Anil Kumar Seth (in Jail) vs State of U.P.

V.N. Singh, J.—These appeals have been filed by the Appellants against the judgment and order dated 5.2.2002, passed by Sri S. Lal, the then I Vth Additional Sessions Judge, Court No. 5 Varanasi in S.T. No. 59 of 2001 (under Sections 498A, 304B, I.P.C. and Section 4 of Dowry Prohibition Act. Police Station Baragaon, Varanasi) by which, he convicted Appellant Smt. Amarawati Devi u/s 304B, I.P.C. and sentenced her to life imprisonment, convicted Appellant Anil Kumar Seth u/s 304B, I.P.C. and sentenced him to undergo 10 years R.I., convicted Appellants Ram Dhani, Ishwar Chandra, Vinay Kumar, Vinod Kumar and Sunil Kumar Seth u/s 304B, I.P.C. and sentenced them to undergo 7 years R.I. and fined each of the Appellants to Rs. 5,000 and convicted the Appellants u/s 4 of Dowry Prohibition Act and sentenced them to undergo one year R.I. and also fined each of the Appellants to Rs. 3,000. It was held by the learned Additional Sessions Judge that as the Appellants were convicted and sentenced u/s 304B, I.P.C., hence they are not convicted u/s 498A, I.P.C.

As three criminal appeals filed against the same judgment by the Appellants have been consolidated, hence they are disposed of together by a common judgment.

The prosecution case in brief is that, on 12.5.2000 Mahendra Kumar Seth lodged an F.I.R. at 10.15 a.m. at Police Station, Baragaon district Varanasi that he married his daughter Pratima with Appellant Anil Kumar S/o Ramdhani on 28.6.1998 in a Shiv temple. The Appellants were demanding in dowry, coloured T.V., fridge, motor cycle, etc. Appellant Smt. Amarawati Devi, mother-in-law, Sri Ram Dhani, father-in-law and brother-in-laws. Sunil Kumar Seth, Ishwar Chandra, Vinod Kumar, Vinay Kumar and Dhirendra Kumar were harassing Pratima in connection with minor family disputes. Pratima used to inform his father Mahendra Kumar Seth that in case the demand of the Appellants was not fulfilled, they would kill her. Due to poverty, complainant could not fulfil the demand, his daughter Pratima was killed by the Appellants on 11.5.2000.

On 11.5.2000, complainant was informed about the death of her daughter by father-in-law of the deceased on telephone at 11.00 p.m.

Complainant along with 8-10 persons came to the house of in-laws of the deceased and found the dead body of her daughter in the room.

During investigation, post-mortem of the deceased was conducted by Dr. R. K. Agarwal and other formalities were completed. After investigation of the case, charge-sheet was submitted against the Appellants.

Accused Appellants Smt. Amarawati Devi, Sunil Kumar Seth, Ishwar Chandra, Anil Kumar Seth, Vinod Kumar, Vinay Kumar and Ramdhani were charged for the offences under Sections 498A, 304B, I.P.C. and 4 of Dowry Prohibition Act. They denied the allegations.

Prosecution examined complainant Mahendra Kumar Seth, P.W. 1, Smt. Chinta Devi wife of the complainant P.W. 2, Dr. R. K. Agarwal, P.W. 3, who conducted the autopsy on the deceased Sri Divesh Kumar Pandey, C.O. Investigating Officer, P.W. 4, S.I. Ram Asrey Gupta P.W. 5, who prepared panchayatnama, photo lash and challan lash and sent the dead body to the B.H.U. for post-mortem examination through constables Zulfiqar and Home Guard Vinod Kumar Tiwari. He also deposed that, F.I.R. was written by constable Moharrir Fateh Bahadur Singh. He proved his signature as Ext. Ka-2 and copy of the G.D. Ext. Ka-13.

The Appellants stated that, they have been falsely implicated.

Appellant Sunil Kumar deposed that prior to the incident, he was living at his sasural in Madiyaon.

The Appellants have examined none in their defence.

The learned Additional Sessions Judge, after hearing the arguments of the learned Counsel for the parties and having considered the evidence on record, convicted and sentenced the Appellants, as mentioned above.

Aggrieved with the order of conviction and sentences, the Appellants have preferred the aforesaid appeals.

We have heard learned Counsel for Appellants and learned A.G.A. and have gone through evidence on record.

