Allahabad High Court
Jagdish Chandra Gupta And Another vs State Of U.P. on 27 November, 2012
Author: Rakesh Tiwari
Bench: Rakesh Tiwari, Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Criminal Appeal No. 2029 of 2005
1. Jagdish Chandra Gupta
2. Smt. Munni Devi
............. Appellants
versus
State of U.P. ............. Respondent
Connected with
Criminal Appeal No. 2398 of 2005
Sanjiv Kumar @ Boby ............. Appellant
versus
State of U.P. ............ Respondent
Counsel for the appellants: Sri Rahul Mishra, Amicus Curiae
Counsel for the respondents: Sri Ram Yash Pandey, AGA
Hon'ble Rakesh Tiwari, J.
Hon'ble Anil Kumar Sharma, J.
(Delivered by Hon'ble Anil Kumar Sharma, J.) Challenge in this appeal is to the judgment and order dated 21.04.2005 passed by the then Additional Sessions Judge, Court No.1, Etah in S.T. No. 189 of 1999, whereby the appellants have been found guilty for the offences punishable under section 304-B, 498A IPC and under section 3/4 of Dowry Prohibition Act. Each appellant had been sentenced as under:
i)Under Section 304-B IPC - Rigorous imprisonment for life;
ii)U/s 498-A IPC - Three years R.I. and fine of Rs. 10,000/-;
iii)U/s 3/4 Dowry Prohibition Act - Two years R.I. and fine of Rs. 5,000/- with default stipulation.
2. In nutshell the prosecution case before the trial court was that complainant Hari Om Gupta s/o Late Ram Autar Gupta, r/o Mohalla Katra, Kasba Mohanpur, P.S. Sahawar, District Etah presently residing in B-2, Staff Quarters, Kendriya Vidyalaya No.2, Chakeri, Kanpur submitted a written report in P.S. Ganj Dundwara, District Etah on 16.09.1998 at 12.30 P.M. stating that he had married his sister Sanju Gupta with accused Sanjiv Kumar Gupta @ Boby s/o Jagdish Chandra Gupta, r/o Mohalla Etah Road, Kasba & P.S. Ganj Dundawara, District Etah on 21.11.1997 in Kasba Ganj Dundawara. He had given Rs. 20,000/- cash, golden chain, a ring for bridegroom and clothes etc. at the time of settling the marriage and in the marriage scooter, Sofa set, double bed, steel almirah and T.V. set etc. were given as dowry. At the time of Vida Jagdish Chandra Gupta the father-in-law of his sister and her husband Sanjeev Kumar Gupta @ Boby were enraged for not giving colour T.V, fridge and washing machine. He tried hard to pacify them. The sister of the bridegroom also taunted his mother and sister for not giving these articles and co-accused Mamta told his mother to this extent that if articles are not delivered soon the consequences would be very bad. After marriage when his sister came to their house she complained that her mother-in-law Munni Devi and sister-in-law Mamta have tortured her for not giving the aforesaid goods and they have warned her that if she did not bring the above items a bottle of kerosene and matchbox is kept in the house either she should set herself ablaze or face the result. The report further stated that at the time of marriage his brother-in-law Sanjeev Gupta protested for giving old double bed and they directed him to take it back. However, somehow he told his difficulties to them and returned with his sister. A week thereafter Sanjeev Kumar @ Boby came for Vida and he reiterated his demand. Again the complainant showed his inability to meet their demand then he threatened him not to visit them unless the dowry items are given to them. It was further stated in the written report that on 11.07.1998 the Namkaran Sanskar of his son was scheduled, so he visited the accused persons to take his sister. When he reached at the house of the accused persons the father-in-law Jagdish Chandra Gupta, mother-in-law Munni Devi, husband Sanjeev Kumar Gupta and sister-in-law Mamta and Kalpana of his sister misbehaved with him. On hearing these talks his sister retorted the accused persons that they should not misbehave with his brother and she is there for this purpose. At that time mother-in-law Munni Devi and sister-in-law Mamta tried to beat his sister. It has been further mentioned in the written report that on the eve of Raksha Bandhan he again visited the house of his sister and with difficulty the mother-in-law and sister-in-law Mamta of his sister brought her for tying Rakhi and immediately they took her inside. On this misbehavior she broke down and asked him to deliver the goods demanded by the accused persons else they would not let her alive. The complainant has noted in his report that on 13.09.1998 he was telephonically informed that in-laws of his sister have burnt her after beating. On getting this information the complainant came to Ganj Dundawara and found that the police had sent the dead body for post mortem and after cremating her he has come to lodge the report. On the basis of this report a case under section 304-B and 498-A IPC and 3/4 of Dowry Prohibition Act was registered at crime no. 157 of 1998, investigation whereof was entrusted to C.O., O.P. Mishra.
