Allahabad High Court
Munnu Seth & Others vs State Of U.P. on 10 January, 2014
Author: Anil Kumar Sharma
Bench: Anil Kumar Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
CRIMINAL APPEAL No. 1252 of 2001
1. Muunu Seth,
2. Smt. Anar Kali,
3. Rajesh Kumar,
4. Rakesh Kumar,
5. Sanjay Kumar and
6. Gudiya ... ... Appellants.
Versus
State of U. P. ... ... Respondent
Counsel for the appellants : Sri H. N. Singh
Counsel for the respondent : Sri N. L. Maurya, AGA
Counsel for the complainant : Sri I. K. Chaturvedi
CORAM:
HON'BLE ANIL KUMAR SHARMA, J.
Challenge in this appeal is to the judgment and order dated 21.4.2001 passed by Sri Raj Kumar, the then Addl. Sessions Judge, Court no. 1, Jaunpur in S. T. no. 214 of 1998 State of Versus Muunu Seth and others u/s 498-A, 304-B IPC and ¾ Dowry Prohibition Act, whereby each appellant had been convicted and sentenced to 10-years' R. I. u/s 304-B and 3-years' R. I. u/s 498-A IPC with fine of Rs. 1000/- each. They have been further found guilty for the offence punishable u/s 3/4 Dowry Prohibition Act and sentenced to under go rigorous imprisonment for six months.
2. The Chief Judicial Magistrate, Jaunpur has reported vide report dated 3.5.2013 that accused Munnu Seth had died on 3.10.2007. He has appended the copy of police report and death certificate as also copies of statements of police sub-inspector, Member, Nagar-Palika Parishad and son of the deceased, therefore, appeal of appellant no. 1 Munnu Seth stands abated.
3. Facts germane to the appeal are that on 8.1.1998 at 00.30 hrs complainant Mata Prasad Seth s/o Tulu Seth r/o Mohalla Keet Ganj, Allahabad submitted a written report in P. S. Kotwali, Jaunpur stating that he had married his daughter Sunita with Rajesh Kumar @ Pappu about 6 months back on 13.7.1997 and since marriage Rajesh Kumar, his father Munnu Seth, brothers Rakesh, Sanjay and Raju, sister Gudiya demanded fridge and Rs. 20,000/-. He had shown his inability to meet their demand and after much persuasion his daughter was taken by them in vida. On her return after a week, she cryingly told that her in-laws including the mother-in-law tortured and harassed her for not giving Rs.20,000/- and fridge in dowry. On 28.11.1997 her gauna (second marriage) was performed. It is further alleged that on 7.1.1998 through a relative they got information that his daughter had been killed by her father-in-law Munnu Seth, husband Rajesh Kumar, mother-in-law Anarkali, brothers-in-law Rakesh, Sanjay, Raju and sister-in-law Gudiya by setting her ablaze. On getting this information, they went to Jaunpur and found the dead body of his daughter in burnt condition in the house of the accused. Earlier on 7.1.1998 at 6.20 p.m. the husband of the deceased informed the police that his wife (Sunita) had died due to burn injuries while she was preparing tea. Inquest on the cadaver of the deceased was conducted on 8.1.1998 at 10.30 p.m. in the house of the accused persons and thereafter it was sent for autopsy. A team of doctors led by Dr. S. P. Awasthi conducted post-mortem examination of the deceased the same day at 4.00 p. m. The doctors found that the 20-years' old deceased was having thin built body. Rigor mortis was present in both the extremities and there was no decomposition. They found following ante-mortem injury on the person of the deceased:
"Superficial burns 1-2 degrees all over both except feet and lower part of leg. (About 90%). Scalp hair burnt. Smell of kerosene oil present. Skin peeled of at places. Line of redness present around some wound."
Mouth open. Tongue slightly protruding.
In internal examination the doctors found that brain, its membranes, trachea, both lungs, spleen and kidneys were congested. Black soothing particles were found in larynx and trachea. The stomach was empty and both the intestines contained gases and fecal matter. The uterus was non-gravid. In the opinion of the doctor the deceased suffered death about a day before due to shock and asphyxia as a result of ante-mortem burns.
