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IN THE HIGH COURT OF ALLAHABAD
AJAI TYAGI, J.
Amit Kumar - Appellant
Versus
State of U.P. - Respondent
Criminal Appeal No. 1943 of 2016
Decided on : 06-10-2021
Indian Penal Code, 1860 - Sections 498A, 279, 427 and 304 B - Dowry Prohibition Act, 1961 - Section 3/4 - Indian Evidence Act - Section 113B - Criminal Procedure Code, 1973 - Section 161, 313 and 156(3) - Cruelty and harassment - Demand of dowry - Presumption as to dowry death - Stages - Soon before death - Informant, is brother of deceased - Not satisfied with dowry given in marriage started demanding a car as additional dowry - Torture for not fulfilment of demand of additional dowry -
Finding of the Court :
It is mandatory for prosecution to show that “soon before death,” deceased was subjected to cruelty or harassment for or in connection with demand of dowry -Death of a woman should occur otherwise than under normal circumstances. Prosecution could not prove death of deceased Pooja - Court is of considered opinion that learned trial court has not appreciated evidence on record in right perspective and wrongly drew presumption under Section 113B of Indian Evidence Act against appellant. Prosecution has also failed to prove death of deceased Pooja as dowry death - Learned trial court has wrongly convicted appellant for offences under Section 498A, 304B of IPC and under Section 4 Dowry Prohibition Act, 1961 - Application under Section 156(3) Cr.P.C. was moved by informant Ravi after a long delay of 14 days of the occurrence - If phone call was there, the fact as to why the application was not moved forthwith by the informant, is not explained any where - Accused has three stages during trial First stage is to give suggestion to prosecution witness and put his case before him; second stage is that accused will take his defence when evidence against him will be put under provision of Section 313 Cr.P.C., although, statement under Section 313 Cr.P.C. is not substantive piece of evidence and third stage is to produce defence witnesses - in the absence of above presumption, no onus can be shifted on the shoulders of appellant/accused to rebut the presumption -Therefore, the death of deceased Pooja does not fall within the purview of “Dowry Death”. Section 304B IPC
Result : Appeal allowed
JUDGMENT :
1. This appeal has been preferred against the judgment and order dated 06.04.2016 (State Vs. Amit Kumar and others) arising out of Case Crime No.655A of 2012, under Sections 498A, 304 B of IPC and Section 4 Dowry Prohibition Act, 1961, Police Station-Khurja Nagar, District-Bulandshahar, by which learned trial court convicted only appellant-Amit and sentenced him for two years under Section 498A IPC with fine of Rs.5,000/-, ten years under Section 304 B and one year imprisonment under Section 4 Dowry Prohibition Act with fine of Rs.2,000/-.
2. Brief facts of this case are that Ravi, the informant, is the brother of the deceased. He moved an application under Section 156(3) Cr.P.C. in the Court of Magistrate with the averment that her sister Pooja was married to Amit s/o Bharat Singh on 24.04.2012, who is resident of village Akbarpur, Police Station-Sasani, District-Hathras and gave the dowry according to their financial capacity. A Pulsar motorcycle was also given in the marriage but her in-laws including Amit, his father Bharat Singh, his mother Sharada, his uncle Charan Singh, his brother Manoj and one Pinki were not happy with the dowry given in the marriage and they also started demand of a car as additional dowry. They used to torture Pooja for not fulfilment of the demand of additional dowry. Pooja used to tell the fact regarding the demand of additional dowry and torture for not fulfilling the demand. Parental family members of Pooja tried to make them understand but of no avail. On 13.08.2012 at about 6:00 pm Pooja made a phone call to her brother Ajay and said that Amit and her in-laws were demanding a car and they took her by force to village Akbarpur from Delhi and any untoward incident might take place. The above mentioned persons in connivance with unknown driver of vehicle No. UP-78 BT 0879 have murdered Pooja at about 10:00 pm on 13.08.2012 and have lodged a fake first information report of accident in PS-Khurja Nagar. On coming to know about this incident, the informant went to PS-Khurja, District-Bulandshahr and tried to give a written report but the police refused to receive the report. It has come to the knowledge of the informant that in the above accident neither Amit has sustained any injury nor his motorcycle was damaged. Therefore, they have all killed Pooja by hatching a conspiracy with unknown truck driver.
3. Peculiar facts of this case are that before lodging the aforesaid FIR through application 156(3) Cr.P.C., initially first information report was lodged by Charan Singh, who is uncle of appellant-Amit, having Case Crime No.655 of 2012, under Section 279, 304A and 427 IPC at Police Station Khurja, District-Bulandshahar against the truck driver of truck No.UP-78 BT 0879 and after investigation, charge sheet was prepared against the aforesaid truck driver Somnath Vishwakarma, under Section 279, 304A and 427 IPC but this charge sheet was cancelled by Senior Superintendent of Police, before submission in court and further another charge sheet was prepared and submitted in the concerned court against Amit, Bharat Singh, Smt. Sharada, Charan Singh, Manoj and Pinki, under Section 498A, 304B IPC and 3/4 Dowry Prohibition Act, 1961. The above charge sheets were merged and taken together by the learned Magistrate.
4. Charges were framed against the aforesaid accused persons, under Sections 498A and 304B IPC and under Section 3 of Dowry Prohibition Act, 1961. After completion of trial, learned trial court convicted and sentenced only appellant Amit under Section 498A, 304B IPC and Section 4 of Dowry Prohibition Act and acquitted rest of the accused persons and hence this appeal.
5. Heard Shri Rajiv Lochan Shukla, learned counsel for the appellant and Shri Arun Singh, learned AGA for the State.
6. Learned counsel for the appellant submitted that first information report was lodged by Charan Singh regarding the accident of appellant with truck No.UP 78 BT 0879. It is submitted that after completion of the
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