Smt.Chameli And (2) Ors. vs State Of U.P.
2021 Latest Caselaw 71 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 10.11.2020
 
Delivered on 05.01.2021
 
Court No. - 31
 

 
Case :- CRIMINAL APPEAL No. - 1536 of 2003
 
Appellant :- Smt.Chameli And (2) Ors.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Subodh K.Shukla
 
Counsel for Respondent :- Govt.Advocate
 
Hon'ble Virendra Kumar Srivastava,J.

1. This appeal has been preferred under Section 374 (2) Code of Criminal Procedure, 1973 (hereinafter referred to as Code) by the appellants-Smt. Chameli, Durg Vijay and Dinesh Kumar (hereinafter referred to as appellants) against the judgment and order dated 19.09.2003, passed by Additional Sessions Judge, Fast Track Court-I, Hardoi in Sessions Trial No.1099/98, arising out of Case Crime No.74/98, Police Station-Tadiyawan, District-Hardoi, whereby the appellants have been convicted and sentenced for seven years rigorous imprisonment with fine of Rs.2,000/- for offence under Section 306 I.P.C. and for one year rigorous imprisonment with fine of Rs.1,000/- for the offence under Section 498A I.P.C.. It has further been directed that the appellants will have to undergo six months simple imprisonment in default of payment of fine for offence under Section 306 I.P.C. and three months simple imprisonment in default of payment of fine for the offence under Section 498-A I.P.C.. All the sentences shall run concurrently.

2. The prosecution case, in brief, is that the deceased-Guddi Devi (hereinafter referred to as deceased) was married with the appellant-Dinesh Kumar in the year 1994. The appellants-Durg Vijay and Smt. Chameli are the parents of the appellant-Dinesh Kumar. On 25.04.1998, the deceased-Guddi Devi died due to hanging. The appellant-Durg Vijay, who was Chaukidar of his village-Mugalipur, informed the said incident to concerned police of Police Station-Tadiyawan, District-Hardoi. Sri Krishna Bajpayee-Nayab Tehsildar (Executive Magistrate), on the direction of concerned Sub Divisional Magistrate, rushed to the place of occurrence on 26.04.1998, inspected the dead body of the deceased, conducted inquest proceeding, prepared inquest report (Ext.-Ka-6) and other document required for post-mortem examination, sealed the dead body and sent it for post-mortem examination to District Hospital, Hardoi.

3. Nanke (P.W.-1), brother of the deceased, made a written complaint dated 27.04.1998 to District Magistrate, Hardoi, endorsing its copy (Ext.-Ka-1) to Superintendent of Police and another copy (Ext.-Ka-3) to Chief Minister, U.P., alleging therein that his sister was married four years ago with the appellant-Dinesh Kumar and in her marriage, sufficient dowry was given but the appellants were demanding a she-buffalo and transistor in dowry which could not be given by them due to poverty. It was further alleged in the said report that due to non-fulfillment of said dowry, the appellants used to torture his sister, who (deceased) used to complain him. It is further alleged that on 29.04.1998, there was Mundon Ceremony of his son-Pinku and in order to get back (Bidai) of his sister, he (P.W.-1) had gone to his sister's matrimonial house (Sasural) on 26.04.1998 and when he reached there, he found the dead body of his sister, kept in room. It was further alleged that he narrated the whole story to the police Inspector, present on the spot, who assured him that necessary steps were being taken and also took his signature on a paper. It was further alleged in the said information that after post-mortem of his sister, he again tried to lodge an F.I.R. but failed to lodge it as the appellant-Durg Vijay, who was a Chaukidar, was having better relationship with the concerned local police. It was further alleged that his sister was hanged by the appellants, so necessary action be taken against them.

4. A criminal case, bearing Case Crime No.74/98, under Sections-498-A, 304-B I.P.C. and ¾ D.P. Act, was registered against the appellants and chik report (Ext.-Ka-12) and G.D. report (Ext.-Ka-13) was prepared by Constable-Mohd. Rashid Khan (P.W.-7). Investigation of the case was handed over to Dy. S. P. A. K. Vaidya (P.W.-9), who reached at the place of occurrence and after its inspection, prepared site plan (Ext.-Ka-14), arrested the appellants and recorded their statement as well as of other witnesses. After the transfer of P.W.-9, the investigation was handed over to Dy. S.P. Pradeep Gupta (P.W.-5), who concluded the investigation and filed a charge sheet (Ext.-Ka-5) against the appellants under Sections-498-A, 304-B I.P.C. & ¾ of D.P. Act before the concerned Magistrate, who took the cognizance 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, Hardoi, for trial.

