Smt.Phulau @ Phoolwati & Another. vs State Of U.P.
2021 Latest Caselaw 2471 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 07.12.2020
 

 
Court No. - 33
 
Case :- CRIMINAL APPEAL No. - 917 of 2001
 
Appellant :- Smt.Phulau @ Phoolwati & Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shishir Pradhan,Dhirendra Pratap Singh,Piyush Shrivastava,Surya Nath
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. This criminal appeal, under Section 374 (2) Code of Criminal Procedure, 1973 (hereinafter referred to as "Code"), has been filed against the judgment and order dated 28.09.2001, passed by Additional Sessions Judge, FTC No.1, Raebareli in Sessions Trial No.76 of 1991, arising out of Crime No.89 of 1990, Police Station Shivratanganj, District Raebareli, whereby appellant no.1-Smt.Phulau @ Phoolwati and appellant no.2 Bharat Sharan Singh (hereinafter referred to as 'appellants') have been convicted and sentenced for seven years rigorous imprisonment for offence under Section 304-B IPC ; for one year rigorous imprisonment with fine of Rs.500/- each for offence under Section 498-A IPC. It has further been provided that both the sentences of the appellants shall run concurrently.

2. The prosecution case, in brief, is that deceased Smt. Geeta, sister of Ram Narain Singh, (P.W.1), was married with Bharat Sharan Singh-appellant no.2. Appellant no.1 Smt. Phulau @ Phoolwati is mother of appellant no.2. On 08.06.1990, the informant (P.W.1) received information through one Ram Krishna Raidas, resident of village Pure Subedar Halmet of Satgawan, (co-villager of appellants) that the deceased had died, due to burn injury on account of setting fire at her in-laws house. On the said information, informant (P.W.1) along with his family members, rushed to the matrimonial house of deceased and found that his sister Geeta was lying dead inside the kitchen, in burnt condition. Police was also present there and when the police took out the dead body of the deceased for inquest proceeding, informant (P.W.1) and other persons present there, saw that several sarees were wrapped in the waist and stomach of the deceased. The informant-(P.W.1) lodged First Information Report (in short 'FIR') (Ex.Ka.1) against the appellants and other co-accused Manju Devi (since deceased during trial), sister of appellant no.2, at Police Station Shivratanganj, District Raebareli, on same day at about 17:10 hours, alleging that appellants and other co-accused were torturing and harassing the deceased by making pressure on her parents to transfer the landed property in favour of appellant Bharat Sharan Singh and also demanding she-buffaloes and due to non-fulfillment of the said demand, they had beaten the deceased so many times and had caused her death by setting her ablaze.

3. On the basis of written report (Ex.Ka.1), Chik FIR (Ex.Ka.3) was prepared by S.I. Jai Karan Verma (P.W.4) and Case Crime No.89 of 1990, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act (hereinafter referred to as 'D.P. Act') was registered against the appellants and co-accused Manju Devi by making necessary entry in General Diary. Before, the information (Ex.Ka.1) given by P.W.1 at concerned Police Station, an information (Ex.Kha.1) was already given by one Indra Pal Singh, uncle of appellant Bharat Sharan Singh, at 10:15 a.m. on 08.06.1990, regarding death of deceased, alleging that deceased had died due to burn injuries, while she was cooking food. On that information, Station House Officer Gaush Mohd. Khan (P.W.5) proceeded to the place of occurrence, inspected the dead body of the deceased, conducted the inquest proceeding and prepared inquest report (Ex.Ka.4) along with relevant documents (Ex.Ka.5 to Ex.Ka.9), necessary for post mortem examination. P.W.5 also recovered a watch of the deceased, lying near the dead body and prepared recovery memo (Ex.Ka-10). Thereafter, the dead body of the deceased was duly sealed and was sent for post mortem examination along with relevant police papers.

4. Dr. G.K. Srivastava, (P.W.3), Senior Surgeon, District Hospital, Raebareli, conducted post mortem examination on the dead body of the deceased Geeta Devi on 09.06.1990 at 4:30 p.m. and he found following ante-mortem injuries on the body of the deceased:-

"Burn injuries Grade II to Grade VI involving entire body (100% burn). Both legs and feet charred. Skin at places black. Base of vesicles red and inflamed. Singing of scalp hairs."

5. According to P.W.3, at the time of post mortem examination, the deceased was about 24 years and her death was caused due to shock as a result of ante-mortem burn injuries. He (P.W.3) found seven burnt sarees and two petticoats tightened around the waist of deceased which were removed from the body of the deceased after cutting the same. According to him, he prepared post mortem examination report (Ex.Ka.2).

6. The investigation of the case was entrusted to Investigating Officer, Dy. S.P. Shri Bipin Bihari Chaubey, who visited the place of occurrence, prepared site plan (Ex.Ka.11), recorded statement of witnesses and after conclusion of investigation, filed charge sheet (Ex.Ka.12) against the appellants along with co-accused Km.Manju Singh. Cognizance of the offence was taken by the concerned Additional Chief Judicial Magistrate, Raebareli, under Sections 498-A, 304-B IPC and 3/4 D.P. Act and since the offence was exclusively triable by the Court of Sessions, it was committed for trial, after providing the copies of necessary documents, as provided under Section 207 of the Code to the Court of Sessions Judge, Raebareli for trial.

7. Charges for offence under Sections 498-A and 304 B IPC were framed but the appellants and other co-accused pleaded not guilty and claimed for trial.

8. During trial, the prosecution, in order to prove its case, examined five witnesses such as Ram Narain Singh-informant P.W.-1, Ram Murti Singh P.W.-2, Dr. G.K. Srivastava P.W.-3, S.I. Jai Karan Verma P.W.-4 and Gaush Mohd. Khan as P.W.5.

9. The prosecution has also relied upon 12 documentary evidences namely : written report (Ex.Ka.1), Post mortem report (Ex.Ka.2), Chik FIR (Ex.Ka.3), Inquest report (Ex.Ka.4), documents related to post mortem report (Ex.Ka.5 to 9), Recovery memo (Ex.Ka.10), Site plan (Ex.Ka.11), charge sheet (Ex.Ka.12).

10. During trial, co-accused Manju Devi had died and the proceeding against her was abated.

11. After conclusion of the prosecution evidence, the statements of the appellants were recorded under Section 313 of the Code wherein they admitted that the deceased was married with appellant no.2 Bharat Sharan Singh in the year 1986, her Gauna was solemnised after one year of marriage and she had died in their house due to burn injuries but denied the prosecution story as well as the evidence. They further stated that deceased was burnt as she was cooking food at the time of occurrence and thatch (chappar) also caught fire. They further stated that at the time of occurrence, they were not at their home. Seeing the flame of fire and hearing the noise of people, they reached there and put off the fire with help of people, but they were falsely implicated.

12. The appellants did not adduce any evidence in their defence.

13. The trial Court, after considering the evidence available on record in view of the argument of learned counsel for the appellants as well as the prosecution, vide impugned judgment and order convicted and sentenced the appellants, as mentioned above.

14. Aggrieved by the impugned judgment and order, the appellants have preferred this appeal.

15. Heard Shri Piyush Srivastava, learned counsel for the appellants, Shri Tilak Raj Singh, learned AGA for the State and perused the record.

16. Learned counsel for the appellants submitted that appellants are innocent and have been falsely implicated in the present case. Learned counsel further submitted that deceased was mentally weak, she was cooking food in the kitchen but suddenly fire caught her and also to chappar of their house (kitchen). He further submitted that at the time of occurrence, none of the appellants including co-accused were present in the house and on the alarm raised by co-villager, the appellants and co-accused reached there and put off the fire with their help but the deceased had died due to burn injuries.

