Allahabad High Court
Puneet Tripathi vs State Of U.P. on 4 August, 2023
Author: Kaushal Jayendra Thaker
Bench: Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Neutral Citation No. - 2023:AHC:157165-DB Court No. - 44 Case :- CRIMINAL APPEAL No. - 1045 of 2016 Appellant :- Puneet Tripathi Respondent :- State of U.P. Counsel for Appellant :- Radhey Shyam Shukla,Rajesh Kumar Mishra Counsel for Respondent :- G.A.,Prashant Kumar Singh With Case :- CRIMINAL APPEAL No. - 1044 of 2016 Appellant :- Shiv Kumar Tripathi And 3 Others Respondent :- State of U.P. Counsel for Appellant :- Radhey Shyam Shukla,Rajesh Kumar Mishra Counsel for Respondent :- G.A.,Prashant Kumar Singh Hon'ble Dr. Kaushal Jayendra Thaker,J.
Hon'ble Umesh Chandra Sharma,J.
(Per: Umesh Chandra Sharma, J.)
1. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.
2. The present appeals have been preferred by the appellants against the judgment and order of conviction and sentencing dated 3.2.2016 in S.T. No. 34 of 2012, Crime No. 440 of 2011 under Section 498-A, 304 B I.P.C. and Section ¾ of D.P. Act, Police Station- Banda, District- Shahjahanpur and S.T. No. 216 of 2013 (State Vs. Shivkumar Tripathi and Others). The learned Additional Sessions Judge, Court No.VII, Shahjahanpur, has convicted the accused-husband for commission of offence under Section 304-B I.P.C. for life imprisonment, under Section 498-A for three years imprisonment and under Section 4 of the Dowry Prohibition Act, for two years imprisonment with fine of Rs. 10,000/- with default stipulation. In connected S.T. the accused Sujeet Tripathi, Shivkumar Tripathi, Smt. Bineshwari and Asha Tripathi have been convicted under Section 304- B for seven years each, under Section 498-A I.P.C. for two years with fine of Rs. 5,000/- each and under Section 4 of the Dowry Prohibition Act, for six months with fine of Rs. 5,000/ each, with default stipulation. It was also directed that out of the aforesaid amount Rs. 75,000/- shall be paid as compensation to the father of the informant and deceased under Section 357 Cr.P.C.
3. Grounds of appeal :
The appellants in both the appeals have taken grounds that the conviction of the appellants is against the weight of evidence on record and is bad in law; on the facts and circumstance, no offence is proved against the appellant; the order passed by the trial Court dated 3.2.2016 is wholly illegal, arbitrary and not sustainable in the eye of law and is liable to be quashed by this Court; the trial Court has erred in law in convicting the appellants without considering the facts and circumstances of the case, and the evidence adduced by the prosecution are contrary to each other; the impugned judgment and order has been passed without application of mind in a mechanical manner; the impugned judgment and order has been passed without application of mind in a mechanical manner; that in any case on the basis of the record of the case, the appellants are liable to be acquitted and the appeal is liable to be allowed as the prosecution has failed to prove their case beyond reasonable doubt; and that the sentence and fine awarded is too excessive and severe.
4. In brief, facts of the case are that informant Km. Pooja Vajpayee moved a written complaint Ex. Ka-1 on 23.8.2022 that her sister Smt. Vandana Vajpayee (deceased) was married to Puneet Tripathi about two years ago. Her parents had given dowry as per their capacity in the marriage but accused persons were not satisfied and were demanding a Wagon R Car. When the aforesaid demand could not be fulfilled, they started beating and torturing her sister. Her sister was posted as a Primary Teacher in Banda District Shahjahanpur and used to live in a rented house of one Anil Jaiswal with her son namely Achintya aged about one and half year. Her mother Smt. Shashi Vajpayee was also living with Vandana. On 22.08.2011 at about 10:30 AM, accused Puneet and his family members came to the house of Vandana and at about 4:00 P.M. ousted her mother from the house saying that they did not provide the Car, today, you taste the fun. Her mother remained at the house of landlord and at about 7:00 PM on hearing her daughter's screaming, she went there and saw that Puneet and his family members had caught the deceased and administered some material from a bottle to her. After drinking, Vandana started vomiting, all the accused persons after administering poison, fled away. Her father was keeping ill much before the incident. Puneet and his family members used to threaten that if Car was not provided, they would kill Vandana and also that Puneet shall marry someone else.
5. On the aforesaid application, the F.I.R. was registered and chick F.I.R., Ex. Ka-10 and G.D., Ex. Ka-11, were prepared. The I.O. prepared site plan, Ex. Ka-3, and recorded the statement of witnesses and arrested the accused and submitted charge-sheet No. 32 of 2011, Ex. Ka-4, against Puneet under Section 498A, 304 B I.P.C. and ¾ D.P. Act. The investigation was kept pending against rest of the accused persons. Thereafter the investigation was entrusted to Sri Vikas Kumar Vaidhya, C.O., who after recording the statements of the witnesses submitted charge-sheet No. 32A/2011 dated 01.08.2012, Ex. Ka-5, against rest of the accused persons.
6. The C.J.M. Shahjahanpur took cognizance and committed the case to the Court of Sessions. Learned Addl. Sessions Judge, Court No. 6, Shahjahanpur, framed charges on 14.5.2012 against accused Puneet Tripathi under Section 498-A, 304-B I.P.C. and Section ¾ of the Dowry Prohibition Act. The accused denied the charges and sought trial.
