Allahabad High Court
Putan vs State Of U.P. on 7 July, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 15 Case :- CRIMINAL APPEAL No. - 138 of 2019 Appellant :- Putan Respondent :- State of U.P. Counsel for Appellant :- Soniya Mishra,O.P. Tiwari,Rajendra Singh,Rajiv Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard Sri O. P. Tiwari, learned counsel for the accused-appellant, Sri Rajesh Kumar Singh and Sri Alok Saran, learned A.G.A. for the State and perused the record.
2. Challenge in this appeal is to the judgment and order dated 04.09.2018 passed by learned Additional Sessions Judge, Court No.9, Unnao in Sessions Trial No.54/2015, arising out of Crime No.1902 of 2014, under Sections 498A, 304B I.P.C. & Section 4 of D. P. Act, Police Station Gangaghat, District Unnao whereby the appellant has been convicted and sentenced for a period of three years' rigorous imprisonment with a fine of Rs.8,000/- for the offence under Section 498-A I.P.C. and in default of payment of fine, he has further been directed to undergo three months' additional imprisonment. He has also been convicted and sentenced for a period of ten years' rigorous imprisonment for the offence under Section 304B I.P.C. He has also been convicted and sentenced for a period of two years' rigorous imprisonment with a fine of Rs.6000/- for the offence under Section 4 of D. P. Act and in default of payment of fine, he has further been directed to undergo two months' additional simple imprisonment. All the sentences were directed to run concurrently.
3. Brief facts of this case are that the first informant, Pyare Lal submitted a written report, Ex. Ka-1 to Kotwali, Unnao stating therein that his sister, Phoolmati was married to the appellant, Putan two months' ago according to Hindu Rites and they resided in Mohalla Srinagar, Police Station-Gangaghat. His sister was being treated with cruelty quite offenly by the accused-appellant and his family members for non-fulfillment of demand of dowry. This fact was communicated to the first informant by his sister telephonically. The appellant also used to extent threat to the deceased due to non-fulfillment of a tractor. On 01.10.2014, the landlord of his sister, Smt. Sushila informed the first informant on telephone that his sister has been burnt.
4. On the basis of aforesaid written report, Ex. Ka-1, Crime No.1902 of 2014, under Sections 498A and 304-B I.P.C. read with ¾ Dowry Prohibition Act came to be lodged against the accused-appellant on 01.10.2014 at 12:15 P.M. at Police Station Gangaghat.
5. Investigating Officer, P.W.-7, S. I. Manoj Kumar Awasthi recorded the statements of witnesses under Section 161 Cr.P.C. He visited the place of occurrence and prepared a site plan, Ex. Ka-12. Due to transfer of said Investigating Officer, P.W.-6, C. O., Sri Gopi Nath Soni under took the investigation. He also recorded the statements of some of the prosecution witnesses under Section 161 Cr.P.C. and upon conclusion of investigation, he submitted the charge sheet, Ex. Ka-6 against the accused-appellant.
6. In order to bring home guilt of the accused-appellant, the prosecution has examined P.W.-1, Pyare Lal, P.W.-2, Bachhu, P.W.-3, Nayab Tehsildar, Renuka Awasthi, P.W.-4, Dr. Sanjay Kumar, P.W.-5, Rampal Singh, P.W.-6, Investigating Officer, Sri Gopi Nath Soni and P.W.-7, Investigating Officer, Manoj Kumar Awasthi.
7. The accused-appellant, in his statement recorded under Section 313 Cr.P.C., has stated himself to be innocent and has also stated to have been falsely implicated in this case. The accused-appellant was charged under Sections 498A, 304B I.P.C. & 4 D. P. Act and also charged, in alternate, under Section 302 I.P.C. to which he denied and claimed to be tried.
8. In defence, a copy of judgment of A.C.J.M., Court No.5 rendered in Criminal Case No.1017 of 2013 "Phoolmati vs. Pradeep Kumar & Ors.", under Sections 498, 323, 504, 506 I.P.C. read with Section ¾ Dowry Prohibition Act, P.S.-Kotwali Sadar, Unnao was filed.
9. The post-mortem on the cadaver of the deceased was conducted by a panel of doctors consisting of Dr. Sanjay Kumar, P.W.-4 and Dr. R. K. Raman on 02.10.2014.
10. According to post-mortem report, Ex. Ka-3, the entire body of the deceased was having superficial to skin deep burn injuries and hyoid bone was found to be fractured. The cause of death of deceased, according to post-mortem report, Ex. Ka-3. is strangulation due to injury no.2 i.e. broken hyoid bone.
11. Learned counsel for the accused-appellant has submitted that the accused-appellant is innocent, who has been falsely implicated in this case. He never demanded dowry nor did he treat the deceased with cruelty. She further submits that the deceased committed suicide due to frustration and depression. She also submits is that the conviction of the accused-appellant recorded by learned trial Court is against the weight of evidence available on record which is perverse and deserves to be set aside.
