Dharm Chandra Yadav vs State
2022 Latest Caselaw 11624 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

		Judgment Reserved on 06.8.2022
 
                   Judgment Delivered on 30.08.2022
 

 
Court No. - 66
 

 
Case :- JAIL APPEAL No. - 2532 of 2006
 

 
Appellant :- Dharm Chandra Yadav
 
Respondent :- State
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Samit Gopal,J.

1. Heard Sri Arvind Yadav, learned Amicus-Curiae for the appellant, Sri Ankit Srivastava, learned Additional Government Advocate for the State of U.P. and perused the material on records.

2. The present appeal from jail has been preferred by the accused-appellant Dharm Chandra Yadav against the judgment and order dated 29.09.2005 passed by Additional Sessions Judge, Court No.6, Ghaziabad in Sessions Trial No.1060 of 2001 State Vs. Dharm Chandra Yadav and others by which the appellant has been convicted and sentenced under Section 304-B IPC to 7 years R.I. with fine of Rs.10,000/- and in default of payment of fine to one year additional imprisonment. Accused-appellant Ram Asrey Yadav was also tried for the offence under Section 304-B IPC read with Section 34 IPC but he was acquitted of the charges levelled against him by the same impugned judgment and order.

3. The prosecution case as per the First Information Report dated 19.06.2001 lodged on the basis of an application under Section 156(3) Cr.P.C. dated 3.3.2001 filed by Parashuram Yadav against Dharm Chandra Yadav is that his sister Sangeeta Yadav was married in May, 1994 to Dharm Chandra Yadav, S/o Ram Asrey Yadav. Her Gauna took place in the year 1999 after four years of her marriage and at the said time, the husband, his father and other family members were demanding a motorcycle from the father of the complainant but due to financial constrains he requested them to give it later on. His sister used to be tortured in her matrimonial house due to the same. She was given physical torture also. His sister told him about it when he went to meet her. She told that if motorcycle is not given, the persons will murder her or leave her. He came back to his house and told his father about it after which his father went there and consoled them and promised to give a motorcycle after six months. In the meantime his sister was about to deliver a child and as such she was called back home. After some days she gave birth to a daughter but neither did her in-laws provide any help nor did they take her back. She was in her maternal house. After lot of discussions with relatives and other people, her husband started visiting his house. In the meantime he said that if the girl is not sent then he will perform another marriage due to which the father of the first informant sent the girl in January, 2001 with her husband who took her to Ghaziabad and they started living in village Mahrauli, Police Station Kavinagar, Ghaziabad. The first informant and other persons used to live in district Ludhiana and were working there. On 14.02.2001 he received a call from his brother-in-law that his sister is ill and has been admitted in Sarvodaya Hospital, Ghaziabad after which on 15.02.2001 he reached the hospital but did not find anyone and then started a search. He came to know that his sister has died and the dead body was in the hospital. He then went to the house of his brother-in-law where he saw him talking to 2-3 persons. On seeing him he told him that Sangeeta has died after consuming poison and they may follow the suggestions given by him otherwise it would not be proper. He was detained there. The police performed the inquest and the post-mortem was done. The first informant also signed on the panchayatnama. Somehow he managed to go to his house on 18.02.2001 and then told his father and the family members of the entire episode. He then came to Ghaziabad with his father and gave an application to the police who assured them of action and sent them back home. After some days, the last rites of his sister were completed and then an application was again given through registered post on 3.3.2001 to higher police officials but no action was taken. He then prayed that appropriate orders be passed for lodging of his report and appropriate action. The said application is Exb: Ka-2 to the records. The same is supported by an affidavit dated 3.3.2001 of the complainant which is Exb: Ka-3 to the records.

4. On the basis of the said application an FIR was lodged on 19.06.2001 at 6.05 p.m. which was registered as Case Crime No.319 of 2001 under Section 304-B IPC, Police Station Kavinagar, District Ghaziabad against Dharm Chandra Yadav. The Chik FIR is Exb: Ka-4 to the records.

