Guddu @ Gokaran vs State Of U.P.
2021 Latest Caselaw 9692 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
RESERVED ON 12.07.2021 
 
DELIVERED ON 06.08.2021
 

 
Case :- CRIMINAL APPEAL No. - 650 of 2003
 

 
Appellant :- Guddu @ Gokaran
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Farhan Alam Osmany,Rama Pati Shukla
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Karunesh Singh Pawar,J.

1. Heard Shri R.P.Shukla, learned counsel for the appellant and Shri Jayant Singh Tomar, learned A.G.A. for the State and perused the record.

2. The present appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 has been preferred by the accused/appellant Guddu alias Gokaran against the judgment and order dated 10.04.2003 passed by the Special Sessions Judge, Sitapur in Sessions Trial No. 487 of 1997 arising out of Case Crime No. 196 of 1996, under Sections 498A, 304B, 201 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, Police Station Ramkot, District Sitapur, whereby the appellant was convicted under Section 3/4 of the Dowry Prohibition Act and sentenced to undergo one year rigorous imprisonment and a fine of Rs.1000/- and in default of fine to undergo two months' additional imprisonment; and also convicted under Section 304-B I.P.C. and sentenced to undergo ten years' rigorous imprisonment and a fine of Rs.2000/- and in default of fine to undergo three months' additional imprisonment. It was further directed that both the sentences will run concurrently.

3. The prosecution story, in brief, as per First Information Report (Exhibit Ka 4), is that prior to about six years ago from 19.08.1996, the informant Baburam (P.W.1) married her daughter Smt. Saraswati (deceased) with accused/appellant Guddu alias Gokran, wherein he gave Rs.10,000/- cash as well as goods worth Rs.10,000/- as per his status. The accused/appellant and his family members were not happy with the given cash and goods and, after marriage, repeatedly demanded one buffalo and cash worth Rs.10,000/- towards dowry. On account of non-fulfillment of aforesaid demand of dowry, his daughter (Smt. Saraswati) was not allowed to use the goods given by the informant; accused was used to give trouble to her to eat and drink; was used to torture her for dowry in various ways; and also accused Guddu had beaten her. Prior to one month from 19.08.1996, accused persons had exerted pressure to give buffalo and 10,000/- rupees as dowry and his daughter was tortured and threatened her for life. On 8.8.1996, Jagdish, son of Jagat Narain, resident of Rahmatpur informed him that due to dowry, after killing his daughter, the accused had burnt the dead body of his daughter. Upon receiving this information, he went to the house of in-laws of his daughter, where his grand daughter Reeta, aged about 11 years, told him that the accused/appellant, after killing his daughter, burnt her dead body in Nimsar. Thereafter, the informant- Baburam went to police station Ramkot and submitted an application for lodging First Information Report but his report was not written. Therefore, informant- Baburam had filed the aforesaid application for lodging First Information Report under Section 156 (3) Cr.P.C. (Exhibit Ka 2) before C.J.M., Sitapur, upon which an order was passed for lodging First Information Report. On the basis of this typed report, First Information Report was lodged at Police Station Ramkot on 23.08.1996 at 21:50 hours, which was registered as Case Crime No. 197 of 1996, under Sections 498A, 304 B, 201 I.P.C. and Section 3/4 of the Dowry Prohibition Act.

4. The investigation of the case was conducted by Circle Officer, City Sitapur Sri S.N. Bhardwaj (P.W.4), who, in his deposition, has stated that on 24.08.1996, he was posted as Circle Officer, City Sitapur. The information regarding investigation of the case was received from the office of Police Station Ramkot on 24.08.1996. After obtaining copy of the chik F.I.R. and G.D., he had started investigation of the case w.e.f. 24.08.1996. Firstly, he obtained chik report from case diary and G.D. and thereafter recorded the statement of Head Moharrir Tej Bhan Singh. Thereafter, he reached at the house of the deceased Saraswati Devi situated at Village Itaunja from police station Ramkot with police personnel and recorded the statement of witnesses Bechelal and Chedu etc. Thereafter, he inspected the place of occurrence and prepared site plan (Ext. Ka.1). After conclusion of the investigation, he has filed the charge-sheet (Ext. Ka. 3) before the competent Court.

