HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 26.02.2019 Delivered on 12.03.2019 CRIMINAL APPEAL No. 1881 of 2008 Babloo alias Ranjit S/o Shiv Prasad ----- Appellant Vs State of Uttar Pradesh ----- Respondent. WITH CRIMINAL APPEAL No. 405 of 2008 1. Shiv Prasad S/o Shiv Ratan 2. Smt. Kallo W/o Shri Shiv Prasad ----- Appellants Vs State of Uttar Pradesh ----- Respondent. ____________________________________________________ For Appellant : Sri K.K. Tiwari For Respondent/State : Sri B.A. Khan, AGA ________________________________________________________ Hon'ble Pritinker Diwaker, J.
Hon’ble Raj Beer Singh, J.
Per: Pritinker Diwaker, J.
1. As these appeals arise out of a common judgment and order dated 16.01.2008 passed by the learned Additional District and Sessions Judge, Court No. 02, Kanpur Dehat in Sessions Trial No. 386 of 2006, (State Vs. Babloo alias Ranjit and others) convicting accused persons, namely, Babloo alias Ranjit, Shiv Prasad and Smt. Kallo under Sections 498-A and 304-B and sentencing them to undergo imprisonment for life with fine of Rs. 10,000/- each, in default thereof, one year additional simple imprisonment, they are being disposed of by this common order.
2. In the present case, name of the deceased is Nisha, wife of the accused Babloo alias Ranjit. Their marriage was solemnized sometime in the year 2004 and she died unnatural death on 10.05.2006 by hanging herself. Accused Shiv Prasad is the father-in-law of the deceased, whereas accused Smt. Kallo is her mother-in-law. On 10.05.2006, deceased died after hanging herself in her bedroom. The door of the room, after breaking its lach, was opened and the body was pulled down from the ceiling fan, but by the time the deceased was already dead. On 11.05.2006, based on the written report lodged by PW-1 Jaipal, F.I.R. Ex.Ka.12 was registered against the appellants under Sections 498-A and 304-B of IPC. Inquest on the dead body of the deceased was conducted, vide Ex.Ka. 2, on 11.05.2006, and the body was sent for postmortem, which was conducted on 12.05.2006, vide Ex. Ka. 14, by PW-5 Dr. Ravindra Prakash Mishra.
3. As per Autopsy Surgeon, the following injuries were noticed on the body of the deceased:
“Ligature mark around the neck – 3 cm; 6 cm gap around the neck left side width of ligature mark 1/2 cm; 5 cm below chin and and below right ear; 3 cm below left ear
– abraded contusion on chin 3 cm x 2 cm
– abraded contusion 1 1/2 cm x 1 cm
– contusion swelling on the face
– abraded contusion multiple 3 cm x 2 cm on left lower arm
– 2 cm below wrist join, – abraded contusion 5 cm x 1 1/2 cm”
The cause of death was ‘asphyxia’, as a result of hanging.
5. So as to hold the accused persons guilty, prosecution has examined five witnesses whereas, four defence witnesses have also been examined. Statements of the accused persons were also recorded under Section 313 of Cr.P.C., in which they pleaded their innocence and false implication.
7. Counsel for the appellant submits:
(i) that there is no eye witness account to the incident and the appellants have been convicted solely on the basis of weak circumstantial evidence.
(ii) that as accused No. 1 Babloo alias Ranjit husband of the deceased was having illicit relation with the sister of the deceased, deceased was unhappy and out of anger she committed suicide.
(iii) that the statements of PW-1 Jaipal and PW-2 Smt. Rajrani are not trustworthy and from their statements, the basic ingredients of Section 304-B I.P.C. are not attracted.
(iv) that there is sufficient evidence on record that the deceased committed suicide in her bedroom. After breaking the latch of the room, body was pulled down from the ceiling fan. Though certain injuries have been found on the body of the deceased but the Autopsy Surgeon has categorically stated that those injuries could be because of rubbing and scratching.
(v) that even taking the entire prosecution case as it is, at best, appellants can be convicted under Section 498-A and not under Section 304-B of IPC, as has been done by the trial Court. The appellant Babloo alias Ranjit is in Jail since 16.05.2006, whereas remaining two accused persons, namely, Shiv Prasad and Smt. Kallo have already remained in jail for more than one month.
8. On the other hand, supporting the impugned judgment and order of the trial Court, it has been argued by the State Counsel that the conviction of the appellants is in accordance with law and there is no infirmity in the same.
