Subhash Chandra vs State Of U.P.
2019 Latest Caselaw 5071 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                                                                	     AFR
 
Court No. - 80
 

 
Case :- CRIMINAL APPEAL No. - 5331 of 2018
 

 
Appellant :- Subhash Chandra
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Satya Narayan Yadav
 
Counsel for Respondent :- G.A.
 
Connected with 
 
Case :- CRIMINAL APPEAL No. - 5285 of 2018
 

 
Appellant :- Nanhe Lal @ Prabhat Kumar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Satya Narayan Yadav
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Pradeep Kumar Srivastava,J.

1. Learned counsel for the appellants at the very out set has submitted that he will not argue on bail, but he will argue on the merits of appeal to which, learned A.G.A. has agreed.

2. Since facts of both the criminal appeals are similar and have been filed against same judgement, these appeals are decided by a common judgement.

3. These appeals have been preferred against the judgement and order dated 04.9.2018 passed by learned 1st Additional Sessions Judge, Firozabad in Sessions Trial No. 266 of 2017, arising out of Case Crime No. 58 of 2017, under Sections 304-B, 498-A, 323/34, 504 IPC, & ¾ D.P. Act, P.S. Nagla Singhi, District Firozabad by which, accused-appellants have been convicted and sentenced for the offence under Section 304-B IPC, for seven years imprisonment, for the offence under Section 498-A IPC, for three years imprisonment and fine of Rs.1,000/- and in default one month imprisonment each, for the offence under Section 323/34 IPC, for six months imprisonment, for the offence under Section 504 IPC, for one year imprisonment and for the offence under Section ¾ D.P. Act, for one year imprisonment and fine of Rs.1,000/- and in default of payment of fine, further one month imprisonment each.

4. Brief facts of the case are that an FIR was lodged on 18.1.2017 by informant Raghuveer Singh stating that the deceased was married with accused Subhash Chandra about six years before and dowry was given according to status and capacity. For about 4-6 months, the deceased was treated properly in her in-laws house but thereafter accused persons started harassing her for inadequate dowry and for non fulfillment of dowry demand. The accused persons were demanding motorcycle, buffalo and chain. On refusal to make request to her father for said demand by the deceased, the accused persons used to keep her without food. The deceased left her in-laws house and remained in her Mayka about three years and thereafter with the interference of local people the deceased was sent to her in-laws. After some time, she was again put to cruelty and harassment. Thereafter, again she came back to her Mayka and stayed there about five months. Again with the help of local people she was sent to her in-laws. On 17.1.2017 about 5.00 p.m. deceased informed her mother on phone that she is not being provided food and they are harassing her for dowry demand. On 18.1.2017, the informant went to the house of his daughter and tried to convince them but they started abusing him and tried to beat him and demanded one lac rupees. The informant came back. Thereafter, accused persons, after beating the deceased, burnt her by pouring kerosene oil. The deceased anyhow informed her father that accused persons have burnt her. Subsequently, she died because of burn injury. On his FIR, the matter was investigated by police and charge sheet was submitted against accused persons for the offence under Sections 304-B, 498-A, 323/34, 504 IPC, & ¾ D.P. Act.

5. The learned trial court framed charges against the accused-appellants for the offence under Sections 304-B, 498-A, 323/34, 504 IPC, & ¾ D.P. Act and in alternative, charge under section 302/34 was also framed. The accused persons denied charges and claimed trial.

6. The prosecution examined as many as eight witnesses. PW-1 Raghuveer is father and informant and PW-2 Guddi Devi is mother and both have been declared hostile. The other witnesses are formal in nature.

7. Statement of accused persons was recorded and they stated that they are innocent and have been falsely implicated in this case. No evidence was adduced by the accused-appellants in their defence.

8. After hearing the prosecution and defence, the learned trial court by impugned judgment convicted the accused-appellants.

9. Aggrieved by the impugned judgment, these two appeals have been preferred challenging the same on the basis that impugned judgment is perverse and without any evidence available on record and is bad in law. The learned trial court taking into consideration the irrelevant facts has passed the impugned judgment on the basis of surmises and conjectures and has misinterpreted the evidence on record. Therefore, the impugned judgment is liable to be set aside and the accused-appellants are entitled for acquittal.