5. Initially, an application under Section 156(3) Cr.P.C. was given by the informant. Thereafter by the order of Court, the First Information Report was lodged and after completing the investigation, charge sheet was filed. The committal order was passed on 17.3.1997 and the case was committed to the court of Sessions' Judge, where the learned Sessions' Judge has framed charges under Sections 498A, 304B, 201 Indian Penal Code and Section 3/4 Dowry Prohibition Act against the accused/appellant, who denied the charges and claimed to be tried.

6. Learned Sessions Judge, vide impugned order, while convicting the accused appellant under Section 3/4 Dowry Prohibition Act and sentencing him for one years rigorous imprisonment with fine of Rs.1000/- and for ten years rigorous imprisonment under Section 304-B Indian Penal Code with fine of Rs.2000/-, acquitted him under Sections 201 and 498A of the Indian Penal Code.

7. In order to prove its case, the prosecution has produced the application under Section 156(3) Cr.P.C. as exhibit Ka2, site plan as exhibit Ka1, First Information Report as exhibit Ka4, charge-sheet as exhibit Ka3 and copy of the general diary as Ka5. The prosecution has produced P.W.1-Baburam (informant), who is the father of the deceased Saraswati Devi, P.W.2 Reeta, who is grand daughter of informant, P.W.3 Dr. Ramchandra Mishra, who is the private practitioner, P.W.4 S.N. Bhardwaj, who conducted the investigation of the case. In defence, the accused has produced D.W.1 Khusiram, who is the cousin brother of the informant Baburam.

8. In his statement recorded under Section 313 Cr.P.C., the accused has admitted the fact that marriage of the deceased Saraswati took place with Guddu alias Gokaran in the year 1985 but denied the other allegation of the prosecution and stated that deceased Saraswati died on account of disease and he has been falsely implicated due to enmity.

9. P.W.1 Baburam, who is the father of the deceased Saraswati, in his deposition, has stated that the marriage of Saraswati took place with Guddu alias Gokaran ten and a half years ago. In the marriage, he gave Rs.10,000 cash and goods worth Rs.10,000/-., for which, his son-in-law Guddu, the father-in-law of his daughter Tejram, his wife Rampa, Surendra and his wife and Mahendra were not happy. After marriage, the aforesaid persons have repeatedly demanded Rs.10,000/- cash and one buffalo. One and a half months before the death of his daughter, again Rs.10,000/- and buffalo were demanded by the appellant and his family members, which he could not fulfill. Thereafter, they, after killing his daughter, burnt her dead body. The information regarding the death of his daughter was given by one Jagdish s/o Jairam. Upon receiving this informatioin, he went to the house of the appellant, where his grand daughter Reeta, who was there with the deceased for the last one month before her death, informed that they have killed his daughter and burnt her in Nimsar. He further stated in the cross-examination that at the time of death of his daughter, Reeta was living with his daughter, who was about 10 to 11 years old. He further stated that he lodged the information regarding death of his daughter one day after cremation. He also said that he does not know Jagat Narain, father of Jagdish. He stated that he cannot identify Jagdish. He also stated that his daughter was killed by burning her as per the information given by Jagdish and thereafter he says that Reeta told him that deceased was poisoned. He also stated that he did not mention the fact of poison having been given to her daughter in the application filed under Section 156(3) Cr.P.C. as he was not aware about this at that time. He denied the suggestion that the deceased was married on 26.2.1985.

10. P.W.2 Reeta, who is the grand daughter of the informant, on 20.7.2001, in her examination in chief, has stated that the deceased was married 10 to 11 years ago. In the marriage Rs.10,000/- cash and goods worth Rs.2,000/- was given and buffalo was demanded by appellant and others as dowry, which could not be given by the informant. Then she states that the deceased was administered poison. In the cross examination, she stated that upon receiving the information of death, her mother, grand daughter Shiv Ratan and his father came and after seeing the dead body of Saraswati (deceased), all of them said that she has been killed by giving poison. In the cremation, her father Shiv Ratan went to Nimsar; at the time of the death of the deceased, she was 15-16 years old; and she was not born at the time of the marriage of the deceased, therefore, she cannot say what was given in the marriage. Then, she said that the informant, her grandfather also went to the matrimonial home of the deceased and, thereafter, she told them that Saraswati ate pakodas on saying of her mother-in-law in her room and after eating, she went in front of the house, she vomitted there, then, she was taken by neighbours to Dr. Virendra. The dead body of the deceased Saraswati came at 3.30p.m. to her home and on the next date, information was sent to her village Niyazpur. From there tractor trolley came and from that tractor trolley, the dead body of the deceased Saraswati was taken to Nimsar. She further said that she went to live with the deceased 15 days before her death. One day prior to the death, the deceased was looking lethargic, then, her grand mother wanted to take Bablu (the son of the deceased) along with her which was refused by the appellants and his family members, therefore, her family members were angry with them. She again says that poison was not given in front of her. One month before death, the deceased told that she was not given proper meal. People told her about poison. The deceased was taken to the Doctor, who opined that she was suffering from Cholera. She again said that grand mother wanted to take Bablu, which was refused by the appellant and her family members.