3. Ere that Hari Om Gupta s/o Late Ram Chandra Gupta, r/o mohalla Ghasi, Kasba & P.S. Ganj Dundawara District Etah submitted a written report to Station Officer of P.S. Ganj Dundawara on 13.9.1998 stating that today at about 12 'O' clock in the noon he had received information on telephone that Smt. Sanju aged about 20- years, sister-in-law of his niece and daughter of late Ram Avtar r/o Mohan Pur P.S. Sahawar, District Etah, has suffered burn injuries in her in-law's house situated in Mohalla Etah Road near electric sub-station Kasba and P.S. Ganj Dundwara, District Etah. He along with Pramod Kumar s/o Ram Chandra Gupta of Mohalla Ghasi Qasba Ganj Dundawara, Anil Kumar, r/o Mohalla Sudamapuri and others reached at the house of Sanjiv Kumar Gupta @ Boby and found Smt. Sanju lying on the ground inside the house in brunt condition. He took her to Government Hospital, Ganj Dundawara for treatment but doctor was not available and when he was taking her to Etah she succumbed to injuries near Sidhpura at about 3.00 P.M. He took her dead body back and kept out side the house of Boby. He further stated that Smt. Sanju had been married about a year ago with Boby s/o Jagdish Chandra Gupta and he has informed the family members of the deceased. On this report the police of P.S. Ganj Dundawara got the inquest of the cadaver of the deceased performed through S.D.M. Patiyali, District Etah 14.09.1998 at 9.30 A.M. Thereafter the dead body was sealed and along with usual papers it was sent for post mortem examination. Dr. K. P. Garg conducted autopsy on the corpse of deceased on 14.09.1998 at 3.00 P.M. and he found that 20-years' old deceased was average built with normal muscularities. Rigor mortis had passed off from upper limb and was present in lower limb. Dr. Garg found the following ante mortem injuries on her person:
1. Contusion 4 x 3 cm on right side forehead.
2. Lacerated wound 0.2 x 0.2 cm on left sole muscle deep.
3. Superficial to deep burn all over body except lower abdomen & pelvis.
4. Scalp hair adjoining to forehead parts all burnt rest of the scalp hair escaped from burning.
5. Smell of kerosene present in scalp hair.
6. Underlying skin is reddish and peeling of the skin at most of the places present blackening present on skin at some places.
4. In internal examination doctor found that scalp hairs on front were partially burnt. Pleura, Larynx, Trachea & Bronchi, both lungs, large intestines, spleen and kidney were congested. The stomach contained about 100 ml of liquid. In small intestine digested food material was found. Large intestines contained fecal matter and gases at places. The uterus of the deceased was non-gravid. In the opinion of the doctor the deceased suffered death about a day before due to shock as a result of ante mortem burnt injuries.
5.The Investigating Officer interrogated the witnesses and visited the spot on 16.09.1998. He seized the broken bungles, hairs of the deceased, ashes, burnt Baan and plastic container having one liter kerosene from the spot through memo Ex. Ka-7. The investigation culminated in charge sheet against the accused persons.
6.After committal of the case to the Court of Session the charge for the offences punishable under sections 498-A, 304-B IPC and 3/4 of Dowry Prohibition Act were framed against all five named accused persons.