10. Heard Sri Satya Narayan Yadav, learned counsel for the accused-appellants, Sri Manu Raj Singh and Smt. Alpana Singh, learned A.G.A. for the State. Perused the record.

11. From perusal of impugned judgement and lower court record, it appears that in support of prosecution case, fact witnesses P.W.1- Raghubir Singh (father of the deceased) and P.W.2- Guddi Devi (mother of the deceased) were examined who have turned hostile. PW-1 has , however, proved written report Ext. Ka-1. They have stated that accused-appellants never demanded any dowry nor on account of non fulfillment of dowry they ever subjected the deceased with cruelty and harassment. Out of wedlock, they were having two daughters, one of 3 years and other of 2 years. They have further stated that deceased was under depression and was under treatment and she never made any complaint with regard to demand of dowry or harassment. Both have stated that the deceased was burnt while she was cooking.

12. The other witnesses namely PW-3 Dr. Ravindra Singh Bhadoria has proved postmortem report Ext. Ka-2 and has stated that the deceased must have died on 18.1.2017 in the morning as she was completely burnt., PW-4 Constable Ranveer Singh has proved chick FIR Ext. Ka-3 and GD Ext. Ka-4. PW-5 SI Rameshpal Singh has proved Inquest Report Ext. Ka-5. PW-6 Tehsildar Ram Autar has also proved Inquest Report Ext. Ka-5 alongwith letter to RI Ext. Ka-6, letter to CMO Ext. Ka-7, Form no. 13 Ext. Ka-8, Photo dead body Ext. Ka-9, sample seal Ext. Ka-10. PW-7 SI Prem Prakash Yadav has proved site map Ext. Ka-11 and charge-sheet Ext. Ka-12 and PW-8 Dalvir Singh has proved the Memo of bangles, half lit matches & matches box, ashes recovered from spot, sleeper, etc.

13. In V.K. Mishra Vs State of Uttarakhand, (2015) 9 SCC 588 and Panchanand Mandal Vs State of Jharkhand, (2013) 9 SCC 800, it has been held that before recording conviction of an accused u/s 304-B IPC, the following conditions must be proved-

1. That the death of woman was caused by burns or bodily injury or otherwise than under normal circumstances.

2. That such a death should have occurred within 7 years of marriage.

3. That the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband.

4. That such cruelty or harassment should be for or in connection with demand for dowry.

5. That such cruelty or harassment is shown to have been meted out to the woman soon before her death.

14. In Shanti vs State of Haryana, AIR 1991 SC 1226, it has been held that for the application of the offence of dowry death under 304-B IPC, the death must occur by burn, bodily injury or otherwise than under normal circumstances and it covers all unnatural death, whether homicidal or suicidal.

15. In most of dowry death cases, direct evidence is hardly available as the death occurs within the confines of the matrimonial home. Therefore, such cases are proved by circumstantial evidence. It is why section 113-B of the Evidence Act enacts a rule of presumption which can be raised on proof of death of wife within within 7 years of marriage in suspicious circumstances and soon before her death, she was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. Section 113-B provides as follows:

"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 of dowry, the court shall presume that such person had caused the dowry death."

16. In Dinesh vs State of Haryana, 2014 (2) Crimes 197, it has been held that since the crimes of dowry death are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the Legislature has tried to strengthen the hands of prosecution by incorporating a presumption under section 113-B of the Evidence Act on proof of certain facts mentioned above.

Cruelty & Harassment

17. In Shivanand Mallappa Koti vs State of Karnataka, AIR 2007 SC 2314 and Rajendra vs State, AIR 2009 SC 855, it has been held that Explanation to section 498-A IPC defines cruelty and having regard to the background of the dowry death under section 304-B and 498-A IPC, the meaning of cruelty and harassment is same in both sections. Explanation to section 498-A IPC defines cruelty caused on wife by husband or his relatives as follows:

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

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

18. In short, cruel treatment or harassment of wife by husband or his relative to force her to fulfill demand of dowry is the common element for the commission of offences under section 304-B and 498-A of the Indian Penal Code. In State of Punjab Vs. Gurmit Singh, (2014) 9 SCC 632, it has been held that meaning of the words "any relative of her husband" occurring in Section 304-B IPC & meaning of the words "relative of the husband" occurring in Section 498-A IPC are identical and mean such person related by blood, marriage or adoption. A penal statute should be strictly construed. The expression "any relative of her husband" occurring in Section 304-B IPC should be limited to persons related by blood, marriage or adoption.