4. After registration of the case, scene of incident was inspected by the police on 8.1.1998. An iron sandasi, an iron stove filled with kerosene, a steel bhagauna containing some water for preparation of tea were seized through memo. During inquest the jewelery worn by the deceased, namely - a pair of used silver payal, a gold nose pin, a pair of gold jhumka and 4 siliver bichiya were taken out and given in the supurdgi of Smt. Anarkali (mother-in-law of the deceased). The investigating officer interrogated the witnesses and after completion of the investigation submitted charge-sheet against all the seven named accused. However, case of co-accused Raju was made over to the Juvenile Justice Board as he was found to be juvenile on the date of incident.
5. After committal of the case to the Court of Session, charges for the offence punishable u/s 304-B, 498-A IPC and 3/4 Dowry Prohibition Act were framed against all the accused-appellants, who abjured their guilt and claimed trial.
6. In order to prove its case, the prosecution had examined complainant Munnu Seth PW-1, brother of the deceased Anil Kumar Verma PW-2, Suresh Kumar PW-3, Dr. S. P. Awasthi PW-4, Constable Vinod Kumar PW-5, SI Chhedi Lal Yadav PW-6, Dy. S. P. Akhilanand Mishra PW-7 and Constable Raj Narain Yadav PW-8.
7. All the accused persons in their separate statements u/s 313 Cr. P. C. have admitted the marriage of the deceased with accused Rajesh Kumar and receipt of fridge from the complainant at the time of gauna (second marriage) on 28.11.1997. However, they have denied the other part of the prosecution story. In defence the accused have not examined any witness in defence. They have filed two post-cards allegedly written by PW-2 and the other by the sister of the deceased.
8. I have heard arguments of learned counsel for the parties at length and perused the original record of the case carefully.
9. Learned counsel for the appellants has vehemently argued that the learned trial Court has erroneously convicted all the accused-appellants in the case and no specific allegation was made against any of the accused regarding dowry demand and torture or harassment of the deceased on this score. He further submitted that the deceased was disgruntled with her marriage with accused Rajesh due to disparity in their financial status, so out of depression she has committed suicide. Alternatively it has been contended that the deceased suffered burn injuries while she was preparing tea and at that time none of the accused were not present in the house. He has further submitted that the letters written by PW-2 and sister of the deceased clearly show that the deceased was enjoying her married life quite happily and there was no dowry demand by any of the accused nor she was harassed or tortured by any of them on this count. Per contra learned AGA and the learned counsel for the complainant have submitted that the deceased had remained in her matrimonial home only for about six weeks with interval of about four months, firstly for a week after the marriage and then since 28.11.1997 (after second marriage) till her death and there was no occasion for her to commit suicide and the case of the defence that the deceased accidentally suffered burn injuries while preparing tea is totally false and fabricated. They further submitted that the deceased has suffered 90% burn injuries in her matrimonial home. The articles recovered from the spot, particularly kerosene soaked woollen shawl of the deceased speaks volume about setting her ablaze by the accused persons. Highlighting the provisions of Section 304-B IPC and 113-B Evidence Act, it has been submitted that the prosecution has successfully proved all the ingredients constituting the offence u/s 304-B IPC and the learned trial Court has not all erred in convicting and sentencing the appellants, so the appeal is liable to be dismissed.
10. Before I dwell upon to analyze the evidence on record it would be proper to refer to the statements given by the prosecution witnesses before the trial Court.
