Sher Singh And 2 Others vs State Of U.P.
2021 Latest Caselaw 1054 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

  Reserved On:- 11.01.2021
 
   Delivered On:- 19.01.2021 
 
Case :- CRIMINAL APPEAL No. 7192 of 2019
 
Appellant :- Sher Singh And 2 Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Brajesh Kumar Solanki,V.K.S. Somvanshi
 
Counsel for Respondent :- G.A.
 
Hon'ble Siddharth, J.

1. Heard Sri Brajesh Kumar Solanki and Sri Ajay Kumar, Advocate holding brief of Sri V.K.S. Somvanshi, learned counsels for the appellants and Sri Vikas Goswami, learned A.G.A for the State.

2. This criminal appeal is directed against the judgment and order dated 07.11.2019 passed by Additional Sessions Judge, Court No. 2, Budaun in Sessions Trial No. 13 of 2013 whereby the appellants have been convicted and sentenced for committing offences under Sections 498-A, 304-B IPC and Section ¾ D.P. Act regarding Case Crime No. 177 of 2012, Police Station- Usawan, District- Budaun.

3. The prosecution case in short is that the sister of informant, namely, Pravesh Kumari, was married to the son of the appellant nos. 1 and 3, Yashwant on 18.06.2010 and the informant gave dowry as per his capacity which included a motorcycle. The sister of the informant was subjected to cruelty for bringing less dowry and demand of gold chain, colour T.V., fridge, cooler and buffalo was made repeatedly. On 02.06.2012 sister of the informant informed him on phone that the members of a matrimonial home will kill her. Her two sister-in-laws, Nanhi and Mamta, and also her husband have threatened her that in case the dowry demand is not made they will kill and hang her. On 04.06.2012 the informant received information that his sister has died. He lodged the FIR on the allegation that he has suspicion that his sister has been strangulated to death by her husband, father-in-law, mother-in-law, elder brother-in-law (jeth) and two sister-in-laws.

4. The aforesaid case was registered as Case Crime No. 177 of 2012, under Sections 498-A, 304-B IPC and Section ¾ D.P. Act against the aforesaid accused persons on 04.06.2012 at about 15:45 hours. After due investigation charge sheet was submitted before the court and charges were framed under the aforesaid sections against the accused persons.

5. The prosecution produced eight prosecution witnesses being P.W.-1, Nyay Singh, P.W.-2, Nanhi Devi, P.W.-3, Ram Devi, P.W.-4, Dr. A.P. Gautam, P.W.-5, H.C.P. 13 Mahendra Pal Singh, P.W.-6, Raj Kishore Singh, P.W.-7, Brijendra Kumar Singh and P.W.-8, Rajeev Prasad Kashyap and also produced the documentary evidences before the trial Court.

6. After the statement of the prosecution witnesses were recorded the statement of accused persons were recorded under Section 313 Cr.P.C. Surendra son of Phool Singh examined as D.W.-1 by the trial Court by the defense side.

7. P.W.-1, Nyay Singh, brother of the deceased and informant stated that he and his father married his younger sister and co-accused, Yashwant on 18.06.2010 and gave dowry as per their capacity but the accused persons were demanding gold chain, fridge, colour T.V., cooler and buffalo. When his sister refused to give these things she was harassed. After two years of marriage she made a call and informed him that his sister-in-laws, Nanhi and Mamta and her husband have threatened her that they will kill and hang her in case their demand of dowry is not met. She had informed him on phone that please comply with their demand of dowry otherwise they will kill her. He went to her matrimonial home along with mediator of her marriage and asked the accused persons to permit his sister to go with him. They refused to let her go without fulfillment of demand of dowry. After he came back, on the next day she was done to death and after receiving information they went there and found that accused persons have beaten his sister and after strangulating her caused her death. He got the FIR registered after dictating it to his brother-in-law and lodged the same. FIR was proved as exhibit-1. After post-mortem he brought the dead body of his sister to his house and got it cremated by his father.

8. P.W.-2, Nanhi Devi, mother of the deceased and P.W.-3, Smt. Ram Devi, sister-in-law (bhabhi) of the deceased, repeated the contents of the statement of P.W.-1. There is nothing inconsistent in their statements with the statement of P.W.-1.

9. P.W.-4, Dr. A.P. Gautam, who conducted the post-mortem of the body of the deceased stated that on 05.06.2012, he along with Dr. Sher Singh Kakkar, conducted post-mortem in District Hospital, Budaun. He found that the mouth and eyes of the deceased were partly open, rigor mortis from the upper part of the body has come to an end but was present in the lower part. P.M staining was present in the back side. Both the eyes were congested. From the left side of the nose of the deceased's blood was coming out. The doctor found following injuries on the body of the deceased :-

Anti Mortem Injuries:-

(I) contused traumatic swelling 4cm x 3cm on the left periorbital region. Left eye deeply congested.

