Allowed

Bhaskar Nath Mishra v. State of U.P.

Allahabad HC4 Jul 2023CRLA/849/2001

Case brief

AI extract

What is this about?

The High Court allowed an appeal against conviction under dowry death provisions. The court held that the prosecution failed to prove the marriage happened within seven years of death due to contradictory witness statements and lack of evidence regarding dowry-related cruelty. Consequently, the conviction was quashed and the appellant acquitted.

What did the court decide?

Judgment and order convicting the appellant were set aside; the appellant was acquitted of charges under sections 304-B and 498-A IPC.

Bhaskar Nath Mishra Vs State of U.P. — Cheque Dishonour | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:42746

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Court No. - 13

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Case :- CRIMINAL APPEAL No. - 849 of 2001

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Appellant :- Bhaskar Nath Mishra Respondent :- State of U.P. Counsel for Appellant :- S.P.Shukla,Sudhir Kumar Singh Counsel for Respondent :- Govt.Advocate

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Hon'ble Karunesh Singh Pawar,J.

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1.Present criminal appeal has been filed against judgment and order dated 22.9.2001, passed by Special Sessions Judge, Sitapur in S.T. No.891 of 1996 (arising out of crime No.114 of 1996 of police station Maholi, district Sitapur) thereby convicting the appellant under sections 304-B and 498-A I.P.C. and sentencing him to undergo rigorous imprisonment for ten years under section 304-B I.P.C. (and no separate sentence under section 498-A I.P.C.).

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2.Heard learned counsel for the appellant, Mr. Alok Tiwari, learned A.G.A. and perused the record.

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3.The prosecution case as per written report is that sister of the informant Sudha Devi (deceased) was married with the appellant Bhaskar Nath Mishra according to Hindu rites. Brother-in-law of the informant after the marriage started demanding motor cycle in dowry. For this reason, he did not send his sister to him for the last one year. Today, in the morning, son of his aunt Guddu son of Shiv Prakaksh Mishra, residing in Maholi informed him that Sudha Devi has died. The informant along with other villagers of the village went to Neri village and saw that his sister was hanging from the roof, with rope around her neck and is dead.The sister of the informant has been killed due to dowry. The written report is Ext. Ka-1.

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Consequently, a first information report was lodged which is Ext. Ka-2. Recovery memo was prepared, which is Ext. Ka-6.

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The rope by which the deceased was hanging was seized and taken into custody by the police. The investigating officer prepared the inquest which is Ext. Ka-7 and after completing investigation has filed charge sheet. The committal order was passed on 17.8.1996. The III Addl. Sessions Judge, Sitapur has framed the charges under section 498-A read with section 304B I.P.C. against the appellant.

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In support of his case, the prosecution has produced five witnesses viz P.W.1 Jadunath, P.W.2 Jai Karan, P.W.3 Head Constable Jagdish Narain, P.W.4 C.O., Police S.N. Bhardwaj and P.W.5 Hari Shankar Tripathi, Tahsildar.

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4.P.W.1 Jadunath has stated that his daughter Sudha was married to the appellant two years before her death with the appellant. At the time of her death, she was with her in-laws. The first wife of the appellant had died. After that, he married his daughter Sudha with the appellant. She went to her matrimonial house. When his daughter came to his house, she told that the appellant was demanding motorcycle. He further stated that when the appellant went to the home of P.W.1 for taking his wife/deceased, he demanded motorcycle. P.W.1 told to the appellant that there is some difficulty in the farming for quite some time and after making arrangement, he would give it. The deceased went along with the appellant from his home. His daughter came thrice to his house and whenever she came, she told that the appellant was demanding motor cycle.

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It is further stated that the appellant did not send the deceased for about a year after Gauna Rauna. During this time, whenever the brothers of the deceased went to the house of the accused to bring the deceased, she always said that the accused used to torture her and beat her. She also said that the appellant will not let the deceased go unless motorcycle is given. Guddu, son of

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his sister who resides in Maholi came to his house and informed that Sudha has died. On this, they went to the place of the appellant where he found his daughter hanging in a dead condition.The appellant was not present. The report was written by his son at the house of the appellant and then the case was lodged at the police station.

