Bablu And Ors.(2) vs State Of U.P.
2021 Latest Caselaw 676 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 
Court No. - 31
 

 
Case :- CRIMINAL APPEAL No. - 996 of 2001
 

 
Appellant :- Bablu And Ors.(2)
 
Respondent :- State of U.P.
 
Counsel for Appellant :- B.L.Gupta,Achyutanand Pathak,Manoj Kumar Gupta,Ramesh Rawat
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. The instant criminal appeal, under Section 374 (2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'), has been preferred against the judgment and order dated 17.10.2001, passed by 12th Additional Sessions Judge, Lucknow, in Sessions Trial No.1253 of 1998, arising out of Case Crime No.105 of 1998, P.S.-Alambagh, District-Lucknow, whereby the appellants-Bablu (since deceased), Smt. Rajkali and Babulal (hereinafter referred to as appellants) have been convicted and sentenced for offence under Section 304-B read with 34 I.P.C. for seven years rigorous imprisonment and for offence under Section 4 of Dowry Prohibition Act, for six months rigorous imprisonment with fine of Rs.2,000/- each.

2. The prosecution case, in brief, is that deceased-Padma Kumari, daughter of Munni Lal (P.W.-1), was married with the appellant-Bablu (since deceased) on 02.07.1995. The appellant-Bablu (since deceased), his mother-Rajkali, brother-Babulal and sister-Kalawati used to demand from her Rs.5,000/- and Television as a dowry and for non-fulfillment of the said dowry, they used to beat her and had set her on fire on 12.04.1998, due to which, she died on 13.04.1998 during her treatment at District Hospital. Upon getting information from unknown persons regarding the death of the deceased, Munni Lal (P.W.-1) rushed to the hospital and found that deceased had died due to burn injuries. The inquest proceeding was conducted by City Magistrate ; inquest report (Ext.-Ka-2) was prepared and dead body of the deceased was sent for post-mortem.

3. Dr. S. K. H. Hasan (P.W.-6) and Dr. V. K. Misra conducted the post-mortem on 13.04.1998 and found the following anti mortem injuries on the body of the deceased :-

"Sub burn to Deep burn present all over the body except top & head & both soles. Skin is blackened and peeled off at places. Burn area reddish where skin peeled off. A red line of demarcation of at junction of burn and unburnt area. Singeing of scalp hair, eyelashes, eyebrows, axillary and pubic hair present."

4. According to P.W.-6, deceased had died due to shock as a result of ante mortem extensive burn injuries and he had prepared post-mortem report (Ext.-Ka-6).

5. Munni Lal (P.W.-1) sent typed written information (Ext.-Ka-1) dated 15.04.1998, addressed to Station House Officer, Alambagh, Lucknow, endorsing its copy to Circle Officer (C.O.) Police-Alambagh, Lucknow. On the direction of C.O., Alambagh dated 17.04.1998, first information report was registered on 24.04.1998 against the appellants-Bablu (since deceased), Rajkali and Babulal and co-accused-Kalawati (since acquitted) by Head Constable-Ram Autar Verma (P.W.-5) and investigation was handed over to Dy. S. P. Gotendra Pal Singh, who inspected the place of occurrence, prepared site plan (Ext.-Ka-3) and after investigation, filed charge sheet (Ext.-Ka-4) against the appellants and co-accused-Kalawati (since acquitted) before the concerned Magistrate, who took the cognizance of the offence and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers as required under Section 207 of the Code, committed the case to the Court of Sessions, Lucknow for trial.

6. The learned trial Court framed charges for the offence under Sections 304B read with Section 34 I.P.C. and ¾ D.P. Act against the appellants to which they denied and claimed for trial.

7. The prosecution, in order to prove its case, examined Munni Lal (P.W.-1), Daya Ram (P.W.-2), Vijay (P.W.-3), Dy. S.P. Gotendra Pal Singh (P.W.-4), Head Constable-Ram Autar Verma (P.W.-5) and Dr. S. K. H. Hasan (P.W.-6).

8. After conclusion of the prosecution evidence, the statement of the appellants were recorded under Section 313 of the Code wherein they denied the prosecution evidence alleging that they had been falsely implicated.

