Manish Kumar Srivastava vs State Of U.P.
2021 Latest Caselaw 3161 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 11.1.2021
 
                                                                                                 Delivered on 5.3.2021
 
1.Case :- CRIMINAL APPEAL No. - 7335 of 2019
 

 
Appellant :- Manish Kumar Srivastava
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Damodar Singh,Devendra Vikram Singh,Mahipal Singh
 
Counsel for Respondent :- G.A.
 
       
 
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2 Case :- CRIMINAL APPEAL No. - 7336 of 2019
 

 
Appellant :- Santosh Kumar Srivastava
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Damodar Singh,Devendra Vikram Singh,Mahipal Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Siddharth,J.

Heard Sri Mahipal Singh, learned counsel for the appellants and learned A.G.A. for State.

The above noted criminals have been preferred against the judgement and order of conviction dated 1.11.2019 passed by the Additional District & Sessions Judge/Special Judge (E.C. Act),Gorakhpur in Sessions Trial No. 672 of 2014(State Vs. Manish Kumar Srivastava and another) convicting the appellants for offence under section 304-B I.P.C. and sentencing them to seven years rigorous imprisonment; for offence under section 498-A I.P.C. convicting and sentencing them to two years rigorous imprisonment and fine of Rs. 3,000/-, in default of payment of fine to undergo three months additional rigorous imprisonment and convicting them for offence under section 4 of Dowry Prohibition Act and sentencing them to one year's rigorous imprisonment and fine of Rs. 2000/-, in default of payment of fine to undergo two months additional rigorous imprisonment.

The prosecution case is that informant, Keshav Kumar Srivastava, lodged an First Information Report alleging that he got his daughter, Neelam Srivastava, married to appellant, Manish Kumar Srivastava, on 6.6.2014;that on the next day her ''bidai' took place; that he spent Rs.8 lacs in the marriage; that on 9.6.2014 at 2 .00 hours his daughter informed him on phone that her husband, father-in-law, mother-in-law, sister-in-law (Jithani) and elder brother-in-law (Jeth) are behaving very badly and demanding Rs. Two lakhs in dowry; that they have not given her food to eat and they are harassing her in different ways; that she has tried to convince them that her father is unable to pay any amount further; that the informant consoled his daughter and stated that I am coming to her matrimonial home and then she informed him that by the time you will reach here, she may not be alive; that then he contacted his son-in-law on phone who talked very rudely and made demand of Rs. 2 lacs; that the informant alongwith his younger brother went to Gorakhpur on motorcycle and found only the mother-in-law of his daughter in the house, who did not informed him anything about the whereabouts of his daughter; that he inquired from the people in the neighbourhood, who informed that accused persons have killed his daughter and have taken her to the hospital just for formality and that the informant has apprehension that his daughter has been given poison and her jewelry worth of Rs. 4 lacs have been taken.

The aforesaid First Information Report was lodged on 10.6.2014 against the appellants,Manish Kumar Srivastava(husband), Govind Saran Srivastava (father-in-law), mother-in-law, elder brother-in-law (Jeth), Santosh Kumar Srivastava and sister-in-law (Jethani) at P.S. Khorabar, District Gorakhpur as case crime no. 314 of 2014 under sections 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act.

The investigating officer prepared site plan,recorded the statements of the witnesses and after completing other formalities submitted charge sheet against the appellants, Manish Kumar Srivastava and Santosh Kumar Srivastava, under section 498-A, 304-B I.P.C. and ¾ Dowry Prohibition Act. The trial court framed charges under sections 498-A,304-B I.P.C. and section ¾ Dowry Prohibition Act and alternative charge under section 302/34 I.P.C. The prosecution produced eight witnesses and also filed documentary evidences.

P.W.1, Keshav Kumar Srivastava (father of the deceased), P.W.2, Ashok Kumar Srivastava (uncle of the deceased) and P.W.3, Smt. Mithlesh Srivastava ( mother of the deceased) proved the version of the First Information Report before the trial court.

The trial court found that the alternative charge under section 302/34 I.P.C. is not made out against the appellants but the offence under section 304-B I.P.C. is made out because marriage of the deceased with appellant, Manish Kumar Srivastava and her unnatural death has taken place within about four days of her marriage, which is within seven years as defined Under section 304-B I.P.C.

