HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. RESERVED Court No. - 20 Case :- CRIMINAL APPEAL No. - 532 of 1996 Appellant :- Rakesh & Others Respondent :- State Of U.P Counsel for Appellant :- Alok Kapoor Counsel for Respondent :- Govt. Advocate With Case :- CRIMINAL APPEAL No. - 516 of 1996 Appellant :- Rajaipal Hammad @ Guddu & Others Respondent :- State Of U.P Counsel for Appellant :- Alok Kapoor Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Ranjana Pandya,J.
1. Challenge in these appeals is to the judgment and order dated 30.11.1996 passed by Special Judge, Unnao, in Sessions Trial No. 875 of 1994 (State vs. Rakesh and others), arising out of Case Crime No. 108 of 1994, under Sections 498A, 304B, 342, 201 I.P.C. and Section 3/4 of the D.P. Act, Police Station Asiwah, District Unnao, whereby the accused persons were found guilty and sentenced to 3 years rigorous imprisonment and Rs. 2000/- as find under Section 3/4 D.P. Act, 1 year rigorous imprisonment under Section 498A and 10years rigorous imprisonment under Section 304 B I.P.C with default stipulation.
2. The prosecution story as unfolded as per statement of the prosecution witnesses and the first information report is that the informant Prabhu Dayal has lodged the first information report on 22.04.1994 stating that his daughter Guddy was married 11 months ago to Rakesh, the accused. Guddy has come to her paternal house five times after her marriage. He has given sufficient dowry in the marriage but the accused persons were not satisfied with the dowry and they used to assault the deceased and used to torture her and demanded a T.V. and a cycle as additional Dowry. The deceased narrated the whole incident to her parents, her sister, uncle (Foofa) Ram Asray and Shiv Balak. The informant talked to the accused persons in the matter and promise to give a T.V. and cycle after obtaining loan from somewhere. On 18.04.1994 one Radhey Lal informed him that the deceased was suffering from Cholera. When the informant went to the matrimonial house of the deceased, he saw one eyeball of the deceased was missing. She was bleeding. He suspected that the deceased was killed by the accused due to non fulfillment of dowry. The informant was going to the Police Station Rasoolabad to give information in the matter. Suddenly, Heera Lal, Siya Dulari, Rakesh his brother and sister-in-law took him into a room. Heera Lal pointed a country made pistol at him and threatened him not to go to lodge the report. He was compelled to sign on some blank papers. The dead body of the deceased was taken by the accused persons on some unknown place. On 19.04.1994, at 04:00 A.M., the hands and mouth of the informant were tied and he was left outside the village. Since then the informant was feared and tainted about the death of his daughter. He was perturbed. On 22.04.1994, he went with his brother-in-law to the police station and lodged the report.
3. On the basis of this first information report, PW-6 Constable 117 C.P. Abdual Gaffar scribed the chik report which proved by this witness as Exhibit Ka-4. further the witness scribed the copy of the G.D. which was proved by him as Exhibit Ka-5.
4. Investigation was entrusted in the matter to Pw-5 C.O. Lallan Ray. He copied the chik and G.D. in the case diary. Further, he recorded the statement of Vasudeo on 22.04.1994. He recorded the statement of informant Prabhu Dayal on the same day. He recorded the statements of Mishri Lal and Rajeshwari. Further he inspected the spot, prepared the site plan which was proved by this witness as Exhibit Ka-2. On 10.05.1994, he tried to trace the accused but they could not be traced. Since the accused Heeral Lal and Rakesh had surrendered on 16.05.1994 before the C.J.M., Unnao. Thereafter, the accused Siya Dulari and Mina Devi were apprehended and their statements were recorded. Further on 01.08.1994, the statements of the accused Heera Lal and Rakesh were recorded in jail. On 06.08.1994, the statement of the accused Brijpal was recorded in the court of C.J.M. On 29.04.1994, the statement of Mishri Lal was recorded. Since the dead body of the deceased was flown in the river by the accused, hence the body could not be recovered. The investigation was ended into a charge sheet which was proved by this witness as Exhibit Ka-3.
5. The prosecution proceeded to examine 6 witnesses in support of its case. PW-1 is Prabhu Dayal, the informant who proved the first information report as Exhibit Ka-1. PW-2 is Ram Asray. PW-3 is Rajeshwari, the mother of the deceased. PW-4 is Mishri Lal, uncle of the deceased. the statement of PW-5, C.O. Lallan Ray and PW-6 constable Abdul Gaffar has earlier been discussed.
