Partly allowed

Vinod v. State of U.P.

Allahabad HC15 Dec 2020CRLA/3806/2019

Case brief

AI extract

What is this about?

Dowry-death, cruelty and dowry-demand convictions were confirmed. The court partly allowed the appeal on sentence, reducing imprisonment for dowry death from ten to eight years, deleting the fine under that provision and reducing other fines and default terms. Sentences remained concurrent, with credit for previous incarceration.

What did the court decide?

Dowry-death imprisonment reduced to eight years; fine under Section 304-B deleted; other fines and default terms reduced; concurrent sentences and credit for prior incarceration directed.

Vinod Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2020)

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Court No. - 76

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Case :- CRIMINAL APPEAL No. - 3806 of 2019

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Appellant :- Vinod Respondent :- State of U.P. Counsel for Appellant :- Gajendra Singh, Mahendra Singh Counsel for Respondent :- G.A.

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Hon'ble Ajit Singh,J.

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This appeal under Section 374(2) of the Code of Criminal Procedure has been filed by convict appellant Vinod against judgment of conviction and sentence made therein by 1st Additional Sessions Judge, Budaun in Session Trial No. 120 of 2014 (State Vs. Vinod), arising out of Case Crime No. 551 of 1990, under Sections - 304-B, 498-A I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station - Ujhani, District - Budaun, whereby the appellant has been convicted and sentenced with ten years' rigorous imprisonment under Section 304-B IPC; under Section 498-A I.P.C. he has been convicted and sentenced to two years rigorous imprisonment with a fine of Rs.5,000/- and in case of default in payment of the fine an additional imprisonment of one year was also directed to be served out and under Section 4 of Dowry Prohibition Act the accused appellant was convicted and sentenced to serve out one year’s rigorous imprisonment with a fine of Rs.5,000/- and in case of default in payment of the fine an additional sentence of six months’ rigorous imprisonment was pronounced to be served out by the appellant with a direction for concurrent running of sentences with adjustment of previous imprisonment, if any.

¶6

The present appeal has been filed on the ground that the judgment of conviction and sentence is against the fact and evidence placed on record, based on conjectures and surmises, hence not sustainable in eyes of law and is liable to be set aside. Moreover, the prosecution has failed to prove its case beyond all reasonable doubt, still the trial Court convicted and sentenced, as set down above. There was material contradiction in the

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¶8

testimony of prosecution witnesses, but trial Court failed to appreciate it. First Information Report, dated 12.04.1990, was registered as Case Crime No. 551 of 1990 for offences punishable under Sections 304-B (alternate Section 302), 498-A, I.P.C. read with Section 3/4 Dowry Prohibition Act against the appellant and others. The First Information Report of this incident was lodged by Ram Singh son of Komil, the brother of the appellant Vinod, which reads as under:-

¶9

" था�ा राम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानासि�ंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानापुत्रकोसिम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना राम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानासि�वा�ी ग्राम बरी का नगला थानाग्राम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाबरी ग्राम बरी का नगला थानाका�गल र ा म निवासी ग्राम बरी का नगला थाना

¶10

उझा�ी ग्राम बरी का नगला थाना Budaun �े आकर एक लिखित तहरीर कि मेरा भाई विनोदआकरएकसिल राम निवा स ी ग्राम बरी का नगला थाना�ततह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानारी ग् र ाम बरी का नगला थाना सिकम सिंह पुत् र कोमिल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोदाभाई विनोदसिव�ोद कुम सिंह पुत्र कोमिल र ा म निवासी ग्राम बरी का नगला थानारकी ग्राम बरी का नगला थानाबी ग्राम ब री का नगला थानाी ग्राम बरी का नगला थानादुगा�दे आकर एक लिखित तहरीर कि मेरा भाई व िनोदी ग्राम बरी का नगला थानाजोस्टॉपचावल राम निवासी ग्राम बरी का नगला थानाब�ा�े आकर एक लिखित तहरीर कि मेरा भाई विनोदकोजल र ा म निवासी ग्राम बरी का नगला थानायाथाउ��े आकर एक लिखित तहरीर कि मेरा भाई विनोद ल राम निवासी ग्राम बरी का नगला थानापटउठ�े आकर एक लिखित तहरीर कि मेरा भाई विनोदम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाें उसकी धोती में आग लग गयी जिसकी सूचना हमारीउ�की ग्राम बरी का नगला थानाधोती ग्राम बरी का नगला थानाम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाें उसकी धोती में आग लग गयी जिसकी सूचना हमारीआगल राम निवासी ग ्राम बरी का नगला थाना गयी ग्राम बरी का नगला थानासिज�की ग्राम बरी का नगला थाना�ूच�ाह पुत्र को म िल राम निवासी ग्राम बरी का नगला थानाारी ग्राम बरी का नगला थाना बह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थाना��े आकर एक लिखित तहरीर कि मेरा भाई विनोदह पुत्र को म िल राम निवासी ग्राम बरी का नगला थानाकोदी ग्राम बरी का नगला थानाऔरम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाैं व मेरा भाई दौङकर गए और उसके बचाव केवम सिंह पुत् र कोमिल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोदाभाई विनोददौङकरगएऔरउ�के आकर एक लिखित तहरीर कि मेरा भाई विनोदबचावके आकर एक लिखित तहरीर कि मेरा भाई विनोद सिल राम निवासी ग्राम बरी का नगला थानाएउ�परदरी ग्राम बरी का नगला थानादाल राम निवासी ग्राम बरी का नगला थानादी ग्राम बरी का नगला थाना. पङौ�के आकर एक लिखित तहरीर कि मेरा भाई विनोदकाफी ग्राम बरी का नगला थानाल राम निवासी ग्राम बरी का नगला थानाोगआगएल राम निवा स ी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोदक�उ��े आकर एक लिखित तहरीर कि मेरा भाई विनोद उ�की ग्राम बरी का नगला थानाम सिंह पु्र कोमिल राम निवासी ग्राम बरी का नगला थानाृयुह पुत्र क त ो मिल राम निवासी ग्राम बरी का नगला थानागयी ग्राम बरी का नगला थाना.......…"

