Smt. Jonha @ Jonhi Devi And 2 Others vs State Of U.P. on 16 November, 2022

[Cites 14, Cited by 1]

Allahabad High Court

Smt. Jonha @ Jonhi Devi And 2 Others vs State Of U.P. on 16 November, 2022

Bench: Suneet Kumar





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 48
 
Case :- CRIMINAL APPEAL No. - 5663 of 2013
 
Appellant :- Smt. Jonha @ Jonhi Devi And 2 Others
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Ayank Mishra,D.P. Singh,Kumar Ashutosh
 
Srivastava,Vishnu Gupta
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Suneet Kumar,J.

Hon'ble Syed Waiz Mian,J.

Per Hon'ble Syed Waiz Mian, J.

1. This Criminal appeal under Section 374(2) Cr.P.C. has been filed by appellants Smt. Jonha @ Jonhi Devi, Baiju and Ganga Kohar, against judgment of conviction and order of sentence dated 21.11.2013, passed by the Additional District and Sessions Judge, Court No. 1, Mahrajganj, in Session Trial No. 96 of 2010 State vs. Baiju and others, whereby appellants have been convicted under Sections 304-B, 498-A, 201 I.P.C. and Section ¾ of D.P. Act, they have been sentenced with multiple sentences.

2. We have heard learned counsel for both the parties and have gone through the evidence on record.

3. The brief facts of the prosecution unfolds that one Ram Bilas presented a written application to the Superintendent of Police, Maharajganj, stating therein that marriage of his daughter Sangeeta was solemnised on 25.04.2004, as per the Hindu customs and rituals and on 10.03.2006 she had departed for her matrimonial house. He had given dowry as per his financial capacity, his son-in-law and her father-in-law demanded colour T.V. and motorcycle as an additional dowry ten months before death of the deceased and beaten her 2 daughter for the same; he went to the matrimonial house of her daughter but his son-in-law and his father threatened him not to visit their house hence he could not go to the matrimonial house of her daughter. It is next averred in the written F.I.R./application that on 13.03.2009 at 5:00 a.m. his daughter Sangeeta was killed by family members of her sasural and her dead body in a hush hush manner was cremated and no information was sent to his family members in this regard; upon coming to know about the incident he, his brother and his nephew went at village Jhamat and inquired from Smt. Jonha Devi (saas) and Ganga Kohar, father of Baiju (sasur), but they did not give them satisfactory explanation. Since she had died, no information was given to them, thereafter, they went to the police station, but their F.I.R. was not written, therefore, it was urged to Senior Superintendent of Police to issue direction to the Police Station to register the F.I.R.

4. On the application moved to S.S.P. an F.I.R. vide Case Crime No. 226 of 2009, under Sections 498-A, 304-B, 201 I.P.C. and Section ¾ D.P. Act, against Baiju, Jonha Devi, Ganga and Ramdeen, was registered on 25.03.2009 at 10:30, at the concerned police station by constable Nagendra Bahadur Singh and he also entered the substance of the F.I.R. in the G.D. No.8-Ka. Investigation was entrusted to one Devendra Nath, Additional Police Superintendent, Azamgarh, who took it up and at the instance of informant Ram Bilas, I.O. visited the place of occurrence and sketched a site plan. The Investigating Officer, during investigation recorded the statement of informant Ram Bilas and others and upon collecting evidence for offences under 3 Sections 498-A, 304-B, 201 and Section ¾ D.P. Act, he submitted challan, Paper No.3 to court concerned.

5. The learned Magistrate registered a Criminal Case No.4177 of 2009 against the accused and in view of challan and other materials on record vide order dated 09.06.2009, in the exercise of his powers enshrined under Section 190(1) clause (b) took cognizance of the aforestated offences against all the accused and committed the said criminal case vide order dated 29.06.2010, to the district Sessions Judge for trial of the accused.

6. Upon receiving criminal case No.4177 of 2009, the same was got registered in the District & Sessions court as S.T. No.46 of 2010.

7. The learned trial court vide order dated 30.10.2010, framed the charges against Baiju and three others under Sections 498-A, 304-B, 201 I.P.C. and Section ¾ D.P. Act. All the accused pleaded not guilty and claimed trial. As such, trial of the accused commenced.

8. In order to prove the charges against the accused, prosecution examined informant, P.W.1-Ram Bilas Kohar, P.W.2-Dashrath, P.W.3-Smt. Israwati w/o P.W.1, Ram Vilas Kohar, P.W.4-Radhey Shyam, who is the brother of the informant, P.W.1-Ram Bilas Kohar, P.W.5- Smt. Sharda wife of P.W.4 Radhey Shyam, P.W.6 Ram Samujh, who is the uncle of the deceased, P.W.7 Smt. Reshama w/o P.W.6, Ram Samujh, P.W.8, Additional Police Superintendent, Devendra Nath and P.W.9- Nagendra Bahadur Singh.

9. Statements of accused under Section 313 Cr.P.C. were recorded and accused have stated that the instant case came to be registered on account of enmity and misunderstanding. They have also stated in their statements that they had not made any demand of additional dowry, nor, deceased was subjected to mental and physical torture on account of non-fulfilment of any such demand. They also stated that they have not killed the deceased for nonfulfilment of demand of colour T.V. and motorcycle and they did not cremate the deceased in order to efface evidence of the offence with an intention to screen themselves from legal punishment.

10. Accused have also denied that they had subjected the deceased to cruelty. P.W.1 to P.W.4 in their testimonies have not stated the truth. Whereas, accused in respect of the evidence of P.W.5 Sharda, P.W.6 Ram Bilas Kohar, P.W.7 Reshama they have not made any comments; accused have also stated that the Investigating Officer had not made investigation properly and P.W.9- Nagendra Bahadur Singh has also given false evidence. Accused have also expressed their willingness to adduce evidence in their defence; but subsequently, they did not lead any evidence in their defence.

11. During trial, co-accused Ram Deehal @ Ramdeen had died on 20.10.2003 and on the strength of the death certificate, the trial against deceased was abated.