6. After close of the prosecution evidence, the statement of the accused persons were recorded under Section 313 Cr.P.C. who denied the occurrence. However, the marriage 11 months prior to the incident was admitted but all the accused have stated that the deceased died the natural death due to Cholera.
7. The accused persons examined Rama Shankar Pal, DW-1 who is said to have treated the deceased prior to her death.
8. After perusal of all the evidence available on record and hearing the counsel for the parties, the learned trial court has passed the impugned judgment as specified in para one of the judgment.
9. I have heard Sri Alok Kapoor, counsel for the appellants, learned A.G.A. and perused the material available on record.
10. Counsel for the appellants while castigating the judgment in appeal has submitted that this is a case of no evidence. There is neither any circumstantial nor any documentary evidence to support the prosecution case. The judgment of the trial court is perverse, illegal and not based on the evidence on record, hence the appeal is liable to be allowed.
11. Per contra learned A.G.A. has submitted that the findings of the learned lower court are based on the evidence on record which needs no interference.
12. The following points were raised before the court during the course of arguments :-
* The first information report is delayed which is fatal for the prosecution case.
* The prosecution witnesses have not supported the prosecution version.
* The first information report is delayed which is fatal for the prosecution case :-
Counsel for the appellants has vehemently submitted that as per the first information report Exhibit Ka-1 and the chik report Exhibit Ka-4, the occurrence is said to have taken place on 18.04.1994, whereas the report was lodged on 22.04.1994 at 07:15 A.M. the police station being 10 Kms. away from the place of occurrence. There is inordinate delay in lodging the first information report which remained unexplained and the prosecution led its oral evidence.
Per contra, learned A.G.A. has submitted that a perusal of the first information report makes it clear that the informant has specifically stated that after the occurrence when he went to the matrimonial house of the deceased, he was forcibly taken in a room by the accused persons. Heera Lal pointed a country made pistol at him. He was illegally detained in the room and was forced to sign blank papers. He was set free on 19.04.1994 at 04:00 A.M. but could only lodged the report on 22.04.1994 since he was feared and was grief stricken.
No doubt the first information report is not a substantive piece of evidence. It is only a corroborative piece of evidence. In the backdrop the statement of the informant has to be seen. There is not a whisper in the statement of PW-1 Prabhu Dayal that he was illegally detained by the accused persons in their house or he was compelled to sign blank papers or he was grief stricken due to which he could not lodge the first information report earlier. To the contrary he has stated that “eqfYteku us eq>s vius ?kj ij dksbZ /kedh ugh nh FkhA uk rks eqfYteku us esjk eq¡g ck¡/kk Fkk vkSj u xk¡o ds fdukjs NksM+k FkkA eSus nsosUnz dqekj ls fjiksVZ ugh fy[kkbZ Fkh nLr[kr mUgksaus djk;k FkkA”
In 2003 Cr.L.J. 1282, Amar Singh Vs. Balwinder Singh and others, the Hon’ble Apex Court has laid down in regard to the delay in lodging of F.I.R. that many circumstances have to be seen. There is no hard and fast rule that any delay in lodging the F.I.R. would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the F.I.R. which may cast doubt about the veracity of the prosecution case and for this, a host of circumstances like the condition of the informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of hospital and the police station, etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging the F.I.R.
The Hon’ble Apex Court in Tara Singh and others Vs. State of Punjab, AIR 1991 Supreme Court 63, has held that “the delay in giving the F.I.R. by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin, who have witnessed the occurrence cannot be expected to go mechanically with all promptitude in giving report to the police. At times being grief-stricken because of the calamity, it may not immediately occur to them that they should give a report. After all, it is but natural, in these circumstances for them, to take sometime to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons, the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate the grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the F.I.R. also will have to be scrutinized carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the F.I.R. and later substantiated by the evidence, merely on the ground of delay. These are all matters of appreciation and much depends on the facts and circumstances of each case.
Thus, the evidence on record and even the statement of the informant does not support the prosecution version. Thus, the inordinate delay of more than three days in lodging the first information report is fatal for the prosecution case. There being chance of embellishment and false implication.