11. Complainant Mata Prasad Seth PW-1 is the father of the deceased. He has stated that he had two daughters, the elder - Suntia was married with accused Rajesh @ Pappu r/o Mohalla Shanker Mandi, Jaunpur six months prior to the incident. His brother-in-law Bharat Seth was the mediator in the marriage. After marriage she stayed in her matrimonial home for a week. Accused Munnu Seth is her father-in-law, Gudiya is sister-in-law, accused Sanjay, Rakesh and Raju are her brothers-in-law while Anarkali is mother-in-law. In the marriage he had given all the articles as per his capacity. The accused have demanded a fridge and Rs. 20,000/- at the time of khichdi (a ceremony during marriage), but he could not manage it and after persuasion vidai was held. When Sunita returned back she cryingly informed them that on account of demand of fridge and Rs. 20,000/- she was tortured and beaten by all the accused persons. After four months second marriage (Gauna) was performed in which Munnu Seth and three brothers-in-law of the deceased came and they assured that his daughter will not be ill-treated any more. At that time he had given fridge to the accused persons and requested them not to harass or torture her and he would give Rs. 20,000/- later on. He has further stated that about 10-days prior to the incident he had gone to the house of the accused persons, where Sunita again informed him about her plight and harassment for non-payment of Rs.20,000/- to the accused persons, but he some how pacified her and returned back. On 7.1.1998 he was informed by his relative that all the accused persons have killed Sunita after setting her ablaze. On this information he came to Jaunpur, reached at the house of the accused persons and found her daughter dead in burnt condition. On enquiry from neighbours he came to know that on account of dowry demand the accused persons have killed her. None of the accused was there and have fled away. He got the report prepared from Suresh and handed over at the police station. The written report has been proved as Ex. Ka-1.
12. Anil Kumar Verma PW-2 is the brother of the deceased. Corroborating the statement of his father he has stated that he had two sisters - Sunita and Anita. Sunita was married with accused Rajesh @ Pappu six months prior to the incident. Narrating the relationship of all the accused persons, he has stated that at the time of marriage in Khichdi the accused persons have demanded a fridge and Rs. 20,000/-, but they informed them to give it later on. After vida she went to Shanker Mandi, Jaunpur, stayed there for a week and thereafter she returned back. She wearyingly informed them that her husband Rajesh, father-in-law Munnu Seth, brothers-in-law Sanjay, Rakesh and Raju, sister-in-law Gudiya and mother-in-law Anar Kali demanded a fridge and Rs. 20,000/- in dowry and they used to beat and harass her. Thereafter accused Munnu Seth, Sanjay, Rakesh and Raju came to their house for vidai and assured that she would not be ill-treated. On 28.11.1997 her Gauna was performed and at that time they gave a fridge to the accused persons, but amount of Rs. 20,000/- could not be arranged and they told them to give it later on. After some time he along with his father visited the accused persons and again Sunita narrated the old story of her harassment and torture for non-fulfillment of their demand of Rs.20,000/-. They talked with the accused persons and they gave assurance. On 7.1.1998 he got information that the accused persons have killed Sunita after causing burn injuries. He along with his father went at the house of the accused persons, and found his sister dead on the roof. He has further stated that the accused persons have not informed them about the incident and they were not found in the house. A green colour shawl soaked in kerosene was lying near the dead body which was given to Sunita by them. The report of the incident was lodged by his father.
13. Suresh Kumar PW-3 is resident of Jaunpur and son of maternal uncle of the deceased. He has stated that Mata Prasad Seth resident of Mohalla Keet Ganj, Allahabad is his Phoopha. His daughter Sunita was married with Rajesh Kumar r/o Jaunpur from their house on 13.7.1997. Naming all the accused persons, he has stated that they reside together. At the time of marriage the bride-groom's family demanded a fridge and Rs. 20,000/-. In second marriage fridge was given and Rs. 20,000/- were to be paid later on as it could not be arranged. On this account all the accused persons use to harass and torture Sunita. All this was told to him by Sunita and Phoopha. When the demand of Rs. 20,000/- could not be met, all the accused persons have killed Sunita by setting her ablaze six months after the marriage. He informed the complainant at Allahabad about this incident on phone. Thereafter they came to Jaunpur and went at the house of the accused persons. He dictated the report to him, which was written by him and later it was given at P. S. Kotwali. He has further stated that after noting down the report, he read it to the complainant and thereafter he signed. The report Ex. Ka-1 has been proved by this witness.
14. Dr. S. P. Awasthi PW-4 has conducted post-mortem examination on the cadaver of the deceased on 8.1.1998. In his deposition he has proved the contents of the his report Ex. Ka-2. He has further stated that the deceased could have suffered death at about 4 p.m. on 7.1.998 on account of burn injuries. He has categorically stated that the deceased sustained burn injuries while she was alive. However, he could not specifically state in his cross-examination whether the death of the deceased was suicidal, accidental or homicidal.
