Allahabad High Court
Jaiveer Singh And Others vs State Of U.P. on 5 May, 2017
Author: Ramesh Sinha
Bench: Ramesh Sinha, Krishna Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Date of Judgment reserved: 20.03.2017 Date of delivery of Judgment: 05.05.2017 Court No. - 36 Case :- CRIMINAL APPEAL No. - 1984 of 2011 Appellant :- Jaiveer Singh And Others Respondent :- State Of U.P. Counsel for Appellant :- Apul Misra,P.N. Misra Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Krishna Pratap Singh,J.
(Delivered by Hon'ble Krishna Pratap Singh,J.)
1. Heard Sri Apul Misra, learned counsel for the appellants and Sri Ashish Pandey, learned A.G.A. for the State.
2. The present appeal is directed against the judgment and order dated 15.03.2011 passed by the Additional Sessions Judge, Court No. 1, Bareilly in Session Trial No. 190 of 2010 arising out of Case Crime No. 03 of 2009 (State vs. Raju Singh and 2 Others), under Sections 498-A, 304-B I.P.C. and under Section ¾ Dowry Prohibition Act, Police Station Vithari Chainpur, District Bareilly.
3. The appellant-accused Raju Singh has been convicted under Section ¾ Dowry Prohibition Act and sentenced him six months imprisonment along with a fine of Rs. 500/- and to serve a further 15 days imprisonment in default of payment of fine. He has also been convicted under Section 498-A I.P.C. and sentenced him to three years imprisonment along with a fine of Rs. 1,000/- and to serve further one month imprisonment in default of payment of fine. He has also been convicted under Section 304-B I.P.C. and sentenced him to life imprisonment.
4. Appellants-accused Jaiveer Singh and Dhan Devi @ Javitri have been convicted under Section ¾ Dowry Prohibition Act and sentenced them to six months imprisonment along with a fine of Rs. 500/- and to serve further 15 days imprisonment in default of payment of fine. They have also been convicted under Section 498-A I.P.C. and sentenced them to 3 years imprisonment along with a fine of Rs. 100/- and to serve further one month imprisonment in default of payment of fine. They have also been convicted under Section 304-B I.P.C. and sentenced them to 10 years imprisonment.
5. The learned trial Court has further directed that all the aforesaid sentences of each one of the appellants-accused shall run concurrently.
6. The first information report of the present case was lodged on 01.01.2009 at about 21:15 hours at Police Station Vithari Chainpur, District Bareilly, under Sections 498-A and 304-B I.P.C. and under Section ¾ Dowry Prohibition Act regarding an incident which is said to have been taken place at any time on 01.01.2009 in the village Gopalpur Nagaria situated at a distance of about 10 kilometers towards East from the police station.
7. The appellant-accused Raju Singh son of Jaiveer Singh, resident of village-Gopal Nagaria, District Bareilly got married to Moni Devi (deceased) in April last i.e. 2008. The appellants-accused Jaiveer Singh and Dhan Devi @ Javitri are the parents of the appellant-accused Raju Singh. Moni Devi died unnatural death in her in-laws house on 01.01.2009. Informant Saroja Devi PW-1 is the mother of the deceased Moni Devi. The allegations as per the first information report are that in the marriage of deceased informant Saroja Devi PW-1 had given gifts and dowry to the best of her capacity. But on Moni Devi's (deceased) reaching her in-laws place, her mother-in-law appellant-accused Dhan Devi @ Javitri, father-in-law appellant-accused Jaiveer Singh and her husband appellant-accused Raju Singh were not satisfied with the dowry and they used to complain to her daughter (deceased) about not having brought a motorcycle and a colour T.V. in dowry and used to beat her in connection with demand of dowry. When on information being received the husband of the informant Saroja Devi PW-1, Shesh Bahadur Singh, informant's father Shri Pal, informant's brother Satyendra Pal Singh son of Shri Pal Singh and informant went to the village Gopalpur Nagaria where her daughter (deceased) told them that those persons (appellants-accused) used to beat her and insist of bringing a