7. So as to bring home the charge, the prosecution has examined 9 witnesses who are as under :
1Km. Pooja Vajpayee PW1 2 Smt. Shahsi Vajpayee PW2 3 Raj Narain PW3 4 Pinki Srivastava PW4 5 Dr. Manoj Kumar Srivastava PW5 6 I.O/C.O. Rajesh Kumar Sonkar PW6 7 I.O./C.O. Vikas Kumar Vaidhya PW7 8 Nayab Tehsildar Gajendra Singh PW8 9 Constable Virendra Singh PW9
8. So as to give credence to these oral testimonies following documents were also filed by the prosecution to bring home:
1Written complaint Ex.Ka.1 2 Post-mortem report of deceased Vandana Ex.Ka.2 3 Site Plan Ex. Ka. 3 4 Charge-sheet No. 32 of 2011 Ex. Ka. 4 5 Charge-sheet No. 32A/11 Ex. Ka. 5 6 Panchnama Ex. Ka. 6 7 Photo Lash Ex. Ka.7 8 Post-mortem Form Ex. Ka. 8 9 Post-mortem letter Ex. Ka.9 10 Chick F.I.R.
Ex. Ka.10 11 Kayami G.D. Ex. Ka.11 12 Marriage Card M. Ex-1
9. In brief, evidence of the witnesses are reproduced hereinbelow:
(a) P.W.-1, Km. Pooja, informant deposed that, her sister Smt. Vandana Vajpayee (deceased) was married to Puneet Tripathi about two years ago. Her parents had given dowry as per their capacity in the marriage but accused persons were not satisfied and were demanding a Wagon R Car. When the aforesaid demand could not be fulfilled, they started beating and torturing her sister. On 22.8.2011, Puneet and other family members came to the house of Vandana and at about 4:00 PM, they ousted her mother from the house of Vandana saying that she could not provide a wagon R car now enjoy the taste. Her mother came down from the room and stayed in the house of landlord. At about 7:00 PM, screams were heard upon which her mother ran out and saw that the family members of Puneet had caught her sister and Puneet having some substance in a vial, gave it to Vandana. All the accused persons ran away after pushing her mother. Her sister started vomiting. Her mother took Vandana to the Banda, hospital, Puneet also reached there wherefrom she was referred to District Hospital, Shahjahanpur where she died. Panchayatnama was filled in the afternoon. She told the whole incident to the S.O. in police station, then she got it typed by narrating to a typist. C.O. had not not investigated the case properly, he had not recorded the statement of her mother, father and maid Pinki. She complained to D.G. & I.G. Police. Witness Anil Jaiswal, Geeta Jaiswal and Apoorva Mishra were in connivance with the accused persons. Before this incident, accused persons used to tender threats to kill her sister and get Puneet remarried. Her sister had filed a divorce petition no. 544 of 2011 in Kanpur Nagar. The marriage was solemnized on 01.12.2008. This witness is not an eyewitness of the main incident.
(b) P.W.2, Smt. Shashi Vajpayee, has also given similar statement to that of P.W.-1. In addition to that she has deposed that her son-in-law was M.R. in Cipla Company. She saw that accused persons were putting something in the mouth of her daughter, when accused persons pushed her, she fell down and they ran away. As she started crying. Anil Kumar came up and took her daughter to hospital and from there to District Hospital, Shahjahanpur where she died in the morning. She had informed her daughter Pooja and her husband who reached in the morning and after seeing the dead body, Pooja lodged the F.I.R.
(c) P.W.-3, Raj Narain, father of the deceased has also given similar statement to that P.W.1. He is not an eye witness.
(d) P.W.-4, Pinki Srivastava, has deposed that she was working at the house of the deceased since a year before the incident. She used to take care of son of the deceased on payment of Rs. 1500/- per month. Accused Puneet used to come there at 8-10 days and stay there for 2-4 day. They often used to quarrel. Puneet used to demand Wagon R Car and money from her. Both of them quarrel about this matter. She has seen and heard them quarreling with her eyes. When Puneet used to come and stay there, she used to go to her house. Puneet also used to quarrel with his mother-in-law for not fulfilling the demand of Car. On the day of incident at about 10:30 AM, Puneet, his mother, father, brother and sister-in-law had come to the house of Vandana. She did not know the name of the rest of the accused persons. The above persons had beaten the deceased and drove her mother away at about 4:30 PM, she went down to the part of landlord and sat down there till 5:30. The deceased told her to go to market with her son Achchu and gave her Rs.20 that is why she went to the market and returned at 5:30 PM. When she came back, mother of the deceased met there and took Achchu from her. At about 8:00 PM she came to know that Vandana was in the Government Hospital Banda, she went there. She was not permitted to meet Vandana by Neelu, Anil and Minku.
(e) P.W.-5, Dr. Manoj Kumar Srivastava, proved post-mortem report, Ex. Ka-2, and stated that he had conducted post-mortem on the body of the deceased. No injury was found before the death of the deceased. The cause of the death could not be ascertained and Viscera was preserved
(f) P.W.-6, Rajesh Kumar Sonkar, C.O., has proved the site plan and charge-sheet, Ex. Ka3 and Ex. Ka-4 and deposed that he had investigated the case and entered the viscera report in paper no. 7 of the charge-sheet and after recording the statement of the witnesses, he submitted charge-sheet against the accused Puneet.
