Allahabad High Court
Raj Kumar vs State Of U.P. on 1 August, 2022
Bench: Kaushal Jayendra Thaker, Ajai Tyagi
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 44 Case :- CRIMINAL APPEAL No. - 6335 of 2011 Appellant :- Raj Kumar Respondent :- State of U.P. Counsel for Appellant :- Arun Kumar Srivastava,K.K. Mishra,Mahesh Kumar Kuntal,Mohd. Samiuzzaman Khan,Shailendra Singh Counsel for Respondent :- Govt. Advocate Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Ajai Tyagi,J.
(Per Hon'ble Ajai Tyagi, J.)
1. This criminal appeal is preferred by appellant-Raj Kumar against the order and judgement dated 17.09.2011 passed by Additional Sessions Judge, Court No.17, Bulandshahr in Session Trial No.1398 of 2007 (State Vs. Raj Kumar) and Session Trial No.86 of 2008 (State Vs. Smt. Geeta and others) arising out of Case Crime No.301 of 2007, under Section 498A, 304B of IPC alternatively under Section 302 r/w Section 149 of IPC and Section 3 and 4 of Dowry Prohibition Act, Police Station- Pahasu, District- Bulandshahr, by which the accused persons Smt. Geeta, Tej Pal and Ram Pratap were acquitted of all the charges. During the course of trial, accused Dharmwati has passed away and trial was abated against her and appellant-Raj Kumar was convicted for the offence under Section 302 r/w Section 149 of IPC and sentenced for life imprisonment with fine of Rs.10,000/- and one year S.I. in case of default of fine. Appellant-Raj Kumar was also convicted under Section 3 of Dowry Prohibition Act, 1961 and sentenced to five years R.I. and fine of Rs.15,000/- and one year S.I. in case of default of fine. Appellant-Raj Kumar was further convicted under Section 4 of Dowry Prohibition Act, 1961 and sentenced to two years R.I. with fine of Rs.5,000/- and six months additional S.I. in case of default of fine. All the sentences were directed to run concurrently.
2. Heard Shri Mohd. Samiuzzaman Khan, learned counsel for the appelllant, Shri N.K. Srivastava, learned AGA for the State and perused the record.
3. The brief facts as culled out from record are that informant Ompal Singh gave a written report in police station- Pahasu, District- Bulandshahr on 13.08.2007 alleging that he is resident of Bank Colony, Bhiwani, Haryana. He had solemnized the marriage of his daughter Pooja on 06.05.2007 with Raj Kumar son of Heera Singh resident of District- Bulandshahr. He had given dowry more than his capacity but in-laws of his daughter were not happy with the dowry given and demanded more amount. He had incurred more than Rs.3 lacs as expenditure in the aforesaid marriage. There was also a plot in the name of his daughter Pooja. It is further stated that in-laws of his daughter Pooja used to pressurize him and his relatives to sell the aforesaid plot and purchase a plot in Khurja for them. It is also stated that before two days of the occurrence, he and his wife went to the matrimonial home of Pooja, where she told them that pressure was being mounted on her for selling the plot, and, she was being threatened for her life. Informant has further stated that he had refused to sell the plot, hence, due to this reason, husband of his daughter Raj Kumar, mother-in-law, sister-in-law Geeta, husband of Geeta, Tej Pal and younger brother of husband Ram Pratap had murdered his daughter Pooja by burning her. On receiving a phone call, he and his wife went to the matrimonial home of Pooja, where they found her burnt body and they came to know that Raj Kumar had also committed similar act with his first wife by burning her.
