Akhalesh Pal vs State Of U.P.
2021 Latest Caselaw 11167 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 

 

 

 
Court No. - 76
 

 
Case :- CRIMINAL APPEAL No. - 1988 of 2019
 

 
Appellant :- Akhalesh Pal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Yogesh Kumar Srivastava,Jai Singh Parihar,Noor Muhammad
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ajai Tyagi,J.

1. This appeal has been preferred by the appellant-Akhalesh Pal against the judgment and order passed by Additional Sessions Judge, Court No. 6, Jhansi, dated 30.10.2018 in S.T. No. 65 of 2016 (State v. Akhilesh Pal and others) arising out of Case Crime No.272/2015 under Section 498-A, 304-B, 302 IPC and under Section 3/4 Dowry Prohibition Act, 1961 (herein after referred to as 'DP Act, 1961') Police Station-Garotha, District-Jhansi, by which the appellant was convicted under Section 498-A, 304-B IPC and Section 4 of DP Act, 1961, and sentenced only under Section 304-B IPC for 7 years and under Section 4 of DP Act, 1961, for 6 months along with fine of Rs.1,000/-

2. Brief facts of the case are that the complainant-Thakur Das Pal submitted a report in Kotwali Garotha on 11.12.2015 with the averments that his daughter-Kaushal was married to Akhilesh Pal S/o Kallu Pal R/o Village-Khadaura, PS-Garotha, before 4 years. He had given dowry worth Rs.2 lakhs in the marriage, but his daughter's husband, namely, Akhilesh Pal (appellant), Father-in-law-Kallu Pal, Mother-in-law - Smt Valku and Nanad -Smt Urmila were not satisfied. They started demanding Rs.1,00,000/- as additional dowry and started torturing and beating her for non-fulfillment of above demand. In the morning of 11.12.2015, complainant came to know that all above mentioned persons have killed his daughter for non-fulfillment of demand of additional dowry.

3. On this report the Case Crime No. 272 of 2015 was registered against the aforesaid persons and after investigation, charge-sheet was submitted against Akhilesh Pal, Kallu and Smt. Balku under Section 498-A, 304-B and Section ¾ DP Act, 1961. After completion of trial, learned trial court acquitted Kallu and Smt. Balku of all charges levelled against them and convicted Akhilesh Pal and sentenced him as aforesaid. Hence, this Appeal.

4. Heard Sri Jai Singh Parihar, learned counsel for the appellant and learned AGA for the State.

5. Learned counsel for the appellant, first of all, submitted that prosecution could not prove when the marriage of deceased took place because no date of marriage is given in First Information Report and prosecution witnesses also did not tell the date of marriage. It is written in the FIR that marriage was solemnized before 4 years but no date is given. It is also submitted that no marriage invitation card is produced by complainant rather a 'letter of thanks' was submitted which is only a photostat copy and not the original. Hence, photostat copy is not permissible in evidence. It is next submitted by learned counsel that as per the FIR, one Pappu had informed the first informant regarding the death of his daughter-Kaushal. The complainant (PW1) has said that Pappu, resident of his village, told him that his daughter has been hanged. PW 3 is mother of the deceased. She has also stated in his statement that Pappu Mishra has informed them regarding the death of the deceased, but this Pappu is not at all produced by the prosecution in evidence.

6. Learned counsel for the appellant argued emphatically that prosecution has not produced any evidence regarding the fact that 'soon before her death' she was subjected to cruelty or harassment in connection with demand of dowry. PW1 is the father of the deceased and PW3 is the mother of the deceased. Only these two witnesses of fact are produced, but none of them has uttered even a single word regarding the fact that soon before her death, the deceased was subjected to cruelty.

7. Learned counsel for the appellant argued that it was a case of hanging. The deceased committed suicide by hanging herself. The reason behind the suicide was that deceased was having ailment regarding 'periods', and she was 'issue-less'. Appellant, the husband of the deceased, undertook the treatment of deceased. She was treated by Dr.Manju and Dr.Manju has been produced by defence as DW1. She has stated in her statement that deceased was issue-less and she had treated her. Deceased used to come with her husband-Akhalesh Pal for her treatment. The doctor in her statement has proved the medical papers of treatment. Hence, the appellant has proved the fact that deceased was issue-less and appellant kept her under treatment. Learned counsel also submitted that Beni (DW2) is produced by defence. She has stated in her statement that at the time of occurrence, the door of the room in which the deceased committed suicide, was locked from inside and people, gathered there, had broken the door. Dr.Udal Srivas conducted the postmortem of the deceased. He has also stated in his statement that there was no antemortem injury on the body of the deceased and it was possible that she had hanged herself. Learned counsel argued that there is ample evidence on record that the deceased committed suicide for being issue-less and appellant is not at all responsible for her death. It is also submitted that first information report of this case was registered by the police on mounting pressure created by Smt.Uma Bharti (the then Member of Parliament). This fact is admitted by complainant (PW1) in his statement before learned trial court. Hence, appellant is wrongly convicted and appeal be allowed.