15. Constable Vinod Kumar PW-5 has taken the dead body of the deceased on 8.1.1998 after inquest in sealed condition for post-mortem examination along with Constable Umendra Singh. He has testified that till the sealed dead body remained with them it was not touched or seen by any body and they had identified the dead body before the doctor.
16. SI Chhedi Lal Yadav PW-6 has stated that on 8.1.1998 he was posted in out-post Shanker Mandi of P. S. Kotwali and on that day he has conducted inquest upon the cadaver of deceased Sunita Devi in presence and direction of the SDM. He has prepared the inquest papers on the instructions of the SDM, which have been proved as Ex. Ka-3 to Ka-9 and stated that these papers bear his signatures and the SDM as well. After inquest he has handed over the dead body to Constable Vinod Kumar and Umendra Singh in sealed condition.
17. Dy. S. P. Akhilanand Mishra PW-7 is the investigating officer of the case. He has stated that on 8.1.1998 he was posted as Circle Officer City, Jaunpur and the investigation of this case was handed over to him. He reached at the place of occurrence and interrogated the complainant and SI Chhedi Lal. After inspecting the spot he has prepared site plan which has been proved as Ex. Ka-10. He has further submitted that SI Chhedi Lal in presence of the SDM has seized Sandasi, Stove, Bhagauna and jewellery of the deceased from the spot and prepared memo. Separate memo was prepared for ashes of burnt clothes and kerosene soaked shawl. The memo Ex. Ka-11 to 13 were signed by the SDM Sadar. He has further submitted that on 9.1.1998 accused Rajesh Kumar, Raju, and Smt. Anarkali were arrested by Kotwali police and they were interrogated by him. He has further stated on 12.1.1998 he has interrogated other witnesses and they had given him the invitation card of the marriage. The photo-copy of receipt regarding purchase of fridge was given to him by the complainant. He has testified about other investigatory formalities and submission of charge-sheet against the accused persons.
18. Constable Ram Narain Yadav, PW-8 has stated that on 8.1.1998 he was posted as Pairokar of P. S. Kotwali and at that time HC Ram Narain Yadav was posted as Head Moharrir at the police station. He is acquainted with his hand-writing and signature. This witness has proved the check report and copy of GD regarding registration of the case as Ex. Ka-17 and Ka-18.
19. Unnatural death of the young woman in her matrimonial home is a cause of great concern not only to the society but the Courts as well. A married woman may commit suicide by hanging or burning or consuming poison for various reasons. She ties the knot of marriage only to find peace and shelter in safe and sound care of her husband after leaving her parental house. She does not bid adieu to her parents to have harassment and torture at the hands of her husband or relatives for demand of dowry, who are expected to be her caretakers and well wishers. In Hindus marriage is not a contract but a sacred act, recognized by the law and the society for thousands of years. Any departure of such human behaviour has to be taken with a grain of salt. It is not expected from parents or relations of acquaintances that they will falsely rope husband and his relations only to wreck vengeance and punish husband or her in-laws even when the victim dies due to her extra-marital relationship if any or mental frustration or depression etc. on account of other reasons. However, from past few years it is seen that whenever any incident of dowry death takes place, the entire family of groom is roped in without making specific allegation against each accused. The probative value and intention of witnesses has to be taken with a touch of ground reality keeping in view the fact that their beloved known victim was tortured and that's why the death was propelled.
20. To attract section 304B of the Indian Penal Code, the following conditions must be fulfilled:
(i) the death of woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) such death must have occurred within seven years of her marriage;
(iii) soon before her death, the woman must have been subjected to cruelty of harassment by her husband or any relatives of her husband;
(iv) such cruelty or harassment must be for, or in connection with demand for dowry.
When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the above mentioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such compulsory presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross-examination of prosecution witnesses or by adducing evidence on the defence side. Section 113B of the Indian Evidence Act, 1872 speaks about presumption as to dowry death which reads as under:
"113B. 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 has caused the dowry death. In the present case following factual circumstances stand established:
a) the deceased was married to husband accused;
b) the deceased died at the place of her husband within a span of seven years.
c) she died an unnatural death."