The formal witnesses P.W.4, Tej Narayan Yadav (constable Moharir), P.W.5, Ajay Kumar, (investigating officer), P.W.6, S.I.Pramod Kumar (witness of the inquest) P.W.7, Dr. Ajay Kumar and P.W.8 Ram Lal Chaurasiya (constable) have proved the formal part of prosecution case.

D.W.-1, Brahma Nand Tiwari, neighbour of the appellants stated before the court that he went in the ''Barat' of appellant, Manish Kumar Srivastava,on 6.6.2014 and came back with Barat on 8.6.2014.He was also present in Tilak ceremony and there was no demand of dowry made. At about 4.30 hours on 9.6.2014 the deceased started vomiting and she was taken to the hospital at Gorakhpur where she was declared dead. He further stated in his cross-examination that at the time of death of Neelam Srivastava her elder brother-in-law (Jeth), and sister-in-law (Jethani) were not presentThey had gone to see the brother-in-law of Santosh Kumar Srivastava,who met with an accident when the ''Barat' was returning on 7.6.2014 and was in hospital in Siddharath Nagar. Her father-in-law,mother-in-law and her husband were present. He was not present in the hospital when Neelam Srivastava died. He got the information on 9.6.2014 that Neelam Srivastava had died. He denied his statement given to the investigating officer that he came to know that the condition of Neelam suddenly deteriorated and her husband and elder brother-in-law took her to the hospital where she died. The trial court has found that D.W.1, Brahama Nand Tiwari, did not had much information about the family members of matrimonial home of the deceased and was disbelieved by the court below. The trial court has found that offences under sections 498-A,304-B I.P.C. and section 4 of Dowry Prohibition Act proved against the appellants after consideration of material on record,case laws and arguments of the learned counsel for the parties.

Learned counsel for the appellants has submitted that initially five persons were implicated in the First Information Report on the basis of general allegations, namely, the two appellants, their father, Govind Saran Srivastava, mother-in-law, and elder sister-in-law (Jethani) of the deceased. The charge sheet was submitted only against the appellants ,who are husband and elder brother-in-law (Jeth) of the deceased. The other three accused persons were exonerated by the investigating officer on the ground that when the ''Barat' of the deceased was returning on 7.6.2014 the brother-in-law of the appellant, Santosh Kumar Srivastava, got injured in a road accident. They had gone to the hospital with him. The brother-in-law (Sala) of appellant, Santosh Kumar Srivastava, was injured and he also went alongwith him for his proper treatment but charge sheet was submitted against him while the three other co-accused persons were exonerated. There was no specific role assigned to him like the exonerated accused persons.

P.W.2, Ashok Kumar Srivastava (uncle of the deceased) and P.W.3, Smt. Mithlesh Srivastava ( mother of the deceased) have stated that basis of their statements is the information received from P.W.1, Keshav Kumar Srivastava (father of the deceased/informant).The incident had taken place on 10.6.2014 at unknown time and First Information Report was lodged on the same day at 6.30 a.m. P.W.1 stated in his statement that after receiving the phone call from his daughter at 2 P.M. on 9.6.2014, he left for Gorakhpur on motorcycle along with his brother P.W.2 from Sant Kabir Nagar and reached there at about 4-5 P.M. on the same day. The distance of 70 Km. cannot be covered by motorcycle within 2-3 hours. P.W.1 admitted that there was no dispute regarding dowry raised at the time of ''Bidai' of his daughter. Suggestion was made to P.W.1 in his cross examination that the marriage of the deceased was solemnized against her ''will' and therefore she committed suicide when she was alone. P.W.5 , investigating officer of the incident admitted that except the appellant, Mansih Kumar Srivastava, all the family members went to see brother-in-law of appellant, Santosh Kumar Srivastava, who had suffered injuries in an accident on 7.6.2014 at Badhani Bazar, Siddharthnagar. P.W.1 has alleged that he received phone call from his daughter at 2.00 hours on 9.6.2014 stating he has married her in a very wrong place and demand of dowry is being made from her and when he stated that he is coming ,she said that she may not be alive by time he will reach. The investigating officer has not collected any call details of the aforesaid mobile conversation. There was no evidence to prove the demand of dowry except the mobile conversation between the deceased and P.W.1.The call made by informant to appellant, Manish Kumar Srivastava, after receiving the call of his daughter was also relevant to prove the chain of events alleged but there is no evidence in this regard also.The allegation that appellant behaved rudely on phone and demanded dowry from P.W.1 was not proved by any call detail whatsoever. There is no other evidence to prove that the death of the deceased was the result of cruelty meted out to her on account of demand of dowry soon before her death.