motorcycle and a colour T.V. After mediation informant Saroja Devi took along her daughter (deceased) back. When her husband appellant-accused Raju Singh, father-in-law appellant-accused Jaiveer Singh, mother-in-law appellant-accused Dhan Devi @ Javitri come over to the house of the informant to take deceased back, informant sent her daughter (deceased) to in-laws place in December 2008 in presence of Rambir Singh son of Sahab Singh and Krishan Pal Singh son of Gokaran Singh and Satyendra Pal Singh. On 01.01.2009 somebody informed Saroja Devi PW-1 on telephone that Moni Devi has been killed by her in-laws' family. Informant Saroja Devi PW-1 with her family members went to the village Gopalpur Nagaria and found her daughter Moni Devi's dead body lying there and her husband Raju Singh and in-laws were absconding. Her daughter (deceased) had been beaten and poisoned to death by her husband appellant-accused Raju Singh, mother-in-law appellant-accused Dhan Devi @ Javitri and appellant-accused father-in-law Jaiveer Singh. She got a report Exhibit Ka-1 written by one Pushpendra Singh given by her the present case was registered at Police Station Vithari Chainpur, District Bareilly.
8. Head Moharir (H.M.) Mahesh Pal Singh PW-6 had prepared chik FIR Exhibit Ka-5 and GD Exhibit Ka-6.
9. After registration of the case Tehsildar Sri Kuldev Singh on the direction of the Sub-Divisional Magistrate (S.D.M.) Sadar Bareilly on 02.01.2009 went to prepare the inquest report. On his dictation Sub-Inspector Sher Singh prepared the inquest report paper nos. 8Ka/1 and 8Ka/2 and other relevant papers, sample of seal paper no. 14Ka, report to RI paper no. 17Ka, challan lash paper no. 15Ka, photo lash paper no. 16Ka were also prepared. Sealed dead body of the deceased Moni Devi was sent for postmortem. Constable 691 Mahabir Singh and H.G. 2877 Jagdish, Police Station Vithari Chainpur, District Bareilly brought the dead body of the deceased Moni Devi for postmortem examination. C.O. City-III Bareilly Pankaj Kumar Pandey PW-5 commenced the investigation into crime, recorded the statement of H.M. Mahesh Pal Singh PW-6, informant Saroja Devi PW-1 and Satyendra Pal Singh PW-2 and site plan Exhibit Ka-4 was sketched. Thereafter, Investigating Officer recorded the statement of the Murari, Roop Pal and Abdulli. On 13.01.2009 Investigating Officer recorded the statement of Raj Kumar Singh, Pushpendra Singh and Tejpal Singh. He also recorded the statement of appellant-accused Raju Singh at the door of one Laldhar who had surrendered himself in the Court. Thereafter, investigation of the case was transferred to another officer. Arun Kumar Singh C.O. City-I, Bareilly PW-3 took the investigation of the case on 05.02.2009. On 20.02.2009 he recorded the statement of Rambir Singh, Krishanpal Singh, Shesh Bahadur Singh and witness of the inquest report Jayendra Singh. On 21.02.2009 he recorded the statement of Sub-Inspector Sher Singh, Constable Mahabir Singh, Jagdish and Tehsildar Kuldev Singh. On 25.02.2009 Investigating Officer recorded the information of surrender of appellants-accused Jaiveer Singh and Dhan Devi @ Javitri in Court. After completion of investigation charge-sheet Exhibit Ka-2 was forwarded against the appellants-accused. The Forensic Science Laboratory (F.S.L.) report is Exhibit Ka-7.
10. Postmortem examination on the dead body of the Moni Devi was performed by Doctor Rajendra Kumar PW-4 on 02.01.2009 at about 3:30 P.M. The dead body was brought to the Doctor by the Constable 691 Mahabir Singh and H.G. 2677 Jagdish along with 10 police papers and body duly sealed in cotton cloth. Doctor had compared the seal which was found correct on postmortem examination report Exhibit Ka-3. The signature of the Constable 691 Mahabir Singh is also present on postmortem examination report Exhibit Ka-3. Constable 691 Mahabir Singh and H.G. 2677 Jagdish had identified the dead body of the Moni Devi. Physique of the female dead body was of average built. Her eyes and mouth were partly opened. Fluid was coming out from both nostrils. No any ante-mortem injury was found all over her body.
