precedent for offence punishable under Section 4 D.P. Act. Sentence was awarded at a time for offence punishable under Section 498-A as well as Section 304-B I.P.C., whereas offence and sentence for offence punishable under Section 304-B is graver for an offence punishable under Section 498-A I.P.C., hence there required no separate sentence for offence punishable under Section 498-A I.P.C. as well as Section 304-B I.P.C., but it was anxiety of trial Judge, who sentenced for both the above offenses separately.

5. The circumstances, under which this occurrence of accident took place and which was said by convict appellant in his statement as well as by defence witnesses 1, 2 and 3 in their testimony that it was a sheer accident with no demand of dowry or cruelty with regard to it. Rather attempt for putting burn off was instantly made and for giving medical treatment convict got his wife hospitalized at District Hospital, Karvi, from where she was referred to Jivan Jyoti Hospital, Allahabad. The facts that she remained under treatment thereat and expenses of Rs.4,00,000/- were borned, but unfortunately she could not be saved, were not taken into consideration in appreciation of evidence and passing of sentence order. Hence, the appeal is against the judgment of conviction as well as quantum of sentence, with a prayer for mild sentence, if any, in above facts and circumstances.

6. Learned counsel for appellant pressed para 13 of judgment of Apex Court in Amrika Bai v. State of Chhattisgarh; AIR 2019 Supreme Court 1831, which provides:-

"13. Moreover, the fact that the F.I.R. was registered on 12.08.1989 but was forwarded to the Magistrate only on 16.08.1989, after a delay of four days, becomes significant in light of the abovementioned inconsistencies in the story of the prosecution with respect to the appellant. It appears that the appellant was roped in as an accused, due to inimical relationship between the parties which clearly emanates from the record."

7. Apex Court in Munshi Prasad Vs. State of Bihar; 2002 (1) SCC 351, while interpreting Section 157 and 154 Cr.P.C. has held that delay in dispatching F.I.R. to Magistrate - if otherwise reasonable and otherwise trustworthy - that would not be fatal to the prosecution case. In above law, filed by learned counsel for appellant, the facts and circumstances of above particular case of Amrika Bai (supra) has been discussed by Hon'ble Apex Court and under above circumstances delay in dispatching F.I.R. to Magistrate was held to be of effect over prosecution case. As per law laid down by Apex Court in Sayra Bano Vs. State of Maharashtra; 2007 Cr.L.J. 1457 SC, criminal cases are to be decided on facts and evidence laid in above case, other than on case laws and precedents. No two cases can be of one and common facts and each case is to be decided on the basis of evidence led and facts involved in above case. The principles of law in appreciation of evidence in administration of criminal justice is to be kept in mind. But the decision is not to be only on the ground of precedents. Rather upon appreciation of evidence regarding facts for separating grain from chaff is to be made by criminal court in administration of criminal justice, while making appreciation of evidence in criminal trial.

8. In present trial admitted fact which was proved by prosecution and was not rebutted by defence was that-

(i) Geeta, grand-daughter of informant PW-1 Chhotey Lal Jaiswal, daughter of PW-2 Smt. Prema Devi and PW-3 Kamlesh Jaiswal and niece of PW-4 Santosh Kumar Jaiswal was married with Deepak Kumar @ Babbu @ Ballu, S/o Shiv Kumar Shivhare, R/o Mara Chandra, Police Station Bahilpurwa, District Chitrakoot on 22.05.2013 as per Hindu rituals. She was at her nuptial house on 22.12.2013 in which she sustained burn injury and later on died i.e. death within seven years of marriage by deep burn injuries.

(ii) She was taken to District Hospital, Karvi, Chitrakoot from where referred to Jivan Jyoti Hospital, Allahabad, where she remained under treatment and succumbed on 30.12.2013.

(iii) Her last rituals including Terhi was performed by her husband, present convict appellant.

(iv) Her husband spent about Rs.4,00,000/- in her treatment at Jivan Jyoti Hospital, Allahabad for saving her, but she could not survive.

