Allahabad High Court
Dinesh Tiwari vs State Of U.P. on 14 August, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:132007-DB Reserved On- 06.08.2024 Delivered On-14.08.2024 Case :- CRIMINAL APPEAL No. - 5322 of 2013 Appellant :- Dinesh Tiwari Respondent :- State of U.P. Counsel for Appellant :- Ajay Kumar Pandey,Anil Kumar Shukla,Asheesh Tiwari,Hari Bans Singh,Pradeep Kumar Rai,Sanjay Kaushik Counsel for Respondent :- Govt. Advocate Hon'ble Siddharth,J.
Hon'ble Brij Raj Singh,J.
(Delivered by Hon'ble Siddharth, J.)
1. Heard Sri Kamal Krishna, learned Senior Counsel assisted by Sri Pradeep Kumar Rai, learned counsel for the appellant; Sri Gyan Narain Kanaujia, learned AGA-I for the State and perused the material on record.
2. This criminal appeal has been filed against the judgment and order of conviction dated 09.10.2013 passed by the court of Additional Sessions Judge, Room No. 5, Kaushambi, in S.T. No. 36/2009 (State Vs. Dinesh Tiwari), under sections- 302, 498-A I.P.C., Police Station- Charwa, District- Kaushambi, convicting and sentencing the appellant under section-302 I.P.C. for life imprisonment and fine of Rs. 5000/- and under section 498-A to two years rigorous imprisonment and fine of Rs. 2000/- and in the default of payment of fine to further undergo additional imprisonment for period of 2 months and 1 month R.I. respectively. All the sentences are directed to run concurrently.
3. The prosecution case, in brief, is that Laxmi Narayan Mishra, P.W.-I, married his daughter, Poonam Devi, to the appellant, Dinesh Kumar Tripathi s/o Ashok Kumar Tripathi, on 02.03.2008 as per Hindu marriage rites after giving dowry as per his capability. The appellant, his mother and his father were not satisfied with the dowry given by the P.W.-I to his daughter and they started abusing and torturing her. They demanded Rs. 21,000/- in cash, one gold chain and a buffalo for keeping her in their house. When his daughter informed about the above demand to her father, then he pacified her and assured the appellant and his father that they should not harass his daughter and he will fulfill their demands gradually. P.W.-1 had given Rs. 75,000/- in tilak ceremony and one hero-honda motorcycle and goods were 50,000/- in dowry at the time of marriage of his daughter with the appellant. On 05.08.2011, P.W.-I, received telephonic information that his daughter has died on account of burning. On receiving information P.W.-I and his family members went to the matrimonial home of his daughter and found her lying in burnt condition. She was burnt to death by the appellant and his father and mother. F.I.R. in this regard was lodged on 05.11.2008 at 13:10 hours.
4. On 13.11.2008 another application was given by P.W.-I at the police station, Kaushambi, reiterating the earlier allegations and further stating that on 05.11.2008 his daughter was strangulated and then burnt to death.
5. Charges under sections 498-A/302 IPC and ¾ of D.P. Act were framed against the appellant and other accused persons when F.I.R. was registered under sections 498-A, 304-B I.P.C. and ¾ D.P. Act.
6. To prove the prosecution case, the prosecution produced following witnesses:-
(I) P.W.-I, Laxmi Narain Mishra; P.W.-II, Ajeet Kumar; P.W.-III, Arvind Kumar; P.W.-IV, Dr. Ashutosh Pandey, P.W.-V, constable-clerk, Kunj Bihari; P.W.-VI, Tahsildar, Surendra Bahadur Singh; P.W.-VII, Navrang Singh, investigating officer and P.W.-VIII, Deep Narain, also investigating officer of this case to prove the prosecution case.
7. The statement of the appellant under section 313 Cr.P.C., was recorded wherein he denied the allegations made against him. The appellant stated that on the date of incident, he had gone to Vaishno Devi Temple alongwith his father and mother. His wife committed suicide and no one has caused the alleged offence. Co-accused, Ashok Kumar and Rajju Devi, parents of the appellant also reiterated such a defence.