11. Cause of death of deceased could not be ascertained. Viscera was preserved for chemical analysis.
12. On the strength of the submitted charge-sheet appellants-accused were summoned. Since disclosed offence was exclusively triable by the sessions Court, the learned Chief Judicial Magistrate (C.J.M.) Bareilly committed the case to the Court of Sessions on 31.03.2010, where it was registered as Session Trial No. 190 of 2010 (State vs. Raju Singh and Two Others). The aforesaid sessions trial was transferred to the Court of Additional Sessions Judge, Court No.-I, Bareilly for trial.
13. Learned trial Judge charged the appellants-accused with offence under Sections 498-A and 304-B I.P.C. and under Section ¾ Dowry Prohibition Act on 29.05.2010. The charges were read over and explained to the appellants-accused. The appellants-accused pleaded not guilty and claimed to be tried and consequently sessions trial procedure was restored to establish guilt of the appellants-accused.
14. In order to prove its case prosecution has examined informant Saroja Devi PW-1 and Satyendra Pal Singh PW-2 as the witnesses of fact. Investigating Officer Arun Kumar Singh, C.O. City-I, Bareilly PW-3, Doctor Rajendra Kumar PW-4, Pankaj Kumar Pandey C.O. City-III, Bareilly PW-5 and H.M Mahesh Pal Singh PW-6 are the formal witnesses.
15. After the evidence of prosecution statement of appellants-accused were recorded under Section 313 Cr.P.C. Appellants-accused have stated that they have been falsely implicated in this case and witnesses have deposed false story against them. The appellants-accused Jaiveer Singh and Dhan Devi @ Javitri stated that they were living separately from the appellant-accused Raju Singh after the marriage of appellant-accused Raju Singh. They have also stated that the deceased was ill and suffering from fever, cold and pneumonia due to which she died. They had not given poison to the deceased.
16. The appellant-accused husband of the deceased Raju Singh DW-1 has stated that he had not administered the poison to the deceased. He had never demanded any dowry. He further stated that his wife deceased was ill and was suffering from some serious disease due to which she consumed some poison and committed suicide.
17. The appellants-accused Raju Singh DW-1, Rajbir DW-2 and appellant-accused Jaiveer Singh DW-3 have been examined as defence witnesses.
18. The learned trial Court believed the prosecution case and therefore convicted the appellants-accused under Section 498-A and 304-B I.P.C. and under Sections ¾ Dowry Prohibition Act and sentenced them accordingly vide impugned judgment and order dated 15.03.2011 which decision has now been called in question in the instant appeal.
19. Learned counsel for the appellants-accused has submitted that the appellants-accused are innocent and have been falsely implicated in the present case. The appellants-accused have never ill treated nor any dowry was demanded from the deceased. It has further submitted that the deceased used to remain ill and it appears in disgust deceased consumed poison herself. Appellants-accused had not administered poison to the deceased. Information regarding the death of the deceased was sent by appellants-accused to the mother of the deceased that deceased had committed suicide but she lodged a false report implicating the appellants-accused. It is also submitted that the appellant-accused Rajju Singh DW-1, Rajbir DW-2 and appellant-accused Jaiveer Singh DW-3 in their statement have stated that the deceased was never ill treated and it was a case of suicide by the deceased, in disgust, as she remained ill. So the criminal appeal filed by the appellants-accused is liable to be allowed.