(v) First Information Report of Case Crime No. 91 of 2013 was got registered at Police Station Bahilpurwa, District Chitrakoot on 23.12.2013, upon report of PW-1 Chhotey Lal Jaiswal, for offence punishable under Section 498-A, 307 I.P.C. read with Section 3/4 D.P. Act against Deepak Kumar @ Babbu @ Ballu, Shiv Kumar Shivhare, Meena, Gudia and Smt. Rama.

(vi) After death on 30.12.2013, offence punishable under Section 304-B I.P.C. was added at place of Section 307 I.P.C.

(vii) Investigation resulted in submission of charge sheet for offences punishable under Sections 498-A, 304-B I.P.C. read with Section 3/4 D.P. Act against those five accused persons.

9. Charge sheet was filed against Deepak Kumar @ Babbu @ Ballu and his father Shiv Kumar Shivhare, which was committed to Court of Session as Session Trial No. 55 of 2014; State Vs. Deepak Kumar @ Babbu @ Ballu and another, whereas charge sheet against Meena, Gudia and Smt. Rama was filed separately, which was committed to Court of Sessions as Session Trial No. 101 of 2014; State v. Meena and 2 others.

10. Charges were framed for offences punishable under Sections 498-A, 304-B/34 I.P.C. read with Section 3/4 D.P. Act and in alternate charge for offence of murder, punishable under Section 302/34 I.P.C. As both sessions trial were of one and same occurrence, with one and common witnesses, hence they were consolidated together and a joint trial, by making leading Sessions Trial No. 55 of 2014, was made. Judgment of conviction and sentence, as above, was passed against husband Deepak Kumar @ Babbu @ Ballu for offence punishable, as above, with judgment of acquittal for offence of murder and judgment of acquittal, for all offences charged against Shiv Kumar Shivhare, Meena, Gudia and Rama was passed.

11. No appeal, by State of U.P. against judgment of acquittal, with regard to Shiv Kumar Shivhare, Meena, Gudia and Smt. Rama, is there or any appeal under Section 372, read with Section 378 Cr.P.C., by informant, against above judgment of acquittal, is there. Hence appeal, by convict appellant Deepak Kumar @ Babbu @ Ballu, against judgment of conviction and sentence made therein, is only appeal against impugned judgment.

12. Dying declaration, proved by prosecution witness Ram Gopal Verma, has been discarded by trial Court and same has been held to be within cloud of doubt i.e. dying declaration, proved by prosecution, as Ext. Ka-11, was not accepted by trial Judge and no appeal or argument by learned A.G.A. is against above finding.

13. PW-1 Chhotey Lal Jaiswal, in his testimony, has categorically said that there was no demand of dowry in the marriage. Rather it was given as per capacity and marriage was performed under joyful atmosphere. This witness never visited nuptial house of his grand daughter, who came three times to her parental house, but she used to tell to her parents only and this witness could come to know through his son Kamlesh Jaiswal. It was his grand son Vikas, who used to visit nuptial house of her and Vikas has narrated above fact to him, but this witness used to reside in another house, whereas Kamlesh Jaiswal used to reside in another house along with his family, which is at about one and half farlang distance. Information of this incident was received by his son Kamlesh. Who gave this information? is not under his knowledge. He was asked by Mukesh at 11.30 to 12.00 A.M. on 22.12.2013 for getting report lodged on the basis of narration given by Vikas. He is of no personal knowledge about facts, written in the report. Rather it was got written on the basis of narration, made by Mukesh. First Information report is Ext. Ka-1 and its registration at police station, as above case crime number, has been formally proved by this witness. But the same is on the basis of narration given by Vikas and Mukesh. Meaning thereby, regarding facts, this witness has been held to be a hearsay witness by trial Judge.

14. Section 304B of I.P.C. was inserted by Act No. 43 of 1986 w.e.f. 19.11.1986 that:-

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.