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In his cross, P.W.1 stated that he has four sons, all living together. In the marriage, there was no demand of dowry. At the time of marriage, the deceased was 18 years old. The appellant was 40 years or 35 years old. He further stated that his daughter was educated upto Class-II. She could read and write. She never wrote letter to him. He or his sons never wrote letters. He denied the suggestion that at the time of her death, eight years had passed since the marriage of his daughter took place. He further denied that in the year 92, 93, 95 and 96, his sons had written letters to the appellant. He further stated that after eight months of her marriage, the appellant started demanding motorcycle. He did not go to see his daughter in her matrimonial home in the past one year before her death. His sons used to go. He stated that one year prior to the death of his daughter, he had no conversation with her. He denied the suggestion that he married his daughter against her wish from the appellant.

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In the house of the appellant, apart from him, his mother and one daughter from his ex wife reside. He stated that at the time of occurrence, age of the daughter of the appellant was 9, 10, 11 years. He denied the suggestion that his daughter died eight years after her marriage with the appellant. When he went to see his daughter he saw that the room was closed. He could not tell whether the room was closed from the inside or outside. He could not tell that the inquest was carried out in his presence or not. He denied the suggestion that since it was second marriage

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of the appellant, therefore, the marriage was arranged with great difficulty, hence no dowry was demanded. He further denied the suggestion that he married his daughter against her wishes and as such, his daughter committed suicide.

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P.W.2 Jai Karan is the brother of the deceased Sudha Devi. He deposed in his statement in chief that after two years of marriage, Sudha died in her matrimonial home. In the marriage, no dowry was demanded. Firstly, demand of dowry was made by the appellant at the time of Kalewa. He could not fulfill the demand and told the appellant that he is not in a position to give motorcycle, however, he assured to give motorcycle later on. In two years period of her marriage, Sudha came thrice at his place. All the three times, the appellant accompanied Sudha and took her back. On two occasions, the appellant demanded motorcycle. On one occasion, P.W.2 and on another occasion, his brother Sunil went to take Sudha, when the appellant demanded motorcycle. On the three occasions, when Sudha came to his house, she told to him and family members that the appellant used to beat her because of motorcycle and said that if her family members do not provide the motorcycle, she will not be able to survive.

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Apart from three occasions, on 4-5 times when he went to take Sudha, the appellant refused on the pretext that unless the motorcycle is given, she will not be permitted to go with him. Sudha lastly came four months prior to her death. Information of death was given by Guddu who is the son of his aunt. When Sudha was married to the appellant, then daughter of the appellant was 4-5 years old. He denied the suggestion that she was 9-10 years old. At the time of marriage, Sudha was 15-16 years old and the appellant was 30-35 years old. He stated that in the house of the appellant, there was 80 years old mother of the appellant and a daughter from his first wife. After the

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marriage and before the incident, his brother used to write letters to the appellant. In none of the letters, it has been written that the appellant was demanding motorcycle in dowry which he could not give nor it was written that his sister is tortured due to demand of dowry. He denied the suggestion that Sudha was married eight years before her death. He stated that his sister did not come to his place after four months before the incident. The inquest was performed in his presence. He signed on the inquest report without reading it. He further denied the suggestion that his sister was married against her wish as there was age difference of almost double between them. He has further denied the suggestion that due to this difference in age, she committed suicide.

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P.W.3 Head Constable Jagdish Narain is the scribe of the first information report and entry in the general diary of registration of the case. He proved the first information report as Ext. Ka-2 and copy of the G.D. as Ext. Ka-3.

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P.W.4 Circle Officer Sri S.N. Bhardwaj is the investigating officer of the case who prepared site plan and took statement of prosecution witnesses including the inquest witnesses.

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P.W.5 Harishchandra Tripathi, Tahsildar has proved panchayatnama Ext.Ka7. In his presence, the deceased was got down and after taking the rope in custody, fard was prepared.

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5.D.W.1 Jas Karan Shukla is the real brother of the deceased. He has stated that his sister was married eight years before her death. No dowry was taken in the marriage. Other sisters were also married without dowry. The deceased never told him about cruelty being committed on her or there was any demand of dowry. He and his brother Jaikaran had gone to the house of the appellant, where the appellant was present. There was some altercation between the appellant and Jaikaran. He stated that

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the deceased was not happy with the marriage of the appellant because she was too young and the appellant was too old. The deceased used to tell him about the old age of the appellant. He denied the suggestion that at the time of death, only two years of marriage had passed.