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After the lodging of the aforesaid First Information Report, the deceased’s father Girwar son of Khanjan Lal resident of village Bajhera, Police Station – Usanwa, District Budaun after the postmortem of the dead body submitted a typed letter dated 13.11.1990 before the Superintendent of the Police with the following version:-

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" म सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाैं व मेरा भाई दौङकर गए और उसके बचाव केग्राम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाबझे आक र एक लिखित तहरीर कि मेरा भाई विनोदाथा�ाउ�ावांसिजल र ा म निवासी ग्राम बरी का नगला थाना Budaun कारह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थाना�े आकर एक लिखित तहरीर कि मेरा भाई विनोदवाल र ा म निवासी ग्राम बरी का नगला थानाह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाूँ. म सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाैं व मेरा भाई दौङकर गए और उसके बचाव के�े आकर एक लिखित तहरीर कि मेरा भाई विनोद अप�ी ग्राम बरी का नगला थानाल राम निवासी ग्राम बरी का नगला थानाड़की ग्राम बरी का नगला थानादुगा�वती ग्राम बरी का नगला थानाकी ग्राम बरी का नगला थानाशादी ग्राम बरी का नगला थानाअर�ाकरी ग्राम ब री का नगला थाना डे आकर एक लिखित तहरीर कि मेरा भाई विनोदढ़ साल पहले विनोद�ाल राम निवासी ग्राम बरी का नगला थानापह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोद सिव�ोद पुत्रकोसिम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना सि�वा�ी ग्राम बरी का नगला थानाबरी ग्राम बरी का नगला थानाका�गल र ा म निवासी ग्राम बरी का नगला थानाथा�ाउझा�ी ग्राम बरी का नगला थानासिजल र ा म निवासी ग्राम बरी का नगला थाना Budaun को की ग्राम बरी का नगला थानाथी ग्राम बरी का नगला थाना. शादी ग्राम बरी का नगला थानाम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाें उसकी धोती में आग लग गयी जिसकी सूचना हमारीम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाैं व मेरा भाई दौङकर गए और उसके बचाव के�े आकर एक लिखित तहरीर कि मेरा भाई विनोदह पुत्र कोमिल राम निवा स ी ग्राम बरी का नगला थानाै�यतके आकर एक लिखित तहरीर कि मेरा भाई विनोदम सिंह प ुत ्र कोमिल राम निवासी ग्राम बरी का नगला थानाासिबककाफी ग्राम बरी का नगला थानादा�दह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोदज़ दिया थासिदयाथा परन्तुसिव�ोदपुत्रकोसिम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना वउ�के आकर एक लिखित तहरीर कि मेरा भाई विनोदभाई विनोददे आकर एक लिखित तहरीर कि मेरा भाई व िनोदें उसकी धोती में आग लग गयी जिसकी सूचना हमारीद्र, झंडाम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना , राम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानासि�ंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थाना, बी ग् र ाम बरी का नगला थानावल राम निवासी ग्राम बरी का नगला थानापुत्रगण कोमिल व उसके ससुर कोमिल पुत्र रमणी व सासकोसिम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना वउ�के आकर एक लिखित तहरीर कि मेरा भाई विनोद��ुरकोसिम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना पुत्ररम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाण कोमिल व उसके ससुर कोमिल पुत्र रमण ी व सासव�ा� �ो�वती ग्राम बरी का नगला थानापत्�ी ग्राम बरी का नगला थानाकोसिम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना दा�दह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोदज़ दिया थाके आकर एक लिखित तहरीर कि मेरा भाई विनोदऊपर�ाराजरह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोदऔरबराबर उपरोक्तव्यसिक्तम सिंह पुत् र कोमिल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोदी ग्राम बरी का नगला थानाल राम निवासी ग्राम बरी का नगला थानाड़की ग्राम बरी का नगला थाना�े आकर एक लिखित तहरीर कि मेरा भाई विनोदएकभैं व मेरा भाई दौङकर गए और उसके बचाव के�व५ हजार रपये नकद लेन कोह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाजाररपये आकर एक लिखित तहरीर कि मेरा भाई विनोद�कदल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोद�को म सिंह पुत् र कोमिल राम निवासी ग्राम बरी का नगला थाना - म सिंह पुत् र कोमिल राम निवासी ग्राम बरी का नगला थानाजोरडाल राम निवासी ग्राम बरी का नगला थानाते आकर एक लिखित तहरीर कि मेरा भाई विनोदरह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोद. जबप्राथी ग्राम बरी का नगला थाना�कोसिकस्�ाम सिंह पुत्र कोमिल र ा म निवासी ग्राम बरी का नगला थानाल रा निवासी ग्राम बरी का नगला थानाू म ह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाुआतोम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाैं व मेरा भाई दौङकर गए और उसके बचाव के�े आकर एक लिखित तहरीर कि मेरा भाई विनोद जाकर�म सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाझायापरन्तुबाज�ह पुत्र कोमिल राम निवास ी ग्राम बरी का नगला थानांआये आकर एक लिखित तहरीर कि मेरा भाई विनोद. सिद�ांक 13.11.९० को प्रह्लादकोप्रह्लाद पुत्रम सिंह पुत्र क ो मिल राम निवासी ग्राम बरी का नगला थानाह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थाना�सि�वा�ी ग्राम बरी का नगला थानाबारी ग्राम बरी का नगला थाना�गल र ा म निवासी ग्राम बरी का नगला थानाथा�ाउझा�ी ग्राम बरी का नगला थाना�े आकर एक लिखित तहरीर कि मेरा भाई विनोदम सिंह पुत् र कोमिल राम निवासी ग्राम बरी का नगला थानाे आकर एक लिखित तहरीर कि मेरा भाई विनोदे आकर एक लिखित तहरीर कि मेरा भाई विनोदगांवआकरबताया सिकतुम्ह पुत्र कोमिल र ा म निवासी ग्राम बरी का नगला थानारी ग्राम बरी का नगला थानाल राम निवासी ग्राम बरी का नगला थानाड़की ग्राम बरी का नगला थानादुगा�वती ग्राम बरी का नगला थानाकोसिव�ोद, दे आकर एक लिखित तहरीर कि मेरा भाई व िनोदें उसकी धोती में आग लग गयी जिसकी सूचना हमारीद्र, झंडाम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना , राम सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानासि�ंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थाना,