There is an explanation that 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.

15. The Apex Court in Pathan Hussain Basha Vs. State of Andhra Pradesh, AIR 2012 SC 3205 has propounded that if a married woman dies in unnatural circumstances at her matrimonial home within seven years from her marriage and these are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives.

16. The Apex Court in Satbir Singh Vs. State of Punjab, AIR 2001 SC 2828 has propounded that the prosecution under section 304B of I.P.C. cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and such was caused "soon beore her death". The word "dowry" has to be understood as it is defined in section 2 of the Dowry Prohibition Act,1961. Thus, there are three occasions related to dowry, i.e. before marriage, at the time of marriage and at an unending period. The customary payment in connection with the birth of child or other ceremonies, are not involved within the ambit of "dowry".

17. The Apex Court in many cases has propounded that where the evidence revealed that accused-husband killed deceased-wife for not satisfying his dowry demand but nothing on record to show involvement of co-accused in-laws with the offence committed by the accused, co-accused in-laws are not guilty of offence under sections 304B I.P.C.

18. The Apex Court in Kashmir Kaur Vs. State of Punjab, AIR 2013 SC 1039 has propounded that in a case of trial for dowry death the essential ingredients to attract the provisions of section 304B I.P.C. for establishing offence are (a) that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry, (b) the death of the deceased woman was caused by any burn or bodily injury or some other circumstance, which was not normal, (c) such death occurs within seven years from the date of her marriage, (d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (e) such cruelty or harassment should be for or in connection with demand of dowry, and (f) it should be established that such cruelty and harassment was made soon before her death.

19. The Apex Court in Banshi Lal Vs. Hate of Haryana, AIR 2011 SC 691 has propounded that the court has to analyse the facts and circumstances as leading to death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. Meaning thereby cruelty or harassment with regard to demand of dowry soon before death is a crucial ingredient to be proved by prosecution before attracting any provisions of section 304B I.P.C.

20. Apex Court in Mustafa Shahdal Shaikh Vs. State of Maharashtra, AIR 2013 SC 851 has propounded that "soon before death" means interval between cruelty and death should not be much. There must be existence of a proximate and live links between the effect or cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.

21. This has again be reiterated by Apex Court in Kaliyaperumal Vs. State of Tamil Nadu, AIR 2003 SC 3828 that the expression 'Soon before her death" used in the substantive section 304B I.P.C. and section 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression "soon before hear death" is not defined. 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 effect 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 to disturb mental equilibrium of the woman concerned, it would be of no consequence.

22. Regarding presumption under section 113B of the Evidence Act in this very ruling the Apex Court has propounded that 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 a woman.

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.

23. Though, the Apex Court has visualised that direct ocular testimony is rarely available in dowry death case and in most of such offence direct evidence is hardly available and such cases are usually proved by circumstantial evidence. This section as well as section 113B of the Evidence Act enact a rule of presumption i.e. if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply.

24. Hence the present case is to be scrutinized in view of above settled principle of law and factual evidence proved on record.

25. Before going any further, it would be relevant to mention here that section 113B of Indian Evidence Act, 1872, provides that 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. The explanation to the section provides that expression 'dowry death' shall have the same meaning as in section 304B of IPC. Section 304B of the IPC defines 'dowry death' and provides punishment for said offence. Section 304B IPC provides that 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 other 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.

26. Sub-section 2 of section 304B further provides that whoever commits dowry death shall be punished for imprisonment for a term which may not be less than seven years but which may extend to imprisonment for life. It is relevant to mention here that section 498A provides punishment for an offence of cruelty by husband or a relative of husband of a woman.

27. Their Lordships of Hon'ble Supreme Court in the case of Satvir Singh and others vs. Sate of Punjab and another, (2001) 8 SCC 633 has observed as under:

"20. Prosecution, in a case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus:

"2. 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 marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by 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 dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

28. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

29. It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words soon before her death is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death".