5. The learned trial Court, after hearing the counsel for both the parties, framed charges for the offence under Sections 498-A, 304-B & ¾ D.P. Act against the appellants from which they denied and claimed for trial.

6. The prosecution, in order to prove its case, examined Nanhake (P.W.-1), Smt. Shanti Devi (P.W.-2), Prithvipal (P.W.-3), Dr. B. B. Tripathi (P.W.-4), Dy. S. P. Pradeep Gupta (P.W.-5), Executive Magistrate, Sri Krishna Bajpayee (P.W.-6), Constable Mohd. Rashid Khan (P.W.-7), S. I. Nishanath Pandey (P.W.-8) and Dy. S. P. A. K. Vaidya (P.W.-9) wherein Nanhake (P.W.-1), Smt. Shanti Devi (P.W.-2) and Prithvi Lal (P.W.-3) are witnesses of fact whereas rest are formal witnesses.

7. After conclusion of the prosecution evidence, the statements of the appellants were recorded under Section 313 of Code wherein they denied the prosecution allegations and stated that they were innocent and had been falsely implicated. The appellant-Dinesh Kumar stated that he was married with the deceased-Guddi Devi eight years ago and neither any dowry was demanded nor any harassment was given to the deceased. He further stated that the deceased was happily residing with him, a girl was born to deceased who had died 15-20 days prior to occurrence and due to which, she was shocked. He further stated that the deceased was suffering abdominal pain and her treatment was going on but she could not recover from that pain. He further stated that due to shock of death of her daughter as well as of her ailment, the deceased had committed suicide on 25.04.1998 at about 2:00 p.m. and information whereof had been given by his father, appellant-Durg Vijay, at 6:30 a.m. on 26.04.1998 at Police Station-Tadiyawan. He further stated that on the instigation of some person, who were inimical to the appellant, the informant (P.W.-1), lodged a false report against the appellants whereas his father-Durg Vijay and his mother-Smt. Chameli were residing separately from him.

8. The appellants in their defence examined Bharat (D.W.-1) to rebut the prosecution story.

9. After conclusion of trial, learned trial Court convicted and sentenced the appellants as above by the impugned judgment. Aggrieved by the above said judgment, the appellants have preferred this appeal.

10. Heard Sri Ashok Kumar Verma, learned Advocate holding brief of Sri Subodh K. Shukla, learned counsel for the appellants and Sri G. D. Bhatt, learned A.G.A. for the State.

11. Learned counsel for the appellants has submitted that the appellants are innocent and have been falsely implicated in this case. Learned counsel further submitted that the allegations for demand of dowry and dowry death have been found false by the trial Court. Learned counsel further submitted that no complaint was made against the appellants, earlier to this occurrence and deceased had committed suicide in frustration as she was ailing abdominal disease. Learned counsel further submitted that the death information of the deceased was sent to the informant and his family members and informant was also present at the time of inquest proceeding ; he did not make any complaint to the Officer (P.W.-6). Learned counsel further submitted that after the cremation of the deceased in order to harass and extort money, informant, brother of the deceased, sent a written report by delay of three days which was lodged after seven days of the occurrence. Learned counsel further submitted that prosecution has failed to produce any explanation for causing such delay in lodging the F.I.R. Learned counsel further submitted that the appellants-Smt. Chameli and Durg Vijay are parents-in-law of the deceased, who are more than sixty years and they were living separately from the appellant-Dinesh Kumar, husband of the deceased, but the trial Court did not consider and discuss the evidence available on record and without application of proper mind, passed the impugned judgment and order, which is liable to be set aside.

12. Learned counsel for the appellants has placed reliance on the judgment delivered by Hon'ble the Supreme Court in the case of Kishori Lal vs. State of Madhya Pradesh, 2007 (58) ACC 1069, K. S. Radhakrishnan and Vikramjit Sen, AIR 2014 SC 1782 and Heera Lal and another vs. State of Rajasthan, 2017 (101) ACC 265.