* The prosecution witnesses has not supported most of the prosecution version :-
The father of the victim namely Prabhu Dayal PW-1 has been declared to be hostile by the prosecution. PW-2 is Ram Asray who was also declared hostile. Since he did not support the prosecution version. PW-3 is Rajeshwary, the mother of the victim has stated in chief that the husband, brother-in-law (Jeth), sister-in-law (Jethani), mother-in-law and father-in-law of the deceased tortured and assaulted the deceased due to non fulfilled demand of dowry. She has further stated that they demanded a T.V. and a cycle as additional dowry which could not be fulfilled. Whenever the deceased came to her house, she narrated these facts to her mother. This witness was given in the hands of the defence for cross-examination in which she has stated that nobody has demanded dowry from the deceased. Even her son-in-law did not demand T.V. or cycle. Her daughter also never told her that she was tortured or dowry was demanded from her and things went well during the marriage ceremony and even thereafter. PW-4 is Mishri Lal who is the uncle of the deceased who has stated that the deceased came five times to her paternal house. Whenever, the deceased used to go to the house of this witness, she narrated him that her husband beats her and all the accused threatened her and demanded a cycle and T.V. as additional dowry.
In cross-examination, contradicting the previous statement, this witness has stated that after marriage, he went to the house of the deceased but there was no demand of dowry. Even the deceased did not make any such complain to him. In its wisdom, the prosecution moved an application and got PW-1, the informant and PW-2 Ram Asray declared hostile.
As far as the evidence of hostile witnesses is concerned the law on this point has been laid down by Hon’ble Apex Court in Prithi vs. State of Haryana, reported in 2010 (8) SCC 536, in which it has been laid down as under:-
“Section 154 of the Evidence Act, 1872 enables the court in its discretion to permit the person who calls a witness to put any questions to him which might be put in cross- examination by the adverse party. Some High Courts had earlier taken the view that when a witness is cross-examined by the party calling him, his evidence cannot be believed in part and disbelieved in part, but must be excluded altogether. However this view has not found acceptance in later decisions. As a matter of fact, the decisions of this Court are to the contrary.”
In Koli Lakhmanbhai Chanabhai vs. State of Gujarat reported in (1999) 8 SCC 624, in which it has been laid down that it is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence.
Keeping in view the aforesaid law, even then, the evidence adduced by the prosecution is not trust-worthy not only the hostile witnesses even the mother of the victim namely PW-3 Rajeshwari and PW-4 Mishri Lal have changed their statements in every breath.
As per the first information report Exhibit Ka-1, the informant was informed that his daughter died due to Cholera. Since, cremation was done, hence no post-mortem report, inquest report or statement of the doctor is on record. As far as this part of the evidence is concerned PW-1 Parbhu Dayal has stated that he was told that the deceased died due to Cholera. Her body was flown in the Ganges.
In cross-examination, he has admitted clearly in so many words that his daughter died due to Cholera and all the family members were present at the time of performation of the last rites.
PW-2 Ram Asray has said nothing except that the dead body was flown away in the river. PW-3 Rajeshwari stating the cause of death in her examination-in-chief has stated that one of her eye bolls was missing. Her eye was bleeding. Besides this averment in her statement, there is nothing to even suggest that the deceased died an unnatural death. Even PW-4 Mishri Lal has stated that he was informed that the deceased died due to Cholera.
DW-1 Dr. Rama Shankar Pal was produced as a defence witness who is said to have treated the deceased but in the absence of relevant record, I do not find it proper to place any reliance on the statement of DW-1.
Thus, the evidence on record has not supported the prosecution version and the case does not stand proved.
It has been submitted on behalf of the appellants that the ingredients of Section 498A, 304BI.P.C. and Section ¾ D.P. Act have not been fulfilled, hence the conviction by learned trial court is bad in the eyes of law.
Before I proceed to evaluate the evidence on record led by the prosecution in support of charges framed against the accused, it is necessary to examine the law relating to ‘dowry death’. The Hon’ble Supreme Court has highlighted all the aspects of law relating to ‘dowry demand’ and ‘dowry death’ in recent case of Prem Kanwar vs. State of Rajasthan, 2009(1) JT 197, para 6 to 12 of the reports areas under:-
“6. In order to attract Section 304B I.P.C., the following ingredients are to be satisfied:
(i) The death of a woman must have been caused by burns or bodily injury or otherwise that under normal circumstances;
(ii) Such death must have been occurred within 7 years of the marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(iv) Such cruelty or harassment must be in connection with the demand of dowry.