8. Learned AGA, per contra, argued that this fact is not disputed that deceased died within seven years of her marriage. In the FIR itself, the complainant, who is father of the deceased has clearly stated that the marriage of his daughter-Kaushal was solemnized before four years. Learned AGA submitted that it is not necessary to show the exact date of marriage. It is sufficient if the complainant is stating that marriage was solemnized before four years because complainant is the father of the deceased and he is the best person to tell this fact. Apart from it, letter of thanks, which is given after marriage, is produced before trial court and is proved as Ex.ka2. Date of marriage is written in that letter as 30.4.2012.

9. Learned AGA also aruged that there was consistent demand of Rs.1 lakh as additional dowry from deceased and her parents and prosecution witnesses (PW1 and PW3), both have stated in their statements that appellant and his family members used to demand Rs.1 lakh as additional dowry and for not meeting out the demand, the deceased was tortured and harassed by them. Learned AGA also submitted that in postmortem report, there is antemortem injury on the 'index-finger' of the deceased. Therefore, learned trial court has rightly convicted and sentenced the appellant. Hence, appeal be dismissed.

10. First of all, appellant has disputed the fact that the death of the deceased took place within or beyond seven years of her marriage. In this regard, appellant has submitted that no date of marriage is mentioned in the FIR nor any 'invitation-card' of marriage is produced. Yet, I am not convinced with this argument of counsel for the appellant because in FIR itself, the complainant, who is the father of the deceased has specifically stated that the marriage of his daughter was solemnized with appellant before four years from the date of lodging the FIR. Complainant is produced as PW1 before trial court approximately after one and half years of lodging the FIR and in his statement, he has stated that marriage was solemnized before five years. It also coincides with the fact that the marriage took place before four years of lodging the FIR. It is pertinent to mention that the appellant was the husband of the deceased and if he is disputing the fact of date of marriage, he could tell some date of marriage in rebuttal, but no date or year of the marriage is told by appellant because the factum of marriage was also in the knowledge of the appellant and if marriage was not solemnized within seven years of death of the deceased, it was incumbent upon the appellant to show any other date of marriage, but nothing is done, therefore, considering the evidence on this point in its entirety, prosecution has proved that deceased died within seven years of her marriage. As far as the question of non-production of Pappu, who informed the complainant about the death of his daughter is concerned, it does not make any difference because it is not important, who informed the complainant and informer is not produced in evidence because charge-sheet was submitted by the Investigating Officer after investigation and trial court after considering the evidence on record, convicted him. It is the case of demand of dowry and harassment in pursuance thereof. Pappu was not the person to prove the demand of additional dowry and harassment, so if he is not produced in evidence, it does not affect the prosecution case adversely.

11. Learned AGA has submitted that in postmortem report, there was antemortem injury on the 'index-finger' of the deceased, but this injury is only an abrasion for which the doctor, while conducting the postmortem, has opined that this injury could not inflicted in taking the body on the floor. From postmortem report and the statement of the doctor (PW5), it is proved that it was a case of hanging.

12. Learned counsel for the appellant pressed the argument that there is no evidence on the point that soon before her death, the deceased was subjected to cruelty or harassment in connection with demand of dowry and in absence of this evidence, the death of the deceased cannot be deemed as dowry-death and no presumption in this regard can be raised by the court. This argument of appellant is legally correct. It is relevant to quote the provisions of Section 304-B IPC, which reads as under:

"Section 304B in The Indian Penal Code -(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."

13. Section 113-B of the Indian Evidence Act is also relevant for the case in hand, which reads as under:

"Section 113B in The 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)."

14. The essential ingredients which need to be proved in order to attract the offence of dowry-death are as follows:

i) death is caused in unnatural circumstances

ii) death must have been occurred within seven years of the marriage of the deceased

iii) it needs to be shown that soon before her death, the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry.