Therefore, a presumption automatically may arise under section 113B of the Indian Evidence Act. If it is established by the evidence of the prosecution witnesses that the chain is complete suggesting only to the fact that the accused persons perpetrated torture soon before her death over demand of dowry and as such the victim died an unnatural death.
21. In the instant case the evidence on record show that the following facts are not disputed:
i) that the marriage of the deceased Smt. Sunita with accused Rajesh Kumar was solemnized on 13.7.1997 and the second marriage (Gauna) was performed on 28.11.1997;
ii) that the complainant is resident of Mohalla Keet Ganj, Allahabad while the accused-appellants are residents of Jaunpur;
iii) that at the time of second marriage the complainant had given fridge to the accused persons;
iv) that Smt. Sunita had lived in her matrimonial home only for 47 days; v) that she suffered death on account of ante-mortem burn injuries (90%) in her matrimonial home on 7.1.1997; vi) that the inquest upon the cadaver of the deceased was conducted by the SDM/police on the basis of written information submitted by accused-appellant Rajesh Kumar, but the same has not been brought on record by the accused- appellant;
vii) that the FIR of the incident was lodged by the complainant Mata Prasad on 8.1.1998 at 00.30 hrs in P. S. Kotwali, Jaunpur;
viii) that accused Rajesh Kumar is husband of Smt. Sunita while other accused are his parents, brothers and sister;
ix) that PW-1 Mata Prasad is the father, PW-2 Anil Kumar Verma is brother and PW-3 Suresh Kumar resident of Jaunpur is cousin (Mamera bhai) of the deceased.
The above proved facts clearly show that the deceased has suffered death on account of burn injuries in the house of accused-appellants within seven years of her marriage with accused Rajesh Kumar. Thus the two main ingredients to make out a case of dowry death stand proved beyond all reasonable doubt.
22. The prosecution story regarding demand of fridge and Rs. 20,000/-from the parents of the deceased by accused persons since marriage had been testified by PW-1 and PW-2. There is no delay in reporting the crime to the police. PW-3 Suresh Kumar has stated in cross-examination that he came to know about the incident from his father at about 5-6 p.m. and thereafter he had informed the complainant on phone. He has fruther stated that thereafter his phoophaji (complainant) came at the house of the accused, enquired about the incident and then dictated report to him which was later on given to the police of P. S. Kotwali, Jaunpur.
23. It has come in the testimony of PW-1 that Bharat Seth (his brother-in-law) resident of Jaunpur was the mediator in the marriage and the information about the incident was conveyed to PW-1 by his son Suresh Kumar PW-3, who is also scribe of the written report Ex. Ka-1. The record shows that Bharat Seth (father of PW-3 and brother-in-law of PW-1) had died during trial. All the three witnesses of fact have categorically stated about the dowry demand of the accused since marriage from the deceased and her parents and at the time of second marriage (gauna). The complainant and his son PW-2 have stated that 10-days prior to the incident they have visited the house of accused persons and at that time also the deceased has narrated her plight about torture and harassment by the accused persons for non-fulfillment of their demand of Rs. 20,000/-. PW-1 has stated in his cross-examination that Rs. 20,000/- were demanded for motor cycle. There is no material contradiction in the deposition of the three prosecution witnesses of fact namely PW-1 to PW-3, which may create any doubt about the authenticity of their testimony. No doubt they are close relatives of the deceased but in the facts and circumstances of the case there can be no access to any outsider in the house of the accused persons, particularly when the time span of the marriage of the deceased with accused Rajesh was very little.
24. In the case of Kashmir Kaur & Anr. -vs- State of Punjab 2013 CRI L.J. 689, the Hon'ble Apex Court has held that-
"Section 304B is an exception to the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution, as well as, a presumption of innocence in his favour . The concept of deeming fiction is hardly applicable to criminal jurisprudence but in contradistinction to this aspect of criminal law, the legislature applied the concept of deeming fiction to the provisions of Section 304B IPC. Such deeming fiction resulting in a presumption is, however, a rebuttable presumption and the husband and his relatives, can, by leading their defence prove that the ingredients of Section 304B were not satisfied. The specific significance to be attached is to the time of the alleged cruelty and harassment to which the victim was subjected to the time of her heath and whether the alleged demand of dowry was in connection with the marriage. Once the said ingredients were satisfied it will be called dowry death and by deemed fiction of law the husband or the relatives will be deemed to have committed that offence."