20. Learned A.G.A. for the State has contended that the prosecution evidence is sufficient to prove the offence punishable under Sections 498-A and 304-B I.P.C. and Sections ¾ Dowry Prohibition Act. It is further submitted that in the veiw of consistent versions of informant Saroja Devi PW-1 and Satyendra Pal Singh PW-2 that Moni Devi consistently used to complain of her harassment for dowry by the appellants-accused. Their statements are reliable and trustworthy. Learned trial Court has rightly convicted the appellants-accused in the present case. It is also submitted that the appeal filed by the appellants-accused has no merit and should be dismissed.
21. We have considered the submissions advanced by learned counsel for the parties and perused the judgment of the trial Court as well as the record of the case.
22. In this appeal, point for determination is as to whether conviction of appellants-accused recorded by the trial Court for the offences punishable under Sections 498-A and 304-B I.P.C. and Sections ¾ Dowry Prohibition Act is against law and evidence on record.
23. The death of Moni Devi is admitted fact. Her identity has also not been challenged. It is to be decided that whether death of Moni Devi was dowry death.
24. The dowry death in the Indian Penal Code was introduced under Section 304-B. Under the said provision, if a married woman dies:-
(1) On account of burns or bodily injury or dies otherwise than under normal circumstances.
(2) Such death occurs within seven years of her marriage.
(3) It is shown that she was subjected to cruelty or harassment by her husband or any his relative.
(4) Such cruelty or harassment be soon before her death and, (5) Such cruelty or harassment by the husband or his relative be or for or in connection with demand of dowry.
Such death is called dowry death under Section 304-B I.P.C. and the husband or his relative shall be presumed to have caused the dowry death. Section 498-A I.P.C. deals with the offence of cruelty by the husband or his relative. If a married woman is subjected to cruelty by the husband or his relative, he is liable for conviction under Section 498-A I.P.C. There is no requirement under Section 498-A I.P.C. that the cruelty should be within seven years of marriage. It is also not invariable necessary under Section 498-A I.P.C. that the cruelty should be in connection with the demand of dowry.
25. So if a married woman dies on account of burns or bodily injury or dies 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 his relatives in connection with demand for dowry, then under Section 113-B of Indian Evidence Act expression is "Court shall presume". Law makers did intend the provisions to be more stringent and effective in the view of the growing social evil as can be seen from the statement of objects and reasons in the amending Act. Being mandatory presumption on the guilty conduct of an accused under Section 304-B I.P.C., it is for the prosecution to first prove the availability of all the ingredients of the offence so as to shift the burden of proof in terms of Section 113-B Indian Evidence Act. Once all the ingredients are present the presumption of innocence fades away. Having gone through the entire evidence as appreciated by the learned trial Court, we are not inclined to take a different view. Regarding cruelty or harassment is concerned it has clearly been proved in the evidence of informant Saroja Devi PW-1 and Satyendra Pal Singh PW-2 that the appellants-accused were consistently demanding dowry from the deceased. The death of the deceased had occurred within 8-9 months of her marriage.
26. Informant Saroja Devi PW-1 is mother of the deceased and she has deposed that her daughter Moni Devi had been married with appellant-accused Raju Singh some 8-9 months back. She had given gifts and dowry to the best of her capacity. Husband of the deceased and her in-laws were not satisfied with the dowry. The appellants-accused Dhan Devi, Raju Singh and Jaiveer Singh used to demand a colour T.V. and a motorcycle from her daughter. They used to beat and threaten her. She has further deposed that when she received information, her father, Shripal, her husband Shesh Bahadur, her brother Satyendra Pal Singh PW-2 and she herself went to the in-laws place of her daughter (deceased). Her daughter (deceased) informed her that the appellants-accused were demanding a motorcycle and colour T.V. as additional dowry. They used to beat her. She tried to make them understand the things but they did not stop and she brought her daughter (deceased) to her house. She has also deposed that a month later to this episode appellants-accused came to her house for fetching her daughter back. Following persuasion by Ramdeen, Krishna Pal, Sarvendra Singh and Shripal she send her daughter back. Some 20-25 days back prior to her death 16-17 days after her brother received information that appellants-accused had beaten her. When her brother and she herself reached there, her daughter told them that these people used to beat her and wanted to kill her. She returned after persuading appellant-accused Raju Singh and his family members.