(g) P.W. -7, I.O, Vikas Kumar Vaidhya, proved the material exhibit-1 and charge-sheet Ex. Ka-5 and has deposed that he had written statements of the witnesses. He had exonerated accused Neelam.
(h) P.W.-8, S.I. Gajendra Singh, has proved the inquest report Ex. Ka-6, photolash, Ex. Ka-7, challan lash, Ex.Ka-8, letter to C.M.O. Ex. Ka-9.
(i) P.W.-9, Constable, Virendra Singh, proved F.I.R., Ex. Ka-10 and Kayami G.D., Ex. Ka-11, to be in his handwriting and signature.
10. From the defence side D.W.-1, Smt. Kalpna Singh, Assistant Teacher, Primary School, Dharmapur, Block- Banda, Shahjahanpur has been examined. She has proved Ex. Kha-1 and Kha-2.
11. This case is decided as under:
F.I.R.: As per prosecution version the incident occurred at about 7: 00 P.M. on 22.8.2011, the deceased was taken to Banda Hospital just after the incident wherefrom she was admitted to the District Hospital Shahjahanpur and in the morning on 23.8.2011 she died. The informant Km. Pooja Vajpayee, sister of the deceased, Vandana, moved the written complaint, Ex. Ka-1, for lodging the F.I.R. which was registered at 3:45 P.M. and chick F.I.R., Ex. Ka-10 was prepared.
According to this Court there is no delay in lodging the F.I.R. In the F.I.R. all the necessary facts have been incorporated. It is settled principle of law that F.I.R. is not an encyclopedia, it is not a substantive piece of evidence, it can be used only for contradiction of the informant. It has been proved from the evidence that at the time of evidence only mother, P.W.-2. Smt. Shashi Vajpayee and P.W.-4, Pinki Srivastava, were there. When Smt. Shashi Vajpayee informed her daughter and husband at Kanpur, they reached to Shahjahanpur and saw the dead body of the deceased, thereafter the informant wrote the complaint and produced in the concerned police station for lodging the F.I.R. and taking action.
In Bable Vs. State of Chhatishgarh, AIR, 2012 SC 2621; Bhagwan Jagannath Markad Vs. State of Maharashtra, (2016) 10 SCC 537; Jarnail Singh Vs. State of Punjab, (2009) 9 SCC 719, it has been held that F.I.R. registered under Section 154 Cr.P.C. is not a substantive piece of evidence, it is not the encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging the F.I.R., the informant should state all those facts which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly.
On the basis of the above discussion it is concluded that there is no delay or discrepancy in lodging the impugned FIR.
12. Motive:
As per F.I.R. and prosecution, the marriage between the deceased and the accused was solemnized about two and half year ago, her parents had given dowry as per their capacity but the accused persons were not satisfied with the dowry given in the marriage and after the first farewell of the marriage, all the accused persons started demanding Maruti Wagon R Car in dowry. Due to non-fulfillment of demand, Vandana's husband Puneet and his family members started beating and torturing her in various ways. The deceased was employed as a teacher in Banda Basic Primary School Shahjahanpur and lived with her son Achintya, aged about one and a half year, in the rented house of Anil Jaiswal, near cooperative Bank Banda Shahjahanpur. For about a month, Smt. Shashi Vajpai, mother of the deceased was living with her. The accused Puneet husband of the deceased works in Kanpur Nagar and keeps coming to district Shahjahanpur to her wife. The informant P.W.1 has deposed about the demand of dowry, abuse and torturing with regard to the demand. She has also deposed that in Chauth farewell, Puneet asked for a Wagon R Car and one lakh cash from the deceased which she conveyed to the family members. It is admitted to the accused persons that the deceased had instituted a divorce petition no. 544 of 2011 in the Family Court Kanpur Nagar and accused Puneet had also filed a suit for restitution of conjugal rights in Lucknow.
According to the accused Puneet Tripathi, the divorce petition was instituted by making overwriting of the deceased's signature as on the date of institution i.e. 25.04.2011, she was on duty at Shahjahanpur. The trial Court did not consider overwriting on the divorce petition such as 2010 has been corrected as 2011, age of Puneet Tripathi has been corrected from 35 to 32, there is cutting in para 3 and also overwriting on the date, month and the year. It has been corrected by making overwriting as 25.4.2011 on which date she was teaching in her school at Shahjahanpur. From these facts, it is proved that someone else appeared as Vandana and had filed the divorce petition through impersonation.
It has been admitted to the accused persons that the suit for restitution of conjugal rights had been dismissed. According to the accused, it had been got dismissed on the assurance of the deceased as she was also frustrated due to intervention of her family members. Though it has not been proved that the case of restitution of conjugal rights had been not pressed by the accused on the assurance of the deceased. However, there is no evidence or writing left by the deceased to show that she was not aware about the pendency of aforesaid divorce petition. It is common and mandatory practice in Family Courts that after institution of any petition, notices are sent to the opposite parties and in view of judgment of the Apex Court and also according to Section 89 C.P.C. first of all parties are sent to Reconciliation Centre and if the matter is not reconciled only then the family Court proceeds to decide the case on merit. In this case no evidence has been adduced by either side to prove that after institution of the alleged divorce petition any notice was served upon accused Puneet and he was called by the Reconciliation Centre of the Family Court, Kanpur Nagar, on any particular date. However, when it is admitted to both the parties that a suit under Section 9 of the Hindu Marriage Act, had been filed by the accused Puneet, it goes to show that certainly there were some fractions between both of them and the deceased was not living with her husband either voluntarily or due to her service conditions. But if compromise as alleged by the accused would have taken place between both the parties, the divorce petition would have also been dismissed on the application of the deceased. Thus this Court is of the view that the marital dispute between the accused persons and the deceased was still existing.