5. The post-mortem examination of the deceased was conducted on 15.02.2001 by Dr. Vinay Bhargava (P.W.7). The doctor did not find any mark of external injury on the body, the nails were cyanosed and the conjunctiva was congested. The cause of death could not be ascertained and hence viscera was preserved. The post-mortem report is Ext: Ka-6 to the records.

6. The viscera was sent to the chemical analyst who vide his report dated 24.1.2022 opined that the same contained Aluminum Phosphide in it.

7. The investigation concluded and charge sheet was submitted on 1.9.2001 as Charge sheet No.273 of 2001 against the appellant and Ram Asrey Yadav under Sections 304-B read with 34 IPC. The said charge sheet is Exb: Ka-14 to the records.

8. Vide order dated 8.10.2002 passed by the Additional Sessions Judge, Court No.10, Ghaziabad, the charges were framed under Section 302/34 IPC against both the persons. They pleaded not guilty and claimed to be tried.

9. The prosecution in order to prove its case, examined Parashuram, the first informant as P.W.1, Mahesh Yadav as P.W.2 who is the father of the deceased and also father of the informant Parashuram Yadav, Shree Ram Yadav as P.W.3 who is the brother of the deceased, Rajnath Yadav as P.W.4 who is the maternal uncle of the deceased, Shyam Lal as P.W.5 who is the mediator of the marriage, Head Constable Nempal Singh who transcribed the Chik FIR as P.W.6, Dr. Vinay Bhargava as P.W.7 who conducted the post-mortem examination of the deceased, Harveer Singh as P.W.8 who conducted the inquest on the dead-body of the deceased in Sarvodaya Hospital, Ghaziabad and Shree Ram Suresh as P.W.9 who was posted as Circle City-II who is the Investigating Officer of the case.

10. The accused Dharm Chandra Yadav in his statement under Section 313 Cr.P.C. stated that he was being pressurized to marry the younger sister of the deceased which he refused and as such he was implicated in a false case.

11. He never asked for any dowry from his wife and never beaten his wife. The trial court after going through the evidence and the material on record, came to a conclusion that the accused Dharm Chandra Yadav is guilty of an offence under Section 304-B IPC as the deceased Smt. Sangeeta has died within 7 years of marriage and there was a demand of dowry of a motorcycle for which she used to harass and torture and as per Section 113-B of the Indian Evidence Act, it would be presumed that she has been murdered by accused Dharm Chandra Yadav who was thus convicted and sentenced by the impugned judgement and order as stated above. The accused Ram Asrey Yadav was acquitted of the charges levelled against him under Section 302/34 IPC.

12. P.W.1 Parashuram Yadav is the brother of the deceased Sangeeta who is the person who had moved an application on 3.3.2001 supported by an affidavit of the same day under Section 156(3) Cr.P.C. before the court concerned on which an order was passed for registration and investigation after which present FIR was lodged. He reiterates the version as stated by him in his application moved under Section 156(3) Cr.P.C. He states that his sister has been murdered due to non-fulfillment of demand of dowry by given her poison.

13. P.W.2 Mahesh Yadav is the father of the deceased Smt. Sangeeta who also reiterates the version as given in the FIR. He further states about the reason for moving the application under Section 156(3) Cr.P.C. In his cross-examination he states that he does not know as to how much was the cost of the motorcycle. At the time of demand of motorcycle, 40-45 people were present. The second time when motorcycle was demanded, apart from his family members, Shyam Lal, Rajnath and Ram Roop were also present. He met his daughter at the time of her bidai and after one month and fourteen days she died. He states that Dharm Chandra Yadav works in a dairy but does not know regarding his salary. He did not meet accused persons after the death of his daughter. He did not talk to his daughter before her death on phone. He states of his son moving application previously before police. He denies the suggestion that Ram Asrey is living in his village since the marriage of his daughter. He further denies to the suggestion that he wanted Rs.1 lakhs to be deposited in the name of his wife but since the same was not deposited, a false case is being registered.