11. P.W.3-Dr. Ramchandra Mishra, who is the private practitioner, was examined and in the examination-in-chief, he stated that one Tejram (father-in-law of the deceased) took the deceased to him for treatment and along with them, appellant and two other ladies were there. He was told that she was suffering from vomiting and dysentery, then, he gave initial treatment by administering glucose and injection "gentamicin". When her position did not became stable, then, he referred her to District Hospital, Sitapur. Later on, he came to know that she died. In the cross-examination, he stated that he treated her for three hours and while she was treated, she was having symptoms of cholera. Apart from cholera, there was no possibility of poisoning appeared to him.

12. D.W.1- Khusi Ram was examined on 20.2.2003 and he stated that the marriage with the appellant and the deceased was solemnized by his mediation. The marriage took place on 28.2.1985. No dowry was agreed upon nor any party demanded dowry. He was in touch with the deceased but she never complained and she told him that she was living happily. He went to the cremation of the deceased. After hearing the death of the deceased, Baburam (PW1), his wife, his sons Shiv Ratan, Virendra and their wives went to the house of the deceased through tractor trolley and he met with them there. After they reached, the cremation of the deceased was done. He also went in the dasvi and terahvi ceremony of the deceased, then, again Baburm (PW1) met him and returned along with him. While returning, he was saying that since his grand son has not been sent along with him, he will falsely implicate these peoples in the dowry case. He denied the suggestion that he is telling the date of marriage on his own and without any evidence.

13. Learned counsel for the appellant submits that no offence under Section 304-B of the Indian Penal Code is made out nor any offence under Section 3/4 Dowry Prohibition Act has been made out. Death has not taken place within seven years from the date of the marriage, hence the provisions of Sections 113-A and 113-B of the Evidence Act, 1872 are not attracted. Except the charge under Section 304 B of the Indian Penal Code and Section 3/4 Dowry Prohibition Act, no alternative charge have been framed. There is no evidence of cruelty soon before the death for demand of dowry. He relied on the judgement of Hon'ble Supreme Court of India reported in 2004(3) SCC 122, Baljeet Singh and another vs. State of Haryana and emphasis has been laid on paras 8, 9, 10 and 17 of the judgement.

14. On due consideration to arguments advanced by the parties' counsel and perusal of record it appears that the statement of P.W.1 is contrary to what has been said in the application under Section 156(3) Cr.P.C. In his statement, he has alleged that the deceased was poisoned, whereas in the application under Section 156 (3) Cr.P.C., his case was that she was burnt. His statement that the deceased was married 10 and a half years ago, has been falsified by Reeta, who has stated that at the time of the death of the deceased, she was 15-16 years old and she was not born at the time of her marriage, which means that the deceased was married way back and ultimately beyond 7 years from her death as the statement was given on 20.7.2001. This statement of Reeta has been corroborated by DW1, who has stated that the deceased was married on 28.2.1985, and both DW1 and PW2 have contradicted the testimony of PW1 that the deceased died within 7 years of her marriage. Further the other story of PW1 that he received the information regarding death of deceased daughter one day after the cremation, has again been contradicted by PW2 who has stated that the informant and his family members went to the house of the appellant upon the death of the deceased and on the next day, the dead body was taken to Nimsar on her tractor which came from Niyazpur. In the cremation, her father and Shiv Ratan went to Nimsar. This testimony of PW2 has been corroborated by DW1, who has stated that the informant and his family members as well as their wives all participated in the cremation of the deceased Saraswati. Not only this, DW1 himself as well as the informant had participated in dasvi and terhvi of the deceased, where informant met him and returned with him and while returning he was saying that since his grand son (bablu) has not been sent/has not been given to him therefore he will falsely implicate them. From these testimonies of the DW1 and PW2, the story of PW1 is falsified. The entire story crafted by him under Section 156(3) Cr.P.C. as well as the statement of PW1 is false and not corroborated with the testimony of PW2 and DW1. He knew about the death of his daughter and not only knew but he went there and took part in the cremation. The participation of the informant in dasvi and terhvi after ten days of the incident as per statement of DW1 and also took part in cremation are also evident from statement of the PW2, therefore, this part of evidence of PW1 is not trustworthy, hence discarded.