13. Per contra, learned A.G.A. vehemently opposed and has submitted that the deceased had died by hanging inside the house of the appellants within seven years of her marriage and the appellants have failed to produce any proper explanation as to why the deceased had committed suicide as alleged by the appellants. Learned A.G.A. further submitted that there is no delay in lodging the F.I.R. because the local police failed to lodge the F.I.R. on the request of P.W.-1 as the appellant-Durg Vijay was Chaukidar of his village. Learned A.G.A. submitted that merely on the ground that informant was present at the time of inquest proceeding and did not make any complaint at that time, it cannot be said that the death of the deceased was natural. Learned A.G.A. further submitted that there is no illegality in the impugned judgment and order and the appeal is liable to be dismissed.

14. I have considered the rival submissions made by learned counsel for the appellants and perused the record.

15. In Kishori Lal vs. State of Madhya Prasad, 2007 (58) ACC 1069, Hon'ble Supreme Court held that where the deceased had committed suicide on 31.08.1982 and the prosecution had failed to adduce any evidence that the appellant, who was husband of the deceased, had induced or abetted her wife to commit suicide and also held that the mere fact that the husband treated the deceased-wife with cruelty is not enough to commit her suicide.

16. In Mangat Ram vs. State of Haryana, AIR 2014 SC 1782, where after few months of the marriage of the deceased, on 15.09.1993, according to prosecution, the appellant sprinkled kerosene oil on the body of the deceased and set her on fire, having failed to meet the dowry demand. On hearing the hue and cry, neighbours assembled and took her to Civil Hospital where she died on 17.09.1993, Hon'ble Supreme Court found that failure of the husband to take the deceased to his place of posting is not amount to wilful conduct which is of such a nature as is likely to drive the woman to commit suicide. Hon'ble the Supreme Court also held as under :

"23. Explanation to Section 498-A gives the meaning of ''cruelty', which consists of two clauses. To attract Section 498-A, the prosecution has to establish the wilful conduct on the part of the accused and that conduct is of such a nature as is likely to drive the wife to commit suicide. We fail to see how the failure to take one's wife to his place of posting, would amount to a wilful conduct of such a nature which is likely to drive a woman to commit suicide. We fail to see how a married woman left at the parental home by the husband would by itself amount to a wilful conduct to fall within the expression of ''cruelty', especially when the husband is having such a job for which he has to be away at the place of his posting. We also fail to see how a wife left in a village life "in the company of rustic persons", borrowing language used by the trial Court, would amount to wilful conduct of such a nature to fall within the expression of ''cruelty'. In our view, both the trial Court as well as the High Court have completely misunderstood the scope of Section 498-A IPC read with its explanation and we are clearly of the view that no offence under Section 498-A has been made out against the accused appellant."

17. In Heera Lal and another vs. State of Rajasthan, 2017 (101) ACC 265, where the prosecution had failed to prove the charge of Section 498-A I.P.C. and the appellants were acquitted for the said charge, Hon'ble Supreme Court has held that the appellant could not be convicted for the offence under Section 306 I.P.C.

18. Coming to the facts of the present case, the deceased had died on 25.04.1998 within seven years of her marriage for demand of dowry and cruelty, inside the house of the appellants and the appellants have been convicted for offence under Sections 498-A and 306 I.P.C. The offence of present case was committed after insertion of Section 113-A and 113-B of Indian Evidence Act, 1872 (in short Evidence Act). The facts and circumstances of the case in Kishori Lal (supra), Mangat Ram (supra) and Heera Lal (supra) relied by the appellant are different to the facts of this case, hence, no benefit can be given to the appellants.

19. The deceased had died within seven years of her marriage, inside the house of the appellants where her death was unnatural and the appellants have been convicted under Sections-498-A I.P.C. and 306 I.P.C., the provisions of 498-A, 306 I.P.C. and 113-A of the Indian Evidence Act are relevant, which are as under :

"Section-498-A I.P.C.. 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 purposes 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 is on account of failure by her or any person related to her to meet such demand."

"Section-306 I.P.C. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

"Section-113A Evidence Act. Presumption as to abetment of suicide by a married woman.- when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband and subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."

20. It is also relevant to note that in most of the cases the death of married woman, for want of dowry, 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. So the prosecution cannot be blamed to produce such evidence which is not in the possession and knowledge of prosecution witnesses.

