Anoop Kumar alias Balram vs State of U.P.

Shri Kant Tripathi, J.—The Appellant, Anoop Kumar alias Balram, who is the husband of the deceased, has preferred this appeal against the judgment and order dated 12.3.2003 rendered by Sri Shri Prakash, Additional Sessions Judge, Fast Track Court III, Kanpur Dehat in S.T. No. 183 of 2001, whereby the learned Additional Sessions Judge, has convicted and sentenced the Appellant u/s 304B, I.P.C. to undergo rigorous imprisonment of ten years and also to pay a fine of Rs. 10,000 and in default of payment of fine to undergo further rigorous imprisonment of one year. He has further convicted and sentenced the Appellant u/s 498A, I.P.C. to undergo rigorous imprisonment of three years and also to pay a fine of Rs. 5,000 and in default of payment of fine to undergo a further rigorous imprisonment of six months.

The relevant facts are that the deceased Anju was the wife of the Appellant. Their marriage took place on 27.1.1999. It is alleged that the Appellant and his family members used to do maltreatment to the deceased for dowry. It is also alleged that the Appellant demanded money for purchasing a plot, which the complainant, who is the father of the deceased, could not fulfil, consequently on 27.12.2000, in the early morning, the Appellant and his family members killed the deceased by putting her on fire after sprinkling kerosene. The complainant was informed regarding the incident on phone at about 8 p.m. He immediately went to the house of the Appellant and found that the deceased had died. The complainant lodged the F.I.R. Ex. Ka-1 at the police station concerned on 28.12.2000 at about 18.30 hours, on which basis the police registered the case and proceeded to make investigation.

The inquest report of the dead body of the deceased was prepared in the supervision of P.W. 3 Jiya Lal Saroj, Tahsildar, Derapur, Kanpur Dehat and the dead body of the deceased was sent in the sealed condition for post-mortem examination to the concerned hospital. The dead body of the deceased was subjected to the post-mortem examination on 29.12.2000 at about 2 p.m. The doctor, who did the post-mortem examination, found superficial to deep burn ante-mortem injuries all over the body of the deceased, except both soles. Smell of kerosene was also noticed by the doctor. According to him, the cause of death of the deceased was shock as a result of ante-mortem burn injuries. P.W. 6 Ruchita Chaudhary, the Circle Officer, Derapur, Kanpur Dehat, investigated the case and after completing the investigation submitted charge-sheet against the Appellant under Sections 498A and 304B, I.P.C. in the concerned Court.

After committal of the case to the Court of Sessions, the trial was transferred to the Additional Sessions Judge, Fast Track Court 3, Kanpur Dehat for trial, who framed the charges under Sections 498A and 304B, I.P.C. against the Appellant Anoop Kumar alias Balram.

The Appellant denied the charges and claimed to be tried.

The prosecution has examined as many as six witnesses in support of its case. P.W. 1 Om Prakash is the father of the deceased and is also the complainant. He has supported the prosecution story regarding the demand of dowry and harassment to the deceased during her life time. He has further proved that the deceased died due to burn injuries in the house of the Appellant.

P.W. 2 Brij Mohan happens to be an eye-witness of the occurrence. He has not supported the prosecution story and has been declared hostile by the prosecution. This witness has however, stated that the deceased died due to burn injuries.

P.W. 3 Jiya Lal Saroj was posted on the post of Tahsildar Derapur, Kanpur Dehat. He had prepared the inquest report Ex. Ka-2 and other formal papers.

P.W. 4 Manju is the real sister of the deceased. She has also supported the prosecution story regarding the demand of dowry.

P.W. 5 Arun Kumar Awasthi was posted on the post of Head Constable at the police station concerned. He has proved the chik report (Ex. Ka-8) and copy of G.D. (Ex. Ka-9).