(II) Abraded contusion 16cm x 3cm on front of neck started from right side neck, 6cm below the right ear up to the left ear isthmus of thyroid cartilage reaching up to the left ear lobule on desection of neck. Neck muscles are found deeply contused, lacerated at places, clotted blood present in between the muscle fillers. Trachea found congested.

10. In the opinion of the P.W.-4 and Dr. Sher Singh Kakkar, the death of the deceased was caused due to asphyxia as a result of anti-mortem strangulation.

11. P.W.-5, H.C.P 13, Mahendra Pal Singh, who was posted as clerk in the Police Station- Usawan, District- Budaun, proved the Chik FIR.

12. P.W.-6, Raj Kishore, a co-villager of P.W.-1, P.W.-2 and P.W.-3, proved that the deceased was being subjected to harassment and cruelty on account of unfulfilled demand of dowry. He accompanied the villagers and P.W.-1 to the village of matrimonial home of the deceased and he stated that the villagers were sitting near the dead body of the deceased but the accused persons had ran away. He testified that the dead body of the deceased was cremated at her parental village and her father performed her last rites.

13. P.W.-7, Sub-Inspector Brijendra Kumar Singh, proved that on receiving the news of dowry death of the deceased on 04.06.2012, he went to her house. He got the inquest report, site plan, etc., prepared and he proved them accordingly.

14. P.W.-8, Rajeev Prasad Kashyap, the Sub-Divisional Magistrate, Dataganj, proved that the inquest report was made in his presence and the clothes, jewellery, etc., of the deceased were collected in his presence. He proved them before the Court accordingly.

15. The appellants in their statement under Section 313 Cr.P.C denied the incident and the proceedings. They further stated that on the date of incident they had gone to perform the "bhat ceremony" of the sister-in-law of the deceased, Nanhi, to another village and the deceased was alone in the house. On getting information they came back to their village. The deceased did not wanted that her husband, Yashwant, should participate in the marriage of Nanhi. After her marriage with Yashwant she was living separately from the appellants.

16. D.W.-1, Suresh, deposed before the Court that on the date of incident the accused persons had come to his village in connection with the marriage of the sister-in-law of the deceased, Nanhi. The deceased was alone in the house where she committed suicide. After receiving the information of the death of the deceased at 07:30 hours the accused persons went back to their village but he did not accompany them.

17. Learned trial Court after considering the evidence on record has come to the conclusion that the offences alleged against the appellants are fully made out and they have been subjected to 10 years rigorous imprisonment each under Section 304-B IPC; two years rigorous imprisonment each and fine of Rs. 2000/- each under Section 498-A IPC and one year rigorous imprisonment and fine of Rs. 3000/- each. All the sentences have been directed to run concurrently.

18. Learned counsel for the appellants has submitted that P.W.-1 has stated in the FIR and also admitted in his statement that in the last conversation over phone, the deceased had levelled the allegation regarding demand of dowry and commission of atrocities against her sister-in-laws, namely, Nanhi and Mamta, and also her husband, Yashwant. No specific allegation has been levelled against the appellants in this regard. The appellants are living separately and had no concern with the couple. On the date of occurrence the appellants were not present in their village and had gone to perform to "bhat ceremony" of the sister-in-law of the deceased to another village. Accused persons sent information about the death of the deceased to her parents and when the informant reached the village he started threatening the appellants and therefore they had to leave the place of occurrence. The family of the appellants and the deceased are very ordinary and the demand of such a huge dowry is not credible. The appellant nos. 1 and 3, father-in-law and mother-in-law of the deceased are aged about 80 years and therefore they deserve to be acquitted of charges. The appellant no. 2 was residing separately with his family and has been falsely implicated in this case. The husband of the deceased was declared juvenile and his trial was separated when he was responsible of mis-adjustment with his wife and her consequent commission of suicide.

