Ram Avadh Yadav And Another. vs The State Of U.P.
2021 Latest Caselaw 11403 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 
Court No. - 31
 

 
Case :- CRIMINAL APPEAL No. - 655 of 2002
 
Appellant :- Ram Avadh Yadav And Another.
 
Respondent :- The State Of U.P.
 
Counsel for Appellant :- Vashu Deo Misra,Anuj Kumar Srivastava,Maneesh Kumar Singh,Navita Sharma
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Vikas Kunvar Srivastav,J.

1. The present Criminal Appeal is preferred under Section 374 Cr.P.C. against the judgment and order dated 16.05.2002 passed by IXth Additional District Judge and Sessions Judge, Lucknow in Crime No.225 of 1997, Sessions Trial No.586 of 1998, Police Station Gomti Nagar, District Lucknow (State Vs. Ishwar Deen and others) convicting the each appellant to rigorous imprisonment for two years under Section 498-A I.P.C. and a fine of Rs.5,000/- and in default of payment of fine to further undergo six months rigorous imprisonment and under Section 304B I.P.C., ten years rigorous imprisonment and a fine of Rs.20,000/- and in default of payment of fine to further undergo two years rigorous imprisonment.

2. Heard learned counsel for the appellant, Sri Maneesh Kumar Singh, Advocate and learned A.G.A. for the State, Sri Anurag Singh Chauhan, Advocate.

3. In the instant Criminal Appeal against conviction, the brief story in the prosecution case is that Ram Dulari, mother of the deceased "Babita Yadav" lodged a first information report on 07.07.1997 in Police Station Gomti Nagar, District Lucknow that her daughter aforesaid Babita Yadav, who got married on 01.07.1994 with Ram Avadh Yadav, was subjected to cruelty, mental and physical torture in connection with demand of dowry since after the marriage. The aforesaid Ram Avadh Yadav, the son-in-law of the complainant with his father Ishwar Deen Yadav, mother-in-law, brother-in-law and sister-in-law forced her to bring Rs.40,000/- in cash. When the demand could not be fulfilled by the complainant, being a widow of insufficient means, they began to beat and torture her daughter. Severally they threaten in the course of beating the complainant's daughter Babita Yadav that let her ablaze into fire or to push on the railway tracks so that she would die. She further complained that in April, 1966, Ram Avadh Yadav, the son-in-law assaulted the complainant's daughter, inflicting a blow on her head from Banka. A report with regard to which was lodged in Police Station Madiyaon, District Lucknow, pursuant whereof, police recovered the complainant's daughter from the house of appellants brought her into hospital for treatment. Subsequently the in-laws of complainant's daughter, in mediation of some respectable people of the locality, asked pardon for their wrongs and requested to sent back the complainant's daughter to her in-laws house with assurance not to do any such thing any future. However, on 02.07.1997, the complainant got an information received by her in house at Satna, Madhya Pradesh that dead body of her daughter was found at Gomti Nagar Railway crossing in suspicion state. She further informed in the written complaint that her daughter was subjected to cruelty by son-in-law, Ram Avadh Yadav, his father, mother, brother and sister to such an extreme extent that she compelled to commit suicide. The Police instituted Crime No.225 of 1997, under Sections 498-A and 304-B of I.P.C., Police Station Gomti Nagar, District Lucknow on 07.07.1997 whereupon after committal from the Magistrate Court, Session Trial No.586 of 1998 was instituted for trial by the Court of Sessions.

4. In the Course of trial, one of the accused, Ram Kali, mother-in-law of the deceased "Babita Yadav" died and therefore, the case was abated to her extent by the trial judge.

5. Firstly, the charge sheet was submitted against the accused, Ram Avadh Yadav and Ishwar Deen Yadav only, whereupon Sessions Trial No.586 of 1998 was instituted. Thereafter, rest of the accused persons, namely, Ram Kali, mother-in-law, brother-in-law and sister-in-law of the deceased were arraigned in Sessions Trial No.18 of 1999, which was instituted thereupon. Both the sessions trial since pertaining to the same offence, therefore, the accused persons were trialed jointly for the purpose of consolidated hearing and judgment.