Argument of the learned Counsel for Appellants is that for conviction u/s 304B, I.P.C. in view of the judgment of Hon''ble Supreme Court in the case of Sunil Bajaj v. State of M. P. 2001 (3) ACR 2602 (SC) : 2002 SCC 608, following conditions must be satisfied :

(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances ;

(ii) Such death must have occurred within 7 years of her marriage ;

(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband ;

(iv) Such cruelty or harassment must be for or in connection with demand of dowry.

The attention of the Court was also drawn towards the Apex Court decision in Kansraj v. State of Punjab and Ors. 2000 (2) ACR 1263 (SC) : 2000 SCC 935 and Sham Lal v. State of Hayana, connected with Bhagwan Dass v. Sham Lal and Ors. 1997 SCC 759, in which, same view was taken.

The contention of the learned Counsel for Appellants is that, prosecution has failed to prove that, soon before the death of the deceased, she was subjected to cruelty or harassment by her husband or relatives of her husband.

Now in view of the above decisions of Hon''ble Supreme Court, it has to be seen, whether prosecution has been able to prove that deceased was subjected to cruelty or harassment by her husband or relatives of her husband soon before her death and whether such cruelty or harassment was in connection with demand of dowry.

In this connection, attention of the Court has been drawn by learned Counsel for Appellant towards the statement of complainant Mahendra Kumar Seth, P.W. 1, who deposed that, after marriage, twice his deceased daughter came to his house, but she did not make any complaint and when she came third time, she stated that, her husband Anil Kumar and brothers of her husband Vinod Kumar, Ishwar Chandra, Dhirendra, Vijay, Sunil Kumar, mother-in-law Smt. Amrawati and father-in-law Ram Dhani were demanding fridge, motor cycle and coloured T.V. as well as Rs. 20,000 cash.

It has been argued by learned Counsel for Appellants that, according to prosecution, marriage took place on 28.6.1998 and deceased went from the house of her husband last time on 16.3.2000, on which date third time, she came to the house of her father has not been alleged either in F.I.R. or in statement of Mahendra Kumar Seth complainant.

It has also been argued that according to the prosecution, deceased was killed on 11.5.2000, while she went to her husband''s house on 16.3.2000. There is no evidence on which date in between 16.3.2000 and 11.5.2000, deceased was subjected to cruelty or harassment by her husband or by relatives of her husband.

In this connection, attention of the Court has been drawn towards letter Ext. Ka-1, which according to the complainant was written by the deceased between 16.3.2000 and 11.5.2000 Smt. Chinta Devi mother of the deceased deposed that letter Ext. Ka-1 was sent by the deceased 3-4 days prior to the occurrence.

In the letter, she has written that, they should not be worried about her and she also alleged that she will come on the festival of raksha bandhan.

The only fact, which has been alleged by the deceased is that nature of her mother-in-law will never be changed. Again she has requested not to be worried. She has also written that, if they do not rely on it, then they can enquire on telephone. Contention of the learned Counsel for Appellants was that, letter Ext. Ka-1 of the deceased addressed to her mother and father, falsify the prosecution case that, she was subjected to harassment or cruelty by the Appellant soon before her death or that such cruelty or harassment was in connection with demand of dowry.

It has also been argued by the learned Counsel for Appellants that, statement of the complainant that, twice when deceased came to his house, she did not make any complaint regarding demand of dowry or cruelty by her husband in connection with demand of dowry itself falsify the prosecution case.

It has also been argued by the learned Counsel for Appellants that it has not been alleged by the witnesses, as to when for the first time, demand of dowry was made.

Attention of the Court has been drawn towards the statement of complainant, who deposed that, there is no written proof regarding demand of dowry. He also stated that, he told Daroga Ji, that, there is no written proof regarding demand of dowry. He also deposed that, there is none in the village to support his contention regarding demand of dowry. He also admitted that, demand of dowry was made by mother-in-law of the deceased Smt. Amarawati Devi only in his presence and in presence of his wife.

He also deposed that, he did not make any complaint, nor his deceased daughter made any compliant regarding other family members except mother-in-law. He also stated that, he has implicated all the family members of his son-in-law as accused on presumption.

Attention of the Court has been drawn towards the statement of Smt. Chinta Devi, wife of the complainant P.W. 2, who deposed in her cross-examination that, what statement has been given by her is hearsay.