17. Learned counsel further submitted that because the chik FIR (Ex.Ka.3) was not signed by the informant (P.W.1); copy of FIR was not received by P.W.1; FIR was produced before the concerned Chief Judicial Magistrate on 03.07.1990; and in addition to above, in inquest report, the presence of informant (P.W.1) was not found whereas according to him, he was present, hence, FIR was doubtful and ante-time. Learned counsel further submitted that FIR was lodged by delay and the scriber of the FIR (Ex.Ka.1), brother of P.W.1, was also not examined because if he was produced, he would support the defence story that the FIR was lodged ante-time.

18. Learned counsel further submitted that inquest proceeding was not conducted by any Magistrate; deceased had not died within seven years of her marriage; and the prosecution has also not proved any demand of dowry or any cruelty or harassment with deceased, soon before her death. Learned counsel further submitted that the charge for demand of dowry i.e. Section 3/4 D.P. Act was also not framed and appellants were not convicted for the offence of demand of dowry but the trial Court has convicted the appellants for the offence of dowry death. Learned counsel further submitted that independent witnesses, including the witnesses of the inquest proceeding and Investigating Officer were also not examined by the prosecution.

19. Learned counsel further submitted that Indrapal Singh, uncle of appellant Bharat Sharan Singh, who had given information to police for the first time regarding the death of deceased was also not examined by the prosecution. Learned counsel further submitted that no complaint regarding demand of dowry or harassment was made by the informant earlier to this occurrence. Learned counsel further submitted that the trial Court, without considering the material available on record in proper manner, has passed the impugned judgment and order in a very cursory manner which is liable to be set aside.

20. Learned counsel for the appellants has placed reliance on the following decisions, rendered by the Hon'ble Apex Court :

(i) Gurnaib Singh vs. State of Punjab 2013 CJ (SC) 2413 ;

(ii) State of Karnataka vs. Dattaraj and others 2016 CJ (SC) 202 ;

(iii) Baijnath and others vs. State of Madhya Pradesh (2017) 1 SCC 101 ;

(iv) Sujit Biswas vs. State of Assam (2013) 12 SCC 406 ;

(v) Sher Singh @ Partapa vs. State of Haryana (2015) 3 SCC 724 ;

(vi) Budhiman Singh vs. State of U.P. 2018 CJ (All.) 274.

21. Per contra, learned AGA vehemently opposed the submissions of learned counsel for appellants and submitted that death of the deceased has been caused by burn injuries within seven years of her marriage, inside the house of the appellants and the deceased was tortured and harassed soon before her death for demand of dowry. Learned AGA further submitted that the fact that the marriage of the deceased was solemnised in the year 1986 and her death was caused in 1990, due to burn injuries, has been admitted by the appellants in their statement under Section 313 of the Code. Learned AGA further submitted that the manner in which the death of the deceased was caused i.e. after wrapping so many clothes (seven sarees and two petticoats), itself is evident that death of the deceased was caused by the appellants. Learned AGA further submitted that the appellants have also failed to lead any evidence to prove that the deceased was mentally weak or any type of evidence in their defence. Learned AGA further submitted that for the offence under Section 304-B IPC., if the essential element of dowry death is proved, the appellants may be convicted for offence under Section 304 B IPC., even if they were not put on trial for offence under Section 3/4 D.P. Act. Learned AGA further submitted that there is neither any illegality in FIR nor in inquest report. Learned AGA further submitted that medical evidence is supported with ocular evidence and the prosecution evidence cannot be disbelieved only for want of independent witnesses. Learned AGA further submitted that the impugned judgment and order is well discussed, well reasoned and requires no interference. The appeal has no force and is liable to be dismissed.

22. I have considered the rival submissions made by learned counsel for the parties and perused the record.

23. In Gurnaib Singh (supra), the Hon'ble Supreme Court held that where the prosecution had failed to prove demand of dowry and cruelty and as the letters, written by victim (deceased) to her father regarding the alleged demand of dowry and harassment, was not produced in evidence, modifying the conviction of the appellant for offence under Sections 498-A, 304 B IPC as the deceased did not consume poison accidentally, convicted the appellant for offence punishable under Sections 498-A and 306 IPC and sentenced him for seven years rigorous imprisonment.

24. In State of Karnataka vs. Dattaraj (Supra), the Hon'ble Apex Court, in peculiar facts and circumstances of that case, found that there was no cruelty or torture to the deceased by the appellant soon before her death and the demand of dowry was also doubtful, hence dismissed the appeal, filed by the State, against acquittal of appellant by the High Court.

25. In Baijnath (Supra), where the appellant was exonerated by the trial Court but convicted by the High Court and there was evidence that appellant Baijnath was living separately, appellants were sufficiently well-off as stated by defence witnesses in the facts and circumstances of the case, Hon'ble Apex Court held that only the factum of unnatural death of deceased in matrimonial home within seven years of her marriage is not sufficient for the offence under Sections 304-B, 498-A IPC unless other ingredients of dowry death and cruelty are proved by the prosecution.

26. In Sujit Biswas (Supra), the Hon'ble Supreme Court, where the important fact known to the informant was missing in FIR in prosecution case of rape, based on circumstantial evidence, in the facts and circumstances of the case, set aside the judgment of court below as well as of High Court and allowed the appeal.

27. In Sher Singh @ Partapa (Supra), the Hon'ble Supreme Court in the facts and circumstances of the case, has held that the initial burden is on the prosecution to prove the ingredients of Section 304-B IPC. Hon'ble Court, where prosecution had failed to prove live link and proximity between cruelty emanating from dowry demand and death of deceased, acquitting the appellant by setting aside the judgment of conviction, allowed the appeal.

28. In Budhiman Singh (Supra), the Single Bench of this Court has held that mere bald allegation regarding demand of dowry and cruelty or harassment to deceased will not suffice the essential ingredient of the provisions of dowry death and the prosecution is under an obligation to prove the factum of cruelty or harassment due to demand of dowry soon before the death of the deceased.

29. Appellants have been convicted and sentenced for offence under Sections 304-B and 498-A IPC. Before considering the evidence available on record, in the light of arguments advanced by learned counsel for the parties, it is necessary to refer the relevant provision of law relating to the offence in question i.e. Section 304-B, 498-A IPC, Section 113-B of The Indian Evidence Act, 1872 and also Section 2 of D.P. Act, 1961, which reads as under :

304B. Dowry Death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation.--For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.

(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.

498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful 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.

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

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

Section 2 of Dowry Prohibition Act- 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 parent of either party to a marriage or by any other person, to either party to the marriage or to any other person."

30. The above provision, related with dowry death, clearly shows that if the death of any woman is caused within seven years of her marriage by burn or bodily injury "or otherwise than under normal circumstances" and it is shown that if soon before the death of such woman, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry and if the prosecution succeeds to prove the above ingredient, such death shall be called as dowry death. In addition to above, Section 113-B of Indian Evidence Act, 1872 provides that in such cases, if it is shown that such woman was subjected, soon before her death by the accused, to cruelty or harassment for in or connection with any demand for dowry, the Court shall presume that such accused had caused the dowry death.

