Brijesh Singh alias Pappu (In Jail) vs State of U.P.

Khem Karan and P.K. Chatterjee, JJ.—This criminal appeal is directed against the judgment and order dated 21.10.1988, by which the learned Additional Sessions Judge, Kheri, convicted and sentenced the Appellant to imprisonment for life u/s 304B, to 2 years'' R.I. u/s 498A and to one year R.I. u/s 3/4 of the Dowry Prohibition Act.

The Appellant is the husband of the deceased Smt. Guddi, whose dead body was found lying on a cot inside his house on 8.11.1987. It was alleged in F.I.R. Ext. Ka-1 that marriage in between the deceased Smt. Guddi and the Appellant took place about ten months before the occurrence and ever since the marriage the Appellant and his brother Rampal Singh were harassing and humiliating Smt. Guddi in connection with demand for dowry, against which she used to complain to her brother and parents. It was further alleged that on 8.11.1987 one Chandra Bhushan Singh informed the first informant Virendra Singh that his sister Smt. Guddi had been killed and on reaching there Virendra Singh found her dead body. The doctor, who performed the post-mortem examination on 9.11.1987 at 4 p.m., found ligature marks on the neck, with fracture of trachea. He also found some injuries on the nose and nostrils and laceration in the eyes. In his opinion, death was due to asphyxia, resulting from strangulation.

After necessary investigation, the Appellant and his brother Rampal Singh were put on trial. In support of its case, the prosecution examined Pahalwan Singh as P.W. 1, Virendra Singh as P.W. 2, Dr. S. K. Shukla as P.W. 3, Akhlaq Ahmad Siddiqui as P.W. 4 and Hari Singh as P.W. 5. The accused Rampal Singh examined himself as D.W. 1.

The learned Additional Sessions Judge came to the conclusion that the charges framed against co-accused Rampal Singh were not established beyond all reasonable doubt, so he acquitted him of those charges. In so far as the charge against the Appellant Brijesh Singh u/s 302/34 of I.P.C., was concerned, the learned Additional Sessions Judge concluded that the same was not established beyond all reasonable doubts, so he acquitted him accordingly. In his opinion, charges under Sections 498A and 304B of I.P.C. as well as u/s 3 of Dowry Prohibition Act were well established against Appellant Brijesh Singh alias Pappu. He, therefore, convicted and sentenced him accordingly, as mentioned earlier.

We have heard Sri Mukul Rakesh, the learned Counsel for the Appellant, Sri P. K. Singh, the learned Counsel for the State and have also perused the record received from the trial court.

There is no dispute on the point that the deceased Smt. Guddi was legally wedded wife of the Appellant Brijesh Singh. There appears to be no challenge to the fact that the marriage in between the Appellant and the deceased Smt. Guddi took place about ten months before the date of the occurrence. The medical evidence of Dr. S. K. Shukla corroborated by post-mortem report Ext. Ka-2 also establishes it beyond all reasonable doubts that death of Smt. Guddi was unnatural and was not normal one. Dr. Shukla is firm in his opinion that it was a case of strangulation. Data furnished in the post-mortem report such as membranes of eye-ball and the bye-brows were torn, left nostril was lacerated, also supported the definite opinion of Dr. Shukla on the point that death was unnatural.

There is no need for entering into the discussion as to whether this death was a case of homicide as the Appellant has already been acquitted of the charge of murder. Even if it is accepted for a moment that it was a suicide, it could be said that death was not in normal circumstances. Sri Mukul Rakesh has not attempted to assail the evidence of Dr. Shukla, on the point stated above. So we agree with the learned Sessions Judge that death of Smt. Guddi was not in normal circumstances but it was unnatural one. We have already stated that this death took place just within ten months of the marriage in between the Appellant and the deceased.

Sri Mukul Rakesh has contended that prosecution has not been able to establish it firmly and beyond all reasonable doubt that there was any demand of dowry or resultant humiliation or cruelty soon before the incident of death of Smt. Guddi. Sri Rakesh submits that when solitary evidence of Virendra Singh (P.W. 2) was not found acceptable in respect of co-accused Ram Pal Singh, how could the same have been accepted against the Appellant. In other words, the contention of Sri Rakesh is that if evidence of Virendra Singh (P.W. 2) as regards the torture of the lady by co-accused Ram Pal Singh was not believable, there was no good reason to accept the same in respect of the Appellant.

We have gone through the evidence of Virendra Singh (P.W. 2) and his F.I.R. Ext. Ka-1. He states that the husband of Smt. Guddi as well as her jeth Ram Pal Singh, subjected her to harassment and cruelty in connection with the demand for dowry, against which she often complained. This evidence of Virendra Singh has not been accepted by the trial Judge, in so far as the co-accused Ram Pal Singh was concerned. The learned Judge has given cogent reasons for doing the same. Moreover, there is no rule that if a part of the evidence of a witness is not accepted, the other part must be rejected (see Sucha Singh and Another Vs. State of Punjab, There is also no rule if one accused is acquitted, the other must be acquitted (see Gangadhar Behera and Others Vs. State of Orissa, . Above all this, we must not forget, the Appellant is the husband of the deceased and unnatural death of his wife is taking place in his house, within months of the marriage. We are of the view that evidence of P.W. 2 was wholly believable on the point that Appellant ill-treated his wife in connection with dowry, soon before her death.

