Allahabad High Court
Asha Ram vs State Of U.P. on 10 December, 2018
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on: 17.11.2018 Judgment delivered on: 10.12.2018 Court No. - 20 Case :- CRIMINAL APPEAL No. - 2416 of 2015 Appellant :- Asha Ram Respondent :- State Of U.P. Counsel for Appellant :- Anuj Bajpai,Alok Sharma,Noor Mohammad Counsel for Respondent :- Govt. Advocate connected with Case :- CRIMINAL APPEAL No. - 125 of 2013 Appellant :- Smt. Seema & Another Respondent :- State Of U.P. Counsel for Appellant :- Anuj Bajpai,Alok Sharma Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Hon'ble Dinesh Kumar Singh-I, J.)
1. Heard Sri Noor Mohammad, learned counsel for the appellant in the present appeal as well as in connected Criminal Appeal No. 125 of 2013 and Sri Irshad Hussain, learned A.G.A. for the State.
2. The Criminal Appeal No. 2416 of 2015 has been preferred by the accused-applicant Ashra Ram S/o Jhabbu Lal and Crl. Appeal No. 125 of 2013 by Smt. Seema W/o Jhabbu and Jhabbu S/o Mangre, which arise out of S.T. No. 656 of 2007, (State Vs. Asha Ram and two others), u/s 498-A, 304-B IPC and Section ¾ D.P. Act, P.S. Banda, District Shahjahanpur, pertaining to Crime No. 152 of 2007, wherein the appellants have been held guilty and awarded following punishment and all the sentences are directed to run concurrently:-
3. Sr. No. Name 304-B IPC 498-A IPC ¾ D.P. Act 1 Asha Ram Life imprisonment 3 Years R.I., Fine Rs. 3000/-, In default of payment of fine, additional imprisonment of 3 months 3 Years R.I., Fine Rs. 3000/-, In default of payment of fine, additional imprisonment of 3 months 2 Smt. Seema 7 years R.I. 2 Years R.I. Fine Rs. 2000/-, In default of payment of fine, additional imprisonment of two months 2 Years R.I. Fine Rs. 2000/-, In default of payment of fine, additional imprisonment of two months 3 Jhabbu Lal 7 years R.I. 2 Years R.I. Fine Rs. 2000/-, In default of payment of fine, additional imprisonment of two months 2 Years R.I. Fine Rs. 2000/-, In default of payment of fine, additional imprisonment of two months
4. Since both the appeals arise out of common judgment, they are being taken up together.
5. In brief the facts of the case are that informant, Dharmai Lal (PW-1) had married his daughter, Neeraj Devi, one year prior to the written complaint made by him dated 27.5.2007 to Asha Ram (appellant no. 1) according to Hindu Rites after having given dowry according to his capacity, but the appellant no. 1-Asha Ram (husband), Smt. Seema- appellant no. 2, (wife of Jhabbu Lal) and father of Asha Ram namely, Jhabbu Lal- appellant no. 3, were not satisfied with the said dowry and were demanding C.D., T.V. and a box, by way of additional dowry and due to non-fulfillment of the same, they used to harass and beat his daughter- Neeraj Devi (deceased). After some time, the informant had brought back the deceased to his home and six days prior to the incident, accused-appellant no. 1 had taken away the deceased and at that point of time, the PW-1 had expressed his inability, due to poverty, to provide C.D. etc., thereafter, the PW-1 (informant) received information on the date of making the said written complaint that his daughter had died and when he reached his daughter's in-law's home, he found that her dead body was kept on a cot there. The accused persons had murdered his daughter for non-fulfillment of demand of dowry.
6. Pursuant to the said written report, Ext. Ka-1, Constable Vijay Singh, Head Mohrrir, registered a criminal case against the appellants being Crime No. 152 of 2007, u/s 304-B IPC and ¾ D.P. Act and prepared chick F.I.R. (Ext. Ka-5) and made entry of this case in G.D. (Ext. Ka-6) at report No. 27, time 05:55 hours, on 27.5.2007, whereafter the investigation in the matter was handed over to the C.O., Puvanya, Sri K.P. Singh Yadav, who was first I.O. of this case, who after visiting place of occurrence prepared site plan (Ext. Ka-4) at the instance of the informant and got conducted Panchayatnama of the deceased, a report of which is Ext. Ka-5, prepared letter to C.M.O. (Ext. Ka-8) Challan Nash, Ext. Ka-9, Seal Mohar (Ext. Ka-10), Photo Nash (Ext. Ka-11) and, thereafter, sent dead body of the deceased to district hospital for conducting post-mortem, (P.M. report, Ext. Ka-2). The post-mortem was conducted by Dr. P.P. Srivastava (PW-4), who found two ante-mortem injuries on the body of the deceased and expressed opinion that the deceased died due to asphyxia as a result of ante-mortem strangulation, the details of Post-mortem report of the deceased Smt. Neerja are as follows:-
Average mascularity rigor mortis passed off from all over body, green discolouration present or lower abdomen and spreading to chest, abdomen extended with gases. face swollen and discoloured, more thighs congested and small patechial haemorrhage in both scelra. Mouth half open - dry blood present in both nostrils.