In Nagraj Vs. State, (2015) 4 SCC 739 (para 13); Babu Vs. State of Kerala (2010) 9 SCC 189; Nathuni Yadav Vs. State of Bihar (1998) 9SCC 238, it has been held that prosecution should prove motive of the accused if the case is based on circumstantial evidence and not in the cases which are based on direct evidence.
In G.Parshwanath Vs. State of Karnataka, AIR 2010 SC 2914; Jagdish Vs. State of M.P., 2009 (9) SCC 495, it has been held that if chain of circumstances are complete, absence of motive is not of much consequence.
In Sanjeev Vs. State of Haryana, (2015) 4 SCC 387 (para 16), it is held that it is settled principle of law that to establish an offence of murder by an accused, motive is not required to be proved, motive is something which prompts a man to form an intention. The intention can be formed even at the place of incident at the time of commission of crime. It is only either intention or knowledge on the part of the accused which is required to be seen in respect of the offence of culpable homicide. In order to read either intention or knowledge, the Courts have to examine the circumstances, as there can not be any direct evidence as to the state of mind of the accused.
In this case it has been proved that the deceased was living separately in Shahjahapur because of her service and she had also filed a suit for a decree of divorce against the accused Puneet Tripathi in Kanpur Nagar and probably no monetary gain was tendered to the accused persons and the demand of providing a Wagon R Car was not fulfilled. The accused Puneet Tripathi has admitted in his bail application that on the day of occurrence, he had visited the house of the deceased where a quarrel had taken place. Thus it can not be said that there was no motive behind the commission of the alleged crime.
On the basis of the above discussion, this Court is of the view that there was a motive behind the commission of crime and it has also been proved from the oral and documentary evidence as well. Though it is a case of direct evidence based on the evidence of P.W.2 and P.W.4, therefore, the prosecution is not duty bound to prove any motive behind the commission of crime.
13. Inquest:
From the inquest exhibit Ka-6, it transpires that the report about commission of crime and death of the deceased was communicated to police station Banda on 23.8.2011 at 7:30 a.m. The dead body was transmitted to District Hospital Mortuary at 11:30 A.M. And the I.O. started the inquest proceeding at 1:00 PM, he annexed copy of the F.I.R. but as per chick F.I.R., the F.I.R. was reduced in writing at 3:45 PM. If it is true either only a copy of the information would have been provided to the concerned S.I. Or the concerned constable Moharrir had wrongly mentioned 3:45 PM as time of preparation of chick F.I.R. However, it is immaterial for the purposes of this case as it is not affecting the merit of the case. It is settled law that the inquest is not a substantive piece of evidence and it has only corroborative piece of evidence. However, in the opinion of punchas, and the I.O. and Nayab Tehsildar Sadar, the deceased would have been died due to poison.
In Radha Mohan Singh @ Lal Saheb Vs. State of U.P., 2006 (2) SCC 450 , three Judges Bench, it has been held that argument advanced regarding omissions, discrepancies, overwriting, contradiction in inquest report should not be entertained unless attention of the author thereof is drawn to the said fact and opportunity is given to him to explain when he is examined as a witness. There is no requirement in law to mention details of F.I.R., names of accused or the names of eyewitnesses or the gist of the their statements in inquest report, nor is the said report is required to be signed by any eyewitness.
In Brahm Swaroop Vs. State of U.P., AIR 2011 SC 280, it has been held that the basic purpose of holding inquest is to report regarding the apparent cause of death namely whether it is suicidal, homicidal, accidental or by some mechanary etc. It is therefore not necessary to enter all the details of the overt acts in the inquest report.
In George Vs. State of Kerala, AIR 1998 SC 1376, it has been held that the details that how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of such proceedings.
In view of the above judgments, this court does not find any illegality or substantive irregularity in the inquest report.
14. Post-mortem :-
In this case after the inquest, the dead body was given to the concerned doctor for post-mortem who conducted the post-mortem and could not ascertain the cause of death, hence, preserved the viscera which was sent for chemical examination. As per chemical examination report, there was pesticides in the internal organs of the deceased which caused her death. Thus, the opinion of punchan, Nayab Tehsildar, I.O. finds support from the FSL report. The post-mortem was conducted at 4:00 P.M., the post mortem doctor opined that the deceased would have died about half a day prior to the post-mortem. The witness also opined that there could be variation of about six hours. In this case the time of death of the deceased is not in question, hence, any variation in the time of the death of the deceased is immaterial. It is settled principle of law that the opinion of doctor and doctor's report is mere an opinion and subject to the scrutiny of the court.
In State of U.P. Vs. Mohd. Iqram, (2011) 3 SCC (Cri.) 354, it is held that post mortem report is not a substantive piece of evidence, if it is proved it does not mean that its each and every content thereof is also proved or can be held admissible.
15. Burden of proof :-
It is admitted and has also been proved that the deceased had died unnatural death within three years of the marriage, hence, in this respect Section 113-A and Section 113-B of The Indian Evidence Act become relevant which are as follow :
"Section 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.
Explanation. -- For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).
Section 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 purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."
In this case there is allegation of abusing, torturing for non fulfillment of demand of dowry and killing of the deceased within seven years of marriage hence, Section 113-B would be attracted and burden would be upon the accused persons that how the deceased died of unnatural death as it has been established that on the date and time of occurrence accused and deceased were together and the deceased was under the custody of the accused.
