Allahabad High Court
Mohit Kumar vs State Of U.P. on 7 October, 2021
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR Reserved
Case :- CRIMINAL APPEAL No. - 7380 of 2019
Appellant :- Mohit Kumar
Respondent :- State of U.P.
Counsel for Appellant :- Jagmohan Singh,Lavkush Kumar Bhatt
Counsel for Respondent :- G.A.
With
Case :- CRIMINAL APPEAL No. - 6840 of 2019
Appellant :- Jai Jai Ram And Another
Respondent :- State of U.P.
Counsel for Appellant :- Jagmohan Singh,Lavkush Kumar Bhatt,Rajeev Kumar Singh Parmar
Counsel for Respondent :- G.A.
Hon'ble Subhash Chandra Sharma,J.
1. These appeals have been preferred against the judgment and order dated 28.09.2019 passed in S.T. No.27 of 2016 (State of U.P. vs. Jai Jai Ram and 2 others) arising out of Crime No.255 of 2015, under Sections 498-A, 304-B I.P.C. & ¾ D.P. Act, Police Station Jahanganj, District Farrukhabad by which appellants Jai Jai Ram and Smt. Bhagyawati have been convicted and sentenced under Section 304-B for a period of 7 years rigorous imprisonment and appellant Mohit Kumar for a period of 10 years rigorous imprisonment, under Section 498-A I.P.C. for a period of 1 year rigorous imprisonment with fine of Rs.5000/- for each and under Section 4 D.P. Act for a period of 6 months rigorous imprisonment with fine of Rs.1000 for each.
2. Facts in brief are that informant Ramprasad is resident of village Nagariya Jawahar, Police Station Rajepur, District Farrukhabad and his daughter Rinky @ Neelam was married to Mohit Kumar in May, 2013 who is resident of Jahanganj. After some days of marriage, the in-laws began to torture her daughter for chain and other items not being given in the marriage. They took off the jewelry from her which was given by her parents. On 24th July, Mohit Kumar sent S.M.S. which meant that he did not need her. Her father Ramprasad came and took her daughter. On 17.08.2015 her mother-in-law levelled the charge of theft of Rs.2500/- on her and said, give the money otherwise result will be bad. Thereafter, his daughter being aggrieved with daily torture poured kerosene oil on herself and set her ablaze in the presence of all family members but no one tried to save his daughter. If her mother-in-law, father-in-law, sister-in-law and husband had tried to save her, she would have survived. On 21.08.2015 tehrir as aforesaid was given by informant at the Police Station Jahanganj where case was registered as Crime No.255 of 2015, under Sections 498-A, 304-B I.P.C. and ¾ D.P. Act. The detail of which was entered into G.D. as Report No.24.
3. On the date of incident i.e. 17.08.2015 at about 17:30 Rinky @ Neelam died in the hospital and information thereof was given to police on the basis of which H.C.P. Rajendra Prasad proceeded to the hospital at Farrukhabad for conducting inquest of deceased where Rajendra Prasad Chaudhari, Tehsildar Sadar, Farrukhabad, constable Satyapal and home guard Pawanesh Pratap were present. Inquest of deceased Smt. Rinky @ Neelam was conducted by Tehsildar, R.P. Chaudhari in presence of the witnesses. Thereafter, dead body was got sealed, necessary papers were prepared with the inquest report and dead body was sent for post-morem to District Hospital, Farrukhabad by constable Satyapal Singh and home guard Pawnesh Pratap Singh.
4. On 18.08.2015 at about 3:00 P.M. Dr. Brajesh Singh and B.S. Verma, Medical Officer, Fatehgarh conducted autopsy of the dead body of the deceased Smt. Rinky @ Neelam and prepared post-mortem report Ex Ka- 6. Details of which are as under :-
External Examination
(I) age 23 years.
(ii) Average built body, eyes closed, mouth partly open
(iii) Dressing ointment all over the body at places, rigor mortis present both exremities, body kept in ice, cut open mark on medial side left ankle.
Antemortem Injuries
(I) Superficial to deep burn all over the body except head, lower part of both legs, head and sole skin black and peeled off at places, subcutaneous tissue present.
Internal Examination
(i) Head, Skull and Membrane - NAD
(ii) Brain - congested
(iii) Oribal, Nasal and Aural Cavities Findings - NAD
(iv) Neck, Mouth, Tongue Pharynx, Thyroid, Larynx and Vocal Cords - NAD
(v)Chest, Ribs and Chest Wall - NAD
(vi)Oesophagus, Trachea and Bronchial Tree- NAD (vii) Pleaura, Pleaural Cavities and Lung Findings - Congested
(viii) Pericardium and Pericardial Sac. - NAD
(ix) Heart findings and weight - Both Chambers Full
(x) Large Blood Vessels - NAD
(xi) Abdomen and Abdominal Wall - Opened
(xii) Peritoneum and Peritonial cavity - NAD
(xiii) Stomach - liquid material
(xiv) Small and large intestine, Liver - NAD
(xv) Spleen - Congested
(xvi) Pancreas - NAD
(xvii) Kidney - Congested
(xviii) Pelvic Cavity and Pelvic Bones - NAD
(xix) Uterus - Non Gravid
(xx) Spinal Cord - Not opened
In the opinion of the doctor cause of death is shock as a result of antemortem burn.
5. Investigation of the case was handed over to Circle Officer, Lekhraj Singh who recorded the statements of witnesses, made spot inspection, prepared site-plan and collected the relevant evidence. On the basis of material collected during investigation prima facie case was found to be made out against the appellants Jai Jai Ram, Smt. Bhagyawati and Mohit Kumar so charge-sheet was submitted under Sections 498-A, 304-B and ¾ D.P. Act to the court concerned. The court concerned took cognizance of the offences and after providing copies of prosecution papers to the appellants in compliance of Section 207 Cr.P.C., case was committed to the court of session for trial.
6. The court of session framed charges against the appellants under Section 498-A, 304-B I.P.C. & Section ¾ D.P. Act and in alternate under Section 302 read with Section 34 I.P.C. on the basis of material on record. Charge was read over and explained to the appellants from which they denied and did not plead guilty but claimed for trial.
7. The prosecution adduced evidence in support of its case, PW-1 Ram Prasad informant (father of the deceased), PW-2 Smt. Rekha Saxena (mother of the deceased), PW-3 Mukesh Singh @ Umesh Singh neighbour of informant and witness of inquest, PW-4 Rajeev Kumar neighbour of informant, PW-5 Motiram witness of inquest, PW-6 Nem Singh neighbour of informant, PW-7 Rajendra Prasad Chaudhary, Tehsildar who conducted inquest of the deceased, PW-8 Rajat Kumar borther of the deceased, PW-9 Dr. Brajesh Singh, medical officer who conducted autopsy of the deceased, PW-10 constable Smt. Meena Singh who prepared check F.I.R. and PW-11 Lekhraj Singh, Circle Officer who investigated the case, have been examined.
8. After prosecution closed its evidence, statements of appellants under Section 313 were recorded by the trial court in which they admitted the marriage of deceased on 07.05.2013 with appellant Mohit Kumar and her death on 17.08.2015. They stated the story of demand of dowry, torture relating thereto and setting her ablaze by pouring kerosene oil in their house, to be false. The deposition of PW-2 Smt. Rekha Saxena, PW-3 Mukesh Singh, PW-4 Rajeev Kumar, PW-5 Motiram, PW-6 Nem Singh neighbour of informant, PW-8 Rajat Kumar have been said to be correct. They stated about the statement of PW-7 Rajendra Prasad Chaudhari and PW-9 Dr. Brajesh Singh that they did not prepare the papers in the right way. They also stated about the PW-10 constable Smt. Meena Singh that she prepared wrong F.I.R. About PW-13 Investigating Officer, they said that wrong site plan and charge-sheet was prepared and submitted, thereafter, case was instituted falsely. Appellant Smt. Bhagyawati said that her daughter-in-law and son Mohit Kumar used to live in separate room of the same house. Neither she made any additional demand of dowry from her daughter-in-law nor subjected her to torture and further stated that she was innocent. Appellant Mohit Kumar also made similar statements and stated that he never made demand of additional dowry from her wife and kept her very affectionately but his wife was ill-tempered and in his absence she committed suicide by setting her ablaze. At the time of the occurrence he was working in a private company at Shahjahanpur. Appellant Jai Jai Ram has also made similar statement to that of appellant Smt. Bhagyawati. Opportunity of defense was given to the appellants and they examined DW-1 Umakant and DW-2 Amar Singh.
9. After conclusion of evidence on both the sides, learned trial court heard the arguments made on behalf of the parties, considered the evidence on record and passed the judgment in question by which it held appellants guilty and sentenced them as aforesaid. Being aggrieved with this judgment and order they preferred this appeal.
10. Heard Sri Lavkush Kumar Bhatt, learned counsel for the appellants as well as learned A.G.A. and perused the record.
11. Learned counsel for the appellants submitted that in this case no additional demand of dowry was made by the appellants from the deceased or from her parents. She was ill-tempered lady. On account of being prevented from studying further, she committed suicide by setting her ablaze. Appellants never made any kind of harassment or torture to her in relation to the demand of dowry or otherwise. They kept her happily. After she set her ablaze, they took her to the District Hospital for treatment and informed about it to her parents who came there but unfortunately she could not be saved and succumbed to burn injuries on the same day. Information was given to the appellants by the hospital and inquest was conducted in presence of her father and cremation was also done in his presence. After three days of incident this F.I.R. was lodged by the father of the deceased under misconception which he has admitted during his cross-examination before the trial court. He has categorically stated that there was no additional demand of dowry made by her in-laws and husband of the deceased but she committed suicide when he himself prevented her from higher studies. Other witnesses adduced on behalf of the prosecution have also not supported the prosecution version. They have categorically denied the fact of demand of dowry and harassment by the in-laws of the deceased and said that deceased herself committed suicide by setting her ablaze under the impression of her own ill-temperament. No any injury except superficial burn was found on the person of the deceased which infers that no harassment or injury was caused to the deceased prior to her death. Learned trial court has not considered all these facts but convicted and sentenced the appellants illegally without making proper appreciation of evidence on record especially making reliance on the statements made during examination-in-chief by PW-1/informant turning hostile later on and also considering the fact that deceased died in her sasural within 7 years of her marriage, therefore, inmates of her in sasural are responsible for that. So far as conviction of the appellants under Section 304-B I.P.C. is concerned, it cannot be made unless all of the ingredients of Section 304-B I.P.C are satisfied even though some of the ingredients are fulfilled. In this particular case, it is true that deceased died of burn injuries which is otherwise than under normal circumstances and within 7 years of her marriage but other two ingredients required to be proved for conviction under Section 304-B I.P.C. i.e. harassment by husband or his relatives for, or in connection with, the demand of dowry soon before her death are absent. In this way, conviction under Section 304-B I.P.C. cannot be said to be legal. Likewise, in absence of proof of demand of dowry and harassment, conviction under Section 498-A I.P.C. and Section ¾ D.P. Act can also not be held. The judgment and order passed by learned trial court being illegal and perverse requires to be set aside and appeal is liable to be allowed.
12. Learned A.G.A. opposed vehemently the submissions advanced by learned counsel for the appellants and urged that in this case informant/PW-1 is father of deceased who lodged the F.I.R. stating the circumstances in which deceased died. All the ingredients required for constitution of offence under Section 304-B, 498-A I.P.C. and Section ¾ D.P. Act are fulfilled. The deceased died of burn injuries within 7 years of her marriage. Demand of additional dowry and harassment was also made by the husband and his relatives soon before her death and this fact stands proved with the testimony of PW-1 who is father of the deceased. Though other witnesses i.e. mother and brother of deceased turned hostile and they did not support the prosecution case but they were owned by the appellants either owing to their pressure, threat or any kind of allurement on their part. PW-1 supported the prosecution version in his examination-in-chief but afterwards he turned hostile and retracted from his testimony already deposed before the learned trial court. It was the result of undue influence of the appellants on him. After considering all these facts, learned trial court has passed the judgment in question and convicted the appellants which is just, proper and lawful. There is no perversity in the judgment but appeal is forceless and liable to be dismissed.
13. Before proceeding to deal with the contentions raised by learned counsel for the appellant, it will be convenient to take note of the evidence as adduced by the prosecution.
14. PW-1 Ram Prasad is father of the deceased who has stated that marriage of her daughter took place on 13.05.2013 with Mohit Kumar resident of village Nagariya Police Station Jahanganj, District Farrukhabad. Jai Jai Ram, Smt. Bhagyawati and Mohini are father, mother and sister of Mohit Kumar. He gave sufficient dowry but the in-laws of her daughter were not satisfied with it. They were insisting on demand of golden chain from the time of marriage for which he promised to arrange later on but he could not give them golden chain. They kept on insisting the demand of golden chain with his daughter (the deceased) whenever she came to her parents house, she narrated it all to them and also about the ill-treatment by the inmates. On 17.08.2015 he was informed that his daughter has died of burning. Accused persons Jai Jai Ram, Smt. Bhagyawati, Mohit Kumar and Mohini used to make harassment to her for dowry. He has also proved the tehrir given by him in his hand writing and signature as Exibit Ka-1. He has also proved the invitation card as material Exibit Ka-1. He has further stated that he was witness in inquest proceedings and in his cross-examination he has stated that he has not seen the incident that took place with his daughter. He has not made any