25. The accused persons have not adduced any evidence in defence to show that the deceased caught fire in her matrimonial home while she was preparing tea on the roof of the house or she had committed suicide. They have taken inconsistent stand while cross-examining the prosecution witnesses. It was argued by the counsel for the accused-appellant that due to disparity in the financial status of the two families, the deceased was not happy with the marriage and out of frustration, she had committed suicide. On perusal of the testimony of the witnesses of fact it transpires that the family of the deceased was not at all affluent and there was no disparity in their financial status. The complainant runs a betel shop and he has admitted in his cross-examination that he had no fridge or cooler in his house. The husband of the deceased Rajesh, as per the testimony of PW-2 was engaged in selling TV-cassette and repairing work and co-accused Raju was learning gold-smith work from him. Accused Munnu Seth had stated his vocation as gold smith. Thus, the accused have failed to show that there was any financial disparity between the two families, which was cause of great concern to the deceased. They could not prove that the deceased was in any manner not satisfied with her matrimony and so she had committed suicide.
26. The deceased has suffered superficial burns 1-2 degrees all over her body except foot and lower part of leg (about 90%). Scalp hairs were burnt. Smell of kerosene was present. Skin had peeled off at places and line of redness was present around some wound. These ante-mortem burn injuries as noted by PW-4 in the post-mortem examination report of the deceased cannot be sustained by her while preparing tea. The stove has not burst as it was found intact by the investigating officer filled with kerosene. It appears that after the incident, the accused have kept bhagauna containing water, stove etc. to show that the deceased sustained burn injuries accidently. The site plan shows that the house of the accused-appellant is a pucca house and the deceased was living with her husband in the khaprail situated on the roof of the house. There were seven members in the family of the accused persons apart from the deceased. No kitchen had been shown on the roof of the house, so question of preparing tea there does not arise. It is not the case of the defence, that the deceased and her husband had a separate kitchen. Further the deceased was not saved by any one nor any medical treatment was provided her. The time of death of the deceased is about 3-4 p.m. on 7.1.1998. It has not been shown by the accused persons as to why no attempt was made by any of their family member to save her. It cannot be believed that out of the seven members in the family of the accused, no one was present in the house at the time of alleged incident. Since the incident has taken place in the house of the accused persons, so heavy burden lay on them to show as to how the deceased had sustained 90% burn injuries. The dead body of the deceased contained smell of kerosene as noted by Dr. Awasthi PW-4 in his post-mortem notes and her shawl soaked with kerosene was also recovered by the police from nearby the cadaver of the deceased. The accused persons cannot get away with their lips or keeping mum about the incident. They have to explain the circumstances in which the deceased had suffered burnt injuries in their house. There was no access of any body else in the house of the accused appellants, so the question of there being any other eye witness does not arise. Section 106 Evidence Act requires the accused persons to detail the facts which are in their special knowledge. I am conscious of the fact that the provisions of section 106 of the Act does not relieve the initial burden of the prosecution burden to prove its case beyond all reasonable doubt. In this connection we may usefully refer to the observations of the Hon'ble Apex Court given in the case of Tulshiram Sahadu Suiryawanshi & Anr. -vs- State of Maharashtra (2013) 1 SCC (Cri) 199, wherein it was held that-
"A fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as to the most probable position. The above position is strengthened in view of Section 114 of the Evidence Act, 1872. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process, the courts shall have regard to the common course of natural events, human conduct, etc. in addition to the facts of the case. In these circumstances, the principles embodied in Section 106 of the Evidence Act can also be utilized. Section 106 however, is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but it would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, has offered an explanation which might drive the court to draw a different inference."
Considering the fact that the second marriage of the deceased was performed on 28.11.1997 and she had died on 7.1.1998, and the father and brother of the deceased have stated that they have visited the house of the accused persons 10-days prior to the incident and that time the deceased had also told them that she was being harassed and tortured by the deceased on account of demand of Rs. 20,000/- as dowry, so it can be easily inferred that the deceased was harassed and maltreated due to demand of dowry. Learned counsel for the appellants has argued that this fact does not find place in the written report Ex. Ka-1 nor they have stated this fact in their police statement to the investigating officer, so it can easily be inferred that the prosecution has improved its case. However, I am not convinced with this argument. The alleged contradiction or omission has not been proved by the defence as per provisions of Section 145 Evidence Act. It was the duty of the defence to attract the attention of the investigating officer during cross-examination on these lines.