¶13

¶14

वी ग् र ाम बरी का नगला थानाबल राम निवासी ग्राम बरी का नगला थाना, कोसिम सिंह पुत्र कोमि ल राम निवासी ग्राम बरी का नगला थाना , �ो�वती ग्राम बरी का नगला थाना�े आकर एक लिखित तहरीर कि मेरा भाई विनोदकल राम निवासी ग्राम बरी का नगला थानासिद�ांक 12.11.९० को प्रह्लादको११बजे आकर एक लिखित तहरीर कि मेरा भाई विनोदसिद�म सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाें उसकी धोती में आग लग गयी जिसकी सूचना हमारी जल र ा म निवासी ग्राम बरी का नगला थानाकरम सिंह पुत्र कोमिल र ा म निवासी ग्राम बरी का नगला थानारडाल र ा म निवासी ग्राम बरी का नगला थानाह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाै. प्राथी ग्राम बरी का नगला थाना�के आकर एक लिखित तहरीर कि मेरा भाई विनोद�ाथबड़ाअन्यायह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाुआह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाै. प्राथी ग्राम बरी का नगला थाना� था�े आकर एक लिखित तहरीर कि मेरा भाई विनोद गयापरन्तुप्राथी ग्राम बरी का नगला थाना�की ग्राम बरी का नगला थानासिरपोट�दज��ह पुत्र कोमिल राम निवास ी ग्राम बरी का नगला थानांकी ग्राम बरी का नगला थाना. अतः प्रार्थी कीप्राथी ग्राम बरी का नगला थाना�की ग्राम बरी का नगला थाना सिरपोट�दज�करउपरोक्तव्यसिक्तयों के विरुद्ध कानूनी कार्यवाही कीके आकर एक लिखित तहरीर कि मेरा भाई विनोदसिवरुद्ध कानूनी कार्यवाही कीका�ू�ी ग्राम बरी का नगला थानाकाय�वाह पुत्र कोमिल राम निवास ी ग्राम बरी का नगला थाना की ग्राम बरी का नगला थाना जाये आकर एक लिखित तहरीर कि मेरा भाई विनोद."