4. On the basis of the aforesaid written report, a Case Crime No.301 of 2007 was registered at Police Station- Pahasu, under Section 498A, 304B IPC and Section 3/4 Dowry Prohibition Act. Investigation was taken up by the investigating officer, who visited the spot and recovered kerosene oil can, match box and plastic rope from the spot and half burnt leaves of guava tree of which recovery memos were prepared separately. Inquest report was prepared and the post mortem of deceased Pooja was conducted by the panel of two doctors and post mortem report was prepared. During the course of investigation, I.O. recorded the statements of witnesses and site plan was prepared. After completion of investigation, I.O. submitted charge sheet against Raj Kumar and Dharmwati under Section 498A, 304B, 201 and 120B IPC and under Section 3/4 Dowry Prohibition Act. Second charge sheet was submitted to the court against the accused Smt. Geeta, Tej Pal and Ram Pratap under the aforesaid offences.
5. The case, being triable exclusively by the court of Sessions, was committed to the court of the Sessions for trial by the concerned Magistrate.
6. The trial court framed charges against all the accused persons under Sections 304B, 498A of IPC and under Section 3/4 of Dowry Prohibition Act. The accused persons denied the charges and claimed to be tried. After the examination of all the prosecution witnesses, learned trial court framed alternative charge on 25.08.2011 under Section 302 r/w Section 149 of IPC.
7. Prosecution produced following witnesses before learned trial court in oral testimony:
1.
Asha PW1
2. Yogendra PW2
3. Dr. Rajkumar PW3
4. R.K. Singh PW4
5. Vijendra Singh Tomar PW5
6. Padam Singh PW6
7. Ompal PW7
8. Rajpal Singh PW8 Court witness No.1 Bangali Rai Gautam was also examined by the court.
8. In support of its case, the prosecution filed following documentary evidence before the trial court, which was proved by leading the evidence:
1.
FIR Ex.ka.13
2. Written report Ex.ka.1
3. Recovery memo of kerosene oil can, match box and plastic rope Ex.ka.4
4. Recovery memo of half burnt leaves of guava tree Ex.Ka.5
5. Post mortem report Ex.ka.2
6. Panchayatnama Ex.ka.7
7. Site plan Ex.ka.3
9. After conclusion of evidence, statements of accused persons were recorded under Section 313 of Cr.P.C., in which they contended that false evidence was led against them and they were falsely implicated. Accused persons examined no witness in their defence.
10. All the accused except accused-appellant Raj Kumar were acquitted of all the charges and Raj Kumar was convicted and sentenced under Section 302 r/w section 149 of IPC along with Sections 3 and 4 of Dowry Prohibition Act.
11. Learned counsel for the appellant submitted that all the accused persons except the appellant were acquitted by the learned trial court on the same set of the evidence. Hence, the conviction of appellant is bad in the eyes of law. Learned counsel for appellant has raised a legal question namely that initially the charge was framed under Section 304B of IPC along with other offences but after recording of the entire oral evidence by the prosecution, learned trial court framed alternative charge under Section 302 r/w Section 149 of IPC and no opportunity was given to the appellant to defend himself against the aforesaid alternative charge. Learned counsel for appellant submitted that prosecution had examined 8 witnesses, namely PW1 to PW8 and the last witness was examined on 24.08.2009. After about two years, on 25.08.2011 after change of presiding Judge alternative charge under Section 302 r/w Section 149 of IPC was framed by learned trial court, the accused-appellant was not given opportunity to cross-examine any of the witnesses examined i.e. PW1 to PW8 with regard to the charge under Section 302 of IPC., hence, accused had no get opportunity to defend himself against alternative charge for higher offence framed by learned trial court. By this way, the accused was prejudiced. It is submitted that on this ground alone, the trial was vitiated and appellant could not have been convicted under Section 302 of IPC.
12. Learned counsel heavily relied on the judgement of this Court in the case of Santosh Vs. State of U.P. reported in 2021 0 Supreme (All) 173, where one of us (Dr. Kaushal Jayendra Thakar, J.) was signatory to the said judgement. The only defence in the said matter was that in the aforesaid case, the witnesses had turned hostile. In our case, witnesses have not turned hostile, but the fact remains that the accused-appellant was never put to questions even while examining the accused under Section 313 Cr.P.C. with regard to the offence under Section 302 of IPC. Learned counsel for the appellant also submitted that no additional demand of dowry was proved by the prosecution. The appellant had never pressurized his deceased wife for selling the plot in question and purchasing another plot in Khurja. Rather the informant, father of the deceased, himself entered into agreement to sell the aforesaid plot with someone and received Rs.1 lac. For this reason, the deceased was upset and she accidentally died and appellant along with his family members were roped in.