8. P.W.-I was examined before the trial court and he proved the allegations in the F.I.R. in his examination-in-chief. In his cross-examination, he stated that father of the appellant is employed as clerk in the brickkiln and was earning Rs. 5000/-. The appellant was student of B.A. and his brother was employed in Army. Whatever dowry P.W.-I gave earlier at the time of marriage of his daughter was on his own sweet will. He was able at the time to give whatever was demanded from appellant and his parents. Regarding the further demand he had assured the accused persons that he will gradually fulfill the same. Their further demand was informed by his daughter on 06.08.2008 when she came back to her parental home after living for four months at her matrimonial home. She denied that her father-in-law had brought her to parental home after she suffered miscarriage of four months pregnancy. He stated that father of the appellant brought his daughter at his house by saying that he wants to talk with her father, P.W.-I. He admitted that this fact was not mentioned in the F.I.R. nor he can say why he did not informed the inspector about this fact. His son, Ajeet Kumar, P.W.-II, had gone to call his daughter on the festival of nagpanchmi from her matrimonial home. He admitted that the treatment and checkup of his daughter was done by Dr. Poonam Saxena, M.B.B.S., at Ankur Nursing Home & Ultrasound Centre, Bamrauli, at the behest of the family members of her matrimonial home. He denied that deceased was having four months pregnancy and after abortion she had fallen ill and no one from the appellant's side went to see her. He stated that he had no information about treatment of his daughter at Ankur Narsing Home & Ultrasound Centre, Bamrauli, on 22.07.2008, 31.07.2008, 03.08.2008 and 09.08.2008. P.W.-I, further stated that his son, Ajeet Kumar, P.W.-II, was working with Lalli Maharaj, who is sand contractor, and was eaning Rs. 2000/-. The family used to survive on that amount only. He could not explain why he did not mentioned the factum of demand of dowry by the father-in-law of the deceased on 06.08.2008 nor the reason why he did not mentioned that his son P.W.-II had gone to call his daughter from her matrimonial home on the eve of nagpanchmi festival. He also did not mentioned in F.I.R. that his daughter was talking to her mother about the demand of dowry in the F.I.R. He had reached the matrimonial home of his daughter after getting information about her death on 05.11.2008. No one was found her in matrimonial home. He denied that on the date of incident the appellant and his parents had gone to have darshan of Vaishno Devi Temple. He also denied that after the appellant and his parents left for Vaishno Devi Temple, Durgesh and Pawan, came to the matrimonial home of the deceased. He also denied that Durgesh and Pawan tried to commit wrong against the deceased which was resisted by her and hence they caused the alleged offences against her.
9. P.W.-II, supported the prosecution case and stated that on the eve of festival of nagpanchmi his sister came to her parental home and informed that family members of her matrimonial home are greedy persons and beat her for not fulfilling demand of Rs. 21,000/- in cash, one gold chain and a buffalo and threaten her of life. On the fateful day at about 11:00 a.m. he received a phone call on his mobile phone informing that his sister has died on account of burning. Thereafter, he went to her sister's matrimonial home and found her tied to a cot lying in reverse position and burnt to death. Both her hands and legs were tied. All her clothes are burned. The appellant and his parents are murderers of his sister. In his cross-examination, he stated that 1-2 days prior to nagpanchmi, he had gone to call his sister from her matrimonial home on motorcycle. Her father-in-law, Ashok Kumar, stated that he himself will drop his sister to his house and he came and dropped her as promised. At the time of her marriage, no dispute regarding dowry took place. Only after she came to his house on the eve of nagpanchmi, she informed about the demand of dowry at her parental home. Her father-in-law was talking to her father in this regard which he overheared. His sister never informed him about the demand of dowry and her constant torture by the appellant and his parents. Who informed him on mobile phone about death of his sister, he does not knows, nor he knows mobile number of such a person. When he reached the matrimonial home of the deceased, it was locked from outside and bolted from inside. Thereafter the door was got broken. No one from her matrimonial home was present there. He cannot say whether her father-in-law, mother-in-law and husband had gone to have darshan of Vaishno Devi Temple. The deceased was burnt on cot and her photographs were taken by the Beni Ram. Photographs were captured in the presence of police. He was present at the time of inquest. The room where the dead body of deceased was found door was broken. The window and ventilator in the room were not sufficient to permit ingress and egress of any person. He admitted that his matrimonial home is 4 kilometres away, but his brothers-in-law, Durgesh Kumar and Anil Kumar, never used to visit her sister house. He cannot say anything about his brother-in-law (bahnoi) Pawan Kumar, but he also never visited the matrimonial home of the deceased. He denied at the time of incident, the accused person had gone to Vaishno Devi Temple for darshan.