6. Firstly, the accused were charged under Section 306 and 498-A of I.P.C. but looking into the facts before the trial judge with regard to the unnatural death of the deceased "Babita Yadav" within seven years from the date of her marriage in her in-laws house, charges framed were amended and Section 498A I.P.C. read with Section 304 B of I.P.C. was imposed.

7. The prosecution produced witnesses for oral evidences, namely, complainant "Ram Dulari" as PW-1, Smt. Geeta as PW-2, Smt. Anita as PW-3, Dwarika as PW-4, Ram Ratan Yadav as PW-5, R.P. Yadav, Sub Inspector as PW-6 and Radhe Shyam as PW-7.

8. As documentary evidences, the prosecution produces before the Court, the written complaint as Ex. Ka-1, Post Mortem Report as Ex. Ka-2, Site Map as Ex. Ka-3, Chargesheet as Ex. Ka-4 and the First Information Report as Ex. Ka-5, Copy of the G.D. as Ex. Ka-6, Inquest Report as Ex. Ka-7 and other police papers prepared during the investigation as Ex. Ka-8, Ex. Ka-9 and Ex. Ka-10.

9. The accused persons were confronted with the evidence of prosecution witnesses under Section 313 Cr.P.C. though they denied from the allegations but did not adduce any written document in defence and examined witness Tulsiram as DW-1.

10. PW-1 in her examination before the Court proved written complaint made by her before the Police Station. PW-2 being elder sister of the deceased, deposed that just after the marriage, deceased "Babita Yadav" used to cohabit with her husband and another family members in her in-laws house. The behavior of in-laws with her was not good. They used to beat her in connection with demand of dowry. The mother of the witness and her sister lodged the F.I.R with this regard. She has further told that whenever the deceased "Babita Yadav" used to come in maternal house, she tells about the incidence of beating for the reason of demand of dowry. She has also stated the fact of illicit relations of the accused "Ram Avadh", with the wife of his maternal uncle and in order to continue with the illicit relation also, she used to beat severely to the deceased "Babita Yadav".

11. Another sister Anita as PW-3 has reiterated the same facts as stated by the PW-2.

12. PW-4, Dwarika, The chowkidaar deployed at railway station Malhore at Dilkusha in the year 1997. He deposed before the court that at about 2:00 P.M. in the noon of 02.07.1997, a woman was cut down on the railway track by train, the report of which, he lodged in the Police Station Gomti Nagar, District Lucknow.

13. PW-5, the brother-in-law of the deceased also stated about the illicit relations of the accused/appellant "Ram Avadh" with the wife of his maternal uncle which was also a root cause of quarrel between husband and wife and persuasive factor for committing suicide by the wife. He did not affirm allegations as to the dowry death.

14. PW-6, the Sub-Inspector R.P. Yadav who was the investigating officer in the first information report aforesaid, proved the facts came out of his investigation.

15. Postmortem report after the autopsy was done by the Dr. Radhe Shyam, which is proved by the said Doctor PW-7 in the court, on which the death by accident on railway track is found established.

16. PW-8, Smt. Sangeeta is examined as an independent witness, who stated that on 30.06.1997 when she went to bank situated in Gomti Nagar to withdraw cash and after withdrawal, since she mistakenly left the passbook there so she went back to the bank and met with Babita Yadav who told her that her husband is demanding Rs. 40,000/- for purchasing a motor vehicle i.e. tempo and for this he is forcing her. PW-8 told that the mother-in-law of the deceased "Babita Yadav" is in relation with her as wife of maternal uncle of her husband. She also stated that Babita Yadav told her about the cruelty and torture with which in-laws are subjecting to her in connection with demand of dowry.