21. 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)

22. Coming to the facts of this case, Nanhake (P.W.-1), brother of the deceased, has stated that his sister-Guddi Devi was married to appellant-Dinesh Kumar on 06.05.1993 ; the appellant-Durg Vijay and the appellant-Chameli were parents-in-law (saas and sasur) of the deceased. He further stated that at the time of marriage, he had given articles of worth Rs.25,000/- and some money in the dowry but the appellant-Dinesh Kumar had demanded she-buffalo and transistor as additional dowry to which he (P.W.-1) assured that he would manage the said dowry in future. He further stated that due to poverty, he could not manage the said dowry, due to which, the appellants used to beat and torture his sister. He further stated that whenever his sister (deceased) came his house, she used to complain and had said that if she-buffalo and transistor were not given to them, they (appellants) would kill her. He further stated that on 29.04.1998, there was Mundon Ceremony of his son and in order to get back (Bidai) his sister, he had gone to the house of the appellants and reached there at 7:00 a.m. on 26.04.1998. He further stated as he entered inside the house of the appellants, he saw that the dead body was lying in room and police were also present there. Stating that after seeing the dead body of his sister, he began to cry bitterly and asked the said police personnel, present there, to lodge a report, who assured him not to worry as legal action was being taken. He further stated that "darogaji" got his signature made on paper forcibly, hurled abuses and said that how he (P.W.-1) dare to implicate his chaukidar ("police walo se kaha ki meri report chal kar likh lijiye to unhone kaha ki wahi sab kaam kar raha hoon tum pareshan na ho | Kagaj number 10 a/4 gawah ne dekhkar kaha ki is par mere daskhkat darog ji ne jabardasti banbaye the aur gali dekar kaha ki mere chaukidar ko phasaonge").

23. Stating that the appellant-Durg Vijay was Chaukidar of his village, he further stated that the dead body was sealed and it was sent for post-mortem. Stating further that he had gone to the hospital, he further stated that after post-mortem, the dead body of the deceased was handed over to the appellant-Dinesh Kumar. Stating that again he had gone to lodge the first information report at Police Station-Tandiyawan but "daroga ji" chased him therefore he fled away. Stating further that on 27.04.1998, he had made complaint to District Magistrate, Hardoi, Superintendent of Police, Hardoi and Hon'ble Chief Minister, U. P., he further stated that he had also sent a copy (Ext.-Ka-4) of the said complaint by Fax to Hon'ble Chief Minister, U.P. whereupon a direction was made to lodge the F.I.R.

24. Shanti Devi (P.W.-2), mother of the deceased has also stated that her daughter (Guddi Devi) was married to the appellant-Dinesh Kumar, four years prior to her death and the appellants-Durg Vijay and Chameli were parents-in-law (Sas and Sasur). Stating that the deceased was not literate, she further stated that at the time of her marriage, she had given sufficient dowry according to her capacity but in Kalewa (afternoon high tea in marriage ceremony) there was demand of she-buffalo and transistor to which she had assured to be given in future. She further stated that when the deceased returned back to her matrimonial house, she was very upset and upon query, she told that her in-laws were demanding she-buffalo and transistor as a dowry. She further stated that within two years of marriage, the deceased had gone so many times to her matrimonial house but she continuously complained regarding the torture and harassment, caused by the appellants, due to demand of dowry. She further stated that for 1-1/2 years, she did not send her daughter to her matrimonial home and just before her death, the appellant-Dinesh Kumar took away her to his house. She further stated that a girl also took birth to deceased, who died within one month. She further stated that her son (P.W.-1) had gone to invite the deceased to attend the Mundon Ceremony of his son but saw that the deceased had died. She also stated that after getting information, she had also gone to the matrimonial home of the deceased and saw her dead body.

25. Prithvi Pal (P.W.-3), co-villager of P.W.-1, stating that inquest proceeding was conducted in his presence and in presence of P.W.-1, has further stated that deceased Guddi Devi used to complain the demand of she-buffalo and transistor by appellant and harassment and torture caused to her by appellant.