14. P.W.3 Shree Ram Yadav is the brother of the deceased Smt. Sangeeta. He states that prior to the marriage, there was no discussion with regards to motorcycle but when barat had come, there was a demand of motorcycle with a threat that if the same is not given, barat will go back. The relatives intervened and it was stated that it will be given in gauna. In 1999 gauna ceremony took place and even then motorcycle was demanded for which inability was shown. His sister was taken by her in-laws. It was told to them that motorcycle will be given in 2-4 months. After 2-4 months, his younger brother Shree Kant went to meet his sister. He states that Parashuram had gone to meet his sister. His sister told him that they will murder her if motorcycle is not given. He then came back home and told his father. His sister was pregnant at that time. His father then brought his sister to his house where she gave birth to a child. In January, 2001, his brother-in-law took his sister to Ghaziabad. On 14.02.2001 Parashuram received a phone call after which he went to Ghaziabad and went to Sarvodaya Hospital where his sister was lying dead. His brother came back home and told to his father that Dharm Chandra and Ram Asrey have given poison to her and murdered her. In his cross-examination, he states that he is educated. He did not make any report regarding any torture or demand from his sister. Shyam Lal who is the mediator of the marriage and persons of village of Ram Asrey had come in barat. He does not know about the property of Ram Asrey. He denies the suggestion that his sister died after consuming the poison. He states that prior to the death of his sister, he had not gone to Ghaziabad or Mahrauli. He went there after 3 days of her death. His statement was recorded after about 1½ to 2 months by the Investigating Officer. To a suggestion that there was no demand of motorcycle and he along with his father and brother are giving false statement, he denies.

15. P.W.4 Rajnath Yadav is the maternal uncle of the deceased Smt. Sangeeta who states that the marriage of the deceased with Dharm Chandra Yadav was solemnized in the year 1994 which he attended. He states of the demand of motorcycle at the time of marriage to which the father of the girl showed his inability. The persons then consoled them and then they had their food. Gauna ceremony was solemnize in 1999 and there was demand of motorcycle again, on which time of 2-4 months was sought. The accused then took the deceased with them after bidai. Later on he with the daughter of the girl went to Katia where the deceased told them that if they do not give motorcycle then she will be murdered or left. Later on he came to know that Sangeeta has been taken by the accused persons to Ghaziabad and then he came to know through Parashuram that the accused have murdered her due to non-fulfillment of dowry.

16. P.W.5 Shyam Lal was the mediator of the marriage. He states of the marriage between the deceased and Dharm Chandra Yadav in the year 1994. He states that there was a demand of motorcycle when the accused sat for dinner after which they were consoled and were told to be given later on. Gauna ceremony was solemnized in the year 1999. He was present in the marriage and gauna both. In gauna motorcycle could not be given and then accused were consoled and the girl was sent after bidai. He came to know from Parashuram that the accused persons have murdered Sangeeta by giving poison.

17. P.W.6 Nempal Singh was the head constable at Police Station Kavi Nagar who transcribed the chik FIR on the basis of application moved under Section 156(3) Cr.P.C. by Parashuram. He proves the same.

18. P.W.7 Dr. Vinay Bhargava posted was as Physician in District Hospital, Ghaziabad. He conducted the postmortem examination of the deceased. Details of the same have already been given above. He states that the death could have been possible by giving poison.

19. P.W.8 Harveer Singh Head Constable posted at Police Station Kavinagar conducted the inquest on the dead-body of the deceased in Sarvodaya Hospital, Ghaziabad. He selected five witnesses to the same and got their signatures done and also wrote about their opinion in it.

20. P.W.9 Shree Ram Suresh was the C.O. City-II and the Circle Officer of the place. He recorded the statement of the witnesses and sent the viscera for it's examination to the chemical examiner. He arrested the accused Dharm Chandra on 16.08.2001 and co-accused Ram Asrey on 19.08.2001. He submitted charge sheet no.273 of 2001 dated 01.09.2001 under Section 304-B/34 IPC against the accused persons. The trial court thus convicted and sentenced the accused appellant as stated above.