In V.K. Mishra Vs. State of Uttrakhand, (2015) 9 SCC 588 (Three Judge Bench), Panchanand Mandal Vs. State of Jharkhand, (2013) 9 SCC 800, Sanjay Kumar Jain Vs. State of Delhi, 2011, (11) SCC 733, the Apex Court has held that before recording conviction of an accused under Section 304-B, I.P.C. The following conditions must be proved;
(i) That the death of woman was caused by burns or bodily injury or otherwise than under the normal circumstances;
(ii) That such a death should have occurred within seven years of a marriage;
(iii) that the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) That such cruelty or harassment should be for or in connection with demand of dowry.
(v) That such cruelty or harassment is shown to have been meeted out to the woman soon before her death.
In Harish Kumar Vs. State of Haryana, 2015 (88) ACC 640 SC, it has been held that in the event of presumption under Section 113-B of the Evidence Act, burden shifts on the accused to rebut it.
In Surinder Singh Vs. State of Haryana, (2014) 4 SCC 129; Manohar Lal Vs. State of Haryana, (2014) 9 SCC 645, it has been held that for presumptions contemplated under Section 304-B I.P.C. And 113-B of the Evidence Act, to spring into action, it is necessary to show that the cruelty was caused soon before victim's death. The question is how much 'soon before' would obviously depend on facts and circumstances of each case.
In Satbir Singh Vs. State of Haryana, AIR 2005 SC 3546, it is held that where the prosecution established the ingredients of dowry death under Section 304-B I.P.C. It was held that onus was on the accused to rebut the presumption under Section 113-B. Since, it has been proved from the evidence of P.W.2 and P.W.4 that at the time of commission of crime the accused persons were in the house of deceased with her, hence, actually what happened and in what circumstances and in which manner, a hale and hearty lady died would have to be explained by the accused persons, therefore, according to this Court the accused persons are also under the obligation and burden to explain the cause of death of the deceased under Section 106 of the Evidence Act.
Section 106 Indian Evidence Act is as under:
"Section 106 : Burden of proving fact especially within knowledge.
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
According to this Section where a fact is specially within the knowledge of a party, the burden of proving that fact lies upon him.
In Eshwaraiah Vs. State of Karnataka, (1994) 2 SCC 677, the facts were that a man and a woman were found hiding under a bed in the bedroom of the person who was laying dead of injuries, it was held that the burden lay upon them to explain their presence and, also the circumstances in which the deceased met his death.
In State of Himachal Pradesh Vs. Raj Kumar, (2018) 2 SCC 69, it has been held that if an accused does not throw light on a fact which is within his knowledge, his failure to offer any explanation would become a strong militating circumstance against him.
In Balram Prasad Agrawal Vs. State of Bihar, (1997) 9 SCC 338, a house wife was drown to death in the well in the court-yard of the house of her in-laws who were the only people present in the house at that time. Cruelty by the in-laws for over years was also an established fact. Accordingly the Supreme Court held that the burden lay upon the accused in-laws to show as to what happened during the night which brought about her death.
Though this Court is well aware that the initial burden for proving a case against the accused persons rests upon the prosecution and if the initial burden is discharged only then the liabilities under Section 106 or Section 113-B commence.
Though it is settled principle of law that it is trite that the prosecution has to stand on its own legs and sufficient evidence should be produced to prove the allegation, no aid of Section 106 can be taken by the trial Court. Kailash Chand Vs. State of Rajasthan, (2017) 11 SCC 268.
16. Place of occurrence:
In this case it is not denied by the accused-appellants that the place of occurrence is not the same as described by the prosecution. There is no objection from the side of accused persons regarding this aspect of the case.
17. Non-examination of the alleged independent eyewitnesses and examination of interested and related witnesses:
In this case P.W.-1 to P.W.-3 are the sister, mother and father of the deceased and P.W.-4 is the maid of the deceased. It has been argued that the independent eyewitnesses such as Anil Jaiswal, Geeta Jaiswal, Rinku, Manisha and Mamta, teachers, living near the deaceased and Apoorva Mishra @ Neelu who took the deceased to the hosptial are not examined. According to P.W.2 they had become hostile and were not ready to depose in favour of the prosecution. It has also been blamed that Neelu did not permit her to go inside the Banda Hospital when her daughter was admitted before her death.
In Bhagwan Jagannath Markad (supra), in Dhari and Others Vs. State of U.P. AIR 2013 SC 308, Shyamal Ghosh Vs. State of West Bengal, AIR 2013 SC 3539, Prithi Vs. State of Haryana, (2010) 8 SCC 536, Suchha Singh Vs. State of Punjab, (2003) 7 SCC 643, it has been held that the testimony of a witness in a criminal trial can not be discarded merely because the witness is a relative or family member of the victim of the offence, in such a case Court has to adopt a careful approach in analysing the evidence of such witness and if the testimony of the related witness is otherwise found credible, accused can be convicted on the basis of testimony of such related witness. Similar principles have been laid down in respect of the inimical witness.
In Bhagwan Jagannat Markad (supra), Mukesh Vs. State of N.C.T of Delhi and Ohters, AIR 2017 SC 2161 (Three Judges Bench), Ashok Kumar Chaudhary Vs. State of Bihar, 2008 (61) ACC 972 SC, it has been held that non-examination of independent witness is not a mathematical formula for discarding the weight of the testimony available on record, however, natural, trustworthy and convincing it may be. It is settled law that non examination of eyewitness can not be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of pen. Court can convict an accused on the statement of a sole witness even if he is relative of the deceased and non-examination of independent witness would not be fatal to the case of prosecution.
