HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 Case :- CRIMINAL APPEAL No. - 428 of 1998 Appellant :- Smt.[ENTITY] & Others Respondent :- [ENTITY] Counsel for Appellant :- [ENTITY],Km. [ENTITY],[ENTITY],[ENTITY],[ENTITY] Counsel for Respondent :- Govt. Advocate Hon'ble [ENTITY]-II,J.
1. Instant appeal has arisen against the judgment and order dated 15.7.1998, passed by learned Special/ Additional Sessions Judge, Raebareli in [CASE NUMBER], arising out of case crime no.56/95, Police Station Bachchrawa, District Raebareli, whereby the learned trial court has convicted the accused [ENTITY], [ENTITY] and [ENTITY] under [SECTION] [ACT] and sentenced to seven years rigorous imprisonment, under [SECTION] [ACT] sentenced to two years rigorous imprisonment and fine of Rs.2,000/- with default stipulation of six months imprisonment and under [SECTION] [ACT] sentenced to rigorous imprisonment for one year. All the sentences were directed to run concurrently.
2. Feeling aggrieved, accused-appellants have preferred the appeal wherein the appellant no.2 [ENTITY] died pending appeal whose case is abated vide order dated 12.9.2017.
3. I have heard Shri [ENTITY] learned counsel for the appellant and [ENTITY] learned A.G.A. for the State and perused the record.
4. According to the prosecution version, marriage of accused [ENTITY] was solemnized with deceased [ENTITY] on 18.5.1999. As per the first information report, which was lodged by [ENTITY], father of the deceased, accused-appellants were demanding a scooter in dowry. He paid some rupees instead of scooter and has shown his inability to give the scooter. On 25.3.1995 [ENTITY] was done to death by pushing her to the well. As soon as the complainant received the information of the death he reached village Malpur where he found his daughter lying dead in the house. Blood was oozing from her nose. First information report was lodged on the same day at 03:30 PM which was registered at [CASE NUMBER] under [SECTION], [SECTION] [ACT] and 3/4 [ACT]. Investigation was handed over to C.O. [ENTITY]. Inquest proceedings were conducted on 25.3.1995 at 05:30 PM. Dead body was sealed and was sent for postmortem which was conducted on 26.3.1995 at 03:30 PM at District Hospital, Raebareli wherein the cause of death was found as asphyxia as a result of strangulation. Statement of the witnesses were recorded by the Investigating Officer. Site plan was also prepared. After investigation charge sheet was submitted against the accused-appellants.
5. Accused-appellants were charged under [SECTION], [SECTION] [ACT] and 3 / 4 [ACT], who denied the charges and claimed trial.
6. In order to prove its case prosecution has produced PW-1 [ENTITY] complainant and father of the deceased, PW-2 Smt. [ENTITY] mother of the deceased, PW-3 [ENTITY] SDM in whose presence inquest proceedings were conducted, PW-4 Dr. [ENTITY] who has conducted the postmortem of the dead body of the deceased on 26.3.1995, PW-5 SI [ENTITY], who has recorded the chik FIR, PW-6 Circle Officer [ENTITY] Investigating Officer.
7. In the statement under [SECTION] [ACT] accused [ENTITY] has stated that he has been falsely implicated. On getting an information about the death of the deceased he reached at the spot and brought the dead body out of the well. [ENTITY] has also stated that on getting an information about the death she went to the well. In defence one witness DW-1 [ENTITY] has been produced.
8. Learned counsel for the appellants submits that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. It is further submitted that necessary ingredients of the offence punishable under [SECTION] [ACT] have not been proved. There is no demand of dowry. Allegedly there was a demand of dowry of a scooter but the prosecution has failed to prove that the victim was subjected to cruelty for demand of dowry of scooter soon before her death. It is further submitted that according to the PW-1 amount of Rs.4000-5000/- was paid by him to the deceased as well as accused [ENTITY] after four five months of the marriage. Thereafter, neither there was any demand of scooter nor any evidence to prove the cruelty for such demand. It is further submitted that the death of the deceased occurred when she went to the well for cleaning the clothes wherein she fell down in the well. Just after getting the information accused [ENTITY] went to the well and brought out the dead body from the well. It is submitted that hyoid bone and trachea was not found fractured, hence, it cannot be a case of strangulation. Learned counsel has placed reliance upon Medical Jurisprudence of [ENTITY] 25th Edition Page 510.