27. It has been next argued by the learned counsel for the appellant that the deceased was not illiterate and she had not sent any letter to her parents about the atrocities of the accused. It has been further submitted that in the post-cards Ex. Kha-1 and Kha-2, written by PW-2 and younger sister of the deceased there is no mention about any dowry demand of the accused persons or the alleged harassment and torture of the deceased on this count. It is true that there is no whisper in these letters about demand of dowry or maltreatment of the deceased at the hands of the accused persons, but considering the short period of marriage and the relationship of the authors of the letters, it was not expected from them that they would write to the father-in-law of the deceased about the harassment of the deceased in her matrimonial home. The issue was so delicate that it could not have been raised by younger family members of the deceased with the accused persons. The father and brother of the deceased have visited the house of the accused persons only 10-days before the incident and they had assured them to meet their demand. In the second marriage, the PW-1 had given fridge to the accused persons, which was earlier demanded at the time of marriage, but the accused lost their patience and killed the deceased.
28. In Mustafa Shahadal Shaikh -vs- State of Maharashtra reported in (2013)1 SCC (Cri) 664, the Hon'ble Apex Court the death of the bride took place within 7-months of her marriage by consuming poison and only related witnesses were examined to prove the prosecution story. The Apex Court has confirmed the conviction of the accused after considering the proximity test of 'soon before her death'. It was further observed that in a case of this nature that is matrimonial death, outsiders cannot be expected to come and depose what had happened in family of deceased. Time period which can come within term soon before her death is to be determined by courts depending upon facts and circumstances of each case.
29. Though in language used "soon before her death", no definite period has been enacted and this expression has not been defined in both the enactments (Section 304B IPC and Section 113B, Evidence Act), accordingly, determination of period which can come within term "soon before her death" is to be determined by courts, depending upon facts and circumstances of each case. However, the said expression would normally imply that interval should not be much between cruelty or harassment concerned and death in question. There must be existence of a proximate and live link between effect of cruelty based on dowry demand and death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of woman concerned, it would be of no consequence. In the instant case the deceased had suffered unnatural death within 40-days of her second marriage with accused Rajesh Kumar.
30. In Amar Singh Vs. State of Rajasthan (2010) 9 SCC 64 the Hon'ble Supreme Court has held that once it is established that soon before her death the deceased had been subjected by the appellant to taunts in connection with demand of dowry, the Court has to presume that appellant has committed the offence punishable u/s 304-B IPC. Now it is for the appellant to rebut this presumption. He had not examined any witness to rebut this presumption and in his examination u/s 313 Cr. PC had merely denied the allegations, hence his conviction was upheld.
31. Thus, the prosecution has proved beyond all reasonable doubt that the accused have demanded fridge and Rs. 20,000/- from the bride's family at the time of marriage as dowry; that the complainant had given fridge to the accused persons at the time of second marriage and the deceased was beaten and tortured in her matrimonial home on account of demand of dowry, therefore, all the ingredients to constitute the offence punishable u/s 304-B are fully established.