12. Per contra, Sri Rajesh Kumar Singh and Sri Alok Saran, learned A.G.A. for the State have vehemently submitted that the accused-appellant is husband of the deceased. The deceased was living with the appellant in Mohalla Srinagar, Police Station-Gangaghat. She was done to death within two months from her marriage by the accused-appellant due to non-fulfillment of demand of dowry. The cause of death of the deceased, according to post-mortem report, is strangulation and broken hyoid bone which cannot be caused by the deceased herself. The offence was committed in a brutal manner. The deceased was reported to be pregnant also. Since the deceased died in the house of the accused-appellant, therefore, the presumption under Section 106 of Indian Evidence Act is also to be drawn against the accused-appellant. They have submitted that the prosecution has successfully proved its case against the accused-appellant under Sections 498A & 304B I.P.C. and Section 4 D. P. Act. Thus, the impugned judgment and order is well discussed and reasoned wherein no interference by this Court is warranted.
13. Hon'ble the Apex Court in the case of Nallam Veera Stayanandam and others vs. Public Prosecutor, High Court of A.P. reported in (2004) 10 SCC 769 has held as under :-
"We have heard learned counsel and also perused the records. It is true from the evidence led by the prosecution it has been able to establish that the appellants were demanding dowry which was a harassment to the deceased. It is also true that the death of the deceased occurred within 7 years of the marriage, therefore, a presumption under Section 113-B of the Evidence Act is available to the prosecution, therefore, it is for the defence in this case to discharge the onus and establish that the death of the deceased in all probability did not occur because of suicide but was an accidental death."
14. In the case of Satvir Singh and others vs. State of Punjab and another reported in (2001) 8 SCC 633 the Hon'ble Apex Court has held as under:-
""The essential components of Section 304-B are: (i) Death of a woman occurring otherwise than under normal circumstance, within 7 years of marriage, (ii) Soon before her death she should have been subjected to cruetly and harassment in connection with any demand for dowry. When the above ingredients are fulfilled, the husband or his relative, who subjected her to such cruelty or harassment, can be presumed to be guilty of offence Under Section 304-B. To be within the province of the first ingredient the provision stipulates that "where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstance". It may appear that the former limb which is described by the words "death caused by burns or bodily injury" is a redundancy because such death would also fall within the wider province of "death caused otherwise than under normal circumstances". The former limb was inserted for highlighting that by no means death caused by burns or bodily injury should be treated as falling outside the ambit of the offence".
15. The Hon'ble Apex Court in the case of Hira Lal and others vs. State (Govt.NCT) Delhi reported in (2003) 8 SCC 80 has held as under:-
"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B Indian Penal Code shows that there must be material to show that soon before her 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 "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B Indian Penal Code 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".
16. The Hon'ble Apex Court, while proceeding further and interpreting the expression "soon before", opined thus:-
"The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the 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".
17. It is relevant to refer here the provision of Section 113-A and 113-B of the Evidence Act, which read as under:-
"113-A. Presumption as to abetment of suicide by a married woman,- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Section 113-B, which provides for presumption as to dowry death, was inserted with a view to fight against the plague of dowry death. The said provision is as follows:-
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 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 person had caused the dowry death."
18. The Hon'ble Apex Court in a recent judgment rendered in Rajinder Singh vs. State of Punjab reported in (2015) 6 SCC 477 has interpreted the word "dowry" as defined in Section 2 of Dowry Prohibition Act, 1961 as follows:-
"A perusal of this Section shows that this definition can be broken into six distinct parts.
1) Dowry must first consist of any property or valuable security - the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.
2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.
3) Such property or security can be given or agreed to be given either directly or indirectly.
4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.
5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.
6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to".
19. In the present case, there is alleged demand of tractor. In view of the aforesaid interpretation of the word "dowry", the demand of tractor certainly come within the purview of dowry.
20. As far as ingredients of offence under Section 304-B I.P.C. are concerned, it is settled law that there are four ingredients and Hon'ble Apex Court in Rajinder Singh vs. State of Punjab (supra) has again reiterated the said settled principles of law, which is as follows:-
"The ingredients of the offence under Section 304B have been stated and restated in many judgments. There are four such ingredients and they are said to be:
(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.
This has been the law stated in the following judgments:
Ashok Kumar vs. Stateof Haryana, (2010) 12 SCC 350 at pages 360-361; Bachni Devi & Anr. v. State of Haryana, (2011) 4 SCC 427 at 431, Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 at 599, Kulwant Singh & Ors. v. State of Punjab, (2013) 4 SCC 177 at 184-185, Surinder Singh v. State of Haryana, (2014) 4 SCC 129 at 137, Raminder Singh v. State of Punjab, (2014) 12 SCC 582 at 583, Suresh Singh v. State of Haryana, (2013) 16 SCC 353 at 361, Sher Singh v. State of Haryana, 2015 1 SCALE 250 at 262."
21. The word "soon before" appearing in Section 113-B of Indian Evidence Act, 1872 also in Section 304-B I.P.C. have also been the subject matter of challenge in every case of dowry death. Hon'ble the Apex Court in Surinder Singh v. State of Haryana reported in (2014) 4 SCC 129, has again interpreted the said "soon before" as under:
"17. Thus, the words "soon before" appear in Section 113-B of the Evidence Act, 1872 and also in Section 304-B IPC. For the presumptions contemplated under these sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words "soon before" is, therefore, important. The question is how "soon before"? This would obviously depend on the facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time. Therefore, "soon before" is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death.
