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2017 Supreme(All) 1862
ALLAHABAD HIGH COURT
UMESH CHANDRA TRIPATHI, J.
BALRAM AND ANOTHER ….Appellants
Versus
STATE OF U.P. ….Respondent
(Criminal Appeal Nos. 4822 and 5976 of 2010, decided on 5th December, 2017)
Counsel :
I.K. Chaturvedi, Gaurav Singh, Sunil Kumar, Anil Raghav and S.P. Singh Raghav for the Appellants; A.G.A., J.B. Kesarwani and Shyam Babu Vaish for the Respondent.
Headnote:(A) Dowry Prohibition Act, 1961—Section 3/4—Dowry death—Cruelty—After three days of marriage, accused-appellant husband and his relatives started demanding Rs. 2,00,000 from deceased—Although they said to deceased that this money was being demanded for establishing curtain factory and that curtain factory will be managed by deceased—Within seven years of her marriage and she was subjected to cruelty and harassment by her husband and relatives soon before her death in connection with demand of dowry, heavy burden of proof lies upon accused to adduce evidence dislodging his guilt, beyond reasonable doubt—Appellant-husband has failed to prove beyond reasonable doubt that his wife committed suicide due to depression—Demand was definitely in connection with marriage—It is held to be case of dowry demand.
(B) Criminal Procedure Code, 1973—Section 313—Dowry death—Cruelty—Examination of accused—Post-mortem report and statement of doctor is evident that deceased was brutally beaten just before her death and she was strangulated—Statement under Section 313 Cr.P.C., accused-husband stated that deceased had committed suicide—Deceased died in same room in which appellant-husband was sleeping—It was duty of husband to explain how deceased died—Explanation of husband about death of deceased is false—Adverse inference of guilt of accused husband shall be drawn.
(C) (Indian) Penal Code, 1860—Sections 304-B, 498-A—Dowry Prohibition Act, 1961—Section 3/4—Dowry death—Cruelty—Delay in lodging of FIR—Deceased died on intervening night of 7/8.5.2007—FIR has been lodged on 12.05.2007 with delay of four days—Brother, mother and father of deceased were present at time of inquest, even though they did not move any complaint to police about demand of dowry—Delay in lodging FIR does not affect prosecution case—It may be possible that father of deceased P.W.1 may have been convinced with explanation of his son-in-law accused-husband that his daughter died in accident—But after post mortem report, when he comes to know that his daughter was brutally killed, then he may have lodged FIR—In matrimonial cases, such delay in lodging FIR is always possible — Parents of deceased always remain in various dilemmas—Inquest report has been prepared on information of applicant husband—Innocence of husband cannot be presumed—He informs police about death of his wife after 10 hours of incident—As per chik FIR, Police Station is at distance of 2 km. from spot—It is also additional circumstance against him.
(D) (Indian) Penal Code, 1860—Sections 304-B, 498-A—Dowry Prohibition Act, 1961—Section 3/4—Dowry death—Cruelty—It is not necessary for prosecution to prove that soon before her death, there was demand of dowry—It will be sufficient to prove that soon before death of deceased, she was subjected to cruelty or harassment for any demand of dowry or in connection with any demand of dowry—Deceased was brutally beaten soon before her death—It shows that she was subjected to cruelty soon before her death—P.W.1 admitted that accused-appellant husband was living with his wife in living separately from his brother and his wife—It cannot be said that brother of husband of deceased and his wife were also demanding dowry or harassing her for any demand of dowry—They are not bound to explain death of deceased—Guilt of appellant husband for offences punishable under Sections 498-A, 304-B, IPC and Section 4 of Dowry Prohibition Act is proved beyond reasonable doubt—Accused appellants-brother of husband of deceased and his wife are entitled to be given benefit of doubt for offences punishable under Sections 498-A, 304-B, IPC and Section 4 of Dowry Prohibition Act—Conviction of appellants appellants-brother of husband of deceased and his wife under Sections 498-A, 304-B, IPC and Section 3/4 of D.P. Act—Conviction and sentence of appellant-husband of deceased under Sections 498A, 304B, IPC and Sections 3/4 of D.P. Act are upheld—Directions.