9. Learned A.G.A. submits that the prosecution has successfully proved the charges against the accused-appellants. There was a demand of scooter in dowry. As per the statement of PW-1 and PW-2 continuous demand was made. Even soon before the death there was a demand. Deceased died in her in-laws house in abnormal circumstances within seven years of marriage. There was a demand. She was subjected to cruelty. Cause of death was strangulation. Presumption under [SECTION] of the [ACT] shall be drawn against the accused-appellants.
10. Now, it is to be seen as to whether the prosecution has successfully proved the charges against the accused applicant beyond reasonable doubt. It was held in [PRECEDENT] about the basic ingredients of the provisions of [SECTION] [ACT], which are as under :-
(i) Death of woman should be caused by burn or fatal injury or otherwise than under normal circumstances;
(ii) Such death should have occurred within seven years of her marriage;
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(iv) Such cruelty or harassment should be for or in connection with the demand of dowry.
11. If [SECTION] [ACT] is read together with [SECTION] of the [ACT], comprehensive picture emerges that if a married woman dies in unnatural circumstances at her matrimonial house within seven years of her marriage and there are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives.
12. Referring the different pronouncements of the Hon'ble Apex Court in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT]. Hon'ble the Apex Court has held in [ENTITY] vs. State of Punjab (2015) 6 SCC 477 that necessary ingredients of the offence under [SECTION] [ACT] are as under :-
(a) Death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;
(b)Such death must have occurred within seven years of her marriage;
(c) Soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(d) Such cruelty or harassment must be in connection with the demand for dowry.
13. In this reference the Hon'ble Apex Court in aforesaid case of [ENTITY] has further interpreted the words "soon before her death" and it was held in para 24 that :-
"We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of [SECTION] would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under [SECTION]
14. Further [PRECEDENT] was referred and para 16 of the judgment is relied wherein it was held that :-
"16 We are aware that the word soon' finds place in [SECTION]; but we would prefer to interpret its use not in terms of days or months or years, but as necessarily indicating that the demand for dowry should not be stale or an aberration of the past, but should be the continuing cause for the death under [SECTION] or the suicide under [SECTION] [ACT]. Once the presence of these concomitants is established or shown or proved by the prosecution, even by preponderance of possibility, the initial presumption of innocence is replaced by an assumption of guilt of the accused, thereupon transferring the heavy burden of proof upon him and requiring him to produce evidence dislodging his guilt, beyond reasonable doubt."
15. Now, we have to appreciate the evidence available on record to find out as to whether the prosecution has been able to successfully prove the necessary ingredients of the [SECTION] [ACT].
16. Admittedly, deceased [ENTITY] was the wife of the accused [ENTITY] while accused [ENTITY] is mother in law of the deceased. Marriage of [ENTITY] with [ENTITY] was solemnized on 18.5.1989. This fact is also not disputed by the defence rather it is admitted that marriage of [ENTITY] with [ENTITY] was solemnized on 18.5.1989. Incident occurred on 25.3.1995, i.e., within seven years of marriage, hence, necessary condition no.2 is fulfilled.
17. According to the postmortem report, cause of death of the deceased was asphyxia due to strangulation. PW- 4 Dr. [ENTITY] alongwith one Dr. [ENTITY] have conducted the autopsy of the dead body of the deceased on 26.3.1995 at 03:30 PM wherein the doctor found following ante mortem injury.
Contusion on upper chest, neck and lower face 32 cm x 15 cm up to nose to nipple, face cyanased and swollen except two depressed spot on both side of chin and lower part of face. Pale in colour, swelling present all around.
18. On dissecting the skin beneath is whitish with subcutaneous haemarrhage and clotted blood around the injury was present. Hyoid bone was found fractured. Trachea congested, muscles of the neck were lacerated. According to the opinion of the doctor, cause of death was ante mortem strangulation. Learned counsel has placed reliance upon Medical Jurisprudence of [ENTITY] at Page 510. It is submitted that the necessary ingredients of strangulations were not found by the doctor. There is a differene in hanging and strangulation. PW-4 Dr [ENTITY] was cross examined at length, who has stated that his opinion is based on medical jurisprudence. He found the hyoid bone fractured. Abrasion and contusions were also found which support the theory of ante-mortem strangulation. No water was found in the abdomen, rather blood was oozing from the nostrils, hence, the death of the deceased could not said to be a normal death, rather it was an abnormal death which was caused by strangulation and thereafter throwing the body in the well.