7.In order to prove the charges the prosecution had examined the complainant Hari Om Gupta PW-1, J. P. Gupta PW-2, Dr. K. P. Sharma PW-3, Circle Officer Ram Babu Singh PW-4, and S.D.M. Akshay Lal PW-5, Circle Officer Om Prakash Mishra PW-6 and Head Constable Keval Singh PW-7.
8. In their statements under section 313 Cr.P.C. all the accused persons have in unison admitted the marriage of the deceased with accused Sanjeev Kumar @ Boby on 21.11.1997. However, they have denied the entire prosecution story. Accused Sanjeev Kumar has further stated that after the death of the deceased on 13th she was cremated on 14th and on 15th the brother of the deceased demanded a sum of Rs. 1,00,000/- from him which he could not pay, so false case has been lodged against them. In defence the accused persons have examined Pramod Kumar Gupta as DW-1.
9. Learned trial court through the impugned judgment had convicted and sentenced the three appellants in both the appeals as indicated in paragraph-1 of the judgment. However, the case against Km. Kalpana and Km. Mamta was referred to Juvenile Court on account of their being juvenile.
10.We have heard learned counsel for the parties and perused the original record of the case carefully.
11.Learned counsel for the appellants has argued the following points before us:
I. that the FIR has been lodged with inordinate delay creating serious doubt on prosecution story and intention of PW-1;
II. That there is no reliable evidence about demand of dowry;
III. That there is no evidence about torture of the deceased soon before her death on account of demand of dowry;
IV. That the deceased was separately living with her husband in upper storey of the house and omnibus allegations have been made against all family members;
V. That the deceased while cooking food accidentally caught fire and she was taken to hospital for treatment, but could not be saved; and VI. That the sentences awarded by the trial Court are too severe and harsh.
Per contra learned AGA supporting the impugned judgment of the learned trial Court has submitted that there is evidence regarding demand of dowry by all the accused persons since marriage and harassment and torture of the deceased on this count till her death; that the deceased was set ablaze in her nuptial home within a year of her marriage with accused Sanjiv Kumar and the accused persons neither informed the family members of the deceased nor the police about the incident, so they have been rightly convicted and sentenced by the learned trial Court.
12. Section 304-B IPC deals with dowry death reads as follows:
"304-B. Dowry Death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death. Explanation For the purpose of this sub-section 'dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or an relatives of her husband for, or in connection with any demand for dowry. 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 burns 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.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B Indian Penal Code and Section 113-B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:-
"113-B: Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation For the purposes of this section 'dowry death' shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report on 'Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of 'dowry death' in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand of dowry". Presumption under Section 113-B of the Evidence Act is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
A conjoint reading of Section 113-B of the 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. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the 'death occurring otherwise than in normal circumstances'. The expression 'soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression 'soon before' is not defined. A reference to expression 'soon before' used in Section 114. Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods 'soon' after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term 'soon before' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
13. Indisputably the marriage of the 20-years' old deceased with accused Sanjiv Kumar @ Boby took place on 21.11.1997 in Ganj Dundawara and she suffered death on account of burn injuries on 13.9.1998 in her nuptial home. It means that the young woman even could not celebrate her 1st marriage anniversary. The prosecution has no eye witness of the incident. It could not have led evidence to prove the manner in which she suffered burn injuries as the complainant resided in Kanpur. None of the accused persons have stated in their statements u/s 313 Cr.P.C. as to how the deceased got burn injuries? The FIR had been lodged by the complainant on 16.9.1998, after cremation of cadaver of his sister. He has stated that on getting news about the death of his sister he came to Ganj Dundwara and by that time inquest was already performed and the dead body was being sent for autopsy, which was conducted on 14.9.1998. The last rites of deceased were performed in Ganj Dundwara on 15.9.1998 and thereafter on 16.9.1998 he lodged the report. In the facts and circumstances of the case the delay in loding the FIR had been properly explained. None of the accused had informed about the incident either to the complainant or the police. They did not take the deceased to any doctor for treatment. This conduct of the accused speak volumes about their ill-intention.