15. The statement of DW1 that while returning Baburam PW1 said since his grand son was not sent with him by accused persons therefore he will falsely implicate them, found support and corroborate from the statement of PW2 Reeta, who also has said that since Bablu (grand son of the PW1) has not been sent with her grand mother, therefore, his family members got annoyed. This may be cause of lodging First Information Report. According to statement of DW1, there was no allegation of dowry nor anybody demanded dowry nor the same was fixed in the marriage nor even the deceased did complaint regarding dowry with him. PW2, in her cross examination, has stated that regarding dowry, no one has talked to her although in examination-in-chief, she has stated that Rs.10,000/- and a buffalo was being demanded by the appellant and his family members, thus, again regarding the demand of dowry, the statement of PW1 is not corroborated with the statement of other witnesses PW2 and DW1, hence this also cannot be relied on.

16. PW1, in his cross examination, has stated that at the time of the death of deceased, Reeta PW2 was 10 to 11 years old. PW2 has stated that she was not born at the time of marriage of the deceased. Thus conjoint reading of statement of DW1 and PW2, it appears that the deceased was married at least more than 11 years ago before date of her death. This fact is further corroborated by the statement of DW1, who says that the deceased was married on 26.2.1985. The entire testimony of the PW1 either it is regarding the manner of death of the deceased, time of marriage of the deceased, information of death of the deceased, is not corroborated with the statement of DW1 and PW2, rather has been contradicted. The testimony of the PW1 is also not trustworthy because as per his own statement, Jagdish son of Jairam, informed him about the incident, then, he says grand daughter Reeta, who informed him, then, in the cross-examination, he says that he does not know Jagat Narain, father of Jagdish. He also says that he cannot identify Jagdish, who has informed him regarding the incident, although he happens to be the relative. False and contradictory testimony of PW1 does not inspire confidence. The same is not corroborated by the testimony of PW2 and DW1.

PW4 is investigating officer who has proved exhibit ka 1, Ka 2, Ka3, Ka4 and Ka5.

17. In this case considering the testimony of PW1 which is nothing but a lie in every piece of the testimony. The testimony of PW1 has been contradicted from the testimony of PW2 and DW1. It is evident that marriage took place beyond seven years of her death and as such she was married at least for more than 11 years ago. From the statement of PW3, it appears that the deceased died due to cholera. According to the statement of PW2 and DW1, the deceased was cremated in the presence of informant and other family members of the deceased. The informant in filing application under Section 156(3) Cr.P.C has not come with clean hand. He has suppressed this fact also. There is no evidence that the deceased was subjected to cruelty or harassment soon before her death although PW2, in her examination-in-chief, has stated that the informant has given Rs.10,000/- cash and goods worth Rs.2000 at the time of marriage. However in the later part of her statement rather in her entire statement, it has nowhere been stated by PW2 who was residing with the deceased for the last one month that soon before her death the deceased was subjected to cruelty. There is no allegation leveled by her that any of the family members of the appellant or the appellant himself has demanded dowry. Although the allegation of cruelty has been leveled by PW2, however, the said cruelty or harassment was not in connection with the demand of dowry as per the statement of PW2. Likewise DW1 out rightly has rejected such case of cruelty or dowry. He has not supported the prosecution story. The witnesses i.e. DW1 and PW2 remained intact even after the prolonged cross examination. In this case, prosecution has failed to prove that the deceased died within seven years of her marriage. It has also failed to prove that the death was under abnormal circumstances as the PW3 has clearly opined that the deceased was suffering from dyscentry and vomiting. She was treated at his clinic for three hours and thereafter referred to District Hospital Sitapur, where she died. As per the statement of PW1 deceased was subjected to cruelty and harassment by the appellant. However, there is no such evidence by the PW2 or DW1 or any other prosecution witness except PW1 that such cruelty or harassment had any connection with the demand of dowry. The evidence of PW1 is wholly unreliable and cannot be believed. The evidence of cruelty and harassment alone is not sufficient to bring application under Section 304 B Indian Penal Code, the basic ingredients to attract the provisions of Section 304-B I.P.C., are as under:-