In Dharnidhar Vs. State of U.P., (2010) 7 SCC 759; Dalbir Kaur Vs. State of Punjab, (1976) 4 SCC 158, it has been held that non-examination of independent eyewitnesses is inconsequential if the witness was won over or terrorised by the accused.
In Bhagwan Jagnnath (Supra) and in Nand Kumar Vs. State of Chhatisgarh, (2015) 1 SCC 776, it has been held that prosecution is not bound to examine its all witness. Discretion lies with the prosecution whether to tender or not witness to prove its case. Adverse inference against prosecution can be drawn only if withholding of witness was with oblique motive.
In this case it has been accepted by the accused during the trial that P.W.-2, mother of the deceased, was there. It is an undisputed fact that in connection of service the deceased was living on the place of occurrence near service place with her infant. It has also been proved that her mother P.W.-2 sparing sometime used to visit her daughter and stay there. As the deceased was in service, a maid servant P.W.-4 Pinki was kept in service by the deceased to look after her household affairs and the infant. In the aforesaid circumstances it can not be said that on the date and time of occurrence, P.W.-4, Pinki, was not there. It has come in evidence of P.W.1 that after death of the deceased, Pinki was serving to the family members of the deceased at Kanpur.
Learned counsel for the appellants submitted that since the above mentioned independent witnesses have not been examined and it has not been proved that they were connected in any way with the accused persons therefore in this case no fair and impartial trial has been conducted by the trial Court. The trial Court has considered the statements of the interested and partial witnesses who have not adduced truthful evidence. P.W.4, Pinki, was won over by the informant and her family members and when she deposed in the Court, she was working in their house in Kanpur Nagar. Learned counsel heavily pressed Section 114 (g) of the Indian Evidence Act, which is as under:
"Section 114 (g) - That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it"
In Union of India Vs. Mahadeolal Prabhudayal, AIR 1965 SC 1755, it has been held that the law permits the Court to draw such a presumption when the best evidence will be kept away from the Court.
18. Ocular and medical evidence :-
Here the prosecution case is that the accused persons administered poison to the deceased due to which she died in the hospital during the treatment. Though from the inquest report and post-mortem report it had not been confirmed that the deceased had died due to poison but from the viscera report obtained from the F.S.L it has been established that it was pesticide which caused death of the deceased. Thus, in this case the prosecution version, ocular evidence and the medical evidence are in consonance with each other.
In Moinuddin Vs. State of U.P., 2004 (50) ACC 244, it has been held that in the case of death by poisoning prosecution is required to prove following ingredients against the accused;
(i) That the death took place by poisoning
(ii) That the accused had poison in his/their possession
(iii) That the accused had an opportunity to administer the poison;
As per the F.S.L. Report Part-D, 000 592 dated 23.11.2013, there was insecticide poison in viscera.
19. Suicide note theory from the side of defence -
The accused had taken ground that the deceased had written a suicide note before her death. In this regard they had moved an application 99A before the lower court and had also provided a suicide note. In the suicide note following words have been transcribed in Hindi alleged to be written by the deceased Vandana Vajpayee Tripathi which is as under:
"मैं वन्दना बाजपेयी त्रिपाठी अपने पूरे होश में यह कहती हूँ कि मैं गृह कलह की वजह से आत्महत्या करने जा रही हूँ। इसके लिए न ही पुनीत त्रिपाठी जी और न ही मेरे माता पिता जिम्मेदार है।
यह मेरा स्वैच्छिक कदम है।"
About this suicide note a statement had been given by the accused-husband stating therein that after knowing death of her wife when he visited Banda, the landlord had given this suicide note to him. Its photocopy was sent by him to higher police officials but in this regard both the I.Os. P.W.-6 and P.W.-7 have denied that any such suicide note was provided to them. It is noteworthy that in bail application Puneet Tripathi has admitted his presence and quarrel in the house of the deceased on the alleged date and time and as per bed head ticket, the deceased was brought to the hospital by him but during the trial he denied his and his family members visit and presence on the date, time and place of occurrence. However, the landlord has not been examined and under Section 233 Cr.P.C. the accused could prove the alleged suicide note in favour of the accused persons.
20. Appreciation of evidence :-
In this case P.W.-1 is not the eyewitness, she reached in the morning of 23.8.2011 after getting information from her mother P.W.-2 in the evening of 22.8.2011. After seeing the dead body of her elder sister, she lodged the F.I.R. She has proved the contents of the F.I.R. and has deposed in favour of the prosecution. She has also deposed that first C.O. Was in favour of the accused persons and he was not properly investigating the case, even he did not record the statements of P.W.2 , herself and P.W.4. She has deposed that landlord Anil Jaiswal, Geeta Jaiswal and Apoorva Mishra@ Neelu turned in favour of the accused persons, hence they were not examined by the prosecution. This witness has also proved the written complaint Ex.Ka-1, demand of Wagon R Car and abusing and torturing by several means and also the threatening tendered by accused Puneet to remarry after killing her sister.