26. So far as the submission made by learned counsel for the appellants that after the death of deceased, the information was sent to the family members of the informant and in presence of the informant, the inquest proceeding of the deceased was conducted but he did not make any complaint either to the police who prepared the inquest report or lodged the F.I.R. at that day and in order to extort money, he filed false report after three days of the occurrence which was lodged after seven days and no explanation for such huge delay was given, is concerned, admittedly, the deceased had died inside the house of the appellants. In inquest report (Ext.-Ka-6) it has been specifically mentioned that the information of the death of the deceased was given to the concerned police station on 26.04.1998 at 6:30 a.m. by the appellant-Durg Vijay and her death was caused by hanging. It is further mentioned in the said inquest report that inquest proceeding was concluded at about 15:30 p.m. on 26.04.1998 and thereafter dead body of the deceased was sent for post-mortem. According to Dr. B. B. Tripathi (P.W.-4) the post-mortem of the deceased was conducted by him at about 5:00 p.m. on 26.04.1998. It means that after post-mortem examination the dead body would have been handed over to the appellants and thereafter her cremation was taken place either in the night of 26.04.1998 or on 27.04.1998. The appellants, in their statements recorded under Section 313 of the Code, have not stated as to when dead body was received by them after the post-mortem examination or deceased was cremated by them. From perusal of the F.I.R. (Ext.-Ka-1), it transpires that it was prepared on 27.04.1998 and was sent to District Magistrate, Hardoi, Superintendent of Police, Hardoi and also to Chief Minister, U.P. wherein it was specifically mentioned that informant was given assurance by the concerned police at the time of inquest proceeding i.e. after occurrence the legal action would be taken against the appellants and when no legal action was taken, he (P.W.-1) went to concerned police station and requested to lodge the F.I.R. but he was expelled from there as the appellant-Durg Vijay was the Chaukidar of his village and was having good relations with concerned police.

27. It is settled principle of law that only on the ground that F.I.R. was lodged by delay, the prosecution case cannot be thrown out because no time limit has been prescribed for lodging the F.I.R. either in Evidence Act or in the Code. The delay, caused in lodging the F.I.R., depends upon facts and circumstances of the each case and if such delay is natural and reasonable, it cannot be treated fatal to the prosecution story.

28. Hon'ble Supreme Court, on delay caused in lodging the F.I.R., in Tara Singh and others vs. State of Punjab, AIR 1991 SC 63 has held as under :-

"The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the" report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case."

29. Coming to the facts of this case again, Nanhake (P.W.-1) has specifically stated that he had requested the concerned police at the time of inquest proceeding to take action against the appellants and after post-mortem examination, also had gone to concerned police station to lodge the F.I.R. but he was expelled from the concerned police station and no F.I.R. was lodged. Thereafter he had sent the written information (Ext.-Ka-1) dated 27.04.1998 to Hon'ble Chief Minsiter, U.P.. This witness was cross-examined by the defence counsel on the point of delay but nothing had come out in his cross-examination to create any doubt in his statement whereby it can be shown that such delay was caused deliberately to falsely implicate the appellants in this case. In my view there is no delay in lodging the F.I.R. and if any delay is caused, the same is well explained and is not fatal to the prosecution case. Hence, there is no force in the submission of learned counsel for the appellants in this regard.

30. So far as the submission of learned counsel for the appellants that no complaint of demand of dowry or any cruelty was made by informant earlier to the occurrence, hence, the prosecution story, that the deceased was being harassed and tortured for demand of dowry since four years is not trustworthy, is concerned, admittedly, the appellants as well as informant belong to rural areas. They are not literate and aware to their legal right. The deceased was also illiterate. It is often seen that in rural areas generally the bride groom's family is well known to the family of the bride earlier to their marriage settlement, the bride and her parents do not agitate some problem and issues occurred between them with family of bride groom after her marriage 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 inlaws of the deceased does not mean that neither dowry was demanded nor harassment or cruelty was committed to the deceased soon before her death.

31. 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 23 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)

32. Coming to the facts of this case again, P.W.-1 in cross-examination, stating that he had not lodged any report regarding torture or harassment with the deceased prior to her death, has stated that he had made a complaint at police station Pishawa regarding torture and demand of dowry. P.W.-2 has also stated that she had not made any complaint to any one regarding demand of dowry or torture committed by appellants. Both these witnesses had stated that they did not send the deceased to her matrimonial home for one and half year, due to demand of dowry and torture committed by the appellants. Thus, although, P.W.-1 and P.W.-2 failed to lodge report at any police station but it can not be said that they failed to protest the torture and harassment committed by the appellants. Thus in view of law laid down by Supreme Court in Preet Pal Singh (supra), the submission of learned counsel for the appellants has no force.