30. Their Lordships of Hon'ble Supreme Court in the case of Rajinder Singh v. State of Punja, (2015) 6 SCC 477 has observed as under:

"7. The primary ingredient to attract the offence under Section 304B is that the death of a woman must be a "dowry death"."Dowry" is defined by Section 2 of the Dowry Prohibition Act, 1961, which reads as follows:

"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 to the marriage; or

(b) by the parents of either party to a marriage or by 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 dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I.- [***] Explanation II.-The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)."

8. A perusal of this Section shows that this definition can be broken into six distinct parts:

(1) Dowry must first consist of any property or valuable security - the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.

2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.

3) Such property or security can be given or agreed to be given either directly or indirectly.

4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.

5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.

6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to".

9. The ingredients of the offence under Section 304B have been stated and restated in many judgments. There are four such ingredients and they are said to be:

(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;

(b) such death must have occurred within seven years of her marriage;

(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(d) such cruelty or harassment must be in connection with the demand for dowry."

31. Now, this Court has to examine as to whether the basic ingredients to attract the provisions of section 498-A and 304-B IPC have been proved by the prosecution. First ingredient under Section 304-B IPC is that the death of a woman should be caused by burn or fatal injury or otherwise than under a normal circumstance. In order to prove this ingredient, prosecution has produced prosecution witnesses of fact PW-2 Smt. Prema Devi and PW-3 Kamlesh Jaiswal, who in their testimony had proved death of Geeta, owing to anti mortem burn injury, occurred at her nuptial house, during course of treatment at Jivan Jyoti Hospital, Allahabad. This act has also been proved by defence witnesses DW-1 Kailashwati, DW-2 Smt. Rani and DW-3 Munna Lal Jaiswal. This has not been disputed by learned counsel for defence, therefore, there is no doubt that the first essential ingredient of Section 304-B I.P.C. is present in this case that deceased has died under unnatural circumstances, as the deceased sustained anti mortem burn injury, after pouring kerosene oil and putting her at ablaze, for which she was rushed to District Hospital, Chitrakoot and therefrom to Jivan Jyoti Hospital, Allahabad, where she succumbed on 30.12.2013 during course of treatment.

32. There is no dispute regarding existence of second essential ingredient of Section 304-B I.P.C. because admittedly marriage of deceased Geeta was performed on 22.05.2013 with convict appellant and she died, owing to anti mortem burn injury, sustained on 22.12.2013 at her nuptial house and succumbed on 30.12.2013. Hence, it was a death within seven months of marriage. This fact has not been disputed by defence.

33. Now, the question is whether third ingredient of Section 304-B I.P.C. relating to cruelty and harassment by husband convict appellant in connection with dowry demand and harassment of deceased soon before her death was present or not?

34. PW-2 Smt. Prema, under her testimony has said that her daughter Geeta was married with Deepak and when she came back, she complained about demand of Fridge and Washing Machine by her in-laws. She also apprised about demand of wall T.V. This was being demanded by her husband and she was subjected to cruelty with regard to it. It was complained by her on telephone. She was not being permitted to be at her parental house. When upon direction given by convict appellant, her husband went to Maarkundi and claimed pardon from brother-in-law of convict appellant, thereafter, she was permitted to be at her parental house. Regarding this testimony, there is no contradiction, embellishment or exaggeration in her examination-in-cross. Rather, this has further been reiterated that:-

"जब मेरी लड़की ससुराल से वापस आयी थी तो पहली बार तब मुझसे बताया था की ससुराल के लोग वाशिंग मशीन व फ्रिज की मांग करते थे । कहते थे की अपने माँ बाप से कहो की ये सामान भेज दे ।"

[When my daughter came from her nuptial house, she complained about demand by in-laws for Washing Machine and Fridge with a direction to tell her parents for giving the same. (English translation by Court itself.)]