It has also been argued by learned Counsel for Appellants that, according to the complainant demand of dowry was made by mother-in-law of the deceased in his presence and in presence of his wife, but wife of complainant Smt. Chinta Devi deposed that, in her biradari, according to the custom mother of the bridegroom do not meet mother of the bride. As such, there was no question of demand of dowry in presence of Smt. Chinta Devi, P.W. 2, wife of the complainant.

Attention of the Court has been drawn towards the statement of Smt. Chinta Devi that, before the marriage, Appellants were informed and it was settled that they are poor persons and are not in a position to give anything in dowry and after knowing the poverty of the family, marriage took place.

Attention of the Court has been drawn towards the statement that, except Ishwar Chandra, she did not talk any brother of her husband Anil Kumar. She was annoyed with Ishwar Chandra Appellant.

It has also been argued by learned Counsel for Appellants that, Smt. Chinta Devi, P.W. 2 did not tell, when deceased made complainant regarding demand of dowry or cruelty or harassment by the Appellants.

Attention of the Court has been drawn towards statement of Smt. Chinta Devi that, minor conflicting disputes used to take place between the deceased and her husband Anil Kumar as usually took place between husband and wife.

Attention of the Court has been drawn towards the statement that, she is giving the statement as directed by her husband Mahendra Kumar Seth. She also deposed that, she was not annoyed with her mother-in-law, she was annoyed with the brothers of Anil Kumar, husband of deceased. She also deposed that, due to that annoyance, she is giving statement against the brothers of Anil Kumar, husband of deceased. She also deposed that, without talking to her, complainant lodged F.I.R. against the brothers, mother and father of Anil Kumar husband of the deceased.

She also deposed that, for the first time in Court, she is telling the theory of demand of dowry. She could not produce any person of her village, to support the demand of dowry. She can produce any person of Baragaon village of the Appellant, to support contention regarding demand of dowry.

Attention of the Court has been drawn towards the statement of Smt. Chinta Devi, P.W. 2 that, brothers of her husband told to implicate all the family members of the house of the deceased. On their advice her husband (complainant) implicated all the family members.

Attention of the Court has also been drawn towards the statement of S.I. Ram Asrey Gupta, P.W. 4, who prepared inquest report, deposed in cross-examination that, there was no injury on any other part of the body of the deceased except injury in neck, nor any injury on any other part of the body except on neck.

It has also been argued that, learned trial court has placed reliance on Ext. Ka-1 written by the deceased, but there is absolutely nothing to indicate about demand of dowry nor there is even whisper about the same.

It has also been argued by learned Counsel for Appellants that, if there would have been any demand of dowry or there would have any harassment, then the deceased would not have missed to write about the same in the letter Ext. Ka-1, which was written 3-4 days prior to the incident, as stated by Smt. Chinta Devi mother of the deceased.

In this connection, attention of the Court has been drawn towards the decision in Sunil Bajaj (supra), in which, it was observed as below:

As can be seen from this document, on which, much reliance is placed by both Courts, there is absolutely nothing to indicate about the demand of dowry and there is not even a whisper about the same and if that was the cause for her sadness or difficulty, she could not have missed to write about the same. With this evidence on record, it is clear that:

(i) There is no evidence of demand of dowry or subjecting Suman to cruelty for or in connection with dowry other than general, vague and inconsistent state-ments of interested and motivated witnesses P. Ws. 4, 5 and 6 being the parents and brother of Suman.

(ii) Not a single member, neighbour or a relative of parties either at Bhopal or at Saharanpur has come forward to speak about subjecting Suman to cruelty by the Appellant in relation to demand of dowry.

In such circumstances in view of the statement of the complainant and his wife Smt. Chinta Devi, it is clear that, the prosecution has failed to prove that there was any demand of dowry and that soon before the death of the deceased, she was subjected to cruelty or harassment by Appellants or that such cruelty or harassment was in connection with demand of the dowry.

Moreover, it is admitted by the complainant and his wife Smt. Chinta Devi that on advice by others, the whole family was implicated.

Considering total circums-tances of the case, appeals are liable to be allowed and Appellants are entitled to acquittal.

All the three Criminal Appeal Nos. 1056 of 2002, 1055 of 2002 and 542 of 2002 are allowed and judgment and order dated 5.2.2002 is set aside. Appellants Anil Kumar Seth, Smt. Amarawati Devi, Ishwar Chandra alias Mustar, Ram Dhani Seth, Vinai Kumar, Vinod Kumar and Sunil Kumar Seth are acquitted of the charges u/s 304B, I.P.C. and Section 4 of Dowry Prohibition Act. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged.