Allahabad High Court
Subhash Chauhan And Others vs State Of U.P. on 6 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 7, (2020) 1 DMC 319
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved On:- 04.12.2019
Delivered On:- 06.01.2020
Case :- CRIMINAL APPEAL - 5209 of 2005
Appellant :- Subhash Chauhan And Others
Respondent :- State of U.P.
Counsel for Appellant :- Kailash Prakash Pathak, Sanjay Kumar Yadav
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddharth, J.
1. Heard Sri Sanjay Kumar Yadav, learned counsel for the appellant and Sri S.S. Tripathi, learned A.G.A. for the State and perused the record.
2. This criminal appeal has been preferred by Subhash Chauhan son of Ferai Chauhan, Ferai son of Bandhan Chauhan, Ram Karan son of Bandhan and Smt. Dropadi wife of Ram Karan against judgment and order dated 22.11.2005 passed by Additional Sessions Judge, Court No. 7, Azamgarh in Sessions Trial No. 681 of 2002 (State vs. Subhash Chauhan and Others) convicting the appellants and sentencing them under Section 498-A/34 IPC for 3 years rigorous imprisonment and a fine of Rs. 5,000/- each; under Section 3 Dowry Prohibition Act for 5 years rigorous imprisonment and a fine of Rs. 15,000/- each; under Section 4 Dowry Prohibition Act for 6 months rigorous imprisonment and a fine of Rs. 2,000/- each. On failure to deposit the fine the accuseds were directed to undergo further imprisonment of 3 months, 1 year and 1 month respectively under the aforesaid sections.
3. As per the order dated 15.04.2019 passed by this court this criminal appeal has been dismissed as abated on account of death of appellant no. 3, Ram Karan, hence this appeal survives only on behalf of appellant nos. 1, 3 and 4.
4. Prosecution case is that Smt. Lalmati, niece of informant, Vijay Bahadur Chauhan, was married to appellant no. 1, Subhash Chauhan, 15 years ago. Her gauna took place after 9 years and as per the ability of her family members dowry was given to her. The members of her matrimonial home sold the goods given in dowry and enjoyed the money and thereafter started demanding a hero honda motorcycle. Lalmati informed them that her family members cannot give the same and therefore she was harassed by them. She used to tell about her harassment by them whenever she came to her parent's house. About one month prior to the incident she was ousted from her matrimonial home by the accuseds-appellants and she went to the house of a relative, Dwarika Chauhan. Thereafter members of her matrimonial home took her back to their house at Saidpur after 10 days. On 19.06.2002 at 09:00 a.m the informant came back to his house after attending a marriage ceremony and then he was informed by his family members that on 18.06.2002 at 08:30 p.m Chunnu Chauhan made a phone call that his niece, Lalmati, has been burned. He went to Saidpur on the same day and there he came to know that his niece was beaten in the night of 17.06.2002 and thereafter she was strangulated. In order to save their crime they cremated the deceased near the Badaila Taal. From that day all the accuseds are absconding.
5. The aforesaid information was given at Police Station Sidhari and FIR was lodged and Case Crime No. 202 of 2002, under Sections 304-B, 498-A, 201 IPC and Section ¾ Dowry Prohibition Act. On 19.06.2002 was registered at 15:05 hours.
6. The investigation was initially conducted by the Deputy Superintendent of Police, Circle Officer, Sri Vinod Kumar Pandey, who did not found the accuseds in their house when he went there. He prepared the site plan of the incident and did not found the offence under Section 304-B IPC because the marriage of the deceased took place 15 years ago. Thereafter the investigation was transferred to Sub-Inspector, Vakeel Pandey, who conducted further investigation and submitted charge sheet before the court.
7. The trial court framed charges under Sections- 498-A, 306 and 201 IPC and ¾ of Dowry Prohibition Act. On the application of the prosecution additional charges were framed and accuseds were charged for offence under Sections 302/34 IPC also. The accuseds denied the charges and sought trial.