35. In further cross-examination, she has said that she never disclosed this fact to any other member of family, except her husband, and again after one month, this complaint was made by deceased Geeta to her, two days before this anti mortem burn injury. A suggestive question has been put to this witness that no such demand or cruelty was ever made, which has been answer in negative. This witness has categorically said that:-

"मेरी लड़की से इसके पहले भी फ़ोन से मेरी बात चीत हुआ करती थी । लेकिन दहेज़ के लिए परेशान करने वाली बात मुझे जलने के दो दिन पहले बताया था। इससे पहले कभी नहीं बताया था।"

[We converse often on phone prior to this occurrence, but she apprised about this cruelty for dowry two days before occurrence of burn injury. Prior to it, it was not told. (English translation by Court itself.)]

36. Learned counsel for defence has vehemently argued that no such cruelty was ever complained by deceased and it was complained for the first time two days before the occurrence. This Court is not going to accept this argument because the demand of T.V., Fridge and Washing Machine was being made and it was being apprised by deceased at the time of her visit to her parental home, but the occurrence of cruelty was narrated two days before the occurrence. Meaning thereby, prior to it, there was demand and two days before this occurrence, there was cruelty and this was narrated to I.O. that accused persons were not satisfied with dowry, which has been admitted by prosecution witness I.O. Hence, this witness has not been cross-examined upon this fact that deceased was not permitted to go to her parental home and only after claiming pardon from brother-in-law of convict appellant and upon his information like that, she was permitted to be with her brother for her parental home. There had been demand of dowry coupled with cruelty, two days before occurrence, whereas, in all, marriage was seven months old and demand was persistent.

37. The testimony of this witness PW-2 is corroborated by testimony of her husband PW-3 Kamlesh Jaiswal, in which he has specifically said in examination-in-chief that:-

"मेरी लड़की ने दो बार फ़ोन से बताया था कि दीपक, मीना, गुड़िआ, शिव कुमार, उक्त लोगो ने फ्रिज व वाशिंग मशीन की मांग करते है। उसने मुझे फ़ोन से बताया है की मुझे मीना बहुत परेशान व प्रताड़ित करती है ।"

[My daughter had stated two times to me that Deepak, Meena, Gudia, Shiv Kumar were demanding Fridge and Washing Machine and for which Meena was torturing her. (English translation by Court itself)].

38. In further cross-examination, this witness has said that on the eve of Raksha Bandhan, Nitin and Vikas had gone to home of Geeta, but she was not permitted to be at her parental house. There was complaint regarding dishonour committed towards father and brother-in-law of husband. Upon this, after receiving information from Geeta, this witness along with his brother Ram Kumar went through motorcycle at Maarkundi for claiming pardon from brother-in-law of Deepak and pardon was claimed, thereafter, Geeta was permitted to be at her parental house and when she came to her parental house, she narrated about demand of Fridge, Washing Machine by in-laws and cruelty with regard to it. This witness has categorically said that:-

"जब लड़की मेरे घर आयी तो मुझसे व अपनी माँ से यह बताया की ससुराल वाले फ्रिज व वाशिंग मशीन की मांग करते है और इस बात को लेकर मुझे प्रताड़ित करते है। लड़की ने बताया था की यदि सामान नहीं आया तो तुझे नहीं रखेंगे। जलाकर मार देंगे। मेरी लड़की लगभग तीन महीना मायके में रही कोई लिवाने नहीं आया था। फिर शिव कुमार दिनांक 04.12.13 को विदा कराने आये थे तथा साथ में टी.वी. जो दहेज़ में दिया था उसको वापस लेकर आये थे। और कह रहे थे कि ये टी.वी. नहीं चाहिए हमें दीवाल वाली टी.वी. चाहिए । शादी में दी गई टी.वी. शिव कुमार हम लोगो के यहाँ छोड़कर गए थे। और काफी आनाकानी करने के बाद लड़की को विदा कराकर ले गए थे। हम लोगों ने शिव कुमार से कहा था कि इससे अच्छी टी.वी. दे देंगे। "