P.W. 6 Smt. Ruchita Chaudhary is the Investigating Officer of the case. She had visited the place of occurrence and prepared the site plan (Ex. Ka-10) and also took in possession the container in which kerosene had been kept for pouring on the deceased and had prepared its fard Ex. Ka-11. This witness has also proved the charge-sheet Ex. Ka-12.

The accused was examined u/s 313, Cr. P.C. He has stated that the deceased had been pressurising him to dispose of his agricultural land situating in the village and to live in a city. When he denied to do so, the deceased committed suicide by putting her on fire after sprinkling kerosene and also by bolting the door of the house from inside.

The Appellant examined D.W. 1 Ram Pal and D.W. 2 Hardev Singh to prove the story of suicide and also to overrule the story of dowry death set up by the prosecution.

The learned Additional Sessions Judge held that the charges under Sections 304B and 498A, I.P.C. were proved beyond all reasonable doubts against the Appellant and accordingly convicted and sentenced him under Sections 304B and 498A, I.P.C.

I have heard the learned Counsel for the Appellant and the learned A.G.A. and perused the record.

The learned Counsel for the Appellant pressed the appeal only on the point of sentence and submitted that the finding of guilt recorded by the learned lower court is correct and based on proper appraisal of the evidence. It was further submitted that the appeal has no substance on merit.

It is not disputed that the death of the deceased occurred otherwise than under normal circumstance due to burn injuries in the house of the Appellant within two years of her marriage. The defence story is that the deceased committed suicide by putting herself on fire. There does not appear to be any plausible reason for the deceased to commit suicide merely because the Appellant was not willing to dispose of his landed property and to shift to live in a city. In my opinion, it was a very petty matter for a lady to commit suicide.

On the other hand, the prosecution has adduced adequate evidence that the Appellant had been pressing the deceased to procure Rs. 10,000 from her parents for purchasing a plot and she was being subjected to cruelty for procuring the dowry. When the Appellant''s demand was not fulfilled, he killed the deceased by putting her on fire after sprinkling kerosene. P.W. 1, Om Prakash, the father of the deceased and P.W. 4 Manju, the sister of the deceased, have supported this version of the occurrence in the witness box and nothing material could be brought on record to discredit their testimonies. They have very clearly stated that the deceased had told them regarding the demand of dowry and her harassment by the Appellant. Their statements find corroboration from the post-mortem examination report proving the cause of death of the deceased due to ante-mortem burn injuries. In my opinion, the learned Additional Sessions Judge has rightly believed the prosecution story as well as the statements of P.W. 1 Om Prakash and P.W. 4 Manju.

