HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 15 Case :- CRIMINAL APPEAL No. - 679 of 2016 Appellant :- Awadhesh Awasthi Respondent :- State Of U.P Counsel for Appellant :- Alok Kumar Srivastava,Smriti,Suresh Chandra Srivastava Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Rekha Dikshit,J.
1. This appeal assails the correctness of the judgment and order dated 07.05.2016 passed by learned Additional Sessions Judge/Fast Tract Court, Hardoi, in Sessions Trial No.611 of 2013, Case Crime No.304 of 2013, whereby the Sessions Judge has convicted the appellant-accused namely, Awadhesh Awasthi and sentenced him under Section 498A I.P.C. for three years rigorous imprisonment with a fine of Rs.10,000/-, in default, he shall undergo three months additional simple imprisonment, under Section 304B IPC for eight years rigorous imprisonment and under Section 4 of Dowry Prohibition Act for two years’ rigorous imprisonment with a fine of Rs.8,000/-, in default, he shall undergo two months additional simple imprisonment. All the sentences were directed to run concurrently.
2. In brief the prosecution case is that the complainant Manoj Kumar moved an application in Police Station Sandila stating therein that he solemnized the marriage of his daughter Shashi with appellant Awadhesh Awasthi on 09.02.2009 as per his capacity and status, but after marriage her in-laws used to torture her in connection with dowry. On 23.05.2013, they killed his daughter and did not inform him. Late in the night about 12.30am his elder son-in-law informed about the death of his daughter. He has convinced that family members of her son-in-laws including him murdered his daughter on the said date. On the aforesaid premise, first information report was lodged at Case Crime No.304 of 2013 under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act against the accused persons. The dead body of the deceased was sent for postmortem, where it was conducted by Dr. Sharad Vaish PW-3. Exhibit Ka-3 is the postmortem report in which ante mortem injuries are as follows:
“(i) Ligature mark around neck 18cms in length with a gap of 8cms on Rt side neck.
(ii) Rt end of ligature mark is 6cms below Rt ear and Lt end is 9cms below Lt ear.
(iii) Mark is 2cms in width.”
3. The case was investigated by PW-5 Sukhram Bharati and consequently charge-sheet exhibit Ka-10 was submitted after completion of investigation against Awadhesh Awasthi and Bhagauti Prasad. Later on exhibit Ka-11 supplementary charge-sheet was submitted against Babu @ Dilip and Smt. Rama Devi @ Gulab Kumari under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act.
4. To bring home the guilt of the appellant, the prosecution has examined as many as six witnesses and one witness has been examined in defence along with documentary evidence, photo copies of the family register as per list 117B.
5. PW-1 Manoj Kumar is the complainant of the case, who has substantiated the allegations made in the first information report regarding marriage of his daughter with the appellant on 09.02.2010 as per his capacity and status and Rs.1 lakh was demanded for construction of a separate house by the accused persons, due to which they killed or murdered his daughter on the said date.
6. PW-2 Vijay Kumar has deposed in his oral testimony that his niece Shashi was married to the appellant but in-laws of her niece were never satisfied with the dowry given at the time of marriage and tortured her in connection with demand of dowry of Rs.1 lakh in dowry. On 23.05.2013, he was informed about the death of her niece.
7. PW-3 Dr. Sharad Vaish, who conducted postmortem of the deceased on 24.05.2013, has proved the postmortem report as exhibit Ka-3.
8. PW-4 Ajeet Kumar Singh, Tehsildar has deposed on oath that on direction of the Sub Divisional Magistrate, Sandila, he proceeded and prepared the inquest report of the deceased and has categorically stated that the family members and in-laws of the deceased were present there. He has further proved the inquest report and related papers exhibit Ka-4 to 8.
9. PW-5 Sukhram Bharati, Investigating Officer of the present case, who recorded the statement of witnesses, prepared the site plan exhibit Ka-9 and after investigation submitted charge-sheets exhibit Ka-10 and Ka-11 against the accused persons.
10. PW-6, Constable Rajesh Kumar Singh has proved Chik FIR exhibit Ka-12 and G.D. Exhibit Ka-13 in his oral testimony.
11. Incriminating evidence and circumstance were put to the appellant under Section 313 Cr.P.C. in which the appellant admitted his marriage with the deceased and stated that he has been falsely implicated in the present case. He has also stated that he used to live separately with the deceased from his parents and brothers. It has also been stated that his wife committed suicide because the appellant checked her visit to her brother-in-law Vinay Kumar, who also used to reside in the same village as such, she committed suicide due to depression.
12. The appellant has adduced one witness in defence to establish his innocence and photocopies of the family register as per list 117B as documentary evidence.
13. DW-1 Ayodhya Prasad has deposed in his oral testimony that he is neighbour of Bhagauti Prasad, father of the Awadhesh Awasthi and has categorically substantiated that the appellant resides separately from his father since six months of his marriage along with the deceased, his wife. It has further been stated that the appellant used to check the visit of his wife to his brother-in-law’s house due to which she felt depressed and on 23.05.2013 committed suicide, when she was all alone in the house.