31. Ram Narain Singh (P.W.1), brother of the deceased, has stated that the deceased was married in the year 1986 with appellant Bharat Sharan Singh and after marriage, she had gone to matrimonial home and lived with appellant for only two days. He further stated that at the time of marriage, sufficient dowry was given to the appellants. He further stated that after one year of her marriage, Gauna (second time departure from paternal house to matrimonial house) was performed. He further stated that on 08.06.1990, he got information at 10:00 a.m. that the deceased had died due to burn injuries. He further stated that upon that information, he went to matrimonial home of the deceased, saw that the deceased was wrapped in 6-7 sarees and her head and legs were burnt. He further stated that he was sure that due to non-fulfillment of dowry, (she-buffalo and transfer of land) the appellants and Nanad (co-accused Manju Devi) had caused death of the deceased. Stating that when deceased returned from her matrimonial house after Gauna, she had told her father and family members that appellants and co-accused Manju Devi used to torture and beat her for want of she-buffalo and transfer of land, he further stated that she (deceased) had returned to her parental house two months prior to her death, and had again told that appellants and co-accused were demanding she-buffalo and landed property and also used to beat her. Stating further that his father and uncle Ram Murti Singh (P.W.2) had also approached the appellants and tried to convince the appellant Phulao but she had told them that unless she-buffalo was not given and land was not transferred in favour of appellant Bharat Sharan Singh, she would not bring the deceased to her house. Stating further that on 24.5.1990, just 15 days prior to the occurrence, appellant Bharat Sharan Singh had returned from Delhi and sent his maternal uncle Rang Bahadur to bring her (deceased), he further stated that the deceased was not ready to go to her matrimonial house due to fear and terror of harassment and torture, caused by appellants and co-accused Manju Devi, but upon being advised by family member and co-villagers, he (P.W.1) and his father had sent the deceased to her matrimonial house but just after 6-7 days, she was killed, due to burn injury, by appellants and co-accused Manju Devi for non-fulfillment of said demand i.e. transfer of land and she-buffalo. Stating further that when he reached the matrimonial home of deceased, police was already present there and was conducting inquest proceedings, he further stated that written report, (Ex.Ka.1), got prepared by his brother on his dictation, was submitted by him at concerned Police Station.

32. Ram Murti Singh (P.W.2), uncle of deceased, has stated that his niece (deceased) was married with appellant Bharat Sharan Singh in the year 1986. Stating further that the deceased had gone to her matrimonial home after her marriage and also after Gauna, he further stated that deceased died in the year 1990. He further stated that after Gauna whenever the deceased used to come to her parental home, she used to disclose that due to non-transfer of land and she-buffalo as a dowry, they (appellants and co-accused Manju Devi) used to harassed her. Stating further that he had also tried to convince the appellants and other family members, two months prior to the occurrence but the deceased was killed, due to burn injury, caused by appellants and co-accused, he further stated that he had also seen the dead body of the deceased, lying in kitchen of the appellants.

33. Dr. G.K. Srivastava (P.W.3) has stated that on 09.06.1990, he was posted as Medical Officer at District Hospital, Raebareli and conducted the post mortem of the deceased at 4:30 p.m. and prepared post mortem report (Ex.Ka.2). (Injuries noted by this witness has been mentioned in paragraph Nos.4 and 5). According to this witness, membranes of brain were congested and liquified. According to him further, stomach and urinary bladder were empty and deceased had died due to shock as a result of 100% ante-mortem burn injuries.

34. S.I. Jai Karan Verma, (P.W.4), Head Moharrir, posted at Police Station Shivratanganj, on 08.06.1990, had stated that he had prepared chik FIR (Ex. Ka.3), on the basis of written information (Ex.Ka.1), filed by Ram Narain Singh (P.W.1). In cross examination, this witness has admitted that before filing of written report (Ex.Ka.1), an information (Ex.Kha.1) was given by Indrapal Singh on 08.06.1990 at about 10:15 a.m. mentioning therein that the deceased had died due to burn injuries while she was cooking food.

35. S.I. Gaush Mohd. Khan (P.W.5) has stated that on 08.06.1990, on an information (Ex.Kha.1), given by one Indrapal Singh, he rushed to the place of occurrence, conducted the inquest proceeding and prepared inquest report (Ex.Ka.4) and also prepared relevant police papers (Ex.Ka.5 to Ex.Ka.9), required for post mortem examination. He further stated that at the time of inquest report, he had also recovered wrist watch and prepared its recovery memo (Ex.Ka.10). He also stated that he had found the body of deceased, wrapped in several sarees. Stating that he was fully acquainted with the handwriting and signature of Investigating Officer, Dy.Sp. Shri Bipin Bihari Chaubey, he proved Site plan (Ex.Ka.11) and charge sheet (Ex.Ka.12) prepared by Investigating Officer. Stating that at the time of inquest proceedings, Ram Narain Singh (P.W.1) and appellant no.2 Bharat Sharan Singh were also present and dead body of deceased was drawn from the house with their help, he further stated that dead body of deceased was sealed in presence of appellant Bharat Sharan Singh and Ram Narain (P.W.1).

36. Offence of Section 304-B IPC is grievous to Section 4 of D.P. Act. For trial of accused under Section 304-B IPC, the trial of accused under Section 4 of D.P. Act is not mandatory because Section 4 of D.P. Act provides punishment for demand of dowry whereas Section 304-B IPC provides punishment for dowry death. The meaning and definition of 'dowry' in both these sections are common and there are catena of decisions, delivered by Hon'ble Apex Court wherein without framing charge and conviction for offence under Section 4 D.P. Act, the prosecution had succeeded to prove its case against accused/appellant for offence under Section 498-A and 304-B IPC (See Kashmiri Devi vs. State of Uttarakand AIR 2020 SC 652 and Jatinder Kumar vs.The State of Haryana AIR 2020 SC 161.

37. In Shanti vs. State of Haryana 1991 SCC (Cri.) 191, Hon'ble Apex Court where appellant was convicted only for offence under Section 304-B IPC and not for offence under Section 498-A IPC confirming the conviction of the appellants has held as under :

"6. Now we shall consider the question as to whether the acquittal of the appellants of the offence punishable under Section 498-A makes any difference. The submission of the learned counsel is that the acquittal under Section 498-A IPC would lead to the effect that the cruelty on the part of the accused is not established. We see no force in this submission. The High Court only held that Section 304-B and Section 498-A IPC are mutually exclusive and that when once the cruelty envisaged in Section 498-A IPC culminates in dowry death of the victim, Section 304-B alone is attracted and in that view of the matter the appellants were acquitted under Section 498-A IPC. It can therefore, be seen that the High Court did not hold that the prosecution has not established cruelty on the part of the appellants but on the other hand the High Court considered the entire evidence and held that the element of cruelty which is also an essential of Section 304-B IPC has been established. Therefore, the mere acquittal of the appellants under Section 498-A IPC in these circumstances makes no difference for the purpose of this case........."

38. Coming to the facts of this case, record shows that in the present case, charge sheet was also filed for offence under Section 3/4 D.P. Act, in addition to Section 304 B IPC and Section 498-A IPC., against the appellants but the trial Court framed charge only under Sections 498-A and 304-B IPC. Thus, it cannot be said that either the appellants were acquitted for offence under Section 4 of D.P. Act or the prosecution was failed to prove the said offence. Thus, in view of the above, submission of learned counsel for appellants that prosecution has failed to prove its case under section 4 D.P.Act hence, it failed to prove the demand of dowry, has no force.

39. So far as submission of learned counsel for the appellants that chik FIR (Ex.Ka.3) was not signed by the informant; copy of FIR was not received by him ; and FIR was produced before Judicial Magistrate on 03.07.1990; is concerned, record shows that Ram Narain (P.W.1) has clearly stated that he reached the place of occurrence on an information given by one Ram Krishna Raidas, co-villager of appellants and saw that his sister had died and inquest proceeding was conducted in his presence. S.I. Gaush Mohd. Khan (P.W.5) has also stated that at the time of inquest proceeding, Ram Narain (P.W.1) was present.

40. Perusal of record further shows that FIR was lodged at 17:10 hours on same day i.e. 08.06.1990, although this witness Ram Narain (P.W.1) has stated that he had not accompanied the dead body of his sister from the place of occurrence but on that very account, it cannot be said that FIR was not lodged at the time shown in Chik FIR (Ex.Ka.-3) and G.D. report (Ex.Ka.5).

41. It is also pertinent to note that on Chik FIR (Ex.Ka.3), Ram Narain (P.W.1) has not put his signature. In this regard, it is relevant to mention Section 154 of the Code and Para 97 of the U.P. Police Regulations, which reads hereasunder :

"154. Information in cognizable cases. - (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant ; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence."