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6.The accused appellant was examined under section 313 CrPC in which he denied the prosecution story and stated that he has falsely been implicated in the case due to enmity. He stated that it was his second marriage with the deceased. At the time of marriage, he was about 40 years of age and the deceased was about 20 years of age. She was married against her wish by her parents. He never demanded any dowry.

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7.Learned counsel for the appellant submits that in the first information report, it has been stated that the deceased did not go to her parental home for the last one year prior to her death. P.W.2 has made improvement while stating that she came four months before her death. P.W.1 has not mentioned any date or month regarding marriage of the deceased or about the fact that demand of dowry was made soon before the death of the deceased. There is only demand of motorcycle allegedly by the appellant. There is no other demand. Statement regarding this demand is contradictory. According to P.W.1, demand of motorcycle was made first time after eight months of the marriage whereas according to P.W.2, the demand of motorcycle was made at the time of Kalewa itself.

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P.W.1 has seven children, four sons and three daughters. He was in extremely poor financial condition. The marriage of the appellant was solemnised under difficult condition as he had already a minor girl from his first marriage and P.W.1 was extremely poor. The date of marriage could not be proved by the prosecution. The date of birth of the deceased and the fact

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that the deceased died within seven years of her marriage also could not be proved by the prosecution whereas there is material contradiction in the statement of P.W.1 and P.W.2 on relevant aspect. D.W.1 who is also real brother of the deceased has clearly contradicted the testimony of P.W.1 and P.W.2 wherein he has stated that the marriage of the deceased had taken place with the appellant about eight years before her death. Thus, the prosecution has been unsuccessful to prove that the deceased was married with the appellant within seven years of her death and therefore, no case under section 304-B I.P.C. is made out.

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8.Mr. Alok Tiwari, learned Additional Government Advocate has opposed the submission. He has stated that the genuineness of the post mortem report has been admitted by the appellant. P.W.1 and P.W.2 both have supported the prosecution version. D.W.1 has been won over by the accused, otherwise he would have corroborated the prosecution case.

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9.Having heard learned counsel for the appellant, learned Additional Government Advocate as well as perusal of the record and the statement of P.W.1 and P.W.2, I find that there is material contradiction in the statement of both the witnesses. Both have stated that the deceased was married two years before her death. A suggestion to the contrary has been given by the defence that the deceased was married eight years before her death which was denied by P.W.1 as also by P.W.2.

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On the contrary, D.W.1 who is real brother of the deceased has clearly stated that the deceased was married eight years before her death. She never complained about demand of dowry or cruelty. The fact that the deceased was married eight years prior to her death, even this suggestion has not been given by the prosecution to D.W.1. He further denied the suggestion that at

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the time of the incident, he was residing separately from his father and brothers. Also no suggestion has been given by the prosecution to D.W.1 in his statement in chief that the deceased never told him about demand of dowry or cruelty. Apart from this, it has also come that there are material contradiction in the statement of P.W.1 and P.W.2 about the time of marriage of the deceased. No date, month or year of marriage has been stated by P.W.1 and P.W.2. Daughter of the appellant from his first wife has not been examined.

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P.W.1 in his chief has stated that he and his sons live together. His sons have never written letters. He stated in the cross that he married his daughter against her wish with the accused. He had not talked to his daughter one year prior to her death. He denied the suggestion that his daughter was married eight years prior to her death. He also denied the suggestion that since it was second marriage of the appellant, therefore, he was in great difficulty and no dowry was demanded.

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On the other hand, P.W.2 while depositing before the court has made improvement in the prosecution story and he stated that the deceased came to her parental home four months prior to her death. P.W.1 though has mentioned in his examination in chief that his daughter was not sent by the appellant one year prior to her death, however, in between, his sons used to go there. However, no date or month has been mentioned by P.W.1. The statement is quite vague.

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P.W.2 has made improvement and has stated that the deceased came home four months prior to her death. Another contradiction has been made by P.W.2 when he stated that the dowry was demanded during Kalewa.

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P.W.4 the investigating officer in his statement has admitted the fact that he has not examined the daughter of the accused who

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was the best witness to prove as to whether the deceased was subjected to cruelty relating to demand of dowry soon before her death. No explanation has been given as to why she was not examined by the investigating officer.

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A further perusal of the statement of P.W.4 shows that the suggestion was given from the side of the defence which has been denied by him that during the course of investigation, some documents/letters were given by the accused and his family members which were written by the informant and his sons as well as the nephew of P.W.1.