14. The trial court held that the appellant committed the said incident and prosecution established the circumstances, proving the appellant guilty, under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act and sentenced him under Section 498A I.P.C. for three years rigorous imprisonment with a fine of Rs.10,000/-, in default, he shall undergo three months additional simple imprisonment, under Section 304B IPC for eight years rigorous imprisonment and under Section 4 of Dowry Prohibition Act for two years’ rigorous imprisonment with a fine of Rs.8,000/-, in default, he shall undergo two months additional simple imprisonment. Aggrieved by the verdict of the conviction, the appellant preferred the present appeal.
15. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
16. Learned counsel for the appellant has submitted that no offence under Section 304B IPC is made out as there is no specific demand of money in the first information report. The complainant has improved upon in his statement alleging demand of Rs.1 lakh as dowry in his oral testimony. It is further stated that there is no evidence regarding the deceased being subjected to cruelty or harassment by the appellant shown before her death.
17. Learned counsel for the appellant has also argued that the first information report of the present case is ante date and ante time as there is discrepancy between the inquest and Chik FIR. Moreover there are lot of discrepancies and contradictions in the statement of witnesses which falsify the prosecution case.
18. Per contra, learned AGA for the State, contended that the prosecution has established the guilt of appellants in the commission of crime in this case. The FIR version has fully been supported by medical and ocular evidence, based on the said evidence, the court below rightly convicted the appellants and the impugned judgment warrants no interference.
19. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record.
20. In the present case, the deceased was married to the appellant on 09.02.2010 and her father solemnized the marriage as per his capacity and status but family members of the appellant were never satisfied with the dowry and always demanded Rs.1 lakh to construct a separate house.
21. The appellant has been charged under Sections 498A, 304B and 4 Dowry Prohibition Act. In this context, the provisions of Section 304B IPC are taken into account which reads as under:
“304B. Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
Explanation.- For the purpose of this sub-section, “dowry” shall have the same meaning as in section 2of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
The essential ingredients of the said offence are: (i) death of a woman must have been caused by any burns or bodily injury or otherwise than under normal circumstances; (ii) such death must have been occurred within seven years of marriage (iii) soon before her death she was subjected to cruelty or harassment by her husband or relative of her husband; (iv) such cruelty or harassment must be in connection with the demand of dowry; and (v) such cruelty is shown to have been meted out to the woman soon before her death.
The Explanation appended to Section 304B defines dowry to have the same meaning as contained in Section 2 of the Dowry Prohibition Act, 1961, which reads as under:
“2. Definition of `dowry’.- In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applied.”
Section 113B in the Evidence Act has been inserted, which reads as under:
“113B. Presumption as to dowry death. – When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation.-For the purposes of this section “dowry death” shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)”
22. Indisputably the marriage of the deceased and the appellant took place on 09.02.2009 though there is some discrepancy in the date, as mentioned in first information report lodged by the complainant, and, his testimony before the court, but same has been settled by filing of the invitation card of their marriage. Admittedly the deceased died on 24.05.2013, which clearly establishes the fact that the death of the deceased occurred within seven years of marriage.
23. This fact is also not disputed that the death of the deceased was caused by hanging due to asphyxia, which has been established by the postmortem report of the deceased as well as oral testimony of PW-3 Dr. Sharad Vaish. Thus, this ingredient is also established that the deceased died an unnatural death, otherwise than under normal circumstances.
24. As per the definition of “dowry death” in Section 304B IPC and the wording in the presumptive provision of Section 113B of the Evidence Act, one of the essential ingredients, amongst others, is that the `woman’ must have been “soon before her death” subjected to cruelty or harassment “for, or in connection with, the demand for dowry”. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
25. Now, I advert to the assessment of evidence brought on record by the prosecution to show that the cruelty or harassment was meted out to the deceased for brining insufficient dowry. PW-1, the complainant, and PW-2 uncle of the deceased have categorically stated in their testimony that the in-laws of the deceased were not satisfied with the dowry given in the marriage and always demanded Rs.1 lakh for construction of a separate house, but none of the witnesses has clearly indicated as to when was such demand made and by whom and what action or reaction was shown by them towards her in-laws though an important factor is that the demand of Rs.1 lakh do not find place in the first information report lodged by the complainant himself.
26. Mere bald allegation regarding demand of dowry and cruelty or harassment on that account will not suffice the essential ingredient of the provisions of dowry death. As per contents of the first information report also, a general allegation of demand of dowry has been levelled against the persons named therein but nothing specific has been stated. No particular dates or associate evidence has been led to establish the fact that the deceased was subjected to cruelty or the harassment soon before her death and that too in connection with any demand for dowry. The evidence led by the prosecution has to be of the extent which may establish that the harassment was to the extent of resulting in the death of deceased. Mere negative statements in connection with insufficient dowry will not suffice to establish the provisions of dowry death.
27. In the instant case, only two witnesses of fact have been produced, namely, PW-1 and PW-2, who have stated in their testimony that the appellant demanded Rs.1 lakh for construction of house, but nowhere, it has been connected with the term ”dowry’. Whether mere demand of Rs.1 lakh for construction of a separate house can be termed as ”dowry’ is highly questionable. The first information report has vague allegation of dowry and harassment, no mention of Rs.1 lakh as demand for dowry. None of the witness has stated that, what was the cruelty or harassment on part of the appellant which resulted in the death of the deceased, making it ”dowry death’. To convict the death of deceased, there must be some proximate live links with the death and demand of dowry.
28. Learned counsel for the appellant has referred Durga Prasad and another v. State of Madhya Pradesh; (2010) 9 SCC 73 wherein it has been observed:
”dowry death due to suicide – presumption of causing – ingredients of evidence to sustain such presumption – proof of subjecting victim to cruelty and harassment prior to her death, held, not sufficient – It must also be proved that she committed suicide on account of such cruelty and harassment – These are also the ingredients of evidence required to be led for the presumption under Section 113-B, Evidence Act – Moreover, it has also to be shown that such cruelty or harassment was for, or in connection with, any demand of dowry – Only then can resultant death be called “dowry death”. Benefit of doubt given – except bald statements of victim’s mother and brother alleging that victim had been subjected to cruelty and harassment prior to her death, no other evidence adduced to prove that she committed suicide on account of the same.’
29. Another case referred to is Biswajit Halder @ Babu Halder and others v. State of W.B.; (2008) 1 SCC 202 wherein it has been held:
”dowry death – ingredients – on facts, conviction not sustainable – subjecting the deceased to cruelty and harassment must be shown to be for or in connection with the demand for dowry’.
30. In this case, there is practically no evidence to show that there was any cruelty or harassment for or in connection with demand of dowry. This deficiency in evidence proves fatal for the prosecution case. Even otherwise mere evidence of cruelty and harassment is not sufficient to bring in application of Section 304-B IPC. It has to be shown in addition that such cruelty or harassment was for or in connection with demand of dowry. Therefore, the prosecution has apparently failed to prove the aforesaid aspect.
31. In order to raise a presumption under Section 113-B of Evidence Act, which is relatable to Section 304-B IPC a heavy burden has been shifted on to the accused to prove his innocence. Having regard to the language of Section 113-B of Evidence Act, which indicates that when the question arises as to whether a person has committed the dowry death of a woman and it is shown that soon before her death, she was subjected to cruelty or harassment by such other person or in connection with any demand for dowry, the court shall presume that such person had caused such dowry death.
32. The legal fixation ought to be created must be raised only on fulfillment of the condition precedent therefor. All the requisite ingredients of the offence must be brought home before the presumptive evidence is to be used by the court for holding the accused guilty.
33. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of “death occurring otherwise than in normal circumstances”. The expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by the prosecution.
34. “Soon before” is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression “soon before her death” used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression “soon before” is not defined.
35. Suffice, however, to indicate that the expression “soon before” would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
36. In this case, the testimony of PW-1 and PW-2 merely indicates a vague demand of Rs.1 lakh for construction of house, but nowhere any cruelty or harassment immediate before death of the deceased has been attributed to the appellant. It has to be established that the deceased was subjected to cruelty in connection with the demand for dowry, which consequently resulted in her death, but there is nothing on record to show the same as such it may be concluded that the prosecution could not prove that the deceased was ever subjected to cruelty or harassment by the accused appellant which resulted in her death. In absence of proof of such ingredients presumption for committing the offence under Section 304-B IPC could also not be raised in the present matter. Certainly, injuries, consequent to hanging, were found on the body of the deceased, but this fact alone is not sufficient to raise presumption under Section 113-B of the Evidence Act.
37. As far as the applicability of Section 106 of the Evidence Act is concerned, the burden of proving the fact specially within the knowledge of the person lies upon him. Since no presumption could be raised taking recourse of provision of Section 113-B of the Evidence Act and there is no charge against the accused-appellant for the offence under Section 302 IPC, therefore, no question arises for the accused-appellant to discharge the burden as required under Section 106 of the Evidence Act.
38. Thus on the basis of analysis made herein above, this Court is of the view that the trial court’s finding on the point of holding guilty to the accused appellant for the offence under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act is not in accordance with the evidence and law and the same is not sustainable and the appeal filed by the appellant is liable to be allowed.
39. For all the reasons stated above, the appellant is entitled to the benefit of doubt and accordingly entitled to acquittal.
40. In the result, the appeal is allowed and the judgment and order dated 07.05.2016 passed by learned Additional Sessions Judge/Fast Tract Court, Hardoi in Sessions Trial No.611 of 2013 is hereby set aside. Appellant Awadhesh Awasthi is acquitted on benefit of doubt from the charges under Sections 498-A and 304-B IPC and under Section 4 of Dowry Prohibition Act.
41. Appellant Awadhesh Awasthi is in jail. If he is not wanted in any other case, he be released from jail forthwith.
42. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgement to the District Judge, Hardoi forthwith.
Order Date:-19.2.2018 Anupam S/-