According to this Court from the side of accused persons an absurd suggestion has been given to this witness during the cross examination that the relations between the deceased and accused Puneet had vanished when the deceased joined the service as it has been proved from the evidence that the deceased was a government teacher and was in training since before her marriage. She was posted at Shahjahanpur, Government Education Department in the month of April 2008 while her marriage was solemnized with the accused on 01.12.2008 and later on she had been posted as Teacher in Dharmapur Primary School. It is also noteworthy that no clearcut suggestion had been given to this witness that the accussed persons had not visited the place of occurrence, house of the deceased, on the alleged date and time of occurrence.
P.W.-2, mother of deceased had categorically supported the prosecution version and she has also given intact evidence during the cross-examination. No suggestion has been given to this witness regarding previous torturing and atrocities caused by the accused persons. Similarly no suggestion has been given to this witness that the accused persons had not visited the deceased on the date and time of occurrence but a suggestion has been given that before joining education department at Shahjahanpur, deceased was working as a computer clerk in an eye clinic of Dr. Awadh Dubey and had illicit relation with him. According to this Court if it was so, why accused Puneet had solemnized marriage with her is a considerable point as a defence has also been set up by the accused persons that accused Puneet Tripathi used to visit the aforesaid clinic as MR and love relations had developed between both of them. It is also noteworthy that no such suggestion has been given to P.W.1, P.W.3 and P.W.4. It is also a matter of concern that if the accused Puneet Tripathi was knowing subsistance of such illicit relation, why instead of filing a petition of divorce, a case for restitution of conjugal rights had been filed by him in Lucknow.
On the basis of the above discussion, this Court is of the conclusion that either the question/suggestion regarding illicit relation with doctor Dubey is based on incorrect fact or the case under Section 9 of the Hindu Marriage Act was only to make a show off.
P.W.-3, father of the deceased, has also deposed in favour of the prosecution and has proved the prosecution case. He has given intact evidence even in cross-examination. He has proved demand of dowry, cruelty, torturing and threatening to the deceased to remarry after killing her. No suggestion has been given to this witness regarding demand of dowry, torturing, cruelty or illicit relations with Dr. Dubey and the deceased. Thus the depositions made by this accused in examination-in-chief upon which the witness has not been cross-examined, becomes absolute.
P.W.-4, Pinki Srivastava, maid, has deposed about arrival of the accused persons on the date and time of the occurrence and has also proved the fact that accused Puneet Tripathi used to visit the deceased frequently and quarrel usually occur between both of them. No suggestion has been given to this witness that on the date and time of occurrence deceased's mother was not there and no demand of dowry was made regarding Wagon R Car from the deceased.
A self contradictory suggestion has been given to this witness at page 4 of the cross-examination where the learned counsel for the accused suggested the witness that after death of Vandana, Pooja Vajpayee and her father Raj Narain were bearing her expenditure. According to this Court by giving such suggestion the accused persons have admitted that P.W.4, Pinki, was the maid of the deceased during her lifetime and therefore her presence on the place of occurrence on the alleged date and time can not be denied.
Just after another question contrary to the above noted suggestion, a suggestion has been given by learned counsel for the accused for which she replied that it is wrong to say that she had not served ever in the house of the deceased Vandana Vajpayee.
21. From the overall discussion, it has been proved that the relation between the deceased and her husband were not cordial, however, institution of a suit for restitution of conjugal rights goes on to show that accused Puneet Tripathi wanted to keep the relation intact. The defence version is that it was a love marriage and the love affair arose between both of them when the deceased was working as a computer clerk in the eye clinic of Dr. Awadh Dubey at Kanpur Nagar which resulted into an arranged marriage. In this regard, learned counsel for the appellant, pointed out the case of the prosecution that when the accused was medical representative (MR) had also been promoted as area manager no such meager amount and ordinary articles would have been demanded as dowry. It has also been argued that for an Area Manager of a renowned medicine pharma company, purchasing a Wagon R car is not a big task when such cars are available on minor down payments.
22. It is noteworthy that none of the above noted independent witnesses were examined by the trial Court and in the garb of High Court's order passed on bail application, the learned trial Court concluded the trial in hurried manner without summoning the actual witnesses present on the spot who also carried the deceased to the Banda Hospital and District Hospital Shahjahanpur. The learned trial Court did not consider as to whether the divorce petition was the result of impersonation or not and the learned trial Court also did not attempt to send the alleged suicide note for expert opinion when the admitted signature of the deceased were very much available in records. Even the learned trial Court did not try to compare the signature and hand writing of the alleged suicide note with the available writing and signature of the deceased under Section 73 of the Evidence Act.
23. It is further pointed out that except the evidence of alleged eyewitnesses P.W.2 and P.W. 4, there is no iota of evidence to record the conviction of the accused persons under the alleged charge of dowry death, cruelty and demand of dowry.
24. It is has also been pointed out that in first page of the cross-examination, P.W.-2, mother of the deceased has admitted that she had met to Neelam Shukla, sister of the accused Puneet Tripathi, in his marriage and thereafter at the time of death of his brother Ajeet Tripathi who had died in a road accident on 17.12.2010. It is argued that Neelam Shukla who had been married 25 years before the incident had also been falsely implicated in this case to be present with rest of the accused persons at the date and time and place of occurrence. According to learned counsel for the appellants, if this lady may state and depose falsely against Neelam Shukla who was exhonerated by the IO and against whom no charge-sheet had been submitted, this lady may also falsely implicate rest of the family members in addition to Puneet Tripathi.
