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IN THE HIGH COURT OF ALLAHABAD
Manoj Misra, Sameer Jain, JJ.
Sunil Kumar – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. - 7544 of 2019
Decided On : 21-04-2022
Indian Penal Code, 1860 - Sections 498A, 302 and 304B - Dowry Prohibition Act – Dowry death - Appeal Against Conviction – Offence of Murder – Demand of Dowry - It is alleged that accused husband; father-in-law; Devars and mother in law were not happy with dowry provided in marriage and were pressing for a three wheeler and Rs. Fifty thousand in cash - It was alleged that in connection with said demand, deceased was being harassed and assaulted by accused - It is also alleged that in connection with that, several times panchayats were organised but accused did not relent and as demand was not met, accused killed - Fundamental principle of criminal jurisprudence is that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions (Para 18).
Finding of the court :
Two views are possible on case of record, one pointing to the guilt of accused and other his innocence - Accused is indeed entitled to have benefit of one which is favorable to him - All judicially laid parameters, defining quality and content of circumstantial evidence, bring home guilt of accused on a criminal charge, court find no difficulty to hold that prosecution, in case in hand, has failed to meet same - there is another important feature of prosecution case, which is, that all prosecution witnesses of fact including witnesses of inquest have consistently deposed with regard to goods strewn all over house suggestive of a robbery or theft in house - As this circumstance is noticeable in prosecution evidence there was all more reason to accept explanation offered by appellant.
Results : Appeal is allowed.
JUDGMENT :
1. This appeal has been filed against the judgement and order dated 2.11.1999 passed by Additional Sessions Judge/Special Judge, Gangsters Act, Court No. 5, Etah in S.T. No. 70 of 2018, whereby, though the appellant Sunil Kumar, co-accused Gajraj Singh and Nirmala Devi have been acquitted of the charge of offences punishable under Sections 498A, 304B IPC and ¾ Dowry Prohibition Act but, the appellant -Sunil Kumar has been convicted under Section 302 IPC and sentenced to imprisonment for life whereas, the co-accused Gajraj Singh and Nirmala Devi have been acquitted of the charge of offence punishable under Section 302 read with Section 34 IPC. While admitting this appeal, vide order dated 7.12.2019, lower court record was summoned and office was directed to prepare the paper book of the appeal. Paper book of the appeal is ready therefore, with the consent of Sri Sanjeev Kumar Pandey, learned counsel for the appellant, and Sri Amit Sinha, learned AGA for the State, this appeal has been heard and is being decided finally by this order.
Introductory facts
2. The wife of the appellant-Sunil Kumar, namely, Sangeeta was married to the appellant on 20.2.2015. She died in her matrimonial house on 24.3.2017 of which a first information report (vide written report-Ex. Ka-1) was lodged by PW-1 (Jamuna Prasad) father of the deceased. In the first information report, it is alleged that the accused, namely, Sunil Kumar (husband); Gajraj Singh (father-in-law); Sudhir and Yogendra (Devars) and Nirmala Devi (mother in law) were not happy with the dowry provided in the marriage and were pressing for a three wheeler and Rs. Fifty thousand in cash. It was alleged that in connection with the said demand, the deceased was being harassed and assaulted by the accused. It is also alleged that in connection with that, several times panchayats were organised but the accused did not relent and as the demand was not met, the accused killed Sangeeta. This FIR was registered at police station Mirhachi, District -Etah on 24.3.2007 at 16.25 hrs. of which a Chik FIR (Ex. Ka-3) and G.D. Entry (Ex. Ka-4) was prepared/made by PW-10. Inquest was conducted at 18.25 hrs on 24.3.2017 at deceased's matrimonial house in the presence of her family members of which inquest report (Ex. Ka-10) was prepared.
3. Autopsy of the body of the deceased was conducted by PW-9 on 25.3.2017 at about 2:50 pm. The autopsy report (Ex. Ka-2) revealed three ante mortem injuries:
(ii) Abrasion front of trachea size 2 cm X 1 cm front of neck above thyroid cartilage placed horizontally.
(iii) Abrasion 5 cm X 1 cm back of neck (right side) placed obliquely.
On dissection under injury No.1 clotted blood with rupture of muscles was noted.
The cause of death was ascertained to be due to asphyxia as a result of ante mortem throttling.
The estimated time of death was about a day before.
4. After investigation, a charge sheet (Ext. Ka-5) was submitted against three persons, namely, Sunil Kumar (appellant), Gajraj Singh and Smt. Nirmala Devi.
5. After taking cognizance on the charge sheet and committal to the court of session, the trial court framed charges against the said three accused for the offences punishable under Sections 498-A, 304-B IPC and ¾ Dowry Prohibition Act with an alternative charge of an offence punishable under Section 302 read with Section 34 IPC.
Prosecution Evidence
6. During the course of trial, the prosecution examined eleven witnesses, out of which six, namely, PW-1 (father of the deceased); PW-2 (scribe of the written report); PW-3 (mother of the deceased); PW-4 also a relative of the informant; PW-5 another relative of the informant; PW-6 (brother of the informant) were witnesses of fact. All of them except PW-6 were declared hostile. Notably, PW-6, though, he might not have been declared hostile but he did not support the prosecution case, in his cross examination. What is important
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