Smt. Rajola And Others vs State Of U.P.
2022 Latest Caselaw 3227 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										A.F.R.
 
							Reserved On 08.02.2022
 
							Delivered On 18.05.2022
 

 
Case :- CRIMINAL APPEAL No. - 3246 of 2012
 

 
Appellant :- Smt. Rajola And Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- .,Noor Mohammad (Junior),Yogesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate,Ali Hasan
 

 
Connected With
 

 
Case :- CRIMINAL APPEAL No. - 3641 of 2012
 

 
Appellant :- Sunil Kumar Yadav
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Jitendra Kumar Lodhi,Harish K.Yadav,Manu Khare,Yogesh Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Subhash Chandra Sharma,J.

(Delivered by Hon'ble Subhash Chandra Sharma,J.)

1. These criminal appeals arise from the judgment and order dated 31.07.2012 passed by the Additional District & Sessions Judge, Court No. 3, Jhansi in Sessions Trial No. 133 of 2007 (State Vs. Sunil Kumar Yadav and another), arising out of Crime No. 193 of 2006, under Section 302 read with Section 34, 498-A IPC & Section 4 Dowry Prohibition Act, Police Station Erach, District Jhansi, whereby the appellants Smt. Rajola, Raj Kumar @ Majhaley, Smt. Ram Dulari @ Uma, Neetu @ Ram Kumar and Sunil Kumar Yadav have been convicted and sentenced under Section 302/34 IPC with life imprisonment and fine of Rs.10,000/- each; in default of payment of fine to undergo additional imprisonment for a period of six months; under Section 498-A IPC with three years imprisonment and fine of Rs.2,000/- each; in default of payment of fine to undergo additional imprisonment for a period of two months and under Section 4 Dowry Prohibition Act with one year imprisonment and fine of Rs.1,000/- each, in default of payment of fine to undergo additional imprisonment for a period of one month.

2. The prosecution case in brief is that, on 01.11.2006 at about 5.10 a.m., an F.I.R. was lodged at the police Station Erach, District Jhansi by the informant Manmohan Singh, the father of the deceased r/o Village Puraini, Police Station Bhoganipur, District Kanpur Dehat by filing a written report stating therein that his daughter Smt. Anita Yadav aged about 26 years was wedded to Sunil Kumar Yadav R/s Village Dikauli, Police Station Erach, District Jhansi six years prior to the incident. Sufficient dowry was given in marriage, but his daughter told him that her husband Sunil Kumar, mother-in-law Smt. Rajola, brother-in-law Raj Kumar @ Majhale, his wife and younger brother-in-law Neetu aged about 20 years used to torture her in relation to the demand of Rs. One lac for purchasing a tractor. The first informant stated that he helped as much as he could to purchase the tractor. Again, they pressed his daughter to bring a motorcycle from her father and subjected her to harassment for not fulfilling their demand. His daughter informed him about this then he along with other members of his family went to village Dikauli and expressed their inability to pay money for the motorcycle and also asked to bring his daughter with him but they did not see her off. The first informant returned to his village. On 31.10.2006, in the night at about 8 p.m., his daughter phoned and told that the inmates of her sasural were beating her and pleaded him to rescue her. At that information, he along with the other family members arrived at the matrimonial home of his daughter at about 2 o'clock in the night where he found the door of the house closed from outside. He got it opened by Rameshwar, uncle of his son-in-law and there he found that his daughter Anita was lying dead in the room who was set ablaze. On the basis of the written report (Tahreer), the case was registered as Crime No. 193 of 2006 under Sections 498-A, 304-B IPC Section ¾ Dowry Prohibition Act. The detail of the case was entered in the G.D. report No. 6.

3. The investigation of the case was handed over to the circle officer Garautha.

4. The inquest of the deceased Smt. Anita, was conducted by S.I. Lalit Kishor on the same day and the report was prepared by him along with other relevant papers required for the purpose of post-mortem. Dead body was sealed and handed over to constable Satendra Kumar and Ram Sewak who brought it to the mortuary C.H.C. Mauranipur, Jhansi.

5. The post-mortem was conducted on 1.11.2006. It is mentioned in the post mortem report that the dead body brought by constable Satendra Kumar and Ram Sewak was received in a sealed cloth, seal on which tallied with the sample seal. The findings recorded in the post mortem report are as under:

External examination: age about 26 years, body of average built female with both upper limb flexed and both lower limb flexed. Body is in pugilistic attitude. Both eyes closed, mouth closed but semi opened & tooth looking between the lips.

Ante-mortem injuries: Superficial to deep burn present over the body except both buttocks upper and lower quadrant where line of redness present. Whole body is black in colour except normal area. Hair of scalp, burnt totally except at posterior part of head where hairs were unburnt (choti latak rahi hai).

Abdomen burst on upper part right side and from burst appearing loop of small intestine and liver lower part visible, both are blackish in colour. Right elbow joint is burnt where both upper end of the radius @ ulna bone exposed with blackish colour. Left elbow joint is burnt and left whole joint with underlying bone exposed.

Thorax: wall & ribs burnt. Pleura congested. Larynx, traccea and bronchi-sooty black particles present over the congested mucosa. Right & left lungs-congested and pericardium-congested. Heart-right side full, left side empty.