27. On 1st January, she received information on telephone "your Moni Devi has been killed by her in-laws people". Upon this information, her brother, father, family members and she herself went to her daughter's in-laws place Gopalpur Nagaria and found her daughter Moni Devi lying dead on the bed. Some blood was oozing out from her nose while froth was coming out of her mouth and her abdomen was inflated. Her daughter's husband, mother-in-law and father-in-law were not present there. The house was empty. They poisoned her daughter to death her not meeting their dowry demand of colour T.V. and a motorcycle. She got a complain report of the occurrence scribed by one Pushpendra Singh. Pushpendra Singh scribed what was dictated to him by her and he read out its contents. The application was got scribed at Gopalpur Nagaria. She submitted the application at police station and case was registered. By that time police had reached there on some one's information they did paper work and send the dead body her postmortem. After postmortem she was given the dead body. She had performed funeral. The tehrir which was scribed by Pushpendra Singh on her dictation is on record. It is under her signature and it is marked as Exhibit Ka-1. She has undergone long cross-examination but nothing material could be elicited from her cross-examination to make any doubt on her credibility.
28. Satyendra Pal Singh PW-2 is brother of the informant Saroja Devi PW-1 has given similar statement and stated that her sister Saroaj Devi PW-1 was married to Shesh Bahadur, a resident of village Khateli. Behnoi (husband of sister) fell in the company of some bad persons and started consuming liquor, and he sold more than half of his total land. A little land was left. He got the remaining land sold and purchased about 3 acres of land in his village Nagla Madha for him and he got constructed his house there on. In the house his sister and Behnoi were residing for the past 10 years. Behnoi started doing shop at Shivpuri in Delhi and he took care of his sister and her children. He has further deposed that deceased Moni Devi was his niece (Bhanji) and was married to appellant-accused Raju Singh resident of Gopalpur Nagaria in the year 2008. A total sum of Rs. 40,000/- to Rs. 50,000/- were incurred on this marriage. Earlier they were satisfied. But after the marriage, they started demanding motorcycle and colour T.V. They taunted and also beat her (deceased). He further deposed that her father, sister, brother-in-law and he himself went to Gopalpur Nagaria. They persuaded them and told that they would try and give them if they could manage. Her hair were pulled and she complaining of pain on this count. They brought Moni Devi with them. She (deceased) used to live in the village with his sister. In the month of December, appellants-accused Raju Singh, Dhan Devi and Jaiveer Singh came over to their place and asked them to give her a send off, there would be no mistake from them on. On being convinced by the villagers Rambir Singh and Krishna Pal that those people would care of her. He sent her off. He also further deposed that after 10-15 days he came to know that they were beating Moni Devi for dowry. On this Saroja Devi PW-1 and he went to Gopalpur Nagaria on 23.12.2008. They had a conversation with them appellant's-accused Raju Singh told them that they had started living separately and argued them to leave saying that there would be no issue from them on. Moni Devi said to them "I am afraid. These people used to talk together stealthily I apprehend to be killed." On the evening on 01.01.2009 at 7:00 O'clock, an information was received to the effect that Moni Devi had been killed. On receipt of this information her sister, father, son Pushpendra Singh, many villagers and he himself went to there place and saw that the dead body of his niece (Bhanji) was lying on the bed in the room at Raju's Singh house. The appellants-accused Raju Singh, Dhan Devi and Jaiveer Singh were not available at the house. He had informed the police on the way to Gopalpur Nagaria. The police reached 5-10 minutes after his arrival. When he reached there froth was oozing of his niece's (deceased) mouth and some dark fluid was coming out from her nose. On seeing the dead body he sensed his niece was poisoned by appellants-accused Raju Singh, Dhan Devi and Jaiveer Singh on account of not fulfilling their demand for a motorcycle and a colour T.V. He had performed her last rites on reaching his village. There was none from her in-laws place to collect the dead body. He has also undergone a lengthy cross-examination but nothing in her cross-examination could be elicited which makes his evidence unreliable. Place of occurrence is also not disputed. At the place of occurrence the dead body of the deceased was found.