¶15

After registering the case, the matter was investigated by the Investigating Officer Shri K.K. Singh and charge sheet under Section 306 IPC (Ext. 12) was submitted against the present accused appellant Vinod alleging therein that the deceased Durgawati committed suicide being aggrieved with the harassment meted out to her by her husband Vinod out of his illicit relationship with a girl of the village namely Seema. Thereafter, an amended charge sheet under Section 304-B, alternate Section 302 and 498A of IPC and under Section 3/4 of the DP Act was filed against the present accused appellant Vinod in compliance of the order dated 06.10.2016 passed on the application given by the prosecution side.

¶16

The learned trial court after examining evidence adduced by the prosecution as well as the defence evidence led by the accused appellant has found the appellant guilty of the offences punishable under Sections 304-B, 498A and Section 4 of the Dowry Prohibition Act and convicted and sentenced the appellant to serve out the punishment by the impugned judgment and order as detailed above in para – 1 of this judgment.

¶17

The learned counsel for the accused appellant submits that the learned court below has passed the impugned judgement and order of the conviction and sentence ignoring the very cogent and specific evidence led by the defence witness Nem Chand. This witness Nem Chand has specifically stated that at the time of the incident Vinod was not in the village, he had come to Budaun for labour work. He has also stated during the trial that he never heard that any demand of dowry was made by the deceased’ s husband or any harassment or torture for dowry was meted out to the deceased.

¶18

¶19

It is also submitted by the learned counsel for the accused appellant that initially the charge sheet was submitted under Section 306 IPC by the Investigating Officer alleging therein that the appellant Vinod was having illicit relationship with a girl of the village and that is why the deceased has committed suicide. Later on, the charge sheet was submitted against the accused appellant under Sections 304-B, alternative Section 302 and 498A IPC with Sections 3/4 of the DP Act. The learned trial court has relied upon the subsequent charge sheet ignoring the charge sheet submitted under Section 306 IPC without recording any reason as to why two different charge sheets were submitted by the Police for one and the same offence. The learned counsel for the accused appellant also submits that the accused appellant has committed suicide of her own and the accused appellant had not abetted or instigated her to do so. It is also submitted by the learned counsel for the appellant that no harassment or cruelty of any kind was meted out to the deceased. The sentence awarded by the learned trial court is very excessive and no such severe punishment of ten years’ rigorious imprisonment ought to have been awarded by the learned trial court in view of the facts and circumstances of this case.

¶20

The learned counsel for the appellant also submits that the learned trial court has not relied upon the statements of the PW-1 and PW- 2 who have deposed in favour of the accused appellant that "घट�ाके आकर एक लिखित तहरीर कि मेरा भाई विनोद�म सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानायसिव�ोद म सिंह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाजदूरी ग्राम बरी का नगला थानाकर�े आकर एक लिखित तहरीर कि मेरा भाई विनोद Budaun गयाथा." The learned counsel for the appellant also submits that the learned trial court has not taken into consideration the facts and circumstances of this case as to whether the deceased died of her own due to accidental burn injuries or she died due to fire set on by the accused side, rather, the learned trial court has escaped itself from ascertaining this point by entering into the deeper scrutiny of the facts and evidence available on record and has observed in its impugned judgement as thus:-

¶21

" सिवसिध�ु�ारम सिंह पु त ्र कोमिल राम निवासी ग्राम बरी का नगला थानाृकाकोअसिभयुक्तपक्ष द्वारा जलाया गया अथवा मृतकाद्वाराजल र ा म निवासी ग्राम बरी का नगला थानायागयाअथवाम सिंह पु त ्र कोमिल राम निवासी ग्राम बरी का नगला थानाृका

¶22

स्वंयजल राम निवास ी ग्राम बरी का नगला थाना , यह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानासिबँदुधरा३० को प्रह्लाद४ बी भबी ग्राम बरी का नगला थानाभ. दं . �ं. के आकर एक लिखित तहरीर कि मेरा भाई विनोदसिल राम निवासी ग्राम बरी का नगला थानाए�ारवा��ारवा�

¶23

�ह पुत्र कोमिल राम निवास ी ग्राम बरी का नगला थानांह पुत्र कोमिल राम निवासी ग्राम बरी का नगला थानाै."