Abdomen: Wall burnt, peritoneum congested, Cavity only smell and gases present. Buccal Cavity, pharynx & teeth-16/16. Esophagus congested. Stomach contents about 50 ml semi digested food present. Small intestine semi digested food present. Large intestine faecal matter at places. Gall bladder congested. Pancreas congested. Spleen congested. Kidneys congested. Urinary bladder-empty. Generation organs NAD except burnt.

Time since death about 18 hours.

Cause of death was asphyxia due to antemortem burn.

6. During investigation, wet and dry soil along with burnt ash of clothes was taken into possession and recovery memo was prepared. An invitation card of marriage of the deceased was given by the informant and memo was prepared. After inspection of the place of occurrence, site plan was prepared and statements of witnesses conversant to the facts of the case were recorded. On the basis of the material collected during investigation, prima facie case was found to be made out against the accused under Sections 498-A, 304-B IPC & Section ¾ Dowry Prohibition Act and hence the charge sheet was submitted to the court concerned.

7. Learned Chief Judicial Magistrate took cognizance of the offences and provided copies of the prosecution papers in compliance of Section 207 Cr.P.C. to the accused persons and committed the case to the court of sessions for trial.

8. The trial court after taking into consideration the material on record, framed the charges against the appellants under Sections 498-A, 304-B IPC & Section 4 Dowry Prohibition Act and alternative charge under Section 302/34 IPC.

9. Charges were read-over and explained to the appellants, the accused appellants pleaded not guilty, denied the charges and demanded trial. Consequently, the case was fixed for prosecution evidence.

10. In support of its case, the prosecution examined P.W.1 Manmohan Singh who is the first informant and father of the deceased, P.W.2 Tulsiram, P.W. 3 Virendra Sigh Yadav both uncles of deceased as witnesses of fact, P.W.4 S.I. Rafiq Khan was Investigating Officer who prepared fard relating to the seized articles, recorded the statements of witnesses and submitted the charge sheet. P.W. 5 constable Ram Jiwan prepared chik F.I.R. on the basis of written report (tahreer) and made entry in the G.D., P.W. 6 Dr. R.P. Verma conducted the post-mortem and prepared the report. P.W. 7 Hammi Lal Verma C.O. investigated the case prior to P.W. 4 Rafiq Khan and prepared site plan and also recorded the statements of witnesses.

11. On conclusion of prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C. wherein they had denied all the allegations made against them including the date of marriage and also stated that the deceased committed suicide by setting herself ablaze because she was under depression being issue-less. Her cremation was performed by appellant Sunil Kumar in the presence of her father and uncle. About the invitation card, it was said to be a fabricated document. In addition thereto, the appellant Sunil Kumar further stated that his marriage was solemnized on 10.5.1998 without dowry. In the year 1999, they both became Voters in the gram panchayat. Since 2003, they had been living separately from other family members. The deceased could not concieve and as such she was under depression for about 6-7 months and on 31.10.2006 at about 10 A.M., while the accused Sunil Kumar was out in relation to the canvassing of the election of Dharmendra Rajpoot, he got information from Chatur Singh that his wife had committed suicide by setting herself ablaze. He immediately came back to his house and sent information to the police station through the village chaukidar and also informed his sasural (the informant) from S.T.D. Phone of Chatur Singh. The family and the first informant came there.

12. The dead body was handed over to him after inquest and post mortem and he performed the last rites of the deceased. The appellants Ram Dulari @ Uma and Smt. Rajola stated that they both went to the temple for Aarti at about 8 o'clock where they were informed by the villagers that smoke was coming from their house so they came back and found that Sunil Kumar was trying to open the doors of the room which was bolted from inside. With the help of the Lekhpal, door was opened where Anita was lying burnt and dead. The information was then given to Raj Kumar and Neetu who were in the field.

13. In defence, two witnesswes namely D.W. 1 Parshuram Yadav & D.W. 2 Lachchi Ram were examined.

14. The learned trial court passed the order dated 31.7.2012 for convicting and sentencing the appellants. Hence this appeal.

15. Heard Shri Yogesh Kumar Srivastava and Shri Noor Mohammad, learned Advocates for the appellants and Shri Rupak Chaubey and Ms. Arti Agarwal, learned A.G.As. for the State and perused the record.

16. Learned counsel for the appellants submits that the trial court has erred in convicting the appellants without considering and appreciating the evidence on record. The prosecution could not prove its case with cogent and reliable evidence. The appellants are innocent and have committed no offence as alleged. There are material contradictions in the statements of prosecution witnesses. The prosecution witnesses are relatives of the deceased. Learned trial court has not considered the fact that the deceased was issue less and was living in distress and committed suicide by setting herself ablaze when the appellants were not present at home. The appellants themselves had informed the parents of the deceased about her death. Initially the parents had no complaint and were satisfied that deceased had committed suicide but later in order to blackmail the appellants, a false case was registered against them. The appellants never subjected the deceased to cruelty in relation to the demand of dowry. It is further submitted that no injury was found on the person of the deceased which gives rise to the inference that deceased had committed suicide by setting herself at fire and the appellants had committed no offence. Lastly, it is submitted that the learned trial court without considering all these facts had convicted the appellants under Section 302 IPC whereas after the investigation, the offence under Sections 498-A, 304-B IPC & Section ¾ Dowry Prohibition Act was found to have been committed. The finding recorded by the learned trial court is based on conjuctures. Learned trial court has misinterpreted Section 106 of Indian Evidence Act to convict the appellants. The judgment in question, thus, pleaded to be erroneous and that the appellants deserve acquittal after allowing the appeals.