10. P.W.-III, Arvind Kumar Mishra, uncle of the deceased reiterated the contents of the statements of P.W.-I and P.W.-II. In his cross-examination, he stated that he is living separately from his brother, P.W.-I. No dispute regarding dowry took place at the time of marriage of the deceased with the appellant. After 3-4 months of her marriage, the deceased came to her parental home and informed about the demand of dowry before him, her father, brother and mother. He expressed ignorance about the father and mother of the appellant going to Vaishno Devi for darshan at the time of incident. He has stated that the appellant was present in his house, but when they reached his house, he ran away.
11. P.W.-IV, Dr. Ashutosh Pandey, stated that except the palm of the both hands and soles her toes, entire body of deceased was burnt. He found carbon in her trachea lung pipes. Her hyoid bone was also found to be fractured. He opined that the hyoid bone of the deceased was broken by pressure which resulted in obstruction in breathing and she died. Her stomach was found to be empty. Carbon was found inside her mouth and nose. He further stated admitted that carbon shall be found in the nose and mouth only, when person alive is burnt to death. He also opined that if the mouth and nose of the deceased are open and she is burnt to death even then carbon would be found in her nose and windpipe. He also denied that it is wrong to say that only if the alive person is put to death, carbon has to be found in his nose and wind pipe and not after death. He admitted that he cut the word "A" and replaced it by "P" and made the word "ante mortem" to "post mortem" in the post mortem report of the deceased. He admitted that he initially committed the mistake in writing which he corrected. He explained that ante mortem burn injury means burn injuries suffered prior to death and post mortem burn injury means suffering of burn injuries after death.
12. P.W.-V, constable clerk, Kunj Bihari, admitted that he prepared the chic report on the basis of application given by P.W.-I at the police station and registered case crime no. 260 of 2008 under sections- 498-A, 304-B and ¾ D.P. Act and proved the G.D. entry before the court. In cross-examination, he could not inform the date when the F.I.R. was registered. He also admitted that there is over writing of case crime no. 260 of 2008. Earlier case crime no. 273/2008 was mentioned which was later changed to case crime no. 260. In the chick report also such correction was admitted. However, he denied that F.I.R. was ante timed.
13. P.W.-VI, Surendra Bahadur Singh, tahsildar, proved that inquest proceedings were conducted before him. However, he admitted in his cross-examination that in the first and second page of the inquest report case crime no. 260/2008 was mentioned after cutting 273/2008.
14. P.W.-VII, Navrang Singh, the investigating officer, has admitted that he prepared site plan, recorded the statements of P.W.-I and P.W.II, took the photographs related to marriage of couple and recorded the other statements. He arrested the appellant and his father and prepared the chargesheet. He also collected the goods from the place of incident. In his cross-examination, he admitted that earlier case crime no. 273 was mentioned in the inquest report which was made case crime no. 260, but there is no initial in the cutting. In Exhibit-10 crime no. 273 of 2008 is mentioned, but he cannot say to which man or woman the aforesaid case crime number belongs to. He admitted that the time of sending of dead body is not mentioned in inquest report nor date of death is mentioned in the Form-13. He stated that when the appellant was arrested by him, he informed him that his brother-in-law, Durgesh and Pawan Kumar Mishra, used to visit the house of his deceased wife. Therefore, he strangulated her to death with the help of his friend, Pullu Tiwari. He did not conducted investigation regarding the role of aforesaid Durgesh and Pawan in this case. He stated that P.W.-I, never informed him that his daughter informed him about the demand of dowry being made by accused persons. P.W.-I also did not informed him that he sent his daughter back to her matrimonial home after pacifying her. Such an information was also not given by P.W.-II to him.
15. P.W.-VIII, Deep Narain, stated that he recorded the second statement of P.W.-I and tried to arrest, Pullu Tiwari, and submitted charge-sheet against him also. He admitted that there was no allegation of demand of dowry against Pullu Tiwari.
16. The trial court after considering the evidence of record acquitted the father and mother of the appellant on the basis of the train ticket from New Delhi to Allahabad dated 05.11.2008 by accepting the defence that at the time of incident they had gone to Vaishno Devi Temple for darshan and were not present on the scene of occurrence. However, the appellant was convicted under section 302/498-A IPC and ¾ of D.P. Act and hence this appeal has been preferred only by the appellant, Dinesh Tiwari, before this Court.