complaint or proceeding against the husband or in-laws of the deceased. He was in relation with the father of the Mohit Kumar prior to his marriage and known to them very well. His sarhu Ram Naresh and his brother-in-law Ram Niwas were mediator in the marriage. Before marriage they told him that family of Mohit Kumar was good and I should marry and as a result marriage was performed in good manner. His daughter lived in her in-laws house near about three and a half month and she died on 17.08.2015. He was not present there at the time of her death. Ram Niwas was at Panipat and he (informant) was at Aligarh. The information about the incident was given to him by Ram Niwas by mobile at about 10:00 A.M. on 17.08.2015. At the time of marriage age of the deceased was about 21 years and after 2 years of marriage she died. Marriage was performed in cheerful atmosphere. After marriage his daughter came to his house 3-4 times. He has further stated that in the marriage his son-in-law Mohit Kumar, his father Jai Jai Ram or any other person did not make any demand of dowry. No demand was made from his wife Smt. Rekha. His daughter died of burning. Unfortunately the fire broke in the kitchen at the time of cooking food. She was taken to R.M.L. Hospital, Farrukhabad for treatment by his son-in-law Mohit Kumar and his father Jai Jai Ram but she could not be saved. His son-in-law Mohit Kumar informed him on telephone that Rinky @ Neelam has burnt and they are to reach there at once. When they reached R.M.L. Hospital, Farrukhabad they saw the dead body of Rinky @ Neelam. Police sealed the dead body in his presence and sent it for post-mortem. His daughter committed suicide or unfortunately she was burnt but he told it to be true that in Tehrir Exibit Ka-1 he has mentioned that being aggrieved by torture his daughter set her ablaze by pouring kerosene oil. He got it written on the paper that no one set her at fire. Rinky @ Neelam was ill-tempered and used to become angry on trivial matters. She used to give up eating and also strike with hands and fists on the wall and on the floor. She passed B.A. And was insisting to complete M.A. He and his wife Rekha prevented her from further study thereafter prior to 2 days of this incident, Rinky @ Neelam threatened them if she had been prevented from further study she would die. When they went to her sasural to participate in a birth day programme he and his wife convinced her that it would not be good to study further on account of this she committed suicide.
15. PW-2 is Smt. Rekha Saxena mother of the deceased who has stated that Rinky @ Neelam was her daughter. She was married to Mohit Kumar. They gave sufficient dowry in the marriage and it was performed cheerfully. Her son-in-law Mohit Kumar, his father Jai Jai Ram and mother Smt. Bhagyawati did not make any demand of dowry. They never ill-treated her daughter. Her daughter Rinky @ Neelam was happy in her sasural. She committed suicide by setting her at fire. Mohit Kumar and his parents were not responsible for her death. This witness was declared hostile and cross-examination was made by learned A.D.G.C. in which she stated that death of Rinky @ Neelam took place in her sasural. She went there on the information of her death, she was informed that Rinky @ Neelam was taken to R.M.L. Hopsital, Farrukhabad for treatment by her husband. Hence, she reached to the hospital where Rinky @ Neelam was unconscious. Rinky @ Neelam was admitted into hospital in the morning and afterwards she died. Information was given to her by son-in-law Mohit Kumar on mobile phone. Son-in-law Mohit Kumar did not make demand of golden chain. Police did not make query with her. She has also denied the statement as recorded by Investigating Officer u/s 161 Cr.P.C. and said that she did not make such statement before any police personnel, how this was written she could not explain. She has denied the suggestion that in relation to the demand of dowry accused persons used to torture deceased physically and mentally as a result she committed suicide by setting her at fire. She has also denied the suggestion about compromise after taking money from the accused persons. During cross-examination made on behalf of accused persons, she has stated that when she reached R.M.L. Hospital, Farrukhabad, Mohit Kumar, his father Jai Jai Ram and mother Bhagyawati met her. They were making arrangements of treatment of the deceased. At the time of last rites of deceased they were present at Ghatiya Ghat on the bank of river Ganges. Her daughter committed suicide on account of being ill-tempered, having no issue she was tensed and also remained disturbed. Owing to these factors she committed suicide. Mohit Kumar, Jai Jai Ram and Bhagyawati are not responsible for death of her daughter and they are innocent.
16. PW-3 Mukesh Singh @ Umesh Singh is neighbour of informant. He has stated that Rinky @ Neelam daughter of his neighbour Ram Prasad was married to Mohit Kumar. On receiving information of her death he also reached to R.M.L. Hospital, Farrukhabad. In his presence Tehsildar examined the dead body and he made his signature on the inquest report. Dead body was sealed and sent for post-mortem. Rinky @ Neelam used to go his house but she never told him that her in-laws made ill-treatment with her in relation to demand of dowry. This witness was also declared hostile and cross-examination was made by learned prosecutor. During cross-examination he has denied the statement recorded by Investigating Officer during investigation under Section 161 Cr.P.C. He also denied the suggestion that informant entered into compromise with accused Jai Jai Ram by taking money. During cross-examination by defence he has stated that Rinky @ Neelam went to his house and told his wife Suman that her in-laws were very good they keep her affectionately. Whenever he went to her sasural with her father Ram Prasad the in-laws always respected them and appreciated Rinky @ Neelam.
17. PW-4 Rajiv Kumar is also neighbour of informant Ram Prasad. He has stated that Rinky @ Neelam died of burning two and a half years ago. Unfortunately at the time of cooking in the kitchen, it caught fire. He heard this fact from the villagers and Ram Prasad has also told him. He does not know the cause of death. Deceased never told him about the ill-treatment in relation to demand of dowry by her in-laws. This witness was also declared hostile and cross-examination was made by learned prosecutor in which he denied the statement recorded u/s 161 Cr.P.C. by Investigating Officer during investigation. He also denied the suggestion about compromise between accused and the informant. During cross-examination by defense he has stated that Rinky @ Neelam was happy in her sasural, they kept her with love and affection.
18. PW-5 Motiram is also resident of village of the informant. He has stated that on receiving information of death of Rinky @ Neelam he went to R.M.L. Hospital, Farrukhabad where police sealed her dead body and sent it for post-mortem. In his presence proceedings of inquest were conducted. Rinky @ Neelam never told him about ill-treatment made by her in-laws in relation to demand of dowry. During cross-examination made by learned A.D.G.C. he has denied the statement as recorded u/s 161 Cr.P.C. by Investigating Officer.
19. PW-6 Nem Singh has also stated that deceased Rinky @ Neelam never told him or members of his family about the ill-treatment made by her in-laws in relation to demand of dowry. During cross-examination made by learned prosecutor he has admitted the marriage of Rinky @ Neelam in year 2013 and also told that her death was caused due to burning but he could not tell whether she committed suicide or her death was caused. He has denied the statement made by him before the Investigating Officer. During cross-examination by defense he has told that Rinky @ Neelam was died of accidental burn injuries. Her in-laws kept her happily.
20. PW-7 Rajendra Prasad Chaudhary, Tehsildar has said that at the information of S.H.O., Police Station Jahanganj, he conducted inquest of deceased Rinky @ Neelam w/o Mohit Kumar at 5:30 P.M. on 17.08.2015. He proved the inquest report as Exibit Ka-2 in his writing and signature. He has also proved other papers prepared at the time of inquest in his writing and signature as Exibit Ka-3, 4 & 5. During cross-examination by defence he has stated that nobody showed him any paper in relation to the cause of death of deceased. The cause of death of deceased appeared to be by burn as per information of panchan.
21. PW-8 Rajat Kumar is brother of deceased Rinky @ Neelam. He has stated that she was married to Mohit Kumar on 13.05.2013 by his parents. They gave sufficient dowry according to their status. Mohit Kumar and his parents were satisfied with his sister. They did not torture her for such demand. On 17.08.2015 when incident took place he was not at his home. Later on his father told him that Rinky @ Neelam committed suicide by setting her at fire. This witness was also declared hostile and was cross-examined by learned prosecutor in which he has stated that accused persons never demanded additional dowry, golden chain and other domestic items. His sister never told him anything in this regard. Mohit Kumar did not send s.m.s. to him that he would not keep his sister Rinky @ Neelam unless his demand would be fulfilled. At the time of incident he was out at Gola Gokaran Nath after return he came to know that Rinky @ Neelam has committed suicide by setting her at fire. This witness has denied the statement recorded u/s 161 Cr.P.C. by Investigating Officer. During cross-examination made by learned prosecutor he has stated that his sister deceased Rinky @ Neelam never made complaint against her in-laws in relation to demand of dowry and ill-treatment before the incident took place. His inmates also did not tell him anything in this regard.
22. PW-9 Dr. Brajesh Singh conducted post-mortem of the deceased Rinky @ Neelam on 17.08.2015 and opined that cause of death was shock as a result of antemortem burn. He has also proved the post-mortem report in his hand writing and signature as Exibit Ka-6. During cross-examination by defence he has stated that except burn injuries there was no any other antemortem injury on the dead body of the deceased. There was no any mark of external or internal injury on her body.
23. PW-10 Constable Smt. Meena Singh has stated that on 21.08.2015 she lodged F.I.R. as Crime No.255/15, under Section 498-A, 304-B & under Section ¾ Dowry Prohibition Act, against Jai Jai Ram, Smt. Bhagyawati, Mohini and Mohit Kumar on the basis of written tehrir given by informant Ram Prasad, the detail of F.I.R. was entered into G.D. as report no.24. She has proved G.D. as Exibit Ka-7 and F.I.R. as Exibit Ka-8.
24. PW-11 Lekhraj Singh, Circle Officer who investigated the case has proved the investigation and the papers prepared by him. He proved site plan as Exibit Ka-9 and charge-sheet as Exibit Ka-10.