18. In this connection we may refer to the judgment of this Court in Kans Raj v. State of Punjab, [(2000) 5 SCC 207 : 2000 SCC (Cri) 935] where this Court considered the term "soon before". The relevant observations are as under: (SCC pp. 222- 23, para 15) "15. ... 'Soon before' is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term 'soon before' is not synonymous with the term 'immediately before' and is opposite of the expression 'soon after' as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.
Thus, there must be a nexus between the demand of dowry, cruelty or harassment, based upon such demand and the date of death. The test of proximity will have to be applied. But, it is not a rigid test. It depends on the facts and circumstances of each case and calls for a pragmatic and sensitive approach of the court within the confines of law."
22. Hon'ble the Apex Court in Sher Singh vs. State of Haryana reported in 2015 (1) SCALE 250, has further held as under:
"We are aware that the word 'soon' finds place in Section 304-B; 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 304-B or the suicide under Section 306 of the IPC. Once the presence of these concomitants are 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."
23. Hon'ble the Apex Court in Rajinder Singh vs. State of Punjab (supra) has distinguished the law laid down in Dinesh vs. State of Haryana reported in 2014 (5) SCALE 641, in the following terms:
"The expression "soon before" is a relative term as held by this Court, which is required to be considered under the specific circumstances of each case and no straight jacket formula can be laid down by fixing any time of allotment. It can be said that the term "soon before" is synonyms with the term "immediately before". The determination of the period which can come within term "soon before" is left to be determined by courts depending upon the facts and circumstances of each case."
We hasten to add that this is not a correct reflection of the law. "Soon before" is not synonymous with "immediately before".
24. Adverting to the facts of the case at hand, upon a survey of prosecution evidence, this Court finds that the P.W.-1, Pyare Lal, who is brother of the deceased and P.W.-2, Bachhu Lal who is father of deceased, have very clearly stated that the accused-appellant used to make demand of tractor and due to non-fulfillment of such demand, the decease was treated with cruelty by the accused-appellant. The deceased used to tell her brother and father about this fact. This Court is conscious of the fact that it is not denied that the deceased was married to the accused-appellant barely, two months before the alleged incident. Thus, in a brief period of about two months' marital life, any demand of tractor by the accused-appellant is necessarily a demand "soon before" the death of the deceased. The cause of death of the deceased, according to post-mortem report, Ex. Ka-3 which has been duly proved by P.W.-4, Dr. Sanjay Kumar is strangulation. Her hyoid bone is also reported to be fractured. This injury cannot be caused by the deceased herself.
25. P.w.-4, Dr. Sanjay Kumar has also stated that in case of anti mortem hanging the thyroid cartilage cannot get fractured. Thus, on the basis of cogent and reliable testimonies of P.W.-1, P.W.-2 and P.W.-4, the prosecution has been able to prove that the accused-appellant used to make demand of tractor and due to non-fulfillment of such demand, he treated the deceased with cruelty and ultimately caused her death. The cause of death of deceased, according to post-mortem report, is strangulation and her hyoid bone is also found to be fractured. The death of the deceased occurred in the house of the accused-appellant within a period of two months from the date of marriage of the deceased with the accused-appellant.
26. Accordingly, this Court does not find any illegality or perversity in the impugned judgment and order dated 04.09.2018. The findings of guilt of the accused-appellant under Sections 304-B & 498A I.P.C. and Section 4 of D. P. Act are liable to be affirmed, which are accordingly affirmed.
27. However, keeping in view the fact that there is nothing on record to suggest that the accused-appellant had any previous criminal history and also that he is aged about 40 years and having regard to the fact that the accused-appellant is in jail since conviction and is serving out the sentence awarded to him, the sentence awarded to the accused-appellant under Section 304-B I.P.C. is liable to be modified from ten years' rigorous imprisonment to seven years' rigorous imprisonment only.
28. Accordingly, the sentence awarded to the accused-appellant under Section 304-B I.P.C. is modified from ten years' rigorous imprisonment to seven years' rigorous imprisonment only. The conviction under Section 498A I.P.C. and awarding of sentence for three years' rigorous imprisonment with a fine of Rs.8000/-, ten years' rigorous imprisonment under Section 304B I.P.C. and two years' rigorous imprisonment with a fine of Rs.6000/- under Section 4 Dowry Prohibition Act are also affirmed.
29. With the aforesaid modification, the instant jail appeal deserves to be partly allowed.
30. The instant jail appeal is partly allowed as indicated above.
31. Let the appellant be released forthwith, if he has already undergone the sentences awarded to him as aforesaid provided he is not wanted in any other criminal case.
31. Let a copy of this judgment along with lower Court record, if any, be sent to learned trial Court for information and necessary compliance.
(Ajai Kumar Srivastava-I,J.) Order Date :- 7.7.2022 Mahesh