Order Accordingly.
Hon'ble Umesh Chandra Tripathi,J.
1. These two appeals are directed against the judgment and order dated 22.07.2010 passed by Additional Sessions Judge, Court No. 10, Ghaziabad in Sessions Trial No. 1050 of 2008 (State of U.P. v. Narendra & others) arising out of Case Crime No. 231 of 2007 whereby the accused-appellants Balram and Smt. Beerbala were convicted and sentenced as follows: (a) Seven years' imprisonment under Section 304B Indian Penal Code (hereinafter referred to as 'IPC'), (b) Two years' imprisonment and fine of Rs. 2000/- under Section 498A IPC, and (c) Fine of Rs. 1000/- under Section 3/4 of Dowry Prohibition Act, 1961 (hereinafter referred to as 'DP Act') and in case of default in payment of fine, additional imprisonment for six months each; whereas accused-appellant Narendra was convicted and sentenced as follows: (a) Ten years' rigorous imprisonment for offence under Section 304B IPC, (b) Two years' rigorous imprisonment and a fine of Rs. 2000/- for offence under Section 498A IPC, and (c) Two years' rigorous imprisonment and a fine of Rs. 1000/- for offence under Section 3/4 DP Act and in case of default in payment of fine, additional imprisonment for six months. All the sentences were directed to run concurrently.
2. Brief facts of the case, as discernible from record, are that in the night intervening 07/08.05.2007 at about 01.00 A.M., the accused-appellant Narendra was awoken by weeping of his infant daughter. He saw that his wife Smt. Kamlesh was not there. He then switched on the light of the room, on which he saw his wife hanging from the pipe attached to the ceiling of the room with a noose made of 'chunni' (a kind of scarf typically worn by Indian women). He got scared and immediately opened the noose from her neck and brought her down. He saw that she was dead.
3. After about ten hours of the occurrence on 08.05.2007 at about 11.05 A.M., the information of the incident was given by accused-appellant Narendra at Police Station- Muradnagar and the same was taken down in the General Diary at serial no. 13. It was marked as Ex.Ka.3.
4. On the basis of the aforesaid information, the police went to the place of occurrence (Ordnance Factory, Muradnagar, Quarter No. 67/05) and saw Smt. Kamlesh lying dead on the bed. Her body was covered by a bed sheet. Her both eyes and mouth were closed. Fists were semi-opened. She was wearing a red-coloured blouse and petticoat. On the nose, she was wearing a pearl made of yellowish substance. On both the wrists, she was wearing a pair of three red-coloured bangles. On both the legs, she was wearing a pair of 'bichhua' (toe ring) and one 'payal' (anklet) each. Wounds were seen on her neck.
5. Inquest witnesses were selected. Inquest on the body of the deceased was conducted. In the opinion of inquest witnesses, death was caused due to hanging. Inquest report (panchayatnama) was prepared at about 01.30 P.M. and the same was marked as Ex.Ka.2.
6. In the opinion of the inquest witnesses, it was thought proper to send the dead body for autopsy. In the process, relevant papers were prepared- letter for post mortem (Ex.Ka.3), photo lash (Ex.Ka.4). The dead body was sealed. Specimen seal was prepared and the same was marked as Ex.Ka.5.
7. Post mortem on the cadaver of the deceased Smt. Kamlesh was conducted the same day, i.e. on 08.05.2007 at about 03.30 P.M. by Dr. Vipin Chandra Gupta (P.W.4), who noted eight ante-mortem injuries on the person of the deceased- (1) Ligature mark on the front and right side of neck above the thyroid cartilage. There was congestion in tissue. (2) Contused swelling starting from both sides of face up to chin (3) Contusion on both sides of chest (4) Contusion on the outer part of right arm (5) Contusion on the outer part of right side waist (6) Contusion on the front side of left shoulder (7) Contusion mark on the outer part of left side waist (8) Contusion mark on the rear portion of left thigh.
Internal Examination:
On internal examination, it was