9. The appellants, in their defence to controvert the prosecution story, examined Anil Kumar (D.W.-1) and Rajesh Kumar (D.W.-2) and also relied on documentary evidence filed on 24.09.2001, receipt dated 21.12.1997 for purchasing the television and injury report of deceased dated 12.04.1998.

10. Learned trial Court, after conclusion of the trial, convicted and sentenced the appellants as above by the impugned judgment. Aggrieved by the impugned judgment, the appellants have preferred this appeal.

11. During the pendency of this appeal, the appellant-Bablu died and appeal filed by him was abated vide order dated 02.02.2018, passed by this Court.

12. Heard Sri Manoj Kumar Gupta, learned counsel for the appellants and Sri Vishnu Deo Shukla, learned A.G.A. assisted by Sri S. Z. Khan brief holder for State.

13. Learned counsel for the appellants has submitted that the appellants are innocent and have been falsely implicated. Learned counsel further submitted that the allegation for demand of dowry is totally false as the appellants had already television in their house since 1997 i.e. prior to occurrence. Learned counsel further submitted that the allegation for harassment soon before the death of deceased was not proved by the prosecution. Learned counsel further submitted that the appellants are mother-in-law and brother-in-law (devar) of the deceased and there was no occasion for demand of dowry and harassment by them to the deceased. Learned counsel further submitted that no specific allegation for either demand of dowry or harassment was made against the appellants. Learned counsel further submitted that the appellants are very poor person, the appellant-Rajkali used to work as maid servant (Chauka Bartan) in the houses of her locality due to poverty and she was not present at the time of occurrence. Learned counsel further submitted that as soon as the information regarding fire and burn injury was received by the appellant-Bablu (since deceased), husband of the deceased, he reached at his house and carried the deceased to the hospital for her treatment but she could not be saved despite the herculean efforts. Learned counsel further submitted that the statement of prosecution witnesses are self contradictory and are not reliable. Learned counsel further submitted that trial Court had not considered the statement of D.W.-1 and D.W.-2 as well as documentary evidence, filed by the appellants and passed the impugned judgment and order in cursory manner, which is liable to be set aside.

14. Per contra, learned A.G.A. vehemently opposed the submission made by the learned counsel for the appellants and submitted that admittedly the death of deceased was caused inside the house of the appellants by burn injuries and the appellants had failed to produce any evidence to show as to how the deceased, who received sever burn injuries, had died within seven years of her marriage. Learned A.G.A. further submitted that specific allegation for demand of dowry and harassment before death of deceased, by the appellants, has been made by the prosecution witnesses. Learned A.G.A. further submitted that ocular evidence is fully supported with the medical evidence, there is no illegality in the impugned judgment and order and the appeal is liable to be dismissed.

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

16. Before considering the evidence available on record, led by both parties, in the light of argument advanced by the 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 and Section 498-A I.P.C., Section 113-B of Indian Evidence Act and Section 2 Dowry Prohibition Act, 1961 which are as under:-

Section 304-B (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.

Section 498-A 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.

Section 113-B of Indian Evidence Act-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."

17. The above provision, related with dowry death, clearly shows that if the death of any women is caused within seven years of her marriage by burn "or otherwise than under normal circumstances" and it is shown that if soon before the death of such women, 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 further provides that in such cases, if it is shown that such women 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.

18. Thus, a conjoint reading of Section 113-B of Evidence Act and Section 304-B I.P.C. shows that there must be some evidence for demand of dowry and due to failure 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 the deceased had died in unnatural circumstances or by burn injuries due to harassment or torture committed to her as above. Thus there must be some proximity between demand of dowry, harassment and death of deceased.

19. Admittedly, the deceased had died within seven years of her marriage, inside the house of the appellants due to burn injuries and the appellant-Bablu (since deceased) who was husband of the deceased had died during the pendency of this appeal and the appeal filed by him was abated. The appellant-Rajkali is mother-in-law (saas) of the deceased whereas the appellant-Babulal is brother-in-law (devar) of the deceased.