17. After perusing all the evidences and hearing the parties, learned court below vide it's judgment convicted the accused/appellants, "Ram Avadh and Ishwar Deen" under Section 498 A and 304 B of I.P.C and sentenced them vide order dated 16.05.2002, convicting the each appellant to rigorous imprisonment for two years under Section 498-A I.P.C. and a fine of Rs.5,000/- and in default of payment of fine to further undergo six months rigorous imprisonment and under Section 304B I.P.C., ten years rigorous imprisonment and a fine of Rs.20,000/- and in default of payment of fine to further undergo two years rigorous imprisonment.

18. I perused the judgment and examined the same in light of evidences laid before the court with regard to the charges framed under Section 304B of I.P.C. as a presumptive offence. The section 304B of I.P.C. read with section 113B of the Indian Evidence Act, 1872 is being quoted hereunder for the easy reference:-

" Section 304B of I.P.C.- Dowry death.--

(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 (28 of 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 113B of Indian Evidence Act, 1872-

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, (45 of 1860)."

19. In the case of State of A.P. Vs. Raj Gopal Asawa and another reported in (2004) 4 SCC 470, it is held as under:-

"Section 304-B I.P.C. and Section 113-B of the Evidence Act were inserted by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Keeping in view the impediment in the pre-existing law in securing evidences to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted.

Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The essentials required to be proved for raising the said presumption are that (i) the question before the court must be whether the accused has caused the dowry death of a woman, (ii) the woman was subjected to cruelty or harassment by her husband or his relatives, (iii) such cruelty or harassment was for, or in connection with, any demand for dowry, and (iv) such cruelty or harassment was soon before her death.

Now, one of the essential ingredients, amongst others, in both the provisions i.e. Sections 304-B and 113-B is that the woman concerned must have "soon before her death" subjected to cruelty or harassment "for, or in connection with, the demand of dowry". There must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise that in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B I.P.C. are pressed into service. Evidences in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straightjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. The determination of the period which can come within the term "soon before" is not defined. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."

20. In view of the aforesaid provisions of 304B of I.P.C. read with Section 113B of the Indian Evidence Act, 1872 the prosecutions if establishes by its evidences that the unnatural death of the victim of the incident occurred within seven years from the date of marriage and she was subjected to cruelty soon before her death in connection with the demand of dowry and all these conditions are shown to co-exists, it shall be presumed that the offence under Section 304B of the I.P.C. is committed by the in-laws. The presumption raised against the in-laws that the victim died of a dowry death by reason of their behavior and conduct. In the instant case, the mother herself has lodged the F.I.R. under Section 306 of I.P.C. read with Section 498A of I.P.C.. The Section 498A of I.P.C. is also quoted hereunder for the easy reference:-

" Section 498A of the I.P.C.- 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."

21. In the case of Gurmeet Singh Vs. State of Punbjab reported in (2021) 6 SCC 108, a case before Hon'ble the Supreme Court, it is held that the offence under Section 304B of the I.P.C. and that committed under Section 498A are held to be independent and not connected with each other. The relevant portion of the said judgment is being quoted hereunder:-

"Sections 304-B and 498-A I.P.C. deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty". In Section 304-B there is no such Explanation about the meaning of "cruelty". But having regard to the common background to these offences it has to be taken that the meaning of "cruelty" or "harassment" is the same as prescribed in the Explanation to Section 498-A under which "cruelty" by itself amounts to an offence. Under Section 304-B it is "dowry death" that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections."

22. Section 304-B (i) of the I.P.C. defines Dowry Death of the woman. It provides that dowry death is 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 in connection with demand of dowry.

23. In the case of Satbir Singh Vs. State of Haryana reported in (2021) 6 SCC 1, it is held that it is important to appreciate and understand the necessary ingredients required to coexists for the constitution of offence under Section 304-B of I.P.C. The relevant portion of the said judgment is being quoted hereunder:-

"38.1. Section 304-B, IPC must be interpreted keeping in mind the legislative intent to curb the social evil of bride burning and dowry demand.

