Tara Chandra vs State Of U.P.
2021 Latest Caselaw 3193 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 11.01.2021
 
Delivered on 08.03.2021
 

 

 
Case :- CRIMINAL APPEAL No. - 6043 of 2019
 

 
Appellant :- Tara Chandra
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Vinod Kumar Kushwaha
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Siddharth,J.

Heard Sri Vinod Kumar Kushwaha, learned counsel for the appellant and Sri Satish Pandey, learned AGA for the State.

This Criminal Appeal is directed against the judgment and order dated 16.09.2019 passed by the Additional Sessions Judge, Court no.1, Allahabad in Sessions Trial No.685 of 2016 (State of U.P. Vs. Tara Chandra & another) under Section 306 I.P.C, convicting and sentencing the appellant under Section 306 I.P.C. to 7 years rigorous imprisonment and fine of Rs.10,000/-, in default of payment of fine to undergo one month's further rigorous imprisonment.

The prosecution case is that the informant, Nanku Lal married his daughter, Pushpa Devi, to the appellant on 13.04.2013. After their marriage, they were residing at Neem Sarai, Allahabad. On 31.05.2016 at about 8.00 p.m., Tara Chandra, murdered his daughter, Pushpa Devi. After killing her he informed on phone that his daughter has committed suicide by hanging herself. He reached Allahabad from Kaushambi and was informed that the appellant had taken the dead body of his daughter to his village, Sarsawa. When he reached there he found that the appellant and other persons were preparing for cremation of her dead body. It was further alleged that the appellant, his father, Punni Ram, his sister and brother-in-law used to harass his daughter for dowry and used to beat her often. They used to demand gold chain, land for building house and money in cash.

The aforesaid first information report was registered as Case Crime No.312 of 2016, under Sections 498-A, 304-B I.P.C and ¾ Dowry Prohibition Act.

The post mortem of the body of the deceased was conducted with prior preparation of inquest report. Sub-Inspector, Rohit Kmar, recovered the dupata used in commission of suicide. The Investigating Officer conducted the investigation and found that the sister and brother-in-law of the applicant had wrongly been implicated. He submitted the charge-sheet only against the appellant and his father, Punni Ram, under Sections 498-A, 304-B and ¾ Dowry Prohibition Act.

The Trial Court framed charges against the appellant and his father under Sections 498-A, 304-B I.P.C. and ¾ D.P. Act, and alternative charge under Section 302 I.P.C. The accused persons denied the charges and sought trial.

PW-1, Ram Deen, father of the deceased, stated in his examination-in-chief before the Court that he married his daughter, Pushpa Devi, to the appellant, Tara Chandra, on 13.04.2012. They used to reside at Neem Sarai, Allahabad. On 31.05.2016 at about 8 p.m. in the night he received telephonic call from his son-in-law that his daughter has hanged herself to death. On this information he went there and saw dead body of his daughter. He further stated that the appellant, his father and other members of the family never demanded any dowry nor she ever informed in this regard. His daughter had fallen from the wooden ladder while she was trying to go upstairs, 2-4 days prior to her death. The wooden ladder had slipped and she suffered various injuries on her body on account of fall. Probably because of pain she hanged herself to death. The witness was declared hostile.

PW-II, Shiv Kumar alias Chhotu, brother of the deceased, PW-III, Smt. Shyama Devi, mother of the deceased, PW-IV, Pooja Devi, elder sister of the deceased and PW-V, Raj Kumar, brother of the deceased repeated the contents of statement given by PW-1 and all of them were also declared hostile.

PW-VI, Dr. Munendra Kumar, who conducted post mortem of the body of the deceased stated that the following injuries were found on the body of the deceased.

(I) Ligature mark present all around upper part of neck except, gap 8.0 cm on left side of neck in width 2.0 cm. Ligature mark 6.0 cm below from right ear 4.0 cm below from chin 3.0 cm below from left ear, cut the ligature mark white and glitering present.

(ii) Contusion 10.0 x 4.0 cm right shoulder area lateral aspect.

(iii) Contusion 3.0 x 2.0 cm on right lateral side of chest wall.

(iv) Contusion 10.0 cm x 2.0 cm on left back of chest wall attached with right lower scapula.

(v) Contusion 12.0 x 2.0 cm on right back of chest wall 5.0 cm later from injury no. 4 .

(vi) Contusion 14.0 x 2.0 cm on left back of lumber area 12.0 cm below from left lower scapula.

(vii) Contusion 21.0 x 2.0 cm back of luber area 4.0 cm below from injury no. 6.

(viii) Multiple contusion 15.0 x 8.0 cm on right back of hip.

(ix) Multiple contusion 15.0 x 6.0 cm on left lateral back of hip.

(x) Contusion 12.0 x 3.0 cm on left of lower chest wall.

(xi) Contusion 11.0 x 6.0 cm on left mid thigh area lateral aspect.

In the internal examination he did not found any abnormality and testified that the death of the deceased was caused due to asphyxia as a result of anti mortem hanging.

The statement of the appellant was recorded under Section 313 Cr.P.C, wherein he stated that three days prior to her death his wife had fallen while going on the roof on account of breaking of danda. She had suffered injuries. Her treatment was being done at home. Her brother, etc., were in the house. He does not knows why after they left his house, she hanged herself to death. On getting information he came and reported the incident.