9. Heard learned counsel for the parties and perused the record.
10. PW-1 Jaipal is the father of the deceased. He states that in the year 2004, he performed the marriage of the deceased with accused Babloo @ Ranjit and according to his capacity, sufficient dowry was given. Immediately after the marriage, deceased made a complaint that the accused persons are demanding a motor cycle and Rs. 20,000/- cash and for this, deceased was subjected to cruelty. In the cross examination, he has reiterated his version made in the examination-in-chief and has further elaborated by saying that various articles were given in the marriage. He further states that in the F.I.R. and statement recorded under Section 161 Cr.P.C., he has not mentioned that Rs. 1,00,000/- was also demanded. He further states that accused Babloo @ Ranjit was serving in Rajasthan and used to come from there only, but he never made any demand and used to live with the deceased happily. He further states that once he had a talk with his daughter, who at the relevant time was at Rajasthan, she informed that she was happy. He states that to his memory once there was some dispute between his daughter and accused Babloo alias Ranjit and that accused persons have never given any beating to the deceased. He further states that about 4-5 days prior to the incident, he had gone to the house of the deceased, as there was a marriage.
11. PW-2 Smt. Rajrani, is the mother of the deceased, but for bald allegation of demand of motor cycle and Rs. 20,000/-, she has also not made any allegation against the accused persons. She has nowhere stated that soon before the death of Nisha (deceased), there was any demand from the side of the accused persons or that deceased was subjected to cruelty. She has clarified that even the demand of motor cycle was not made to her, and this was made to her husband.
12. PW-3 Vash Gopal Ahirwar, is the Executive Magistrate, who conducted the inquest. According to him, no injury was noticed on the body of the deceased at the time of inquest.
13. PW-4 R.P. Aruna is the Investigating Officer. He states that before he could reach to the place of occurrence, the body was already taken out by the local police. He further states that at the place of occurrence, latch of the door was found to be broken.
14. PW-5 Dr. R.P. Mishra conducted postmortem on the body of the deceased. He states that no blood was found on any of the injury. Injury no. 1 could be because of hanging whereas remaining injuries could be because of rubbing or marpit.
15. DW-1 Smt. Ramwati, is a relative of the accused persons, has stated that she came to know that accused no. 1 Babloo alias Ranjit was having illicit relation with her sister-in-law which was not liked by the deceased and as the deceased was a woman of short temperament, she committed suicide.
16. DW-2 Sanjai Kumar Vishwakarma, is a blacksmith, who was called for breaking the door.
17. DW-3 Rajesh Kumar Shukla and DW-4 Guru Prasad have not stated anything specific.
18. Before dealing with the facts and evidence of the present case, it would be apposite to consider the legal position in respect of proving the offence under Section 304-B of IPC. Section 304-B of IPC reads as under:-
“304-B. 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.”
19. To attract the provisions of Section 304B of the IPC, the main ingredient of the offence, which is required to be established, is that:-
(a) ‘soon before her death’, the deceased was subjected to cruelty and harassment in connection with the demand of dowry;
(b) the death of the deceased woman was caused by any burn or bodily injury or some other circumstance which was not normal;
(c) such death occurs within seven years from the date of her marriage;
(d) the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
(e) such cruelty or harassment should be for or in connection with demand of dowry; and
(f) it should be established that such cruelty and harassment was made soon before her death.
Further, the Court has to analyze the facts and circumstances as leading to death of the victim and decide if there is any proximate connection between the demand of dowry and act of cruelty or harassment and the death. ‘Soon before her death’ means interval between cruelty and death should not be much. There must be existence of a proximate and live links between the effect of cruelty based on dowry demand and the concerned death. 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.
The expression ‘soon before her death’ used in the substantive Section 304-B IPC of and Section 113-B of the Evidence Act is present with the idea of proximate test. No definite period has been indicated and the expression ‘soon before her death’ is not defined. The determination of the period which can come within the term ‘soon before’ is left 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 cruelty or harassment concerned and the death in question.
20. In K. Prema S. Rao and another vs. Yadla Srinivasa Rao and others1, it has been held by the Apex Court as under:
“16. … … …To attract the provisions of Section 304-B IPC, one of the main ingredients of the offence which is required to be established is that “soon before her death” she was subjected to cruelty and harassment ‘in connection with the demand for dowry’. … … …”
21. In Kaliyaperumal and another v. State of Tamil Nadu2 the Supreme Court held as under:
“5. 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. 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 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 in by prosecution. “Soon before” is a relative term and it would depend upon the circumstances of each case and no strait-jacket 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. A reference to the expression “soon before” used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term “soon before” is left 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 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 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.”