12. The learned trial court after hearing the learned counsel for both the parties, convicted accused/appellants Jonha Devi, Baiju and Ganga vide judgment and order dated 21.11.2013 and 5 sentenced them for life imprisonment and they have also been convicted under Section 498-A I.P.C. and sentenced for one year imprisonment each and fine to the tune of Rs.5,000/- and learned trial court has also convicted the accused under Section ¾ D.P. Act and has sentenced for five years and fine of Rs.15,000/- each and in default of fine awarded 3 months additional imprisonment.

13. Appellants feeling aggrieved by the impugned judgement and order dated 21.11.2013 have preferred present criminal appeal and have challenged the impugned judgement, inter-alia, on the grounds that they have no criminal history. No offence can be made out against them. In view of the evidence of the witnesses, the learned trial court has recorded their conviction arbitrarily and illegally. The impugned judgement and order has also been challenged on the ground that the evidence on record has not been appreciated properly and their conviction and sentence is against the evidence on record. The impugned judgement and order is contrary to law. Therefore, the instant criminal appeal be allowed and impugned judgement and order dated 21.11.2013 passed by the learned Additional Sessions Judge, Court No.1, Maharajganj in S.T. No.96 of 2010, State Vs. Baiju be set aside and appellants/accused be acquitted.

14. P.W. 1 Ram Vilas, has stated in his deposition on 24.01.2011 that six and half years earlier he had married her daughter Sangeeta as per Hindu rituals and ceremonies and in the marriage he according to his financial capacity had given dowry. After three years of marriage, in ''Gauna' Ceremony, his daughter with her husband, father in law and great father in law departed for her 6 matrimonial house; thereafter his son in law Baiju and others demanded T.V. and Motorcycle and also said unless aforementioned articles were given, they shall not take Smt. Sangeeta with them; he expressed his inability to satisfy their demand, and due to non fulfilment of their demand all the aforementioned persons on his persuasion took her daughter Sangeeta with them; they also complained and threatened that unless the demanded articles were provided they shall not send her daughter Sangeeta to his house and they shall also ill treat her. Thinking, in marriages such demand is not uncommon and also persuaded himself that in due course every thing would become normal; his daughter in her matrimonial house for non fulfilment of demand, her mother in law Jonha Devi, son in law -Baiju, father in law-Ganga and also her great grand father in law Ramdeen subjected her to torture; he went to meet his daughter to her matrimonial house; her daughter kept weeping and informed him that she was being subjected to torture and also being beaten for not satisfying their demand for additional dowry; he said to his daughter that since he is a poor man, therefore, is not in a position to meet the said demand; his daughter told him that if the demand of T.V. and Motor Cycle was not met these persons shall kill her.

16. After pacifying his daughter and family members of her inlaws he returned to his house.

17. P.W.-1 Ram Vilas, has further deposed in examination in chief that on the information that the family members of matrimonial house of her daughter Sangeeta had beaten her; he went there, where, Smt. Jonha Devi and other family members told him that if their demand for T.V. and Motor Cycle was not 7 fulfilled some unfortunate would happen; he had returned from their house and narrated the whole story to his wife, brother and other family members.

18. P.W.-1, Ram Vilas, in his examination in chief has stated that about the occurrence he went to file First Information Report at the police station but no action was taken; later he got an application typed and had put his thumb impression thereon; the First Information Report was presented to the police Superintendent, Maharajganj, on whose direction a criminal case at Police Station against the accused came to be registered.

19. P.W.-5 Ram Vilas in his cross examination has admitted that he is an illiterate person; he does not remember month and year of the marriage of his daughter; he also cannot tell the month and year of ''Gauna'. He has also admitted that after death of his daughter, he had presented a typed application to Police Superintendent; he had not presented any other application. Subject matter of the typed application was got written by a stranger; he had narrated him the details; which was described in the application and typist had typed that subject-matter in his typed application.

20. P.W.-1 Ram Vilas Kumhar, has admitted that he does not know the meaning of ''Nivedan' and ''Prarthi'; he does not know the reason as to how such words have been written in the written First Information Report, Exhibit Ka-1. During his deposition before the Court, F.I.R. Exhibit Ka-1, was shown to him to which he said that apart from the typed subject matter, some words have also been written by him. Witness-P.W.-1, Ram Vilas, has admitted that 8 application, Exhibit-Ka-1 bears his thumb impression but he can not say as to who had written his name. He has also admitted that in written First Information Report Exhibit-Ka-1 date of marriage and Gauna, i.e. 25.04.2004 and 10.03.2006 are noted but how they came to be mentioned in the application he cannot shed light.

21. P.W.-1, Ram Vilas has further stated that he does not remember the date, month and year of the death of his daughter but how it came to be noted in his First Inforation Report, Exhibit- Ka-1, he cannot explain.

22. P.W.-1-Ram Vilas has also deposed that the Police Stationfalls within the district-Mahrajganj, he is native of Village-Badharai Vishambharpur, whereas, the matrimonial house of the deceased is situated at village Jhamat, Police Station-Purandarpur, District- Mahrajganj; distance between his house and the matrimonial house was about ''Char Kos'; In a ''Kos' how many kilometres are comprised of, he does not know.

23. He also does not know how many miles a ''Kos' comprises; he came to know about the death of his daughter through passerby passing through the road, conversing among themselves that his daughter has been done to death; he did not ask the name of any passerby; after hearing about the death of his daughter, he reached on a motor cycle at around 10 a.m. at the matrimonial house where he found only mother in law of the deceased but husband, and father in law and the great grand father in law were absconding; he does not know whether at the time of marriage electricity connection in matrimonial house was operational or not. 9

24. He further states that despite his endeavours, his daughter was not allowed to go with him from her matrimonial house because of non fulfilment of additional dowry. About one month, earlier he had visited the matrimonial house of his daughter who kept weeping without pause and complained that for non fulfilment of demand of additional dowry, she was being consistantly beaten and was being subjected to torture.

25. He has further stated that after killing her daughter Sangeeta, all the aforesaid accused persons had cremated her dead body; he and his brother went to the house of his son in law and inquired about his daughter but no satisfactory answer came; Smt. Johna Devi, Baiju and Ramdeen informed that his daughter had died; they had also told him that he was asked to satisfy their demand for colour T.V. and Motor cycle but he did not meet their demand, therefore, no intimation in this regard was given to him. Thus, the accused Baiju, Ganga, Johna Devi and Ramdeen for non fulfilment of their demand of dowry have killed his daughter and have cremated her.

26. P.W.-1 Ram Vilas, further deposed that he is a labour and owns less than one acre land; at the time of marriage apart from dowry he had also given cash; after death of his daughter he had gone to the matrimonial house of his daughter but had not met the village headman (Pradhan); he did not inquire about the death of his daughter from the villagers of matrimonial village; he had visited the matrimonial house only on the date of her death thereafter, he did not go there; at the matrimonial house he had 10 not found police. In between death of Sangeeta and lodging of the First Information Report, he did not convene any Panchayat.

27. He also deposed that it would be wrong to say that on provocation of some rivals of accused and for wrongful gain they have been falsely roped in this case.

28. The accused have not offered suggestion to P.W.-1 Ram Vilas, that his written First Information Report was false and fictitious and was not written at his dictation; it has also not been suggested to P.W.-1 Ram Vilas as to who were rivals of accused. Since he is a poor labour, hence, he was not in a position to put any undue pressure upon the police officers to falsely implicate them.

29. On behalf of the accused, P.W.-1 Ram Vilas, has not been cross examined about his evidence given in his examination in chief to the effect that passerby had met him in between his village and matrimonial house of his daughter and through them he came to know about the death of his daughter.

30. Evidence of P.W.-1, Ram Vilas adduced in his examination in chief has also not been challenged in the cross examination to the effect that after the alleged incident, he had gone to local police station wherein his First Information Report was not lodged; he has also not been challenged in his cross examination about his evidence deposed in examination in chief that he had got typed the draft of the First Information Report.

31. P.W.-1 Ram Vilas has averred in written First Infomration Report Exhibit-Ka 1 that marriage and ''Gauna' of his daughter were took place on 28.04.2001 and 10.03.2006 respectively, though P.W.-1, Ram Vilas has expressed inability in his testimony about 11 the said dates noted in his written First Information Report but it is not the defence of the accused/appellant that marriage of the deceased with Baiju, had not been solemnized on 25.04.2004 and it is also not denied by the appellants/accused that Gauna of the deceased had taken place on 10.03.2006.

32. It is an undisputed fact that death of the deceased occurred within seven years of her marriage with Baiju.

33. Deposition of P.W.-1, Ram Vilas, has not been confronted in his cross examination to the effect that the deceased had shared her condition with her father and other family members regarding the torture and cruelty she was consistently subjected to on account of non satisfaction of demand of colour T.V. and Motor Cycle.

34. P.W.-1 Ram Vilas has denied the suggestion offered to him in his cross examination that it would be wrong to say that the appellant/accused did not make any demand for colour T.V. and motor cycle and also it would be wrong to suggest that the deceased was not subjected to torture due to non satisfaction of demand of additional dowry by the appellants/accused.

35. P.W.-1-Ram Vilas has also not been confronted in his cross examination about his evidence that he tried to persuade the accused/appellants not to make demands, for colour T.V. and Motor cycle because of his financial constraint.

36. Further, he has also not been cross examined regarding his piece of evidence to the effect that on his visit one month before, from the date of alleged incident, deceased had informed him about the cruelty and her ill treatment by the accused due to non 12 satisfaction of additional demand of dowry. P.W.1, has also not been challenged in his cross examination him on the effect that he paid visit to matrimonial house to meet her daughter because after Gauna they did not send her to his house; and or his last visit to matrimonial house one month before the incident, the deceased kept weeping because of harassment and torture at her matrimonial house. The accused have put suggestion to P.W.-1 Ram Vilas regarding additional demand of dowry and their false implication which has been categorically denied by him.

37. P.W.-2 Dashrath, who happens to be brother of the deceased states in his testimony dated 21.04.2011 that about 6-7 years earlier, marriage of his sister Sangeeta was solemnized with Baiju and after two years ''Gauna' had been performed; at the time of ''Gauna' Baiju and his other family members demanded motor cycle and colour T.V.; he had come to know that Baiju and others for non fulfilment of their demand for colour T.V. and motor cycle had harassed his sister.

38. He has further deposed that he has passed 2-3 standard; he does not know when the marriage of his sister was solemnized; he also does not remember date of her ''Gauna'; at the time of the death of the deceased, he was staying in Mumbai and had returned after four days of her death; after his return from Mumbai, he did not go to the matrimonial house of the deceased; his father had informed him telephonically on the date of death of his sister; his father had also told him that he had gone to the matrimonial house of the deceased; his father had called him at 3-4 p.m.; ''Gauna' was performed within three years from the marriage; after 13 lapse of one year from Gauna, his sister had died; No member of husband's family, in respect of death of the deceased had informed him; after the death of his sister no Panchayat was convened; P.W.-2 has admitted in his examination in chief that the deceased had died at the house of her husband; but, how she had died was not known to him.

39. P.W.-2 Dashrath, has admitted in his cross examination that at the time of death of his sister, he was staying in Mumbai and he came to know about the death of his sister on the information given by his fahter P.W.-1 Ram Vilas, therefore, his deposition pertaining to death of the deceased or place of death, is based on indirect evidence. P.W. -2 Dashrath, in his examination in chief states that at the time of ''Gauna', his brother in law Baiju and his other family members had demanded motor cycle and colour T.V. finds support from the statement of P.W.-1 Ram Vilas. This statement of P.W.-2 has also not been challenged in cross examination nor any specific suggestion on behalf of the accused has been offered to him.

40. P.W.-3 Ishrawati, mother of the deceased, has stated in her statement recorded before the learned trial Court on 04.08.2011 and 22.10.2012 that in the marriage of her daughter with Baiju, dowry was given as per her financial capacity; at the time of Gauna of the deceased, Baiju, Ganga and other members of their family had made demand of T.V. and Motor cycle but some how after the ''Gauna' her daughter had gone to her matrimonial house; at the time of ''Gauna', Baiju and his family members had also 14 said that Sangeeta will not be allowed to go to her parental house unless their aforesaid demand for additional dowry was satisfied.