8. P.W.-1, Vijay Kumar Chauhan, uncle of the deceased and informant, stated that name of his brother is Rajendra Chauhan who is having a shop and business at Panipat since 1970 and keeps on coming to his village. They have a joint family and he is the karta of the family. Marriage of daughter of Rajendra and his niece, Lalmati, took place about 16 years ago with Subhash Chauhan as per Hindu Marriage Rites after giving dowry. At the time of settlement of marriage father of Subhash, Ferai and uncle Ram Karan, were demanding hero honda motorcycle. In the marriage also they were very angry about not giving of motorcycle, they were somehow pacified but they left the house in anger. At the time of marriage the boy and the girl were children aged about 6-7 years. Their gauna took place 9 years after marriage when again Ferai, Ram Karan and Subhash renewed the demand of hero honda motorcycle. His family members and relatives stated that presently the demand cannot be fulfilled and later after making arrangement they will give them the motorcycle. Thereafter lots of persuasion they took the deceased along with them. In her in-law's house for some time everything remained normal but thereafter the accuseds renewed their demand for motorcycle. The deceased told them that whatever was given in dowry you have sold and eaten and now they will not get anything. Then she was beaten and abused by the accuseds. When she came back to her parent's house she informed his wife about the aforesaid facts of harassment by the accuseds. One month before the incident deceased was beaten and ousted from her house by the accuseds. She went to village Abadi to the house of Dwarika Chauhan, who was father-in-law of her sister-in-law (Nand). He is also distantly related to Dwarika Chauhan. He was mediator in the marriage of the his niece, Lalmati. She lived at his house for 8-10 days. Thereafter Dwarika Chauhan took her to her matrimonial home and asked them to behave properly with her niece and keep her in the house.
9. On 18.06.2002 P.W.-1 had gone to attend barat of the son of his brother-in-law (saadu) in village Bakuchi Hardauna, District Ballia. On 19.06.2002 he came back to his house and was informed by the members of his family that yesterday on 18.06.2002 at about 08 - 08:30 p.m telephone of Channu Chauhan, a resident of village Abadi, had come and he informed that the accuseds have caused the death of Lalmati by strangulating her and body has been cremated. He went to the matrimonial house of the deceased but the house was locked. All the accuseds had absconded from the house. On inquiry he came to know that on 17.06.2002 the accuseds had beaten the deceased and after strangulating her cremated her dead body in the night at Badaila Taal and thereafter they are absconding. He went to Badaila Taal but did not found any sign of cremation there and then he went to Sidhari Ghat and came to know that the deceased was cremated there and receipt of a cremation was also given to him by the employee at Ghat.
10. In very detailed cross-examination of the P.W.-1 he has stated that when the deceased used to come to his house she used to inform everything to his wife and few things to the wife of his brother, Acche Lal. He further stated that he informed about the death of Lalmati to his brother and father of the deceased, Rajendra, at Panipat and thereafter his phone call came. The telephonic information of death of his deceased came at his shop on 18.06.2002 at 08 - 08:30 p.m and not at his house. At that time his mother was at the shop. He has no licence of shop. On the next day when he came to the shop of 11:00 a.m his mother had gone to the home. His mother did not inform anything and minor daughter aged about 6-7 years, of Acche Lal, his brother, informed about the entire incident. When her mother had gone back to the house on 18.06.2002, neither Acche Lal nor his father, Raja Chauhan, were in the house. They had gone to his mama's place on 18th June to attend Hari Kirtan. He does not knows when they returned back. He admitted that he did not informed about this fact to the Investigating Officer nor mentioned it in the FIR. He stated that when the marriage of Lalmati was settled her father, Rajendra was not there. He, Acche Lal and his father went to settle the marriage. He gave Rs. 5,000/- or Rs. 6,000/- at the time of Baraksha and probably gave Rs. 501/- in Tilak. He could not tell the price of hero honda motorcycle 17 years back. He also could not tell whether the accuseds, Ferai and Ram Karan, know how to drive motorcycle. He admitted that at the time of marriage of accuseds, Subhash, with his niece, Lalmati, they were aged about 6-7 years and Subhash did not know how to drive motorcycle nor he made any such demand at that time. He admitted that the deceased never sent any letter to her family members regarding harassment by the members of her matrimonial home. She only informed him and his wife. He does not knows whether she informed her father and mother about the demand of motorcycle by the accuseds. He stated that prior to her death, deceased made complaint about the accuseds to him thrice. When she made the complaint for the first time he did not remembered. For the second time complaint was made 2- 2 ½ years ago. Third complaint was made 4-5 months prior to her death. He did not made any complaint against the accuseds nor he informed his brother by any letter. He admitted that the victim had gone to her father's place at Panipat 2 - 2 ½ years ago. He admitted that apart from the deceased his brother, Rajendra, has another married daughter and two sons. Wife of his brother, Rajendra, is also residing with him for last 6-7 years and earlier she used to live in the village. He admitted that he also had paan shop in Panipat for about 20 years. He denied that he has dispute with Rajendra regarding share in house. He further admitted that regarding demand of motorcycle by the accuseds and panchayat took place at his house wherein his mama, brother, Rajendra, his collateral, Rajdev, attended the panchayat. Rajdev is now dead. In the panchayat accuseds, Ram Karan and Ferai, were also there. It was decided in the panchayat that after his financial condition improves he will give the motorcycle. Panchayat took place 7 years ago. Thereafter no panchayat regarding motorcycle took place. In the marriage of the deceased he gave one gold chain, earing, finger ring and a watch. He purchased everything and his brother, Rajendra, did not purchased the same. All these things were sold by the accuseds six years ago and they enjoyed the money. He admitted that he used to give khichdi and teej to the deceased. Rajendra never did these things after coming from Panipat.
