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2007(1) Supreme 191
SUPREME COURT OF INDIA
(From Allahabad High Court)
Dr. Arijit Pasayat and S.H. Kapadia, JJ.
Virendra Kumar—Appellant
versus
State of U.P.—Respondent
Criminal Appeal No. 69 of 2007
(Arising out of SLP (Crl.) No. 435 of 2006)
Decided on 16-1-2007
Counsel for the Parties :
For the Appellant : S.B. Maheshwari, R.K. Maheshwari, Rishi Maheshwari, Ms. Tarannun Ansari and Raj Kumar Kaushik, Advocates.
For the Respondent : Ratnakar, Sr. Advocate, Atique Rahman, Javed M. Rao, Shahid Ali Rao and Ms. Musharrat Chaudhary, Advocates.
Held :So far as the question as to the effect of no charge having been framed under Section 306 is concerned the effect of Section 222(2) and Section 464 of Cr. P.C. cannot be lost sight of.(Para 11)
There is no dispute that the circumstances are relatable to Section 306 IPC which were clearly put to the appellant during his examination under Section 313 of Cr.P.C. (Para 13)
Particular reference may be made to question Nos. 4, 7, 8, 9, 16 and 22 in the examination under Section 313 of the Cr.P.C. and the answers given by the appellant. The incriminating materials relating to torture, harassment and demand of dowry were specifically brought to the notice of the appellant during such examination. (Para 14)
In support of his stand, the appellant pleaded that deceased had committed suicide and for this purpose one witness DW1 was examined. It was specifically stated by him that the appellants father had asked him to inform PW2 that the deceased had committed suicide and accordingly he had informed PW2. Even in the absence of a presumption in terms of Section 113- A of the Evidence Act it is to be noted that the prosecution version was specific to the extent that the deceased was being taunted by the appellant for not bringing adequate dowry and/or being of dark complexion. The humiliation and harassment meted out was described by the deceased when she had gone to her maternal uncles house. The evidence of PW-1 i.e. neighbour of the accused-appellant is also significant. It is clearly stated that the appellant used to beat his wife i.e. deceased and on the night of occurrence, when he was sitting on his roof-top he had heard cries of the deceased being beaten, went to the house of the appellant and he was turned away by the appellant who said that it was their internal affair and he should mind his own work. To similar effect was the evidence of PW4- another neighbour.(Para 15)
The doctor who conducted the autopsy i.e. PW6, had noted many major injuries in different parts of body including one mark on the neck. Therefore, as rightly contended by learned counsel for the respondent-State, even without reference to Section 113A of the Evidence Act the prosecution version has been established. (Para 16)
Above being the position there is no merit in this appeal which is accordingly dismissed.(Para 17)
JUDGMENT
Dr. Arijit Pasayat, J.—Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Allahabad High Court allowing the appeal filed by the appellant in part by setting aside his conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC) and instead convicting him for offence punishable under Section 306 IPC. He was sentenced to undergo imprisonment for ten years. Appellant and another accused, namely, Jai Narain faced trial for alleged commission of offence punishable under Section 302 IPC. During pendency of the appeal before the High Court aforesaid Jai Narain died and, therefore, the appeal stood abated so far as he is concerned.
3. Background facts in a nutshell are as follows:
The informant Sheo Karan (PW-1)s niece Smt. Pushpa (hereinafter referred to as deceased) was married to the appellant Virendra Kumar, son of Jai Narain in village Chirli, Police Station Ghatampur. Immediately after the marriage Virendra Kumar,, his brother Suresh Kumar used to humiliate Smt. Pushpa and her other family members for bringing inadequate dowry and for being of a dark complexion. They even publicly abused the informant in village Chirli and threatened to end their relations with Smt. Pushpa, the deceased. This public humiliation was witnessed by Sahdev Singh (PW-3) and Prahlad Singh (PW-5), residents of Rajepur and Suresh, Bhanu Pratap Dixit (PW-4) and many others of village Chirli, About one and a half month prior to the fateful event Anil Kumar brought Smt. Pushpa to her Sasural in village Chirli. On 7.10.1982 at about 7 A.M. on information being sent by Bhanu Pratap Dixit (PW-4), the informant Sheo Karan (PW-2) reached village Chirli where he found the dead body of Smt. Pushpa. Four fingers of her right hand were burnt and on her hands and legs there were some marks of injuries. There was also a deep mark of hanging on the neck which showed that Smt. Pushpa had been beaten and thereafter done to death. Although the appellant Virendra Kumar was present in the village, from the morning of the fateful day (7.10.1982) he was absent. Hence it was inferred by the informant that appellant in conspiracy with his elder brother Suresh had murdered Smt. Pushpa after taking help of some accomplices. The report to this effect was lodged by Sheo Karan Shukla on 7.10.1982 at police out post Sarh, police station Ghatampur, District Kanpur.
4. However, prior to this report, on 7.10.1982 at about 10 A.M., the co-accused Jai Narain gave an information at the police chauki Sarh of police station Ghatampur that in the night intervening 6-7 October, 1982, the deceased Smt. Pushpa placed her dhoti in an iron ring on the roof and thereafter she tied her own neck with the same and committed suicide and her body was still hanging from the ring on that oof with the Sari. On getting this information, the first investigating officer SI Ajab Singh (P.W.-8) reached the house of Jai Narain. He found the dead body hanging from a ring in the Dhanni in the western Verandah by means of a Dhoti, which was tied on the neck. The body was taken down and inquest was performed on it by SI Ajab Singh. The opinion of the inquest witnesses was taken and also the body was sent along with the concerned papers for post mortem through Constables Kailash Chandra and Radhey Shyam. The injuries on the dead body were indicated in the inquest. The place where the body was found hanging was inspected by SI Ajab Singh (P.W.-8) who also prepared site plan. He recorded the statement of Jai Singh and his wife. As it had become late, the investigating officer returned to the police station. Thereafter the investigation was conducted by SSI Jogendra Singh (P.W.- 9). As Smt. Pushpa had tied the knot with the Dhoti that she was wearing, hence it was not taken into possession, but it was sent along with the body of the deceased for post mortem.
5. Dr. R.K. Gupta (PW-6), Medical Officer, ESI Dispensary Kan
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