41. P.W.-3, Ishrawati, has next deposed that after ''Gauna' her husband had gone to meet the deceased to take stock of her welfare but there also Baiju and his family members had repeated their demand of additional dowry; deceased had also informed his father about continuous torture by her husband Baiju, father in law, mother in law, and great father in law and during such narration she kept weeping. She further states that two and half years earlier, for non fulfilment of the demand of additional dowry of motor cycle and colour T.V.- husband, father in law, mother in law killed Sangeeta and they had cremated the body of the deceased; on coming to know about the incident, her husband and other family members went to the house of accused.

42. P.W.-3 Ishrawati, has not stated in her examination in chief that after the Gauna of the deceased she had ever visited the house of the accused but, what was transpired at matrimonial house of the deceased between her husband and accused, is stated to have been shared by her husband with P.W.3 Ishrawati.

43. P.W. 3 Ishrawati, like her husband P.W.-1 Ram Vilas, is illiterate and is resident of vilallge Badhara, Vishambharpur. She is not only a house wife but also she and her husband have rural background. In this backdrop not only her statement but also the deposition of P.W. 1, Ram Vilas should be read, understood and scrutinized.

44. P.W. 3, Ishrawati, in her cross examination says that she does not remember the date, month and year of marriage or 15 Gauna of her daughter of the deceased, after the marriage within a period of 2-3 years ''Gauna' was performed; she has expressed her inability that after ''Gauna', in how many days Sangeeta had died or after ''Gauna' the deceased was not allowed by her husband and in laws to visit her parental house.

45. P.W.-1 has also deposed that accused had also said to him in the presence of his other family members, that if their demand for additional dowry was not satisfied, deceased Sangeeta, in the Sasural will not stay happy.

46. P.W.3-Ishrawati, has also been examined about the fact as to how she came to know about the death of the deceased, to which she has stated that at the time of death of Sangeeta she was not present at her house but her husband had come to know about the death of the Sangeeta through passerby, and, her husband had informed her.

47. The statement of P.W.-3 Ishrawati, is not based on direct or indirect evidence because she has specifically disclosed that on the date of death of her daughter she was not present at her house. It appears that after her return to her house she had come to know about the death of Sangeeta.

48. P.W.-3, Ishrawati, has also admitted that she did not visit the inlaws house of her daughter. On receiving the information about the death of Sangeeta, Dashrath and her husband with other persons whose name she does not know had visited her in laws house.

49. P.W.-2 Dashrath, has not stated in his entire statement that after ''Gauna', he had visited with his father or others to the in laws house of her sister.

50. P.W.-3, in response to the suggestion in her cross examination has stated that it would be correct to say that her knowledge pertaining to the incident is based on the information of her husband, son and others. She has also admitted that she has not witnessed the incident.

51. It is not the case of the prosecution that P.W.3-Ishrawati, P.W.-1 Ram Vilas, or P.W.-2 Dashrath, have seen the incident. On the contrary, it is case of prosecution that about the death of the deceased, P.W.-1 Ram Vilas had come to know through passerby and her cremation had also taken place.

52. P.W.-1 Ram Vilas has also deposed that none of the inlaws of her daughter, had informed him or any member of his family in respect of the death of Sangeeta.

53. P.W. -3, Smt. Ishrawati, also has stated in her cross examination that there is no electric connection in the house of Baiju; accused had made demand for colour T.V. and Motor cycle at the time of marriage. She has also expressed her inability to reveal the reason of her previous statement in examination in chief that accused had made demand for colour T.V. and motor cycle at the time of ''Gauna'.

54. In sequence of her cross examination or elsewhere, the reply of the P.W.-3 Ishrawati Devi, with regard to which one of her statements is true is not on record nor any observation of the learned trial Court has been recorded, therefore, it cannot be said 17 that she (P.W.-3) maintained silence with regard to the said question, as such no adverse inference in this regard can be drawn.

55. P.W.-3 Ishrawati Devi, has not been cross examined, nor any suggestion on behalf of the accused/appellants has been given to the effect that her statement in her examination in chief that Baiju, Ganga and other members of their family had not only made demand for colour T.V. and motor cycle at the time of ''Gauna', but also had repeated their such demand and had also threatened that unless their demand of additional dowry was fulfilled, deceased will not be sent to her parental house.

56. P.W.-3-Ishrawati, in her cross examination has said that her husband after Gauna had gone to take information of welfare of her daughter at her in-laws house, wherein again the demand of additional dowry, by the husband and other members of the matrimonial family was made and for its non fulfilment, he was insulted.

57. ''Gauna', after marriage of the deceased with Baiju is not in dispute and the death of the deceased occurred in her matrimonial house is also not disputed. It is also not defence of the accused that any member of the family of the deceased had participated in the cremation of the deceased. Further, this fact has also been questioned in the cross examination of any of the aforementioned three witnesses that after the Gauna, Ram Vilas did not visit the matrimonial house of his daughter to enquire about her welfare.

58. The visit of P.W.-1 Ram Vilas to his daughter's matrimonial house is also natural and trustworthy because accused/appellants 18 had threatened not only P.W.-1 Ram Vilas but also other members of his family at the time of ''Gauna' that if their demand of additional dowry was not met deceased would not be allowed to visit her house and it is also not the defence of the appellants that after Gauna, the deceased had ever visited her parental house.

59. It is also evident from the above that the evidence of P.W.-1 Ram Vilas and P.W. 3-Smt. Ishrawati Devi, in their cross examinations, has not been challenged. Even with regard to the torture to the deceased for additional demand of dowry; frequent visit after ''Gauna' made by P.W.-1 Ram Vilas and during visit of P.W.-1 Ram Vilas to meet her daughter at her matrimonial house, narration of the deceased to P.W.-1 Ram Vilas about the constant demand for additional dowry and for its non fulfilment, putting the deceased to torture has also not been challenged, nor in this connection, on behalf of the accused appellants suggestion/suggestions has/have been put to the said witnesses.

60. Under the provisions of the Indian Evidence Act, it is stipulated that if on material particulars/depositions of the witnesses, in examination in chief, is not challenged in the cross examination, then it shall be presumed that such an unchallenged portion of testimony of a witness is admitted to the accused. It is also provided under Indian Evidence Act, that if any fact is admitted to other party, then that fact is not needed to be proved by first party, as such the above referred testimony of P.W.-1 Ram Vilas and P.W.-3-Smt. Ishrawati Devi, has not been challenged in their cross examinations, therefore, an inference against the 19 accused shall be drawn that such evidence/facts are admitted to them.