Section 97 of U.P. Police Regulations reads as under :

"97. Whenever information relating to the commission of a cognizable offence is given to an officer-in-charge of a police station the report will immediately be taken down in triplicate in the check receipt book for reports of cognizable offences (Police form No. 341). This step will on no account be delayed to allow time for the true facts to be ascertained by a preliminary investigation. Even if it appears untrue, the report must be recorded at once. If the report is made orally, the exact words of the person who makes it, including his answers to any questions put to him should be taken down and read over to him; he must sign each of the three parts, or if he cannot write, he must make his mark or thumb- impression. If a written report is received an exact copy must be made, but the signature or mark of the messenger need not be taken. In all cases the officer-in-charge of the station must sign each of the three parts and have the seal of the station stamped on each. The triplicate copy will remain in the book : the duplicate copy will be given to the person who makes the oral or brings the written report ; the original will be sent forthwith through the Superintendent of Police to the Magistrate having jurisdiction with the original written report (if any) attached.

The practice of delaying first information reports until they can be sent to headquarters attached to special or general diaries is contrary to the provisions of Criminal Procedure Code and is prohibited.

If there is an Assistant or Deputy Superintendent in charge of the sub-division, and stationed at a place other than the headquarters of the district, the original should be sent through him to the Magistrate."

(Emphasis supplied)

42. Thus, from perusal of aforesaid provision, it is clear that if the information, relating to commission of cognizable offence, is given orally to officer-in-charge of Police Station, it shall be reduced into writing, and thereafter be signed by the informant but if written information is given under signature or thumb impression of the informant, and that information is recorded in relevant police papers/diary, signature of informant is not mandatory on police papers/diary.

43. It is settled principle of law that if FIR was lodged promptly and investigation was started without any delay, delay in sending the copy of FIR to the Magistrate is immaterial. Hon'ble Apex Court in Anil Rai vs. State of Bihar 2001 SCC (Cri.) 1009, while discussing the relevancy and scope of Section 157 of the Code has held as under:

"20. This provision is designed to keep the Magistrate informed of the investigation of such cognizable offence so as to be able to control the investigation and, if necessary, to give appropriate direction under Section 159 of the Code of Criminal Procedure. But where the F.I.R. is shown to have actually been recorded without delay and investigation started on the basis of the F.I.R., the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable Pala Singh and Anr. v. State of Punjab : AIR 1972 SC 2679. Extraordinary delay in sending the copy of the F.I.R. to the Magistrate can be a circumstance to provide a legitimate basis for suspecting that the first information report was recorded at much later day than the stated day affording sufficient time to the prosecution to introduce improvement and embellishment by setting up a distorted version of the occurrence. The delay contemplated under Section 157 of the Code of Criminal Procedure for doubting the authenticity of the F.I.R. is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the omission by the police to submit the report does not vitiate the trial. This Court in Sarwan Singh and Ors. v. State of Punjab AIR 1976 SC 2304, held that delay in despatch of first information report by itself is not a circumstance which can throw out the prosecution's case in its entirety, particularly when it is found on facts that the prosecution had given a very cogent and reasonable explanation for the delay in despatch of the F.I.R. "

44. Coming to the facts of this case again, FIR (Ex.Ka.1) is written information and it was signed by Ram Narain (P.W.1), S.I. Jai Karan Verma (P.W.4) who recorded the information (Ex.Ka.1), given by Ram Narain (P.W.1), in Chik FIR (Ex.Ka.3) and G.D. (Ex.Ka.4), was not cross examined by defence counsel before the trial Court as to why he had not taken the signature of Ram Narain (P.W.1) on Chik FIR (Ex.Ka.3) or had not given copy of FIR to P.W.1. Further, Ram Narain (P.W.1), is real brother of deceased who had seen the deceased, died due to severe burn injury. Thus, if he failed to receive the copy of FIR or could not disclose whether copy of FIR was received by him, it will neither affect his testimony nor the prosecution story. Similarly, the Chik FIR (Ex.Ka.3) was seen by the concerned Magistrate on 03.07.1990 i.e. after 25 days of the occurrence but on that very account, it can also not be said that Chik FIR (Ex.Ka3) was sent to concerned Magistrate by unnecessary delay or on 03.07.1990. There is difference between receiving of FIR by the concerned official of the concerned Magistrate and to put the same before the concerned Magistrate, because perusal of FIR by the concerned Magistrate does not mean that it was received by the official of that Magistrate on the same day. S.I. Jai Karan Verma (P.W.4), who recorded the FIR Chik (Ex.Ka.3), G.D. report (Ex.Ka.5) on 08.06.1990 at 17:10 hours, was not cross examined by the defence counsel as to whether he had sent Chik FIR (Ex.Ka.3) to the concerned Magistrate by any delay. In this case, the deceased had died inside the house of the appellants and death information (Ex.Kha.1) was already given by one Indrapal Singh, uncle of the appellant Bharat Sharan Singh at Police Station at 10:15 a.m. Inquest proceeding was started promptly on same day in presence of appellant Bharat Sharan Singh, Raj Narain Singh (P.W.1) and other people and the defence counsel had also not cross examined any police witness, regrading delay, if any, caused in commencement of investigation. Thus, in view of the above and law laid down by Apex Court in Anil Rai (Supra) only on the ground that FIR was perused by the concerned Magistrate by delay of 25 days, the prosecution story cannot be held doubtful.

45. So far as submission of learned counsel for the appellants that according to prosecution case, the deceased was being continuously harassed and tortured for a long time after her marriage, but no complaint or FIR was filed by the parents or brother of deceased, the prosecution version regarding harassment and torture due to demand of dowry is doubtful, is concerned, it is often seen that in rural areas either due to illiteracy or due to social stigma or criticism, the bride and her parents do not agitate some problem and issues occurred after her marriage between them with family of bride groom, as they believe that due to lapse of time the problem whether it is related to demand of dowry or otherwise, may be subsided or pacified in future. Parents of bride do not want to interfere in such disputes. The poor and helpless father of the bride used to prefer to remain as a silent spectator in such disputes and avoid to complain to police authorities because he believes that such step may deteriorate the relationship of his daughter with her husband and in-laws. Failure to take any legal step in such disputes against the in-laws of the deceased does not mean that neither dowry was demanded nor harassment or cruelty was committed to the deceased soon before her death.

46. Recently in Preet Pal Singh vs. Sate of U.P., AIR 2020 SC 3995, where Allahabad High Court had suspended the sentence of the appellant, convicted for the offence of dowry death, on the ground that no complaint for demand of dowry was made earlier by the father of the deceased, Hon'ble Supreme Court, setting aside the impugned order passed by this Court, has held as under:

"42. From the evidence of the Prosecution witnesses, it transpires that the Appellant had spent money beyond his financial capacity, at the wedding of the victim and had even gifted an I-10 car. The hapless parents were hoping against hope that there would be an amicable settlement. Even as late as on 17.6.2010 the brother of the victim paid Rs. 2,50,000/- to the Respondent No.2. The failure to lodge an FIR complaining of dowry and harassment before the death of the victim, is in our considered view, inconsequential. The parents and other family members of the victim obviously would not want to precipitate a complete break down of the marriage by lodging an FIR against the Respondent No. 2 and his parents, while the victim was alive."

(Emphasis supplied)

47. In the instant case, parents of the deceased were not examined whereas Ram Narain Singh (P.W.1) and Ram Murti Singh (P.W.2) have categorically stated that deceased was being harassed for a long time by her in-laws due to non-transfer of land and for demand of she-buffalo. Ram Narain Singh (P.W.1), in his cross examination, has specifically stated that he had not filed any complaint or application either to Superintendent of Police, District Magistrate or any officer because he had not anticipated that deceased would be killed by the appellants for she-buffalo and a piece of land.

48. Thus, in view of law laid down by the Hon'ble Apex Court in Preet Pal Singh (Supra) and the facts and circumstances of this case, the prosecution case cannot be disbelieved on the ground that the prosecution witnesses had failed to file any complaint prior to this occurrence.