38.2. The prosecution must at first establish the existence of the necessary ingredients for constituting an offence under Section 304-B, IPC. Once these ingredients are satisfied, the rebuttable presumption of causality, provided under Section 113-B, Evidence Act operates against the accused.

38.3. The phrase "soon before" as appearing in Section 304-B, IPC cannot be construed to mean ''immediately before'. The prosecution must establish existence of "proximate and live link" between the dowry death and cruelty or harassment for dowry demand by the husband or his relatives.

38.4. Section 304-B, IPC does not take a pigeonhole approach in categorizing death as homicidal or suicidal or accidental. The reason for such non categorization is due to the fact that death occurring "otherwise than under normal circumstances" can, in cases, be homicidal or suicidal or accidental."

24. In the present case, the victim "Babita Yadav" is admittedly within seven years from the marriage died of unnatural death on having been cut down on the railway track by a train. The unnatural death may be homicidal, accidental or suicidal. The death by any of such means comes within the ambit of unnatural death for the purpose of constituting offence with other essential ingredients referred hereinabove for constituting offence under Section 304-B of the I.P.C.

25. In the light of the aforesaid legal position, it is necessary to see the evidences proving the demand of dowry and then cruelty in connection therewith committed with the victim.

26. The case lodged by the complainant/mother of the victim, the deceased "Babita Yadav" was duly investigated by the PW-6, R.P. Yadav, the Sub-Inspector. There is no mention of any cruelty or incident of beating to the victim after the earlier first information report lodged in the year 1996 with regard to the cruelty in connection with demand of dowry and the matter was mediated by some respectable persons. The in-laws of the deceased "Babita Yadav" make pardon and got back the deceased to her matrimonial home. No independent witness of the locality or neighbours is recorded. The mother of the victim used to reside in the State of Madhya Pradesh in Satna, there is no evidence that from where and how she got information of beating and torturing of her daughter after the said mediation and settlement between the parties. Evidence is also not on record as to when the deceased came to visit her before her death so that she knew about any recent and subsequent incident of torture at any point of time prior to her death. Moreover, the other prosecution witnesses like sister-in-law and brother-in-law of the deceased are also not stating about any such recent and subsequent act of cruelty after the mediation pursuant to the earlier first information report lodged by the mother in the year 1996.

27. One of the witnesses, Anita as PW-3 and brother-in-law as P.W.-5, Ram Ratan denying the fact of demand of dowry stated in consonance with the statement of PW-3, Anita that Babita Yadav and her husband were in quarrel and dispute with regard to the illicit relations of Ram Avadh with the wife of his maternal uncle.

28. The prosecution witnesses themselves are in difference and contradictions with regard to the demand of dowry during the period when the deceased "Babita Yadav" came back after mediation in 1996 to reside in her in-laws family. One set of witnesses stated on oath in the course of their examination in trial that demand of dowry was persistent and continuing with cruelty and torture committed on the deceased, whereas, another set of prosecution witnesses have stated on oath before the Court in the aforesaid process of trial that she was in quarrel and annoyed with her husband, the appellant "Ram Avadh" for the reason, his illicit relation with the wife of her husband's maternal uncle (mama). None of the witnesses's statement in oral evidence got corroboration from evidence of other attending facts.

29. None of the witnesses have ruled out any such allegations of illicit relations of the appellant "Ram Avadh". However, the Court has considered this aspect and ruled out the possibility of committing suicide by the deceased "Babita Yadav" by reason of the alleged illicit relations of her husband only for the reason that none of the witnesses have seen ever the appellant "Ram Avadh" and his companion of alleged illicit relations in any objectionable state of things. The eye witnesses account in evidences as to such intimacy between a male and female is generally not possible as it is not an activity done in the day light and openly. Legal or illegal whatever type of intimacy between a male or female may be, it is beyond the vision of people and done secretly, therefore, if witnesses are stating about the illicit relations that could not be disbelieved only for the reason that no one has seen the presence of complained to be in illicit relations in an objectionable state of things.

