Bhagwandeen And Ors.3 vs State Of U.P.
2022 Latest Caselaw 11152 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No.21                                                                                  Reserved
 
Case :- CRIMINAL APPEAL No. - 507 of 2002
 
Appellant :- Bhagwandeen And Ors.3
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dhananjay Kumar Singh,Rajesh Kumar,Suhail Kashif,Vijai Shankar Singh
 
Counsel for Respondent :- Govt.Advocate
 
And
 
Case :- CRIMINAL APPEAL No. - 567 of 2002
 
Appellant :- Ram Achal
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dhannanjay Kumar Singh,Begum Sabiha Kamal,Rajesh Kumar,Suhail Kashif
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Rajeev Singh,J.

1. Heard learned counsel for the appellants as well as Shri Rajiv Verma, learned A.G.A. for the State and perused the lower court record.

2. Both the appeals have been filed by appellants against the Judgment and order dated 16.03.2002 passed by learned Additional Sessions Judge, Court No.4, Barabanki in S.T. No.11 of 2001, whereby convicting the appellants under Sections 304B & 498A I.P.C. and sentencing Bhagwandeen (appellant No.1 of Criminal Appeal No.507 of 2002) for 8 Years' R.I. and for 1 year of imprisonment with a fine of Rs.1,000/- (in default of payment of fine, further imprisonment of 3 months) respectively, Balai @ Pannalal (appellant No.2 of Criminal Appeal No.507 of 2002) for 7 years of imprisonment and 1 year of imprisonment with a fine of Rs.1,000/- (in default of payment of fine, further imprisonment of 3 months) respectively and to both Birjoo & Smt. Dashratha (appellant Nos.3 & 4 of Criminal Appeal No.507 of 2002) for 7 Years' R.I. and 1 Year's R.I. with a fine of Rs.1,000/- (in default of payment of fine, further R.I. for 3 months) respectively, and Ram Achal (appellant of Criminal Appeal No.567 of 2002) for 10 Years' R.I. and one and a half years' R.I. with a fine of Rs.2,000/- (in default of payment of fine, further 6 months R.I.) respectively. The aforesaid appeals are being decided by way of common judgment.

3. The brief facts of the case of prosecution is that the marriage of the daughter of the informant was solemnized with Ram Achal (one of the appellant) about 4 years ago from the date of incident. As per the capacity of the informant, dowry was given, but he was unable to give gold chain and cycle, therefore, the appellants were taunting her daughter for less dowry, she was also being victimized and kept hungry for days. One daughter was born out of their wedlock and whenever the informant visited the house of his daughter, then she reported her victimization in weeping condition by saying that her husband, brother-in-laws, mother-in-law and father-in-law are very cruel persons and often they start demanding gold chain and cycle and was also being beaten. She was also blamed for giving birth to a daughter and was also told that she will be eliminated, and thereafter second marriage of Ram Achal (one of the appellant) will be solemnized. The informant tried to convince his daughter as well as her in-laws and his daughter was also saying that her in-laws would kill her by giving poison. On 25.02.2000 at about 9 A.M., brother-in-law (devar) of the daughter of the informant came to the house of informant and told that Bhabhi (daughter of the informant) is not well and also requested him to come and see his daughter. Informant felt suspision that his daughter might be victimized. Informant immediately along with his wife-Rajesh Kumari, cousin-Maya Ram and co-villagers- Mangal & Banwari moved towards the house of his daughter where they found that his daughter was lying dead and her body was bluish. Husband of the deceased and other in-laws were not present at the house. Informant suspected that his daughter was killed by her in-laws by giving poison. Immediately, he along with others went to the Police Station and reached there in the afternoon and narrated the incident to the S.H.O., but in place of lodging the F.I.R., they were confined in the Police Station for the whole day and S.H.O. also obtained thumb impression of the informant on the blank paper and later, they were ousted, but the informant and other associates were seeing the activities of in-laws of her daughter by hiding themselves and in the evening at 07:00 P.M., after they were released from the Police Station, they went to the house of her daughter, but the door was locked and no one was there. It was informed to the informant that last rites of her daughter was conducted in presence of the S.H.O., he reached on the place of funeral and saw that S.H.O. was coming back and he gave a threat to the informant and others not to do any action otherwise, they will face the circumstances. Under compulsion, he along with others came back and then moved an application to the Superintendent of Police concerned and requested for lodging of the F.I.R., and thereafter, F.I.R. was lodged as Case Crime No.47 of 2000, under Sections 498A, 304B, 201 I.P.C. and Sections 3/4 of D.P. Act, Police Station Kothi, District Barabanki on 24.03.2000. After investigation, charge sheet was filed against the appellants, under Sections 498A, 304B, 201 I.P.C. and Section 3/4 of D.P. Act. The appellants denied the guilt and requested for trial.