Sri Mukul Rakesh has next contended that one of the essential requirement of Section 304B that the humiliation or cruelty must have taken place "soon before the death" in question. Sri Rakesh goes on to argue that it has come in evidence of Pahalwan (P.W. 1) that the Appellant was not seen in the village for the last two or three days and, therefore, it cannot be said that he subjected the lady to cruelty "soon before her death". The expression "soon before her death" appearing in Section 304B cannot be measured in hours or days and cannot be limited to a particular point of time, otherwise, the very object of the section would stand frustrated. To our mind, this expression means that there should be a live link in between the torture and the death. It would be appropriate to refer to the following observations of the Apex Court in Kans Raj Vs. State of Punjab and Others, :

"Soon before death" appearing in Section 304B of I.P.C. is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time limit....... Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be "soon before death" if any other intervening circumstances showing non-existence of such treatment is not brought on record.

It has come in evidence of Virendra Singh that the lady was subjected to cruelty by her husband ever since the marriage in connection with the demand for dowry and she often complained against the same to him and other kith and kin. We should not forget that the marriage of the deceased with the Appellant took place hardly ten months before her unnatural death in the house of her husband. There is no much time gap in between the marriage and the death of the wife. In these circumstances, we are of the view that it is well established by the evidence of Virendra Singh (P.W. 2) that Smt. Guddi was subjected to cruelty or harassment by her husband "soon before her death".

Sri Mukul Rakesh has also argued that F.I.R. Ext. Ka-1 appears to have been lodged after considerable discussions and deliberations and in any case was not in existence when the inquest report was prepared by P.W. 4. The basis for suspecting the existence of the F.I.R. before preparation of the inquest report is the difference in the distance between the place of occurrence and the police station as noted in the chik F.I.R. Ext. Ka-3 and the inquest report Ext. Ka-5. While in chik F.I.R., this distance is noted as 2-1/2 km., but in the inquest report, the distance between the same places is noted as 3 km. Sri Rakesh submits, had the copy of the F.I.R. been with the police officials at the time of preparation of inquest report, this discrepancy would not have occurred in noting down the distance in the inquest report. Unfortunately, no attempt was made by the learned Counsel for the defence to get it cleared from Akhlaq Ahmad Siddiqui (P.W. 4) as to how this discrepancy crept in. In absence of any opportunity having been given to the person concerned to explain the discrepancy in the distance as noted in the inquest report, the same cannot be used so as to say that F.I.R. was not in existence. Moreover, such a discrepancy alone cannot be a good basis to doubt the genuineness of the F.I.R.

Sri Mukul Rakesh has also argued that had there been any substance or truth in the accusation that the Appellant subjected the lady to cruelty in connection with the demand for dowry, the same would have found place in the inquest report (Ext. Ka-5). We find ourselves unable to accept this argument of Sri Mukul Rakesh. The reason is that requirement of Section 174 of Cr. P.C. is not as to what was the possible motive for the crime or how the offence was committed. It is just possible that brother of the deceased might have suspected some foul play only during the preparation of inquest report or he might have not been given an opportunity to have his say in the matter, at a time when inquest report was prepared. No cross-examination was directed so as to elicit from Virendra Singh (P.W. 2) as to why did he not mention it at the time of preparation of inquest report that his sister was being subjected to cruelty and harassment in connection with the demand for dowry. In absence of this, it cannot be said that omission to mention about the demand for dowry or torture in the inquest report, is a circumstance to cast doubt on the story of demand for dowry or cruelty etc.

Pahalwan Singh (P.W. 1) has stated that the Appellant was not seen for the last two or three days but he is firm on the point that these were the Appellant and his wife, who used to live in the house at the relevant time. This statement of P.W. 1 has not been challenged during the course of cross-examination. In other words, the prosecution evidence on the point that the Appellant was living with the deceased in the house, goes unchallenged and unrebutted.

After all, it was for the Appellant being husband of the deceased to explain as to under what circumstances, his wife met such unnatural death in his own house and how the house was locked from inside with the dead body. No evidence was adduced to prove any alibi. Even if the Appellant was not there in the village for two or three days, the same does not absolve him of the offence punishable u/s 304B of the I.P.C. after the proof that he used to torture his wife in connection with the demand for dowry.

We are of the view that the finding of guilt recorded by the learned Sessions Judge against the Appellant on all the three counts is perfectly justified and there is no scope for interference with the same. In other words, prosecution was successful in establishing beyond all reasonable doubt that the Appellant committed the offences punishable under Sections 304B, 498A of I.P.C. and Section 3 of Dowry Prohibition Act.

As regards the sentence, Sri Mukul Rakesh has submitted that the sentence of life imprisonment as awarded u/s 304B of I.P.C. was not warranted in the facts and circumstances of the case. It has also been argued that the Appellant was hardly 20-22 years of age on the date the crime in question was allegedly committed. Sri Rakesh submits that sentence of life imprisonment was a little harsh and it should not have been more than seven years'' R.I. Sri Mukul Rakesh has informed us that the Appellant has already remained in jail for about five years. The learned Counsel for the State has tried to say that in the facts and circumstances, there appears to be no good ground for interference with the quantum of sentence as awarded by the learned Sessions Judge u/s 304B of I.P.C.

We have considered the respective submissions. In the totality of the circumstances appearing in the case, we are of the view that a sentence of seven years'' R.I. would serve the ends of justice. So, we decide to substitute the sentence of seven years'' R.I. to the sentence of life imprisonment u/s 304B of I.P.C. The sentences u/s 498A of I.P.C. and Section 3 of Dowry Prohibition Act need not be interfered with and the same appear to be well justified.

In the result, appeal against conviction under Sections 304B, 498A of I.P.C. and u/s 3 of Dowry Prohibition Act is dismissed. But the sentence of life imprisonment u/s 304B of I.P.C. is substituted with the sentence of seven years'' R.I. The sentences u/s 498A of I.P.C. and u/s 3 of Dowry Prohibition Act are not being disturbed. The Appellant is on bail. He will surrender to his bail bonds and shall be sent to jail to serve out the sentences, as mentioned above.

Let the records received from the trial court be sent back to it along with a copy of this order for necessary compliance.