Learned counsel for the appellants has further submitted that it is a clear that marriage of the deceased with appellant, Mansih Kumar Srivastava, was solemnized on 6.6.2014 and ''Bidai' was held on 7.6.2014, reception/ Bahubhoj was held at her matrimonial home on 8.6.2014. He has submitted that the parents of the deceased and other family members had participated in the reception on 8.6.2014 and they returned back in the night at 8-9.6.2014 as stated by the appellant, Manish Kumar Srivastava, in his statement under section 313 Cr.P.C. Therefore when the demand of dowry, harassment and cruelty was meted out to the deceased has not been explained since deceased committed suicide on 9.6.2014 itself. No mark of injury whatsoever was found on her dead body by the doctor. Her viscera was preserved wherein poison of aluminum phosphate was found .He has submitted that court below has wrongly convicted and sentenced the appellants for the offence, which was not proved by the prosecution.

Learned A.G.A. has vehemently opposed the argument raised on behalf of the appellants and has submitted that the death of the deceased on account of demand of dowry and consequent harassment of the deceased took place within four days of marriage. The ingredients of constituting alleged offence are fully made out from the material on record. The appellants have been rightly convicted in this case and have failed to prove how the deceased died. She died otherwise then under normal circumstances and the presumption under section 113-B of Evidence Act has not been discharged by the prosecution. The death of the deceased took place on account of harassment meted out to her soon before her death as per statement of P.W.1. For lapse on the part of the investigating officer that he has not collected the evidence, the prosecution case cannot be disbelieved. The second appellant, Santosh Kumar Srivastava, has been rightly implicated for the alleged offence since he is elder brother of the main accused, Manish Kumar Srivastava. The other co-accuseds were wrongly exonerated by the investigating officer but it cannot be a ground for challenging the conviction of the appellants before this court. He has submitted that the appeals are without any substance and deserve to be dismissed.

After considering the rival submissions this court finds that the Apex court in the case of V.K. Mishra Vs. State of Uttarakhand, (2015) 9 SCC,588 held that in order to attract application of Section 304-B I.P.C. the essential ingredients are as follows:-

1. The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.

2. Such a death should have occurred within seven years of her marriage.

3. She must have been subjected to cruelty or harassment by her husband or any relative of her husband.

4. Such cruelty or harassment should be for or in connection with demand of dowry.

5. Such cruelty or harassment is shown to have been meted out to the woman soon before her death.

On proof of the essential ingredients mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment.

Supreme Court in Sher Singh v. State of Haryana, (2015) 3 SCC 724, held that in Section 113-A of the Evidence Act, Parliament has, in the case of a wife's suicide, "presumed" the guilt of the husband and the members of his family. Significantly, in Section 113-B which pointedly refers to dowry deaths, Parliament has again employed the word "presume". However, in substantially similar circumstances, in the event of a wife's unnatural death, Parliament has in Section 304-B "deemed" the guilt of the husband and the members of his family.

The use of word "shown" instead of "proved" in Section 113-A and 113-B of Evidence Act, 1872, indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, "shown" will have to be read up to mean "proved" but only to the extent of preponderance of probability. Thereafter, the word "deemed" used in that section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The "deemed" culpability of the accused leaving no room for the accused to prove innocence was, accordingly, read down to a strong "presumption" of his culpability. The accused is required to rebut this presumption by proving his innocence. The same view was reiterated in V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588.