Ante-mortem injuries:
1. contusion 6 cm × 3 cm on the right side of neck extending to front of neck, 7 cm below from the right mastoid procceff and 5 cm below from mid-of chain, the base of contusion is hard and dry, on Section superficial patechial haemorrhage present underneath the contusion and underneath muscle lacerated.
2. contusion - 4 cm ×3 cm on the right side of head, for cm above from the upper end of the right ear.
7. The remaining investigation in the matter was conducted by subsequent I.O. i.e. PW-5, Sri Jawahar Lal, C.O., Kerana, who had taken up the investigation of this case on 19.6.2007 after transfer of earlier C.O., Sri K.P. Singh Yadav, after assuming charge as C.O., Puvanya. He after having perused the earlier parcha numbers of the case diary, recorded statement of remaining witnesses namely Smt. Rambeti (PW-2), wife of Dharmai Lal and Mahendra Pal (PW-3), S/o Dharmai Lal. The statement of informant Dharmai Lal (PW-1) S/o Shiv Charan had already been recorded by the 1st Investigating Officer, thereafter, he submitted charge sheet (Ext. Ka-3) against all the appellants.
8. The trial court framed charges against the appellants u/s 304-B, 498-A IPC and ¾ D.P. Act to which the appellants pleaded not guilty and claimed to be tried.
9. From the side of prosecution to prove its case, Dharmai Lal- first informant (PW-1), Rambeti, mother of the deceased (PW-2), Mahendra, brother of the deceased (PW-3), Dr. P.P. Singh, who conducted the post-mortem (PW-4), Sri Jawahar Lal, C.O., who investigated the case (PW-5), Constable Vijay Singh (Head Mohrrir), who registered the case at P.S. concerned as PW-6, Constable Anil Singh, before whom, Panchayatnama was prepared by Nayab Tehsildar, Puranupur, Sri Manoj Prakash, Challan lash, sample seal, photo nash etc. were prepared (PW-7), were examined.
10. Thereafter the prosecution evidence was closed and statement of accused-appellants were recorded u/s 313 Cr.P.C. in which appellant no. 1 Asha Ram denied truthfulness of the entire evidence against him by the prosecution and stated that on the date of incident, he had gone to home of Thakur Amar Singh of the village where he was employed for many months and used to look after cattles there as well as also look after of his agricultural work. When he reached home after having finished his work, he found his wife dead and he did not know as to how she died and pleaded innocence. The appellant no. 2, Smt. Seema, denied the truthfulness of the entire evidence against her and stated that she and her husband Jhabbu Lal (appellant no. 3), were employed at the farm of Sardar Amreek Singh of Guladia Bhoop Singh, Mauja Raghunathpur and she used to perform domestic work there while her husband used to look after cattles and while working there, the fingers of his husband got crushed and they were given place to live there only and since five years prior to the incident both of them were working there and were innocent. Similarly accused-appellant no. 3 has repeated the same version which has been stated by the appellant no. 2.
11. From the side of appellants, two witnesses have been examined in defense being Sant Ram S/o Bhajan Lal as D.W.-1 and Beche Lal S/o Govind as D.W.-2.
12. Learned trial Court after having gone through the evidence and having heard the arguments of both the sides, held accused-appellants guilty and awarded the above-mentioned punishment, which is under challenge in these two criminal appeals before us.
13. Learned counsel for the appellants has argued before us that the accused-appellants are innocent because the appellants were not at home when the deceased died which is proved by examining DW-1 Sant Ram and DW-2 Beche Lal, from the side of defense, whose statements have been overlooked by the trial court. Moreover, it was argued that there was no occasion for demand of additional dowry nor any demand was ever made because the articles which are alleged to have been demanded in additional dowry i.e. C.D. and T.V. could not have been demanded as there was no electricity in the house of the appellants. The explanation given by the appellants that the deceased had ascended the roof of the house for drying chilly and when she descended from there by ladder, she fell down and due to having received injury in the process, she died as a result of it. The appellants reached the place of incident only after the deceased had died. This aspect has not been properly appreciated by the learned trial court and has wrongly passed the conviction order.
14. Before analyzing the reasons of conviction made by the learned trial court, it would be appropriate for us to take into consideration the relevant portion of the evidence/statements of witnesses and make opinion as to whether there is any substance in the argument of learned counsel for the appellants and whether the accused-appellants deserve to be acquitted or the conviction order was passed correctly in the light of provision u/s 304-B IPC.
15. Before dealing with the subject, we would like to point out here as to what are the essential ingredients of Section 304-B IPC. The Hon'ble Apex Court in V.K. Mishra and another Vs. State of Uttarakhand and another along with connected Appeal, (2015), 9 SCC, 588 has clarified that in order to attract application of Section 304-B IPC, the essential ingredients are as follows; (i) The death of a woman should be caused by burn or bodily injury or otherwise than under a normal circumstance; (ii) Such a death should have occurred within seven years of her marriage; (iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband; (iv) Such cruelty or harassment should be for or in connection with demand of dowry; (5) such cruelty or harassment is shown to have been meted out to the woman soon before her death.
16. On proof of the essential ingredients mentioned above, it becomes obligatory on the court to raise a presumption that the accused caused dowry death. A conjoint reading of Section 113-B of Evidence Act and Section 304-B IPC, shows that there must be material to show that soon before her death, the victim was subjected to cruelty or harassment. "Soon before" is a relative term and it would depend upon circumstance of each case and no straight jacket formula can be laid down as to what would constitute a period "soon before the occurrence". There must be in existence, proximate live link between the facts of cruelty in connection with demand of dowry and the death. If the alleged incident of cruelty is remote in time and had become stale enough not to disturb mental equilibrium of the women concerned, it would be of no consequence. Use of word "shown" instead of "proved" in Section 304-B IPC indicates that the onus cast on the prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words, "shown" will have to be read up to mean "proved" but only to the extent of preponderance of probability. Thereafter, the word "deemed" used in that Section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The word "deemed" culpability of accused leaving no room for the accused to prove its innocence, has been thus read down to strong "presumption" of his culpability. The accused is required to rebut his presumption by proving its innocence.
17. Thus, where prosecution has shown that "soon before her death" the deceased was subjected to cruelty or harassment by the husband or in-laws in connection with demand of dowry, the presumption under Section 113-B of Evidence Act arises and the court shall presume that such person, who had subjected the women to cruelty or harassment in connection with any demand for dowry, shall be presumed to have caused the dowry death. The presumption that arises in such cases may be rebutted by the accused.
18. In view of above position of law, we have to see as to whether the prosecution has been able to prove on the basis of evidence on record as to whether soon before the death of the deceased, she was subjected to harassment for demand of dowry and whether the death of the deceased was unnatural and whether the same was within seven years of her marriage. It would also have to be seen as to whether presumption under Section 113-B of Evidence Act would be drawn against the accused-appellants in this case or not and in case the said presumption is drawn, whether such presumption has been rightly rebutted by the accused-appellants or not.
19. As per, the written report Ext. Ka-1, it is a clear case of prosecution that one year prior to moving complaint dated 27.5.2007, the deceased was married to accused-appellant no. 1 Asha Ram. Therefore, the marriage must have been performed around 27.5.2006 and that would definitely lead us to believe that the death of the deceased took place within seven years of her marriage.
20. In the written report, it has been mentioned that the dowry was given by the informant at the time of marriage as per his capacity but the accused side was not satisfied and were demanding C.D., T.V. and a box, for non-fulfillment of which, the deceased was done to death.
21. In examination-in-chief, PW-1 in this regard has stated that he had given dowry as per his capability at the time of marriage by which the appellants were not happy and were demanding T.V., C.D. and a box and due to non-fulfillment of the said demand, they were beating his daughter and once she was beaten in front of him also and she was also beaten by her mother-in-law once at a time when he had gone for his daughter's Bidai. He had also given a written report in this regard at the police station concerned that life of his daughter Neeraj Devi was in danger but the said report was not lodged. Asha Ram (appellant no. 1) had visited his house 15 days prior to the incident for taking his wife back home and he was cautioned by PW-1 that he should not harass his daughter as a report was already made in Police station. He further stated that whenever his daughter used to come home, she used to tell him and his wife about being harassed for want of dowry. The 8th day after she was taken back home by the appellant no. 1, she was murdered. He had got the report in this case written by Srikant and had put his signature thereon after the same was read out to him.
22. In cross-examination, this witness has stated that his daughter had told him about demand of dowry being made and for being harassed for the same, when she was sent to her matrimonial home, second time. On the first visit, he met her in home and she had told him that she was being harassed for demand of C.D., T.V. and a box and for that he had gone to P.S. also to lodge report but the same was not written, although he did not recollect the date when he went to Police station. Further he stated that the second day after the marriage, he had gone to take his daughter back home (for Bidai). When he had brought his daughter home, fifteen days thereafter, appellant no. 1 had come for taking her back and at that time, she was dispatched for her matrimonial home, where she stayed for three months and after three months again the informant (PW-1) brought his daughter back and she stayed at her parental home for four to five days and again thereafter appellant no. 1 had taken her back and this time, she remained in her matrimonial home for one month. Thereafter, he did not go to her daughter's matrimonial home and quarrel had started taking place by them, whereafter about four to six days after the said quarrel, he had again brought back his daughter because she was being beaten there and this time, she stayed at his parental home for three months continuously. This statement which had been mentioned above would shown that right from the beginning of marriage, the demand of additional dowry in the form of T.V., C.D. and a box was being made soon after marriage and the same demand was persisted to be made till death of the deceased. It also appears from the statement of this witness that cross-examination has been made by the defense side to prove that the informant was extremently poor man belonging to below poverty line and, therefore, not in a position to provide any dowry and hence, there was no question for the accused side to demand any dowry from such a poor person and also an effort appears to have been made to create impression that the deceased was having some affair with some other boy only to add a new dimension that it could be possible for a third person, may be lover of the deceased might have killed the deceased. Such line of action appears to have been taken by the defense to create confusion in the mind of the court about the death of the deceased, although no such defense has been set up in statement of accused persons under Section 313 Cr.P.C. It has also been sought to establish by the accused side by cross-examining PW-1 that the deceased was not married properly with the appellant no. 1, Asha Ram, rather was kept without marriage which is termed as Gharauna because much cross-examination has been made on the point that no Pandit was called by the PW-1 during the marriage ceremony nor any card of marriage were got printed. But this defense has also not been taken by the accused side in their statement u/s 313 Cr.P.C. It all appears to be a strategy of the accused side to come out of conviction by one way or the other creating doubts.
23. The important point on which the cross-examination has been made of PW-1 relates to his poverty. Regarding his poverty and the family status of the appellant no. 1, he has stated that he has 2 Bighas of land, his house was built by government, he possessed card issued for below poverty line. As regards the accused-appellant no. 3, Jhabbu lal, it is stated that he had 3 Bighas of land and the house in which accused-appellant no. 1, Asha Ram, lived even that house was constructed by Government but he had no knowledge whether Asha Ram had card of below poverty line but he had denied that he had married his daughter looking to the fact that the accused appellant no. 1 belonged to below poverty line and, therefore, his daughter was made to sit there (Gharauna) instaed of getting legally married to appellant no. 1. He has also denied that there was any love affair of the deceased with any boy of the village as it also stated by him that it was wrong to say that accused did not have electricity in his house because of which there could be no demand of C.D. and T.V. etc. and that no demand was made only because his status was below poverty line.
24. It appears from the statement of above witness that it is in accordance with the F.I.R. lodged by him in which also he has consistently stated that no demand of above three items was made right from the beginning and in statement given by him in cross-examination, he has yielded no ground in respect of the said demand having been made.
25. Now we would like to take up the statement of PW-2, the mother of the deceased, who has stated in examination in chief that all the three appellants were demanding C.D., T.V. and a big box and for non-fulfillment of which they used to beat her daughter and all this used to be told by her daughter when even she visited her parents house. She had tried to convince the appellant no. 1 that she would try to met his demand of T.V., C.D. etc. by earning through work of labourer and he should not in future beat her daughter and on this assurance, the appellant no. 1 had taken away her daughter but she was killed there. In cross-examination, this witness has stated that she had told about it to the Investigating Officer that the demand of C.D., T.V. and a box was made by the accused-side but if the same was not mentioned by the Investigating Officer in her statement, she was not in a position to tell its reason. Further she stated that she could not tell as to whether colour T.V. and C.D. was demanded or it was plain T.V. but it was confirmed that demand of T.V. and C.D. was made. She has denied the suggestion that all the three accused appellants had not made any demand of above mentioned dowry. She has also stated that the mediator of this marriage was brother of accused-appellant no. 3 namely Lochan, who has died. At the time of marriage, a bicycle, utensils of daily need etc. were given; T.V. had not been given. If there was any demand made of T.V. at the time of marriage, the same would be met. Further she stated that the bulbs used to be there in the house of appellant no. 1 but she could not say as to whether he had any electricity connection or not. About one lakh was spent in marriage. Further she stated that her elder son Mahendra Pal was employed in a private job and her husband was also a labourer but she could not tell as to what was their income. Further she has stated that all the three accused used to live in same house. It was wrong to say that appellant nos. 2 and 3, were living in separate hut. Although, she had no knowledge as to whether appellant no. 3 was employed at the place of Sardar Amreeek Singh. Further she stated that at the time of marriage of her daughter, the fingers of appellant no. 3 were not crushed, the same might have been crushed subsequently, and how, they got crushed, she had no knowledge. The information about death of her daughter was received in village on phone but who had broken this news, she could not tell but the person who had given this information belonged to village Guladiya. She denied the suggestion that she has received information of demise of her daughter one day after her death. At the time of marriage, the accused appellant no. 1, was in service.
26. From the statement of this witness, mentioned above, it is apparent that consistently demand was being made of C.D., T.V. and a box which is the prosecution's case and that she had tried to counsel appellant no. 1 that he should keep patience for meeting of that demand as the same would be possible to be fulfilled only after complainant side earned money by way of work of laborer and that her daughter should not be illtreated for the said demand. It may be taken into consideration that from the date of marriage till the death of the deceased, there was hardly one years time and during entire this period, it appears from the statement of P.W.-1, and P.W.-2 that there was continuously deamand with regard to the aforesaid articles.