61. It has also emerged from the above that demand of additional dowry, not only at the time of ''Gauna' but also thereafter was made constantly and deceased was maltreated on account of its non fulfilment. The deceased was not happy after ''Gauna' till her death and this fact was also brought to the knowledge of P.W.-1 Ram Vilas during his last visit which took place about one month before the death of the deceased.

62. In Indian Evidence Act, the quantity of the witnesses is not sine-qua-non to hold conviction of an accused. Rather, charges against an accused could be proved if testimony of a witness is found natural, independent, truthful and consistent.

63. Appellants/accused have denied to have made demand for colour T.V. and motorcycle in between 13.03.2009 to 25.04.2004 and they have also denied in their statements recorded under Sections 313 Cr.P.C. to have subjected the deceased to torture for non satisfaction of demand of additional dowry. Appellants/accused have also denied to have subjected the deceased with cruelty because of non fulfilment of demand for dowry.

64. Appellants/accused have also denied in their statements that after causing dowry death to the deceased they had with an intention to erase the evidence, as well, to screen themselves from the legal punishment, they had cremated the deceased.

65. Appellants/accused have also stated in their statements that the evidence of P.W.-1 Ram Vilas, P.W.-2 Dashrath and P.W.-3 20 Smt. Ishrawati, as well as First Information Report (Exhibit-Ka-1) is false.

66. Accused/appellants, in their statements, under Section 313 Cr.P.C. have not claimed to inform her family members about the death of deceased.

67. P.W.-1 Ram Vilas has stated that the factum of death and cremation of the deceased was not communicated to him or any member of his family.

68. P.W.-4 Radhe Shyam states in his ocular evidence, recorded on 03.03.2012 before the learned trial Court that the incident had occurred about three years prior to the killing of the deceased; the deceased Smt. Sangeeta was married with Baiju and in third year after marriage, ''Gauna' of the deceased had taken place. Further, he has stated that accused/appellants have not killed Smt. Sangeeta for non satisfaction of any demand for additional dowry.

69. P.W.-4 Radheshyam turned hostile, therefore, was declared hostile but in his cross examination by the prosecution he has not supported the version of P.W.-1 Ram Vilas, P.W.-2 Dashrath or P.W.-3 Smt. Ishrawati Devi. However, this witness in his cross examination done on behalf of the appellant/accused has stated that after the death of Sangeeta, information about the death by in-laws and the family of her matrimonial house was sent at her village.

70. Deposition of P.W.-4, Radheshyam, pertaining to the information of death of the deceased is vague and ambiguous; he has not stated that which member of the family of husband/accused or Baiju himself had sent information to any 21 member of her parental family, nor this witness has deposed that if any such information he had received, the same was shared by him with P.W.-1 Ram Vilas or any of his family members.

71. Since P.W.-4 Radhe Shyam, has turned hostile and appears he has been won over by the appellants/accused, therefore, he seems to have stated in his cross examination that information by the members of the matrimonial house of the deceased was sent to her village. In our opinion this piece of evidence of P.W.-4 Radhe Shaym, cannot be believed.

72. P.W.-5-Sharda, wife of P.W.-4 Radhe Shyam has also deposed before the trial Court on 22.03.2012 that the deceased was the daughter of her husband's elder brother; about 5 years before her death, she was married to Baiju and within a period of three years, ''Gauna' of the deceased had taken place. This witness like her husband- P.W.-4, Radheshyam, has not supported the prosecution story. In her remaining examination in chief, she has feigned ignorance about the demand of any additional dowry and for its non fulfilment, the deceased was murdered by the appellants/accused.

73. P.W.-5, Smt. Sharda, after she was declared hostile was put to cross examination on behalf of the State but she has also not supported the prosecution story in her cross examination.

74. P.W.-5, Smt. Sharda, has not been cross examined by appellants/accused.

75. P.W.-6, Ram Samujh, in his testimony recorded on 04.06.2012 before the learned trial Court has said that three years earlier Sangeeta had died; Sangeeta was married with Baiju and 22 thereafter, ''Gauna' had taken place, but he does not remember exact time of Gauna.

76. P.W.6, Ram Samujh has also not supported the prosecution story in his remaining examination. Whereupon, he was declared hostile and this witness in his cross examination by the prosecution, has also not given any evidence against the appellants/accused.

77. P.W.-6, Ram Samujh, in his cross examination done on behalf of the appellant/ accused has denied his previous statement under Section 161 Cr.P.C. given to the Investigating Officer. As such P.W.-6 Ram Samujh, also does not support P.W.-1 Ram Vilas, P.W.2-Dashrath and P.W. 3 Smt. Ishrawati Devi.

78. P.W.7, Smt. Reshma, wife of P.W.-6, Ram Samujh, was also examined before the learned trial Court on 17.07.2012. She has admitted that three years before ''Gauna' the marriage of the deceased with Baiju was solemnized but she has not supported remaining prosecution story in rest of her examination in chief. On the request of the prosecution, P.W.-7 Reshma was declared hostile and was allowed to be cross examined by prosecution but she in her cross examination has denied to have given her statement to the Investigating Officer.

79. P.W.-7, Smt Reshma, in her cross examination done by the accused/appellants, she has feigned ignorance about the alleged incident. As such the prosecution story does not find support from the statement of P.W.-7 Reshma.

80. P.W.-4, Radhe Shyam, P.W.-5 Smt. Sharda, P.W. 7-Smt. Reshma, are not the members of the family of the deceased but they are informant's relative.

81. In such matrimonial matters it is not common to share such dispute with relatives, therefore, the evidence of P.W.-4, P.W.-5 Smt. Sharda, P.W.-6 Ram Samujh and P.W.-7-Smt. Reshma, with regard to the alleged incident they have expressed their ignorance about the incident is quite natural and on the strength of their evidence, depositions of P.W.-1 Ram Vilas, P.W.-2-Dashrath, and P.W.-3 Smt. Ishrawati Devi, can not be rendered shaken.

