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2022 Supreme(All) 584

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
KAUSHAL JAYENDRA THAKER, GAUTAM CHOWDHARY, JJ.
Pushpa Devi and Another - Appellants
Versus
State of U.P. - Respondent
Criminal Appeal Nos. 1689, 1425 of 2017
Decided On : 05-07-2022

Advocates Appeared:
For the Appellant : Anil Kumar Srivastava, Ram Bahadur, Yogesh Kumar Srivastava, Raghubeer Singh.
For the Respondent: G.A.

Headnote:

Indian Penal Code, 1860 – Section 498A, 323, 302, 304B, 314, 313, 161 – Dowry Prohibition Act, 1961 – Section 3, 4 – Evidence Act, 1872 – Section 32 – Criminal Appeal – Burden of proof in certain cases – Husband or relative of husband of a woman subjecting her to cruelty – Punishment for voluntarily causing hurt – Punishment for murder – Causing miscarriage without woman's consent – Examination of witnesses by police –Accused-appellant accused -appellant- were convicted under Section 498A IPC and sentenced them to undergo simple imprisonment for two years each with fine each and in default of payment of fine, further to undergo simple imprisonment for three months each – All sentences were to run concurrently as per direction of Trial Court – Held, Court come to the definite conclusion that the death was due to septicaemia – Judgments cited by learned counsel for the appellant would permit us to uphold our finding which Court conclusively hold that offence is not under Section 302 of I.P.C. but is culpable homicide and, therefore, sentence of accused-appellants is reduced to period of eight years with remission under Section 304 Part-I of IPC – Fine is reduced each –default sentence would be six months without remission and will run after completion of eight years of incarceration – Accused-appellants are in jail – Looking to the facts and circumstances of case, court confirmed conviction of period already undergone as they have been convicted under Section 498A IPC – Fine is maintained – Default sentence is also maintained – If they have not paid fine be deposited within eight weeks from today failing which they shall surrender for undergoing default sentence – If fine is already paid, they did not pay fine – Accused have already undergone punishment under Section 498A IPC and under Section 323 of IPC, hence, court do not delve into same – Appeals partly allowed.

JUDGMENT :

K.J. Thaker, J.

1. Both these appeals challenges the judgment and order dated 9.2.2017 passed by Additional Sessions Judge, Court No.8, Firozabad in Sessions Trial No.245 of 2015 convicting accused-appellant-Pushpa Devi, under Section 498A of Indian Penal Code, 1860 ( hereinafter referred to as 'IPC') and sentenced her to undergo simple imprisonment for two years with fine of Rs.2,000/- and in default of payment of fine, further to undergo simple imprisonment for three months; she was further convicted under Section 323 IPC and sentenced to undergo simple imprisonment for three months with fine of Rs.500/- and in case of default of payment of fine, to undergo further simple imprisonment for one months; she was further convicted under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs.5,000/- and in default of payment of fine, further to undergo simple imprisonment for six months. The accused-appellant-Bantu @Vimal Babu and accused-appellant-Munni Devi were convicted under Section 498A IPC and sentenced them to undergo simple imprisonment for two years each with fine of Rs.2,000/- each and in default of payment of fine, further to undergo simple imprisonment for three months each. All the sentences were to run concurrently as per direction of the Trial Court.

2. Accused-appellants, Pushpa Devi, Bantu @ Vimal Babu and Munni Devi were trying along with Dilip Kumar for commission of offence under Section 498A, 304B, 314 and 323 read with Section 3/4 Dowry Prohibition Act. ON 4.7.2015, learned Magistrate committed the case to the Court of sessions which was numbered as Sessions Case No. 245 of 2015 (State Vs. Dilip Kumar and others).

3. Factual scenario as culled out from the record and the judgment of the Court below is that on 03.12.2014, a written First Information Report ( hereinafter referred as 'FIR) was given mentioning that Rajni was married with Dilip Kumar on 4.6.2013 but after the marriage, the in-laws started harassing the deceased-Rajni and demanded more dowry. For which on 2.12.2014, a phone was received that all the four persons had set ablaze the deceased-Rajni at about 3:00 ( afternoon). She was taken to the hospital at Firozabad. Thereafter she was referred to Agra. She has pregnancy of eight months.

4. On the complaint of the father of the deceased, First Information Report being No.491 of 2014 was registered under Sections 498A, 307, 323 IPC and ¾ D.P. Act and thereafter, the investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet against accused persons under Sections 498A, 304B, 314, 323 IPC and ¾ D.P. Act.. The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused-Pushpa Devi, framed charges under Section 302, 498A, 323 of I.P.C. and the accused-Dilip Kumar, Bantu @ Vimal Babu and Smt. Munni Devi framed charge under Section 498A IPC.

5. On being read over the charges, the accused-appellants pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 15 witnesses who are as follows :

1.

Ramveer Singh

PW 1

2.

Omkar

PW 2

3.

Manoj Kumar

PW 3

4.

Shankar Lal

PW 4

5.

Dharmendra Singh

PW 5

6.

Dr. R.C. Johri

PW 6

7.

Dr. Anand Kumar

PW 7

8.

Nanhey Ram

PW 8

9.

Kehar Singh Rana

PW 9

10.

Geeta Ram

PW 10

11.

Prashan tKumar Prasad

PW 11

12.

Yogendra Kumar Yadav

PW 12

13.

Raj Kamal Singh

PW 13

14.

Krishna Murari Dixit

PW 14

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