[When my daughter came to house, she narrated to her mother that her in-laws were demanding Fridge and Washing Machine and, owing to it, they were torturing her. She has also said that if the articles, as above, is not being given they will not keep her and will get her burnt. My daughter remained for three months in parental house, but none came to take her back. Shiv Kumar came on 04.12.2013 for taking her, but he brought back T.V., which was given in dowry and asked that this T.V. was not to be accepted, but a wall T.V. is to be given. Above previously given T.V. was left by Shiv Kumar and he was not amenable to take her daughter to her nuptial house, but after many persuasions and assurance for giving a good T.V. Geeta was taken to in-laws house. (English translation by Court itself).]

39. Regarding this examination-in-chief, there is no cross examination by learned counsel for defence. Rather it was fully intact and uncontroverted. Learned counsel has vehemently argued about statement that no demand was made at the time of marriage and marriage was under joyful atmosphere. That is saying of this witness too. But subsequent development, resulting demand of dowry and cruelty with regard to it, was said by this witness and the same was intact.

40. Learned counsel for convict appellant vehemently argued that on giving a suggestive question to this witness that deceased was adamant to have frequent visits to her parental house, but because of being only son and daughter-in-law, she was being objected, resulting her depression, thereby commission of suicide by pouring kerosene and igniting the same. This has been said be DW-1 too that she wanted to be frequently at her parental house, which was forbidden by her in-laws. Thereby, she committed suicide by pouring kerosene oil over her and putting her at ablaze. But this forbidding for being at her parental house was because of above demand of dowry and non-fulfillment of it, as has been proved by PW-2 and PW-3. Even if, suggestion of learned counsel for defence is being accepted, a bride usually may not be forbidden for being at her parental house on the eve of Raksha Bandhan. It is a cruelty, resulting depression, for which in-laws are responsible. Hence, a careful scrutiny of evidence available on record, as above, shows that PW-2 and PW-3 consistently proved demand of dowry and cruelty with regard to it, including cruelty with complaint, two days before this burn and death by anti mortem burn.

41. PW-4 is Santosh Kumar Jaiswal. He has become hostile, but mother and father of deceased have categorically said that demand of dowry and cruelty with regard to it, as was being complained by deceased, were not disclosed to anyone, even to the father of PW-3. Hence, non-awareness of any third person is of no effect over prosecution.

42. PW-5 Shatrughan Vaisya is Executive Magistrate, who has proved inquest proceeding and Ext. Ka-2 Inquest Report, prepared by him on 30.12.2013 at Jivan Jyoti Hospital, Allahabad. This fact is not disputed even in the statement, recorded under Section 313 Cr.P.C., by accused and death, owing to anti mortem burn injury, during course of treatment, is not a disputed fact.

43. PW-6 is Dr. Ram Kumar, who has conducted autopsy examination and has proved post mortem examination report, prepared under his handwriting and signature and being on record as Ext.Ka-3 with document Ext.Ka-4. This death was owing to anti mortem injury of burn and infection resulting septicemic shock. The burn was owing to inflammatory substances in area of about 95%. Presence of kerosene oil in the content (saree) of docket, sent for Forensic Science Examination, has been reported in laboratory report, whereas plea of defence was that while being working at Gas stove, fire caught cloth of deceased, resulting this burn. But, in spot inspection, a plastic container, having kerosene oil in it and presence of kerosene oil over the cloth of deceased and this anti mortem burn injury, by way of pouring kerosene oil and putting her at ablaze, is there. Hence, this injury was not of accident. Testimony of this witness is fully intact and it is wholly reliable witness.

44. PW-7 is Dr. S.K. Dubey, who has formally proved death of Geeta, during course of treatment at Jivan Jyoti Hospital, on 30.12.2013, while being under treatment at above hospital under medical treatment of this witness and he had sent information to police regarding death (Ext.Ka-3) has been formally proved by this witness, for which there is no contradiction.

