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2020 Supreme(All) 78
IN THE HIGH COURT OF ALLAHABAD
SURESH KUMAR GUPTA, J.
Ajay Kumar – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. 456 of 2017
Decided on : 12-02-2020
Advocate Appeared:
For the Appellant : Tripurari Pal, Noor Mohammad, Ronak Chaturvedi
Point of Law
Once prosecution proved that where the death of the woman which was occurred otherwise under normal circumstances within 7 years of her marriage and she was subjected to cruelty and harassment by her husband and relatives of her husband soon before her death in connection with the demand of dowry, then heavy burden of proof lies upon accused to adduce evidence dislodging his guilt, beyond reasonable doubt.
Headnote:
Penal Code, 1860 – Sections 304-B – D.P. Act – Section 4 – Appeal against conviction – Demand of Dowry – Harassment – Appellant as well as other accused charged under Sections 498A/149, 304/149 and under section 4 of the D.P. Act in alternative the appellant was charged under Sections 302/149 IPC. After framing of the charges, they denied all the charges against them and claimed trial – Held, Appellant was charged for offence under Section 498A, 304 B and Section ¾ D.P. Act with alternative charge of under section 302 IPC although learned sessions court after appreciating the evidence arrived at a finding that the deceased died about two years of her marriage and held that offence under Section 304 B and Section 4 D.P. Act is proved beyond shadow of doubt but learned trial court acquitted the appellant on alternative charge under Section 302 IPC while holding that since the offence under section 304 B had been fully established by prosecution therefore, the appellant could not be convicted under Section 302 IPC. Thus, finding of the court below is totally whimsical and against the evidence on record acquittal of the appellant under Section 302 IPC is against the evidence on record but as no appeal on behalf of the State for enhancement of sentence. In these circumstances, this Court is not inclined to interfere the judgment and order of the trial court – Appeal dismissed. (Paras 42 and 43)
Facts of the Case
Appellant and his family members were not happy and they started harassment to his daughter about further demand of dowry as Rs. One Lakh cash and they committed murder to his daughter.
Finding of the Court
Appellant was charged for offence under Section 498A, 304 B and Section ¾ D.P. Act with alternative charge of under section 302 IPC although learned sessions court after appreciating the evidence arrived at a finding that the deceased died about two years of her marriage and held that offence under Section 304 B and Section 4 D.P. Act is proved beyond shadow of doubt but learned trial court acquitted the appellant on alternative charge under Section 302 IPC while holding that since the offence under section 304 B had been fully established by prosecution therefore, the appellant could not be convicted under Section 302 IPC. Thus, finding of the court below is totally whimsical and against the evidence on record acquittal of the appellant under Section 302 IPC is against the evidence on record but as no appeal on behalf of the State for enhancement of sentence. In these circumstances, this Court is not inclined to interfere the judgment and order of the trial court.
Result: Appeal dismissed.
JUDGMENT :
Suresh Kumar Gupta, J.
1. This appeal has been preferred against the judgment and order dated 13.1.2017 passed by Additional Sessions Judge, Fast Track Court No. 1 Aligarh in S.T. No. 529 of 2013 (State Vs. Ajay Kumar and others) arising out of case crime No. 120 of 2013, under Sections 304-B IPC & 4 of D.P. Act, Police Station-Jawan, District Aligarh and convicted and sentencing the appellant u/s 304-B IPC 10 years rigorous imprisonment and fine of Rs. 5,000/-in default of payment of fine three months further imprisonment and sentencing the appellant u/s 4 D.P. Act and two years simple imprisonment and fine of Rs. 5,000/-in default of payment of fine two months further imprisonment.
2. Brief facts of the case are that the FIR Exhibit Ka-6 lodged by PW 1 on the basis of written report Exh Ka-1 on 11.4.2013 with allegation that the marriage of daughter of PW 1, namely, Maya Devi was solemnized with appellant on 17.5.2011 with Hindu Reties and Customs, in this marriage informant given sufficient dowry according to his status and spent about 3-4 lacs Rupees, but the appellant and his family members were not happy and they started harassment to his daughter about further demand of dowry as Rs. One Lakh cash and they committed murder to his daughter. It is further alleged that on 9.4.2013 i.e. before two days of unfortunate death of the deceased the appellant had brought the deceased at her matrimonial home on that fateful day i.e. 11.4.013. The first informant had received a telephonic information that his daughter has been done to death, on this information, the informant as well as his family members reached to the matrimonial house of deceased, they saw that the dead body was lying at her matrimonial house inside the floor of room with wounds and contusions on her body. This incident had happened about 8:00 o'clock in the morning and on the basis of above allegations, FIR lodged by PW-1 in P.S., Java, District Aligarh on 11.4.2013 at about 15:40 pm. against the appellant/accused Ajay Kumar (husband of the deceased) and also against Bhagwan Singh (Father in law), Meena Devi (Mother in law), Nirmala Devi (Jethani), Km. Neetu (Nanad).
3. Investigation of this case handed over to the C.O. Sansar Singh Investigating Officer, recorded the statement of informant and other witnesses and also prepared the site plan Exhibit Ka-3 and he also collected the post mortem report and inquest report after conducting the formality of investigation. Investigating Officer submitted the charge sheet (Exhibit-Ka-4) against the appellant Ajay Kumar as well as Bhagwan Singh and Meena Devi under Sections 498A / 304B IPC and section 3/4 D.P. Act exonerated other named accused, namely, Smt. Nirmala Devi and Km. Neetu.
4. Charge sheet submitted before the CJM concerned on 25.6.2013 and trial committed before the court of sessions Judge where it is registered as sessions trial No. 529 of 2013 from where this case was transferred for trial to the Additional District Judge, Fast Track Court-1, Aligarh.
5. On 6.9.2013 appellant as well as other accused charged under Sections 498A/149, 304/149 and under section 4 of the D.P. Act in alternative the appellant was charged under Sections 302/149 IPC. After framing of the charges, they denied all the charges against them and claimed trial.
6. To bring home to the accused prosecution has examined 7 witnesses PW-1 Ramakishan, (complainant) father of the deceased; PW-2 Lokman, uncle of the deceased; PW-3 Saroj, Baua of the deceased; PW-4 Sansar Singh, Circle Officer, Aligarh; PW-5 Dr. S.K. Varshney, C.M.O. Mahoba; PW-6 Rajbahadur Singh, Constable and PW-7 O.P. Rana, Investigating Officer.
7. After conclusion of the evidence of prosecution, statement of the accused recorded under Section 313 Cr.P.C. in which all the accused stated that at the time of incident they were not present on spot and they are falsely implicated in this case.
8. In defence, DW 1 Rajpal Singh examined, he deposed that at the time of incident al
