Allahabad High Court
Ajay Singh Chauhan vs State Of U.P. on 1 November, 2021
Author: Rajendra Kumar-Iv
Bench: Rajendra Kumar-Iv
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 29.09.2021 Delivered on 01.11.2021 Court No. - 77 Case :- CRIMINAL APPEAL No. - 7220 of 2019 Appellant :- Ajay Singh Chauhan Respondent :- State of U.P. Counsel for Appellant :- Ram Vishal Mishra,Bala Nath Mishra,Sanjay Kumar Singh Counsel for Respondent :- G.A.,Purushottam Mani Tripathi Hon'ble Rajendra Kumar-IV,J.
1. By this criminal appeal, accused-appellant Ajay Singh Chauhan has challenged the judgement and order dated 09.10.2019 passed by Additional Session Judge / Special Judge (Anti Corruption) Court No. 4, Varanasi in Session Trial No.319 of 2015 (State of U.P. vs. Ajay Singh Chauhan), arising out of Case Crime No.174 of 2015, under Sections 498-A, 304-B I.P.C. and Section 4 Dowry Prohibition Act, Police Station Rohaniya, District Varanasi by which accused-appellant has been convicted and sentenced 10 years rigorous imprisonment under Section 304-B I.P.C., 2 years rigorous imprisonment under Section 498-A I.P.C. with fine of Rs. 2,000/- and 2 years rigorous imprisonment with fine of Rs. 2,000/- under Section 4 Dowry Prohibition Act with default clause.
2. According to prosecution case, Smt. Chanchal Singh daughter of informant was married to accused-appellant Ajay Singh Chauhan on 06.12.2013. After the marriage everything was OK for six months but later on, accused-appellant and his other family members started harassing victim in demand of dowry. She was asked to take Rs.2,00,000/- from her father to which she expressed her inability to bring money in dowry on the ground that her younger sister is to be married. She was continuously subjected to cruelty. Victim used to inform the entire story to her parents on telephone. It was also informed by her that accused-appellant and his family members took out the ornaments from her almirah. On 19.04.2015 at about 4:00 P.M., informant came to know that her daughter committed suicide. When he reached the house of accused-appellant, he saw that his daughter died. There was no rope in the room.
3. P.W.-1, Vijay Singh Chauhan informant, presented a written tehrir Ex.Ka-2 before the police station concerned whereupon Chick F.I.R. Ex.Ka-10 was drawn by constable Shri Prakash Singh and entry of case was made in general diary, copy whereof is Ex.Ka.11.
4. Inquest was done over the dead body of Smt. Chanchal Singh. Inquest report Ex.Ka.-2 was drawn by Officer concerned P.W.-4 Anand Kumar Kannajiya, Nayab Tehsildar and dead body was sent to mortuary for post-mortem along with relevant papers thereto.
5. Post-mortem was done by P.W.-3 Dr. Satya Prakash over the dead body of Smt. Chanchal Singh. Doctor prepared post mortem report Ex.Ka.-3, noting ante-mortem injuries found on the person of victim. According to doctor death of victim was found due to asphyxia as a result of ante-mortem hanging.
6. P.W.-5 Mukesh Chandra Uttam, Investigating Officer under took the investigation, visited the spot, prepared site plan, recorded the statements of witnesses and P.W.-6 Ram Sewak, after completing entire formalities of investigation, submitted charge-sheet, Ex.Ka-9 against the accused-appellant before the competent court.
7. Case, being exclusively triable by Court of Sessions, was committed to Session Court which came to be transferred to the Court of Additional Sessions Judge, Court no. 14, Varanasi who framed charges against the accused-appellant under Sections 498-A, 304-B I.P.C. and Section 3/4 Dowry Prohibition Act to which the accused denied and claimed to be tried.
8. In order to substantiate its case, prosecution examined as many as seven witnesses, out of whom PW-1 and P.W. 2 are the witnesses of fact and rest are formal witnesses.
9. On closure of prosecution evidence statement of accused-appellant under Section 313 Cr.P.C. was recorded by Court explaining all incriminating circumstances and other evidence. Accused denied prosecution story in toto and all formalities of investigation were said to be wrong. He claimed false implication. Suicidal death was claimed.
10. Trial court on appreciation of evidence adduced before it, found the accused-appellant guilty and convicted and sentenced the accused-appellant as stated above.
11. I have heard Sri Sanjay Kumar Singh, learned counsel for the appellant, Sri Purushottam Mani Tripathi, learned counsel for the informant and learned AGA for the State at length and perused the record.