14. One Hari Om Gupta s/o Late Ram Chandra Gupta, r/o mohalla Ghasi, Kasba & P.S. Ganj Dundawara, District Etah submitted a written report to Station Officer of P.S. Ganj Dundawara on 13.9.1998 stating that today at about 12 'O' clock in the noon he has received information on telephone that Smt. Sanju aged about 20 years, sister-in-law of his niece, daughter of late Ram Avtar, has suffered burn injuries in her law's house situated in Mohalla Etah Road near electric sub-station Kasba and P.S. Ganj Dundawara, District Etah. He along with Pramod Kumar s/o Ram Chandra Gupta of Mohalla Ghasi Qasba Ganj Dundawara, Anil Kumar, r/o Mohalla Sudamapuri and others reached at the house of Sanjiv Kumar Gupta @ Boby and found Smt. Sanju lying on the ground inside the house in brunt condition. He took her to Government Hospital, Ganj Dundawara for treatment but doctor was not available and when he was taking her to Etah she succumbed to injuries near Sidhpura at about 3.00 P.M. The dead body was taken back and kept out side the house of Boby. The complainant has filed a photograph of the dead body of the deceased stating that it was kept outside the house of accused persons and the main door behind the dead body is locked from outside. This report further stated that Smt. Sanju had been married about a year ago with Boby s/o Jagdish Chandra Gupta and he has informed the family members of the deceased. The defence has sought to prove this report given to the police regarding death of the deceased through statement of Pramod Kumar Gupta DW-1, who is not the author of the report, rather had allegedly accompanied his brother Hari Om Gupta to reach the house of the accused persons, where they found the deceased in burnt condition in their house. In this report also no mention has been made about the whereabouts of the accused persons. Further the maker of the report has not been examined by the defence. It was the duty of the accused to explain the circumstances in which the deceased sustained burn injuries. The defence witness has stated the facts which do not find place in the report of Hari Om Gupta. The report says that Hari Om Gupta received telephonic message regarding deceased having been sustained burn injuries, while Pramod Kumar Gupta DW-1 claims that he had received the aforesaid telephone. No doubt Pramod Kumar Gupta DW-1 is distant relative of the complainant, but in the absence of any explanation coming from the mouth of the accused, his statement is of no help to the defence to explain the circumstances in which the deceased was caught by fire. The law does not enjoin a duty on prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on prosecution is to lead such evidence which is capable of leading having regard to the facts and circumstances of the case. Here it is necessary to keep in mind sec. 106 of the Evidence Act which says that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Where an offence like murder or dowry death is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be comparative of a lighter character. In view of s. 106 Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish it's case lies entirely upon the prosecution to offer any explanation. [Vide Daulatram vs. State of Chhattisgarh, 2008 (63) ACC 121, Trimukh Maroti Kirkan vs. State of Maharashtra, 2007 (57) ACC 938 (SC), Chankya Dhibar vs. State of W.B., (2004) 12 SCC 398, and State of Punjab vs. Karnail Singh, 2003 (47) ACC 654 (SC).
15. The most important circumstance against the story of defence regarding burn injuries found on the person of the deceased is that the doctor conducting autopsy has found smell of kerosene in the scalp hair of the deceased. Pramod Kumar Gupta DW-1 has stated that when he reached at the house of accused persons, he saw the deceased having burn injuries and she told him that while pouring kerosene in the stove, inadvertently it spread and she caught fire. However, this witness could not withstood the test of cross-examination about the alleged manner in which the deceased sustained burn injuries. The vigilant Presiding Officer had asked questions on this point and the witness had given vague and irresponsible answers. The question and answers are reproduced as under:
" iz'u% D;k vki crk ldrs gS fd feV~Vh ds rsy ds LVkso esa rsy dSls Mkyk tkrk gS\ mRrj% rsy dh Vadh dh MkV [kksydj LVkso esa rsy Mkyk tkrk gSA iz'u% ;fn MkWV [kksyh tk;sxh ;k tk;sxkA mRrj% eSaus dHkh LVkso esa rsy gh ugha Mkyk blfy;s eq>s bldh tkudkjh ugha gSA iz'u& LVkso tyrs tykrs ns[kk gS\ mRrj& th gkWA"
The above question-answers show that the witness has tried to give evasive replies to the questions put to him. If for sake of arguments, the contention of defence is accepted that the deceased caught fire while cooking food on stove as the kerosene spread when she was filling the stove, then in such a situation the kerosene would not be found in the scalp hair of the deceased and she would not get such severe burn injuries which may cause her death in few hours after sustaining the injuries. Apart from it, the ante-mortem injuries no. 1 and 2 which are result of use of violence with the deceased also belie the defence theory. In such a situation, following mute questions arise:
Where were the accused at the time of incident?