29. From the prosecution evidence it is proved that death of the deceased was occurred within 8-9 months of her marriage. Section 304-B I.P.C. permits presumption of law. From the prosecution evidence it is proved that the appellant-accused Raju Singh and deceased Moni Devi were husband and wife. They were living in the same house, where appellants-accused Jaiveer Singh and his wife Dhan Devi @ Javitri were also living. Deceased was harassed by the appellants-accused for additional dowry. The aforesaid circumstances are fully established by the evidence of Saroja Devi PW-1 and Satyendra Pal Singh PW-2. Another circumstance that the death of the Moni Devi was occurred than normal circumstances by poisoning which is proved from Forensic Science Laboratory report Exhibit Ka-7. Forensic Science Laboratory Exhibit Ka-7 shows that in the viscera of the deceased aluminium phosphide poison was found. Therefore, all the ingredients of Section 304-B I.P.C. are proved in the instant case, that the death of the Moni Devi occurred within seven years of her marriage. The death was occurred otherwise than under normal circumstances and that Moni Devi was subjected to harassment soon before her death in connection with demand of dowry which amounted to cruelty within the meaning of Section 498-A I.P.C. of which charge appellants-accused also proved guilty. In Sher Singh @ Pratap vs. State of Haryana 2015 (89) ACC 288 (SC) it had been held therein that the use of word 'shown' instead of "proved" in section 304-B I.P.C. indicates that the onus cast on prosecution would stand satisfied on the anvil of a mere preponderance of probability. In other words "shown" will have to be read up to mean "proved" but only to the extent of preponderance of probability. Thereafter, the word "deemed" used in section is to be read down to require an accused to prove his innocence, but beyond reasonable doubt. The "deemed" culpability of the accused to prove innocence was, accordingly read down to a strong "presumption" of his culpability. The accused is required to rebut this presumption by proving his innocence. In Ramakant Mishra alias Lalu and Others vs. State of U.P. 2015 (89) ACC 346 (SC) Hon'ble Apex Court in para-4 has held as under:-
"In harmony with the ratio of Sher Singh, so far as the present case is concerned, there can be no cavil that the prosecution has 'shown' that section 304-B stands attracted since the death of the wife occurred within seven years of the solemnization of the marriage; indubitably, it was an unnatural death. It has also come in evidence that immediately after her marriage a demand for a scooter was made and this demand recurred with regularity. It is in evidence that about fifteen days prior to the unnatural death of the hapless young wife, her Grandfather P.W. 1 first did not accede to the request of the accused to send the deceased/victim to her matrimonial house because of their harassment and cruelty towards her for not meeting their demands of dowry. Only when the accused assured her Grandfather that she would not be ill-treated, that she was sent back to her matrimonial house. The statement of the Mother P.W. 2 is also to the same effect. We are not persuaded, therefore, to hold that there was no live link between the dowry demand and the death or that the accused have succeeded in proving that the demand, if any, was of a much earlier vintage, on which count no support can be rallied from the judgment in Tarsem Singh v. State of Punjab. Therefore, the requirement of Section 304-B of the I.P.C. that the dowry demand should be made soon before the death stands satisfied. Accordingly, it appears to us that the prosecution has succeeded in showing, or proving prima facie, that dowry demands had been made by the accused even shortly before the death of the deceased."
30. The learned trial Court had framed charge on 29.05.2010 against the appellants-accused for demand of dowry is as follows:-
"That you all are, during the aforesaid period, made demand of motorcycle and colour T.V. from Moni Devi and her family members and there was committed an offence punishable under Sections ¾ Dowry Prohibition Act and in the cognizance of this Court of Sessions."