Keeping in view of the above principle this court finds that P.W.1 has made allegations of demand of dowry,consequent harassment and cruelty meted out to his daughter on the basis of solitary phone call made by her to him at 2 hours on 9.6.2014.There was no evidence on record to prove the making of aforesaid call by the deceased to the P.W.1 on the alleged date and time. The other witnesses of fact P.W.2 and P.W.3 have relied upon the information given by the P.W.1 regarding receiving of phone call of his daughter regarding demand of dowry and her harassment. In the First Information Report time of 2 hours has been mentioned when the phone call was made by the deceased to P.W.1 on 9.6.2014.No time has been mentioned in the First Information Report. In the charge framed by the court it has been mentioned that accused persons have caused the incident prior to 10.6.2014 at some time. The First Information Report has been registered at 6.30. A.M. on 10.6.2014. In his statement under section 313 Cr.P.C. the appellant Manish Kumar Srivastava, has stated that on 9.6.2014 at 4 P.M. the ladies of the house informed that deceased is vomiting and suffering from pain in her stomach. They took her to the hospital where no doctor was found on the duty. After some time doctor came and prescribed some medicines and when they came back with medicines she had died. He denied that no demand of dowry was ever made from the deceased.

From the statement of the appellant, Manish Kumar Srivastava, under section 313 Cr.P.C., it appears that deceased had died in the evening of 9.6.2014.She may have made phone call to her father on the same day at 2 P.M. It is admitted in the First Information Report that she had informed her father that by the time he will reach her, she may not be found alive. This shows that deceased had made phone call with intent of consuming aluminum phosphate and her condition deteriorated within two hours and she died at about 5 P.M. on 9.6.2014 itself.Informant has not stated the time when he reached the matrimonial home of the deceased from his house at Sant Kabir Nagar. There is no evidence collected by the Investigating officer regarding call made by the P.W.1 to the appellant, Manish Kumar Srivastava, after receiving phone call of his daughter at 2 P.M. on 9.6.2014. In case there was any demand of dowry in the agenda of the appellants they could have raised the dispute regarding the same during the morning and ''Bidai'of the deceased. Even D.W.1 has not stated anything in this regard and has stated that no such demand was made before him. P.W.2 and P.W.3 have not stated anything in this regard apart from information received from P.W.1. The deceased came to her matrimonial home on 7.6.2014 after her marriage on 6.6.2014.Her marriage reception took place on 8.6.2014 and during this period there must have been lot of people in the house,therefore, she could not find herself alone. It was only in the afternoon of 9.6.2014 that she consumed poison when she was alone. By that time marriage crowd must have left the house and being alone she got chance to commit suicide. Her information to her father that she may not be alive when he will reach her matrimonial home indicates that deceased had resolved to consume poison at 2 P.M. on 9.6.2014 before making phone call to her father.

The implication of the appellant, Santosh Kumar Srivastava, has been made without any specific evidence against him. His role was similar to his father,mother and wife in the First Information Report and while three accused persons named above were exonerated by the investigating officer, for no specific reason the appellant, Santosh Kumar Srivastava, was implicated when he had also accompanied them when his brother-in-law suffered accident on 7.6.2014.

The ingredients to attract under section 304-B I.P.C. are not made out against the appellants. Therefore presumption under section 113 -B of Evidence Act does not arises in this case. The Apex court has held in the case of Kansh Raj V. State of Punjab,(2000) 5 SCC,207 "soon before" is a relative term which is required to be considered under specific circumstances of each case and in this case the allegation has been made regarding cruelty or harassment meted out to the deceased within four days of her marriage but it has not been found to be proved. In cases related to dowry death, the circumstances showing the cruelty or harassment are not restricted to a particular instance, but normally refer to a course of conduct. Such conduct of cruelty or dowry harassment must be "soon before death". There should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her, which is clearly missing in the present case.

In the postmortem report no external/internal injury was found on the body of the deceased. The cause of her death was poisoning and aluminum phosphate was found in her viscera.Aluminum phosphate is an insecticide which cannot be consumed easily on account of its bad smell. In the absence of any injury found on the body of the deceased in the postmortem ,it cannot be said that deceased was forcefully administered aforesaid poison.The prosecution case was not reliable and does not stands proved.

Both the appeals noted above are allowed and judgment and order dated 1.11.2019 passed by the court below in S.T. No. 672 of 2014 is set aside. The appellants are acquitted. They are in jail and are being directed to be released and set at liberty forthwith.

Let the copy of the judgment alongwith lower court record be transmitted to the court below for compliance within three days.

Order Date :- 5.3.2021

Atul kr. sri.