17. Learned A.G.A., in rebuttal urged that there is sufficient evidence on record on the basis of which the learned trial court has concluded that the appellants had committed the murder of the deceased inside their house by setting her ablaze. The burden to disclose the facts as to how she had died inside their house was on the appellants because of the said fact being in their special knowledge which can be explained by them only as per Section 106 of Indian Evidence Act. The appellants did not discharge the said burden and, therefore, their conviction is perfectly justified. There is sufficient evidence regarding the demand of dowry and harassment of the deceased in relation thereto by the appellants. Though the fact of death within seven years of marriage was proved by the prosecution but it was not relied by the learned trial court. The appellants were, therefore, convicted and sentenced under Section 302 IPC with the aid of Section 106 of Indian Evidence Act which cannot be said to be against law. The decision of the learned trial court is perfectly sound and the present appeals being devoid of merit are liable to be dismissed.

18. From the submissions made by the learned counsel for the parties, the first and foremost question arises for consideration by this Court is that whether the finding given by the learned trial court convicting the accused/appellants under Section 302 IPC with the aid of Section 106 of Indian Evidence Act and acquitting them under Section 304-B IPC on the basis of evidence on record is correct or not.

19. Before we deal with the contentions raised by the learned counsel for the appellants, it would be convenient to take note of the evidence adduced by the prosecution.

20. The prosecution had examined seven witnesses out of which P.Ws. 1 to 3 are the witnesses of fact.

21. P.W. 1 Manmohan Singh, the father of deceased, the first informant, stated that his daughter Anita was wedded to appellant Sunil Kumar Yadav on 23.4.2000 and that he offered dowry according to his capacity. Afterwards, her husband Sunil Kumar, mother-in-law Rajola, brother-in-law Raj Kumar @ Majhaley, his wife Smt. Ram Dulari @ Uma and younger brother-in-law Neetu @ Ram Kumar made demand of Rs. One lac for purchasing tractor. At this, he helped them as much as he could. They, again demanded for the motorcycle and when the said demand was not fulfilled, they subjected his daughter to harassment. His daughter informed him by telephone and also when she came to his house knowing that he along with the members of his family went to the village of her husband and expressed his inability to fulfill the demand and also requested to send his daughter with him but the in-laws of the deceased did not see her off, so he came back to his house. On 30.10.2006, his daughter informed him on telephone that she was being beaten because of the demand of motorcycle, on this the first informant assured her daughter that he would reach there after few days. On 31.10.2006 at about 8 o'clock, his daughter again called on telephone and said that her in-laws would kill her and told him to come soon. The first informant could reach to the matrimonial house of her daughter at the village Dikauli at about 2 o'clock in the night (2 a.m.) where he found that the door of the house was bolted from outside. He called Rameshwar, the uncle of appellant Sunil Kumar Yadav who was living nearby and got the door opened. His daughter was lying inside the room in the burnt state the inmates of the house were not present. P.W. 1 then went to the police station Erach with a written report on the basis of which the case was registered. P.W.1 proved the written report as Ext. Ka-1 being in his writing.

This witness was subjected to gruel cross-examination on the part of the defence but he had asserted the facts as narrated during the examination-in-chief, relating to the demand of dowry and the resultant harassment by the husband and in-laws of her daughter, the deceased.

22. P.W. 2 Tulsiram, is the uncle of the deceased, he also stated that the marriage of deceased was solemnized with Sunil Kumar Yadav on 23.4.2000. Adequate dowry in the shape of household articles such as utensils, Almirah, single bed and several other items as also gold ornaments, clothes were given. After marriage when his niece came back to her village Puraini, she told him and other members of her family that her husband Sunil Kumar Yadav, mother-in-law Rajola, brother-in-law Raj Kumar @ Majhaley, his wife Smt. Ram Dulari @ Uma and younger brother-in-law Neetu @ Ram Kumar made a demand of Rs. One lac for the tractor and also subjected her to cruelty. They also threatened her to leave her matrimonial house in case their demands were not fulfilled. P.W. 2 intervened and tried to help them as much as he could but the family members and husband of the deceased did not give up and again made a demand for motorcycle. Knowing that he along with his brother Manmohan Singh and Sahdev Singh went to Dhikauli where the appellants raised demand for motorcycle and told that if they wanted Anita to live in their house, their demands had to be fulfilled. P.W. 2 stated that he did not send her with them so they came back. On 31.10.2006 at about 8 o'clock, Anita told on the mobile that she was being beaten by her hsuband and in-laws and asked them to come soon otherwise she would be killed. On the said information, he along with his brother (P.W.1) and other members of his family went to the village Dhikauli in the night at about 2 o'clock (2 a.m.) where the door of the matrimonial house of the deceased was bolted from outside. They called Rameshwar, uncle of appellant Sunil Kumar who was living nearby and got the door opened, where they saw Anita lying inside the room in the burnt state. No inmate of the house was present inside. The report of the offence was lodged by his brother Manmohan Singh at the police station. The inquest of deceased Anita was conducted in his presence and he had identified his signature on the inquest report, as Ext. Ka-2.