¶24

¶25

Thus, it is evident form the above quoted para that the learned trial court has proceeded in this matter to convict and punish the accused appellant only on the basis of the statutory provision provided in Section 304 B of the Indian Penal Code. The learned trial court has not applied its judicial mind to the facts and evidence available on the record of this case. Not only this the learned trial court has also tried its level best to fill up the lacunas in the prosecution case, which is not the duty of the Court. It is the case in defence that the deceased died due to the accidental burn injuries while cooking food on the stove and the stove was present there at the place of the incident but that stove was not taken in possession by the Investigating Officer and in a mechanical manner the charge sheet under Section 304 B along with other sections of the DP Act has been submitted against the accused appellant only on the basis of the availability of an iron kundi, burnt soil and a pipiya cane tel . The availability of an iron kundi, burnt soil and a pipiya cane tel can not be said to be a cogent and sufficient evidence to prove that the deceased died to burn injuries caused by the accused side and it cannot be said that there could not have been an accidental burn injury because an iron kundi, burnt soil and a pipiya cane tel were available there. So far as pipiya cane tel is concerned it is an item always available where stove is used for cooking meal. The learned trial court has also overlooked and oversighted the statement of the doctor, though recorded in the impugned judgement. The doctor has deposed that "….म सिंह पु्र कोमिल राम निवासी ग्राम बरी का नगला थानाृका त के आकर एक लिखित तहरीर कि मेरा भाई विनोदशरी ग् र ाम बरी का नगला थाना �े आकर एक लिखित तहरीर कि मेरा भाई विनोदकोई विनोदगंध�ह पुत्र कोमिल राम निवास ी ग्राम बरी का नगला थानांआरह पुत्र कोमिल राम निवास ी ग्राम बरी का नगला थानाथी ग्राम बरी का नगला थाना" It is evident from this assertion of the doctor that the incident was due to accidental burn injury and had it been caused by the accused side by pouring or throwing oil on the deceased, certainly there would have been coming out smell of kerosene oil from the dead body of the deceased. Thus, the view taken by the learned Trial Court that the deceased died due to fire set on her by the accused is not correct.

¶26

The learned counsel also submits that the Regulation of Police Manual, para 115 was not complied with. Marriage was not new one. Rather it was of more than six months old and for this period neither deceased was

¶27

¶28

bride nor convict appellant was bride-groom, condition precedent for offence punishable under Section 4 D.P. Act. Sentence was awarded at a time for offence punishable under Section 498-A as well as Section 304-B I.P.C., whereas offence and sentence for offence punishable under Section 304-B is graver for an offence punishable under Section 498-A I.P.C., hence there required no separate sentence for offence punishable under Section 498-A I.P.C. as well as Section 3/4 D.P. Act, but it was anxiety of trial Judge, who sentenced for both the above offences separately.

¶29

The circumstances, under which this occurrence of accident took place and which was said by convict appellant in his statement as well as by defence witnesses in their testimony that it was a sheer accident with no demand of dowry or cruelty with regard to it and unfortunately she could not be saved and died on spot, were not taken into consideration in appreciation of evidence and passing of sentence order. Hence, the appeal is against the judgment of conviction as well as quantum of sentence, with a prayer for mild sentence, if any, in above facts and circumstances.

¶30

On the other hand, the learned AGA has supported the impugned judgment and order passed by the learned trial court and has submitted that the learned trial court has did it best to analyse the facts and evidence available on record and has rightly concluded and found the accused appellant guilty of the offences punishable under Section 304-B of the IPC.

¶31

It is relevant to mention here that section 304B of I.P.C. was inserted by Act No. 43 of 1986 w.e.f. 19.11.1986 that:-

¶32

“1. Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

¶33

¶34

There is an explanation that for the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).”

¶35

Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

¶36

The Apex Court in Pathan Hussain Basha Vs. State of Andhra Pradesh, AIR 2012 SC 3205 has propounded that if a married woman dies in unnatural circumstances at her matrimonial home within seven years from her marriage and these are allegations of cruelty or harassment upon such married woman for or in connection with demand of dowry by the husband or relatives of the husband, the case would squarely come under "dowry death" and there shall be a presumption against the husband and the relatives.

¶37

The Apex Court in Satbir Singh Vs. State of Punjab, AIR 2001 SC 2828 has propounded that the prosecution under section 304B of I.P.C. cannot escape from the burden of proof that the harassment to cruelty was related to the demand for dowry and such was caused "soon beore her death". The word "dowry" has to be understood as it is defined in section 2 of the Dowry Prohibition Act,1961. Thus, there are three occasions related to dowry, i.e. before marriage, at the time of marriage and at an unending period. The customary payment in connection with the birth of child or other ceremonies, are not involved within the ambit of "dowry".

¶38

The Apex Court in many cases has propounded that where the evidence revealed that accused-husband killed deceased-wife for not satisfying his dowry demand but nothing on record to show involvement of co-accused in-laws with the offence committed by the accused, co-accused in-laws are not guilty of offence under sections 304B I.P.C.

¶39

The Apex Court in Kashmir Kaur Vs. State of Punjab, AIR 2013 SC 1039 has propounded that in a case of trial for dowry death the essential ingredients to attract the provisions of section 304B I.P.C. for establishing

¶40

¶41

offence are (a) that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry, (b) the death of the deceased woman was caused by any burn or bodily injury or some other circumstance, which was not normal, (c) such death occurs within seven years from the date of her marriage, (d) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband, (e) such cruelty or harassment should be for or in connection with demand of dowry, and (f) it should be established that such cruelty and harassment was made soon before her death.

