Brijendra Singh vs State Of U.P.
2022 Latest Caselaw 10367 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 447 of 2002
 

 
Appellant :- Brijendra Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shishir Pradhan,A.K.Dubey,Amit Kumar Srivastava,Anupam Srivastava,R.P.Tripathi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Ajai Kumar Srivastava-I,J.

1. The instant Criminal Appeal has been filed to assail the judgment and order dated 14.02.2002 passed by the VIIth Additional Sessions Judge, Raebareli in Sessions Trial No.486/1999 arising out of Crime No.78/1999, Police Station Naseerabad, District Raebareli, "State Vs. Brijendra Singh & Other", whereby the appellant has been convicted under Section 304-B, 498-A I.P.C. and Section 4 of Dowry Prohibition Act and he was sentenced to ten years' rigorous imprisonment under Section 304-B I.P.C., two years' rigorous imprisonment under Section 498-A I.P.C. and one year's rigorous imprisonment under Section 4 of the Dowry Prohibition Act alongwith fine of Rs.2,500/- and in default of payment of fine, the appellant was further directed to undergo one year's additional rigorous imprisonment. All the sentences were directed to be run concurrently.

2. The prosecution case, in brief, is that the first informant, Awadhesh submitted a written report to Police Station Naseerabad, District Raebareli stating therein that marriage of his niece, Vineeta was solemnized with the appellant Brijendra Singh. They have given sufficient dowry in marriage. However, whenever the niece of the first informant used to come to his house, she used to tell about the cruelty meeted out to her by the appellant and his family members. She was taken to her in-law's house on 14.07.1997. When on 25.07.1999, the first informant went to the house of the appellant to ascertain well being of his niece, he was informed by the victim that she was being harassed by the appellant and his family members due to non fulfillment of demand of colour television and fridge etc. He consoled her niece and came back to his house. However, on 01.08.1999, he came to know that his niece has been done to death by setting her ablaze by the appellant and his family members.

3. On the basis of aforesaid written report, Ex. Ka-1, the first information report, Ex. ka-15 came to be lodged at Police Station Naseerabad, District Raebareli.

4. The Investigating Officer recorded the statement of witnesses under Section 161 Cr.P.C. He visited the place of occurrence and prepared a site plan thereof and upon conclusion of the investigation, he submitted charge sheet against the appellant.

5. The post mortem on the cadaver of deceased was conducted by P.W.-5, Dr. Deepak Kumar Srivastav. The cause of death, as per post mortem report, Ex. Ka-14 was reported to be asphyxia due to strangulation. The hyoid bone was also reported to be fractured.

6. The prosecution, in order to bring home guilt of the appellant, had examined P.W.-1, the first informant, Awadhesh Singh, P.W.-2, Sahab Baksh Singh, P.W.-3, Premchand, P.W.-4, Ram Sajeevan, P.W.-5, Dr. Deepak Kumar Srivastav and P.W.-6, Head Constable Kamlashanker Tiwari.

7. After the conclusion of prosecution evidence, statement of accused appellant was also recorded under Section 313 Cr.P.C., wherein he has stated that he has never demanded any dowry from the first informant or the deceased. He has been falsely implicated in this case because he happened to be husband of the deceased.

8. The learned trial court vide impugned judgment and order dated 14.02.2002 has convicted the appellant under Section 304-B, 498-A I.P.C. and Section 4 of Dowry Prohibition Act and has sentenced as aforesaid. Hence this appeal.

9. The report of Jailer dated 01.08.2022 reveals that the appellant has already served out sentence and deposited fine. Thereafter, he has been release from jail.

10. No one has appeared in this appeal to argue the same for appellant. However, having regard to the fact that this appeal was filed in the year 2002 and is very old, the same is proposed to be disposed of on the basis of available record and with the assistance of learned A.G.A. for the State, Sri Alok Saran.

11. The main grounds which have been taken to assail the impugned judgment are that the appellants never demanded any dowry from the first informant or from victim. The victim was never treated with cruelty by the appellant or his family members. No such demand was made either from the first informant or from the victim 'soon before her death'. Therefore, the conviction and sentence awarded by the impugned judgment and order would not be sustainable in law.

12. Having perused entire record available before this Court and upon close scrutiny of testimonies of prosecution witnesses, it transpires that the first informant, P.W.-1, Awadesh Singh has stated in his testimony that his niece, the victim was married to the present appellant. The appellant and his family members kept demanding colour television and fridge from the first informant and the deceased. Due to non fulfillment of aforesaid demand, the victim was treated with cruelty by the appellant and his family members and she was ultimately done to death. The date of marriage of deceased with appellant, according to prosecution is 18.06.1993. This fact has been proved by the P.W.-1, Awadesh Singh and P.W.-2, Sahab Baksh. The marriage card was also produced and proved by the prosecution as material Ex.-1 and Ex.-2 respectively.

13. The learned trial court has taken care of the fact that the appellant did try to prove that the marriage was solemnized on 18.06.1992 instead of 18.06.1993 by producing D.W.-1, Durga Singh, D.W.-2, Jairam Singh and D.W.-3, Prayag Dutt Shukla. However, the learned trial court, after due appreciation of the evidence has rightly repelled the contention of defence that the date of marriage is 18.06.1992. The learned trial court has also found that the deceased died an unnatural death within seven years of her marriage. This fact stands corroborated and proved by the post mortem report, Ex. Ka-14 wherein hyoid bone of the deceased was found broken. This clearly indicates application of external force on her neck which ultimately caused her death. This fact has also been supported by Dr. Deepak Kumar Srivastav, P.W.-5.

14. The prosecution has, thus, been able to prove on the basis of reliable and cogent testimonies of prosecution witnesses of fact that the marriage of niece of first informant, P.W.-1, Awadesh Singh was solemnized with the present appellant. The appellant and his family members were demanding fridge and colour television from victim. Due to non fulfillment of demand of aforesaid articles, the victim was treated with cruelty, who ultimately died unnatural death, which according to post mortem report, Ex. Ka-14 was asphyxia due to strangulation. The hyoid bone was found broken.

15. Thus, having regard to the fact that the prosecution has successfully proved the existence of aforesaid ingredients, the trial court has rightly raised presumption as envisaged under Section 113-B of the Indian Evidence Act, 1872. There is nothing on record to show that the fact of unnatural death of niece of the first informant was conveyed to the first informant either by the appellant or by any of his family member. Thus, the finding of guilt recorded by the learned trial court in respect of appellant under Section 304-B, 498-A I.P.C. and Section 4 of Dowry Prohibition Act appears to be incomplete conformity with the prosecution evidence available on record wherein no infirmity is decipherable.

16. Thus, finding of guilt of appellant under Sections 498-A, 304-B I.P.C. and Section 4 of Dowry Prohibition Act are liable to be affirmed which are accordingly affirmed. However, this Court finds that the ingredients of offence under Section 498-A I.P.C. are embedded in Section 304-B I.P.C. as one of the constituent of offence under Section 304-B I.P.C., therefore, this Court does not approve award of any separate sentence including that of fine for offence under Section 498-A I.P.C. to the appellant. The same is, therefore, set aside.

The appeal, for the reasons aforesaid, lacks merit which deserves to be dismissed and is hereby dismissed.

Let a copy of this judgment alongwith lower court record, if any, be sent to the learned trial court for information and necessary compliance.

Order Date :- 17.8.2022/Saurabh