This witness (P.W.2) has also been subjected to gruel cross-examination on the part of the learned counsel for appellants but he firmly asserted the facts relating to the date of marriage, demand of dowry and harassment of the deceased at the hands of her husand and in-law as narrated by him during the examination-in-chief.

23. P.W.3 Dr. Virendra Singh Yadav, another uncle of deceased Anita, who has narrated that on 23.4.2000 the marriage of Anita was solemnized with Sunil Kumar as per Hindu rituals. Anita studied up to class 5th. In the marriage adequate dowry including household articles, ornaments, clothes etc. and Rs. 55,000/- (fifty five thousand) in cash, were given. After marriage when Anita came back from her sasural, she told before him and other members of his family that her husband Sunil Kumar Yadav, mother-in-law Rajola, brother-in-law Raj Kumar @ Majhaley, his wife Smt. Ram Dulari @ Uma and younger brother-in-law Neetu @ Ram Kumar were making demand for Rs. One lac to purchase a tractor and subjected her to cruelty. On this, P.W.3 along with the other members went to the sasural of Anita and reconciled the matter with the members of her family and also made help (financial) as far as possible. But they made a demand for motorcycle which fact was told by Anita. Knowing that, he along with his brothers Manmohan Singh, Tulsi and nephew Sahdev Singh went to the matrimonial house of Anita at village Dhakauli, where her husband and family members demanded money for motorcycle and said that they would keep Anita in their house, only when their demand of motorcycle was fulfilled. P.W.3 and other members of the family then requested to see her off with them but they did not send her. On 31.10.2006 at about 8 p.m., Anita called through telephone that she was being beaten by in-laws and requested that they should reach early to save her life otherwise she would be killed. P.W. 3 along with his brother (P.W.1) and other members of the family reached the village Dhakauli at about (2 a.m.) 2 o'clock in the night. The door of the matrimonial house of Anita was bolted from outside. It was got opened by Rameshwar, uncle of appellant Sunil Kumar living in the neighbourhood. When he entered the house, he found his niece Anita lying inside the room in burnt state and no one else was present inside. The report of this incident was lodged by his brother Manmohan Singh (P.W.1) on the same day at the police station Erach. The inquest of the body of deceased Anita was conducted in the presence of Nayab Tehshildar, Garautha and P.W.3 also put his signature on the inquest report. Invitation card of marriage of the deceased Anita was also seized by the Circle Officer provided by his brother in his presence which he proved as Material Ext. 1.

This witness has also been subjected to lengthy cross-examination from the side of the appellants but he had reiterated firmly the facts relating to the date of marriage, demand of dowry and harassment of the deceased at the hands of her matrimonial family including her husband.

24. P.W.4 Rafiq Khan is the Investigating Officer who proved the investigation of the case and also the fard (recovery memo) of seizure of the invitation card as Ext. Ka-3. He has also submitted the charge sheet proved as Ext. Ka-4.

25. P.W. 5 constable Ram Jiwan who was posted at the police station concerned on the day of the incident proved the chik F.I.R. as Ext. Ka-5, in his hand writing and signature, and stated that he registered the case on the basis of the written report given by the informant Manhohan Singh and also entered its detail in the G.D. report no. 6. P.W. 5 also proved the carbon copy of the G.D. by comparing with the original as Ext. Ka-6.

26. P.W. 6 Dr. R.P. Verma conducted the postmortem of the body of deceased Anita. He proved the postmortem report being in his hand writing and signature as Ext. Ka-7.

27. P.W. 7 Hammilal Verma was the previous Investigating Officer, who got prepared the inquest report and other related papers by S.S.I. Lalit Kishor which he proved as Ext. Ka-2 and Ext. Ka-9 to Ka-14. P.W.7 also inspected the place of occurrence and prepared the site plan which he proved as Ext. Ka-8.

28. Before we proceed to evaluate the evidence on record led by the prosecution in support of the charges framed against the appellants, it is necessary to examine the law relating to 'dowry-death', ''cruelty' and ''dowry demand'.

29. Section 304B and Section 498A I.P.C. is as under:-

"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 is "what is the periphery of the dowry as defined therein? The argument is that there must be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute ''dowry'. It is noticeable that this definition with the amendment includes not only the period before and at the time of marriage but also the period subsequent to the marriage.

33. This position was clarified in Pawan Kumar and others vs. State of Haryana, 1998 (3) SCC 309:-

"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. The Apex Court has highlighted all the aspects of law relating to 'dowry demand' and 'dowry death' in the case Prem Kanwar Vs. State of Rajasthan, 2009(1)JT197.

35. Section 113B of the Evidence Act is also relevant for the purpose of the case at hand. Both Sections 304B I.P.C. And Section 113B of the Evidence Act were inserted, as noted earlier, in view of the dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as under:-

"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).