32. Now comes the moot question whether all the accused are guilty for causing dowry death of the deceased. We had earlier seen that the complainant has roped in all the family members of the husband of the deceased including his minor brother. It has come in evidence of PW-1 that Rs. 20,000/- were being demanded for motor-cycle. This demand pertains to the husband of the deceased. Gudiya, sister-in-law of the deceased was married at the time of the incident. The other accused are younger brothers of the deceased and one of them Raju was minor, as his case is being dealt with by the Juvenile Justice Board. The father-in-law of the deceased had died during the pendency of the appeal. In dowry death cases, unless it is shown that the parents of the husband of the deceased reside separately with the young couple and have no role in their day-to-day life, they cannot be roped in for causing dowry death of the deceased. In the instant case, the parents of the husband of the deceased were residing under same roof in the house along with the deceased. The parents-in-law of the deceased are in fact prima donna of the case as it is their duty to see that the young bride who had stepped in their house after leaving her family members is kept well and is not harassed or tortured by any other family member on any count. If there is any little trouble with her, they are required to resolve the same. Now-a-days due to stringent ante-dowry law, it is commonly seen that each and every family member of the groom's family are nominated in the police report and in such a situation some times it becomes difficult for the investigating agency and the Court to separate grain from the chaff. But conversely in such a situation it cannot at all be inferred that no such incident of atrocities on the bride due to dowry demand had taken place. As noted earlier, unless it is shown that the parents of the groom have no role in the incident, they cannot be spared. After all being the head of the family heavy duty is cast upon them to see the welfare of every member of the family particularly the new bride, who had to adjust in the new environment of the family.
33. In Criminal Appeal no. 1022 of 2008 Bhola Ram vs State Of Punjab decided on 11 November, 2013, the Apex Court has held as under:
23. As observed by the Law Commission of India (LCI) in its 91st Report of 10th August, 1983 (in paragraph 1.8) the truth may not come in a dowry death case due to the sequestered nature of the offence. This is what the LCI said:
"Those who have studied crime and its incidence know that once a serious crime is committed, detection is a difficult matter and still more difficult is successful prosecution of the offender. Crimes that lead to dowry deaths are almost invariably committed within the safe precincts of a residential house. The criminal is a member of the family; other members of the family (if residing in the same house) are either guilty associates in crime, or silent but conniving witnesses to it. In any case, the shackles of the family are so strong that truth may not come out of the chains. There would be no other eye witnesses, except for members of the family."
24. This passage also clearly brings out that in a case of a dowry death, every member of the family may not be fully and equally guilty. The degree of involvement may differ - as an associate, as a silent witness, as a conniving witness and so on.
25. So far as this case is concerned, we have gone through the evidence of all the witnesses on record and while there is no doubt that Janki Devi died an unnatural death within a few years of her marriage to Darshan Ram, no definite allegation has been made by any of the witnesses including Nath Ram or anybody from his family that Bhola Ram had demanded any additional dowry from him or anybody in his family or had treated Janki Devi with cruelty or in a humiliating manner so as to make him complicit in the dowry death."
34. In Kans Raj Vs. State Punjab (2000 SCC (Crl.) 935), the Apex Court case has highlighted the tendency of the parents of the deceased to rope in maximum number of persons of her in-laws' family. It was observed:
For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.
In the instant case, the younger brothers and sister of accused Rajesh Kumar had nothing to do with the demand of Rs. 20,000/- for motor cycle, although they may be silent spectator to the incident of dowry demand with the deceased or her harassment and torture on this count, but they deserve benefit of doubt, as observed by the Apex Court in several cases.
35. In view of what has been said and done above, in the opinion of the Court, the prosecution has been able to prove the guilt of the husband and parents-in-law of the deceased beyond all reasonable doubt for the offences punishable u/s 498-A and 304-B IPC and section 3/4 Dowry Prohibition Act and the other accused namely Rakesh Kumar, Sanjay Kumar and Gudiya deserve benefit of doubt and are liable to be acquitted. Thus, the appeal partly succeeds.
36. The appeal of accused Rakesh Kumar, Sanjay Kumar and Guidya is allowed and they are acquitted of the charges punishable u/s 498-A and 304-B IPC and 3/4 Dowry Prohibition Act. Their conviction and sentence are set aside. They are on bail. They need not surrender to their bail bonds, which are hereby cancelled and sureties are discharged.
37. The appeal of Rajesh Kumar and Smt. Anar Kali is dismissed. Their conviction and sentence for the offences punishable u/s 498-A and 304-B IPC and 3/4 Dowry Prohibition Act are confirmed. They are on bail. Immediate steps should be taken to send them to jail to serve out the remaining part of their sentence as awarded by the learned Addl. Sessions Judge.
38. Let copy of the judgment be immediately sent to the court concerned and the Chief Judicial Magistrate, Jaunpur for compliance which should be reported to the Court within 4-weeks.
January 10, 2014 (Anil Kumar Sharma, J)
Imroz/-