4. The prosecution relied on five witnesses, namely, Putti Lal (P.W.1) (informant), Smt. Rajesh Kumari (mother of the deceased) (P.W.2), Head Mohrir Ram Sevak Pandey (P.W.3), Circle Officer, Mahendra Yadav (P.W.4) and Circle Officer, Shailendra Kumar Singh (P.W.5). The prosecution also relied on six documentary evidences. After completion of the prosecution witnesses, statement under Section 313 Cr.P.C. was recorded, in which, appellants stated that marriage of Ram Achal was solemnized 15 years ago with the daughter of the informant as she was suffering from ailment and she was under treatment by the traditional medicines and information about her death was reported and all the family members of the deceased were present at the time of funeral and thereafter, defence witnesses, namely, Siya Ram (D.W.1) and Maya Ram (D.W.2) were also produced and documentary evidence A-74 Ration Card of Shri Panna Lal as well as his medical disability certificate were also placed on record.

5. Learned counsel for the appellants submitted that the learned trial court convicted the appellants without considering the evidence of the prosecution as well as defence evidence. He further submitted that in the deposition of P.W.1, he stated that Bhagwan Deen (brother-in-law of the deceased) came to his house and informed that his daughter is sick, then he immediately went along with his wife and found that his daughter was lying dead and some sign of injuries are also found on her body, her body was bluish and all the accused persons, locked the house and ran away. He went to the Police Station, but his F.I.R. could not be lodged and he was confined in the Police Station up to 07:00 P.M, thereafter he came back to the house of his daughter, but funeral of the body of his daughter had already done, then he moved a complaint for lodging of the F.I.R. and the case was registered. In his deposition, he also stated that paavpooji (ceremony of worship of feet of his daughter at the time of marriage) was done in the year of 1985-86.

6. Learned counsel for the appellant submitted that P.W.2 Smt. Rajesh Kumari (mother of the deceased) was also examined and there is a contradiction in the deposition of P.W.1 & P.W.2. He further submitted that P.W.3 Head Mohrir Ram Sewak Pandey was examined, who registered the F.I.R., P.W.5 Circle Officer Shailendra Kumar Singh was also examined who conducted the investigation of the case. He further submitted that defence witnesses, namely, Siya Ram (D.W.1) as well as Maya Ram (D.W.2) were examined and cross-examined and Siya Ram, who is the cousin brother of the informant, categorically stated that 15 years ago from the date of incident marriage of the deceased was solemnized with Ram Achal and they participated in the marriage ceremony and he was proposer of the marriage. In his deposition, he also stated that the deceased was sick since long and it was a natural death and the news of her death was reported to the informant and other family members. He also admitted, in his deposition, that on the information of death of the deceased, informant, D.W.2 and other family members reached at the house of Ram Achal, and thereafter funeral of the body of the deceased was conducted. Siya Ram (D.W.1) was also cross-examined by the prosecution and he categorically deposed that after about 15 years from the date of marriage, deceased died and he categorically denied the suggestion of the prosecution that the deceased died after 4 years from the date of marriage.

7. Learned counsel for the appellants has submitted that Maya Ram (D.W.4), who is the cousin of the informant, in his deposition, categorically deposed that the deceased was his cousin sister and after receiving the information about her death, he, his uncle (informant/father of the deceased) and other family members of the deceased along with villagers went to the house of the deceased/accused persons. In their presence, funeral of the body was conducted, thereafter, they all came back. Deposition D.W.1 (cousin brother of the informant) as well as D.W.2 (cousin of the informant) were not considered by the learned trial court and convicted the appellants as the defence witnesses have categorically deposed that the information about the death of the deceased was received, then they reached at the house of the deceased and in their presence, funeral of her body was conducted. Therefore, the criminal appeals are liable to be allowed.

8. Learned Additional Government Advocate. vehemently opposed the prayer of the appellants and submitted that deceased died within 7 years of her marriage and trial court has rightly convicted the appellants and no interference is required, but he does not dispute this fact that trial court did not found any evidence for the offence of Section 201 I.P.C. and Sections 3/4 of D.P. Act. He also does not dispute this fact that D.W.1 & D.W.2 are the close relatives of the informant and deceased and they stated that on the death of the daughter of the informant (P.W.1), they along with the informant and others came to the house of the deceased and participated in her funeral.