36. The necessity for insertion of the above two provisions has been aptly 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 laws in securing evidence to prove dowry related death, the legislature thought it wise to insert a provision relating to presumption of dowry death on the proof of certain essentials. It is in this background presumptive Section 113B in the Evidence Act had been inserted. As per the definition of 'Dowry death; in Section 304B I.P.C., and the wordings 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 by law. On proof of the essentials mentioned therein, the Court would raise a presumption that the accused persons caused the dowry death. The said presumption shall be raised on the 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.

37. 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. The 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 relevant in a case where Section 113B of the Evidence Act and Section 304B I.P.C are pressed into service. The 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 the prosecution.

38. It has been held that 'Soon before' is a relative term and it would depend upon the 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 was observed in a catena of decision of the Apex Court that it would be hazardous to indicate any fixed period, which 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 to be examined with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to the expression 'soon before' used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that the 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 made by the Courts depending upon the facts and circumstances of each case. Suffice it 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 of the victim. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the death of the victim. If alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.

39. In the instant case, so far as the first ingredient of Section 304-B IPC is concerned that the death of women must have been caused by burns or bodily injury or otherwise than under normal circumstances, from the statements of P.W.1, P.W.2 & P.W. 3 it is evident that when they had reached the matrimonial house of the deceased at about 2 a.m. she was found lying burnt inside the room of the house. Ext. Ka-2 inquest report also shows that the deceased died of the burn injuries. The postmortem Report Ext. Ka-7 shows the cause of death being Asphyxia due to ante-mortem burn injuries. P.W. 6 Dr. R.P. Verma has proved the cause of death being ante-mortem burn injuries. It, therefore, stands proved that the death was caused by ante-mortem burn injuries which was otherwise than under normal circumstances.

40. As far as the second ingredient that such death must have been occurred within 7 year of the marriage to raise a presumption of dowry death, the first informant PW-1 Manmohan Singh stated in the written report Ext. Ka-1 that he had married his daughter with the appellant Sunil Kumar Yadav R/o village Dikauli, Police Station Eirach, District Jhansi six years prior to the incident. During his examination before the court, P.W.1 disclosed the date of marriage as 23.4.2000. P.W. 2 Tulsiram and P.W.3 Dr. Virendra Singh Yadav also proved the date of marriage as 23.4.2000. Material Exhibit 1, the invitation card on record has been proved by P.W. 3 Dr. Virendra Singh Yadav wherein the date of marriage is mentioned as 23.4.2000. During his examination, the investigation officer P.W.4 stated that he seized the invitation card from the members of family of the deceased. In this way, the date of marriage of the deceased was proved as 23.4.2000. The date of death being 31.10.2006 lead to an inference that the victim died within seven years of her marriage.

41. It is pertinent to note that though the appellants in their statements under Section 313 Cr.P.C. did not admit the date of marriage as 23.4.2000 and contended that it was performed on 10.5.1998 but no evidence was produced in the shape of the invitation card or any other document to prove the disputed date of marriage as asserted by the appellants. A transfer certificate Ext. Kha-1 has been produced and Parshuram, principal of the school was produced as D.W.1 to prove the contents of the transfer certificate who has stated that Sunil Kumar yadav took admission in class 9th on 10.07.1996 and on failure in the high school examination, the transfer certificate was issued in the month of June, 1999. The appellant Sunil Kumar was studying in the school in the year 1996-97 in class 9th. 1997 to 1998 and 1998 to 1999 in class 10th. Except this, D.W.1 did not say anything which would be relvant about the disputed date of marriage by the appellants.

42. Learned trial court has mentioned in para no. 17 of the judgment that P.W. 1 stated during the examination that at the time of marriage, Sunil Kumar was studying in the class 9th or 10th. On the basis of this statement of P.W.1 and the statement of D.W. 1 about the years of education relating to the appellant Sunil Kumar in the year 1998-99, the period of marriage of the deceased at the time of her death was concluded to be beyond 7 years. Further, the learned trial court has quoted an order of this Court passed in Criminal Misc. Bail Application No. 9088 of 2010 wherein it was noted that the name of deceased Anita was mentioned in the voter list of gram panchayat Dikauli in the year 1999 and the said fact was not contradicted by the State. From the contents of the aforesaid bail order of this Court, the learned trial court had concluded that the deceased was married to Sunil Kumar Yadav prior to the year 1999, though neither any voter list was produced before the trial court nor any evidence was led in this regard by the appellants. The trial court has also noted that P.W.2 narrated before it that in the year 1999, the name of Anita was entered in the voter list as wife of appellant Sunil Kumar Yadav because she was engaged, i.e. her marriage was settled. On the basis of the above facts, the learned trial court had concluded the period of marriage of deceased with appellant Sunil Kumar Yadav on the date of her death being beyond the period of seven years. In this regard, it is to note that Ext. Kha-1, the transfer certificate has no relevance in so far as the factum of the date of marriage of deceased with appellant Sunil Kumar Yadav. No evidence either in the nature of invitation card or any voter list of gram panchayat, Dikauli of the year 1999 had been produced before the trial court besides any other oral or documentary evidence to prove the contention of the appellants about the date of marriage being 10.5.1998.