“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 2 of 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.”
“498A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.–For the purpose of this section, “cruelty” means–
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
“Section 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 of 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 dowry or mehr in the case of person whom the Muslim Personal Law (Shariat) applies.
Explanation I- For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this Section unless they are made as consideration of the marriage of the said parties.
Explanation II- The expression ‘valuable security’ has the same meaning in Section 30 of the Indian Penal Code (45 of 1861).”
8. Explanation to Section 304B refers to dowry” as having the same meaning as in Section 2of the Act’, the question “what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words “agreed to be given” occurring herein, and in the absence of any such evidence it would not constitute to be dowry. It is noticeable, as this definition by amendment includes not only the period before and at the marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and others vs. State of Haryana, 1998 (3) SCC 309.
9. The offence alleged against the accused is under Section 304B I.P.C. Which makes “demand of dowry” itself punishable. Demand neither conceives no would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved; hardly any offenders would come under the clutches of law. When Section 304B refers to “demand of dowry”, it refers to the demand of property or valuable security as referred to in the definition of “dowry” under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence that could be either direct on indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The work “agreement” referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. “Dowry” definition is to be interpreted with the other provision of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry; under the Act and the I.P.C. His makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.
10. Section 113B of the Evidence Act is also relevant for the case at hand. Both Sections 304B I.P.C. And Section 113B of the Evidence Act were inserted as noted earlier by the dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113B reads as follows:-
“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 persons has caused the dowry death.
Explanation- For the purposes of this Section’ dowry death’ shall has the same meaning as in Section 304B of the Indian Penal Code (45 of 1976).
11. The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on ‘Dowry Deaths and Law Reform’. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry related death, legislature through it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113B in the Evidence Act has been inserted. As per the definition of ‘Dowry death; in Section 304B I.P.C. And the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst other, in both the provisions in that the concerned woman must have been “soon before her death” subjected to cruelty or harassment for or in connection with the demand of dowry”.Presumption under Section 113Bis a presumption of law. On proof of the essentials mentioned there in, 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 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 I.P.C.
(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.
12. A conjoint of Section 113B of the Evidence Act and Section 304B I.P.C. shows that there must be material to show that soon before the death, the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. The expression ‘soon before’ is very relevant where Section 113B if the Evidence Act and Section 304B I.P.C are pressed into service. 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 let by prosecution. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would be 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 113B of the Evidence Act. The expression ‘soon before her death’ used in the substantive Section 304B of the Evidence Act. The expression ‘soon before her death’ used in the substantive Section 304B I.P.C. and Section 113B 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. A reference to expression ‘soon before’ used in Section 114B Illustration (a) of the Evidence Act is relevant. It is lays down that Court may presume that a man who is in the possession of goods ‘soon after’ the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. The determination of a period which can come within the term ‘soon before’ is let to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effects of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not be disturb mental equilibrium of the woman concerned, it would be of no consequence.”
13. In the aforesaid backdrop, perusal of the evidence available on record makes it crystal clear that neither there is evidence of unnatural death of the deceased nor there is any evidence of demand of additional dowry, nor there is any evidence of cruelty for demand of dowry “soon before her death”.
14. Thus, on what has been said and discussed above, I find that the evidence of the witnesses have major contradictions and the prosecution story is shaky, unreliable, not worthy of credence. Thus, the prosecution has miserably failed to prove the case against the appellants and the appeal is liable to be allowed.
15. Accordingly the appeal is allowed.
16. The impugned judgment of conviction and sentence dated order dated 30.11.1996 passed by Special Judge, Unnao, in Sessions Trial No. 875 of 1994 (state vs. Rakesh and others), arising out of Case Crime No. 108 of 1994, under Sections 498A, 304B, 342, 201I.P.C. and Section 3/4 of the D.P. Act, Police Station Asiwah, District Unnao is hereby set aside.
17. The appellants of both the appeals namely Rakesh, Heera Lal, Rajaipal, Smt. Siya Dulari and Smt. Mina Devi are on bail. Their bail bonds are cancelled and the sureties are discharged. However, the appellants are directed to comply with the provision of Section 437-A Cr.P.C.
18. Let the copy of this judgment be sent to the trial court concerned for compliance.
Order Date :- 08.09.2016 sailesh