19. [SECTION] of the [ACT] provides as under :-
113 B. 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 had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation :- For the purpose of this section, "dowry death" shall have the same meaning as in [SECTION] of the [ACT].
20. Now, when it is proved that the deceased died within seven years of marriage in abnormal conditions, the remaining two ingredients have to be seen in order to attract the presumptions under [SECTION] Evidence Act against the accused appellants.
21. According to the first information report there was a demand of scooter since marriage which could not be fulfilled by the parents of the deceased. PW-1 [ENTITY] is the father of the deceased who has stated that whenever his daughter deceased [ENTITY] comes to his maternal house she tells her parents about the torture being made to her for demand of scooter in the dowry. PW-1 [ENTITY] has specifically stated that there was a demand of scooter in the marriage but he was not able to give the same. He paid some amount to the extent of Rs.5000/- but could not fulfil the demand of scooter. Thereafter, whenever [ENTITY] comes to her maternal house she was narrating the torture being made to her by her in laws, i.e., accused continuously. It is stated that prior to the incident [ENTITY] was at her maternal house for five to six months. Thereafter, her vidai took place. Thereafter, this incident occurred. This assertion finds support from the statement of PW-2 Smt [ENTITY] who is mother of the deceased, who has also stated that the accused were annoyed for not providing scooter in the dowry. Demand of scooter was made by her son in law and his father to this witness also. Demand was continuously being made for five years after the marriage but when the demand could not be fulfilled then accused got annoyed and killed the deceased. Although, it is true that during the intervening period of about five years neither any police report was made nor any other legal action was taken either by the complainant or his wife which could not be the ground to disbelieve the testimony of PW-1 [ENTITY] and PW-2 [ENTITY]. In Indian society every parents make all the efforts to make the married life of his daughter peaceful, even if she is being maltreated for some reasons, they would never make any attempt directly to take any legal action, rather every effort is being made to reconcile the matter but when things go out of hands, only then legal recourse is taken. In the case at hand also for five years assurances were given, some amount was also paid instead of scooter but it could not fulfil the desire and wishes of the accused. Statement of PW-1 [ENTITY] clearly proves that even just before the death there was a demand and the deceased was subjected to harassment by the accused for and in connection with the demand of a scooter. Essential ingredient no.3 and 4 is also proved by the evidence adduced by the prosecution.
22. When the necessary ingredients of [SECTION] are proved, now presumption under [SECTION] of the [ACT] shall be drawn against the accused which could not be rebutted by the accused-appellants.
23. Learned counsel also placed reliance upon [PRECEDENT] and submitted that it was held in by the Hon'ble Supreme Court that if the demand was made to meet the domestic expenses and purchase of manure, it would not be covered under the demand of dowry. Facts of the present case are entirely different. There was not demand for any household things but there was a demand of scooter which could not be fulfilled resulting in death of the deceased.
24. Learned counsel has further placed reliance upon [PRECEDENT], to attract the word 'soon before'. In [PRECEDENT], it has been dealt with in detail wherein word 'soon before' cannot be restricted in a fixed term rather it is to be looked into the facts and circumstances of each case. In the present case there was a continuous demand at the time of marriage till death which was being continuously communicated by the deceased to her parents. There was a demand when she came back to her matrimonial house from her parental house soon before her death. Hence, the demand soon before the death is also proved.
25. Having considered the material evidence available on record, I am of the considered view that the learned trial court has rightly convicted and sentenced the accused-appellants. Learned trial court has also sentenced the appellants under [SECTION] / 4 [ACT].
26. In the result appeal fails and is accordingly dismissed. Judgment and order passed by the learned trial court dated 15.7.1998 is confirmed. Appellants are on bail. They should surrender before the learned trial court forthwith to serve out the sentence, failing which learned trial court shall ensure their presence by adopting all the coercive measures. Bail bonds and personal bonds are cancelled. Sureties are discharged.
27. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.
Order date :- 10.01.2018 mks