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A perusal of the record shows that four letters have been adduced by the defence, two of them have been proved, which shows that some letters were written by the sons and nephew of P.W.1 to the accused and in none of those letters, there was any demand of dowry or any cruelty was mentioned. A perusal of all those letters, statement of the investigating officer, contradictory statement of P.W.1 and P.W.2 clearly demonstrates that the prosecution has utterly failed to discharge its initial burden that the deceased died within seven years of her marriage.

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In the face of testimony of D.W.1 and contradictory testimony of P.W.1 and P.W.2, it is clear that the prosecution could not prove this fact that the deceased died within seven years of her marriage. Once, this aspect could not be proved by the prosecution, there is no need to prove the fact as to whether the deceased was subjected to cruelty soon before his death. However, a perusal of the statement of D.W.1 shows that the deceased was not subjected to any cruelty soon before her death. Even no suggestion has been given by the prosecution on this aspect, which again falsifies the testimony of P.W.1 and P.W.2 which is in utter contradiction to each other. There is

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demand of only one motorcycle. Hence, the fact that there is major contradiction in the statement of P.W.1 and P.W.2, coupled with the fact that the two letters filed by the defence and written by P.W.2 and one Sunil Kumar Shukla, nephew of P.W.1 and witness in the charge sheet shows that there was no demand of dowry. These letters were addressed to the accused.

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I have also taken note of the fact that the most important witness, i.e. the daughter of the accused from his first wife who was present at the time of occurrence has not been examined by the investigating officer. Thus, the prosecution has failed to prove that the deceased died within seven years of her marriage or she was subjected to any cruelty which was linked with demand of dowry and her death.

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10.In case the case of the prosecution is taken in context of provisions of Section 304-B read with section 113-B of the Evidence Act, I find that there is no evidence to show that the deceased died within seven years of her marriage. It also does not appear to show that there was any cruelty or harassment in connection with demand of dowry. If Section 304-B IPC is read together with Section 113-B of the Evidence Act, a comprehensive picture emerges that if a married woman dies under unnatural circumstances at her matrimonial home within 7 years from her marriage and there 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.

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In this case I find that there is material contradictions in the statement of P.W.1, P.W.2 vis-a-vis D.W.1 in regard to the date of marriage and demand of dowry. D.W.1 Jaskaran has stated that the marriage of the deceased who was his sister had taken

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place with the appellant about eight years before her death. He further stated that no dowry was demanded in the marriage nor there was any demand of dowry after marriage. He also stated that the deceased had never told of any sort of cruelty having been met to her at the hands of her husband or in-laws. Practically there is no evidence to show that there was any cruelty or harassment for or in connection with the demand of dowry. This deficiency in evidence is fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with the demand for dowry. (See: Kanchy Ramchander v. State of A.P. (1996 SCC (Crl.) 31). Since the prosecution failed to prove that aspect, the conviction as recorded cannot be maintained.

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Since the aforesaid basic ingredients to attract the provision under Section 304-B could not be proved by the prosecution therefore there is no occasion for this court to presume that the accused has caused the dowry death and for this reason Section 113 of the Evidence Act cannot be invoked in this case.

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The prosecution failed to examine the very important witness, i.e. the daughter of the appellant from his first wife who was residing with the deceased and was very much present at the time of her death. There is also contradiction in the statement of P.W.1 and P.W.2 qua the time of alleged demand of motorcycle as discussed above.

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13.On due consideration to the submission advanced and the evidence on record as also the reasons mentioned above, the present criminal appeal is liable to be and is hereby allowed. The judgment and order dated 22.9.2001, passed by Special Sessions Judge, Sitapur in S.T. No.891 of 1996 (arising out of

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crime No.114 of 1996 of police station Maholi, district Sitapur) is set aside. The appellant is acquitted of the charges. The appellant is on bail. He need not surrender. The bail bonds are cancelled and the sureties are discharged.

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14.Let a copy of this judgment along with the lower court record be sent to the learned trial court by the Registry.

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Order Date :- 4.7.2023

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kkb/

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Digitally signed by :- KRISHNA KUMAR BARANWAL High Court of Judicature at Allahabad, Lucknow Bench

Bhaskar Nath Mishra v. State of U.P.

Case brief

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Bhaskar Nath Mishra v. State of U.P.

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