31. Section 3 of Dowry Prohibition Act provides punishment for taking the dowry while Section 4 of Dowry Prohibition Act provides punishment for demand of dowry. Charge framed against the appellants-accused by the learned trial Court shows that charge has been framed against the appellants-accused for demanding dowry, therefore, Section 3 of Dowry Prohibition Act has been wrongly mentioned in the charge framed against the appellants-accused. The learned trial Court has framed no charge against the appellants-accused for taking dowry, therefore conviction of the appellants-accused for the offence punishable under Section 3 of the Dowry Prohibition Act is not sustainable but in the view of the discussions made above, evidence available on record is sufficient to hold the appellants-accused guilty for the offence punishable under Section 4 of Dowry Prohibition Act. The learned trial Court has convicted the appellants-accused for demand of dowry under Sections ¾ Dowry Prohibition Act while this offence is punishable only under Section 4 Dowry Prohibition Act, therefore insertion of Section 3 of Dowry Prohibition Act along with Section 4 of Dowry Prohibition Act appears to be clerical mistake. Section 3 should be deleted and conviction of appellants-accused should be read Section 4 Dowry Prohibition Act.
32. The appellant-accused Raju Singh has examined himself as DW-1. He has stated on oath that he was married to Moni Devi 8-9 months prior to the incident. He had taken a marriage procession Nagra police station, District Shahjahanpur. He had never demanded any T.V., Motorcycle or any dowry articles. He had not demanded anything. He continued to frequent visit to his in-laws place along with his wife. He has further deposed that his wife used to often fall ill. Her grand father (Nana) and Shripal also used to provide her treatment. He also used to go with her for treatment at Bareilly. He used to show his wife to Doctor Naeem and Doctor Mukhtiyar and obtained medicines. She was disturbed by her illness. Aggrieved by this only, she committed suicide. He has also stated that there were three rooms in his house. One of them was occupied by him and his wife and another room was occupied by his parents and last one was occupied by his brother. But this statement has not been supported by his Rajbir DW-2. Rajbir DW-2 has not stated that the appellant-accused Raju Singh was living separately from his parents and brother. He has only stated that separate meals were cooked for the appellant-accused Raju Singh because the wife of Raju Singh used to take only selective eatables (Parheji Khana).
33. Appellant-accused Jaiveer Singh DW-3 who is father-in-law of the deceased Moni Devi. He had deposed that Appellant-accused Jaiveer Singh who is father-in-law of the deceased has been examined as DW-3. He has deposed that his son is lodged in jail. His son was married to Moni Devi resident of Nagla, Police Station Katra, District Shahjahanpur. The marriage party had gone there and marriage was performed with gaiety. He had gifted jewellery and clothes to his daughter-in-law (the bride of his son) when his Bahu (wife of his son) came to his house they never demanded any dowry from her till her death nor did they harass her. There was a separate cooking for him (Khana Alag Banta Tha). His daughter-in-law (Bahu) used to cook only selective food items for herself because of her sickness. Separate meals (Khana Alag Banta Tha) were cooked for his son and his Bahu. He got his Bahu (deceased) treated constantly and so did his son. He also deposed that he used to go for treatment along with his daughter-in-law on the Tanga (Horse driving Cart) of Babu Tangewala. He had thrice taken deceased along on Tanga. He often taken her along on his bicycle as well. He used to take her for treatment to Doctor Naeem and Doctor Mukhtiyar a private Doctor at Padarthpur and give her medicines as given by them. Whenever Moni Devi went to her village, her Nana used to take her for treatment to a Doctor practicing at village. His son Raju Singh took the deceased Moni Devi to Naketiya where her Ultrasound was conducted at Balkrishan Hospital.