Why did they not try to extinguish the fire if it was a case of accident?
Why did the accused not inform the complainant or the police about the incident?
Why the accused have not chosen to explain as to how the deceased caught fire?
Why did the accused persons not immediately provide medical assistance to her?
Why did the accused not inform the local police after the death of the deceased.
Since the incident had taken place in the house of the accused persons, therefore, these unanswered questions unerringly point towards the guilty mind of the accused persons. The accused did not care to explain as to how the death of the deceased occurred. Denial cannot be treated to be the discharge of onus. Onus has to be discharged by leading proper and cogent evidence. It was expected from the accused to explain as to how and why Smt. Sanju @ Anju died, as well as their conduct immediately prior and subsequent to the death of the deceased. Maintaining silence cannot be equated to discharge of onus by the accused. In the present case, the prosecution by reliable and cogent evidence has established the guilt of the accused. The rebuttal thereto, through the testimony DW-1 is neither plausible nor worthy of credence.
16.Another salient feature of this case is that the inquest on the cadaver of the deceased was performed in absence of the complainant. DW-1 claims to have taken the deceased in injured condition from the house of accused along with his brother Prem Chand Gupta, but surprisingly neither DW-1 nor his brother Hari Om Gupta who has informed the police is not the witness of the inquest report, while Prem Chand Gupta (father-in-law of complainant) is among the panch witnesses. This inquest was performed by SDM Akshay Lal PW-5 who had no axe to grind with the accused persons. He has given his opinion below the opinion of panch witnesses. Both these opinions read as under:
" ge iapku dh jk; esa e`frdk Jherh vatw mQZ latw xqIrk ifRu latho dqekj mQZ ckch eqgYyk ,Vk jksM fctyh ?kj ds ikl Fkkuk dLck xat MqaMokjk dh e`R;q pksV igWqpkus o tykus ls gqbZ gSA g0 iapku Mk0 lqjs'k pUn xqIrk] LorU= dqekj xqIrk] izse pUn xqIrk] txnh'k izlk oekZ o jktsUnz ckcw xqIrkA "
jk; eftLVªsV& "eq> mi ftyk eftLVªsV ifV;kyh dh jk; Hkh iapksa dh mDr jk; ls esy [kkrh gSA e`rdk Jherh vatw mQZ latw ds dqN pksaVs izrhr gksrh gSA ?kj dk njoktk rkyk cUn gSA yk'k ckgj tehu ij iM+h gqbZ gSA llqjky i{k ds lHkh yksx ykirk gSA bl ekeys esa e`R;q dh ifjfLFkfr;kW iw.kZr% lafnX/k gSA vr% bl ekeys dh xgjkbZ ls Nkuchu visf{kr gSA lkFk gh e`rd dk 'ko ijh{kk nks MkDVjksa dh Vhe ls Hkh visf{kr gSA vr% yk'k okLrs iksLV ekVZe lhy cUn dj fuEu dkxtkrksa ds lkFk lh&390 jekdkUr o 256&Jh v'kksd ih0 ,l0 xat MqaMokjk ds ek/;e ls Hksth tk jgh gSA"
g0 vPNs yky] mi ftyk eftLVªsV] ifV;kyh fnukad 14&9&98 10-15 ,0 ,e0"
The inquest report has been duly proved by Sri Akshay Lal PW-5 and in cross-examination, his opinion has not been challenged. The observations made by him regarding absence of accused and closure of their house by lock and key fully corroborate the prosecution story and voluminously speak against the conduct of the accused. Although in cross-examination he has stated that when he reached at the spot, the dead body was kept on a cot, while in above opinion it has been mentioned that it was kept on the ground, but it is not significant, because his statement in the trial Court had been recorded more than three and half year after the inquest proceedings of the deceased. No circumstance had been shown by appellants' counsel why the SDM, hatched a conspiracy to bring a false document into existence. Thus the inquest report in the instant case is a valuable piece of evidence against the accused persons.