¶42

The Apex Court in Banshi Lal Vs. Hate of Haryana, AIR 2011 SC 691 has propounded that the court has to analyse the facts and circumstances as leading to death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. Meaning thereby cruelty or harassment with regard to demand of dowry soon before death is a crucial ingredient to be proved by prosecution before attracting any provisions of section 304B I.P.C.

¶43

Apex Court in Mustafa Shahdal Shaikh Vs. State of Maharashtra, AIR 2013 SC 851 has propounded that "soon before death" means interval between cruelty and death should not be much. There must be existence of a proximate and live links between the effect or cruelty based on dowry demand and the concerned death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.

¶44

This has again be reiterated by Apex Court in Kaliyaperumal Vs. State of Tamil Nadu, AIR 2003 SC 3828 that the expression 'Soon before her death" used in the substantive section 304B I.P.C. and section 113B of the Evidence Act is present with the idea of proximity text. No definite period has been indicated and the expression "soon before hear death" is not defined. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the

¶45

¶46

expression 'soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.

¶47

Regarding presumption under section 113B of the Evidence Act in this very ruling the Apex Court has propounded that the presumption shall be raised only on proof of the following essentials:-

¶48

The question before the court must be whether the accused has committed the dowry death of a woman.

¶49

The woman was subjected to cruelty or harassment by her husband or his relatives.

¶50

Such cruelty or harassment was for, or in connection with, any demand for dowry.

¶51

Such cruelty or harassment was soon before her death.

¶52

Though, the Apex Court has visualised that direct ocular testimony is rarely available in dowry death case and in most of such offence direct evidence is hardly available and such cases are usually proved by circumstantial evidence. This section as well as section 113B of the Evidence Act enact a rule of presumption i.e. if death occurs within seven years of marriage in suspicious circumstances. This may be caused by burns or any other bodily injury. Thus, it is obligatory on the part of the prosecution to show that death occurred within seven years of marriage. If the prosecution would fail to establish that death did not occur within seven years of marriage, this section will not apply.

¶53

Hence the present case is to be scrutinized in view of above settled principle of law and factual evidence proved on record.

¶54

Before going any further, it would be relevant to mention here that section 113-B of Indian Evidence Act, 1872, provides that when the question is whether a person has committed the dowry death of a woman and it is

¶55

¶56

shown that soon before her death such woman had 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. The explanation to the section provides that expression 'dowry death' shall have the same meaning as in section 304B of IPC. Section 304B of the IPC defines 'dowry death' and provides punishment for said offence. Section 304B IPC provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise, than under normal circumstances, within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any other relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death.

¶57

Sub-section 2 of section 304B further provides that whoever commits dowry death shall be punished for imprisonment for a term which may not be less than seven years but which may extend to imprisonment for life. It is relevant to mention here that section 498A provides punishment for an offence of cruelty by husband or a relative of husband of a woman.

¶58

The Hon'ble Supreme Court in the case of Satvir Singh and others vs. Sate of Punjab and another, (2001) 8 SCC 633 has observed as under:-

¶59

"20. Prosecution, in a case of offence under Section 304B IPC cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and also that such cruelty or harassment was caused soon before her death. The word dowry in Section 304B has to be understood as it is defined in Section 2 of the Dowry Prohibition Act, 1961. That definition reads thus:

¶60

"2. In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly -

¶61

(a) by one party to marriage to the other party to the marriage; or

¶62

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

¶63

¶64

at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”

¶65

Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.

¶66

It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked. But it should have happened soon before her death. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words soon before her death is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide the court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval

¶67

¶68

in that particular case was sufficient to snuff its cord from the concept "soon before her death".

¶69

Their Lordships of Hon'ble Supreme Court in the case of Rajinder Singh v. State of Punja, (2015) 6 SCC 477 has observed as under:-

¶70

"7. The primary ingredient to attract the offence under Section 304B is that the death of a woman must be a "dowry death"."Dowry" is defined by Section 2 of the Dowry Prohibition Act, 1961, which reads as follows:-

¶71

"2. Definition of "dowry".-In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

¶72

(a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

¶73

Explanation I.- [***] Explanation II.-The expression "valuable security" has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)."

¶74

A perusal of this Section shows that this definition can be broken into six distinct parts:

¶75

(1) Dowry must first consist of any property or valuable security - the word "any" is a word of width and would, therefore, include within it property and valuable security of any kind whatsoever.

¶76

(2) Such property or security can be given or even agreed to be given. The actual giving of such property or security is, therefore, not necessary.

¶77

¶78

(3) Such property or security can be given or agreed to be given either directly or indirectly.

¶79

(4) Such giving or agreeing to give can again be not only by one party to a marriage to the other but also by the parents of either party or by any other person to either party to the marriage or to any other person. It will be noticed that this clause again widens the reach of the Act insofar as those guilty of committing the offence of giving or receiving dowry is concerned.

¶80

(5) Such giving or agreeing to give can be at any time. It can be at, before, or at any time after the marriage. Thus, it can be many years after a marriage is solemnised.