43. A perusal of statement of P.W. 2 shows that a suggestion was given to him about the date of marriage being 10.5.1998 in relation to the entry in the voter list of the year 1999 but no such voter list was shown to him nor P.Ws. 1 and 2 anywhere had admitted the date of marriage as suggested by the defence/appellants. The conclusion drawn by the trial court is based on its own hypothesis on assumption simply on the suggestion about the entry of the voter list which was never produced before it. The trial court has, thus, illegally discarded the testimony of P.W. 1 to P.W. 3 about the date of marriage of the deceased as also the veracity of invitation card which was proved as Material Ext. 1 by the prosecution witnesses. The findings of the learned trial court, in this regard, not being based upon any documentary or oral evidence but being hypothetical is liable to be set aside. The assumption drawn by the trial court cannot overthrow the reliable testimony of the prosecution witnesses which is corroborated by documentary evidence produced by them.

44. On due appreciation the evidence on record, the date of marriage of the deceased with appellant Sunil Kumar Yadav stands proved as 31.4.2000. The death of the deceased, thus, proved to have been taken place within seven years of her marriage.

45. Now the next requirement is to ascertain as to whether soon before her death the deceased was subjected to cruelty or harassment by her husband or his relatives and such cruelty or harassment must be in connection with the demand of dowry.

46. In this regard, P.W. 1 who is father of the deceased has supported the prosecution version about the demand of dowry and harassment of the deceased in his examination in chief and also during the cross examination and remained intact in that regard. P.W. 2 Tulsiram uncle of the deceased also proved demand of dowry and harassment of the deceased by her husband and other family members. P.W. 3 Dr. Virendra Singh Yadav another uncle of the deceased also deposed about demand of dowry and harassment of the deceased by her husband and other family members in his examination-in-chief as also the cross-examination. Both the witneses remained intact throughout. As per the statement of the prosecution witnesses the demand of dowry of Rs. One lac was made by the appellants to purchase a tractor for which the parents and uncle of the deceased gave money as per their capacity but again the demand of dowry for motorcycle was made and on failure to fulfill the said demand, the deceased was subjected to torture and was beaten by the appellants. When the prosecution witnesses went to her sasural to reconcile the matter even then the appellants made the demand for motorcycle and also refused to send off the deceased with her parents. On 30.10.2006 telephonic information was given by the deceased herself that she was being beaten by the appellants and when her parents reached at her matrimonial house, she was found lying burnt inside the room of the house. The appellants ran away from their house and the door was found closed from outside. It is, thus, established that after marriage the deceased was subjected to torture on account of non fulfillment of demand of dowry. This situation continued till the fateful day, when the girl died in her matrimonial home by burn injuries.

47. From the due appraisal of the testimony of the prosecution witnesses as abovenoted, it is proved that unnatural death of deceased was caused by burn injuries within seven years of marriage and soon before her death, the deceased was subjected to cruelty by her husband and his family members in connection with the demand of dowry.

48. Now section 113 B of the Indian Evidence Act comes into picutre, on the basis of the material on record the presumption is to be drawn by the court that the appellant had caused the dowry death of the victim. The charge under Sections 304-B IPC stands proved against the appellants. There is clinching evidence on record against all the appellants relating to harassment of the deceased in relation to non fulfillment of demand of dowry, which brings the offence under Section 498-A IPC as well as under Section 4 Dowry Prohibition Act into picture. Hence, the charges under Section 498-A & Section 4 Dowry Prohibition Act also stand proved.

49. Now, the question arises as to whether in the above circumstances, the appellants can be convicted under Section 302 IPC. In this regard, we may note that the learned trial court had not found the charge under Section 304-B IPC proved on the ground that the marriage of the deceased was performed with the appellant Sunil Kumar Yadav more than seven years prior to the date of death, which finding has been found to be hypothetical by this Court on mis-appreciation of the evidence on record, as discussed herein above. The charge under Section 302 IPC framed by the learned trial court was an alternative charge. In case, the charge under Section 304-B IPC was not proved only then the court was to travel further to consider whether the case falls under Section 302 IPC. If case under Section 304-B IPC is found proved, there is no need to consider the matter for the offence under Section 302 IPC unless there is positive evidence to conclude that the appellants had caused her death either by setting her ablaze or causing fatal injury.

50. Learned trial court has convicted and sentenced the appellants under Section 302 IPC and recorded the finding that looking to the position in which dead body was found the appellants caused the death by initially making the deceased unconscious and then setting her ablaze so that she may not protest or save herself. In this regard, there is no evidence on record to show that the deceased was administered something obnoxious and, thereafter, she was set ablaze by the appellants. Even during postmortem no ante-mortem injury except burn injuries were found on the person of the deceased. P.W. 6 Dr. R.P. Verma, who conducted autopsy had also expressed inability to give any opinion as to whether the death was suicidal or homicidal. In situation like this, no conclusion could be drawn that the death of the deceased was homicidal only. So, the findings returned by the trial court that the deceased was first made unconcious by administering some substance and then set ablaze also appears to be based on hypothesis and contrary to the evidence on record. Taking recourse to the Section 106 of Indian Evidence Act is also not found to be justified in the present case in as much as presence of the appellants in the house or room wherein the deceased had died could not be proved by the prosecution. As a result, the learned trial court cannot but be said to have committed illegality in convicting the appellants under Section 302 IPC with the aid of Section 106 of the Indian Evidence Act.