21. Learned counsel for the appellant argued that there is no credible evidence with regards to the exact date and time of marriage of the deceased Smt. Sangeeta with the accused-appellant Dharm Chandra. It is argued that the accused in his statement under Section 313 Cr.P.C. in reply to question no.1 to the marriage of his with the deceased being solemnized in May, 1994 has stated that the marriage was solemnized on 27.1.1993. It is argued that there is no evidence whatsoever coming forward that the appellant gave poison to the deceased. It is argued that as per the prosecution version itself, the incident is alleged to have taken place on 15.02.2001 but the application under Section 156(3) Cr.P.C. along with an affidavit has been moved on 3.3.2001 which is after about 18 days of the incident. It is further argued that the witnesses as produced from the side of the prosecution are interested and related witnesses. The postmortem report is suggestive of the deceased committing suicide by consuming poison and the same would further go to show that there was no harassment, torture or cruelty to the deceased as the doctor did not find any bodily injury on her person. As per prosecution case itself, the deceased gave birth to a child which would go to show that the couple were leading a happy married life. It is argued that the present case is such where the date of marriage is not proved but to the contrary an exact date has been given in the statement under Section 313 Cr.P.C. of the appellant which would take the case out beyond the purview of Section 304-B IPC. Non receipt of any injury on the body of the deceased would go to show that there was no harassment or cruelty to her soon before her death and further the birth of a child would show that the couple were living happily and leading a happy married life and as such the appellant is entitled to benefit of doubt and deserves to be acquitted as such.

22. It is argued that looking to the same the present appeal deserves to be allowed and the impugned judgement and order of conviction deserved to be set aside.

23. Per contra, learned Additional Government Advocate opposed the arguments of learned counsel for the appellant and argued that the appellant is named in the FIR. The appellant is the husband of deceased Smt. Sangeeta. The case of the prosecution stands that the marriage of the deceased was solemnized in May, 1994 after which her gauna was done in 1999. The deceased died in her matrimonial house. The viscera report shows that the cause of death was poison which was found in it. The death is unnatural. The appellant being the husband of the deceased thus deserves to be convicted and the present appeal deserves to be dismissed.

24. After having heard learned counsel for the parties and perusing the records, it is evident that the appellant is the husband of the deceased Smt. Sangeeta. The date of marriage although is stated to be May, 1994 which is disputed by the accused in his statement under Section 313 Cr.P.C., where he states that he was married on 27.01.1993. The deceased as per postmortem was although found to have received no bodily injury but the viscera was preserved which after examination was found to have contained Aluminum Phosphide poison. P.W.5 Shyam Lal was the mediator of marriage who also states of marriage being solemnized in the year 1994 and then gauna being solemnized. He states of demand of motorcycle at both the times by the accused persons. He in no manner is related to the first informant or his family. Even there is no cross-examination to the effect that he is a related person to that of the first informant and his family members. The mere giving of date in the statement under Section 313 Cr.P.C. without there being any other corroborating evidence would be unsafe to be believed. The statement under Section 313 Cr.P.C is not evidence. The answer given in the same by an accused can not be trusted and relied ipso-facto without there being any basis and/or corroboration. The prosecution with regards to the date of marriage of the accused appellant with the deceased was constant throughout. The same is not at all contradictory in any of the versions of the other witnesses. Even there is no cross-examination to the said effect done from the side of the accused of the said witnesses pertaining to the said date to be incorrect or any date of marriage to be correct. The death of the deceased has taken place within seven years of marriage in her matrimonial house which is unnatural. There is no explanation whatsoever coming from the side of the appellant who is the husband of the deceased regarding the same. The prosecution has thus succeeded in proving it's case beyond reasonable doubt.

25. Looking to the facts and circumstances of the case and in view of the above discussion, the appeal is dismissed. The impugned judgement and order of conviction is hereby affirmed.

26. The appellant as per the records was in jail. He shall serve out the sentence as awarded to him if not already served out.

27. Sri Arvind Yadav, learned Amicus Curiae who was appointed Amicus Curiae vide order dated 02.08.2022 passed by this Court, assisted the Court in deciding the appeal.

28. Office is directed to pay a sum or Rs.8,000/- for assistance of the Court to learned Amicus Curiae within two months from today.

29. Office is directed to transmit the copy of this judgement along with the lower court records to the court below forthwith for its compliance and necessary action.

          (Samit Gopal, J.)

Dt.30.08.2022

Gaurav