49. So far as submission of learned counsel for the appellants that FIR was lodged by delay of more than 10 hours, is concerned, neither in Code nor in Indian Evidence Act, 1872 any time limit has been provided for lodging the FIR. The time taken to lodge the FIR depends on the facts and circumstances of each case, sometimes huge delay, caused in lodging the FIR, is justified and sometimes even a short delay is not justified. Since offfence of dowry death generally, is committed in the house of accused person where no one of parental side of deceased, is presumed to be present and after receiving the sudden death information of deceased, parents or brother of deceased becomes shocked, there may be a chance of some delay in lodging the FIR.

50. The Hon'ble Supreme Court in Raj Kumar vs. State of Punjab (2010) 15 SCC 362 where delay was caused in lodging the FIR in dowry death case, in para 8 held as under :

"We have considered the arguments advanced by learned counsel for the parties. It is true, as contended by Mr. Talwar, that there is some delay in lodging the FIR. To our mind, however, the delay in such like matters cannot be fatal to the prosecution. It has to be borne in mind that matters arising out of a matrimonial dispute are always extremely sensitive and it is after serious consideration and debate amongst the victims' family that the FIR is lodged. It has come in the evidence of Munshi Ram that they too had considered the matter in its entirety and it was only after he had been advised by his relatives, that a formal FIR had been lodged."

(Emphasis supplied)

51. As discussed above, Ram Narain (P.W.1) was present at the time of inquest proceedings. From perusal of inquest report (Ex.Ka.4), it transpires that inquest proceedings were started at 13:30 p.m. and continued thereafter. P.W.1 has also stated that he remained present till the conclusion of inquest proceedings. From perusal of Chik FIR (Ex.Ka.3), it transpires that concerned Police Station is situated at the distance of 8 kms from the place of occurrence. In addition to above, this witness, in cross examination, constantly has stated that he had lodged FIR on same day. Stating that he had stayed at concerned Police Station for one hour and he and his brother had returned together from Police Station, he further stated that light was on when he proceeded from concerned Police Station. Further, S.I. Jai Karan Verma (P.W.4), who registered FIR and prepared Chik FIR (Ex.Ka.3), has specifically stated that FIR was registered on 08.06.1990 at 17:10 hours. In cross examination, neither any question nor suggestion was put to him whereby it can be stated that FIR was lodged at any other day and time. Thus, in view of the above, if FIR was lodged at 17:10 hours, on the day of occurrence, it cannot be said that there was any delay caused in lodging the FIR.

52. So far as submission of learned counsel that inquest proceedings were not conducted by any Magistrate, hence, the prosecution case is doubtful, is concerned, in the present case, the inquest proceeding was conducted by S.I. Gaush Mohd. Khan (S.H.O.) (P.W.5) and not by any Magistrate, as required under Section 174 of the Code. In cross examination, justifying the inquest proceedings conducted by him, he (P.W.5) has stated that as the information of death was received at 10:15 a.m. at Police Station, he had informed via radio wireless to Circle Officer and concerned Sub-Divisional Magistrate. Stating that he had reached at the place of occurrence between 10:45 a.m. and 11:00 a.m., he further stated that after waiting for his superior Officers, for considerable period and due to their non-arrival at place of occurrence, he started the inquest proceedings at 01:30 p.m.

53. It is settled principle of law that the purpose of inquest proceeding is only to find out the cause of death of the deceased. Hon'ble Supreme Court in Radha Mohan Singh @ Lal Saheb vs. State of U.P. (2006) 1 SCC (Cri.) 661, three-judges Bench of Hon'ble Supreme Court while discussing the true nature and scope has held as under :

"15. In Podda Narayana v. State of A.P. AIR 1975 SC 1252 it was held that the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under S. 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. It is, therefore, not necessary to enter all the details of the overt acts in the inquest report. Their omission is not sufficient to put the prosecution out of Court. In Shakila Khader v. Nausher Gama AIR 1975 SC 1324 the contention raised that non-mention of a person's name in the inquest report would show that he was not a eye- witness of the incident was repelled on the ground that an inquest under Section 174 Cr.P.C. is concerned with establishing the cause of death and only evidence necessary to establish it need be brought out. The same view was taken in Eqbal Baig v. State of Andhra Pradesh AIR 1987 SC 923 that the non-mention of name of an eye-witness in the inquest report could not be a ground to reject his testimony. Similarly, the absence of the name of the accused in the inquest report cannot lead to an inference that he was not present at the time of commission of the offence as the inquest report is not the statement of a person wherein all the names (accused and also the eye-witnesses) ought to have been mentioned. The view taken in Podda Narayana v. State of A.P. (supra) was approved by a three-Judge Bench in Khujji @ Surendra Tiwari v. State of Madhya Pradesh AIR 1991 SC 1853 and it was held that the testimony of an eye-witness could not be discarded on the ground that their names did not figure in the inquest report prepared at the earliest point of time. The nature and purpose of inquest held under Section 174 Cr.P.C. was also explained in Amar Singh v. Balwinder Singh 2003 (2) SCC 518. In the said case the High Court had observed that the fact that the details about the occurrence were not mentioned in the inquest report showed that the investigating officer was not sure of the facts when the inquest report was prepared and the said feature of the case carried weight in favour of the accused. After noticing the language used in Section 174 Cr.P.C. and earlier decisions of this Court it was ruled that the High Court was clearly in error in observing as aforesaid or drawing any inference against the prosecution. Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited, viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statement nor it is required to be signed by any eye-witness. In Meharaj Singh v. State of U.P. (supra) the language used by the legislature in Section 174 Cr.P.C. was not taken note of nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby over-ruled. The challenge laid to the prosecution case by Shri Jain on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted."

54. Coming to the facts of this case again, admittedly, the deceased had died due to burn injury inside the house of appellants and death information report (Ex.Kha.1) was also given by one Indrapal Singh, uncle of appellant no.2, at concerned Police Station at 10:15 a.m. that deceased had died due to burn injuries. In view of the above, since the cause of death, identity of deceased, place of occurrence, is not disputed and the said inquest proceedings were conducted by S.I. Gaush Mohd. Khan (P.W.5), after giving due information to concerned Magistrate and his superior Officers and also after waiting for them upto considerable period, in my view, only on the ground that inquest proceeding was not conducted by any Magistrate, the prosecution story cannot be held as doubtful. Therefore, submission of learned counsel for appellants, in this regard, has no substance.

55. In the instant case, the deceased had died, inside the house of appellants, within seven years of her marriage and this fact has also been admitted by the appellants, in their statements recorded under Section 313 of the Code. For the offence under Section 304-B IPC read with Section 113-B Indian Evidence Act, 1872 the prosecution has to prove the demand of dowry and due to failure of fulfillment of such demand, the deceased was harassed and tortured by her husband or relative of her husband, soon before her death. These provisions further shows that if the deceased had died in an unnatural circumstance or by burn injury, due to harassment and torture, committed to her as above, there must be some proximity between the demand of dowry, harassment and death of deceased. Thus, it has also to be seen whether any cruelty or harassment was caused to deceased soon before her death due to demand of dowry or not.

56. The term "soon before death" used in Section 304-B I.P.C. and 113-B of Evidence Act has neither been explained nor defined either in I.P.C. or in Indian Evidence Act, 1872 and the term "it is shown" that soon before her death the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand of dowry, as condition precedent for dowry death, shows that the factum of cruelty or harassment by the appellants with the deceased soon before her death, is not required to be proved by prosecution beyond reasonable doubt. This fact may be proved by the prosecution by showing the facts and circumstances happened with deceased, soon before death of deceased. In addition to above, the term "soon before death" does not mean just before death or immediately before death of deceased, she was subjected to torture, cruelty or harassment by her in-laws due to demand of dowry.