45. PW-8 is Sudhir Jaiswal, Investigating Officer. He has proved his investigation and submission of charge sheet, under his handwriting and signature. Same being Ext. Ka-5 on record. He has formally proved Ext.Ka-6, subsequent charge sheet filed against other accused persons. This witness has categorically said that deceased was not in position to speak or give dying declaration and PW-2 has categorically said that no such dying declaration was ever recorded and trial court has not accepted dying declaration and the same has been held to be full of doubt, against which there is no argument by State counsel. Hence, his testimony is of formal nature.

46. PW-9 is Suresh Chandra Rawat, Additional S.P. Investigating Officer, who has formally proved his investigation. PW-10 is Sub Inspector Pannalal, who has proved his investigation just after registration of Case Crime No. 91 of 2013, under Sections 498-A, 307 I.P.C. read with Section 3/4 D.P. Act, P.S. Bahilpurwa, District Chitrakoot, but subsequently investigation was transferred to next Investigating Officer. This witness has formally proved Ext.Ka-7, Ext.Ka-8, Ext.Ka-9 and Ext.Ka-10. In cross-examination, this witness has specifically said that prosecution witness has said about dissatisfaction of dowry given in marriage, though demand of cruelty has not been said by them. Demand of new T.V. and new Fridge communicated by deceased to her mother was added by her i.e. Prema Devi to this witness. In said statement under Section 161 Cr.P.C. it has been categorically said by this witness in his testimony that:-

" मृतका की माँ प्रेमा देवी ने वाशिंग मशीन मांगने की बात नहीं बताई थी बल्कि टी.वी. नया देने तथा नया फ्रिज मांगने की बात लड़की के द्वारा बताने के आधार पर बताई है ।"

[Mother of deceased i.e. Prema Devi had not told about demand of washing machine, but she has told for new television and new fridge, being demanded by in-laws, which was narrated by bride to her mother. (English translation by Court itself).]

47. Meaning thereby, regarding demand of new fridge and new T.V., there was statement under Section 161 Cr.P.C., for which there is no contradiction, embellishment or exaggeration. This witness is fully intact. During investigation, case of burn from gas cylinder was told to this witness and it was shown in the map, whereas burn injury was a burn after pouring kerosene oil and putting at ablaze, for which plastic container having fuel kerosene oil in it was recovered from spot of occurrence. Hence, the very cause of burn, narrated by accused persons, was against the fact.

48. Testimony of PW-11 Naib Tehsildar Ram Gopal Verma is regarding dying declaration, but the same has been proved to be full of doubt and not supported by Medical Officer PW-12 Dr. P.D. Chaudhary, who has categorically said that without ensuring as to whether injured was in position to speak or was speaking, he executed certificate of her mental fitness, before looking of witness and after recording of statement, while being seated at chamber, which was away from the ward, where injured was admitted. Medical Officer was not present on spot even then, he executed certificate and that is why this dying declaration was rightly and vehemently discarded by trial Court, resulting acquittal for alternate charge of murder punishable under Section 302 I.P.C.

49. PW-13 is Riyajuddin, formal witness of Court, Parokar who had proved G.D. Entry (Ext.Ka-12) as a secondary evidence.

50. Hence, upon overall appreciation of above evidence, all ingredients, required under Section 304-B I.P.C., was successfully proved by prosecution. Now, burden was over defence to rebut presumption under Section 113-B of Evidence Act, written as above, for which three witnesses have been examined, in which DW-2 and DW-3 are witnesses for proving plea of alibi for the co-accused and this was accepted by trial court for which other co-accused Shiv Kumar Shivhare, Meena and Gudia have been acquitted, for which there is no appeal. Hence, those two witnesses were for those acquitted persons. Testimony of DW-1, who is the first witness present on spot, is of this fact that after marriage Geeta was not easily permitted to visit her parental house and was forbidden for it, which resulted her depression and commission of suicide after pouring kerosene and putting her at ablaze. This goes against defence. Rather, it supports prosecution case.