25. At this juncture, learned counsel relied on the judicial precedents of Geeta Mehrotra and another Vs. State of U.P. And another reported in AIR 2013 Supreme Court 181 and "Kahkashan Kausar @ Sonam and others Vs. State of Bihar and others reported in 2022 0 Supreme (SC) 117" in which it has been held by the Apex Court that it is common tendency to falsely implicate the whole of the family members of the husband in a matrimonial disputes and also in cases of dowry death. For ready reference the relevant parts of these two precedents are reproduced herein below;
In Geeta Mehrotra (supra) the Hon'ble Supreme Court has held that;
"in F.I.R. the allegations as to active involvement of the applicants is absent, mere casual reference to their names in F.I.R. is not sufficient to take cognizance. It is further submitted that in F.I.R., charge-sheet and statement of witnesses, there is no specific and distinct allegations made against the applicant no.1 and applicant no.2, the allegations are general and omnibus and can be said to have been made out on account of small skirmishes. In above circumstances, the order of taking cognizance on the charge-sheet, charge-sheet and the proceeding of the lower court is liable to be quashed."
In Kahkashan Kausar @ Sonam (Supra) the Hon'ble Apex Court has been pleased to hold as follows:
"18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."
It has also been argued that P.W.-4, father of the deceased was anyhow pulling on his family and he had become dependent upon the deceased after she got the service as Teacher. In this regard several suggestions have been given and on several points witnesses of fact have been cross-examined by the defence, that when the deceased received salary amount cumulatively for several months, it was misutilised by her family members and even a forged will dated 17.4.2009 alleged to be executed by the deceased, in favour of her father regarding her house no. L 849 Awas Vikas Colony Kanpur Nagar, had been manufactured committing forgery. It is true that generally wills are executed at the later stage of life in anticipation of death and seldom by a person so young.
It has also been argued that if all the accused persons had visited the deceased on the alleged,date and time of occurrence with an object to administer poison to the deceased, why was the door left open by them. On this ground, learned counsel for the appellants argued that the mode and manner of administering poison as alleged by the prosecution is quite unnatural and being a hale and hearty person accused Puneet Tripathi was himself capable in administering the poison to the deceased if he had such intention or whenever he used to visit the deceased he could have administered poisoned food to the deceased.
On the basis of above discussions this Court is of the considered view and conclusion that on the date, time and place of occurrence, only accused Puneet Tripathi was there who has also admitted quarrelling with the deceased and who had admitted the deceased in hospital but the presence and participation of the rest of the accused persons about the incident dated 22.08.2011 has not been proved beyond reasonable doubt. However, the offence under Section 498-A and Section 4 of the D.P. Act have been proved against them beyond the reasonable doubt but they are not found guilty for committing the crime under Section 304-B I.P.C.
26. So far as the commission of crime with regard to Section 304-B, 498-A I.P.C. and Section 4 of the D.P. Act is concerned, on the basis of dispute present between Puneet Tripathi and the deceased, pendency of cases from both the side, his presence on the date, time and place of occurrence and abstaining to inform the police in case of suicide, goes against him and therefore, charges under Section 304 B, 498-A I.P.C. and Section 4 of the D.P. Act are proved beyond reasonable doubt again the accused Puneet Tripathi.
27. Heard on the quantum of sentence. According to this Court till now accused Puneet Tripathi has remained in prison for 11 years 9 months 28 days and with remission about 13 years 5 month, therefore, if the accused Puneet Tripathi is sentenced under Section 304-B for the imprisonment already undergone, would meet the ends of justice.
28. So far as Section 498-A is concerned, he has already undergone the sentence of two years and also six months sentence awarded under Section 4 of the D.P.Act.
29. So far as the accused Shivkumar Tripathi and Bindeshwari Tripathi are concerned, they are the senior citizens and the accused elder brother Sujeet Tripathi and his wife Smt. Asha Tripathi are concerned, they have also served several months imprisonment, their presence has not been established on the actual date of occurrence, therefore, the period of their incarceration in jail appears to be sufficient in absence of any pre or post criminal antecedent or conviction in any other case.
30. So far as the imposition of fine is concerned, all the accused persons have been fined Rs. 5,000/- each under Section 498-A I.P.C. and Section 4 of the D.P. Act also.
31. A compensation for Rs. 75,000/- has also been awarded upon all the accused persons cumulatively under Section 357 Cr.P.C. According to this Court, the fine imposed by the trial Court and also the compensation awarded by it, is not liable to be interfered with. Hence, this appeal is liable to be decided accordingly.
Order
(i) Criminal Appeal no. 1045 of 2016 (Puneet Tripathi Vs. State) is dismissed partly in respect of conviction and is allowed with regard to the sentence as under:
The sentence awarded to the accused-appellant Puneet Tripathi under Section 498- A I.P.C. and Section 4 of the D.P. Act, is maintained. The sentence awarded under Section 304-B I.P.C. is modified to the extent that instead of life imprisonment, he is sentenced to the period already undergone.
(ii) Criminal Appeal No. 1044 of 2016 (Shiv Kumar Tripathi and 3 Others Vs. State) is allowed in respect of conviction and sentencing under Section 304-B I.P.C. and the conviction under Section 498-A I.P.C. and Section 4 of the D.P. Act is maintained. However, sentencing is modified to the extent that they are sentenced to the period already undergone by them.
(iii) In case of non-payment of fine and compensation imposed by the trial Court, the accused persons shall undergo to the period specified by the trial Court, if the same is not deposited within thirty days from today.
Order Date :- 4.8.2023 S.Verma {Umesh Chandra Sharma,J} {Dr. Kaushal Jayendra Thaker,J.}