57. Hon'ble Supreme Court while discussing the object and purpose of Section 304-B I.P.C. and the scope of relevancy and meaning of phrase "soon before death of deceased" contained therein, in Kans Raj vs. State of Punjab (2000) 5 SCC 207 has held as under :

"15. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. "Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term "soon before" is not synonymous with the term "immediately before" and is opposite of the expression "soon after" as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If 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, however, 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 the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.

16. No presumption under Section 113-B of the Evidence Act would be drawn against the accused if it is shown that after the alleged demand, cruelty or harassment the dispute stood resolved and there was no evidence of cruelty and harassment thereafter. Mere lapse of some time by itself would not provide to an accused a defence, if the course of conduct relating to cruelty or harassment in connection with the dowry demand is shown to have existed earlier in time not too late and not too stale before the date of death of the woman. The reliance placed by the learned counsel for the respondents on Sham Lal v. State of Haryana [(1997) 9 SCC 759 : 1997 SCC (Cri) 759] is of no help to them, as in that case the evidence was brought on record to show that attempt had been made to patch up between the two sides for which a panchayat was held in which it was resolved that the deceased would go back to the nuptial home pursuant to which she was taken by the husband to his house. Such a panchayat was shown to have been held about 10 to 15 days prior to the occurrence of the case. There was nothing on record to show that the deceased was either treated with cruelty or harassed with the demand of dowry during the period between her having taken to the nuptial home and her tragic end. Such is not the position in the instant case as the continuous harassment to the deceased is never shown to have settled or resolved."

(Emphasis supplied)

58. In Rajindar Singh vs. State of Punjab, AIR 2015 SC 1359, three Judges Bench of Hon'ble Supreme Court while placing reliance on the law laid down in Kans Raj (Supra), affirming the law laid down in Surindra Singh vs. State of Haryana, 2014 (4) SCC 129 and Sher Singh vs. State of Haryana, (2015) 3 SCC 724 and partly overruling the law laid down in Dinesh vs. State of Haryana, (2014) 12 SCC 532 has held as under :

".......We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise. Coming now to the other important ingredient of Section 304B- what exactly is meant by "soon before her death"?

21. This Court in Surinder Singh v. State of Haryana (2014) 4 SCC 129, had this to say:

"17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important. The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.

18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab [(2000) 5 SCC 207 : 2000 SCC (Cri) 935] where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222- 23, para 15) "15. ... 'Soon before' is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term 'immediately before' and is opposite of the expression 'soon after' as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If 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, however, 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 the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."

Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law."

22. In another recent judgment in Sher Singh v. State of Haryana, 2015 (1) SCALE 250, this Court said:

"We are aware that the word 'soon' finds place in Section 304B; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under Section 304 or the suicide under Section 306 of the IPC. Once the presence of these concomitants are established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt." (at page 262).

23. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B.

24. At this stage, it is important to notice a recent judgment of this Court in Dinesh v. State of Haryana, 2014 (5) SCALE 641 in which the law was stated thus:

"The expression "soon before" is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term "soon before" is synonyms with the term "immediately before". The determination of the period which can come within term "soon before" is left to be determined by courts depending upon the facts and circumstances of each case." (at page 646)

25. We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before."

(Emphasis supplied)

59. In the instant case, Ram Narain Singh (P.W.1.) and Ram Murti (P.W.2) have categorically stated that the deceased was being harassed and tortured by appellants and co-accused Manju Devi for non-fulfillment of their demand i.e. for she-buffalo and transfer of land. Both the witnesses have also specifically stated that father of the deceased and her uncle (P.W.2) had also approached the appellants to pacify the disputes but the appellant no.1 Phulau had stated that unless their demand was not fulfilled they would not bring the deceased. Ram Narain Singh (P.W.1) has also stated on 24.5.1990 (15-20 days prior to the occurrence) appellant Bharat Sharan Singh returned from Delhi and sent his maternal uncle Rang Bahadur Singh to bring the deceased but deceased, due to fear of being tortured and harassed by the appellants and co-accused Manju Devi, was not ready to go to her matrimonial house. He further stated that upon being advised from family members and co-villagers, he and his father had sent the deceased to her matrimonial house but just after 6-7 days, she was killed due to burn injury by the appellants and co-accused Manju Devi for non-fulfillment of aforesaid demand. Thus, it is clear that there was cruelty and harassment with deceased for demand of dowry, soon before her death, as required by Section 304 B IPC and the submission of learned counsel for appellants in this regard has no force.

60. So far as submission of learned counsel for appellants that no independent witness was produced, Ram Narain (P.W.1) and Ram Murti (P.W.2) are related witnesses; scriber of FIR was also not produced and Indrapal Singh, who had given death information report (Ex.Kha.1), at concerned Police Station were not examined by the prosecution hence, the prosecution case is doubtful, is concerned, it is settled principle of law that no specific number of witnesses are required to be produced by the prosecution, to prove its case. The prosecution case, based on solitary evidence of witness which is reliable and trust worthy, cannot be thrown out only on the basis of non-production of independent witness or scriber of FIR, particularly in dowry death cases, because such type of offences are caused inside the house of the accused persons and probable witness of the occurrence either belongs to the family of the accused person or their well wisher or their neighbour.

61. The Hon'ble Supreme Court in Om Prakash vs. State of Punjab (1992) 4 SCC 212, while considering the availability of independent witnesses in dowry death cases has held as under:

"It was then submitted on behalf of the appellants that it appears that Rita committed suicide and the appellants have been falsely implicated for an offence of murder by the interested witnesses. It is true that sometimes a case of suicide is presented as a case of homicide specially when the death is due to burn injuries. But it need not be pointed out that whenever the victim of torture commits suicide she leaves behind some evidence-may be circumstantial in nature to indicate that it is not a case of homicide but of suicide. It is the duty of the Court, in a case of death because of torture and demand for dowry, to examine the circumstances of each case and evidence adduced on behalf of the parties, for recording a finding on the question as to how the death has taken place. While judging the evidence and the circumstances of the case, the Court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present."

(Emphasis supplied).

62. The Apex Court, again in Arun Garg vs. State of Punjab (2004) 8 SCC 251, while considering the requirement of independent witness in dowry death case has held as under :

"There is no substance in the argument of the learned counsel appearing the appellant that the interested evidence of the parents of the deceased has not been supported by independent evidence or witness of the locality while the stand of the defence has been that the deceased Seema was never harassed or tortured by the appellant or by any of his family members for demand of dowry. Likewise, there is no substance in the submission of the learned counsel appearing for the appellant that there is no demand of dowry by the appellant or by any of his family members soon before the death of Seema."

63. Again, coming to the facts of this case, admittedly, no independent witness has been produced by the prosecution. Ram Narain (P.W.1) and Ram Murti (P.W.2) are related with each other. From perusal of written report, (Ex.Ka.1), it transpires that scriber of FIR is one Shiv Singh, who is brother of Ram Narain Singh (P.W.1) and is not the eye witness. According to the prosecution, Ram Narain Singh (P.W.1) and Ram Murti (P.W.2) had reached the place of occurrence after the incident occurred. According to appellants, at the time of incident, neither they nor any other person were present at the place of occurrence where the deceased had received burn injury and died. Upon hearing noise and seeing the flames of fire, the appellants and other persons of locality had reached at the place of occurrence. The appellants had neither disclosed the names of person who had reached the place of occurrence for the first time, nor produced any such person before the trial Court. The appellants had also not produced Indrapal Singh, uncle of appellant no.2 Bharat Sharan Singh, who had given the death information at concerned Police Station for the first time. Thus, in view of the above, as well as the law laid down by the Hon'ble Supreme Court in Arun Garg (supra) and Om Prakash (supra), the prosecution story cannot be disbelieved for non production of independent witness and scriber of the FIR, therefore, this submission of the learned counsel for the appellants has no force.