"(1) The death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances;

(2) Such death should have occurred within seven years of her marriage;

(3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

(4) Such cruelty or harassment should be for or in connection with demand for dowry."

18. Alongside insertion of Section 304B in IPC, legislature also introduced Section 113B of Evidence Act, which lays down the question as to 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.

19. Explanation appended to Section 113-B of the Indian Evidence Act lays down that "for the purpose of this section 'dowry death' shall have the same meaning as in Section 304 B of Indian Penal Code".

20. If Section 304-B IPC is read together with Section 113-B of the Evidence Act, a comprehensive picture emerges that if a married woman dies under unnatural circumstances at her matrimonial home within 7 years from her marriage and there 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.

21. In this case I find that there is practically no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. This deficiency in evidence is fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand for dowry. (See: Kanchy Ramchander v. State of A.P. (1996 SCC (Crl.) 31). Since the prosecution failed to prove that aspect, the conviction as recorded cannot be maintained.

22. Since the aforesaid basic ingredients to attract the provision under Section 304-B could not be proved by the prosecution therefore there is no occasion for this court to presume that the accused has caused the dowry death and for this reason Section 113 of the Evidence Act cannot be invoked in this case. Therefore, the accused is acquitted of the charge under Section 304-B Indian Penal Code so far as the conviction under Section 3/4 Dowry Prohibition Act is concerned the same is also not proved as per testimony of PW1 and DW1. PW2 only has stated that at the time of marriage goods worth Rs.2000/- and Rs.10,000/- were given by her grandfather. However, she has not given any evidence to attract the definition of dowry under Dowry Prohibition Act.

23. Section 2 of Dowry Prohibition Act,1961 reads as under :-

"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."

24. This demand of Rs.2,000/- cannot be said to be in connection with the marriage of the party to the marriage. From the evidence on the record it is clear that even if it is believed that the accused/appellant demanded Rs.10,000, this demand was made in the third year of the marriage after the baby boy was born out of the wedlock. This demand of Rs.10,000/- was not in connection with the marriage and, therefore, does not come within the definition of dowry demand under Section 2 of the Dowry Prohibition Act 1961.

25. The Supreme Court of India in the case of Appasaheb and Anr versus State of Maharastra (2007) 9 SCC 721, in para 11 has held as under:-

"11. In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said Aparties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses of for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained. "

26. A sum of Rs.10,000/- at the time of marriage and goods worth Rs.2,000/- that was given at the time of marriage was long back. There is no evidence given by PW2 or DW1 that there was any demand of dowry soon before her death and the allegation of cruelty and harassment by the PW2 is not with respect to the dowry demand and the same have not been proved by cogent evidence by the prosecution hence the accused appellant is also acquitted under Section 3/4 of the Dowry Prohibition Act.

27. On due consideration to the submission advanced and evidence on record it is clear that prosecution has not been able to prove beyond reasonable doubt the ingredients of Section 304B I.P.C. for holding the accused appellant guilty for the offense of dowry death.

28. For the reasons mentioned herein-above, the appellant is acquitted of the charges under Section 304-B Indian Penal Code and Section 3/4 Dowry Prohibition Act.

The impugned judgment and order dated 10.04.2003 passed by the Special Sessions Judge, Sitapur in Sessions Trial No. 487 of 1997 arising out of Case Crime No. 196 of 1996, under Sections 498A, 304B, 201 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act, Police Station Ramkot, District Sitapur, is set aside.

The appellant is acquitted of all the charges. The bail bonds are canceled. Sureties are discharged.

29. The appellant is directed to be released if he is not wanted in any other case.

30. The instant appeal is, accordingly, Allowed.

31. Let a copy of this judgment along with the lower court record be sent to the learned trial court concerned by the Registry.

Order Date :-06.08.2021

Madhu