33. Appellants have been convicted for offence under Section 498-A and 306 I.P.C. For offence under Section 498-A I.P.C. not only physical but mental cruelty is also sufficient to constitute the offence of cruelty as required for this section. For offence under Section 306 I.P.C., the person, who abets the commission of suicide, is liable under this section. Offence of abetment has been defined under Section 107 and 108 I.P.C. Abetment includes, according to Section 107 I.P.C., instigating any person to do that thing. Instigation, for the offence of abetment, is not required pre-planned or intentional. Supreme Court, while convicting only the husband, acquitting other accused, discussing the legislative intent behind the Criminal Law Amendment Act, 1983 and Dowry Prohibition Amendment Act, 1986 and the provisions of Sections 107, 108, 498-A and 304-B I.P.C. and Section 113-A and 113-B of Evidence Act in State of Punjab vs. Iqbal Singh and others, 1991 SCC (Crl.) 513, has held as under :

"5. The charge against the accused was under Section 306 I.P.C. That section must be read in the backdrop of the above facts. Under that section if any person commits suicide the person who abets commission of suicide shall be liable to be punished with imprisonment of either description for a term which may extend to ten years and fine. The question is whether on the facts proved it can be said that either Iqbal Singh or his sister were guilty of abetment. Chapter V of the Penal Code is entitled 'Of Abetment' and comprises Sections 107 to 120 of which we may notice Sections 107 and 108 only. 'Abetment' as defined by Section 107 comprises (i) instigation to do that thing which is an offence (ii) engaging in any conspiracy for the doing of that thing and (iii) intentionally aiding by any act or illegal omission the doing of that thing. Section 108 defines an abettor as a person who abets an offence or who abets either the commission of an offence or the commission of an act which would be an offence. The word 'instigate' in the literal sense means to incite, set or urge on, stir up, goad, foment, stimulate, provoke, etc. Since there is no question of parties being engaged in any sort of conspiracy we have to consider whether there was any intentional aiding for committing suicide. The dictionary meaning of the word aid is to give assistance, help, etc.

xxxxxx xxxxxx xxxxx

8. The legislative intent is clear to curb the menace of dowry deaths, etc., with a firm hand. We must keep in mind this legislative intent. It must be remembered that since crimes are generally committed in the privacy of residential homes and in secrecy, independent and direct evidence is not easy to get. That is why the legislature has by introducing Sections-113-A and 113-B in the Evidence Act tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within seven years of marriage. This period of seven years is considered to be the turbulent one after which the legislature assumes that the couple would have settled down in life. If a married woman is subjected to cruelty or harassment by her husband or his family members Section 498-A I.P.C. would be attracted. If such cruelty or harassment was inflicted by the husband or his relative for, or in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under Section 304-B I.P.C. When the question at issue is whether a person is guilty of dowry death of a woman and the evidence discloses that immediately before her death she was subjected by such person to cruelty and/or harassment for, or in connection with, any demand for dowry, Section 113-B, Evidence Act provides that the court shall presume that such person had caused the dowry death. Of course if there is proof of the person having intentionally caused her death that would attract Section 302 I.P.C. Then we have a situation where the husband or his relative by his wilful conduct creates a situation which he knows will drive the woman to commit suicide and she actually does so, the case would squarely fall within the ambit of Section 306 I.P.C. In such a case the conduct of the person would tantamount to inciting or provoking or virtually pushing the woman into a desperate situation of no return which would compel her to put an end to her miseries by committing suicide."

(Emphasis supplied)

34. It is also pertinent to point out at this juncture that for offence of dowry death as provided under Section 304-B I.P.C., prosecution has to prove unnatural death of a woman within seven years of her marriage. In addition to that, she was subjected to cruelty by her husband or his relatives in relation to demand of dowry soon before her death. If anyone of the above ingredients is not proved by prosecution, accused can not be convicted for offence of dowry death. The offence of Section 306 I.P.C. is lesser and different from the offence of dowry death. For this offence only abetment which leads to commitment of suicide of a person is required to be proved and if such suicide is done by women within seven years of her marriage, due to cruelty caused by her husband or any relation of her husband, the Court may presume the offence of abetment of suicide, in view of statutory presumption as provided under Section 113-A of Evidence Act. Further accused charged for offence of Section 302 or 304 I.P.C. may be convicted for offence under Section 306 I.P.C. without framing separate charge for offence under Section 306 I.P.C Three judges Bench of Supreme Court, relying on Constitutional Bench Judgment in Willie Slaaney vs. State of M.P. AIR 1956 SC 116 and three Judges Bench Judgement in Gurubachan Singh vs. State of Punjab, AIR 1957 SC 623, in Dalbir Singh vs. State of U.P., 2004 SCC (Crl.) 1592, where question arose, whether the appellant convicted for offence under Section 302 and 498 I.P.C. but acquitted for offence under Section 304-B I.P.C. by trial Court, can be convicted for offence under Section 306 I.P.C., convicting the appellant for offence under Section 306 I.P.C., has held as under :