64. At this juncture, it is also pertinent to note that in most of the cases, the dowry death of deceased is caused inside the house of the accused persons and all the relevant facts as well as incriminating evidence are only in the knowledge of the accused persons but they do not come forward to disclose the fact, happened to the deceased soon before her death. Therefore, the prosecution cannot be blamed to produce such evidence which is not in the possession and knowledge of prosecution witnesses.

65. In Trimukh Maroti Kirkan vs. State of Maharashtra 2006 (10) SCC 681, where accused was charged for committing murder of his wife for want of dowry and it was established by the prosecution that shortly before the offence, he was seen with his wife inside his house where he and his wife were normally used to reside. Hon'ble Supreme Court has held as under :

"Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes placed in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In Nika Ram v. State of Himachal Pradesh AIR 1972 SC 2077 it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with 'khokhri' and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106 the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 Cr.P.C. The mere denial of the prosecution case coupled with absence of any explanation were held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 the medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In State of Tamil Nadu v. Rajendran (1999) 8 SCC 679 the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime."

(Emphasis supplied)

66. In dowry death, the conduct of the appellants also becomes very important to explain the facts and circumstances especially within their knowledge, as required by Sections 106 and 113-B of Indian Evidence Act, that why and how the deceased had received such a severe burn injury and died and also what efforts were made by the appellants to save the life of the deceased. Hon'ble the Apex Court in the State of Karnataka vs. Suvarnamma 2015 (1) SCC 323, while expressing its opinion on the relevancy of conduct of appellants accused where they had taken plea that they did not know how the deceased had received burn injury and had died, has held :

"15. What is surprising and wholly unacceptable is the stand of the accused who were husband and mother in-law of the deceased, living in the same house and that they had no idea that the deceased received burn injuries. This stand is clearly incompatible with the stand in Exhibit D-7 that the accused mother in-law of the deceased was very much present in the house and she shifted the deceased to the hospital. Even if the dying declaration (Exhibit D-7) was recorded, the fact remains that when it was recorded, even according to the said dying declaration, the deceased was accompanied by her mother in-law who is one of the accused. The deceased could not have made any voluntary and independent dying declaration in such circumstances as the influence of the accused could not be ruled out. According to the said dying declaration, she raised hue and cry when she received burn injuries which attracted her mother in-law and the tenant, while according to the mother in-law as well as the tenant they never heard such cries. There is no evidence of struggle or cries and the burn injuries are to the extent of 95%. In the case of an accident, the deceased would have tried to run away or escape. In these circumstances, there is hardly any possibility of accidental burn injuries. Extensive burns and other circumstances support the version of unnatural death. In these circumstances, the dying declaration (Exhibit P-10) is consistent with the circumstances on record while Exhibit D-7 is not."

(Emphasis supplied)

67. Now coming to the facts of this case, admittedly, the deceased had died inside the house of appellants due to burn injury. According to Dr. G.K. Srivastava (P.W.3), 100% burn injury was caused to the deceased due to which her legs and feet were charred. According to prosecution witness, they had seen and found seven sarees and two petticoats worn/wrapped on the body of the deceased. Gaush Mohd. Khan (P.W.5), has also stated that there were ashes on the body of the deceased. Death information (Ex.Kha.1) of deceased was given to concerned Police Station at 10:15 a.m., by uncle of appellant Bharat Sharan Singh. He (P.W.5) further stated that upon that information, he rushed to the place of occurrence and started inquest proceedings. Thus, P.W.5 was the Police officer, who reached at the place of occurrence at first. He has specifically stated that he did not know regarding the presence of any mud (kichad) at the place where the deceased had received burn injury. Neither Dr. G.K. Srivastava (P.W.3) nor Gaus Mohd. Khan (P.W.5) or any prosecution witness has stated that any half burnt cloth, found on the body of the deceased, got wet due to water or mud.

68. Further, the deceased had received 100% burn injury but no evidence was found as to whether deceased had made any attempt to save herself. According to learned counsel for appellants, the appellants were not at their home i.e. at the place of occurrence. The appellants, in their statement recorded under Section 313 of the Code have also stated that at the time of occurrence, deceased was cooking food, meanwhile, she caught fire and thatch (chappar) also caught fire. They have also stated that at the time of occurrence, they were not present at their home, seeing the flame of fire and hearing the noise of people, they reached at their home and put off the fire. In their statements, they have not stated specifically as to when and where all the appellants had gone from their house, leaving the deceased alone inside the house. They have also not produced any witness in support of plea taken in their defence, either to prove the plea of alibi or efforts made by them to save the victim. It is not the case of appellants that deceased had committed suicide by bolting the door of the house or kitchen.

69. From perusal of prosecution evidence, it also transpires that at the time of occurrence, none of the door of appellants' house was found bolt by the deceased. Ram Narain (P.W.1), Ram Murti Singh (P.W.2) and Gaush Mohd. Khan (P.W.5), have rejected the suggestion of defence counsel regarding the presence of any mud or water or any attempt made by the appellants to save the life of deceased. It is also pertinent to note at this juncture that according to S.I. Jai Karan Verma (P.W.4) and Gaush Mohd. Khan (P.W.5), death information report of deceased was given to the concerned Police Station at about 10:15 a.m. From perusal of Chik FIR (Ex.Ka.3), it is clear that concerned Police Station is situated 8 kms away from the place of occurrence. Indrapal Singh, uncle of appellant Bharat Sharan Singh who had given information, (Ex.Kha.1), had not been examined to prove as to when he got information regarding the occurrence as well as death of deceased. In view of the above, it can be presumed that death of deceased would have been caused before 8:00-9:00 a.m.

70. In addition to above, Dr. G.K. Srivastava, (P.W.3), in cross examination, as suggested by defence counsel, has admitted that death of deceased would be caused between 8:00 to 8:30 a.m. on 08.06.1990. Since the deceased had 100% burn injury whereby her legs were charred, it can be said that at least one hour would have been taken in the said occurrence wherein such severe burn injury was caused to her and she had died. In view of the above, it can also be said that the said occurrence would have occurred in the early morning on 08.06.1990. Non-presence of appellants at their house, without any justifiable cause in the early morning and appearance of appellant Bharat Sharan Singh (husband of deceased) after the occurrence makes the conduct of appellants highly doubtful, in view of law laid down by Hon'ble Apex Court in the cases of Trimukh Maroti (supra) and Suvarnamma's (supra).

71. So far as submission of learned counsel for appellants that deceased was mentally weak, is concerned, learned counsel for the appellants, in support of this submission, has drawn attention of the Court towards the statement of Ram Narain (P.W.1), where he had admitted that his elder brother Narvadeshwar was a patient of epilepsy, due to which he died by drowning in canal. Appellants have not placed any evidence regarding any illness or disease to deceased or any treatment given to her in this regard. Ram Narain (P.W.1), in cross examination, has specifically stated that deceased was not mentally weak rather she was sharp minded. He further stated that deceased used to worship but he did not know whether she did it for hours. Thus, in view of the above, submission of learned counsel for the appellants has no force.

72. Now, it is also to be seen whether the death of deceased was unnatural, suicidal or accidental. Submission of learned counsel for appellants in this regard, is that the deceased had died due to fire, caught her accidentally, at the time of cooking food. For offence under dowry death as provided under Section 304 B IPC., the nature of death is required either caused by burn or bodily injury or otherwise than under normal circumstances. Thus, any unnatural death, either homicidal or suicidal, is covered under Section 304 B IPC and if the cause of death of a woman, as required under Section 304 B IPC is proved by the prosecution, the burden of proof shifts on the accused, to prove that the deceased's death was natural or accidental. In the present case, it is clear that seven sarees and two petticoats, wrapped around the waist of deceased, were found in burnt condition and no evidence was found that any attempt was made either by her to resist or save herself from such fire because if it was accident, deceased would have made efforts to save herself, which shows that the death of deceased was neither accidental nor natural. Thus, the submission of learned counsel has no force.