17.In his written report the complainant has stated that the accused were not satisfied with the dowry given in the marriage and they had complained about not giving certain costly items e.g. colour TV, washing machine, fridge in dowry at the time of marriage. In cross-examination of PW-1 it has come that the accused were also enraged for giving old bed in the marriage. The deposition of PW-1 shows that they are four brothers, three of them were living in Delhi. Their father had already expired. The marriage of the deceased was performed by the complainant. He had spent the amount in the marriage from his arrears of pay and GPF advance. Learned counsel for the appellants has contended that certain facts which have been deposed by PW-1 in his examination before the trial Court do not find mention in his written report. Suffice it to say that FIR is not the encyclopedia of the prosecution case. The mental condition of the complainant at the time he prepared written report can very well be assessed. He must be in great shock and anger after seeing the condition of dead body of his young sister. The complainant has been subjected to lengthy and grueling cross-examination. He has stated that after marriage his sister has complained about her harassment and torture at the hands of her in-laws on account of demand of dowry. Twice the complainant has also visited the house of the accused persons in the months of July and August, 1998 and he had himself seen the misbehaviour of the accused persons.
18.The prosecution has also examined the maternal uncle of the deceased J. P. Gupta PW-2 who has testified about the demand of dowry by the accused persons at the time of marriage. Although he has stated that the deceased and her mother had also complained about the misbehavior of accused persons regarding dowry demand with the deceased, but in cross-examination he has stated that after marriage the deceased did not meet him. However, his testimony corroborates the statement of PW-1 regarding demand of dowry by accused persons at the time of marriage and the scene created by accused persons to have their demand fulfilled. In cross-examination of PW-1 he had been asked as to why he did not lodge any FIR about the misconduct of the accused persons, for which he had given a very plausible reply, which is as under:
^^ge yM+dh okys gSA vUtw dh llqjky okyksa dks le>kus dk iz;kl djrs jgsA 'kknh dks flQZ 10 eghuk gq;s Fks blfy;s geus fjiksVZ fy[kkus dh vko';drk ugh le>hA^^ The father of the deceased had already expired and her marriage was performed by the complainant, who had his own family. Every family member of the bride does not rush to the police or the Court whenever any untoward incident happens with her in matrimonial home. They somehow try to settle the things and think that the time is the best healer. Even the bride, does not complain each and every event that took place in her nuptial home to her parents. Patience and tolerance are exemplary virtues of our Indian women. She also feels that all may be well soon. Her parents think that after birth of 1st issue, she would settle well in her matrimony. In these circumstances, it is insignificant if no report was ever made by the complainant to the police against the accused persons on account of their dowry demand or harassment and torture of the deceased at their hands on this score.
19. Learned counsel for the appellants has next argued that there is no reliable evidence to show that the deceased was subjected to cruelty or harassment soon before her death on account of demand of dowry by the accused persons. This argument too has no legs to stand. As we have seen that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act.
20. In the instant case we have seen that the 20-years' old deceased had suffered death on account of burn injuries within a year of the marriage in her matrimonial home. The complainant has stated in his examination-in-chief that on 11.7.1998 he had come to the house of accused persons to take the deceased for Namkaran Sanskar of his son and at that time all the accused persons have misbehaved with him on account of dowry demand and when his sister protested her mother-in-law and sisters-in-law ran to beat her and they did not send the deceased with him. PW-1 has again stated that on the eve of Raksha Bandhan he visited the accused persons and that time with great difficulty the mother-in-law and sisters-in-law permitted her to tie rakhi and immediately took her back. The crying deceased then said to him that he should give the dowry items to accused persons else they would kill her. She also told him that all accused persons used to harass and beat her on account of demand of dowry. The calendar of year-1998 shows that 'Raksha Bandhan' was on 8.8.1998. It was 1st Raksha Bandhan of the deceased after her marriage, so visit of PW-1 on this festival was quite natural. Considering the subsistence of marriage life of the deceased the incidents of July and August, 1998 prior to the death of the deceased on 13.9.1998 can very safely be termed as 'soon before' the death of the deceased.