"There are a catena of decisions of this Court on the same lines and it is not necessary to burden this judgment by making reference to each one of them. Therefore, in view of Section 464 CrPC, it is possible for the appellate or revisional court to convict an accused for an offence for which no charge was framed unless the court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangaraboina Sreenu [(1997) 5 SCC 348 : 1997 SCC (Cri) 690] was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC."

35. Coming again to the facts and circumstances of the case, appellants were charged for offence under Section 498-A, 304-B I.P.C. and under Section 3/4 of Dowry Prohibition Act, but the trial Court convicted the appellants only for offence under Sections 498-A and 306 I.P.C. because the prosecution had failed to prove the demand of dowry and cruelty soon before the death of deceased. According to Section 113-A of the Evidence Act, if a woman commits suicide within a period of seven years from the date of her marriage and it is alleged by the prosecution that she was subjected to cruelty by her husband or relative of her husband, the Court may presume, having regard to all the other circumstances of this case, that such suicide had been abetted by her husband or such relative of her husband. Nanhake (P.W.-1) has specifically stated that his sister-Guddi Devi's marriage was solemnized with appellant-Dinesh Kumar on 16.05.1993. Shanti Devi (P.W.-2), the mother of the deceased has also stated that the marriage of the deceased was solemnized four years ago from her death. Although, the appellant-Dinesh Kumar in his statement under Section 313 of the Code, has stated that the deceased was married with him eight years ago from her death but he had not placed any reliable evidence in this regard and Bharat (D.W.-1), whose statement was recorded in 2003, stated that the deceased was married thirteen years ago, had admitted that he did not know the date or day of marriage of the deceased with the appellant-Dinesh Kumar. In addition to above, the appellants had not produced the "Pandit and Nai" who had played key role in solemnizing the marriage of the deceased with the appellant-Dinesh Kumar. Thus, it is clear that the death of the deceased was caused within seven years of her marriage. In addition to above, both the prosecution witness, Nanhke (P.W.-1) and Smt. Shanti Devi (P.W.-2) have categorically stated that the deceased was being tortured by the appellants for demand of dowry. Thus, in view of the law laid down by Supreme Court in Iqbal Singh (supra) and Dalbir Singh (supra) as well as the provisions as provided under Section 113-A of Evidence Act, the trial Court has not committed any illegality or infirmity for drawing the said presumption for offence under Section 306 I.P.C. and the submission of learned counsel for the appellants, in this regard, has no force.

36. It is also pertinent to note at this juncture that as to whether the appellants have succeeded to lead any evidence in their defence regarding their innocence.

37. The appellant-Dinesh Kumar, in his statement recorded under Section 313 of the Code, has stated that the deceased had committed suicide on 25.04.1998 at about 2:00 p.m. and the information whereof was given on 26.04.1998. It is further stated by him at that time, the appellants were threshing wheat crops and no one was present in his house. The appellants had not stated that how and when they got information regarding the suicidal death of the deceased and why the information of death of deceased was given to concerned police station after eighteen hours of her death whereas Dr. B. B. Tripathi (P.W.-4) who conducted the post-mortem of deceased, had specifically stated that deceased would have died in the intervening night of 25-26/4/1998. This witness was not cross-examined by the defence on the point of time of death of deceased as stated by him (P.W.-4). Thus, the appellant-Dinesh Kumar's statement recorded under Section 313 of the Code, that the deceased had died on 25.04.1998 at about 2:00 p.m. and he was threshing wheat crops becomes doubtful in the light of statement of Dr. B. B. Tripathi (P.W.-4). In view of above, it is clear that the death of deceased was happened in the presence of the appellants. So far as defence of the appellants that the deceased had committed suicide in frustration as she was suffering from abdominal disease, is concerned, the appellants had not produced any documentary evidence that if the deceased was suffering from abdominal disease what efforts was made by them for her treatment whereas Nanhke (P.W.-1) and Smt. Shanti Devi (P.W.-2) had categorically denied that the deceased was suffering from abdominal disease. Thus, the appellants have failed to lead any satisfactory evidence to rebut the statutory presumption of Section 113-A of Evidence Act and in the light of law laid down by Hon'ble Supreme Court in Trimukh Maroti Kirkan (supra) their failure to produce any evidence in their defence to rebut the aforesaid statutory presumption of Section 113-A of Evidence Act, further strengthen of prosecution evidence and the submission of learned counsel for the appellants has got no force.