11. He claimed that Dwarika is his distant relative residing in village Abadi. He also claimed that his friend, Chunnu Chauhan, resides in the same village. In his cross-examination P.W.-1 could not reply whether there was marriage in the house of Dwarika in May, 2002. He could not state whether it was marriage of son of Dwarika Chauhan or not. He also could not reply whether the deceased went to the house of Dwarika to attend the marriage of his son or not. He admitted that village Abadi is situated at a distance of about 12 km from the village of the accuseds and 15 km from his village. He could not reply why when the deceased was beaten and ousted from her matrimonial home, she went to the house of her sister-in-law, who is daughter-in-law of Dwarika and did not came to his house. He further admitted that he lodged the FIR on the basis of the information in the village. He admitted that the initial information was given to him by the villagers of the village of accuseds that the victim was cremated at Badaila Taal which he later found to be incorrect. He could not tell the name of the person who gave such an information. He could not tell the name of any person who informed him about the murder of the deceased. He admitted that on the next day he came to know that the victim was cremated on Sidhari Ghat from one person but he could not tell the name of aforesaid person also. He also admitted that the aforesaid person did not informed him about the date and time when the deceased was cremated. He denied that at the time of cremation of the deceased his son and a villager of his village were present since he was not in his house. He claimed that he was in the house when the deceased was cremated. He also denied that the deceased was suffering from pain in her stomach and she died on the way. He denied that his son and a villager of his village had attended the cremation of the deceased after receiving information from the accuseds at his house. He denied that any panchayat took place at the house of the accuseds and he demanded the goods given to the deceased, Lalmati, in marriage and Rs. 50,000/- from them and threatened them that he will lodge the FIR in case the amount is not paid to him.
12. P.W.-2, the second Investigating Officer, Vakeel Pandey, proved the statement of the witnesses recorded by him and his hand writing and signature on the chargesheet. P.W.-3, Constable Clerk, Rati Ram, proved his handwriting and signature on the chik report. P.W.-4, the first Investigating Officer, Vinod Kumar Pandey, proved the site plan and the statements of the witnesses recorded by him.
13. The statements of the accuseds under Section 313 Cr.P.C was recorded wherein they admitted the marriage of the deceased with accuseds, Subhash, 16 years back but denied the other allegation. They have stated that P.W.-1, Vijay Bahadur Chauhan, lodged the FIR only after they did not paid him the money. The Investigating Officer wrongly filed charge sheet and prepared site plan. accuseds, Subhash Chauhan, stated that his wife was suffering from pain in her stomach and when he was taking to the hospital she died on the way. Information of her death was given to her family members. Thereafter her cremation took place at Sidhari Ghat, Azamgarh wherein the son of P.W.-1 was present and he did not made any objection. Later P.W.-1 demanded money and started threatening saying that in case it is not given he will lodge the FIR. When the money was not given to him he lodged the FIR. The father and mother of the deceased were also informed but they did not raised any objection nor they made any complaint.
14. The defense produced the death certificate issued by cremation ghat Sidhari in evidence and Surya Nath Chauhan as D.W.-1, who stated that Lalmati died natural death on 17.06.2000 and cremated on same day at Sidhari Ghat.
15. The trial court has found that P.W.-1 is the only witness of fact and he has proved that on account of non-fulfillment of the demand of motorcycle as dowry, the victim was subjected to abuses and tortured and thereafter she was strangulated. The trial court has admitted that although the statement of P.W.-1 has not been corroborated by any other evidence but there is no reason why his evidence should be disbelieved. It has further stated that the demand of dowry and harassment for the same normally take place inside the house and independent witness of the same can be rarely found. The witnesses residing around the matrimonial home of such victim also avoid getting involved in such cases and has found the prosecution case proved beyond doubt.
16. It is a case of circumstantial evidence and after considering the evidence on record trial court did not found the charges under Sections 302/34, 306 and 201 IPC made out against the appellants but convicted and sentenced them for offence under Sections 498-A/34 and ¾ Dowry Prohibition Act.