13. Learned counsel has further submitted that learned trial court placed reliance on the evidence of Dr. Rajkumar PW3 who had deposed in connection with the post mortem of the deceased. PW3 had opined that the cause of death of the deceased was asphyxia as a result of smothering. On the basis of this statement alone, the learned trial court convicted the appellant under Section 302 of IPC. It is submitted that it was not proved that the act of smothering was committed by the appellant. Learned trial court convicted the accused on the basis of surmises and conjectures and in preconceived notions on basis of altered charge only.
14. Learned AGA for the State opposed the submissions made on behalf of the appellant and submitted that the deceased died in her matrimonial home after only three months of her marriage and her body was found in burnt condition in matrimonial home. Learned AGA also submitted that all the witnesses of fact have supported the prosecution case and have categorically stated that the deceased was being pressurized for selling the plot of land, which was in her name and she was killed by smothering, which could not be accidental. Hence, the learned trial court has rightly convicted the appellant under Section 302 of IPC. There is no illegality in impugned judgement which calls for any interference by this Court.
15. The legal question, raised by the learned counsel for the appellant is answered by this Court, with regard to the conviction of accused-appellant under Section 302 of IPC. It is evident from the record that in this case PW1 Smt. Asha was examined on 07.04.2008 and the last prosecution witness PW8 Rajpal Singh C.O., Anoopshahr was examined on 24.08.2009. Alternative charge under Section 302 r/w Section 149 of IPC was framed by learned trial Judge on 25.08.2011. First charge was framed under Section 304B of IPC along with other offences and after framing the alternative charge under Section 302 IPC on 25.08.2011, none of the prosecution witness, namely PW1 to PW8 was re-examined nor recalled nor any opportunity was given to appellant-accused to cross-examine any of the aforesaid witnesses on the fresh charge framed. It is also very relevant to note that no evidence with regard to the offence under Section 302 of IPC was led. The accused-appellant was not put to any question during recording of his statement under Section 313 Cr.P.C. and no additional statement under Section 313 Cr.P.C.
16. It would be pertinent to reproduce Section 216 of Cr.P.C. regarding the alteration of charge which reads as follows:
216. Court may alter charge.
(1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
17. It has been time and again held by the Apex Court that Section 313 of Cr.P.C. has its own importance and opportunity to defend anything adverse to the accused should have been given to the accused. The opportunity to cross-examine the prosecution witnesses was not given to the accused-appellant even the prosecution witnesses deposed much before the alternative charge. After framing the alternative charge, learned trial court should have recalled the prosecution witnesses and they should have been permitted to be cross-examined by the accused-appellant, in the absence of which, the accused could not have thought that the said alteration of charge would be acted upon and the trial would culminate into the returning the finding of punishment to him under Section 302 of IPC. The ingredients of Section 302 of IPC were not present in the charge of which the appellant was put to trial. The object and scope of altering the charge and principles therein have been summarized by the Apex Court in Nallapareddi Sridhar Reddy Vs. State of A.P. (2020) 12 SCC 467, which are applicable in our case. The Apex Court in R. Rachaiah Vs. Home Secretary 2016 0 Supreme (SC) 383 has held that alteration of charge in violation of mandate as per Section 216 and 217 Cr.P.C. and conviction recorded under altered charge seriously causes prejudice to the accused. Therefore, this impropriety of the trial court stands vitiated and there could have been no conviction under altered charge namely under Section 302 of IPC. Hence, we hold that the conviction on altered charge was bad because the accused was never given opportunity to defend himself for the offence under Section 302 of IPC and his interest was prejudiced. We are supported in our view by the reasonings in Santosh (supra).