27. Now, we would like to consider statement of PW-3, who is Mahendra Singh, who is brother of the deceased, he had also given the same statement which has been given by PW-1and PW-2 and has stated that few days prior to the incident, when he had gone to the house of his sister, she had told him weeping that all the three appellants were demanding C.D., T.V. and a box and used to beat her for the same. Seven days prior to the incident, appellant no. 1 had come to his house to take his wife back and had told him and his father whether they had made arrangement of T.V. and C.D. or not at which his father told him that he did not have money to arrange for those articles and that he should not harass his daughter. Thereafter the appellant no. 1 had taken his wife home and she was strangulated to death. In cross-examination, this witness has stated that he had gone to matrimonial home of his sister thrice; he had not seen the room of his sister there, although she lived in a room but he could not tell as to whether towards south of the appellant no. 1, there was passage or not. He had put his thumb impression on panchayatnama of the deceased that at the time of murder of his sister, his mother had accompanied him. He had seen an injury in the eye of the deceased. The information about demise of his sister was given by Lochan, brother of appellant no. 3. He does not recollect whether C.O. had recorded his statement or not. Appellant no. 1 had taken away his sister two days prior to the incident. His sister and appellant no. 1 used to come to his house some times in one month some times in two months and some times in three months. He further stated that there was no staircase in the matrimonial house of her sister. At the time of her marriage, there was thatched roof and even at the time of her death, there was no means to climb the roof of that room. Appellant nos. 2 and 3, were not employed at the place of Sardar Amreek Singh nor did they live there. The suggestion that his sister had died falling from the roof as she had ascended there to place some articles there and while ascending there, she had fallen and died.
28. This witness has also consistently stated that deceased was demanded T.V., C.D. and etc. from the accused side and that seven days prior to the incident, she was taken away by the appellant no. 1 from her parents' house, whereafter she was strangulated to death, however, in cross-examination there is little discrepancy with regard to time because he has stated that she was taken away by appellant no. 1, 20- 22 days prior to the said incident. But the said descrepancy is very minor one which may be ignored, as there could be possibility of such variation when statements are recorded of a witness after a long gap, from the date of occurrence.
29. We would like to analyze the statement of PW-4 who is doctor P.C. Srivastava, who had performed post-mortem of the deceased. The doctor has fully opined on the basis of ante-mortem injuries that the deceased died of asphyxia due to strangulation. However, in cross-examination he has stated that if a person falls from hight, after having ascended there by ladder and the fall happens in a manner so that the impact of fall is made on trachea and larynx, in such a situation, there could be fracture possible of trachea and larynx.
30. Learned counsel for the appellants had laid much emphasis on this statement of witness in order to create doubt that the deceased had not been strangulated by the appellants, rather the occurrence took place due to fall of the deceased. We do not find such argument to be tenable and are of the opinion that there is clear opinion of the doctor that the death of the deceased had occurred due to asphyxia as a result of strangulation. Two ante-mortem injuries were also noticed, which were contusions.
31. Now, we would like to take up the statement of defense witnesses.
32. DW-1, Santram, has stated that on the date of incident, he was at his house, although he used to go for work with appellant no. 1 at about 7.00 a.m. in the morning and when would return about 8:00 p.m. in the evening. The Appellant nos. 2 and 3 were employed with Sardar Amreek Singh and used to live there. The fingers of the appellant no. 3 had got crushed under trolly while on work for which Sardar Amreek Singh had given him treatment. He does not recollect as to since when they were employed there. He had never heard about any quarrel between the appellant no. 1 and his wife. He could not attend the marriage of the appellant no. 1 because on the same day, the marriage of his Bhanji was to be performed. The deceased used to live some times in her parents home, but mostly used to live in matrimonial home. There was no electricity connection in the house of appellant no. 1, although he had taken illegal connection and had also a battery as well as C.D. and T.V. At the time of panchnama, he was present there. He had given information to appellant nos. 2 and 3 about the death of the deceased, in the morning. Who had given information at the house of parents of the deceased, he does not recollect. The deceased had ascended the roof of the house for drying chilly and pulses and while descending from there, she fell down and died. He does not recollect as to who had lifted her. After the death of Neeraj Devi, her father had reached about 10:00 a.m., uncle and mother had come around 1:00 p.m.. In cross-examination, this witness has stated that there is one house between his house and the house of appellant no. 1. He did not go to the house of appellant no. 1 everyday and only would go there as and when there was some work. He could also not tell how many times, he had gone with appellant no. 1 on work. He had no knowledge as to what articles were given by father of the deceased to the appellants at the time of engagement, although 10 to 12 persons had come on that occasion and about 40 to 45 people had been served food in which Sardar Amreek Singh had also participated. Sardar Amreek Singh owns 50 acres of land in Jhala, about 3 km away from the village, and owns two tractors. The Appellant no. 3 could not drive tractor. The appellant no. 2 used to work of sweeping and preparing Kandas and washing utensils. The appellant no. 3 has only one son and prior to the marriage all used to live together. Thereafter the parents of the appellant no. 1 had gone to live at the place of Sardar Amareek Singh. Through the statement of above witness, it has been tried by the defence side to prove that appellant nos. 2 and 3 were not at home when the deceased died in the house of appellant no. 1 and that they were staying at the place of Sardar Amreek Singh, which was quite away from the place of incident but we are not inclined to believe the statement of P.W.-1 because he is neighbour of the appellant no. 1 and it appears that only to protect the appellants, he has stated that he used to go with appellant no. 1 on work place where both of them were working at Sardar Amreek Singh' place.