17. Learned counsel for the appellant has submitted that the impugned judgment and order of conviction and sentence are illegal. Conviction is based on circumstantial evidence and the chain with regard to circumstances leading to the guilt of appellant has not at all be established. The prosecution has not been able to connect the chain of circumstances by producing the evidence and it has remained fatally broken but conviction has been ordered. While dealing with the case of circumstantial evidence the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should also be consistent with the guilt of the accused. The onus lies on prosecution to prove that the chain of event is complete and not to leave any doubt in the mind of court. He has also submitted that hear say evidence has been relied upon by the trial court in convicting and sentencing the appellant.
18. Per contra, learned A.G.A for State has vehemently opposed the arguments advanced and has submitted that although the case is based on circumstantial evidence but the trial court has held that the evidence led by prosecution is reliable and establishes the guilt of the appellant beyond reasonable doubt. He has further submitted that hear say evidence is admissible in view of Section 6 of the Evidence Act.
19. After hearing the rival submissions, it appears that it is a case of circumstantial evidence but the chain of events in this case are not complete. P.W.-1 is the only witness of fact of the case. He is the uncle of the deceased. The father, mother, two brothers and a married sister of the deceased were alive. They have not lodged the FIR nor have appeared as witness before the trial court. Only P.W.-1 lodged the FIR against the accuseds and proved the prosecution case on its basis single handedly. His testimony is the sole basis of conviction and sentence of the appellants. Hence this court is required to consider the testimony of P.W.-1 along with the entire facts and circumstances of this case to arrive at correct conclusion whether the judgment of the trial court is correct or not.
20. In the case of Ramreddy Rajesh Khanna Reddy vs. State of A.P., (2006) 10 SCC 172, Apex Court again considered the case of conviction based on circumstantial evidence and held as under:
"26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. (See Anil Kumar Singh v. State of Bihar, (2003) 9 SCC 67 and Reddy Sampath Kumar v. State of A.P., (2005) 7 SCC 603)."
21. In the case of Rajendra Pralhadrao Wasnik vs. State of Maharashtra, (2012) 4 SCC 37, while dealing with the case based on circumstantial evidence, Apex Court observed as under:
"12. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. Irresistibly, the evidence should lead to the conclusion which is inconsistent with the innocence of the accused and the only possibility is that the accused has committed the crime.
13. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person."
22. In view of the above consideration of the law on the point of circumstantial evidence the statement of only witness of fact P.W.-1 is required to be considered. P.W.-1 has stated that on the date of incident dated 17.06.2002 he was in his house and no information regarding the death of the deceased was received. He has denied that his son and another villager attended the funeral of the deceased on 17.06.2002.
23. On 18.06.2002 P.W.-1 has claimed that he went to attend the marriage of the son of his Saadu in District Ballia and came back to his house at 11 a.m on the next day i.e. on 19.06.2002. In FIR he has stated that he came back to his house at 09:00 a.m on 19.06.2002 no evidence of marriage, like invitation card nor even the name of his Saadu and his son was mentioned by P.W.-1 in his statement. The distance between Ballia and Azamgarh is above 100 km. P.W.-1 stated that phone call from Channu Yadav came to his shop but in his cross-examination he has not been able to produce any evidence of registration of his shop. Whether there is any phone connection in his shop or not was also not proved. It was also not stated what is the phone number on which the information about the death of the deceased was received nor any call details were brought on record. It is also incredible that the mother of P.W.-1 got information of the death of the deceased at 08 - 08:30 p.m on 18.06.2002 but she did not informed P.W.-1 as soon as he reached his village. She did not informed any member of the family of the death of Lalmati. The information of the phone call is stated to have been received from his minor daughter of his brother, Acche Lal, but the prosecution did not produced either the mother of P.W.-1 or his niece, aged about 6-7 years, at that time to prove that they for the first time got the information about the death of the deceased on 18.06.2002 at 08 - 08:30 p.m from the phone call of Channu Chauhan. This link in the chain of events is missing.
24. On getting the information about the death of his niece, Lalmati, from his another niece, daughter of Acche Lal, at 11:00 a.m on 18.06.2002, P.W.-1 has stated that he went to the village of the appellants and he was informed that the deceased was tortured, strangulated and cremated near Badaila Tal. When he went there he did not find any sign of cremation of any dead body there. He did not informed name or any detail of anyone who gave him such information. Thereafter P.W.-1 has claimed that he was informed by some other person that she was cremated at Sidhari Ghat. Here also he has not stated who gave him this information. He went to Sidhari Ghat from where he found the receipt of cremation of deceased on 17.06.2002. The employee of the ghat D.W.-1, Surya Nath Chauhan, proved before the court that victim had died natural death and was cremated at the Sidhari ghat.