51. Thus, from the aforesaid discussion made above the charges under Section 304-B, 498-A IPC & Section 4 Dowry Prohibition Act are proved beyond all reasonable doubt, against the appellants. The conviction and sentence awarded by the trial court under Section 302 IPC by the judgement and order dated 31.7.20212 stands modified accordingly.

52. Now the consideration has to be given on the question of sentence in the case of proven charges under Section 304-B IPC.

53. In the case of Hem Chand v. State of Haryana [(1994) 6 SCC 727], The Apex Court has held in paragraph 7 of the judgment as under:-

"Now coming to the question of sentence, it can be seen that Section 304-B I.P.C. lays down that

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."

The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case, A reading of Section 304-B I.P.C, would show that when a question arises whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection With the death or not, he shall be presumed to have committed the dowry death provided the other requirements men-tioned above are satisfied. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 I.P.C. The trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr. Usha Rani, P.W. 6 and Dr. Indu Latit, P.W. 7 gave one opinion. According to them no injury was found on the dead body and that the same was highly decom-posed. On the other hand, Dr. Dalbir Singh, P.W. 13 who also examined the dead body and gave his opinion, deposed that he noticed some injuries at the time of re-post mortem examination. Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304-B I.P.C. would be attracted. But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As a matter of fact, the trial court only found that the death was unnatural and the aspect of cruelty has been established and therefore the offences punishable under Sections 304-B and 201 I.P.C. have been established. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304 I.P.C. was made out. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime he himself indulged therein and precipitated in it and that bride killing cases are on the increase and therefore a serious view has to be taken. As mentioned above Section 304-B I.P.C. only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."

54. The view taken by the Apex Court in Hem Chand case (supra) was again affirmed by the Court in the case of G.V. Siddaramesh Vs. State of Karnataka (2010)3 SCC 152 in para 30 as under:-

"On the point of sentence, learned Counsel for the appellant pointed out that the appellant is in jail for more than six years. The appellant was young at the time of incident and therefore, the sentence awarded by the trial court and confirmed by the High Court may be modified. In so far as sentencing under the section is concerned, a three Judge Bench of this Court in the case of Hemchand v. State of Haryana [(1994) 6 SCC 727] has observed that:

"Section 304B merely raises a presumption of dowry death and lays down that the minimum sentence should be 7 years, but it may extend to imprisonment for life. Therefore, awarding the extreme punishment of imprisonment for life should be used in rare cases and not in every case.

Keeping in view the facts and circumstances of the case, this Court reduced the sentence from life imprisonment awarded by the High Court to 10 years R.I. on the above principle."

55. A reference on this point may also be made to the recent pronouncement of the Apex Court in the case of Sunil Dutt Sharma V State reported in [(2014) 4 SCC 8 375] wherein Hon'ble Apex Court has considered the law on the point of sentence under Section 304-B IPC in detail and reduced the sentence from life imprisonment to ten years.

"13. Would the above principles apply to sentencing of an accused found guilty of the offence under Section 304-B inasmuch as the said offence is held to be proved against the accused on basis of a legal presumption? This is the next question that has to be dealt with. So long there is credible evidence of cruelty occasioned by demand(s) for dowry, any unnatural death of a woman within seven years of her marriage makes the husband or a relative of the husband of such woman liable for the offence of "dowry death" under Section 304-B though there may not be any direct involvement of the husband or such relative with the death in question. In a situation where commission of an offence is held to be proved by means of a legal presumption the circumstances surrounding the crime to determine the presence of aggravating circumstances (crime test) may not be readily forthcoming unlike a case where there is evidence of overt criminal acts establishing the direct involvement of the accused with the crime to enable the Court to come to specific conclusions with regard to the barbarous or depraved nature of the crime committed. The necessity to combat the menace of demand for dowry or to prevent atrocities on women and like social evils as well as the necessity to maintain the purity of social conscience cannot be determinative of the quantum of sentence inasmuch as the said parameters would be common to all offences under Section 304-B of the Penal Code. The above, therefore, cannot be elevated to the status of acceptable jurisprudential principles to act as a rational basis for awarding varying degrees of punishment on a case to case basis. The search for principles to satisfy the crime test in an offence under Section 304-B of the Penal Code must, therefore, lie elsewhere. Perhaps, the time spent between marriage and the death of the woman; the attitude and conduct of the accused towards the victim before her death; the extent to which the demand for dowry was persisted with and the manner and circumstances of commission of the cruelty would be a surer basis for determination of the crime test. Coupled with the above, the fact whether the accused was also charged with the offence under Section 302 of the Penal Code and the basis of his acquittal of the said charge would be another very relevant circumstance. As against this the extenuating/mitigating circumstances which would determine the "criminal test" must be allowed to have a full play. The aforesaid two sets of circumstances being mutually irreconcilable cannot be arranged in the form of a balance sheet as observed in Sangeet (supra) but it is the cumulative effect of the two sets of different circumstances that has to be kept in mind while rendering the sentencing decision. This, according to us, would be the correct approach while dealing with the question of sentence so far as the offence under Section 304-B of the Penal Code is concerned.

14. Applying the above parameters to the facts of the present case it transpires that the death of the wife of the accused-appellant occurred within two years of marriage. There was, of course, a demand for dowry and there is evidence of cruelty or harassment. The autopsy report of the deceased showed external marks of injuries but the cause of death of deceased was stated to be due to asphyxia resulting from strangulation. In view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted the postmortem, the learned Trial Judge thought it proper to acquit the accused of the offence under Section 302 of the Penal Code on the benefit of doubt as there was no evidence that the accused was, in any way, involved with the strangulation of the deceased. The proved facts on the basis of which offence under Section 304-B of the Penal Code was held to be established, while acquitting the accused-appellant of the offence under Section 302 of the Penal Code, does not disclose any extraordinary, perverse or diabolic act on the part of the accused-appellant to take an extreme view of the matter. Coupled with the above, at the time of commission of the offence, the accused-appellant was about 21 years old and as on date he is about 42 years. The accused-appellant also has a son who was an infant at the time of the occurrence. He has no previous record of crime. On a cumulative application of the principles that would be relevant to adjudge the crime and the criminal test, we are of the view that the present is not a case where the maximum punishment of life imprisonment ought to have been awarded to the accused-appellant. At the same time, from the order of the learned Trial Court, it is clear that some of the injuries on the deceased, though obviously not the fatal injuries, are attributable to the accused-appellant. In fact, the finding of the learned Trial Court is that the injuries No. 1 (Laceration 1" x ½" skin deep on the side of forehead near hair margin) and 2 (Laceration 1 ½" x 1" scalp deep over the frontal area) on the deceased had been caused by the accused-appellant with a pestle. The said part of the order of the learned Trial Court has not been challenged in the appeal before the High Court. Taking into account the said fact, we are of the view that in the present case the minimum sentence prescribed i.e. seven years would also not meet the ends of justice. Rather we are of the view that a sentence of ten years RI would be appropriate. Consequently, we modify the impugned order dated 4.4.2011 passed by the High Court of Delhi and impose the punishment of ten years RI on the accused-appellant for the commission of the offence under Section 304-B of the Penal Code. The sentence of fine is maintained. The accused-appellant who is presently in custody shall serve out the remaining part of the sentence in terms of the present order."

56. In V.K. Mishra and another v. State of Uttarakhand reported in [(2015) 9 SCC 588], the Apex Court has again considered the question of sentence in cases of dowry death and has observed in paragraph nos. 40 and 41 as under:-

"40. For the offence Under Section 304-B Indian Penal Code, the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Section 304-B Indian Penal Code thus prescribes statutory minimum of seven years. In Kulwant Singh and Ors. v. State of Punjab (2013) 4 SCC 177, while dealing with dowry death Sections 304-B and 498-A Indian Penal Code in which death was caused by poisoning within seven years of marriage conviction was affirmed. In the said case, the father-in-law was about eighty years and his legs had been amputated because of severe diabetes and mother-in-law was seventy eight years of age and the Supreme Court held impermissibility of reduction of sentence on the ground of sympathy below the statutory minimum.

41. As per prison records, the accused-Rahul Mishra is in custody for more than five years which includes remission. Bearing in mind the facts and circumstances of the case and the occurrence of the year 1997 and that the accused-Rahul Mishra is in custody for more than five years, interest of justice would be met if life imprisonment awarded to him is reduced to imprisonment for a period of ten years. Appellants V. K. Mishra and Neelima Mishra, each of them have undergone imprisonment of more than one year. Appellants No.1 and 2 are aged about seventy and sixty four years and are said to be suffering from various ailments. Considering their age and ailments and facts and circumstances of the case, life imprisonment imposed on Appellants V. K. Mishra and Neelima Mishra is also reduced to imprisonment of seven years each."

57. In the present case, at the time of occurrence, appellant Sunil Kumar Yadav, husband of the deceased was 30 years of age; Smt Rajola mother-in-law was aged about 53 years; Rajkumar @ Majhale younger brother of Sunil Kumar Yadav, was aged about 23 years; Smt. Ram Dulari @ Uma, wife of Rajkumar was aged about 21 years and Neetu @ Ram Kumar the youngest brother of Sunil Kumar was aged about 20 years. As per the record, all the appellants are in custody from 31.7.2012. After six years of marriage the deceased had died out of burn injuries. No antemortem injury was found on the person of the deceased. As per the doctor who had conducted autopsy the death cannot be said to be homicidal by definite opinion.

58. Keeping in mind the principle of sentence under Section 304-B IPC as enunciated by the Apex Court, in the facts and circumstances of the present case, the occurrence which took place in the year 2006 and that the appellants have already undergone the sentence for more than nine years, in our considered opinion, interest of justice would be served if the appellants are awarded sentence under Section 304-B IPC to imprisonment for a period of ten years, each. The conviction of the appellants for other offences and sentences of imprisonment imposed for each offence awarded by the trial court are hereby affirmed. All the sentences shall run concurrently.

59. Resultantly, the appeals are partly allowed, modifying the judgment and order dated 31.7.2012 of the learned Sessions Court to the above extent.

60. Office is directed to certify this judgement to the court concerned forthwith to ensure compliance and also to send back the trial court record.

 
       Order Date: 18th of May, 2022
 
       A. Singh
 

 

 
                                         (Subhash Chandra Sharma,J.)      (Sunita Agarwal,J.)