Coming to the first ingredient, the postmortem report suggests that the body of the deceased was bearing the mark of hanging. There was ligature mark on the neck of the deceased measuring 25 cm. x 1.2 cm. Hence, there is no doubt that the death was an unnatural death. The second ingredient is also proved as discussed above that the death of the deceased took place within seven years of her marriage. To prove the third ingredient, this Court needs to peruse the testimony of the witnesses. In this regard, the prosecution has produced father and mother of the deceased as PW1 and PW3 respectively. There is not even a single word in the testimony of PW1 and PW3 as to when soon before her death, the deceased was subjected to cruelty or harassment for or in connection with demand of dowry. There is no iota of evidence on this point in the statements of PW1 and PW3. Rather PW3, the mother of the deceased, has stated in her examination-in-chief that her daughter remained in her parental home for about one year. After that she had gone to her matrimonial home with her husband-Akhalesh Pal and Raju and after that she remained in her matrimonial home for nine months, but PW1 has not stated at all that during that period of nine months, deceased was ever subjected to cruelty or harassment regarding demand of dowry. So, both the relevant witnesses, namely, PW1 and PW3 have not uttered even a single word regarding third ingredient of harassment or cruelty soon before her death in connection with demand of dowry.

15. Section 113-B of the Indian Evidence Act raises a presumption against accused regarding the death. A perusal of Section 113-B of the Act shows that there must be material to show that soon before her death of a woman, she was subjected to cruelty or harassment for or in connection with demand of dowry, then only a presumption can be drawn that a person has committed the dowry-death of a women. It is then up to the appellant to discharge this presumption.

16. Learned trial court has not considered the ingredient regarding cruelty or harassment of the deceased soon before her death. Learned trial court has observed that on the basis of evidence on record, it is told by witnesses that it was marriage in the year 2012 and Rs.1 lakh as additional dowry was demanded. If evidence is considered believable to this extent then the offence is proved only against the appellant-husband and the appellant held guilty by the trial court. Trial court has reached to the conclusion of committing dowry-death of the deceased by her husband-Akhalesh Pal without having any evidence on record as to when she was soon before her death subjected to cruelty or harassment in connection with demand of dowry. The evidence on this point is absolutely silent. Hence, no presumption of Section 113-B of the Indian Evidence Act could be raised nor the death of the deceased could be considered as dowry-death as provided under Section 304-B IPC. Learned trial court wrongly appreciated the evidence in this regard.

17. Hon'ble Apex Court in Baljinder Kaur vs. State of Punjab, [2015 (1) JIC 71 (SC)] has held that there must be proximate and live link between the effect of cruelty based on demand of dowry and the death of the victim. It is also said by the Hon'ble Apex Court that "soon before death" is a relative term and no straight jacket formula can be laid down fixing any time limit. The determination of the period, which can come within the term "soon before death" is left to be determined by the courts depending upon the facts and circumstances of each case.

18. The same view was expressed by Hon'ble Supreme Court in Kamesh Panjiyar @ Kamlesh Panjiyar vs. State of Bihar [(2015) 2 SCC 388] and Baldev Singh vs. State of Punjab [2009 (1) JIC 120 (SC)].

19. In the present case, it is most relevant to highlight that the trial court did not give any finding on the point of "soon before death" as discussed above. Not even a single word is found in evidence of PW1 and PW3 in this regard and not even a single word is written by the trial court on above point yet trial court reached to the conclusion that appellant has committed dowry-death. No reason is disclosed by trial court as to how it framed its opinion regarding dowry-death more especially when the factum of cruelty or harassment to the deceased soon before her death is not established at all and evidence in this regard is absolutely missing.

20. Hence, trial court has not appreciated the evidence on right perspective and has given perverse finding.

21. With above discussion, I am of the considered view that offence under Section 304-B IPC is not proved against the appellant, but on the basis of evidence on record, the offences under Section 498-A IPC and Section 4 of the DP Act, 1961, are proved. Learned trial court has not passed any sentence under Section 498-A IPC due to the reason given by the trial court that no separate sentence will be passed under Section 498-A IPC when sentence is being passed under Section 304-B IPC. But, now since appellant is not found guilty for the offence under Section 304-B IPC, it is necessary to pass sentence for the offence under Section 498-A IPC. Consequently, the appellant is awarded sentence under Section 498-A IPC for three years and Rs.5,000/- as fine. The appellant shall undergo three months imprisonment in default of fine. The sentence passed by trial court under Section 4 of DP Act, 1961, needs no interference.

22. The conviction and sentence of appellant under Section 304-B IPC is hereby set aside and appeal is liable to be partly allowed.

23. The appeal is partly allowed in aforesaid terms.

24. The copy of this judgment and lower court record be transmitted to trial court for ensuring compliance. If the appellant has already undergone the modified sentence and is not wanted in any other case, he shall be released, forthwith.

(Ajai Tyagi, J.)

Order Date :- 1.10.2021

LN Tripathi