To constitute an offence of dowry death u/s 304B, I.P.C. the prosecution has to prove that the death of a woman has been caused by burn or bodily injuries or has occurred otherwise than under normal circumstances within seven years of her marriage and the woman was subjected to cruelty or harassment by her husband or any relative of her husband, soon before her death and the cruelty or harassment must be for or in connection with, any demand of dowry. Section 113B of the Indian Evidence Act, deals with the circumstances, under which commission of dowry death shall be presumed. When it is shown that soon before her death, any woman has been subjected to cruelty or harassment by her husband or any relative of her husband, for or in connection with any demand of dowry, the Court shall presume that such person committed the dowry death and in that event the burden to eliminate the case of dowry death lies on the accused. Before drawing a presumption u/s 113B of the Indian Evidence Act, the Court has to ensure that the requirements of Section 113B of the Evidence Act, have been fully established. Unless and until the requirements of Section 113B of the Evidence Act are established, it is not open to the Courts to draw such presumption against the accused. Mere an allegation of unnatural death of a woman within seven years of her marriage does not constitute the offence of dowry death u/s 304B, I.P.C. and also cannot be made a basis to raise the presumption u/s 113B of the Evidence Act. What is more required in this regard to prove that the deceased was subjected to cruelty or harassment soon before her death for or in connection with any demand of dowry, by the husband or any relative of the husband of the deceased. The instant case needs to be examined in the light of these principles. In this case, the prosecution has adduced adequate evidence to prove that the deceased was being continuously subjected to cruelty and harassment for procuring the dowry of Rs. 10,000 from her parents and the same continued till her death. It is also fully proved that the death of the deceased occurred otherwise than under normal circumstances due to burn injuries in the house of the Appellant within two years of her marriage. The prosecution has thus, established the requirements of Section 304B, I.P.C. as well as Section 113B of the Evidence Act. It is true that the Appellant had pleaded that the deceased committed suicide but the story of suicide was not found proved by the learned trial court, which appears to be perfectly correct in view of the facts and circumstances of the case. For argument sake, if the defence version that the deceased committed suicide is believed, even then, the unnatural death of the deceased due to burn injuries would fall within the category of "dowry death" because the prosecution has succeeded in proving all the requirements of Section 304B, I.P.C. beyond all reasonable doubts. If a woman commits suicide, her death shall be deemed to be otherwise than under normal circumstances for the purposes of Section 304B, I.P.C. and if the prosecution further proves that the woman was subjected to cruelty or harassment soon before her death either by her husband or his any relative for or in connection with any demand of dowry, the suicidal death of the woman would fall within the ambit of dowry death as defined in Section 304B, I.P.C. and in that situation the case of dowry death cannot be discarded merely because the death of the deceased was suicidal and not homicidal. In the case of Ram Badan Sharma v. State of Bihar (2007) 1 SCC 166: 2006 (3) ACR 2390 (SC), the Apex Court has held in para 44 that "but even assuming that it is a case of suicide, even then it would be death which had occurred in unnatural circumstances. Even in such a case Section 304B, I.P.C. is attracted."

On the quantum of sentence, the learned Counsel for the Appellant submitted that the learned lower court was not justified in sentencing the Appellant to pay a fine of Rs. 10,000 u/s 304B, I.P.C. The learned Counsel for the Appellant further submitted that Section 304B, I.P.C. nowhere provides for imposition of sentence of fine. It was further submitted that the learned lower court has already sentenced the Appellant u/s 498A, I.P.C. to undergo rigorous imprisonment of three years and as such there was no justification to impose the sentence of fine of Rs. 5,000 u/s 498A, I.P.C.

In my opinion, the submissions of the learned Counsel for the Appellant have some substance so far as the offence u/s 304B, I.P.C. is concerned. In view of the fact that Section 304B, I.P.C. provides imposition of the sentence of imprisonment only, the sentence of fine imposed on the Appellant u/s 304B, I.P.C. is liable to be set aside. So far as the sentence of fine imposed u/s 498A, I.P.C. is concerned, it may be mentioned that the offence u/s 498A, I.P.C. is punishable with imprisonment and also with fine and as such the sentence of fine u/s 498A, I.P.C. cannot be said to be beyond jurisdiction. Keeping in view the facts and circumstances of the case, the fine of Rs. 5,000 against the Appellant u/s 498A, I.P.C. seems to be excessive and unreasonable. It is liable to be reduced to Rs. 2,000 specially when it is submitted on behalf of the Appellant that Appellant''s financial condition is poor and he is in jail since last about ten years.

The appeal is partly allowed. The conviction of the Appellant Anoop Kumar alias Balram under Sections 304B and 498A, I.P.C. as well as the sentence of ten years rigorous imprisonment u/s 304B, I.P.C. and three years rigorous imprisonment u/s 498A, I.P.C. are confirmed. The sentence of fine u/s 304B, I.P.C. is however, set aside. But the sentence of fine imposed u/s 498A, I.P.C. is reduced to Rs. 2,000. In default of payment of fine, the Appellant shall undergo additional rigorous imprisonment of three months. The sentences passed against the Appellant will stand modified accordingly.

The Appellant shall be extended the benefit of set off as contemplated by Section 428, Cr. P.C.