22. In Devi Lal v. State of Rajasthan3 , it has been held by the Supreme Court as under:-
“20. The question, as to what are the ingredients of the provisions of Section 304-B IPC of the Penal Code is no longer res integra. They are : (1) That the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal; (2) such death occurs within 7 years from the date of her marriage; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) such cruelty or harassment should be for or in connection with the demand of dowry; and (5) it is established that such cruelty and harassment was made soon before her death.”
23. In Ashok Kumar v. State of Haryana4 , it has been held by the Apex Court as under:
“19. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the Section is “soon before her death”. In our view, the expressions “soon before her death” cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.
20. We are of the considered view that the concept of reasonable time is the best criteria to be applied for appreciation and examination of such cases. This Court in Tarsem Singh v. State of Punjab [AIR 2009 SC 1454], held that the legislative object in providing such a radius of time by employing the words “soon before her death” is to emphasize the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry related cruelty or harassment inflicted on her.
21. Similar view was expressed by this Court in the case of Yashoda v. State of Madhya Pradesh [(2004) 3 SCC 98], where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this Section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case.”
24. In the matter of Appasaheb and another v. State of Maharashtra5, it has been held by the Apex Court as under:
“9. Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) women is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub-section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.
10. Section 2 of Dowry Prohibition Act 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 parent 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) applies.”
11. In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody coversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR (1996) SC 3509 and Chemicals and Fibres of India v. Union of India, AIR (1997) SC 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.”
25. Applying the above principles of law in the present case what emerges is that PW-1 Jaipal and PW-2 Smt. Rajrani in their statements have nowhere stated that ‘soon before death’ there was any demand of dowry or that ‘soon before death’, the deceased was subjected to cruelty by the accused persons. The marriage of the deceased was solemnized with accused Babloo @ Ranjit in the year 2004 and she died in 2006. According to PW-1 Jaipal and PW-2 Smt. Rajrani, Rs. 20,000/- and a motor cycle was demanded by the accused persons immediately after the marriage and they have nowhere stated that the said demand persisted till the death of the deceased.
26. PW-1 Jaipal has stated that accused No. 1 Babloo alias Ranjit was serving at Rajasthan and the deceased was living with him and they used to come directly from Rajasthan to meet him and that when he spoke to his daughter, she was very happy. PW-2 Smt. Rajrani has stated that no demand of motor cycle and cash of Rs. 20,000/- was directly made to her and it was made to PW-1 Jaipal only.
27. Considering the quality of evidence, it appears that only general allegations have been levelled against the appellants for demand of Rs. 20,000/- cash and motor cycle and that too about two years prior to the date of incident. In our considered view, the basic ingredients of Section 304-B of I.P.C. are missing in the present case and thus on the basis of bald allegations, it will not be safe for us to uphold the conviction of the accused persons under Section 304-B of IPC.
28. It is not a case of the prosecution that deceased was first killed and then was hanged by the accused persons. There own case is that the deceased committed suicide in her bedroom after locking the door from inside and on coming to know the incident, the said door was opened after breaking its lach and the body was pulled down from the ceiling fan. The said fact has been admitted by the Investigating Officer and the defence witness has also been examined to this effect. There is some substance in the argument of the defence that the deceased might have committed suicide as her husband was having illicit relation with the sister of the deceased and this has been proved by DW-1 Smt. Ramawati.
29. Considering the cumulative effect of the evidence, we are of the view that the trial Court has erred in law in convicting the accused persons under Section 304-B of I.P.C. Their conviction under this section is set aside.
30. However, further considering the evidence and the statement of PW-1 Jaipal and PW-2 Smt. Rajrani, offence under Section 498-A of I.P.C. is definitely made out against the accused persons and accordingly, they are convicted for the said section. The accused No. 2 Shiv Prasad and accused No. 3 Smt. Kallo had remained in jail for more than one month. Considering the fact that the incident occurred way back in the year 2006, we are of the view that no useful purpose would be served in sending them to jail again. Their sentence is reduced to the period already undergone by them. The accused No. 1 Babloo @ Ranjit has already served the jail sentence of more than 12 years and, therefore, he be set free forthwith, if not requird in any other case. No further order is required in respect of other accused persons. Both the appeals are accordingly disposed of.
Dated: 12.03.2019 nethra/mohit (Raj Beer Singh, J) (Pritinker Diwaker, J)