30. All the witnesses are interested witnesses as they are in relation with the victim as mother, sister and brother of the deceased. Their evidences required strict scrutiny by the Court but the same is not found done in the judgment delivered by the trial court.

31. If the prosecution has taken case of suicide by reason of demand of dowry and cruelty committed in connection therewith, the same is to be proved beyond all reasonable doubts. Prosecution is not relieved from proving it's case for the purpose of securing conviction of the accused thereupon.

32. The demand of dowry in the present case is not proved beyond all reasonable doubts and so far as the cruelty in connection therewith committed upon the victim is concerned soon before her death is also not proved beyond all reasonable doubts. So far as another aspect of the offence under Section 498-A is concerned, mere happening of incidence of victim's having been cut down on railway track is not in itself sufficient to presume that she committed suicide and to draw an inference that she could have not met an unfortunate accident. Here in the present case, right from the first information report lodged by the mother of the deceased/victim. The case of prosecution and it's witnesses, all have stated that the victim has committed suicide. No one even the keyman/chowkidar of the railway track, PW-4, has seen the victim jumping before a train on the railway track. He only saw the dead body cut down and lying on railway track.

33. In Sharad Birdhi Chand Sarda vs State of Maharashtra reported in (1984) 4 SCC 4, psychological and mental state of victim likely to commit suicide for the reason of any cruelty committed on her. The railway line, as in accordance with the evidence of prosecution witnesses is not too remote in the near vicinity of the home of the deceased where the incident happened.

34. In 1996, when the victim/deceased went to her mother and complained of the demand of dowry, the panchayat mediated the things and conceived therefrom, the victim returned to her in-laws house. No further complaint to the police is made either by the mother of the deceased or by the victim herself, as she was from the first incidence seems to have been a lady of courage and bold nature to raise voice against wrongs done with her by in-laws. Therefore, in absence of the evidence as to the psychology and personality of the deceased/victim, likely to commit suicide on having been annoyed from the alleged demand of dowry and cruelty committed with her, the prosecution case of commission of suicide by reason of cruelty committed by in-laws is not proved beyond all reasonable doubts. The cutting on the tracks may be accidental, suicidal or homicidal also but how high so ever the suspicion may be, the same could not take place of the proof either as to the accident or as to the suicide or even homicide. The prosecution in the present case failed to prove it's case of suicide by reason of cruelty in connection with demand of dowry. Therefore, learned court below committed error in passing the judgment of conviction under the aforesaid offences under Section 304B and 498A of the I.P.C. The judgment and sentence deserves to be set aside.

35. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and pendency and they should be such as to exclude every hypothesis but the one proposed to be proved.

36. In view of the aforesaid, the appeal is hereby allowed. The judgment and order dated 16.05.2002 passed by IXth Additional District Judge and Sessions Judge, Lucknow in Crime No.225 of 1997, Sessions Trial No.586 of 1998, Police Station Gomti Nagar, District Lucknow (State Vs. Ishwar Deen and others) convicting the each appellant to rigorous imprisonment for two years under Section 498-A I.P.C. and a fine of Rs.5,000/- and in default of payment of fine to further undergo six months rigorous imprisonment and under Section 304B I.P.C., ten years rigorous imprisonment and a fine of Rs.20,000/- and in default of payment of fine to further undergo two years rigorous imprisonment is hereby set aside.

37. Appellants, namely, Ram Avadh Yadav and Ishwar Deen Yadav are acquitted of the charges levelled against them. They shall be released forthwith if not wanted in any other case.

38. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.

Order Date :- 30.11.2021

Saurabh