25. DW-1 Umakant has stated that on 17th, August daughter-in-law of Jai Jai Ram set her at fire. Appellants Jai Jai Ram and Smt. Bhagyawati both were in the village school. Jai Jai Ram cooks food and Smt. Bhagyawati is sahayika in Anganwadi. Before one hour of the incident they were going towards the school and about one hour later incident took place. He also went there. Other residents of mohalla were also present there who set off the fire. Thereafter, Jai Jai Ram and his wife came on the spot and took the deceased to the hospital by ambulance.
26. DW-2 Amar Singh has also made similar statements.
27. Now the court is to deal with the submissions made by learned counsel for the appellants i.e. that the ingredients of Section 498A, 304B I.P.C. and Section ¾ D.P. Act have not been fulfilled; and the learned trial court has convicted on the uncorroborated testimony of PW-1 who turned hostile and did not support the prosecution case, hence the conviction by learned trial court is bad in the eyes of law.
28. Before I proceed to evaluate the evidence on record led by the prosecution in support of charges framed against the accused, it is necessary to examine the law relating to 'dowry death'. The Hon'ble Supreme Court has highlighted all the aspects of law relating to 'dowry demand' and 'dowry death' in recent case of Prem Kanwar vs. State of Rajasthan, 2009(1) JT 197, para 6 of the report is as under:-
"6. In order to attract Section 304B I.P.C., the following ingredients are to be satisfied:
(i) The death of a woman must have been caused by burns or bodily injury or otherwise that under normal circumstances;
(ii) Such death must have been occurred within 7 years of the marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(iv) Such cruelty or harassment must be in connection with the demand of dowry.
29. Section 304B and Section 498A I.P.C. Reads as follows:-
"304B. 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."
30. "498A. 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 willful 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."
31. The term "dowry" has been defined in Section 2 of the Dowry Prohibition Act, 1961 (in short 'Dowry Act') as under :-
"Section 2. Definition of 'dowry'- In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly."
(a) by one party to a marriage to the other party of the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mehr in the case of person whom the Muslim Personal Law (Shariat) applies.
Explanation I- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this Section unless they are made as consideration of the marriage of the said parties.
Explanation II- The expression 'valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1861)."
32. Explanation to Section 304B refers to dowry" as having the same meaning as in Section 2 of the Act', the question "what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be given" occurring herein, and in the absence of any such evidence it would not constitute to be dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and others vs. State of Haryana, 1998 (3) SCC 309.
33. The offence alleged against the accused is under Section 304B I.P.C. Which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved; hardly any offenders would come under the clutches of law. When Section 304B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence that could be either direct on indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seeks, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4, which deals with a penalty for demanding dowry under the Act and the I.P.C. makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.
34. Section 113B of the Evidence Act is also relevant for the case at hand. Both Sections 304B I.P.C. And Section 113B of the Evidence Act were inserted as noted earlier by the dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows:-
"113B: 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 persons has caused the dowry death.
Explanation- For the purposes of this Section' dowry death' shall has the same meaning as in Section 304B of the Indian Penal Code (45 of 1976).
35. The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related death, legislature through it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113B in the Evidence Act has been inserted. As per the definition of 'Dowry death; in Section 304B I.P.C. And the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst other, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment for or in connection with the demand of dowry".Presumption under Section 113B is a presumption of law. On proof of the essentials mentioned there in, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B I.P.C.
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
36. A conjoint reading of Section 113B of the Evidence Act and Section 304B I.P.C. shows that there must be material to show that soon before the death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304B I.P.C are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket 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 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304B I.P.C. and Section 113B 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. A reference to expression 'soon before' used in Section 114B Illustration (a) of the Evidence Act is relevant. It lays down that Court may presume that a man who is in the possession of goods 'soon after' the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of a period which can come within the term 'soon before' is to be determined by the Courts, depending upon 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 concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not be disturb mental equilibrium of the woman concerned, it would be of no consequence."
37. In the instant case, so far as the first ingredient of Section 304B is concerned that the death of women must have been caused by burn or bodily injury or otherwise than under normal circumstances, record shows that PW-1 Ram Prasad, the informant lodged an F.I.R. alleging that her daughter set her ablaze by pouring kerosene oil. Exibit Ka-2 inquest report also shows that deceased was died of burn injuries. It has been proved by PW-7 Rajendra Prasad Chaudhary, Tehsildar who conducted inquest of the deceased. Post-mortem report Exibit Ka-6 also shows the cause of death shock as a result of ante-mortem burn. PW-9 Dr. Brajesh Singh has proved the post mortem report and opined about the cause of death as a result of ante mortem burn injury. Therefore, it stands proved that death of deceased was caused on account of ante mortem burn injuries which was otherwise than under normal circumstances, so first ingredient of Section 304B I.P.C. stands proved.