20. Section 498-A I.P.C. deals with the offence of cruelty, committed with a woman by her husband or by the relatives of her husband. In this matter, neither any charge for offence under Section 498-A I.P.C. was framed against the appellants nor the appellants have been convicted for offence under Section 498-A I.P.C. Thus it has only to be seen whether any cruelty or harassment was caused to deceased soon before her death due to demand of dowry or not.

21. 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 Evidence Act 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 death of deceased 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 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.

22. 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)

23. Munni Lal (P.W.-1), informant, stating that his daughter, Padma Kumari was married on 02.07.1995 to the appellant-Bablu (since deceased), has stated that at the time of her marriage, he had given sufficient dowry according to her capacity. He further stated that after the marriage, his son-in-law (Damad), appellant-Bablu (since deceased) and the appellant-Rajkali came with the deceased to his house but had not permitted the deceased to tie a band of Raksha Bandhan to her brother. He further stated that he had gone 3-4 times to her daughter's matrimonial house where she (deceased) told that the appellant-Bablu (since deceased) and his mother-Rajkali used to demand of Rs.5,000/- and television. He further stated that since the said demand was not fulfilled due to poverty, the appellants used to harass the deceased and asked her to do kitchen work (chauka bartan). He further stated that co-accused-Kalawati (sister-in-law) (nand of the deceased) resided with her mother as she was employed in Telephone Department. He further stated that on 12.04.1998, he had received message that his daughter was burnt and on that information, he had gone to hospital where he found that his daughter was unconscious and had died at about 2:00 a.m. in the night due to burn injury. In cross-examination, this witness has admitted that the marriage of his daughter (deceased) was settled with the help of sister-in-law, Daulat Devi and at that time, there was no dispute regarding any dowry. He further stated that mother-in-law (saas) of the deceased used to go to do kitchen work (chauka bartan) in another house of her locality and he (P.W.-1) did not know when she did go from her house on her duty and when she returned back to her house. He further stated that the appellant-Bablu (since deceased) was doing job at battery shop. Stating that the deceased had not told him regarding ''marpit' prior to the occurrence, he further stated that she had told for demand of Rs.5,000/- and television. He further stated that when he reached at hospital, he was informed that the appellant-Bablu (since deceased) had gone to call his sister.

24. Daya Ram (P.W.-2) has stated that on 12.04.1998 at 5:00-5:30 p.m. a telephonic information was given by one Vijay (P.W.-3), son of Mohan Lal, neighbour of the appellants that the deceased had been burnt. He further stated that the said information was conveyed by him to the informant and he had also gone to the hospital. He further stated that inquest report (Ext.-Ka-2) was prepared in his presence.

25. Vijay (P.W.-3) has stated that on 12.04.1998 at about 5:00-5:30 p.m., upon getting information, he reached the house of the appellants and saw that the deceased was lying in courtyard beneath the "chhappar" ; she was in burnt condition but was alive. He further stated that the deceased, who was daughter of his maternal uncle (mama ki ladki), had told him that she had been burnt and requested to call her father. He further stated that thereupon he had informed about the incident on telephone to his maternal uncle, Dayaram and asked to inform his another maternal uncle, Munni Lal (P.W.-1).

26. Now a question arises whether or not the prosecution has succeeded to prove any demand of dowry, harassment or cruelty caused to the deceased, by the appellants, soon before her death. None of the prosecution witnesses have stated that the deceased was harassed or tortured soon before her death by the appellants. Munni Lal (P.W.-1) has also failed to state as to when he met with the deceased before her death. Vijay (P.W.-3) has also not stated whether or not the deceased had told him regarding demand of dowry or torture caused to her by the appellants-Rajkali and Babulal or they had set her on fire. Further, the statement of P.W.-3, that on getting information, he had gone to the place of occurrence, saw the deceased alive at 5:00-5:30 p.m. and deceased had told him regarding the occurrence, becomes doubtful because from perusal of photo copy of injury report of deceased, filed by the appellants, shows that at that time deceased was carried by the appellant-Bablu to the District Hospital, Balrampur, Lucknow for her treatment where she was examined at 6:00 p.m. by Emergency Medical Officer.