21. It is pertinent to note here that the demand of dowry subsisted since the time of marriage and thereafter when accused Sanjiv Kumar @ Boby visited his in-laws for vida of the deceased. Thus we find that there is ample evidence to conclude that there was demand of dowry by the accused persons since marriage of deceased with Sanjiv Kumar @ Boby and it never came to an end till the deceased was set ablaze by the accused persons. We say so because the injuries found on the person of the deceased cannot be caused to her in any accident nor it was a case of suicide. Further, the accused have not stated a single word that the deceased had committed suicide. It was a clear cut case of 'murder' of the deceased in her matrimonial home by her in-laws proved by facts and circumstances appearing in the case. However, we are handicapped because in these appeals u/s 374 Cr.P.C., we cannot alter the conviction of the accused persons into Section 302 IPC.
22. Another important feature in the case is the spot position depicted in seizure memo dated 16.9.1998 Ex. Ka-7 and site-plan Ex. Ka-6, which have been proved by C.O. Sri Om Prakash Misra PW-6, the investigating officer of the case. He has stated on oath that on 16.9.1998 he had visited the place of occurrence and had seized pieces of broken bangles of the deceased, hairs, ashes, burnt baans and plastic container having one litre kerosene, sealed them separately and dictated memo Ex. Ka-7 through SI Satya Pal Singh. In site plan he had shown a room adjacent to the kitchen on floor as the place of incident. This witness has been cross-examined by the defence at length wherein he has stated that he inspected the spot on 16.9.1998 at the instance of complainant and his maternal uncle J. P. Gupta. However, no question had been asked from this witness about the recovery of aforesaid articles from the spot. It has come in evidence that after the incident the accused persons after locking their house have absconded, so they could not get sufficient time to remove these articles from the spot. Thus, the recovery of broken bangles and her hairs together with ante-mortem injuries no. 1 and 2 found on the person of the deceased by the autopsy doctor, clearly show use of violence with her at the time of incident. The recovery of ashes and burnt baans further prove that she was set ablaze inside the room and the place of incident is not the kitchen, as the defence wanted us to believe.
23. Learned counsel for the appellants has drawn our attention to two questions put to the accused persons in their statements u/s 313 Cr.P.C., which according to him show that the dead body of the deceased was taken to police station where inquest was performed. It appears that inadvertently such questions had been put to accused persons that after receipt of report of Hari Om Gupta s/o Ram Chandra the police brought the dead body of the deceased to police station where inquest was held, but it is important to note that such is not the case of defence as well. Pramod Kumar Gupta DW-1 has stated that after death of deceased while taking her to Etah near Sidhpura they had kept her dead body outside the house of accused persons. The report made by Hari Om Gupta s/o Ram Chandra Gupta had been proved by Pramod Kumar Gupta DW-1. This report does not answer the following questions:
Who had informed Hari Om Gupta about the incident on phone?
Whether the accused persons met him at their residence when Hari Om Gupta and others reached there?
Why only Hari Om Gupta took the deceased in injured condition to Govt. Hospital, Ganj Dundwara?
Why the dead body of the deceased was kept outside the locked house of the accused persons?
Why Hari Om Gupta did not mention in Ex.Kha-1 that the accused persons had also accompanied him to the hospital?