73. Now coming to the next submission of learned counsel for the appellants regarding the effect of non-examination of the Investigating Officer by the prosecution. Now, it is settled principle of law that if the Investigating Officer has not collected any material or important piece of prosecution evidence, during investigation or any material contradiction was not proved by the defence counsel between the statement of prosecution witnesses, recorded during trial, and their statement, recorded under Section 161 of the Code, due to which their statement had become doubtful, non-examination of Investigating Officer is not material. Hon'ble Supreme Court in catena of decisions (See : (i) Behari Prasad and others vs. State of Bihar 1996 SCC (Crl.) 271; (ii) Bahadur Naik vs. State of Bihar AIR 2000 SC 1582 ; (iii) Ram Gulam Choudhary vs. State of Bihar AIR 2001 SC 2842; (iv) Krishna Mochi and others vs. State of Bihar AIR 2002 SC 1965; (v) State of Karnataka vs. Bhaskar Kushali Kotharkar and others AIR 2004 SC 4333) has also held that non-examination of Investigating Officer is not fatal to the prosecution case unless prejudice is caused to the appellants for his non-examination.

74. In this case, as discussed above, the Investigating Officer, Sri Bipin Bihari Chaubey, Dy. S.P., had not collected any material or important piece of evidence, during investigation. He had prepared only site plan (Ex. Ka.11) recorded statement of witnesses and after investigation, filed charge sheet (Ex. Ka.12). The prosecution case, in peculiar facts and circumstances of this case, has been proved beyond reasonable doubt by the prosecution witnesses. The appellants had also not produced any evidence either in their defence to rebut the statutory presumption provided under Section 113-B of Evidence Act or to show any prejudice caused to them due to non-examination of the Investigating Officer. Hence, non-examination of Investigating Officer, is not fatal to the prosecution story.

75. In view of the above discussion, in my view the prosecution has succeeded to prove its case that deceased was being harassed and tortured for want of dowry, she had died due to burn injury within seven years of her marriage and she was tortured and harassed due to demand of dowry soon before her death.

76. Now the question arises as to whether both the appellants are liable to be convicted in this case. Admittedly, appellant no.2. Bharat Sharan Singh is husband of the deceased whereas appellant no.1 Smt. Phulau @ Phoolwati is mother-in-law of the deceased. Occurrence had taken place on 08.06.1990, whereas their statements, under Section 313 of the Code, were recorded on 08.06.2001 i.e. 10 years after the occurrence. Appellant no.1-Phulau @ Phoolwati had disclosed her age in aforesaid statement as 50 years, whereas appellant no.2-Bharat Sharan Singh had disclosed his age as 32 years. It means that at the time of occurrence, appellant no.2-Bharat Sharan Singh was young and about 22 years old and his mother appellant no.1-Smt. Phulau @ Phoolwati was about 40 years old. According to Ram Narain Singh (P.W.1), appellant no.2-Bharat Sharan Singh was employed as machine operator in Delhi and he had gone to Delhi with his father but had returned before the occurrence and sent his maternal uncle to bring the deceased. Thus, it is clear that father of appellant no.2- Bharat Sharan Singh, at the time of occurrence, was in Delhi, whereas his mother, appellant no.1.Smt. Phulau @ Phoolwati and his sister, co-accused Manju Devi were residing with him at the time of occurrence. In this case, appellants-Bharat Sharan Singh, Smt. Phulau @ Phoolwati and co-accused Manju Devi i.e. whole family have been implicated. It is also pertinent to mention that general allegations were made by the prosecution witnesses for demand of dowry and harassment against the appellants and co-accused Manju Devi, but the occurrence was happened when the appellant Bharat Sharan Singh returned to his house from Delhi. Further, as discussed above, it has been found in the light of statement of Dr. G.K. Srivastava (P.W.3), the said occurrence would have been started early in the morning which shows that serious disputes/harassment or torture would have been happened between deceased and her husband (appellant-Bharat Sharan Singh) either in the early morning or in the preceeding night. In addition to above, the said demand of dowry i.e. transfer of land as alleged by the prosecution, was made only for appellant no.2-Bharat Sharan Singh.

77. Hon'ble the Supreme Court, discussing the object and reasons of Dowry Prohibition Act, 1961 as well as Dowry Prohibition (Amendment Act), 1984 and taking cognizance of possibility of false implication of some other relatives of husband of the deceased in Kans Raj (Supra), has held as under :

"A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over-enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."

78. In Naresh Kumar vs. State of Haryana (2015) 1 SCC 797, in a case where appellant's mother and brother were acquitted but only appellant (husband) was convicted for dowry death of his wife, on plea raised by appellant that his case was at par with his mother and brother, three judges bench Hon'ble Supreme Court, dismissing the appeal, has held as under:-

"As regards the claim for parity of the case of the appellant with his mother and brother who have been acquitted, the High Court has rightly found his case to be distinguishable from the case of his mother and brother. The husband is not only primarily responsible for safety of his wife, he is expected to be conversant with her state of mind more than any other relative. If the wife commits suicide by setting herself on fire, proceeded by dissatisfaction of the husband and his family from the dowry, the interference of harassment against the husband may be patent. Responsibility of the husband towards his wife is qualitatively different and higher as against his other relatives."

(Emphasis supplied)

79. In view of above, looking into the whole facts and circumstances of this case, in the light of the law laid down by the Hon'ble Supreme Court in Kans Raj (Supra) and Naresh Kumar (Supra), the prosecution evidence is not reliable and trustworthy so far it relates to the appellant no.1-Smt. Phulau @ Phoolwati and consequently, the prosecution has failed to prove its case beyond reasonable doubt against the appellant Smt. Phulau @ Phoolwati and she is liable to be acquitted, whereas it has successfully proved its case beyond reasonable doubt against the appellant no.2-Bharat Sharan Singh (husband of the deceased). The impugned judgment so far as it concerned for appellant no.2-Bharat Sharan Singh, is well discussed, well reasoned, it requires no interference and liable to be affirmed.

80. Now coming to the question of sentence, whether the sentence passed by trial Court, is just and proper or not.

81. The appellant no.2-Bharat Sharan Singh has been convicted for offence under Section-498-A IPC for one year rigorous imprisonment with fine of Rs.500/- and for offence under Section 304-B IPC for seven years rigorous imprisonment with further direction that both the sentences shall run concurrently. Thus, the maximum sentence, awarded against the appellant no.2 Bharat Sharan Singh, is for seven years rigorous imprisonment which is minimum sentence for offence under Section 304-B IPC.

82. In the light of the above discussion, looking into the nature and gravity of the offence, I am of the view that the punishment awarded by the trial Court, against the appellant no.2 Bharat Sharan Singh, is appropriate and requires no interference and so far as the appeal filed by him is concerned, the same is dismissed and the impugned judgment and order passed by the trial Court, convicting and sentencing the appellant no.2 Bharat Sharan Singh, is affirmed.

83. The appellant no.2 Bharat Sharan Singh is on bail. His bail bonds are cancelled. He is directed to surrender before the concerned Court forthwith to serve out the aforesaid sentence.

84. Further, in the light of the aforesaid discussion, the impugned judgment and order, passed by trial Court, so far it relates to the conviction and sentence of appellant no.1 Smt. Phulau @ Phoolwati, is set aside and appeal filed by her is allowed. She is acquitted from the charges levelled against her. She is on bail. Her bail bonds are cancelled.

85. The appeal is partly allowed and the impugned judgment and order is modified to the extent as above.

86. Keeping in view the provision of Section 437-A of the Code, appellant no.1 Smt. Phulau @ Phoolwati is hereby directed forthwith to furnish a personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before the trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, she, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

87. A copy of this judgment along with lower court record be sent to trial Court by FAX for immediate compliance.

Order Date:-18.02.2021

Ps.