38. Second ingredient is that such death must have been occurred within 7 year of the marriage. In this regard, informant PW-1 Ram Prasad has mentioned in the Tehrir Exibit Ka-1 that he married his daughter with appellant Mohit Kumar in the month of May, 2013. Material Exibit Ka-1 invitation card is also on record which has been proved by the informant in which date of marriage got mentioned 7th May, 2013. Appellants have also admitted this fact of marriage on 7th May, 2013 in their statements made under Section 313 Cr.P.C. before the trial court. The incident took place on 17.08.2015. It is evident that death of deceased occurred within 7 years of her marriage with the appellant Mohit Kumar. Therefore, undisputedly this ingredient no.2 stands proved.
39. Ingredient no.3 & 4 require that soon before her death, the woman must have been subjected to cruelty or harassment by her husband or his relative and such cruelty or harassment must be in connection with the demand of dowry. In this regard PW-1 who is father of the deceased has been examined who has supported the prosecution version about the demand of dowry and harassment with the deceased in his examination-in-chief but he retracted from his statement during cross-examination. PW-2 Smt. Rekha Saxena is mother of the deceased who has not stated about the fact of demand of dowry by the appellants with the deceased and ill-treatment made with her in relation to the demand of dowry soon before her death. She has clearly denied this fact. She was declared hostile at the request of the prosecution and cross-examination was done by learned A.D.G.C. criminal but nothing was found to support the version of demand of dowry and harassment soon before her death. On the contrary she has stated that her daughter committed suicide on account of being ill-tempered. She had no issue, so she was tensed and also remained disturbed. She has also deposed that son-in-law Mohit Kumar, father-in-law Jai Jai Ram and mother-in-law Smt. Bhagyawati did not make demand of golden chain and other things and they never ill-treated her daughter. She was happy in her sasural. Mohit Kumar and his parents were not responsible for her death. PW-8 Rajan Kumar is brother of the deceased who has also stated that Mohit Kumar and his parents were satisfied with his sister and they did not torture her for such demand. His father told him that Rinky @ Neelam committed suicide by setting her at fire. This witness was also cross examined by learned prosecutor who has clearly stated that accused persons never demanded additional dowry, golden chain and other domestic things and his sister never told him anything in this regard. PW-3 Mukesh Singh, PW-4 Rajeev Kumar, PW-5 Motiram and PW-6 Nem Singh all these witness are neighbours of informant Ram Prasad have also not supported the prosecution version relating to the demand of dowry and harassment made by the appellants in relation thereof soon before her death. Even during their cross-examination nothing was found to support the version of demand of dowry and harassment.
40. From perusal of the testimony of PW-2, 3, 4, 5, 6 & 8 as aforesaid, it becomes evident that there was no demand of dowry on the part of the appellants with the deceased or with members of her family and no any kind of harassment was made by them soon before her death.
41. In this regard the testimony of PW-1 informant who is father of the victim is the only basis on which learned trial court has convicted the appellants. PW-1 Ram Prasad lodged F.I.R. mentioning the fact of demand of dowry by the appellants and harassment made by them soon before her death. He supported the version mentioned in the F.I.R. during his examination-in-chief but during cross-examination by defense he retracted from his previous statement made during examination-in-chief.
42. Now the question before this Court is to decide as to whether the testimony of PW-1 as deposed during examination-in-chief and retracted in cross-examination is wholly reliable and conviction can be based on it.
43. The learned trial court has assigned the reason for conviction stating that PW-1 Ram Prasad has supported the version of the first information report in his examination-in-chief, thereafter he turned hostile. Believing on his examination-in-chief, the learned trial court has convicted the accused-appellants. It is pertinent to mention that subsequently, the mother and brother of the deceased who are PW-2 and PW-8 were also examined and they have also not supported the statement of PW-1 which he has made in his examination-in-chief. Other witnesses of fact PW-3, 4, 5 & 6 those are neighbours of informant have also not supported the prosecution version and they have also been declared hostile but nothing was found in support of case during their cross-examination by learned A.D.G.C.
44. The learned trial court appears to have relied upon the settled proposition of law that the testimony of the hostile witness cannot be rejected totally as his evidence is not washed off from the record and the parties can take support of such evidence to the extent it is favourable to them. Judgement in Prithi vs State of Haryana, 2011 ACC (72) 398 is often referred in which it was reiterated that the testimony of hostile witness cannot be rejected totally and his evidence is not washed off the record. The evidence is acceptable to the extent it is found to be dependable on careful scrutiny thereof and supports the version of prosecution. It is pertinent to mention that it was a case of murder under section 302 I.P.C. and one of the eyewitness (informant) who was injured also, did not name the assailant but supported prosecution version. Other eyewitness who was a related witness named and supported the prosecution version and gave full account of the incident. In the instant case, PW-2 and PW-8 who are mother and brother of the deceased turned hostile and did not support the prosecution case or what was stated by PW-1 in his examination-in-chief, and as such on fact it can be distinguished.