82. We are of the opinion that it is just and proper to discard the evidence of P.W.-4 Ram Dular, P.W.-5 Sharda, P.W.6- Ram Samujh and P.W.7 Smt. Reshma.

83. P.W.8, Devendra Nath, Additional Police Superintendent, who has conducted the investigation in this case, states that on 26.03.2009 he was posted as Circle Officer at Karenda and Criminal Case had registered at Case Crime No. 226 of 2009 under Sections 498-A, 304, 201 I.P.C. and Section ¾ of Dowry Prohibition Act, of which investigation was entrusted to him, he had recorded statement of informant Ram Vilas and also had inspected the place of the occurrence at the instance of the informant; he had sketched the site plan of the such place and had also recorded the statements of Satya Pal and others; he had also recorded the statements of the Smt. Ishrawati, Dashrath, Radhe Shyam, Smt. Sharda, Ram Samujh and Smt. Reshma, on 29.03.2009.

84. P.W.8 Devendra Nath, in his cross examination has stated that it would be wrong to say that if witness Radhe Shyam has denied his statement recorded under Section 161 Cr.P.C.. He has stated that he had recorded his statement.

85. P.W.-8, Investigating Officer, Devendra Nath has also further said that it would be wrong if witness Smt. Sharda says that she had not got her statement recorded to him to the effect that deceased was subjected to harassment for non fulfilment of demand of T.V. and Motor Cycle.

86. P.W.-8, Investigating Officer, Devendra Nath, in his cross examination has also said that the statement of Smt. Reshma W/o Ram Samujh in the Court, would be false if she has expressed her ignorance about the occurrence of the incident.

87. From the above cross examination of P.W.-8 Devendra Nath, it is evident that the applicant/accused by implication having admitted that witnesses, Radhe Shyam, Smt. Reshma W/o Ram Samujh, had got their statements recorded during investigation and on behalf of the appellant/accused, the comment of P.W.-8 Devendra Nath, with regard to witnesses Radhe Shyam, Smt. Sharda and Smt. Reshma, has been sought about their specific evidence in which these three witnesses have not supported the prosecution story and have turned hostile. Therefore, the statement of P.W.-4 Radhe Shyam, P.W.5 Smt. Sharda wife of Radhe Shyam and P.W. 7-Smt. Reshma W/o Ram Samujh, in their cross examination to the effect that their statements under Section 161 Cr.P.C. were not having been recorded by the investigating officer are unbelievable.

88. P.W.-8, Investigating Officer, Devendra Nath, has also stated in his cross examination that he had not recorded the statement of any member of the matrimonial house of the deceased. This witness further states that during investigation he had interrogated in-laws, other family members and villagers but they had expressed their ignorance about the death of the deceased.

89. P.W.8- Devendra Nath, investigating Officer has also stated in his cross examination that informant had told him 10 month prior to his statement to him, he had visited the house of the deceased; he has not collected any evidence during investigation whether there was electric connection in the house of the accused or not.

90. There is a distance of about 12 Kilometres in between the matrimonial house and parental house of the deceased.

91. P.W.8, Devendra Nath, also states in his cross examination that during investigation he was told by the informant that marriage of the deceased was solemnized on 25.04.2004 and ''Gauna' performed on 10.03.2006. According to the statement of informant, ''Gauna' of the deceased had been performed within three years of marriage of the deceased.

92. Appellant/accused have not challenged the evidence of P.W.8- Devendra Nath that marriage on 25.09.2004 and thereafter, within a period of three years, ''Gauna' was on 10.03.2006.

93. Appellant/accused have not challenged the time of marriage and Gauna of the deceased in the cross examination. For appellants/accused even informant P.W.-1-Ram Vilas, P.W.-2 Dashrath, P.W.-3-Ishrawati, have not been cross examined in this regard.

94. The appellants/accused, in their statement under Section 313 Cr.P.C. have not disputed the time of the marriage and ''Gauna' of the deceased, therefore the evidence of P.W.-1 Ram Vilas and other witnesses, who have supported P.W.-1 Ram Vilas to the effect that marriage had taken place about six and half years before the death of deceased and ''Gauna' had been performed within a period of three years of marriage is trustworthy. Statement of P.W.-1 Ram Vilas was recorded on 24.01.2011 and also on 25.01.2011 thus the period of marriage and Gauna has been calculated by P.W.-1 Ram Vilas on the date of his evidence is dated 24.01.2011.

95. It is stated by P.W.-8, Devendra Nath, Investigating Officer, that it would be wrong to say if witness Dashrath states in his statement before the Court that he (investigating officer) had recorded the date of marriage as 25.04.2009 and the date of ''Gauna' as 10.03.2006. This witness in sequence of his cross examination has clarified that during investigation Dashrath had told him the date of marriage, ''Gauna' and the incident. Considering the evidence on record with regard to the marriage and ''Gauna' of the deceased, there is trustworthy evidence, therefore, contradictory statements of P.W. 8-Investigating Officer, Devendra Nath, in this respect cannot be discarded in face of the other evidence on record.

96. Appellants/accused have strangely sought opinion of P.W.-8, Devendra Nath, regarding the piece of evidence of Radhe Shyam, Smt. Sharda, Smt. Reshma, which cannot be read against the prosecution.

97. Investigating Officer P.W.-8 in his statement could have been contradicted with regard to the statement that on 29.04.2010 he had recorded the statements of Village Pradhan-Shamshuddin, villager Jagdish, Hisahunnah, Hansraj and Suresh and also on 15.05.2009 statements of Baiju, Smt. Johna Devi, Ganga Kumhar and Ramdeen @ Ram Dihla. In his cross examination he has admitted that the family members of the matrimonial house of the deceased had not supported prosecution story. He has also stated in his deposition that on the basis of evidence collected during investigation he had submitted charge sheet against the accused on 30.05.2009 to the Court concerned. He has also proved site plan as Exhibit Ka-2 and charge sheet/ Chalan as Exhibit Ka-3. He has further stated that bones and remaining ash of the dead body of the deceased were not been recovered from the place of cremation. Cremation is said to have occurred on 13.03.2009 at around 5 a.m. at Jhamat. Constant demand of T.V. and motorcycle, since the time of ''Gauna' to the last visit of P.W.-1 Ram Vilas at the house of the accused/appellants, one month before the death of the deceased and also thereafter was made. On visit of Ram Vilas at the house of accused appellants, one month before the death of the deceased, informant came to know that the accused/appellant Baiju and Ganga repeatedly made demand of dowry and on non satisfaction of their demand they ill treated the deceased and also subjected her to torture. However, P.W.-1 Ram Vilas has not stated in his deposition that on his last visit to the matrimonial house of the deceased accused/appellant Smt. Johna Devi had also made demand for additional dowry, therefore, there is no clinching evidence on record to the effect that appellant/accused Johna Devi 28 had also made demand for dowry soon before the death of Sangeeta. P.W. 1-Ram Vilas has also stated in his statement that after his visit to the matrimonial house of the deceased he had come to know about her maltreatment due to non fulfilment of demand of dowry was made by Baiju and Ganga.