33. With regard to other two accused-appellants also, the said statement appears to have been given only with a view to safeguarding their interest, being neighbour.
34. D.W.-2, Beche Lal had stated that he is neighbour of the appellants, wall of whose house was adjoining to the house of the appellants. On the date of occurrence, which happened around four and ½ years back, he was at his field which was close to the house of Sardar Amreek Singh. The appellant no. 1 used to work at the place of Sardar Amreek Singh and also other two appellants Jhabbu Lal and Smt. Seema were working at his place since ten years prior to the occurrence. Sardar Amreek Singh used to live in Jhala. In the house of appellant no. 3, there was only one room. He was told by his son that the daughter-in-law of the appellant no. 3 had fallen from roof and had died. After that only DW-2 and the appellant nos. 2 and 3 had gone there from the place of Sardar Amreek Singh in Jhala. He had never heard any quarrel happening between appellant no. 1 and his wife, although he admitted that he did not have any frequent access to the house of the appellant no. 3. In cross-examination, this witness has stated that at the time when marriage of the appellant no. 1 was settled, he was 13 years of age and has denied to have given statement mentioned above to defend the accused-appellants. Statement of this witness does not inspire confidence because he is also a neighbour, moreover the occurrence of the deceased having died due to having fallen from the roof was told to him by his son, who has not been examined by the defense side, therefore, the statement in this regard of this witness is only a here-say. It appears that he made this statement only to protect the accused-appellants.
35. On the basis of evidence mentioned above, we find that PW-1, PW-2 and PW-3 have consistently given statements in consonance with the prosecution case as narrated in the F.I.R. that the appellants were not satisfied with the amounts/articles given in dowry at the time of marriage of appellant no. 1 with the deceased about one year back from the date when the first F.I.R. was lodged and that soon after the marriage whenever, the deceased visited house of her parents, she told them that she was being harassed for demand of C.D., T.V. and a box for which he was being often beaten by the complainant side, regarding which a report was also sought to be made by the PW-1 at P.S. concerned but no action was taken by the police. The situation continued as such for long and the demand persisted continuously and ultimately seven days prior to the death of the deceased, when she was staying at her parents house, the appellant no. 1 had visited the house of the informant and brought back the deceased with him to matrimonial home where she was strangulated to death. The defense set up by the accused side to the effect that there was no reason for demand of the said articles in additional dowry because there was no electricity connection in the house of the appellants, does not appear to be genuine defense because witness of defense side i.e. DW-1 has admitted that though there was no valid electricity connection in the house of the appellants but they had taken unauthorized connection by laying wire and, therefore, it cannot be ruled out that demand of C.D. and T.V. would have been made as it could not be said that these articles could not be made use of in the house of the appellants. The next defense of the learned counsel for the appellants that the deceased died due to having fallen from roof as she has ascended roof of the house of the appellants to dry chilly and pulses, also does not appeal to reason because the said defense has not been taken in statement under Section 313 Cr.P.C. as in those statements, it has been stated that the accused were not present at home at the time of death of the deceased and they were away at work place i.e. the Sardar Amreek Singh's home where all the three were employed. This defense appears to have been taken subsequently only to make an attempt to create doubt in the mind of court and does not inspire confidence. Further argument from the side of defense that the deceased died due to fall does not stand to reason because the injuries which have been noted in the post-mortem report disclose that the same could not have been caused due to fall and the cause of death has been specifically mentioned to be asphyxia due to strangulation, which is not possible unless somebody had killed the deceased. The presumption under Section 113-B of Evidence Act would arise in the present case because the prosecution side has conclusively proved that the deceased has died inside the house of the appellants, therefore, the onus shifts upon the accused to proved that they had no hand in killing the deceased, whatever explanations and the evidence has been given from the side of the deceased, does not inspire confidence as has been mentioned above with reasons. Therefore we find that the presumption against the accused-applicant u/s 113-B of the Evidence Act needs to be drawn and the onus of proving that the accused side had not murdered the deceased could not be discharged properly on the basis of sound evidence. In the cases of dowry death, the witnesses are not generally available from the side of prosecution because the incident happen in the house of the accused side, hence it is up to them only to prove that they had no hand in the same.
36. On the basis of above evidence, we also reach the conclusion that demand of dowry was made right from the beginning and also till prior to the death of the deceased, therefore, the necessary ingredients of proving the offence u/s 304-B IPC that demand of dowry should have been made "soon before her death" also stands satisfied here as the demands of above mentioned dowry was consistently made from the accused side till prior to the death of the deceased. Therefore, all the ingredients of Section 304-B IPC have been met by the prosecution side, hence offence under Section 304-B IPC stands proved beyond reasonable doubt against the accused-appellants.