51. Apex Court in State Of Maharashtra Etc. Etc vs Sukhdeo Singh And others, Death Reference Case No. 1 of 1989 and Criminal Appeal No. 17 of 1990, decided on 15.7.1992, has observed as under:-

"Section 313 of the code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words `shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him, which has surfaced on record."

52. In the present case, trial Judge has taken into consideration the answer given under Section 313 Cr.P.C. to explain regarding incriminating evidence proved by prosecution and on appreciation of evidence, the same is in consonance with evidence on record.

53. Learned counsel argued that after this seven months, neither deceased remained bride nor convict appellant as bride-groom, which is condition precedent for offence punishable under Section of 4 D.P. Act. This Court is not going to accept above argument because marriage was performed on 22.05.2013 and this occurrence took place on 22.12.2013 i.e. within seven months. Even a cycle of year including one Basant was not passed and in all these seven months, there had been demand of new T.V., new Fridge accompanied with return of T.V., which was given in marriage, coupled with mental torture and harassment of father of deceased, by way of compelling him to go to brother-in-law of husband and father of husband for seeking pardon and regret for his behaviour for not giving adequate honour in the marriage. This all cumulative effect brings the sequence under Section 4 D.P. Act. Trial court has concluded and passed the judgment of conviction well within appreciation of fact and evidence placed on record. There is no illegality or perversity in judgment. Hence, regarding conviction this appeal merits its dismissal.

54. So far as sentence regarding appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case.

55. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to society's cry for justice against the criminal'. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].

56. It is true that legislature has not provided fine to be imposed for offence punishable under Section 304-B and in present case, learned Sessions Judge has imposed fine of Rs.1,00,000/-. Hence, regarding fine, this sentence is against provisions of Section 304-B I.P.C., therefore, that part is to be deleted.

57. Admittedly, deceased was taken to District Hospital, Chitrakoot for her treatment, information was given to parents of deceased, they have rushed at above hospital and found her being under treatment. She was referred for specialized treatment at Jivan Jyoti Hospital, Allahabad. Convict appellant brought her at above hospital at Allahabad and got her admitted and treated till death on 30.12.2013. About Rs.4,00,000/- has been admittedly spent upon her treatment. After death, last rituals were performed by husband at his own. These all shows that demand of dowry and dowry death, as above, was committed, but convict appellant was with not that great mens rea requiring that much severe punishment awarded to him. Rather, rigorous imprisonment of seven years will suffice the end of justice.

58. Learned counsel for defence argued that separate sentences for offence under Section 498-A and 304-B I.P.C. is not needed, as was held by apex court in Smt. Shanti and another vs. State of Haryana; (1991) 1 Supreme Court Cases 371. It is not rule of law because offence under Section 498-A as well as 304-B are substantive offence and in that law itself the word may has been used, which means not must and in present case there is direction for concurrent running of sentences, which is not illegal. Regarding sentence under Section 4 D.P. Act, the same is well within facts, evidence and law placed on record. Hence, appeal regarding sentence is partly to be allowed regarding imposition of fine under Section 304-B I.P.C. and award of sentence of ten years rigorous imprisonment. Hence appeal is partly allowed.

59. Judgment of conviction is confirmed. Regarding sentence, the imposition of fine and rigorous imprisonment of ten years and additional imprisonment in default of payment of fine is being deleted and rigorous imprisonment of ten years is substituted as below:-

Convict appellant is sentenced with rigorous imprisonment of seven years under Section 304-B I.P.C., two years rigorous imprisonment with fine of Rs.10,000/- and in default two months additional imprisonment for offence punishable under Section 4 D.P. Act, three years rigorous imprisonment with fine of Rs.10,000/- and in default two months additional imprisonment under Section 498-A I.P.C. with a direction for concurrent running of sentences and adjustment of previous incarceration in this case.

60. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate change of warrant of sentence, as above, and follow up.

Order Date :- 01.08.2019

NS