12. Learned counsel for the appellant submits that admittedly, Smt. Chanchal Singh died within seven years of her marriage under the abnormal circumstances. She committed suicide but appellant is not responsible for her suicide. There is no motive to accused-appellant to commit the crime with the deceased. He further submitted that entire witnesses adduced by prosecution are not the eye witness. There is no evidence that she has been subjected to cruelty in demand of dowry, hence no presumption under Section 113-B of Indian Evidence Act or Section 304-B I.P.C. is made out against the accused-appellant. He further argued that it has come in evidence that before her death, victim went to her parental house where she was humiliated by her brother and sister-in-law (Bhabhi), due to which she got frustrated and on returning to her matrimonial house, she decided her life to end and committed suicide. He further submitted that when appellant entered in her room, he saw her dead body hanging and lowered it. She was taken to hospital and he informed her father. If he had committed any crime, he would not have informed the informant. There is material contradiction in the statement of witnesses so as to disbelieve the prosecution story. As per statement of informant, money is said to have been demanded for business purpose which does not come under the purview of Dowry Prohibition Act. Unless money is demanded in the shape of dowry. No presumption under Section 304-B I.P.C. is made out. He further argued that if criminal appeal fails on merit, he should be dealt with sympathetically and his sentence deserves to be reduced to the extent of period already served by him in jail. The accused-appellant is in jail for more than six years. Learned counsel for the accused-appellant placed reliance upon the judgement of Hon'ble Supreme Court in the case of Satbir Singh and another vs. State of Haryana in Criminal Appeal No. 1735--1736 of 2010 decided on 28.05.2021.
13. On the other hand, learned AGA as well as learned counsel for the informant opposed the appeal and submitted that Smt. Chanchal Singh was married to accused-appellant in the year, 2013. After her marriage, she was harassed and subjected to cruelty in demand of dowry soon before her death. She committed suicide by hanging herself and died within 7 years of her marriage. Accused-appellant deserves no sympathy. Death of victim, under the abnormal circumstances within 7 years of her marriage, is an admitted fact. Learned AGA as well as counsel for the informant relied upon the judgement of Hon'ble Supreme Court in the case of Jatinder Kumar vs. State of Haryana in Criminal Appeal No. 1850 of 2020 decided on 17.12.2019.
14. At the outset, it is pertinent to analyze the law on dowry death.
Section 304-B IPC, which defines, and provides the punishment for dowry demand, reads as under:
"304-B. Dowry death. --(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ''dowry death', and such husband or relative shall be deemed to have caused her death.
Explanation. --For the purpose of this sub-section, ''dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." Section 304-B (1) defines ''dowry death' of a woman. It provides that ''dowry death' is where death of a woman is caused by burning or bodily injuries or occurs otherwise than under normal circumstances, within seven years of marriage, and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband, in connection with demand for dowry. Sub-clause (2) provides for punishment for those who cause dowry death. Accordingly, in Major Singh v. State of Punjab, (2015) 5 SCC 201, a three Judge Bench of Apex Court held as follows:
"10. To sustain the conviction under Section 304-B IPC, the following essential ingredients are to be established:
(i) the death of a woman should be caused by burns or bodily injury or otherwise than under a ''normal circumstance';
(ii) such a death should have occurred within seven years of her marriage;
(iii) she must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(iv) such cruelty or harassment should be for or in connection with demand of dowry; and
(v) such cruelty or harassment is shown to have been meted out to the woman soon before her death."
15. Now, considering the entire evidence, prosecution witnesses and other evidence, admittedly, it transpires that deceased was married to accused-appellant in the year, 2013. She died in the year, 2015 i.e. within 7 years of her marriage under the abnormal circumstances. She committed suicide by hanging herself in her matrimonial house and accused-appellant is her husband.
16. Only question remains for consideration in the present appeal is, "whether Smt. Chanchal Singh was harassed after her marriage and she was subjected to cruelty in demand of dowry soon before her death or not".
17. P.W.-1 Vijay Singh Chauhan, who happens to be the father of deceased deposed in his examination-in-chief before the trial court that his daughter Smt. Chanchal Singh was married to accused-appellant Ajah Singh Chauhan in the year, 2013. After her marriage, she was demanded dowry to the tune of Rs.2,00,000/- by her husband and her in-laws. When she showed her inability of paying dowry, she was harassed and humiliated. She was not provided food and accused-appellant harassed her. Entire story of harassment was narrated by her whenever she came to her parental house. She was continuously harassed and given threat that if she does not meet the demand, she would not survive. On the fateful day i.e. 19.04.2015, accused-appellant Ajay Singh Chauhan made a call on his mobile and informed that Smt. Chanchal committed suicide. He reached there along with other family members and saw that his daughter Smt. Chanchal Singh was lying dead and there was no rope. When he inquired regarding the incident, found no response. Thereafter, he went to police station concerned and got F.I.R. registered.