25. P.W.-1 has not been able to connect the chain of events from the time of receipt of information at his shop, regarding the death of deceased, to the lodging of FIR by any cogent evidence, oral or documentary other than his own statement before the court.
26. It is strange indeed that the father, mother, two brothers and real married sisters of the deceased neither lodged the FIR nor appeared as witness before the trial court to prove the offences alleged against the appellants. From the own admission of P.W.1 the deceased used to tell about her harassment for dowry by the accuseds to his wife and wife of his brother, Acche Lal, but they were not produced in evidence to prove the aforesaid facts. In his examination-in-chief P.W.-1 stated that the deceased used to inform him and his wife and wife of his brother, Acche Lal, about the ill-treatment and harassment meted out to her by the accuseds. Therefore, non-production of wife of P.W.-1 and wife of his brother, Acche Lal, before the trial court raises doubt about the prosecution case. P.W.-1 himself claimed that apart from him, deceased used to inform about the conduct of the accuseds to aforesaid persons also but only he deposed before the court and gave no reason why the aforesaid persons were not produced.
27. It has also been stated by P.W.-1 in his cross-examination that 7 years ago, panchayat at his house wherein his mama, brother, Rajendra, his collaterals and one Raj Dev were present. accuseds, Ram Karan and Ferai, were also present and it was decided that after the arrangements are made motorcycle shall be given to the accuseds. However not a single member of panchayat was produced in evidence to prove that any such panchayat was ever held. The father of the deceased, Rajendra, who is also the brother of the P.W.-1, was stated to be present in the panchayat but he was also not produced before the court. Only Raj Dev is stated to have died. All the other members of panchayat of the prosecution side were alive and could have testified about the correctness of the prosecution case.
28. In his examination-in-chief, P.W.-1 stated that one month prior to her death the victim was ousted from her house after harassment for motorcycle and she went to village Abadi and lived in the house of Dwarika for about 10 days. He claimed that Dwarika is his distant relative but he was not produced in evidence to prove the victim stayed in his house after being harassed by the accuseds for motorcycle.
29. Chunnu Chauhan, who is stated to have made the phone call from the shop of the P.W.-1 was the most important witness who could have proved that he gave information about the death and cremation of the deceased. He was also not produced in evidence to prove that he was the main source of information of the death of Lalmati to her family members. Further Chunnu Chauhan does not belongs to village of the accuseds. He belongs to village Abadi when the appellants belong to the village Saidpur. The incident took place in Saidpur and village Abadi is admitted by P.W.-1 to be situated 12 km away from village Saidpur. Chunnu Chauhan could have proved before the court from where he got the information of strangulation and death of the deceased and he passed on the information to the family members of P.W.-1 on phone.
30. Therefore it is crystal clear that except the oral testimony of P.W.-1, who is the uncle of deceased and self appointed karta of joint family of three brothers, having his father and mother alive, there is no evidence against the appellants to implicate them. P.W.-1 has admitted that his father is alive and therefore how he became karta of the joint family has not been explained. The parents of the deceased, their two sons and one married daughter did not appeared as witness before the trial court nor they were named as witnesses in the charge sheet submitted by the Investigating Officer before the court. It appears that they were aware of the correct facts regarding the death of Lalmati and therefore they did not made any complaint against the accuseds. All the witnesses who could have connected the chain of events from the time when the victim left her matrimonial home and went to the house of Dwarika Chauhan on account of harassment meted out by the appellants to the time of receipt of information by the P.W.-1 that the deceased was cremated at Badaila Tal were not produced before the trial court. P.W.-1 is the informant and sole witness of this case. His testimony has not been corroborated by any witness who he admits, were instrumental in informing him about the facts, on the basis of which the entire prosecution case has been erected.
31. Prosecution has not been able to prove the offences alleged against the appellants beyond doubt by leading any corroborative evidence. The testimony of P.W.-1 is not reliable and based on hear say evidence. The sources of information have not been produced before the court to prove that the sources of informations received by P.W.-1 were in existence and they testified about the correctness of the informations given to him in court.
32. In view of the above consideration, the judgment and order of the trial court cannot be sustained and is hereby set aside. The appellants are required to be acquitted of all the charges.
33. The appellants are on bail. Their bail bonds and sureties are discharged.
34. Office is directed to send the record of the trial court along with copy of this judgment to the trial court within three weeks from today.
35. This criminal appeal is allowed.
Order Date: 06.01.2020 Rohit