17. Learned Senior counsel for the appellant has submitted that the prosecution case is full of doubts. In the F.I.R. lodged on 05.11.2008, there was no allegation of strangulation of deceased, but after 8 days on 13.11.2008 another application was moved by P.W.-I wherein allegations of demand of dowry from the deceased and her strangulation prior to being burnt was alleged. In F.I.R. dated 05.11.2008, there was no allegation of the deceased being strangulated. He has pointed out to the post mortem report of deceased and has shown that it has been manipulated and the factum of her strangulation has been interpolated in the post mortem report subsequently. He has further stated that the presence of carbon particles in the respiratory track of the deceased proves that she was burnt alive and the story of her strangulation prior to burning is not correct. The investigating officer completely failed to investigate the case with regard to the involvement of Pawan Kumar Mishra and Durgesh Tiwari in the alleged offence and their roles in the incident. He has submitted that the prosecution case is full of suspicion and it is completely doubtful. The appellant has been wrongly convicted and deserves to be acquitted of all charges. Where the case under section ¾ D.P. Act was not found to be proved. There was no reasons for the appellant to commit the murder of his wife. The charges under section 304 I.P.C. was not framed by the trial court.
18. Learned AGA-I has supported the prosecution case and has submitted that it was the appellant who tied the deceased from the cot burning. He closed the door from inside because of non-fulfillment of demand of dowry. The unnatural death of the deceased took place within 7 years of marriage with the appellant. Her hyoid bone was fractured which proves that she was strangulated to death and since her mouth and nose were open the carbon particles were found therein. He has submitted that since hands and legs of the deceased were tied from the cot, except the inmates of matrimonial home no one can commit such an offence.
19. After hearing the rival contentions, this Court finds that with regard to incident dated 05.11.2008 First Information was lodged was lodged by P.W.-I at 01:10 p.m. at police station, Charwa, District- Kaushambi, alleging that on account of demand of dowry, deceased was burnt to death. In the F.I.R. there is no allegation that deceased was strangulated/throttled to death. Subsequently, another application was given by P.W.-I before the police station 13.11.2008, after about a week, alleging that the deceased was first strangulated and then burnt to death. In the post mortem the doctor has initially written "AMI" (ante mortem injuries) thereafter it has been corrected to "PMI" (post mortem injuries). Then, it is mentioned that post mortem burn injuries and superficial to deep burn present all over body, except both soles and palms, no line of redness and blisters seen. Neck, thorax and abdomen burnt and muscles exposing bone. Both lungs tissues burnt. Part of intestine burnt. Regarding the thorax the doctor has recorded the finding that no shoot particles seen. The finding regarding the hyoid bone fractured by the doctor is stated to be by way of interpolation by the appellant side. Post mortem has been conducted on 06.11.2008 when the deceased died on 05.11.2008. The report was made to the police station on 05.11.2008 itself. When the F.I.R. was lodged by the P.W.-1, the post mortem of the deceased was not in existence. It only came in existence on 06.11.2008 and the doctor opined that the cause of death of deceased was due to asphyxia as result of strangulation. The doctor conducted the post mortem did not found any shoot particles in the trachea of the deceased. Therefore, it is clear that deceased was first strangulated to death, and thereafter, her dead body was put on fire. From the post mortem, it is clear that there were no shoot particles found in her trachea and, therefore, there can be no doubt that she was strangulated prior to burning of her dead body.
20. P.W.-IV, Dr. Ashutosh Pandey, has given statement that in the trachea and larynx of the deceased carbon particles were found, but in the post mortem he has stated that no shoot particles was found in trachea and larynx .
21. There appears to be minor contradictions in the statement of P.W.-4 which deserves to be ignored.
22. We further find that the deceased went to her parental home on the eve of festival of nagpanchmi and P.W.-I and P.W.-II admitted that she informed her mother about the demand of dowry by the family members of her matrimonial home, but strangely the mother of the deceased was never produced as witness before the court to prove that the deceased informed her about the demand of dowry. Being a case of circumstantial evidence this was an important link in the chain of evidence which is clearly missing and can be read in favour of the appellant. The trial court has also considered this aspect of the matter.
23. During inquest proceedings the first informant, P.W.-I, and his brother, Arvind Kumar, P.W.-III, were present. They never made any allegation before P.W.-VI, the Tahsildar, who conducted the inquest proceedings that their daughter has been killed for unfulfilled demand of dowry. Further, the trial court has found that the allegations regarding demand of dowry by the accused persons have not been proved and, therefore, the appellant has been acquitted for committing the offence under section 34 of Dowry Prohibition Act, but strangely he has been convicted and sentenced under section 498-A IPC. Once the offence under section ¾ of D.P. Act was not found to be proved and there was no allegation on record regarding the reason of harassment of deceased except the demand of dowry, conviction of the appellant under section 498-A I.P.C. cannot be sustained and deserves to be set aside. The judgment of the trial court in this regard is not in accordance with law and deserves to be set aside.