98. P.W.9, Constable-Nagendra Bahadur Singh, has deposed on 16.07.2013 before the learned trial Court that he was posted in the office of Police Station-Purandarpur. On 25.03.2009 at around 10.30 a.m. he had received a typed application bearing the order of Superintendent of Police Maharajganj directing for registration of the case, in pursuance of the said order, he had got written First Information Report Chik No. 34/09 and registered a Case at Crime No. 226 of 2009 under Sections 498-A, 304-B, 201 I.P.C. and ¾ of Dowry Prohibition Act and on that date and time, he had entered substance of the First Information Report in the G.D., and has proved First Information Report Chik, copy of the GD as Exhibit Ka-4 and Ka-5 respectively.

99. P.W.-9 Constable Nagendra Singh has stated that the original G.D. was not before him. This witness in his examination in chief has deposed that he has brought carbon copy of the original GD and both were prepared in his writing and signatures. As such P.W.-9 Constable Nagendra Singh has admitted that original GD was not with him at the time of deposition before the Court which is a normal practice because the original G.D. is supposed to be kept at the police station so that in the case of registration of any criminal case, substance of the same could be entered into the same. Since G.D. was not before the P.W.9, Constable Nagendra 29 Singh, at the time of his deposition in the Court therefore he was not in a position to say whether before or after the instant case which case had been registered at the police station. P.W.-9 Nagendra Singh has also said in his cross examination that in the G.D., it is written that after G.D. was prepared, separate special report shall be sent. Further he says that there is no such evidence on record to the effect whether the special report as per the rule was sent or not, however, such report is necessarily forwarded. It appears from the said cross examination of P.W.9 Nagendra Bahadur, that the appellant/accused wanted to ask the witness whether the separate special report with regard to commission of the instant incident was sent to the higher police officer or not. There is such a rule in the police regulations but if it is accepted on the face that no such separate report was forwarded to superior police officer is on the record then no adverse inference against the prosecution case could be drawn nor F.I.R. could be deemed as anti time. As such P.W.9 Constable Nagendra Bahadur by his deposition has proved the First Information Report Chik and Carbon copy of G.D. as Exhibit-Ka 4, and 5 respectively.

100. Accused in their statements under Section 313 Cr.P.C. have said that registration of case on the basis of written First Information Report is false and has no justification.

101. Submission of accused under Section 313 Cr.P.C. that P.W.-8, Devendra Nath investigating officer has conducted wrong investigation hence Chalan against them is not valid is not based on material on the record.

102. That case against them was registered and their trial was concluded was the result of enmity and misconception does also not hold water because the accused have not suggested about the alleged enmity and the alleged misconception of any witnesses in the cross examination nor any evidence in support of their statement has been adduced. However, appellant/accused, in their statements under Section 313 Cr.P.C. have expressed their desire to adduce evidence in their defence but they could not muster up courage to do so.

103. P.W.-1 Ram Vilas, has stated that for the cruelty meeted out to the deceased at her matrimonial house, the deceased had named her husband, mother in law and father in law, but during last visit of P.W.-1 Ram Vilas before death of deceased he has deposed that the deceased had complained about harassment due to non satisfaction of their demand for additional dowry by her husband and father in law and after lapse of a month deceased died unnaturally in her matrimonial house, therefore, there is no inconsistency in the evidence of P.W.-1 Ram Vilas with regard to the cruelty/harassment by husband and father in law on account of non satisfaction of demand of additional dowry. However, there is no cogent evidence on record as to whether soon before the death of the deceased, mother in law had also subjected the deceased to harassment due to non fulfilment of demand of additional dowry. Therefore, there is no reliable evidence for offence under Section 304-B of I.P.C. against the mother in law. That at the time of ''Gauna' and till his last visit of P.W-1, Ram vilas, at her daughter's residence. However, there is consistent and trustworthy evidence against all the three appellants/accused. 31

104. In case of Kans Raj vs State Of Punjab & Ors. 2000 (5) SCC 207, a three Judge Bench, of Hon'ble Apex Court laid down that:

" Soon before" is a relative term which is required to be considered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time limit."

105. In the present case the deceased was not allowed to visit her parental house after ''Gauna'; her husband and in laws had threatened P.W.-1 Ram Vilas and P.W.-3 Ishrawati Devi that in case their demand for additional dowry was not met their daughter (deceased) will not remain happy in her matrimonial house. Admittedly, the matrimonial house is not situated at much distance from the parental house and there is evidence on record that the distance in between these two houses is about 14 kilometers.

106. In the facts and circumstances of the case the deceased was not happy in her matrimonial house on account of non fulfilment of additional demand of dowry, she was subjected to harassment and torture, therefore, being father it is quite normal that P.W.-1 Ram Vilas, would pay visit to the matrimonial house to find about the welfare of the deceased.

107. Learned counsel for the appellant/ accused has contended that P.W.-1 Ram Vilas, P.W.-3 Smt. Ishrawati Devi are parents of the deceased, whereas, P.W.-2 Dashrath is her brother. He further submits that in the instant case since P.W.-4 to 7 have not supported the case of prosecution and the depositions of P.W.-1, P.W.-3 are also inconsistent and contradictory, therefore appellants/ accused could not be held guilty.