38. Now the question arises as to whether all the appellants are liable to be convicted in this case.

39. Admittedly, the appellant-Dinesh Kumar is husband of the deceased whereas the appellants-Durg Vijay and Chameli are father-in-law and mother-in-law of the deceased. In statement of 313 of the Code, recorded in 2003, the appellant-Dinesh Kumar had disclosed his age as 30 years, the appellant-Durg Vijay as 70 years and the appellant-Chameli as 60 years. It means that at the time of occurrence i.e. in 1998, the appellant-Dinesh Kumar was 25 years old, the appellant-Durg Vijay was 65 years whereas the appellant-Chameli was 55 years old. It cannot be presumed that the appellant-Durg Vijay and the appellant-Chameli who were old aged person at the time of occurrence, were in position to govern either the appellant-Dinesh Kumar or the deceased or to control or interfere in their family relations. The appellants-Durg Vijay and Chameli had categorically stated that they were leaving separately from their son. Nanhke (P.W.-1) in examination-in-chief had specifically stated that his brother-in-law-Dinesh Kumar had demanded she-buffalo and transistor ("ukt dahej ke alava mere bahnoi dinesh ne ek bhais aur ek transistor ki maang ki thi."). The prosecution has not made any specific allegation and made only general allegation, for either demand of dowry or harassment to deceased, against the appellant-Durg Vijay and Chameli.

40. 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 vs. State of Punjab, (2000) 5 SCC 207, 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 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."

41. 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)

42. In view of above, if the said occurrence was taken place inside the house of appellant-Dinesh Kumar where his presence was most probable, looking into the whole facts and circumstances of this case, the prosecution evidence is not reliable and trustworthy so far it relates to the appellants-Durg Vijay and Chameli and consequently the prosecution has failed to prove its case beyond reasonable doubt against the appellants-Durg Vijay and Chameli and they are liable to be acquitted, whereas it has successfully proved its case beyond reasonable doubt against the appellant-Dinesh Kumar (husband of the deceased). The impugned judgment so far as it concerned for appellant-Dinesh Kumar, is well discussed, well reasoned, it requires no interference and liable to be affirmed.

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

44. The appellant-Dinesh Kumar has been convicted for the offence under Sections-498-A and 306 I.P.C. He has been sentenced only for seven years rigorous imprisonment with fine of Rs.2000/-for offence under Section 306 I.P.C. and for one year rigorous imprisonment with fine of Rs.1000/- for offence under Section 498-A I.P.C. It has further been directed that all sentences shall run concurrently. Thus, the maximum sentence, awarded against the appellants, is only for seven years.

45. It is settled principle of sentencing and penology that undue sympathy in awarding the sentence with accused is not required. The object of sentencing in criminal law should be to protect the society and also to deter the criminals by awarding appropriate sentence. In this regard Hon'ble Supreme Court has observed in State of Madhya Pradesh vs. Saleem @ Chamaru, AIR 2005 SC 3996 which is as under:-

"The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal.''

46. In this case, a helpless young woman had died inside the house of the appellant. 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-Dinesh Kumar, 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-Dinesh Kumar, is affirmed.

47. The appellant-Dinesh Kumar is on bail and his bail bonds is cancelled. He is directed to surrender before the concerned Court forthwith to serve out the aforesaid sentence.

48. 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 appellants-Durg Vijay and Chameli, is set aside and they are acquitted from the charges levelled against them. They are on bail. Their bail bonds are cancelled.

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

50. Keeping in view the provision of Section 437-A of the Code, appellants-Durg Vijay and Chameli 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, they, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

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

Order Date :- 05.01.2021

Mahesh