37. Now, we would like to take up as to whether the offence u/s 498-A IPC is made out in the present case or not. The ingredients of the offence u/s 498-A IPC are as follows:-
(a) that the victim was a married lady (she may be also a widow) (b) that she has been subjected to cruelty by her husband or the relative of her husband (c) that such cruelty consisted of (i) harassment of the women with a view to meeting a demand of dowry, or (ii) a willful conduct by the husband or the relative of her husband of such a nature as is likely to lead the lady to commit to suicide or to cause grave injury to her life, limb or health; (d) that such injury may be mental or physical when the husband or the relative of husband of women subjects such women to cruelty, he or they shall be punished with imprisonment for a term which may extend to three years and shall also liable to be fine.
38. In view of above ingredients, we find that all the ingredients are met as far as this Section is concerned, because the victim was subjected to cruelty to the extent that she was strangulated to death for not satisfying the demand of above mentioned articles of dowry. Therefore, we find that all the three accused-appellants had, on account of having demanded the above articles and for non fulfillment of the same, subjected the deceased to cruelty, hencethe offence under Section 498-A is also made out against all the accused-appellants. As regards the offence u/s ¾ of D.P. Act, 1963, Section 3 of the said Act provides for punishment if a person takes dowry and Section 4 of the Act provides that if a person demands dowry, the same shall be punishable. These are minor offences pertaining to demand of dowry and since the higher offence of demand of dowry has been held to have been proved under Section 304-B IPC, the accused-appellants are also held guilty under Section ¾ of the D.P. Act, therefore, no infirmity appears to be there in the impugned judgment. The learned trial court has rightly held accused appellants guilty under the aforementioned sections. Moreover, with respect to the punishment awarded, the appellant no. 1 has been awarded life imprisonment, which is the highest punishment under Section 304-B IPC for which reason ought to have been mentioned..
39. Learned counsel for the appellants has relied upon the judgment of the Apex Court in the case of Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), SCC 2014 4 375, in which the principle to be adopted in cases of dowry death while awarding punishment to the accused holding guilty have been laid down and on the basis of these principle, he argued that the awarding life sentence to the appellant is excessive and not proportionate to the crime committed by him. The relevant paragraph of the said judgment are quoted hereinbelow:-
"13. Would the above principles apply to sentencing of an accused found guilty of the offence under Section 304-B inasmuch as the said offence is held to be proved against the accused on basis of a legal presumption? This is the next question that has to be dealt with. So long there is credible evidence of cruelty occasioned by demand(s) for dowry, any unnatural death of a woman within seven years of her marriage makes the husband or a relative of the husband of such woman liable for the offence of "dowry death" under Section 304-B though there may not be any direct involvement of the husband or such relative with the death in question. In a situation where commission of an offence is held to be proved by means of a legal presumption the circumstances surrounding the crime to determine the presence of aggravating circumstances (crime test) may not be readily forthcoming unlike a case where there is evidence of overt criminal acts establishing the direct involvement of the accused with the crime to enable the Court to come to specific conclusions with regard to the barbarous or depraved nature of the crime committed. The necessity to combat the menace of demand for dowry or to prevent atrocities on women and like social evils as well as the necessity to maintain the purity of social conscience cannot be determinative of the quantum of sentence inasmuch as the said parameters would be common to all offences under Section 304-B of the Penal Code. The above, therefore, cannot be elevated to the status of acceptable jurisprudential principles to act as a rational basis for awarding varying degrees of punishment on a case to case basis. The search for principles to satisfy the crime test in an offence under Section 304-B of the Penal Code must, therefore, lie elsewhere. Perhaps, the time spent between marriage and the death of the woman; the attitude and conduct of the accused towards the victim before her death; the extent to which the demand for dowry was persisted with and the manner and circumstances of commission of the cruelty would be a surer basis for determination of the crime test. Coupled with the above, the fact whether the accused was also charged with the offence under Section 302 of the Penal Code and the basis of his acquittal of the said charge would be another very relevant circumstance. As against this the extenuating/mitigating circumstances which would determine the "criminal test" must be allowed to have a full play. The aforesaid two sets of circumstances being mutually irreconcilable cannot be arranged in the form of a balance sheet as observed in Sangeet (supra) but it is the cumulative effect of the two sets of different circumstances that has to be kept in mind while rendering the sentencing decision. This, according to us, would be the correct approach while dealing with the question of sentence so far as the offence under Section 304-B of the Penal Code is concerned.