108. In Gumansinh @ Lalo @ Raju Bhikhabhai ... vs The State Of Gujarat reported in AIR, 2021, SC 4174, the Hon'ble Apex Court has held that:

"Most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness and even if an independent witness is available whether he or she would be willing to be a witness in the case is also a big question because normally no independent or unconnected person would prefer to become a witness for a number of reasons. There is nothing unnatural for a victim of domestic cruelty to share her trauma with her parents, brothers and sisters and other such close relatives. The evidentiary value of the close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness. However, when the Court has to appreciate the evidence of any interested witness it has to be very cautious in weighing their evidence or in other words, the evidence of an interested witness requires a scrutiny with utmost care and caution."

109. In this case though the relatives, as witnesses, were examined by the prosecution but they are also related to accused/appellants. However, there is trustworthy and reliable evidence of P.W.-1 Ram Vilas, P.W.-3 Smt. Ishrawati Devi and also evidence of P.W.-2 with regard to marriage and ''Gauna' of the deceased and also consistent evidence with regard to repeated demand of dowry and for its non fulfilment accused subjected the deceased to harassment and also there is trustworthy and reliable evidence on the record as having been referred above that Baiju and Ganga soon before the death of deceased had also made consistent demand of dowry not only to the deceased but also to P.W.-1, Ram Vilas who had lastly visited 33 matrimonial house within a month, thereafter, she had died in her Sasural within seven years of her wedlock.

110. It also transpires from the above discussion that for offences under Sections 304-B, 498-A, I.P.C. and ¾ D.P. Act against appellants Baiju and Ganga, whereas, the charge under Section 304-B I.P.C. has not proved against the mother in law Jonha Devi.

111. However, charges for offences under Section 498-A I.P.C. and Section ¾ D.P. Act, are proved against Jonha Devi.

112. It is also evident from the above discussion that the factum of death of the deceased was not communicated to the parents by any member of the family of accused appellants and cremation of the deceased was done clandestinely.

113. The parents of the deceased or any member of their family did not get an opportunity to attend the cremation of the deceased and also they could not see the face of the deceased as it is a normal desire of every Indian.

114. Section 113 B of Indian Evidence Act provides that:

"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 has also been appended to the said Section which reads as follows:

"Explanation.--For the purposes of this section, "dowry death" shall have the same meaning as in section 304B, of the Indian Penal Code." 34

115. Hon'ble Supreme Court in Banshi Lal vs. State of Haryana, (2011) 11 SCC 359 emphasized that:

" the mandatory application of presumption under Section 113-B of the Indian Evidence Act, ones the ingredients of Section 304-B I.P.C. stood proved the presumption as to dowry death shall be drawn."

Therefore, the onus of essential ingredients established by the prosecution, presumption under Section 113-B of Evidence Act, mandatorily operates against the accused. This presumption of causality can be rebutted by the accused.

116. In the instant case to rebut the presumption under Section 113-B of Indian Evidence Act, accused have not adduced any oral or written evidence.

117. All the accused in their statements under Section 313 I.P.C. have not explained as to how the deceased had died. They have merely stated that they have been falsely implicated due to enmity and misconception but there is no evidence on record to establish that prior to the death of the deceased any enmity existed between the deceased and accused or between the accused and any member of the family of the deceased.

118. Accused have also not thrown light on their statements with regard to misconception, therefore, appellants/accused Baiju and Ganga have failed to rebut the presumption under Section 113-B of Indian Evidence Act.

119. In the light of above findings after perusing the relevant material and the evidence available we find that the learned Trial Court has not committed any error in convicting the 35 appellants/accused Baiju and Ganga under Section 498-A, 304-B I.P.C. and Section ¾ of Dowry Prohibition Act. However, upon appreciation of facts, circumstances and relevant materials and evidence available on record we find that the learned lower Court committed error in convicting and sentencing appellants/accused Smt. Johna Devi, for offence under Section 304-B I.P.C., therefore, her conviction and sentence under Section 304-B I.P.C. is set aside. However, there is no error in convicting and sentencing Smt. Johna Devi, under Section 498-A, I.P.C. and Section ¾ of D.P. Act.

120. As discussed above, appellant/accused Smt. Jonha Devi has remained in prison in the instant case for a considerable time therefore, in the facts and circumstances of the case her sentence under Section 498-A I.P.C. and ¾ D.P. Act is modified to the extent she has undergone imprisonment, therefore, she deserves to be released if in judicial custody from jail. If she is detained in judicial custody her release order be transmitted to the concerned jail Superintendent forthwith.

121. However, considering the relationship of appellant Ganga with the deceased we are of the opinion that sentence awarded to him for offences under Section 304-B I.P.C. is too stringent, therefore Appellant Ganga instead of sentence of life imprisonment, it is modified to the extent of 7 years rigorous imprisonment.

122. In the result, the appeal against the judgment and order 21.11.2013 passed by Additional District and Sessions Judge, Court No. 1, Mahrajganj, in Session Trial No. 96 of 2010, State vs. Baiju and others, arising out of Case Crime No. 226 of 2009, under 36 Sections 498-A, 304-B, 201 I.P.C. and Section ¾ of Dowry Prohibition Act, Police Station-Purandarpur, District-Mahrajganj, to the extent of conviction of appellant Jonha Devi and Ganga, is modified as above and is partly allowed and for appellant Baiju, the judgment and order dated 21.11.2013 is affirmed and upheld and the appeal for him subject to above conclusion is dismissed.

123. Appellant/accused Ganga, who has been enlarged on bail, is hereby directed to surrender before the learned Additional Sessions Judge, Court No. 1, Mahrajganj, within a period of one month from the date of delivery of this judgment, to undergo the remaining sentence of 7 years awarded by this judgment failing which the learned trial Court shall secure his presence before it and forward him to jail concerned to serve the remaining sentence. It is also clarified that the period of his judicial detention, in the present case shall be adjusted, in accordance with the Jail Manual.

124. The Superintendent of Police, Maharajganj, to ensure compliance and send a report to this Court.

125. The bail bond/ security of accused Ganga shall stand cancelled/discharged.

126. Registry to send the lower Court record along with a copy of this judgment/order to the lower Court for compliance and obtain report thereof.

Dated:16.11.2022 Deepak (Syed Waiz Mian,J.) (Suneet Kumar,J.)

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