The Trail Court after considering the material on record reached the conclusion that the deceased committed suicide by way of hanging and therefore, offence under Sections 304-B I.P.C, 498-A and ¾ D.P. Act are not made out against the appellant. The alternative charge framed under Section 302 I.P.C was also not found proved.

The Trial Court found it to be a case under Section 306 I.P..C. Therefore, it convicted the appellant for offence under Section 306 I.P.C only and the co-accused, Punni Ram, was acquitted of all charges.

Learned counsel for the appellant, Sri V. K. Kushwaha, has submitted that the appellant is a constable in Excise Department and this is his first implication. The prosecution witnesses have not supported the prosecution case. Appellant and his wife are parents of two minor daughters. He is in jail since 03.06.2016. His mother had died and his old father is looking after the two daughters. As per the statement of the witnesses there is no case made out against the appellant for conviction under Section 306 I.P.C. His wife committed suicide by hanging herself. He never abetted her to commit suicide nor there was any material before the Trial Court in this regard. The finding of the Trial Court that if the deceased fell from the ladder she should either have suffered injuries on front side of body or back side of the same but she has suffered injuries on all sides of her body. The appellant has wrongly been convicted in this case.

Learned AGA has vehemently opposed the arguments advanced by the learned counsel for the appellant and has submitted that the deceased died within 7 years of her marriage and therefore, as per Section 113(B) of Indian Evidence Act there is presumption against the appellant to prove the cause of death. He has further submitted that the Trial Court has concluded that had it being case of accidental fall, injuries should not have been suffered by the deceased on all sides of her body. Only one side on which she had fallen would have shown existence of injuries and not all sides of her body. He has submitted that the Trial Court has rightly convicted the appellant for offence under Section 306 I.P.C since he was residing with the deceased at the time of her death and could have informed about the reason of commission of her suicide.

After consideration of rival submissions, this Court finds that under Section 113-A of Indian Evidence Act presumption as to abetement of suicide by a married woman within seven years of her marriage is that her husband or such relative of her husband had subjected her to cruelty, abeting her to commit suicide. The Court may presume, having regard to all other circumstances of the case that such suicide has been abetted by her husband.

Only because of married woman committing suicide within seven years of her marriage, the above presumption would not be attracted unless it is shown that her husband or any relative of her husband had subjected her to cruelty, which became a cause of abetment of suicide. The words used in the Court "may presume", while under Section 113 B of the Evidence Act, the words used are Court "shall presume".

From the statement of the witnesses there was no demand of dowry found to be proved from the husband of the deceased or any member of his family. Therefore, the Trial Court was right in absolving appellant of the charges under Section 304B, 498-A I.P.C and ¾ D.P. Act.

The Court below has presumed abetment of suicide of the appellant on the basis of injuries found on the body of the deceased. The Court below has found that the injuries on the body of the deceased were not on one side of her body. If she had fallen towards her face side, the front portion of her body would have suffered injuries. If she had fallen back, injuries should have been only on the back side of her body. In the present case the injuries on the body of the deceased were on both sides whereof the explanation that she had fallen from a wooden ladder was not found convincing.

The Trial Court has found that there is contradiction in the statement of the witnesses, who have stated that the wooden ladder which was being climbed by the deceased had slipped hence she had fallen, when the appellant had stated that in his statement under Section 313 Cr.P.C that she was climbing on a danda and it had broken down.

In view of the aforesaid finding the appellant have been convicted for committing offence under Section 306 I.P.C.

This Court after hearing learned counsel for the appellant and learned AGA finds that the Court below has rightly convicted the appellant for offence under Section 306 I.P.C. As per Section 222(2) Cr.P.C, when a person charged with an offence which is not proved court may convict him for minor offence though he is not charged with it. Under Section 464(1) Cr.P.C no sentence or order of a Court shall be deemed to be invalid merely on the ground that no charge was framed or any ground of any error, omission or irregularities in the charge unless in the opinion of the court of appeal a failure of justice is found to have been occasioned thereby. In the case of Dalbir Singh Vs. State of U.P. (2004)5 SCC 334, the Apex Court held that when it is not possible to convict an accused under section 302 I.P.C., whereof he was charged, the Court can convict him under Section 306 I.P.C on the basis of evidence led before the Trial Court. This Court finds that no interference is required in the order of the Trial Court since the appellant, being husband of the deceased, was required to explain cause of his wife death and why she committed suicide. The injuries on her body show that she was subjected to beating and she may have committed suicide being hurt and disturbed by the same. The presumption drawn against the appellant by the Court below is justified.

However, considering the fact that the appellant is in jail since 03.06.2016 and has no previous criminal history and his father is aged about 80 years, as evident from his bail order dated 19.09.2016 passed in Criminal Misc. Bail Application No.3248 of 2016 and there are two minor daughters to be looked after by the appellant as single parent after death of his wife, the conviction of the appellant is confirmed but his sentence is reduced to five years as held by the Apex Court in the case of K. Prema S. Rao Vs. Yadla Srinivasa Rao and others, AIR 2003 (SC) 11, wherein the Apex Court found that the husband has harassed his wife to such an extent that she committed suicide. The judgement of the Trial Court is modified to the extent stated above by reduction of period of sentence of the appellant from seven years to five years. The sentence already under gone shall be adjusted.

The appeal is partly allowed.

Let the record of the court below be remitted along with copy of the judgement within two weeks for necessary compliance.

Order Date :- 08.03.2021

SS