14. Applying the above parameters to the facts of the present case it transpires that the death of the wife of the accused-appellant occurred within two years of marriage. There was, of course, a demand for dowry and there is evidence of cruelty or harassment. The autopsy report of the deceased showed external marks of injuries but the cause of death of deceased was stated to be due to asphyxia resulting from strangulation. In view of the aforesaid finding of Dr. L.T. Ramani (PW-16) who had conducted the postmortem, the learned Trial Judge thought it proper to acquit the accused of the offence under Section 302 of the Penal Code on the benefit of doubt as there was no evidence that the accused was, in any way, involved with the strangulation of the deceased. The proved facts on the basis of which offence under Section 304-B of the Penal Code was held to be established, while acquitting the accused-appellant of the offence under Section 302 of the Penal Code, does not disclose any extraordinary, perverse or diabolic act on the part of the accused-appellant to take an extreme view of the matter. Coupled with the above, at the time of commission of the offence, the accused-appellant was about 21 years old and as on date he is about 42 years. The accused-appellant also has a son who was an infant at the time of the occurrence. He has no previous record of crime. On a cumulative application of the principles that would be relevant to adjudge the crime and the criminal test, we are of the view that the present is not a case where the maximum punishment of life imprisonment ought to have been awarded to the accused-appellant. At the same time, from the order of the learned Trial Court, it is clear that some of the injuries on the deceased, though obviously not the fatal injuries, are attributable to the accused-appellant. In fact, the finding of the learned Trial Court is that the injuries No. 1 (Laceration 1" x ½" skin deep on the side of forehead near hair margin) and 2 (Laceration 1 ½" x 1" scalp deep over the frontal area) on the deceased had been caused by the accused-appellant with a pestle. The said part of the order of the learned Trial Court has not been challenged in the appeal before the High Court. Taking into account the said fact, we are of the view that in the present case the minimum sentence prescribed i.e. seven years would also not meet the ends of justice. Rather we are of the view that a sentence of ten years RI would be appropriate..........."
40. The other Ruling relied upon by the learned counsel for the appellant is Donthula Ravindranath @ Ravinder Rao Vs. State of Andhra Pradesh, (2014) 3 SCC 196, in which wife of the appellant died due to strangulation within seven years of her marriage with appellant and she was being harassed by the appellant for additional dowry. The trial court considering the evidence that the deceased and appellant were living in the same house as wife and husband and extra judicial confession had been made by the appellant before witness PW-9, convicted the appellant under Section 302 and 498-A IPC and in so far as charge u/s 304B IPC was concerned, no funding was recorded in that regard. The High Court confirmed the judgment of the trial court and hence the matter reached the Hon'ble Apex Court where Hon'ble Apex Court reduced the sentence after finding the appellant guilty under Section 304B IPC to the period undergone.
41. Further, he has relied upon Ranjit Singh Vs. State of Punjab, 2013(12) SCC 333, in which death of the deceased occurred within four months of marriage by throttling/strangulation and it was found on the basis of evidence that the deceased was subjected to cruelty soon before her death for demand of dowry and presumption under Section 113-B of the Evidence Act was held to have been drawn rightly. The court below had sentenced the appellant to undergo rigorous imprisonment for life under Section 304B IPC but considering the facts and circumstances that after death of first wife (the victim of dowry death in the present case) appellant got married second time and from his second wife, he had three children, out of which one son was handicapped and the appellant's mother was paralyzed, sentence was reduced to seven years rigorous imprisonment.
Relying upon the aforementioned two citations learned counsel for the appellant argued that in the present case, the indulgence of this Court may be granted for reducing the sentence to minimum seven years imprisonment as there is no such aggravating circumstance in the present case or any diabolical on the part of the appellant to have been committed which would necessitate punishing him with life imprisonment.
42. We find that the case of the appellant, Asha Ram is fully covered by the law relied upon by the learned counsel for the appellant in Sunil Dutt Sharma Vs. State (Govt. of NCT of Delhi), SCC 2014 4 375 and other two cases mentioned above because in the case at hand there were three accused in the house when the deceased was found to have been strangulated, hence, it could not be identified as to who out of these three persons was responsible for causing her death and the conviction has been made with the aid of presumption drawn under Section 113-B of Evidence Act as the unnatural death has occurred within seven years of the marriage. Moreover in this case, learned trial court has not framed charge against the accused appellants under Section 302 I.P.C. There does not appear any serious injury caused to the deceased before her death as only minor injuries are found on her person, therefore, we deem it proper that it would be appropriate to reduce the punishment of appellant, Asha Ram under Section 304-B I.P.C. from life imprisonment to ten years Rigorous Imprisonment and we find that the learned trial court has awarded the punishment on the higher side. As regards the other appellants, namely Jhabbu Lal who is father-in-law and Smt. Seema who is mother-in-law of the deceased, the minimum punishment is awarded i.e 7 years rigorous imprisonment each and fine with default clause, the same seems to be justified.
43. Accordingly, the Criminal Appeal regarding appellants Smt. Seema & Jhabbu Lal is dismissed and with regard to appellant, Asha Ram, this Appeal is partly allowed.
44. Accused-appellant, Asha Ram is already in jail while accused-appellants Seema and Jhabbu Lal are on bail, therefore, they shall be taken into custody and their sureties stand discharged and all the accused shall serve out the sentence in accordance with the judgement pronounced by us.
45. A copy of this order be transmitted to the trial court concerned for necessary information and compliance.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date:10.12. 2018 A.P. Pandey