27. In addition to above, the record further shows that none of the appellants were found at the place of occurrence. Anil Kumar (D.W.-1) has stated that he is neighbour of the appellants. Stating that the appellant-Bablu (since deceased) used to leave his house at 10:00 a.m. and return at 8:00 p.m., whereas the appellant-Rajkali would leave her house for kitchen work (chauka bartan) of another house of own locality and returned back after 7:00 p.m., he further stated that the appellant-Rajkali was not present at the time of occurrence in her house. He further stated that upon hearing the hue and cry of the deceased, at the time of occurrence, he had reached the house of the deceased and found that the deceased was lying in burnt condition. He further stated that meanwhile somebody had informed the appellant-Bablu (since deceased) husband of the deceased, who reached there within 45 minutes and the appellant-Babulal had also come there and both of them took away the deceased to the hospital.

28. Rakesh Kumar (D.W.-2) has also stated that none of the appellants was present at the time of occurrence, as stated by Anil Kumar (D.W.-1). He further stated that upon getting information, he also reached at the place of occurrence and found that the deceased was lying in burnt condition and was unconscious. He further stated that upon information given to the appellant-Bablu (since deceased), he and his family members took away the deceased to the hospital. He further stated that there was no dispute regarding demand of dowry between the deceased and the appellant-Bablu (since deceased).

29. Normally, it is seen that in dowry death cases, a large number of relatives of husband of the deceased are falsely implicated without specifying their specific role. Hon'ble Supreme Court in Kans Raj (supra), taking cognizance of such tendency, 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 overenthusiasm 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."

30. In Naresh Kumar vs. State of Haryana and others (2015) 1 SCC 797 Hon'ble Supreme Court while distinguishing the role and responsibility of the husband in dowry death cases and confirming the conviction of only husband, 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, preceded by dissatisfaction of the husband and his family with the dowry, the inference 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.

On proof of the essential ingredients mentioned in Section 113-B, if the statutory presumption arises against the accused which shifts the burden on the accused, the accused must give cogent explanation. Failure to give an explanation or giving of false explanation can be taken as an additional circumstance against him. The requirement of allegations of demand of dowry against the relatives of the husband may have to be more specific and the Court may be more cautious in dealing with such allegations, if there is any doubt about overimplication, but responsibility of the husband may be obvious from the circumstances. In these circumstances, the case of the appellant cannot stand on a par with his mother and brother who have been acquitted by the High Court, by way of caution against overimplication, as well as for want of cogent evidence against them. The case of the husband stands on a different footing."

(Emphasis supplied)

31. In Salamat Ali and others vs. State of Bihar, 1997 SCC (Crl.) 842, Hon'ble Supreme Court, while acquitting all accused expect husband of the deceased, held that the relatives other than the husband do not usually demand television and scooter as it would not be in their house.

32. Coming to the facts of this case, again, in this case, specific allegation has been made that there was demand of Rs.5,000/- and a television as a dowry by the appellants. The record shows that the appellants had filed a cash memo/bill dated 21.12.1997 of purchasing the television (Videocon Company) which shows that the appellant-Babulal had already purchased a television. In addition to above, admittedly, after the occurrence, the deceased was carried by the appellant-Bablu (since deceased) to the hospital for her treatment which shows that the appellants had made a sincere effort to save the life of the deceased, but the trial Court failed to consider the above evidence produced by the appellants. The appellant-Bablu (since deceased), who was husband of the deceased had died during pendency of this appeal whereas the appellants-Babulal and Rajkali, who are mother-in-law (saas) and brother-in-law (devar) of the deceased and no specific role has been assigned against them by the prosecution.

33. In the light of above discussion, I am of the considered opinion that the prosecution has miserably failed to prove its case beyond reasonable doubt. The impugned judgment and order passed by trial Court is liable to be set aside and the appellants are entitled to be acquitted.

34. I am, therefore, unable to uphold the conviction and sentence of the appellants. The impugned judgment and order, passed by the Trial Court, is accordingly set aside. The appellants are acquitted. Consequently appeal is allowed.

35. The appellants are on bail, their bail bonds are cancelled and sureties are discharged.

36. Keeping in view the provision of Section 437-A of the Code, appellants are 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, appellants on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

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

Order Date :- 12.01.2021

Mahesh