9. Considering the arguments of learned counsel for the appellants as well as learned Additional Government Advocate and going through the lower court record, it is evident that D.W.1 & D.W.2, namely, Siya Ram and Maya Ram are the cousins of the informant and deceased respectively and they categorically stated that they along with informant and others went to the house of accused persons/deceased after hearing the information of death of the deceased and they participated in the funeral, thereafter, they came back. It is also evident from the record that the alleged incident of death was taken place on 25.02.2000 and brother-in-law of the deceased had given information to the informant. It is also evident in the deposition of defence witnesses that P.W.1 Putti Lal (informant/father of the deceased), P.W.2 Smt. Rajesh Kumari (mother of the deceased), D.W.1 Siya Ram (cousin brother of informant), D.W.2 Maya Ram (nephew of the informant) and other villagers came to the house of the deceased and thereafter, funeral of the body of the deceased was conducted in their presence. After about one month from the date of incident, F.I.R. in question was lodged with the allegation that the informant went to the Police Station, but his F.I.R. was not lodged and body of the deceased was disposed of, but D.W.2 Maya Ram (nephew of the informant) has categorically stated that funeral of the body of the deceased was conducted in their presence, and thereafter, they came back to the home. Hence, trial court has committed error not considering the statements recorded under Section 313 Cr.P.C. as well as deposition of D.W.1 & D.W.2 as there is no evidence of victimization in their deposition. It is also evident that P.W.1 Putti Lal admitted in his deposition that pavpujee ceremony (it is performed at the time of marriage) was done in 1985-86, thereafter, deceased stayed at her in-laws' house as the date of incident is of dated 25.02.2000. D.W.1 Siya Ram (cousin brother of the informant/uncle of the deceased), in his deposition, stated that marriage of deceased was solemnized about 15 years ago. In such circumstances, it is crystal clear that the marriage of deceased was solemnized 15 years ago from the date of incident, this was also not considered by the trial court.

10. As it is well settled by the Hon'ble Supreme Court in the case of Kashmir Kaur and Another vs. State of Punjab reported in (2012) 13 SCC 627 that following principles must be satisfied for conviction in the case of dowry death. Para-17 of the judgment reads as under:-

"17. From the above decisions the following principles can be culled out:

17.1. To attract the provisions of Section 304-B IPC the main ingredient of the offence to be established is that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry.

17.2. The death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal.

17.3. Such death occurs within seven years from the date of her marriage.

17.4. That the victim was subjected to cruelty or harassment by her husband or any relative of her husband.

17.5. Such cruelty or harassment should be for or in connection with demand of dowry.

17.6. It should be established that such cruelty and harassment was made soon before her death.

17.7. The expression "soon before" is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence.

17.8. 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 of the Evidence Act.

17.9. Therefore, 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 or live link between the effect of cruelty based on dowry demand and the death concerned. In other words, it should not be remote in point of time and thereby make it a stale one.

17.10. However, the expression "soon before" should not be given a narrow meaning which would otherwise defeat the very purpose of the provisions of the Act and should not lead to absurd results.

17.11. Section 304-B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour. The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304-B.

17.12. Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304-B were not satisfied.

17.13. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected, the time of her death and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients are satisfied it will be called "dowry death" and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence."

11. In view of the above, this Court is of the view that trial court has committed error in dealing the evidence of P.W.1, P.W.2, D.W.1, D.W.2 as well as statement recorded under Section 313 Cr.P.C. as the prosecution fails to establish that deceased died within 7 years of her marriage, but in the evidence, it is found that deceased died after 15 years from her marriage and at the time of funeral family members were also present.

12. In view of the discussion made hereinabove, both the appeals are hereby allowed and the judgment and order dated 16.03.2002 passed by learned Additional Sessions Judge, Court No.4, Barabanki in S.T. No.11 of 2001, undler Sections 498-A, 304B I.P.C. arising out of Case Crime No.47 of 2000 related to Police Station Kothi, District Barabanki is hereby set aside.

13. It is evident from the record that accused/appellants, namely, Ram Achal (Criminal Appeal No.567 of 2002) and Bhagwandeen & Balai alias Pannalal (Criminal Appeal No.507 of 2002) are in jail. They shall be released forthwith, if not wanted in any other criminal case.

14. It is further directed that the appellants, namely, Bhagwandeen, Balai alias Pannalal, Birjoo, Smt. Dashratha and Ram Achal shall furnish bail bond with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.

15. Let the lower court record along with the present order be transmitted to the trial court concerned for necessary information and compliance forthwith.

(Rajeev Singh,J.)

Order Date :- 24.08.2022

S. Shivhare/Amit/-