¶81

(6) Such giving or receiving must be in connection with the marriage of the parties. Obviously, the expression "in connection with" would in the context of the social evil sought to be tackled by the Dowry Prohibition Act mean "in relation with" or "relating to".

¶82

The ingredients of the offence under Section 304B have been stated and restated in many judgments. There are four such ingredients and they are said to be:-

¶83

“(a) death of a woman must have been caused by any burns or bodily injury or her death must have occurred otherwise than under normal circumstances;

¶84

(b) such death must have occurred within seven years of her marriage;

¶85

(c) soon before her death, she must have been subjected to cruelty or harassment by her husband or any relative of her husband; and

¶86

(d) such cruelty or harassment must be in connection with the demand for dowry."

¶87

Now, this Court has to examine as to whether the basic ingredients to attract the provisions of section 498-A and 304-B IPC have been proved by the prosecution. First ingredient under Section 304-B IPC is that the death of a woman should be caused by burn or fatal injury or otherwise than under a normal circumstance. In order to prove this ingredient, prosecution has produced prosecution witnesses of fact PW-1 Urmaan and PW- 2 Siyaram, who had been hostile and PW-3 who is the brother of the deceased and PW-4 who is the cousin brother of the deceased, have supported the prosecution

¶88

¶89

version and stated that their sister was done to death by the accused because the demand made by him for Rs. 5,000/- and a buffalo was not fulfilled and for this reason the accused was harassing and torturing their sister Durgawati and lastly was done to death on 12.11.1990. The SI Sangram Singh has also supported the prosecution case. However, the defence witnesses Nem Chandra son of Late Lokiram resident of village Kheda Bujurg, PS Civil Line, District Budaun has stated that the accused was not present in the village at the time of the incident and he has stated that he had heard in the village that the wife of Vinod died due to burning while cooking food. However, the learned trial court has rightly ignored the defence evidence led by Nem Chand for the reason that he is of the village of the accused and is his cousin brother in relation, therefore, there is no doubt that the first essential ingredient of Section 304-B I.P.C. is present in this case that deceased has died under unnatural circumstances.

¶90

There is no dispute regarding existence of second essential ingredient of Section 304-B I.P.C. because admittedly marriage of deceased Durgawati was performed with convict appellant and she died, owing to burn injury, sustained on 12.11.1990 at her marital house and succumbed on the same day. Admittedly, it has been said by DW Nem Chand that marriage of the deceased was solemnised with accused about one and half year before the incident. Hence, it was a death within seven years of the marriage. This fact has not been disputed by defence.

¶91

Now, the question is whether third ingredient of Section 304-B I.P.C. relating to cruelty and harassment by husband convict appellant in connection with dowry demand and harassment of deceased soon before her death was present or not?

¶92

PW-3 Ramveer and PW-4 Net Ram have stated in their testimony that their sister Durgawati was being subjected to cruelty with regard to demand for additional dowry for Rs. 5,000/- and one bufallo. They have also stated that they tried to persuade them not to harass their sister but they did not listen to their advice and done her to death. Regarding this testimony, there

¶93

¶94

is no contradiction, embellishment or exaggeration in her examination-incross.

¶95

Regarding this examination-in-chief, there is no cross examination by learned counsel for defence. Rather, it was fully intact and uncontroverted. Learned counsel has vehemently argued about statement that no demand was made at the time of marriage and marriage was under joyful atmosphere. That is saying of this witness too. But subsequent development, resulting demand of dowry and cruelty with regard to it, was said by this witness and the same was intact.

¶96

PW-5 is Dr. B.R. Gupta, who has formally proved death of Durgawati. He has stated that the death of deceased possibly occurred in day time at about 11:00 A.M. on 12.11.1990. There was bleeding seen from the nose and mouth of the deceased and from anal gate stool has come out. This symptom might have appeared due to asphyxia. This symptom is possible in case of burning the deceased alive. The ante-mortem injuries caused to the deceased were sufficient. However, in cross-examination he has stated that no smell was coming out from the body of the deceased. There is no contradiction to the statement of the PW-5.

¶97

PW-6 Sangram Singh, the Investigating Officer has proved his investigation and submission of charge sheet, under his handwriting and signature. He has formally proved the subsequent charge sheet filed against this accused. This witness has categorically said that the deceased has supported the prosecution case during the trial and in cross-examination also he was firm on the evidence collected by him during the investigation. He has stated categorically that the stove was present there but it was not taken into possession because it was not in use.

¶98

Hence, upon overall appreciation of above evidence, all ingredients, required under Section 304-B I.P.C., were successfully proved by prosecution. Now, burden was over defence to rebut presumption under Section 113-B of Evidence Act but this burden was not successfully

¶99

¶100

discharged by the accused side although a plea of ali-bai was taken but it was not found reliable by the learned trial court and was discarded by it.

¶101

Apex Court in State Of Maharashtra Etc. Etc vs Sukhdeo Singh And others, Death Reference Case No. 1 of 1989 and Criminal Appeal No. 17 of 1990, decided on 15.7.1992, has observed as under:-

¶102

"Section 313 of the code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words `shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him, which has surfaced on record."