34. In this way the appellants-accused have tried to prove that deceased had committed suicide because she used to remain ill. Prescriptions Exhibit Kha-3 and Exhibit Kha-4 given by the Doctors have been filed by the defence but the Doctor who has prescribed the medicines has not been examined. On prescriptions of the Doctor Exhibit Kha-3 and Exhibit Kha-4 the name of the patient (deceased) has not been mentioned. Any disease also has not been mentioned in the aforesaid prescriptions. Any Doctor of the Balkrishan Hospital has also not been examined. Defence has not given any explanation or cogent reasons about the non examinations of Doctors. So on the basis of these aforesaid prescriptions and statements of the defence witnesses it can not be said that deceased was suffering from any serious disease before her death. We have considered the statement of the aforesaid defence witnesses. It appears that the appellants-accused have only tried to save themselves from the punishment. Their statements appear not reliable and trustworthy. Considering the entire statements of the defence witnesses it is also apparent that they have not supported the version of each other and that in-laws of the deceased were living separately. The appellants-accused have not adduced any document or any reliable evidence to show that the in-laws of the deceased were living separately from the family of deceased Moni Devi and her husband appellant-accused Raju Singh.
35. The prosecution has established beyond reasonable doubt that soon before her death Moni Devi was subjected to cruelty and harassment by her husband and her in-laws in connection with demand of dowry. The appellants-accused were not successful in rebutting the presumption raised under Section 113-B of Indian Evidence Act. Findings of the learned trial Court under Section 304-B I.P.C. is based on proper appreciation of evidence and convincing reason. The learned trial Court has rightly convicted the appellants-accused under Sections 498-A and 304-B I.P.C. We find no ground warranting interference with the conviction of the appellants-accused.
36. For the offence under Section 304-B I.P.C. the punishment is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. Thus the Section 304-B I.P.C. prescribes statutory minimum punishment seven years. In the present case learned counsel for the appellants-accused has stated that in-laws of the deceased are old and infirm persons and her husband appellant-accused Raju Singh is in custody for more than five years. Bearing in mind the facts and circumstances of the case and that appellant-accused Raju Singh is in custody for more than five years, interest of justice would be met if the life imprisonment awarded to appellant-accused Raju Singh reduced to imprisonment for a period of 10 years. Appellants-accused Jaiveer Singh and Dhan Devi @ Javitri are old persons and infirm said to be suffering from various ailments and facts and circumstances of the case, ten years imprisonment imposed on appellants-accused Jaiveer Singh and Dhan Devi @ Javitri is also reduced imprisonment of seven years. In Kulwant Singh and Others vs. State of Punjab 2013 (83) ACC 154 while dealing with the dowry death Sections 304-B and 498-A I.P.C. in which death was caused by poisoning within seven years of marriage conviction was confirmed. In the said case, the father-in-law was about eighty years old and his legs had been amputated because of severe diabetes and mother-in-law was seventy eight years of age and the Hon'ble Apex Court held on the ground of sympathy below the statutory minimum.
37. The result while we uphold the conviction of the aforesaid appellants-accused under Section 304-B I.P.C., offence under Section 498-A I.P.C. and under Section 4 of Dowry Prohibition Act, sentence of life imprisonment imposed on appellant-accused Raju Singh is reduced to 10 years and sentence of 10 years imposed on appellants-accused Jaiveer Singh and Dhan Devi @ Javitri is reduced to 7 years each. The conviction of appellants-accused for the other offences and sentence of imprisonment imposed on each one of them are confirmed. The judgment and order of the learned trial Court shall stand modified to the above extent and the appeal partly allowed.
38. Learned counsel for the appellants-accused has stated that the appellants-accused Jaiveer Singh and Dhan Devi @ Javitri are on bail and appellant-accused Raju Singh is in custody. The appellants-accused Jaiveer Singh and Dhan Devi @ Javitri shall surrender before the trial Court within 30 days from the date of this judgment to serve sentence awarded to them, failing which learned trial Court shall issue non-bailable warrants against them and shall send them to jail for serving sentence as ordered above.
39. The appellant-accused Raju Singh who is already in jail shall also serve out sentence as modified by this Court.
40. Let a copy of this judgment be send to Learned Sessions Judge for securing compliance. Compliance report be submitted to this Court.
41. Office is directed to send back records of the trial Court immediately.
(Krishna Pratap Singh,J.) (Ramesh Sinha,J.)
Order Date :- 05.05.2017
A.K.Verma