18. P.W.-2 Jai Prakash Singh, brother of deceased deposed that his younger sister Smt. Chanchal Singh was married to accused-appellant Ajay Singh Chauhan in the year, 2013 according to Hindu rites. In her marriage sufficient dowry was given but her husband and her in-laws were not satisfied with the dowry given in the marriage. Everything was OK for six months after her marriage but later on they started demand of dowry to the tune of Rs.2,00,000/- on the pretext that service of her husband in Dehradoon was over. He has to deal with business. When her sister Smt. Chanchal Singh came to her parental house on the occasion of Bhaiduj, she told that her husband and other members of in-laws were demanding the dowry to a tune of Rs.2,00,000/- and if it is not given, they will not leave her alive. Accused-appellant started beating and harassing her. Ornaments of victim was also taken from her. Due to harassment given by accused-appellant, she committed suicide by hanging herself in her in-laws house.
19. P.W.-3, Dr. Satya Prakash conducting post-mortem over the dead body of Smt. Chanchal Singh, deposed that he was posted as Medical Officer in Pt. Deen Dayal Upadhyay, Sadar Hospital, Varanasi and conducted the post-mortem of Smt. Chanchal Singh. He prepared the post-mortem report Ex. Ka-3 and found ante-mortem ligature mark measuring 32 cm. X 1.5 cm around the neck and two contusions on her body. He noted the injuries in post-mortem report. According to doctor, death of victim was possible one day before from post-mortem. The injury no. 1 found on the person of deceased was responsible for causing her death.
20. The witnesses withstood lengthy cross-examination by defence but nothing adverse could be brought on record so as to disbelieve their testimonial statements. Certainly, there are minor contradictions in the evidence of witnesses but they are not of such nature which could blemish the truthfulness of their statements.
21. In Sampath Kumar v. Inspector of Police, Krishnagiri, (2012) 4 SCC 124, Court has held that minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
22. We should not lest forget that no prosecution case is foolproof and the same is bound to suffer from some lacuna or the other. It is only when such lacunae are on material aspects going to the root of the matter, it may have bearing on the outcome of the case, else such shortcomings are to be ignored. Reference may be made to a recent decision of Apex Court (3 Judges) in Criminal Appeal No. 56 of 2018, Smt. Shamim v. State of (NCT of Delhi), decided on 19.09.2018.
23. In the case of Rajinder Singh vs. State of Punjab (2015) 6 SCC 477, it was held that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise.
24. When the prosecution shows 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', a presumption of causation arises against the accused under Section 113-B of the Evidence Act. Thereafter, the accused has to rebut this statutory presumption. Section 113-B, Evidence Act 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 had caused the dowry death.
Explanation. - For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)"
25. Therefore, once all the essential ingredients are established by the prosecution, the presumption under Section 113-B, Evidence Act mandatorily operates against the accused. This presumption of causality that arises can be rebutted by the accused.
26. In the present appeal deposition of prosecution witnesses about torture and demand for dowry made by appellant have been believed by the Trial Court. Both P.W.-1 and P.W.-2 have narrated the facts which would constitute demand of dowry as also inflicting cruelty and torture upon the deceased victim. Such consistent stand of these two witnesses cannot be said to have been overshadowed. It is a finding on fact upon proper appreciation of evidence. I do not find any major contradiction in the statements made by P.W.1 and P.W.2 on demand of dowry subjecting the deceased to cruelty. They stuck by their statements in cross-examination. From their depositions, a link can be established between such acts of the appellant and death of the deceased victim. Once these factors are proved, presumption rests on the accused under Section 113-B of the Indian Evidence Act, 1872. The appellant attributed suicide of the victim due to depression on account of her neglection in parental house within a short spell of time. Though the factum of depression has been tried to be established from the side of appellant, there is no corroboration of such a depressive state of mind of the deceased. Trial Court rejected his defence. P.W.-1 father of the deceased, and also P.W.2 brother of deceased have proved the demand for dowry. This version has run consistently from the statement forming the basis of F.I.R. to deposition stage and I do not think the Trial Court had come to such conclusion in a perverse manner.
27. So far as sentence of accused-appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual cases.
28. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of court to constantly remind itself that right of victim, and be it said, on certain occasions person aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'. [Vide: Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder vs. Puran, (1990) 4 SCC 731, M.P. v. Saleem, (2005) 5 SCC 554, Ravji v. State of Rajasthan, (1996) 2 SCC 175].
29. Hence, applying the principles laid down in the aforesaid judgment and having regard to the totality of facts and circumstances of case, nature of offence and the manner in which offence was executed or committed, I find that punishment imposed upon accused-appellant-Ajay Singh Chauhan by Trial Court in impugned judgment and order is not excessive and it appears fit and proper and no question arises to interfere in the matter on the point of punishment imposed upon him.
30. In view of above discussion, the appeal lacks merit and is accordingly dismissed.
31. Certify the judgement along with the lower court record to the court concerned for compliance.
Order Date :- 01.11.2021 Manoj