¶103

In the present case, trial Judge has taken into consideration the answer given under Section 313 Cr.P.C. to explain regarding incriminating evidence proved by prosecution and on appreciation of evidence, the same is in consonance with evidence on record.

¶104

Learned counsel argued that after the marriage of more than one and half year, neither deceased remained bride nor convict appellant as bridegroom, which is condition precedent for offence punishable under Section of 4 D.P. Act. This Court is not going to accept above argument because the deceased has admittedly died during within seven years of her marriage. Trial court has concluded and passed the judgment of conviction well within appreciation of fact and evidence placed on record. There is no illegality or perversity in judgment. Hence, regarding conviction this appeal merits its dismissal.

¶105

¶106

So far as sentence regarding appellant is concerned, it is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case.

¶107

It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law. Further, it is expected that Courts would operate the sentencing system so as to impose such sentence which reflects conscience of society and sentencing process has to be stern where it should be. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against individual victim but also against society to which criminal and victim belong. Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to society's cry for justice against the criminal'. [Vice Sumer Singh Vs. Surajbhan Singh and others, (2014) 7 SCC 323, Sham Sunder Vs. Puran, (1990) 4 SCC 731, M.P. Vs. Saleem, (2005) 5 SCC 554, Ravji Vs. State of Rajasthan, (1996) 2 SCC 175].

¶108

It is true that legislature has not provided fine to be imposed for offence punishable under Section 304-B and in present case, learned Sessions Judge has imposed fine of total Rs.10, 000/-. Hence, regarding fine, this sentence is against provisions of Section 304-B I.P.C., therefore, that part is to be deleted.

¶109

¶110

Admittedly, deceased has died due to burn injuries as discussed above at her marital home within a period of seven years. However, it has not come on record that any NCR or FIR was ever lodged by the parents of the deceased in connection with the alleged harassment meted out to her by the accused appellant or his family members. In this case the FIR was at once lodged by the younger brother of the accused on the information given by his sister and it was stated in the FIR that the deceased met to an accidental burn injuries and died. These all shows that demand of dowry and dowry death, as above, was committed, but convict appellant was with not that great mens rea requiring that much severe punishment awarded to him. Rather, rigorous imprisonment of eighrt years will suffice the end of justice.

¶111

Learned counsel for defence argued that separate sentences for offence under Section 498-A and 304-B I.P.C. is not needed, as was held by apex court in Smt. Shanti and another vs. State of Haryana; (1991) 1 Supreme Court Cases 371. It is not rule of law because offence under Section 498-A as well as 304-B are substantive offence and in that law itself the word ‘may’ has been used, which means not must and in present case there is direction for concurrent running of sentences, which is not illegal. Regarding sentence under Section 4 D.P. Act, the same is well within facts, evidence and law placed on record. Hence, appeal regarding sentence is partly to be allowed regarding imposition of fine under Section 304-B I.P.C. and award of sentence of ten years rigorous imprisonment. Hence, the appeal is partly allowed.

¶112

Judgment of conviction is confirmed . It is also evident from the record that the accused has remarried after the incident and he has small children and family to support. The incident has taken in the year 1990 and since then the sword of punishment has been hanging over the head of the appellant a lot of mental agony by now would have been suffered by the accused appellant. Regarding sentence, the imposition of fine and rigorous imprisonment of ten years and additional imprisonment in default of payment of fine is being substituted as below:-

¶113

¶114

“Convict appellant is sentenced with rigorous imprisonment of eight years under Section 304-B I.P.C., two years rigorous imprisonment with fine of Rs. 2,000/- under Section 498-A IPC and in default of payment of fine two months additional imprisonment and for the offence punishable under Section 4 D.P. Act one year’s rigorous imprisonment with fine of Rs. 2,000/- and in default of payment of fine one month additional imprisonment with a direction for concurrent running of sentences and adjustment of previous incarceration in this case.”

¶115

From a perusal of the order dated 1.09.2014 passed by the learned Court below rejecting the bail application of the accused appellant annexed at page Nos. 34 and 35, it reveals that accused appellant was arrested pursuant to the incident dated 12.11.1990 and was released on bail on 29.03.1991 after languishing in jail for about four months and thereafter, he did not appear in trial proceeding and was declared absconder. Thereafter, on 10.02.2014 he was arrested and sent to jail. The accused appellant will be released from jail on completion of remaining sentence of eight years’ rigorious imprisonment as directed by this Court giving adjustment of the previous incarceration served out by the appellant.

¶116

The appeal is partly allowed and the appellant will be released from jail on completion of eight years of the imprisonment as stipulated above in this judgment.

¶117

Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate change of warrant of sentence, as above, and follow up.

¶118

Order Date :- 15.12.2020 LBY

¶119

Vinod v. State of U.P.

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Vinod v. State of U.P.

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