Soon Before Her Death

19. For the offence of dowry death, it should be shown that soon before her death, the wife was subjected to cruelty and harassment by her husband or his relatives in connection with demand of dowry. In Raja Lal Singh vs State of Jharkhand, AIR 2007 SC 2153, it was remarked that 'soon before her death' do not necessarily mean immediately before death. It is an elastic expression and cannot be defined in terms of specific period of days, a few weeks or months, but there should be perceptible nexus between the death of the deceased and dowry related harassment. In Surinder Singh vs State of Haryana, AIR 2014 SC 817, it has been held that where the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time.

20. The learned trial court has adopted unique method unknown to criminal jurisprudence in convicting the accused-appellants. The court below has read the statement of witnesses made under section 161 Criminal Procedure Code and then raising presumption contained under section 113-B of Evidence Act, convicted the accused persons. Even if, it was established that deceased was married within seven years from her death and her death was unnatural and in suspicious circumstances, but it is not enough to raise presumption available under section 113-B of Evidence Act as there is no evidence with regard to demand of dowry or harassment on the part of accused persons. It is also pertinent to mention that PW-1 is father of the deceased who also did not support the prosecution version nor the statement of PW-2 who is mother gives any support and both have turned hostile in the very beginning of their examination. Therefore, it was but obvious for the learned trial Court to see whether there was any evidence on record adduced by prosecution in support of prosecution case. It appears that despite the fact that PW-1 and PW-2 both became hostile, even then the order of conviction has been passed.

21. So far as the statement of witness under section 161 Criminal Procedure Code is concerned, such statement is not admissible in evidence. In Poddar Narayana vs State of AP, (1975) 4 SCC 153 and in Rameshwar Singh vs State of J&K, (1971) 2 SCC 503, it has been held that the statement recorded by the police officer during investigation is not admissible in evidence and it can be used to contradict the witness in cross-examination. The trial courts are prohibited from using such statement for the purpose of corroboration even. In Virendra Singh vs State of Haryana, AIR 2017 SC 1228, it has been held that no part of statement u/s 161 can be taken into account in determining culpability of accused and statement made in the course of investigation and recorded u/s 161 do not constitute evidence that can be relied upon to convict accused.

22. On the contrary, there is positive evidence given by two witnesses that since deceased was mentally disturbed and was under mental depression for which she was kept under treatment, she committed suicide. In such circumstances, only on the basis of medical evidence and statement under section 161 of Criminal Procedure Code raising presumption under section 113-B of Evidence Act, was totally illegal. The statement under section 161 Criminal Procedure Code which is recorded by the Investigating Officer cannot be used as evidence in any case.

23. On the basis of above, I find that there was no evidence available on record against accused persons and the finding of the learned trial court is completely perverse and illegal.

24. In view of above, impugned judgment dated 4.9.2018 convicting and sentencing the accused-appellants is liable to be set aside and the accused-appellants are entitled to be acquitted from the said charge.

25. Accordingly, both the appeals are allowed. The impugned judgment and order dated 4.9.2018 in S.T. No. 266/2017, Case Crime No. 58/2017, under section 304-B, 498-A, 323/34 504 IPC & ¾ D.P.Act PS- Nagla Singhi, District Firozabad, convicting and sentencing the accused-appellants is set aside and the accused-appellants Subhash Chandra & Nanhelal alias Prabhat Kumar are acquitted from the said charge.

26. Office is directed to send lower court record to the court concerned along with copy of judgment for necessary information and compliance.

Order Date :- 28.5.2019

RCT/-

(Hon'ble Pradeep Kumar Srivastava,J.)