19. Learned A.G.A has vehemently opposed the arguments advanced by the counsel for the appellants. He has submitted that the death of the deceased took place within two years of her marriage and the burden was on the accused persons to explain to cause of her death which they have miserably failed to prove. They have also not prove the alibi taken before the trial Court that they were not in the village at the time of incident and the deceased committed suicide because she did not wanted her husband, Yashwant to join the marriage of his sister, Nanhi. In the opinion of doctor the death of the deceased was as a result of asphyxia due to anti-mortem strangulation. Even if it is assumed that there are no direct and specific allegations against the appellants, they are liable for punishment being members of the matrimonial home of the deceased. No evidence was adduced before the trial Court to prove that the deceased and her husband were residing separately from the other members of her matrimonial home. There is no material on record to prove that the age of the appellant nos. 1 and 3 is about 80 years. In the statement recorded before the trial Court under Section 313 Cr.P.C on 26.08.2019 the age of the appellant no. 1 was about 80 years and of appellant no. 3 was about 75 years mentioned in the statement. Along with supplementary affidavit filed before this Court documents have been brought on record which prove that in the year 2012 the appellant nos. 1 and 3 were aged about 70 years and, therefore, they cannot be said to be aged about 80 years now.

20. After considering the rival submissions and going through the judgment of the trial Court and the evidence on record, this court finds that the trial court has considered the evidence on record and has also considered the relevant law on the issue and nothing substantial has been pointed out by the learned counsel for the appellants to exonerate the accused-appellants of the charges.

21. A perusal of Section 304-B IPC clearly shows that if a married woman dies otherwise than under normal circumstances within 7 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 in connection with demand of dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused the death. The condition preceding for establishing an offence under this sections are:-

(a) that a married woman should have died otherwise than under normal circumstances;

(b) such death was within 7 years of her marriage and ;

(c) the prosecution has established that there was cruelty and harassment in connection with demand of dowry soon before her death.

22. The minimum punishment for the offence under Section 304B IPC is 7 years imprisonment which may extended to life imprisonment. The argument of the counsel for the appellants that there is no direct allegation against the appellants regarding the commission of alleged offence is without substance. Section 304-B IPC applies not only when death is caused by her husband or in-laws but also when the death occurs unnaturally, whosoever might have caused death. The section will apply whenever the occurrence of death is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. The occurrence of death in circumstances is enough to attract the section though death might have not been infact caused by the husband or in-laws. Hence, the intention behind the section is to fasten death on the husband or in-laws, though they did not infact caused the death. A fiction has been created that because of such circumstances, misery and agony created thereby the unfortunate married woman had to end her life.

23. In dowry death cases mostly direct evidence is not available and such cases are usually proved by circumstantial evidence. This section as well as Section 113-B of Evidence Act enact a rule of presumption i.e., being death occurring within 7 years of marriage in suspicious circumstances. This may be caused by any means and by any bodily injury. It is obligatory on the part of prosecution to show that death occurred within 7 years of marriage. In the present case, the prosecution has proved that not 7 years but the death occurred within 2 years of the marriage of the deceased.

24. Regarding alibi taken by the appellants that they were not present in the house at the time of incident and that deceased did not wanted her husband to join the marriage of his sister and benefit of plea of alibi should be given to them, is without any substance since no evidence was produced before the trial court in this regard. It is well settled law that when a plea of alibi is taken by an accused, the burden is upon him is establish the same by positive evidence, after the onus as regards the presence on spot is established by prosecution. In the present case, the prosecution has established that the appellants were in their house and they made a phone call informing about the death of the deceased. The appellants did not produced any evidence to prove that they were not in their house when the alleged incident took place. Once this fact was established by the prosecution the Court cannot accept the counter evidence to the effect that the appellants were elsewhere when the incident took place.

25. This court does not finds any ground to interfere with the conviction awarded to the appellants and the same is confirmed. However keeping in view the fact that the appellant nos. 1 and 3 are about 80 years and appellant no. 2 is the elder brother-in-law (jeth) of the deceased, this court is of the view that their sentences is required to be reduced to 7 years. In the statement of the witnesses and also in the FIR the allegations have been made against two sister-in-laws of the deceased and her husband and no direct allegations have been made against the appellants. They have been implicated because of being the family member of the matrimonial home of the deceased and presumption of law being against them.

26. In view of the above the sentence of 10 years rigorous imprisonment awarded to the appellants by the trial Court is reduced to 7 years without interfering with the fines and default clause. The sentences awarded under Section 498-A IPC along with Section 304-B IPC cannot be separated since the sentence awarded under Section 498-A IPC is included in substantive sentence awarded for the major offence under Section 304-B IPC. Sentence awarded under Section ¾ D.P. Act is not being interfered. Subject to above modifications the criminal appeal is partly allowed. The appellants are directed to undergo the remaining sentences. After adjusting the period already spent in jail before trial, during trial and during the pendency of this appeal.

27. The appeal is partly allowed.

28. Office is directed to sent back the record of the court below for necessary compliance within a period of 3 weeks.

Order date:- 19.01.2021

Rohit