45. In a recent judgement, Ramesh vs State of Haryana, (2017) 1 SCC 529, the Hon'ble Supreme Court expressed concern on witnesses turning hostile, particularly in high profile cases. In the instant case even the injured witness who was present on spot, turned hostile and the trial court disbelieved the dying declaration of the deceased on the basis of the statement of a hostile witness whose testimony was found false on the basis of evidence on record. The Supreme Court after analysis of various cases underlined the reasons of hostility to be (1) threat/intimidation (2) Inducement by various means (3) Use of muscle and money power by the accused (4) Use of stock witness (5) Protracted trial (6) Hassles faced by the witnesses during investigation or trial (7) Non-existence of any clear-cut legislation to check hostility of witness. (8) Culture of compromise which results from various factors like village and family solidarity, compensation, false case, false statement recorded by police, subsequent good relationship developed between the parties and the like. This view has been further reiterated in Mahender Chawla vs Union of India, 2018 SCC Online 2679.
46. The purpose of the above discussion is to point out that there may be various reasons for hostility and while appreciating the evidentiary value of a hostile witness, the trial courts should not be mechanical and should consider the evidence in the light of factual matrix in each case. In case the witness has turned hostile during cross-examination, the statement in examination-in-chief may be taken in support of other reliable and trustworthy evidence available on record. It should be always kept in mind that right of cross-examination is available to the accused as part of his right to fair trial and unless there is evidence of threat, fear or pressure or the like to procure hostility, the trial courts should be very cautious in placing reliance on it, otherwise, the valuable right of the accused of cross-examination and fair trial will become futile and nugatory.
47. The principle of law as laid down in different judgements of the Hon'ble Supreme Court that the testimony of hostile witnesses shall not be completely discarded and the part of the statement which supports the prosecution version can always be taken into consideration cannot be disputed, but the way it has been applied in the facts and circumstances of this case, that was totally uncalled for and unwarranted. It has been held in Ram Swaroop v. State of Rajasthan, AIR 2004 SC 2243; 2005 SCC (Cri) 61, that the credibility of a hostile witness cannot be discarded altogether, but this puts the court on guard and cautions the court against acceptance of such evidence without satisfactory corroboration. Thus, it appears that the aforesaid principle of law was misread and misunderstood by the learned trial court to mean that a conviction can be recorded on solitary statement of a witness who has disowned his testimony of examination-in-chief and has turned hostile during the beginning of the cross-examination. No doubt, where other reliable and trustworthy evidence is available on record, the same can be used in support thereof.
48. Otherwise also, the learned trial court should have tested and scrutinized the evidence of PW-1 Ram Prasad carefully before deposing confidence on him, particularly when mother and brother of the deceased were also examined and they did not support the prosecution version. PW-1 Ram Prasad is father of deceased. PW-2 is mother who is not supporting prosecution version. It cannot be said that daughter will not tell about the ill-treatment done with her in her sasural to her mother. Mother is primary caretaker of her children in the house. Often children tell about their grief, sufferings to their mother who tell it to the father. On the contrary it cannot be possible to conceal such things from mother and to disclose it before the father only. Even brother may also not remain unknown to such fact. Further PW-1 has stated categorically in his cross-examination that her daughter committed suicide and set herself ablaze on account of being prevented from making higher studies. This cause behind her suicide is again supported by the mother of deceased PW-2 and brother PW-8. In such circumstances, it was not proper and safe to place reliance on his statement given in examination-in-chief, so as to hold the appellants guilty, particularly when there was no specific mention of any incident of dowry demand and harassment or any cruelty of such nature which could drive the deceased to end her life. On the contrary, they have stated that she was ill-tempered and she herself committed suicide.
49. Thus, I find that the evidence of PW-1 as made during examination-in-chief is shaky, unreliable and not worthy of credence. Other witnesses have not supported the prosecution version, therefore, prosecution has miserably failed to prove the charges against the appellants under Section 304B, 498A I.P.C. and ¾ Dowry Prohibition Act.
50. Consequently the finding recorded by learned trial court becomes perverse and conviction based on it cannot sustain. The judgment and order dated 28.09.2019 is, hereby, set aside.
51. Accordingly, the appeals are allowed. Appellants, if in custody, are directed to be released forthwith, if not wanted in any other case.
52. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 7th October, 2021
Ashok Gupta
(Hon'ble Subhash Chandra Sharma, J.)