24. P.W.-I, P.W.-II and P.W.-III all have admitted that at the time of marriage and bidai of the deceased, there was no demand of dowry made and it was only when the deceased came back to her parental home after about 4 months of her marriage, she made such a complaint. Therefore, the statement of P.W.-II that the accused persons were greedy persons does not appears to be credible.
25. Considering the fact that P.W.-I was reliant upon the income of his son P.W.-II, who was earning Rs. 2000/- per month only, the demand of Rs. 21,000/-, one gold chain and a buffalo from P.W.-I by father of the appellant and the assurance of P.W.-I to meet the demand gradually does not sounds plausible. P.W.-I has not disclosed any source of his income and, therefore, how he would have fulfilled such an exorbitant demand of the father of the appellant is not explained.
26. It has been admitted by P.W.-I that the deceased contacted pregnancy and was under treatment and care of Dr. Poonam Saxena, at Ankur Nursingh Home, Bamrauli. As per ultrasound report dated 03.08.2008 the deceased had suffered in-complete abortion and prescriptions in this regard have also brought on record. P.W.-I has admitted that the deceased was got treated by the appellant and his family members. This shows that the appellant and his family members were looking well after the deceased and they did not even bothered the family members of her parental home of making payment for her treatment. There is no allegations made by P.W.-I, P.W.-II and P.W.-III that any demand was made by the appellant and his family members for getting the treatment of deceased done.
27. P.W.-VII, Navrang Singh, Investigating Officer, has admitted in his statement that on 13.11.2008 the appellant made a disclosure statement before him that Pawan Kumar Mishra his brother-in-law (Sadu) and Durgesh Tiwari his brother-in-law (sala ) used to visit the deceased and they might have committed her murder. Ignoring paragraph- 107 of Police Regulations, investigating officer did not investigated this case from this angle. Learned Senior counsel for the appellant has submitted that this has caused serious prejudice to the case of defence.
28. P.W.-II, Ajeet Kumar, brother of deceased, has admitted in his statement that when he reached the house of the appellant, the door was locked from outside and bolted from inside. It was got broken and no family members of the appellant were found present. P.W.-III has also admitted that no family members of the matrimonial home of the deceased were present when they reached the place of incident.
29. The presumption under section 106 of the Evidence Act therefore would not be attracted in this case because the prosecution has not established the presence of the appellant in his house at the time of incident.
30. Therefore, we find that the deceased was strangulated and then her dead body was put on fire, but how this was done and by whom is not clear. The prosecution has admitted that the deceased was found in the room locked from inside. There was no other passage in the room which would have allowed any one to escape from the room after strangulating or burning the deceased to death. This situation makes the prosecution story impossible.
31. The argument of the senior counsel for the appellant that the deceased died on account of burning but later interpolation was made in the post mortem report to make it a case of strangulation as well has some substance. The manipulation in the post mortem report from ante mortem injuries to post mortem injuries coupled with the fact of manipulation in case crime number in the F.I.R. and inquest report shows that the prosecution case is doubtful. Case crime no. 273/2008 mentioned in the F.I.R. has been changed to case crime no. 260/2008. When the copy of F.I.R. was sent to the court of C.J.M., Kaushambi, is not clear. No date of its receipt in the court of C.J.M, Kaushambi, is mentioned. After lodging of the F.I.R. on 05.11.2008, alleging that the deceased was burnt to death, second application was given by P.W.-I on 13.11.2008 stating that his daughter was strangulated to death before burning makes the prosecution case doubtful.
32. This Court also finds that in the inquest report also there is manipulation in case crime no. 273 to 260 and cause of the death of the deceased has been mentioned as burning only. Therefore, we find that the prosecution case suffers from infirmities which makes the prosecution case doubtful. The appellant had claimed that he had also accompanied his parents to Vaishno Devi Temple. While they had reservation ticket of the travel by the same train he had general ticket which was filed in evidence, but trial court has not believed his defence.
33. He has served about 11 years of actual imprisonment and with remission about 13 years imprisonment before being enlarged on bail without there being any credible evidence against him. Therefore, he deserves to be acquitted.
34. The judgment and order of trial court cannot be sustained and are hereby set aside.
35. Bail bond of the appellant is cancelled and sureties are discharged.
36. Let the record of trial court be remitted and this judgment be notified to the trial court.
37. The criminal appeal is allowed.
Order Date :-14.08.2024.
Abhishek (Brij Raj Singh,J.) ( Siddharth,J.)