18. We find it very strange that even in alternative charge, the learned trial court has mentioned the ingredients of dowry death, as demand of plot as additional dowry is there. Homicidal death of the deceased Pooja for not meeting out the demand of additional dowry is also there. It is admitted fact that the death of the deceased occurred in her matrimonial home even before seven years of marriage because the occurrence had taken place after three months of the marriage of the deceased. It is also evidence that before two days of the occurrence, the deceased had told her parents for demand of the plot and harassment for that. Hence, in this matter all the ingredients of offence under Section 304B of IPC are present yet, the learned trial court framed alternative charge under Section 302 r/w 149 of IPC. This exercise of learned trial Judge was futile.
19. For dowry death, presumption under Section 113B of Indian Evidence Act, 1872 is drawn, if it is shown soon before her death such woman had been subjected by the person causing death to cruelty or harassment for, or in connection with any demand of dowry, the court shall presume that such person had caused dowry death. The concept of "soon before death" varies from case to case. What is "soon before death" depends upon the facts of each case, keeping in view the proximity live link between the harassment or cruelty and the death of deceased. In our case, it is evident on record that the pressure was being mounted on the deceased for selling the plot, which stood in her name and she was being threatened to life also. In this case facts go to show and it is proved that "soon before her death" the deceased was subjected to harassment in connection with demand of additional dowry because pressurizing the deceased for selling the plot was indirect way of demand of dowry. Hence, when presumption under Section 113B of Indian Evidence Act, 1872 is drawn then the matter falls within the purview of offence under Section 304B of IPC because the marriage of the deceased was solemnized just before three months of the occurrence. Hence, the death of the deceased was within seven years of the marriage and as discussed above it is shown that soon before her death, she was subjected to cruelty/harassment by the appellant in connection with demand of dowry, the death of the deceased would be considered "dowry death".
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 purposes 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.
20. While going through the provision of Section 304B of IPC, it is very clear that it can be read with Section 106 of the Indian Evidence Act and coupled with Section 113B of the Indian Evidence Act. We are fortified in a view that the matter is covered by the ingredients of the said sections. The fact that Section 302 IPC conviction cannot stand but the same time acquittal cannot be ordered in favour of the accused. The ground allegedly taken by accused is also not stated by any cogent evidence being led under Section 313 of Cr.P.C. As we considered the totality we are of the confirmed opinion that the accused has to be dealt with Section 304B IPC and acquittal under Section 304B IPC and conviction under Section 302 IPC cannot be sustained.
21. In case of offence under Section 304B of IPC, there is reverse burden of proof on the accused, which is not in the case of Section 302 of IPC. The learned trial court has committed manifest error by convicting the accused-appellant under Section 302 of IPC on the basis of reverse burden of proof on the shoulders of the appellant. The evidence in this case does not show that Section 302 of IPC is applicable to the facts of this case.
22. Hence, we upturn the judgement and order of the learned trial court to the extent of conviction and sentence of accused-appellant with regard to the offence under Section 302 r/w Section of 149 IPC and convict the accused-appellant for the offence under Section 304B of IPC. The period undergone would be just and proper as the accused-appellant is in jail for more than 10 years. The conviction and sentence of appellant under Section 302 of IPC is set aside and appellant is convicted and is sentenced under Section 304B of IPC to the period already undergone. The conviction and sentence under Section 3 and 4 of Dowry Prohibition Act is maintained. All the sentences to run concurrently as directed by learned trial court. Fine and default sentence maintained.
23. With these observations, the appeal is partly allowed as modified above.
24. Record and proceedings be sent back to the court below.
(Ajai Tyagi,J.) (Dr. Kaushal Jayendra Thaker,J.)
Order Date :- 01.08.2022
Ashutosh Pandey