It appears that the accused persons escaped from their house after the incident and that's why Hari Om Gupta, a distant relative of the complainant was informed who had taken the deceased firstly to Govt. Hospital, Ganj Dundwara and then while taking her to Etah she succumbed to the injuries near Sidhpura and then he kept the dead body of the deceased outside the house of the accused persons. Thus, the mistake committed by the trial Court in putting questions to the accused persons in their statements u/s 313 Cr.P.C. does not in any manner prejudice the accused persons materially to the extent that it may vitiate the trial. No doubt the provisions of Section 313 CrPC make it obligatory for the Court to question the accused on the prosecution evidence and circumstances against him so as to enable the accused to explain it. However, it would not be enough for the accused to contend that he has not been questioned or examined on a particular fact or circumstance, instead he must show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words, in the event of an inadvertent omission on the part of the trial court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the Court, which is missing in the instant case.
24. The learned counsel for the appellants lastly contended that the sentence awarded to accused persons is too harsh and severe, because maximum sentence had been imposed on them for the offence punishable u/s 304-B IPC. He further submitted that accused Jagdish Chandra Gupta and his wife Smt. Munni Devi are elderly persons. They are parents-in-law of the deceased and were residing separately with the deceased. We have considered the submissions of the learned counsel, as also the facts and circumstances of the case but we find no substance for the following reasons and extenuating circumstances:
i)that the deceased was harassed and tortured on account of demand of dowry from the time of her marriage with accused on 21.11.1997;
ii)that the deceased was burnt alive after beating on 13.9.1998 in her matrimonial home and she died within a year from her marriage on account of demand of dowry;
iii)that ante mortem injuries were found on the person of the deceased apart from burn injuries, which show use of violence with her;
iv)that smell of kerosene was found in the scalp hair of the deceased;
v)that the accused persons have not uttered a single word or explained any circumstance about the manner in which the deceased sustained fatal burn injuries and died within few hours of setting her ablaze;
vi)that no medical treatment was provided to the deceased and had been treated in a most cruel manner;
vii)that after the deceased was removed from the house of the accused they left the house after locking the same;
viii)that the accused persons did not inform either the police or the complainant after the incident at any point of time.
In these circumstances, we may usefully refer to the observations of the Apex Court given in the case of Satya Naryan Tiwari @ Jolly & Anr. Vs. State of U.P. (2011) 2 Supreme Court Cases (Cri) 393. In this case the accused were acquitted by the trial Court under Sections 304B, 498-A IPC and Section 4 of the Dowry Prohibition Act, but in appeal this Court set aside the judgment of acquittal and awarded imprisonment for life u/s 304-B IPC to husband and mother-in-law of the deceased who was first strangulated and then they set her ablaze within about three years of her marriage. The facts of the instant case are more pathetic than the above case before the Apex Court. The Hon'ble Court has observed as under:
"Although bride burning or bride hanging cases have become common in our country, in our opinion, the expression "rarest of rare" as referred to in Bachan Singh Vs. State of Punjab, AIR 1980 SC 898 does not mean that the act is uncommon, it means that the act is brutal and barbaric. Bride killing is certainly barbaric.
Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialization of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand."
In view of the observations of the Apex Court as also the circumstances of the instant case we do not find any substance in the last contention of the counsel for the appellants.
25. In view of our entire reassessment of evidence and reasons given hereinbefore, we find that the appeals have no force and are accordingly dismissed. Accused Sanjiv Kumar @ Boby is in jail and would serve out the remaining sentence. Accused Jagdish Chandra Gupta and Smt. Munni Devi are on bail. Their bail had already been cancelled vide order dated 16.10.2012, however after conclusion of arguments in appeal on 5.11.2012, the non-bailable warrants issued against them were kept in abeyance. These warrants be now executed forthwith and both these accused be sent to jail to serve out the sentence.
26. Sri Rahul Misra, Amicus Curiae would get Rs.2,100/- for the assisting the Court in arguing appeals on behalf of the appellants. The amount be paid to him in 4-weeks.
27. Let the certified copy of the order be sent to the Court concerned and the Chief Judicial Magistrate, Kanshi Ram Nagar for compliance which should be reported to this Court within 4-weeks.
Anil Kumar Sharma, J Rakesh Tiwari, J
November 27 , 2012
Imroz/-